DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

SABBAVARAM, VISAKHAPATNAM, A.P., INDIA

TOPIC: DELIMITATION OF MARITIME BOUNDARIES WITH REFERENCE TO

BANGLADESH AND MYANMAR DISPUTE

SUBJECT: MARITIME LAW

FACULTY:  Prof. Arvind Nath Tripathi

Name: Nikhila Katupalli

Roll No.: 2018057

Semester: VII

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ACKNOWLEDGEMENT

With great pleasure I want to express my gratitude to my project guide Prof Arvind Nath
Tripathi, without whose help this project would not have been completed.

I would also like to thank DSNLU for providing me with the necessary e-resources required
for the completion of the project.

                                           

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TABLE OF CONTENTS

 Introduction............................................................................................................4
 The Delimitation of Maritime Boundaries By ITLOS........................................4
 St. Martin’s Island.................................................................................................6
 The EEZ and CS.....................................................................................................6
 The CS Beyond 200 nm (OCS)..............................................................................7
 The Grey Area........................................................................................................8
 Agreed Minutes of Meeting between Myanmar and Bangladesh......................8
 Acquiescence.........................................................................................................10
 The Angle-bisector Method.................................................................................10
 States’ Rights and Obligations In ‘The Grey Area’..........................................11
 Artificial Islands Installations and Structures..................................................11
 Marine pollution...................................................................................................12
 Marine Scientific Research..................................................................................13
 Possible solutions..................................................................................................13
 The Arbitral Award………………………………..…………………………..14
 Conclusion………………………………………………………………………15
 REFERENCES.....................................................................................................16

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Introduction
Bangladesh is situated between India and Myanmar in the concavity of the Northern Bay of
Bengal (Bay). Natural resources, particularly hydrocarbons, abound in the Bay. Maritime
delimitation conflicts between Bangladesh and India, as well as Bangladesh and Myanmar,
have hampered the use of the sea's resources for a long time.

For the marine border delimitation, both India and Myanmar insisted on using the
equidistance principle. As a result of the concavity of Bangladesh's coastline, the outward
projection of its exclusive economic zone (EEZ) and continental shelf (CS) were completely
cut off from an area that Bangladesh claims as its outer continental shelf.

Bangladesh has filed a request with the International Tribunal for the Law of the Sea
(ITLOS) to clarify the maritime borders between Bangladesh and Myanmar. The ITLOS used
the equidistance/relevant circumstances method in its decision. As a result, Bangladesh's EEZ
and CS seaward projection are no longer blocked. Another effect is the creation of a "grey
area" where Myanmar's EEZ intersects with Bangladesh's CS.

The decision helps to legal certainty, which is necessary for the commercial utilization of
maritime resources. In light of this, it's worth considering how much the development of the
grey zone contributes to legal certainty.

 “What are the rights and obligations of Bangladesh and Myanmar with respect to the
‘grey zone’ under international law and
 What instruments are available to deal with, or to prevent (new) conflicts?”

The Delimitation of Maritime Boundaries by ITLOS

The delimitation of territorial seas under Article 15 of the 1982 United Nations Convention
on the Law of the Sea (UNCLOS or the Convention) is widely considered to be a non-
controversial matter. A recent, mostly unreported shift in international jurisprudence on
territorial sea delimitation demonstrates the ongoing difficulties in defining the world's oldest
maritime zone under international law. Articles 74 and 83 of the UNCLOS distinguish
between the delimitation of the EEZ and continental shelf on the one hand, and the
delimitation of the territorial sea on the other. Article 15 of UNCLOS 1 reads as, “If the coasts
of two States are opposite or adjacent to each other, neither is entitled to extend its territorial
1
https://www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e.pdf (Last visited on 30th August
2021 at 7:00PM)

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sea beyond the median line, every point of which is equidistant from the nearest points on the
baselines from which the breadth of each of the two States' territorial seas is measured, unless
the two States agree otherwise. However, where it is necessary to delimit the territorial seas
of the two States in a fashion that is inconsistent with the above provision due to historic title
or other special circumstances, the above provision do not apply.” While Articles 73 and 83
are a touch hazy in their wording, Article 15 is crystal clear that no country has jurisdiction
where territorial seas intersect and can only be resolved through mutual agreement or the
equidistant principle.

