Jurisdiction of Bangladesh over Maritime Autonomous Surface Ships: Challenges and Prospects

 

                    Photo Credit: Comite Maritime International

Written by Sabrina Hasan, PhD, and edited by Pushkar Anand, LLM

The evolution of Maritime Autonomous Surface Ships (MASS) has gained global attention as it is poised to bring significant changes to the maritime industry in every aspect. It is expected that the adoption of autonomous technologies could offer considerable benefits, including safer and more environmentally friendly shipping. However, legal challenges may arise due to incompatibility with the existing laws concerning the rights and duties of states. These challenges may create dichotomies in enforcing jurisdiction over MASS under the United Nations Convention on the Law of the Sea (UNCLOS)(1). This write-up addresses the challenges that Bangladesh would face as a coastal, port, and flag State when enforcing its jurisdiction over MASS under the law of the sea, and outlines the need for new rules and standards for the regulation and enforcement of jurisdiction over MASS. The role of the International Maritime Organization (IMO) as an international shipping regulatory body and its mandate in addressing these challenges are also crucial to this issue.

 

To regulate MASS under the existing shipping regulations, it is important to address and identify MASS as a ship within the international legal framework (2). This is a significant challenge to consider MASS as a ship due to its level of automation and other features that are different from conventional ships. There are different types of “crafts” which might not seem like ships in the general sense. However, international standards, requirements, and interpretation of legal provisions do accommodate such ships. Similarly, in a general sense, MASS might not seem to be a ship. Nevertheless, a certain category of MASS depending on the degree of autonomy might be identified as a “ship” (3).

 

MASS, if considered as ships operating autonomously, must adhere to the same maritime and navigational laws that apply to all other vessels navigating within the waters of the respective jurisdiction. These laws govern the licencing of operators, the registration of vessels and navigation regulations. Regarding the jurisdictional issues, flag states jurisdiction is the cornerstone of shipping regulations (4). To identify the jurisdiction of the states over MASS, the first step is to look into UNCLOS. As per the UNCLOS, to exercise jurisdiction over ships, a flag State must first confer nationality on the ships concerned through the registration process, which confers the right to fly its flag (Article 91(1)). In particular, Article 94(3) requires flag States to take the necessary measures to ensure safety at sea. These measures include, among other things, ensuring the seaworthiness of ships (Article 94(3)(a)) and the manning of ships (Article 94(3)(b)).

 

Therefore, to register MASS in Bangladesh, the country needs to follow international rules and standards. IMO has categorised the autonomy level of MASS into four degrees (5). Among the four degrees, degree three and degree four are subject to the discussion of non-compliance with UNCLOS provisions that require the manning of ships. Furthermore, Part IV of the Bangladesh Merchant Shipping Ordinance 1983 deals with the requirement of “manning of ships”. As per Section 82 (1) of the 1983 Ordinance, “no ship shall go to sea or proceed on a voyage unless it is manned in accordance with the provisions of this chapter …”. Therefore, the mandatory requirement of manning ships would be a challenge to MASS regulation. In this respect, suggestions have been put forward by academia to apply the “constructive and consistent” interpretation method (6). However, in the case of fully autonomous ships, the suggestions to apply constructive and purposive interpretation methods might not suffice due to the complexity of autonomy and the absence of a human element. The requirements to ensure the manning of ships and the duties concerning masters and crews on board will have a drastic change in respect of fully autonomous ships, thus, becoming incompatible with the existing laws. As a result, determining accountability and responsibility for accidents or incidents involving fully autonomous ships may prove challenging.

As a coastal state and port state, Bangladesh may face some technical and operational challenges in monitoring, inspecting and controlling MASS, such as onboard activities, inspection, and communication on boards (Article 218 of UNCLOS) (7). Certain progress could be seen within the Territorial Waters and Maritime Zones (Amendments) Act 2021. Section 3A of the Act identifies underwater vehicles including remotely operated underwater vehicles, autonomous underwater vehicles and unmanned underwater vehicles with regard to rights of innocent passage in the territorial sea. However, these underwater vehicles are not likely to be considered as ships whereas MASS are, and the regulation of MASS would be different considering the enforcement of jurisdictions over ships especially as a coastal state in respect of passage rights (e.g., Articles 17, 21 and 38 of UNCLOS) (8).

