Ocean Governance and Climate Change in the Bay of Bengal: Insights from Bangladesh

 

Md. Mostafijur Rahman

The ocean is a singular repository of resources and different elements with almost endless possibilities. More than ever, nations rely on these energy resources due to the current rapid industrialization, economic expansion, and widespread use of technology. The ocean plays a vital role in regulating global temperatures, absorbing CO2, supplying oxygen, and serving as a major source of renewable energy (1) and natural resources. For these reasons, there is an obvious connection between climate change and the ocean. In order to effectively control climate change, we thus also need ocean governance. Fortunately, the Sustainable Development Goal (SDG) 14—"Conserve and sustainably use the oceans, seas, and marine resources for sustainable development"—makes specific mention of oceans.

The Bay of Bengal, spanning 2.17 million square kilometres, (2) is now at the center of the region’s attention when considering climate change. Given that Bangladesh is located at the center of the Bay of Bengal, several concerns make it crucial to be at the center of the country’s efforts to tackle environmental issues. The victory over the Bay of Bengal's maritime region created the hitherto unheard-of potential for Bangladesh's blue economy. 111000 sq km in dispute with Myanmar and 19,467 sq km in dispute with India were given to Bangladesh. Bangladesh's biosphere, social progress, and human welfare depend on the Bay of Bengal, which is a vital component of the nation's life support system. In light of the potential for rich resources to be hidden just beneath the established vicinity, the Bay of Bengal has, therefore, opened up new opportunities for Bangladesh.

Bangladesh's ability to sustainably manage the ocean is essential for addressing climate change, preserving biodiversity, ensuring food security, building coastal resilience, providing access to renewable energy sources, managing natural resources, and maintaining human health. Indeed, the Summit UAE of 2023 was a crucial forum for promoting ideas and carrying out policy assessments for achieving a sustainable climate future. COP 28 was especially significant since it concluded the first "global stocktake" of the global climate change response under the Paris Agreement. Bangladesh has high expectations from COP-28 as it needs to address the effects of climate change immediately and ensure a sustainable future.

As a result, by pressing developed nations to contribute more money to the fund, operationalizing the Loss and Damage mechanism, supporting evidence-based treatments, sustainable farming methods, and an international climate insurance program, and pushing for increased climate finance delivery and stronger NDCs or contributions to the Paris Agreement, Bangladesh is proactively addressing these issues. As per the decisions made at COP28, Bangladesh is anticipated to keep working toward stronger climate fund delivery, stricter emission reduction targets, a stronger emphasis on the development of climate-resilient infrastructure, and more regional collaboration on climate-related issues. (3)

 

On the strategic front, Bangladesh is a natural link between South and Southeast Asia because of its geographic location. Given its ability to promote further integration between Northeast and Central India, Bangladesh is also an essential geopolitical ally of India. At the same time, China considers Bangladesh a potential strategic partner to collaborate on its "Maritime Silk Road" project and the "String of Pearls" strategy due to its distinct topography. (4a, 4b) The likelihood of deeper connections with Bangladesh is something that China's Western adversaries, including India, are well aware of. This potential has also transformed Bangladesh's standing from decades of geopolitical insignificance to a major factor in determining the course of Asia. In order to preserve its geopolitical significance, Bangladesh must perform a delicate diplomatic balancing act. Two important parties, China and the Quad nations (Australia, Japan, the US, India, and Australia), must maintain positive and balanced bilateral relations. (5) Further, the ongoing fighting between the Myanmar Army and rebel groups in Rakhine state and other areas will have an impact on the security of Bangladeshi territory and the Bay of Bengal, according to a seminar titled "Existing crisis in Myanmar and its impact in the neighbouring regions" that was organized by the Center for Peace Studies (CPS) of North South University's South Asian Institute of Policy and Governance (SIPG). (6)

 

Despite all of the Bay of Bengal's advantages, it is endangered. The concept of climate security holds significance for policy planners in the Bay of Bengal region for multiple reasons. It is, first and foremost, extremely climate-vulnerable. Secondly, a fourth of the world's population lives along the shoreline, making it a densely populated zone. Thirdly, the region's share of the world economy is close to 4.7%. Fourthly, the Malacca Strait is a vital marine chokepoint. The world's busiest commercial passage, the Strait of Malacca, links the South China Sea with the Burma Sea en route to the Bay of Bengal, making it a strategically important location. (7) Cross-border militancy in the triangle formed by Bangladesh, India, and Myanmar is the most significant non-traditional security threat. Migration is the subject of another significant security concern; for example, almost one million Rohingyas escaped to Bangladesh in 2017. (8) Fifthly, there are several security risks associated with the Bay of Bengal, (9) including illegal, unreported, and unregulated (IUU) fishing, (10) human, weapon, and drug trafficking. Many non-state actors have the potential to launch a terrorist attack against the Bay of Bengal region. (11) Finally, the populace living along the coast is being impacted by the already-occurring rise in sea levels and temperatures.