In Qatar v Bahrain2, the ICJ declared Article 15 to be part of customary international law.
However, the case law since the entry into force of UNCLOS in 1994 shows a degree of
uncertainty in applying Article 15. While past decisions upheld the priority of equidistance
and the corrective function of exceptional circumstances, subsequent case law places a
greater emphasis on special circumstances and downplays the predominance of equidistance.
The ICJ defines unique circumstances as those that may affect the outcome of an unqualified
application of the equidistance criterion, as well as the presence of islands or navigational
waterways in the delimitation region.

If neighbouring states cannot agree on a territorial sea boundary, UNCLOS Article 15 states
that neither is allowed 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. Special circumstances and historic title,
according to the provision's text, are exceptions to the general rule of equidistance. Also in
the North Sea Continental Shelf case3, it was said that, “The mechanical application of the
equidistance concept can occasionally result in an unfavourable outcome for a state. As a
result, it is necessary to complement the equidistance principle's prescription with a clause
that caters for unique conditions and serves as an exception to the basic concept of
equidistance.”

In the case at hand, the Tribunal was asked to define the territorial sea boundary, the EEZ,
4
and the continental shelf within 200 nautical miles, as well as the continental shelf beyond

2
https://www.icj-cij.org/en/case/87 (Last visited on 29th August 2021 at 8:00 PM)
3
https://www.icj-cij.org/files/case-related/51/051-19690220-JUD-01-00-EN.pdf (last visited on 27th August
2021 at 5:00 PM)
4
Handbook on the Delimitation of Maritime Boundaries, Division for Ocean Affairs and the Law of the Sea
Office of Legal Affairs United Nations, New York, 2000, United Nations Publication Sales No. E.01. V.2, ISBN
92-1-133630-9.

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200 nautical miles.5 Before making a decision on the subject, it is necessary to evaluate
Bangladesh's geographical features.

St. Martin’s Island

The island of St. Martin is inhabited. It supports a diverse range of economic activities,
including a thriving international tourism industry. The Bangladesh navy and coast guard use
it as a major facility. As a result, St. Martin's is an island, as defined in Article 121 of the
Convention, and as such, it must have full effect in the delimitation with a territorial sea of 12
nautical miles. Bangladesh's contention that St. Martin's has complete entitlement to its
marine zones is supported by the statute, article 121, and pertinent jurisprudence.

The EEZ and CS

The EEZ and CS within 200 nm

Article 55 of the UNCLOS is the most important article concerning the EEZ. It makes clear
that the EEZ is a unique, sui generis regime that is neither under the jurisdiction of the coastal
state nor part of the high seas. According to UNCLOS, the coastal State has "sovereign
rights" to explore and exploit natural resources in the EEZ, as well as other "economic
exploitation and exploration of the zone, such as energy production from water, currents, and
winds.6 In exercising their rights and duties in the EEZ, both coastal States and other States
have mutual obligations of due consideration. The due consideration commitment was
initially established in respect to high seas freedoms in the 1958 High Seas Convention as
"reasonable regard" to other States' interests in the exercise of high seas freedoms.7

In reference to competing uses in the high seas, the Area, and the EEZ, UNCLOS employed
the formulation of "due regard" rather than "reasonable consideration" as in the Fisheries
Jurisdiction case, but the differences are simply semantic. The due regard obligation is
believed to be a procedural obligation. It entails a delicate balancing of the coastal state's with
the rights and duties of other States in the EEZ.

The Tribunal applied the corrective equity approach, in conformity with the judgement of the
ICJ in the Black Sea Case (Romania v. Ukraine)8. This method is carried out in three parts.
The first step is to design a preliminary equidistance line. In the second stage, the Tribunal
5
https://brill.com/view/journals/nord/84/4/article-p580_2.xml?lang=en (Last visited on 1th October 2021 at
6:00PM)
6
https://impklawyers.com/english-articles/brief-history-of-the-exclusive-economic-zone-eez-regime-and-the-
violation-of-the-cyprus-eez/ (Last visited on 2nd October 2021 at 9:00 PM)
7
Supra Note. 5
8
https://www.icj-cij.org/en/case/132 (Last visited on 29th August 2021 at 7:00 PM)

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considers whether there are any exceptional circumstances that require this line to be
adjusted. Finally, to guarantee that the delimitation line is equitable, a proportionality test is
used.

The Tribunal chose its own base points and drew a preliminary line based on equidistance in
the first step. The concavity of Bangladesh's coast was considered a relevant element
supporting the line's alteration. Concavity is not necessarily a relevant factor, according to the
court. However, because to the concavity of Bangladesh's coast, the equidistance line formed
between the two States has a cut-off impact on Bangladesh's entitlement to an OCS. Due to
this condition, it was determined that a change to the equidistance line was required in order
to achieve an equal conclusion.

