Introduction
Afghanistan, as a sovereign state with a complex history of internal conflict and international engagement, operates within a distinct constitutional framework that governs its treaty-making process and international commitments. Located at the crossroads of Central and South Asia, Afghanistan has been a focal point for regional and global powers, necessitating a robust system for entering into international agreements. Treaties, as formal agreements between states under international law, play a critical role in Afghanistan’s foreign policy, economic development, and security arrangements. This article examines Afghanistan’s treaty-making process by analyzing the constitutional provisions that regulate this authority, the approach to integrating international treaties into national law, and the implications of Afghanistan’s stance on key international instruments such as the Vienna Convention on the Law of Treaties (VCLT) of 1969. The discussion aims to provide clarity on how Afghanistan engages with the international community through treaties, the legal mechanisms that underpin this engagement, and the broader implications for other states seeking to form agreements with Afghanistan.
The article is structured as follows: the first section provides an overview of the constitutional framework for treaty-making in Afghanistan, focusing on the relevant provisions in the 2004 Constitution. The second section explores whether Afghanistan adopts a monist or dualist approach to international law and how treaties are incorporated into domestic law. The third section examines Afghanistan’s status with respect to the VCLT of 1969 and discusses the implications of this status for treaty-making with other countries. Finally, the article concludes with reflections on the challenges and opportunities within Afghanistan’s treaty-making framework and offers insights for future international cooperation.
Constitutional Framework for Treaty-Making in Afghanistan
The legal foundation for Afghanistan’s treaty-making process is enshrined in the Constitution of the Islamic Republic of Afghanistan, adopted in 2004. This constitution establishes the structure of the state, delineates the separation of powers, and outlines the mechanisms through which Afghanistan can enter into international agreements. The treaty-making process in Afghanistan involves multiple branches of government, reflecting a system of checks and balances designed to ensure that international commitments align with national interests and sovereignty.
Article 7 of the 2004 Constitution is a critical starting point for understanding Afghanistan’s approach to international law and commitments. It states that “The state shall observe the United Nations Charter, inter-state agreements, as well as international treaties to which Afghanistan has joined, and the Universal Declaration of Human Rights” (Constitution of Afghanistan, 2004, Art. 7). This provision establishes a constitutional obligation to adhere to international treaties and agreements, signaling Afghanistan’s intent to be a responsible member of the international community. While this article does not explicitly detail the process for entering into treaties, it underscores the legal weight of international commitments within the Afghan legal system.
The authority to negotiate and conclude treaties is vested in the executive branch, specifically the President, as outlined in Article 64 of the Constitution. This article lists the powers and duties of the President, which include “determining the fundamental lines of the policy of the country with the approval of the National Assembly” and representing Afghanistan in international fora (Constitution of Afghanistan, 2004, Art. 64). Although the article does not explicitly mention treaty-making, the representation of Afghanistan in international matters and the determination of foreign policy implicitly encompass the authority to negotiate and sign treaties on behalf of the state. This interpretation is consistent with international practice, where heads of state or government often hold the primary responsibility for treaty negotiations.
However, the executive’s authority to conclude treaties is not absolute and is subject to legislative oversight. Article 90 of the Constitution grants the National Assembly, comprising the House of the People (Wolesi Jirga) and the House of Elders (Meshrano Jirga), significant powers, including the “ratification of international treaties and agreements, or abrogation of membership of Afghanistan in them” (Constitution of Afghanistan, 2004, Art. 90). This provision establishes the National Assembly as a key actor in the treaty-making process, ensuring that international agreements receive parliamentary approval before they can be considered binding under Afghan law. This requirement reflects a democratic principle of involving elected representatives in decisions that affect national sovereignty and obligations, particularly in a country with a history of external influence and intervention.
In practice, the treaty-making process in Afghanistan typically follows a multi-step procedure: negotiation and signing by the executive (usually through the President or a designated representative), followed by submission to the National Assembly for ratification. Once ratified, a treaty becomes part of Afghanistan’s legal obligations, though the precise mechanism for incorporation into domestic law requires further exploration, as discussed in the next section. Additionally, Article 121 of the Constitution empowers the Supreme Court to review the compatibility of laws, legislative decrees, and international treaties with the Constitution, providing a judicial check on treaty-making to ensure consistency with fundamental legal principles (Constitution of Afghanistan, 2004, Art. 121).
Beyond these specific provisions, the broader context of the 2004 Constitution reveals a commitment to balancing international engagement with the preservation of national sovereignty and Islamic principles. For instance, Article 3 states that “no law shall contravene the tenets and provisions of the holy religion of Islam in Afghanistan” (Constitution of Afghanistan, 2004, Art. 3). This raises questions about the potential conflict between international treaties and domestic religious norms, though the Constitution does not provide explicit guidance on resolving such tensions. In summary, the constitutional framework for treaty-making in Afghanistan is characterized by executive initiative, legislative ratification, and judicial oversight, reflecting a system designed to ensure accountability and alignment with national interests.
