Introduction
The treaty-making process is a critical component of a nation’s engagement with the international community, reflecting its sovereignty, legal traditions, and commitment to international law. In the context of Bangladesh, a South Asian nation with a history of post-colonial legal evolution, the treaty-making process operates within a specific constitutional framework that delineates the separation of powers and outlines procedures for entering into binding international commitments. This article examines Bangladesh’s treaty-making process, focusing on its constitutional provisions, the approach to international law (monist or dualist), the mechanisms for implementing treaties into national law, and the country’s relationship with the Vienna Convention on the Law of Treaties (VCLT) of 1969. Additionally, it explores how these elements can inform other countries in engaging with Bangladesh on the international stage. By analyzing primary legal texts, including the Constitution of the People’s Republic of Bangladesh, and relevant scholarly literature, this article provides a comprehensive overview of the legal and practical dimensions of treaty-making in Bangladesh.
Constitutional Framework for Treaty-Making in Bangladesh
The Constitution of the People’s Republic of Bangladesh, adopted in 1972, serves as the supreme legal document guiding the country’s governance, including its engagement in international relations and treaty-making. While the Constitution does not provide an exhaustive procedural blueprint for treaty-making, it establishes the fundamental principles and institutional framework that underpin this process.
Separation of Powers and Treaty-Making Authority
The Constitution of Bangladesh delineates a clear separation of powers among the executive, legislature, and judiciary. The authority to enter into treaties primarily rests with the executive branch, as is common in many parliamentary systems. Article 55 of the Constitution vests executive authority in the President, who is advised by the Prime Minister and the Cabinet. Specifically, Article 55(2) states that the President shall act in accordance with the advice of the Prime Minister, except in cases explicitly provided for by the Constitution. This implies that the executive, led by the Prime Minister and the Council of Ministers, plays a central role in negotiating and signing treaties on behalf of the state.
However, the Constitution does not explicitly mention treaty-making as an executive function. This absence of specific reference contrasts with constitutions of other countries, such as India, where Article 73 of the Indian Constitution explicitly recognizes the executive’s power to enter into treaties. In Bangladesh, the authority for treaty-making is inferred from the general executive powers under Article 55 and the historical practices inherited from British colonial legal traditions and post-independence governance (Hossain, 1997). The executive’s role in treaty-making is further supported by the fact that foreign affairs fall under the purview of the central government, as indicated in the distribution of legislative powers under the Constitution.
Role of the Parliament
While the executive initiates and negotiates treaties, the legislative branch, or Jatiya Sangsad (Parliament), holds a supervisory role, particularly when treaties require changes to domestic law or involve significant national interests. Article 145A of the Constitution, introduced through the 15th Amendment in 2011, mandates that treaties and international agreements, other than those relating to loans and grants, must be submitted to the President, who shall cause them to be laid before Parliament. The exact text of Article 145A states: “All treaties with foreign countries shall be submitted to the President, who shall cause them to be laid before Parliament: Provided that any such treaty connected with national security shall be laid in a secret session of Parliament.”
This provision ensures a degree of parliamentary oversight in the treaty-making process. However, it is important to note that Article 145A does not explicitly require parliamentary approval or ratification for treaties to become binding at the international level. Instead, it appears to serve as a mechanism for transparency and accountability, allowing Members of Parliament to scrutinize international commitments. In practice, the executive often seeks parliamentary input or approval for treaties that have significant domestic implications, such as those affecting national security or requiring legislative amendments (Rahman, 2015). This practice reflects a balance between executive discretion and legislative oversight, though the lack of a mandatory ratification requirement by Parliament may raise questions about democratic accountability in treaty-making.
Judicial Oversight
The judiciary in Bangladesh, while not directly involved in the treaty-making process, serves as a guardian of constitutional principles and may play a role in interpreting treaties or assessing their compatibility with domestic law. Under Article 102 of the Constitution, the High Court Division of the Supreme Court has the power of judicial review and can entertain writ petitions challenging the actions of the government, including those related to international agreements. For instance, if a treaty is perceived to infringe upon fundamental rights guaranteed under Part III of the Constitution, the judiciary may intervene to ensure compliance with constitutional norms (Islam, 2003). However, such instances are rare, and judicial involvement in treaty-making remains largely indirect.
Monist or Dualist Approach: Bangladesh’s Position on International Law
A key aspect of understanding a country’s treaty-making framework is determining whether it follows a monist or dualist approach to the relationship between international and domestic law. In a monist system, international law is automatically incorporated into national law upon ratification or accession to a treaty, without the need for further legislative action. In contrast, a dualist system treats international law and domestic law as separate legal orders, requiring specific legislative measures to transform international obligations into enforceable domestic law.
