Bay of Bengal Maritime Boundary Arbitration between the People's Republic of Bangladesh and the Republic of India v India

• Judge: Shearer,Mensah,Wolfrum,Cot,Rao
• Court: Arbitration Tribunal (International)
• Date: 07 July 2014

Arbitration Tribunal.2

(Wolfrum, President;Cot, Mensah, Rao and Shearer, Members)

Bay of Bengal Maritime Boundary Arbitration between the People's Republic of Bangladesh and the Republic of India1

People's Republic of Bangladesh

and

India

Sea — Maritime boundary delimitation — Single maritime boundary — Territorial sea — United Nations Convention on the Law of the Sea, 1982 (“UNCLOS”) — Article 15 — Equidistance/special circumstances — Whether suitable base points could be on low-tide elevations — Exclusive Economic Zone — Continental shelf — Continental shelf beyond 200 nautical miles — UNCLOS Articles 74 and 83 — Three-stage approach — Equidistance/relevant circumstances — Proportionality — Relevant coasts — Relevant area — Bay of Bengal — Coastal instability — Concavity of coast — Cut-off effect — Dependence on fishing — Angle-bisector method — Whether geographical configuration of Bay of Bengal warranting use of angle-bisector method — UNCLOS Article 76 — “Grey area” issue — Whether UNCLOS allowing “grey areas”

International tribunals — Arbitration tribunal constituted under UNCLOS Annex VII — United Nations Convention on the Law of the Sea, 1982 — Jurisdiction — Unilateral application — Maritime boundary delimitation — Site visit

Territory — Land boundary terminus — 1947 Radcliffe Award — Whether Radcliffe Award determining land boundary terminus between Bangladesh and India — Maps — Whether a map constituting contemporaneous evidence to be used for determination of land boundary terminus — Whether exchange of letters between Parties constituting binding agreement on their land boundary — Level of seniority of officials concerned

Summary:3The facts:—On 8 October 2009,4 the People's Republic of Bangladesh (“Bangladesh”) instituted arbitral proceedings against the Republic of India (“India”) under Annex VII of the United Nations Convention on the Law of the Sea, 1982 (“UNCLOS” or “the Convention”) for the delimitation of the maritime boundary between Bangladesh and India in the Bay of Bengal.

The dispute originated at the time of the partition of British India. By the Indian Independence Act 1947, the United Kingdom provided that the province of West Bengal would remain part of India, while the province of East Bengal would become part of Pakistan. Section 3 of that Act provided that the land boundary between East and West Bengal would be traced by a commission appointed by the Governor-General of India. The commission was established on 30 June 1947, and was chaired by Sir Cyril Radcliffe (“the Radcliffe Commission”). The Radcliffe Commission presented its Report on 13 August 1947 (“the Radcliffe Award”), which described the land boundary as the line running along the frontier between the districts of Khulna and 24 Parganas to the point where it met the Bay of Bengal. Annexure A to the Radcliffe Award contained the description of the land boundary, while Annexure B contained a map illustrating the course of such a boundary. On 26 March 1971, Bangladesh declared its independence from Pakistan, and succeeded to the territory of former East Bengal and its boundaries.

The dispute between the Parties concerned the delimitation of the maritime boundaries between Bangladesh and India in the Bay of Bengal. The Tribunal was requested to delimit the boundaries in the territorial sea, continental shelf within and beyond 200 nautical miles (“nm”), and Exclusive Economic Zone (“EEZ”) of the Parties.

The Parties agreed that the land boundary terminus, established on the basis of the Radcliffe Award, was to be the starting point of the maritime boundary. The Parties also agreed that the Tribunal had jurisdiction to delimit the continental shelf both within and beyond 200 nm from their respective baselines.

Concerning the identification of the land boundary terminus, the Parties disagreed as to the interpretation of Annexures A and B to the Radcliffe Award. According to Bangladesh, Annexure A should have been interpreted in the sense that the land boundary terminus lay where the midstream of the main channel of the River Haribhanga met the Bay of Bengal, since the course of the boundary through the rivers mentioned by the Radcliffe Award (Ichhamati, Kalindi, Raimangal and Haribhanga) was sequential. India argued that the land boundary terminus lay where the Raimangal-Haribhanga conjoined channel met the Bay of Bengal, east of New Moore Island.

