Bangladesh requests the Tribunal to delimit, in accordance with the principles and rules set forth in UNCLOS, the maritime boundary between Bangladesh and India in the Bay of Bengal, in the territorial sea, the EEZ, and the continental shelf, including the portion of the continental shelf pertaining to Bangladesh that lies more than 200 nautical miles from the baselines from which its territorial sea is measured.1
1. The Site Visit Itinerary
1.1 The Tribunal records that after consulting the Parties, it had earlier set aside October 22-26, 2013 for the conduct of the site visit, with October 22 and 26 being dates of arrival to and departure from the region. The Tribunal hereby fixes these dates.
1.2 The Tribunal takes note of Bangladesh’s correspondence dated May 3 and June 30, 2013 as well as India’s correspondence dated July 8 and 26, 2013, in which they outline their respective views on the proper itinerary for this site visit. The Parties agree that Bangladesh will host the delegations on October 23 and the first half of October 24; India will host the delegations from the second half of October 24 and October 25. Having considered the Parties’ further views on the matter, the Tribunal hereby adopts the following itinerary:
|DAY||DETAILS OF VISIT||PROPOSED DAY AND DATE||TIME|
|Day 1||Arrival of the Tribunal and the Party delegations at Dhaka||Tuesday, October 22, 2013|
|Day 2||Departure from hotel to helipad||Wednesday, October 23, 2013||0845 hours|
|Depart Dhaka by helicopter to base point B5||0900|
|Arrive area of base point B5; depart for Chittagong||1115|
|Arrive Chittagong, lunch and helicopter refuelling||1230|
|Depart Chittagong for Raimangal Estuary via base point B4 and Bengal Delta coast||1430|
|Aerial reconnaissance of Haribhanga River3 and the Raimangal Estuary, including all the proposed base points in the area (including South Talpatty/New Moore)||1630|
|Depart Raimangal Estuary for Jessore Air Force base||1715|
|Arrive Jessore Air Force base||1745|
|Day 3||Depart Jessore Air Force base for vessel embarkation site||Thursday, October 24, 2013||0600 hours|
|Arrive vessel embarkation site||0645|
|Depart for western channel||0700|
|Sea site inspection of the Haribhanga River and the western channel||0800|
|Transit to disembarkation point identified by India and Bangladesh||1130|
|Embark hovercraft at disembarkation point for sea site inspection; lunch on-board||1200|
|Sea site inspection of the Eastern Channel and mouth of the Raimangal Estuary||1330|
|Passage from site to helipad||1500|
|Fly back to Kolkata||1715|
|Disembark and proceed to hotel by road||1830|
|Day 4||Departure from hotel to helipad||Friday, October 25, 2013||0800 hours|
|Aerial inspection of relevant coast (east coast of India)||0830|
|Refueling Halt; light refreshments||0930|
|Aerial inspection of relevant coast (including base points proposed by India and Bangladesh; east coast of India)||1030|
|Refueling halt; lunch||1230|
|Aerial inspection of relevant coast and base points||1330|
|Aerial inspection of eastern channel and mouth of the Raimangal estuary||1430|
|Passage to helipad, Kolkata||1500|
|Disembark and proceed to hotel||1530|
|Dinner at hotel||2000|
|Day 5||Departure of the Tribunal and Party delegations from Kolkata to their respective destinations||Saturday, October 26, 2013|
1.1 This Order provides for the manner in which photographs and video recordings of the site visit may be admitted into evidence.
2. Transmission of the Site Visit Record
2.1 On behalf of the Tribunal, the Registry has prepared a record of the site visit (the "Site Visit Record"), composed of:
(a) the photographic record, chronologically arranged, of the site visit, with each photograph being numbered sequentially; and
(b) an edited video recording of the site visit.
2.2 Digital copies of the Site Visit Record have been transmitted to the Parties via courier on Friday, 15 November 2013 for paragraph 2.1(a) above, and Wednesday, 20 November 2013 for paragraph 2.1(b) above.
2.3 The Parties are invited to review the Site Visit Record carefully upon receipt.
3. Admission of the Site Visit Record into Evidence
3.1 Photographs: Should any Party wish to introduce any of the photographs included in the Site Visit Record into evidence for use in the present proceedings, including during the hearing on the merits, it shall so indicate by identifying the photograph(s) by number and providing the Tribunal, the other Party, and the Registry with a copy thereof (via e-mail and courier) by no later than Wednesday, 27 November 2013. Each photograph shall be captioned and accompanied by a brief description of the subject(s) depicted and the purpose for which it is sought to be introduced into evidence. The other Party shall thereafter be given an opportunity to provide any comments and/or objections it may have to those photograph(s)' admission into evidence, by no later than Wednesday, 4 December 2013.