To combat both conventional and non-traditional threats, all the states in the Bay of Bengal have also realized how important it is to maintain maritime security. It is not just about preserving the Bay of Bengal when it comes to combating climate change.  It is also about protecting the environment and the nation from issues like unemployment, poverty, and health risks; it is about preventing essential infrastructure from being negatively impacted by climate change; it is about preventing problems with people's safety, security, and means of subsistence; and it's about keeping the country green.

This is due to the fact that climate change has a wide range of repercussions, such as floods and wildfires, new diseases, draughts, and food shortages, as well as animal extinction and entire people leaving their homes in pursuit of more hospitable environments. Moreover, over 33% of world trade passes through this region. The Bay of Bengal is one of the 64 major maritime ecosystems because of its enormous forests, rivers, coral reefs, estuaries, deltas, and a variety of fish and animal species. If the Bay of Bengal is under stress, particularly due to climate change, the future of coastal people will be jeopardized, and the foundation of a sustainable blue economy will be at risk.

In order to maintain a 1.5-degree trajectory and to strengthen food security, energy capacity, and local livelihoods through enhanced climate action, COP-28 recently offered to implement solutions for stakeholders identified under the ocean breakthroughs. These solutions can contribute up to 18% of the emission reductions needed in 2030 and up to 35% in 2050. (12) When prepared, this chance will help the Bay of Bengal's ocean governance.

Why is ocean governance critical to addressing climate change? Is it truly our knowledge of what occurs in the world? These questions must be addressed before there is a rush to use marine resources. The blue economy requires these answers to have legal clarity prior to making fresh investments in the Bay of Bengal. As a result, an assessment of Bangladesh's current ocean governance framework is essential.  

Ocean governance refers to the management of ocean affairs by local communities, businesses, and other stakeholders in addition to governments. It encompasses public and private law, international and national law, custom, tradition, and culture, as well as the organizations and procedures that result from them. (13)  Policymakers and scholars need to create a new section on this for the national policy of the respective countries in the Bay of Bengal to reach the global achievement of both the SDG and climate change targets by 2030.  It is evident how climate change affects the Bay of Bengal. The common goal of the region is to determine the optimal Ocean Governance regulations that support the Bay’s preservation and protection. 

Md. Mostafijur Rahman is a law graduate of the University of Rajshahi, Bangladesh. He is currently a PhD Researcher at the Bangladesh University of Professionals (BUP). He may be reached at mrlawru2001@gmail.com. 

Notes:

(1) Vella, K. (2015, November 30). Blog: Climate Change and Ocean Governance. EU Monitor. https://www.eumonitor.nl/9353000/1/j9tvgajcovz8izf_j9vvik7m1c3gyxp/vjzhnmtl1bz1?ctx=vjn4dhshj9zp&start_tab0=130

(2) Karim, T. (2023, May 11). The Bay of Bengal and Bangladesh in the Indo-Pacific region, The Daily Star, https://www.thedailystar.net/opinion/news/the-bay-bengal-and-bangladesh-the-indo-pacific-region-3316926  

(3) What Has Bangladesh Gained from COP 28? - The Confluence, https://theconfluence.blog/what-has-bangladesh-gained-from-cop-28

(4a) Rahman, Z. (2021). Bangladesh’s geopolitical position provides for unique opportunities, the Daily Star, https://www.thedailystar.net/views/opinion/news/bangladeshs-geopolitical-position-provides-unique-opportunities-2221461

(4b) Islam, M. Bangladesh, Bay of Bengal, And China’s Belt and Road Initiative, China and the Ports of the Indian Ocean, edited by Richard T. Griffiths, International Institute for Asian Studies, 2022, p. 221

(5) Belt and Road Initiative: Perspective from Bangladesh, Aug 7, 2019, The Daily Star, https://www.thedailystar.net/round-tables/news/belt-and-road-initiative-perspective-bangladesh-1782928