The Parties also disagreed regarding the meaning of the phrase “for the time being” in the Radcliffe Award. According to Bangladesh, this phrase signified that the land boundary would shift to the extent that the main channel of the river shifted. However, Bangladesh maintained that the critical date when the land boundary would have been crystallized was the date of the Radcliffe Award, meaning that after the award no change in the river's course was relevant. India contended that the inclusion of the phrase “for the time being” codified the Parties' agreement that their land boundary was fluid, and thus not definitively fixed by the Radcliffe Award in 1947.

India also referred to a 1951 exchange of letters between India and Pakistan, whereby Pakistan agreed to a fluid boundary finding the application of the Radcliffe Award impracticable. Bangladesh argued, however, that correspondence between two civil servants was unable to bind their States as to a particular land boundary course. In addition, while India contended that the map in Annexure B to the Radcliffe Award showed the course of the land boundary and was an integral part of that Award, Bangladesh argued that the map was merely illustrative, and that it did show accurately the course of the land boundary. In any event, according to Bangladesh the map should have been authenticated by an expert.

Bangladesh contended that British Admiralty (“BA”) Chart 859 was the most authoritative map for the determination of the land boundary terminus, as evidence contemporaneous to the Radcliffe Award. India rejected the accuracy and relevance of BA Chart 859 and contended that it was not contemporaneous evidence, since the survey on which it was based had been conducted in 1879. India also disputed the relevance and weight of contemporaneous evidence, and argued that subsequent evidence should be accorded more weight.

India submitted satellite imagery of the land boundary terminus area. Bangladesh disputed its conclusiveness, arguing that it disregarded charts available at the time of the Radcliffe Award.

Bangladesh argued that the midstream of the main channel was to be identified with respect to the Haribhanga River, based on the 1931 printing of BA Chart 859. India contended that it was to be determined by reference to the conjoined channel of the Raimangal and Haribhanga Rivers which flowed to the east of South Talpatty/New Moore Island as shown in the map annexed to the Radcliffe Award.

Concerning the identification of the point where the land boundary met the Bay of Bengal, Bangladesh argued that such a point was on the closing line drawn in BA Chart 859. India agreed to use the inter fauces terrae doctrine, but identified the point where the land boundary met the Bay of Bengal on Indian charts issued in 2011.

For the delimitation of the maritime boundary, each Party proposed a number of base points with which the opposing Party took issue. Bangladesh disputed the relevance of three Indian base points since they were placed on low-tide elevations, the existence of which was disputed. The Indian base point on South Talpatty/New Moore Island was contested due to the island's insignificance and that sovereignty over it could only have been determined by reference to the location of the maritime boundary. India argued that South Talpatty/New Moore Island was stable since the 1970s, and was shown to be a low-tide elevation in recent satellite imagery.

Concerning the delimitation of the territorial sea, the Parties agreed that Article 15 of the Convention was the applicable law. However, they disagreed on the existence of special circumstances and on the method of its application. Bangladesh argued that equidistance had no priority over other methods under the applicable law, and that the Tribunal should have drawn a boundary based on the bisector of the angle formed by the lines approximating the general direction of the Parties' coasts. India underscored the primacy of equidistance, requesting the Tribunal to trace an equidistance line between the two coasts.

Bangladesh argued that the coastal instability in the Bay of Bengal and the concavity of Bangladesh's coast were special circumstances justifying the use of a method at variance with equidistance. India rejected Bangladesh's arguments.

With respect to the delimitation beyond 12 nm, the Parties agreed on the relevant coast of Bangladesh, but disagreed on the relevant coast of India. While Bangladesh argued that the Indian relevant coast extended from the land boundary terminus to Sandy Point (708 km), India submitted that its own relevant coast extended from the land boundary terminus to Devi Point (411 km). The disagreement on the relevant coast of India determined the disagreement in the relevant delimitation area.

The Parties agreed that Articles 74(1) and 83(1) of the Convention governed the delimitation beyond 12 nm. Bangladesh argued that there was no presumption in favour of equidistance, and that the need to achieve an “equitable solution” entailed a wide margin of appreciation in respect of the method to apply in delimitation. India argued that international jurisprudence developed in favour of the use of equidistance in maritime delimitation beyond 12 nm, and that relevant circumstances should not be confused with factors making the drawing of an equidistance line unfeasible. Similarly with respect to the territorial sea, Bangladesh argued for a boundary based on the angle-bisector method, while India rejected that method and requested the Tribunal to draw a...