By: NOU Chantha
I.
Fact and Background
Bangladesh and Myanmar are neighbor countries
in Asea. Bangladesh is situated to the north and northeast Myanmar is situated
to the east of the Bay of Bengal. The maritime area to be delimited in the
present case lies in the northeastern part of the Bay of Bengal situated in the
northeastern Indian Ocean, which is bordered by Sri Lanka, India, Bangladesh
and Myanmar. Prior to the proceedings both Countries did the negotiations on
the delimitation of the maritime boundary held from 1974 to 2010 and signed two
agreed minutes namely “the 1974 agreed minutes” and “the 2008 agreed minutes”.
Because, the maritime boundary disputes were
not resolved, by the letter dated 13 December 2009, Bangladesh invited the
Tribunal “to exercise Jurisdiction over the maritime boundary dispute between
itself and Myanmar”. And the two countries accepted the ITLOS jurisdiction on
December 14, 2009.
Figure 1: Map Source: ITLOS’s Case No.16, 2012
II.
Questions before the Tribunal
1. Delimitation of territorial Sea
- Whether
the 1974 and 2008 Agreed Minutes legally binding?
-
Whether
tacit or defacto boundary agreement be exist?
-
Whether
the situation of estoppel exist?
-
Drawing
the delimitation line of territorial sea.
2. Delimitation of Exclusive Economic Zone and Continental Shelf within 200nm
- Relevant
coast
-
Method
of delimitation
- Drawing Delimitation line
3. Delimitation of Continental Shelf beyond 200nm
-
Jurisdiction
to delimit the continental shelf beyond 200nm
-
Entitlement
-
Drawing
Delimitation line
-
Gray
area
III. Argument of Parties and Tribunal Decision
1. Delimitation of Territorial Sea
(a) The 1974 and 2008 Agreed Minutes
(i)
Argument presented by parties
According to Bangladesh, the Parties reached
agreement in November 1974, at their second round of negotiations. It maintains
that the two delegations confirmed the terms of their agreement and gave it
clear expression by jointly plotting the agreed line on Special Chart No. 114,
which was signed by the heads of both delegations. Bangladesh recalls that, during the
negotiations in 1974, it presented a draft treaty to Myanmar and that Myanmar
did not sign this document, not because it disagreed with the line, but because
it preferred to incorporate the Parties’ agreement into a comprehensive
maritime delimitation treaty including the exclusive economic zone and the
continental shelf.
Myanmar, argues that the 1974 Agreed Minutes
were nothing more than a conditional agreement reached at the level of the
negotiators. The 1974 Agreed Minutes were not approved in conformity with the
constitutional provisions in force in either of the two countries. Myanmar also
argues that members of its delegation to the negotiations in November 1974
lacked authority “to commit their Government to a legally-binding Treaty”.
(ii)
Reasoning and Decision of the Tribunal
The Tribunal notes that, in light of the
object and purpose of article 15 of the Convention, the term “agreement” refers
to a legally binding agreement. In the view of the Tribunal, what is important
is not the form or designation of an instrument but its legal nature and
content. In the view of the Tribunal, the delimitation of maritime area is a
sensitive issue. And on the question of the authority to conclude a legally binding
agreement, the Tribunal observes that, when the 1974, Agreed Minutes were
signed, the lead of the Burmese delegation was not an official who, in
accordance with article 7, paragraph 2, of the Viena Convention, could engage
his country without having to produce full power and fact that the Parties did
not submit the 1974 Agreed Minutes to the procedure required by their
respective constitutions for binding international agreements is an additional
indication that the Agreed Minutes were not intended to be legally binding
Therefore, the Tribunal concludes that the 1974
Agreed Minutes is not a legally binding agreement. The Tribunal reaches the
same conclusion regarding the 2008 Agreed Minutes since these Minutes do not
constitute an independent commitment but simply reaffirm what was recorded in
the 1974 Agreed Minutes.
