Introduction
Djibouti, a small but strategically located country in the Horn of Africa, plays a significant role in international relations due to its geopolitical position at the crossroads of Africa, the Middle East, and the Indian Ocean. Its engagement in international treaties is crucial for fostering diplomatic relations, ensuring economic cooperation, and addressing regional security concerns. This article examines Djibouti’s treaty-making process within the context of its constitutional framework and international commitments. It explores the legal mechanisms through which Djibouti enters into treaties, assesses whether the country adopts a monist or dualist approach to the incorporation of international law into its domestic legal system, and investigates Djibouti’s relationship with the Vienna Convention on the Law of Treaties (VCLT) of 1969. By analyzing these elements, this article aims to provide a comprehensive understanding of Djibouti’s approach to international agreements and offer insights for other nations seeking to engage with Djibouti in treaty-making endeavors.
The discussion is divided into several sections. First, it outlines the constitutional provisions governing treaty-making in Djibouti, citing relevant articles from the Constitution of Djibouti. Second, it analyzes whether Djibouti follows a monist or dualist approach to international law and the implications for the domestication of treaties. Third, it examines Djibouti’s status regarding the VCLT 1969 and discusses how this impacts treaty negotiations with other states. Finally, the article reflects on the broader implications of Djibouti’s treaty-making framework for international cooperation and offers recommendations for states engaging with Djibouti.
Constitutional Framework for Treaty-Making in Djibouti
The legal foundation for Djibouti’s engagement in international treaties is rooted in its Constitution, which was adopted on September 4, 1992, following the country’s independence from France in 1977. The Constitution establishes the principles and procedures for entering into international agreements, delineating the roles of the executive and legislative branches in the treaty-making process. This section examines the specific constitutional provisions that govern Djibouti’s treaty-making authority, focusing on the distribution of powers and the procedural requirements for treaty ratification and implementation.
Article 1 of the Constitution of Djibouti establishes the sovereignty of the state and its commitment to international cooperation. While this article does not directly address treaty-making, it sets the tone for Djibouti’s engagement with the international community by emphasizing principles of equality, mutual respect, and adherence to international law. More specifically, the treaty-making power is addressed in Title III of the Constitution, which outlines the powers of the President of the Republic and the National Assembly.
According to Article 21, the President of the Republic is the head of state and represents Djibouti in international relations. This article explicitly grants the President the authority to negotiate and sign international treaties on behalf of the state. The President’s role as the chief diplomat aligns with the practice in many countries where the executive branch assumes primary responsibility for initiating and concluding international agreements. However, the Constitution imposes a critical check on this executive power by requiring parliamentary approval for certain types of treaties, as detailed in subsequent provisions (Constitution of Djibouti, 1992).
Article 37 of the Constitution elaborates on the process of treaty ratification, stipulating that treaties or agreements concerning international organizations, peace, commerce, international arbitration, or those that modify internal legislation or involve financial commitments must be submitted to the National Assembly for approval. This provision ensures that the legislative branch plays a significant role in the treaty-making process, particularly for agreements with substantial domestic or financial implications. The requirement for National Assembly approval reflects a democratic principle of checks and balances, preventing the executive from unilaterally entering into commitments that could affect national interests without legislative oversight (Constitution of Djibouti, 1992).
Furthermore, Article 38 specifies the procedural aspects of treaty ratification. Once a treaty is approved by the National Assembly, the President is authorized to ratify it, and the treaty becomes binding on the state. This formal act of ratification, often accompanied by the deposit of instruments of ratification with the relevant international body or counterparty, marks the culmination of the treaty-making process under Djiboutian law. Importantly, Article 38 also provides for the publication of ratified treaties in the Official Journal of the Republic of Djibouti, ensuring transparency and public access to the content of international agreements (Constitution of Djibouti, 1992).
