Introduction
In the light of the decision of the Fourth BIMSTEC Summit of 2018, building on the 1997 Bangkok Declaration, defining a long-term vision and priorities for cooperation, clearly delineating roles, and responsibilities of different layers of institutional structure and decision-making processes, the BIMSTEC Charter, the Legal and Institutional Framework for BIMSTEC, is adopted at Colombo on the occasion of the Fifth BIMSTEC Summit, on 30 March 2022. It is now time for India to progress on manifesting its principle of Security & Growth for All in the Region (SAGAR), establishing Prime Minister Modi’s vision as a Bridge of Connectivity, Prosperity & Security. Through this, India can prove to the world the power of its people and the inherent capabilities in its eminent leadership to create a new world order.
Prime Minister Modi’s Address at the 5th BIMSTEC Summit
The Prime Minister stated that BIMSTEC completing 25 years is a major milestone. In sync with his leadership values, he desired to make BIMSTEC more active and give greater priority to regional security. He expressed happiness at the BIMSTEC Charter being adopted, which was an important step towards creating an institutional architecture. He reiterated the Secretary General’s suggestion towards constituting an Eminent Persons Group to prepare a vision document and also agreed to increase the capacity of the Secretariat further, suggesting that the Secretary General may prepare a road map for the achievement of this goal. With this in view, he stated that India will provide financial assistance of USD one million to increase the operational budget of the Secretariat. He spoke of enhancing mutual trade between nations in the region and stated that it was necessary to make speedy progress on the proposal of BIMSTEC Free Trade Agreement adopting international norms in the field of Trade Facilitation. He further emphasised the need to enhance exchanges between the entrepreneurs and startups of the BIMSTEC countries.
Adopting BIMSTEC’s Master Plan for Transport Connectivity, Shri Narendra Modi said that the mainstay of better integration, better trade, and better people-to-people relations is better connectivity. Simultaneously, one has to move forward on the already ongoing initiatives in the field of connectivity like Coastal Shipping Eco-system in the Bay of Bengal, and implement the electricity grid interconnectivity. He laid emphasis on the development of the BIMSTEC Center for Weather and Climate for cooperation on disaster management, especially on disaster risk reduction, stating that India is ready to contribute USD 3 million to restart the work of this centre. Achieving Sustainable Development Goals related to quality education is an important part of the national policies of BIMSTEC countries. Towards that end he proposed to promote joint research on Marine Sciences. As the agriculture sector is the core economy of all BIMSTEC countries, he proposed to create regional value chains of value-added agricultural products.
Laying stress on security, Shri Narendra Modi said it was fundamental to ensure the prosperity and development of the region. Towards that end, he called for increased cooperation between the BIMSTEC law enforcement agencies.He also expressed satisfaction at the Convention to Combat Terrorism having become active since last year and on BIMSTEC member countries having signed the Mutual Legal Assistance Treaty on Criminal Matters. He recapitulated that at the 4th Summit in Kathmandu, it was decided to strengthen the regional legal framework against terrorism, trans-national crime, and non-traditional threats and said that now, emphasis must be laid on the development of a legal framework for increasing road connectivity and coastal shipping. Prime Minister Modi concluded his remarks with an expression of heartfelt concern about the BIMSTEC member countries facing the challenges of health and economic security and called for solidarity and cooperation as the need of the hour. He reinforced his vision of making Bay of Bengal, a bridge of connectivity, a bridge of Prosperity, and a bridge of Security.India’s External Affairs Minister, ShriS. Jaishankar, who had spoken a day earlier, had stated that for the BIMSTEC member countries, achieving SDG 14 targets and ensuring a ‘good order at sea’ in keeping with international maritime law, particularly UNCLOS is a priority. He suggested that a practical way to proceed is to have discussions using existing dialogue mechanisms, even while putting in place a plan of action in the maritime domain which is consistent with the national priorities. He contemplated on the fact that the science of oceans is not easy, stating that India is keen to develop platforms and initiatives that can enhance collaboration between the scientist and experts in the maritime domain. With respect to BIMSTEC, Shri S. Jaishankar stated that India will bring to bear all relevant policies and approaches; one, as Neighbourhood First, give it the utmost priority; two, in consonance with the SAGAR outlook, realise its full maritime potential; and three, as a first responder, be it on HADR situations, Covid or economic recovery, be there at critical times for all.
