398 / 536
384
SOMA HEGDEKATTE
CYIL 7 ȍ2016Ȏ
not navigable, while the eastern channel was.
33
This substantiated India’s argument
on being landlocked.
The delimitation of the territorial seas, exclusive economic zones and continental
shelf within and beyond 200 nm was done separately. However, the basic arguments
of both the countries and the crux of the tribunal’s verdict on all issues remained
the same. With regard to the delimitation of continental shelf beyond 200 nm,
the tribunal made it clear that the verdict of this award shall not prejudice the
recommendations of CLCS on the outer limits claimed by the countries.
34
However, before the delimitation could begin, the relevant coasts had to be
ascertained. Relevant coasts have to be ascertained to decide cases of overlapping
claims and for the disproportionality test. After resolving a disagreement on the
length of India’s relevant coast, the tribunal ascertained India’s relevant coast to be
803.7 km (including the coasts of Andaman and Nicobar Islands) and Bangladesh’s
as 418.6 km. The relevant area was estimated to be 406,833 square km. This area
includes the submission made by the parties to CLCS for continental shelf rights
beyond 200 nm.
35
Bangladesh’s main contention throughout remained that the angle bisector
method should be used instead of the equidistance method because this was a case
of ‘special circumstance’. The special circumstances here were ‘coastal instability’
and the concavity of Bangladesh’s coasts.
36
Quoting Professor Charney’s principle of
‘maximum reach’,
37
Bangladesh asserted that it is enclaved between the area entitled
by Myanmar and India and its concave coast leaves it with lesser entitlement than
permitted under international law.
38
The provisional equidistance line, it was asserted,
would thereby lead to an inequitable solution. Instead of the equidistance method,
Bangladesh wanted a 180 degree perpendicular delimitation line.
39
The tribunal rejected Bangladesh’s argument on coastal instability as the tribunal
cannot take into account future changes.
40
It also rejected the applicability of the
principle of maximum reach in this case. The tribunal further opined that concavity
on its own does not amount to ‘special circumstance’. It thus upheld the equidistance
method.
41
Nevertheless, the fact that Bangladesh’s concavity leads to an inequitable
33
KALDUNSKI MARCIN, ‘A commentary on Maritime Boundary Arbitration between Bangladesh
and India concerning the Bay of Bengal’ (2015) 28(4) Leiden Journal of International Law 799.
34
The Award, 76, 80-83.
35
Ibid
., 286, 305-310.
36
The Award , (Memorial of Bangladesh), 6.63, 6.120.
37
J. I. CHARNEY, ‘Progress in International Maritime Boundary Delimitation Law’, [1994] 88 (2)
American Journal of International Law 227.
38
Also argued in
Delimitation of the maritime boundary between Guinea and Guinea-Bissau, Award of
14 February 1985
, RIAA, Vol. XIX 149.
39
The Award, 425.
40
Ibid
., 399.
41
Ibid.,
396, 402.