In addition to these procedural requirements, the Constitution addresses the legal status of treaties once they are ratified. This aspect is crucial for understanding how international commitments are integrated into the domestic legal order, a topic that relates closely to the question of monism or dualism in Djibouti’s legal system. Before delving into that discussion, it is worth noting that the constitutional framework for treaty-making in Djibouti reflects a blend of executive initiative and legislative oversight, designed to balance efficiency in international relations with democratic accountability at home. This structure ensures that Djibouti’s international commitments are not only legally valid under domestic law but also aligned with national interests as determined through parliamentary debate.
Beyond the specific articles mentioned, the Constitution of Djibouti also incorporates broader principles of international law in its preamble and substantive provisions. For instance, the preamble expresses commitment to the principles of the United Nations Charter and the Universal Declaration of Human Rights, signaling an intent to adhere to international norms in treaty-making and beyond. These guiding principles, while not directly enforceable as treaty-making procedures, shape the context in which Djibouti engages with other states and international organizations.
In practice, the treaty-making process in Djibouti has been applied in various contexts, including agreements related to trade, security, and regional cooperation. For example, Djibouti’s participation in the African Union (AU) and the Intergovernmental Authority on Development (IGAD) involves the negotiation and ratification of multilateral treaties under the constitutional framework described above. Similarly, bilateral agreements with countries such as France, the United States, and China—often concerning military basing rights or economic partnerships—follow the same constitutional procedures, ensuring that such commitments are legally grounded in both domestic and international law.
Monist or Dualist Approach: Incorporating Treaties into National Law
A critical aspect of understanding a state’s treaty-making process is determining how international law is integrated into its domestic legal system. States typically adopt either a monist or dualist approach to this relationship. In a monist system, international law is automatically incorporated into domestic law upon ratification of a treaty, often taking precedence over conflicting national laws. In contrast, a dualist system requires an explicit act of legislation to transform international obligations into enforceable domestic law, treating international and national law as separate legal orders. This section examines whether Djibouti adheres to a monist or dualist approach and analyzes the implications for the implementation of treaties within its jurisdiction.
The starting point for this analysis is Article 37 of the Constitution of Djibouti, which, as previously mentioned, mandates National Assembly approval for certain categories of treaties. While this provision establishes the procedural requirement for ratification, it does not explicitly clarify the legal status of ratified treaties within the domestic legal order. However, a closer examination of Djibouti’s constitutional text and legal practice suggests a nuanced approach that leans toward monism, with certain qualifications.
Article 10 of the Constitution provides significant insight into Djibouti’s stance on the relationship between international and national law. It states that duly ratified international treaties and agreements take precedence over domestic laws, provided that the other party to the treaty also respects its obligations. This principle of supremacy indicates a monist orientation, as it allows international law to have direct effect within the domestic legal system without the need for additional legislative action to incorporate treaty provisions. In other words, once a treaty is ratified in accordance with constitutional procedures, its provisions become part of Djibouti’s legal framework and can be invoked before national courts, assuming reciprocity from the other contracting party (Constitution of Djibouti, 1992).
This monist approach aligns with the legal traditions of many civil law countries, including France, which has historically influenced Djibouti’s legal system due to its colonial past. In France, ratified treaties also hold a superior position to domestic legislation, as stipulated in Article 55 of the French Constitution. Given this historical connection, it is unsurprising that Djibouti has adopted a similar framework for the incorporation of international law. However, the monist character of Djibouti’s system is not absolute. The condition of reciprocity in Article 10 introduces a pragmatic limitation, ensuring that Djibouti does not unilaterally uphold treaty obligations if the other party fails to do so.
In practice, the direct applicability of treaties in Djibouti means that individuals and entities can rely on treaty provisions in domestic courts, provided the treaty has been duly ratified and published. For instance, human rights treaties ratified by Djibouti, such as the International Covenant on Civil and Political Rights (ICCPR), can theoretically be invoked by citizens to challenge domestic laws or government actions that contravene international standards. However, the extent to which this principle is consistently applied in judicial practice remains an area for further research, as the capacity of national courts to interpret and enforce international law may be constrained by practical and institutional factors.
