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Seabed Boundaries in the Northern Bay of Bengal: The Unclear Role of the Commission on the Limits of the Continental Shelf in Paving the Way to Resource Exploitation

Published online by Cambridge University Press:  26 February 2021

Andrew SERDY Open the ORCID record for Andrew SERDY [Opens in a new window]
Andrew SERDY*
Affiliation:
University of Southampton, United Kingdom and Ghent University, [email protected]
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Abstract

Even before Bangladesh's submission on the outer limits of its continental shelf beyond 200 miles from its baseline reaches the head of the queue awaiting the attention of the Commission on the Limits of the Continental Shelf, the maritime boundary delimitations with Myanmar (2012) and India (2014) have produced a unique situation, in which Bangladesh's seabed boundaries have been fully delimited with both neighbours, creating a single continuous outer limit landward of the one submitted to the Commission. This may mean that there is no need to await the Commission's reaction to Bangladesh's submission, as there is nothing to stop Bangladesh simply beginning to exploit areas on its side of the two boundaries. This paper examines whether the position is really that simple, and whether any other state might have grounds for objecting if Bangladesh does so, together with deficits of co-operation that may confound early moves to exploitation.

Type
Articles
Information
Asian Journal of International Law , Volume 11 , Issue 1 , January 2021 , pp. 118 - 145
Copyright
Copyright © The Author(s), 2021. Published by Cambridge University Press

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Footnotes

*

Professor of the Public International Law of the Sea. This paper was originally delivered as a presentation under the title “The Outer Limit of Bangladesh's Continental Shelf after the Delimitation of its Boundaries with its Neighbours: Is There Still Any Role for the CLCS?” at the 8th Conference of the [International Hydrographic Organisation and International Association of Geodesy] Advisory Board on the Law of the Sea, Monaco, 21 October 2015. In addition to thanking an anonymous reviewer for a number of worthwhile suggestions to improve the text, the author is grateful for the observation from the floor at the 2015 conference, by a participant whose name has sadly been lost to time, that alerted him to the Sri Lankan dimension of the issue.

References

1. United Nations Convention on the Law of the Sea, 10 December 1982, 1833 U.N.T.S. 3 (entered into force 16 November 1994) [UNCLOS].

2. UNCLOS art. 77(1) and (2) provide that: 1. The coastal state exercises over the continental shelf sovereign rights for the purpose of exploring it and exploiting its natural resources. 2. The rights referred to in paragraph 1 are exclusive in the sense that if the coastal state does not explore the continental shelf or exploit its natural resources, no one may undertake these activities without the express consent of the coastal state.

3. Dispute Concerning Delimitation of the Maritime Boundary Between Ghana and Côte d'Ivoire in the Atlantic Ocean (Ghana v. Côte d'Ivoire), Judgment of 23 September 2017, [2017] ITLOS Rep. 4.

4. See MISHRA, Raghavendra, “The ‘Grey Area’ in the Northern Bay of Bengal: A Note on a Functional Cooperative Solution” (2016) 47 Ocean Development & International Law 29 at 29CrossRefGoogle Scholar and sources there cited.

5. Julian LEE, “Welcome to a Truly Free Oil Market” Bloomberg Opinion (29 March 2020), online: Bloomberg <https://www.bloomberg.com/opinion/articles/2020-03-29/the-coronavirus-means-it-s-a-truly-free-market-for-oil>, attributing to such reasoning Saudi Arabia's willingness to cut its production in past oversupply crises: “Those were the days when oil was regarded as a depleting asset whose value would only rise in the future, as demand outstripped available supply. Cutting production would leave oil in the ground that would appreciate in value.”

6. McGLADE, Christophe and EKINS, Paul, “The Geographical Distribution of Fossil Fuels Unused when Limiting Global Warming to 2°C” (2015) 517 Nature 187CrossRefGoogle ScholarPubMed.

7. Andrew WARD, “BP Warns of Price Pressures from Long-Term Oil Glut” Financial Times (26 January 2017), online: Financial Times <https://www.ft.com/content/28607ed2-e305-11e6-8405-9e5580d6e5fb>.

