Bangladesh/Myanmar maritime dispute Judgment

Dispute concerning delimitation of the maritime boundary between Bangladesh and Myanmar in the Bay of Bengal (Bangladesh/Myanmar)

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Committing suicide for “blood money”

November 29th, 2009

The National Newspaper (UAE), recently reported about an alarming rise in the number of suicides by migrant workers in Oman, according to hospital staff. Maryam Busaidy, a nurse at the Royal Hospital in Muscat told the paper that “It is not uncommon for the hospital to receive emergency cases of people from India, Pakistan, Bangladesh, or Sri Lanka, who make attempts to commit suicide… the sad thing is that they keep increasing all the time. Hardly any month passes without such a case.”

The report suggests that some of these workers are committing suicide so that their families in financial distress receive the “blood money” for them in the sum of 15,000 Omani riyals ($39,000). The money is paid to the families of people who die as a result of negligence, including car accidents.

Mr. Ramakrishnan, an Indian migrant worker whose friend committed suicide, said that the embassies can do more to help migrant workers in distress if they saw it as a priority.

Published in

http://www.migrant-rights.org/2009/11/29/rise-in-suicides-among-migrant-workers-in-oman/

India Bangladesh Maritime Boundary

Sep 16th, 2008 By Sindh Today Category: India

Sep 16 (IANS) The location of a tiny island and the flow of a river into the Bay of Bengal are the main points of negotiation as India and Bangladesh discuss their maritime boundary after a gap of 28 years.

The island is called South Talpatty by Bangladesh and Purbasha or New Moore Island by India. The flow of Haribhanga river’s channels around it is one of the principal points of dispute between the two neighbours.

As per the rules drawn up by Sir Cyril Radcliffe for demarcating the border when India was partitioned and Pakistan was created in 1947, if there is a river on the border, then the mid-current of the river will be the borderline. Since its emergence in 1971, Bangladesh has been identifying its border according to the Radcliffe rules.

Bangladesh officials claim that the main channel of the Hariabhanga river flows through the west side of South Talpatty while their Indian counterparts claim the eastern channel is the main flow, The Daily Star newspaper said Tuesday.

The island is still in formation, visible only during low tides, emerging in the estuary of the Hariabhanga river, the bordering river in the south-western part of the country.

‘We’ve just started talks and the discussion has been very cordial,’ said M.A.K. Mahmud, additional secretary to the foreign ministry, who is leading the 15-member Bangladesh delegation at the three day talks that began Monday.

The northern reach of the Bay of Bengal is shared by India, Bangladesh and Myanmar. While India is both conducting its off-shore operations and allocating blocks for exploration to foreign multinationals, the latter approach is adopted by Bangladesh and Myanmar too.

In recent years, claims of overlapping territories have piled up with the three, particularly Bangladesh and India, challenging each other’s decisions.

Dhaka is claiming rights over an exclusive economic zone for extraction of marine resources, the New Age newspaper said Tuesday.

In the absence of an accepted exclusive economic zone, India and Myanmar recently opposed Bangladesh’s offshore block bidding for exploration of oil and gas even within the territorial sea of the country.

Also under discussion is the issue of continental shelves in the bay. The UN Convention on Law of the Sea allows a country to claim 350 nautical miles as its continental shelve.

Bangladesh and India had last held talks in 1980 to iron out differences on the contentious maritime boundary in the resource-rich Bay of Bengal.

Dhaka says New Delhi has been lukewarm to talks on maritime boundary, but its officials also blame their own lack of preparation and expertise to counter the Indian claims.

As signatories to the UN convention, Dhaka and New Delhi must submit their claims to the UN by 2011 and 2009, respectively.

Published in

http://www.sindhtoday.net/south-asia/21046.htm

Eritrea and Yemen Boundary

Cdre Md. Khurshed Alam Ndc, Psc Bn (Retd) *

It is rare that an international tribunal awards total victory to one party in a maritime boundary dispute. This appears to be almost inevitably so even in situations where strict application of legal principles to the geography of the situation would seem to require that result. Two maritime boundary arbitrations- the 1999 Eritrea v Yemen and Qatar v Bahrain case under the 1982 Law of the Sea Convention (UNCLOS) merit discussion.

The international law of maritime delimitation has been the subject of considerable examination during the past half century. The history of the development of the law through the cases, starting from the 1969 North Sea Continental Shelf cases, has been well documented and it would be better to focus on both the maritime boundary cases decided under the UNCLOS. First of all, we would like to discuss the Eritrea and Yemen case, which was the delimitation of a single maritime boundary.We find that the arbitration about the Eritrea and Yemen case was conducted before an ad hoc Tribunal under the auspices of the Permanent Court of Arbitration.

