ARTICLE

Dispute settlement in the law of the sea, the extendedcontinental shelf in the Bay of Bengal and the CLCS:some preliminary observations on the basis of the caseBangladesh/Myanmar before the InternationalTribunal for the Law of the Sea

Ioannis Konstantinidis

Published online: 4 November 2010

Aegean Institute of the Law of the Sea and Maritime Law 2010

Abstract On the basis of the maritime boundary dispute between Bangladesh andMyanmar in the Bay of Bengal, the scope of this article is to briefly describe

the relative procedures provided by the United Nations Convention on the Law of

the Sea Part XV and to analyse an important part of this dispute concerning the

delimitation of the outer continental shelf. Following this reasoning, a special ref-

erence is made to the Commission on the limits of the continental shelf, to which

Myanmar submitted all information and data for its continental shelf beyond

200 nautical miles in the Bay of Bengal.

Keywords Law of the sea dispute settlement Extended/outer continental shelf ITLOS Bay of Bengal

Resume Sur la base du differend maritime entre le Bangladesh et le Myanmardans le golfe du Bengale, cet article vise a` rappeler brie`vement les procedures

pertinentes prevues par la Convention des Nations Unies sur le Droit de la Mer/

Partie XV et de mettre en exergue un aspect delicat de ce differend, a` savoir la

delimitation du plateau continental au-dela` de 200 milles marins. Ensuite, nous

rappelons les fonctions et le role de la Commission des limites du plateau conti-

nental, a` laquelle le Myanmar a fait sa demande en fournissant toutes les infor-

mations et les coordonnees de son plateau continental etendu dans le golfe du

Bengale.

Mots cles Re`glement des differends en droit de la mer Plateau continental etendu TIDM Golfe du Bengale

I. Konstantinidis (&)Ecole de Droit de la Sorbonne/Sorbonne Law School, Centre dEtude et de Recherche en droit

international, University of Paris 1 Pantheon Sorbonne, Paris, France

e-mail: ioannis.konstantinidis@malix.univ-paris1.fr; ioannis.konstantinidis@gmail.com

123

Aegean Rev Law Sea (2011) 1:267285

DOI 10.1007/s12180-010-0015-1

1 Dispute settlement under the United Nations Convention on the Lawof the Sea (UNCLOS): the option of the International Tribunalfor the Law of the Sea (ITLOS)a brief historic approach

A variety of international courts and tribunals are now available to address a wide

range of international disputes. One such court is the ITLOS in Hamburg, Germany.1

This specialised tribunal was created by the UNCLOS2 and is a part of its

compulsory third-party dispute settlement system. The ITLOS and the Conventions

other dispute settlement mechanisms have only recently become available because of

the fact that the Convention entered into force in November 1994.3

The creation of ITLOS was controversial.4 Many people worried that the ITLOS

might contribute to divergent jurisprudence,5 having in mind that the International

Court of Justice (ICJ) and other law of the sea dispute settlement fora have

considerable experience in deciding law of the sea cases.6 Proponents of the ITLOS

argue that the quick and efficient justice provided, along with judges with law of the

sea expertise, make the creation of the ITLOS worthwhile. In addition, they

accentuate that the ITLOS can handle cases involving states, but also international

organisations, individuals and corporations.7

The ITLOSs primary responsibility is to interpret and apply the 1982 UNCLOS.

However, the issues it may address and the role it may fulfil, vary. The law of the

sea comprises rules governing a wide range of issues, such as zones of coastal state

jurisdiction, navigation, maritime boundary delimitation, fisheries, the marine

environment, marine scientific research and mining of the continental shelf and the

deep seabed. Some of these rules are old, some were created during the negotiations

of UNCLOS and some have been developed later. The oceans law regimes are not

isolated, but are linked to the Law of the Sea Convention, to various international

institutions, and to international law norms and compliance mechanisms

1.1 The UNCLOS

The 1982 UNCLOS contains wide-ranging provisions on dispute settlement. Any

State Party to the Convention or, under certain circumstances, another entity may

have recourse to an international tribunal to obtain a legally binding decision,

concerning a dispute related to the interpretation or application of the Convention or

certain other international agreements. Although the Convention contemplates that

1 For more information about the ITLOS, see http://www.itlos.org (last visited on 27 February 2010).2 The UNCLOS was signed on 10 December 1982 (Montego Bay, Jamaica) and entered into force on 16

November 1994, according to Article 308(1).3 The UNCLOS is now being implemented together with the Agreement relating to the Implementation

of the Part XI of the Convention of 1982. This agreement modifies some of the institutional and technical

features of the regime for mining the seabed. For an analysis of the 1994 Agreement, see Oxman (1999,

pp. 1535) and Gautier (1995, pp. 5677).4 See Queneudec (2002, pp. 621632).5 See Boyle (1997, pp. 3754).6 See Charney (1996, pp. 6975).7 See Treves (2000, pp. 726746) and Treves (2005, pp. 939).

268 I. Konstantinidis

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some disputes may be taken before previously existing bodies, it also provides for

new third-party tribunals, such as the ITLOS. The jurisdiction of any international

court of tribunal over a dispute rests eventually on the consent of the parties

involved. Acceptance of the Convention expresses that consent for state parties.

Why would states mutually consent to the jurisdiction of an international court or

tribunal before a dispute arose? In order to respond to this question, we have to

understand the negotiating context of the Conventions dispute settlement provi-

sions. The Convention was negotiated during a time of considerable confusion in

ocean-related disputed. The capacity to harvest non-living and living resources was

increased by the technological developments. Consequently, more maritime

boundaries disputes arose. Some developing states tried to assert sovereignty over

broad coastal zones. Maritime powers, on the other hand, sought to safeguard

passage through straits and other navigational freedoms. In addition, there was a

disagreement as how to address other issues, such as the marine environment,

marine scientific research and of course the regime for the mining of the seabed

beyond national jurisdiction.