Bangladesh adheres to a dualist approach to international law, as reflected in its constitutional provisions and judicial pronouncements. Article 25 of the Constitution emphasizes the state’s commitment to uphold the principles of international law and the Charter of the United Nations. It states: “The State shall base its international relations on the principles of respect for national sovereignty and equality, non-interference in the internal affairs of other countries, peaceful settlement of international disputes, and respect for international law and the principles enunciated in the United Nations Charter.” While this provision signals an intent to align with international norms, it does not provide for the automatic incorporation of international law into the domestic legal system.
The dualist nature of Bangladesh’s legal system is further evidenced by the judiciary’s stance on the enforceability of international treaties. Courts in Bangladesh have consistently held that treaties do not have direct effect in domestic law unless they are incorporated through legislation passed by Parliament. For example, in the case of Bangladesh v. Unimarine S.A. Panama (1998), the Supreme Court clarified that international agreements, while binding at the international level, do not automatically become part of domestic law without legislative enactment (Ahmed, 2006). This position aligns with the dualist principle that domestic courts cannot enforce international obligations unless they are transformed into municipal law through an act of Parliament.
Implications of the Dualist Approach
The dualist approach has significant implications for the implementation of treaties in Bangladesh. It ensures that the executive cannot unilaterally impose international obligations on the domestic legal system without the involvement of the legislature. This safeguard upholds the principle of separation of powers and protects national sovereignty by preventing external legal norms from overriding domestic laws without democratic scrutiny. However, it may also lead to delays in the implementation of treaty obligations, as legislative processes can be time-consuming and subject to political considerations (Chowdhury, 2018). Furthermore, the dualist approach raises questions about Bangladesh’s compliance with international commitments, particularly in cases where domestic legislation lags behind international obligations.
Implementation of Treaties into National Law
Given Bangladesh’s dualist framework, the process of translating treaties into national law is a critical step in ensuring compliance with international commitments. Once a treaty is signed or ratified by the executive, it must be incorporated into domestic law through an act of Parliament if it is to have legal effect within the country. This process typically involves the introduction of a bill in the Jatiya Sangsad, which, upon passage, transforms the treaty’s provisions into enforceable domestic legislation.
For instance, Bangladesh’s participation in international human rights treaties, such as the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), has required legislative and policy measures to align domestic laws with treaty obligations. After ratifying CEDAW in 1984, Bangladesh enacted laws and amendments to address gender discrimination, though full compliance remains a work in progress due to cultural and institutional challenges (Hossain & Karim, 2019). This example illustrates the practical challenges of implementing treaties in a dualist system, where legislative action is necessary but often slow or incomplete.
In cases where treaties do not require changes to existing laws or where their provisions are already consistent with domestic legislation, the executive may not seek immediate parliamentary action. However, for treaties involving significant policy changes or financial commitments, parliamentary approval of the treaty itself or related legislation becomes essential. For example, trade agreements or environmental treaties often necessitate amendments to domestic laws or the creation of new regulatory frameworks, thereby requiring legislative involvement (Rahman, 2015).
Moreover, the process of implementation is influenced by the principle of harmonization between international and domestic law. Article 152 of the Constitution defines “law” as including statutes, ordinances, and regulations, but does not explicitly include treaties unless they are enacted as domestic law. This reinforces the dualist position that treaties must be incorporated to have legal effect. In practice, the government may issue administrative orders or guidelines to align with treaty obligations, but these measures lack the binding force of legislation unless supported by an act of Parliament (Islam, 2003).
Bangladesh and the Vienna Convention on the Law of Treaties (VCLT) 1969
The Vienna Convention on the Law of Treaties (VCLT) of 1969 is a cornerstone of international law, codifying customary rules governing the formation, interpretation, and termination of treaties. Adopted on May 23, 1969, and entering into force on January 27, 1980, the VCLT provides a comprehensive framework for treaty-making and is widely regarded as reflective of customary international law, even for non-party states (United Nations, 1980).
Bangladesh is not a signatory or party to the VCLT 1969. This status does not necessarily imply a rejection of the principles enshrined in the Convention, as many of its provisions are considered customary international law and thus binding on all states, regardless of formal accession. For instance, rules regarding the negotiation, signature, ratification, and interpretation of treaties as outlined in the VCLT are often followed by Bangladesh in its international dealings, reflecting the Convention’s pervasive influence on global treaty practice (Chowdhury, 2018).
Implications for Bangladesh
The fact that Bangladesh is not a party to the VCLT means that it is not formally bound by its specific procedural requirements, such as those related to reservations or dispute resolution mechanisms outlined in the Convention. However, in practice, Bangladesh adheres to many of the VCLT’s principles as part of customary international law. For example, the process of treaty negotiation and the requirement of good faith, as enshrined in Article 18 of the VCLT, are generally observed by Bangladesh in its international engagements.
The non-party status also allows Bangladesh some flexibility in its treaty-making approach, as it is not obligated to follow the VCLT’s formal rules unless they are part of customary law. However, this can lead to potential discrepancies or misunderstandings with states that are parties to the VCLT, particularly in areas such as treaty interpretation or the legal consequences of treaty breach (Hossain, 1997).