3.2 Video: Should any Party wish to introduce any segment of the Site Visit Record’s video recording into evidence for use in the present proceedings, including during the hearing on the merits, it shall so indicate by providing the Tribunal, the other Party, and the Registry with the start and end time periods of the video corresponding to the segment(s) it wishes to present, together with a copy thereof (via e-mail and courier), by no later than Wednesday, 27 November 2013. Each segment shall be captioned and accompanied by a brief description of the subject(s) depicted and the purpose for which it is sought to be introduced into evidence. The other Party shall thereafter be given an opportunity to provide any comments and/or objections they may have to those segment(s)' admission into evidence, by no later than Wednesday, 4 December 2013.
3.3 Any part of the Site Visit Record so submitted by a Party that is not objected to by the other Party may be accepted into evidence by the Tribunal. If so accepted, such photographs and video segments shall be duly marked pursuant to Article 12(2) of the Rules of Procedure, and their admission into evidence shall be confirmed by procedural order.
3.4 In case a Party raises an objection to the introduction of a particular photograph and/or video segment, the Tribunal shall resolve the dispute prior to the commencement of the hearing, guided by the "the admissibility, relevance, materiality and weight" (Rules of Procedure, Article 12(1)) of the evidence proffered.
1. Pursuant to paragraph 3.3 of Procedural Order No. 3, all photographs and video segments of the site visit listed in Bangladesh’s letter to the Tribunal dated 27 November 2013 and India’s letter to the Tribunal dated 2 December 2013 are admitted into evidence.
2. When cited by the Parties, these photographs and video segments shall be duly marked in accordance with Article 12(2) of the Rules of Procedure, which provides that "[e]ach document submitted to the Tribunal shall be given a number (for Bangladesh’s documents, B-1, B-2 etc; for India’s documents, IN-1, IN-2 etc); and each page of each document shall be numbered."
H.E. Dr. Dipu Moni, MP Dr. Neeru Chadha
Agent of Bangladesh and Former Foreign Agent, Joint Secretary & the Legal Adviser,
Minister, Government of the People’s Ministry of External Affairs,
Republic of Bangladesh Government of India
Rear Admiral (Retd) Mohammad Khurshed Alam Mr. Harsh Vardhan Shringla Mphil, ndc, psc Co-Agent, Joint Secretary (BSM),
Deputy Agent of Bangladesh & Ministry of External Affairs
Secretary (Maritime Affairs Unit),
Ministry of Foreign Affairs, Dhaka Mr. Puneet Agrawal
Deputy Agent, Director (BSM),
Ministry of External Affairs
Counsel and Advocates Chief Counsel
H.E. The Honourable A.H. Mahmood Ali, MP H.E. Mr. G.E. Vahanvati
Foreign Minister, Government of the People’s Attorney General of India
Republic of Bangladesh
Mr. Mohammad Shahidul Haque
Secretary, Legislative & Parliamentary Affairs Professor Alain Pellet
Division, Ministry of Law, Justice and University of Paris Ouest, Nanterre-La
Parliamentary Affairs, Dhaka Défense
Professor Payam Akhavan Professor W. Michael Reisman
McGill University Yale University
Professor Alan Boyle Mr. R.K.P. Shankardass
University of Edinburgh Senior Advocate, Supreme Court of India
Professor James Crawford AC,SC, FBA Sir Michael Wood, KCMG
University of Cambridge 20 Essex Street
Mr. Lawrence H. Martin Representatives
Foley Hoag LLP
H.E. Mr. R.N. Prasad
Mr. Paul S. Reichler Ambassador of India to the Netherlands
Foley Hoag LLP
Dr. A. Sudhakara Reddy
Professor Philippe Sands QC Counsellor (Legal)
University College London
Mr. Devadatt Kamat
Mr. Shiekh Mohammed Belal Assistant Counsel to the Attorney General
Director General, Ministry of Foreign Affairs and Bangladesh Ambassador-designate to the Mr. Benjamin Samson
Netherlands University of Paris Ouest
Ms. Ishrat Jahan Mr. Eran Sthoeger
Counsellor & CDA, ad. i, New York University
Embassy of Bangladesh, The Hague
Scientific & Technical Advisors
Mr. Mohammad Shaheen Iqbal
Bangladesh Navy Vice Admiral S.K. Jha
Chief Hydrographer to the Government of
M.R.I. Abedin, System Analyst India
Ministry of Foreign Affairs
Rear Admiral K.M. Nair
Mr. Mohammad Hazrat Ali Khan, Director Joint Chief Hydrographer, National
Ministry of Foreign Affairs Hydrographic Office (NHO)
Md. Abdullah Al Mamun Professor Martin Pratt
Bangladesh Army Expert Cartographer, International Boundary
Research Unit, Durham University
Md. Abu Rayhan
Bangladesh Air Force Commodore Adhir Arora
Principal Director of Hydrography, NHO
Md. Abdul Moktader
Private Secretary to the Foreign Minister, Capt. Peush Pawsey
Ministry of Foreign Affairs Director of Hydrography (Ops), NHO
Mr. Syed Shah Saad Andalib Dr. Dhananjay Pandey
Assistant Secretary, Scientist, National Centre for Antarctic and
Ministry of Foreign Affairs Ocean Research (NCAOR)
Mr. Haripada Chandra Nag Mr. R.C. Samota
Assistant Secretary, Cartographic Assistant, NHO
Ministry of Foreign Affairs
Dr. Robin Cleverly Research Associates
Law of the Sea Consultant,
The United Kingdom Hydrographic Office Mr. K. S. Mohammed Hussain
Legal Officer, Ministry of External Affairs
Mr. Scott Edmonds
Cartographic Consultant, Ms. Héloise Bajer-Pellet
International Mapping Member of the Paris Bar
Mr. Thomas Frogh
Senior Cartographer, International Mapping Dr. Lindsay Parson
Director, Maritime Zone Solutions Ltd.
