To be able to analyse the international diplomatic relations of today, one needs to revisit the Cold War era of the 1960s. The Vienna Convention on the Law of Treaties, popularly known as the VCLT, was adopted in 1969. It establishes principles for treaty formation, interpretation and termination, providing an international legal framework. Meanwhile, the Vienna Convention on Diplomatic Relations (VCDR), enacted in 1961, outlines the rights, privileges and immunities of diplomatic missions and personnel. The core purpose was to promote smooth international relations.

This writeup will highlight two recommendations to Bangladesh’s government on the issue of diplomatic relations. And, they are: 1) becoming a party to the VCLT and 2) adopting a law giving effect to the VCDR.

Why the VCLT?

Why should Bangladesh participate in the VCLT? To answer this, we first need to understand the VCLT. The VCLT was the outcome of the United Nations-established International Law Commission’s decades-long codification effort from 1949 to 1969.  It deals with the conclusion, observance, application, interpretation, invalidity, suspension and termination of written ‘treaties’ between states.

It is pertinent to mention that Bangladesh follows dualism in its domestic implementation of international law. In a dualist country, there is a clear separation between international law and domestic law. In other words, in a dualist legal system, international treaties are not automatically part of the country’s domestic law upon ratification.

…Bangladesh follows dualism in its domestic implementation of international law.

For international treaties to become legally enforceable within the domestic legal framework of a dualist country, they need to be explicitly incorporated into national law through a specific process. This can mean legislative enactment, parliamentary ratification or some other form of adoption. In essence, in dualist systems, international treaties do not have direct legal force in the country’s courts until they are transformed into domestic law.

Despite Bangladesh’s adherence to dualism, neither the country’s constitution nor any other law has explicit provisions to deal with international treaties and domestic law. Participation in the VCLT could streamline the interplay between international treaties and the domestic law of Bangladesh, especially in the absence of explicit constitutional provisions on the subject.

On top of this, it will help consolidate Bangladesh’s state practice relating to the implementation and termination of international treaties. Notably, the term ‘treaty’ does not appear in the country’s constitution as originally adopted in 1972. Despite this omission, the executive branch has traditionally exercised treaty-making power.

For instance, in 1974, Bangladesh’s highest court, the Appellate Division of the Supreme Court,[1] endorsed that treaty-making fell within the ambit of executive power under the Constitution (Article 55(2)). This constitutional provision does not explicitly deal with treaty-making power, however.

The term ‘treaty’ first occurs in Article 145A of Bangladesh’s constitution. This says that, ‘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.’

There is no detailed constitutional provision regarding the executive branch’s power to enter into international treaties.

To sum up, the constitution deals with neither the relationship between international treaties and domestic law nor the government’s power concerning international treaties.

In this context, the VCLT can fill up the lacuna in the normative framework of Bangladesh. It can provide a solid approach to treaty-related practice at both international and domestic levels. At present, 116 states are parties to the VCLT. Therefore, accession to the VCLT will allow Bangladesh to harmonise its practice concerning international treaties with most members of the international community.

Since a large number of countries are already parties to the VCLT, the fact that Bangladesh is not a party to it does not mean that Bangladesh can overlook its legal importance. Rather, participation in the VCLT can significantly reduce Bangladesh’s transaction costs in treaty-making.

…the fact that Bangladesh is not a party to Vienna Convention on the Law of Treaties does not mean that the country can overlook its legal importance.

There have been instances in which Bangladesh has taken recourse to the VCLT to justify its legal position before international judicial forums. Bangladesh relied on the VCLT in the case of its maritime boundary dispute in the Bay of Bengal against Myanmar at the International Tribunal for the Law of the Sea (ITLOS).[2]

In a number of instances, the Supreme Court has overlooked Bangladesh’s treaty obligations while using treaty provisions to support its arguments. The case of Dr Shipra Chaudhury v Bangladesh is a notable example.[3] In this, while citing Article 16 of the Convention on the Elimination of All Forms of Discrimination Against Women, the Court’s approach might have differed if it had taken into account Bangladesh’s reservation to Paragraph 1(c) of that provision.

It should be mentioned that becoming a party to the VCLT will not require Bangladesh to bring in any significant changes in its treaty-making practices.

Lastly, being a dualist country, Bangladesh will need to adopt implementing legislation if it decides to accede to the VCLT. Such legislation can clarify the relationship between international treaties and domestic law in Bangladesh.