UNCLOS further adds that in taking measures, each State must comply with generally accepted international standards, procedures and practises and take all necessary steps to ensure compliance with their obligations as flag States (Article 94(5)). In this regard, the role of IMO as the “competent international organization” in combating the challenges to regulate MASS becomes relevant. Even as IMO would be the organisation responsible for determining technical aspects to ensure safety and security in shipping, the jurisdictional issues and challenges to regulating MASS within the law of the sea framework require revising UNCLOS and domestic laws applicable to shipping regulation.

Therefore, amendments to existing laws or enacting new laws would be required to accommodate the particular characteristics and operational features of autonomous vessels. IMO has already finished the scoping exercise on MASS and reached a conclusion that the operation of MASS requires new international rules and standards to be set out (9). Furthermore, the Maritime Safety Committee and the Legal Committee of IMO have invited the State parties to submit proposals for the adoption of new rules and standards (10). In order to ensure compliance with existing laws and effectively monitor the operation of MASS, States may need to establish specific standards. In conclusion, it is suggested that Bangladesh, as a party to UNCLOS, should consider these challenges when adopting new regulations for MASS operations.

Dr Sabrina Hasan is a postdoctoral researcher at the East China University of Political Science and Law. Email: sabrinahasan22@gmail.com.

Recommended Citation: Sabrina Hasan, 'Jurisdiction of Bangladesh over Maritime Autonomous Surface Ships: Challenges and Prospects,' BCOLP Blog, July 2023.

Notes: 

(1) United Nations Convention on the Law of the Sea, 10 December 1982, 1833 UNTS 397 (entered into force Nov. 1, 1994).

(2) Robert Veal, Michael Tsimplis and Andrew Serdy, ‘The Legal Status and Operation of Unmanned Maritime Vehicles, (2019) 50 Ocean Development & International Law 23–48.

(3) Sabrina Hasan, ‘Analysing the definition of “ship” to facilitate Marine Autonomous Surface Ships as ship under the law of the sea’ (2022) Australian Journal of Maritime & Ocean Affairs, 1 (DOI: 10.1080/18366503.2022.2065115).

  

(4) Orkun Burak Öztürk, İdris Turna, ‘Investigation of ship radio communication deficiencies in port state controls: radio logbook records’ (2023) Australian Journal of Maritime & Ocean Affairs, 1-17.

  

(5) IMO Press Briefing, ‘IMO takes first step to address autonomous ships, Briefing: 08 25/05/2018,’ available at: http://www.imo.org/en/MediaCentre/PressBriefings/Pages/08-MSC-99-MASSscoping.aspx.

  

(6) Aldo Chircop, ‘Maritime Autonomous Surface Ships in International LAW: New Challenges for the Regulation of International Navigation and Shipping’ (2019) 23 Cooperation and Engagement in the Asia-Pacific Region, 18-32, available at: https://doi.org/10.1163/9789004412026_004; Dr Youri van Logchem, ‘International Law of the Sea and Autonomous Cargo “Vessels”, in Baris Soyer and Andrew Tettenborn (eds), Artificial Intelligence and Autonomous Shipping: Developing the International Legal Framework, (Hart Publishing, 2021) 55.  

  

(7) Professors Simon Baughen and Andrew Tettenborn, ‘International Regulation of Shipping and Unmanned Vessels,’ in Baris Soyer and Andrew Tettenborn (eds) Artificial Intelligence and Autonomous Shipping: Developing the International Legal Framework (Hart Publishing, 2021) 13.

  

(8) Sabrina Hasan, ‘Marine Autonomous Ships in the Arctic: Prospects and Challenges’ (2021) 9 Current Developments in Arctic, 15-19, available at: http://urn.fi/URN:NBN:fife2021120759218.

  

(9) International Maritime Organisation, ‘Autonomous Ships: Regulatory Scoping Exercise Completed’ (25 May 2021) available at: https://www.imo.org/en/MediaCentre/PressBriefings/pages/MASSRSE2021.aspx#:~:text=The%20Maritime%20Safety%20Committee%20%28MSC%29%20of%20the%20International,Maritime%20Autonomous%20Surface%20Ships%20%28MASS%29%20could%20be%20regulated. 

