VOL 18 NO 101 REGD NO DA 1589 | Dhaka, Wednesday August 25 2010

Impact of international treaties on national laws

M S Siddiqui

The lawmakers have sometimes to take into consideration global standard and
requirements while they amend the existing laws and enact new laws. There are many
treaties and resolutions of the United Nations (UN) and conventions which have impact
on domestic legal system. There may be suggestions and recommendations from donor
countries and agencies to amend certain laws and enact some new laws. Aid and loans of
donors are sometimes conditional on reforming national laws.

Bangladesh was under pressure from donor agencies and countries to reform the Anti-
corruption Commission, implement the Ombudsman and the Right to Information acts
etc. They had specific recommendations for the Public Procurement Act, 2006 and the
Public Procurement Rule 2008. There was a reaction from the donors when the
government recently moved to relax the procurement rules. They expressed their
reservation when the government wanted to change the rules of the Anti-corruption
Commission regarding the conduct of investigation against government officials.

There is a direct impact of the World Trade Organization (WTO) on commercial rules
and regulations and Bangladesh can hardly ignore the decisions of the WTO. All the
countries are in the process of amending their own rules of international trade, tax
structures and even protection rule of domestic industries are subject to WTO rules. The
Trademark Act 1940 of Bangladesh is outdated and virtually ineffective. Bangladesh is
committed to amend the Act as per the Agreement on Trade-Related Aspects of
Intellectual Property Rights (TRIPS).

The High Court Division of the Supreme Court in the case, Professor Nurul Islam v
Government of Bangladesh 52 (2000) DLR (HCD) 413, clarified the interpretation of
constitutionally guaranteed right to life and heavily relied on the resolution of the World
Health Organization (WHO) on the issue of health hazards of the consumption of
tobacco. The court reminded the government of its constitutional obligations under
Article 25 to respect principles and norms ofinternational law contained in the United
Nations Charter and in the instruments of its allied organizations such as the WHO.

All over the world, national statutes protect Intellectual Property rights irrespective of
national identity and beyond geographical boundaries. The rights include Industrial
Property and Copyright. Industrial Property includes inventions (patents), trademarks,
industrial designs, and geographical indications of source; and Copyright includes literary
and artistic works such as novels, poems and plays, films, musical works, artistic works
such as drawings, paintings, photographs and sculptures, and architectural designs. The
Patents and Designs Act-1911, the Trademarks Act-2009 and the Copyright Act-2000
(amended in 2005) are identical and in conformity with the laws of any other country and
there is a regular process to update the laws in line with the TRIPS agreement.

WTO members have obligation to give protection to plant varieties, either by patents or
by an effective sui generis system, or by any combination thereof. This has important
implications for the development of the agricultural economies and trade of the
developing countries. Any nation may lose right on its own local variety. For example,
there are some varieties of rice developed by someone locally. If Bangladesh does not
register these varieties of rice with appropriate authorities in time, other countries may
take the opportunity to patent those. Bangladesh has already lost the right of NEEM tree
to India since they have registered the product as their own with TRIPs authority before
Bangladesh thought of such a move.

Some laws like Foreign Investment Protection Act, Anti-Terrorism Act or Anti-Money
Laundering Act are passed as per suggestions of the UN and some countries. Anti-Money
Laundering Act may need amendment to match with laws of other countries and prevent
global terrorist finance. The competition act is under active consideration of the
Bangladesh government. Bangladesh cannot ban prostitution as a signatory of the
Convention on the Elimination of All Forms of Discrimination Against Women
(CEDAW), 1979. The Election Commission has approved the profession of 'sex workers'
fornational and voters' ID cards.

There are a number of treaties, conventions and charters which have impact on national
laws of any country. Some of those are: Charter of the United Nations and Statute of the
International Court of Justice, 1945, Universal Declaration of Human Rights (UDHR),
1948, Convention on the Elimination of All Forms of Racial Discrimination (CERD),
1965,International Convention on the Elimination of Racial Discrimination, 1966,
International Covenant on Civil and Political Rights (ICCPR), 1966, International
Covenant on Economic, Social & Cultural Rights (ICESCR), 1966, Convention
concerning Discrimination in Respect of Employment and Occupation (CDEO),
Convention on the Elimination of All Forms of Discrimination Against Women
(CEDAW), 1979, Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment (CAT), 1984, Convention on the Rights of the Child (CROC or
UNCROC), 1989 and International Labour Organization (ILO) Conventions. Moreover,
the governments are obliged to regularly report to the next convention/meeting regarding
implementation of the commitments and also amendment of laws as per the treaties,
conventions and charters.

Apart from international treaties there are some other sources of laws like international
customs, general legal principles, decisions of international institutions, judicial and
arbitral rulings. Countries very often sign treaties on trade, economic co-operation,
personal status, settlement of disputes by arbitration or legal proceedings.

The impact of international law in the national legal system depends on the source of the
international law in question -- whether it is a treaty, customary international law or a
general principle of law, or it derives from the decision of an international organization.