(6) NSU holds a colloquium titled 'The Current Crisis of Myanmar and Its Impact on Neighboring Region' retrieved from https://www.tbsnews.net/economy/corporates/nsu-holds-colloquium-titled-current-crisis-myanmar-and-its-impact-neighbouring

(7) Puigrefagut, A. (n.d.) China and India fight for the gates of the Strait of Malacca, GLOBAL AFFAIRS, https://www.unav.edu/web/global-affairs/detalle/-/blogs/china-and-india-fight-for-the-gates-of-the-strait-of-malacca  

(8) International Crisis Group. (2022, January 12). Myanmar’s Coup Shakes up Its Ethnic Conflicts. Asia Report N°319. https://progressivevoicemyanmar.org/wp-content/uploads/2022/01/2022-01-12-ICG-319-myanmar-coup-ethnic-conflicts-en-red.pdf

(9) Singh, A. J. (2022, May 02). Building a Resilient Maritime Security Architecture in BIMSTEC. New Delhi: India Foundation. https://indiafoundation.in/articles-and-commentaries/building-a-resilient-maritime-security-architecture-in-bimstec

(10) Wagner, C. (2023). Searching common security in the Bay of Bengal. Australian Journal of Maritime & Ocean Affairs, DOI: 10.1080/18366503.2023.2270313

(11) World Oil Transit Chokepoints. (2017, July 25). US Energy Information Administration. https://www.eia.gov/beta/international/regions-topics.cfm?RegionTopicID=WOTC  

(12) Rodriguez, K. (2023, December 9). A breakthrough for oceans: Scaling Nature-based solutions for ocean-based climate policy at COP28 https://climatechampions.unfccc.int/a-breakthrough-for-oceans-scaling-nature-based-solutions-for-ocean-based-climate-policy-at-cop28

(13) Borgese, E.M., (2001). Ocean governance. Halifax: International Ocean Institute. p. 10

Exploring the Role of Regional Cooperation Frameworks in Advancing Women's Participation in the Bay of Bengal's Blue Economy

 

Nishara Mendis

In the coming decades, two critical areas which require progress in the Bay of Bengal region are women’s socio-economic rights and the sustainable development of ocean resources. It is not often that the interconnections between these two areas are recognized. Yet, being one half of humankind, women are also 50% of (mostly untapped) potential for contribution towards sustainable development in the region. There have been various economic estimates that gender parity would boost economic growth and that the Blue Economy would provide new opportunities in established sectors, such as fisheries and aquaculture, and create exciting new sectors, including R&D, oceanography, renewable energy, stock assessment of marine resources, and marine biotechnology. The Blue Economy has been defined as a “sustainable ocean economy”(1) and as requiring the promotion of “smart, sustainable and inclusive growth and employment opportunities within the Indian Ocean region’s maritime economic activities.”(2)

The existing regional intergovernmental arrangements among States bordering the Bay of Bengal could be suitable forums for developing policy and action plans on the role of ‘Women in the Blue Economy.’ This would be in line with States’ responsibilities to implement the Sustainable Development Goals, particularly SDG14 (to conserve and sustainably use the oceans, seas, and marine resources for sustainable development) and SDG16 (to promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective accountable and inclusive institutions at all levels).

Identified among the list of the top 20 ‘fisheries sensitive’ States in the world are the South Asian States of India, Bangladesh, and Sri Lanka.(3) ‘Fisheries sensitive’ for the purposes of the Food and Agriculture Organization (FAO) refers to both nutritional and economic dependency.(4) According to the FAO global statistics, 90% of the fisheries sector employment is small-scale fisheries, 84% of all fishers and fish farmers were in Asia, and 21% of fisheries and aquaculture workers are women.(5) Small-scale fisheries support millions of families but are under threat from stock depletion due to industrial fishing fleets, large-scale aquaculture, environmental degradation and coastal development, which threatens fishery livelihoods and mega-development projects, including port expansion or mining. The 2015 FAO Voluntary Guidelines for Small-scale Fisheries in the Context of Food Security and Poverty Alleviation (SSF Guidelines) take a human rights and gender equity approach to protect small-scale fishers. The SSF guidelines also include commitments that should be undertaken to increase women’s participation.