  

(10) IMO (MSC), ‘Outcome of the Regulatory Scoping Exercise for the Use of Maritime Autonomous Surface Ships (MASS)’, MSC.1/Circ.1638 (3 June 2021) available at: https://wwwcdn.imo.org/localresources/en/MediaCentre/HotTopics/Documents/MSC.1-Circ.1638%20-%20Outcome%20Of%20The%20Regulatory%20Scoping%20ExerciseFor%20The%20Use%20Of%20Maritime%20Autonomous%20Surface%20Ships...%20(Secretariat).pdf; IMO (LEG) ‘Outcome Of The Regulatory Scoping Exercise and Gap Analysis of Conventions Emanating from the Legal Committee with Respect to Maritime Autonomous Surface Ships (MASS)’, Leg.1/Circ.11 (15 December 2021) available at: https://wwwcdn.imo.org/localresources/en/MediaCentre/HotTopics/Documents/LEG.1-Circ.11%20-%20Outcome%20Of%20The%20Regulatory%20Scoping%20Exercise%20And%20Gap%20Analysis%20Of%20Conventions%20Emanating%20From...%20(Secretariat).pdf.

WORLD OCEAN DAY 2023 AND BCOLP’S 1ST ANNIVERSARY WEBINAR

On 8 June 2023, we will observe this year’s World Ocean Day and the 1st foundation anniversary of the Bangladesh Centre for Ocean Law and Policy - BCOLP. We at BCOLP are pleased to announce that we will celebrate the event with a special webinar to discuss the jurisdiction of Bangladesh over maritime autonomous surface ships. We are thrilled to have Dr Sabrina Hasan as the keynote speaker. Dr Sabrina is a postdoctoral researcher at the East China University of Political Science and Law. She completed her PhD in Law from Xiamen University, China, in June 2022. Please find below the abstract of her presentation. The webinar will be on Saturday, 10 June, at 6 pm in Dhaka, 8 pm in Beijing and 10 pm in Sydney. Quazi Omar Foysal, BCOLP’s outreach and communication coordinator, will moderate the event.

Abstract: The evolution of maritime autonomous surface ships (MASS) has gained global attention as it is poised to change the maritime industry in every aspect significantly. It is expected that adopting autonomous technologies could offer considerable benefits, including safer and more environmentally friendly shipping. However, legal challenges may arise due to non-compliance with existing laws concerning the rights and duties of states. These challenges may create dichotomies in enforcing state jurisdiction over MASS under the United Nations Convention on the Law of the Sea (UNCLOS). Bangladesh, a coastal state and one of the major shipbuilding nations, plays a crucial role in global shipping. Therefore, this discussion outlines the challenges that Bangladesh would face as a coastal, port, and flag state when enforcing its jurisdiction over MASS under the law of the sea. Furthermore, the role of the International Maritime Organization as an international shipping regulatory body and the impacts of its mandate in addressing these challenges are also crucial to this discussion. Finally, the discussion suggests that Bangladesh, as a state party to UNCLOS, should consider these challenges in adopting new regulations for MASS operations.

If this sounds exciting, please register by filling out the Google Form: https://lnkd.in/gpai2KnN. We will share the webinar link with the registered participants before the event.

Thank you, and we are excited to meet you all at the webinar.

Deep Seabed Mining (DSM) in Bangladesh and the Bay of Bengal: Challenges and Opportunities

        Photo Credit: Amanda Dillon from Drazen et al. 2020, doi.org/10.1073/pnas.2011914117

Written by Shushmita Ahmed, LLM, and edited by Sabrina Hasan, PhD

Deep seabed mining (DSM) is a contentious issue, with concerns about the environmental impacts of such activities on marine ecosystems (1). Therefore, any decision to engage in DSM must be made after careful consideration of the probable risks and benefits, taking into account the potential environmental impact and interests of all stakeholders, including local communities and fishers. The Bay of Bengal has been identified as a promising area for DSM due to its mineral-rich deposits (2). Several countries, including the US, Russia, the UK, Japan, and Australia, and rising powers like China and India, have shown interest in exploring the potential for DSM in the Bay of Bengal (3). In addition, studies have been conducted regarding the prospects of seabed mining in the Bay, located off the coast of Bangladesh, India, Myanmar, and Sri Lanka (4). Furthermore, Bangladesh has been in discussions with various countries, including China, Japan, and India, about possible collaboration on exploring and exploiting the mineral resources in the Bay (5).