Mr. Robert W. Smith Geographic Consultant
Mrs. Clara Brillembourg Foley Hoag LLP
Mr. Vivek Krishnamurthy Foley Hoag LLP
Mr. Yuri Parkhomenko Foley Hoag LLP
Mr. Remi Reichhold Matrix Chambers
Mr. Dara In
University College London
Ms. Nancy Lopez Foley Hoag LLP
Mr. Rodrigo Tranamil Foley Hoag LLP
The line shall then run southwards along the boundary between the districts of Khulna and 24 Parganas to the point where that boundary meets the Bay of Bengal.
pass[ing] along the south-western boundary of Chandanpur... till it meets the midstream of the main channel of the river Ichhamati, then along the midstream of the main channel for the time being of the rivers Ichhamati and Kalindi, Raimangal and Haribhanga till it meets the Bay.
(1) The maritime boundary between Bangladesh and India follows a line with a geodesic azimuth of 180° from the location of the land boundary terminus at 21° 38' 14"N- 89° 06' 39"E to the point located at 17° 49' 36"N - 89° 06' 39"E;
(2) from the latter point, the maritime boundary between Bangladesh and India follows a line with a geodesic azimuth of 214° until it meets the outer limits of the continental shelf of Bangladesh as established on the basis of the recommendations of the Commission on the Limits of the Continental Shelf ("CLCS");
(3) from the point located at 16° 40' 57"N - 89° 24' 05"E, which marks the intersection of the geodesic line as adjudged by the International Tribunal for the Law of the Sea in the Dispute Concerning Delimitation of the Maritime Boundary between Bangladesh and Myanmar in the Bay of Bengal (Bangladesh/Myanmar) with the limits of the claim submitted by India to the Commission on the Limits of the Continental Shelf on May 2009, the maritime boundary between Bangladesh and India follows the same geodesic line until it meets the outer limits of the continental shelf of Bangladesh as established on the basis of the recommendations of the CLCS; and
(4) from the points specified in Submissions (2) and (3), and along the outer limits of the continental shelf of Bangladesh as established on the basis of the recommendations of the CLCS.
Having regard to the facts and law set out in its Counter-Memorial, its Rejoinder and during the oral proceedings, the Republic of India requests the Tribunal to adjudge and declare that the maritime boundary between India and Bangladesh (in WGS 84 datum terms) runs as follows:
- Starting from the land boundary terminus at Point L with co-ordinates 21° 38' 40.4"N, 89° 10' 13.8"E, the boundary follows a geodetic azimuth of 149.3° until it reaches Point T1, with the co-ordinates 21° 37' 15.7"N, 89° 11'07.6"E.
- From Point T1, the boundary follows a geodetic azimuth of 129.4° until it reaches Point T2, with co-ordinates 21° 35' 12.7"N, 89° 13' 47.5"E.
- From Point T2, the boundary follows a geodetic azimuth of 144.2° until it reaches Point T3, with co-ordinates 21° 32' 25.7"N, 89° 15' 56.5"E.
- From Point T3, the boundary follows a geodetic azimuth of 168.6° until it reaches Point T4, with the co-ordinates 20° 30' 17.9"N, 89° 29' 20.9"E.
- From Point T4, the boundary follows a geodetic azimuth of 157.0° until it reaches Point T5, with the co-ordinates 19° 26' 40.6"N, 89° 57' 54.9"E.
