Part III International Law in Asian and Pacific

States, South and Central Asia, 25 Bangladesh

Kamal Hossain, Sharif Bhuiyan

From: The Oxford Handbook of International Law in Asia and the Pacific
Edited By: Simon Chesterman, Hisashi Owada, Ben Saul

Content type: Book content

Product: Oxford Scholarly Authorities on International Law [OSAIL]
Series: Oxford Handbooks
Published in print: 04 September 2019
ISBN: 9780198793854

Subject(s):
Customary international law — Host state law

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 (p. 604) 25 Bangladesh
1 Introduction and Constitutional Framework
LIKE any other country, Bangladesh’s interaction with international law takes place both at
the domestic level—for example, before domestic courts—and at the international level—for
example, in the context of participation in international organizations and processes. This
chapter discusses several salient aspects of such interaction in both of these contexts. In
the former context, the role of international law in the Bangladesh legal system is
examined, including the treatment of international treaties and customary international law
in domestic law. In the latter context, Bangladesh’s participation in international
organizations, peace keeping operations, and dispute settlement is considered. While the
issues addressed are not exhaustive, they nonetheless provide a broad overview of the role
and significance of international law for Bangladesh, both within the country and in its
international relations.
The People’s Republic of Bangladesh became an independent state in 1971. It is a unitary
state and a parliamentary democracy. The executive branch of the government consists of
the President (head of state), the Prime Minister (head of government), and the Cabinet of
Ministers. The legislature is a unicameral Parliament consisting of 350 members. The
judiciary consists of the Supreme Court and courts and tribunals subordinate to it. The
Supreme Court comprises the Appellate Division and the High Court Division. The judiciary
is headed by the Chief Justice of Bangladesh. The Supreme Court is the highest court and
the Appellate Division of the Supreme Court is the highest judicial organ of the country. The
legal system of Bangladesh is based on the common law system largely derived from the
English legal system.
(p. 605) The Constitution of Bangladesh, adopted in 1972, is the supreme law and takes
precedence over any other law. There are two major provisions on international law in the
Constitution, namely, articles 25 and 145A.1 Article 25 provides as follows:

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, and
on the basis of those principles shall –

(a) strive for the renunciation of the use of force in international relations and
for general and complete disarmament;
(b) uphold the right of every people freely to determine and build up its own
social, economic and political system by ways and means of its own free
choice; and
(c) support oppressed peoples throughout the world waging a just struggle
against imperialism, colonialism or racism.

Article 25 is contained in Part II of the Constitution setting out the ‘fundamental principles
of state policy’. These principles are ‘fundamental to the governance of Bangladesh’ and are
to be applied by the state in making laws and to guide the interpretation of the Constitution
and other laws of Bangladesh. However, these principles are not judicially enforceable.2

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 The principles of ‘respect for national sovereignty and equality, non-interference in the
internal affairs of other countries’ and ‘support[ing] oppressed peoples throughout the
world waging a just struggle against imperialism, colonialism or racism’ were interpreted
by the Supreme Court in Saiful Islam Dilder v Bangladesh.3 This case sought to prevent the
Bangladesh Government from extraditing Anup Chetia, Secretary General of the United
Liberation Front of Assam, to India, where he had been charged with treason. It was argued
that Anup Chetia was was not a criminal but a person who was fighting for the right of self-
determination of the Assamese people. Consequently, his extradition would be a violation of
article 25, which requires the state to support ‘just struggle[s] against imperialism,
colonialism or racism’. The Court rejected this contention:

The contention on the facts of this case is totally misconceived. Rather the
Government can take help of Article 25 to extradite Anup Chetia to Indian authority
in order to base its international relations on the principle of respect for national
sovereignty and equality and non-interference in the internal affairs of other
countries.4

With regard to the justiciability of article 25, the Court observed that although it ‘cannot be
enforced by a court’, nevertheless it can ‘serve as a tool in interpreting the Constitution and
other laws’.5
(p. 606) Unlike article 25, article 145A, dealing with ‘international treaties’, is a justiciable
provision. This article provides as follows:

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.

Neither the Constitution nor any statute contains any specific provision on domestic
application of international law rules. However, it is well settled by various judicial
decisions that in respect of domestic application of international treaties, Bangladesh is a
dualist country. In order to be applied by national courts, it is necessary for the treaty to be
incorporated into Bangladesh’s legal system by an act of incorporation.
In respect of customary international law, there is no clear judicial decision on whether
customary law automatically forms part of Bangladesh law or whether, like treaties, such
law is required to be made a part of Bangladesh law by a legislative, judicial, or other
measure. It is likely that if this issue requires determination, Bangladesh courts will adhere
to the English and common law tradition of treating customary international law as
automatically forming part of Bangladesh law as long as there is no inconsistent domestic
legal provision.

2 Treaty Practice
2.1 Treaty-making Process
The treaty-making process is governed by the Constitution, the Rules of Business, and the
practice of the executive branch of the government.
2.1.1 Constitutional Provisions
Article 145A of the Constitution, referred to in the preceding section, deals simply with the
process of placing treaties before the Parliament and does not make any provision in
respect of the treaty-making process, including negotiation, signing, and ratification of
treaties. These aspects of the treaty-making process need to be understood in light of the

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 other general provisions of the Constitution relating to the exercise of the executive
authority of the republic.
Article 55(2) of the Constitution provides that, subject to and in accordance with the
Constitution, the executive power of the republic is to be exercised by or on the authority of
the Prime Minister. Like other executive functions, treaty-making is to be performed in
accordance with the provisions of the Constitution. Although treaty-making is an executive
function, in exercising this function the Prime Minister and the Cabinet are to be
collectively responsible to the Parliament in accordance with article 55(3) of the
Constitution.
(p. 607) 2.1.2 Provisions of the Rules of Business
In accordance with article 55(6) of the Constitution, the President has formulated the Rules
of Business for the conduct of business of the government. Rules 5(iii), 14A(1)(iii), 16(xi),
and 26 of the Rules of Business are relevant in respect of the negotiation, conclusion, and
ratification of international agreements and treaties. These Rules provide that the Ministry
of Foreign Affairs is responsible for issuing necessary instructions regarding the manner of
authentication of treaties and that the Legislative and Parliamentary Affairs Division should
be consulted on the preparation of international agreements and conventions. Cases
involving negotiations with foreign countries on treaties and agreements are to be brought
before the Cabinet.
2.1.3 Practice
The authority for the negotiation, conclusion, and ratification of international treaties is
vested in the executive. Parliamentary approval for these matters is not a constitutional
requirement.6 As a general practice, the Law Ministry is given the responsibility of
scrutinizing treaties.7 Although there is a Law Commission in Bangladesh, it is rarely
involved in treaty-making.
Usually the process of negotiation, conclusion, or ratification of a treaty is initiated by the
Ministry which is allocated responsibility in relation to the subject matter of the treaty. For
example, in relation to a trade treaty, the process is initiated by the Ministry of Commerce.
After a proposal is made by the relevant Ministry, the issue is raised before the Cabinet,
which takes the final decision regarding signing or ratification of the instrument concerned.
In accordance with Rule 5 of the Rules of Business, the Ministry of Foreign Affairs is
responsible for signing and authenticating international agreements and treaties. All
Ministries are also required to have prior consultation with the Ministry of Foreign Affairs
in relation to matters concerning foreign relations of Bangladesh.8
One major criticism of the treaty-making practice is the nearly complete disregard for
article 145A of the Constitution. A study conducted in 2000 found that only one treaty,
namely, the Ganges Water Treaty 1996 between Bangladesh and India, had ever been
placed before the Parliament in accordance with article 145A.9 The situation regarding
compliance with article 145A has not improved since 2000.
Non-compliance with article 145A is a matter of concern for various reasons. As already
pointed out, although treaty-making is an executive function, in exercising this function the
Prime Minister and the Cabinet are to be collectively responsible to the Parliament. Since
treaties are not placed before the Parliament, this responsibility of the executive cannot be
ensured and the Parliament is deprived of any role in respect of (p. 608) treaty-making. This
also raises larger issues of good governance, transparency, and rule of law in a
parliamentary democracy, where major policy issues are supposed to be addressed by the
Parliament. At a more practical level, as treaties require implementing legislation, it is