The Tribunal then considered how the line may be altered to provide an equitable result,
concluding that "there are no magic formulas in this regard." At a point when the
equidistance line begins to cut off the southward projection of Bangladesh's shore, the
Tribunal modified the line. Bangladesh now has access to its continental shelf beyond 200
nautical miles. The Tribunal examined the ocean area so allocated to the parties with the
lengths of their respective coastlines in the third stage and found no major disparity.

The CS Beyond 200 nm (OCS)

The fact that the outer limits of the parties' continental shelf had not been determined
complicated the identification of the OCS line. As a result, it was difficult to determine if
Bangladesh and Myanmar were entitled to a CS beyond 200nm and whether there were any
overlapping claims. The Tribunal found a solution by adopting LOSC article 76 (4) (a)(i).
Because a substantial layer of silt covers the entire Bay bottom, each state might claim a CS
greater than 200nm based on the thickness of the sedimentary rock.9

The corrective equity method was used by the Tribunal. The concavity of Bangladesh's
coastline was once again considered an important factor. The Tribunal determined that the
amended equidistance line continued in the same direction beyond Bangladesh's 200-nm limit
until it reached an area where third-party rights would be harmed.

The Grey Area

The use of a delimitation method other than the equidistance line resulted in the
establishment of a "grey area" in this example. The grey zone extends beyond Bangladesh's
9
https://www.itlos.org/fileadmin/itlos/documents/cases/case_no_16/published/C16-J-14_mar_12.pdf (Last
visited on 3rd October 2021 at 9:00 PM)

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200-nautical-mile (nm) coastline and into Myanmar's 200-nautical-mile (nm) zone.
Myanmar's claim to this portion of its EEZ is exclusively based on its proximity to the coast.
The delimitation of this right has no effect. At the same time, the delimitation establishes
rights for Bangladesh, which had previously been cut off from this area but now has access to
a CS that extends beyond 200 nm. The alteration of the provisional border line has resulted in
an area where Myanmar's EEZ rights coincide with Bangladesh's OCS rights.10

When equidistance lines are changed, the impact of producing a grey zone occurs more
frequently. It happens because there is a distinction between the concepts that apply to EEZ
eligibility and the principles that apply to delimitation. The EEZ is granted based on the
distance from the coast. Equidistance also refers to the distance between you and the coast 11.
As a result, equidistance-based delimitation is trouble-free. However, other delimitation
procedures, such as the corrective equity method, are not dependent on equidistance and can
result in a line crossing an EEZ (in this case, Myanmar's) at a place within its 200-nm
boundary.

The Tribunal specifically said that the line delimits the parties' rights to the CS's seabed and
subsoil, but it "does not otherwise limit Myanmar's rights with respect to the EEZ,
particularly those with regard to the adjoining adjacent waters." In other words, Bangladesh
owns the rights to the bottom of the continental shelf in the grey zone, whereas
Bangladesh owns the rights to the continental shelf while Myanmar has jurisdiction over the
adjacent waters. The Tribunal highlighted that parties must utilize their rights with "due
respect" for the other's rights and obligations. In this regard, the Tribunal advised the
governments to consider the potential of bilateral co-operation agreements.

Agreed Minutes of Meeting between Myanmar and Bangladesh

Two minutes of conference were held between the countries, one in 1974 and the other in
2008. The following items were agreed upon during the meetings:

1. From the 31st of March to the 1st of April, 2008, Bangladesh and Myanmar delegations
met in Dhaka to discuss the delimitation of the maritime boundary between the two countries.
The discussions took place in a warm, kind, and understanding environment.

10
https://www.ejiltalk.org/from-the-north-sea-to-the-bay-of-bengal-maritime-delimitation-at-the-international-
tribunal-for-the-law-of-the-sea/ (Last visited on 30th August 2021 at 8:00 PM)
11
Ibid Note 9

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2. Both sides discussed the ad-hoc agreement on chart 114 of 1974, and both sides agreed ad-
referendum to replace the word "unimpeded" in paragraph 3 of the November 23, 1974
Agreed Minutes with "Innocent Passage through the Territorial Sea shall take place in
accordance with the UNCLOS, 1982, and shall be based on reciprocity in each other's
waters.”

