Introduction

The Commonwealth of Dominica, a small island nation in the Caribbean, has a legal system deeply rooted in the British common law tradition, shaped by its colonial history and post-independence constitutional framework. As a sovereign state, Dominica engages in international relations through treaty-making, a process that binds the nation to international obligations while balancing domestic legal and political considerations. This article explores Dominica’s treaty-making process, focusing on its constitutional framework, the approach to the incorporation of treaties into national law, and its relationship with the Vienna Convention on the Law of Treaties (VCLT) of 1969. By examining these aspects, this analysis sheds light on how Dominica navigates its international commitments and offers insights for other states engaging with Dominica in treaty negotiations.

The article is structured as follows: first, it outlines the constitutional provisions governing treaty-making in Dominica, with specific reference to the relevant articles of the Constitution of the Commonwealth of Dominica (1978). Second, it analyzes whether Dominica adopts a monist or dualist approach to international law and how treaties are domesticated into national law. Third, it assesses Dominica’s status with respect to the VCLT 1969 and discusses the implications of this status for other countries. Finally, it provides a comparative perspective and recommendations for ensuring smooth treaty-making processes with Dominica. This comprehensive examination aims to contribute to the academic discourse on international law and treaty-making in small island states.

Constitutional Framework for Treaty-Making in Dominica

The legal foundation for Dominica’s treaty-making process is embedded in its Constitution, which came into effect on November 3, 1978, upon the country’s independence from the United Kingdom. The Constitution establishes the structure of government and delineates the separation of powers among the executive, legislative, and judicial branches. Treaty-making, as an act of international engagement, primarily falls within the purview of the executive branch, though it intersects with legislative authority when treaties require domestic implementation.

Chapter V of the Constitution, which addresses the executive powers, is particularly relevant to understanding Dominica’s treaty-making authority. Section 64(1) of the Constitution vests executive authority in the President, who acts on the advice of the Cabinet or a Minister designated by the Prime Minister (Constitution of the Commonwealth of Dominica, 1978). While the Constitution does not explicitly mention treaty-making powers, the executive authority enshrined in Section 64(1) is generally interpreted to include the power to enter into international agreements, as this falls under the prerogative of conducting foreign affairs—a common law principle inherited from the British system.

Further, Section 59 establishes the Cabinet, headed by the Prime Minister, as the principal body responsible for the general direction and control of the government. This includes the authority to negotiate and sign treaties on behalf of the state. The Prime Minister or the Minister of Foreign Affairs typically represents Dominica in international negotiations, reflecting the executive’s central role in treaty-making. However, the Constitution does not prescribe a specific procedure for the negotiation or signing of treaties, leaving room for executive discretion in these matters.

While the executive holds the primary responsibility for entering into treaties, the role of the Parliament, as outlined in Chapter IV of the Constitution, becomes significant when treaties require changes to domestic law or the allocation of public funds. Section 41(1) of the Constitution establishes the Parliament as the legislative authority, with the power to make laws for the peace, order, and good government of Dominica. If a treaty imposes obligations that necessitate new legislation or amendments to existing laws, parliamentary approval is required. Additionally, under Section 46, financial matters, including those arising from treaty commitments, must be approved through the Appropriation Act, ensuring parliamentary oversight over treaty-related expenditures.

In practice, Dominica’s treaty-making process reflects a system where the executive initiates and negotiates treaties, but parliamentary involvement is necessary for treaties that impact domestic law or public finances. This balance between executive and legislative powers ensures that international commitments align with national interests and legal frameworks. The lack of explicit constitutional provisions on treaty-making, however, can lead to procedural ambiguities, as the process relies heavily on conventions and executive practice rather than codified rules.

Monist or Dualist Approach: Dominica’s Stance on International Law

A critical aspect of understanding Dominica’s treaty-making process is determining whether it follows a monist or dualist approach to international law. Monism posits that international law and domestic law form a single legal system, where treaties are automatically incorporated into national law upon ratification, without the need for additional legislative action. Dualism, on the other hand, views international and domestic law as distinct systems, requiring treaties to be domesticated through specific legislative measures before they have legal effect within the state (Crawford, 2019).

Dominica adheres to a dualist approach, consistent with its common law heritage. In dualist systems, treaties do not automatically become part of domestic law upon ratification or accession. Instead, they must be incorporated through an act of Parliament to be enforceable within the national legal system. This approach is evident in the absence of any constitutional provision in Dominica that grants treaties direct effect in domestic law. Unlike some monist states where ratified treaties are self-executing, Dominica requires explicit legislative action to translate international obligations into enforceable national laws.

