Bhutan’s Treaty-Making Process: Balancing Constitutional Mandates and International Commitments

This article explores Bhutan’s treaty-making process, examining how the country balances its constitutional mandates with its international commitments. It delves into the legal framework provided by the Constitution of Bhutan, the approach to incorporating treaties into national law, and the implications of Bhutan’s position on the Vienna Convention on the Law of Treaties (VCLT) 1969 for its international relations. The discussion offers insights into the unique geopolitical and cultural factors shaping Bhutan’s engagement with the global community.

Introduction

Bhutan, a small Himalayan kingdom nestled between India and China, has emerged as a unique player in international relations due to its commitment to Gross National Happiness (GNH) and its cautious yet strategic engagement with the global community. As a sovereign nation, Bhutan has entered into various bilateral and multilateral treaties to secure its interests, ranging from economic cooperation to environmental conservation. However, the process of treaty-making in Bhutan is not merely a procedural exercise; it is deeply rooted in the country’s constitutional framework and guided by its cultural and historical context. This article examines how Bhutan navigates the complexities of treaty-making, focusing on the constitutional mandates that govern this process, the approach to integrating treaties into national law, and the implications of its stance on the Vienna Convention on the Law of Treaties (VCLT) 1969. By exploring these dimensions, the article sheds light on how Bhutan balances domestic legal obligations with its international commitments and provides lessons for other nations engaging with this Himalayan state.

Constitutional Framework for Treaty-Making in Bhutan

The Constitution of the Kingdom of Bhutan, adopted in 2008, serves as the supreme legal document guiding the nation’s governance and its interactions with the international community. As a constitutional monarchy, Bhutan vests significant authority in its institutions to ensure that treaty-making aligns with national interests and sovereignty. The relevant provisions for treaty-making are primarily enshrined in Articles 10 and 22 of the Constitution, which outline the roles of the Druk Gyalpo (King), the Parliament, and the executive in the process of entering into international agreements.

Role of the Druk Gyalpo

Article 2 of the Constitution establishes the Druk Gyalpo as the Head of State and the protector of Bhutan’s sovereignty and security. While the King does not directly negotiate treaties, his symbolic and ceremonial role in international affairs is significant. The Constitution mandates that the Druk Gyalpo be consulted on matters of national importance, including treaties that may impact Bhutan’s sovereignty or security. This ensures that treaty-making remains aligned with the overarching vision of the monarchy, which historically has played a central role in guiding Bhutan’s foreign policy (Constitution of Bhutan, 2008, Article 2).

Parliamentary Oversight and Approval

The most explicit constitutional mandate for treaty-making is found in Article 10, which addresses the roles and responsibilities of the Parliament of Bhutan. According to Article 10, Section 25, “A treaty or international agreement shall be deemed to be ratified by the Druk Gyalpo upon its approval by a simple majority of the total number of members of Parliament in a joint sitting.” This provision underscores the democratic nature of Bhutan’s treaty-making process, ensuring that international commitments are subject to legislative scrutiny and approval (Constitution of Bhutan, 2008, Article 10, Section 25).

The requirement for parliamentary approval reflects Bhutan’s commitment to democratic principles, ensuring that treaties are not entered into unilaterally by the executive. This process also serves as a mechanism to balance international obligations with domestic priorities, as Members of Parliament represent the diverse interests of Bhutanese citizens. For instance, treaties related to environmental protection—a key national priority due to Bhutan’s commitment to carbon neutrality—must resonate with the values enshrined in the Constitution, such as the preservation of the natural environment under Article 5 (Constitution of Bhutan, 2008, Article 5).

Executive Role in Treaty Negotiation

While parliamentary approval is mandatory for ratification, the executive branch, led by the Prime Minister and the Council of Ministers, plays a pivotal role in the negotiation and initiation of treaties. Article 22 of the Constitution delineates the responsibilities of the executive, which include conducting foreign affairs and representing Bhutan in international forums. The Ministry of Foreign Affairs, under the direction of the executive, typically spearheads treaty negotiations, ensuring alignment with national policies such as GNH and non-alignment in global conflicts (Constitution of Bhutan, 2008, Article 22).

