M Khurshed Alam

SUCCESSIVE governments have neglected delimitation of maritime boundary, leaving Bangladesh in a disadvantageous position insofar as raising demands for equitable resolution of such disputes are concerned, says M Khurshed Alam, additional secretary in charge of the UNCLOS wing of the foreign ministry.
‘We would have been in a more advantageous position if we had demarcated our maritime boundaries in the 1980s when the states were not as involved in tough competition over exploration of oil, gas and other natural resources as they are today,’ he said in an exclusive interview with New Age on Tuesday. ‘We could have resolved the maritime disputes with Myanmar at least.’
Delay in procurement of ships well-equipped for maritime survey and ratification of the United Nations Convention on the Law of the Sea, and failure to strengthen the maritime cell at the foreign ministry are, among others, sign of neglect by successive governments, he said.
Alam said, in some cases, a section of government officials did not even bother to ask for proper authorisation from their counterparts before signing bilateral documents.
Excerpts:

A former chief of naval staff, rear admiral (retired) MH Khan, said the Bangladesh Navy had asked successive governments to delimit the maritime boundary after the settlement of land boundary with India in 1974 through the signing of a land boundary agreement, widely known as the Mujib-Indira agreement. The navy claimed that it had requested the governments to procure a survey ship so it could complete necessary surveys in this regard. However, the policymakers of the successive governments, it said, did not respond to such calls. You have also made almost identical statements on different occasions. What do you think made the governments ignore the issue?
Most people then considered Bangladesh as a riverine country. The sea was absent in the thought process. Most of us considered the sea merely as bathing places at Cox’s Bazar and Kuakata.
A few people did understand the importance of maritime zones at that time. The government, too, passed a law in parliament [the Territorial and Maritime Zones Act 1974]. As a seaman, I thought then that the law would have a far-reaching impact.

You said ‘it was late’ when the government decided to settle maritime boundary disputes with India and Myanmar. Did this delay compromise Bangladesh’s interests in the maritime zone?
There was not much writing in newspapers in 1974 and the subsequent years. I started writing in 1982. As a serving officer, I had to maintain certain limits. Had there been more writing in newspapers and discussions in the intelligentsia about our problems on maritime zones, the policymakers would have been much aware.
Yes, some university teachers may have studied the theoretical aspects of international maritime laws.
I think a person needs nautical knowledge if he or she wants to apply theoretical knowledge. Knowledge on drawing lines on seawaters is also essential. But most of them, who had theoretical knowledge, did not have nautical knowledge. Things have not changed much.

Bangladesh signed the UN Convention on Law of the Sea on December 10, 1982. But it delayed the ratification of the law until the middle of 2001. What are the implications of the delay?
Signing and ratification of a law promise some benefits to a member country. In 1987 India sent two warships to our coasts. But we could not go for legal remedy as we had not ratified the convention until then.
After ratification of the law in the last cabinet meeting and the last parliament session during the Awami League government in 2001, we have opened the avenue for legal remedy on disputes concerning maritime boundaries.
In addition to benefits, signing and ratification of a law also impose some responsibilities on a member country. We need to live up to these responsibilities.

Has Bangladesh been in a disadvantageous position for the delays in terms of establishing its legal rights on the maritime zones as well as resources in and under the sea?
Certainly. India has settled its maritime boundaries with Sri Lanka, Maldives, Indonesia, Thailand and Myanmar.
We would have been in a more advantageous position if we had demarcated our maritime boundaries in the 1980s when the states were not as involved in tough competition over exploration of oil, gas and other natural resources as they are today. We could have resolved the maritime disputes with Myanmar at least. It is also true that our experience in bilateral negotiations with some other countries is not good.

Has the Territorial and Maritime Zones Act, passed by parliament in 1974, had any significance in the ITLOS proceedings in case of India?
Generally, local laws are not taken in consideration by the international courts. The Territorial and Maritime Zones Act 1974 asserts Bangladesh’s right to 12-nautical mile territorial sea, 200-nautical mile exclusive economic zones and the continental shelf in the Bay of Bengal. This law has helped us prepare our presentation for the case.

Bangladesh has started allocating gas blocks in the Bay of Bengal since 1974. It has awarded blocks in 2008 too. Has awarding blocks carried any significance in the ITLOS proceedings in Bangladesh’s cases with India and Myanmar?
ITLOS only considers coastal geographical conditions of member states in a case. It does not consider humanitarian, economic and other aspects in a case.
In 2008 we awarded blocks within 30 nautical miles, 67 nautical miles and 122 nautical miles of Myanmar coasts. You cannot lawfully sell or lease out a piece of land before establishing your legal entitlement.
It was a gross mistake that displeased Myanmar.

In the case with Myanmar, Bangladesh initially chose Oxford University Professor Vaughan Lowe as judge ad hoc for ITLOS. But he informed the court that ‘he was not in a position to act as a judge ad hoc in the case’. Have you not consulted Mr Lowe before referring his name to the tribunal?
Certainly, we consulted him. He initially agreed.