- From Point T5, the boundary follows a geodetic azimuth of 171.7° until it reaches Point T6, with the co-ordinates 18° 46' 43.5"N, 90° 04' 02.5"E.
- From Point T6, the boundary follows a geodetic azimuth of 190.7° until it reaches Point T7, with the co-ordinates 17° 22' 08.8"N, 89° 47' 16.1"E.
- From Point T7, the boundary follows a geodetic azimuth of 172,342° until it meets the maritime boundary line between Bangladesh and Myanmar at Point Z with coordinates 17° 15' 12.8"N, 89° 48' 14.7"E.
Article 287 Choice of procedure
1. When signing, ratifying or acceding to this Convention or at any time thereafter, a State shall be free to choose, by means of a written declaration, one or more of the following means for the settlement of disputes concerning the interpretation or application of this Convention:
(a) the International Tribunal for the Law of the Sea established in accordance with Annex VI;
(b) the International Court of Justice;
(c) an arbitral tribunal constituted in accordance with Annex VII;
(d) a special arbitral tribunal constituted in accordance with Annex VIII for one or more of the categories of disputes specified therein.
2. A declaration made under paragraph 1 shall not affect or be affected by the obligation of a State Party to accept the jurisdiction of the Seabed Disputes Chamber of the International Tribunal for the Law of the Sea to the extent and in the manner provided for in Part XI, section 5.
3. A State Party, which is a party to a dispute not covered by a declaration in force, shall be deemed to have accepted arbitration in accordance with Annex VII.
4. If the parties to a dispute have accepted the same procedure for the settlement of the dispute, it may be submitted only to that procedure, unless the parties otherwise agree.
5. If the parties to a dispute have not accepted the same procedure for the settlement of the dispute, it may be submitted only to arbitration in accordance with Annex VII, unless the parties otherwise agree.
The line shall then run southwards along the boundary between the Districts of Khulna and 24 Parganas, to the point where that boundary meets the Bay of Bengal.13
Notification No. 964 Jur.
[T]he western boundary of district Khulna passes along the south-western boundary of Chandanpur... till it meets the midstream of the main channel of the river Ichhamati, then along the midstream of the main channel for the time being of the rivers Ichhamati and Kalindi, Raimangal and Haribhanga till it meets the Bay.14
The overriding purpose or object of the division must be borne in mind in construing the award. The idea was to bring into existence two independent Sovereign States which would have nothing more to do with each other except as the result of treaty or agreement or adjustment. The interpretation of the boundary on the basis of a fluid line would definitely frustrate this idea if the river changes its course. Pakistan territory might become Indian territory and vice versa; and pockets might be created in each State of what must be regarded as foreign territory.... Surely, a person of the eminence and experience of Sir Cyril Radcliffe must have envisaged all these difficulties and made up his mind to provide for definite and inflexible boundaries.
The very Delhi agreement under which the Tribunal is constituted contemplates elaborate demarcation operations in connection with the boundary line to be conducted by experts of both the States. What is there to demarcate, if the boundary is a fluid one liable to change or alteration at any moment? Is all the trouble to be taken only to ascertain what the boundary is on a particular date, knowing full well that it may not be a boundary the next day? Surveys of the river, cadastral or otherwise, will then be a futile endeavour; and topographical maps prepared at elaborate expense and cost by means of aerial photographs have to be thrown aside every time the river changes. It is very difficult to see the purpose behind so much trouble or the usefulness of such undertakings, if Sir Cyril intended a fluid boundary.
(Case concerning boundary disputes between India and Pakistan relating to the interpretation of the report of the Bengal Boundary Commission,12 and 13 August 1947, Decision of 26 January 1950, RIAA, Vol. XXI, p. 1 at p. 21-22, paragraphs 23, 31).
If the demarcation of this line is found to be impossible, the boundary between India and Pakistan in this area shall then be a line consisting of the land portion of the above mentioned boundary and of the boundary following the course of the midstream of the main channel of the river Ganges as determined on the date of demarcation and not as it was on the date of the Award...
(Case concerning boundary disputes between India and Pakistan relating to the interpretation of the report of the Bengal Boundary Commission,12 and 13 August 1947, Decision of 26 January 1950, RIAA, Vol. XXI, p. 1 at p. 12).
Sub. Demarcation of undisputed boundary between East Bengal and West Bengal.
Sir, With reference to correspondence resting [sic] with telegram from the Government of Pakistan, Ministry of Foreign Affairs and Commonwealth Relations dated the 5th January 1951, I am directed to say that the Government of Pakistan have very carefully considered the question of river boundary between Khulna ad 24 Parganas, and they are of the opinion that the boundary in this section should be fluctuating. It is hoped that the Government of India will agree and issue necessary instructions to the authorities concerned.