3. Instead of the ad hoc understanding's chart 114, both sides agreed to map the following
coordinates, as agreed in 1974, on a more recent and internationally recognised chart, namely
Admiralty Chart No. 817, undertaking joint inspection instead of the previously agreed joint
survey of certain Serial No. Latitude Longitude

4. The Bangladesh side proposed the intersection point of the two 12 nautical mile arcs
(Territorial Sea limits from respective coastlines) drawn from the southernmost point of St.
Martin's Island and Oyster Island after giving due effect (i.e. 3:1 ratio in favour of St.
Martin's Island to Oyster Island) as a starting point for the delimitation of the EEZ and
Continental Shelf. The Bangladeshi side cited UNCLOS Article 121 (1982) and other law on
the status of islands and rocks, claiming that Oyster Island does not have an EEZ or
Continental Shelf. The Bangladeshi side also restated the entire effects of St. Martin's Island
under the UNCLOS' 1982 Article 121 Island Regime.

5. The starting point for the EEZ and Continental Shelf, according to the Myanmar side,
might be the midpoint between St. Martin's Island and Oyster Island. The Myanmar side
highlighted Articles 7(4), 15, 74, and 83, as well as pertinent cases and the fact that the two
coastlines' proportionality should be examined. Myanmar also stated that it has given full
effect to St. Martin's Island, which is located opposite Myanmar's mainland, and that Oyster
Island, which has inhabitants and a lighthouse, should be given full effect as well; otherwise,
Myanmar would have to reconsider the full effect it had given to St. Martin's Island.

6. Various equitable concepts and standards pertaining to marine delimitation and State
practices were also addressed and examined by the two parties.

7. They agreed to keep talking about it in the hopes of reaching an agreement on a mutually
acceptable maritime boundary in Myanmar at a mutually convenient time.

The Judges considered the International Court of Justice's decision in the case of Qatar-
Bahrain Maritime Delimitation and Territorial Questions, and agreed that a court must
"ascertain whether an agreement of that kind has been concluded, and "the Court must have

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regard above all to its actual terms and to the particular circumstances in which it was drawn
up."12

Acquiescence
A party must claim the territory as its own against all other parties and do so publicly in
questions of acquiescence. For 34 years, Bangladesh did just that, and Myanmar did not react.
Myanmar continued talks with the US to reach an agreement on a comprehensive treaty that
would define the EEZ and continental shelf between the two countries. It's worth noting that
the territorial sea delimitation was left out. Further, in 2008 Myanmar sought a change to the
final point, point 7 to point 8A.

The Angle-bisector Method

In this case, the geographical factors are unique. The twin concavities, the coastal facade, and
possible entitlements on the outer continental shelf and St. Martin's Island are among them.
The Parties agree that the best course of action is to first delimit the territorial sea up to a 12-
nautical-mile limit. After that, the Tribunal should assess its obligation to delimit the relevant
area in accordance with the principles outlined in Articles 74 and 83 of the Convention, with
the goal of reaching a fair solution. A modified variant of the equidistance approach is the
angle-bisector method. The employment of the angle-bisector approach was essential for a
variety of reasons, including:

1. “The pronounced concavity of the entire coastline of Bangladesh;

2. The extensive Bengal depositional system;

3. The geomorphological prolongation of the Bangladesh coastline; this is clearly set out in
the reports of the experts; “

4. the location of St. Martin's Island, which is around 4.5 miles from Bangladesh's shore and
5 miles from Myanmar's. In the delimitation, St. Martin's Island must be given full effect.

5. The concavity of the Bangladesh coastline is crucial because the equidistance principle
would cut Bangladesh's seaward projection off. In other words, its projection into the Bay of
Bengal's continental shelf will be severely limited, to the point that it will lose access to its
Bay of Bengal continental shelf claim.

12
Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1994, p. 112, at p. 121, para. 23

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Myanmar claims that there is no concavity along the Bangladesh coast in the relevant section,
and that concavity is irrelevant in any case.

States’ Rights and Obligations in ‘The Grey Area’

The Tribunal has given Bangladesh rights to the seabed and subsoil in the grey zones, but
leaving Myanmar's EEZ rights, particularly those in the super adjacent waters, unaffected. In
other words, Bangladesh has jurisdiction over the seabed and subsoil, whereas Myanmar has
jurisdiction over the water column. Water column rights are separated from sea bed rights in
the LOSC system and dealt with in separate parts, Parts V and VI of the LOSC, respectively.
Despite the fact that these rights are dealt with in distinct sections, they were not written with
the understanding that water column rights and seabed rights belong to different states.

