Indian bid to use Bangladesh as corridor is illegal
M. Shahidul Islam
Curving out an access through the sovereign turf of another country
without any 'codified' legal instrument is prohibited by customary
international law. As a legal tangle is set to turn much of what is
being done with respect to Indian connectivity through Bangladesh
worthless and illegal, the two governments should focus into
fashioning the requisite bilateral deals to avoid being hounded and
implicated in the future.
The decision following the February 12-13 meeting in Dhaka of the
officials from the two countries to set up a joint committee to look
into the possibility of transhipment of Indian goods at 'any point' in
Bangladesh offered a new window of opportunity to give a second
thought to this complicated matter.
Lack of legality
First, as it is, there is no existential legal instrument to cover the
allowing of Indian vessels in 'any port' of Bangladesh unless a new
agreement/protocol is signed and ratified by concerned authorities.
Second, many other de facto mandates, accorded to India, to turn
Bangladesh into an Indian corridor do not have legal basis either, and
stems largely from a combination of verbal directives, declaration
made in the joint communiqué, or, from Memorandum of Understanding
(MoU); all of which are in collision with the 1972 and 1980 bilateral
agreements, which are the core instruments of customary international
law governing such thorny bilateral matters.
Customary international laws are drawn from the pool of consistent
conduct of nations acting in the belief that the laws require them to
act that way. Actions of states not in conformity with such principles
are often deemed as arbitrary and illegal and may be susceptible to
non-compliance by one or both the signatories. The Statute of the
International Court of Justice acknowledges the existence of customary
international law in Article 38(1)(b), and, its tenets are
incorporated into Article 92 of the UN Charter.
Misuse of power
Yet, there is evidence that some high officials and advisers in
Bangladesh are acting in extreme secrecy to allow India many
opportunities not backed by the required legal instruments. A recent
declaration by Tripura's Food and Civil Supplies Minister, Manik Dey,
added to such concerns further and proved how authoritative power is
being misused in Bangladesh.
Dey told reporters on February 11 that, "After getting the green
signal from Dhaka, FCI (Food Corporation of India) has initiated the
process to transport food grains and essentials for the (Indian) north
eastern states using Bangladeshi port Ashuganj and roadways connected
to the NE."
Who in Bangladesh gave such a green signal is unknown, but these are
disturbing signs with far-reaching implications for Bangladesh's
sovereignty and national security.
No legal basis
The legal basis of trade connectivity between the two countries ought
to be governed by the Bilateral Trade Agreements of March 1972 and
October 1980, which has been abandoned. The water transit protocol,
signed in November 1972, is embodied in Article V111 of the 1972
agreement, and allows flying, docking and movement of some Indian
vessels across the Bangladesh water at specific 'ports of call.'
The protocol is operable subject to renewal in every two years. As the
current duration of it ends on March 31, 2012, the Indian delegation
is desperate to have five-year duration for the protocol.
This too is illegal. The demand to extend the protocol for five years
cannot be fulfilled due to the protocol itself being an integral part
of the 1972 and 1980 trade agreements and renewable in every two year
period. To change the protocol's duration, the agreement(s) must be
amended first. The 1972 agreement - and by implications the 1980
agreement too – having the status of a treaty, it will involve an act
of the parliament to bring about the required amendments.
Wrong advice
Also evident is the fact that the government is ill advised. Dr.
Gowher Rizvi, an adviser to the Prime Minister on international
affairs, told the Hindu newspaper of India on September 6, 2011 that
the land connectivity – and the transit – stems from the 1974
Indira-Mujib agreement. A focused review of the 1974 agreement,
however, reveals that, none of the five articles of the agreement is
remotely related to the transit issue.
Solely related to resolving the boundary dispute, the status of the
1974 agreement was filliped into a treaty in Bangladesh due to Dhaka's
expeditious ratification of it, and, the amendment brought to the
Constitution in order to offer to India the Berubari enclave so that
the Tin Bihga corridor could be regained by Bangladesh to ameliorate
the sufferings of the stranded Chhit Mahal inhabitants. India never
ratified the treaty.
That notwithstanding, in all probability, Dr. Rizvi must have referred
to the Bilateral Trade Agreement of 1972. Signed on March 28, 1972,
the comprehensive Trade Agreement had one year of initial duration,
with a commitment for periodical renewal. Article V of the Agreement
states: "The two governments agree to make mutually beneficial
arrangements for the use of waterways, railways and roadways for the
two countries and for passage of goods between two places in one
country through the territory of the other."
That may sound like agreeing to allow corridor to India, but the 1972
agreement has subsequently been supplanted by a new Trade Agreement
signed on October 4, 1980, which must have bypassed the adviser's
attention. Although the new agreement replaced with Article VIII the
exact language used in Article V of the 1972 agreement, yet, in order
to insure legal correctness, a new Protocol on Inland Water Transit
and Trade was signed on November 8, 1983.
That precedent being so handy, why then the Bangladesh government is
cruising ahead with a multi-modal connectivity scheme without signing
any new protocol? The only basis seems to be the commitment made by
the Prime Minister during her visit to India in 2010. In specificity,
paragraph 22 of the joint communiqué promised to add Ashuganj-Silghat
(India) as new ports of call. From a legal standpoint, the PM's
commitment cannot be sustained and fulfilled unless a new protocol is
signed, for, the parent protocol does not have those two destinations
as ports of call.
These legal prerequisites aside, a high-powered committee formed by
the Bangladesh government to examine in details the transit-related
issues reported on December 2, 2010, that, 'Bangladesh currently
lacked the infrastructure for transit with India, Nepal and Bhutan and
would need at least three years to have an adequate infrastructure in
place.'
Political stunt
The formation of the committee, as is evident now, was a political
stunt for public consumption. Disregarding its recommendations, the
government had already allowed India the first regular transit
transport to pass on October 18, 2011 from Akhaura to Agartala.
Routine movement of Indian goods on the same route continued ever
since.
For instance, during the first week of what the Bangladesh government
touted as the 'trial run' for Indian transiting, the Indian Ship
'Homibaba' carried 305 tons of steel from Kolkata Port to Ashuganj,
from where they were ferried by road to Agartala. Another ship carried
621 tons of iron sheets three days later.
Between October 12-15, 2011 alone, 9 oversized trucks, each loaded
with 17 and half tons of iron sheets, ferried to and from Ashuganj and
Agartala and mauled the feeble infrastructure in their path. The anger
in the disaffected community is too conspicuous to bypass attention.
These actions not only constitute an infringement of customary
international laws, they are perilously detrimental to Bangladesh's
national security and sovereign integrity.
[Author is a practitioner of international law and a member in good
standing of the International Bar Association (IBA) and the American
Society of International Law (ASIL)].
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