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Timor-Leste’s Treaty-Making Process: Constitutional Foundations and International Commitments

Abstract

This article explores the treaty-making process of Timor-Leste, a young Southeast Asian nation, by examining its constitutional foundations and international commitments. It analyzes the legal framework under which Timor-Leste enters into treaties, with specific reference to relevant provisions of its Constitution. The article further investigates whether Timor-Leste adopts a monist or dualist approach to the incorporation of international law into its domestic legal system and discusses the practical mechanisms for translating treaties into national law. Additionally, it examines Timor-Leste’s status with respect to the Vienna Convention on the Law of Treaties (VCLT) of 1969 and the implications of this status for other states engaging in treaty relations with Timor-Leste. Through this analysis, the article seeks to contribute to a broader understanding of treaty-making processes in post-conflict and emerging states.

Introduction

Timor-Leste, also known as East Timor, gained independence from Indonesia in 2002 after a prolonged struggle and a period of United Nations administration. As a nascent state, Timor-Leste has sought to establish itself as a responsible member of the international community, engaging in diplomatic relations and entering into treaties to secure its position in global and regional affairs. The process of treaty-making is a critical aspect of a state’s sovereignty and international engagement, governed by both domestic constitutional provisions and international legal norms. This article delves into the constitutional foundations of Timor-Leste’s treaty-making process, evaluates its approach to integrating international commitments into national law, and assesses its relationship with the Vienna Convention on the Law of Treaties (VCLT) of 1969, often referred to as the “treaty on treaties.” The analysis aims to provide insights into how a young state navigates the complexities of international law and offers guidance for other states seeking to engage with Timor-Leste through treaties.

Constitutional Foundations of Treaty-Making in Timor-Leste

The legal basis for Timor-Leste’s treaty-making powers is rooted in its Constitution, which came into effect on May 20, 2002, marking the formal establishment of the Democratic Republic of Timor-Leste. The Constitution outlines the structure of the state, the separation of powers, and the mechanisms for engaging in international relations, including the negotiation and conclusion of treaties. Key provisions relevant to treaty-making are found in Sections 9, 95, and 103 of the Constitution, which collectively establish the framework for Timor-Leste’s engagement with the international community.

Section 9: International Law and Treaty Obligations

Section 9 of the Constitution of Timor-Leste explicitly addresses the role of international law within the domestic legal system. Subsection 1 states that “the legal system of East Timor shall adopt the general or customary principles of international law” (Constitution of the Democratic Republic of Timor-Leste, 2002). Furthermore, Subsection 3 provides that “rules provided for in international conventions, treaties and agreements shall apply in the internal legal system of East Timor following their approval, ratification or accession by the respective competent organs and after publication in the official gazette.” This provision indicates that treaties, once ratified through the appropriate channels, are incorporated into the domestic legal framework, contingent on specific procedural requirements such as publication. This clause is significant as it suggests a predisposition toward accommodating international obligations within the national legal order, a point that will be explored further in the discussion on monist and dualist approaches.

Section 95: Competence of the National Parliament

The National Parliament of Timor-Leste plays a pivotal role in the treaty-making process, as outlined in Section 95 of the Constitution. Subsection 2(f) grants the National Parliament the authority to “approve and denounce agreements and international treaties” (Constitution of the Democratic Republic of Timor-Leste, 2002). This explicit mandate ensures that the legislative branch has a central role in the approval of treaties, reflecting a democratic oversight mechanism over international commitments. The involvement of the National Parliament underscores the importance of political consensus and public accountability in Timor-Leste’s treaty-making process, aligning with principles of democratic governance.

Section 103: Powers of the President in International Relations

The President of the Republic of Timor-Leste also holds significant powers in the realm of international relations, as stipulated in Section 103. Subsection 1(c) empowers the President to “conduct, in consultation with the Government, any negotiation process towards the completion of international agreements in the field of defense and security” (Constitution of the Democratic Republic of Timor-Leste, 2002). While the President’s role in treaty-making is more prominent in specific areas such as defense and security, this provision highlights the collaborative nature of treaty-making, involving both the executive and legislative branches. The President’s involvement ensures that treaty negotiations are aligned with national interests, particularly in sensitive areas impacting sovereignty and security.

