Resolution of the Maritime Boundaries Dispute Between Bangladesh and its Neighbouring Countries in the Context of UNCLOS: A Case Study Supervisor Professor Tullio Scovazzi Co-Supervisor Dr. Francois N. Bailet Mohammad Mohiuddin United Nations – The Nippon Foundation Fellow 2010-2011 University of Milano-Bicocca Division for Ocean Affairs and the Law of the Sea Republic of Italy Office of Legal Affairs United Nations I Abstract Bangladesh is a developing country, which borders the sea Bay of Bengal, which is an integral part of the Indian Ocean. Bangladesh is a party to the United Nations Convention on the Law of the Sea, 1982. The configuration of its coast is concave whereas that of the adjoining neighbours (Myanmar and India) is convex. In view of the fact that certain sea zones such as the Exclusive Economic Zone and the Continental Shelf extend to 200 nautical miles from the baselines, Bangladeshi zones overlap in part with the zones of the neighbouring States. The research will consider the ''Resolution of the Maritime Boundaries Dispute Between Bangladesh and its Neighbouring Countries in the Context of UNCLOS: A Case Study''. It will also critically consider the problems of deciding on the sovereignty over the South Talpatty, a new born island within the maritime zone of Bangladesh. The following matters are to be discussed within the research: ▪ the system for the peaceful settlement of disputes established by the UNCLOS; ▪ the applicable provisions of international law taking also in consideration the relevant jurisprudence of the International Court of Justice and International Tribunals (equidistance, equitable criteria, relevant circumstances in practical matters); ▪ update and improvement, if appropriate, of the Bangladeshi legislation on maritime zones ; ▪ consider, as a case study, the pending dispute of maritime boundaries delimitation between Bangladesh and its neighbouring countries (India and Myanmar); and ▪ consider the procedural aspects of the pending disputes between Bangladesh and its neighbouring countries and how future decision by the International Tribunal for the Law of the Sea is to be implemented. In a developing State like Bangladesh the importance of implementation of the Law of the Sea and the Maritime Zones Law. is immense. The research will consider the merit of peaceful settlement of maritime boundaries disputes and the relevant decisions which can be implemented at the domestic level through legislative and regulatory instruments. Perhaps the research also will influence future policy making and will contribute effectively to the development of Bangladesh’s maritime sector. The Territorial Waters and Maritime Zones Act, 1974 (Act No. XXVI of 1974). II Disclaimer The views expressed herein are those of the author and do not necessarily reflect the views of the United Nations, the Nippon Foundation of Japan, the University of Milan-Bicocca, or the Governments of Italy and the People's Republic of Bangladesh. © 2011 Mohammad Mohiuddin. All rights reserved. III Dedication To my father late Mir Wahab Ali, mother Mrs. Noor Jahan Begum, elder brothers, Dr. Mir Jamal Uddin, Advocate M. M. Joynal Abedin, and Mir Md. Ruhul Amin, son Mahir Faisal Monan, daughter Medha Mahjabin and above all to my beloved wife Mrs. Mustari Sultana (Mita): without her support my fellowship wouldn’t have been come into view. IV Acknowledgements I wish to express my thanks and gratitude to the Division for Ocean Affairs and the Law of the Sea (DOALOS), Office of Legal Affairs, United Nations and The Nippon Foundation of Japan for giving me the opportunity to receive the valuable experience and knowledge in the field of the Law of the Sea. This study would not have been feasible without the support of the United Nations and the University of Milan-Bicocca, Italy, funding from The Nippon Foundation of Japan. I would like to express my heartfelt thanks and gratitude to my Supervisor Dr. Tullio Scovazzi, Professor, Department of National and European Institutions, University of Milan-Bicocca, Italy, for his constant support and advice to prepare the research paper on "Resolution of the Maritime Boundaries Dispute Between Bangladesh and its Neighbouring Countries in the Context of UNCLOS: A Case Study ". I sincerely express my deep thanks and appreciation to my Co- Supervisor Dr. Francois N. Bailet, Programme Advisor, United Nations-The Nippon Foundation of Japan Fellowship Programme, for his assistance and kind support, and to other staff of the United Nations for facilitating monthly financial support. I would like to acknowledge the tremendous influence of my brothers, Dr. Mir. Jamal Uddin, Professor (Cardiology), National Institute of Cardiovascular Diseases and Hospital, Dhaka, Bangladesh, and Mr. M. M. Joynal Abedin, Advocate, Bangladesh Supreme Court, without whom the journey of my legal