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 desirable to keep the members of Parliament informed about treaties, so that they can
consider necessary legislative action.
2.1.4 Judicial Decisions
The proposition that the making of a treaty is an executive act and that, for it to be valid,
approval of the Parliament is not necessary has been recognized in judicial decisions. The
Appellate Division confronted this issue in a case concerning the Delhi Treaty of 16 May
1974.10 The appellant sought a declaration that the Delhi Treaty involving cession of
Bangladesh territory11 was without lawful authority. Citing article 143(2) of the
Constitution, which gives authority to the Parliament for determination of the boundaries of
Bangladesh, the appellant disputed the executive’s authority to enter into treaties when
cession of territory is involved. However, the appellant did not dispute the general treaty-
making authority of the executive and hence it sufficed for the Appellate Division to
generally endorse such authority.
The Appellate Division observed that ‘treaty-making falls within the ambit of the executive
power under article 55(2) of the Constitution’ and also noted that this general proposition
was not disputed.12 On the interaction between the treaty-making authority of the executive
and the authority of the Parliament in relation to boundaries, however, the Court observed
that:

the Prime Minister cannot unilaterally determine the boundaries of Bangladesh

which has to be done by a law of Parliament.
…
There can thus be no escape from the position that though treaty-making falls
within the ambit of the executive power under Article 55(2) of the Constitution, a
treaty involving determination of boundary, and more so involving cession of
territory, can only be concluded with the concurrence of Parliament by necessary
enactment.13

Interestingly, however, the Appellate Division did not declare the Delhi Treaty illegal due to
the lack of involvement of the Parliament in the conclusion of the treaty. Rather, it dismissed
the appeal observing as follows:

Had the Delhi Treaty involved a mere determination of the boundary between this
country and our friendly neighbour India, it could be implemented by a simple
enactment under Article 143(2) of the Constitution. In view, however, of our
conclusion that it involves cession of territory by Bangladesh, we are clearly of (p.
609) the opinion that in order to implement this treaty, prior to ratification thereof it
will be necessary to take recourse to Article 142, with a view to amending Article
2(a) which defines the territory of the People’s Republic of Bangladesh.14

In the above observations, the Appellate Division firmly subscribes to the dualist theory and
the principle of incorporation. In some cases, the act of incorporation will be the enactment
or amendment of laws, but where a treaty affects a constitutional provision, an amendment
of the Constitution will be necessary. Another important aspect of the Appellate Division
ruling is that for treaties impacting on the Constitution, implementing legislation should be
passed prior to the ratification of the treaty, whereas for treaties that do not affect
constitutional provisions, implementing legislation may not be imperative. In any event, the
role of the Parliament does not seem to have been extended beyond that of passing
implementing legislation.15

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 The question of compliance with article 145A of the Constitution has also come before the
Supreme Court and it seems to have taken a rather lenient view of the matter. The High
Court Division has held that although there is an obligation to lay a treaty before the
Parliament, failure to do so will not affect the validity of the treaty.16

2.2 Domestic Application of Treaties

2.2.1 The Principle of Incorporation
The Supreme Court has endorsed the principle of incorporation on several occasions.17 In
Bangladesh v Somboon Asavaham the Appellate Division was required to decide an issue as
to whether certain fishing trawlers were within the territorial waters of Bangladesh. The
Appellate Division noted that this issue involved international law, but decided that the role
of the Court was limited to applying the relevant municipal law.18 In another case, where a
party invoked the Universal Declaration of Human Rights, the Appellate Division observed
that its provisions ‘are not directly enforceable in national courts’.19 In several other cases,
the Supreme Court observed in almost (p. 610) identical terms that the courts of
Bangladesh will not enforce international treaties and conventions, ‘even if ratified by the
state, as they are not part of the corpus juris of the state, unless they are incorporated in
the municipal legislation’.20
2.2.2 The Principle of Consistent Interpretation
Many jurisdictions that subscribe to the principle of incorporation often also subscribe, in
various forms, to another principle or doctrine, which may be termed as the principle or
doctrine of consistent interpretation.21 Pursuant to this principle, wherever possible and
where there is no conflicting domestic legislation, domestic courts seek to interpret
domestic laws consistently with the state’s international obligations. Recognition of this
principle can be found in judicial decisions of Bangladesh courts stating that international
treaties and conventions may be referred to ‘as an aid to interpretation’ of domestic laws.22
In the twin cases of BNWLA v Government of Bangladesh (2009)23 and BNWLA v
Government of Bangladesh (2011),24 the High Court Division made a much more robust use
of the principle of consistent interpretation. Citing a number of domestic constitutional and
other provisions side by side with various international instruments on women’s rights, the
Court formulated two sets of directives on sexual harassment, which are to be followed
‘until adequate and effective legislation is made in the field’. Relying on consistent domestic
and international provisions, the Court sought to fill a ‘legislative vacuum’ by resorting to a
declaration of law by the Court.25
Apart from the twin BNWLA cases, there are no cases where the court has embarked upon
similar declarations of law by reference to constitutional rights and international treaties.
Notably, Part III of the Bangladesh Constitution dealing with fundamental rights recognizes
the core human rights set out in various international human rights instruments. As a
result, it was possible for the courts to have recourse to the principle of consistent
interpretation in respect of the enforcement of fundamental rights. However, instances are
difficult to find where Bangladesh courts have resorted to this principle in other areas, for
example, in commercial matters.

2.3 Bangladesh’s Participation in International Treaties

Bangladesh has signed and ratified a large number of multilateral treaties and is also a
party to many bilateral treaties. According to the United Nations Treaty Series, (p. 611)
Bangladesh has signed 817 treaties.26 The following sections discuss some major treaties to
which Bangladesh is a party, concerning diverse subjects, such as human and labour rights,
environment, international trade, investment, and double taxation.

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 2.3.1 Human Rights
Out of the twenty-seven multilateral treaties relating to human and child rights deposited
with the UN Secretary-General, Bangladesh has ratified or acceded to ten treaties including
the Convention on the Rights of the Child (CRC), Convention against Torture and Other
Cruel Inhuman or Degrading Treatment or Punishment (CAT), International Covenant on
Civil and Political Rights (ICCPR), Convention on the Elimination of All Forms of
Discrimination against Women (CEDAW), International Convention on the Elimination of All
Forms of Racial Discrimination, and the International Covenant on Economic, Social and
Cultural Rights.
2.3.2 Labour Rights
According to the International Labour Organization (ILO), Bangladesh has ratified thirty-
five labour rights conventions.27 Out of the eight Fundamental Conventions, Bangladesh
has ratified seven including the Forced Labour Convention 1930, Right to Organize and
Collective Bargaining Convention 1949 and the Equal Remuneration Convention 1951. Out
of the four Governance (Priority) Conventions, Bangladesh has accepted two and out of the
177 Technical Conventions, Bangladesh has signed twenty-six.
2.3.3 Environment
Major international environmental treaties accepted by Bangladesh include the Cartagena
Protocol on Biosafety to the Convention on Biological Diversity, Kyoto Protocol to the United
Nations Framework Convention on Climate Change, the Stockholm Convention on
Persistent Organic Pollutants, the International Plant Protection Convention, and the
Convention on International Trade in Endangered Species of Wild Fauna and Flora.28
2.3.4 International Trade
Bangladesh is a founding member of the World Trade Organization (WTO) and, as a
member, it is a party to various WTO agreements including the General Agreement on
Tariffs and Trade 1994, General Agreement on Trade in Services, and the Agreement on
Trade-Related Aspects of Intellectual Property Rights. Bangladesh is a party to a (p. 612)
number of regional trade agreements, including the Asia Pacific Trade Agreement, Bay of
Bengal Initiative on Multi-Sectoral Technical and Economic Cooperation (BIMSTEC), South
Asian Preferential Trade Arrangement, and the South Asian Free Trade Agreement.
Bangladesh has signed bilateral trade agreements with forty-five countries.29
2.3.5 Investment
Bangladesh is a member of the International Centre for Settlement of Investment Disputes
(ICSID) and the Multilateral Investment Guarantee Agency. It is also a party to the New
York Convention on the Recognition and Enforcement of Foreign Arbitral Awards.
Bangladesh has ratified World Intellectual Property Organization (WIPO)-administered
intellectual property treaties, including the Berne Convention, the Paris Convention, and
the WIPO Convention. Bangladesh is a party to thirty-three bilateral investment treaties
(BITs),30 which provide guarantees of fair, equitable, national, and most-favoured-nation
treatments to foreign investors.
2.3.6 Double Taxation
Bangladesh has concluded twenty-seven Double Taxation Agreements (DTAs) with twenty-
six countries, the USA being the only country with which Bangladesh has two tax treaties.
The DTAs aim to create a favourable climate for foreign investment through avoidance of
double taxation.

