Court Watch
Unfortunately, the equidistance principle method only works fairly where shorelines are relatively straight. The principle adversely affects nations with concave coastlines, while inordinately ben- efiting their neighbors whose shores are convex. Were the equidistance principle to be used in the Bay of Bengal, Bangladesh’s concave coastline would effectively be limited to a triangle. India’s and Myanmar’s maritime boundaries would in- tersect roughly 200 miles south of Bangladesh’s border with India, effectively cutting it off from valuable oil fields beyond the 200-mile mark.
Recognizing the enormous value of mineral, biological, and navigational opportunities in the world’s oceans, the United Nations set about in the late1960s and 1970s to codify existing cus- tomary law of the sea and to consolidate four ex- isting conventions. The United Nations Conven- tion on the Law of the Sea (UNCLOS) entered into force in 1994, and ITLOS was established in 1996. To date, ITLOS has heard only 19 cas- es, mostly regarding the detention of merchant vessel crews in territorial boundary violations. Although landmark precedent (most notably the North Sea Continental Shelf Cases of 1967-69) predates ITLOS, the Bangladeshi complaint pres- ents an issue of first impression for the Tribunal.
When North Sea petroleum deposits were dis- covered in the 1960s, West Germany and her neighbors began to explore the seabed for drill- ing. Under equidistance calculations, Germany’s concave shoreline between Denmark and the Netherlands severely limited the scope of Ger- man claims on the sea floor. As the nations could not reach an understanding which would allow all three to grant licenses for petroleum exploration, West Germany complained to the International Court of Justice (ICJ) in 1967, seeking delineation of its EEZ under equitable principles. Realizing the arbitrariness of the equidistance principle, the ICJ ruled in 1969 that equitable principles be ap- plied to the dispute, and that German claims to the seabed must not be constrained by equidis-
tance. West Germany’s pleadings cited Bangla- desh (then East Pakistan) as a prime example of how equidistance severely limited EEZs for na- tions with concave coastlines. The ICJ’s decision became the basis for Article 83 of UNCLOS and provides the basis for the present case.
Historically, the recognized limit of territorial wa- ters extended only three miles from shore. Dur- ing the 20th century, however, fishing and mineral rights pushed the accepted limit out to 200 miles, set forth in the 1958 Convention of the Continen- tal Shelf. This limit is extended further still, if the continental shelf, a natural extension of the land mass on shore, extends farther than 200 miles. Though this is rare, where the shelf extends, so too does the maritime EEZ. Here lies the heart of Bangladesh’s second issue: the petroleum re- serves under dispute lie on the shelf beyond the 200-mile line.
Bangladesh asserts that equitable principles must be applied, as in the 1969 ICJ decision, because the equidistance principle is not established as customary international law. Bangladesh con- tends further that the continental shelf off its coast is a natural extension of its own inland mountain ranges. Myanmar contests these as- sertions, and argues instead for the equidistance method and 200-mile limitation.
Together, Bangladesh’s claims would not preclude those of Myanmar. Indeed, under equitable prin- ciples, Myanmar would still lay claim to a zone as vast as that of Bangladesh. It is likely that the Tri- bunal will apply the equity set forth by the ICJ in 1969. However, the trickier issue seems to be the distance at which the outer limit lies. To decide for Bangladesh, the Tribunal must adopt Bangla- desh’s claims regarding the geological extension of its mountain ranges beyond 200 miles from shore. A decision from ITLOS is likely to be an- nounced next year.
* Submitted by Aaron Lukken . ILSA Quarterly » volume 20 » issue 2 » December 2011 13
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