At the margins of society in most States are the people in the fisheries sector, and within that group too, women are generally unseen. Women’s labour in fisheries is insufficiently documented and unequally remunerated. In the discussions of livelihood and poverty alleviation for those employed in the fisheries sector, there remains insufficient participation and voices of the marginalized workers, particularly women.(6) Furthermore, gender stereotypes continue to be strong and, therefore, could limit access to economic independence for women in some patriarchal communities. When it comes to women’s economic empowerment, the lack of relevant education, capacity-building and training for participation has already been recognized (for example, in the IORA Action Plan 2017-2021). However, the barriers to developing this capacity clearly include the continued cultural enforcement of stereotypical gender roles, which prevent participation, as well as underlying discriminatory practices in employment or business financing contexts, as well as the lack of general safety and security for women. UNWomen in 2020 released a baseline report on the challenges for women’s participation in traditional and industrial fisheries, and aquaculture in Indian Ocean Rim Association (IORA) countries.(7) This report emphasized the need for a foundation of general gender equality measures and comprehensive gender-based reforms of labour law and policy for progress in this area.

The areas of marine technology, business and investment, especially the potential for developing seaports, shipping, and seabed exploration, are all considered male-dominated fields. In 2021, the World Maritime University launched a research and capacity-building programme named “Empowering Women for the UN Decade of Ocean Science for Sustainable Development”(8) to promote gender equality and leadership in both ocean science and governance systems related to the implementation of ocean sciences. Women rarely hold positions of management and authority in these sectors. More detailed data gathering and analysis on the role of women in these ‘high technology’ fields is needed for targeted policy development, but an outline of the issue is already apparent in recent reports and studies.

States in the region have ratified and are in the process of implementing various international standards on gender equality with varied degrees of success. Can regional bodies guide the progress towards a gender-inclusive Blue Economy? Currently, the relevant intergovernmental cooperative frameworks are: 

1. South Asian Association for Regional Co-operation (SAARC) 
2. The Indian Ocean Rim Association (IORA)
3. The Bay of Bengal Initiative for Multi-Sectoral Technical and Economic Cooperation (BIMSTEC)
4. The South Asia Seas Programme led by the South Asia Cooperative Environment Programme (SACEP). 
5. Bay of Bengal Large Marine Ecosystem (BOBLME) Strategic Action Plan (SAP)

SAARC includes India, Pakistan, Bangladesh, Sri Lanka, the Maldives, Bhutan, Nepal, and Afghanistan. While SAARC identified the environment and development as topics for regional cooperation and there are collective declarations of policy positions, it has not been providing sufficient action in this area. In the Kathmandu Declaration of 2014, SAARC countries reaffirmed the Sustainable Development Goals (SDGs) and the need for partnership for the Blue Economy. Bangladesh has taken the initiative to incorporate this position into domestic law through Section 7F of the Territorial Waters and Maritime Zones (Amendment) Act, 2021.

IORA is a regional organization of 22 member Asian and African states that border the Indian Ocean (excluding Pakistan) and nine dialogue partners (China, France, Japan, the USA, Germany, the UK, Egypt, Turkey, and South Korea). IORA affirmed in 2017 through the ‘Jakarta Declaration on the Blue Economy’ that the Blue Economy should be in accordance with both the United Nations Convention on the Law of the Sea (UNCLOS) and SDG14.(9) Previously, in its 2015 Mauritius Declaration on Blue Economy, IORA recognized the need for improved governance structures for implementation,(10) and this can be identified as a vital part of successful implementation.(11)

BIMSTEC includes Bangladesh, India, Sri Lanka, Myanmar and Thailand, as well as Nepal and Bhutan. The Blue Economy is a priority topic for BIMSTEC countries, as recognized at the 19th BIMSTEC Ministerial Meeting held on 9 March 2023.

SACEP consists of the five South Asian States with coastlines, as well as the landlocked States of Afghanistan, Bhutan, and Nepal. SACEP objectives include the protection, management and enhancement of the environment and it is also the Secretariat for implementing the South Asian Seas Program (SASP). One of the SASP action areas is ‘Human Resources Development through Strengthening Regional Centres of Excellence.’(12) There is an opportunity here to support women’s participation and leadership roles and a gender policy.

The Maldives, India, Sri Lanka, Bangladesh, Myanmar, Thailand, Indonesia, and Malaysia are the partners in the Bay of Bengal Large Marine Ecosystem (BOBLME) Strategic Action Plan (SAP 2014) carried out with the UN Food and Agriculture Organization (FAO). This SAP is significant for having included a gender audit and initiating gender mainstreaming strategies,(13)  something that should be followed by the other regional cooperation frameworks as well.