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 2.3.7 Other Treaties
Other major treaties that Bangladesh has ratified include the United Nations Convention on
the Law of the Sea 1982 (UNCLOS), the Vienna Conventions on Diplomatic Relations 1961
and on Consular Relations 1963, humanitarian conventions (namely, the Geneva Convention
Relative to the Protection of Civilian Persons in Time of War 1949 and Protocols I and II of
1977 to the Geneva Conventions), Convention on the Prevention and Punishment of the
Crime of Genocide 1948, and the Rome Statute of the International Criminal Court 1998.
2.3.8 Absence from Major Treaties
Major treaties to which Bangladesh is not a party include the Optional Protocol to ICCPR,
Optional Protocol to the CAT, Convention Relating to the Status of Refugees, and the Vienna
Convention on the Law of Treaties. Bangladesh is not a party to either the 1954 Convention
Relating to the Status of Stateless Persons or the 1961 Convention on the Reduction of
Statelessness.
(p. 613) 2.3.9 Reservations and Declarations
Bangladesh has made reservations and interpretative declarations to the application of a
number of human rights conventions.31 For instance, reservations or declarations have
been made in respect of ICCPR, CAT, CEDAW, ICESR, CRC, and the Genocide Convention.
Bangladesh sometimes justifies the reservations on the ground of divergent provisions in
domestic law, including sharia law, or financial inability to implement the treaty.

2.4 Implementing Legislation

While Bangladesh has signed and ratified a large number of treaties, only a few
implementing laws have been passed. Following its independence in 1971, Bangladesh
inherited a few implementing laws from the pre-independence period in the area of carriage
of goods by air or sea and in respect of matters concerning the United Nations. The UN-
related laws inherited by Bangladesh are the United Nations (Security Council) Act, 1948,
the United Nations (Privileges and Immunities) Act, 1948, and the United Nations
(Declaration of Death of Missing Persons) Act, 1956.
Since independence, Bangladesh’s record in adopting implementing legislation has not
been outstanding. In the 1970s several laws were passed in order to provide for
Bangladesh’s membership of various international financial organizations, including the
Bretton Woods institutions and the Asian Development Bank. Two more laws were passed
during this period in relation to the International Finance Corporation and the Asian
Reinsurance Corporation.32 More recently, Bangladesh became a founder member of the
Asian Infrastructure Investment Bank (AIIB) and has enacted the Asian Infrastructure
Investment Bank Act, 2016 in order to provide for the implementation of the Articles of
Agreement of AIIB.
In the area of investment protection, the Foreign Private Investment (Promotion and
Protection) Act, 1980, although not enacted as implementing legislation, broadly reflects
provisions of BITs signed by Bangladesh. The Double Taxation Agreements signed by
Bangladesh are implemented in domestic law through issuance of statutory orders by the
Ministry of Finance under the Income Tax Ordinance, 1984. The Arbitration Act, 2001 gives
effect to the New York Convention on the Recognition and Enforcement of Foreign Arbitral
Awards.
Except in respect of matters concerning the UN and treaties falling within the area that can
be broadly described as international economic law (covering financial institutions,
investment, tax, etc.), Bangladesh has failed to adopt implementing laws. (p. 614) For

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 instance, in the areas of human rights and environment, it has rarely implemented
international obligations in domestic laws.

2.5 Implementing Legislation and the Judiciary

On several occasions the Supreme Court has expressed its discontent at the lack of
implementing legislation, especially when dealing with human rights treaties. The Court has
also made recommendations that appropriate legislative measures be adopted to address
the gap between domestic law and international treaties.
In one case a petitioner approached the Court for directions to prevent advertisement of
tobacco products, citing, inter alia, resolutions of the World Health Organization. The Court
observed that ‘the government should have taken appropriate steps’ in light of ‘the
resolutions of the World Health Organization’.33 In State v Secretary, Ministry of Law the
Court recommended that ‘immediate steps must be taken by the Government to enact laws
or amend the existing law in order to ensure implementation of all the provisions of the
CRC’.34

3 Customary International Law

There is no constitutional provision concerning the status of customary international law in
the domestic legal system. Indeed, the expression ‘customary international law’ does not
appear anywhere in the Constitution, although several customary international law
principles are referred to in article 25 of the Constitution, such as, ‘respect for national
sovereignty and equality, non-interference in the internal affairs of other countries’, etc.
These principles are now codified in the United Nations Charter and article 25 also makes
reference to the ‘principles enunciated in the United Nations Charter’.
Unlike treaties, the issue of domestic application of customary international law has rarely
come before Bangladesh courts. While in some cases allusions have been made, which
could be interpreted as reference to customary international law, the issue of the
applicability of customary international law has only arisen in one recent case,35 and no
courts have ever had to apply a customary rule of international law. The reasons are
obvious; on the one hand, it is difficult to find precise customary norms in respect of which
equivalent treaty norms do not exist and, on the other hand, courts find it easier to deal
with equivalent or similar treaty provisions or domestic statutory provisions, rather than
customary norms. As in other jurisdictions, courts can be troubled by the (p. 615)
uncertainty of customary international law. For example, in Bangladesh Legal Aid and
Services Trust v Bangladesh, although the Court stated that ‘the universally recognized
prohibition of torture…is a basic principle of customary international law’, it also cited
several treaty provisions on torture and eventually decided the case on the basis of
domestic law.36
In Chief Prosecutor v Abdul Quader Molla37 the issue of the applicability of customary
international law arose before the Appellate Division in a rather limited context concerning
international criminal law. In this case, the Appellate Division dealt with the issue of
whether customary international law can directly impose any criminal liability and penal
sanction on an individual.38 The Court was of the view that customary law could not impose
such liability or sanction. In other words, customary international law is not capable of
creating a crime directly triable in a national court. The Court held as follows:

International crimes recognized by customary international law do not ipso facto

apply within the domestic jurisdiction. Customary international law does not create

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 any offence in the domestic jurisdiction, nor does it establish any criminal liability in
domestic law.
…
International obligations…cannot be applicable in the domestic tribunal of the
country unless the same is incorporated in the domestic law by a legislative action.
Therefore…a citizen of the state cannot, in any event, be subjected to the said
international obligations/responsibilities of the state.
There remains no doubt that [an Act of Parliament] has primacy over customary
international law and customary international law will be applicable so far as it is
not inconsistent with the Act.39

