A victory for Bangladesh

July 7, 2014 may go down in history as a turning point for Bangladesh. On that day, an arbitral tribunal sitting in The Hague rendered its award delimiting the maritime boundary between Bangladesh and India. An earlier March 14, 2012 judgment of the International Tribunal for the Law of the Sea sitting in Hamburg, Germany, had already delimited the maritime boundary between Bangladesh and Myanmar.

Both decisions are final and legally binding. In combination, they represent the successful conclusion of the government’s courageous and far-sighted decision on October 8, 2009, to initiate two parallel cases to resolve all its maritime boundary disputes in the Bay of Bengal. The end of this long and complex process now opens the way for the exploitation of vast offshore resources – including natural gas – that could revolutionise the fortunes of the Bangladeshi people.

The decision to bring these two cases followed many years of unsuccessful negotiations in which Myanmar and India proposed maritime boundaries that fell well short of Bangladesh’s entitlements under international law. Under such circumstances, Bangladesh had the unappealing choice of either accepting plainly inequitable boundaries, or leaving the boundary disputes indefinitely unresolved.

Given the need for legal certainty required for investment of millions of dollars for offshore exploration, this situation hindered the development of natural resources. It was within Bangladesh’s rights under the 1982 UN Law of the Sea Convention to initiate compulsory judicial procedures in order to settle these disputes once and for all. Indeed, it was also to the benefit of Myanmar and India to put an end to the legal uncertainty.

Bangladesh was in the challenging position of simultaneously litigating two separate but closely related cases. Because of broad similarities in the geographical context of the dispute with both Myanmar and India, the precedent established in the first judgment would invariably shape the outcome of the second judgment.

This was important because the general principle of maritime delimitation between adjacent states is to draw a boundary that is equidistant from both their coasts. Myanmar and India insisted on this delimitation method both in negotiations and litigation. This position however, was highly disadvantageous for Bangladesh.

Because of its concave coastline, such boundaries would severely “cut-off” its entitlement to a 200-mile maritime area – and beyond that, to an extended continental shelf. This would reduce Bangladesh’s maritime space to a small triangle, sandwhiched between its neighbours. Thus, the central objective in both cases was to demonstrate that an equidistant boundary was not the appropriate solution under international law.

It is difficult to assess the success of these cases given the complexity and multiplicity of factors relevant to maritime boundary delimitation. There are legal principles to be applied, but this is not an exact science that can be easily quantified in terms of “splitting the difference” between two opposing claims and the like. Furthermore, in attempting to measure the relative success of these cases, I may be accused of arriving at a self-serving conclusion of a triumph given that I served as counsel for Bangladesh. That is why I leave it to the words of the Indian-appointed arbitrator Dr PS Raoto to describe just how remarkable a victory the July 7, 2014 award was for Bangladesh.

In his partially dissenting opinion, he observed that the 177° 30’ 00” azimuth of the boundary adopted in the majority opinion “comes very close to (and indeed nearly matches) the 180° bisector claimed by Bangladesh.” In other words, Bangladesh got nearly all that it asked for.

A map depicting the difference between the negotiating and litigation positions of Myanmar and India respectively, and the boundaries that Bangladesh was ultimately awarded, leaves little doubt that the final outcome of this five-year long process is truly outstanding.

In short, Bangladesh managed to persuade both tribunals that an equidistance line was inequitable because it would “cut-off” its maritime space, and that a significant adjustment of boundaries in Bangladesh’s favour was required. Bangladesh thus received thousands of square kilometres of additional maritime space.

As with all success stories, it is easy to forget how many things could have gone wrong along the way. From the determination of Prime Minister Sheikh Hasina to initiate the two cases in pursuit of the national interest, to the capable leadership of then Foreign Minister Dipu Moni, to the exemplary dedication of Admiral Khurshed Alam, to the solidarity of the legal team, this was an odyssey with results that far exceeded our expectations. It has been a true honour and privilege to contribute, in some small measure, to this important chapter in the history of the people of Bangladesh.