Annex VII Arbitration Status Report (Part Two)

 Points of interest:

In some respects this is a “typical” maritime boundary dispute, with India arguing for an equidistance line of delimitation, while Bangladesh argues that the concave coastline demands the adjustment of an equidistance line to achieve an equitable result. A less typical aspect of the case involves the relationship between the arbitral tribunal and the decisions of the other bodies, namely ITLOS and the Commission on the Limits of the Continental Shelf (‘CLCS’).

In March 2012, ITLOS released its decision in the Bangladesh v Myanmar case. The Tribunal drew a delimitation line between the maritime entitlements of Bangladesh and Myanmar that extended westward beyond the 200nm continental shelf until it reached an area where the rights of third States might be affected. The main ‘third State’ contemplated in this decision is India. The treatment of the ITLOS decision by the arbitral tribunal will be of interest, particularly as three of the Annex VII arbitrators acted as judges in the ITLOS case.

As for the CLCS, India submitted a partial submission in May 2009 stating that the submission was without prejudice to pending maritime delimitation in the Bay of Bengal between India, Bangladesh and Myanmar. Bangladesh submitted a note verbale in October 2009 protesting against the Indian proposed provisional equidistance boundary lines but also against the use of straight baselines by India. Bangladesh submitted a full submission to the CLCS in February 2011, noting that the submission was without prejudice to the pending delimitation by the Annex VII Tribunal. The Annex VII tribunal in the Barbados/Trinidad and Tobago case held that it had jurisdiction to delimit the continental shelf beyond 200nm, notwithstanding the fact that both parties had pending submissions before the CLCS. This approach was confirmed by ITLOS in the Bangladesh/Myanmar case.

2. Mauritius/UK (Establishment of an MPA around the Chagos Archipelago by the UK )

Initiated: 20 December 2010 by Mauritius

Arbitrators appointed:

December 2010 (Mauritius): Judge Rüdiger Wolfrum (Germany)

19 January 2011 (UK): Judge Christopher Greenwood (UK)

26 March 2011 (ITLOS President): Albert Hoffmann (South Africa) (President); Ivan Shearer (Australia) and James Kateka (Tanzania).

Hearings anticipated: May 2014, Dubai

Points of interest:

The case presents important substantive questions beyond the scope of this “primer” post, including the definition of a “coastal State” under UNCLOS and the requirement of Article 300 of UNCLOS that the rights recognized under the Convention be exercised in good faith. The case has also raised interesting procedural questions, namely the independence standard required of arbitrators and the approach to objections to jurisdiction.

Following the selection of Judge Greenwood as an arbitrator by the UK, and Judge Greenwood’s response to requests for additional disclosure, Mauritius filed a challenge to his appointment as arbitrator. Mauritius argued that the appointment was incompatible with the principles of independence and impartiality of an arbitrator, as Judge Greenwood had acted for the UK within the last three years and had an ongoing relationship with the UK as evidenced by his role in the selection of the new FCO legal adviser. The tribunal released a reasoned decision on the challenge on 30 November 2011, rejecting the “appearance of bias” standard argued by Mauritius. The tribunal described the “appearance of bias” standard as “derived from private law sources” and held that in inter-State cases a party challenging an arbitrator must demonstrate that “there are justifiable grounds for doubting the independence and impartiality of that arbitrator in a particular case.”

Another procedural matter of interest is the treatment of Preliminary Objections by the Tribunal. The UK raised objections to the jurisdiction of the Tribunal and requested that its Preliminary Objections be dealt with as a preliminary matter in a separate heading before the merits of the case were considered. On 15 January 2013, the Tribunal issued an Order rejecting the UK request and ordered that arguments on jurisdiction will be considered with proceedings on the merits. This order demonstrates the flexible nature of proceedings under Annex VII. In contrast, Rule 79 of the ICJ requires that proceedings on the merits be suspended when preliminary objections are raised. The effect of this rule can be that several years are added to the time taken for consideration of a case.

Leave a Reply

Your email address will not be published. Required fields are marked *