Bangladesh Government has rightly decided to settle maritime boundary disputes through arbitration under the 1982 United nations Convention on Law of the Sea (UNCLOS). The dispute actually existed since 1974 when Bangladesh as the first country of the region started deep water exploration for petroleum engaging 6 IOCs in 8 exploration blocks. India registered protest. After the murder of the country’s founding father Bangabandhu Sheikh Mujibur Rahman in August 1975 IOCs gradually left Bangladesh and no successive governments till the last care taker government took any genuine initiative to explore and exploit country’s vast resources in the Bay of Bengal. Our next door neighbour exploited the situation and through several rounds of v blocks biddings engaged exploration companies in their territorial water and also in several blocks adjacent to Bangladesh maritime boundary. Bangladesh never even formally lodged any protest though some of the exploration blocks allegedly encroached Bangladesh territory.

In the wake of serious energy crisis triggered by fuel supply crisis for power generation BNP-Jamat led coalition government at the last stage of its tenure in 2005 initiated actions for updating PSC for engaging IOCs for deep water explorations in the bay of Bengal . Engr Mahmudur Rahman while taking over as Energy Advisor to PM Khaleda Zia announced it as one of his 5 priorities. But for reasons best known to him he could not complete approval of draft PSC or initiate actions for block bidding at his time. Mahmud off course made protest against India’s aggressive exploration campaign in disputed areas.

Bangladesh has not only delayed in recommencing deep water exploration but also did very little survey of maritime boundary or its resources for three and half decades. If Bangladesh could carry out extensive survey of martime boundary and its resources ir t could be in a much better stead in dealing with disputes now.  Bangladesh inactions have put it in serious disadvantaged position in matters of authentic data and information while negotiating with neighbours regarding maritime boundary disputes.

Bangladesh should have taken appropriate initiative for deep water exploration in late nineties of last decade following Shell –Cairn discovery of Shangu Offshore Gas fields. But Governments since 1998-2005 hibernated till it dawned on Engr Mahmudur Rahman the Energy Advisor to 4 party alliance government Prime Minister to initiate deep water drilling activity. He was the first senior government representative in recent times to voice against unilateral actions of India in the bay of Bengal in disputed areas. He announced commence deep water exploration would be one of his priorities. But whatever smart he might be he failed to complete draft PSC formulation and approval process. Alliance Government in 5 years from 2002-06 virtually did nothing to carry our survey in offshore or engage with neighbours to settle maritime boundary dispute.

Care taker government started at where it was left by alliance government. CTG completed drafting offshore PSC document by practising line professionals and after vetting by eminent energy lawyers duly approved and tendered. Bangladesh offshore was divided into 23 blocks. India and Myanmar registered protests as soon as Bangladesh let out tender. A section of civil society however started dancing to the tune of foreign masters.

However, Petrobangla arranged road show at Dhaka attracted huge intending bidders. But persistent Indian and Myanmar actions discouraged major IOCs. Also bid submission time coincided with massive offshore drilling activities elsewhere in the wake of world wide oil crunch. Some potential bidders requested bid submission date line. But PB regretted which was not a smart decision.PB, EMRD and Foreign mission should have encouraged IOCs to negate the negative diplomacy of neighbours.

Nevertheless some bids were received for some blocks. Major IOCs other than US Giant Conoco Philips stayed away. After extensive evaluation by properly constituted committee two bidders were found eligible for some blocks. The recommendations for award of PSC were duly made for approval. But conspicuously some identified Bangladeshi academicians’ continued agitation against PSC award. They misconstrued Bangladesh government belated offshore exploration efforts as a ploy to export country’s resources. Their actions confused decision makers and strengthened the cause of our hostile neighbours. Care taker government thought it wise to leave decision making to elected government.

Care taker government however took appreciable initiative to settle maritime boundary disputes thorough discussions with India and Myanmar. Very little could be achieved but the attitude of neighbours could be assessed. During care taker time government had to move naval vessels to intercept Myanmar intrusion to Bangladesh territory for exploration. Indians also played similar tricks.

India and Myanmar submittied their claims on martime boundary in the Bay of Bengal within the date line set for them. In their submissions they claimed almost entire Bangladesh offshore. Bangladesh has time till 2011 to make its submission.