The above analysis of the Appellate Division blends two separate issues of domestic
applicability of customary norms, namely, whether customary norms automatically form
part of domestic law, if there is no conflicting domestic provision, and whether customary
international law or domestic law is to prevail, if there is a conflict. On the latter issue the
Court clearly holds that domestic law will prevail. However, the Court does not deal
adequately with the former issue and its conclusion is rather ambivalent.
Firstly, this case involved customary rules of international criminal law, in particular,
creation of a crime directly triable in a domestic court by such rules. Consequently, it is
difficult to assume that observations made in this case would be equally relevant in respect
of other areas of customary international law, which do not concern the imposition of
criminal liability and penal sanctions on an individual. Yet, the Appellate Division does not
clarify whether its conclusion that international norms cannot be applicable in domestic
courts unless incorporated by a legislative action applies to all (p. 616) customary norms or
only to norms concerning criminal liability. Secondly, in this case the Court eventually relied
on the relevant domestic law provisions, which it considered adequately governed the
matter and took precedence over customary rules.40 Since the question of automatic
incorporation arises only if there is no conflicting domestic law provision and this case
involved conflicting domestic provisions, the Court’s observation that legislative action is
required for all international norms remains inexplicable.
In view of the above, Chief Prosecutor v Abdul Quader Molla cannot be regarded as a clear
authority on whether customary law automatically forms part of Bangladesh law.
Accordingly, it is likely that if this issue ever arises in an appropriate context, Bangladesh
courts may still adhere to the English and common law tradition of treating customary
international law as automatically forming part of Bangladesh law as long as there is no
inconsistent Acts of Parliament or authoritative judicial decisions.

4 Participation in International Organizations

Bangladesh became a member of the United Nations in 1974. It is also a member of various
UN affiliate organizations, including the International Labour Organization, World Food
Programme, World Health Organization, WIPO, and so on. In addition to the UN
organizations, Bangladesh is a member of other major international organizations, including
the Asian Development Bank, Commonwealth of Nations, International Monetary Fund,
Islamic Development Bank, Non-Aligned Movement, Organization of Islamic Cooperation,
World Customs Organization, WTO, and the World Bank. Bangladesh is a member of a
number of regional organizations, including the Association of Southeast Asian Nations
(ASEAN) Regional Forum, Bay of Bengal Initiative for Multi-Sectoral Technical and
Economic Cooperation, and the South Asian Association for Regional Cooperation (SAARC).

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 International organizations, including the UN, WTO, ILO, IMF, and the World Bank,
significantly influence Bangladesh’s foreign policy. Regional and economic blocs and
alliances, such as G-77 plus China, BRICS, Group of 20, LDCs, or the Group of 33 at the
WTO, all influence Bangladesh’s foreign policy and have significant impact on its role and
participation in global dialogues, including trade, development, and climate change
negotiations.
Since independence in 1971, Bangladesh has stressed the principle of ‘friendship with all
and malice towards none’ in its diplomacy and foreign relations. In upholding this principle,
Bangladesh’s approaches to international law and membership of international and regional
organizations are driven by certain goals. These goals include safeguarding sovereignty,
territorial integrity, security, and national interests and (p. 617) ensuring balanced and
good-neighbourly relations with all neighbouring countries in South and Southeast Asia and
beyond. To this end, Bangladesh seeks to promote regional cooperation under the SAARC,
BIMSTEC, and the Forum on Regional Cooperation among Bangladesh, China, India and
Myanmar and to contribute to regional peace, stability, connectivity, and integration
through active participation or partnership with various global and regional groups,
including the OIC, NAM, Commonwealth, ASEAN, EU, Arab League, African Union, Asian
Cooperation Dialogue, Indian Ocean Rim Association for Regional Co-operation, ASEAN
Regional Forum, Asia-Europe Forum, CICA, and so on. Pursuing multilateralism under the
UN is a central component of Bangladesh’s foreign policy and it seeks to remain active
within the United Nations system, including through contributions to UN peacekeeping
activities.

5 Participation in UN Peacekeeping Operations

United Nations peacekeeping operations commenced in 1948 when the Security Council
authorized the deployment of UN observers to maintain the ceasefire during the 1948 Arab–
Israeli war. Since 1948, seventy UN peacekeeping operations have been deployed, fifty-
seven of them since 1988. Over the years, personnel from more than 120 countries have
participated in peacekeeping operations.41 At present, Bangladesh is the fourth-largest
contributor of troops in UN peacekeeping missions.42
Bangladesh started its participation in peacekeeping operations in 1988 by providing fifteen
army personnel as observers in the UN Iran–Iraq Military Observer Group.43 Since then it
has maintained its position as a leading troop contributor in UN peacekeeping operations.
Bangladesh armed forces have so far participated in fifty-four peacekeeping missions in
forty countries. A total of 128,545 members from Bangladesh armed forces have
participated as peacekeepers. At present, 7,283 UN peacekeepers from Bangladesh are
deployed in different ongoing missions in DR Congo, Cote d’Ivoire, Liberia, Lebanon, South
Sudan, Sudan (Darfur), Western Sahara, Mali, Central African Republic, Haiti, Nepal,
Somalia, and UNHQ in the US.44 Out of 7,283 Bangladeshi peacekeepers, 135 are female
personnel.45
(p. 618) In recognition of Bangladesh’s contribution to the UN peacekeeping missions, the
late UN Secretary-General, Kofi Annan, commented that Bangladesh is ‘a model member of
the United Nations, providing leadership amongst the least developed countries…and
contributing substantially to peacekeeping and humanitarian operations’. Another UN
Secretary-General, Ban Ki-moon, during a visit to South Sudan, praised Bangladeshi
peacekeepers noting his ‘deep admiration and commendation for all the noble work the
Bangladesh contingent has been doing for peace and security in Sudan’.46 Bangladeshi
peacekeepers, working under dangerous circumstances, have often endangered their own

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 lives. Up to March 2019, 146 Bangladeshis had died while serving in UN peacekeeping
operations.47
The issue of the legality of Bangladesh’s participation in UN peacekeeping operations arose
before the Supreme Court in M Saleem Ullah v Bangladesh.48 In this case, the petitioner
challenged the decision of the Government to participate in the UN-sponsored multinational
force in Haiti pursuant to the UN Security Council Resolution 940 of 31 July 1994. It was
argued that such participation would violate a number of provisions of the Constitution. The
Court declined to entertain the case and held as follows:

The decision was taken pursuant to the Resolution No 940 and Bangladesh being a
member of the United Nations has taken the decision within the authority of the
constitutional framework and international commitments…We fail to understand
how the decision of the Government taken pursuant to a UN resolution and the UN
Charter is an infringement of the Constitution.49

6 Interstate Disputes
Bangladesh has been a party to two formal interstate dispute settlement proceedings. Both
of these cases concerned delimitation of maritime boundary.
Immediately after its independence, the task of defining maritime limits became a part of
the national agenda of Bangladesh. As a preparatory step, Bangladesh published its base
points in 1974. It also asserted its sovereign rights over an exclusive economic zone (EEZ)
extending over 200 nautical miles (nm) from the baseline. Indeed, Bangladesh was the first
country in South Asia to formally claim an EEZ of 200 nm. The Territorial Waters and
Maritime Zones Act, 1974 was enacted defining the maritime jurisdiction of Bangladesh in
the Bay of Bengal.
(p. 619) A detailed statement was presented by Bangladesh elaborating its position on the
maritime boundaries at the 1974 Caracas Session of the Third United Nations Conference
on the Law of the Sea. Upon presentation of Bangladesh’s position, a formal note was
presented by India indicating its objections to some of the points. Bangladesh replied by
stating that official talks should be held to deal with issues needing clarification or
resolution.
The first round of talks was held in December 1974. India took the position that the
equidistance method was appropriate for defining the boundary. Bangladesh based its stand
on the judgment of the International Court of Justice in the North Sea Continental Shelf
case,50 which held that where, because of geographical or other factors, a mechanical
application of the equidistance method led to inequitable results, the adoption of the
equidistance method was not appropriate and the parties should instead seek an equitable
delimitation.
By early 1975, negotiations had reached a point where it was recognized that there were
some areas in which the divergent positions could not be reconciled and arbitration might
have to be resorted to. Although negotiations continued until 2009, no agreement could be
reached. Negotiations on maritime boundaries also took place between Bangladesh and
Myanmar from 1974, with eight rounds of talks between 1974 and 1986 and six rounds
between 2008 and 2010. However, no settlement could be reached through these
discussions.
Eventually, Bangladesh instituted arbitral proceedings pursuant to Annex VII of UNCLOS
against Myanmar and India. Since both Bangladesh and Myanmar, by making declarations
under article 287 of UNCLOS, accepted the jurisdiction of the International Tribunal for the
Law of the Sea (ITLOS), the Bangladesh/Myanmar case was transferred to ITLOS and was

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 registered as Case No. 16 on 14 December 2009. ITLOS delivered its judgment on 14
March 2012.
India did not make any declaration under article 287 of UNCLOS, and consequently the
case with India continued with a five-member Annex VII Arbitral Tribunal and it was
registered with the Permanent Court of Arbitration (PCA) as PCA Case No. 2010-16. The
Tribunal delivered its award on 7 July 2014.