8. In the Matter of the Bay of Bengal Maritime Boundary Arbitration Between the People's Republic of Bangladesh and the Republic of India (Bangladesh v. India), Award of 7 July 2014, [2014] PCA Case No. 2010-16, online: PCA <https://pcacases.com/web/sendAttach/383> [2014 Award].

9. Dispute Concerning Delimitation of the Maritime Boundary Between Bangladesh and Myanmar in the Bay of Bengal (Bangladesh v. Myanmar), Judgment of 14 March 2012, [2012] ITLOS Rep. 4 [Bay of Bengal case].

10. See the North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark; Federal Republic of Germany v. Netherlands), Judgment of 20 February 1969, [1969] I.C.J. Rep. 3 and 175, and Figure 1.1 (Equidistance Cutoff in the Bay of Bengal) in Bangladesh's written pleadings in the Bay of Bengal case at 4–5, online: ITLOS <https://www.itlos.org/fileadmin/itlos/documents/cases/case_no_16/Memorial_of_Bangladesh_Volume1.pdf>, showing that, if its boundaries with each neighbour were drawn on the basis of equidistance, the two lines would meet well short of 200 miles. This would leave Bangladesh with sovereign rights over a far smaller area than Myanmar and India, which between them would have such rights over the remainder of the northern part of the Bay of Bengal, every point in which would be closer to one or the other of them than to Bangladesh.

11. Map 9 (Adjustment of the Provisional Equidistance Line) in 2014 Award, supra note 8 at 149.

12. The executive summary of Bangladesh's submission can be seen at People's Republic of Bangladesh, “Submission to the Commission on the Limits of the Continental Shelf, Executive Summary” (February 2011), online: UN <https://www.un.org/depts/los/clcs_new/submissions_files/bgd55_11/Executive%20summary%20final.pdf>.

13. This should be done within ten years of the entry into force of UNCLOS for the submitting state—see UNCLOS, supra note 1 at annex II, art. 4. Bangladesh complied with this requirement by making its submission on 25 February 2011, having ratified UNCLOS on 27 July 2001 (see the relevant webpage on the UN Treaty Collection website, “Chapter XXI Law of the Sea” (visited on 1 May 2020), online: UN <https://treaties.un.org/Pages/ViewDetailsIII.aspx?src=TREATY&mtdsg_no=XXI-6&chapter=21&Temp=mtdsg3&clang=_en>), the entry into force for Bangladesh occurring 30 days after that, by virtue of UNCLOS art. 308(2).

14. The text of the relevant paras. (8–10) of UNCLOS art. 76 is as follows:

8. Information on the limits of the continental shelf beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured shall be submitted by the coastal State to the Commission on the Limits of the Continental Shelf … The Commission shall make recommendations to coastal States on … the outer limits of their continental shelf. The limits of the shelf established by a coastal State on the basis of these recommendations shall be final and binding.

9. The coastal State shall deposit with the Secretary-General of the United Nations charts and relevant information, including geodetic data, permanently describing the outer limits of its continental shelf. The Secretary-General shall give due publicity thereto.

10. The provisions of this article are without prejudice to the question of delimitation of the continental shelf between States with opposite or adjacent coasts.

15. Rules of Procedure of the Commission on the Limits of the Continental Shelf, UN Doc. CLCS/40/Rev.1 (17 April 2008), at 22 [Rules of Procedure].

16. Bay of Bengal case, supra note 9 at 105, para. 397.

17. Rules of Procedure, supra note 15; subpara. 5(a) states that:

In cases where a land or maritime dispute exists, the Commission shall not consider and qualify a submission made by any of the States concerned in the dispute. However, the Commission may consider one or more submissions in the areas under dispute with prior consent given by all States that are parties to such a dispute.

This would appear to be an overimplementation of UNCLOS art. 76(10), which speaks of non-prejudice to delimitation, but makes no mention of disputes: according to PARSON, Lindsay, “Article 76” in PROELSS, Alexander, ed., The United Nations Convention on the Law of the Sea: A Commentary (Munich: C.H. Beck/Hart/Nomos, 2017), 587 at 599Google Scholar:

Delimitation is not the intention nor the remit of any part of Art. 76, and this allows the Commission to proceed with its work divorced completely from issues of the existing, or future position of maritime boundaries. The Commission has chosen to interpret this in Annex I of its Rules of Procedure to preclude its examination of submissions which are in any way subject to disputed areas relevant to the continental shelf.