Monist or Dualist Approach: Integration of Treaties into National Law
One of the central questions in international law is how states integrate treaties into their domestic legal systems, typically classified under the monist and dualist approaches. Monist states view international law and domestic law as part of a single legal system, where treaties automatically become part of national law upon ratification without the need for additional legislation. In contrast, dualist states treat international law and domestic law as separate systems, requiring specific legislative action to incorporate treaties into national law. Understanding whether Afghanistan adopts a monist or dualist approach is essential for analyzing how international commitments are implemented domestically.
Afghanistan’s approach to the integration of treaties into national law appears to lean towards a dualist framework, though it exhibits elements of ambiguity. Article 7 of the 2004 Constitution, as previously mentioned, obliges the state to observe international treaties to which Afghanistan is a party. However, this provision does not explicitly state that treaties automatically acquire the force of domestic law upon ratification. Instead, the requirement for National Assembly ratification under Article 90 suggests that treaties must pass through a domestic political process before becoming binding, a hallmark of dualist systems. Furthermore, there is no constitutional provision that grants treaties direct effect or supremacy over conflicting domestic laws, which would be indicative of a monist approach.
In practice, the implementation of treaties in Afghanistan often requires additional legislative or executive action to translate international obligations into enforceable domestic law. For example, Afghanistan has ratified several key international human rights treaties, such as the International Covenant on Civil and Political Rights (ICCPR) in 1983. However, the enforcement of these rights within Afghanistan has historically been inconsistent, partly due to the lack of specific domestic legislation aligning national laws with treaty obligations. This suggests that ratification alone does not suffice to make treaty provisions directly applicable in Afghan courts or administrative practices, reinforcing the dualist characterization.
Moreover, the Afghan legal system operates within a framework that prioritizes Islamic law, as enshrined in Article 3 of the Constitution. This adds a layer of complexity to the integration of international treaties, particularly when treaty provisions conflict with Sharia principles. While Article 7 commits the state to international treaties, the lack of a clear hierarchy between international obligations and domestic religious norms means that courts and policymakers often face challenges in reconciling these sources of law. This ambiguity further supports the view that Afghanistan operates as a dualist state, where treaties do not automatically supersede domestic law but require harmonization through legislative or judicial processes.
Scholarly analysis also supports the dualist interpretation of Afghanistan’s approach to international law. Research indicates that Afghan legal practice often necessitates explicit domestic legislation to give effect to treaty obligations, particularly in areas such as trade, security, and human rights (Muneer, 2015). This process ensures that international commitments are tailored to the local context, though it can also delay or hinder implementation, especially in a country with limited institutional capacity and ongoing security challenges.
In conclusion, Afghanistan’s approach to integrating treaties into national law aligns more closely with a dualist framework, where treaties require domestic ratification and, in many cases, additional legislative action to become enforceable. This system reflects a cautious approach to international law, balancing the need for global engagement with the preservation of national sovereignty and cultural norms. However, the lack of clear constitutional guidance on the hierarchy of international and domestic law creates practical challenges for treaty implementation, a factor that other states must consider when entering into agreements with Afghanistan.
Afghanistan 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, often referred to as the “treaty on treaties.” Adopted on May 23, 1969, and entering into force on January 27, 1980, the VCLT codifies customary international law on the formation, interpretation, amendment, and termination of treaties. It provides a comprehensive framework for how states should engage in treaty-making, ensuring clarity and predictability in international relations. As of today, 116 states have ratified the VCLT, though its principles are often considered binding as customary international law even for non-party states (Vienna Convention on the Law of Treaties, 1969).
Afghanistan’s status with respect to the VCLT is noteworthy because it is not a party to the Convention. According to the records of the United Nations Treaty Series, Afghanistan has neither signed nor ratified the VCLT as of the latest available data. This absence raises questions about how Afghanistan approaches treaty-making and how other states should engage with Afghanistan in the formation of international agreements. While non-ratification does not necessarily imply a rejection of the VCLT’s principles—many of which are recognized as customary international law—it does signal potential differences in treaty practice that other states must consider.
For Afghanistan, the non-ratification of the VCLT may reflect historical and political factors rather than a deliberate rejection of international norms. The period following the adoption of the VCLT in 1969 was marked by significant internal instability in Afghanistan, including the Soviet invasion in 1979, decades of civil war, and the Taliban regime from 1996 to 2001. These circumstances likely limited Afghanistan’s capacity to engage with international legal instruments during key periods. Even after the establishment of the Islamic Republic in 2004, Afghanistan’s focus on rebuilding state institutions and addressing security challenges may have taken precedence over formal accession to treaties like the VCLT.
