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1 Permanent Court of Arbitration 1 PERMANENT COURT OF ARBITRATION ARBITRATION UNDER ANNEX VII OF THE 1982 UNITED NATIONS CONVENTION ON THE LAW OF THE SEA - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x In the Matter of Bay of Bengal Maritime Boundary Arbitration Between: THE PEOPLE'S REPUBLIC OF BANGLADESH PCA Case No. 2010-16 and PCA Reference BD-IN THE REPUBLIC OF INDIA - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x Volume 1 HEARING ON THE MERITS Monday, December 9, 2013 The Permanent Court of Arbitration PCA Administrative Council Chamber/ "Japanese Room" Carnegieplein 2, 2517 KJ The Hague The Netherlands The hearing in the above-entitled matter convened at 9:30 a.m. before: JUDGE RÜDIGER WOLFRUM, Presiding Arbitrator JUDGE JEAN-PIERRE COT, Arbitrator JUDGE THOMAS A. MENSAH, Arbitrator DR. PEMMARAJU SREENIVASA RAO, Arbitrator PROFESSOR IVAN SHEARER, Arbitrator 2 Permanent Court of Arbitration: MR. BROOKS W. DALY Registrar and PCA Deputy Secretary-General DR. ALOYSIUS P. LLAMZON PCA Legal Counsel MR. GARTH L. SCHOFIELD PCA Legal Counsel MS. YANYING LI PCA Assistant Legal Counsel MR. KEVIN LEE PCA Assistant Legal Counsel MR. BENJAMIN CRADDOCK PCA Case Manager MS. SUMAYA BOUSSAA PCA Assistant Case Manager Expert Hydrographer to the Tribunal: MR. DAVID H. GRAY Court Reporters: MR. DAVID A. KASDAN, RDR-CRR MS. DAWN K. LARSON, RDR-CRR Registered Diplomate Reporter Certified Realtime Reporter Worldwide Reporting, LLP 529 14th Street, S.E. Washington, D.C. 20003 (202) 544-1903 [email protected] 3 APPEARANCES: On behalf of the People's Republic of Bangladesh: H.E. DR. DIPU MONI, MP Agent of Bangladesh and Former Foreign Minister, Government of the People's Republic of Bangladesh REAR ADMIRAL (RETD) MOHAMMAD KHURSHED ALAM MPHIL, ndc, psc, Deputy Agent of Bangladesh & Secretary (Maritime Affairs Unit), Ministry of Foreign Affairs, Dhaka Counsel and Advocates: H.E. The Honourable A.H. Mahmood Ali, MP, Foreign Minister, Government of the People's Republic of Bangladesh MR. MOHAMMAD SHAHIDUL HAQUE Secretary, Legislative & Parliamentary Affairs Division, Ministry of Law, Justice and Parliamentary Affairs, Dhaka PROFESSOR PAYAM AKHAVAN McGill University PROFESSOR ALAN BOYLE University of Edinburgh PROFESSOR JAMES CRAWFORD South Carolina, FBA Cambridge University MR. LAWRENCE H. MARTIN Foley Hoag LLP MR. PAUL S. REICHLER Foley Hoag LLP PROFESSOR PHILIPPE SANDS QC University College London 4 APPEARANCES: (Continued) On behalf of the People's Republic of Bangladesh: Advisors: MR. SHIEKH MOHAMMED BELAL Director General, Ministry of Foreign Affairs and Bangladesh Ambassador-designate to the Netherlands MS. ISHRAT JAHAN Counsellor & CDA, ad. i, Embassy of Bangladesh, The Hague MR. MOHAMMAD SHAHEEN IQBAL Bangladesh Navy M.R.I. ABEDIN System Analyst, Ministry of Foreign Affairs MR. MOHAMMAD HAZRAT ALI KHAN Director, Ministry of Foreign Affairs MD. ABDULLAH AL MAMUN Bangladesh Army MD. ABU RAYHAN Bangladesh Air Force MD. ABDUL MOKTADER Private Secretary to the Foreign Minister, Ministry of Foreign Affairs MR. SYED SHAH SAAD ANDALIB Assistant Secretary, Ministry of Foreign Affairs MR. HARIPADA CHANDRA NAG Assistant Secretary, Ministry of Foreign Affairs DR. ROBIN CLEVERLY Law of the Sea Consultant, The United Kingdom Hydrographic Office MR. SCOTT EDMONDS Cartographic Consultant, International Mapping 5 APPEARANCES: (Continued) On behalf of the People's Republic of Bangladesh: MR. THOMAS FROGH Senior Cartographer, International Mapping DR. LINDSAY PARSON Director, Maritime Zone Solutions Ltd. MR. ROBERT W. SMITH Geographic Consultant Junior Counsel: MRS. CLARA BRILLEMBOURG MR. VIVEK KRISHNAMURTHY MR. YURI PARKHOMENKO Foley Hoag LLP MR. REMI REICHHOLD Matrix Chambers Legal Assistants: MR. DARA IN University College London MS. NANCY LOPEZ MR. RODRIGO TRANAMIL Foley Hoag LLP 6 APPEARANCES: (Continued) On behalf of the Republic of India: G. E. VAHANAVTI Attorney General of India MR. DEVADATT KAMATH Assistant Counsel to the Attorney General DR. NEERU CHADHA Agent, Joint Secretary & the Legal Adviser, Ministry of External Affairs, Government of India MR. HARSH VARDHAN SHRINGLA Co-Agent, Joint Secretary (BSM), Ministry of External Affairs, Government of India MR. PUNEET AGRAWAL Deputy Agent, Director (BSM), Ministry of External Affairs H.E. MR. R.N. PRASAD Ambassador of India to the Netherlands MR. R.K. SINGH Deputy Chief of Mission Counsel: PROFESSOR ALAIN PELLET University of Paris Ouest SIR MICHAEL WOOD, K.C.M.G. MR. R.K.P. SHANKARDASS Senior Advocate PROFESSOR W. MICHAEL REISMAN Yale University MR. BENJAMIN SAMSON Junior Counsel, University of Paris Oueste 7 APPEARANCES: (Continued) On behalf of the Republic of India: MR. ERAN STHOEGER Junior Counsel, New York University Scientific and Technical Experts: VICE ADMIRAL