PROCLAMATION OF BANGLADESH INDEPENDENCE: IMPLICATIONS FOR INTERNATIONAL LAW
SM MASUM BILLAH
On 10 April 1971, the Mujibnagar government (Bangladesh government-in-exile during 1971 liberation war) adopted the Proclamation of Bangladesh Independence. The people of Bangladesh wanted to become the master of their own destiny. Therefore, they expressed their collective oneness of mind through the Proclamation. Formally read out in the Constituent Assembly (the elected representatives duly constituted themselves into a Constituent Assembly) at Mujibnagar on 17 April 1971, the Proclamation endorsed Bangabandhu’s declaration of independence made on 26 March 1971 on the face of Pakistan government’s military crackdown. As such, the lawmakers gave a retrospective effect of the Proclamation from 26 March 1971. The Proclamation established a de jure government of Bangladesh to take care of Bangladesh’s immediate needs. It attained a constitutional sanctity and introduced the new country to the world as “The People’s Republic of Bangladesh”.
The Proclamation bears significance for many reasons. It not only carries historical implications but also addresses the legitimacy question of Bangladesh’s birth. In the post-1971 era, it helped shaping Bangladesh’s constitutional jurisprudence. However, the document receives less credit than it deserves from the viewpoint of international law. Here, I will examine some aspects of the Proclamation bearing the significance for international law. This will help understanding this glowing document afresh. This article will bring to light Bangladesh’s contribution to the development of international law relating to declaration of independence, right to self-determination and state recognition.
Bangladesh’s Proclamation of Independence was unilateral in nature. A declaration of independence without the consent of the parent state is known as unilateral declaration of independence (UDI). The legality of the UDIs is a contentious issue under international law. Each nation wants to protect its territorial integrity.
The approach of international law in the 1960s on the secession issue was very rigid. The failure of the UDI of the Baifran Republic 1967 (against Nigeria) and South Rhodesia 1965 (against the UK) is a testimony to this. As such, legal responses to Bangladesh’s UDI were mixed and misleading. However, the uniqueness of the Bangladesh context was widely accepted in the legal arena. The UN and the international community viewed the violence and repression employed by Pakistan’s army as an irreversible roadblock to reunification.
The Bangladesh practice was perhaps favorable for Kosovo’s secession from Serbia. In 2008, the question of UDI’s validity came before the International Court of Justice (ICJ) in the Kosovo Advisory Opinion. The General Assembly asked the ICJ to render its opinion about the validity of Kosovo’s declaration of independence against Serbia. The Court in its opinion said that Kosovo did not violate international law by declaring independence. In addressing the issue, the Court had to examine whether the proper authority of the provisional government of Kosovo made the declaration. The Court emphasized about the authority of the person declaring the independence.Professor Rafiqul Islam showed why Bangladesh case needs to be treated differently from the Baifran and South Rhodesian experience (Islam, IJIL, New Delhi, 1983). According to Professor Islam UDI is not illegal by itself. Moreover, the success of the Bangladesh revolution was a parameter of its validity. The ‘success’ hypothesis seemed to govern the law of UDI for a long time.
By analogy, the Bangladesh Proclamation satisfied this test. For it was proclaimed by the ‘undisputed leader of 7 million people of Bangladesh’ and endorsed by the government constituted of people’s elected representatives. Moreover, the Proclamation furnished at least four justifications for the UDI: i) the occurrence of international crimes (war of aggression, genocide, etc.) by the Pakistani military; ii) legal personality of Bangladesh under international law; iii) legitimacy of the authority to take responsibility on behalf of the people in conducting the war and iv) Bangladesh’s willingness to comply with the UN obligations.
Thus, had it been judicially challenged by Pakistan, the Bangladesh UDI would have satisfied the tests of validity. What the ICJ found in 2008 Kosovo Opinion, was practiced by Bangladesh in 1971. The Bangladesh Proclamation, in this way, was a trend setter for the study of UDI law, where a new member of the family of the nations after duly declaring its independence promised to the international community that they will obey the principles of the UN Charter. This was a stand which Bangladesh later adopted in Preamble of its Constitution: “we may prosper in freedom and make our full contribution towards international peace and co-operation in keeping with the progressive aspirations of mankind.”
