Aman Mehta & Anjali Sharma*
On 16 April2021, India lodged an objection with the Commission on the Limits of the Continental Shelf (“CLCS”) via a ‘note verbale’ over Bangladesh’s amended submission on the continental shelf dated 22 October 2020 to the CLCS.In the submission dated 22 October 2020, Bangladesh had requested to amend the continental shelf limit as submitted on 25 February 2011 to make it in line with the judgements given by the International Tribunal for the Law of the Sea (“ITLOS”) back in 2012 in Bangladesh v. Myanmar and by the Permanent Court of Arbitration (“PCA”) in the 2014 Bay of Bengal Maritime Boundary Arbitration between Bangladesh & India.India contended that this would “prejudice the rights of India over the parts of the continental shelf”. On 7 July 2021, the arbitral Award given by the PCA in Bangladesh v. India completed seven years (“2014 arbitral award”). But the aforementioned developments with regard to the continental shelf limit shows that the 2014 arbitral award has not been successful in fulfilling the aim of any arbitration – dispute resolution.
South Asian countries have made a tremendous contribution in enriching the jurisprudence on maritime delimitation and implementing the ‘constitution’ of the oceans established United Nations Convention on the Laws of the Sea, 1982 (“UNCLOS”). The 2014 case of the Bay of Bengal Maritime Boundary Arbitration is no such exception. Since regulation of international waters is a customary concern for dispute, adjudication of such matters is undertaken by UNCLOS. The dispute resolution scheme under UNCLOS is an inseparable mandatory framework that is integral and binding in nature. Article 287 of UNCLOS deals with mandatory dispute resolution and presents four modes of the same.
India and Bangladesh in the Bay of Bengal dispute had opted for ad hoc arbitration under Annex VII. The primary focus of the dispute was regarding the delimitation of the maritime boundary between India and Bangladesh in the north-eastern part of the Bay of Bengal. The long-drawn conflict was finally settled in this 2014 Arbitral Award, which covered numerous vital issues. The Tribunal consisted of President – Judge Rüdiger Wolfrum, Indian Appointee – Pemmaraju Sreenivasa Rao, Bangladeshi Appointee – Judge Thomas A. Mensah, Professor Ivan Shearerand Judge Jean-Pierre Cot.
The International Court of Justice noted in Nicaragua v. Honduras that establishing a permanent maritime boundary is a ‘matter of a grave importance and agreement is not easily to be presume’.Therefore, it became essential to decide the maritime dispute between Bangladesh & India, which remained unresolved even after 11 rounds of failed negotiations between the two countries spanning over more than five decades. The Tribunal finally settled the matter with the expertise of hydrographer David H. Gray. It delivered the Arbitral Award that delimited an area of approximately 4,06,833 sq. km in the Bay of Bengal area. It allocated approximately 106,613 sq. km to Bangladesh and the remaining 3,00,220 sq. km to India.
This article attempts to critically analyse the 2014 arbitral award and trace the methodology involved in the delimitation and the carving out of the subsequent ‘grey area’. In doing so, we engage in a critique of the judgement, pointing out its flaws, limitations and contradictions. Unfortunately, the majority of the existing literature surrounding the Award looks at the Award objectively, and only a selected few engage with it critically; it is into this gap this article attempts to step in and contribute to the maritime delimitation discourse by attempting to look at the Award with a critical lens.
The Delimitation Methodology
The delimitation in the 2014 arbitral award can be seen from three key components: The Territorial Sea, Exclusive Economic Zone & Continental Shelf existing within 200 nautical miles and finally, the continental shelf beyond the 200 nautical mile limit. The delimitation of the territorial sea is governed by Article 15 of UNCLOS. It mandates the use of the median line in which every point is equidistant from the nearest points of the base lines. Therefore, it can be inferred that the usual method for delimiting the territorial sea of adjacent nation-states is that of the equidistant line. However, it is also important to note that the key objective of an Award delimiting a maritime boundary must be to achieve an equitable settlement. Equitable principles start with finding correct baselines for both states. Courts and Tribunals enjoy a considerable amount of discretion in deciding these base points. However, it is also argued that both parties should agree on at least the base points selected.