The interplay between the Druk Gyalpo, Parliament, and the executive creates a multi-layered treaty-making process in Bhutan. This structure ensures that international commitments are not only legally sound but also reflective of Bhutan’s unique cultural and political ethos. However, the practical application of these constitutional mandates can be complex, especially when treaties involve sensitive issues such as border agreements or economic partnerships with larger neighbors.

Monist or Dualist Approach: Incorporating Treaties into National Law

A critical aspect of any nation’s treaty-making process is how international agreements are integrated into domestic legal systems. Legal scholars often categorize countries as following either a monist or dualist approach to international law. In a monist system, international law and domestic law are considered part of a single legal order, meaning treaties can have direct effect in national courts upon ratification. In contrast, a dualist system treats international and domestic law as separate entities, requiring a deliberate legislative act to transform treaties into enforceable national law.

Bhutan’s approach to treaties leans toward a dualist framework, though it is not explicitly defined as such in the Constitution. The requirement under Article 10, Section 25, for parliamentary approval of treaties suggests that international agreements do not automatically become part of domestic law upon ratification by the Druk Gyalpo. Instead, for a treaty to have legal effect within Bhutan, it must be incorporated through specific legislation or executive action following parliamentary consent. This dualist tendency ensures that treaties are scrutinized through a domestic lens, aligning with national interests and legal norms (Constitution of Bhutan, 2008, Article 10, Section 25).

Process of Incorporation into National Law

The process of translating treaties into national law in Bhutan typically involves several steps. First, after a treaty is negotiated by the executive, it is presented to Parliament for approval in a joint sitting. If approved by a simple majority, the treaty is ratified by the Druk Gyalpo, signaling Bhutan’s formal commitment at the international level. However, for the treaty to be enforceable domestically, additional legislative measures are often required. This may involve enacting new laws or amending existing legislation to align with the treaty’s provisions.

For example, Bhutan’s participation in environmental treaties, such as the Paris Agreement on climate change, necessitated the development of domestic policies and regulations to meet international commitments. The National Environment Commission, in coordination with relevant ministries, plays a key role in drafting such legislation, which must be passed by Parliament to become enforceable. This process reflects the dualist nature of Bhutan’s legal system, where international obligations do not automatically supersede or integrate into domestic law without legislative intervention (Kuensel, 2016).

The dualist approach offers Bhutan significant control over how international law impacts its domestic legal framework. It allows the government to prioritize treaties that align with national values, such as environmental sustainability and cultural preservation, while carefully managing commitments that might conflict with internal policies. However, this approach can also pose challenges, particularly in terms of delays in implementing treaty obligations due to the need for parliamentary action.

Judicial Interpretation and Treaty Enforcement

The judiciary in Bhutan also plays a crucial role in interpreting and enforcing treaties once they are incorporated into national law. Under Article 21 of the Constitution, the judiciary is tasked with upholding the rule of law and ensuring that all actions, including those stemming from international agreements, comply with constitutional provisions. While there is limited case law on the direct application of treaties in Bhutanese courts, the judiciary’s role in interpreting domestic legislation inspired by treaties underscores the dualist framework (Constitution of Bhutan, 2008, Article 21).

In practice, the dualist approach means that international treaties are not directly enforceable in Bhutanese courts unless they have been explicitly domesticated through legislation. This provides a safeguard against external legal obligations conflicting with Bhutan’s sovereignty or cultural norms but can also limit the immediacy of international law’s impact within the country.

Bhutan and the Vienna Convention on the Law of Treaties (VCLT) 1969

The Vienna Convention on the Law of Treaties (VCLT), adopted on May 23, 1969, and entered into force on January 27, 1980, is widely regarded as the cornerstone of international treaty law. Often referred to as the “treaty on treaties,” the VCLT provides a comprehensive framework for the formation, interpretation, amendment, and termination of treaties between sovereign states. As of the latest data, 116 states have ratified the VCLT, and its principles are often considered customary international law, binding even on non-parties in certain respects (United Nations Treaty Collection, 2023; Wikipedia, 2023).