Negotiations leading to the United Nations Convention on the Law of the Sea

involved more that 150 states and lasted for 9 years.8 Many negotiators thought that

compulsory dispute settlement mechanisms could strengthen the compromises

embodied in the Law of the Sea Convention. Some developing states believed that

including third-party dispute settlement provisions would counterbalance political

and economic pressure from power states. UN officials also favoured strong dispute

settlement provisions, alleging that this could maintain the integrity of the

Conventions compromise package deal.9 According to H.S. Amerasinghe,

President of UNCLOS III (Third United Nations Conference on the Law of the Sea),

the provision of effective dispute settlement procedures is essential for stabilizingand maintaining the compromise necessary for the attainment of agreement of theconventionabsent such procedures, the compromise will disintegrate rapidly andpermanently.10

On the contrary, many states were sceptic about including provisions for

obligatory binding, third-party dispute settlement. Developing states distrusted the

ICJ throughout the 1970s because they believed that it favoured developed states.

Socialist states questioned the need for third-party tribunals that had the authority to

issue binding decisions.

Another issue during UNCLOS III concerned the management of mineral

resources in the Area.11 In the Convention, the Area and its resources are referred as

the common heritage of mankind. The regime for seabed mining contained in

Part XI Implementation Agreement, has provisions on third-party dispute settlement

that are principally separated from those applicable in other issues.

8 For studies of the UNCLOS III negotiations, see Sanger (1986) and Miles (1998).9 For accounts of the negotiating history of the Conventions dispute settlement provisions, see Adede

(1987).10 Memorandum by the President of the Conference on Document A/CONF.62/WP.9, U.N. DocA/CONF.62/WP.9/Add.1 (1976).11 See Dupuy (1985, pp. 499505) and Jagota (1991, pp. 9771011).

Dispute settlement in the law of the sea 269

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The ITLOS became operational after the Convention entered into force.

Although the Convention attracted 159 signatories upon conclusion of UNCLOS

III in 1982, the Convention did not gain sufficient ratification to enter into force

until November 14, 1994. Between 1982 and 1994, many developed states did not

accept the Convention mainly because of concerns about the Part XI seabed-mining

regime. The Implementation Agreement, which is to be interpreted together with the

Convention as a single instrument, moderated the concerns of most developed

states. The Convention, as modified by the 1994 Agreement, has now been accepted

by most of the developing and developed states. The dispute settlement provisions

posed no obstacle to states acceptance of the Convention and have gathered

favourable comments by national officials.

1.2 UNCLOS Part XV: the choice of third-party fora and obligatory jurisdiction

to render binding decisions

Before analysing some parts of the Law of the Sea Conventions third-party

dispute settlement system, it is important to place the system in the Conventions

general dispute settlement provisions, contained in Section 1, Part XV of the

Convention. According to Article 279, states are obliged to settle any dispute

between them concerning the interpretation or application of the Convention by

peaceful means in accordance with Article 2(3) of the UN Charter,12 and to

seek a solution by the means indicated in Article 33(1) of the Charter. Article

283 explicitly requires States Parties to exchange views as for the settlement of

disputes by negotiation or other peaceful means. The Convention accords primacy

to informal dispute settlement mechanisms, reflecting the reality of interstate

diplomatic practice.

If negotiation or other mechanisms contained in Section 1 of Part XV of the

Convention fail to settle the dispute, parties may choose among several third-party

tribunals under Section 2 of Part XV. According to Article 287, States Parties may

choose between four fora: the ITLOS, the ICJ, arbitration, or special arbitration

before panel of experts (in cases involving fisheries, protection of the environment,

marine scientific research and navigation). States may declare their preferred option

at any time.13

It is obvious that Article 287 gives a sort of flexibility and derived from states

inability during UNCLOS III to come to an agreement on a single third-party forum.Some states were in favour of the ICJ. They sustained that its docket was not overly

full and that it had dealt with success many law of the sea cases. In addition, they

accentuated that a potential proliferation of international tribunals might be a danger

for a non-uniform jurisprudence on the law of the sea issues. A number of states

favoured arbitration, noting that arbitral tribunals could conduct their business

expeditiously. Another group of states pleaded in favour of special arbitration. They

underlined the technical nature of many law of the sea disputes and supported that

12 See Koroma (1996, pp. 227236) and Brownlie (2009, pp. 267283).13 See Vukas (2004a, pp. 318322).

270 I. Konstantinidis

123

experts nominated by technically competent international organisation, such as the

International Maritime Organization, should be the final decision makers. Many

remaining states were in favour of the establishment of a new law of the sea

tribunal. Many developing states considered the ICJ conservative and unrepresen-

tative as its jurisdiction extends only to states.

The option of choosing a third-party forum is even wider than Article 287suggests. Under Article 282, parties to a dispute may refer the dispute to a third-

party tribunal other than the four mentioned in Article 287, such as an ad hoc

tribunal with a number of arbitrators different from the five specified in the

Convention. As Article 282 stipulates, when through a general, regional or

bilateral agreement or otherwise States Parties have agreed to settle a dispute by a

procedure entailing a binding decision, that procedure controls.

Despite the fact that states have choice among different fora, in most cases

recourse to dispute settlement is nonetheless obligatory. The drafters of the

Convention anticipated that parties to a dispute might not select the same procedure.

