Precipitating Politics Around The Revival of Prosecutions in Bangladesh

This is part 3 of a three-part series on the Bangladesh International Crimes Tribunal.  Part 1 (overview) and 2 (deep history) are here and here, respectively.

Fast forward to the present day. Prosecuting local collaborators for crimes committed at Liberation emerged as a central campaign pledge of the Awami League and now-Prime Minister Sheikh Hasina Wajed during the 2008 elections when the Awami League “Grand Alliance” emerged triumphant. The law was not invoked until 2010 when authorities arrested four leading politicians from the rival Islamist political party, Jamaat-e-Islami. Jamaat-e-Islami had been banned from political participation following the 1971 war of independence, and its leaders went into exile in Pakistan. The ban was eventually lifted. The party revived, was mainstreamed, and eventually joined in multiparty alliances with, most prominently, the Bangladesh Nationalist Party (BNP). It is now the principal Islamist political party in Bangladesh and a key opponent to the majority Awami League. The most recent general elections were held on January 5, 2014. Jamaat-e-Islami was barred from participating, and the Bangladesh Nationalist Party (BNP) and other opposition parties chose to boycott the elections. As a result, 154 of 300 seats went uncontested, so Awami League candidates won by default. The rise of the Awami League, and the marginalization of any credible political opposition, has cleared the way for the government to launch targeted prosecutions against key political opponents under the 1973 Act.

Once prosecuting political opponents became policy, Parliament amended the 1973 Act several times to make it operational. The legislation, which mostly incorporates the Nuremberg/Tokyo definitions of the crimes and benefited from the assistance of international law experts, was quite forward leaning for its time in terms of substantive law. By today’s sensibilities, however, the legislation is outdated and does not reflect recent developments in the law occasioned by the work of the ad hoc criminal tribunals.

The real concerns, however, relate to a number of procedural infirmities contained in the statute itself and in amendments to the Constitution that deny procedural protections to individuals detained or prosecuted under the 1973 Act. For example, 1973 amendments to the Constitution protect the Act from legal attack. Notably, Article 47(3) states:

(3) Notwithstanding anything contained in this Constitution, no law nor any provision thereof providing for detention, prosecution or punishment of any person, who is a member of any armed or defence or auxiliary forces or who is a prisoner of war, for genocide, crimes against humanity or war crimes and other crimes under international law shall be deemed void or unlawful, or ever to have become void or unlawful, on the ground that such law or provision of any such law is inconsistent with, or repugnant to any of the provisions of this Constitution.

Article 47A also withdrew certain procedural rights from individuals subject to Article 47(3)—including the right to enjoy the protection of the law, the prohibition of ex post facto prosecutions, the right to a speedy and public trial, and the right to challenge the court’s jurisdiction.

The legislation itself invalidates additional rights, including the right against self-incrimination (the statute provides that defendants shall not be excused from answering any question on the ground that the response will incriminate the suspect). Long pre-trial detentions have led the U.N. Working Group on Arbitrary Detention to declare that several defendants hve been subjected to arbitrary detention in violation of international law, notably the ICCPR. In addition, idiosyncratic Rules of Procedure and Evidence govern the Tribunal, so any protections contained in the normal criminal procedure code, including rights of appeal, are inapplicable. For example, the law imposes an obligation on the Appellate Division of the Supreme Court to dispose of any BICT appeal within 60 days—a tall order given that no interlocutory appeals are allowed. In practice, although the accused ostensibly enjoy the right to counsel of their choice, the Bangladesh government and Bar Association have made it virtually impossible for outside counsel to adequately represent their clients by, among other things, restricting their travel to the country and their presence in interrogations. Several trials—including that of Abdul Kalam Azad, the first case to go to verdict—have proceeded in absentia. A U.S. citizen, Ashrafuzzaman Khan, and a U.K. subject, Chowdhury Mueen-Uddin, have also been sentenced to death in absentia for crimes against humanity. Such trials are not, per se, contrary to international law, but defendants must be given a right to a retrial if and when they are apprehended. No defendant in his right mind would appear voluntarily before a tribunal so stacked against him.