(b) Tacit or de facto
agreement
(i)
Argument presented by parties
Bangladesh contends that the fact that the
Parties have conducted themselves in accordance with the agreed delimitation
for over three decades demonstrates the existence of a tacit or de facto agreement
as to the boundary line in the territorial sea. In support of its position,
Bangladesh argues that each Party “exercised peaceful and unchallenged
administration and control over its agreed territorial sea” and that, in
reliance on the existing agreement, Bangladesh permitted Myanmar’s vessels to “navigate freely” through its waters in the
vicinity of St. Martin’s Island to reach the Naaf River. Bangladesh also raises
the affidavit from Fishermen and its Navy and Coast Guard to the west of the
agreed line.
Myanmar contends that the conduct of the
Parties, including the signing of the 1974 Agreed Minutes by the heads of their
delegations, has not established a tacit or de facto agreement between
them with respect to the delimitation of the territorial sea and that it never
acquiesced in any delimitation in the territorial sea. In this connection,
Myanmar notes that, during the negotiations between the Parties, Commodore
Hlaing, who was the head of the Burmese delegation, reminded his counterpart
that the passage of Myanmar vessels in the waters surrounding St. Martin’s
Island “was a routine followed for many years by Burmese naval vessels to use
the channel which it had been exercising since 1948”.
(ii)
Reasoning and Decision of the Tribunal
The Tribunal considers that the affidavits
from fishermen submitted by Bangladesh do not constitute evidence as to the
existence of an agreed boundary in the territorial sea. The affidavits merely
represent the opinions of private individuals regarding certain events. For the
affidavits from the naval officer, the Tribunal observes that they are from
officials who may have an interest in the outcome of the proceedings. In this
regard, the Tribunal shares the view of the ICJ in Territorial and Maritime
Dispute between Nicaragua and Honduras in the Caribbean Sea that “evidence of a
tacit legal agreement must be compelling”. The Tribunal concludes that the
evidence presented by Bangladesh falls short of proving existence of a tacit or
de facto boundary agreement concerning the territorial sea.
(c) Estoppel
(i)
Argument presented by parties
Bangladesh asserts that fundamental
considerations of justice require that Myanmar is estopped from claiming that
the 1974 agreement is anything other than valid and binding. In this regard, it
recalls the Case concerning the Temple of Preah Vihear (Cambodia V. Thailand),
in which it is stated that: “Thailand is now precluded by her conduct from
asserting that she did not accept the [French Map]. She has, for fifty years,
enjoyed such benefits as the Treaty of 1904 conferred on her, if only the
benefit of a stable frontier. France and through her Cambodia, relied on
Thailand’s acceptance of the map…. It is not now open to Thailand, while
continuing to claim and enjoy the benefits of the settlement, to deny that she
was ever a consenting party to it”. Bangladesh argues that “[t]he ICJ’s
reasoning and conclusion apply equally in the present case. For over thirty
years, Myanmar enjoyed the benefits of the 1974 Agreement, including not only
the benefit of a stable maritime boundary but also the right of free passage
through Bangladesh’s territorial waters”.
According to Myanmar, “first, Bangladesh has
not supported it contention-that it allowed for the unimpeded passage of
Myanmar’s vessels-with any evidence. Second, it produced no evidence to show
that it adhered to the 1974 minutes with respect to fisheries. Third, it had
not shown how any of these alleged facts were to its detriment. It is unclear
how any conduct or statements on behalf of Myanmar were relied upon by
Bangladesh to its detriment”.
(ii)
Reasoning and Decision of the Tribunal
The Tribunal observes that, in international
law, a situation of estoppel exists when a State, by its conduct, has created
the appearance of a particular situation and another State, relying on such
conduct in good faith, has acted or abstained from an action to its detriment.
The effect of the notion of estoppel is that a State is precluded, by its
conduct, from asserting that it did not agree to, or recognize, a certain
situation.
In the view of the Tribunal, the evidence
submitted by Bangladesh to demonstrate that the Parties have administered their
waters in accordance with the limits set forth in the 1974 Agreed Minutes is
not conclusive. There is no indication that Myanmar’s conduct caused Bangladesh
to change its position to its detriment or suffer some prejudice in reliance on
such conduct. For these reasons, the Tribunal finds that Bangladesh’s claim of
estoppel cannot be upheld.
