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Bay of Bengal Maritime Boundary Arbitration

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Bay of Bengal Maritime Boundary Arbitration IN THE MATTER OF THE BAY OF BENGAL MARITIME BOUNDARY ARBITRATION - between - THE PEOPLE’S REPUBLIC OF BANGLADESH - and - THE REPUBLIC OF INDIA AWARD The Arbitral Tribunal: Judge Rüdiger Wolfrum (President) Judge Jean-Pierre Cot Judge Thomas A. Mensah Dr. Pemmaraju Sreenivasa Rao Professor Ivan Shearer Registry: Permanent Court of Arbitration The Hague, 7 July 2014 this page intentionally blank AGENTS, COUNSEL AND OTHER REPRESENTATIVES OF THE PARTIES AGENT OF BANGLADESH AGENT OF INDIA Dr. Dipu Moni, MP Dr. Neeru Chadha Government of the People’s Republic of Joint Secretary & the Legal Adviser Bangladesh Ministry of External Affairs DEPUTY AGENT OF BANGLADESH CO-AGENT OF INDIA Rear Admiral Md. Khurshed Alam (Retd) Mr. Harsh Vardhan Shringla Secretary, Maritime Affairs Unit Joint Secretary (BSM) Ministry of Foreign Affairs, Ministry of External Affairs Government of the People’s Republic of Bangladesh DEPUTY AGENT OF INDIA Mr. Puneet Agrawal Deputy Agent, Director (BSM) Ministry of External Affairs COUNSEL AND ADVOCATES FOR BANGLADESH CHIEF COUNSEL FOR INDIA H.E. The Honourable A.H. Mahmood Ali, MP H.E. Mr. G. E. Vahanvati Foreign Minister, Ministry of Foreign Affairs, Attorney General of India Government of the People’s Republic of Bangladesh COUNSEL FOR INDIA Mr. Md. Shahidul Haque Professor Alain Pellet Foreign Secretary, Ministry of Foreign Affairs University of Paris Ouest, Nanterre-La Défense Government of the People’s Republic of Former Member & Chairman of the International Bangladesh Law Commission, Associate Member of the Institut de Droit International Mr. Mohammad Shahidul Haque Secretary, Legislative & Parliamentary Affairs Professor W.M. Reisman Division, Ministry of Law, Justice and McDougal Professor of Law, Yale University Parliamentary Affairs, Dhaka Member of the Institut de Droit international Professor Payam Akhavan Mr. R.K.P. Shankardass McGill University Senior Advocate, Supreme Court of India Former President, International Bar Association Professor Alan Boyle University of Edinburgh Sir Michael Wood, K.C.M.G Member of the English Bar Professor James Crawford SC, FBA Member of the International Law Commission University of Cambridge Mr. Lawrence H. Martin Foley Hoag LLP Mr. Paul S. Reichler Foley Hoag LLP Professor Philippe Sands QC University College London i ADVISORS FOR BANGLADESH REPRESENTATIVES FOR INDIA Mr. Shiekh Mohammed Belal H.E. Mr. R.N. Prasad Director General, Ministry of Foreign Affairs and Ambassador of India to the Netherlands Bangladesh Ambassador-designate to the Netherlands Dr. A. Sudhakara Reddy Counsellor (Legal) M.R.I. Abedin, System Analyst Maritime Affairs Unit, Ministry of Foreign JUNIOR COUNSEL FOR INDIA Affairs Mr. Devadatt Kamat Assistant Counsel to Attorney General of India Mr. Mohammad Hazrat Ali Khan, Director Maritime Affairs Unit ,Ministry of Foreign Mr. Benjamin Samson Affairs University of Paris Ouest Dr. Robin Cleverly Mr. Eran Sthoeger Law of the Sea Consultant, New York University The United Kingdom Hydrographic Office SCIENTIFIC & TECHNICAL ADVISORS Mr. Scott Edmonds FOR INDIA Cartographic Consultant, International Mapping Vice Admiral S.K. Jha, Chief Hydrographer to the Government of India Dr. Lindsay Parson Director, Maritime Zone Solutions Ltd. Rear Admiral K.M. Nair Joint Chief Hydrographer Mr. Robert W. Smith National Hydrographic Office (NHO) Geographic Consultant Prof. Martin Pratt JUNIOR COUNSEL FOR BANGLADESH Expert Cartographer Director of Research, International Boundary Mrs. Clara Brillembourg Research Unit (IBRU) Foley Hoag LLP Durham University Mr. Vivek Krishnamurthy Commodore Adhir Arora, Foley Hoag LLP Principal Director of Hydrography, NHO Mr. Yuri Parkhomenko Captain Peush Pawsey Foley Hoag LLP Director of Hydrography (Ops.), NHO Mr. Remi Reichhold Dr. Dhananjay Pandey Matrix Chambers Scientist, National Centre for Antarctic & Ocean Research (NCAOR) Mr. R. C. Samota Cartographic Assistant, NHO RESEARCH ASSOCIATES FOR INDIA Mr. K. S. Mohammed Hussain Legal Officer, Ministry of External Affairs Ms. Héloise Bajer-Pellet, Member of the Paris Bar ii TABLE OF CONTENTS CHAPTER I - PROCEDURAL HISTORY ................................................................................................ 1 A. Initiation of this Arbitration ............................................................................................................................ 1 B. Constitution of the Arbitral Tribunal ............................................................................................................... 1 C. The First Procedural Meeting and the Adoption of the Rules of Procedure .................................................... 