UN Convention on the Law of Non-Navigational Uses of International Watercourses: The Politics of Ratification
by Abu Mohammad
This paper deals with the process of treaty making, the process of ratification as it is effected by national legislatures and makes reference to some pertinent questions having bearing on the process of ratification of international treaties for Bangladesh. The latter issues have been discussed with reference to the United Nations Convention on the Law of Non-Navigational Uses of International Watercourses. Writes Abu Mohammad
An international treaty is an agreement or contract entered into between two or more states whereby they undertake to carry out obligations imposed on each of them. A treaty may be bi-lateral (between two states) or multi-lateral (between more than two states). Example of a bi-lateral treaty may be the Indo-Bangladesh Water Sharing Treaty, while that of a multi-lateral treaty could be the Convention on the Elimination of All-forms of Discrimination against Women (popularly known as CEDAW) or the United Convention on the Rights of the Child (UNCRC). Convention or Covenant is another legal form of multi-lateral treaty.
The process of treaty making follows certain steps with few variations. The key steps are:
Accrediting representative: A state interested to get involved with a treaty appoints a representative(s) for the purpose. The representative is provided with a legal instrument by the proponent states to show the representatives authority to conduct negotiations. This authority is known as 'Full Powers'.
Negotiation: Prior to the commencement of the negotiation, the representative present exchange their 'Full powers'. Once this is done, the representatives proceed with the negotiation. Negotiations of a multi-lateral treaty usually takes the form of a diplomatic conference.
Signature: When the final draft of a treaty is drawn up, the instrument (i.e. the treaty) is ready for signature. The signature is affixed by the representative of the state during the closing session of the diplomatic conference. A treaty may come into effect (or in force) on signature by the representative of the state, unless the negotiating states desire in the treaty to subject it to a more formal process (ratification) which is discussed below.
Ratification: The act of adopting an international treaty by the parties thereto is known as ratification. It is a confirmation of the treaty entered into by the representatives of the different states. Until a treaty is not ratified by the proper authority of the state, the treaty lacks any formal validity and does not bind the state or create any formal obligation for the state. The time variation that exists between signature of a treaty and ratification is provided for states to ponder over the matter discussed by its representative and also to refuse validating the treaty for any valid reason.
Accession and Adhesion: When a third state becomes a party to an already existing treaty, the process of inclusion is known as accession for the joining state. Adhesion on the other hand denotes the entrance of a third state into an existing treaty with regard to certain stipulations or certain principles already embodied in the treaty.
Coming into force: A treaty comes into force on signature, unless when ratification is necessary. Sometimes, a certain number of states need to ratify in order for a treaty to come into force. This process of required numbers is the usual course of action in case of multi-lateral treaties.
Registration: In this era, since most of the international treaties are brokered by the United Nations (as per article 102 of the UN Charter), those brokered treaties are registered with the UN. Article 102 of the UN Charter provides for the registration of treaties between members of the UN with the UN Secretariat.
Incorporation of treaty into State law: This is the final stage of treaty making. The treaties binding on the states ratifying, incorporate those treaties into their national laws to assume a binding character.
The process of ratification, as mentioned above is a crucial part of the process of treaty making. And a key objective of the process of ratification is to offer an opportunity to obtain approval of national legislatures (where necessary) and/or otherwise consult public opinion. In Bangladesh, the process of ratification is undertaken Article 145A [inserted by the Second Proclamation (Fifteenth Amendment) Order, 1978 (Second proclamation Order No. IV of 1978] of the Constitution of the People's Republic of Bangladesh. Article 145A reads: "All treaties with foreign countries shall be submitted to the President, who shall cause them to be laid before Parliament". However, the Constitution, in case of treaties connected with national security allows for discussion through secret sessions of the Parliament.
The process of ratification via Article145A of an international treaty is a process of, not only seeking public opinion but also ensuring public participation. However, the performance experience of successive governments in Bangladesh since Independence till date, in respect of treaty ratifications have been anything but expression of public opinion. Two instances are described here to give a feel of the level of public participation:
Kazi Mukhlesur Rahman vs. Bangladesh (popularly known as the Berubari Case) [26 Dhaka Law Reports (Supreme Court) 1974 44.]: The Governments of India and Bangladesh signed a bi-lateral treaty on 16 May 1974 which provided for India to retain the southern part of South Berubari Union number 12 and adjacent enclaves in exchange for Dahagram and Angharpota enclaves to Bangladesh. This treaty was challenged by Mr. Kazi Mukhlesur Rahman, a lawyer, as he found this treaty leading to cession (or letting go) of the territory of Bangladesh, as demarcated at the time of Independence. Since, cession of territory could not be attributed without constitutional amendment and with reference to constitutionally guaranteed fundamental rights. The view of the Superior Court in this case was that cession of territory needs parliamentary approval and enactment but the petition was dismissed on the ground that the matter was pre-mature. The appropriateness of the petitioner (locus standi) was allowed, and thereby opening the gate of what later came to be known as public interest litigation. Moreover, raising this issue through the Court led to the 3rd amendment to the Constitution, The 3rd amendment gave legal effect to the Indo-Bangladesh treaty of 1974. Since the provision of ratification was not yet a part of the Constitution, the government acted on the matter in a separate capacity.