In the case of Bangladesh's continental shelf boundaries, it is true that Bangladesh formerly had delimitation disputes with both of its neighbours, but the Bay of Bengal case and 2014 Award have settled those disputes. Any remaining dispute that may subsist about how to co-ordinate the exercise of their rights in the grey areas considered in the next section is irrelevant to the CLCS's examination of the blocked submissions and cannot justify its continued inaction.

18. Bay of Bengal case, supra note 9 at 102–3, paras. 390–4.

19. MAGNÚSSON, Bjarni Már, “Outer Continental Shelf Boundary Agreements” (2013) 62 International and Comparative Law Quarterly 345 at 350–68CrossRefGoogle Scholar.

20. “Agreed Minutes on the Delimitation of the Continental Shelf beyond 200 Nautical Miles between the Faroe Islands, Iceland and Norway in the Southern Part of the Banana Hole of the Northeast Atlantic” (20 September 2006), online: Government of Norway <https://www.regjeringen.no/en/dokumenter/Agreed-Minutes/id446839>; “Agreed Minutes on the Delimitation of the Continental Shelf beyond 200 Nautical Miles between Greenland and Iceland in the Irminger Sea” (16 January 2013), online: Government of Iceland <https://www.government.is/media/utanrikisraduneyti-media/media/thjodrettarmal/Agreed-Minutes-og-vidaukar.pdf>.

21. For present purposes, the northern part of the Bay of Bengal may be defined as that part of the Bay lying north of the 14th parallel of North latitude, with the remainder of that body of water forming its southern part. This dividing line has been chosen so as to ensure that (1) the whole of the area landward of the outer limit lines submitted by Bangladesh to the CLCS lies north of it, and also, for the sake of avoiding needless complication, that (2) no states other than the four already mentioned in the main text have potential continental shelf entitlements projecting north of it. In particular, to the extent that such entitlements of the next nearest state, Thailand, whose land boundary with Myanmar meets the sea at its western end at approximately 10°N, project at all into the Bay of Bengal rather than being blocked by the presence of the Andaman and Nicobar Islands belonging to India, they do so only into its southern part.

22. See the table in UN, “Submissions, through the Secretary-General of the United Nations, to the Commission on the Limits of the Continental Shelf, pursuant to article 76, paragraph 8, of the United Nations Convention on the Law of the Sea of 10 December 1982”, online: UN <https://www.un.org/depts/los/clcs_new/commission_submissions.htm> [Table of Submissions].

23. Progress of Work in the Commission on the Limits of the Continental Shelf—Statement by the Chairperson, UN Doc. CLCS/72 (16 September 2011), at 7, para. 22 [UN Doc. CLCS/72].

24. Statement by the Chairperson of the Commission on the Limits of the Continental Shelf on the Progress of Work in the Commission, UN Doc. CLCS/68 (17 September 2010), at 13–14, para. 57 [UN Doc. CLCS/68].

25. As required by art. 5 of annex II to UNCLOS, supra note 1.

26. Progress of Work in the Commission on the Limits of the Continental Shelf—Statement by the Chair, UN Doc. CLCS/50/2 (5 September 2019), at 13, para. 81. The submissions put aside after reaching the front of the queue were at that time eight in number: these are listed ibid., at para. 77.

27. Permanent Mission of the Republic of the Union of Myanmar to the United Nations, Note No. 146 / 03 20 17 (31 March 2011), online: UN <https://www.un.org/Depts/los/clcs_new/submissions_files/bgd55_11/mmr_nv_un_001_08_04_2011.pdf>. The Myanmar Note opens by saying that in Myanmar's view Bangladesh has no entitlement to any continental shelf beyond 200 nautical miles, but this issue was soon thereafter resolved in Bangladesh's favour in the Bay of Bengal case, supra note 9.

28. Permanent Mission of the Republic of India to the United Nations, Note No. PM/NY/443/2/2011 (20 June 2011), online: UN <https://www.un.org/Depts/los/clcs_new/submissions_files/bgd55_11/ind_nv_un_001_20_06_2011.pdf>.

29. Accord UN Doc. CLCS/72, supra note 23 at 7, para. 21, per the leader of the Bangladesh delegation making the initial presentation of the submission to the Commission as a whole.

30. JENSEN, Øystein, The Commission on the Limits of the Continental Shelf: Law and Legitimacy (Leiden/Boston: Brill, 2014) at 65–71CrossRefGoogle Scholar; Andrew SERDY, “Annex II, Article 9” in Proelss, supra note 17, 2104 at 2111–12.

31. ITLOS in its 2012 Judgment accepted that the area subject to delimitation was a long way from the Area: Bay of Bengal case, supra note 9 at 94, para. 353 and 97, para. 368.

32. Supra note 14.

33. Although the ISA does have a role in enforcing UNCLOS art. 82, as the conduit through which payments based on the value or volume of production from the area beyond 200 nautical miles will be redistributed among States Parties according to an equitable formula yet to be negotiated, this does not give it any standing to argue for any particular location of the outer limit. Rather, the deep seabed area it administers is the residue left over after the outer limits of states’ continental shelves beyond 200 miles have been delineated; see UNCLOS art. 134(4).

34. Note, however, that the effect of UNCLOS art. 76(10) is not absolute: it does not permit two states to escape the constraints of the art. 76 rules vis-à-vis all other states by agreeing inter se to delimit a boundary separating areas to which they are not actually entitled under those rules. Were it otherwise, delimitation would become constitutive of the states’ titles to seabed areas, rather than merely resolving the overlap of existing titles.

35. Bay of Bengal case, supra note 9 at 115, para. 444.

36. See the outer limits in the executive summaries of their submissions, Republic of the Union of Myanmar, “Continental Shelf Submission of Union of Myanmar, Executive Summary” (December 2008), online: UN <https://www.un.org/Depts/los/clcs_new/submissions_files/mmr08/mmr_es.pdf> and Republic of India, “The Indian Continental Shelf—Partial submission to the Commission on the Limits of the Continental Shelf, pursuant to article 76, paragraph 8 of the United Nations Convention on the Law of the Sea” (2009), online: UN <https://www.un.org/Depts/los/clcs_new/submissions_files/ind48_09/ind2009executive_summary.pdf>, at 8 and 12, respectively.

37. The text of the provision (“The rights of the coastal State over the continental shelf do not depend on occupation, effective or notional, or on any express proclamation.”) does not explicitly say this, but the delineation by the coastal state of its outer limits under para. 7 of art. 76, and their deposit with the United Nations and subsequently the publicity given to them under para. 9, are necessarily public pronouncements, either of which might be regarded as a “proclamation”.

38. Bay of Bengal case, supra note 9 at 107, paras. 408–10.

39. 2014 Award, supra note 8 at 20–2, paras. 74–82.

40. Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment of 19 November 2012, [2012] I.C.J. Rep. 624 at 669, paras. 127–9.

41. In such a case, the sovereign rights of the coastal state in its EEZ, which normally embrace the seabed and subsoil as provided in UNCLOS art. 56(1)(a), will in practice be confined to the water column.

42. Convention on the Continental Shelf, 29 April 1958, 499 U.N.T.S. 311 (entered into force 10 June 1964).

43. The Virginia Commentary states that “[u]nder the 1982 Convention the superjacent waters of the continental shelf either come within the [EEZ] of the coastal State or are part of the high seas”: Myron H. NORDQUIST, Satya N. NANDAN, and Shabtai ROSENNE, eds., United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (Dordrecht/Boston/London: Martinus Nijhoff Publishers, 1993) at 906, para. 78.8(a). According to a more recent commentary, Amber Rose MAGGIO, “Article 78”, in Proelss, supra note 17, 614 at 616: “The legal status of the waters above the continental shelf is not determined by reference to the shelf, but rather the limits of the EEZ of the relevant coastal State.” This formulation leaves room for a different state to be the “relevant coastal State”.

44. A maritime boundary treaty negotiated at the same time as the Third UN Conference on the Law of the Sea had separate boundaries for seabed jurisdiction and fisheries (water column) jurisdiction, resulting in the creation of an area in which Papua New Guinea's continental shelf was overlain by the Australian Fishing Zone and subsequently the Australian EEZ: Treaty Between Australia and the Independent State of Papua New Guinea Concerning Sovereignty and Maritime Boundaries in the Area between the Two Countries, Including the Area Known as Torres Strait, and Related Matters, 18 December 1978, 1429 U.N.T.S. 207 (entered into force 15 February 1985), art. 4 and annexes 5–8.

45. Map 11 (Grey Areas—Detail) in 2014 Award, supra note 8 at 161. The colour scheme of this map is suboptimal, obscuring the existence of an overlap between the two grey areas, which has its own legal significance explained below, by denying it a third colour: it is depicted in the same orange (appearing here as a darker shade of grey than its surrounds) as the remainder of the area of Bangladesh shelf under Indian EEZ, whereas the green (in greyscale rendered almost as black) shows only that part of the Bangladesh shelf under Myanmar's EEZ that is not also under the Indian EEZ. For a three-colour map, see Figure 5 (Detailed depiction of the Bay of Bengal Grey Area, Adapted from India–Bangladesh PCA Award (2014)) in Mishra, supra note 4 at 35.

46. Mishra, supra note 4 at 33–4, where the figure of 545 square miles appears to be an arithmetical error, too big to be a rounding error, contradicted by the sum of the three component sub-areas.

47. 2014 Award, supra note 8 at 155, para. 500.

48. Ibid., at 157, para. 508. This follows a paragraph (para. 507, ibid., at 156) drawing attention to provisions within UNCLOS envisaging “shared rights” and “recogniz[ing] to a greater or lesser degree the rights of one State within the maritime zones of another”, mentioning in relation to the EEZ and continental shelf arts. 56, 58, 78, and 79 which “all call for States to exercise their rights and perform their duties with due regard to the rights and duties of other States”. The parallel is inexact, however, as these are all situations of a single coastal state on one hand and a user or flag state on the other, whereas in the grey areas the issue is between two coastal states.

49. Ibid., at para. 504.

50. Treaty Between the Government of Australia and the Government of the Republic of Indonesia Establishing an Exclusive Economic Zone Boundary and Certain Seabed Boundaries, 14 March 1997 (not yet entered into force), reprinted in CHARNEY, Jonathan I. and SMITH, Robert W., eds., International Maritime Boundaries, Vol 4 (The Hague/London/New York: Martinus Nijhoff, 2002) at 2697Google Scholar.

51. Under the heading “Areas of Overlapping Jurisdiction”, the full text of art. 7 is as follows:

In those areas where the areas of exclusive economic zone adjacent to and appertaining to a Party (the First Party) overlap the areas of seabed adjacent to and appertaining to a Party being the other Party (the Second Party):

  1. (a)

    (a) the First Party may exercise exclusive economic zone sovereign rights and jurisdiction provided for in the 1982 Convention in relation to the water column;

  2. (b)

    (b) the Second Party may exercise continental shelf sovereign rights and jurisdiction provided for in the 1982 Convention in relation to the seabed;

  3. (c)

    (c) the construction of an artificial island shall be subject to the agreement of both Parties. An “artificial island” for the purposes of this Article is an area of land, surrounded by water, which is above water at high tide by reason of human intervention;

  4. (d)

    (d) the Second Party shall give the First Party three months notice of the proposed grant of exploration or exploitation rights;

  5. (e)

    (e) the construction of installations and structures shall be the subject of due notice and a permanent means of giving warning of their presence must be maintained;

  6. (f)

    (f) (i) any installation or structure which is abandoned or disused shall be removed by the Party which authorised its construction in order to ensure the safety of navigation, taking into account any generally accepted international standards established in this regard by the competent international organisation; (ii) such removal shall also have due regard to fishing and to the protection of the marine environment. Appropriate publicity shall be given to the depth, position and dimensions of any installations or structures not entirely removed;

  7. (g)