2 D. Appointment of Expert Hydrographer ............................................................................................................ 2 E. Site Visit .......................................................................................................................................................... 3 F. The Parties’ Written Submissions on the Merits ............................................................................................. 7 G. The Hearing on the Merits .............................................................................................................................. 8 CHAPTER II - INTRODUCTION .............................................................................................................. 13 A. Geography ..................................................................................................................................................... 13 B. Historical Background of the Dispute ........................................................................................................... 14 C. The Dispute between the Parties ................................................................................................................... 15 CHAPTER III - THE TRIBUNAL’S JURISDICTION .............................................................................. 19 A. The Submission of the Dispute to Arbitration under the Convention............................................................ 19 B. Jurisdiction and the Delimitation of the Continental Shelf beyond 200 nm .................................................. 20 CHAPTER IV - THE LAND BOUNDARY TERMINUS ........................................................................... 25 A. Interpretation of Annexure A of the Radcliffe Award ................................................................................... 26 1. “the main channel . of the rivers Ichhamati and Kalindi, Raimangal and Haribhanga till it meets the Bay” .................................................................................................................................................... 26 2. “for the time being” and the relevance of the Bagge Award ................................................................ 27 B. The 1951 Exchange of Letters ...................................................................................................................... 29 C. Map Evidence Presented by the Parties ........................................................................................................ 31 1. The Radcliffe Map ............................................................................................................................... 31 2. British Admiralty Chart 859 ................................................................................................................ 36 3. Satellite Imagery .................................................................................................................................. 39 D. Commander Kennedy’s Report ..................................................................................................................... 41 E. The Relevance of uti possidetis juris ............................................................................................................. 42 F. “the midstream of the main channel” ............................................................................................................ 42 G. “the point where that boundary meets the Bay of Bengal” ............................................................................ 44 H. The Tribunal’s Decision on the Land Boundary Terminus ........................................................................... 45 CHAPTER V - THE SELECTION OF BASE POINTS AND THE DELIMITATION OF THE TERRITORIAL SEA ........................................................................................ 57 A. General Considerations concerning a Maritime Boundary ........................................................................... 57 B. General Considerations concerning the Selection of Base Points ................................................................. 57 C. The Parties’ Approaches to the Territorial Sea ............................................................................................. 65 1. Applicable law for the delimitation of the territorial seas and method of delimitation ........................ 65 2. The delimitation lines proposed by the Parties .................................................................................... 67 3 D. The Tribunal’s Delimitation of the Territorial Sea ........................................................................................ 71 1. Location of Base Points in the Territorial Sea ..................................................................................... 72 2. Establishment
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