Introduction
Treaties serve as fundamental instruments of international law, enabling states to establish formal agreements and commitments that govern their mutual relations. For a small, landlocked nation like Bhutan, nestled in the Himalayas, the process of treaty-making is not only a means of asserting sovereignty but also a critical mechanism for engaging with the global community. Bhutan’s unique geopolitical position, historical isolation, and commitment to Gross National Happiness (GNH) as a development philosophy shape its approach to international agreements. This article provides an in-depth examination of Bhutan’s treaty-making process, focusing on the constitutional guidelines that underpin this process, the country’s international commitments, and the mechanisms for incorporating treaties into national law. Additionally, it explores whether Bhutan adheres to a monist or dualist approach to international law and investigates Bhutan’s status with respect to the Vienna Convention on the Law of Treaties (VCLT) of 1969, offering insights for other states engaging in treaty-making with Bhutan.
Constitutional Framework for Treaty-Making in Bhutan
Bhutan’s transition to a constitutional monarchy in 2008 marked a significant turning point in its governance structure, including the formalization of processes related to foreign policy and international agreements. The Constitution of the Kingdom of Bhutan, adopted on July 18, 2008, serves as the supreme legal document guiding the country’s engagement with the international community. Several provisions within the Constitution delineate the authority and procedures for entering into treaties, reflecting a balance between executive initiative and parliamentary oversight.
Article 10 of the Constitution establishes the Parliament of Bhutan as a bicameral body comprising the National Assembly and the National Council, with a key role in matters of national importance, including international agreements. Specifically, Article 10, Clause 25, empowers the Parliament to “ratify international agreements, conventions, treaties, protocols and covenants that involve territorial boundary issues, national security or sovereignty” (Constitution of Bhutan, 2008, p. 23). This clause underscores the critical role of legislative approval in treaties that impact fundamental aspects of the state, ensuring democratic oversight in significant international commitments.
Furthermore, the executive authority for initiating and negotiating treaties resides with the Druk Gyalpo (King) and the government. Article 2, Clause 16, states that the Druk Gyalpo, in consultation with the Prime Minister and other relevant authorities, represents Bhutan in international affairs (Constitution of Bhutan, 2008, p. 9). While the King holds symbolic and unifying authority, the day-to-day responsibility for treaty negotiations often falls to the Ministry of Foreign Affairs, acting under the directives of the Cabinet. This delineation of responsibilities reflects a collaborative approach between the monarchy and elected representatives, ensuring that treaty-making aligns with national interests and constitutional values.
In practice, the process of treaty-making in Bhutan typically begins with negotiations conducted by the executive branch, followed by submission of the draft treaty to the Parliament for ratification if it falls under the categories outlined in Article 10, Clause 25. For treaties that do not involve issues of sovereignty, security, or territorial boundaries, the executive may conclude agreements without mandatory parliamentary approval, although consultation with relevant stakeholders is common. This bifurcated process allows Bhutan to maintain flexibility in minor international engagements while safeguarding national interests through rigorous scrutiny of significant treaties.
Additionally, Article 9, Clause 17 of the Constitution mandates that the state “endeavour to foster respect for international law and treaty obligations in the dealings of the nation with other nations” (Constitution of Bhutan, 2008, p. 19). This provision embeds a commitment to international legal norms within Bhutan’s constitutional framework, emphasizing the importance of honoring treaty obligations as a matter of national policy. It also reflects Bhutan’s historical emphasis on peaceful coexistence and diplomacy, rooted in Buddhist principles of harmony and non-violence.
Monist or Dualist Approach: Bhutan’s Perspective on International Law
The relationship between international law and domestic law is often categorized into monist and dualist approaches. Monist systems view international and national law as part of a single legal order, where treaties can have direct effect in domestic law upon ratification. In contrast, dualist systems treat international and domestic law as separate spheres, requiring specific legislative action to incorporate treaties into national law. Determining whether Bhutan adheres to a monist or dualist approach is crucial for understanding how treaties are translated into enforceable obligations within the country.
Bhutan’s legal system does not explicitly declare itself as monist or dualist in the Constitution, and there is limited judicial precedent or scholarly analysis to conclusively categorize its approach. However, an examination of constitutional provisions and state practice suggests a predominantly dualist orientation. Article 9, Clause 17, while committing Bhutan to respect international law, does not specify that treaties automatically become part of domestic law upon ratification. Instead, the requirement for parliamentary ratification of certain treaties, as stipulated in Article 10, Clause 25, implies that international agreements must often be domesticated through legislative or administrative measures to have legal effect within Bhutan.
For instance, when Bhutan enters into treaties related to trade or environmental conservation—such as its commitments under the United Nations Framework Convention on Climate Change (UNFCCC)—the government typically enacts specific policies or laws to implement treaty obligations. This process indicates that treaties do not have direct applicability in Bhutanese courts without prior incorporation into national legislation. This dualist tendency is further evidenced by the absence of constitutional provisions that grant treaties precedence over conflicting domestic laws, a feature common in monist systems.
However, there are elements of Bhutan’s legal culture that suggest a nuanced approach. The judiciary in Bhutan, guided by Article 21 of the Constitution, is tasked with upholding the principles of justice and international norms (Constitution of Bhutan, 2008, p. 34). Courts may refer to international treaties as persuasive authority when interpreting domestic laws, particularly in areas such as human rights or environmental protection, where Bhutan has made international commitments. This practice indicates a pragmatic blending of monist principles within a primarily dualist framework, allowing Bhutan to align with global standards while retaining sovereignty over its legal system.
