Bangladesh and Myanmar give ITLOS its first maritime boundary case
(21 December 2009)On 13 December 2009 the government of Bangladesh sent a letter to the International Tribunal for the Law of the Sea (ITLOS) accepting the Tribunal’s jurisdiction over its maritime boundary dispute with neighbouring Myanmar under Article 287(4) of the 1982 United Nations Convention on the Law of the Sea (UNCLOS). ITLOS was created as the judicial mechanism of UNCLOS to resolve disputes between parties to the Convention concerning any interpretation or application of international maritime law, including maritime boundary delimitation. Located in Hamburg, ITLOS is composed of 21 judges from around the world and is currently headed by the Honourable President Jose Luis Jesus from Cape Verde.
Two months ago, on 8 October 2009 Bangladesh announced that it would institute an arbitral tribunal to resolve its maritime boundary disputes with both India and Myanmar under Annex VII of UNCLOS. This method of dispute settlement entails the establishment of a bespoke arbitral tribunal, rather than a sitting court or tribunal, largely composed of judges chosen by the two disputant states. It has been used recently for the resolution of maritime boundary disputes between Barbados-Trinidad and Tobago in 2006 and Guyana-Suriname in 2007. However, on 4 November 2009 the government of Myanmar declared that it would accept the jurisdiction of ITLOS for resolution of the maritime boundary dispute with Bangladesh. This declaration was then forwarded to ITLOS by Bangladesh on 12 December 2009.
It is remarkable that Myanmar accepted the jurisdiction of ITLOS rather than an arbitral tribunal or the International Court of Justice (ICJ). The ICJ has significant experience in maritime boundary cases, most recently adjudging cases between Honduras-Nicaragua in 2007 and Romania-Ukraine in 2009. Since its creation in 1994 under Annex VI of UNCLOS, ITLOS has never heard an international maritime boundary case despite having been set up, in part, to bear some of this case load from the ICJ. While it may not have adjudged a maritime boundary dispute, the ITLOS judges will no doubt be well acquainted with the jurisprudence of the ICJ and arbitral tribunals and draw on these sources when delimiting the maritime boundary between Bangladesh and Myanmar.
Although both Bangladesh and Myanmar have agreed the jurisdiction of ITLOS over their dispute and the case has been logged as No. 16, the time scale for the case has not yet been set. In addition, it is still not clear whether the case will go before the full tribunal or be allocated to a smaller chamber. Nevertheless, this is a historic step taken by Bangladesh and Myanmar, and hopefully it will encourage other states to utilise ITLOS for resolving maritime boundary disputes.
Source: ITLOS ‘Proceedings instituted in the dispute concerning the maritime boundary between Bangladesh and Myanmar in the Bay of Bengal’ Press Release 140, 16 December 2009.