(Letter from the Secretary to the Government of Pakistan to the Secretary to the Government of India, Ministry of External Affairs, No. 1(1).3/10/50, 7 February 1951, India’s Rejoinder, Annex RJ-1).
Reference your letter No.1(1).3/10/50 dated the 7th February 1951 regarding demarcation of undisputed portion of West Bengal-East Bengal boundary.
2. We agree that the boundary between Khulna and 24 Parganas running along the midstream of the rivers should be a fluid one and are issuing necessary instructions to the authorities concerned. Kindly issue instructions to East Bengal also.
(Copy of Express Letter from Foreign, New Delhi to Foreign, Karachi, No. F. 20/50-Pak.III, 13 March 1951, India’s Rejoinder, Annex RJ-2).
If one applies by analogy the customary rules on treaty interpretation, as reflected in the Vienna Convention, the agreement concluded in 1951 would be a subsequent agreement between the parties regarding the interpretation of the Radcliffe Award or the application of its provisions, within the meaning of article 31.3(a) of the Vienna Convention.36
This is a task that could have been carried out in 1947, and it can be carried out just as easily today by reference to the situation that prevailed back then. Your task is simply to determine the location of the land boundary terminus as Sir Cyril Radcliffe and his team would have done in 1947.... Armed with the Radcliffe Award, and the 1931 edition of BA 859, you can identify the location of the "midstream of the main channel" of the Haribhanga River, and the closing line that separates the Raimangal Estuary from the Bay of Bengal, as at the critical date.66
The Court has consistently determined the location of international river boundaries by using evidence that is contemporaneous to the critical date on which that boundary was established - and specifically contemporaneous charts - unless the course of the river was identical in the present-day, in which case modern evidence might be used to determine the location of the river boundary as of the date of independence.68
cartographic and satellite evidence after 1947 is admissible and probative. Moreover, it is a matter of common sense: where the area has not changed but better data is available, as compared to the rudimentary hydrographic, bathymetric and cartographic methods in use 134 years ago, surely one will turn to the better data.79
According to India,
satellite imagery of 4 February 2013 shows in the most dramatic fashion that the main channel is to the east of New Moore Island, precisely where the bathymetric soundings of all the charts, including Bangladesh’s own charts, place it. And it is consistent with the bathymetric data of the other charts which are before you.80
"'[e]quitable' considerations can have no role in determining the location of the land boundary or its terminus".89 Social and economic factors, including navigability, are likewise irrelevant in the context of the Radcliffe Award and were never mentioned.90 Nor would there be any basis on which to split the difference between the Parties.91
The overriding purpose or object of the division must be borne in mind in construing the award. The idea was to bring into existence two independent Sovereign States which would have nothing more to do with each other except as the result of treaty or agreement or adjustment. The interpretation of the boundary on the basis of a fluid line would definitely frustrate this idea if the river changes its course. Pakistan territory might become Indian territory and vice versa ; and pockets might be created in each State of what must be regarded as foreign territory. How is the government to be carried on of such areas? What is to happen to the administration, and what would be the method of approach to the pockets situated in the centre of one State surrounded on all sides by an area belonging to an alien State? Surely, a person of the eminence and experience of Sir Cyril Radcliffe must have envisaged all these difficulties and made up his mind to provide for definite and inflexible boundaries.
(Case concerning boundary disputes between India and Pakistan relating to the interpretation of the report of the Bengal Boundary Commission,12 and 13 August 1947, Decision of 26 January 1950, RIAA, Vol. XXI, paragraph 23).
Because of the sensitive nature of the area and existence of the present dispute, there are currently no commercial shipping or navigation activities within and around mouth of the Hariabanga and Raimangal Rivers up to Biharikhal (latitude 21 Deg 57 Min 36,986 Secs and longitude 89 Deg 04 Min 10,728 Secs) upstream of the mouth, except movement of our border security agency / coast guard and Forest department and West Bengal Police etc. Biharikhal is the point on the India-Bangladesh International Boundary that lies along the existing India-Bangladesh Protocol Route (Haldia- Mongla) under the Protocol on Inland Water Trade and Transit (PIWTT) between India and Bangladesh. [...]
However shipping, navigation and fishing activities take place along Hariabanga and Raimangal Rivers north of the India-Bangladesh Protocol Route.
(India’s Letter to the Tribunal dated 30 April 2013 at paragraphs 4-5).
The Chamber cannot exclude a priori the possibility that maps, research or other documents subsequent to that date may be relevant in order to establish, in application of the uti possidetis juris principle, the situation that existed at the time. In any event, since the effect of the uti possidetis principle is to freeze the territorial title [reference to Burkina/Mali, para. 29], the examination of documents posterior to independence cannot lead to any modification of the 'photograph of the territory' at the critical date unless, of course, such documents clearly express the Parties’ agreement to such a change.