In this case, arbitration will be used. Moreover, if a state does not declare a preferred

forum, its choice defaults to arbitration.The obligatory nature of jurisdiction under Section 2 of Party XV is also

confirmed by another feature. The provision of the Convention does not allow

methods historically used by disputing parties in order to avoid arbitrations. For

instance, a states failure to appoint an arbitrator will not prevent the creation of an

arbitral tribunal. The President of ITLOS14in the case of arbitrationand the

Secretary General of the United Nationsin the case of special arbitrationhave

the authority to appoint arbitrators, should the parties fail to act within a specified

time limit. Furthermore, lack of agreement on an arbitral tribunals procedure, will

not block the arbitration, because the tribunal may decide its own procedures.

Finally, a states failure to appear before an arbitral tribunal will not prevent the

tribunal from reaching a binding decision. Both the Statutes of the ICJ and the

ITLOS provide that default of appearance does not preclude judgements.

All decisions of a third-party tribunal in contentious cases under Part XI and XV

are legally binding.15 The binding nature of the decision is made explicitly in

several articles of the Convention. As far as the ICJ is concerned, references are

made in its Statute and in the UN Charter.16

14 Pursuant to Article 3 of Annex VII of UNCLOS, if parties are unable to reach an agreement on the

appointment of one or more of the members of the tribunal to be appointed by agreement, or on the

appointment of the president of the arbitral tribunal, these appointments shall be made by the President of

the International Tribunal for the Law of the Sea, at the request of a party to the dispute and in

consultation with the parties. As an example, it is interesting to refer to the arbitral proceedings instituted

to settle the maritime boundary dispute between Bangladesh and India in the Bay of Bengal. On 12

February 2010, the President of ITLOS, Judge Jose Luis Jesus, appointed three arbitrators to serve as

members of the Annex VII arbitral tribunal for the settlement of the aforementioned dispute. The

arbitrators are Rudiger Wolfrum (President), Tulio, Treves and Ivan Shearer.15 See UNCLOS, Articles 188(2), 292(4), 296; Annex VI, Articles 15(5), 33, 39; Annex VII, Articles 11;

Annex VIII, Article 4.16 See UN Charter, Article 94; ICJ Statute, Article 59.

Dispute settlement in the law of the sea 271

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2 Bangladesh and Myanmar in search of a judicial forum:from Annex VII tribunal to ITLOS

Bangladesh and Myanmar are states with adjacent coasts in the Bay of Bengal.17

They claim both an EEZ and a continental shelf in the region. Their claims overlap.

In 1994, the Territorial Waters and Maritime Zones Act was adopted by theParliament of Bangladesh. According to this Act, Bangladeshs maritime bound-

aries are defined with Myanmar and India in their territorial sea, EEZ and

continental shelf.

Following the adoption of this Act, Myanmar claimed a maritime boundary with

Bangladesh, based on what it characterised as an equidistance line. Bangladesh did

not accept the proposed line, considering that it is inequitable and sustaining that it

severely cut off and reduced Bangladeshs maritime entitlement.

In 1979, following bilateral negotiations, Bangladesh proposed another line

(more equitable) of delimitation in the EEZ and continental shelf. Despite the fact

that there was no official agreement between 1978 and 2005, according to

Bangladesh, Myanmars conduct was in accordance with this proposed boundary,

referred as the Friendship Line. From 2005, Myanmar changed its practice,

offering several concessions blocks for oil and gas exploration in the area between

the so called Friendship Line and the equidistance line as defined by Myanmar.

Furthermore, Myanmars licensees have engaged in drilling and other exploratory

activities in the disputed area, without having the prior consent of Bangladesh.

Doing so, Bangladesh considered that these activities seriously prejudiced its rights

to equitable delimitation and its sovereign rights for purpose of exploring and

exploiting natural resources in the EEZ and continental shelf.

On 16 December 2009, Myanmar submitted to the Commission on the limits of

the continental shelf (CLCS) its application regarding its continental shelf beyond

200 nautical miles. Bangladesh insists that Myanmars claims are not in accordance

with UNCLOS. Bangladesh shall make its submission to the Commission by July

2011 and will justify its entitlement to continental shelf belong 200 nautical miles in

area, where Myanmar asserted claims in its submission to the CLCS.

2.1 Judicial proceedings

Pursuant to Articles 286 and 287 of the UNCLOS, and in accordance with the

requirements of Article 1 of Annex VII, Bangladesh gave written notification to

Myanmar, that having failed to reach a settlement after long-lasting negotiations and

exchanges of views, it decided to submit the dispute regarding the delimitation of its

maritime boundary with Myanmar in the Bay of Bengal to the arbitral procedure

provided in Annex VII of UNCLOS.

Bangladesh and Myanmar have both ratified UNCLOS, on 27 July 2001 and

21 May 1996, respectively. UNCLOS establishes in its Part XV a regime for the

settlement of disputes concerning the interpretation and the application of the

17 See map in Appendix 1.

272 I. Konstantinidis

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Convention.18 According to Article 279, states are required to seek a solution by

peaceful means in accordance with the UN Charter. Article 283(1) requires that,

when a dispute arises between the States Parties, the parties should proceed

expeditiously to an exchange of views.

Having failed to settle the dispute between them by peaceful means, Article

281(1) allows recourse to procedures, including procedures entailing binding

decisions as under Section 2 of Part XV. These procedures can be initiated by any

party to the dispute in the court or a tribunal having jurisdiction under Section 2.

The choice of procedure is described in Article 287. According to Article 287(1),

States Parties can choose one or more means for the settlement of disputes by a

written declaration. Absent any written declaration, states are deemed to have

accepted arbitration in accordance with Annex VII. Consequently, pursuant to

Article 286, Bangladesh submitted its dispute with Myanmar concerning the

delimitation of their maritime boundary in the Bay of Bengal to an Annex VII

arbitral tribunal.