Taken together, these constitutional provisions establish a clear division of responsibilities in Timor-Leste’s treaty-making process. The National Parliament holds the primary authority for the approval and denunciation of treaties, ensuring legislative oversight, while the President plays a key role in negotiations, particularly in strategic fields. The constitutional emphasis on the adoption of international law under Section 9 further supports Timor-Leste’s commitment to fulfilling its treaty obligations. However, the practical implementation of these obligations raises questions about whether Timor-Leste follows a monist or dualist approach to international law, a topic that will be addressed in the following section.

Monist or Dualist Approach: Timor-Leste’s Integration of Treaties into National Law

The distinction between monist and dualist approaches to international law is fundamental to understanding how states incorporate treaty obligations into their domestic legal systems. In a monist system, international law is automatically part of domestic law upon ratification of a treaty, without the need for additional legislative action. In contrast, a dualist system requires treaties to be transformed into domestic law through specific legislation before they can have legal effect within the state. Determining whether Timor-Leste adopts a monist or dualist approach requires a close examination of its constitutional provisions and legal practices.

Constitutional Indications of a Monist Approach

Section 9(3) of the Constitution of Timor-Leste, as previously cited, states that treaties and international agreements apply in the internal legal system “following their approval, ratification or accession by the respective competent organs and after publication in the official gazette” (Constitution of the Democratic Republic of Timor-Leste, 2002). This provision suggests a monist inclination, as it implies that treaties become part of domestic law automatically upon completion of the ratification process and publication, without the explicit requirement for additional implementing legislation. The direct incorporation of international norms into the national legal order aligns with monist principles, where international and domestic law are viewed as part of a unified legal system.

Practical Realities and Dualist Elements

Despite the constitutional language suggesting a monist approach, practical realities in Timor-Leste reveal elements of dualism. In many cases, the application of treaties within the domestic legal system requires further action by the government or the National Parliament to ensure effective implementation. For instance, treaties involving complex regulatory frameworks, such as those related to trade or environmental standards, often necessitate the enactment of specific laws or regulations to translate international commitments into actionable domestic policies. This indicates that while the Constitution provides for the direct applicability of treaties, the operationalization of certain obligations may still require legislative or administrative measures, reflecting a dualist tendency in practice.

Legal scholars have noted that many states, particularly those with emerging legal systems like Timor-Leste, often exhibit a hybrid approach, combining elements of both monism and dualism depending on the nature of the treaty and the domestic legal context (Cassese, 2005). In Timor-Leste, this hybridity is evident in the interplay between the constitutional mandate for direct incorporation and the practical need for implementing legislation in specific cases. For example, Timor-Leste’s accession to human rights treaties, such as the International Covenant on Civil and Political Rights (ICCPR), has been followed by efforts to align domestic laws with international standards, suggesting a dualist approach to ensuring compliance with treaty obligations.

Implications for Treaty Implementation

The hybrid nature of Timor-Leste’s approach to treaty incorporation has significant implications for the implementation of international commitments. On one hand, the monist elements in the Constitution facilitate the recognition of treaties as part of domestic law, enabling quicker alignment with international norms in areas such as human rights and humanitarian law. On the other hand, the dualist practices ensure that complex treaties are thoroughly domesticated through legislative processes, allowing for adaptation to local conditions and capacities. However, this hybrid approach can also lead to challenges, including delays in implementation and inconsistencies between international obligations and national laws, particularly in a post-conflict state with limited institutional capacity (De Vere & Pedro, 2010).

Overall, while Timor-Leste’s Constitution leans toward a monist framework for treaty incorporation, the practical application of international commitments often reflects dualist tendencies. This hybrid model underscores the importance of both constitutional provisions and institutional mechanisms in ensuring that treaties are effectively translated into national law. For other states engaging with Timor-Leste, understanding this hybrid approach is crucial for anticipating potential delays or additional procedural steps in the implementation of treaty obligations.

Timor-Leste 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, providing a comprehensive framework for the conclusion, interpretation, amendment, and termination of treaties. Adopted on May 23, 1969, and entering into force on January 27, 1980, the VCLT codifies customary international law and serves as a guide for states in their treaty-making practices (United Nations, 1980). Given its significance, a state’s status as a party to the VCLT can influence how it engages in treaty relations and how other states approach negotiations with it. This section examines whether Timor-Leste is a party to the VCLT and the implications of its status for international cooperation.

Timor-Leste’s Status with Respect to the VCLT

As of the latest available data, Timor-Leste is not a party to the Vienna Convention on the Law of Treaties of 1969. The VCLT has been ratified by 116 states as of January 2018, but Timor-Leste, having achieved independence in 2002, has not yet formally acceded to the Convention (United Nations Treaty Collection, 2023). This absence of formal accession may be attributed to several factors, including the relatively short time since independence, prioritization of other international commitments, and limited institutional capacity to engage with all aspects of international legal frameworks. Nevertheless, the VCLT’s provisions are often considered reflective of customary international law, meaning that many of its rules are binding on all states, including non-parties, unless explicitly rejected (Sinclair, 1984).

Despite not being a party to the VCLT, Timor-Leste is likely to adhere to many of its principles in practice, given the Convention’s status as a codification of customary norms. For instance, rules governing the formation, validity, and termination of treaties, as articulated in Articles 6 through 25 of the VCLT, are generally accepted as customary international law and are thus applicable to Timor-Leste (United Nations, 1980). This adherence is further supported by Timor-Leste’s commitment to international law under Section 9 of its Constitution, which emphasizes the adoption of general or customary principles of international law.

Implications for Other States Engaging with Timor-Leste

Timor-Leste’s non-party status to the VCLT has several implications for other states seeking to enter into treaties with it. First, while the VCLT’s rules may not be formally binding on Timor-Leste through treaty obligation, the customary nature of many of its provisions ensures a common baseline for treaty-making practices. States can reasonably expect Timor-Leste to follow fundamental principles such as pacta sunt servanda (agreements must be kept, as per Article 26 of the VCLT) and the rules on treaty interpretation (Articles 31-33 of the VCLT), even in the absence of formal accession (Villiger, 2009).

Second, other states should be aware that Timor-Leste’s non-party status may result in a lack of familiarity with some of the VCLT’s procedural nuances, particularly in areas such as reservations (Articles 19-23) or dispute resolution mechanisms (Article 66). This may necessitate greater clarity and detail in treaty texts and negotiations to avoid misunderstandings. Additionally, given Timor-Leste’s hybrid monist-dualist approach to treaty incorporation, other states should anticipate the possibility of delays in the domestic implementation of treaty obligations, especially for treaties requiring legislative action.

Finally, Timor-Leste’s non-accession to the VCLT serves as a reminder of the challenges faced by post-conflict and emerging states in fully engaging with the international legal system. For other states, this highlights the importance of capacity-building initiatives and technical assistance to support Timor-Leste in aligning its treaty-making practices with global standards. Encouraging Timor-Leste to accede to the VCLT could further harmonize its treaty practices with those of the broader international community, facilitating smoother diplomatic and legal interactions.

Case Studies: Treaty-Making in Practice in Timor-Leste

To illustrate the practical application of Timor-Leste’s treaty-making process, this section examines two significant treaties involving the country: the Treaty on Certain Maritime Arrangements in the Timor Sea (CMATS) with Australia and its participation in the Association of Southeast Asian Nations (ASEAN) through various regional agreements. These cases highlight the interplay between constitutional provisions, domestic implementation, and international cooperation.