The Proclamation was an advanced national document promoting the idea of self-determination. It was a signal to arouse the people of Bangladesh ‘to assume the blessings and security of self-government’. The 1966 leading international human rights treaties (the ICCPR and ICESCR) recognized the right to self-determination of all ‘peoples’ (common Article 1). Following these, the Bangladesh Proclamation tested this right for the first time.
However, Bangladesh’s claim of self-determination was questioned by international lawyers. There were mainly two objections: i) the Bengalese did not fulfil the criteria of being a ‘people’ in the eye of international law and ii) Bangladesh was not in a ‘colonial’ situation so as to justify its claim of self-determination.
It was claimed that the law of self-determination was only applicable for the people under a colonial setting. The Proclamation responded to these objections by highlighting the compelling reasons for Bangladesh’s claim to ‘freely determine its political status’ and ‘pursue its economic, social and cultural development’.
Subrata Roy Chowdhury’s book titled The Genesis of Bangladesh examined Bangladesh’s right to self-determination from international law perspective. Chowdhury showed how Bangladesh fulfilled the ‘colonial status’ criteria under Pakistani regime and how the distinctive ethnicity of the Bengalese constituted a ‘people’ under international law. Chowdhury’s work enriched international law of self-determination and created international legal opinion in favor of Bangladesh’s nationhood. Chowdhury’s work also appeared as a response to the International Commission of Jurists’ report of 1972 which gave a sceptical view about Bangladesh’s right to self-determination (see, The Events in East Pakistan 1971: A Legal Study, Geneva: ICJ, 1972). Michael Riesman substantially agreed with Chowdhury’s argument in 1974 (American Society of International Law, 1974). Eyal Benvenisti termed Bangladesh’s right to self-determination as ‘genuine and widely accepted’ in his 2012 book on International Law of Occupation. Even then, very few works have been accomplished dealing solely with the question of Bangladesh’s self-determination after Chowdhury. This could have contributed to the law of self-determination in line with a new understanding.
On 17 April 1971, at the formal reading out ceremony of the Proclamation, Tajuddin Ahmed, the first Prime Minister of Bangladesh, appealed to the nations of the world for recognition and assistance, both material and moral, in the Bengalese’ struggle for freedom. He said: “every day this is delayed, a thousand lives are lost and most of Bangladesh’s vital assets are destroyed.” Ahmed’s concern appeared true and Bangladesh had to pay the toll for the international community’s hesitation to accord recognition to Bangladesh. It can be rightly argued that the Proclamation helped shaping the international community’s approach to the recognition of Bangladesh.Another implication of the Proclamation is linked with the issue of state recognition. One of the prerequisites of statehood under international law is to form a government having control over its defined territory and population. Keeping this end in view, the Proclamation established a government consisted of the elected representatives of the Bengali people. It asserted the people’s right to have a ‘just government’ implicitly mentioned in the preamble of the Universal Declaration of Human Rights.