education would have been a mirage. I am highly obliged to my employer, the Legislative and Parliamentary Affairs Division, Ministry of Law, Justice and Parliamentary Affairs, Government of the V People’s Republic of Bangladesh for giving me the opportunity to attend such a prestigious fellowship program. I would also like to thank to my family, friends and well wishers for their patience, understanding and encouragement. I wish to extend my heartfelt thanks to the staff of the Department of National and European Institutions and staff of central library of University of Milan-Bicocca, Italy for their constant support. I also like to extend my thanks to the Director and staff of the library of IMO-International Maritime Law Institute, Malta for their kind support. During my placement in Italy and New York, I had so many friends who made my life more pleasant and comfortable. I like to use this opportunity to thank all of them for their kind-heartedness. In the end, I acknowledge everybody whose name cannot be mentioned one by one in this acknowledgment. Mohammad Mohiuddin United Nations – The Nippon Foundation Fellow 2010-2011 Table of Contents Contents Page Abstract II VI Disclaimer III Dedication IV Acknowledgements V-VI List of Figures and Maps XI-XII Table of Abbreviations and Glossary of Terms XIII-XV Table of Cases XVI-XVIII Introduction 1-6 Sl. No. Subject matter Page Part I Chapter I Bangladesh and the Sea Bay of Bengal 1.1. Bangladesh and its Historical Background 7-8 1.2. Mineral Resources in Bangladesh 8-11 1.3. Geography of the Bay of Bengal 11-13 1.4. The Sea Bay of Bengal, its Position in the Law of the Sea 13-18 1.5. Conflict Arising out of Maritime related Matters 18-21 1.5.1. Sea Boundary 18 1.5.2. Sources of Fishery 18-20 1.5.3. Routes of Trade and Navigation 20-21 1.6. Resource and Prospects in the Bay of Bengal 21-24 Chapter II Practices of Bangladesh and its Neighbouring Countries on Sea Matters 2.1. Existing Laws Relating to Maritime Zones in 25 Bangladesh 2.2. Practices of Bangladesh on Sea Matters 25-47 2.2.1. Baselines 26-34 2.2.2. Territorial Sea 34-38 2.2.3. Contiguous Zone 38-40 2.2.4. Continental Shelf 40-44 2.2.5. Exclusive Economic Zone 44-47 VII 2.3. Concluding Remarks of Part I 48 Part II Chapter I Settlement of Dispute Under UNCLOS 1.1. General Obligation Under Section 1 49-51 1.2. The Principle of Compulsory Settlement 51-55 1.3. Exemptions to the Principle of Compulsory Settlement 55-59 1.4. Conciliation 59-64 1.5. Arbitration 64-68 1.6. Special Arbitration 68-70 1.7. International Tribunal for the Law of the Sea 70-77 Chapter II Maritime Boundaries Problems and Major Maritime Issues Facing Bangladesh with its Neighbouring Countries 2.1. Recurrence of the Maritime Boundary Dispute 78-82 2.2. Relevant Circumstances of the Maritime Boundary 82-88 Dispute 2.3. Dispute Between Bangladesh and Myanmar 88-93 2.4. Dispute Between Bangladesh and India 93-101 a) Maritime Boundary Dispute 94-97 b) Entitlement of Sovereignty over South Talpatty 97-101 Island Chapter III Resolution of the Maritime Boundaries Dispute Between Bangladesh and its Neighbouring Countries 3.1. Negotiations Between Bangladesh and India 103-105 3.2. Negotiations Between Bangladesh and Myanmar 105-108 3.3. Legal Principles Involved in Sea Boundary 108-127 Delimitations VIII 3.4. How to Effect an Equitable Solution 127-139 a) Regarding the Baselines b) Regarding the Territorial Sea c) Regarding the Exclusive Economic Zone and the Continental Shelf d) Updating Maritime Zones Laws of Bangladesh e) Joint Survey to Settle the Dispute of South Talpatty Island 3.5. Critical Analysis of the Various Means of Settlement of 140-151 Disputes a) Settlement in the Course of Negotiation b) Multiparty Survey c) Joint Development Agreement d) Settlement Through the Principle of Equity 3.6. Concluding Remarks of Part II 151 Conclusion 152-161 Bibliography 162-175 Annexes 176-213 Annex I Law of the Sea Conventions, 1958 and 1982: Provisions 176-178 Relating to Delimitation Annex II Territorial Waters and Maritime Zones Act, 1974 179-183 (Act No. XXVI of 1974) ( Legislation of Bangladesh) IX Annex III Territorial Waters, Continental Shelf, Exclusive Economic Zone and other Maritime Zones Act, 1976(Legislation of India) 184-197 Annex IV Territorial Sea and Maritime Zones Law,1977 198-205 (Legislation of Myanmar) Annex V Notification No. LT-1/3/74 of the Ministry of Foreign 206-207 Affairs, Dacca, of 13 April 1974 Annex VI Agreement between the Socialist Republic of the Union of Burma and the Republic of India on the Delimitation 208-210 of the Maritime Boundary in the Andaman Sea, in the Coco Channel and in the Bay of Bengal, 23 December 1986 Annex VII Agreement between Sri Lanka and India on the 211-213 Maritime Boundary between the two Countries in the Gulf of Myanmar and the Bay of Bengal and Related Matters 23 March 1976.