The Essence of the BIMSTEC Charter
The peoples of the Member States of the Bay of Bengal Initiative for Multi Sectoral Technical and Economic Cooperation (BIMSTEC), represented by the Heads of State or Government of the People’s Republic of Bangladesh, Kingdom of Bhutan, the Republic of India, the Republic of the Union of Myanmar, Nepal, the Democratic Socialist Republic of Sri Lanka, and the Kingdom of Thailand have reaffirmed their firm commitment to the principles and purposes of BIMSTEC as enshrined in the 1997 Bangkok Declaration through the Preamble of this Charter.
The Memorandum of Association (MOA) on the Establishment of the BIMSTEC Permanent Secretariat, done at Nay Pyi Taw, Myanmar on 04 March 2014 has been recognised in this Charter. The Headquarters Agreement between the Government of the People’s Republic of Bangladesh and the Secretariat of the BIMSTEC done at Dhaka, Bangladesh on 01 November 2015 also stands recognised in the Preamble of this Charter.
It is an accepted underlying principle that the geographical contiguity, abundant natural and human resources, historical linkages and rich cultural heritage present great potential for promoting deeper cooperation in identified core areas in the region; It is acknowledged that enhanced inter-linkages and inter-dependence within the economies and societies in the BIMSTEC Member States provide greater opportunity to advance regional cooperation and recognise the special needs and circumstances of the least developed and landlocked developing countries in the region, providing meaningful support to their development process. There is the need towards a strong commitment to making BIMSTEC a dynamic, effective, and result-oriented regional organisation for promoting a peaceful, prosperous, and sustainable Bay of Bengal Region through collective efforts, meaningful cooperation, and deeper integration. It is important to stress the need for a fair, just, equitable and transparent international order and reaffirm the faith in the multilateralism with the United Nations at the Centre and the rule-based international trading system. India can make commendable contribution manifesting its ‘Neighbourhood First Policy’ and effective leadership in the region.
Parties to dispute may request the Chairman of BIMSTEC, to provide good offices, conciliation and mediation to settle any dispute arising out of the interpretation or implementation of the Charter. Member States shall endeavour to resolve peacefully all disputes in a timely manner through dialogue, consultation and negotiation.
Recalling the decision of the Fourth BIMSTEC Summit of 2018 to begin the process of drafting the Charter for the organisation, building on the 1997 Bangkok Declaration, defining a long-term vision and priorities for cooperation, clearly delineating roles and responsibilities of different layers of institutional structure and decision-making processes the legal and institutional framework for BIMSTEC was established through its Charter; And to this end, the Heads of State or Government of BIMSTEC Member States, assembled in Colombo on the occasion of the Fifth BIMSTEC Summit, and have agreed to this Charter on 30March 2022.
The Member States of BIMSTEC shall have equal rights and obligations under this Charter. They shall take all measures they deem necessary, including enactment of appropriate domestic legislations to effectively implement provisions of this Charter and to comply with all obligations of membership.
The Purpose of the BIMSTEC
It is the purpose of the BIMSTEC:
- to create an enabling environment for rapid economic development through identification and implementation of specific cooperation projects in the already agreed areas of cooperation and such other areas that may be agreed upon by the Member States which may be subject to periodic review.
- To accelerate the economic growth and social progress in the Bay of Bengal region through joint endeavours in a spirit of equality and partnership.
- To promote active collaboration and mutual assistance on matters of common interest in the economic, social, technical, and scientific fields.
