○ REFLECTION ON CONTEMPORARY DEVELOPMENTS IN

INTERNATIONAL LAW OF SEA:

BY
ROUNAK VIRMAN
VIVEK BED
MRADUL RASTOG
AMAN SINGH MAAN
:

 INTRODUCTION

○ Disputes-inevitable part of intl. relations, amon

disputes territory related ones are most complex.
○ They are the primary source of tension in inter-state relations, which are likely to lead
to armed conflicts or eventful wars if not settled amicably
○ However, States are required, under intl. law to settle their intl. disputes by peaceful
means and in conformity with the principles of justice and international law
○ Known to many as the constitution for the oceans, the 1982 UN Convention on the Law
of the Sea (UNCLOS) was considered as one of the most successful of the codifications
and progressive developments of international law made by the UN since WW II.

 UNCLOS

○ UNCLOS sets out an intl. legal order within which all activities in the oceans
and seas must be carried out. As a comprehensive legal framework for the
law of sea, the Convection elucidated the rights and obligations of all states,
including coastal, land-locked and geographically disadvantaged states and
other intl. actors in various functional maritime areas-the protection of
maritime environment, marine scientific research, activities in the area..as well
as a settlement of disputes mechanism applicable for difference that ma
aris durin the implementatio an interpretatio of Convention.
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 UNCLOS…

○ Part XV of the Convention, which is characterized by the “compulsory procedures

entailing binding decisions”, has made it unique among major law- making treaties,
and ‘one of an extremely small no. of global treaties that prescribe mandatory
jurisdiction for disputes arising from interpretation and application of its terms’
○ Generally speaking, UNCLOS has contributed remarkably to the strengthening of peace,
security, cooperation and friendly relations among all nations in conformity with the
principles of justice and equal rights as well as promoting economic and social
advancement of all peoples around the world.

 MARITIME BOUNDARY DISPUTES AND THE

LAW OF SEA

○ Regarded as main source of disputes in the law of sea, maritime boundary disputes, by
their nature, are broadly considered as those relating to the delimitations of the sea areas
over which the coastal states can exercise jurisdiction in conformity with intl. law in
general and law of sea in particular. (These disputes can be seen as an unavoidable
consequence of the extension of jurisdiction which has expanded in parallel with the
evolution of the law of sea).
○ Delimitation of sea areas always has an intl. aspect, although establishing the limits at sea
is a unilateral act of the coastal state, the validity of these limits depends upon other
states’ recognition and on intl. law.
 MARITIME ZONES: HISTORICAL EVOLUTION

○ Traditionally, the maritime zones over which coastal state sovereignty is exercised have
been grouped into three categories-internal waters, territorial sea, and the contiguous
zone.
○ Two conflicting trends of thought in the law of sea that emerged in the 17th century:
freedom of the sea (mare liberam-Hugo Grotius) and the dominion of sea (John Seldon-
who argued for the rights of states to extend their jurisdiction over the sea). Law of the
sea, therefore, has always lain in the middle, attempting to balance these conflicting
forces
○ However, since 17th century, the freedom of high seas doctrine prevailed. Consequently,
the national jurisdiction of the coastal state has been limited to a narrow belt of the sea
along a state’s coastline: territorial sea. ‘Cannon shot’ or 3 nautical mile rule, was widely
recognized as the limit of territorial sea.
.

 MARITIME ZONES: HISTORICAL

EVOLUTION…

○ 1930 Hague Conference for Codification of Intl. Law (under the auspices of LoNs-48 states). Failed
to reach agreement. Despite its failure, 1930 Hague Conference final recommendation requested
the Council for LoNs to invite the Governments to continue to examine the issue
○ Meanwhile, technological advancement in 20th century, esp. after WW II, transformed the
exploitation and exploration of offshore natural resources by the coastal states.
○ Though, first intl. agreement on the delimitation of the seabed area was concluded in 1942 bet. UK
(on behalf of Trinidad and Tobago and Venezuella relating to Gulf of Paria), proclamation made
by President Truman on 28 Aug. 1945, marked the birth of the new regime in the intl. law of sea:
the continental shelf. Following this, many states all over the world passed laws and regulations
unilaterally to assert their rights over the continental shelf and its resources.