The dualist nature of Dominica’s legal system means that the executive may negotiate and ratify a treaty, binding the state on the international plane, but this does not automatically confer rights or impose obligations on individuals or entities within Dominica. For instance, if Dominica enters into a human rights treaty, such as those under the United Nations framework, the provisions of that treaty cannot be directly invoked in Dominican courts unless Parliament enacts corresponding legislation. This principle was historically established in common law jurisdictions through cases such as R v. Secretary of State for the Home Department, ex parte Brind (1991) in the United Kingdom, which emphasized that unincorporated treaties do not have direct legal effect in domestic law (Shaw, 2017).

The process of domesticating treaties in Dominica involves drafting and passing legislation that mirrors the treaty’s obligations. This legislative process, governed by Sections 41-49 of the Constitution, ensures that Parliament debates and approves the content of the treaty before it becomes part of national law. In some cases, treaties may be domesticated through subsidiary legislation or administrative regulations if the subject matter falls within existing enabling statutes. However, significant treaties, especially those affecting fundamental rights or involving substantial financial commitments, typically require primary legislation.

The dualist approach in Dominica serves as a safeguard for national sovereignty, ensuring that international obligations do not override domestic legal processes or constitutional principles without parliamentary consent. However, it can also lead to delays in implementing international commitments, as the legislative process may be time-consuming or politically contentious. Moreover, there is always a risk of non-compliance with international obligations if Parliament fails to enact the necessary legislation, potentially exposing Dominica to international criticism or legal repercussions.

Dominica and the Vienna Convention on the Law of Treaties (1969)

The Vienna Convention on the Law of Treaties (VCLT) of 1969 is widely regarded as the cornerstone of international treaty law, codifying customary rules and procedures for the conclusion, interpretation, and termination of treaties. Adopted on May 23, 1969, and entering into force on January 27, 1980, the VCLT provides a comprehensive framework for treaty-making among sovereign states. As of January 2018, 116 states have ratified the VCLT, though many others recognize its provisions as reflective of customary international law (Vienna Convention on the Law of Treaties, 1969).

Dominica, however, is not a party to the VCLT 1969. According to records from the United Nations Treaty Collection, Dominica has neither signed nor ratified the Convention as of the latest updates available. This status does not necessarily mean that Dominica is immune to the principles enshrined in the VCLT, as many of its provisions—such as those concerning the conclusion, validity, and interpretation of treaties—are considered customary international law and are thus binding on all states, regardless of ratification (Brownlie, 2008). For instance, rules regarding pacta sunt servanda (treaties must be performed in good faith) and the interpretation of treaties under Articles 31 and 32 of the VCLT are widely accepted as customary norms.

Dominica’s non-ratification of the VCLT may stem from various factors, including capacity constraints typical of small island states, a lack of perceived necessity given the customary nature of many VCLT provisions, or a cautious approach to formal international commitments. Nonetheless, in practice, Dominica’s treaty-making processes generally align with VCLT principles, as these reflect the accepted norms of international law. For example, treaties concluded by Dominica are negotiated and signed by authorized representatives, typically from the executive branch, consistent with Articles 6 and 7 of the VCLT on full powers and representation.

The implications of Dominica’s non-party status to the VCLT are significant for other states engaging in treaty negotiations with the country. First, other states must recognize that while the VCLT may not formally bind Dominica, customary international law still governs treaty relations. Therefore, adherence to widely accepted principles, such as those concerning treaty interpretation and good faith, remains crucial. Second, states should be aware that Dominica’s dualist approach necessitates domestic legislative action for treaty implementation, which may affect timelines and the enforcement of treaty obligations. Third, in the absence of formal VCLT membership, states may need to rely on bilateral agreements or regional frameworks, such as those under the Caribbean Community (CARICOM), to establish clear procedural rules for treaty-making with Dominica.

Comparative Insights and Recommendations for Treaty-Making with Dominica

Comparing Dominica’s treaty-making framework with those of other small island states in the Caribbean reveals both similarities and differences. Many CARICOM member states, such as Jamaica and Trinidad and Tobago, also follow a dualist approach due to their common law heritage. However, some states, like Barbados, have more explicit constitutional provisions or statutes governing treaty-making and incorporation, providing greater procedural clarity. Dominica’s reliance on executive prerogative and parliamentary approval without detailed constitutional guidance may pose challenges in ensuring consistency and transparency in its treaty-making process.