- To provide assistance to each other in the form of training and research facilities in the educational, professional and technical spheres.
- To cooperate more effectively in joint efforts that are supportive of and complementary to national development plans of the Member States which result in tangible benefits to the people in raising their living standards, including through generating employment and improving transportation and communication infrastructure.
- To cooperate in projects that can be dealt with most productively on a regional basis among the BIMSTEC Member States and that make best use of available synergies.
- To maintain peace and stability in the Bay of Bengal region through close collaboration in combating international terrorism, transnational organized crimes as well as natural disasters, climate change and communicable diseases.
- To maintain close and beneficial cooperation with existing international and regional organizations with similar aims and purposes.
- To endeavour to eradicate poverty from the Bay of Bengal region.
- To establish multidimensional connectivity, promote synergy among connectivity frameworks in the region, as a key enabler to economic integration for shared prosperity.
- To promote trade and investment as a major contributing factor for fostering economic and social development in the region.
BIMSTEC had initially focused on six sectors in 1997 to include trade, technology, energy, transport, tourism, and fisheries and expanded in 2008 to incorporate agriculture, public health, poverty alleviation, counterterrorism, environment, culture, people-to-people contact, and climate change.Subsequently, following steps to rationalise and reorganise sectors and sub-sectors, cooperation was reorganised in 2021 under the following sectors and sub-sectors led by the respective Member States:
- Bangladesh: Trade, Investment and Development
- Bhutan : Environment & Climate Change
- India: Security; Sub-sectors: Counter-Terrorism and Transnational Crime, Disaster Management, Energy
- Myanmar : Agriculture and Food Security ; Sub-sectors : Agriculture, Fisheries & Livestock
- Nepal: People-to-People Contact, Sub-sectors: Culture, Tourism, People-to-People Contact (forums of think tanks, media etc.)
- Sri Lanka : Science, Technology & Innovation, Sub-sectors : Technology, Health, Human Resource Development
- Thailand: Connectivity
Certain Important Issues in BIMSTEC
The Bay of Bengal (Bay) is in the northeastern part of the Indian Ocean. It is bound by land on three sides; on the west and northwest by India on the north by Bangladesh, and on the east by Myanmar and the Andaman &Nicobar Islands of India. Its southern limit is a line between Sri Lanka and the northwestern-most point of Sumatra (Indonesia). Important ports on the Bay include Paradip, Kolkata, Haldia, Chennai, Visakhapatnam, Kakinada, Pondicherry, Dhamra, Gopalpur in India and Chittagong, Mongla, Payra Ports in Bangladesh.
There are impending problems in the Bay and the effective role that BIMSTEC should play in the governance of the Bay to improve upon the commercial viability of the Bay Economic Zone, minimise criminal activities and support the development of a sustainable Blue Economy in the region. BIMSTEC is also a desirable platform for India to manifest its foreign policy in the form of ‘Act East’ &‘Neighbourhood First’, Security & Growth for all In the Region (SAGAR) and Sagarmala. A regional legal cooperation to put into effect the regional aspirations of unity in diversity therefore should be a priority.
Since its inception in 1997, BIMSTEC had a slow pace of development for various reasons including political, economic, social, and cultural. The region, though united historically with a rich cultural heritage, but post decolonisation got impregnated with crimes like insurgency, terrorism, narcotics smuggling, trafficking, illegal immigration which prompted the member states to consider internal and border security issues on priority. The development plan got ignored in the process. The oceans were put on the back-burner. Except for addressing security issues, development of the blue economy of the Bay of Bengal never received the required thrust.
The maritime delimitation issue between India and Bangladesh and between Bangladesh and Myanmar having being resolved, the maritime zones presently are clearly marked in the Bay of Bengal in terms of jurisdiction. This also has defined the Areas beyond national jurisdiction (ABNJ) which should now prompt the member states of BIMSTEC to have laws and a regulatory mechanism to jointly and severally govern the Bay.