S. K. JHA, Chief Hydrographer to the Government of India REAR ADMIRAL K. M. NAIR Joint Chief Hydrographer, National Hydrographic Office (NHO) PROFESSOR MARTIN PRATT Expert Cartographer COMMODORE ADHIR ARORA Principal Director of Hydrography, NHO CAPT. PEUSH PAWSEY Director of Hydrography (Ops), NHO DR. DHANANJAY PANDEY Scientist, National Centre for Antarctic and Ocean Research (NCAOR) MR. R.C. SAMOTA Cartographic Assistant, NHO Research Associates: MR. K. S. MOHAMMED HUSSAIN Legal Officer, Ministry of External Affairs MS. HELOISE PELLET Additional Attendee: MS. NAFISA VAHANAVTI 8 C O N T E N T S PAGE Introductory Remarks by the Arbitral Tribunal 9 Introductory Remarks by People's Republic of Bangladesh: By H.E. Honourable A.H. Mahmood Ali 12 Introductory Remarks by Republic of India: By Attorney General Goolam E. Vahanvati 18 Argument of People's Republic of Bangladesh: By H.E. Honourable Dipu Moni 25 By Mr. Martin 30 By Professor Sands 51 By Professor Akhavan 93 By Mr. Reichler 120 1 P R O C E E D I N G S 2 PRESIDENT WOLFRUM: Good morning to everybody, Your 3 Excellencies. The Arbitral Tribunal in the case on Bangladesh versus India is now 4 starting its hearing. 5 I would like to welcome you very much, and particularly the Minister of 6 Foreign Affairs from Bangladesh as well as the Attorney General of India who we had not 7 the pleasure here to meet. The others we had met frequently during our site visit. 8 I hope, and I'm absolutely sure, that we are going to have a very fruitful and 9 very productive meeting, and I hope, also, that the meeting will continue, like the site visit 10 was, in a very good and amicable atmosphere. 11 I do not intend to introduce the Members of the Tribunal in great length. 12 We have met over the three days in Bangladesh and India quite well, but you see from my 13 left side Judge Jean-Pierre Cot, Judge Mensah, Dr. Sreenivasa Rao, and Judge Ivan 14 Shearer. PCA is well known to you; therefore, there is no need for introduction. 15 Now, I would like to take this opportunity to really thank the representatives 16 of Bangladesh and India very much again for the organization--preparation and 17 organization of the site visit, particularly also for the hospitality extended to us. It was a 18 great experience, at least for us, and I hope for you too. And I believe we have learned 19 quite a great deal, and it was worth very much the effort. 20 Let me say a very few words about the Hearing and the procedure. I would 21 like to draw your attention to the schedule as provided in Procedural Order Number 2. 22 We have rather fixed time limits, and I would very much appreciate if you could really 9 1 stick to the time limits. I would hate to interrupt anybody. 2 There is a small change, which I would like to mention. This afternoon, 3 Bangladesh has asked--Paul Reichler, actually--to have only 60 minutes for the first 4 speech and thereafter the break, and thereafter Paul Reichler would continue. I don't 5 know whether you're going to continue for a hundred minutes--you have the right to do 6 so--but if you wish to do so, please bear with me that we would insert a 10 minutes' break 7 so as not to sit in this room for 100 minutes straight. 8 Is that agreeable? 9 MR. REICHLER: Thank you very much, Mr. President. I promise that I 10 will not speak for 100 minutes. It will be closer to 80. But if you would prefer me to 11 break for 10 minutes anywhere along the way, I'm happy to accommodate. 12 PRESIDENT WOLFRUM: We will see how it works out, and we can play 13 it by ear. We can be flexible on that. If the total time allotted to you is not exhausted, 14 that's even better. 15 Okay. Let me mention a second aspect: The Tribunal has formulated 16 several questions, and we would very much, indeed looking forward to hear your 17 responses, and I will not exclude that there are further questions to come from the 18 Tribunal, but I also would like to inform you that each individual member of the Arbitral 19 Tribunal may in due course ask questions. We are a small group; therefore, this is more 20 convenient for asking questions than the larger body such as ITLOS or the ICJ, although 21 the ICJ in a recent session, there were many questions which have been asked. 22 These are my remarks for the beginning and for the introduction, and I 10 1 would again wish us a very fruitful and cooperative undertaking, and now I give the floor 2 to the introductory remarks of the two Parties. According to the schedule, it is for 3 Bangladesh to start. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 11 1 PERMANENT COURT OF ARBITRATION 2 3 Bay of Bengal Maritime Boundary 4 Arbitration between Bangladesh and India 5 6 H.E. The Honourable A.H. Mahmood Ali, MP, Foreign Minister 7 8 9 December 2013 9 10 1.
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