6.1 Bangladesh/Myanmar Case

This case51 involved delimitation of the maritime boundary between Bangladesh and
Myanmar in the Bay of Bengal with respect to the territorial sea,52 the (p. 620) exclusive
economic zone,53 and the continental shelf54 within and beyond 200 nautical miles (nm).
6.1.1 Territorial Sea
With regard to the territorial sea, Bangladesh argued that the agreed minutes of
discussions between the parties in 1974 and 2008 constituted an agreement regarding the
territorial sea boundary, while Myanmar denied any such agreement. ITLOS decided that
those minutes did not constitute an agreement and accordingly delimited the territorial sea
by an equidistance line from the base points of Bangladesh and Myanmar. Likewise, an
equidistance line formed the boundary between St. Martin’s Island (belonging to
Bangladesh) and Myanmar, but where the territorial sea of St. Martin’s Island no longer
overlapped with the territorial sea of Myanmar, Bangladesh was allowed to extend the
territorial sea of the island to 12 nm.55
6.1.2 EEZ and the Continental Shelf
With respect to the EEZ and the continental shelf, Bangladesh argued that ‘equidistance’
was not an appropriate method and that in view of the configuration and concavity of its
coast, ITLOS should apply the ‘angle-bisector method’. The angle-bisector method is an
alternative to the equidistance method and is used much less frequently than the
equidistance method. Myanmar, on the other hand, opted for the ‘equidistance/relevant
circumstances’ method. ITLOS decided in favour of the equidistance/relevant circumstances
method. Accordingly, it established a provisional equidistance line and then adjusted that
line taking into account the concavity of the coast (which was regarded as the only ‘relevant
circumstance’) so that the delimitation line did not cut off the seaward projection of
Bangladesh’s EEZ and continental shelf.56
6.1.3 Continental Shelf beyond 200 Nautical Miles
The Tribunal decided that it could delimit the lateral boundary of the continental shelf
beyond 200 nm, even though the outer limit of the shelf had not been established.
Bangladesh argued that it alone was entitled to the entire continental shelf beyond 200 nm
because the outer shelf was the natural prolongation of Bangladesh’s land territory.
Myanmar argued that the controlling concept was not ‘natural prolongation’ but the ‘outer
edge of the continental margin’. The Tribunal held that the adjusted equidistance line
delimiting the EEZ and the inner continental shelf would continue in the same direction
delimiting the outer continental shelf until the line reached a point where the rights of third
states might be affected.57
(p. 621) 6.1.4 Disproportionality Test
Having established the maritime boundary line, the Tribunal checked whether the line had
caused any significant disproportion by reference to the ratio of the length of the coastlines
of the two states and the ratio of the maritime area allocated to each state. The length of
the relevant coast of Bangladesh was 413 kilometres, while that of Myanmar was 587
kilometres. The ratio of the length of the coasts was 1:1.42 in favour of Myanmar. The
adjusted equidistance line allocated approximately 111,631 square kilometres of sea area to
Bangladesh and approximately 171,832 square kilometres to Myanmar. The ratio of the

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 allocated maritime areas was approximately 1:1.54 in favour of Myanmar. The Tribunal
concluded that this ratio did not lead to any significant disproportion.58

6.2 Bangladesh/India Case

For this case, the PCA acted as the Registry.59 It concerned the delimitation of the maritime
boundary between the parties in the territorial sea, the EEZ, and the continental shelf
within and beyond 200 nm in the Bay of Bengal.
6.2.1 Jurisdiction
The Arbitral Tribunal first considered its jurisdiction over the dispute, in particular, its
jurisdiction to delimit the continental shelf beyond 200 nm. Emphasizing that article 76 of
UNCLOS ‘embodies the concept of a single continental shelf’, and recalling the reasoning of
ITLOS in the Bangladesh/Myanmar case, the Tribunal observed that it saw ‘no grounds why
it should refrain from exercising its jurisdiction to decide on the lateral delimitation of the
continental shelf beyond 200 nm before its outer limits have been established’.60
6.2.2 Land boundary terminus
The parties agreed that the land boundary terminus was to be used as the starting point of
the maritime boundary. The parties further agreed that the land boundary terminus was to
be established on the basis of the award of the Bengal Boundary Commission of 1947
(Radcliffe Award). However, the parties disagreed on the interpretation of the Radcliffe
Award and on the location of the land boundary terminus determined by it. On the basis of a
series of contemporaneous maps (including the map used in the Radcliffe Award), the
Arbitral Tribunal decided on the position of the land boundary terminus.61
(p. 622) 6.2.3 Base points
Bangladesh challenged several of India’s proposed base points on the ground that they
were located on alleged low tide elevations (LTEs). The Tribunal noted that, while LTEs may
be used as base points for measuring the breadth of the territorial sea, it did not necessarily
follow that they were appropriate base points for delimiting a maritime boundary between
adjacent coastlines. The Tribunal decided that a point located on the low-water line of
Moore Island and a base point B-1, as proposed by Bangladesh, were appropriate for the
construction of the equidistance line in the territorial sea.62
6.2.4 Territorial sea
The Tribunal delimited the territorial sea using the equidistance method. Bangladesh had
initially argued that due to coastal instability this method was not appropriate and that a
180° angle bisector should be used. However, following the decision of ITLOS in the
Bangladesh/Myanmar case rejecting similar arguments, Bangladesh changed its position
and put forward a provisional equidistance line and argued that the line should be adjusted
due to the instability and concavity of the coast. The Tribunal held that these were not
relevant to the delimitation of the territorial sea. However, as the land boundary terminus
was not situated on the equidistance line, the Tribunal considered that the need to connect
the land boundary terminus to the median line constituted a special circumstance
necessitating adjustment of the equidistance line.63
6.2.5 EEZ and the continental shelf
Regarding the delimitation of the EEZ and the continental shelf, the Tribunal decided that
the equidistance/relevant circumstances method was the appropriate method. The Tribunal
accordingly constructed a provisional equidistance line and then considered the relevant
circumstances asserted by the parties to adjust the line. Due to the concavity of the coast,
the provisional equidistance line produced a ‘cut-off effect’ on the seaward projections of

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 the coast of Bangladesh. The Tribunal decided that this necessitated adjustment of the
provisional equidistance line in favour of Bangladesh.64
6.2.6 Continental shelf beyond 200 nautical miles
The Tribunal applied the same methodology within and beyond 200 nm, adjusting the
provisional equidistance line into a simpler straight line to avoid a cut-off effect arising from
the concavity of Bangladesh’s coast.65 The Tribunal assessed the proportionality of the
allocation of maritime zones by reference to the overall geography of the area, finding that
no alteration of the adjusted equidistance line was necessary.66

