Making and applying treaties

In response to a write-up published on 8 September 2015 in 'Law & Our Rights', The Daily Star, here I want to highlight a recent development made by the Law Commission of Bangladesh with regard to the proposal for the enactment of a legislation named 'The Conclusion and Enforcement of Treaties Act'. Yesteryear, the Commission proposed this Act aiming: (a) to devise country's own statutory mechanism and procedure in relation to the conclusion and implementation of treaties; and (b) to ensure an effective involvement of the national parliament in undertaking the existing international treaty obligations.

In Chapter I, the proposed Act has defined several important terms such as 'treaty', 'ratification', 'signature', 'accession', 'reservation', 'denunciation of treaty', 'implementation of treaties', etc. The definition of 'treaty' is very relevant to understand the constitutional position of treaty in Bangladesh. According to article 145A of the Constitution of Bangladesh, “all treaties with foreign countries shall be submitted to the President, who shall cause them to be laid before the Parliament”. From reading this constitutional provision, as Professor Sumaiya Khair writes in her paper titled 'Bringing International Human Rights Law Home: Trends and Practices of Bangladeshi Courts', it is not clear as to what treaties would be construed as coming within the purview of this constitutional article.

However, article 145A is very specific by categorically saying that only treaties (either bilateral or multilateral) with foreign countries, but not with any international organisations, are needed to be submitted to the President who is constitutionally head of the executive branch of the State. Since treaty making in a common law country is an authority of the executive, hence this provision of the Constitution shows the way of authorising the head of the executive for making treaty. Nevertheless, article 145A lacks to prescribe the process of taking either approval or disapproval from the Parliament for ratifying a treaty.

This sort of legal impasse has been addressed in Chapter III of the proposed Act. It provides sets of provision for ratification of the treaties though the Parliament; and it also attempts to clarify what would be the status of the treaty that is laid before the Parliament for getting approval for ratification. Further, it directs what actions the Parliament is to undertake subsequently on such a treaty.

Being compatible with the Vienna Convention on the Law of Treaties (VCLT), the definition of 'treaty' under this proposed Act means “a written bilateral or multilateral treaty, convention and agreements with other states or inter-state organisations”. This definition not only clarifies the constitutional position of treaty in Bangladesh, but also extends a greater possibility of applying treaty law in case of local issues with global relevance.

According to Chapter II, the proposed Act deals with the procedure of initiation and negotiation of treaties. The Act proposes the executive branch of the State (or the related ministry) to be responsible for initiating the treaty making process, negotiation, signature and ratification of treaties.

In negotiating treaties, the Act obligates the government to be bound by the fundamental principles of state policy (FPSPs) and the fundamental rights (FRs), which have been ensured in the Constitution. In that sense, it can be said that the mandate given in article 8(2) of the Constitution, i.e. the applicability of FPSPs in the making of laws, and article 25, i.e. promotion of international peace, security and solidarity, has been reflected in the proposed Act.

Respecting national sovereignty, as per Chapter IV, the government retains the right to preclude, exclude or withdraw from any provision of the treaty, if it contradicts any law and its legal system, heritage or culture prevalent in Bangladesh. However, the government cannot exercise this right, if it defeats the purpose of the treaty or is contrary to its essence – which is one of the core treaty obligatory principles under articles 18 and 19 of the VCLT.

As a follower of 'dualist-approach to international law', our higher judiciary does not enforce the rules of international treaty laws unless they are transformed into the domestic laws by way of an enabling legislation. Due to lack of such legislation, we often see that the judiciary faces difficulties while applying international law. Although the proposed law in this regard does not suggest anything, it interestingly necessitates the judiciary to take into consideration the matter of a treaty that requires no implementing legislation in Bangladesh.

It is difficult to agree at one point with the proposal of the Law Commission, where it claims that “[p]resent practice of ratification of the treaties by the Cabinet [in Bangladesh] is […] not laid down in any written provision”. Countering this proposition, I like to hold that there exists written rule for treaty ratification by the Cabinet, i.e. Rule No. 26 of the Rules of Business of the Government of Bangladesh. Adopted in 1996, this Rule requires all draft agreements, protocols and treaties to be submitted to the Cabinet, which is headed by the Prime Minister under article 55(2)(4) of the Constitution, for approval.

Moreover, the proposed law is not clear as to whether subsequent ratification of amendment/modification of a treaty also needs to be enforced in the domestic jurisdiction through any enabling legislation. It only provides in section 14 on how to ratify a treaty which has been subsequently amended or modified by the parties. In 2012, the Governments of Bangladesh and Maldives amended the Agreement concerning Aviation Transport, originally adopted by the two Governments in 1985. On the other hand, the Governments of Bangladesh and India jointly in 2015 renewed for five years the Bilateral Trade Agreement, initially adopted by these Governments in 1972. This sort of renewal and/or amendment/modification raises uncertainty as to whether a subsequent renewal, amendment or modification of the treaty needs any changes in the existing treaty-enabling legislation that has been endorsed previously to enforce the original treaty. This proposed law could have guided the lawmakers on this issue of how to address or accommodate renewal, amendment or modification of a treaty through a treaty-enabling legislation. Saying this, I argue that even the wordings in section 21 relating to the enactment, amendment or repeal of any national law for the purpose of implementing a treaty within the domestic jurisdiction, are not sufficient to remove such a legal uncertainty.

Despite such disagreement and uncertainty, the proposed law is a positive initiative taken by the Commission to fill up a legal vacuum and remove ambiguities in relation to making, ratification and implementation of international treaty laws in Bangladesh.

The writer is a student of LL.M., University of Dhaka.