Bangladesh Defending its Maritime Rights

Paul Reichler “is one of the world’s most respected and experienced practitioners of Public International Law, specializing for more than 25 years in the representation of Sovereign States in disputes with other States, and in disputes with foreign investors. He belongs to a select group of elite lawyers with extensive experience litigating on behalf of Sovereign States before the International Court of Justice in The Hague, and the International Tribunal on the Law of the Sea in Hamburg,” (Chambers Global 2010).

Among many other clients and cases, he was Counsel and Advocate for Nicaragua in the historic case of Nicaragua v. United States of America (1984-1986), regarding the illegal use of force in international relations, and for Uruguay in the landmark case of Argentina v. Uruguay (2006-2010), concerning international environmental protection and sustainable development.

He has particular experience representing and advising Sovereign States in land and maritime boundary disputes with neighboring States, including Bangladesh in its maritime delimitation case against Myanmar before the International Tribunal on the Law of the Sea (2009-present); and Bangladesh against India (2009-present).

Bangladesh can rejoice at the legal victory it won over Myanmar, securing 200 nautical miles of coastal territory in its exclusive economic zone. Reaction from Myanmar is yet difficult to gauge given the country’s secrecy in information under the military juntas.

Initial reports are however not discrediting a military response as a choice of last resort. In the past one decade Myanmar has expanded its defense resources and is ready to be tested in battle.

It was reported that Myanmar has massed its soldiers along the Tumbru and Ghundum border opposite Naikkongchhari upazila in Bangladesh. An estimated 2000 soldiers are said to be in that area of tension. Myanmar has already brought together nearly five battalions of soldiers in Unciprang, Dhekibonia and Mehdai areas near Bangladesh border. Myanmar has also initiated naval exercises with Vietnam using its two destroyers. The reading however does not paint an angry Burmese community ready to pounce on its neighbor. At least not yet.

On India, Bangladesh has not forcefully lobbied as effectively as it did with Myanmar. The president of the International Tribunal for the Law of the Sea (ITLOS), Judge Jose Luis Jesus, has appointed three arbitrators for an arbitral tribunal to resolve the maritime boundary dispute between Bangladesh and India. On 13 December 2009, Bangladesh approached the president of ITLOS to appoint an arbitral tribunal under article 3 of Annex VII as part of the dispute resolution clause of the 1982 UN Convention on the Law of the Sea.

The three members of the tribunal were chosen on 12 February 2010, but a press release was not given by ITLOS until 8 March 2010, possibly to allow both Bangladesh and India to appoint their ad hoc members. The five-member arbitral tirbunal with include Judges Rudinger Wolfrum (Germany) as president, Tullio Treves (Italy) and Ivan Shearer (Australia). Two additional members of the tribunal have been nominated by the two parties with Bangladesh chosing the international jurist Professor Vaughan Lowe and India chosing P. Sreenivasa Rao, a former legal advisor to the ministry of external affairs.

Although ITLOS has clearly played a role in constituting the arbitral tribunal between Bangladesh and India, the arbitral tribunal itself will be an independent judicial body. The timescale for pleadings and hearings has not yet been set but reports suggest that both sides have pressed for a speedy resolution. Bangladesh had also approached ITLOS to resolve its maritime boundary dispute with neighbouring Myanmar and a timetable was set for pleadings in 2010 and 2011.

Bangladesh government remarked that it wanted a “bi-lateral” solution to the maritime issue when the matter had reached  multi-lateral institution for arbitration. It’s an example of asymmetric negotiation between a superpower and a low-mid income developing country. Assuming that once again Bangladesh receives a favorable decision against India will it have the means and resources to enforce the writ against the will of its biggest neighbor?

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