(p. 623) 7 Investment Arbitrations

Bangladesh has been a party to a number of investment arbitrations before the
International Centre for Settlement of Investment Disputes. All of these cases are in the
energy sector. Three concluded ICSID arbitrations are: (i) Scimitar Exploration Limited v
Republic of Bangladesh and Bangladesh Oil, Gas and Mineral Corporation;67 (ii) SAIPEM
SpA v People’s Republic of Bangladesh;68 and (iii) Chevron Bangladesh Block Twelve, Ltd
and Chevron Bangladesh Blocks Thirteen and Fourteen, Ltd v People’s Republic of
Bangladesh.69
Currently two ICSID arbitrations are pending, which are: (i) Niko Resources (Bangladesh)
Ltd v Bangladesh Petroleum Exploration and Production Company Limited (Bapex) and
Bangladesh Oil Gas and Mineral Corporation (Petrobangla);70 and (ii) Niko Resources
(Bangladesh) Ltd v Bangladesh Petroleum Exploration and Production Company Limited
(Bapex) and Bangladesh Oil Gas and Mineral Corporation (Petrobangla).71

7.1 Scimitar Case

This case was submitted to ICSID by a British Virgin Islands company, Scimitar Exploration
Limited, against the Government of Bangladesh. The request for arbitration was signed by
one ‘HS Campbell’ as ‘Secretary to the Company’ and it was submitted on Scimitar’s behalf
by a law firm based in Canada identifying itself as ‘counsel’.
Bangladesh objected to jurisdiction on the basis that the request had been instituted by
persons not competent to act for Scimitar. It further argued that since Scimitar had not
produced a resolution of the board of directors or the shareholders authorizing the
institution of the arbitration proceedings, the jurisdiction of ICSID had not been validly
invoked. In response, Scimitar filed a document purporting to be a resolution of its board of
directors passed on 11 June 1993 confirming the capacity and authority of the persons
initiating the arbitration. Bangladesh disputed the validity of the resolution.
(p. 624) On 30 June 1993, a letter was directed to the ICSID Tribunal on behalf of Scimitar
indicating that there had been a change in ownership of Scimitar, that all previous officers
had resigned, and that its counsel had withdrawn. At the hearing of the ICSID Tribunal to
consider the jurisdictional issue, counsel for Scimitar stated that he had been instructed
‘not to resist’ Bangladesh’s submissions on the validity of the institution of the arbitral
proceedings or the validity of the board resolution.
The ICSID Tribunal observed that based on the agreed positions of the parties and the
uncontested evidence before it, the proceedings were not initiated with proper
authorization, and there was no evidence that the absence of such authorization had been
remedied by any action subsequent to the commencement of the proceedings. The ICSID
Tribunal, therefore, held that the dispute was not within its jurisdiction.72

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 7.2 Saipem Case
This case73 concerned a contract between Saipem, an Italian company, and Petrobangla, a
state-owned entity, to build a gas pipeline in Bangladesh. The project was significantly
delayed. The parties disagreed on the reasons for the delay. According to Saipem, the delay
was mainly due to problems with the local population, who rebelled against the project.
Bangladesh argued that the problems with the population were caused by Saipem itself and
that Saipem was already behind schedule before the problems began. The parties agreed on
extending the completion date but could not reach any agreement regarding compensation
and additional costs relating to the delay.74
The contract contained a dispute resolution clause providing for settlement of disputes
under the Rules of Conciliation and Arbitration of the International Chamber of Commerce
(ICC). Saipem referred the dispute to ICC arbitration seeking outstanding payments under
both the original contract and the subsequent extension agreement.75
During the arbitration, Petrobangla made various procedural requests before the ICC
Tribunal. Since the ICC Tribunal denied such requests, Petrobangla brought an action
before a local court seeking the revocation of the ICC Tribunal’s authority. The court
revoked the authority of the ICC Tribunal. Even though this decision was subject to two
degrees of appeal, Saipem decided not to appeal the decision. The ICC Tribunal held that
the revocation of the authority of the Tribunal was contrary to the general principles
governing international arbitration and continued with the arbitration and, eventually,
passed an award in favour of Saipem.76 Petrobangla applied to set aside the ICC award
before the High Court Division, which held that there was no award that could be set aside,
as the award passed by the Tribunal was ‘a nullity in the eye of law’ (p. 625) and it was
‘clearly illegal and without jurisdiction inasmuch as the authority of the Tribunal was
revoked…by a competent court of Bangladesh’. Saipem did not appeal this decision.77
Later, Saipem filed a request for arbitration in ICSID based on the breach of the BIT
between Italy and Bangladesh. The basis of Saipem’s claim was the undue intervention of
the Bangladeshi courts in the ICC arbitration, which precluded the enforcement of the ICC
award. According to Saipem, those acts constituted an expropriation.78
The ICSID Tribunal in its award held that although the actions of the Bangladeshi courts did
not constitute direct expropriation, they amounted to ‘measures having similar effects’.
Such actions resulted in substantially depriving Saipem of the benefit of the ICC award.79 It
observed that although national courts have discretion to revoke an arbitrator’s authority in
cases of misconduct, they cannot use this discretion to revoke authority for other reasons.
The ICSID Tribunal noted that the actions of the courts of Bangladesh were against
international law, specifically, the principle of abuse of rights, and the New York Convention
article II(1), which imposes on Contracting States the obligation of recognizing and
honouring arbitration agreements. The Tribunal considered the intervention of the
Bangladesh courts as amounting to ‘expropriation of the right to arbitrate’ and held that the
amount awarded by the ICC award constituted the best evaluation of the compensation
due.80

7.3 Chevron Case

This case81 concerned a dispute between Bangladesh and two Bermudan corporations,
Chevron Bangladesh Block Twelve, Ltd and Chevron Bangladesh Blocks Thirteen and
Fourteen, Ltd, on the interpretation of five agreements relating to the exploration and sale
of natural gas. The agreements included two Production Sharing Contracts (PSCs), and
three Gas Purchase and Sale Agreements (GPSAs). The request for arbitration was

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 submitted on the basis of similar ICSID arbitration clauses contained in each of the five
agreements.
The PSCs and the GPSAs included a provision stating that Petrobangla, as the transmission
company, would be entitled to receive a tariff when Chevron used a pipeline operated by
Petrobangla to supply natural gas to the Bangladesh domestic market. The PSCs were
concluded in 1995, the first GPSA was signed in 1996, and gas sales to Petrobangla
commenced in 1999. Some communication between the parties disputing the interpretation
of the tariff provision occurred in 1999. Chevron asserted (p. 626) that since title to the gas
passed to Petrobangla before the gas reached Petrobangla’s pipeline, the tariff was not
payable. However, the tariff was paid by Chevron to Petrobangla without further
communication between the parties until 2003. When the parties entered into the second
and the third GPSAs in 2003 and 2004, respectively, they simultaneously concluded two
side-letter agreements acknowledging the existence of a dispute on the interpretation of the
tariff provisions.
The dispute brought to ICSID concerned the question of whether the tariff provisions
applied when Petrobangla itself was the buyer and took delivery of the gas through its
pipeline. In the ICSID arbitration, Bangladesh initially refused to participate in the
jurisdiction phase and obtained an injunction from a local court to restrain the arbitral
proceedings. In response, the ICSID Tribunal referred to articles 26 and 41 of the ICSID
Convention to establish that prior consent to ICSID arbitration excluded other remedies,
such as domestic injunctions. Bangladesh continued to abstain from the proceedings and a
summary Decision on Jurisdiction was delivered on 21 August 2007, where the ICSID
Tribunal upheld its own jurisdiction and scheduled a hearing date for the merits. At this
stage, Bangladesh decided to participate in the arbitration and withdrew the injunction in
the local court.
In its award on the merits, the ICSID Tribunal considered the language of the agreements,
applicable law, and the communications and behaviour of the parties with respect to the
agreements. The Tribunal determined that, under the PSCs and the GPSAs, the tariff at
issue was owed by the Claimants regardless of whether or not Petrobangla was the
purchaser of the natural gas. The Tribunal also found that the Claimants had complied with
the Respondent’s interpretation of the tariff provisions for several years before reviving the
dispute. Because of this compliance, the Claimants were estopped from disputing the
interpretation.