Why did he refuse to taking the responsibility?
Mr Lowe withdrew himself from the tribunal for technical reasons. He informed us and the tribunal later that he is a counsel for Pakistan in the case against India under ITLOS. He thought that there might be conflicts of interests as Bangladesh is also involved in a separate case against India under ITLOS.

Bangladesh, according to the ITLOS document, participated in 14 rounds of talks as part of negotiations on delimitation of the maritime boundary with Myanmar from 1974 to 2010. How do you assess these talks?
There were certain consistencies in most of the talks. In the agreed minutes of the talks, there was a mention of concavity of Bangladesh coasts and the necessity for an equitable solution to the dispute between the two countries.
The Myanmar authorities almost agreed in 2010 to sign an agreement to settle maritime boundary. But they suddenly backtracked for ‘unknown’ reasons.

Can you think of some reasons?
We had kept open simultaneous options for bilateral negotiation and a possible settlement at ITLOS.
Myanmar was in difficulty to hire counsel for ITLOS as they were under economic sanction at that time. They were, obviously, looking for better alternatives, if there were any.
A neighbouring country extended legal support to Myanmar in the case against Bangladesh.

There were two agreed minutes between Bangladesh and Myanmar, one signed in 1974 and the other in 2008, on maritime boundary disputes. Myanmar, according to the proceedings of ITLOS, did not consider these two documents legally binding. The tribunal accepted Myanmar’s position. How do you assess these agreed minutes?
The points that the delegations of the two countries agreed in 1974 and 2008 were, more or less, perfect. Myanmar refused to accept these two documents on two grounds. First, they said they were seeking a comprehensive agreement on maritime boundary, and second, so far as I understand, the main technical reason was that the Myanmar officials who signed the agreed minutes had not been authorised to sign the documents in question.
The Bangladesh side should have asked for proper authorisation from its counterparts before signing the documents.

Has ITLOS moderately accepted the coordinates mentioned in the 1974 and the 2008 ‘agreed minuets’ to draw a provisional equidistance line on the sea to delimit boundary on the east of the St. Martin’s Island, although neither ITLOS nor Myanmar accepted the ‘minuets’ as ‘agreements’ in real terms.
Yes.

According to Article 174 of the ITLOS judgement, Bangladesh ‘restates’ that it ‘will continue to respect’ Myanmar’s ‘access’ to Bangladesh waters ‘in full of its legal obligation’. How can Bangladesh say that when the other party was not considering the 1974 and 2008 ‘agreed minutes’ ‘in force’?
We should allow ‘innocent passage’ under 1982 UNCLOS. We are, however, not for unimpeded passage as you cannot challenge a vehicle or a person if unimpeded passage is allowed.

Does South Talpatti, which India describes as a disputed area, bears any significance in delimiting maritime boundary?
Certainly. A piece of land, according to the UN Convention on Law of the Sea 1982, can be called island if it remains floated during the tide. An island definitely bears significance in delimiting boundary.
South Talpatti unfortunately does not remain floated during tide since 1989.

Myanmar mentioned South Talpatti Island in its presentation at ITLOS. Why did you not mention the island in Bangladesh’s presentations?
Maybe, they thought of making South Talpatti a possible base point between Bangladesh and India for drawing coastline. But finally they made Mandabaria, which is the last piece of land on Bangladesh side, a base point.
We did not mention South Talpatti for two reasons. First of all, it does not exist as an island according to international law under which we were seeking decision from the tribunal. Secondly, four rivers — Raimangal, Hariabhanga, Ichamati and Kalindi — have been carrying significance in settling borders between Bangladesh and India since 1947. India has said their south western coastal border with Bangladesh is yet to be delimitated.

Bangladesh ‘measured’ its entire coast by means of two straight lines. The combined length of these lines is, according to the ITLOS document, 421 kilometres. Which point of the land boundary terminus with India was Bangladesh’s base point to start the coastlines?
We started from Mandabaria Island in the Raimangal estuary.

Setting base points are necessary for drawing coastlines and provisional equidistance lines. But Bangladesh, according to the ITLOS judgement, did not formally set any base points including the Mandabaria Island. Myanmar has, however, formally set Mandabaria Island as base point between Bangladesh and India and the tribunal accepted it. Why have you not formally set base points?
It was a well-thought-of position knowing that if we had set base points then the court could directly opt for an equidistance line without considering Bangladesh’s geographical and other ‘relevant circumstances’, which were much more essential for an equitable solution for us.

Myanmar and India share the same set of counsels in their cases on setting maritime boundaries with Bangladesh. Myanmar submitted satellite images of Mandabaria Island to prove that the ‘area is quite stable’. Do you think Myanmar was getting technical support from India in the case against Bangladesh?
Maybe. I cannot comment beyond that.
 
