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Pranay Kotasthane: The lure of legalising bilateral disputes

The Permanent Court of Arbitration verdict on the India-Bangladesh maritime dispute, which largely upholds the Bangladeshi claim, has important lessons for India's Saarc policy

Pranay Kotasthane 

Pranay Kotasthane

Indo-bilateral relations have always been seen through the prism of their 4,000-odd-kilometre land frontier - the largest that shares with any other country. Little known, however, is the fact that the two countries have been involved in a long-standing dispute over their sea borders as well. This dispute has its origins in 1947 when Partition resulted in an ambiguous demarcation of the maritime borders. The issue recently gained international prominence when took it to the (PCA) authorised under the United Nations Convention on Law of Sea in 2009. accepted the tribunal's authority and pursued its case in the for over five years. The tribunal's verdict was delivered on July 7, 2014, giving shape to a new sea border between the two nations.

The verdict has been hailed as a major victory in Though not agreeing with Bangladesh's claims in their entirety, the verdict has confirmed its suzerainty over four-fifths of the disputed (EEZ). One Bangladeshi official also suggested that this verdict is most welcome since its terms are more favourable than any bilateral solution that could have potentially been agreed upon. In contrast, for India, this verdict means that commercial activities such as fishing and oil exploration in the hitherto disputed region will be treated as violating Bangladesh's territorial integrity.

Specifics of this dispute apart, the emerging big picture is that this verdict might trigger a trend of internationalising through legal means, sidelining mutual bipartite negotiations. Bangladesh's second straight success through the legal route (it won its case against Myanmar as well) is bound to encourage other countries to favour this mechanism, particularly when the other disputant is a regional powerhouse like And this is where India needs to reassess its stand on bilateral negotiations vis-à-vis legal solutions.

From an Indian perspective, this issue offers three major takeaways that should guide India's dispute resolution strategy with its immediate neighbours.

First, the verdict confirms that international jurisdiction of boundary disputes is essentially arbitrary, both in theory and in application. For example, maritime disputes are resolved based on theoretical concepts of equidistance and equitability.

The equidistance principle, per se, is straightforward. The is divided according to a median line, which is at the same distance from the shores of the neighbouring countries.

On the other hand, the equitability principle merely states that the boundary be drawn in a manner that avoids an "inequitable" result.

The and other such tribunals in some cases have applied the equidistance principle, and on some occasions upheld the equitable principle. In this particular case between India and Bangladesh, a third way was invented by applying both the principles simultaneously - the verdict is based on the equidistance principle with an "adjustment" to compensate for inequity. In the process, the tribunal has also created an anomalous grey area - that falls within Bangladesh's delimited area but where the sovereign rights for economic activities rest with India.

Thus, a legal resolution of such disputes has a veneer of objectivity but beneath the surface, it is nothing but illogical. It should be amply clear that accepting the settlement of such disputes through the legal route is like throwing dice to decide - the only criterion is good luck or the lack of it.

Second, in spite of its multiple follies, the legal route is excellent for achieving closure on long-standing, unimportant yet prickly bilateral issues. All said and done, the PCA was able to give a binding verdict in a matter of five years to resolve a dispute that has lingered for over 60 years. With the verdict coming out, the fishing communities and oil exploration agencies from both the countries can restart their operations with confidence in the newly delimited Bay of Bengal.

What this proves is that the less important yet sensitive issues that are unlikely to achieve political consensus internally are perfectly suited for being resolved through international tribunals. Once the tribunal gives its verdict, however arbitrary it may be, the blame shifts away from the national political establishment, shielding it from intense political criticism.

Third, India should be careful in selecting the bilateral issues that can be decided legally. The most critical issues must be resolved through bilateral negotiations. Then, from the less important ones, a few issues can be agreed upon for litigation. For example, in the case of India-Bangladesh relations, India's greatest interest is getting free land transit to its difficult to access north-east region through Bangladesh. In return, Bangladesh's greatest interest is a favourable resolution to the water-sharing dispute. Another important issue for India is the elimination of Islamist terrorism emanating from Bangladeshi soil.

Apart from these three issues, all the others are merely bargaining chips on the negotiation table. In this situation, a resolution through international tribunals for some of these less important disputes would be the most efficient solution. India can follow this model of "purposeful litigation" with all its neighbours.

In essence, the Modi government has shown early signs of ushering the South Asian Association for Regional Cooperation or Saarc nations into a new era of co-operation and engagement. With such an aim to pursue, India would do well to utilise its limited diplomatic capacities for resolving the ultra-critical issues bilaterally rather than devoting time and collective energies to the throw-of-the-dice legal resolutions.

The writer is a geopolitical analyst with the Takshashila Institution, an independent policy think tank

First Published: Tue, July 22 2014. 21:44 IST