Judicial Review of Treaty-Making

The Bangladesh-United States Agreement on Reciprocal Trade (the ART) was signed on 9 February 2026 and, pursuant to Article 6.6, will come into force within 60 days after both parties have exchanged written notifications of ratification. However, a writ petition was filed in early May 2026, challenging the legality of the ART, alleging that it was unreasonable, structurally imbalanced, and contrary to national interest, in the High Court Division (HCD) of the Supreme Court of Bangladesh. This analysis examines whether domestic courts have the authority to exercise jurisdiction over international treaties or agreements, such as the ART, negotiated between sovereign states. In other words, to what extent can courts review executive decisions in the domain of treaty-making?

The case sits at a delicate intersection between the principle of judicial restraint in matters of foreign affairs and the imperative of constitutional accountability. The Court is unlikely to consider arguments about national disadvantage or diplomatic imbalance. Instead, claims that involve extending executive authority while undermining the parliament’s legislative powers, or posing a credible threat to fundamental rights, would better support the petitioner.

Before diving into the jurisdictional question, it is essential to assess the stipulations of the ART. According to the ART, the reciprocal tariff on Bangladeshi goods will be 19%. This 19% is added to the existing 15% MFN tariffs, totalling 34% at US customs, excluding exempted items. Whereas the import duties in Bangladesh stand at about 2.2%, and nearly all 7,132 US export items will be duty-free in Bangladesh. Meanwhile, Bangladeshi apparel made from US cotton or fibres can enter the US at 0% reciprocal tariff, but MFN tariffs still apply. The ART has 131 mandatory provisions for Bangladesh and 6 for the US, showing the agreement’s inherent asymmetry. Bangladesh must increase imports from the US, including $3.5 billion in agricultural goods, $15 billion in LPG over 15 years, aviation procurements, along with commitments to buy US military equipment. Bangladesh must also follow WTO moratoriums on electronic transmission and cross-border data flows, accept US FDA standards, meet US vehicle safety standards, protect US trademarks, and update its labour rights. The US can cancel the deal if Bangladesh signs a trade agreement with non-market economies that undermine the ART, and certain procurements like nuclear reactors will be subject to US review.

A conservative interpretation of Articles 55(2) and 145A of the Constitution of the People’s Republic of Bangladesh will indicate that an international agreement falls squarely within the executive’s prerogative, and the parliament reserves the right to scrutinise any international agreement. Traditionally, treaty-making has been seen as part of foreign policy. However, if citizens’ rights are detrimentally affected by such executive autonomy, it is important to see to what extent the court can interfere in such decisions.

Kazi Mukhlesur Rahman v Bangladesh and Ors. (1974) can be instructive in this context, where the petitioner challenged the vires of the Delhi treaty, which facilitated the cession of the Berubari Union No. 12 to India. Though this case is famous for its conservative interpretation of Locus Standi, the Appellate Division addressed the question of the Apex Court’s jurisdiction over international treaties. The respondent argued that the ‘Delhi Treaty’ is an act of the State and thus not subject to judicial review, as treaty-making is a matter of foreign policy. However, the AD clarified that the ‘Act of State’ doctrine does not apply during peacetime if it is in contravention of the citizens’ guaranteed constitutional rights. Regarding the argument of prematurity, the state asserted that signing a treaty does not immediately affect citizens, who must wait until the treaty’s obligations are performed. The AD rejected the contention, stating that signing a treaty can still threaten citizens’ rights. However, regarding ratification, the AD agreed with the respondent’s proposition that the Delhi treaty has not yet been ratified. The treaty would only become effective upon the exchange of ratification instruments and would then be mature for judicial review. Hence, the AD dismissed the appeal on the ground of prematurity alone.

In the US-Bangladesh ART case, ratification is essential because, without it, the court would be ruling on a document that has no legal validity. Furthermore, judicial intervention at the pre-operational stage could turn the court into a forum for policy debate. However, Bangladesh has already started implementing parts of the agreement, such as signing deals for wheat imports and purchasing aeroplanes from the US. If substantiated in court, the question of prematurity can be avoided, and the focus will shift to whether the ART has evolved into an effective instrument or framework that produces tangible legal or administrative effects. Many criticisms of the ART, like geopolitical concerns or asymmetric bargaining, likely will not convince the court, as these are seen as ‘Political Questions’. Courts are generally not mandated to evaluate whether a trade agreement is economically or diplomatically prudent.

The more compelling issue is Bangladesh’s pre-commitment to extensive legislative and regulatory changes. Stipulations regarding observance of the USA’s FDA, vehicular, digital trade, labour law, intellectual property and environmental regulations appear to constrain future policymaking. In a dualist state, the implementation of a treaty depends on the legislative body’s approval. Therefore, an agreement that effectively dictates legislative outcomes risks undermining the balance between the executive and the legislative, thereby violating the constitutional basic structure of ‘separation of powers’. Another important point is that Bangladesh’s legislative commitments to the ART could potentially conflict with the constitutionally guaranteed fundamental rights. In Mukhlesur Rahman, it was evident that the petitioner’s freedom of movement was restricted. Similarly, the petitioners in this case need to show that the proposed legal reforms would infringe on the citizens’ rights.

In conclusion, the case sits at a delicate intersection between the principle of judicial restraint in matters of foreign affairs and the imperative of constitutional accountability. The Court is unlikely to consider arguments about national disadvantage or diplomatic imbalance. Instead, claims that involve extending executive authority while undermining the parliament’s legislative powers, or posing a credible threat to fundamental rights, would better support the petitioner.

The writer is Senior Lecturer, Department of Law, East West University, Bangladesh.