(d) Delimitation of the
territorial sea and Delimitation Line
(i)
Argument presented by parties
Bangladesh states that St. Martin’s Island
“is located 6.5 [nm] southwest of the land boundary terminus and an equivalent
distance from the Bangladesh coast”. It further points out that the island has
“a surface area of some 8 square kilometres and sustains a permanent population
of about 7,000 people” and that it serves as “an important base of operations
for the Bangladesh Navy and Coast Guard”. Bangladesh maintains that fishing “is
a significant economic activity on the island”, which also “receives more than
360,000 tourists every year”. Bangladesh notes that “[t]he island is
extensively cultivated and produces enough food to meet a significant
proportion of the needs of its residents”.
Myanmar contends that St. Martin’s Island is
a feature standing alone in the geography of Bangladesh and is situated
opposite the mainland of Myanmar, not Bangladesh. In Myanmar’s view, granting
St. Martin’s Island full effect throughout the territorial sea delimitation
would lead to a considerable distortion with respect to the general
configuration of the coastline, created by a relatively small feature.
Figure 2: Bangladesh and Myanmar's line
(Source: ITLOS)
(ii)
Reasoning and Decision of the Tribunal
In the view of the
Tribunal, St. Martin’s Island is a significant maritime feature by virtue of
its size and population and the extent of economic and other activities. The Tribunal concludes that, in the
circumstances of this case, there are no compelling reasons that justify
treating St. Martin’s Island as a special circumstance for the purposes of
article 15 of the Convention or that prevent the Tribunal from giving the
island full effect in drawing the delimitation line of the territorial sea
between the Parties. The Parties are in agreement as to the starting point of
the delimitation line. This point, which corresponds to the land boundary
terminus as agreed between Burma and Pakistan in 1966, is marked on the
sketch-maps produced by the Parties as point A and its co-ordinates are 20° 42’
15.8’’ N, 92°22’ 07.2’’ E. The coasts of both Parties as shown on Admiralty
Chart 817, the Tribunal accepts point 2A as plotted by Bangladesh.
The Tribunal observes that, in giving St.
Martin’s Island full effect in the delimitation of the territorial sea, the
delimitation line will reach a point where the island’s territorial sea no
longer overlaps with the territorial sea of Myanmar. At this point, the
territorial sea around St. Martin’s Island begins to meet the exclusive
economic zone and the continental shelf of Myanmar. This will occur in the area
defined by the 12 nm envelope of arcs of the territorial sea of St. Martin’s
Island beyond point 8.
Figure
3:
ITLOS Case No.16.Teritorial Sea Tribunal's Delimitation
2. Delimitation of Exclusive Economic Zone and Continental Shelf within 200 nautical miles
(a) Relevant coasts
(i)
Argument presented by parties
Bangladesh is of the view that its entire
coast is relevant “from the land boundary terminus with Myanmar in the Naaf
River to the land boundary terminus with India in the Raimangal Estuary”.
Myanmar describes the coast of Bangladesh as
being made up of four segments. The first segment proceeds in an easterly
direction from the land border with India to the mouth of the Meghna River. The
fourth segment proceeds in a south-southeasterly direction from the Lighthouse
on Kutubdia Island to the land border with Myanmar. Between these two segments
lie the second and third segments in the mouth of the Meghna River. Myanmar
also points out that Bangladesh, according to its own minutes, acknowledged
during the negotiations between the Parties in November 2008 that “the relevant
coastline for Myanmar in the Bay of Bengal is up to Cape Negrais”.
(ii)
Reasoning and Decision of the Tribunal
The Tribunal concludes that the whole of the
coast of Bangladesh is relevant for delimitation purposes, generating projections
seaward that overlap with projections from the coast of Myanmar. To avoid
difficulties caused by the complexity and sinuosity of that coast, it should be
measured in two straight lines.
The Tribunal draws the first line from a
point on Bangladesh’s coast on Mandabaria Island near the land boundary
terminus with India, which was used by Myanmar as a base point (ß2) for the
construction of its proposed equidistance line to a point on Kutubdia Island.
