Introduction

Bangladesh is yet to delimit its maritime boundary with its neighbours in Bay of Bengal, that is Myanmar on eastern side and India on its western side. Myanmar and India agreed on maritime territory between themselves but they need to solve the maritime boundary issues with Bangladesh. During the last quarter of 2008, this problem gained momentum in the area near 50 nautical miles southwest of the St. Martin Island when Myanmar sent four offshore exploration vessels (2 Bahamas registered and 2 Belize registered) escorted by 2 naval ships to facilitate the Korean Daewoo Company to explore the oil & gas resources. The situation become complicated when the Bangladesh Navy also positioned three ships at the spot after the Myanmar side reportedly began oil and gas exploration in that area. Despite protests by Bangladesh, citing sovereignty issues, the Myanmar government said that it would continue exploration in the Bay of Bengal. It stopped the oil & gas exploration in deep-sea blocks in disputed waters, a day after Bangladesh asked China to mediate the issue. Myanmar however has claimed that withdrawal was not because of the Bangladesh request; apparently the Korean company had completed its seismic survey in Block AD-7. Although the tension has slowed down, the crisis is yet to be solved.

According to the United Nations Convention on the Law of the Sea (UNCLOS) 1982, a nation can claims 12 nautical miles of territorial sea, 200 nautical miles of Exclusive Economic Zone, and 350 nautical miles of continental shelf. Generally a state’s EEZ extends to a distance of 200 nautical miles (370kms) out from its coast. However, in the case of Bangladesh, India and Myanmar, the situation became difficult as coasts of these countries follow a curve which has led overaping of territory. Yet, neither party was interested to take it to UN, nor did they agree for joint survey mechanism, that India follows with Pakistan (Sir Creek). India and Myanmar agreed on territory between themselves but they need to solve the maritime boundary issues with Bangladesh as they are set to file their claim to the United Nations on June 29 and May 21, 2009, respectively. Under the UNCLOS Bangladesh too has to file its claim by July 27, 2011.

Hence, main aim of the study is to analyze the problems in demarcating the maritime boundary between these three countries with respect to the delimitation norms to be followed by them. This paper also looks at the significance of the Bay of Bengal region for India, Myanmar and particularly Bangladesh, which has to resolve the maritime boundary dispute with its neighbours.

Energy Reserves in Bay of Bengal and Bangladesh’s Concern

The Bay of Bengal has become a lucrative territory for countries, especially after India's discovery of 100 trillion cubic feet of gas in 2005-06 and Myanmar's discovery of 7 trillion cubic feet of gas. According to British Petroleum, Myanmar has 21 Trillion Cubic Feet (TCF) of gas reserves, while Bangladesh has 13.77 TCF of gas. Most of them are located in the Bay of Bengali. However, except the discovery of Sangu gas field with about .848 TCF of recoverable gas, Bangladesh has not much of exploration on the five offshore blocks so farii. Bangladesh is very keen on utilizing its offshore reserves for the country’s development after they realized that existing gas reserves were smaller than anticipated and predicted that abundant oil & gas reserves are most likely to be present in the offshore region.

In Bangladesh, oil and gas is an economic resource and is vital for the survival of 150 million people living in an area of 147,000 sq km. Gas is a major source of revenue and employment for expanding their industrial growth. Bangladesh has recently been facing shortage of gas, currently produces 1750 million cubic feet of gas a day (mmcfd) and faces a shortage of nearly 200 mmcfd in its daily domestic consumptioniii. This situation exists despite the existence of hydrocarbon in Bangladesh. Generally wherever gas is found oil is also normally present in its lower strata provided certain geological conditions prevail. Thus, it is expected that the offshore area of Bangladesh may be rich in oil reserves.

For several years after taking the lead in 1974 for offshore exploration, Bangladesh hibernated while India and Myanmar aggressively explored and discovered significant petroleum resources. Under the New Exploration Licensing Policy, India offered 55 blocks (24 deepwater blocks beyond 400m bathymetry) to the International Oil Companies (IOCs) in the Bay of Bengal during 2006, which is now under exploration phase. Bangladesh has claimed that the map published by the country clearly showed that blocks D-23 (8,706 sqkm) and D-22 (7790 sqkm) have overlapped Bangladesh’s block 21 declared in 1991, which is technically very hard to prove.

