(From previous issue)
Overall, Myanmar states that the "position on the right of passage of ships of Myanmar through the territorial sea of Bangladesh around St Martin's Island continues to be less than satisfactory".
173. On this issue, Bangladesh stated in its Memorial that "[a]s part of, and in consideration for, their November 1974 agreement, Bangladesh also agreed to accord Myanmar's vessels the right of free and unimpeded navigation through Bangladesh's waters around St. Martin's Island to and from the Naaf River".
174. In response to the request from the Tribunal, the Foreign Minister of Bangladesh, its Agent in the present case, during the hearing stated the following:59
Since at least 1974 Bangladesh and Myanmar have engaged in extensive negotiations concerning their maritime boundary in the Bay of Bengal. Over the course of 34 years, our countries have conducted some 13 rounds of talks. We achieved some notable early successes. In particular, in 1974, at just our second round of meetings, we reached the agreement concerning the maritime boundary in the territorial sea, about which you will hear more tomorrow. That agreement was fully applied and respected by both States over more than three decades. As a result of that agreement, there have never been any problems concerning the right of passage of ships of Myanmar through our territorial sea around St Martin's Island. In its two rounds of pleadings Myanmar had every opportunity to introduce evidence of any difficulties, if indeed there were any. It has not done so. That is because there are no difficulties. I am happy to restate that Bangladesh will continue to respect such access in full respect of its legal obligations.
175. Counsel for Bangladesh thereafter stated: "What the Foreign Minister and Agent says in response to a direct question from an international tribunal commits the State".
176. The Tribunal takes note of this commitment by Bangladesh.
VIII. Exclusive economic zone and continental shelf within 200 nautical miles
177. The Tribunal will now turn to the delimitation of the exclusive economic zone and the continental shelf within 200 nm.
Single delimitation line
178. Before proceeding with the delimitation of the exclusive economic zone and the continental shelf, the Tribunal must clarify the nature of the delimitation line.
179. Bangladesh states that the Tribunal should identify a single line to delimit the seabed and subsoil and the superjacent waters. Bangladesh notes that its position is "in accordance with the international judicial practice". According to Bangladesh, although the Convention contains separate 60
provisions for the delimitation of the exclusive economic zone and the continental shelf, "international practice has largely converged around the drawing of a 'single maritime boundary' to delimit both zones".
180. Myanmar, in turn, states that the Parties agree in asking the Tribunal to draw a single maritime boundary for the superjacent waters, the seabed and subsoil, that is, for the exclusive economic zone and the continental shelf.
181. The Tribunal accordingly will draw a single delimitation line for both the exclusive economic zone and the continental shelf.
182. The Tribunal points out that the provisions of the Convention applicable to the delimitation of the exclusive economic zone and the continental shelf are in articles 74 and 83. The Tribunal observes that these two articles are identical in their content, differing only in respect of the designation of the maritime area to which they apply. These articles state as follows:
1. The delimitation of the [exclusive economic zone/continental shelf] between States with opposite or adjacent coasts shall be effected by agreement on the basis of international law, as referred to in article 38 of the Statute of the International Court of Justice, in order to achieve an equitable solution.
2. If no agreement can be reached within a reasonable period of time, the States concerned shall resort to the procedures provided for in Part XV.
3. Pending agreement as provided for in paragraph 1, the States concerned, in a spirit of understanding and cooperation, shall make every effort to enter into provisional arrangements of a practical nature and, during this transitional period, not to jeopardize or hamper the reaching of the final agreement. Such arrangements shall be without prejudice to the final delimitation.
4. Where there is an agreement in force between the States concerned, questions relating to the delimitation of the [exclusive economic zone/continental shelf] shall be determined in accordance with the provisions of that agreement.61
183. Although article 74, paragraph 1, and article 83, paragraph 1, of the Convention explicitly address delimitation agreements, they also apply to judicial and arbitral delimitation decisions. These paragraphs state that delimitation must be effected "on the basis of international law, as referred to in article 38 of the Statute of the International Court of Justice, in order to achieve an equitable solution". Customary international law is one of the sources identified in article 38. Accordingly, the law applicable under the Convention with regard to delimitation of the exclusive economic zone and the continental shelf includes rules of customary international law. It follows that the application of such rules in the context of articles 74 and 83 of the Convention requires the achievement of an equitable solution, as this is the goal of delimitation prescribed by these articles.
184. Decisions of international courts and tribunals, referred to in article 38 of the Statute of the ICJ, are also of particular importance in determining the content of the law applicable to maritime delimitation under articles 74 and 83 of the Convention. In this regard, the Tribunal concurs with the statement in the Arbitral Award of 11 April 2006 that: "In a matter that has so significantly evolved over the last 60 years, customary law also has a particular role that, together with judicial and arbitral decisions, helps to shape the considerations that apply to any process of delimitation" (Arbitration between Barbados and the Republic of Trinidad and Tobago, relating to the delimitation of the exclusive economic zone and the continental shelf between them, Decision of 11 April 2006, RIAA, Vol. XXVII, p. 147, at pp. 210-211, para. 223).
185. The Tribunal will now turn to the delimitation process. In examining this issue, the Tribunal notes "the principle that the land dominates the sea through the projection of the coasts or the coastal fronts