A comparison of the provisions in the LOSC shows four potential areas of conflict, which
will be discussed below:

Artificial Islands Installations and Structures

Article 60 of the LOSC gives the coastal state, in this case Myanmar, exclusive rights to and
jurisdiction over manmade islands, installations, and buildings in the EEZ. Bangladesh, a
state under the CS regime, is granted identical rights under Article 80 of the LOSC. This
indicates that there is a jurisdictional conflict.

Both states have an interest in exerting control over man-made structures and installations.
The exploitation of the seabed by Bangladesh is impossible without the establishment of
infrastructure like oil drilling platforms. Myanmar, too, has a vested interest in the situation.
Control over artificial islands and installations might be vital for water-related applications
like artificial reef development and fish aggregation devices. The (exercise of) the states'
authority or jurisdiction may be linked to the usage of the installation or building as a solution
to the problem of overlap. When it is used for drilling purposes, it would fall under the CS
states’ jurisdiction. When it is used for fishing it falls under the EEZ states’ jurisdiction. 13

Marine pollution
In the case of marine contamination, there is also a jurisdictional overlap. Myanmar has
‘exclusive' control for the conservation and preservation of the marine environment in its
EEZ under Article 56 (1) b (iii) of the LOSC. However, in this circumstance, this privilege
cannot be applied "exclusively." Both Myanmar (in its EEZ) and Bangladesh are required by
13
The International Law of Maritime Boundary Delimitation, Edward Collins, Jr., Martin A. Rogoff, Maine
Law Review, Vol. 34, 1982.

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article 194 (1) LOSC to take all necessary measures to control pollution of the marine
environment from "any source," and this would apply to Myanmar (in its EEZ) (in its CS).
Perhaps tying the jurisdiction to the precise activities is a solution to this dilemma where
Myanmar would control pollution in the water column activities and Bangladesh the seabed
activities. This would be consistent with article 194 (2), which mention "actions under their
supervision." Because actions made for one activity unavoidably affect actions taken for the
other, there is a significant need to coordinate matters.

Furthermore, under Article 210 (5) of the LOSC, the ‘coastal State' has a duty to regulate and
control dumping. Both Myanmar and Bangladesh are considered coastal states. As a result,
both Myanmar and Bangladesh would have jurisdiction over dumping in the grey zone.

Another complication is that Myanmar’s rights to control pollution under article 56 LOSC
may conflict with Bangladesh’s exclusive right to regulate drilling (art. 81 LOSC).

Concerns about the marine environment arise from the overlap and uncertainty of states'
rights to manage marine pollution. It is very likely that governments' responsibilities will be
neglected or postponed as a result. This is a concern for any marine environment, but it's
especially so in this case because the Bay of Bengal already suffers from land-based pollution
from industrial, agricultural, and urban sources, as well as froth pollution vessel-based oil
pollution.

Marine Scientific Research 14

Under article 56 of the LOSC, Myanmar has "exclusive" (EEZ) control over marine scientific
research. At the same time, under article 246 (1) LOSC, both Myanmar and Bangladesh, as
coastal States, are given jurisdiction to regulate, approve, and undertake marine scientific
research in "their economic zone and continental shelf." States may withhold consent to
research initiatives carried out by other States and international organizations if the study is
"of direct or indirect" relevance for the exploration and exploitation of living or non-living
natural resources, according to article 246 (5). Bangladesh's right to do so is restricted to
regions outside of the OCS designated for her own projects.15

This causes a slew of issues. For starters, neighboring countries and international
organizations will have to deal with two states rather than one when it comes to permission.
14
The Problem of Delimitation of Bangladesh's Maritime Boundaries with India and Myanmar: Prospects for a
Solution, M. Shah Alam, the International Journal of Marine and Coastal Law 25(3):405-423.
15
Delimitation of the Maritime Boundary in the Bay of Bengal (Bangladesh/Myanmar), Anderson, D. (2012),
American Journal of International Law, 106(4), 817-824.

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The second is that Myanmar and Bangladesh are now mutually reliant on each other's
approval for actions that are critical to the successful exploitation of the grey zone's EEZ and
CS.

Coastal governments frequently offer their approval under article 246 LOSC in international
practice. But, in the current context, when there has been a history of long-running litigation,
how much legal certainty does this provide? More legal certainty may be required by foreign
investors.

Possible solutions
The basic situation under the LOSC is as follows:

Myanmar and Bangladesh are both required to exercise their rights in a manner that is
respectful of (the) other State (s). Article 56 (2) LOS imposes this requirement on Myanmar,
while article 78 LOSC imposes it on Bangladesh.

