Monday Morning Meeting on Resolution of the "Grey Areas" in the Bay of Bengal: India, Bangladesh and Myanmar

Capt. Anurag Bisen, Research Fellow, Manohar Parrikar Institute for Defence Studies and Analyses, spoke on “Resolution of the "Grey Areas" in the Bay of Bengal:  India, Bangladesh and Myanmar” at the Monday Morning Meeting held on 20 June 2022. The session was chaired by Dr. Smruti S. Pattanaik, Research Fellow, MP-IDSA. Senior scholars, research analysts and interns of the institution were in attendance.

EXECUTIVE SUMMARY

DETAILED REPORT

Dr. Smruti commenced the session by highlighting that land and maritime boundary settlements between India and Bangladesh continue to remain incomplete. With this context, she introduced the audience to grey areas and the overlapping Continental Shelf and EEZ claims in the Bay of Bengal region. She also noted that the discussion on grey areas cannot remain limited to India and Bangladesh and requires a trilateral focus by featuring Myanmar.

With these remarks, Dr. Smruti invited Capt. Anurag to make his presentation. At the outset, Capt. Anurag pointed out that the issue of grey areashas not received adequate attention, possibly due to the complexity of the case, the presence of multiple stakeholders, and lack of expertise on the topic. He reiterated the critical importance of the issue towards collective security and development of Bay of Bengal. For ease of understanding, Capt. Anurag introduced the audience to the geographical features of the Bay of Bengal region and the framework of the United Nations Convention on the Law of the Sea (UNCLOS). He also explained Baselines, Continental Shelf (CS) and Exclusive Economic Zones (EEZs).  He pointed out that claims to the Extended Continental Shelf (ECS) require submission to the Commission on the Limits of the Continental Shelf (CLCS). Both India and Bangladesh made their submissions in 2009 and 2011, respectively. Through a timeline of events, Capt. Bisen elucidated that following Bangladesh’s arbitrary proceedings against India and Myanmar in 2009, the ITLOS judgment of 2012 and the Arbitral Award of 2014 resulted in the creation of a grey area.

In the next part of his presentation, Capt. Anurag employed interactive maps to display the grey areas between India, Bangladesh, and Myanmar. He brought out that as a consequence of delimitation, Myanmar’s EEZ rights in the water column overlapped with Bangladesh’s CS rights on the seabed. Similarly, Capt. Anurag explained the grey area that arose between India’s EEZ rights and Bangladesh’s CS rights as a result of the Arbitral Tribunal Award. He also presented the grey area between India and Myanmar that was created due to an overlap between the India versus Bangladesh tribunal award and the Bangladesh versus Myanmar ITLOS judgment. Following an analysis of the grey areas, Capt. Anurag mentioned that, in 2015, Bangladesh declared a set of four new basepoints that resulted in the southward shift of Bangladesh’s baseline reducing the India-Myanmar EEZ overlap area to nil. In the context of Bangladesh’s revision of basepoints, Capt. Anurag presented an assessment of India and Myanmar’s protests against the announcement. He noted that Bangladesh has not announced any alteration of the grey areas, the decisions rendered under the UNCLOS dispute resolution mechanisms are binding and that Bangladesh has reiterated its intention to follow arbitral awards.

Capt. Anurag then briefly addressed the practical consequences of the grey area and elucidated on the rights of India and Bangladesh for activities like scientific exploration and artificial installations in the grey area. In his discussion of the issue, Capt. Anurag also shed light on the dispute resolution mechanisms of the UNCLOS in such overlapping maritime claims. He pointed out that the UNCLOS does not provide clear mechanisms to resolve grey area disputes. It provides a cooperation-driven approach that places the burden of conduct on states. Capt. Anurag highlighted that bilateral cooperation continues to be the preferred approach for maritime resolutions and less than one per cent of disputes are settled through judicial decisions.