In the meantime, Myanmar proposed that the matter between it and Bangladesh

be submitted to the ITLOS and transmitted a written declaration on 4 November

2009, conferring to ITLOS its jurisdiction over the case. Responding to Myanmars

declaration, Bangladesh also transmitted on 12 December 2009 to ITLOS its written

declaration according to which, it accepts the jurisdiction of the ITLOS for the

settlement of dispute concerning the delimitation of their maritime zones in the Bay

of Bengal. In order to reinforce its consent Bangladesh also submitted a notification

to ITLOS, stating that given the mutual consent of the two states, Bangladesh

considers that ITLOS is the only forum for the resolution of the parties dispute.Based on the aforementioned declarations by Myanmar and Bangladesh,

submitting to ITLOS for adjudication their dispute concerning delimitation of their

maritime boundary in the Bay of Bengal, the case was entered in the List of Cases as

Case No. 16 on 14 December 2009.19

The President of ITLOS, having regard to Articles 24 and 27 of the Statute of the

Tribunal and to Articles 45, 46, 55, 56, 59 and 61 of the Rules of the Tribunal

discussed with the agents of both of the states and agreed the order and time limits

for the filing of the written proceedings and of the Memorial and the Counter

Memorial.

2.2 Issues

Bangladesh prepared a notification under Article 287 and Annex VII, Article 1 of

UNCLOS while having recourse to an Annex VII Arbitral Tribunal. This

notification was also sent to ITLOS with Bangladeshs declaration regarding the

acceptance of the jurisdiction of ITLOS on the case. Until now, there is no official

notification prepared by Myanmar. Nevertheless, judging from the bilateral

18 For an analytical presentation, see Klein (2004), Mensah (1998, pp. 307323) and Queneudec (1991,

pp. 381387).19 For an overview of all documents on the case, see http://www.itlos.org/start2_en.html (last visited on

27 February 2010).

Dispute settlement in the law of the sea 273

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negotiations, it is obvious that, as far as the delimitation is concerned, Myanmar

insists on the equidistance method, whereas Bangladesh presses for the equity

principle. In addition, during the latest negotiations which took place in Nay Pyi

Taw, the new Myanmar capital, Myanmar proposed to draw a new line, near the so-

called Friendship Line, for the demarcation of the maritime boundary between the

two countries.

According to this notification, Bangladesh requests the Tribunal delimit the

maritime boundary between Bangladesh and Myanmar in the Bay of Bengal, in

the territorial sea, the EEZ and the continental shelf, including the portion of the

continental shelf of Bangladesh that lies beyond 200 nautical miles from the

baselines from which its territorial sea is measured. The Tribunal should act in

accordance with the principles and rules of UNCLOS.

Secondly, as far as the territorial sea is concerned, Bangladesh requests the

Tribunal to confirm that the maritime boundary between it and Myanmar is

delimited by the 1974 Agreed Minutes Between the Bangladesh Delegation and theBurmese Delegation Regarding the Delimitation of Maritime Boundary Between theTwo Countries. Thirdly, Bangladesh asked the Tribunal to declare that Myanmarhas violated its obligation to make every effort to reach a provisional arrangement

pending delimitation of the maritime boundary as required by UNCLOS Article

74(3) and 83(3). According to Bangladesh, this violation derived from the fact that

Myanmar authorised its licences to engage drilling and other exploratory activities

in maritime areas claimed by Bangladesh and thus the Tribunal has to order

Myanmar to pay compensation to Bangladesh as appropriate. Finally Bangladesh

noted that is has the right to supplement or amend its claims and to make such other

requests from the Tribunal, as it may be necessary in order to preserve its rights

under UNCLOS.

3 Continental shelf beyond 200 nautical miles and the Bay of Bengal

It is undeniably true that, in international law, the unilateral decision of the coastal

state determines the external limits of its maritime zones under national jurisdiction.

This decision has legal consequences to other states, provided that it is not in

contradiction with international law rules. As for the extended continental shelf rule,

the UNCLOS provides for the creation of an organ of control for the determination

of its outer limits. This organ, called the CLCS, permet non seulement dempecherles Etats cotiers de transgresser les re`gles internationales en matie`re de delimitationdes limites exterieures de leur plateau continental, mais aussi de permettre unemeilleure protection du patrimoine commun de lhumanite face a` lexpansionnismeindividuel des Etats cotiers.20

The UNCLOS refers to the CLCS on two occasions. The first mention is in

Article 76. At the same time, exhaustive reference is made in Annex II to the

Convention. It has to be reminded that this Annex is an integral part of the

20 See Beigzadeh (2000, p. 72). For an overview of the Commission, see Meese (2005, pp. 418440) and

Smith (1999, pp. 135140).

274 I. Konstantinidis

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Convention, according to Article 318. Besides, Article 76, paragraph 8 of the

Convention, refers explicitly to Annex II.21

One of the most interesting aspects concerning the Commission turns on the fact

that the majority of states will not have a direct impact or interaction with the

Commission. However, it is the international community as a whole, which will be

marked by the recommendations made the Commission.22

A brief analysis of the role and functions of the Commission is needed, in order

to clarify the outer continental shelf case in the Bay of Bengal.

3.1 The CLCS: role and functions

The CLCS is the scientific and technical organ in charge of receiving, by the coastal

state, all pertinent scientific and technical data and information concerning the

characteristics of the external limits of the outer continental shelf. These are various

and complex, including bathymetric and seismic data, permitting to justify the

geological and geomorphologic situation, as well as calculations that resulted in

fixing the outer limits, and the geodesic formula that has been used. The commission

examines the application and then issues its recommendation to the coastal states

concerning the fixing of the outer limits of its continental margin.

