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241 Permanent Court of Arbitration Arbitration Under Annex Vii of the 1982 United Nations Convention on the Law of The 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 3 HEARING ON THE MERITS Thursday, December 12, 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 2:30 p.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 241 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] 242 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 243 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 244 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 245 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 246 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 247 C O N T E N T S PAGE Argument of Republic of India: By Attorney General Chadha 250 By Mr. Shankardass 259 By Professor Pellet 280 By Professor Reisman 305 Questions from the Tribunal 334 248 1 P R O C E E D I N G S 2 PRESIDENT WOLFRUM: Excellencies, ladies and gentlemen, we are now 3 starting the first round of the presentation of India. According to the list I've received, but 4 the Agent will certainly correct me, Dr. Chadha will speak for 20 minutes, to be followed 5 by Mr. Shankardass 30 or 40 minutes, Dr. Pellet 60 minutes, and Professor Reisman 55 6 minutes. Is that correct? Then we shall proceed. 7 Dr. Chadha, you have the floor. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 249 1 12 December 13 2 3 4 PERMANENT COURT OF ARBITRATION 5 6 ARBITRATION UNDER ANNEX VII OF THE UNITED NATIONS 7 CONVENTION ON THE LAW OF THE SEA 8 9 BAY OF BENGAL MARITIME BOUNDARY ARBITRATION BETWEEN THE 10 PEOPLE’S REPUBLIC OF BANGLADESH AND THE REPUBLIC OF INDIA 11 12 ARBITRATOR’S FOLDER 13 REPUBLIC OF INDIA 14 15 16 GENERAL PRESENTATION OF THE CASE 17 DOCTOR NEERU CHADHA, AGENT OF INDIA 18 19 Thank you, Mr. President, and good afternoon everyone. 20 Mr. President, Members of the Tribunal, it is a great honour for me to appear before 21 you today on behalf of my country, the Republic of India. 22 23 2. At the outset, allow me Mr. President to thank you and the members of the Tribunal 24 for agreeing to be a part of this tribunal and for the steering of these proceedings. I also 25 thank the staff and Registry of the Permanent Court of Arbitration for their ready and 26 prompt assistance. 27 28 3. Let me also take this opportunity to thank the distinguished Agent of Bangladesh, 29 Her Excellency Dr. Dipu Moni former Foreign Minister of Bangladesh, for her cooperation 30 in these proceedings. 250 1 2 Mr. President. 3 4 4. The Attorney General of India, in his introductory remarks on Monday, has 5 highlighted the close bonds and friendly neighbourly relations between India and 6 Bangladesh and our commitment to the principles of peaceful coexistence and peaceful 7 settlement of disputes. He has also emphasised that the settlement of the present dispute 8 can only strengthen these links. There can be no doubt about it; however, as Mr. Vahanvati 9 also made very clear, the fact is that the negotiations between our two friendly countries on 10 the maritime delimitation failed. And they failed because Bangladesh consistently refused 11 to accept the legal – and I stress – “the legal” principles applicable to the delimitation of 12 maritime areas. 13 14 5. We are confident, Mr. President, distinguished members of the Tribunal, that, as a 15 court of law, your Tribunal will render an award strictly based on the legal principles it is 16 bound to apply in accordance with Article 293, paragraph 1 of the UNCLOS, and not 17 pronounce a kind of Solomonic judgment which, Bangladesh urges you to give, when it 18 invokes your “margin of appreciation” and insistently invites you to use your 19 “discretionary power”. Bangladesh talks of its flexibility – it’s very many alternatives for a 20 so-called “equitable solution” which put into light its preference for equity over legal 21 principles – if at all anything! India definitely has not accepted and does not accept an ex 22 aequo et bono decision. The law as it stands is conceived so as to realize an equitable 23 solution and we ask you, Members of the Tribunal, not to depart from this perspective and 24 not to endanger the stability and certainty now obtained in the law of maritime 25 delimitation. 26 27 Mr. President I will highlight India’s principal contentions briefly. 28 29 6. India’s first basic submission is that the applicable law is to be found in the 30 provisions of UNCLOS, in particular those that govern maritime delimitation of different 31 zones: that is Articles 15, 74 and 83. 251 1 2 7. The two main issues on which there is disagreement between the Parties are the 3 precise location of the starting point of the maritime boundary and the methodology to be 4 chosen for delimitation. 5 6 8. The starting point for the maritime delimitation is the land boundary terminus, 7 which – as both Parties agree – was defined by the Radcliffe Award. According to the 8 Award, the land boundary terminus is the point where the mid-stream of the main channel 9 of the Hariabhanga and Raimangal Rivers meets the Bay of Bengal. 10 11 9. The precise location of the land boundary terminus, is the point where the 12 north-south or vertical axis determined by the Radcliffe Award intersects the closing line 13 of the Bay of Bengal.
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