India’s approach, for example, is of particular relevance. India accorded formal recognition to Bangladesh on 6 December 1971. However, in the eye of international law, India’s conduct towards Bangladesh during 25 March 1971 – 6 December 1971 can be interpreted as de facto recognition. Indira Gandhi, the Indian Prime Minister at the time, took a strategic approach in according recognition to Bangladesh. She explained her government’s stand on the issue in a parliament speech on 6 December 1971. Following aspects of law of recognition can be deduced from her speech:
(a) She applied the effectiveness test of government in considering the question of recognition. The test suggests a situation where no man would say that there was a reasonable hope for the parent state to recover its jurisdiction over the territory. With the unanimous revolt of the entire people of Bangladesh it was increasingly apparent that Pakistan was totally incapable of bringing the people of Bangladesh back under its control. In addition, it also became apparent that Mujibnagar Government had effective control over the population of Bangladesh;
(b) She invoked the Jeffersonian norms of recognition—‘will of the nation substantially declared’. The Mujibnagar government was represented by the overwhelmingly majority of the people denoting its legitimacy. By applying the Jeffersonian norms, Mrs. Gandhi established the non-representative character of the Pakistani military government on the one hand and reminded America and the rest of the world about America’s past glory of Jeffersonian democracy;
(c) She justified her decision to recognize Bangladesh as an aspect of humanitarian intervention. After 3 December 1971, Pakistan waged war against India. Following this event, India felt at par with the cause of Bangladesh, as because India was prompted to fight against Pakistani aggression and Bangladesh had been fighting for its independence against the same authority. Therefore, ‘normal hesitation’ in granting recognition which might come in the way of a peaceful solution or which might have been construed as India’s ‘intervention’ lost its significance.Thus, on the question of recognition of Bangladesh, India took a balancing approach refining the contemporary international law of recognition. It made a reconciliation of traditional theories of recognition and the principle of self-determination.
This approach was also a balance between ‘territorial integrity’ and ‘equal rights and self-determination’ concept enunciated in the UN Charter [Articles 2 (4) and 1(2)] reflected in the Bangladesh Proclamation. The approach was in the line with Professor Ian Brownlie’s stand that he took in the 1950s:
The principle of self-determination will today be set against the concept of effective government, more particularly when the latter is used in arguments for continuation of colonial rule. The relevant question may now be: in whose interest and for what legal purpose is government effective?
Indian balancing approach of recognition to Bangladesh made a strong appeal to the international forums. The approach was later widely practiced by many countries to recognize new states, in spite of the fact that political consideration and self-interest principle always govern the international law of recognition. Following India’s decision, as of 29 February 1972, thirty one countries recognized Bangladesh as a sovereign independent state. The number increased to eighty six when Bangladesh was granted the UN membership in 1974.
Richard Kiwanuka’s (1988) view on the issue seems to be under-researched. He writes: “international recognition for Bangladesh occurred because of a set of circumstances that lent a cloak of legitimacy to what would otherwise be impermissible in international law.” James Crawford’s contention (2006) that Pakistan’s recognition was a prerequisite for Bangladesh’s admission to the United Nations also rests on a partial view.
The Proclamation of Independence, Prime Minister Tajuddin’s 17th April statement and India’s approach taken together dispels these misleading views. In fact, the law of statehood took a fine shape through the Bangladesh Proclamation which remained largely unrecognized.
The discussion suggests that the Bangladesh Proclamation of Independence is an instrument ‘pregnant with the fate’ of the Bengalese. It is the Bengali nation’s legal heritage that contributed to the ‘progressive aspirations of mankind’. Its international study can bring to light new implications for the law of UDI, self-determination and statehood. Unfortunately, the Proclamation remained under ‘monkish ignorance’ and ‘superstition’ at both national and international level. Most international law literature relating to Bangladesh’s independence discuss the issues without properly referring to the Proclamation. However, the failure lies primarily with Bangladesh’s part.
Firstly, the original Proclamation is reported to be lost though copies are available in print and online. Perhaps Bangladesh could not highlight the Proclamation in the United Nations General Assembly Session when for the first time Bangabandhu made his address to the world community. Moreover, soon after attaining the UN membership, Bangladesh lost a chance to archive this historical document in the UN documentation library. In this regard, our diplomats might have failed.
Secondly, undue political debate compromises the sanctity of the Proclamation. Recently, the text of the Proclamation has been annexed to the Bangladesh Constitution. But its study from the viewpoint of international law, as mentioned at the outset, remained unreasonably limited.
The Bangladesh Government should make every effort to recover the original copy of the Proclamation because Bangladesh has a perspective of international law. A wider legal scholarship of the Proclamation of Bangladesh Independence can be a starting point to fashion this perspective.
The author is thankful to Professor Mizanur Rahman and the DHLR Editorial Team for their comments and suggestions on an earlier draft of this article.
APRIL 17, 2016