399 / 536
385
CYIL 7 ȍ2016Ȏ
THE BAY OF BENGAL MARITIME ARBITRATION
solution
in this particular situation,
because a cut-off effect has been produced, was
acknowledged by the tribunal.
42
Hence, the tribunal concluded that the provisional
equidistance line must be altered to satisfy equity. The decision to delimit an altered
equidistance line was taken for all maritime spaces. The line finally drawn was of
177° 30´00 azimuth.
43
With this, the third stage of the equidistance method arrives, the disproportionality
test. The object of this test is to assess if the line is equitable in terms of proportionality.
The ratio of the relevant coasts of the countries was established to be 1: 1.92
(Bangladesh: India). The ratio of the relevant area allocated was held to be 1:2.81.
This did not amount to gross disproportionality, as a result the delimitation line
passed its final test.
44
At the very end, the tribunal faced another quandary – the grey area.
45
The
delimitation led to the formation of a small area wherein both countries have a legal
claim on. This area falls under India’s 200 nm limit as well as Bangladesh’s claim before
the CLCS for continental shelf beyond 200 nm. The tribunal concluded that the EEZ
rights or the rights on the superajacent waters of that area will lie with India and the
continental shelf right or rights over the seabed and the subsoil will lie with Bangladesh.
46
Most of the decisions were unanimous; except Dr. PS Rao’s dissenting opinion.
47
He states that the final delimitation line is closer to the line proposed by Bangladesh
than the provisional equidistance line initially drawn. His other dissent was in
relation to the grey area. He believes that such an arrangement is difficult to execute
and can lead to conflicts on resource-sharing in the future.
Though India’s method was chosen, the line eventually drawn was in favour of
Bangladesh. The line increased the area allotted to Bangladesh by 19,467 sq. Km.
48
Thus, it can be said that Bangladesh won this dispute.
5. Commentary
UNCLOS is famous for its equity based judgements. Equity here does favour
Bangladesh – it is a small country with a large population, necessitating the availability
of more resources. However, it can be debated if, from a legal perspective, a tribunal
altering a line in such a manner tantamounts to the reinforcement of subjectivity in
delimitation of maritime boundaries.
49
There is lack of sufficient explanation as to
42
Ibid
., 408.
43
Ibid
., 478.
44
Ibid
., 495-497.
45
Ibid
., note 11, 464.
46
The Award, 503-506.
47
The Award
,
(Concurring and Dissenting Opinion by P. S. Rao) 2014.
48
The Award, Appendix, 36.
49
Dispute Concerning Delimitation of the Maritime Boundary between Bangladesh and Myanmar in the Bay
of Bengal (Bangladesh/Myanmar)
, (Separate opinion of Judge Cot), 8.