 ILC’S WORK ON THE LAW OF SEA

○ From 1950 to 1956, the legal regime of the continental shelf was debated within the ILC and then
adopted at the First UN Conference on the Law of Sea (UNCLOS-I). Under 1958 Geneva
Convention on the Continental Shelf, the continental shelf was de ned. (Arts. 1 & 2
○ However, the tendency towards the extension of national jurisdiction over the seas continued to
increase, with some states, especially the Latin American states, claimed not only the continental
shelf but also the superjacent water. (Santiago Declaration, 1952)
○ Not until 1971 was the concept of an exclusive economic zone first introduced by Kenya at the
AALCC held in Lagos, Nigeria. With overwhelming support from the developing countries, the
EEZ regime was finally accepted at UNCLOS III in the framework of ‘package deal’.

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 MARITIME DELIMITATION UNDER UNCLOS III

○ Law of the Sea Convention permits a coastal state to establish functional

maritime jurisdiction in several areas, namely: the territorial sea up to 12 nautical
miles, the contiguous zone up to 24 n.miles, the EEZ up to 200 n.miles, and a
continental shelf of 200 to 350 nautical miles
○ With the extension of the EEZ to 200 n.miles and the broadening of the
continental shelf, it is estimated that more than one-third of the world oceans
which was traditionally considered as high-seas would be placed under coastal
state jurisdiction.
.

 SETTLEMENT OF DISPUTES IN THE LAW OF THE

SEA

○ Rules and Principles for the settlement of disputes in the law of sea are an inalienable part of the
process of codi cation and progressive development of the LOS
○ 1930 Hague Conference (median line rule
○ After WWII, demands for natural resources was high, and the discovery of offshore hydrocarbons
in the seabed and subsoil and the means to exploit these resources led to increasing claims to
exclusive control over wide areas of seas adjacent to coastal states.
○ UNCLOS I (1958): Four Conventions on the LOS and an Optional Protocol on the settlement of
disputes was adopted. Geneva Convention contributed significantly to the settlement of disputes
through establishing rules and principles for delimitation of territorial sea and the continental shelf.
Nonetheless, uncertainties remain. UNCLOS II (1960) failed to solve unresolved issues at UNCLOS
I.
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 SETTELMENT OF DISPUTES…

○ In 1967, Malta’s Ambassador to the UN Arvid Pardo called for an effective intl.
regime over the seabed and ocean floor beyond a clearly national jurisdiction,
and advocated that the seabed and ocean floor outside the limits of national
jurisdiction be recognized as ‘common heritage of mankind’. UN GA adopted
Pardo’s proposal and allocated to the agenda of the UN First Committee which
established the Ad Hoc Seabed Committee. At the suggestion of the Seabed
Committee GA adopted the Declaration of Principles governing the Deep Ocean
Floor and a resolution on convening the third LOS Convention.
 SETTELMENT OF DISPUTES: UNCLOS III
○ UNCLOS III-Result of the tremendous efforts (1973-1982). Comprising
320 Articles and 9 Annexes it has a quite comprehensive objective: to establish a legal order for the sea and oceans,
including the deep seabed and subsoil thereof. It provided a broad legal framework for determining the legal status
of all ocean spaces and for governing the legal regime for all major uses of the sea and their natural resources
○ Dispute resolution under UNCLOS III (Part XV-Three Parts. Besides, provisions for the settlement of deep seabed
mining disputes are found in Part XI, while the provisions for the delimitation of maritime areas are contained in
Parts II, V and VI, Articles 15, 74 and 83) has been considered as the most imp. development in the settlement of
disputes since the adoption of the UN Charter and the Statute of the ICJ.
○ Although 1958 four Conventions became effective between 1962 and 1964, the optional protocol received only a
few ratifications and has never been adopted
○ The system of dispute settlement (Article 279) in the LOS Convention was built on the fundamental principle that
the parties would be able to freely select any dispute settlement procedure they desired. The principle of free
choice of means for the resolution of disputes was a manifestation of the principle of equality of states under intl.
law.
.