There are a host of international laws such as in areas of human rights, environment, drug
trafficking and prevention of organized crime which cannot be implemented unless
national laws exist to enforce these. In view of the close relationship, it is argued that the
national and international laws are complementary to each other. Both are necessary and
one cannot do without the other on issues that affect all countries. For example, torture, a
crime of universal jurisdiction under international law, cannot be enforced within a state
unless domestic laws are enacted to punish the offender or prevent it. Otherwise, the
prohibition of torture under international law will remain a moral concept.

There are agencies like UN, OECD which have 'standard draft' laws for countries and
particularly for developing countries. They advise client countries to follow their drafts to
keep the laws identical and complementary to each other.

In Bangladesh, courts are inclined to follow both the US and British practice depending
on situations and circumstances. It is well established that provisions of a treaty do not
automatically apply in the country unless enabling national laws are passed. For example,
the granting of immunity to World Bank can only be provided by a law passed by
parliament and Bangladesh has passed an immunity act for donors and financial
institutions.

The above principle has its foundation in the doctrine of separation of powers, enshrined
in the Bangladesh Constitution. It sets out the powers of the legislature, the executive and
the judiciary. The powers are not unlimited. Legislation can be scrutinised in the courts if
they exercise law making authority beyond the limit granted by the constitution.
Executive acts can also be challenged in the courts if they contravene laws or the
Constitution. The judiciary is to apply the laws as they are and keep a watch on the
executive and legislature.

Although the executive is empowered to sign a treaty or a convention, it cannot be

implemented unless national laws are enacted to enforce the provisions of the treaty or
convention. Therefore, parliament has a final say as to whether the treaty or convention is
to be implemented in the country.

However, there is one exception. Customary international laws do not require legislation
because Bangladesh, a member of the international community, must enforce customary
international laws that have been developed with the common consent of nations. For
example, diplomatic immunities and privileges were accorded to diplomats stationed in
Bangladesh long before the 1961 Vienna Convention on Diplomatic Relations came into
force.
In some countries like Luxembourg and the Netherlands, international treaties are of
constitutional status, but with many provisos. Other systems place treaties above
legislation but under the national constitutions, e.g. Bulgaria, France, Germany, Greece,
and Portugal, while some other states separate out human rights treaties for enhanced
status (the Czech Republic, Russia, Slovakia, Venezuela). In most of the countries which
follow the parliamentary system, like the United Kingdom, treaties are considered as part
of domestic laws if an act of the parliament has been passed.

In contrast to the position in the UK-type parliamentary system, the constitutional

framework in the United States allows for treaties to become part of domestic laws
without being transformed through legislation. The US constitution provides for treaties
to which the US is a party to become the law of the land.

In the US, the courts consider international law a part of the law of the land. In any event,
approval by the legislative branch has increasingly become a precondition for the internal
effect of treaties, as there has been a gradual extension of the categories of treaties subject
to such approval.

Some of the countries like Finland and Australia recognise the treaty's status as superior
or equal to the constitution, provided that it has been approved by parliament by a big
majority. Finally, particular treaties of the utmost importance, such as those establishing
the European Community, sometimes occupy a position within the countries which is
often superior to that of certain provisions of the constitution.

This state of affairs is made even clearer and more significant by the existence of more
select international legal systems, such as that of the European Community. The
particularity of international law is that it is legally binding on all EU countries, but
leaves to them the task of application within their domestic systems. They are therefore
not required -- at least formally -- to recognise its pre-eminence in relation to national
law, but they must conform to it fully, in the manner they themselves decide.

The countries must implement parts of treaties in national laws to ensure they can meet
their treaty obligations. It is a matter for countries to determine how to implement a treaty
and the failure to implement it may raise disputes with other countries.

There is a close relationship between domestic and international laws. In an inter-

connected world, one set of laws cannot fully satisfy the obligations of a state.
International laws and customary international laws will have to be enforced in domestic
situations by states, if necessary, through the enactment of relevant domestic laws. It is a
part of the requirement of each state to implement them as one of the obligations for a
responsible member of the international community. There is, however, no international
judiciary or administrative authority to enforce the international laws.

The Vienna Convention on the Law of Treaties, 1969 defines the term 'treaty' for the
purposes of the convention to mean a written international agreement between states
governed by international law. Accordingly, an international court or tribunal called on to
interpret a treaty will apply the relevant principles of international law and not the
domestic laws of the states which are parties to the treaty. The second point is that states
must ensure their domestic laws permit them to meet their treaty obligations. The
members have to notify the TRIPS Council about their relevant laws and regulations
under the Vienna Convention on the Law of Treaties. This helps the Council in reviewing
the agreement's operation.

If a conflict between an international treaty and a domestic law arises, Bangladesh must
amend the law as expeditiously as possible in order to bring it into line with the
international obligation. In addition, it should ensure that all national legislations,
including statutes and administrative measures, are compatible with international
customary laws and general legal principles. There is no choice in the era of
globalisation.

The writer is Part-Time Teacher, Leading University. He can be reached at e-mail :

shah@banglachemical.com