Consent is not Compensation: Bangladesh’s Maritime Liability Test

[Miraj Hosen is a Research Assistant at the Bangladesh Society of International Law.]

On 6 July 2026, Bangladesh deposited instruments of accession to three International Maritime Organization liability treaties. The instruments were the 1992 Protocol to the Civil Liability Convention, the 2001 Bunkers Convention, and the 2007 Nairobi Wreck Removal Convention. The latest IMO status record lists those deposits, while the BSS account presented the accessions as a way to secure compensation without prolonged litigation. That public account captures the treaties’ remedial ambition, but it also risks treating accession, entry into force, and domestic implementation as though they were the same legal event.

Bangladesh’s accession exposes a wider weakness in maritime environmental law. Liability conventions operate effectively for affected coastal claimants only when three conditions work together. The treaty must have entered into force for the state. Where a compensation regime is layered, access to its full compensation architecture depends on participation in the additional layer. Domestic law must then provide for the issuance and recognition of compulsory-insurance or financial-security certificates, as well as the relevant causes of action, limitation procedures, courts, evidentiary rules, and claims administration mechanisms that turn treaty obligations into actual compensation.

This is not merely a domestic technicality. UNCLOS Articles 192 and 194 require protection of the marine environment and necessary measures to prevent, reduce, and control pollution. Article 235(2)–(3) connects those duties to recourse for prompt and adequate compensation and cooperation on responsibility and liability, including compulsory insurance and compensation funds. It does not prescribe accession to a particular liability treaty. ITLOS has explained that Article 194(1) due diligence requires a functioning national system of legislation, administrative procedures, enforcement, and vigilance (paras 234–235). The IMO Liability Conventions answer the narrower question of who pays after a casualty. The analysis below moves from timing, through compensation architecture, to domestic implementation and the unresolved limitation regime.

Accession Starts Three Legal Clocks

The first correction concerns timing. The IMO record shows that the Bunkers and Nairobi Conventions will enter into force for Bangladesh on 6 October 2026. It also shows that the 1992 Civil Liability Protocol will enter into force for Bangladesh on 6 July 2027. Deposit on 6 July 2026 therefore expressed Bangladesh’s consent to be bound, but none of the three regimes became operative for Bangladesh on that date. That delay matters because public discussion of accession often moves too quickly from diplomatic act to legal protection.

The conventions also address different risks and should not be treated as one undifferentiated model. Under Articles III and VII(1) and (8) of the 1992 CLC, liability for persistent cargo oil pollution from tankers is channelled to the registered owner, subject to limited defences, while ships carrying more than 2,000 tonnes of persistent oil in bulk as cargo must maintain compulsory insurance, and claimants may proceed directly against the insurer. Bunkers Articles 1(3), 1(5), 3, and 7 cover pollution caused by fuel used or intended for a ship’s operation, define shipowner more broadly, and require insurance of the registered owner of a ship over 1,000 gross tonnage. Nairobi Articles 7–9 and 12 concern locating, marking, and removing hazardous wrecks and require insurance certification for ships of 300 gross tonnage and above.

These differences matter because insurance is not simply evidence that a solvent defendant exists. Direct action allows an eligible claimant to proceed against the insurer or financial security provider under the convention regime. Certificates also allow flag and port states to verify financial security before covered vessels trade. Yet those mechanisms still require a national authority to issue or recognise certificates, a court to hear claims, and procedures for limitation, distribution, recognition, and enforcement.

The Missing Fund Can Create a Compensation Border

The largest remaining gap in the cargo-oil architecture is Bangladesh’s non-accession to the 1992 Fund Convention. The Civil Liability Convention is the shipowner layer of a two-tier tanker pollution regime. When valid claims exceed the shipowner’s limit, or compensation under the first layer is unavailable for specified reasons, the Fund supplies additional compensation. The IOPC Funds explain that the combined maximum is 203 million Special Drawing Rights for qualifying incidents, including amounts paid under the Civil Liability Convention. The Fund therefore should not be described as adding a separate 203 million Special Drawing Rights above the shipowner’s payment.

Membership is not costless. Articles 10 and 15 ordinarily place annual contributions on persons in a member state who receive more than 150,000 tonnes of contributing oil after carriage by sea, not directly on the state treasury. The state must report those receivers and quantities and may owe compensation if a reporting failure causes the Fund financial loss. Article 14 permits, but does not require, the state to assume a contributor’s obligations. Membership therefore brings real industry costs and administrative duties, and the available evidence does not establish why Bangladesh has not joined. In return, it pools catastrophic cargo-spill risk and provides established claims practice for clean-up costs, property damage, fisheries and tourism losses, and reasonable environmental reinstatement.

The current IOPC membership list does not record Bangladesh as a party to the Fund Convention. It records India, Sri Lanka, and Maldives as parties to both the 1992 Civil Liability and Fund Conventions. The result is a regional asymmetry, but only for an incident within the CLC/Fund scope. A qualifying tanker spill affecting Bangladesh after July 2027 could engage the shipowner and insurer layer, while Bangladeshi claimants would remain outside the industry-financed second tier unless Bangladesh separately joined the Fund.

The Sundarbans record must therefore be used with care. A joint United Nations–Bangladesh assessment describes OT Southern Star as an oil tanker carrying 357,664 litres of heavy fuel oil in an inland river casualty, but the available official record does not establish the sea-going element required by CLC Article I(1). The IOPC Director reported a low likelihood of Fund involvement and said only that the incident could have become a Fund incident if pollution entered Indian territory. That was conditional, not a coverage determination. It illustrates how treaty membership would affect access to compensation only if the vessel and oil otherwise satisfied the Conventions.