7.4 Niko Cases

There are two cases that were initiated by Niko Resources (Bangladesh) Ltd, involving a
Joint Venture Agreement (JVA) between Niko and BAPEX, a state-owned entity, and a GPSA
between Niko, BAPEX, and Petrobangla. Both agreements contain an ICSID arbitration
clause.
In 2005, two blow-outs occurred in the Chattak gas field operated by Niko. Enquiry
committees formed by the Government of Bangladesh found Niko responsible for the blow-
outs. In 2008, the Government and Petrobangla commenced proceedings against Niko
before a Bangladesh court claiming damages for the blow-outs. Niko took the position that
this matter should be resolved through ICSID arbitration and commenced the first
arbitration (Compensation Claim).82
(p. 627) Subsequent to the blow-outs, the Bangladesh Environmental Lawyers’ Association
(BELA) and others initiated a case before the High Court Division against the Government,
Petrobangla, BAPEX, and Niko seeking, inter alia, a determination that the JVA was invalid
and an injunction restraining payments to Niko in respect of the gas supplied by Niko from
its Feni gas field. The Court issued an injunction restraining payment until Niko paid
compensation. Although Niko raised invoices for the gas supplied since November 2004,

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 none of the invoices was paid by Petrobangla. Niko commenced the second arbitration to
recover these payments (Payment Claim).83
Two ICSID Tribunals were constituted to deal with the disputes. However, the Tribunals
comprised the same three arbitrators and it was agreed that the two cases would proceed
in a concurrent manner, and that the Tribunals might issue one single instrument in relation
to both cases.
7.4.1 Jurisdiction
Bangladesh objected to the jurisdiction of the ICSID Tribunals on a number of grounds,
including corruption. In their Decision on Jurisdiction, the Tribunals found that they had
jurisdiction with respect to both the Compensation and Payment Claims and that the
jurisdiction extended to the question of whether the GPSA and the JVA were avoided on
grounds of corruption.84
7.4.2 Payment Claim
The Tribunals passed several orders on the Payment Claim, the last order being a direction
on Petrobangla to immediately make payment of the amounts due to Niko with interest.
Petrobangla took the position that it was unable to make payment due to the restraining
order of the Court and the fact that the order was passed in third-party initiated
proceedings (i.e. the BELA proceedings). In response, the Tribunals observed that the
courts of Bangladesh are bound to implement the decisions rendered by ICSID Tribunals
and if it were otherwise, the international commitments of the state of Bangladesh ‘could be
rendered ineffective by the simple expedient of any third parties…bringing claims before
the courts of Bangladesh and having these courts render decisions which conflict materially
with the decisions of the Tribunals operating under the ICSID Convention’.85
7.4.3 Compensation Claim
The Tribunals heard evidence and argument on the liability for the blow-outs. However,
before issuance of their decision and while the parties were producing their submissions on
the quantum of damages, BAPEX and Petrobangla served requests concerning the
avoidance of the JVA and the GPSA on grounds of corruption (Corruption Claim). The
Tribunals then decided to assign first priority to the Corruption Claim and suspended (p.
628) the proceedings on liability relating to the blow-outs.86 The proceedings in relation to
the Corruption Claim and the Compensation Claim are still ongoing.

8 Conclusion
As this chapter illustrates, international law has been relevant in the internal legal system
of Bangladesh as well as in its external relations. In light of the large number of treaties
that it has signed or ratified, Bangladesh seems to be an enthusiastic participant in
international treaties. However, its treaty practice remains deficient and needs
improvement in three key areas. First, it is a matter of concern that there is almost a
complete lack of compliance with article 145A of the Constitution, which requires all
treaties to be laid before the Parliament. Secondly, although Bangladesh has ratified many
human rights treaties, reservations have been made in respect of some important treaty
provisions. Thirdly, apart from a few instances, implementing legislation is rarely passed to
incorporate treaty obligations into domestic law. While the legislative framework in respect
of treaties is rather imperfect, the Supreme Court of Bangladesh made a commendable
effort to invoke and rely on treaty provisions that are not in conflict with domestic law. With
respect to customary international law, it is yet to be clarified by Bangladesh courts
whether or not this body of law automatically forms part of Bangladesh law. In case of

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 conflict, domestic law prevails over both international treaties and customary international
law.
Bangladesh has been a reasonably active participant in international organizations,
including the UN. Its involvement in UN peacekeeping operations has been praised by the
international community. In recent years, Bangladesh has participated in two interstate
dispute settlement proceedings concerning delimitation of its maritime boundary with
Myanmar and India. The outcome in both cases is balanced and considered to be in favour
of Bangladesh. It has been a party to several investment arbitrations under the ICSID
Convention. Out of the three concluded ICSID cases, the award was in favour of Bangladesh
in two cases, the Scimitar case and the Chevron case. While the award in the Saipem case
was against Bangladesh, the propriety of this award can be debated. In this case, Saipem
did not pursue several appeal procedures available in Bangladesh courts at different stages;
despite such non-exhaustion of domestic law remedies, the Tribunal held that the actions of
the Bangladeshi courts amounted to measures having effects similar to expropriation.

Footnotes:
*
Thanks to Reduanul Karim for his assistance in preparing this chapter.
1
In addition to these two articles, the preamble of the Constitution refers to ‘international
peace’ and art. 47(3) refers to ‘crimes under international law’.
2
Constitution of the People’s Republic of Bangladesh 1972 art. 8(2).
3
Saiful Islam Dilder v Bangladesh 50 DLR (HCD) (1998) 318.
4
Ibid. 322–3.
5
Saiful Islam Dilder (n 3). See also M Saleem Ullah v Bangladesh 47 DLR (1995) 218, 224,
para 7.
6
See Mahmudul Islam, Constitutional Law of Bangladesh (3rd edn Mullick Brothers 2012)
1026.
7
This function is allocated to the Law Ministry. See Rules of Business (1996) r 14A(1)(iii).
8
Ibid. r 15.
9
Shahnaz Huda and Manzoor Hasan, The Bangladesh Parliament and International
Conventions (Bangladesh Institute of Parliamentary Studies 2000) 37.
10
Kazi Mukhlesur Rahman v Bangladesh 26 DLR (SC) (1974) 44.
11
The treaty involved the transfer of the Berubari enclave to India in exchange for the
Dahagram and Angarpota enclaves.
12
Kazi Mukhlesur Rahman (n 10) 54, 58.
13
ibid. 57, 58.
14
ibid. 58 (emphasis added).
15
The case of Kazi Mukhlesur Rahman (n 10) has been cited in a number of subsequent
decisions. See Md. Asaduzzaman v Bangladesh 42 DLR (1990) 144; Dr Mohiuddin Farooque
v Bangladesh 49 DLR (AD) (1997) 1; Mohammad Emrul Kayes v Government Bangladesh 35
BLD (2015) 94; and Tayeeb v Government Bangladesh 67 DLR (AD) (2015) 57.
16
Major (Retd) Akhtaruzzaman v Bangladesh, Writ Petition No. 3774 of 1999 (unreported)
(as cited in Mahmudul Islam, Constitutional Law of Bangladesh (3rd edn Mullick Brothers
2012) 1026).