On the other hand, Myanmar made significant gas discovery in the block A-1 and A-3 gas fields in the Bay of Bengal in Rakhaine Province, which is adjacent to Bangladesh. Disturbing part is, Bangladesh hardly knew that Myanmar has claimed certain blocks that are overlapping with their blocks in the EEZ areas, which they have claimed in 1974. Bangladesh claimed in 2006, that Myanmar had encroached 18,000 square kilometers into Bangladesh waters and floated gas exploration tenders. The first round of talks between Myanmar and Bangladesh took place in April 2008, which was ended inconclusively without making any significant progress in resolving the issue. There seems to be a strong feeling that Bangladesh should have registered their strongest protest against Myanmar’s exploration in A-1, A-3 and India’s exploration in D-22 & 23, like India had done in 1974 and again in 2008 against Bangladesh.

Source: Cdre. Md. Khurshed Alam ndc,psc BN (retd), “Maritime boundary dispute and oil and gas exploration in the Bay of the Bengal”, The Daily Star, December 19, 2008.

In 1974, Bangladesh was the first country among the South Asian countries which declared its jurisdictions on territorial waters, economic zones, and continental shelf through a national legislation in the parliament, known as the Territorial and Maritime Zones Act 1974. Regarding the maritime boundary issue, Bangladesh had a negotiation with both India and Myanmar commenced in 1974 and since then, there were series of meetings with the representatives of both countries in the intervening years. Later, negotiations were held with India in 1982 and with Myanmar in 1986 and recently during 2008. However, negotiations remained inconclusive with both India and Myanmar.

Norms for Delimitation of Maritime Boundary: Challenges ahead

In the case of Bangladesh, India and Myanmar, the problem arose when they have taken different approach to demarcate their maritime boundary; because of which, India and Bangladesh bilateral talk’s became inconclusive. India offers the equidistant principle as the basis for demarcating maritime boundary, where on Bangladesh favours a principle based on equity, which actually resulted in an area of overlap between them. The same difference in arguments rendered Bangladesh-Myanmar talks inconclusive as well. But, India and Myanmar (opposite States) agreed upon equidistant boundary among themselves on 23rd December 1986 through an agreement, which came into force on 14th September 1987.

According to the UNCLOS- Part V, any such dispute between any two countries should be resolved on the basis of equity and in the light of all the relevant circumstances, taking into account the respective importance of the interests involved to the parties as well as to the international community as a whole. Article 15 says, Delimitation of the territorial sea between States with opposite or adjacent coastsiv are:
“Where the coasts of two States are opposite or adjacent to each other, neither of the two States is entitled, failing agreement between them to the contrary, to extend its territorial sea beyond the median line every point of which is equidistant from the nearest points on the baselines from which the breadth of the territorial seas of each of the two States is measured. The above provision does not apply, however, where it is necessary by reason of historic title or other special circumstances to delimit the territorial seas of the two States in a way which is at variance therewith.”

It is clarified that if no treaty exists otherwise (as in case of India-Bangladesh), the equidistant line should be considered as boundary. There is no historic title, nor special circumstances that exist between these two countries. No official stay order was also issued from ICJ (International Court of Justice) on this dispute. Hence, technically Indian claim gets priority over the Bangladesh claim since the former follows the equidistant principle. Assuming that India does not intrude beyond the equidistant line (as claimed here), it is difficult to find technical fault from Indian perspective. There has been no official complain against India lodged in ICJ as well. A similar action by Myanmar few months back sparked enmity between the nations. It should be noted that Bangladesh needs to file the claim to UN by July 27, 2011, a failure of which would enable India and Myanmar to go ahead with their lines of demarcation (equidistant line).

However, the Articles 76 and 82 of the 1982 UNCLOS lay down the methods of delimitation of sea boundary between adjacent states (distinct from opposite states, such as Sri Lanka and India)v. According to these articles, first the states shall settle the boundary through negotiations. If negotiations fail, the principle of equity will apply, implying that justice and fairness must be the hallmark of settlement. Main argument is, delimitation of sea boundary between two adjacent states, such as Bangladesh and India, is different from that of opposite states such as India and Sri Lanka or Australia and Indonesia. The "equidistant method" that is applicable between the opposite countries in respect of delimitation of EEZ and Continental Shelf cannot be invoked to draw the sea boundary between adjacent countries as it disregards the physical features of coastal areas and does not achieve "an equitable solution" as mandated by the UN Convention. If this method is applied, the boundary between adjacent countries will be unfair, distorted and inequitable. Therefore, sea boundary of Bangladesh with its adjacent neighbours requires to be drawn in terms of the provisions of the UN Convention so as to achieve "an equitable solution”.

