With Miami Law Professor Bernard H. Oxman sitting on the bench, the International Tribunal for the Law of the Sea has established a maritime boundary between Bangladesh and Myanmar. The new boundary extends more than 200 nautical miles seaward of the terminus of their land frontier in the Bay of Bengal.
The Tribunal, which was established by the United Nations Convention on the Law of the Sea, announced its 151-page judgment on March 11, 2012, during a public hearing at its headquarters in Hamburg, Germany.
The judgment resolved a long-standing dispute between the parties regarding overlapping claims in an offshore area that the Tribunal determined to encompass approximately 283,471 square kilometers.
Professor Oxman is Richard A. Hausler Professor of Law at the University of Miami, and directs the Law School's LL.M. program in Maritime Law. This is the second case in which he was appointed by a party to sit as a judge on the Tribunal.
Its judgment in the Bay of Bengal case contains a number of references to the judgment of the International Court of Justice in the Black Sea maritime delimitation case three years earlier, to which Professor Oxman was also appointed. He is the only American to have served on both courts. Professor Oxman had previously represented the United States in the conference that prepared the Law of the Sea Convention and, in that capacity, helped formulate the proposals by the United States that led to the creation of the Tribunal and that included the International Court of Justice in the Convention's dispute settlement system.
The calculations in the Tribunal's judgment indicate that the maritime boundary drawn by the Tribunal will result in an apportionment of the relevant area by a ratio of approximately 1.54:1 in favor of Myanmar, whose coast facing that area is approximately 1.42 times the length of that of Bangladesh.
The maritime boundary established by the Tribunal delimits the territorial seas of the parties within 12 nautical miles of their coasts by a line that is equidistant from the nearest points on their respective coasts, including Bangladesh's St. Martin's Island.
The line then continues along the 12-mile arc south of the island to a point equidistant from the nearest points on the mainland coasts of the parties, and proceeds seaward to delimit the exclusive economic zones and continental shelves of the parties within 200 nautical miles of their coasts. In this area the Tribunal drew a provisional equidistance line without regard to St. Martin's Island, and then adjusted the line to give effect to the seaward projection of Bangladesh's northern coast which, because of its concavity, was cut off by the provisional equidistance line.
Then, for the first time in an international case, the Tribunal determined that the continental shelves of both parties extended to the continental margin beyond 200 miles, and continued the maritime boundary into that area in the same direction.
The existence of a thick layer of sedimentary rock is often associated with the possible presence of oil and gas deposits. The seabed and subsoil of the Bay of Bengal is covered by a thick layer of sediment that was deposited over thousands of years by a process of run-off commencing in the Himalaya Mountains. The Tribunal concluded that neither the geological origin of these deposits nor the junction between the tectonic plates beneath them was legally relevant. Rather, it relied on the existence of a continuous layer of sedimentary rock comprising the continental margin extending seaward from the coasts of both parties to the area beyond 200 miles to determine the existence of their overlapping entitlements in that area, which it then delimited between the parties in the same manner as the exclusive economic zone and the continental shelf within 200 miles. The line drawn by the Tribunal will end when it reaches the maritime boundary with India, whose location is not yet established.
In extending the adjusted delimitation line to the continental shelf beyond 200 miles, the Tribunal also became the first international court or tribunal to address the question of the so-called grey area that has perplexed commentators for decades. It decided that in an area of limited size on Bangladesh's side of the maritime boundary drawn by the Tribunal – beyond the 200-mile limit of Bangladesh's exclusive economic but within the 200-mile limit of Myanmar's exclusive economic zone – Bangladesh has jurisdiction with respect to the seabed and subsoil of the continental shelf, Myanmar has jurisdiction with respect to the superjacent waters of the exclusive economic zone, and each state must exercise its rights and perform its duties with due regard to those of the other.
In an unusual joint declaration, Judges Mensah and Oxman – appointed by the respective parties to sit on the case – indicated that they supported the judgment of the Tribunal. In this connection, they specifically endorsed the tribunal's decision to take note of the commitment made by Bangladesh during the proceedings to respect Myanmar's rights of access to and from the Naaf River. They also noted that the Tribunal's conclusion that each party was entitled to a continental shelf beyond 200 miles was not incompatible with the submission that each party had made to the Commission on the Limits of the Continental Shelf established by the Convention, and therefore did not prejudice the right of each party to establish final and binding outer limits of its continental shelf on the basis of the Commission's recommendations.
Summarizing their view of the law of maritime delimitation and its application in this case, Judges Mensah and Oxman stated, "The law applicable to delimitation of the exclusive economic zone and the continental shelf, as articulated and applied by international courts and tribunals, entails neither an unyielding insistence on mathematical certainty nor an unbounded quest for an equitable solution. The equidistance/relevant circumstances method of delimitation seeks to balance the need for objectivity and predictability with the need for sufficient flexibility to respond to circumstances relevant to a particular delimitation. Maintaining that balance requires that equidistance be qualified by relevant circumstances and that the scope of relevant circumstances be circumscribed."
"The decision of the Tribunal to draw the provisional equidistance line without reference to base points on St. Martin's Island, and to use the 215° azimuth to adjust that line in the area south of the northern coast of Bangladesh, allows the coasts of both Parties to produce their effects in a reasonable and mutually balanced way in terms of entitlements to the exclusive economic zone and to the continental shelf. The Tribunal thus achieves a solution that is equitable in the circumstances of this case," the judges concluded.
The Tribunal's judgment and related documents in the Bay of Bengal case can be found on the Tribunal's website.