The Convention gives rights and imposes duties to States Parties. The Meeting of

the States Parties has established the Rules of Procedure of the Commission. During

its sessions, the Meeting treats, among other things, questions concerning the

ITLOS, the International Seabed Authority, and as far as the Commission is

concerted, the election of its members and all rules regarding its organisation.

With the role of fixing the limits between states and the Area under the

International Seabed Authority, Article 1(1) of Annex II of the Convention stipulates

that the functions of the Commission shall be (a) to consider the data and other

material submitted by coastal states concerning the outer limits of the continental

shelf in areas where those limits extend beyond 200 nautical miles, and to make

recommendations in accordance with Article 76 and the Statement of Understanding

adopted on 29 August 1980 by the Third United Nations Conference on the Law of

the Sea; (b) to provide scientific and technical advice, if requested by the coastal

State concerned during the preparation of the data referred to in subparagraph (a). In

this case, the coastal state is in charge of the expenses of its representative.

For Professor Karagiannis, [l]impression generale que donne lAnnexe II :[est que] la Troisie`me Conference sur le droit de la mer netait pas sure de lamanie`re de laquelle il convenait de traiter la Commission des limites du plateaucontinental. Organe ni tout a` fait politique ni tout a` fait impartial, la Commissionest surtout caracterisee par sa nature juridique fuyante. Les contradictions affectantsa composition ne pouvaient pas rester sas influer son mode de fonctionnement.23

21 In addition, we underline that Annex II of the Final Act of UNCLOS III also refers to the Commission

on the limits of the continental shelf. The Final Act is not part to the Convention.22 The Commission is not in charge of questions related to delimitation. Its task is to fix of the outer

limits of the continental shelf beyond 200 nautical miles.23 Karagiannis (1994, p. 171).

Dispute settlement in the law of the sea 275

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This thought reflects the way certain people understood the Commission, as an

organ of control, a Watchdog.24 Nowadays, after the first submission made by the

Russian Federation and the recommendations issued, another role can be

underlined. According to A.A. Zinchenko, former Secretary of the Commission,

The role of this highly scientific organ, which is called to provide assistance in thevery politized realm of setting legal boundaries, is to help establish the true limit ofthe outer boundary of the continental shelf according to the terms of the UnitedNations on the Law of the Sea. Its only function is to help both the coastal state andthe international community with all the scientific expertise at its disposal toestablish where these limits are located according to the provisions of theConvention. The process of the consideration of the submission israther than ajoint cooperation between the scientists of the coastal State and those of theCommission, a joint effort to establish the correct line in accordance with thecriteria set out in the Convention.25 Even if we take for granted this role ofthe Commission, we should not loose sight of the fact that nul ne peut occulterson caracte`re politique puisque la Commission contribue a` letablissement du tracedes frontie`res a` linterieur desquelles les Etats exercent leurs droits souverains auxfins de lexploration et de lexploitation des ressources naturelles de leur plateaucontinental.26

Apart from these two functions, clearly defined in the Montego Bay Convention,

we have to mention another one, not expressly referred in the Convention. This

function has to do with the interpretation and the application of the Convention.

Some developments within the Commission clearly demonstrate this role. The

Scientific and Technical Guidelines adopted in on 14 May 199927 represent a sort of

interpretation of the Convention and mainly of Article 76. It seems that the

Commission is aware of its role concerning the interpretation and application of

the relative clauses. It made the following observation regarding the Guidelines: theCommission aims to clarify its interpretation of scientific, technical and legal termscontained in the Convention. Clarification is required in particular because theConvention makes use of scientific terms in a legal context, which at times departssignificantly from accepted scientific definitions and terminology. In other cases,clarification is required because various terms in the Convention might be left opento several possible and equally acceptable interpretations. It is also possible that itmay not have been felt necessary at the time of the Third United Nations Conferenceon the Law of the Sea to determine the precise definition of various scientific andtechnical terms. In still other cases, the need for clarification arises as a result of thecomplexity of several provisions and the potential scientific and technical difficultieswhich might be encountered by States in making a single and unequivocalinterpretation of each of them.28 Consequently, the Commission commits to clarify

24 See Gardiner (1978, p. 145 and s).25 See Zinchenko (2004, pp. 223250).26 See de Marfy Mantuano (2003, p. 400).27 See CLCS/11 at http://www.un.org/Depts/los/clcs_new/commission_documents.htm#Documents (last

visited on 27 February 2010).28 de Marfy Mantuano (2003, paragraph 1.3).

276 I. Konstantinidis

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the ambiguities of Article 76 and to give precise definition of this provision. This

procedure comprises an interaction between law and science and it is very surprising

the fact that legal expertise was not included within the Commission.29

3.2 The CLCS and interstate maritime disputes

Article 76 is the only clause in the Convention referring to the outer limits of the

continental shelf, stipulating that this provision is without prejudice to the question

of delimitation of the continental shelf between states with opposite or adjacent

coasts.30 The relation between Article 76 and the delimitation of the continental

shelf is analysed in the Rules of Procedure of the Commission.

The existence itself of Article 76(10) confirms that the Article deals only with the

title and the establishment of the continental shelf and not with delimitation between

states. We can see this paragraph as the guarantee that the application of Article 76

by a state does not influence the rights of another state, when there is an intestate

dispute regarding continental shelf delimitation. Paragraph 10 demonstrates that the

final and binding character of these limits (Para. 8) cannot be invoked by a state in

case of a future delimitation.