Would you explain the geographical and ‘relevant circumstance’ in the case for Bangladesh that helped the country get an equitable solution?
Most maritime boundaries were set by drawing equidistance lines. We could be a sea-locked country within 130 nautical miles if our maritime boundaries were drawn through equidistance lines.
That’s why we presented three main geographical and geological features relevant for delimitation.
We did it knowing that the court may not accept all of the three features.
The first of these is the ‘concave shape of Bangladesh’s coastline’, extending from the land boundary terminus with India in the west to the land boundary terminus with Myanmar in the east. The Bangladesh coast is further marked by ‘a second concavity, which is a concavity with the overall concavity of its coastline’.
We presented before the court that the Bangladesh’s coast is a classic example of a concave coast. In the North Sea cases, Germany specifically invoked the geographical situation of Bangladesh (then East Pakistan) to illustrate the adverse cut-off effect of a concave coast on the equidistance line.
The second major geographical feature is St Martin’s Island, a significant coastal island within five nautical miles of the Bangladesh mainland.
The third major feature is the Bengal depositional system, which comprises ‘both the landmass of Bangladesh and its uninterrupted geological prolongation into and through the Bay of Bengal’.
The court gave serious consideration to the features of concavity and the position of St. Martin’s Islands for an equitable solution.

After drawing the provisional equidistance line and making necessary adjustment in the line keeping ‘relevant circumstances’ in consideration, the court measured if there were any ‘significant disproportion between the ratio of the respective coastal lengths and the ratio of relevant maritime areas allocated to each party’. Is there any significant disproportion?
A court generally makes decisions depending on laws. However, it measures ‘disproportion’, if there is any, only for its own satisfaction.
The court set that the length of the Bangladesh coast is 413 kilometres, while that of Myanmar is 587 square kilometres. The ratio of the length of the relevant coasts of the countries is 1:1.42 in favour of Myanmar.
The size of the area to be allocated to Bangladesh and Myanmar has been calculated to be approximately 283,471 square kilometres.
By ‘adjusting’ the equidistance line, the court allocated approximately 111,631 square kilometres of the relevant area to Bangladesh, and approximately 171,832 square kilometres to Myanmar. The ratio of allocated areas is approximately 1:1.54 in favour of Myanmar.
I think there is no major disproportion in the decision of the court.

Would you explain the court’s decision on the ‘grey area’ in the Bay of Bengal?
It is a unique decision of the court ‘in favour of Bangladesh’.
While placing the demand for Bangladesh’s access into the 200 nautical miles exclusive economic zones, it suddenly appeared that ‘our access’ to continental shelf was obstructed by ‘conflicts’ with the interests of Myanmar in a small area in the Bay of Bengal.
The court decided that Myanmar will exercise its rights on the ‘water’, while Bangladesh will get the seabed in that area in the Bengal. Bangladesh will get innocent passage over through the water. Our fishing boats will, however, not be able to fish in that area.

After completing survey, Bangladesh has filed its case with the UN Commission for Limits of the Continental Shelf (UNCLCS) in 2011 for establishing its legal entitlement on the continental shelf. Are we in a disadvantageous position as both Myanmar and India have filed their cases two to four years ahead of us?
Myanmar has already submitted its claim for the continental shelf in the Bay of Bengal. India deposited its partial submission. The UNCLS is yet to take their submission in consideration as Bangladesh has put forward its objection against their demands.
It would, however, have been better for us if we had made our submission after completing survey in the sea 3-4 years ago.

Bangladesh went to ITLOS in the case with Myanmar. Why Bangladesh preferred an arbitral tribunal for delimiting maritime boundary with India?
The member states, according to UNCLOS and the UNCLCS, require to agree to choose a court to settle disputes between or among them. Bangladesh requested India to come to ITLOS for settling disputes on Maritime boundary. But they did not come. They preferred for an arbitral tribunal at the Permanent Court of Arbitration under the 1982 law. The arbitral tribunal is based in The Hague.

The Indian high commissioner in Dhaka, Pankaj Sharan, said his country may pursue resumption of bilateral negotiations on maritime boundary disputes. How do you see the prospect and outcome of bilateral negotiation with India on delimitation of maritime boundary?
The foreign minister said we have gone to arbitral tribunal as there was no outcome from bilateral negotiation that continued for 38 years.

There are allegations that the government has neglected the local experts on maritime law. Is it true?
We have taken consultation from many of them through meetings. We also requested them to provide their suggestions in writing. But, it is regretful that none of them, except for former Bangladesh Navy chief MH Khan, provided us with a single page in black and white. Mr Khan sent his suggestion in two pages. We are grateful to him.

There are many examples whereby a country chose its own national as judge ad hoc. Eminent jury Dr Kamal Hossain was a judge in the case with ITLOS between Malaysia and Singapore. Bangladesh chose foreigners as judge ad hoc. Could Bangladesh not have chosen Dr Kamal Hossain as judge ad hoc in the cases on maritime boundaries?
I am not the appropriate authority to reply to this question.

Do you have anything else to say?
I request the persons who either work or write on maritime boundary issues to send us any suggestion in writing to deal with Bangladesh’s case with India. We would also accept if there is any document. The government would give appropriate credit for their contribution. The government would also pay if they require.

Do you have any regret on decisions and positions taken during the proceedings of the case with Myanmar?
No regret. I take full responsibility as every single piece of papers submitted before the court was submitted with my signature. Each and every submission was written in a fashion for equitable solution. We have attained the objective.