Awami League led Mahajote government right from the start of their term remained positively focussed for exploring and exploiting country’s resources to create long term energy security. Foreign ministry continued efforts to settle disputes through discussions and Energy Ministry further scrutinised Offshore bidding matter. Finally Government decided to award PSC for exploration at block 10 & 11 to US Based Conocco Phillips and block 5 Irish Company Tullow.  Petrobangla invited them for PSC negotiation. They arrived and started talking to PB. But India and Myanmar requested them not to proceed with works. In this situation Bangladesh had very little choice but to seek arbitration.

Bangladesh submitted the notifications of arbitration. The PSC deal-signing negotiations for block 5 with Irish Company Tullow and for blocks 5& 10 with US Company Conoco Philips are now underway. The Indian High Commissioner and the Myanmar Ambassador were separately summoned to the Foreign Ministry and handed the notification. The two countries were also asked not to cross Bangladesh's maritime boundary
India and Myanmar sent objections to ConocoPhillips asking the company not to explore the gas blocks 10 and 11, claiming that some parts of the blocks belong to their respective territorial waters.
Bangladesh has appointed renowned British jurist Vaughn Lowe QC as its arbitrator to plead the country's case at the arbitration.
The Foreign Ministry released a statement by the foreign secretary on the government's decision to go for arbitration. It said, "With a view to preserving our national wealth and sovereign rights in the Bay of Bengal, the government has decided to submit the maritime boundary dispute to compulsory arbitration under the 1982 United Nations Convention on the Law of the Sea,"
Bangladesh would however remain committed to the on-going negotiations with the neighbours and wished to reach a fair agreement.

Bangladesh Foreign ministry statement read,
" This initiated the arbitration before a tribunal at the United Nations to be constituted in accordance with the principles and rules of the UN Convention on the Law of the Sea (UNCLOS). Bangladesh, India and Myanmar are parties to this Convention.

Bangladesh will need to carry out extensive homeworks to prepare strong case to defend its right in arbitration. We must remember both India and Myanmar have carried out extensive surveys in Bay of Bengal. Bangladesh has no time to waste. We must engage professional survey companies to conduct extensive surveys get all information from US satellite images and engage all Bangladeshi experts RB and NRB to produce authentic documents for arbitration for claims to UN by 2011.In the present situation Bangladesh government has taken the best decision.

For our readers let us refresh our knowledge of UNCLOs.

United Nations Convention on Law of the Sea (UNCLOS), 1982

The United Nations Convention on the Law of the Sea (UNCLOS), also called the Law of the Sea Convention or the Law of the Sea treaty, is the international agreement that resulted from the third United Nations Conference on the Law of the Sea (UNCLOS III), which took place from 1973 through 1982. The Law of the Sea Convention defines the rights and responsibilities of nations in their use of the world's oceans, establishing guidelines for businesses, the environment, and the management of marine natural resources. The Convention, concluded in 1982, replaced four 1958 treaties. UNCLOS came into force in 1994; a year after Guyana became the 60th state to sign the treaty. To date, 158 countries and the European Community have joined in the Convention. However, it is now regarded as a codification of the customary international law on the issue.

While the Secretary General of the United Nations receives instruments of ratification and accession and the UN provides support for meetings of states party to the Convention, the UN has no direct operational role in the implementation of the Convention. There is, however, a role played by organizations such as the International Maritime Organization, the International Whaling Commission, and the International Seabed Authority (the latter being established by the UN Convention).

UNCLOS III

Sea areas in international rights

The issue of varying claims of territorial waters was raised in the UN in 1967 by Arvid Pardo, of Malta, and in 1973 the Third United Nations Conference on the Law of the Sea was convened in New York. In an attempt to reduce the possibility of groups of nation-states dominating the negotiations, the conference used a consensus process rather than majority vote. With more than 160 nations participating, the conference lasted until 1982. The resulting convention came into force on November 16, 1994, one year after the sixtieth state, Guyana, ratified the treaty.

The convention introduced a number of provisions. The most significant issues covered were setting limits, navigation, archipelagic status and transit regimes, exclusive economic zones (EEZs), continental shelf jurisdiction, deep seabed mining, the exploitation regime, protection of the marine environment, scientific research, and settlement of disputes.

The convention set the limit of various areas, measured from a carefully defined baseline. (Normally, a sea baseline follows the low-water line, but when the coastline is deeply indented, has fringing islands or is highly unstable, straight baselines may be used.) The areas are as follows:

Internal waters 

Covers all water and waterways on the landward side of the baseline. The coastal state is free to set laws, regulate use, and use any resource. Foreign vessels have no right of passage within internal waters.