The abovementioned intergovernmental bodies and cooperative arrangements are only basic foundations with slow developments when it comes to concrete actions. Yet, the clarity of priorities and the effective use of these forums could result in domestic governmental laws and policies and thus propel progressive change for greater gender equality and participation. The discussions by government officials, policy plans and funded programmes on the Blue Economy must integrate gender into their work and strategize accordingly. An inclusive Blue Economy model must generate wealth for women as individuals so they can contribute towards the economic well-being of their families and/or communities. Professionals currently engaging with Blue Economy themes in the regional context should also be aware of the mostly unseen women and their potential and include these perspectives in their research and work. Encouraging young women’s education and promoting careers in the Blue Economy should be implemented from now onwards.

Friendly diplomatic relations and the development of common positions for law and policy have encouraged the countries of the Bay of Bengal region to strive together for common goals. There is clear potential for countries in the region to develop more robust intergovernmental cooperation for sustainable development and gain the potential benefits of the ‘Blue Economy’ for all.

Dr. Nishara Mendis, LLB (Hons. Colombo), LLM (Yale), PhD (Maastricht), is an independent researcher and consultant in international law and an Attorney-at-Law in Sri Lanka. She was formerly a Senior Lecturer at the Department of Public and International Law, Faculty of Law, University of Colombo, Sri Lanka, where she taught international law topics, including Law of the Sea. 

[This article achieved the third position in the 2023 Law of the Sea Blog Competition, hosted by BCOLP in memory of Professor M. Habibur Rahman (1946 – 2022).]

Notes:

(1) Attri, V.N., Bohler-Mulleris, Narnia Eds., (2018), “The Blue Economy Handbook of the Indian Ocean Region”, Africa Institute of South Africa.

(2) IORA, Blue Economy, < https://www.iora.int/en/priorities-focus-areas/blue-economy >. See also World Bank Group (2016) “Oceans 2030: Financing the Blue Economy for Sustainable Development; Williams, Mariama (2023) “Financing the Blue Economy: Impacts and Implications for Gender Equality and Women’s Empowerment in the global South”, DAWN.

(3) FAO (2022). The State of World Fisheries and Aquaculture: Towards Blue Transformation; FAO (2020) The State of World Fisheries and Aquaculture: Sustainability in Action.

(4) FAO (2020) The State of World Fisheries and Aquaculture: Sustainability in Action.

(5) FAO (2022). The State of World Fisheries and Aquaculture: Towards Blue Transformation; FAO (2020) The State of World Fisheries and Aquaculture: Sustainability in Action.

(6) Galappaththi, M., Armitage, D., & Collins, A. M. (2022) “Women’s experiences in influencing and shaping small-scale fisheries governance. Fish and Fisheries, 00, 1– 22. https://doi.org/10.1111/faf.12672.

(7) UNWomen (2020), “Women’s Economic Empowerment in Fisheries in the Blue Economy of the Indian Ocean Rim: A Baseline Report”. 

(8) https://oceandecade.org/actions/empowering-women-for-the-united-nations-decade-of-ocean-science-for-sustainable-development/.

(9) IORA, Blue Economy, < https://www.iora.int/en/priorities-focus-areas/blue-economy >; IORA Action Plan 2017 - 2021 on Blue Economy and Women’s Economic Empowerment.

(10) The IORA Jakarta Declaration on the Blue Economy (2017) <https://www.iora.int/media/8218/jakarta-declaration-on-blue-economy-final.pdf>.

(11) Doyle, Timothy (2018), “Blue Economy and the Indian Ocean Rim,” Journal of the Indian Ocean Region, Volume 14, 1-6.

(12) SACEP, South Asia Co-operative Environment Programme, (2021) <http://www.sacep.org/about-us>.

(13) FAO-BOBLME, 2015, Mainstreaming Gender in Large Marine Ecosystems, available online at https://www.boblme.org/documentRepository/BOBLME-2015-Brochure-06.pdf.

Empower BCOLP: Navigating Sustainable Oceans Together!