The second line extends from the said point on Kutubdia Island to the land boundary
terminus with Myanmar in the Naaf River. As a result, the length of Bangladesh’s
relevant coast is approximately 413 kilometres.
Having determined the relevant coasts of the
Parties and their approximate length, the Tribunal finds that the ratio between
these coastal lengths is approximately 1:1.42 in favour of Myanmar.
Figure 4: Relevant Coasts' Measurement by
ITLOS
(b) Method of
delimitation
(i)
Argument presented by parties
Bangladesh
argues that the equidistance line is inequitable in the present case and that the
angle-bisector method, specifically the 215° azimuth line which it advocates
for the delimitation of the maritime boundary between Myanmar and itself on the
continental shelf within 200 nm and in the exclusive economic zone, “avoids the
problems inherent in equidistance without itself generating any inequities”.
In Myanmar’s view, the law of delimitation “has
been considerably completed, developed and made more specific” since the
adoption of the Convention in 1982. Myanmar contends that Bangladesh attempts
to cast doubt on the now well-established principles of delimitation of the
exclusive economic zone and the continental shelf. Myanmar further contends
that Bangladesh makes strenuous efforts to establish that the applicable law
was frozen in 1982 or, even better, in 1969, thus deliberately ignoring the
developments which have occurred over the past 40 years.
(ii)
Reasoning and Decision of the Tribunal
The Tribunal observes that article 74,
paragraph 1, and article 83, paragraph 1, of the Convention stipulate that the
delimitation of the exclusive economic zone and the continental shelf
respectively must be effected on the basis of international law in order to
achieve an equitable solution, without specifying the method to be applied. The
Tribunal notes that, as an alternative to the equidistance/relevant
circumstances method, where recourse to it has not been possible or
appropriate, international courts and tribunals have applied the angle-bisector
method, which is in effect an approximation of the equidistance method.
The Tribunal
finds that in the present case the appropriate method to be applied for
delimiting the exclusive economic zone and the continental shelf between
Bangladesh and Myanmar is the equidistance/relevant circumstances method.
In applying
this method to the drawing of the delimitation line in the present case, the
Tribunal, taking into account the jurisprudence of international courts and
tribunals on this matter, will follow the three stage-approach, as developed in
the most recent case law on the subject. Accordingly, the Tribunal will proceed
in the following stages: at the first stage it will construct a provisional equidistance
line, based on the geography of the Parties’ coasts and mathematical calculations.
Once the provisional equidistance line has been drawn, it will proceed to the
second stage of the process, which consists of determining whether there are
any relevant circumstances requiring adjustment of the provisional equidistance
line; if so, it will make an adjustment that produces an equitable result. At
the third and final stage in this process the Tribunal will check whether the
line, as adjusted, results in any significant disproportion between the ratio
of the respective coastal lengths and the ratio of the relevant maritime areas
allocated to each Party.
Figure 5:
Tribunal's Provisional equidistance line
The Tribunal finds that the concavity of the
coast of Bangladesh is a relevant circumstance in the present case, because the
provisional equidistance line as drawn produces a cut-off effect on that coast
requiring an adjustment of that line.
(c) Effect St. Martin’s
Island
(i)
Argument presented by parties
Bangladesh argues that St. Martin’s Island is
one of the important geographical features in the present case and that “[a]ny
line of delimitation that would ignore [this island] is inherently and
necessarily inequitable”.
Myanmar, in turn, emphasizes “the unique
position of St Martin’s Island, which has three characteristic elements: it is
close to the land boundary and therefore to the starting point of the
equidistance line; it has the very exceptional feature of being on the wrong
side of the equidistance line and also on the wrong side of the bisector
claimed by Bangladesh; and, finally, the mainland coasts to be delimited are
adjacent, not opposite”. Myanmar contends that “[t]hose three elements together
create a serious, very excessive distorting effect on delimitation”.
(ii)
Reasoning and Decision of the Tribunal
St. Martin’s Island is an important feature
which could be considered a relevant circumstance in the present case. However,
because of its location, giving effect to St. Martin’s Island in the
delimitation of the exclusive economic zone and the continental shelf would
result in a line blocking the seaward projection from Myanmar’s coast in a
manner that would cause an unwarranted distortion of the delimitation line. The
distorting effect of an island on an equidistance line may increase
substantially as the line moves beyond 12 nm from the coast.
For the foregoing reasons, the Tribunal
concludes that St. Martin’s Island is not a relevant circumstance and,
accordingly, decides not to give any effect to it in drawing the delimitation
line of the exclusive economic zone and the continental shelf.
The Tribunal accordingly believes that there
is reason to consider an adjustment of the
provisional equidistance line by drawing a geodetic line starting at a
particular azimuth. In the view of the Tribunal the direction of any plausible
adjustment of the provisional equidistance line would not differ substantially from
a geodetic line starting at an azimuth of 2150. A
significant shift in the angle of that azimuth would result in cut-off effects
on the projections from the coast of one Party or the other. A shift toward the
north-west would produce a line that does not adequately remedy the cut-off
effect of the provisional equidistance line on the southward projection of the
coast of Bangladesh, while a shift in the opposite direction would produce a
cut-off effect on the seaward projection of Myanmar’s coast.
From point 11(X), the delimitation line
continues as a geodetic line starting at an azimuth of 215° until it reaches a
point which is located 200 nm from the baselines from which the breadth of the
territorial sea of Bangladesh is measured.
Figure 6:
Delimitation of EEZ and CS within 200nm
3. Continental shelf
beyond 200 nautical miles
(a)
Jurisdiction to delimit the
continental shelf in its entirety
(i)
Argument presented by parties
Myanmar states in its
Counter Memorial that the question of the jurisdiction of the Tribunal
regarding the delimitation of the continental shelf beyond 200 nm in general
should not arise in the present case because the delimitation line, in its
view, terminates well before reaching the 200 nm limit from the baselines from
which the territorial sea is measured and because the Commission had not yet
made recommendations to the two countries regarding the continental
shelf beyond 200 nm.
Bangladesh is of the view
that the Tribunal is expressly empowered by the Convention to adjudicate
disputes between States arising under articles 76 and 83, in regard to the
delimitation of the continental shelf. As the Convention draws no distinction
in this regard between jurisdiction over the inner part of the continental
shelf, i.e., that part within 200 nm, and the part beyond that distance,
according to Bangladesh, delimitation of the entire continental shelf is covered
by article 83, and the Tribunal plainly has jurisdiction to carry out delimitation
beyond 200 nm.
(ii)
Reasoning and Decision of the Tribunal
Article 76 of the Convention
embodies the concept of a single continental shelf. In accordance with article
77, paragraphs 1 and 2, of the Convention, the coastal State exercises
exclusive sovereign rights over the continental shelf in its entirety without
any distinction being made between the shelf within 200 nm and the shelf beyond
that limit. Article 83 of the Convention, concerning the delimitation of the
continental shelf between States with opposite or adjacent coasts, likewise
does not make any such distinction.
There is a clear distinction
between the delimitation of the continental shelf under article 83 and the
delineation of its outer limits under article 76. Under the latter article, the
Commission is assigned the function of making recommendations to coastal States
on matters relating to the establishment of the outer limits of the continental
shelf, but it does so without prejudice to delimitation of maritime boundaries.
The function of settling disputes with respect to delimitation of maritime
boundaries is entrusted to dispute settlement procedures under article 83 and
Part XV of the Convention, which include international courts and tribunals.
For the foregoing reasons,
the Tribunal concludes that, in order to fulfil its responsibilities under Part
XV, Section 2, of the Convention in the present case, it has an obligation to
adjudicate the dispute and to delimit the continental shelf between the Parties
beyond 200 nm. Such delimitation is without prejudice to the establishment of
the outer limits of the continental shelf in accordance with article 76,
paragraph 8, of the Convention.
(b) Entitlement
(i)
Argument presented by parties
Bangladesh argues that “natural
prolongation of its land territory” in article 76, paragraph 1, refers to the
need for geological as well as geomorphological continuity between the land
mass of the coastal State and the seabed beyond 200 nm. Where, as in the case
of Myanmar, such continuity is absent, there cannot be entitlement beyond 200
nm. In Bangladesh’s view, “[n]atural prolongation beyond 200 [nm] is, at root,
a physical concept [and] must be established by both geological and geomorphological
evidence”. It cannot be based on the geomorphology of the ocean floor alone but
must have an appropriate geological foundation. Bangladesh argues that the
ordinary meaning of the words “natural prolongation” in their context clearly
supports such interpretation. It maintains that this interpretation is also
supported by the jurisprudence, as well as the Scientific and Technical
Guidelines and the practice of the Commission
Myanmar argues that “[t]he
Tribunal has no need to and cannot deal with the issue of the entitlement of
Bangladesh or of Myanmar to a continental shelf extending beyond 200 [nm]”. In
the view of Myanmar, “the determination of the entitlements of both States to a
continental shelf beyond 200 [nm] and their respective extent is a prerequisite
for any delimitation, and the Commission on the Limits of the Continental Shelf
(CLCS) plays a crucial role in this regard”.
Myanmar rejects Bangladesh’s
contention that Myanmar has no entitlement to a continental shelf beyond 200
nm. While Myanmar does not contradict Bangladesh’s evidence from a scientific
point of view, it emphasizes that the existence of a geological discontinuity
in front of the coast of Myanmar is simply irrelevant to the case. According to
Myanmar, the entitlement of a coastal State to a continental shelf beyond 200
nm is not dependent on any “test of natural geological prolongation”. What
determines such entitlement is the physical extent of the continental margin,
that is to say its outer edge, to be identified in accordance with article 76,
paragraph 4, of the Convention.
(ii)
Reasoning and Decision of the Tribunal
It is clear from article 76,
paragraph 8, of the Convention that the limits of the continental shelf beyond
200 nm can be established only by the coastal State. Although this is a
unilateral act, the opposability with regard to other States of the limits thus
established depends upon satisfaction of the requirements specified in article
76, in particular compliance by the coastal State with the obligation to submit
to the Commission information on the limits of the continental shelf beyond 200
nm and issuance by the Commission of relevant recommendations in this regard.
It is only after the limits are established by the coastal State on the basis
of the recommendations of the Commission that these limits become “final and
binding”.
Therefore, the fact that the
outer limits of the continental shelf beyond 200 nm have not been established
does not imply that the Tribunal must refrain from determining the existence of
entitlement to the continental shelf and delimiting the continental shelf
between the parties concerned.
The Tribunal therefore cannot accept Bangladesh’s contention that, by reason of the significant geological discontinuity dividing the Burma plate from the Indian plate, Myanmar is not entitled to a continental shelf beyond 200 nm.
3. Delimitation of the continental shelf beyond 200 nautical miles
(i)
Argument presented by parties
Bangladesh contends that the
relevant circumstances in the delimitation of the continental shelf beyond 200
nm include the geology and geomorphology of the seabed and subsoil, because
entitlement beyond 200 nm depends entirely on natural prolongation while within
200 nm it is based on distance from the coast. According to Bangladesh, its
entitlement to the continental shelf beyond 200 nm “rests firmly” on the
geological and geomorphological continuity between its land territory and the
entire seabed of the Bay of Bengal. Bangladesh states that Myanmar “at best
enjoys only geomorphological continuity between its own landmass and the outer
continental shelf”. In Bangladesh’s view, therefore, “an equitable delimitation
consistent with article 83 must necessarily take full account of the fact that
Bangladesh has the most natural prolongation into the Bay of Bengal, and that
Myanmar has little or no natural prolongation beyond 200 nm”.
Myanmar argues that the
rules and methodologies for delimitationbeyond 200 nm are the same as those
within 200 nm. According to Myanmar, “nothing either in UNCLOS or in customary
international law hints at the slightest difference between the rule of
delimitation applicable in the [. . .] areas” beyond and within 200 nm.
(ii)
Reasoning and Decision of the Tribunal
The Tribunal is of the view
that “the most natural prolongation” argument made by Bangladesh has no
relevance to the present case. The Tribunal has already determined that natural
prolongation is not an independent basis for entitlement and should be
interpreted in the context of the subsequent provisions of article 76 of the
Convention, in particular paragraph 4 thereof. The Tribunal has determined that
both Parties have entitlements to a continental shelf beyond 200 nm in
accordance with article 76 and has decided that those entitlements overlap. The
Tribunal therefore cannot accept the argument of Bangladesh that, were the
Tribunal to decide that Myanmar is entitled to a continental shelf beyond 200
nm, Bangladesh would be entitled to a greater portion of the disputed area
because it has “the most natural prolongation”. The Tribunal therefore decides
that the adjusted equidistance line delimiting both the exclusive economic zone
and the continental shelf within 200 nm between the Parties continues in the
same direction beyond the 200 nm limit of Bangladesh until it reaches the area
where the rights of third States may be affected.
(d) Grey
area
(i)
Argument presented by parties
Bangladesh argues that there
is no textual basis in the Convention to conclude that one State’s entitlement
within 200 nm will inevitably trump another State’s entitlement in the
continental shelf beyond 200 nm. Bangladesh finds it impossible to defend a
proposition that even a “sliver” of exclusive economic zone of one State beyond
the outer limit of another State’s exclusive economic zone puts an end by
operation of law to the entitlement that the latter State would otherwise have
to its continental shelf beyond 200 nm under article 76 of the Convention. For
Bangladesh, it cannot be the case that:
a
State with a clear and undisputable potential entitlement in the continental shelf
beyond 200 miles should for ever be prohibited from reaching that entitlement
solely by virtue of the geographical happenstance that it is located in a
concavity and there is a slight wedge of potential EEZ separating it from the
outer continental shelf.
Myanmar contends that “[a]ny
allocation of area to Bangladesh extending beyond 200 [nm] off Bangladesh’s coast,
would trump Myanmar’s rights to EEZ and continental shelf within 200 [nm]”.
According to Myanmar, “[t]o advance a very hypothetical claim to the
continental shelf beyond 200 [nm] against the sovereign rights enjoyed by
Myanmar automatically under article 77 of the Convention with respect to its
continental shelf within this distance, and against Myanmar’s right to extend
its exclusive economic zone” up to this limit, would be contrary to both the
Convention and international practice.
(ii)
Reasoning and Decision of the Tribunal
The Tribunal notes that the
boundary delimiting the area beyond 200 nm from Bangladesh but within 200 nm of
Myanmar is a boundary delimiting the continental shelves of the Parties, since
in this area only their continental shelves overlap. There is no question of
delimiting the exclusive economic zones of the Parties as there is no overlap
of those zones.
The grey area arises as a
consequence of delimitation. Any delimitation may give rise to complex legal
and practical problems, such as those involving transboundary resources. It is
not unusual in such cases for States to enter into agreements or cooperative
arrangements to deal with problems resulting from the delimitation.
Accordingly, in the area
beyond Bangladesh’s exclusive economic zone that is within the limits of
Myanmar’s exclusive economic zone, the maritime boundary delimits the Parties’
rights with respect to the seabed and subsoil of the continental shelf but does
not otherwise limit Myanmar’s rights with respect to the exclusive economic
zone, notably those with respect to the superjacent waters.
The Tribunal recalls in this
respect that the legal regime of the continental shelf has always coexisted
with another legal regime in the same area. Initially that other regime was
that of the high seas and the other States concerned were those exercising high
seas freedoms. Under the Convention, as a result of maritime delimitation,
there may also be concurrent exclusive economic zone rights of another coastal
State. In such a situation, pursuant to the principle reflected in the
provisions of articles 56, 58, 78 and 79 and in other provisions of the Convention,
each coastal State must exercise its rights and perform its duties with due
regard to the rights and duties of the other.
Figure
7:
ITLOS Case No.16, 2012, Gray Area
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