The procedure established by Article 76 for the definition of the outer limits of

the continental shelf does not intend to sort out any continental shelf delimitation

disputes. Rule 46(1) of the Rules of Procedure of the Commission establishes a

particular mechanism, details of which can be found in Annex I of the Rules of

Procedure.31 This mechanism applies in cases of disputes concerning the continental

shelf delimitation of states with opposite or adjacent coastal, and in case of other

unresolved land or maritime disputes. According to rule 46(2), all actions taken by

the Commission are without prejudice to questions relating to the delimitation

between states. Consequently, it is precised that the procedure established by Annex

I of the Rules of Procedure intends to assure that the Commission acts in accordance

with its mandate according to the Convention.

Furthermore, the Rules of Procedure seem to introduce new factors affecting the

submission by a coastal state and may control if the submission is to be examined or

not. Firstly, paragraph 3 of Annex I of the Rules of Procedure provides that in case

of questions with prejudice to the delimitation between states, coastal state may

proceed to a submission relating to a part of its continental shelf. The submission

concerning the other part can be realised later. In addition, paragraph 5 of the same

29 See Nelson (2002, pp. 12351253).30 The application of Article 76 could influence the delimitation of maritime zones beyond

200 nautical miles. This could create a new basis for the law of maritime boundary delimitation,

considering that it could reinforce arguments based on the natural prolongation. In the case Libya/Malta,

the International Court of Justice rejected the arguments claiming that the natural prolongation could play

an important role in the delimitation of maritime zones within 200 nautical miles. The Court left open this

possibility in the case of zone beyond 200 nautical miles. See Continental Shelf (Libyan Arab Jamahiriya/Malta), Judgement, I.C.J. Reports 1985, note 22, paragraph 39. See also Decaux (1985, pp. 294323). Foran overview of the relevance of the natural prolongation, see Charney (2002, pp. 10111029).31 For the latest version of the Rules of Procedure of the Commission, see CLCS/40, 2 July 2004. It is

reminded that the Rules of Procedure were adopted in 1997. From that moment, the Commission

introduced a series of changes.

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Annex clarifies that the Commission should neither examine nor qualify a

submission in case of an existing land or maritime dispute. However, the

Commission can consider the submission with the prior consent of all parties

involved in that dispute. Consequently, it can be alleged that in some cases, the

consideration of a submission by the Commission is possible only with the prior

consent of states involved in a dispute.32

3.3 The submission of the Union of Myanmar to CLCS and the Statement

of Understanding

On 16 December 2008, the CLCS received the submission made by the Union of

Myanmar on the limits of the continental shelf beyond 200 nautical limes from the

baselines from which the breadth of the territorial sea is measured. The submission

was made in accordance with Article 76, paragraph 8 of the UNCLOS. The

Convention entered in force for Myanmar on 20 June 1996.33

According to the Rules of Procedure of the CLCS, the communication was

circulated to all member states of the United Nations, as well as States Parties to

the Convention, with the view to making public the executive summary of the

submission, including all charts and coordinated contained in the summary. The

consideration of the submission was included in the provisional agenda of the 24th

session of the CLCS, which was held in New York from 10 August to 11 September

2009.

According to the Statement of the Chairman of the CLCS on the progress of work

in the Commission, distributed on 1 October 2009, Myanmar presented its

submission to the Commission on 24 August 2009.34

The head of the delegation of Myanmar, Mr. Min Lawin, after indicating the

member of the Commission that had assisted Myanmar by providing scientific and

technical advice with respect to the submission, proceeded in several comments.

In order to better clarify some parts of Myanmars submission, it is of great

importance to evoke some details about the Statement of Understanding set out at

Annex II of the Final Act of UNCLOSI III35 and to analyse the notes verbales sent

to the Commission in respect to Myanmars submission.

The results of the Third United Nations Conference on the Law of the Sea can be

found in two instruments: the Law of the Sea Convention (adopted on 30 April

1982) and the Final Act of UNCLOS III (adopted on 24 September 1982). The

preamble, the operative parts and nine Annexes constitute the Convention.

According to Article 318 of the Convention, these Annexes form its integral part.

32 For an extensive analysis, see Johnson and Oude Elferink (2006, pp. 93119).33 The executive summary of the submission made by the Union of Myanmar, can be found at

http://www.un.org/Depts/los/clcs_new/submissions_files/submission_mmr.htm (last visited on 27 Feb-

ruary 2010).34 See CLCS/64 at http://www.un.org/Depts/los/clcs_new/commission_documents.htm#Documents (last

visited on 27 February 2010).35 For the text of the Final Act, see http://www.un.org/Depts/los/convention_agreements/convention_

overview_convention.htm (last visited on 27 February 2010).

278 I. Konstantinidis

123

As far as the Final Act is concerned, it is completed by seven Annexes and an

Appendix. Annex I comprises four resolutions, which have a substantial link with

the Convention itself.36

Apart from this, Annex II presents great importance. It contains the Statement of

Understanding concerning a specific method to be used in establishing the outer

edge of the continental margin. This is perceived as a substantive Addendum to

Article 76 of UNCLOS and consequently is has to be taken into account by the

CLCS in outer continental shelf submissions in the southern part of the Bay of

Bengal. It had to be noted that the Statement of Understanding was not adopted

together with the Convention but 5 months later. Nevertheless, it is considered as an

integral whole with UNCLOS.

