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ITLOS judgment in Bangladesh/Myanmar delimitation dispute

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(From page 4)
130. The Tribunal finds no evidence of an historic title in the area to be delimited and notes that neither Party has invoked the existence of such title.
131. Myanmar has raised the issue of St. Martin's Island as a special circumstance in the context of the delimitation of the territorial sea between the Parties and argues that St. Martin's Island is an important special circumstance which necessitates a departure from the median line. It points out that St. Martin's Island lies immediately off the coast of Myanmar, to the south of the point in the Naaf River which marks the endpoint of the land boundary between Myanmar and Bangladesh and is the starting-point of their maritime boundary.
132. Myanmar contends that St. Martin's Island is a feature standing alone in the geography of Bangladesh and is situated opposite the mainland of Myanmar, not Bangladesh. In Myanmar's view, granting St. Martin's Island full effect throughout the territorial sea delimitation would lead to a considerable distortion with respect to the general configuration of the coastline, created by a relatively small feature.
133. Myanmar argues that, in general, islands generate more exaggerated distortions when the dominant coastal relationship is one of adjacency, whereas distortions are much less extreme where coasts are opposite to each other. It maintains that account has to be taken of this difference in the present case as the coastal relationship between Myanmar's mainland and St. Martin's Island transitions from one of pure oppositeness to one of pure adjacency.
134. In this context, Myanmar states that, because of the spatial relationship among Bangladesh's mainland coast, Myanmar's mainland coast and 47
St. Martin's Island, the island lies on Myanmar's side of any delimitation line constructed between mainland coasts. In Myanmar's view, St. Martin's Island is therefore "on the wrong side" of such delimitation line.
135. Myanmar argues that St. Martin's Island cannot be defined as a "coastal island" if only because it lies in front of Myanmar's coast, not that of Bangladesh, to which it belongs. While recognizing that it is an island within the meaning of article 121, paragraphs 1 and 2, of the Convention, and that, consequently, it can generate maritime areas, Myanmar states that the delimitation of such areas must however be done "in accordance with the provisions of [the] Convention applicable to other land territory". It contends in this respect that St. Martin's Island must be considered as constituting in itself a special circumstance which calls for shifting or adjusting the median line which otherwise would have been drawn between the coasts of the Parties.
136. Myanmar states that this approach is in accordance with case law, relating both to delimitation of the territorial sea and other maritime zones. In this regard, it refers to a number of cases including Delimitation of the Continental Shelf between the United Kingdom of Great Britain and Northern Ireland, and the French Republic (Decision of 30 June 1977, RIAA, Vol. XVIII, p. 3), Continental Shelf (Tunisia/Libyan Arab Jamahiriya) (Judgment, I.C.J. Reports 1982, p. 18), Delimitation of the Maritime Boundary in the Gulf of Maine Area (Judgment, I.C.J. Reports 1984, p. 246) and Dubai/Sharjah Border Arbitration (Dubai/Sharjah, Award of 19 October 1981, ILR, Vol. 91, p. 543).
137. Myanmar, also relying on State practice, observes that "small or middle-size islands are usually totally ignored" and that the "predominant tendency" is to give no or little effect to such maritime formations.
138. In response to Myanmar's claim that St. Martin's Island represents a "special circumstance", Bangladesh argues that this claim is incorrect because of the coastal geography in the relevant area of the territorial sea. Bangladesh contends that Myanmar has "attempted to manufacture a 'special 48
circumstance' where none exists". It maintains that, "[i]n order to do this, Myanmar has resorted to the entirely artificial construction of a mainland-to-mainland equidistance line […] which assumes that St. Martin's Island does not exist at all". Bangladesh maintains that Myanmar has ignored reality in order to provide itself with the desired result; namely, an equidistance line that it can claim runs to the north of St. Martin's Island. It adds that, "[f]rom this pseudo-geographic artifice, Myanmar draws the conclusion that St. Martin's Island is located in Myanmar's maritime area".
139. Responding to Myanmar's contention that St. Martin's Island is on the "wrong" side of the equidistance line between the coasts of Myanmar and Bangladesh and that this is an important special circumstance which necessitates a departure from the median line, Bangladesh states that this contention marks a sharp departure from Myanmar's long-standing acceptance that St. Martin's Island is entitled to a 12 nm territorial sea.
140. Bangladesh takes issue with the conclusions drawn by Myanmar from the case law and the State practice on which it relies to give less than full effect to St. Martin's Island. In this regard Bangladesh states that a number of cases identified by Myanmar to support giving less than full effect to St. Martin's Island are not pertinent for the following reasons: first, they do not deal with the delimitation of the territorial seas, but concern the delimitation of the exclusive economic zone and the continental shelf; second, most of the delimitation treaties Myanmar cites established maritime boundaries in areas that are geographically distinguishable from the present case; and third, many treaties Myanmar invokes reflect political solutions reached in the context of resolving sovereignty and other issues.
141. Bangladesh, in support of its argument that St. Martin's Island should be accorded full effect, refers to the treatment of certain islands in the case concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain, the case concerning Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras) and the Black Sea case.49
142. Bangladesh argues that State practice relevant to maritime delimitation clearly indicates that an island adjacent to the coast may have an important bearing on the delimitation of a maritime boundary. It states that islands, once determined as such under article 121, paragraph 1, of the Convention, are entitled to a 12 nm territorial sea and, in principle, their own exclusive economic zone and continental shelf. Bangladesh further points out that the right of States to claim a territorial sea around islands is also a well-established principle of customary international law and is recognized by Myanmar. In Bangladesh's view, the burden is on Myanmar to persuade the Tribunal why St. Martin's Island should be treated as a special circumstance and it has failed to meet that burden.
143. Bangladesh states that St. Martin's Island "is located 6.5 [nm] southwest of the land boundary terminus and an equivalent distance from the Bangladesh coast". It further points out that the island has "a surface area of some 8 square kilometres and sustains a permanent population of about 7,000 people" and that it serves as "an important base of operations for the Bangladesh Navy and Coast Guard". Bangladesh maintains that fishing "is a significant economic activity on the island", which also "receives more than 360,000 tourists every year". Bangladesh notes that "[t]he island is extensively cultivated and produces enough food to meet a significant proportion of the needs of its residents".
144. Bangladesh challenges Myanmar's assertion that St. Ma