Introduction
There is no denying that international law is Eurocentric in its origin, historically allied with the projects of colonialism, and still has the attributes of being a powerful tool for imperialism.1 Therefore, international law very often creates a feeling of alienation, isolation, and frustration for post-colonial and Third World nationals. Nevertheless, the impacts and implications of international law do not allow post-colonial and Third World countries like Bangladesh to ignore international law completely.2 Even if we perceive international law as an enemy, it is an unavoidable “intimate enemy”.3 This intimate animosity necessitates these countries to find a constructive and beneficial way to engage with international law.
So understood, Bangladesh’s engagement and encounter with international law need to be critically appraised. The people of Bangladesh exercising their right to self-determination gave birth to Bangladesh as the first independent state outside the colonial context that succeeded in its secessionist claim of independence.4 This historic event of 1971 shaped and contributed to the further development of international law by redefining several prevailing norms concerning the creation of states.5 While this successful engagement with international law was certainly constructive and beneficial for the people of Bangladesh, there remains the question as to how successful and constructive Bangladesh has been in the subsequent years in dealing with various international law regimes. While it is almost impossible to explore this question in detail in the present chapter, we would like to shed light on some key aspects of Bangladesh’s engagement and encounter with international law. Some of these issues are expanded and analysed with greater details in subsequent chapters of the volume.
In what follows, the present paper interrogates the relationship between the domestic legal order of Bangladesh and international law and the role that Bangladesh plays in various international law regimes. These discussions are followed by our general comments about the current state of teaching, scholarship, and promotion of international law in Bangladesh. The paper concludes that there is hardly any dominating trend in the approaches of the legislature, the government, the academia, and the civil society of Bangladesh towards international law that can be characterised as a unique and consistent Bangladeshi approach.
Bangladesh’s domestic legal order vis-à-vis international law6
Whenever the question regarding the relationship between domestic legal order and international law arises, it is conventional to identify first whether the concerned domestic jurisdiction follows the monist or the dualist model. The monist models treat international law and municipal law as part of the same system, in which international law is hierarchically prior to municipal law. On the other hand, the dualist models treat international law and municipal law as part of two distinct systems, in which municipal law enjoys priority over international law.7 This classification, while helpful in indicating the nature of the relationship between domestic and international legal regimes, does not fully explain this relationship which is often more complex than what the monist-dualist binary framework can meaningfully inform.8 Needless to say, the constitution of a country largely shapes the relationship of domestic legal order with international law.9 The Proclamation of Independence, the interim Constitution of Bangladesh, categorically affirmed that Bangladesh will “observe and give effect to all duties and obligations . . . as a member of the family of nations and under the Charter of United Nations”,10 although Bangladesh was not at that time a member of the United Nations.11 This indicates Bangladesh’s firm commitment, albeit in theory, to international law. The present constitution of Bangladesh contains two provisions – Articles 25 and 145A – that are directly related to international law. However, none of these provisions stipulate that international law, be it based on custom or treaty, would be part of the law of the land.12 Therefore, the classical dualist approach of the constitution equally applies for international treaties as well as customary international law.
The constitution also does not oblige the state to implement international treaties.13 Therefore, the best way to identify the attitude of the legislature in Bangladesh towards international law is to explore two questions: first, to what extent international treaties are translated in domestic laws through implementing legislation; and second, whether domestic laws are compatible with the basic norms of international law. The following paragraphs, therefore, appraise domestic laws as against international treaties relating to human rights, international humanitarian law, and international trade. This appraisal meant to find answers to the said questions however is suggestive rather than exhaustive.
The Constitution of Bangladesh, like most other national constitutions drafted in the post-UDHR period, by and large recognise international human rights norms.14 The core human rights norms are incorporated in the constitution under two heads – “Fundamental Principles of State Policy”15 and “Fundamental Rights”.16 While fundamental rights are judicially enforceable and include almost all civil and political rights recognised by the international bill of human rights, fundamental principles of state policy include economic, social, and cultural rights that are not judicially enforceable.17
Needless to say, notwithstanding the constitutional recognition of international human rights norms, there remains a lack of human rights culture in Bangladesh.18 This is why there are many statutory laws still in force that impede the actual realisation of human rights in practice. Moreover, many human rights norms cannot effectively be enforced for lack of enabling legislation. Although various human rights treaty bodies on different occasions have recommended to incorporate treaty provisions into domestic law and to harmonise domestic laws with the principles and provisions of the concerned treaties, Bangladesh in most cases has not implemented these recommendations.19 However, Parliament in 2013 passed several laws that can be treated as enabling laws for human rights treaties. The Torture and Custodial Death (Prevention) Act 2013 is a commendable legislation meant to implement the UN Convention against Torture (CAT). The Children Act 2013 categorically cites and largely complies with the Child Rights Convention. The Rights and Protection of Persons with Disabilities Act 2013 is meant to implement the UN Convention on the Rights of the Persons with Disabilities. Similarly, the Overseas Employment and Migrants Act 2013 categorically cites and largely complies with the International Convention on the Rights of Migrant Workers and the Members of Their Families, 1990. It is, however, too early to examine whether these laws can be seen as the beginning of a new trend of enacting enabling laws for human rights treaties.
Bangladesh has enacted several laws for the implementation of international humanitarian law although they are “incomplete and unsatisfactory in terms of fulfilling the obligations of the government of Bangladesh”.20 However, Bangladesh played a pioneering role in enacting the “first national war crimes law in the history of the world back in 1973”.21 The long title of the International Crimes Tribunal Act 1973 refers to it as “an Act to provide for detention, prosecution and punishment of persons for genocide, crimes against humanity, war crimes and other crimes under international law”. Quite clearly, this penal legislation was “a bold step and a noteworthy development in international criminal law when other nations were shying away from the concept of a court implementing international criminal law”.22
In the last two decades, Bangladesh has also enacted a good number of laws relating to international trade, arbitration, and intellectual property rights. References can be made to the Copyright Act 2000, the Arbitration Act 2001, the Trademarks Act 2009, and the Geographical Indication of Goods (Registration and Protection) Act 2013. Despite some gaps, these laws are largely in line with international laws.23 These legislative interventions in this field inform us that Bangladesh is gradually, but decisively, reforming its domestic laws in line with international laws shaping the process of economic globalisation. Presumably, the cost-benefit analysis emerging from economic globalisation pushes the Bangladeshi establishment to embrace international law relating to trade, and reform domestic laws accordingly. A similar kind of legislative enthusiasm is hard to find in case of international human rights law. In the context of South and Southeast Asia, Desierto asserts that international law discourses in these regions are “thematically postcolonial and substantively development-oriented”.24 This is surely the case so far as Bangladesh is concerned.
Representation and participation of bangladesh in international law regimes
Soon after attaining independence, Bangladesh applied for membership of the United Nations in August 1972. The process, however, took more than two years due to veto cast by China but Bangladesh was finally admitted as a member in September 1974.25 Since then Bangladesh maintains a strong relation with the UN and its different agencies. Bangladesh consistently remains as one of the top suppliers of UN peacekeepers for the past three decades,26 thereby contributing significantly to the maintenance of global peace and security.27 Bangladesh is also an active participant of the Non-Aligned Movement (NAM), the Commonwealth, and the Organisation of Islamic Cooperation (OIC).
Despite this positive approach in maintaining a strong relationship with international organisations, Bangladesh remains one of the “backbenchers within the international legal system” so far as the field of international legislation is concerned.28 In almost all cases, Bangladesh’s participation in the international legislation process is more formal and limited to either supporting or opposing the motions brought by other states. The only notable exception is Bangladesh’s active and robust participation in t...