By incorporating the VCLT, countries like Bangladesh can establish clear guidelines for their treaty obligations on how they interact with other nations. This will help prevent misunderstandings, improve treaty interpretations and enhance the country’s credibility in the global arena.

Why the VCDR?

Let’s turn to the second recommendation of the writeup: adopting the Vienna Convention on Diplomatic Relations (VCDR). Diplomatic relations are the cornerstone of the foreign relations of any country. Protecting diplomatic agents in foreign countries has always been critical in international relations. The VCDR deals with diplomatic issues like privileges and immunities. It is one of the most widely participated international treaties since the establishment of the United Nations. To date, 193 states have become parties to the VCDR.

The UN Conference on the Law of Treaties opens at the Hofburg Palace, Vienna, Austria, 26 March 1968 | Photo by UN Photo.

Although Bangladesh signed and became a part of the VCDR as early as 13 January 1978, no single piece of legislation gives effect to it domestically. As we have seen, in a dualist country like Bangladesh, the application of an international treaty requires an implementing law.

The only primary legislation directly dealing with diplomatic privileges and immunities is the Diplomatic Immunities (Commonwealth Countries Representatives) Act, the DICCR Act, of 1957. This predates not only the establishment of Bangladesh but also the adoption of the VCDR.

It is worth mentioning that the scope of the DICCR Act is minimal. It grants the ambassadors (with their family) and staff of Commonwealth countries immunity from lawsuits. At present, there are 56 Commonwealth countries in the world. Apart from these countries, Bangladesh maintains diplomatic relations with many non-Commonwealth countries, whose diplomats the DICCR Act does not cover.

Moreover, the DICCR Act does not give effect to all aspects of the VCDR. These omissions include exemption from taxation; immunity from arrest of diplomatic agents; exemption from personal services; duties of diplomatic agents in Bangladesh; and the inviolability of documents, archives, diplomatic bags and official correspondences.

Bangladesh urgently needs to broaden its scope of international relations if it is to grow in an uncertain geopolitical landscape. For Bangladesh, a much-needed step forward will be to enact a comprehensive law on diplomatic privileges and immunities in line with the VCDR. A law designed to give effect to all the aspects of the VCDR will consolidate Bangladesh’s domestic legal regime concerning diplomatic relations.

Bangladesh urgently needs to broaden its scope of international relations if it is to grow in an uncertain geopolitical landscape.

Such a law, if adopted, will manifest the country’s good faith before the international community. As a result, foreign diplomatic agents based in Bangladesh will be motivated to perform their duties more confidently. It may further encourage many states to establish diplomatic missions in Bangladesh.

Importantly, a diplomatic protection law will allow Bangladesh to better regulate the conduct of foreign diplomatic agents in the country. According to the VCDR, foreign diplomatic agents have a duty to respect the laws and regulations of the receiving state and not to interfere in the internal affairs of that state.

At times, foreign diplomatic agents in Bangladesh have indulged in politically sensitive activities that could be considered interference in the internal country’s affairs. For example, before the media and or other quarters, they have talked on issues that either are unrelated to international relations or that can be raised only in bilateral/diplomatic forums. In fact, there are many issue-based international forums for addressing disagreements between countries.

There have been instances of states that follow dualism enacting legislation to facilitate the implementation of the VCDR. For example, the United Kingdom in 1964, Australia in 1967, India in 1972, the United States in 1978, Sri Lanka in 1996 and South Africa in 2001 passed legislation to give effect to the provisions of the VCDR.

In 2023, Bangladesh withdrew additional security given to the ambassadors of India, China, Australia, Saudi Arabia, the United States and the United Kingdom. This would have been easier to justify if the decision had been taken under the authority of a holistic law, which is long overdue in Bangladesh.

 

[1] In the case of Kazi Mukhlesur Rahman v Bangladesh (1974) 26 DLR (SC) 44.

[2] Bangladesh argued that the 1974 and 2008 Agreed Minutes between the states were binding agreements.

[3] Case number (2009) 29 BLD (HCD) 183.

 

Photo © Mahmud Hossain Opu

Kawser Ahmed is an Advocate at the Supreme Court of Bangladesh. He is a lawyer. He is a member of National Human Rights Commission of Bangladesh, an independent director at Dhaka Stock Exchange and a legal consultant at the Ministry of Foreign Affairs, Bangladesh. He pursued his graduate studies at New York University, USA.