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11 Jul, 2014

Bangladesh Prevails in Maritime Boundary Dispute with India

WASHINGTON–(BUSINESS WIRE)–July 08, 2014  – An international arbitral tribunal in The Hague today awarded Bangladesh the vast majority of waters in the Bay of Bengal that were also claimed by India.

By a vote of 4-1, the five-member tribunal agreed with Bangladesh that the “equidistance” method proposed by India for dividing the Parties’ maritime zones was inequitable to Bangladesh. Instead, it fixed the boundary based on equitable principles that largely mirrored Bangladesh’s claims to the disputed waters.

The award of the tribunal, which cannot be appealed, is binding on both States. It brings to an end the arbitration that Bangladesh commenced under the United Nations Convention on the Law of the Sea (UNCLOS) in 2009 after several decades of unsuccessful diplomatic negotiations.

Bangladesh won a similar judgment in a companion case against Myanmar in 2012. The 2012 judgment was issued by the 21-member International Tribunal for the Law of the Sea (ITLOS) in Hamburg, Germany. It too rejected “equidistance” boundaries (as proposed by Myanmar) and awarded Bangladesh a greater share of the disputed waters in another part of the Bay of Bengal.

Bangladesh’s lead counsel in both cases were Paul Reichler and Lawrence Martin of Foley Hoag LLP in Washington, DC.

“This is another great day for Bangladesh,” declared Foreign Minister Mr. Abul Hassan Mahmood Ali after reviewing the tribunal’s award. “This result is even better for Bangladesh than the 2012 ITLOS Judgment. It gives Bangladesh much more maritime territory than was ever possible during decades of negotiation,” he added.

The Foreign Minister explained: “We achieved everything we hoped to and more. Before we started these two cases in 2009, Bangladesh was trapped between Myanmar on one side and India on the other. They wanted to lock us within 115 M from our coast. Now, we not only have a large exclusive economic zone extending out to 200 M across a sizable area, we also have undeniable sovereign rights in the sea bed extending nearly 300 M from our coast.”

According to the Foreign Minister, “Bangladesh today is able to do something it never could before: take full advantage of all of the rights that UNCLOS promises coastal States,” he said. “The clarity and legal certainty that the Award provides will allow us to fish in our own waters and exploit the abundant oil and gas beneath our continental shelf without hindrance.”

In addition to Messrs. Reichler and Martin, Bangladesh’s legal team included Professor James Crawford of Cambridge University, Professor Philippe Sands of the University College London, Professor Alan Boyle of the University of Edinburgh, and Professor Payam Akhavan of McGill University.

Mr. Reichler praised the outcome, calling the arbitral tribunal’s award “a thorough, well-reasoned decision.” He added that “it continues the progressive development of maritime delimitation jurisprudence in a positive direction. Bangladesh was not the only winner today. With its careful and balanced decision, the arbitral tribunal brought great credit to itself and showed once again the wisdom of the drafters of UNCLOS in providing for compulsory dispute settlement.” According to Mr. Reichler, “a long-standing problem in bilateral relations has now been resolved in a manner acceptable to both States.”

The arbitral tribunal was presided by Judge Rüdiger Wolfrum of Germany, and included Judge Jean-Pierre Cot (France), Judge Thomas A. Mensah (Ghana), Professor Ivan Shearer (Australia) and Dr. Pemmaraju Sreenivasa Rao (India). Dr. Rao cast the sole dissenting vote.

For more information, visit www.foleyhoag.com.