Disputes arising out of matters where the LOSC does not define EEZ jurisdiction should be
determined on the basis of equity in light of all relevant facts, taking into account the
respective interests of the states involved and the community as a whole, according to article
59 of the LOSC.

However, the compulsory jurisdiction of section 2 of Chapter XV of the LOSC does not
apply to conflicts involving certain aspects of maritime scientific research and fishing in the
EEZ and on the Continental Shelf, which is a complicating problem. For those matters, only
the (compulsory) conciliation instrument (article 297 (3) (b) LOSC) is available, and only in
extremely restricted instances and that does not lead to binding decisions. The lack of formal
dispute resolution procedures in the LOSC for these issues reflects the special sensitivities
that exist in the field of marine scientific research and fishery. This factor, combined with the
Bay of Bengal's history of long-standing unresolved disputes that have caused both countries'
natural resource exploitation to be delayed, makes it all the more important that Myanmar
and Bangladesh resolve their overlap issues through bilateral agreements as soon as possible.
This can be accomplished by agreeing on a bilateral treaty that allows one state to exercise its
rights in the area. Alternatively, Myanmar and Bangladesh could enter into joint development
agreements.

The Arbitral Award

Jurisdiction:

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The parties submitted three main issues to the five-person Arbitral Tribunal for consideration.
The first pertained to the Arbitral Tribunal’s jurisdiction. In the absence of any declaration
pursuant to Article 287(3) UNCLOS, as well as the absence of any written declaration
excluding certain categories of dispute under Article 298 UNCLOS, the Arbitral Tribunal
unanimously voted that it had jurisdiction.10 The Arbitral Tribunal noted that both parties’
submissions concerning the outer limits of the continental shelf beyond 200 nautical miles
were still pending before the Commission on the Limits of the Continental Shelf (CLCS)
pursuant to Article 76 UNCLOS.11 Neither India nor Bangladesh considered this fact as a
ground for the Arbitral Tribunal to refrain from exercising its jurisdiction to delimit the
continental shelf beyond 200 nm.12 On the contrary, it was important for the parties that the
Arbitral Tribunal resolved the delimitation dispute in order to allow the CLCS to continue
consideration of their submissions.

Both parties informed the CLCS that a delimitation dispute existed between them with
respect to the area that was the subject of the submission and that the arbitration proceedings
to resolve the dispute were ongoing.13 Under Rule 46 and Annex I, paragraph 5(a) of the
Rules of Procedure of the CLCS, consideration of a submission will be deferred unless all
parties to a dispute give their consent for the CLCS to consider the submission, which was
the case here. Consistent with the ruling of the ITLOS in the Bangladesh/Myanmar case, the
Arbitral Tribunal underlined that the procedure under Article 76 UNCLOS and the dispute
settlement mechanisms under the Convention are separate, independent, yet complementary,
procedures.

Article 76 requires that the process of delineating the continental shelf beyond 200 nm, which
is a sovereign prerogative of a coastal State, be submitted for review to the CLCS. The
settlement of maritime delimitation disputes, on the other hand, is a function assigned to the
different dispute settlement mechanisms under Part XV UNCLOS. There is nothing in the
UNCLOS that explicitly states that delineation shall first be completed before delimitation
can take place. Article 9 of Annex II UNCLOS, which mandates that the actions of the CLCS
shall not prejudice matters relating to the delimitation of boundaries between States with
opposite or adjacent coasts, leads one to conclude that delineation under Article 76 is not a
prerequisite to delimitation under Article 83 UNCLOS.

Land boundary terminus

14
The second issue concerned the location of the land boundary terminus at the mouth of the
Bay of Bengal, which separates India from Bangladesh. In determining the exact location of
the land boundary terminus, the Arbitral Tribunal’s main task was to interpret two terms of
the Radcliff Award of 1947, which established the boundary between India and the then-
newly independent Pakistan, as well as to determine the evidentiary value of the map
attached thereto, which purported to show where the land boundary terminus was located.
The Arbitral Tribunal reached a unanimous verdict on the location of the land boundary
terminus.