Among other retrograde elements, on February 17, 2013, the International Crimes (Tribunals) (Amendment) Act of 2013 amended the law again to allow for the prosecution of “organizations” for their role in the 1971 War of Liberation. (There is some talk that the law may need to be amended anew to enable the prosecution of “parties” in addition to “organizations” if it is to serve its intended purpose). This baldly political move is aimed directly at Jamaat-e-Islami, notwithstanding that its continuity with its liberation-era predecessor is questionable. After the BICT sentenced Abdul Quadar Mollah, the assistant secretary-general of Jamaat-e-Islami, to life imprisonment for crimes against humanity in February 2013, the Act was further amended to allow the prosecution to appeal a sentence or a verdict of acquittal. The amendments were made retroactive. On the prosecutor’s appeal, the Supreme Court converted Mollah’s sentence from life imprisonment to death, a final sentence that does not admit the right of judicial appeal. Despite calls on December 11, 2013, from U.S. Secretary of State John Kerry and United Nations Secretary General Ban Ki Moon to Sheikh Hasina herself, Mollah became the first BICT defendant to be executed. He was hanged on December 12, 2013 after a last minute stay of execution was lifted, on the eve of the upcoming Victory Day celebrations. Indeed, trials and appeals proceeded at a breakneck pace in 2013, apparently in an effort to achieve results in advance of the January 2014 elections.

The BICT has also been mired in corruption allegations. In December 2012, The Economist broke the story, based upon leaked emails and recorded Skype conversations, that a BICT judge had been seeking outside advice on how to rule from the Brussels-based director of the Bangladesh Centre for Genocide Studies, who was also apparently collaborating with the prosecution. The leaked correspondence suggest that the government was pressuring the judges to issue their judgments more quickly. The judge eventually resigned, but the BICT nonetheless responded with threatened contempt of court charges against The Economist’s journalists. Other journalists and media outlets that have been critical of the BICT have also been hit with contempt charges.

Individually, these infirmities are deeply troubling. Collectively, they fundamentally undermine the fairness of the proceedings, especially given that the death penalty is on the table.

The international community initially supported this effort at historical justice, given the longstanding impunity stemming from the war of independence. Human Rights Watch, for example, called the trials an important and long overdue step to achieve justice for victims. The United Nations Development Programme (UNDP) offered assistance, and the European Union passed resolutions supporting the trials. However, this support soon soured when it was clear that the process had been corrupted and was more political than legal.

The United States’ position toward the BICT has been a guarded one. While acknowledging the need to address the atrocities committed during the war, the United States has also called for proceedings to be free, fair, transparent, and consistent with international and domestic due process standards. The United States Ambassador-at-Large for War Crimes Issues, Stephen Rapp (my former boss), has visited Bangladesh five times (most recently in August 2014) in an effort to bring the proceedings better into line with international standards. Before the trials began, he wrote an extensive analysis of the original legislation, which was later leaked to the press, setting forth his concerns and suggestions for improvements. He was later criticized for offering his views, even though they had been solicited by Bangladesh. Some of these suggestions—including the recognition of res judicata and double jeopardy, the right to a fair and public hearing with counsel of the defendant’s choice, placing the burden of proof on the prosecution, and establishing a system of witness protection—were at least partially implemented. Others—having to do with interlocutory appeals, interrogation rights, disclosure obligations on the prosecution, and enabling the participation of foreign lawyers in court—were disregarded. Now that proceedings are fully underway, the prospects of genuine legal reform are dim. The goal now seems to be to keep the defendants alive.

And What of the Birangonas?

The suffering of Bangladesh’s rape victims continues. Indeed, these women were twice made the victim. The first breach of their rights and dignity occurred when they were subjected to mass rape on a staggering scale. Although we will never have accurate numbers, all accounts suggest that tens of thousands of women were systematically kidnapped, raped, and mutilated.  Many did not survive their ordeal.  Those who did suffered a second kind of assault in the aftermath of the war. Rather than being treated with compassion, given medical and psychological assistance, receiving reparations, or getting access to meaningful justice, many survivors were instead silenced, ostracized by their families, and treated as pariahs in their own communities. The only medical services on offer were makeshift abortion clinics staffed by experts who were flown in to conduct late-term abortions. Many “war babies” who were not aborted were put up for international adoption. For many women, the only tangible recognition they received for what they had suffered were the plaques eventually bestowed on them. Although labeled “Birangonas” (war heroines), this supposed honorific turned out to be little more than a cruel hypocrisy. Many survivors continue to live in poverty and shame.

The propaganda value of violence against women has long been recognized. There is now the risk that these women—who for years have been hidden away, ignored, ostracized or worse—will be injured a third time when their legitimate claims for justice will be used to justify a deeply illegitimate process.  They will be trotted out in support of the trials under the illusion that their stories matter. Once the victims have played their part in justifying a flawed process, they will be relegated back to the shadows once again. As criticism mounts about the BICT, Bangladesh’s Birangonas will come to realize that offering them the opportunity to achieve justice for what befell them was never the goal.

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The BICT: Great Expectations Gone Awry

This is part 2 of a 3-part series on the Bangladesh International Crimes Tribunal (BICT).  Part 1 is here.  Part 3, available here, addresses the contemporary proceedings and the expectations of victims.

It was not inevitable that the BICT would backfire.  In fact, its necessity was pressing and its origins honorable. By way of background…

The August 1947 Partition of India produced the Islamic Republic of Pakistan, a nation divided at its birth by more than 2,000 miles of Indian terrain. Governing two far-flung territories—then called West and East Pakistan—with little if anything in common besides a fealty to Islam proved impossible, especially with political and other power initially concentrated in the West. Things came to a head when national elections held in December 1970 resulted in victory for the East Pakistani Awami League, headed by Sheik Mujibur Rahman, deemed the Father of the Nation (and—as is typical of the sub-continent’s dynastic politics—also the father of the current Prime Minister). The government then in place in East Pakistan refused to relinquish power. To suppress the burgeoning Bengali nationalist movement, authorities in West Pakistan launched Operation Searchlight in March 1971 with the secret airlifting of members of the Pakistani Army into East Pakistan, the imposition of a curfew, the blocking of all forms of communication, and the arrest of the Awami League leadership. Working with local collaborators (razakar)—some of whom were affiliated with the anti-independence Jamaat-e-Islami party—Pakistani forces unleashed a campaign of violence that targeted the intelligentsia, civic leaders, students, and Hindu communities. The singling out of Bengali citizens, particularly in the eastern zones, gave rise to charges of genocideone of the first invocations of the term since the promulgation of the Genocide Convention following World War II. An anguished contemporaneous cable from the U.S. embassy entitled “Selective Genocide” admitted that U.S. personnel were rendered “mute and horrified witnesses to a reign of terror by the Pak military” and begged for the ability to confront Pakistan over its actions.

What was supposed to be a quick pacification exercise dragged on for months, with all the attendant harm to the civilian population. Indeed, during the 9-month Operation, the invading army and their collaborators perpetrated a mind-boggling array of atrocities. Notably, Operation Searchlight unleashed one of the largest instances of wartime rape ever recorded: it is estimated that between 200,000-400,000 women and girls were raped as well as subjected to sexual enslavement, mutilation, and forced impregnation. As is typical, there are no firm numbers of those killed either, but estimates range from 300,000 to 2 million. It is known that the Operation generated almost 10 million refugees—sometimes upwards of 50,000 per day—who fled to neighboring India, which opened its borders to provide refuge.

Spurred by this influx of refugees, and the targeting of individuals of the Hindu faith, India eventually intervened on East Pakistan’s behalf in December 1971 under the leadership of Prime Minister Indira Gandhi—a frequently cited example of post-Charter humanitarian intervention, although India relied on a self-defense rationale as well. Fighting alongside East Pakistani “freedom fighters” (mukti bahini), the Indian Army helped to defeat the Pakistani troops after less than two weeks of fighting (one of the shortest international armed conflicts on record). The occupation army surrendered on December 16, 1971, now known in Bangladesh as “Victory Day.” This left upwards of 100,000 prisoners of war—the most since World War II—in Indian custody. India detained 195 who were deemed the most responsible for the atrocities; the rest were repatriated at the end of the war.

With an eye toward prosecuting those who had aided and abetted the Pakistani forces, the Bangladesh Collaborators (Special Tribunals) Order came into force in 1972 by Presidential Decree. The next year, the Parliament promulgated the International Crimes (Tribunals) Act (the 1973 Act) “to provide for the detention, prosecution and punishment of persons for genocide, crimes against humanity, war crimes and other crimes under international law.” Sheikh Rahman, the primary political force behind the independence movement, quite presciently contemplated local prosecutions of East Pakistani citizens and an international tribunal to prosecute POWs. By Presidential Order No. 16 in February 1973 (the Bangladesh National Liberation Struggle (Indemnity) Order), however, the liberating forces were given immunity from prosecution. In November 1973, the government declared a general pardon and amnesty that applied to low-level offenders, but not to individuals accused of rape, murder or genocide.

Meanwhile, Pakistan instituted suit against India before the International Court of Justice over the fate of its 195 citizens, arguing that it enjoyed exclusive jurisdiction for crimes committed on the territory of then-Pakistan by virtue of Article 6 of the Genocide Convention. (That provision obliges states parties to exercise territorial jurisdiction over genocide, but does not preclude resort to other bases of jurisdiction). Pakistan also held thousands of Bengalis resident in West Pakistan hostage in retaliation for the threat to prosecute the POWs.

On April 9, 1974, India, Bangladesh, and Pakistan entered into a tripartite agreement for the normalization of relations on the sub-continent. The agreement ensured the recognition of Bangladesh, enabled a massive three-way repatriation of civilians, and embodied a decision to forgo trials in a spirit of clemency, reconciliation, and forgiveness. The ICJ case, which had been postponed several times in order to enable the parties to undertake negotiations, was dropped as part of the comprehensive settlement between the two nations. Eventually, the 195 POWs were returned to Pakistan following its assurances that they would be prosecuted at home.

For its part, Pakistan constituted the Hamoodur Rahman Commission, which was mandated to undertake “a full and complete account of the circumstances surrounding the atrocities and the 1971 war.” Although it dramatically downplayed the prevailing statistics on rape and murder, the final report was critical of the Pakistani military and was not published. Indeed, apparently 11 of the 12 copies were destroyed. The surviving copy was eventually leaked to the press and then fully declassified in 2000. In the end, no one in Pakistan was held accountable for the atrocities in East Pakistan in any meaningful way.

A number of cases went forward in Bangladesh under the 1972 Presidential Order. Many convictions were ultimately pardoned, however. In 1975, Sheikh Rahman was assassinated, which scuttled these efforts. Later that year, the 1972 legislation, but not the 1973 Act, was repealed. It was thus left to Rahman’s daughter—Prime Minister Sheikh Hasina Wajed—to complete this aspect of her father’s legacy.

Part 3 of this series will fast forward to the present time.

The Bangladesh International Crimes Tribunal (BICT): Complementarity Gone Bad

International courts cannot handle all possible international crimes prosecutions; as such, it is incumbent upon national systems to carry much of the burden. Indeed, the International Criminal Court is expressly complementary; it will assert jurisdiction only when there is no domestic court that is willing or able to bring charges. Although the ad hoc criminal tribunals enjoyed primacy over domestic systems due to their Security Council provenance, the relationship is still a partnership, as evidenced by the high degree of information sharing between the tribunals and their domestic counterparts, the provision of technical assistance and training to local actors, and the ICTY’s Rules-of-the-Road project. Rule 11bis was added to the Rules of Procedure and Evidence to enable the ad hoc tribunals to refer low-level cases to a domestic system with jurisdiction as part of the tribunals’ Security Council-mandated Completion Strategies. Putting to the side the imperatives of capacity, efficiency and cost-effectiveness, many experts express a preference for local justice for more deontological reasons. The theory is that judicial processes convened closer to the events in question will enjoy greater legitimacy within impacted regions, help instantiate the rule of law, and enable more meaningful access and participation for victims and witnesses.

Efforts at local justice can backfire, of course, as exemplified by the work of the Bangladesh International Crimes Tribunal (BICT). The BICT is a purely domestic effort proceeding under a 1973 statute defining international crimes within Bangladeshi law. Tracing its roots to the War of Liberation that gave rise to modern-day Bangladesh, the BICT is dedicated to prosecuting alleged collaborators of the Pakistani Army (then West Pakistan) for atrocities committed when East Pakistan (now Bangladesh) sought to secede in March 1971. These events cry out for justice; however, the fundamentally unfair proceedings underway before the BICT pervert the values and goals of transitional justice, insult the victims who deserve a more legitimate accountability process, and threaten to leave a lasting stain on both the Bangladeshi legal system and the system of international justice writ large. Many of the defendants may in fact be guilty of the crimes of which they are charged. But because the proceedings are so profoundly unfair, and the defendants are subject to the death penalty, we will never know for certain. Once hailed as a courageous and important exercise in historical justice, the BICT has become an object lesson for how international criminal law can be manipulated for political ends.

The BICT has drawn sharp criticism for a whole host of reasons, not the least of which is that its proceedings are entirely one-sided. So far, indictments have been leveled against eleven defendants representing the senior leadership of two opposition political parties (nine from Jamaat-e-Islami and two from the Bangladesh Nationalist Party (BNP))—both rivals of the ascendant Awami League. Not a single so-called freedom fighter (mukti bahani) or Pakistani national has been prosecuted, suggesting that the BICT is just a tool within a byzantine political vendetta rather than a genuine, and long-overdue, effort at historical justice. Although Bangladesh has ratified the International Covenant on Civil and Political Rights (in 2000), and was the first, and one of the few, Asian nations to ratify the ICC Statute (on March 23, 2010), many aspects of proceedings run afoul of the litany of procedural protections owed to criminal defendants under human rights law, most notably Article 14 of the ICCPR. Some of this unfairness can be traced to the very genetic code of the BICT’s legal framework; the rest has is attributable to the practice of the tribunal.

Due in part to their perceived unfairness and one-sidedness, the trials have become a dangerously polarizing force in Bangladesh. The verdicts have prompted mass demonstrations, street violence, and destructive hartals (strikes), which have brought Dhaka to a veritable standstill, destroyed public and private party, and led to the deaths of dozens of protesters at the hands of the Bangladeshi security forces. The imposition of the death penalty brings supporters of Jamaat-e-Islami to the streets; a mere life sentence, by contrast, infuriates backers of the Awami League and prompts competing protests and petition drives calling for the application of the death penalty. Many observers breathed a sigh of relief when the Supreme Court on September 17, 2014, commuted the sentence from death to life imprisonment of a leading Islamist politician and cleric, Delwar Hossain Sayedee. Nonetheless, the move sparked street protests, expressions of disappointment from members of the government, and calls for the Constitution to be amended yet again to remove the possibility of pardon. This trial was marked by heightened controversy, particularly when a key defense witness (who had originally agreed to testify for the prosecution) was kidnapped on the courtroom steps by plain-clothed agents as he arrived to testify. (He was later forcibly transported to India where he was promptly arrested for immigration violations). The independence of the judiciary—such as it was—is even more in jeopardy since the 16th Amendment to the Constitution—finalized on September 22, 2014—will empower Parliament to impeach Supreme Court judges for “incapability and misconduct.”

Notwithstanding these defects, the proceedings are popular among a number of victim groups, who have been denied any meaningful justice since the War of Liberation. In particular, the trials have given voice to the so-called Birangonas (“war heroines”), who are on record demanding the mass application of the death penalty—and worse—to BICT defendants. The Birangonas suffered unimaginably during the War of Liberation, and they deserve their day in court. They also deserve a legitimate, fair, and impartial judicial process that will stand the test of time, rather than the facsimile of justice being peddled by the BICT: justice in the service of politics and the demands of the street.

In August, I participated in a session at the San Francisco Bar Association (video here) on the BICT with Toby Cadman, a British barrister doing a yeoman’s job of representing defendants before the BICT. The remainder of this series of posts will provide a backgrounder on the BICT proceedings and the substance of our remarks.  Part 2 provides a deep history of the BICT; Part 3 addresses the BICT’s procedural infirmities.  The BICT can be followed more closely here and here. The best academic treatment of the BICT’s history and jurisdiction is by Suzannah Linton of Bangor University.