Ratification of UNCRC by parliament in 1990: Bangladesh signed the UN Convention on the Rights of the Child in 1989, as one of the first signatories. While the anti-autocracy movement was in full blast, the regime of General Hussain Muhammad Ershad ratified the UNCRC through parliament. A Convention that had tremendous implication for Bangladesh (half of her population falling into the category of children – under 18) was validated in Parliament without any gauging of public opinion.
One wonders if the practice of keeping the larger population in the dark while ratifying international obligations vis a vis international treaties, has changed in the 1990s, the era of reverting back to parliamentary democracy. If the proceedings of the parliament is anything to go by, the practice remains the same, with cursory treatment of international treaty obligations, disposed of in summary manner with a minimum of discussion, if any.
Both the cases of Berubari and the UNCRC shows that ratification of international treaties have been effected ('rubber-stamped'?) by the powers that were, for their own short term interests. In case of treaty of 1974, dealing with an overwhelming neighbor next door and in case of UNCRC (probable?) promises of securing foreign aid. Whether these treaties were for the benefit of common people (and voters) is questionable. The benefits of these treaties may vary very well but these benefits were not clearly spelled out to the people at the time of ratification. The question of seeking public opinion is a moot one, as people were not widely consulted, if at all. A stamp of validity may be affixed to an international treaty in the form of ratification in the guise of representative democracy (believing Members of Parliament represent their constituencies), but the issue of public consultation and opinion was missed out. This could have given wider legitimacy and support to the governments of the time, while the state would have been better prepared for dealing with the implications and implementation of the treaties concerned.
Bangladesh is yet to ratify the UN Convention on the Law of Non-Navigational Uses of International Watercourses that was opened for signature in 1997. This far according to APIT sources, 17 states have ratified the Convention. Bangladesh and India, both sharing common rivers have not ratified the same. However, the time is ticking by; as per the treaty provisions, 31 states ratifying the treaty will bring it into effect. A time will indeed come when Bangladesh could not avoid the proposition of ratifying the treaty. Whether Bangladesh will ratify the treaty or not is a wide open question. Treaty ratifying experience of Bangladesh tells us that it has not backed down when any form of 'inducement' has been made vis a vis treaty ratification. If this is the path Bangladesh continues to pursue, leading to a ratification creating obligations on her, then a few questions needs to be addressed before Bangladesh actually does so.
The objectives of the UN Convention on the Law of Non-Navigational Uses of International Watercourses inter alia are to:
n address the problems affecting many international watercourses resulting from, among other things, increasing demands and pollution,
n create a framework convention that will ensure the utilization, development, conservation, management and protection of international watercourses and the promotion of the optimal and sustainable utilization thereof for present and future generations
n affirm the importance of international cooperation and good neighbourliness in this field
n raise awareness of the special situation and needs of developing countries.
All of the abovementioned objectives prima facie would bring benefits for a least developed country like Bangladesh. But does Bangladesh understand how these objectives will be transformed into objective actions? If not, the need for a through understanding is called for.
It is true that the treaty ratification process this far has been a rather opaque one leading to a quick ratification in exercise of article 145A of the Bangladesh Constitution. To avoid this probable scenario should widespread stakeholder consultations begin ahead of time?
Many states, including Bangladesh fail to play the public opinion card (since they are too prone to playing vested interest cards?) which could act as a deterrent to regional and international pressure for a quick ratification. This modus operandi reduces the window of opportunity for wider consultation and ensuring a better bargain that is possible in case of some other least developed countries/developing states but essentially for developed states. The pertinent question here would be to assess the feasibility of the public opinion card in the face of external pressure?
Since, any negotiation in respect of non-navigational uses of international watercourses will involve India owing to sheer political geography of Bangladesh, a head start with a strategic dialogue with India might be a good approach. This far negotiating with India on any issue had been either too easy (for one political party) or too difficult (for another political party) in Bangladesh. Is there a way to find a strategic balance in respect of non-navigational uses of common watercourse with India, irrespective of the political party power at the wheel of the Bangladesh state?
The questions raised in this paper are only to kick-off a dialogue on using the ratification mechanism enshrined in Bangladesh constitution to work for the interest of Bangladesh.
End notes:
United Nations Secretariat (1997) UN Convention on the Law of the Non-navigational Uses of International Watercourses
http://www.internationalwaterlaw.org/IntlDocs/Watercourse_Conv.htm)
Government of Bangladesh (2000) The Constitution of the People's Republic of Bangladesh, Bangladesh Government Press
Islam, Mahmudul (2002) Constitutional Law of Bangladesh, BILIA
Ahmed, Naim (1999) Public Interest Litigation: Constitutional Issues and Remedies, BLAST
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*The author currently teaching Politics at the North South University, Bangladesh and can be reached at: mohammad.abu@gmail.com
http://www.meghbarta.org/nws/nw_main_p01b.php?issueId=6§ionId=16&articleId=121
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