Exploration and exploitation of seabed minerals can accelerate a country’s economic development. For this, a robust legal framework is required to deal with seabed resources in an efficient and environmentally friendly manner. The overall contribution of the mining sector to Bangladesh’s GDP is only 1.2%, which can be improved by exploiting seabed minerals (6). To do so, Bangladesh must adopt new laws, regulations, and administrative measures following international standards and guidelines on DSM (7). Several attempts have been made to adopt a mineral policy in Bangladesh since 2005; however, none were successful (8). The Constitution of Bangladesh vests the ownership of all minerals in the State (9). The first mineral legislation in Bangladesh is the Mines Act of 1923 (10). The Mines and Mineral Resources (Control and Development) Act 1992 incorporates the rules on licensing for mineral exploration. Later, in 2012, the Mining and Mineral Rules were introduced (11). The existing legal framework deals with the manner, conditions, and form in which prospecting licenses and mining leases are granted. In this connection, it is worth noting that a Singapore-based Australian company received two licences for exploration in the Teknaf area in 2007, but mining approval has not been granted yet (12). This is an example of the slow pace of DSM activity in Bangladesh.

Recently, the Government of Bangladesh has amended its Territorial Waters and Maritime Zones Act 1974 by enacting new legislation, Territorial Waters and Maritime Zones (Amendment) Act 2021. Sections 7, 7A, and 7B of the law specifically address the Continental Shelf of Bangladesh and its rights and jurisdiction in the Continental Shelf (13). Section 7B provides a bar on conducting research, excavation, exploration, and exploitation of natural resources in the Continental Shelf without the Government’s approval. Provisions on the ‘Area,’ i.e., continental shelf beyond national jurisdiction, and its resources are mentioned in section 7D. It says that the Area in the Bay of Bengal shall be determined in a manner prescribed by the Commission on the Limits of the Continental Shelf (CLCS) of the United Nations, and the Government may, by notification in the official Gazette, specify its limit (14). Moreover, it also mentions that the Government might make rules concerning activities in the Area, exploration and exploitation methods, and Bangladesh’s participation in the activities of the International Seabed Authority (ISA) (15). This Act also provides for the punishment of pollution in seabed activities in the Area (16). However, the law has not included managing adverse impacts on the marine environment caused by seabed mining activities and provisions on environmental impact assessment.

Bangladesh ratified the United Nations Convention on the Law of the Sea (UNCLOS) (17),  which stipulates the legal framework for exploring and exploiting deep seabed minerals beyond national jurisdiction. Therefore, any DSM activity in the Bay of Bengal must comply with UNCLOS’s provisions and the guidelines and regulations established by ISA. In June 2020, Bangladesh expressed its interest in exploring and exploiting offshore mineral resources during the ‘Ambassadorial Briefing on Equitable sharing of benefits from the sustainable development of seabed resources: Opportunities for LDCs, LLDCs, and SIDS’ and Bangladesh emphasized cooperation with ISA in achieving its blue economy targets (18). In her deliberation, H.E. Ambassador Rabab Fatima stated that Bangladesh is stressing exploring and exploiting the full potential of ocean resources. She also mentioned that as a developing country, Bangladesh needs support for capacity building and knowledge transfer through technology, training, and research (19).

Furthermore, she highlighted the importance of investment in developing countries to explore ocean resources for their development, and she indicated Bangladesh’s commitment to cooperating with ISA in the near future (20). In recent times, the relationship between Bangladesh and ISA has been accelerated. On 16 March 2023, H.E. Ambassador Muhammad Abdul Muhith presented his credentials to the Secretary-General of ISA as the Permanent Representative of the People’s Republic of Bangladesh to ISA (21). At the ceremony, the Ambassador mentioned that Bangladesh deeply values the works of ISA to protect the deep seabed for the benefit of humankind. The Secretary-General of ISA indicated that all sorts of cooperation from his side can be offered under UNCLOS and the 1994 Agreement (22).  

