397 / 536
383
CYIL 7 ȍ2016Ȏ
THE BAY OF BENGAL MARITIME ARBITRATION
– Was the water boundary meant to be fluid (subject to change) or fixed as on
the date of the award.
24
The agents for Bangladesh contended that the main channels of Raimangal
and Haribhanga do not conjoin and that there was no indication of the twinning
of the rivers.
25
The agents of India contented otherwise. The significance of these
contentions lies in the flow of Raimangal and Haribhanga. These rivers flow parallel
to each other until they reach the bay. If the award indicates that they conjoin at
a later stage, then the main channel of Haribhanga will move towards Raimangal –
which means the water border will be east to the island.
For evidence on the flow of the river, India primarily relied on the original Radcliffe
map, which showed the flow of the river to be east of the island.
26
Bangladesh, on the
other hand, relied on the British Admiralty chart 859.
27
Further, Bangladesh contended that the boundary is not subject to change post
the date on which the Radcliffe award was given,
28
while India contended that the
boundary was fluid and subject to change. Both parties relied on the arguments
advanced and verdict of the Bagge Award for this contention.
29
A crucial line of argument India relied on was the socio-economic impact of the
award if the flow of the river is adjudicated to be west of the island. Such a result
would effectively render India landlocked, as the water body in the bay will be
Bangladesh’s internal waters. This would hinder navigability and fishing activities in
that area for Indians.
30
The tribunal held that the rivers
do not conjoin
. Additionally, it held that the
wordings of the Bagge award were clear: the demarcation of the boundary is as it was
on the day of the Radcliffe award
and was not meant to be flexible in nature.
31
Nevertheless, the tribunal upheld the authenticity of the Radcliffe map and
rejected the usage of any other map. The primary reason for the same is the fact that
Sir Radcliffe himself relied on the map.
32
Thus, even though it was held that the two
rivers do not conjoin, the main channel of Haribhanga was seen to flow east of the
island, favouring India. What also gave India entitlement on the island is the fact
that during the site visit it was evident that the western channel of Haribhanga was
24
Ibid
., 91.
25
Ibid
., 93.
26
Ibid
., 114.
27
Ibid
., 128.
28
Ibid
., 99-100.
29
Case concerning Boundary disputes between India and Pakistan relating to the interpretation of the report of the
Bengal Boundary Commission
, 12 and 13 August 1947, Decision of 26 January 1950, XX UNIRAA 3.
30
The Award, Hearing Transcripts, p. 588: 3-10.
31
The Award, 158, 163, 169, 173.
32
The Award, 184.