 BANGLADESH/MYANMAR CASE

○ On 14 March 2012 ITLOS gave its judgement in the dispute concerning Delimitation of the Maritime
Boundary between Bangladesh and Myanmar in the Bay of Bengal. It was only the second occasion
on which ITLOS has given judgment on the merits of a dispute (the first being the Saiga case decided
in 1999), and the first time that ITLOS dealt with maritime boundary delimitation ( which has been a
popular one for litigation before other intl. tribunals: the ICJ and arbitral tribunals have so far decided
nearly 20 cases between them, and more cases are pending
○ In Bangladesh/Myanmar Case, the ITLOS was asked to delimit three maritime boundaries between the
two states: territorial sea boundary; the single maritime boundary between EEZs and continental
shelves of the two states, and the boundary of the continental shelf beyond 200 miles from the parties’
baselines
○ The judgement is notable for being the first occasion on which an intl. court or tribunal has delimited
a continental shelf boundary beyond 200 miles.
.

 BANGLADESH/MYANMAR CASE…

○ Bangladesh, Myanmar and India, all three were parties to the LOS Convention in 2009, none had
made a declaration under Article 287 selecting a preferred mode for the settlement of disputes.
Thus Bangladesh had no choice but to go for arbitration under Annex VII of UNCLOS. It
instituted arbitral proceedings against India and Myanmar on 8 October 2009, in each case
requesting the arbitral tribunal to delimit the territorial sea, EEZ and continental shelf
boundaries between the two states concerned.
○ On 4 November, 2009, Myanmar proposed that the case between it and Bangladesh should be
transferred to ITLOS, and made a declaration under Article 287 accepting the jurisdiction of
ITLOS for the purpose. On 12 Dec. Bangladesh made a similar declaration, and ITLOS thereby
became the forum for the case. Case between Bangladesh and India was decided before an Annex
VII Arbitral Tribunal in 2013.
 BANGLADESH/MYANMAR CASE:
JUDGEMENT

○ Although this was the first case concerned with delimiting a maritime boundary, ITLOS
showed itself to be a competent tribunal for this purpose. ITLOS managed to maintain an
impressive degree of unity. Of the six points voted on in the operative paragraph of the
judgement, the smallest majority was 19-3; on half the points the majority as 21-1.
Notable is the fact that the two ad hoc judges voted with the majority on all points and
made a joint declaration
○ The judgement was delivered with commendable speed, in two years and three months
after referral. That is comparable to the time taken by three most recent arbitral tribunals
and substantially quicker than the ICJ. Compared with arbitration, ITLOS is cheaper
because the parties are not required to pay the costs of the arbitrators, the registrar or hire
of premises.
.

 BANGLADESH/MYANMAR CASE: CONTINENTAL SHELF BOUNDARY BEYOND

200 MILES
○ Continental shelf boundary beyond 200 miles: The rst issue for ITLOS was whether it had
jurisdiction to delimit the continental shelf boundary beyond 200 miles, and if it did,
whether it was appropriate to exercise that jurisdiction. ITLOS dealt fairly briefly with the
rst point, simply noting that because there was in law only a single continental shelf,
whether within 200 miles or beyond, its jurisdiction to delimit the continental shelf applied
to the shelf in its entirety. Question on whether it should exercise that jurisdiction was
much less straightforward. UNCLOS provides that a state’s continental shelf may extend
beyond 200 nm if certain geological and geomorphological criteria set out in Article 76 are
fulfilled. A State that considers that its continental shelf extends beyond 200 nm must make
a submission setting out its view as to the outer limits of its shelf to the Commission on the
Limits of the Continental Shelf (CLCS), a body of independent experts in geology,
geophysics and hydrography established by UNCLOS. The CLCS is to make
recommendations to the coastal state reg. its submission. The outer limit of the shelf estb.
on the basis of those recommendations is final and binding.
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 BANGLADESH/MYANMAR CASE: CONTINENTAL SHELF BOUNDARY BEYOND
200 MILES…