Territorial waters 

Out to 12 nautical miles from the baseline, the coastal state is free to set laws, regulate use, and use any resource. Vessels were given the right of innocent passage through any territorial waters, with strategic straits allowing the passage of military craft as transit passage, in that naval vessels are allowed to maintain postures that would be illegal in territorial waters. "Innocent passage" is defined by the convention as passing through waters in an expeditious and continuous manner, which is not “prejudicial to the peace, good order or the security” of the coastal state. Fishing, polluting, weapons practice, and spying are not “innocent", and submarines and other underwater vehicles are required to navigate on the surface and to show their flag. Nations can also temporarily suspend innocent passage in specific areas of their territorial seas, if doing so is essential for the protection of its security.

Archipelagic waters 

The convention set the definition of Archipelagic States in Part IV, which also defines how the state can draw its territorial borders. A baseline is drawn between the outermost points of the outermost islands, subject to these points being sufficiently close to one another. All waters inside this baseline are designated Archipelagic Waters. The state has full sovereignty over these waters (like internal waters), but foreign vessels have right of innocent passage through archipelagic waters (like territorial waters).

Contiguous zone 

Beyond the 12 nautical mile limit there was a further 12 nautical miles or 24 nautical miles from the territorial sea baselines limit, the contiguous zone, in which a state could continue to enforce laws in four specific areas: pollution, taxation, customs, and immigration.

Exclusive economic zones (EEZs) 

Extends from the edge of the territorial sea out to 200 nautical miles from the baseline. Within this area, the coastal nation has sole exploitation rights over all natural resources. In casual use, the term may include the territorial sea and even the continental shelf. The EEZs were introduced to halt the increasingly heated clashes over fishing rights, although oil was also becoming important. The success of an offshore oil platform in the Gulf of Mexico in 1947 was soon repeated elsewhere in the world, and by 1970 it was technically feasible to operate in waters 4000 metres deep. Foreign nations have the freedom of navigation and overflight, subject to the regulation of the coastal states. Foreign states may also lay submarine pipes and cables.

Continental shelf 

The continental shelf is defined as the natural prolongation of the land territory to the continental margin’s outer edge, or 200 nautical miles from the coastal state’s baseline, whichever is greater. State’s continental shelf may exceed 200 nautical miles until the natural prolongation ends. However, it may never exceed 350 nautical miles from the baseline; or it may never exceed 100 nautical miles beyond the 2,500 meter isobath (the line connecting the depth of 2,500 meters). Coastal states have the right to harvest mineral and non-living material in the subsoil of its continental shelf, to the exclusion of others. Coastal states also have exclusive control over living resources "attached" to the continental shelf, but not to creatures living in the water column beyond the exclusive economic zone.

Aside from its provisions defining ocean boundaries, the convention establishes general obligations for safeguarding the marine environment and protecting freedom of scientific research on the high seas, and also creates an innovative legal regime for controlling mineral resource exploitation in deep seabed areas beyond national jurisdiction, through an International Seabed Authority and the Common heritage of mankind principle.

Landlocked states are given a right of access to and from the sea, without taxation of traffic through transit states.

International Tribunal for the Law of the Sea

The International Tribunal for the Law of the Sea (ITLOS) is an intergovernmental organization created by the mandate of the Third United Nations Conference on the Law of the Sea. It was established by the United Nations Convention on the Law of the Sea, signed at Montego Bay, Jamaica, on December 10, 1982. The Convention entered into force on November 16, 1994, and established an international framework for law over "all ocean space, its uses and resources". The Convention also established the International Seabed Authority, with responsibility for the regulation of seabed mining beyond the limits of national jurisdiction that is beyond the limits of the territorial sea, the contiguous zone and the continental shelf.

The Tribunal has the power to settle disputes between member states (there are currently 155 - 154 and the European Community).

Composition

According to its founding statute, the Tribunal has a set of 21 serving judges from a variety of member states in three primary bodies:

• The Chamber of Summary Procedure
• The Chamber for Fisheries Disputes
• The Chamber for Marine Environment Disputes

In addition, at the request of Chile and the European Community, the Tribunal has also formed a special chamber to deal with the case concerning the Conservation and Sustainable Exploitation of Swordfish Stocks in the South-Eastern Pacific Ocean (Chile/European Community).

International Tribunal for the Law of the Sea is seated in Hamburg, Germany.