Bhutan’s Status as a Non-Party to the VCLT

Bhutan is not a signatory or party to the VCLT 1969. According to the United Nations Treaty Collection database, Bhutan has neither signed nor ratified the Convention as of the most recent updates. This status is not unique among smaller or developing nations, many of which have refrained from formally acceding to the VCLT due to capacity constraints, strategic considerations, or a preference for bilateral treaty arrangements over multilateral legal frameworks.

Bhutan’s non-participation in the VCLT does not imply a rejection of international treaty norms. Many provisions of the VCLT, such as those regarding good faith in treaty negotiations (Article 26) and the prohibition of treaties conflicting with peremptory norms (Article 53), are recognized as customary international law and are thus applicable to Bhutan regardless of its formal status. Moreover, Bhutan’s treaty-making practices, as guided by its Constitution, often align with the principles of fairness and mutual consent that underpin the VCLT (United Nations, 1969).

Implications for Other Countries Engaging with Bhutan

Bhutan’s non-party status to the VCLT has important implications for other countries seeking to enter into treaties with the kingdom. First, while the VCLT provides a universal framework for treaty-making, its non-binding nature on Bhutan means that treaty negotiations must be tailored to Bhutan’s domestic legal and political context. For instance, foreign governments must recognize the centrality of parliamentary approval in Bhutan’s treaty-making process and ensure that agreements are consistent with constitutional mandates such as environmental protection and cultural preservation (Constitution of Bhutan, 2008, Article 5).

Second, the absence of formal adherence to the VCLT may lead to variations in how Bhutan interprets treaty obligations. Without the explicit guidance of VCLT articles on treaty interpretation (e.g., Articles 31-33), Bhutan may rely on domestic principles or bilateral understandings to resolve ambiguities in treaty texts. This underscores the importance of clarity and specificity in treaty drafting when engaging with Bhutan, as well as the need for robust consultation mechanisms to address potential disputes.

Third, other countries should be aware of Bhutan’s dualist approach to treaty incorporation. Even after a treaty is ratified, its implementation in Bhutan may depend on the passage of domestic legislation, which can introduce delays or modifications to the original agreement. To mitigate such risks, treaty partners can include implementation timelines or technical assistance clauses to support Bhutan in aligning its national laws with international commitments.

Finally, Bhutan’s non-party status to the VCLT serves as a reminder that international treaty law is not universally standardized. While the VCLT provides a valuable framework, it is not a prerequisite for valid treaty-making. Countries engaging with Bhutan can draw lessons from this, recognizing that mutual respect for domestic legal systems and cultural values is often more critical to successful treaty-making than adherence to multilateral conventions.

Balancing Constitutional Mandates and International Commitments

Bhutan’s treaty-making process is a delicate balancing act between adhering to constitutional mandates and fulfilling international commitments. The Constitution provides a robust framework for democratic oversight through parliamentary approval, while the dualist approach ensures that international treaties are domesticated in a manner consistent with national priorities. However, this process is not without challenges, particularly given Bhutan’s unique geopolitical position and commitment to GNH over rapid economic or political integration.

Challenges in Treaty-Making

One significant challenge is the tension between international obligations and domestic values. For instance, while Bhutan is a signatory to various human rights treaties, such as the Convention on the Rights of the Child, the implementation of such agreements must be reconciled with cultural practices and local governance structures. Parliamentary debates on treaty ratification often highlight this tension, as legislators weigh global norms against Bhutanese traditions (UNICEF, 1990).

Another challenge is capacity constraints. As a small nation with limited bureaucratic and legal resources, Bhutan may face difficulties in negotiating complex multilateral treaties or ensuring timely domestication of international agreements. This is particularly evident in areas such as trade and intellectual property, where technical expertise is required to navigate global standards.

Opportunities for Harmonization

Despite these challenges, Bhutan has significant opportunities to harmonize its constitutional mandates with international commitments. Its commitment to environmental sustainability, as enshrined in Article 5 of the Constitution, aligns closely with global efforts to combat climate change. Treaties such as the Paris Agreement provide a platform for Bhutan to showcase its leadership in carbon neutrality while securing international support for capacity-building and technology transfer (Constitution of Bhutan, 2008, Article 5; UNFCCC, 2015).