The case involved a dispute between Eritrea and Yemen States about sovereignty over the Red Sea area between them and in the second phase - the maritime delimitation that took place after the tribunal had already allocated between them sovereignty over the four sets of contested mid-sea islands. The tribunal stated at the outset that it would approach the delimitation using the proposition that a median line fits the requirements of UNCLOS articles 15, 74 and 83. Both Parties in turn claimed that their proposed delimitation line was based on the median line. The Parties differed with respect to the effect that should be given to the mid-sea islands, whose sovereignty had been decided in the first phase.

The Tribunal recognised that the provisions of UNCLOS required an equitable result achieved. Its role was to examine whether giving the mid-sea islands full or partial effect would achieve the desired result. The Tribunal examined in general terms whether giving the islands a certain effect (full or partial) would produce a disproportionate effect on the maritime boundary, depending on their size, importance and like considerations in the general geographical context.

The Tribunal divided the maritime area between the Parties into three different sectors North, Middle and South for the purpose of the delimitation. In the North, it maintained that the delimitation was essentially a mainland-to-mainland delimitation between the Parties' opposite coasts. In the Middle, it held that the delimitation became complicated by the presence and proximity of the mid-sea islands. The Tribunal concluded that the boundary would have to be moved to the west in order to take into account overlapping Territorial Sea and three sets of mid-sea islands. The Tribunal gave the mid-sea islands certain partial effects, but did not explain its methodology. Interestingly, the Tribunal rejected various arguments made by Yemen in relation to the Middle sector that would have given it control over all the shipping lanes in the southern Red Sea.

In the South, the Tribunal again used a coastal median line. Perhaps the most notable aspect of the Eritrea/Yemen Award was its treatment of the traditional fishing regime of the Parties in the Red Sea. In both phases of the arbitration, the Parties put forward claims to the effect that their nationals relied significantly on the Red Sea fishing industry and fish consumption. The first Award decreed that the sovereignty found to lie within Yemen entails the perpetuation of the traditional fishing regime in the region, including free access and enjoyment for the fishermen of both Eritrea and Yemen. The Tribunal based its decision to recognise and give effect to the traditional fishing regime on what it referred to as local custom and Islamic law. The texts of the Awards, however, do not reflect a profound examination of either source of law.

In any event, the Tribunal's treatment of Islamic law does assist in bringing a new dimension to the exact nature of the rights and obligations imposed by the Awards under the aegis of the protection of the traditional Red Sea artisanal fishing regime. The Tribunal clarified that the obligation imposed on Yemen in relation to its sovereignty over the mid-sea islands extended to requiring Yemen to enable Eritrean fishermen to exercise their entitlement to fish around the islands and even use the islands freely for such traditional activities as drying fish, repairing boats and nets, establishing and using way stations, and taking shelter. The Tribunal took the view that the obligation also required Yemen to permit artisanal Eritrean fishermen to fish up to its mainland coasts and to permit them to land their catches in Yemeni ports.

Shortly after the Award was issued, the Parties met to discuss various aspects of their fishing activities in the Red Sea. It transpired that they had differing views of the Award on the issue of the traditional fishing regime and Eritrea requested a clarification from the Tribunal. A decree issued by the Tribunal in response to this clarification that Yemeni fishermen did not enjoy a right to fish off Eritrea's continental coast inside the internal waters of the Dhalak Islands in the northern sector. This ruling was particularly significant because the best fisheries in the Red Sea are around the mid-sea islands (awarded to Yemen in the first phase), off Yemen's mainland coast, and around Eritrea's Dhalak Islands. The effect of this clarification meant that, while the Eritrean's could fish around Yemen's fishing grounds in the Red Sea, Yemenis could not fish off Eritrea's fishing grounds.

Thus the benefit of the protections afforded to the traditional artisanal Red Sea fishermen in effect fall substantially to Eritrea. Ultimately, despite the Tribunal's post-award attempt to clarify the scope of the traditional fishing regime, it appears that the issue might still be considered by some to be far from clear. From the court rulings and the articles referred above, it can be derived that the land dominates the sea, right to maritime territory, whether Exclusive Economic Zone (EEZ) or Continental Shelf (CS), derives from sovereignty over its adjacent land territory and also in areas of overlapping Territorial Sea (TS) are to be divided by the median or equidistance line method, unless variation is required by historic title or special circumstances. The tribunal also dealt the issue of Islamic law for the first time in so far as the maritime boundary is concerned.