"User’s Handbook on Datum Transformations Involving WGS-84".
concerning the part of the district boundaries which are following the midstream of the river Ganges difficulties arise in making use of the map [...].
The map [...] does not reproduce the position of the river at the time of the notifications but at the time of the survey. The map, in fact, does on the stretch which is following the river Ganges not reproduce any other district boundaries than those determined by the position of the river Ganges at the time about thirty years ago when the survey maps were made on which the map in Annexure B is based.
(Ibid. at p. 28-29).
|B-1||Clump Island||21° 39' 04"N||89° 12' 40"E|
|B-2||Clump Island||21°39' 08"N||89° 14' 45"E|
|B-3||Putney Island||21° 40' 15"N||89° 19' 56"E|
|B-4||Pussur Point||21° 42' 42"N||89° 35' 00"E|
|B-5||Shahpuri Point||20° 43'26.3"N||92° 19' 45.5"E|
|I-1||Moore Island||21° 37' 00"N||89° 05' 35"E|
|I-2||Bhangaduni Island||21°32' 21"N||88° 53' 13"E|
|I-3||False Point||20° 20' 29"N||86° 47' 07"E|
|I-4||Devi Point||19° 57' 33"N||86° 24' 20"E|
|B-1||Clump Island||21° 38' 56.0"N||89° 12' 41.8"E|
|B-2||Clump Island||21° 38' 57.4"N||89° 14' 47.6"E|
|B-3||Putney Island||21° 37' 32.7"N||89° 20' 25.5"E|
|B-4||Andar Char Island||21° 38' 00.5"N||90° 33' 32.0"E|
|B-5||Shahpuri Point||20° 43' 38.6"N||92° 19' 30.2"E|
|I-1||South Talpatty/New Moore Island||21° 37' 50.7"N||89° 08' 49.9"E|
|I-2||South Talpatty/New Moore Island||21° 35' 30.0"N||89° 09' 40.6"E|
|I-3||West Spit -Dalhousie Sand||21° 22' 47.6"N||88° 43' 43.7"E|
|I-4||Devi Point||19° 57' 33.1"N||86° 24' 20.0"E|
Where a low-tide elevation is situated wholly or partly at a distance not exceeding the breadth of the territorial sea from the mainland or an island, the low-water line on that elevation may be used as the baseline for measuring the breadth of the territorial sea.117
In this respect, the Court observes that the geometrical nature of the first stage of the delimitation exercise leads it to use as base points those which the geography of the coast identifies as a physical reality at the time of the delimitation. That geographical reality covers not only the physical elements produced by geodynamics and the movements of the sea, but also any other material factors that are present.
(Judgment, I.C.J. Reports 2009, p. 61, at p. 106, paragraph 131)
The Tribunal observes that, while coastal States are entitled to determine their base points for the purpose of delimitation, the Tribunal is not obliged, when called upon to delimit a maritime boundary between the parties to a dispute, to accept base points indicated by either or both of them. The Tribunal may establish its own base points, on the basis of the geographical facts of the case.
(Bangladesh/Myanmar, Judgment, 14 March 2012, paragraph 264).
determining the baseline for the purpose of measuring the breadth of the continental shelf and the exclusive economic zone and the issue of identifying base points for drawing an equidistance/median line for the purpose of delimiting the continental shelf and the exclusive economic zone between adjacent/opposite States are two different issues.
(Maritime Delimitation in the Black Sea (Romania v. Ukraine), I.C.J. Reports 2009, p. 61 at p. 108, paragraph 137).
As the Court added in the same case:
In... the delimitation of the maritime areas involving two or more States, the Court should not base itself solely on the choice of base points made by one of those Parties. The Court must, when delimiting the continental shelf and exclusive economic zones, select base points by reference to the physical geography of the relevant coasts.
the use of the low-water line is laid down by a general international rule in the Convention’s article 5, and that both Parties have agreed that the Tribunal is to take into account the provisions of the Convention in deciding the present case. The median line boundary will, therefore, be measured from the low-water line, shown on the officially recognized charts..., in accordance with the provision in Article 5 of the Convention.
(Award of the Arbitral Tribunal in the second stage of the proceedings between Eritrea and Yemen (Maritime Delimitation), Decision of 17 December 1999 at paragraph 135, PCA Award Series at p. 40, RIAA, Vol. XXII, p. 335 at p. 366).
Where the coasts of two States are opposite or adjacent to each other, neither of the two States is entitled, failing agreement between them to the contrary, to extend its territorial sea beyond the median line every point of which is equidistant from the nearest points on the baselines from which the breadth of the territorial seas of each of the two States is measured. The above provision does not apply, however, where it is necessary by reason of historic title or other special circumstances to delimit the territorial seas of the two States in a way which is at variance therewith.