Guidance for Other Countries
For other countries seeking to enter into treaties with Bangladesh, the country’s non-party status to the VCLT suggests the importance of clarity and mutual agreement on the governing principles of treaty formation and implementation. States should ensure that treaty texts explicitly address issues such as entry into force, dispute resolution mechanisms, and the legal status of the treaty under domestic law. Engaging in detailed negotiations and drafting treaties with precise language can help mitigate potential conflicts arising from differing interpretations of international legal norms.
Furthermore, other countries should be mindful of Bangladesh’s dualist approach, which requires domestic legislative action for treaties to have internal legal effect. This necessitates patience and an understanding of Bangladesh’s parliamentary processes, as the implementation of treaty obligations may take time. States may also consider including clauses in treaties that encourage or stipulate timelines for domestic incorporation to facilitate compliance (Rahman, 2015).
Additionally, recognizing that Bangladesh follows many VCLT principles as customary law can provide a common ground for treaty-making. For example, adhering to VCLT guidelines on treaty negotiation and signature during diplomatic engagements with Bangladesh can foster mutual understanding, even in the absence of formal accession to the Convention by Bangladesh. International partners should also be aware of the executive’s dominant role in treaty-making and the limited but significant oversight by Parliament under Article 145A, ensuring that engagements account for potential political and legislative scrutiny within Bangladesh.
Challenges in Bangladesh’s Treaty-Making Process
Despite the established constitutional framework, Bangladesh faces several challenges in its treaty-making and implementation processes. One major challenge is the lack of explicit constitutional provisions detailing the treaty-making procedure. While Articles 55 and 145A provide a general framework, the absence of specific guidelines on ratification, reservations, and termination of treaties can lead to ambiguity and inconsistency in practice (Ahmed, 2006).
Another challenge is the capacity constraint within the legislative and administrative systems. The process of incorporating treaties into domestic law often faces delays due to limited parliamentary time, bureaucratic inefficiencies, and competing political priorities. This can result in a gap between Bangladesh’s international commitments and their domestic enforcement, potentially undermining the country’s credibility on the global stage (Chowdhury, 2018).
Furthermore, public awareness and civil society engagement in the treaty-making process remain limited. While Article 145A mandates the submission of treaties to Parliament, there is no formal mechanism for public consultation or stakeholder input. This can lead to a disconnect between international commitments and domestic needs, particularly in areas such as environmental agreements or trade deals that directly impact local communities (Hossain & Karim, 2019).
Conclusion
Bangladesh’s treaty-making process operates within a constitutional framework that emphasizes executive leadership, parliamentary oversight, and a dualist approach to international law. The executive, under the guidance of the President and Prime Minister, holds primary responsibility for negotiating and entering into treaties, as inferred from Article 55 of the Constitution. Parliamentary scrutiny is ensured through Article 145A, though it does not mandate formal approval for all treaties. The dualist system necessitates legislative incorporation of treaties into national law, ensuring that international obligations align with domestic legal norms, though this often results in implementation delays.
Bangladesh’s non-party status to the Vienna Convention on the Law of Treaties 1969 does not preclude adherence to many of its principles as customary international law, but it highlights the need for clarity and mutual understanding in treaty engagements with other states. For international partners, engaging with Bangladesh requires an appreciation of its dualist framework, executive dominance in treaty-making, and potential legislative delays. Addressing the challenges of procedural ambiguity, capacity constraints, and limited public participation can further strengthen Bangladesh’s treaty-making process, enhancing its compliance with international commitments and reinforcing its role in the global legal order.
References
- Ahmed, N. (2006). International Law and Municipal Law: Conflicts and Reconciliation in Bangladesh. Dhaka: University Press Limited.
- Chowdhury, A. B. (2018). Treaty Implementation in South Asia: Challenges and Opportunities. Journal of International Relations, 12(2), 45-67.
- Constitution of the People’s Republic of Bangladesh. (1972, as amended up to 2011). Retrieved from the official website of the Ministry of Law, Justice and Parliamentary Affairs, Government of Bangladesh.
- Hossain, K. (1997). Legal Aspects of Treaty-Making in Bangladesh. Bangladesh Journal of Law, 3(1), 23-40.
- Hossain, M., & Karim, S. (2019). Gender Equality and International Commitments: Bangladesh’s Journey with CEDAW. South Asian Legal Review, 8(1), 89-110.
- Islam, M. R. (2003). International Law in the Courts of Bangladesh. Dhaka: Mullick Brothers.
- Rahman, T. (2015). Parliamentary Oversight of Treaties in Bangladesh: A Critical Analysis. Dhaka Law Review, 10(3), 55-72.
- United Nations. (1980). Vienna Convention on the Law of Treaties 1969. Retrieved from https://legal.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf
