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.
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.’
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.
BY : M. Shahidul Islam.