The Treaty on Certain Maritime Arrangements in the Timor Sea (CMATS)

One of Timor-Leste’s most significant bilateral treaties is the 2006 Treaty on Certain Maritime Arrangements in the Timor Sea with Australia. This treaty addressed the sharing of revenues from the Greater Sunrise gas field in the Timor Sea, a critical economic issue for Timor-Leste. The negotiation and ratification of CMATS involved close coordination between the President and the National Parliament, in line with Sections 95 and 103 of the Constitution. The treaty was approved by the National Parliament and published in the official gazette, fulfilling the requirements for domestic incorporation under Section 9(3) (Government of Timor-Leste, 2006).

However, the implementation of CMATS faced challenges, including public discontent over perceived inequities in the revenue-sharing arrangement. This led to subsequent negotiations and the eventual termination of CMATS in 2017, followed by a new maritime boundary treaty in 2018 under the auspices of the United Nations Conciliation Commission. This case demonstrates the importance of legislative oversight and public accountability in Timor-Leste’s treaty-making process, as well as the potential for domestic political dynamics to influence the stability of international agreements.

Participation in ASEAN Agreements

Timor-Leste has actively pursued membership in ASEAN, acceding to several regional agreements as part of its integration into the Southeast Asian community. For instance, Timor-Leste became a party to the Treaty of Amity and Cooperation in Southeast Asia (TAC) in 2007, a foundational agreement for ASEAN member and partner states. The ratification process followed constitutional requirements, with approval by the National Parliament and publication in the official gazette (ASEAN Secretariat, 2007). The implementation of TAC provisions, particularly those related to peaceful dispute resolution, has been supported by capacity-building initiatives within Timor-Leste’s legal and diplomatic institutions, reflecting a dualist approach to ensuring compliance with regional commitments.

Timor-Leste’s engagement with ASEAN highlights its commitment to multilateral treaties and regional cooperation, despite its non-party status to the VCLT. The country’s adherence to customary international law and ASEAN-specific norms in treaty-making suggests that its non-accession to the VCLT does not significantly hinder its ability to participate in regional frameworks. However, full accession to the VCLT could further enhance Timor-Leste’s credibility and capacity in negotiating and implementing such agreements.

Conclusion

Timor-Leste’s treaty-making process is firmly rooted in its Constitution, which provides a clear framework for the negotiation, approval, and incorporation of international agreements. Sections 9, 95, and 103 of the Constitution allocate distinct roles to the National Parliament and the President, ensuring democratic oversight and executive leadership in treaty-making. While the constitutional language suggests a monist approach to the integration of treaties into national law, practical realities reveal a hybrid model incorporating dualist elements, particularly for treaties requiring detailed domestic implementation. Timor-Leste’s non-party status to the Vienna Convention on the Law of Treaties (1969) does not preclude it from adhering to customary international law, but accession to the VCLT could further strengthen its treaty practices and facilitate smoother engagement with other states.

For the international community, understanding Timor-Leste’s legal and practical approach to treaties is essential for effective cooperation. Other states should anticipate the potential for delays in implementation due to the hybrid monist-dualist framework and provide support for capacity-building to enhance Timor-Leste’s treaty-making capabilities. Ultimately, Timor-Leste’s journey as a young state navigating the complexities of international law offers valuable lessons for other post-conflict and emerging nations seeking to establish themselves on the global stage.

References

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  • Cassese, A. (2005). International Law (2nd ed.). Oxford University Press.
  • Constitution of the Democratic Republic of Timor-Leste. (2002). Official Gazette of Timor-Leste.
  • De Vere, G., & Pedro, J. (2010). Legal Challenges in Post-Conflict States: The Case of Timor-Leste. Journal of International Law and Development, 12(3), 45-67.
  • Government of Timor-Leste. (2006). Treaty on Certain Maritime Arrangements in the Timor Sea. Official Gazette of Timor-Leste.
  • Sinclair, I. (1984). The Vienna Convention on the Law of Treaties (2nd ed.). Manchester University Press.
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