The Bay of Bengal Maritime Arbitration Case: Part II

Delimitation of EEZ and Continental Shelf

In order to delimit the areas beyond the territorial sea, the Tribunal first determined the relevant coastlines of the Parties and subsequently the relevant area. Its task was “…to identify the coast that generate(s) projections which overlap with the projection from the coast of the other Party.” The Tribunal found that India’s relevant coastline stretched further south west to Sandy Point as opposed to Devi Point as India had claimed. It also found that the projections from the northern tip of the Andaman Islands (India) qualified for the identification of the relevant area. It delimited the relevant area accordingly.

In his dissenting opinion, Dr. P.S. Rao, criticized the identification of the coastline stretching to Sandy Point and the relevant area, by pointing out that the international jurisprudence demands that the construction of the relevant area be “… as strict as possible to denote the disputed area as closely as possible…”. He also disagreed on identification of projections from the Andaman Islands, as its coastal front is neither opposite nor adjacent to the coast of Bangladesh.

Preference was given to the Equidistance/Special Circumstance method for delimitation of delimitation of the EEZ and continental shelf within 200nm, over the angle bisector method proposed by Bangladesh, for the reasons of transparency and the fact that Bangladesh’s arguments for angle bisector line weren’t found to be convincing. The Tribunal reasoned that the instability of Bangladesh’s coast doesn’t render it special circumstance as it was possible to identify the base points, nor can future possibility of climate change be taken to adjust provisional equidistance line.

Delimitation of Continental Shelf Beyond 200NM

The Parties and the Tribunal both agreed on the point that there is a single continental shelf , and that there is no difference between the continental shelf within 200nm and the so called ‘outer continental shelf’. The Tribunal recognizing that both the Parties have entitlements in continental shelf beyond 200 nm, decided to delimit the continental shelf beyond 200nm using the equidistance/relevant circumstances method as it has used for delimiting the shelf within 200nm.

The Tribunal accepted Bangaldesh’s argument that the concavity of Bangladesh’s coast indeed produces cut off effect. It ruled that the provisional equidistant line was not equitable as it prevents Bangladesh from extending its maritime boundary as far as International Law permits, thus defeating the principle of equitable use of the sea area. Thereby rendering it a special circumstance, the Tribunal proposed adjustment of the equidistant line within and beyond 200nm.

The final adjustment of the equidistant line gave out more area to Bangladesh. This adjustment was criticized by Dr. P.S. Rao, as in his opinion the Delimitation Point from which the adjustment was affected was well before the point where a significant cut off occurs. This adjustment is not sufficiently justified. Also, the fact that the adjusted line concurs with the bisector line proposed by Bangladesh is arbitrary and run against the majority’s own rejection of the bisector line. Continue reading

The Bay of Bengal Maritime Arbitration Case: Part I

Introduction

On 7 July 2014, the Permanent Court of Arbitration, the Hague, passed the award in the Indo-Bangladesh Maritime Arbitration Case (The Bay of Bengal Maritime Boundary Arbitration). The case was initiated by Bangladesh against India in October 2009, pursuant to Art. 287 of the UNCLOS, after 11 rounds of negotiations between the parties over five decades proved to be indecisive, and often marred by local politics. Following pages give a summary of various issues and facts considered by the tribunal to reach the final award.

The Tribunal was composed of: Judge Rudiger Wolfrum (President), Judge Jean-Pierre Cot, Judge Thomas A. Mensah, Dr. P.S. Rao, and Prof. Ivan Shearer. Dr. P.S. Rao reserved a concurring and dissenting opinion.

Background

The Indian Independence Act, 1947 of the United Kingdom, partitioned from India the state of West Pakistan and East Pakistan. East Pakistan was carved out of the Bengal Province, with West Bengal remaining in India. In order to demarcate the boundary between East Pakistan and West Bengal, the Bengal Boundary Commission was set up in 1947 chaired by Sir Cyril Radcliffe. On 13 August 1947, the report was submitted describing the boundary, and is known as “Radcliffe Award.”

