CYIL Vol. 7, 2016

SOMA HEGDEKATTE

CYIL 7 ȍ2016Ȏ

4. The Bay of Bengal Maritime Boundary Arbitration This historic verdict came almost five years after its initiation. The tribunal consisted of five members, with Dr. Pemmaraju Sreenivasa Rao being appointed by India and Bangladesh appointing Professor Vaughan Lowe QC. Judge Rüdiger Wolfrum, Professor Ivan Shearer and Professor Tullio Treves completed the tribunal. 19 The hearings were held in December 2013 and the final verdict was given by July 2014. The award is primarily divided into four parts: establishing the land boundary terminus, delimitation of the territorial sea, delimitation within and beyond 200nm. The first contention indirectly deals with the ownership of New Moore Island. UNLCOS does not have a provision for deciding sovereignty of islands. But the question of what is the flow of Haribhanga and the demarcation of this water boundary can be adjudicated under UNCLOS. Hence what was asked to be adjudicated by Bangladesh is the position of the land boundary terminus which divides the two countries. If the main channel of Haribhanga flows east to the island, then the island will belong to India, and if west, then to Bangladesh. When a water body acts like the boundary between two countries, the Thalweg doctrine or the mid channel principle is often used for delimitation. Thalweg is defined as the line of maximum depth along a river channel or lake or in any coastal channel. 20 That line is used as the water boundary between countries. In this case, the question was what the mid channel of river Haribhanga was. This would help in deciphering if the boundary was east to the island or west. In 1947 the Bengal Boundary Commission was constituted to decide the boundary line between India and East Pakistan (now Bangladesh). It was headed by Sir Cyril Radcliffe. The award (known as the Radcliffe award) states that the boundary shall be ‘the district boundary between 24 Parganas and Khulna till it reaches the Bay of Bengal’. 21 This district boundary was constituted in 1925 by Notification No. 964 Jur, which was issued by the Governor of Bengal. 22 The main point of contention revolved around the appropriate interpretation of the award. Two questions arose: – What would be the right analysis of the sentence ‘the main channel … of the rivers Ichhamati and Kalindi, Raimangal and Haribhanga till it meets the Bay’ as given in the aforesaid notification 23 – If the sentence meant the main channels of both the rivers conjoined and met the Bay together. 19 The Award, 4-6. 20 International Hydrographic Bureau ‘A manual on technical aspects on the United Nations convention on the law of the sea-1982’ , (Monaco Special Publication No 51 March 2006) , last accessed 1 May 2016. 21 The Award, 52. 22 Ibid ., 53. 23 Government of Bengal ,The Radcliffe award, Notification 964 Jur (24 January 1925).

382