BIMSTEC leaders emphasised the importance of blue economy and agreed to cooperate in this sector for sustainable development of the region. They decided to establish an Inter-governmental Expert Group to develop an action plan on blue economy, keeping in mind the special needs and circumstances of the landlocked member states. The BIMSTEC leaders noted with satisfaction the hosting of International Blue Economy Conference in Bangladesh in 2017 with the participation of government representatives from BIMSTEC member states.
BIMSTEC not only connects South and South-East Asia, but also the ecologies of the Great Himalayas and the Bay of Bengal. With shared values, histories, ways of life, and destinies that are interlinked, BIMSTEC represents a common space for peace and sustainable development.
Though the Bay has been an intrinsic part of the economy of the BIMSTEC nations, Ocean governance has been a low priority issue for the member states. Whether it is rights of sovereignty in the territorial waters or sovereign rights in the EEZ or for that matter governance of ABNJ, the laws are very limited and hardly harmonised with the prevalent international legal regime. Most of these member states have outdated colonial laws still governing the waters of the region. The absence of laws has created enormous opportunities for the criminal elements to vitiate the peace and legal order in the waters, resulting in deeply entrenched negative mercantile practices dominated by unlawful influences.
The most affected industry is fishing in the region characterised by over exploitation of available catch. The Bay of Bengal has 475 different species of fish and 36 species of shrimps. In the 2017-18 fiscal year, 6.5 lakh ton of fish was produced from the Bay which is more than seven percent of the world’s catch. The major cross border issues that are affecting the fishing industry in the Bay amongst others include a declining trend in the overall availability of fish; changes in species composition of catches; the high proportion of half-grown fish in the catch; and changes in marine biodiversity, especially through loss of vulnerable and endangered species. Fishing overlaps national jurisdictions. This has been a sticky problem between India and Bangladesh and a slightly more serious issue between India and Sri Lanka. Countries are experiencing difficulties in implementing fisheries management, especially the ecosystem approach to fisheries.
The Bay of Bengal countries contribute significantly to the global problem of loss of vulnerable and endangered species and there is lack of implementation of suitable policies at State level. There is open access to fishing grounds. The governments of these surrounding countries emphasise on increasing fish catches because of high consumer demand for fish. There is inappropriate government subsidies provided to fisherfolk. Further, increasing fishing effort, especially from trawlers and purse seiners including for seed and fishmeal for aquaculture, ineffective fisheries management, illegal and destructive fishing further add to the woes of the fishing industry of the region. The number of fishing harbours and fish landing centres are proportionately much less. There are hardly any cold storage facilities for the fishing industry which leads to huge wastage of the catch. Most of the fisher families in the eastern coast of India live below the poverty line resulting in a very unsystematic functioning of the fishing industry in the region. This is where BIMSTEC needs to take the lead in effective governance for a sustainable development of the fishing industry as an integral part of the blue economy. Legal cooperation among member states to deliberate on resolving these issues is an absolute necessity.
The Bay of Bengal is an area of high biodiversity with many endangered and vulnerable species. The major cross border issues relating to habitats pertain to the loss and degradation of mangroves, coral reefs and the loss of and damage, to sea grasses. Climate change impacts are shared by all BIMSTEC member states. Other issues of concern within the Bay economy pertain to food security needs of the coastal poor, lack of coastal development plans, increasing trade in products from coastal habitats, coastal development and industrialisation, ineffective marine protected areas and lack of enforcement, upstream development that affects water-flow, intensive upstream agricultural practices, and increasing ad-hoc tourism. If these issues are not defined and managed systematically with a correct policy and a regulatory mechanism, they will start eating into the economy rather than resulting in development.