The Eritrea-Yemen Arbitration unanimously resolved the disputed territorial sovereignty over the Red Sea islands and the delimitation of international maritime boundary, to the satisfaction of both Parties and to the benefit of the consolidation of peace and security in one of the strategically most sensitive regions of the world, the solution of which had been awaited since the end of the First World War. With its recognition of a traditional fishing regime and crystallization of the criteria for maritime delimitation, it also made a significant contribution to the development of international law. The arbitration awards provide a notable instance of the role of dispute settlement by an international court on the basis of law, including the 1982 UN Law of the Sea Convention. The Award is a milestone in the development of principles and rules of international law governing the acquisition of territorial sovereignty as it confirms the pre-eminence of evidence of actual and effective occupation as a source of title to territory over claims of historic title. It sustains a low standard for what would constitute actual occupation as it relates to unsettled or inhospitable territory. At the same time, the Award provides a landmark decision substantiating the development of the modern law of equitable maritime boundary delimitation.

It confirms prominence of a single all-purpose maritime boundary and the governing role of equidistance (median line) as the equitable boundary between the opposite states. The Award substantiates the critical roles played in achieving the equitable result by considerations pertaining to baselines (normal and straight), islands, reefs and low-tide elevations, navigational factors and interests of third states, as well as by the principle of proportionality in terms of a posterior test of the equitableness of a result arrived at by other means.

The Tribunal's treatment of islands, islets, rocks and low tide elevations confirms that their definition and entitlement granted or denied to these maritime features depend on the degree to which they distort an equidistant line and other factors (such as comparison of coastal lengths abutting on the claim area), rather than on their legal status per se. Although the resource related factors did not ultimately influence the actual course of the Eritrea/Yemen single boundary line, the Tribunal's respective holdings importantly reappraise the international legal regime governing common mineral deposits on the one hand, and the role of fisheries factors in equitable maritime boundary delimitation on the other. The implementation by Eritrea and Yemen of this regime, of which substantive content was defined in the 1999 Award as applying to artisanal fishing and as involving the right of free passage and other associated rights, provide an interesting evidence on practical implementation of the Islamic concept of territorial sovereignty. The Awards are undoubtedly to continue to provide a valuable model for successful settlement of disputes in the two interlinked major areas of the acquisition of territorial sovereignty and maritime boundary delimitation in the future. We, in Bangladesh, are sitting far too long on the settlement of issues of the maritime boundary with both India and Myanmar. This is a good case study as the land of Bangladesh also dominates the seabed under the Bay of Bengal and our fishermen from all the coastal districts in a large number rely on fishing. Without which their very survival would be in stake and there are ample facts and figures in support of this. Both India and Myanmar are known to be bent upon using equidistance line as the line for maritime boundary demarcation with Bangladesh. But with both countries our coastline does not lie as exactly as an adjacent coast as in case of other countries. So we must study the methods through which we can prove our historic title or develop our case as relevant as special circumstances, or bring in the Islamic law as enunciated earlier, so as to get the advantage of the area likely to be lost due to following the equidistance line. Time is running out from our side on the delimitation of maritime boundary primarily because of our ignorance on the importance of the issue both at the political level as well as at the level of the ministry. Only the Ministry of Foreign Affairs can probably justify such long silence and inaction over the issue of maritime boundary delimitation with both India and Myanmar.

*The author is freelancer and an expert on maritime issues.