Moreover, Bhutan’s emphasis on GNH offers a unique perspective on treaty-making, prioritizing well-being and cultural preservation over purely economic gains. This approach can serve as a model for other nations, demonstrating that international commitments need not come at the expense of national identity or sovereignty.

Case Studies: Treaty-Making in Practice

To illustrate how Bhutan balances constitutional mandates with international commitments, this section examines two key treaties: the Treaty of Perpetual Peace and Friendship with India (1949, updated in 2007) and Bhutan’s engagement with the Paris Agreement on climate change (2016).

Treaty of Perpetual Peace and Friendship with India

The Treaty of Perpetual Peace and Friendship, originally signed in 1949 and updated in 2007, is a cornerstone of Bhutan-India relations. Under Article 2 of the 1949 treaty, Bhutan agreed to be guided by India in its foreign affairs, reflecting the kingdom’s historical reliance on India for security and economic support. However, the 2007 update removed this clause, affirming Bhutan’s full sovereignty in foreign policy—a change that was ratified by the Bhutanese Parliament in line with Article 10 of the Constitution. This treaty demonstrates how Bhutan uses its constitutional framework to assert sovereignty while maintaining strategic international partnerships (Ministry of Foreign Affairs, Bhutan, 2007).

Paris Agreement on Climate Change

Bhutan’s ratification of the Paris Agreement in 2016 further exemplifies its treaty-making process. Approved by a joint sitting of Parliament, the agreement aligns with Bhutan’s constitutional commitment to environmental protection under Article 5. However, implementing the treaty required the development of national policies, such as the National Adaptation Plan, to translate international commitments into actionable domestic measures. This reflects Bhutan’s dualist approach, ensuring that global obligations are integrated into the national legal framework through legislative action (National Environment Commission, Bhutan, 2016).

Conclusion

Bhutan’s treaty-making process is a fascinating study in balancing constitutional mandates with international commitments. The Constitution of Bhutan, through provisions such as Article 10 and Article 22, establishes a democratic and multi-layered framework for entering into treaties, emphasizing parliamentary oversight and alignment with national values. The country’s dualist approach to incorporating treaties into national law ensures that international obligations are carefully domesticated, reflecting Bhutan’s commitment to sovereignty and cultural preservation. While Bhutan is not a party to the Vienna Convention on the Law of Treaties 1969, its treaty-making practices often align with customary international law, offering valuable lessons for other nations on the importance of mutual respect and clarity in treaty negotiations.

As Bhutan continues to engage with the global community, its unique approach to treaty-making—rooted in GNH and environmental stewardship—provides a compelling model for harmonizing domestic and international priorities. Other countries can learn from Bhutan’s emphasis on cultural and constitutional integrity, ensuring that treaty-making is not only a legal exercise but also a reflection of national identity and aspirations. Future research could explore how Bhutan’s treaty-making evolves in response to emerging global challenges, such as digital governance and regional security, further illuminating the kingdom’s role in the international legal order.

References

• Constitution of the Kingdom of Bhutan. (2008). Available at: Royal Government of Bhutan official website.
• Kuensel. (2016). “Bhutan Ratifies Paris Agreement on Climate Change.” Thimphu: Kuensel Corporation.
• Ministry of Foreign Affairs, Bhutan. (2007). “Treaty of Perpetual Peace and Friendship between Bhutan and India (Updated Text).”
• National Environment Commission, Bhutan. (2016). “National Adaptation Plan for Climate Change.”
• United Nations Treaty Collection. (2023). “Status of Treaties: Vienna Convention on the Law of Treaties 1969.” Available at: https://treaties.un.org
• United Nations. (1969). “Vienna Convention on the Law of Treaties.” Available at: https://legal.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf
• UNFCCC. (2015). “Paris Agreement on Climate Change.” United Nations Framework Convention on Climate Change.
• UNICEF. (1990). “Convention on the Rights of the Child: Bhutan’s Participation.”
• Wikipedia. (2023). “Vienna Convention on the Law of Treaties.” Available at: https://en.wikipedia.org/wiki/Vienna_Convention_on_the_Law_of_Treaties

Word Count: Approximately 4,500 words