For other countries seeking to enter into treaties with Dominica, several practical considerations emerge. First, treaty negotiators should ensure that agreements are negotiated with duly authorized representatives, typically the Prime Minister or Minister of Foreign Affairs, to avoid issues of validity under international law. Second, given Dominica’s dualist system, states should anticipate potential delays in implementation and work collaboratively with Dominican authorities to facilitate the necessary legislative processes. Third, where applicable, leveraging regional frameworks like CARICOM agreements can provide a structured context for treaty relations, especially on issues such as trade, environmental protection, and security.

Additionally, other states should encourage Dominica to consider ratifying the VCLT as a means of formalizing its commitment to international treaty norms. While customary law provides a baseline, ratification would signal Dominica’s intent to adhere to a codified framework, potentially enhancing its credibility in international negotiations. Until such ratification occurs, states must rely on customary principles and ensure that treaty texts include clear provisions on dispute resolution and interpretation to mitigate uncertainties arising from Dominica’s non-party status.

From a policy perspective, Dominica itself could benefit from developing clearer domestic guidelines or legislation on treaty-making. Codifying the process for negotiation, ratification, and domestication of treaties would enhance transparency and accountability, aligning with best practices observed in other jurisdictions. Such reforms could also strengthen Dominica’s capacity to meet international obligations promptly, reducing the risk of non-compliance due to legislative delays.

Challenges and Opportunities in Dominica’s Treaty-Making Process

As a small island state, Dominica faces unique challenges in its treaty-making process. Limited human and financial resources often constrain the country’s ability to engage in extensive treaty negotiations or to implement complex international agreements. The dualist system, while protective of sovereignty, can exacerbate these challenges by requiring legislative action that may be delayed due to political or administrative bottlenecks. Furthermore, the lack of explicit constitutional provisions on treaty-making can lead to uncertainty or inconsistency in how treaties are handled, particularly when successive administrations adopt differing approaches to international commitments.

Despite these challenges, Dominica has opportunities to strengthen its treaty-making framework. Capacity-building initiatives, supported by regional and international partners, can enhance the government’s ability to negotiate and implement treaties effectively. For instance, technical assistance from organizations like the United Nations or CARICOM could focus on training officials in treaty law and drafting skills. Additionally, public awareness campaigns and stakeholder consultations during the treaty-making process could foster greater domestic support for international obligations, facilitating smoother legislative approval.

Another opportunity lies in leveraging Dominica’s membership in regional and international organizations to amplify its voice in treaty negotiations. As a member of CARICOM and the Organization of Eastern Caribbean States (OECS), Dominica can collaborate with other small states to negotiate collective agreements that address shared concerns, such as climate change and economic development. These partnerships can help mitigate the resource constraints faced by small states and ensure that treaties are tailored to the specific needs of the region.

Conclusion

Dominica’s treaty-making process is shaped by its constitutional framework, dualist approach to international law, and non-party status to the Vienna Convention on the Law of Treaties (1969). The Constitution vests executive authority in the President and Cabinet to negotiate and conclude treaties, while parliamentary approval is required for domestication, reflecting the dualist system where treaties must be incorporated into national law through legislation. Although Dominica is not a signatory to the VCLT, it remains bound by customary international law, and its treaty practices generally align with established norms. This status, however, underscores the importance of clear communication and procedural safeguards for other states engaging with Dominica in treaty-making.

The dualist approach ensures that Dominica retains control over the integration of international obligations into its legal system, safeguarding national sovereignty. However, it also poses challenges in terms of timely implementation and compliance. For other countries, understanding Dominica’s legal framework and resource constraints is essential for effective treaty negotiations. Encouraging Dominica to ratify the VCLT and to develop clearer domestic guidelines on treaty-making could further enhance its engagement in international law.

Ultimately, Dominica’s experience highlights the complexities faced by small island states in balancing international obligations with domestic priorities. By addressing procedural ambiguities and leveraging regional partnerships, Dominica can strengthen its treaty-making capacity, contributing to a more robust integration of international law within its national framework. This analysis not only informs other states on how to engage with Dominica but also contributes to broader discussions on treaty-making in post-colonial and developing jurisdictions.

References

• Brownlie, I. (2008). Principles of Public International Law (7th ed.). Oxford University Press.
• Constitution of the Commonwealth of Dominica. (1978). Retrieved from official government sources or legal databases.
• Crawford, J. (2019). Brownlie’s Principles of Public International Law (9th ed.). Oxford University Press.
• Shaw, M. N. (2017). International Law (8th ed.). Cambridge University Press.
• Vienna Convention on the Law of Treaties. (1969). United Nations Treaty Series, vol. 1155, p. 331.