Delimitation line

The third and final issue that the Arbitral Tribunal voted on was the delimitation line marking
the boundary between the territorial sea, exclusive economic zone and the continental shelf
between the parties. The parties asked the Arbitral Tribunal to draw a single maritime
boundary line delimiting the three maritime zones.19 Consistent with previous jurisprudence,
the Arbitral Tribunal emphasised at the outset that it would undertake its delimitation task in
three stages because different legal parameters apply for each maritime zone. The first
segment delimited the territorial sea, the second segment was the delimitation of the
exclusive economic zone and the continental shelf within 200 nm, and the final segment
concerned the delimitation of the continental shelf beyond 200 nm. The Arbitral Tribunal’s
decision on the delimitation line was not unanimous, with Rao dissenting in part.

Conclusion
The maritime boundary disputes between Bangladesh and Myanmar were resolved by an
ITLOS decision on March 14, 2012. The corrective equity technique was used by ITLOS. In
order to reach an equal result, the concavity of Bangladesh's coastline was taken into account
as a crucial circumstance. Bangladesh now has access to its continental shelf beyond 200
nautical miles. As a result, a "grey area" has been created in which Bangladesh has rights and
jurisdiction over the seabed and subsoil, but Myanmar has control over the water column.
There is some overlap between states' rights and obligations in this area.

Jurisdiction over artificial islands installations and structures, maritime pollution, and marine
scientific research are examples of grey areas where Bangladesh and Myanmar's rights under
the LOSC intersect. To avoid (new) problems, comprehensive provisions regarding the
exercise of states' rights and jurisdiction in a bilateral agreement will need to be created.
Alternatively, the states could reach an agreement on cooperative development. This

15
minimizes the likelihood of future conflict(s) and negative impacts on resource exploitation
and marine environment conservation in the grey zone.

Overall, the Arbitral Tribunal’s approach to delimiting the maritime zones between the
Bangladesh and India stayed faithful to established jurisprudence in maritime delimitation.
The final delimitation line established by the Arbitral Tribunal was a result of detailed
application of the three-step approach of the provisional equidistance/relevant circumstances
developed by past judicial rulings and refined in the Black Sea case. With respect to the
adjusted line, there is some merit to the critique that the Award did not provide a fully
reasoned explanation as to how the Arbitral Tribunal arrived at its decision. However, the
same critique can be made of many decisions that have applied the provisional
equidistance/relevant circumstances method. No matter how objective a court or tribunal is in
establishing the provisional line, its adjustment on the basis of relevant circumstances always
calls for the application of judicial discretion.106 There will therefore always be an element
of subjectivity with respect to a final adjusted line. In contrast to its faithful application of
established doctrine, the Arbitral Tribunal’s attempt at law-making was not as successful. As
previously discussed, the Arbitral Tribunal held back from elaborating certain fundamental
underlying issues, which prevented it from fully contributing to the progressive development
of the law on maritime delimitation of the continental shelf in areas beyond 200 nm. These
issues included the necessity of undertaking the test of appurtenance in order to confirm
entitlement and any ensuing overlap of claims as well as the importance of elaborating the
principles applicable to the delimitation of the continental shelf beyond 200 nm.

Nevertheless, this Award occupies a distinct place in international jurisprudence, as it was

one of the first two cases in which the extended continental shelf beyond 200 nm was
delimited before the CLCS made its recommendations concerning the outer limits.107 Prior
to the two cases, the courts and tribunals tended to refrain from exercising jurisdiction over a
delimitation dispute involving the continental shelf beyond 200 nm, rather waiting for the
CLCS to make its recommendations.108 This reluctance can be attributed to the idea that
delineation by the CLCS, which also involves making a determination concerning a coastal
State’s entitlement to an extended continental shelf, must be completed before delimitation
can take place.109 In addition, there is also doubt whether a judicial or arbitral body
comprised of legal experts is qualified to determine a coastal State’s entitlement to a
continental shelf beyond 200 nm as it involves the application of a complex set of geological
and geomorphological factors.

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 There is nothing in the UNCLOS that explicitly states that delineation shall first be
completed before delimitation can take place. On the contrary, and which was argued earlier,
Article 9 of Annex II of the UNCLOS, which mandates that the actions of the CLCS shall not
prejudice matters relating to the delimitation of boundaries between States with opposite or
adjacent coasts, leads one to conclude that delineation under Article 76 is not a prerequisite to
delimitation under Article 83 UNCLOS. Finally, it must be noted that by exercising
jurisdiction to delimit the area beyond 200 nm and resolving the delimitation dispute, the
Arbitral Tribunal paved the way for the CLCS to consider the submissions of India and
Bangladesh and to make recommendations on the outer limits of the continental shelf of both
countries.