    (g) the construction of a fish aggregating device shall be the subject of due notice;

  8. (h)

    (h) the Party constructing an artificial island, installation, structure or fish aggregating device shall have exclusive jurisdiction over it;

  9. (i)

    (i) marine scientific research shall be carried out or authorised by a Party in accordance with the 1982 Convention and such research shall be notified to the other Party;

  10. (j)

    (j) the Parties shall take effective measures as may be necessary to prevent, reduce and control pollution of the marine environment;

  11. (k)

    (k) each Party shall be liable in accordance with international law for pollution of the marine environment caused by activities under its jurisdiction;

  12. (l)

    (l) any island within the meaning of Article 121.1 of the 1982 Convention which emerges after the entry into force of this Treaty shall be the subject of consultations between the Parties with a view to determining its status;

  13. (m)

    (m) neither Party shall exercise its rights and jurisdiction in a manner which unduly inhibits the exercise of the rights and jurisdiction of the other Party; and

  14. (n)

    (n) the Parties shall cooperate with each other in relation to the exercise of their respective rights and jurisdiction.

52. HERRIMAN, Max and TSAMENYI, B. Martin, “The 1997 Australia-Indonesia Maritime Boundary Treaty: A Secure Legal Regime for Offshore Resource Development?” (1998) 29 Ocean Development & International Law 361CrossRefGoogle Scholar.

53. See the General and Special Notices accompanying Geoscience Australia, “Offshore Petroleum Exploration Acreage Release, Australia 2014” (2014), online: Geoscience Australia <https://web.archive.org.au/awa/20160228063410mp_/http://petroleum-acreage.gov.au/files/files/2014/documents/special-notices/Special_Notices.docx>, at 13, referring to the Agreement Between the Government of the Commonwealth of Australia and the Government of the Republic of Indonesia Establishing Certain Seabed Boundaries in the Area of the Timor and Arafura Seas, Supplementary to the Agreement of 18 May 1971, 9 October 1972, 974 U.N.T.S. 319 (entered into force 8 November 1973) and to Australia's practice of not just acting in accordance with the 1997 treaty in advance of its entry into force but giving Indonesia three months’ notice of the release, even though art. 7(d) requires such notice only when a licence is granted.

54. Mishra, supra note 4 at 34.

55. 2014 Award, supra note 8 at 156, para. 506.

56. By two Notes identically numbered addressed to the Secretary-General of the United Nations, the first in relation to Myanmar dated 23 July 2009, Permanent Mission of the People's Republic of Bangladesh to the United Nations, Note No. PMBNY-UNCLOS/2009- (23 July 2009), online: UN <https://www.un.org/depts/los/clcs_new/submissions_files/mmr08/clcs16_2008_mmr_bgd_e.pdf> and the second in relation to India dated 29 October 2009, Permanent Mission of the People's Republic of Bangladesh to the United Nations, Note No. PMBNY-UNCLOS/2009- (29 October 2009), online: UN <https://www.un.org/depts/los/clcs_new/submissions_files/ind48_09/bgd_re_ind_clcs48_2009e.pdf>, are ambiguous as to whether Bangladesh is actually withholding its consent to the CLCS moving to examine the submissions, but they both use the problematic term “dispute” found in annex I to the CLCS Rules of Procedure (paras. 2 and 8 of the former and 2(a) and 4 of the latter). The 2012 ITLOS Judgment and the parties themselves seem to have assumed that the earlier Note does amount to an objection, which was one of the reasons for ITLOS not to wait for the art. 76 process to play out before drawing the boundary beyond 200 miles: Bay of Bengal case, supra note 9 at 98–103, paras. 369–94. As the Myanmar submission was one of the earlier ones made to the CLCS and reached the front of the queue as early as 2010, the CLCS too would not have put it aside unexamined unless it likewise treated the Note of 23 July 2009 as an objection enabled by para. 5 of annex I: UN Doc. CLCS/68, supra note 24 at 12, paras. 50–1.