(i) Starting from the land boundary terminus at Point L (21° 38' 40.4"N; 89° 10' 13.8"E), the boundary follows a geodetic azimuth of 149.3° until it reaches Point T1, with the co-ordinates 21° 37' 15.7"N, 89° 11' 07.6"E.
(ii) From Point T1, the boundary follows a geodetic azimuth of 129.4° until it reaches Point T2, with the co-ordinates 21° 35' 12.7"N, 89° 13' 47.5"E.
(iii) From Point T2, the boundary follows a geodetic azimuth of 144.2° until it reaches Point T3, with the co-ordinates 21° 32' 25.7"N, 89° 15'56.5"E.
(iv) From point T3, the boundary follows a geodetic azimuth of 168.6°, until it reaches the end of the delimitation line in the territorial sea, at a distance of 12 nautical miles from the low water line of both States’ coast.162
The most logical and widely practised approach is first 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.
(Qatar v. Bahrain), Judgment of 16 March 2001, I.C.J. Reports 2001, p. 94, paragraph 176.
1. A low-tide elevation is a naturally formed area of land which is surrounded by and above water at low tide but submerged at high tide. Where a low-tide elevation is situated wholly or partly at a distance not exceeding the breadth of the territorial sea from the mainland or an island, the low-water line on that elevation may be used as the baseline for measuring the breadth of the territorial sea.
2. When a low-tide elevation is wholly situated at a distance exceeding the breadth of the territorial sea from the mainland or an island, it has no territorial sea of its own.
Equidistance and median lines are to be constructed from the most appropriate points on the coasts of the two States concerned, with particular attention being paid to those protuberant coastal points situated nearest to the area to the delimited. The Court considers elsewhere the extent to which the Court may, when constructing a single-purpose delimitation line, deviate from the base points selected by the Parties for their territorial seas. When construction of a provisional equidistance line between adjacent States is called for, the Court will have in mind considerations relating to both Parties’ coastlines when choosing its own base points for this purpose. The line thus adopted is heavily dependent on the physical geography and the most seaward points of the two coasts.
In this stage of the delimitation exercise, the Court will identify the appropriate points on the Parties’ relevant coast or coasts which mark a significant change in the direction of the coast, in such a way that the geometrical figure formed by the line connecting all these points reflects the general direction of the coastlines. The points thus selected on each coast will have an effect on the provisional equidistance line that takes due account of the geography.
(Judgment, I.C.J. Reports 2009, p. 61 at p. 101, 105, paragraphs 117, 127)
Prov-0 = 21° 38' 35.0"N, 89° 09' 08.0"E
and continues along the geodetic line at an initial azimuth of 171° 40' 32.81" until it reaches the territorial sea limits of Bangladesh and India, separately.
[t]he role of relevant coasts can have two different though closely related legal aspects in relation to the delimitation of the continental shelf and the exclusive economic zone. First, it is necessary to identify the relevant coasts in order to determine what constitutes in the specific context of a case the overlapping claims to these zones. Second, the relevant coasts need to be ascertained in order to check, in the third and final stage of the delimitation process, whether any disproportionality exists in the ratios of the coastal length of each State and the maritime areas falling either side of the delimitation line.
(Judgment of 3 February 2009, I.C.J. Reports 2009, p. 61 at p. 89, paragraph 78.)
The area in dispute in this case includes substantial areas that are beyond 200 miles. Indeed, it is one of the most critical issues in dispute. That being the case, the relevant coasts must also include the coasts that project into those areas.192
- the first segment runs in a westerly direction from the land boundary terminus with Bangladesh to a point close to and due south of Haripur in the vicinity of the city of Balasore;
- from that point, the coastline turns radically to proceed in a north/south direction up to Maipura Point (second segment);
- from Maipura Point the coast runs in a north-east/south-west direction until it reaches Devi Point (third segment).193
The Tribunal finds that the coast of Myanmar from the terminus of its land boundary with Bangladesh to Cape Negrais does, contrary to Bangladesh’s contention, indeed generate projections that overlap projections from Bangladesh’s coast.196
(Dispute Concerning Delimitation of the Maritime Boundary between Bangladesh and Myanmar in the Bay of Bengal (Bangladesh/Myanmar), Judgment of 14 March 2012, para. 203.)
If the Bangladesh coast that generates overlapping projections with India within 200 nautical miles generates these projections beyond 200 nautical miles, then India’s relevant coast up to Devi Point can also generate overlapping maritime projections both within and beyond 200 nautical miles.202
The Tribunal is aware that the projection of the coast from the northern islands of the Andaman chain also overlaps with the projection of the mainland coast of India. This will be taken into account in the calculation of the relevant area.