Despite not being a party to the VCLT, Afghanistan is still bound by many of its provisions under customary international law. Principles such as pacta sunt servanda (agreements must be kept), the rules on treaty interpretation (Articles 31 and 32 of the VCLT), and the prohibition on the use of force to coerce treaty consent are widely accepted as binding on all states, regardless of ratification status. Therefore, Afghanistan’s treaty-making practices are expected to align with these customary norms, as evidenced by its participation in numerous bilateral and multilateral agreements, including security pacts with the United States and membership in international organizations like the United Nations.
For other countries seeking to enter into treaties with Afghanistan, the non-ratification of the VCLT suggests the need for careful attention to the procedural and substantive aspects of treaty formation. First, states should ensure that treaty negotiations adhere to Afghanistan’s domestic constitutional requirements, particularly the need for National Assembly ratification as per Article 90 of the 2004 Constitution. Failure to account for this step could result in delays or challenges to the treaty’s validity within Afghanistan. Second, given the dualist nature of Afghanistan’s legal system, states should anticipate that treaty obligations may not be immediately enforceable in Afghan courts without additional domestic legislation. This could impact the implementation of agreements, particularly in areas such as trade, human rights, or environmental protection, where domestic harmonization is critical.
Third, other states should prioritize clarity in treaty drafting to avoid misunderstandings, especially since Afghanistan may not explicitly rely on the VCLT’s interpretive guidelines. Explicit provisions on dispute resolution, amendment procedures, and termination clauses can help mitigate potential conflicts. Finally, states should be aware of Afghanistan’s historical and cultural context, including the influence of Islamic law on legal interpretation, which may shape how treaties are perceived and implemented domestically. While the VCLT provides a universal framework, Afghanistan’s unique circumstances necessitate a tailored approach to treaty-making.
In summary, Afghanistan’s non-party status to the VCLT does not preclude engagement with the country through treaties, but it underscores the importance of understanding its domestic legal and political environment. Other states can still form effective and binding agreements with Afghanistan by adhering to customary international law and respecting the constitutional processes outlined in the 2004 Constitution.
Challenges and Opportunities in Afghanistan’s Treaty-Making Process
Afghanistan’s treaty-making process, while grounded in a constitutional framework, faces several challenges that impact its ability to fulfill international commitments. One significant challenge is the country’s ongoing political instability and security issues, particularly following the Taliban’s return to power in August 2021. This has raised questions about the continuity of international agreements signed under the previous government and the capacity of current authorities to engage in treaty-making processes. The lack of international recognition of the Taliban government by many states further complicates Afghanistan’s ability to enter into new treaties or uphold existing ones.
Another challenge is the limited institutional capacity within Afghanistan’s governmental structures. The legislative and judicial branches, which play critical roles in treaty ratification and oversight, often face resource constraints and political pressures that hinder their effectiveness. This can lead to delays in the ratification process or inconsistent implementation of treaty obligations, as seen in the case of human rights treaties where domestic enforcement remains weak.
Despite these challenges, there are opportunities for Afghanistan to strengthen its treaty-making framework. First, capacity-building initiatives supported by international partners could enhance the technical expertise of Afghan officials involved in treaty negotiations and implementation. Second, greater public awareness and involvement in the treaty-making process could foster domestic support for international commitments, ensuring that agreements reflect the needs and aspirations of the Afghan people. Finally, Afghanistan’s strategic location and historical role as a connector between regions present opportunities for economic and security treaties that could drive development and stability, provided there is political will and international cooperation.
Conclusion
Afghanistan’s treaty-making process is shaped by a constitutional framework that balances executive authority, legislative oversight, and judicial review, as outlined in the 2004 Constitution. Key provisions such as Articles 7, 64, 90, and 121 establish the legal basis for entering into international agreements, with the National Assembly playing a central role in ratification. The country’s dualist approach to international law means that treaties generally require domestic legislative action to be enforceable, reflecting a cautious integration of international obligations into national law. Afghanistan’s non-ratification of the Vienna Convention on the Law of Treaties (1969) does not exempt it from customary international norms, but it highlights the need for other states to carefully navigate Afghanistan’s unique legal and political landscape when forming agreements.
The challenges of political instability and limited institutional capacity underscore the complexities of treaty-making in Afghanistan, yet opportunities for improvement exist through capacity building and increased public engagement. For the international community, understanding Afghanistan’s constitutional framework and dualist approach is essential for fostering effective and sustainable treaty relationships. As Afghanistan continues to navigate its place in the global order, its treaty-making process will remain a critical mechanism for addressing national priorities and building partnerships on the world stage.
References
- Constitution of the Islamic Republic of Afghanistan. (2004). Retrieved from official government sources and legal databases.
- Muneer, M. (2015). Afghanistan: A Monist or Dualist State. Academia.edu. Available at: https://www.academia.edu/10121776/Afghanistan_a_Monist_or_Dualist_state
- Vienna Convention on the Law of Treaties. (1969). United Nations Treaty Series. Available at: https://legal.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf
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