○ UNCLOS is less than clear on the relationship between the establishment of the outer
limit of the continental shelf acc. to the procedure just described and the delimitation of
boundary between overlapping continental shelves beyond 200 nm
○ Art. 76 (10) states that the provisions of the preceding paragraphs of the article are
“without prejudice to the question of delimitation of the continental shelf between states
with opposite and adjacent coasts”
○ Likewise, Article 9 of Annex II provides that the actions of the CLCS “shall not prejudice
matters relating to the delimitation of boundaries between states with opposite and
adjacent coasts”. The Rules of Procedure of CLCS provide that the CLCS shall not
consider submissions relating to an area where there is a dispute unless both/all parties
to such a dispute give their consent. Both Bangladesh and Myanmar have made
submissions to the CLCS. Bangladesh has not given consent to consideration of
Myanmar’s submission by the CLCS
○ ITLOS decided that it was competent to, and should, delimit the continental shelf beyond
200 miles.
.

 BANGLADESH/MYANMAR CASE: CONTINENTAL SHELF BOUNDARY BEYOND

200 MILES…

○ Before delimiting the boundary, ITLOS had rst to assure itself that the parties had overlapping entitlements to
the continental shelf beyond 200 miles, otherwise there was no boundary to determine. It rejected Bangladesh’s
argument that natural prolongation was the primary criterion in establishing an entitlement to a continental shelf
beyond 200 nm and that consequently Myanmar had no such entitlement because of a fundamental discontinuity
between Myanmar’s landmass and the seabed of the Bay of Bengal beyond 200 nm. Instead, ITLOS held that
entitlement to a continental shelf depended primarily on satisfying the criteria of Art. 76(4) of UNCLOS. It noted
that the floor of the Bay of Bengal was covered by a thick layer of sediment some 14-22 km deep. Thus each
state could claim a continental shelf beyond 200 nm based on the thickness of sedimentary rocks criterion in Art.
76(4)(a)(i). The origin of such sediments (Himalayan and Tibetan plateau) was irrelevant. It was also clear that
those entitlements overlapped
○ As to how those entitlements should be delimited (an issue never previously considered by an intl. court), ITLOS
observed that Art. 83 of UNCLOS (on delimitation of continental shelf) does not distinguish between delimitation
within 200 miles and delimitation beyond 200 miles.
.

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BANGLADESH/MYANMAR CASE: CONTINENTAL SHELF BOUNDARY BEYOND
200 MILES…

○ Thus, “the delimitation method to be employed in the present case for the
continental shelf beyond 200 nm should not differ from that within 200 nm
○ Accordingly, the equidistance/relevant circumstances method continues to apply for
the delimitation of the continental shelf beyond 200 nm”. ITLOS decided that the
boundary between the parties’ overlapping continental shelves beyond 200 nm
should be a continuation of the single maritime boundary line until it reached the
area where the rights of the third states (i.e. India) might be affected. Given the
unique geological characteristic of the Bay of Bengal, there seems little doubt that
Bangladesh and Myanmar both have entitlements to a continental shelf beyond 200
nm that overlap.

 INDIA-BANGLADESH MARITIME
ARBITRATION AWARD JULY 7, 2014
Prelude
○ Bhola cyclone in 1971 and emergence of an Islan

○ Location of Island: 3.5 km from the mouth of the Hariabhanga River

○ India named this island New Moore
○ Bangladesh named this island South Talpatti
○ Divergent Claims
I. Sovereignty over the islan
II. Delimitation of Maritime Boundar
1. Baseline Determinatio
➢ India: Based on low-water point
➢ Bangladesh: Straight lin
2. Determination of EEZ and Continental Shelf
➢ India’s claims based on Equidistance Principle
➢ Bangladesh’s claims based on Equity Principle
-