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 17
See Kazi Mukhlesur Rahman (n 10); Bangladesh v Somboon Asavaham 32 DLR (AD)
(1980) 194; Professor Nurul Islam v Government of Bangladesh 52 DLR (2000) 413;
Hussain Mohammad Ershad v Bangladesh 21 BLD (AD) (2001) 69; State v Md. Roushan
Mondal 26 BLD (HCD) (2006) 549; Bangladesh v Sheikh Hasina 60 DLR (AD) (2008) 90;
State v Metropolitan Police Commissioner 60 DLR (2008) 660; State v Secretary, Ministry of
Law, Suo Motu Rule No. 5621 of 2009 (unreported); Dr Shipra Chaudhury v Government of
Bangladesh 29 BLD (HCD) (2009) 183; and Bangladesh Legal Aid and Services Trust v
Bangladesh 63 DLR (2011) 1.
18
Bangladesh v Somboon Asavaham (n 17) 197–8, para 6.
19
Hussain Mohammad Ershad v Bangladesh 21 BLD (2001) 69, 70, para 2.
20
Bangladesh Legal Aid and Services Trust (n 17) 8; Sheikh Hasina (n 17) 104; Shipra
Chaudhury (n 17) 187.
21
See Sharif Bhuiyan, National Law in WTO Law (Cambridge University Press 2007) 5
(note 33).
22
Shipra Chaudhury (n 17) 187; Bangladesh Legal Aid and Services Trust (n 17) 8; Sheikh
Hasina (n 17) 104.
23
BNWLA v Government of Bangladesh 14 BLC (2009) 694.
24
BNWLA v Government of Bangladesh 31 BLD (HCD) (2011) 324.
25
BNWLA (n 23) 706.
26
‘United Nations Treaty Series Online’ (United Nations Treaty Collection) <https://
treaties.un.org/Pages/UNTSOnline.aspx?id=3&clang=_en> accessed 11 December 2018.
27
International Labour Organisation, ‘Ratifications for Bangladesh’ <http://www.ilo.org/
dyn/normlex/en/f?p=NORMLEXPUB:11200:0::NO::P11200_COUNTRY_ID:103500>
accessed 11 December 2018.
28
Department of Environment, ‘Multilateral Environmental Agreements in force in
Bangladesh’ <http://www.doe-bd.org/agreement.html> accessed 11 December 2018.
29
Ministry of Commerce, ‘Bilateral Trade Agreement’ <http://mincom.portal.gov.bd/site/
page/8d102b7c-7f6f-4325-9ad9-ea1027f7454d/Bilateral-Trade-Agreement> accessed 11
December 2018.
30
Ministry of Industries, ‘Bilateral Agreements’<https://moind.gov.bd/site/page/
f7aa7575-5196-476b-907b-3ea65e885717/Bilateral-Agreements> accessed 11 December
2018.
31
‘Multilateral Treaties Deposited with the Secretary-General’ (United Nations Treaty
Collection) <https://treaties.un.org/Pages/Treaties.aspx?id=4&subid=A&lang=en>
accessed 11 December 2018.
32
The 1970s laws on these two institutions were recently replaced by two new laws
enacted in 2013 and 2015.
33
Professor Nurul Islam v Government of Bangladesh 52 DLR (2000) 421–2.
34
State v Secretary, Ministry of Law (n 17) 10–11.
35
Chief Prosecutor v Abdul Quader Molla 22 BLT (AD) (2014) 8.
36
Bangladesh Legal Aid and Services Trust (n 17) 8–9.
37
Chief Prosecutor (n 35).
38
Ibid. 67.

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 39
Ibid. 68, 72, 73, 83.
40
Ibid. 71–2, 83–4.
41
United Nations Peacekeeping, ‘Our History’ <https://peacekeeping.un.org/en/our-
history> accessed 11 December 2018.
42
Mahfuz Anam, ‘Bangladesh and UN Peacekeeping: Challenges and Prospects’ The Daily
Star (Dhaka, 29 May 2017) <http://www.thedailystar.net/round-tables/bangladesh-and-un-
peacekeeping-challenges-prospects-1412455> accessed 11 December 2018.
43
‘Looking Back to Peacekeeping History’ (Armed Forces Division 2013) <http://
www.afd.gov.bd/index.php/un-peacekeeping> accessed 11 December 2018.
44
Ibid.
45
‘Summary of Contributions to UN Peacekeeping by Country and Post’ (United Nations
Peacekeeping, 31 October 2017) <https://peacekeeping.un.org/sites/default/files/post.pdf>
accessed 11 December 2018.
46
Editorial, ‘Bangladesh’s role in international peacekeeping’ The Asian Age (Dhaka, 1
December 2016) <https://dailyasianage.com/news/39719/bangladeshs-role-in-intl-
peacekeeping> accessed 11 December 2018.
47
‘Fatalities by Nationality and Mission up to 31 March 2019’ (United Nations
Peacekeeping, 31 March 2019) <https://peacekeeping.un.org/sites/default/files/
statsbynationalitymission_2_23.pdf> accessed 30 April 2019.
48
M Saleem Ullah (n 5).
49
Ibid. 223, 224.
50
North Sea Continental Shelf (Federal Republic of Germany v Denmark; Federal Republic
of Germany v Netherlands) [1969] ICJ Rep 3.
51
Dispute Concerning Delimitation of the Maritime Boundary between Bangladesh and
Myanmar in the Bay of Bengal (Bangladesh v Myanmar) (Judgment of 14 March 2012).
52
The territorial sea extends to 12 nm from the low-water line.
53
The EEZ is an area extending to 200 nm from the baseline.
54
The continental shelf is the seabed and the subsoil extending from the coast to the outer
edge of the continental margin, or to a distance of 200 nm from the baseline where the
outer edge does not extend to 200 nm.
55
Maritime Boundary (n 51) paras 64–5, 126, 506.
56
Ibid. paras 208, 223, 236–40, 292–3, 297.
57
Ibid. paras 356, 407, 416, 427, 438, 462.
58
Ibid. para 499.
59
Bay of Bengal Maritime Boundary Arbitration between Bangladesh and India
(Bangladesh v India), PCA Case No. 2010–16, Award of 7 July 2014.
60
Ibid. paras 74–83.
61
Ibid. paras 58–9, 169, 188.
62
Ibid. paras 190–7, 259–64, 267–9.
63
Ibid. paras 274.
64
Ibid. paras 372, 381, 393, 399.

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 65
Ibid. paras 456–8.
66
Ibid. para 497.
67
Scimitar Exploration Limited v Republic of Bangladesh and Bangladesh Oil, Gas and
Mineral Corporation ICSID-ARB/92/2 (3 November 1992); 5 ICSID Reports 3.
68
SAIPEM SpA v People’s Republic of Bangladesh ICSID-ARB/05/7 (25 April 2005).
69
Chevron Bangladesh Block Twelve, Ltd and Chevron Bangladesh Blocks Thirteen and
Fourteen, Ltd v People’s Republic of Bangladesh ICSID-ARB/06/10 (30 June 2006).
70
Niko Resources (Bangladesh) Ltd v Bangladesh Petroleum Exploration and Production
Company Limited (Bapex) and Bangladesh Oil Gas and Mineral Corporation (Petrobangla)
ICSID-ARB/10/11 (27 May 2010).
71
Niko Resources (Bangladesh) Ltd v Bangladesh Petroleum Exploration and Production
Company Limited (Bapex) and Bangladesh Oil Gas and Mineral Corporation (Petrobangla)
ICSID-ARB/10/18 (28 July 2010).
72
Scimitar (n 67) 9. The ICSID Tribunal passed its Award on 5 April 1994.
73
SAIPEM (n 68). The ICSID Tribunal passed its Award on 30 June 2009.
74
Ibid. paras 7, 11–22.
75
Ibid. paras 10, 25.
76
Ibid. paras 31–3, 40, 42–3, 45, 48.
77
Ibid. paras 50–1.
78
Ibid. para 52.
79
Ibid. para 129.
80
Ibid. paras 159, 167, 170, 204.
81
Chevron (n 69). The ICSID Tribunal passed its Award on 17 May 2010. See also Lindsey
Marchessault, ‘Chevron Bangladesh Block Twelve, Ltd and Chevron Bangladesh Blocks
Thirteen and Fourteen, Ltd v People’s Republic of Bangladesh (ICSID Case No ARB/06/10):
Introductory Note’ (2011) 26(1) ICSID Review 256.
82
Niko Resources (n 70).
83
Niko Resources (n 71).
84
Decision on Jurisdiction (19 July 2016) para 5.
85
Ibid. para 13.
86
Ibid. para 7.

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