Meanwhile, India has started researching DSM operations in the Indian Ocean. India has established the National Institute of Ocean Technology (NIOT) to study and develop DSM technologies. NIOT signed a contract with ISA to explore a site in the Central Indian Ocean Basin for polymetallic nodules (23). Bangladesh should also try to achieve its blue economy targets, focusing on DSM. The Geological Survey of Bangladesh (GSB), part of the Energy and Mineral Resources Division of the Ministry of Power, Energy and Mineral Resources, is entrusted with the exploration part of the mineral activity (24). It is a geo-scientific research-based organization that conducts research on mineral exploration. The Government of Bangladesh submitted a proposal on 9 December 2014 on behalf of GSB to ISA for Deep Sea Survey intending to exploit mineral resources, especially Polymetallic Nodules, from the deep seabed in areas beyond national jurisdiction (25).

It is important to note that DSM is a relatively new and controversial industry, and the long-term environmental impacts of such activities are still largely unknown. Therefore, any decision to engage in DSM in Bangladesh aand the Bay of Bengal must be made based on the principle of precaution after carefully balancing the potential risks and benefits.

Shushmita Ahmed, LLM, is Senior Assistant Judge at Bangladesh Judicial Service. She completed her LLB (Hons) and LLM from the University of Chittagong, Bangladesh and received a Master of Environmental Law degree from the University of Melbourne.

Recommended Citation: Shushmita Ahmed, ‘Deep Seabed Mining (DSM) in Bangladesh and the Bay of Bengal: Challenges and Opportunities’ BCOLP Blog, April 2023.

Notes:

1. CL Van Dover et al., ‘Biodiversity Loss from Deep-Sea Mining’ (2017) 10(7) Nature Geoscience 464.

2. M Khaled Iqbal, ‘Ocean Governance for Sustainable Maritime Development in the Bay of Bengal’ (2020) 4(1) Bangladesh Maritime Journal 13, 16.

3. Humayun Kabir Bhuiyan, ‘Bangladesh Needs Necessary Policies to Benefit from Bay of Bengal,’ Dhaka Tribune (online, 28 February 2022) <https://www.dhakatribune.com/bangladesh/2022/02/28/bangladesh-needs-necessary-policies-to-benefit-from-bay-of-bengal>.

4. M Khaled Iqbal, ‘Ocean Governance for Sustainable Maritime Development in the Bay of Bengal’ (2020) 4(1) Bangladesh Maritime Journal 13, 14.

5. ‘Bangladesh in Talks with China, Japan for Deep-Sea Mining Rights,’ Dhaka Tribune (4 November 2018).

6. SI Ahmed, ‘Exploration and Exploitation of Maritime Resources of Bangladesh: Implication for National Development’ (2014) 13(1) NDC E-JOURNAL 55, 66 (‘EXPLORATION AND EXPLOITATION OF MARITIME RESOURCES OF BANGLADESH’).

7. Bhuiyan (n 2).

8. Abdullah Al Faruque, ‘Bangladesh: Legal Framework on Mineral Exploration’ in Günter Tiess, Tapan Majumder and Peter Cameron (eds), Encyclopedia of Mineral and Energy Policy (Springer, 2018) 1, 2 <https://doi.org/10.1007/978-3-642-40871-7_151-1> (‘Bangladesh’).

9. The Constitution of People’s Republic of Bangladesh 1972, art 143.

10. Al Faruque (n 8) 2.

11. Ibid 4.

12. Ahmed (n 6) 68.

13. Territorial Waters and Maritime Zones Act (as amended in 2021) s7, 7A, 7B.

14. Ibid 7D.

15. Ibid.

16. Ibid 23(b).

17. The United Nations Convention on the Law of the Sea, 1833 UNTS 3, (Entered into Force 16 November 1994). 1982 (‘UNCLOS’).