The Tribunal finalised the length of Bangladesh’s relevant coast as 418.6 km.However, concerning the Indian base point, the states differed between the relevance of the segment between Devi Point and Sandy Point, which was 304 km in area. The Tribunal, in choosing Sandy point over Devi point, also ‘hypothetically’ considered the extension of relevant Indian Coast beyond Sandy point’by introducing the ‘margin of appreciation’ principle stating that the tribunal enjoys “a margin of appreciation in determining the projections generated by a segment of coastline and a point at which a line drawn at an acute angle to the general direction of the coast can no longer be fairly said to represent the seaward projection of that coast”.However, even though the tribunal applied the doctrine, it did not describe any guiding criteria in choosing the relevant coast. This created serious ambiguity, and despite the Tribunal’s best efforts to maintain clarity and avoid subjectivity, this move also lacked precision, transparency &objectivity.
An Award of Contradictions
The Award was also an award of several contradictions. While it contributed to the maritime jurisprudence by making an extremely crucial observation stating that for the delimitation method achieving an equitable solution would not suffice alone as additional objectives like transparency and predictability should also supplement it, the majority decision itself suffered from lack of transparency as far as the construction of the final delimitation line was concerned. It did not specify as to why it mitigated the cut-off effect by specifically choosing the azimuth of 177º30’ and ‘why the provisional equidistance line, carefully constructed by the Tribunal between points 3 and 8, should play no further role in delimitation’. Justice Rao, too in his concurring and dissenting opinion, pointed out to this lack of reasoned justifications of the majority in choosing the azimuth of 177º30’.
The general rule in maritime delimitation is that there is always a presumption in favour of the provisional equidistance line as a principle of value and clarity. This presumption naturally entails that the need to adjust and change this provisional equidistance line must be backed up with strong, coherent and genuine reasons. It is here that another contradiction of the Award becomes clear, which Justice Rao also pointed out to – that the Tribunal’s adjusted line looked extremely similar to the 180º bisector line proposed by Bangladesh. This runs arbitrary and contradictory to the majority’s own reasoning, which rejects and discards the bisector method as a matter of law and delimitation.
This is exactly the reason why scholars have criticised the Award by questioning the need of the entire charade of drawing the provisional line in the first place and asking why was it drawn at all as there appears to be no visible practical impact of it on the outcome.For example, in a scathing critique, Malcolm Evans points out that ‘all of the calculations made by the Tribunal appear to be both largely self-serving, yet ultimately pointless’. The other contradiction that emerges out is with regard to the Tribunal’s reading of the uti possidetis doctrine and its application to the case. Even though the Tribunal explicitly denies the importance of the doctrine while determining the land boundary terminus, it then goes on to apply a reasoning which closely resembles its application.
The Perils of a ‘Grey Area’ Jurisprudence
The final delimitation line drawn by the Tribunal resulted in a so-called ‘grey area’ which lies beyond the 200 nautical miles of Bangladesh but within India’s 200 nautical miles resulting in a peculiar situation where Bangladesh would have the rights to the sea-bed and subsoil of the Continental shelf, but not to the rights on superjacent waters, which would then belong to India as part of its Exclusive Economic Zone. This ‘grey area’ in maritime delimitation is a judicial creature, another instance of which is only seen in one other case, i.e., the ruling of the ITLOS in Bangladesh v. Myanmar. However, what is more, peculiar about the grey area in this arbitral Award is that it creates not only ‘a’ grey area but a ‘double grey area’ where the grey area resulting from the ITLOS ruling in Bangladesh v. Myanmar overlaps and forms part of this new grey area as well. This results in a murky situation where Bangladesh has the rights over the continental shelf of the grey area, and both India and Myanmar having rights over the water column in the same grey area as a result of their sovereign rights over the same Exclusive Economic Zone.