 INDIA-BANGLADESH MARITIME
ARBITRATION AWARD JULY 7, 2014…
➢ India claimed that the mid-flow was clearly on the eastern side of the island thus claiming its
ownership
➢ On the other hand, Bangladesh claimed that satellite photographs show the main river channel flowing
on the western side of the island, thus registering the island in their administrative region
AWRAD
I. NEW MORRE/SOUTH TALPATT
➢ The Tribunal decided in the favour of India

➢ It took into consideration India’s evidence based on Radcliffe Award for determination of land
boundary terminus
➢ Reasons
• Bangladesh’s Admiralty Chart 859 was not contemporaneous
• Based on Rudimentary Method (Para 147)
• India’s arguments on Radcliff Award, Arial images, and Satellite images, which were
much more contemporaneous compared to Bangladesh’s evidence (139)
:

 PRINCIPLE FOLLOWED IN DECISION O

NEW MOORE

➢ International Court of Justice Ruling in El Salvador/Honduras; Nicaragua Intervening (ICJ Reports 1992)
• In this case, the principle of contemporaneous evidence was laid down, in accepting evidence near to 1829 in
deciding course of the Goascoran River (Para 135)
II. TERRITORIAL SEA
➢ Tribunal accepted India’s argument for delimitation based in the equidistance principle, emphasizing that this is the
most equitable method for delimitation. India argued that in the recent past the international maritime jurisprudence
was showing growing tendency to apply equidistance formula.
➢ According to Tribunal, Article 15 of UNCLOS provides for delimitation by equidistance formula unless some other
formula is applied by the parties on the basis of their agreement or the prevalence of special circumstances.
➢ Tribunal ruled that there exist no special circumstance similar to
Nicaragua v Honduras case (ICJ Reports 2007)
➢ Also, the tribunal took into consideration Bangladesh’s instance in its case with Myanmar, where Bangladesh won
the award on the basis of Equidistance Principle (2012)

PRINCIPLE FOLLOWED IN DECISION O

TERRITORIAL SEA

International Court of Justice Ruling in Qatar v Bahrain (ICJ Reports 2001, p. 94, paragraph 176) where the court
interpreted the section 15 of UNCLOS and opined tha

1. The most logical and widely practiced approach is rst to draw provisionally an equidistance line and then to
consider whether that line must be adjusted in the light of the existence of special circumstances.

2. The Tribunal observed that in its second sentence article 15 of the Convention provides for the possibility of an
alternative solution where this is necessary by reason of historic title—which neither Party claims—or “other
special circumstances”

¢ III. Exclusive Economic Zone and Continental Shelf

Ø The Arbitral award has clearly delineated the course of maritime boundary line between India and Bangladesh
in the territorial sea, EEZ and continental shelf both within and beyond 200 nm. Bangladesh was awarded an
area of 19, 467 sq km, four- fth of the total area of 25,602 sq km disputed maritime boundary. In addition, the
ruling acknowledged Bangladesh’s sovereign rights of undersea resources in the continental shelf extending as
far as 345 nm in the high seas, taking Chittagong coast as the base line.
.

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 WIN-WIN AWARD
It is not a complete victory for Bangladesh because India has won on some issues. It is however a victory for
fairness and justice
1. India’s interpretation as to applicability of Equidistance was accepted by the Tribunal
whereas there was an exception created for extending EEZ of Bangladesh to 200 nm
in order to avoid situation of Bangladesh being a sea-locked country
2. In the absence of the applicability of Equidistance Principle, India would have had to
part away from its coastal boundary, whereas because of its applicability, it got one-
fifth of disputed coastal line. (Bangladesh : 19,467 sq.km , India: 6105; Total: 25,602
sq.km
○ The judgment is a win for international law which both countries have always
respected. Second, the judgment substantially contributes to the development of
maritime international law. There was an apprehension among some jurists that
judgment by the Court of Arbitration under UNCLOS would lead to the fragmentation
of maritime law, but this proved to be unfounded. Rather, the judgment reflects the
great advantages of consistency and transparency by adhering to judicial precedents.
)

THANKS FOR THE ATTENTION