57. Figure 3 (Map showing the outer limits of the continental shelf of Sri Lanka beyond 200 M), in Democratic Socialist Republic of Sri Lanka, “Continental Shelf Submission of Sri Lanka, Executive Summary” (8 May 2009), online: UN <https://www.un.org/Depts/los/clcs_new/submissions_files/lka43_09/lka2009executivesummary.pdf>, at 12.

58. Sri Lanka's submission was made on 8 May 2009, whereas Bangladesh instituted arbitral proceedings against Myanmar, later transferred to ITLOS, on 8 October 2009: Table of Submissions, supra note 22; Bay of Bengal case, supra note 9 at 10, para. 1.

59. Permanent Mission of the Republic of India to the United Nations, Note No. NY/PM/161/2/2010 (10 May 2010), online: UN <https://www.un.org/depts/los/clcs_new/submissions_files/lka43_09/clcs_43_2009_los_ind.pdf>.

60. Permanent Mission of the People's Republic of Bangladesh to the United Nations, Note No. PMBNY-Unclos/2010 (20 October 2010), online: UN <https://www.un.org/Depts/los/clcs_new/submissions_files/lka43_09/clcs_43_2009_los_bgd.pdf> [Note No. PMBNY-Unclos/2010].

61. See Progress of Work in the Commission on the Limits of the Continental Shelf: Statement by the Chair, UN Doc. CLCS/52/2 (25 March 2020), at 8, paras. 47–51, referring to interactions between the Sri Lankan delegation and the subcommission in February 2020 during the Commission's 52nd session.

62. Progress of Work in the Commission on the Limits of the Continental Shelf—Statement by the Chair, UN Doc. CLCS/95 (21 September 2016), at 22–3, paras. 106, 108, 109.

63. Annex II—Statement of Understanding Concerning a Specific Method to be Used in Establishing the Outer Edge of the Continental Margin, Final Act of the Third United Nations Conference on the Law of the Sea, 10 December 1982, 1835 U.N.T.S. 291.

64. This is noted in the Note by Bangladesh in response to the submission, which observes that the area is more than 350 nautical miles from Sri Lanka's baseline and more than 100 miles beyond the 2500-metre isobath and thus complies with neither of the constraints, but reserves its position as regards further steps: Note No. PMBNY-Unclos/2010, supra note 60. See generally PINTO, M. Christopher W., “Article 76 of the UN Convention on the Law of the Sea and the Bay of Bengal Exception” (2013) 3 Asian Journal of International Law 215 at 222–4, 226–8CrossRefGoogle Scholar, arguing that Sri Lanka is exempt from the para. 5 constraints; the opposite view is taken in Lindsay PARSON, “Annex II to the Final Act: Statement of Understanding Concerning a Specific Method to be Used in Establishing the Outer Edge of the Continental Margin”, in Proelss, supra note 17, 600 at 601: “This special methodology provides an alternative to either of the criteria laid out in of [sic] Art. 76(4)(a)(i) and (ii).”

65. Scientific and Technical Guidelines of the Commission on the Limits of the Continental Shelf, UN Doc. CLCS/11 (13 May 1999), at 57, para. 8.1.12.

66. See generally arts. 5 and 6(1) of annex II to UNCLOS, supra note 1, respectively concerning how subcommissions operate and their interaction with the full Commission.

67. Supra note 11. The boundary in question is established by the Agreement Between Sri Lanka and India on the Maritime Boundary Between the two Countries in the Gulf of Mannar and the Bay of Bengal and Related Matters, 23 March 1976, 1049 U.N.T.S. 43 (entered into force 10 May 1976), art. 2.

68. As per the North Sea Continental Shelf Cases, supra note 10 at 31, para. 43:

[W]henever a given submarine area does not constitute a natural–or the most natural–extension of the land territory of a coastal State, even though that area may be closer to it than it is to the territory of any other State, it cannot be regarded as appertaining to that State;–or at least it cannot be so regarded in the face of a competing claim by a State of whose land territory the submarine area concerned is to be regarded as a natural extension, even if it is less close to it.

69. Bay of Bengal case, supra note 9 at 113–14, paras. 433–8.

70. Supra note 34 and accompanying text.

71. Progress of Work in the Commission on the Limits of the Continental Shelf—Statement by the Chairperson, UN Doc. CLCS/74 (30 April 2012), at 11–12, para. 59.