🌊 Charting a Sustainable Ocean Future with BCOLP! 🌐

At the Bangladesh Centre for Ocean Law and Policy (BCOLP), we are on a mission to lead the way in ocean education, research, and training, focusing on Bangladesh and the Bay of Bengal. As a non-profit, non-partisan forum, BCOLP is dedicated to sparking insightful debates and discussions on global and regional ocean governance.

Why Support BCOLP? 🌍 By supporting BCOLP, you are contributing to fostering original research on national, regional, and global ocean law and policy. Your donation propels our efforts to generate awareness about maritime security, marine environmental protection, natural resource management, the blue economy, and other vital aspects of ocean governance.

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Results of the 1st Law of the Sea Blog Competition 2023

 

The winners are:

1st Prize

“Blue Economy and Deep Seabed Mining in the Bay of Bengal: An Integrated Approach for Sustainable Ocean Governance” by Shah Maruf Uddin Ahmad (LLB Honors and LLM in International & Comparative Law, University of Dhaka).

2nd Prize

“Protecting the Palk Bay: A Critical Account of India’s Regulatory Measures for Climate Resilience in the Bay of Bengal” by Sanya D. Kishwar (Assistant Professor, O.P. Jindal Global University, Sonipat, India) and Kritika Vatsa (Student, O.P. Jindal Global University, Sonipat, India) and Sadqua Khatoon (Student, Aligarh Muslim University, Aligarh, India).

3rd Prize

“Could Regional Cooperation Frameworks Promote and Develop the Groundwork for Women in the Blue Economy in the Bay of Bengal?” by Dr Nishara Mendis (Independent consultant in international law and an Attorney-at-Law, LLB from the University of Colombo, Masters from Yale Law School, and PhD from Maastricht University, Netherlands).

Congratulations to all the winners! The winning pieces will be published in the BCOLP Blog in 2024.

1st International Law of the Sea Blog Competition - 2023

Bangladesh Centre for Ocean Law and Policy (BCOLP) is pleased to announce the 1st ever International Law of the Sea Blog Competition - 2023 in memory of Professor M. Habibur Rahman (1946 – 2022).

Theme: Emerging Challenges, Modern Technologies, and Ocean Governance in the Bay of Bengal

Guidelines:

To participate in the competition, please send your blog piece on the above theme to mailtobcolp@gmail.com.

Word limit: 1000 to 1200 words (including references in APA)

Important dates:

• The last date of submission is December 15, 2023. 
• Results will be announced on December 31, 2023. 

Awards: 

• 1st ranked participant will receive a cash prize of US $150.00
• 2nd ranked participant will receive a cash prize of US $100.00
• 3rd ranked participant will receive a cash prize of US $75.00

In addition, authors of the top three blog pieces will receive a digital Certificate of Honor, and all participants will receive a digital Certificate of Participation. The top ten blog pieces will be published on the BCOLP Blog, reaching a global audience. 

Rules:

• Submissions must be original and unpublished.

• Any submission identified as plagiarized and/or AI-generated shall not be considered.

• Submissions received after the deadline will not be accepted for the competition.

• The competition is open to all, excluding those on BCOLP’s executive board.

For more information and queries, please email us at mailtobcolp@gmail.com.

Executive Board

Dr Abdullah Al Arif

Dr Abdullah Al Arif, Founder and Director of BCOLP, is an Internationally experienced legal researcher specialising in ocean governance and the law of the sea. He holds a PhD in law and has recently completed a postdoctoral fellowship at Yokohama City University, Japan. Dr Arif published a research monograph, "Sustainable Fisheries Management and International Law: Bangladesh and the Bay of Bengal," with Routledge (2022) and several research articles in leading journals. 

Quazi Omar Foysal

Quazi Omar Foysal, Deputy Director of BCOLP, is an aspirant international law practitioner hailing from Bangladesh. Currently, he is serving as a Lecturer at American International University-Bangladesh, where he has been teaching law, including international law since 2019. Besides, he is an enrolled Advocate of the Supreme Court of Bangladesh. He studied at UCLouvain (Belgium), Geneva Academy (Switzerland) and the University of Dhaka (Bangladesh).

