Aegean Rev Law Sea (2011) 1:267285

DOI 10.1007/s12180-010-0015-1
ARTICLE

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 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 and
Myanmar 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 reference 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 Myanmar
dans 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 continental, a` laquelle le Myanmar a fait sa demande en fournissant toutes les informations 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

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1 Dispute 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 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).

The UNCLOS was signed on 10 December 1982 (Montego Bay, Jamaica) and entered into force on 16
November 1994, according to Article 308(1).

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).

See Queneudec (2002, pp. 621632).

See Boyle (1997, pp. 3754).

See Charney (1996, pp. 6975).

See Treves (2000, pp. 726746) and Treves (2005, pp. 939).

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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 provisions. 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 stabilizing
and maintaining the compromise necessary for the attainment of agreement of the
conventionabsent such procedures, the compromise will disintegrate rapidly and
permanently.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).

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. Doc
A/CONF.62/WP.9/Add.1 (1976).
11

See Dupuy (1985, pp. 499505) and Jagota (1991, pp. 9771011).

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I. Konstantinidis

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).

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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 unrepresentative as its jurisdiction extends only to states.
The option of choosing a third-party forum is even wider than Article 287
suggests. Under Article 282, parties to a dispute may refer the dispute to a thirdparty 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.

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I. Konstantinidis

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 the
Parliament of Bangladesh. According to this Act, Bangladeshs maritime boundaries 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.

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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).

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I. Konstantinidis

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 socalled 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 the
Burmese Delegation Regarding the Delimitation of Maritime Boundary Between the
Two Countries. Thirdly, Bangladesh asked the Tribunal to declare that Myanmar
has 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 dempecher
les Etats cotiers de transgresser les re`gles internationales en matie`re de delimitation
des limites exterieures de leur plateau continental, mais aussi de permettre une
meilleure protection du patrimoine commun de lhumanite face a` lexpansionnisme
individuel 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).

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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 la
manie`re de laquelle il convenait de traiter la Commission des limites du plateau
continental. Organe ni tout a` fait politique ni tout a` fait impartial, la Commission
est surtout caracterisee par sa nature juridique fuyante. Les contradictions affectant
sa 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).

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I. Konstantinidis

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 the
very politized realm of setting legal boundaries, is to help establish the true limit of
the outer boundary of the continental shelf according to the terms of the United
Nations on the Law of the Sea. Its only function is to help both the coastal state and
the international community with all the scientific expertise at its disposal to
establish where these limits are located according to the provisions of the
Convention. The process of the consideration of the submission israther than a
joint cooperation between the scientists of the coastal State and those of the
Commission, a joint effort to establish the correct line in accordance with the
criteria set out in the Convention.25 Even if we take for granted this role of
the Commission, we should not loose sight of the fact that nul ne peut occulter
son caracte`re politique puisque la Commission contribue a` letablissement du trace
des frontie`res a` linterieur desquelles les Etats exercent leurs droits souverains aux
fins de lexploration et de lexploitation des ressources naturelles de leur plateau
continental.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: the
Commission aims to clarify its interpretation of scientific, technical and legal terms
contained in the Convention. Clarification is required in particular because the
Convention makes use of scientific terms in a legal context, which at times departs
significantly from accepted scientific definitions and terminology. In other cases,
clarification is required because various terms in the Convention might be left open
to several possible and equally acceptable interpretations. It is also possible that it
may not have been felt necessary at the time of the Third United Nations Conference
on the Law of the Sea to determine the precise definition of various scientific and
technical terms. In still other cases, the need for clarification arises as a result of the
complexity of several provisions and the potential scientific and technical difficulties
which might be encountered by States in making a single and unequivocal
interpretation 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).

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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). For
an 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.

123

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I. Konstantinidis

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 February 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).

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279

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 recommendation 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 the
Union of Burma on the delimitation of Maritime Boundary in the Andaman Sea, in
the 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).

123

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I. Konstantinidis

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 Bangladesh 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).

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281

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).

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I. Konstantinidis

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).

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Dispute settlement in the law of the sea

283

SOUTH ASIA
70
TAJIKISTAN

80

an

Kashi

75

85

90

Hotan

be

Dotted line represents approximately the Line of Control

in Jammu and Kashmir agreed upon by India and Pakistan.
The final status of Jammu and Kashmir has not yet been
agreed upon by the parties.

Gilgit

TAN

ad i
I sla m a blpin d

Zhob

30

Quetta

N Lahore Amritsar Simla

A Multa
Ludhiana Chandigarh
N

Bareilly

G hag

ng

Jaipur n a

es

( B ra h m aputra)

A L

Lhasa

Indian Line

Xigaz

Mount Everest
8848 m

Lucknow r a Gorakhpur
Kanpur K a t h m
ha

Jodhpur

Hyderabad

al
mb
ha
Gwalior

hu
mp

Chinese Line

Dibrugarh
Itanagar

BHUTAN

B ra

hm

Dispur
Shillong

G a nge s

mb

h at

25
at
na
hal
NGLADESH Imp
anana
BA
ar si
Ag
Gandhinagar
Aizawl
as
a r ta
)
Dhaka
Bhopal Jabalpur
la
Ahmadabad
Kolkata
G.
Indore
of Kutch
Jamshedpur (Calcutta)
ittagong Mandalay
Ch
Vadodara
Khulna
Raurkela
s
Rajkot
da
ge
Kharagpur
Maha n adi
N ar ma
an
M o u t h of th e G
Nagpur
Raipur
Surat
MYANMAR
Cuttack
r
Jaipu
Daman
20
K
Silva
ssa
f
Bhubaneswar
Sittwe
G .o
Kalyan
G
ari

Kota
Udaipur

r
Va(B

Karachi

Delhi
New Delhi

us

Turbad

25

Yarlung

Ya m u

Ind

30

Ga

Larkana
Dadu

C H I N A

R aw a
Gujranwala

S
j
IBah
tl e
awalpur S u

K
P ASukkur

35

Indian Line

us

Peshawar

Kandahar

Chinese
Line

Jammu
and Ind
Kashmir

tra

Herat

AFGHANIS

du

Ka- bu

an

35

95

The boundaries and names shown and the designations used

on this map do not imply official endorsement or acceptance
by the United Nations.

pu

D uc

TAN
IS
K

TAN

Th
i

UZ
65 BE

60
TURKMEN
IS

I N D I A

ha

20

Arabian

o dav

Pune

Mumbai

(Bombay)

Bh
im
a

Hyderabad

Kolhapur
Belgaum

Sea

15

Bellary

Panaji

Guntur

400
200

65

10

Madurai
Cochin

Jaffna

Tuticorin
ar

Trincomalee
a
M Negombo SRI LANKA
of
f
l
Gu
Kandy
Sri Jayewardenepura-Kotte
Galle
e
Matara
a
Trivandrum

Nicobar
Islands
(INDIA)

200

(INDIA)

(Calicut)

ve

Port Blair

Andaman
Islands

Maldive
Islands

(Madras)
Pondicherry

Salem

nn

(I

MALDIVES

Chennai

Vellore

e
Andaman S

Kozhikode

di
ca
L a cavaratti

K
ee
ad w
L a k s hNDIA)

10

Mysore

Bay of Bengal

Machilipatnam

15

Bangalore
Mangalore

Vishakhapatnam
Kakinada

Vijayawada

Kri
s hna

Male

O C E A N

I N D I A N

600 km
400 mi

70

75

80

85

90

95

Fig. 1 South Asia: The Bay of Bengal. Source United Nations. www.un.org/Depts/Cartographic/
map/profile/seasia.pdf

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