Despite its monist leanings, Djibouti’s legal system exhibits elements of dualism in specific contexts. For treaties that require modifications to existing legislation or the creation of new laws to give effect to international obligations, the National Assembly must enact implementing legislation. This requirement, also rooted in Article 37, indicates that certain treaties do not automatically alter the domestic legal landscape without legislative intervention. For example, treaties involving complex regulatory frameworks, such as trade agreements with detailed tariff schedules, may necessitate the passage of domestic laws to align national regulations with international commitments. In such cases, Djibouti’s approach resembles dualism, as the treaty’s provisions do not take effect domestically until transformed through legislative action.
Thus, Djibouti’s approach to the incorporation of treaties can be described as predominantly monist, with dualist elements applied to treaties requiring specific legislative changes. This hybrid model reflects a balance between the desire to honor international commitments directly and the need to maintain legislative sovereignty over domestic affairs. For other states engaging with Djibouti, this means that while many treaty provisions may be directly enforceable upon ratification, certain agreements may require additional domestic legal steps before full implementation, necessitating close coordination with Djiboutian authorities to ensure compliance with both international and national requirements.
Djibouti’s Status with the Vienna Convention on the Law of Treaties 1969
The Vienna Convention on the Law of Treaties (VCLT), adopted on May 23, 1969, and entered into force on January 27, 1980, is a cornerstone of international law governing the formation, interpretation, and termination of treaties. Often referred to as the “treaty on treaties,” the VCLT codifies customary international law and provides a framework for states to navigate their treaty-making obligations. This section explores whether Djibouti is a party to the VCLT and analyzes the implications of its status for treaty negotiations with other countries.
Based on available information from international treaty databases and legal resources, Djibouti is not a signatory or a party to the Vienna Convention on the Law of Treaties 1969. While the VCLT is open to accession by all states, Djibouti has not formally adhered to this instrument since its adoption. This status is significant because, unless a state is a party to the VCLT, it is not legally bound by its specific provisions, although many of the Convention’s rules are considered customary international law and thus applicable to all states regardless of membership (United Nations Treaty Collection, 2023).
The absence of Djibouti’s accession to the VCLT does not imply a rejection of international treaty norms. Many of the VCLT’s principles, such as the requirement for treaties to be concluded in good faith (pacta sunt servanda) under Article 26, and the rules on interpretation under Articles 31 and 32, reflect customary international law and are therefore binding on Djibouti. Furthermore, Djibouti’s constitutional framework for treaty-making, as discussed earlier, aligns with several VCLT principles, such as the need for formal consent and ratification to establish treaty obligations. This alignment suggests that Djibouti broadly adheres to internationally accepted standards for treaty-making, even in the absence of formal membership in the VCLT.
For other states seeking to enter into treaties with Djibouti, the country’s non-party status to the VCLT has several implications. First, while Djibouti is likely to respect customary rules of treaty law, it may not feel obligated to follow specific procedural or interpretive rules outlined in the VCLT that go beyond customary norms. For instance, provisions on reservations to treaties (Articles 19-23 of the VCLT) or the amendment and modification of treaties (Articles 39-41) may not be automatically accepted by Djibouti as binding, necessitating explicit negotiation of such terms in treaty texts. States engaging with Djibouti should therefore ensure that agreements clearly address procedural matters, such as entry into force, dispute resolution, and termination, to avoid misunderstandings stemming from differing interpretations of treaty law.
Second, Djibouti’s non-membership in the VCLT highlights the importance of cultural and diplomatic sensitivity in treaty negotiations. Without the standardized framework provided by the VCLT, other states must rely on bilateral dialogue and mutual understanding to establish the terms of agreements. This process may involve referencing customary international law or drawing on regional treaty practices, such as those developed within the African Union, to build consensus with Djiboutian authorities. For example, referencing AU treaty-making norms, which often emphasize sovereignty and mutual benefit, may resonate more effectively with Djibouti than direct citations of VCLT provisions.
Finally, Djibouti’s non-party status to the VCLT serves as a reminder to other states that not all countries are formally bound by the same international legal instruments. This reality underscores the need for flexibility and adaptability in international relations. States that are parties to the VCLT, such as many European and North American countries, may need to adjust their expectations and negotiation strategies when dealing with non-party states like Djibouti. A practical approach could involve proposing treaty clauses that mirror VCLT principles, such as rules on invalidity or termination, while framing them as mutually agreed terms rather than obligations under the Convention.