This ‘double grey area’ is surely an extraordinary situation and one which has the potential to become a source of tension and conflict among the parties involved.The Tribunal, however, mindful of the potential conflicts that may occur as a result of the double grey area, did advise the parties that they must cooperate and act in tandem with one another to ‘ensure that each is able to exercise its rights and perform its duties within this area’However, this could be considered a lethargic approach of judicial decision-making as in order to solve a conflict; one cannot create more potential conflicts and fall back on the already conflicted parties to cooperate. It is pertinent to note Justice Rao’s objection in his dissent here as well as he similarly objects that ‘international courts and tribunals should avoid delimiting boundaries in a way that leaves room for potential conflicts between the parties.’
The double grey area in allocating the continent shelf rights to one country and the suprajacent water rights to two other neighbouring countries creates a situation similar to saying that one cannot touch the branches and trunk of the tree but can pluck the leaves of it. Even though the Tribunal defends the creation of the grey area by locating the possibility of such a grey area in arts. 56, 58, 78 and 79 of UNCLOS and thereby providing a legal justification to it, it is also true that such a grey area ‘is easy to conceptualise but very hard to put in practice’.Thus, the Tribunal, in this case, much like ITLOS in Bangladesh v. Myanmar, in creating a grey area as an inevitable by-product of a much-needed and necessary equitable solution, might have been too ‘overly sanguine and optimistic’.
The fear of the PCA being overly sanguine and optimistic has turned out to be true as the creation of the double grey area has indeed become a source of great tension and conflict between the three parties involved as along with India, even Myanmar has lodged an objection to Bangladesh’s amended submission of the continental shelf pointing out that it is contrary to ITLOS’s 2012 verdict. Even though the Bay of Bengal Maritime Boundary Arbitration is one of the few substantive cases on the subject matter of maritime delimitation traces of which can also be seen in the 2016 maritime dispute between China and the Philippinesthus, acting as an important precedent for future cases, the Award lacks a strong reasoning for various decisions taken, starting from the base point to the creation of the grey area.
The result of the arbitration might seem equitable prima facie; however, the Tribunal, which was set out to settle a dispute via the creation of the Grey Area, has, in turn, led to increased contention and confusion for the parties involved. It has posed certain challenges and difficulties for one state to act with the necessary caution and due regard while exercising their shared sovereign rights with two other nation-states in a gloomy ‘grey’ zone.
About the Authors
Aman Mehta is a fourth-year law student pursuing his BA.LLB (Hons.) in Jindal Global Law School. He is interested in Comparative Constitutional law, International Criminal Law, feminist constitutionalism, and maritime law. He is a member of the Jindal Society of International Law and an editor of the society’s blog – International Agora.
Anjali Sharma is a fourth-year law student pursuing her BA.LLB (Hons.) in Jindal Global Law School. She is interested in post-colonial feminism, jurisprudence, transnational studies, and maritime law.
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Delimitation of the Maritime Boundary in the Bay of Bengal (Bangladesh/Myanmar) (Judgement)  ITLOS Rep 12
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Territorial and Maritime Dispute (Nicaragua v. Honduras) (Judgement) (ICJ GL No 120)
 ibid at pp. 659, 735.
Award (n 5)88 
 ibid 154 
Malcolm N. Shaw, International Law (8th edn, Cambridge University Press 2017) 440
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Kalduński (n 15) 812 (emphasis supplied)
Award (n 5) 
Kalduński (n 15) 814
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Award (n 5) 156 
Bangladesh/Myanmar (n 4)
Award (n 5) 156 
Arrese (n 29)
Award (n 5) 157 
Rao Dissent (n 23) 19 
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Goswami (n 36)
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The Republic of Philippines v. The People’s Republic of China, PCA Case No. 2013-19, Award on Jurisdiction and Admissibility, 29 October 2015.
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