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Bangladesh boundaries

Mohammad Amjad Hossain

PRIMARILY, the foreign policy of a country is formulated on the basis of core interests of the state flowing from its prerogative to preserve its sovereignty. Territorial disputes are the most common conflict patterns that a nation's foreign policy should be able to address. In this area, the foreign policy of the government of Bangabandhu Sheikh Mujibur Rahman immediately after independence of Bangladesh complicated the process of demarcation of land and maritime boundaries with India, which surrounds Bangladesh on three sides. The handing over of Berubari enclave, for example, in exchange for Dahagram and Angarpota enclaves in India could hardly be justified because Berubari enclave was part of Pakistan according to the Noon-Nehru Agreement.Similarly, many non-demarcated and disputed enclaves, arbitrarily divided on either side of a border, may cause conflict between two neighbouring countries. A glaring example of a serious border clash between Bangladesh and Indian forces occurred in 2000, during the Awami League government. If a boundary problem remains, the population living along the border of the neighbouring countries is not able to live in peace. The 1962 war between India and China over a remote, mountainous, and largely uninhabitable territory known as Ladakh, and three wars between India and Pakistan over the princely state of India held Kashmir, are the results of boundary problems. The same problem of demarcation of maritime boundaries with Burma (now known as Myanmar) on the southern flank of Bangladesh remains unresolved. It was a serious mistake of the government of Bangabandhu Sheikh Mujibur Rahman, which could have resolved the process of demarcation of land and maritime boundary between Bangladesh and India as well as with Burma, during a favourable political climate that existed immediately after the birth of Bangladesh.It is a fact that Bangladesh's foreign policy during this initial period was not a balanced one, as Bangladesh favourably tilted towards the Indo-Soviet axis. The signing of a 25-year friendship treaty with India in 1972 alienated Pakistan and the western countries, while India improved relations with Pakistan at the expense of Bangladesh. The 25-year friendship treaty was a prototype of the one signed by India and the Soviet Union on August 8, 1971, before the Indian army intervened on behalf of the Mukti Bahini (the army that fought for the independence of Bangladesh) when it demonstrated its ability to survive the onslaught of the Pakistan army. Moreover, the signing of three-party treaty in India by Pakistan, India and Bangladesh in April, 1973, doomed the trial of the prisoners of war. As a result, the government of Bangladesh could not honour its commitment for holding the trial of the prisoners of war. The apportionment of assets and liabilities remains unresolved between Bangladesh and Pakistan till today.Against the backdrop of this scenario, the government of Bangladesh should pursue, both with India and Burma, the resolution of the issue of demarcation of boundaries and disputed enclaves to have peaceful borders, which is a sine quo non for the economic development of the countries in the region. Geopolitics does not dictate formulation of foreign policy, which was the case in the twentieth century. Bangladesh is surrounded by India on three sides, with a small border with Myanmar in the South-East and the Bay of Bengal on the southern flank. Therefore, geographical compulsion dictates that laying the foundation of friendly relations with the neighbouring countries should be the cornerstone of the foreign policy of Bangladesh. Logically, it should focus primarily on its giant, and closest, neighbour: India. Bangladesh and India share 4,000 kilometres of border, and 54 rivers as well. India, with roughly eight times the population and more than twelve times the GDP, should be the major attention of Bangladesh's foreign policy.Another area of conflict with India is the equitable sharing of waters of the common rivers. Both Bangladesh and India should sit together to sort out the problem of sharing water to the mutual benefit of the people of each country in line with international maritime law. Though there is agreement with the comments made by the foreign affairs advisor at the Bangladesh-India dialogue sponsored by the Centre for Policy Dialogue in Dhaka on December 11, the initiative should come from Bangladesh to resolve the sharing of common rivers as per International maritime laws. India cannot deny the rights of the lower riparian country. Attention is invited to an article by this writer, which The Daily Star carried on September 13. On the other hand, being a big neighbour, India should extend a hand of cooperation to its neighbours in the greater interest of the people of the South-Asian region. This region is inhabited by one billion people living in abject poverty. Peace and security are prerequisite conditions for the economic development of the countries of the region. It is only in an environment of peace and security that problems can be addressed and tackled successfully. Presently, economic and commercial interests have received prominence in the formulation of the policy when conducting foreign relations. Therefore, trade, not aid, should receive priority in the foreign policy of Bangladesh, which is still suffering from poverty, natural disasters and uncertain political climate.Bangladesh is still dependent on foreign aid, and will continue to remain so unless efforts are made to diversify its trade policies. The flow of aid has been declining in recent times. The United States, for example, is no longer the world's largest donor of economic aid. Bangladesh is presently a recipient of negligible aid from the United States. Japan has become the top donor to Bangladesh. Most European countries attach conditions for granting aid. These are: good governance, establishment of democratic institutions, and rule of law and improvement of human rights. Strictly speaking, Bangladesh does not qualify for foreign aid if European countries strictly adhere to the criteria attached for granting aid. In view of the declining trend of bilateral aid, Bangladesh should find ways to have more markets for its products. Bangladesh should develop good trade relations with India, where products from Bangladesh could enjoy the market of 90 million at least. Similarly, Bangladesh should pursue with the government of India to allow a corridor to Nepal to use Chalna (Khulna ) port in Bangladesh, which would help increase trade relations between Bangladesh and Nepal. Furthermore, Bangladesh should pursue a policy to cultivate entrepreneurs from India and western countries to encourage direct foreign investment in Bangladesh, which will substantially restructure the country's economy. This will also help open up job opportunities for the unemployed. For the purpose of inviting Foreign Direct Investment (FDI), there is an urgent need to increase the level of efficiency of the government, board of investment, national board of revenue, and export promotion bureau in particular. Red tape should be dispensed with to promote trade relations. The image of the country depends not only on the position of the country in the community of nations, but also on the successes and failures of the political leadership. As German Chancellor Otto Von Bismarck rightly pointed out: "foreign policy is the extension of domestic policy." If domestic policy is not formulated on a correct path a country's foreign policy will not succeed.

Mohammad Amjad Hossain, former Bangladesh diplomat, writes from Virginia.

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