Findings:
1. “That the 1974 Agreed Minutes as amended in 2008 amount to a tacit agreement with
respect to the boundaries of the territorial sea.

2. St. Martin’s Island has the full effect of a territorial sea of 12 nm.

3. The equidistance “special circumstance” principle or rule is not applicable in this case for
the delimitation of the exclusive economic zone and the continental shelf.

4. Bangladesh’s concavity is important in delimiting the area and is the only special
circumstance in this case. “

5. That the territorial sea maritime boundary between Bangladesh and Myanmar be the line
previously negotiated between the parties in the Agreed Minutes of 1974, which was
confirmed in 2008.

6. Expert reports are used as evidence in the case. Both States' continental shelf stretches into
the Bay of Bengal, according to the sources. And that, according to expert reports, Myanmar
has a right to its continental shelf beyond 200 nautical miles, which it shares with
Bangladesh. As a result, they split the territory in question amongst the States using the
angle-bisector approach. The maritime boundary follows a line with the geodesic azimuth of
215°.

7. “Scientific evidence is permissible and is crucial in arriving at the meaning of “natural

prolongation” in article 76 of the Convention.

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8. The continental shelf of Bangladesh is the natural prolongation of the land mass into the
Bay of Bengal.

9. The angle-bisector method depicts the line delimiting the maritime boundary between
Bangladesh and Myanmar in the Bay of Bengal.

10. When the above method is applied, the test of dis-proportionality is met.

11. The “grey area” must be divided and, for the reasons set out in this opinion, I allocate the
“grey area” to Bangladesh.

12. The delimitation line beyond 200 nm is the continuation of the line dividing the EEZ and
the continental shelf of the States until it reaches the point where the rights of a third State
may be affected. “

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REFERENCES

Journals and Articles:

 Handbook on the Delimitation of Maritime Boundaries, Division for Ocean Affairs

and the Law of the Sea Office of Legal Affairs United Nations, New York, 2000,
United Nations Publication Sales No. E.01. V.2, ISBN 92-1-133630-9.
 Delimitation of Maritime Boundaries: A Survey of Problems in the Bangladesh
Case, M. Habibur Rahman, University of California Press, Asian Survey Vol. 24, No.
12 (Dec., 1984), pp. 1302-1317 (16 pages).
 The International Law of Maritime Boundary Delimitation, Edward Collins, Jr.,
Martin A. Rogoff, Maine Law Review, Vol. 34, 1982.
 The Judge, Maritime Delimitation and the Grey Areas, Ndiaye, T.M., Indian Journal
of International Law 55, 493–533 (2015).
 Delimitation of Maritime Boundaries between Adjacent States, Nugzar Dundua
United Nations, the Nippon Foundation Fellow, 2006-2007.
 Delimitation of the Maritime Boundary in the Bay of Bengal (Bangladesh/Myanmar),
Anderson, D. (2012), American Journal of International Law, 106(4), 817-824.
 The Problem of Delimitation of Bangladesh's Maritime Boundaries with India and
Myanmar: Prospects for a Solution, M. Shah Alam, the International Journal of
Marine and Coastal Law 25(3):405-423.

Online Sources:

 https://www.un.org/Depts/los/doalos_publications/publicationstexts/Handbook
%20on%20the%20delimitation%20of%20maritime%20boundaries_Eng.pdf
 https://www.jstor.org/stable/2644362?seq=1#metadata_info_tab_contents
 https://mainelaw.maine.edu/faculty/wp-content/uploads/sites/4/rogoff-mlr-34.pdf
 https://link.springer.com/article/10.1007/s40901-016-0027-2
https://www.un.org/Depts/los/nippon/unnff_programme_home/fellows_pages/
fellows_papers/dundua_0607_georgia.pdf
 http://southasiajournal.net/de-limitation-of-the-bangladesh-myanmar-maritime-
border/
 https://www.cambridge.org/core/journals/american-journal-of-international-law/
article/delimitation-of-the-maritime-boundary-in-the-bay-of-bengal-
bangladeshmyanmar/E0CF8A8B361644CDB36D52D17134FFD9

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 https://www.researchgate.net/publication/
233506975_The_Problem_of_Delimitation_of_Bangladesh's_Maritime_Boundari
es_with_India_and_Myanmar_Prospects_for_a_Solution
 https://amti.csis.org/the-bangladeshmyanmar-maritime-dispute-lessons-for-
peaceful-resolution/
 https://journals.sagepub.com/doi/full/10.1177/186810341203100304

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