18. ‘Bangladesh Seeks Cooperation of International Seabed Authority in Realizing Its “Blue Economy” Objectives,’ Permanent Mission of the People’s Republic of Bangladesh to the United Nations (25 June 2020) <https://bdun.org/2020/06/25/bangladesh-seeks-cooperation-of-international-seabed-authority-in-realizing-its-blue-economy-objectives/>.

19. Ibid.

20. Ibid.

21. ‘The Permanent Representative of the People’s Republic of Bangladesh Presents Credentials to the ISA Secretary-General – International Seabed Authority,’ International Seabed Authority (ISA) (16 March 2023) <https://www.isa.org.jm/news/the-permanent-representative-of-the-peoples-republic-of-bangladesh-presents-credentials-to-the-isa-secretary-general/>.

22. Ibid.

23. MA Atmanand and GA Ramadass, ‘Concepts of Deep-Sea Mining Technologies’ in Rahul Sharma (ed), Deep-Sea Mining: Resource Potential, Technical and Environmental Considerations (Springer International Publishing, 2017) 305, 305 <https://doi.org/10.1007/978-3-319-52557-0_10>.

24. Al Faruque (n 8) 4.

25. ‘Geological Survey of Bangladesh (GSB) – International Seabed Authority,’ International Seabed Authority (ISA) (9 December 2014) <https://www.isa.org.jm/stakeholder_response/geological-survey-of-bangladesh-gsb/>.

Submarine Cables under National and International Law: An Overview

What can be a better way to wrap up the year 2022?

We at the Bangladesh Centre for Ocean Law and Policy - BCOLP are thrilled to invite you to a brand new episode (Episode # 4) of our inaugural webinar series. In this episode, Mohammad Ershadul Karim, PhD, Senior Lecturer of Law at the University of Malaya, Malaysia, will speak on submarine cables' national and international legal regimes. These undersea cables are like the blood vessels of the global telecommunication system. So, the topic for this session is super interesting, important and timely. The session will be delivered via Zoom on Sunday, 25 December 2022, at 20:00 hours (Bangladesh Time) and 22:00 Hours Malaysia Time. Dr Abdullah Al Arif, JSPS postdoctoral fellow at Yokohama City University, Japan, and BCOLP's founder, will make a brief introductory remark. Quazi Omar Foysal, BCOLP's Webinar and Outreach Coordinator, will moderate the session.

If this sounds exciting to you, please register by filling out the form at https://lnkd.in/gK7pePn8, and we will send you the meeting link shortly.

We are excited to meet you at the webinar.

40th Anniversary of the adoption of UNCLOS

Today, 10 December 2022, marks the 40th Anniversary of the adoption of the United Nations Convention on the Law of the Sea (UNCLOS). This groundbreaking treaty was adopted at Montego Bay, Jamaica, on 10 December 1982. Due to its importance and impact, the instrument has become known as the constitution for the ocean. BCOLP strongly supports the rule of law in the sea and the peaceful settlement of maritime disputes, two key objectives of the treaty.

World Fisheries Day 2022

Did you know that in 2020, an estimated 58.5 million people were engaged in fisheries and aquaculture, and approximately 21% were women? (FAO SOFIA 2022)

On #WorldFisheriesDay 2022, we call for ensuring human and labour rights for all fishers around the globe.

Professor M. Habibur Rahman Passes Away

We mourn! Professor M. Habibur Rahman, an eminent ocean law and policy expert from Bangladesh, died Tuesday, 15 November 2022, at 76. Professor Rahman, MSc, LLB (Dhaka), LLM (Rajshahi), LLM (Wales), PhD (Bangalore), held positions of Chairperson, Department of Law, and Dean, Faculty of Law, at Rajshahi University. In addition, he did his postdoctoral research at Max Planck Institute, Heidelberg, Germany. Professor Rahman has to his credit many publications on numerous aspects of ocean governance and the law of the sea. Among his most significant scholarly contributions are two books - 'Legal Regime of Marine Environment in the Bay of Bengal' (2007) and 'International Law of the Sea' (2016), published by Atlantic Publishers, New Delhi, India. We at the Bangladesh Centre for Ocean Law and Policy - BCOLP pray for the eternal peace of the departed soul of this great scholar.