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SOMA HEGDEKATTE
CYIL 7 ȍ2016Ȏ
4. The Bay of Bengal Maritime Boundary Arbitration
This historic verdict came almost five years after its initiation. The tribunal
consisted of five members, with Dr. Pemmaraju Sreenivasa Rao being appointed
by India and Bangladesh appointing Professor Vaughan Lowe QC. Judge Rüdiger
Wolfrum, Professor Ivan Shearer and Professor Tullio Treves completed the tribunal.
19
The hearings were held in December 2013 and the final verdict was given by July 2014.
The award is primarily divided into four parts: establishing the land boundary
terminus, delimitation of the territorial sea, delimitation within and beyond 200nm.
The first contention indirectly deals with the ownership of New Moore Island.
UNLCOS does not have a provision for deciding sovereignty of islands. But the
question of what is the flow of Haribhanga and the demarcation of this water boundary
can be adjudicated under UNCLOS. Hence what was asked to be adjudicated by
Bangladesh is the position of the land boundary terminus which divides the two
countries. If the main channel of Haribhanga flows east to the island, then the island
will belong to India, and if west, then to Bangladesh.
When a water body acts like the boundary between two countries, the Thalweg
doctrine or the mid channel principle is often used for delimitation. Thalweg is
defined as
the line of maximum depth along a river channel or lake
or in any coastal
channel.
20
That line is used as the water boundary between countries. In this case,
the question was what the mid channel of river Haribhanga was. This would help in
deciphering if the boundary was east to the island or west.
In 1947 the Bengal Boundary Commission was constituted to decide the boundary
line between India and East Pakistan (now Bangladesh). It was headed by Sir Cyril
Radcliffe. The award (known as the Radcliffe award) states that the boundary shall
be
‘the district boundary between 24 Parganas and Khulna till it reaches the Bay of
Bengal’.
21
This district boundary was constituted in 1925 by Notification No. 964
Jur, which was issued by the Governor of Bengal.
22
The main point of contention revolved around the appropriate interpretation of
the award. Two questions arose:
– What would be the right analysis of the sentence ‘the main channel … of
the rivers Ichhamati and Kalindi,
Raimangal and Haribhanga
till it meets the
Bay’ as given in the aforesaid notification
23
– If the sentence meant the main
channels of both the rivers conjoined and met the Bay together.
19
The Award, 4-6.
20
International Hydrographic Bureau
‘A manual on technical aspects on the United Nations convention
on the law of the sea-1982’
, (Monaco Special Publication No 51 March 2006)
<https://www.iho.int/iho_pubs/CB/C-51_Ed4-EN.pdf>, last accessed 1 May 2016.
21
The Award, 52.
22
Ibid
., 53.
23
Government of Bengal ,The Radcliffe award, Notification 964 Jur (24 January 1925).