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Pranay Kotasthane: The lure of legalising
bilateral disputes
The Permanent Court of Arbitration verdict on the India-Bangladesh maritime dispute, which
largely upholds the Bangladeshi claim, has important lessons for India's Saarc policy
Pranay Kotasthane July 22, 2014 Last Updated at 21:44 IST
Indo-Bangladesh bilateral relations have always been seen through the
prism of their 4,000-odd-kilometre land frontier - the largest that India
shares with any other country. Little known, however, is the fact that the
two countries have been involved in a long-standing dispute over their
sea borders as well. This dispute has its origins in 1947 when Partition
resulted in an ambiguous demarcation of the maritime borders. The issue
recently gained international prominence when Bangladesh took it to the
Permanent Court of Arbitration (PCA) authorised under the United
Nations Convention on Law of Sea in 2009. India accepted the tribunal's
authority and pursued its case in the PCA for over five years. The tribunal's verdict was delivered on July 7,
2014, giving shape to a new sea border between the two nations.
The PCA verdict has been hailed as a major victory in Bangladesh. Though not agreeing with Bangladesh's
claims in their entirety, the verdict has confirmed its suzerainty over four-fifths of the disputed Exclusive
Economic Zone (EEZ). One Bangladeshi official also suggested that this verdict is most welcome since its
terms are more favourable than any bilateral solution that could have potentially been agreed upon. In
contrast, for India, this verdict means that commercial activities such as fishing and oil exploration in the
hitherto disputed region will be treated as violating Bangladesh's territorial integrity.
Specifics of this dispute apart, the emerging big picture is that this verdict might trigger a trend of
internationalising bilateral disputes through legal means, sidelining mutual bipartite negotiations. Bangladesh's
second straight success through the legal route (it won its case against Myanmar as well) is bound to
encourage other countries to favour this mechanism, particularly when the other disputant is a regional
powerhouse like India. And this is where India needs to reassess its stand on bilateral negotiations vis--vis
legal solutions.
From an Indian perspective, this issue offers three major takeaways that should guide India's dispute
resolution strategy with its immediate neighbours.
First, the verdict confirms that international jurisdiction of boundary disputes is essentially arbitrary, both in
theory and in application. For example, maritime disputes are resolved based on theoretical concepts of
equidistance and equitability.
The equidistance principle, per se, is straightforward. The EEZ is divided according to a median line, which is
at the same distance from the shores of the neighbouring countries.
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On the other hand, the equitability principle merely states that the boundary be drawn in a manner that avoids
an "inequitable" result.
The PCA and other such tribunals in some cases have applied the equidistance principle, and on some
occasions upheld the equitable principle. In this particular case between India and Bangladesh, a third way
was invented by applying both the principles simultaneously - the verdict is based on the equidistance
principle with an "adjustment" to compensate for inequity. In the process, the tribunal has also created an
anomalous grey area - that falls within Bangladesh's delimited area but where the sovereign rights for
economic activities rest with India.
Thus, a legal resolution of such disputes has a veneer of objectivity but beneath the surface, it is nothing but
illogical. It should be amply clear that accepting the settlement of such disputes through the legal route is like
throwing dice to decide - the only criterion is good luck or the lack of it.
Second, in spite of its multiple follies, the legal route is excellent for achieving closure on long-standing,
unimportant yet prickly bilateral issues. All said and done, the PCA was able to give a binding verdict in a
matter of five years to resolve a dispute that has lingered for over 60 years. With the verdict coming out, the
fishing communities and oil exploration agencies from both the countries can restart their operations with
confidence in the newly delimited Bay of Bengal.
What this proves is that the less important yet sensitive issues that are unlikely to achieve political consensus
internally are perfectly suited for being resolved through international tribunals. Once the tribunal gives its
verdict, however arbitrary it may be, the blame shifts away from the national political establishment, shielding
it from intense political criticism.
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Third, India should be careful in selecting the bilateral issues that can be decided legally. The most critical
issues must be resolved through bilateral negotiations. Then, from the less important ones, a few issues can be
agreed upon for litigation. For example, in the case of India-Bangladesh relations, India's greatest interest is
getting free land transit to its difficult to access north-east region through Bangladesh. In return, Bangladesh's
greatest interest is a favourable resolution to the water-sharing dispute. Another important issue for India is
the elimination of Islamist terrorism emanating from Bangladeshi soil.
Apart from these three issues, all the others are merely bargaining chips on the negotiation table. In this
situation, a resolution through international tribunals for some of these less important disputes would be the
most efficient solution. India can follow this model of "purposeful litigation" with all its neighbours.
In essence, the Modi government has shown early signs of ushering the South Asian Association for Regional
Cooperation or Saarc nations into a new era of co-operation and engagement. With such an aim to pursue,
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India would do well to utilise its limited diplomatic capacities for resolving the ultra-critical issues bilaterally
rather than devoting time and collective energies to the throw-of-the-dice legal resolutions.
The writer is a geopolitical analyst with the Takshashila Institution, an independent policy think tank