Thereafter, in the light of disputes on the application of Radcliffe Award, an Indo-Pakistan Boundary Disputes Tribunal was set up, known as Bagge Tribunal. The Award of this Tribunal dealt with segments not relevant to this case.

On 26 March 1971, Bangladesh declared Independence from Pakistan and succeeded to the territory of East Pakistan and its boundaries.

The boundary between India and Bangladesh runs across the Sunderban Delta region. The southern section of the land boundary lies in the riverine features, which fall in the Bay of Bengal. This delimitation exercise involves delimiting the boundary river, identifying the terminal point of the land boundary, to delimit the territorial sea, the EEZ, the continental shelf within and beyond 200nm.

Jurisdiction

The Parties were deemed to have accepted arbitration in accordance with Annex VII since there was no declaration made by either party under Art. 287(3) (Choice of Procedure), nor had any party made a declaration under Art. 298, thereby, not excluding the current dispute from compulsory dispute resolution mechanism entailing binding procedure. The Tribunal assumed the jurisdiction to ‘… adjudicate the present case, to identify land boundary terminus and   to delimit the territorial sea, the Exclusive Economic Zone and the continental shelf between the parties within and beyond 200nm in the areas where the claims of the parties overlap. Continue reading

What do Bangladesh and Snowden Have in Common?

The country of Bangladesh and US fugitive Edward Snowden are both at the center of questions over the future of two U.S. trade preferential programs — the Generalized System of Preferences (GSP), and the Andean Trade Preference Act (ATPA) programs.

GSP is a program that allows about 5,000 products from about 127 developing countries to enter the United States on a duty-free basis. GSP duty-free access benefits exporters from developing countries as it helps them to be competitive in the U.S. market. US importers also rely on the program for access to lower-priced consumer goods and manufacturing inputs. Developed countries, like the United States, extend GSP unilaterally to beneficiary countries; it is not the result of a negotiated agreement.

In the United States, the program is authorized by legislation. The US President also has the authority to remove previously eligible countries that fail to meet the specified requirements.

On June 27th, President Obama announced the suspension of Bangladesh from the program. Though under review for some time, the timing of the decision is a direct result of the death and injury in April (2013) of hundreds of garment workers as a result of poor working conditions.

Bangladesh garment factory (Courtesy of Wikipedia Commons)

Bangladesh garment factory (Courtesy of Wikipedia Commons)

Sadly, it is difficult to see how the lot of the workers has been improved by this decision. The garment industry is notoriously fickle. Companies have moved operations all around the world in search of the cheapest inputs and of countries whose products are allowed duty-free access back to their home markets. Complete loss of GSP access to the US market for products from Bangladesh is likely to result in loss of jobs for Bangladesh workers. We can only hope that the suspension will spur the government and private companies to move at warp speed to improve working conditions.

On the same day, President Correa of Ecuador, who is reviewing an application for asylum by Edward Snowden, announced his intention to refuse the benefits that Ecuador receives under the ATPA. Ecuadorean government officials have accused the United States Government of using the program to blackmail the country for its willingness to review Snowden’s asylum request. Ecuadoran products are also eligible for unilateral duty-free entry under the GSP program. The Obama Administration is also said to be considering expelling Ecuador from GSP. The US Government has been known to wield threats of denying access to GSP and other preferential programs by countries with whose actions they disagree. Ecuador apparently has decided to act first. Meanwhile, however, this leaves Ecuadorean exporters wishing to access the US market at a disadvantage.

Profile of Ecuador's exports (Courtesy of Wikipedia Commons)

Profile of Ecuador’s exports (Courtesy of Wikipedia Commons)

It is also worth noting that both the GSP and ATPA programs are set to expire on July 31, 2013. This won’t be the first time. The programs periodically expire and are then renewed again. Unfortunately, these periods of expiration seriously inconvenience and harm the companies that rely on the programs. President Correa’s actions increase the likelihood that the ATPA may not be renewed any time soon, if at all. Trade programs, like GSP and ATPA, that provide a lifeline for many small exporters in developing countries, should not be held hostage to politics.