The Court’s mixing of different methodologies, none of them equidistance, starkly refutes India’s argument according to which the ICJ supposedly made clear in the Black Sea case that "equity" and "relevant circumstances" may, "in appropriate circumstances, call for the adjustment or shift of a provisional equidistance line, but never its abandonment."214
if any two base points were to have been used for the purposes of generating a provisional equidistance line, the Court would have had to select two points along opposite sides of the needle-like Cape. Even if two such base points could have been forced upon the geography of the Cape, they would have formed the base for a completely arbitrary equidistance line.255
No Latitude Longitude Controlling points
1 21° 38' 14"N 89° 06' 39"E LBT
2 21° 36' 21 "N 89° 07'48"E LBT, I-1
3 21° 34' 25"N 89° 10' 20"E LBT, B-1, I-1
4 21° 22' 14"N 89° 14' 22"E B-1, B-2, I-1
5 20° 23' 53"N 89° 29' 40"E B-2, I-1, I-2
6 19° 31' 37"N 89° 48' 06"E B-2, B-3, I-2
7 19° 09' 14"N 89° 55' 26"E B-3, B-4, I-2
8 18° 51' 13"N 90° 00' 22"E B-4, B-5, I-2
9 17° 53' 57"N 89° 45' 32"E B-5, I-2, I-3
10 17° 15' 18"N 89° 48' 27"E B-5, I-3, I-4 (intersection with ITLOS judgment)
- from Point X, the delimitation line described at paragraph 6.25 above continues along the geodetic azimuth of 168.6° until it reaches Point T4, with co-ordinates 20° 30' 17.9" N, 89° 29'20.9"E, which is equidistant from base points I-2, I-3 and B-3;
- from Point T4, the line continues in a south direction and follows a geodetic azimuth of 157.0° until it meets Point T5, with co-ordinates 19° 26' 40.6"N, 89° 57' 54.9"E, which is equidistant from base points I-3, B-3 and B-4;
- from Point T5, the line takes a broadly south direction and follows a geodetic azimuth of 171.7° until it reaches Point T6, with co-ordinates 18° 46' 43.5"N, 90° 04' 02.5"E, which is equidistant from base points I-3, B-4 and B-5;
- from Point T6, the equidistance line follows a geodetic azimuth of 190.7° until it reaches the limit of 200 nautical miles at point Y, with co-ordinates 18° 19' 06.7"N, 89° 58' 32.1"E.270
- base point B-1, located on the low-water line of the coastline of Mandarbaria/Clump Island;
- base point B-2, also located on the low-water line of the coastline of Mandarbaria/Clump Island;
- base point B-3, located on the low-water line of Putney Island;
- base point B-4, said to be located on the low-water line at Pussur Point;
- base point B-5, said to be on the low-water line at Shahpuri Point, in the vicinity of the boundary with Myanmar.
- base point I-1, said to be on the low-water line of Moore Island (but already rejected by the Tribunal in relation to the territorial sea);
- base point I-2, located on the low-water line of Bhangaduni Island;
- base point I-3, located on the low-water line at False Point;
- base points B-1 and B-2, said to be on the low-water line of Mandarbaria/Clump Island (but rejected by the Tribunal in relation to the territorial sea);
- base point B-3, located on the south-western edge of a low-tide elevation lying south-east of Putney Island (but rejected by the Tribunal in relation to the territorial sea);
- base point B-4, located on the southern tip of a low-tide elevation located south-east of Andar Char Island;
- base point B-5, said to be on the low-water line at Shahpuri Point in the vicinity of the boundary with Myanmar.
|Prov-3||I-2, I-1, B-1||21° 07' 44.8"N||89° 13' 56.5"E|
|Prov-4||I-2, B-1, B-2||21° 05' 11.3 "N||89° 14' 56.7"E|
|Prov-5||I-2, B-2, B-4||19° 12' 29.5"N||89° 54' 43.2"E|
|Prov-6||I-2, B-4, B-5||18° 50' 16.7"N||90° 00' 49.6"E|
|Prov-7||I-3, I-2, B-5||17° 52' 42.7"N||89° 46' 00.3"E|
the maritime space equidistance would leave to Bangladesh narrows rapidly the further off shore the proposed boundary goes. At just 75 M from shore, the breadth of Bangladesh’s maritime space has been reduced by nearly 40%, from 188 M to just 117 M. At 150 M from shore, it is far worse: the breadth has been reduced to a mere 45 M, only 24% of the nearshore figure. At 200 M, it is just 26 M, less [than] 1/7th as much as its original extent. And at approximately 235 M, it terminates completely.295