72. The communication from Myanmar is not in the public domain, but is mentioned and dated (5 July 2012) in Bangladesh's response in the next footnote.

73. Permanent Mission of the People's Republic of Bangladesh to the United Nations, Note No. PMBNY/67/UNCLOS/2012 (30 September 2012), online: <https://www.un.org/Depts/los/clcs_new/submissions_files/mmr08/2012_09_30_BGD_NV_UN.pdf>, which refers to a separate communication from the Commission itself to Bangladesh of 14 August 2012, whose content can be inferred as inviting Bangladesh to withdraw its objection.

74. Ibid., at 1–2.

75. For a useful survey, see O'SULLIVAN, Naomi BURKE, “The Case Law's Handling of Issues Concerning Third States” in OUDE ELFERINK, Alex G., HENRIKSEN, Tore, and BUSCH, Signe V., eds., Maritime Boundary Delimitation: The Case Law: Is It Consistent and Predictable? (Cambridge: Cambridge University Press, 2018), 262–90CrossRefGoogle Scholar.

76. Progress of Work in the Commission on the Limits of the Continental Shelf—Statement by the Chair, UN Doc. CLCS/78 (1 April 2013), at 12, para. 47.

77. Republic of the Union of Myanmar, “The Republic of the Union of Myanmar Continental Shelf Submission, Executive Summary, Amended July 2015” (July 2015), online: UN <https://www.un.org/Depts/los/clcs_new/submissions_files/mmr08/Myanmar_Amended_Ex_Summary.pdf>, at 1.

78. Ibid., at 4–5.

79. Ibid., Figure 3 (Amended map demonstrating the outer limits of the extended Rakhine continental shelf of Myanmar, beyond 200 M), at 10.

80. This smaller polygon would then shrink further on completion of the outstanding delimitation between Myanmar and India in the central Bay of Bengal, but here Myanmar would have a good case for departure from the equidistance line in its favour. This is because, like Bangladesh, if not to the same extent, it too can plausibly claim the benefit of the concave coast argument, as the considerable geographical advantage to India through its Andaman and Nicobar Islands produces a situation in which Myanmar too is inequitably squeezed between its neighbours. A fuller analysis of the implications of this is beyond the scope of this paper.

81. Permanent Mission of the People's Republic of Bangladesh to the United Nations, Note No. PMBNY/CLCS/2015 (22 October 2015), online: UN <https://www.un.org/Depts/los/clcs_new/submissions_files/mmr08/2015_10_22_BGD_NV_UN.pdf>, at para. 2.

82. Ibid., at para. 3.

83. Ibid., at para. 4.

84. Ibid., at para. 5.

85. Permanent Mission of the Republic of India to the United Nations, Note No. NY/PM/443/1/2015 (30 October 2015), online: UN <https://www.un.org/Depts/los/clcs_new/submissions_files/mmr08/2015_10_30_IND_NV_UN.pdf>.

86. Supra note 71.

87. 2014 Award, supra note 8 at 147, para. 478 and 165, para. 509(3).

88. Report of the Twenty-Fourth Meeting of States Parties, UN Doc. SPLOS/277 (14 July 2014), at 14, para. 81 and 19, para. 113; Report of the Twenty-Fifth Meeting of States Parties, UN Doc. SPLOS/287 (13 July 2015), at 12, para. 59; Report of the Twenty-Sixth Meeting of States Parties, UN Doc. SPLOS/307 (2 August 2016), at 11, para. 61; Report of the Twenty-Seventh Meeting of States Parties, UN Doc. SPLOS/316 (10 July 2017), at 10, para. 57; Report of the Twenty-Ninth Meeting of States Parties, UN Doc. SPLOS/29/9 (8 July 2019), at 12, para. 70.

89. See People's Republic of Bangladesh, “Submission by the People's Republic of Bangladesh to the Commission on the Limits of the Continental Shelf[,] Executive Summary (Amended)” (October 2020), online: UN <https://www.un.org/Depts/los/clcs_new/submissions_files/bgd55_11/Executive%20summary_BGD_AMD.pdf>.