With regard to the notes verbales, four countries sent their communication to the

CLCS: Sri Lanka (2 March 2009), India (26 March 2009), Kenya (30 April 2009)

and Bangladesh (23 July 2009). Three of them, Sri Lanka, Kenya and India, also

made their submission to the CLCS. Myanmar is in the same region (Bay of Bengal)

with Sri Lanka, India and Bangladesh.37

As far as the note verbale of Sri Lanka is concerned, it underlines that the

executive summary of the submission of Myanmar relies, inter alia, on the

Statement of Understanding. The Statement of Understanding concerns a special

method to be used in establishing the outer edge of the continental margin. In its

note verbale, Sri Lanka notes that the contents of the executive summary do not

enable Sri Lanka to make an informed judgment on the way Myanmar interprets and

applies the aforesaid Statement. Nevertheless, Sri Lanka states that the word

State included in the Statement refers to Sri Lanka. Accordingly, it agrees to the

presentation of the submission to the CLCS, on the understanding that this is

without prejudice to future submission made by Sri Lanka, under the terms of the

Statement of Understanding. It also requests the Commission that no recommen-

dation prejudicial to Sri Lankas interest be made on the area claimed by Myanmar

under the Statement of Understanding. In addition, the consideration of the

submission shall not prejudice the delimitation of the continental shelf between

neighbouring states in the area claimed by Myanmar.

Following the reaction by Sri Lanka, the CLCS received the second note verbale,

this time by India, in which three points can be distinguished. Firstly, India refers to

the Agreement between the Republic of India and the Socialist Republic of theUnion of Burma on the delimitation of Maritime Boundary in the Andaman Sea, inthe Coco Channel and in the Bay of Bengal, signed on 23 December 1986.According to India, in the agreement, it is expressly provided that the extension of

the maritime boundary beyond point 16 in the Bay of Bengal will be done

subsequently and this has not so far been done. Secondly, India states that

Myanmars submission is without prejudice to the question of delimitation of the

continental shelf between India and Myanmar. Thirdly, India refers to the method

36 According to B. Vukas, the Final Act does not have a unique legal nature. As far as Annexes I and II,

he sustains that these can be considered as international agreements. For a general presentation of these

aspects, see Vukas (2004b).37 The notes verbales sent in response to the submission of Myanmar can be found at http://www.

un.org/Depts/los/clcs_new/submissions_files/submission_mmr.htm (last visited on 27 February 2010).

Dispute settlement in the law of the sea 279

123

included in the Statement of Understanding. It sustains that Myanmar has not

provided any basis concerning its entitlement to invoke the Statement of

Understanding and that the Statement of Understanding is only applicable to Sri

Lanka and India.

The third note verbale regarding Myanmars submission was sent by Kenya, a

state not in geographical proximity to the Bay of Bengal. Kenyas communication

refers exclusively to the Statement of Understanding.38 After noting that the

submission of Myanmar relies, inter alia, on the Statement of Understanding

concerning a specific method to be used in establishing the outer edge of the

continental margin. Kenya reminds of the historic background of the aforesaid

Statement. During the negotiations of the UNCLOS, the Conference of the Parties

considered that the application of Article 76 to coastal states with special margins

would result to an inequitable situation for them and elaborated alternative scientific

criteria to be used by such states. The Conference further requested the CLCS to use

this Statement when considering submissions by coastal states within the southern

part of the Bay of Bengal. According to Kenya, this special method can be used by

any coastal state which has the ability to demonstrate the existence of these special

conditions and that using another method would result in an inequitable result.

The final and the most extensive note verbale concerning the submission of

Myanmar came from Bangladesh. In its communication, the Republic of Bangla-

desh focuses on two observations. The first one concerns an existing unresolved

dispute. In the executive summary, Myanmar states that the area of continental

shelf, that is subject of this submission, is not subject to any disputes between

Myanmar and other states. Delimitation negotiations between Myanmar and

Bangladesh are ongoing and consistent with Article 76(10) and this submission is

made without prejudice to the eventual delimitation. In this regard, Bangladesh

underlines that the negotiations mentioned by Myanmar relate to the continental

shelf as well as to the EEZ between the two states and that such delimitation

remains unresolved. The unresolved delimitation in the Bay of Bengal shall be

considered as a dispute according to Rule 46 of the Rules of Procedure and of

38 It is interesting to mention that on 6 May 2009 Kenya made its submission to the Commission on the

limits of the continental shelf. In the executive summary of the submission, we underline paragraph 4,

according to which Kenya invokes, inter alia, the specific method for the establishment of the outer edge

of the continental margin set out in the Statement of Understanding. Responding to Kenya, Sri Lanka sent

a note verbale, reiterating that the principal state referred in paragraph 3 of the Statement of

Understanding is Sri Lanka. In addition, it confirmed its position that the application of the Statement of

Understanding and the Commissions mandate to make recommendation under the said Statement is

limited to states in the southern of the Bay of Bengal as reflected in paragraph 5 of the Statement of

Understanding. On 3 September 2009, the delegation of Kenya presented its submission to the CLCS.

During the presentation and responding to the note verbale by Sri Lanka, Kenya was of the view that the

principles contained in the Statement of Understanding could apply to whenever a state is able to

demonstrate the existence of the special conditions envisaged in the Statement. Moreover, recalling the

note verbale by Sri Lanka, it emphasised that neither the Convention nor the Statement of Understanding

refer to any principal State. The Commission decided to revert the consideration of the submission at

the plenary level at the time when the submission is next in line for consideration as queued in the order it

was received. The executive summary of the submission as well as the notes verbales, can be found at

http://www.un.org/Depts/los/clcs_new/submissions_files/submission_ken_35_2009.htm (last visited on

27 February 2010).

280 I. Konstantinidis

123

Annex I thereto. Furthermore, Bangladesh alleges that the areas claimed by

Myanmar as a part of its continental shelf, are the natural prolongation of

Bangladesh and hence Myanmars claim is disputed by Bangladesh.