Implications for International Cooperation
Djibouti’s treaty-making process, grounded in its constitutional framework and informed by a predominantly monist approach to international law, offers valuable insights for states and international organizations seeking to collaborate with the country. The requirement for National Assembly approval of significant treaties ensures a degree of democratic accountability, while the direct applicability of ratified treaties under Article 10 of the Constitution facilitates the enforcement of international commitments within the domestic sphere. However, the hybrid nature of Djibouti’s legal system—with dualist elements requiring legislative action for certain treaties—means that treaty implementation may vary depending on the nature of the agreement.
Moreover, Djibouti’s non-membership in the VCLT 1969 does not preclude effective treaty-making but necessitates careful attention to customary international law and bilateral negotiations. Other states should prioritize clear communication and the explicit inclusion of procedural and substantive terms in treaty texts to mitigate potential discrepancies in legal interpretation. This approach is particularly relevant given Djibouti’s strategic importance as a hub for international trade and security cooperation, hosting military bases for multiple foreign powers and serving as a gateway to the Red Sea through the Bab-el-Mandeb Strait.
Djibouti’s engagement in regional and international organizations, such as the AU, IGAD, and the United Nations, further shapes its treaty-making behavior. These affiliations demonstrate a commitment to multilateral cooperation, even as Djibouti navigates its treaty obligations outside the formal framework of the VCLT. For instance, Djibouti’s participation in peacekeeping and counterterrorism initiatives under AU and UN mandates reflects a willingness to align with international norms, even if not through direct adherence to specific conventions like the VCLT.
For states looking to enter into treaties with Djibouti, several practical recommendations emerge from this analysis. First, engaging with both the executive and legislative branches during negotiations can help ensure that proposed treaties receive the necessary domestic approval. Given the National Assembly’s role in ratifying significant agreements, early consultation with parliamentary stakeholders may expedite the process. Second, states should be prepared for potential delays in the implementation of treaties requiring legislative changes, as dualist elements in Djibouti’s system may necessitate additional domestic legal steps. Third, negotiators should emphasize customary international law principles and region-specific norms to build trust and consensus, particularly in light of Djibouti’s non-membership in the VCLT.
Conclusion
Djibouti’s treaty-making process is a reflection of its constitutional framework, historical influences, and strategic priorities as a small but geopolitically significant state. The Constitution of Djibouti provides a clear legal basis for entering into international agreements, with the President negotiating and signing treaties, subject to National Assembly approval for specific categories of commitments. The country’s predominantly monist approach to international law, tempered by dualist requirements for certain treaties, facilitates the integration of international obligations into the domestic legal order while preserving legislative sovereignty. Although Djibouti is not a party to the Vienna Convention on the Law of Treaties 1969, its adherence to customary international law ensures that its treaty-making practices align with widely accepted norms, albeit with a need for bilateral clarity on procedural matters.
The implications of Djibouti’s treaty-making framework extend beyond its borders, offering lessons for other states on navigating international agreements with non-VCLT parties. By prioritizing mutual understanding, explicit treaty terms, and respect for domestic processes, states can foster effective collaboration with Djibouti in areas such as trade, security, and regional stability. As Djibouti continues to play a pivotal role in the Horn of Africa and beyond, a nuanced understanding of its legal and diplomatic approaches to treaty-making will be essential for sustaining and deepening international partnerships.
References
- Constitution of Djibouti. (1992). Adopted on September 4, 1992. Available through official publications of the Republic of Djibouti.
- United Nations Treaty Collection. (2023). Status of Treaties: Vienna Convention on the Law of Treaties. Accessible via the United Nations Treaty Collection website.
- Vienna Convention on the Law of Treaties. (1969). Adopted on May 23, 1969, entered into force on January 27, 1980. United Nations Treaty Series, vol. 1155, p. 331.