There are many legal issues and international negotiations at stake. A famous case ruling by International Court of Justice on 'North Sea Continental Shelf' concerning maritime boundaries Federal Republic of Germany, Denmark, Federal Republic of Germany and Netherlands describes the equity methodvi
Delimitation is to be effected by agreement in accordance with equitable principles, and taking account of all the relevant circumstances, in such a way as to leave as much as possible to each Party all those parts of the continental shelf that constitute a natural prolongation of its land territory into and under the sea, without encroachment on the natural prolongation of the land territory of the other;

Conclusion

Pending the conclusion of sea boundary agreements between Bangladesh, India and Myanmar, there is a suggestion to examine the possibility of sharing resources of the alleged overlapping or disputed areas on the sea. Many countries have been able to conclude such interim agreements of sharing maritime resources. For instance, Thailand and Malaysia agreed in 1979 and in 1990 to jointly exploit sea resources of the continental shelf pending a final agreement. In 1989 Indonesia and Australia concluded an interim agreement to share resources of the Timor Seavii.

In the case of India, Bangladesh and Myanmar, the concept of sharing resources may not be a feasible suggestion under the prevailing circumstance: - In Myanmar, Military junta does not want to share its energy resources with its neighbors, as energy is the main sources of income, which earned $2.6bn from selling gas last year. Under the present domestic energy crisis, Bangladesh may not agree to share its energy resource, which is an important resource for the country. India, on the verge of expanding her energy resources, especially its domestic reserves and its search for oil and gas is in high gear. Hence sharing resources with its neighbors is not likely to be India’s preference. For these countries, it is more important to ascertain oil & gas assets, rather than just acquiring living and non-living resources. Though the issue involves technical and political difficulty, the marine areas adjoining the Bay of Bengal needs to be resolved and demarcated under the relevant provisions of the UNCLOS in order to avoid unnecessary tension between the neighboring countries, which may help them in cooperating in other fields also.

Notes

1. Anand Kumar, “Bangladesh Disputes Myanmar Exploration in Bay of Bengal”, South Asia Analysis Group, paper no 2931, Nov 21, 2008, http://www.southasiaanalysis.org/papers30/paper2931.html (accessed on December 3, 2008).

2. Saleque Sufi, “Offshore Exploration: Bangladesh Perspective”, Energy Bangla, September 16, 2008. http://energybangla.com/index.phd?mod=article&cat=SomethingtoSay&article=975&pag (accessed on December 19, 2008).

3. Cdre. Md.Khurshed Alam, “Maritime boundary dispute and oil and gas exploration in the Bay of Bengal”, The Daily Star, December 19, 2008. http://www.thedailystar.net/story.php?nid=48489 (accessed on December 3, 2008).

4. Diganta, comment on “India-Bangladesh Maritime Dispute in Bay of Bengal”, The New Horizon Blog, comment posted December 26, 2008, http://horizonspeaks.wordpress.com/2008/12/26/the-maritime-dispute-with-bangladesh/ (accessed on December 27, 2008).

5. Harun ur Rashid, “Bottom Line Undemarcated Sea-boundary: Is India taking advantage?”, The Daily Star, May 17,2006. http://www.thedailystar.net/2006/05/17/d60517020331.htm (accessed on December 25, 2008).

6. Diganta, comment on “India-Bangladesh Maritime Dispute in Bay of Bengal”, The New Horizon Blog, comment posted December 26, 2008, http://horizonspeaks.wordpress.com/2008/12/26/the-maritime-dispute-with-bangladesh/ (accessed on December 27, 2008).

7. Barrister Harun ur Rashid, “Sea boundary of Bangladesh: A legal view”, The Daily Star, February 19, 2004. http://www.thedailystar.net/law/2004/02/04/index.htm (accessed on December 27, 2008). (Poornima Ravinathan is a doctoral candidate at the South Asian Studies Centre, Jawaharlal Nehru University, New Delhi. She can be contacted at poornima.ravinathan@gmail.com.