The example also exposes a scope tension. Bunkers covers operational-fuel pollution from sea-going ships. CLC/Fund covers persistent oil carried as cargo by sea-going tankers. Coal and fly ash fall outside both. Bunkers may therefore matter more immediately for operational-fuel spills in coastal waters, though not every inland craft meets its ship definition. The Fund still matters for tanker risk. After a fire aboard MT Banglar Saurabh at Chattogram’s outer anchorage in October 2024, the Bangladesh Navy reported that its response prevented crude oil from spreading into the Karnaphuli River and Bay of Bengal. That casualty illustrates Bangladesh’s exposure to tanker risk rather than a completed CLC/Fund pollution incident. For damage in Bangladesh, a qualifying future cargo spill would engage only the CLC owner-insurer layer of that architecture without Fund accession.

Properly framed, the compensation-border point is conditional rather than retrospective. Formal participation in one convention can still leave similarly situated victims on opposite sides of a maritime boundary with materially different access to compensation. For Global South coastal states, the question is not simply whether they have joined liability conventions, but whether they have joined the financial architecture capable of responding to loss beyond one owner’s limitation fund.

Implementation Belongs to the International Legal Design

The second gap concerns domestic law, but it should not be framed as a narrowly Bangladeshi legislative defect. These conventions deliberately depend upon national legal systems for their practical operation. States must identify the authority that issues certificates, enforce certificate requirements in ports, provide jurisdiction over direct actions, constitute and distribute limitation funds, recognise judgments, enforce time bars, and organise the evidence needed for mass claims.

Bangladesh’s official laws database still publishes the Merchant Shipping Ordinance 1983. Sections 471–472 contain a general shipowner limitation framework, but the Ordinance predates the three instruments deposited in July 2026. The Admiralty Act 2000 designates the High Court Division as the Admiralty Court, yet jurisdiction over maritime claims does not itself create every convention right or procedure. A claimant invoking direct action still needs domestic rules identifying the competent court, permissible insurer defences, service requirements, limitation-fund procedure, recognition of foreign certificates, and enforcement of judgments.

This is why implementation is part of the international legal design rather than a domestic afterthought. The IMO paper on effective implementation recognises that liability conventions need consistent application across states. Its work on a Bunkers claims manual is even more direct. The Legal Committee noted that such a manual could assist claimants, promote uniform treatment of claims, avoid contradictory approaches between States Parties, and reflect the role of national courts in determining the nature and admissibility of claims.

Implementation also requires functioning claims administration, not only statutory language. The IOPC guide for member states recommends advance arrangements to facilitate claims handling after an oil spill, including coordination with insurers and the Fund, communication with affected communities, and efficient mechanisms for processing claims. Without those arrangements, fishers and small coastal businesses may possess a legal entitlement while lacking the records, valuation methods, and institutional access needed to establish it.

Bangladesh Extended Nairobi but Limitation Remains Unsettled

The present accession contains one design choice that should be recognised rather than criticised. Nairobi Article 3(2) permits a state to extend the Convention from its default convention area to its territory, including the territorial sea. Bangladesh’s instrument included precisely that declaration.

A separate limitation issue nevertheless remains. Bunkers Article 7 requires insurance up to the applicable limit, while its Article 6 saving clause preserves the right to limit liability under any applicable national or international regime, including the 1976 LLMC as amended. Nairobi Articles 10(2) and 12 similarly preserve limitation and require insurance. Bangladesh does not appear in the IMO’s August 2026 lists of parties to the 1976 LLMC or its 1996 Protocol. That absence does not mean no domestic limit exists because the 1983 Ordinance contains limitation provisions. It does mean that implementing legislation must clearly identify the limits governing certification and claims. The Protocol limits, increased by the 2012 amendments, use Special Drawing Rights, while the Ordinance’s figures are expressed in taka.

The point is practical rather than formal. If a certificate must correspond to a limitation amount, a maritime administration needs a clear figure to certify and a court needs a clear figure to apply. If the domestic figure is outdated, uncertain, or disconnected from modern international limits, the certificate may exist without giving claimants or insurers predictable expectations. A regime built around insurance cannot work well when the amount insured is itself legally unstable.

The persistence of these gaps is better understood as an implementation problem than as a single policy choice. The joint UN–Bangladesh assessment after Southern Star identified weak inland-vessel management, very low oil-spill preparedness, unclear agency mandates, and the need for a claims programme and staff capacity. That diagnosis supports a sequenced legal programme. Bangladesh should enact convention-specific legislation and rules covering certificates, direct action, jurisdiction, limitation funds, judgment recognition, and time bars. It should assess Fund accession together with the required oil-receipt reporting and contribution architecture, align its limitation regime with current international standards or enact an unambiguous domestic equivalent, and establish a claims protocol for affected communities and public authorities.

The legal conclusion is narrower than the public narrative surrounding accession, but more consequential. Bangladesh has validly entered the treaty process and made the correct Nairobi territorial-sea declaration. It has not yet completed the legal and institutional compensation system. Until the Fund layer for qualifying cargo-oil incidents, implementing legislation, limitation rules, and claims machinery are in place, the conventions will allocate international obligations without guaranteeing an effective domestic route from maritime damage to payment. Bangladesh’s case therefore shows why maritime liability should be measured not at the moment of accession, but at the point where an affected claimant can convert damage into compensation.

Photo attribution: Photo by Guilherme Stecanella on Unsplash