Saiyeed Jakaria Baksh Imran

Saiyeed Jakaria Baksh Imran, Program Coordinator at BCOLP, is a lecturer at Bangabandhu Sheikh Mujibur Rahman Maritime University (BSMRMU). He also is a licensed practitioner at the Supreme Court of Bangladesh and has over 5 years of experience in legal practice. Mr Saiyeed is passionate about Maritime Practice and research and obtained his specialization in Maritime Law from the prestigious Scandinavian Institute of Maritime Law of the University of Oslo. He also worked as an examiner of law for the National University of Bangladesh. Mr. Saiyeed is working with multiple national and international organizations and is a member of the International Association of Marine Consultants and Surveyors (IAMSC), the International Union for Conservation of Nature (IUCN), and the International Pacific Bar Association (IPBA). Saiyeed is involved in maritime research, and his research area includes maritime legal aspects such as environmental pollution, autonomous shipping, liability issues in maritime insurance and maritime governance.

Dr Sabrina Hasan

Dr Sabrina Hasan, Research and Publications Coordinator at BCOLP, is a postdoctoral fellow and lecturer at the East China University of Political Science and Law (ECUPL) International Law School, as well as a part-time researcher at the ECUPL Institute of BRICS Legal Studies. She received the Chinese Government Marine Scholarship in 2018 and holds a Doctor of Law degree majoring in Law of the Sea from the South China Sea Institute of Xiamen University, awarded in 2022. In addition to her academic achievements, she worked as a Research Assistant at the Bangladesh Institute of Law and International Relations (BILIA). Her research interests encompass a wide range of areas, including Marine Environment, Maritime Delimitation, Marine Biodiversity, Arctic Ocean Governance, and State Jurisdiction over Maritime Autonomous Ships.

Mobarak Hossain

Mobarak Hossain, Planning and Development Coordinator at BCOLP, is a lecturer of law at Dhaka International University, Bangladesh and an advocate of the Bangladesh Supreme Court. He holds a special two-year LLM degree in the Sea and Maritime Law from Ankara University, Turkiye. His LLM thesis focuses on “Towards the Sustainable Blue Economy in the Bay of Bengal: Legal Challenges for Bangladesh”. He writes opinion pieces in leading newspapers and research articles in academic journals. 

Nadia Islam Nody

Nadia Islam Nody, Media and Communications Coordinator at BCOLP, is a Lecturer of Law at the Bangladesh Army International University of Science and Technology, Bangladesh. She completed her LLB and LLM from Jahangirnagar, University, Bangladesh. She is a keen enthusiast of Environmental Law and International Law. She dedicated her academic journey to various voluntary humanitarian activities with NGOs such as the Liberation War Museum, BLAST, and SLAF. She was also the Editor in Chief of NILS Bangladesh Blog and Jahangirnagar University Writing Club.

Md. Muhtasim Faiaz

Md. Muhtasim Faiaz, Events, Training and Workshops Coordinator at BCOLP, is an LLM student at the Faculty of Security and Strategic Studies at Bangladesh University of Professionals (BUP). Faiaz has completed his LLB from the same University. During his undergraduate period, he was the treasurer of the BUP Law and Moot Court Club, worked as a Vice President of the BUP Film Club and Organizing Secretary of BUP Photography Society. He has also worked as a coordinator and speaker of some reading groups. He is now an active volunteer of the Center for the Study of Genocide and Justice (CSGJ) of the Liberation War Museum, and he has also worked as a Co-Ordinator (Events, Training and Workshops) of Bangladesh Centre for Ocean Law and Policy – BCOLP. He has an interest in Environmental Law, Refugee Law, Human rights Law and Sea Law. Currently, he is doing his Master's thesis research on the Protection against Marine pollution in Bangladesh. Faiaz’s undergraduate thesis has focused on the Environmental Justice of Bangladesh.

Sojol Ahmed Bappi

Sojol Ahmed Bappi, Associate Program Coordinator at BCOLP, is an aspiring legal enthusiast currently pursuing an LLB (Hons) degree at Khulna University. With a fervent passion for justice, he has dedicated himself to various fields of research and voluntary work. His particular interests lie in Constitutional Law and Ocean Governance, reflecting his commitment to shaping a more just and sustainable world. Sojol wants to work toward his vision of a fairer society through legal endeavours and advocacy.

Emadul Hasan

Emadul Hasan, Centre Administrator at BCOLP, is an apprentice lawyer at a renowned legal consultancy. Emadul has completed his LLB and LLM at the University of Barishal. He is affiliated with voluntary activities with different NGOs such as CELGAP, Liberation War Museum and BLAST. He has an equal interest in legal research as he pens down for law pages of English dailies. He is one of the founding members of BCOLP and served as Deputy Manager for the 2022-23 term.

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.