The second comment of Bangladesh is regarding the baselines used by Myanmar.

Myanmar uses the straight baselines as defined recently by a Law enacted on

5 December 2008. These baselines have been objected by Bangladesh. On 30 June

2009, Bangladesh sent a note verbale to Myanmar protesting about the baselines

used for Preparis and Co Co islands and along the coast of Myanmar up to the

Oyster Island. These baselines are, accordingly, disputed under Rule 46 and Annex I

of the Rules of Procedure of the Commission.

The last observation was on the applicability of the Statement of Understanding

on the case of Myanmar. Bangladesh informs that it reserves the right to submit

further comments on Myanmars contentions concerning the applicability of the

Statement of Understanding of Annex II of the Final Act of UNCLOS III. In

conclusion, Bangladesh affirms that given the dispute between the two states

concerning the entitlement of the parts of the continental shelf in the Bay of Bengal,

the Commission may not consider and qualify the submission made by Myanmar

without the prior consent given by all states that are parties to such a dispute. In

accordance with Article 76 and 83(3) of the Convention and Annex I to the Rules of

Procedure, Bangladesh will make any effort to reach an agreement with Myanmar

allowing the Commission to consider both of the submission of Myanmar and the

Submission of Bangladesh, which will be made by July 2011.

Myanmar, having in mind these notes verbales and during the presentations of

its submission to the CLCS, proceeded to some clarifications.39 Myanmar was of

the view that the Statement of Understanding applied to all states that satisfied

the conditions contained therein and that Myanmar has done so in its

presentation. As far as the reaction by India is concerned, Myanmar noted that

a treaty had been signed with India in the Bay of Bengal and Andaman Sea.

Since the Treaty only extended up to 200 nautical miles, Myanmar is ready to

negotiate with India in respect of area beyond 200 nautical miles. Regarding

Bangladesh, Myanmar sustained than Bangladesh tried to prove the existence of a

dispute but without sufficient evidence. In addition, it underlined that negotiations

with Bangladesh are ongoing and that according to Article 76(10), the submission

is made without prejudice to the delimitation of the continental shelf between the

two states.

The Commission of the limits of the continental shelf took into account the notes

verbales aforementioned and the comments made by Myanmar and decided to defer

further consideration of the submission and the notes verbales in a latter time as the

submission is next in the line in the order it was received. This decision was made in

order to take into consideration any further developments that may occur during the

intervening period.

39 For more information, see CLCS/64 at http://www.un.org/Depts/los/clcs_new/commission_

documents.htm#Documents (last visited on 27 February 2010).

Dispute settlement in the law of the sea 281

123

4 Concluding remarks

Based on the maritime boundary dispute between Bangladesh and Myanmar in the

Bay of Bengal, we seized the opportunity to refer to the dispute settlement

provisions of the UNCLOS. This case is now before the ITLOS. The tribunal is

about to deal, for the first time, with a case concerning maritime boundary

delimitation issues.

One of the most intriguing parts of this case is the delimitation of the continental

shelf beyond 200 nautical miles. It is the first time, where an international tribunal is

called to rule on the delimitation of the continental shelf beyond 200 nautical miles,

while one of the parties, Myanmar, has already made its submission for the outer

limits of its continental shelf to the CLCS in the Bay of Bengal.40 In addition, it is

the first time that we see, that the CLCS and the ITLOS are about to interact. Both of

them, institutions created by UNCLOS, with distinguished mandates, have to

cooperate in order to prove that the institutional framework of the UNCLOS works

properly, with the aim to promoting the peaceful use of the oceans.

At the same time, we envisage that some questions are going to arise. How

should the Tribunal deal with the geological data, already submitted to the CLCS?

Which institution is going to decide under which circumstances and by which states,

the Statement of Understanding shall apply? It is time for the ITLOS and for the

Meeting of the States Parties to the Convention to enlighten these upcoming issues.

Appendix 1

See Fig. 1.

40 It has to be reminded that the first case, in which an international tribunal faced the question of the

delimitation of the outer continental shelf, was the arbitration between Canada and France in 1992.

According to the award, the tribunal declared that it was not competent to decide on such delimitation.

For an extended analysis of the award, see Dipla (1994, pp. 653669). The second international case

where the issue of the delimitation of the outer continental shelf was brought was in the arbitration

between Barbados and Trinidad and Tobago in 2006. We underline that in both of these two cases, during

the procedures, the parties made no submission to the Commission on the limits of the continental shelf.

For more information about the outer continental shelf question before the Barbados/Trinidad and Tobago

Annex VII arbitral tribunal, see Kwiatkowska (2007, p. 594 and s).

282 I. Konstantinidis

123

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Dispute settlement in the law of the sea, the extended continental shelf in the Bay of Bengal and the CLCS: some preliminary observations on the basis of the case Bangladesh/Myanmar before the International Tribunal for the Law of the SeaAbstractRsumDispute settlement under the United Nations Convention on the Law of the Sea (UNCLOS): the option of the International Tribunal for the Law of the Sea (ITLOS)---a brief historic approachThe UNCLOSUNCLOS Part XV: the choice of third-party fora and obligatory jurisdiction to render binding decisions

Bangladesh and Myanmar in search of a judicial forum: from Annex VII tribunal to ITLOSJudicial proceedingsIssues

Continental shelf beyond 200 nautical miles and the Bay of BengalThe CLCS: role and functionsThe CLCS and interstate maritime disputesThe submission of the Union of Myanmar to CLCS and the Statement of Understanding

Concluding remarksAppendix 1References