Pollution of the Bay is a very serious issue. Discharge of untreated/partially treated sewage, sewage and organic discharges from the Ganges-Brahmaputra-Meghna River, Sewage-borne pathogens and organic load, solid waste/marine litter, increasing nutrient inputs, oil pollution, persistent organic pollutants (POPs) and persistent toxic substances (PTSs), sedimentation, and heavy metals are destroying the ecology of the Bay. Plastics and derelict fishing gear can be transported long distances across oceans. Differences between countries with regard to regulation and enforcement of shipping discharges may drive discharges across the oceans. Tar balls are transported long distances. POPs/PTSs and mercury, including organo-mercury, undergo long-range transportation. Sedimentation and most heavy metal contamination tend to pollute locally. Increasing coastal population density and urbanisation, higher consumption, resulting in more waste generated per person, insufficient funds allocated to waste management, migration of industry and proliferation of small industries are related issues of serious magnitude that require impact assessment and regulation.
Seabed mining and exploitation of poly-metallic nodules are expected to resume in the near future. India, in accordance with its contract with the International Seabed Authority (ISA) is conducting exploration on the seabed in the central Indian Ocean basin. However, it is to be noted that poly-metallic nodules are also available on the seafloor in the areas of national jurisdiction of the BIMSTEC coastal countries. In the absence of regional technology to the BIMSTEC nations except for India, the BIMSTEC will have to specially look at this domain of exploitation of future resources on the seabed and draft a policy of possibility of coordination with the ISA in terms of technology transfer, protection of the marine environment, marine scientific research and related issues.
Besides commercial issues there are criminal activities that are persisting across the Bay. Terrorism, smuggling of drugs, human trafficking, smuggling of contraband items are a very common feature across the Bay. IUU (Illegal, Unreported and Unregulated) fishing in the EEZ of other member states has been a cause of tension between member states of the BIMSTEC.
The Fifth Summit and Way Forward
Problems in the Bay are both historical and as a result of recent global developments. Therefore, it has become all the more important for the BIMSTEC to draft a policy of legal cooperation amongst the member states for better governance of the Bay so that a sustainable Blue Economy can develop and increase the GDP of member states manifold.
BIMSTEC needs to effectively cooperate with the United Nations and other regional organisations to implement its goals and achieve necessary targets. The corporatization of the fishing industry in the region is very important so that the quality of the industry, the life of the fisherfolk and infrastructure with good cold storage facilities can be improved manifold. It is important for the private sector to get involved and more harbours and fish landing centres need to be constructed with immediate effect.
Marine tourism, which could add manifold to the revenue of the BIMSTEC countries, must be picked up with public-private participation. Single regional visas or inter country recognition of passports without visas should work for easy movement of people. Beach tourism and cruise tourism need to be developed amongst the member states. There are beautiful beaches and tourism sites in the entire region which requires to be promoted amongst the people in the region as well as the globe at large.
The unity in diversity which is a special attribute of the BIMSTEC nations can fully fructify only when there is peace and security in the region. Thus, BIMSTEC is expected to play a vital role in governance of the Bay and India has to assume a leadership role to give effect to its ‘Neighbourhood First’ and ‘Act East Policy’ and absorb the development shock of the ingress of Belt and Road Initiative of China by a stronger and more evolved BIMSTEC with an improved governance of the Bay Economic Zone coupled with an established legal and regulatory framework in all aspects of economic development with a strong compliance guidelines to ensure enforcements.
Author Brief Bio:Dr. Madhumita Kothari is a legal academician teaching at various universities, writing research papers in the domain of her expertise and a Keynote Speaker at various national & international conferences. An award-winning Senior Legal Professional educated in the UK, Germany & India, she is presently, partner in HSA Advocates. She has 25 years of proven track record in the commercial sector across the areas of international commercial arbitration, dispute resolution, compliance and regulatory, international joint ventures, risk assessment & management, brand management, corporate communications, and cross-border transactions in Law of the Sea, shipping laws, energy, power, infrastructure, aviation, environment, artificial intelligence, mining, packaging, retail & education.
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