With this observation as the basis, Capt. Anurag moved to the next part of his presentation, which focused on cases of cooperative regimes in overlapping maritime claims from around the world. He began by presenting the case of Russia and Norway. In other examples, he presented cases from Denmark and the United Kingdom, France and Spain, Qatar and Abu Dhabi, Sudan and Saudi Arabia, Japan and South Korea, the Gulf of Thailand (comprising Cambodia, Malaysia, Thailand and Vietnam) and Australia and Papua New Guinea. Capt. Bisen also briefly explored the cooperative arrangements in the South China Sea. He pointed out that, in 2018, China and the Philippines signed a Memorandum of Understanding on cooperation in oil and gas development in the relevant maritime areas. Similarly, China and Vietnam signed the Gulf of Tonkin Agreement in 2000. He highlighted that rival states with a larger area at stake have managed to configure cooperative solutions to handle overlapping claims. However, such cooperative arrangements continue to remain absent in South Asia. Capt Bisen also derived common features of these cooperative regime resolutions. These included factors such as political will, the spirit of cooperation, clear definition of the grey area, clarity on jurisdiction and sovereignty, creation of a formal agreement, mechanisms for environment protection, collective maritime security operations and a without prejudice clause.

In the next part of his presentation, Capt. Bisen addressed the benefits of resolving the grey area issue. He argued that a resolution will facilitate clarity in regulation and extensive use of respective maritime zones. It will also enhance investor confidence and strengthen maritime security in the Bay of Bengal region. He mentioned that the resolution will align with India’s maritime policies of SAGAR, ‘Neighborhood First’, and ‘Act East’ and facilitate regional cooperation under the BIMSTEC. More importantly, it will enable India to explore and exploit the Eastern ECS legally.

As part of his conclusion, Capt. Bisen presented a set of recommendations to resolve the issue. He highlighted that India and Bangladesh have shared robust bilateral relations, including maritime cooperation. He also pointed out that the grey area is minuscule and represents only a 0.00017th part of India’s 2.3 million sq.km. EEZ. While these factors may facilitate cooperation between India and Bangladesh, the grey area of 2059 sq. km. between Bangladesh and Myanmar could prove challenging to resolve.

He presented that India and Myanmar and India and Bangladesh could solve their respective issues in the first stage of resolution. He argued that the same template could then be employed to resolve the Bangladesh- Myanmar grey area issue. He also recommended the creation of a Joint Boundary Working Group led by the Ministry of External Affairs or Bangladesh’s inclusion in the existing group with India and Myanmar. He concluded with an emphasis on India’s role in resolving the issue and its collective benefits for security and development.

DISCUSSION

Following Capt. Anurag’s presentation, MP-IDSA scholars had the opportunity to provide their valuable inputs. Dr. Smruti raised questions with regard to Bangladesh’s objections at the CLCS. With references to individual political figures in Bangladesh, she stated that the grey area issue needs domestic contextualisation. She added that the issue is also interlinked to Myanmar’s complicated relationship with Bangladesh and its policies on the Rohingya refugees. In her remarks, Dr. Smruti highlighted that the grey area issue between India and Bangladesh also raises doubts on the ‘Blue Economy’ partnership between the two states. In response to her queries, Capt. Anurag answered that India’s submission at the CLCS can be processed only after Bangladesh and Myanmar withdraw their objections. He reiterated that the impact of the complex relationship between Bangladesh and Myanmar can be countered by adopting a phase-by-phase bilateral discussion approach.

The discussion then shifted to Cmde. Abhay Singh who shared his personal experience on panel discussions with serving officers from Bangladesh. He highlighted the fundamental differences between grey areas and disputed areas. In addition, he made a query about the Joint Development MoUs in the South China Sea and their lack of implementation. Capt. Anurag stated that the purpose of using examples from the South China Sea region was to flag the absence of such agreements in South Asia.

Dr. Rajiv Nayan questioned the speaker about the possibility of India raising an appeal in the International Court of Justice against arbitrary decisions of the Tribunal. Capt. Anurag responded that while legally India may institute a fresh case under the ITLOS to seek its entitlements, it may not be viewed positively. He added that the 2014 Arbitral Tribunal verdict is final and binding.

Participating in the discussion, Dr. Gulbin Sultana raised a question on the status of Joint Development initiatives between India and Bangladesh and whether there are any discussions on artificial infrastructure installments between the two states. In his response, Capt. Anurag said that since both EEZ as well as Continental Shelf rights provide for installation of artificial structures, in the grey area, this might become a bone of contention. Lastly, Mr. Niranjan Oak raised a query on interlinkages of the Teesta Water agreement with the India- Bangladesh grey area issue.

The discussion ended with a vote of thanks by Dr. Smruti Pattanaik.