Incorporation of Treaties into National Law
The process of incorporating treaties into Bhutan’s national law follows a structured yet context-dependent pathway, influenced by the nature of the treaty and its implications for domestic governance. As noted earlier, treaties involving sovereignty, security, or territorial issues require parliamentary ratification under Article 10, Clause 25. Once ratified, the government may need to enact implementing legislation to ensure compliance with treaty obligations, particularly if existing laws are insufficient or contradictory.
For example, Bhutan’s participation in the Paris Agreement on climate change necessitated the development of national policies and regulations to align with its commitments to reduce greenhouse gas emissions and promote sustainable development. The Ministry of Agriculture and Forests, in collaboration with other agencies, formulated strategies and legal frameworks to operationalize these international obligations at the domestic level. This process exemplifies how treaties are translated into actionable national laws through executive and legislative coordination.
In cases where treaties do not require parliamentary ratification, the executive branch may issue administrative directives or regulations to implement treaty provisions. This approach is often used for technical agreements or memoranda of understanding (MoUs) that do not fundamentally alter existing laws or policies. However, the lack of automatic incorporation means that treaty provisions are not directly enforceable in Bhutanese courts unless domesticated through legislative or regulatory action.
Moreover, Bhutan’s commitment to Gross National Happiness as a guiding philosophy influences how treaties are integrated into national law. Treaties related to economic development, environmental sustainability, and cultural preservation are often prioritized, with implementation mechanisms designed to balance progress with the well-being of citizens. This unique perspective underscores Bhutan’s approach to treaty incorporation, ensuring that international commitments align with domestic values and priorities.
Bhutan’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 widely regarded as the authoritative framework for the formation, interpretation, and termination of treaties under international law. Often referred to as the “treaty on treaties,” the VCLT codifies customary international law and provides guidelines for states to follow in their treaty-making endeavors (Vienna Convention on the Law of Treaties, 1969). As of January 2018, 116 states have ratified the VCLT, with many others recognizing its provisions as reflective of customary international law (Wikipedia, 2023).
Bhutan, however, is not a party to the VCLT. According to available information from international legal databases and the United Nations Treaty Collection, Bhutan has neither signed nor ratified the Convention as of the latest updates. This status raises questions about how Bhutan approaches treaty-making in the absence of formal adherence to the VCLT and what implications this has for other states engaging with Bhutan in international agreements.
Despite not being a party to the VCLT, Bhutan generally adheres to customary international law principles enshrined in the Convention, as reflected in its constitutional commitment to international law under Article 9, Clause 17. For instance, Bhutan respects fundamental principles such as pacta sunt servanda (agreements must be kept) and good faith in treaty negotiations, which are core tenets of the VCLT. This adherence suggests that Bhutan’s non-participation in the VCLT does not indicate a rejection of international norms but rather a cautious approach to formal commitments, possibly due to capacity constraints or a preference for bilateral and regional agreements over multilateral frameworks.
For other countries seeking to enter into treaties with Bhutan, the absence of VCLT ratification means that reliance on customary international law and explicit agreement on procedural aspects of treaty-making is essential. States should ensure clarity in negotiations, documentation, and dispute resolution mechanisms, as Bhutan may not be bound by specific VCLT provisions such as those related to treaty interpretation (Articles 31-33) or invalidity (Articles 46-53). Furthermore, other nations should recognize Bhutan’s emphasis on sovereignty and cultural values, ensuring that treaties respect the principles of Gross National Happiness and sustainable development.
Bhutan’s non-party status to the VCLT also highlights broader lessons for the international community. Small states with limited diplomatic resources may prioritize selective engagement with international legal instruments, focusing on agreements that directly align with national priorities. Other countries can facilitate treaty-making with Bhutan by providing technical assistance, capacity-building, and flexible frameworks that accommodate Bhutan’s unique governance model.
International Commitments and Treaty-Making Practices
Bhutan’s international commitments are shaped by its foreign policy principles of peaceful coexistence, non-alignment, and regional cooperation. The country is a member of several international and regional organizations, including the United Nations (since 1971), the South Asian Association for Regional Cooperation (SAARC), and the Bay of Bengal Initiative for Multi-Sectoral Technical and Economic Cooperation (BIMSTEC). Through these memberships, Bhutan has entered into numerous treaties and agreements covering areas such as trade, environmental protection, and cultural exchange.
One of Bhutan’s most significant bilateral relationships is with India, formalized through the Treaty of Friendship of 1949, updated in 2007. This treaty, which governs cooperation in areas such as security and economic assistance, exemplifies Bhutan’s pragmatic approach to treaty-making, balancing national autonomy with strategic partnerships. The process of updating the treaty in 2007 involved consultations between the executive branches of both countries, followed by ratification procedures in accordance with Bhutan’s constitutional framework, demonstrating adherence to legal and democratic principles (Ministry of Foreign Affairs, Bhutan, 2007).
Bhutan’s commitment to environmental sustainability is another cornerstone of its international engagements. As a signatory to the Paris Agreement and other environmental treaties, Bhutan has positioned itself as a global leader in carbon neutrality and conservation. The incorporation of these treaties into national law often involves collaboration between government agencies, local communities, and international partners, ensuring that obligations are met in a manner consistent with Bhutan’s cultural and ecological values.
However, Bhutan’s limited diplomatic presence and resources sometimes pose challenges to its treaty-making capacity. With only a handful of embassies and missions abroad, Bhutan relies heavily on bilateral negotiations and regional platforms to engage in international agreements. This constraint underscores the need for other states to adopt a cooperative and supportive approach when entering into treaties with Bhutan, recognizing the structural limitations while appreciating the country’s commitment to its obligations.
Challenges and Opportunities in Bhutan’s Treaty-Making Process
Despite its structured constitutional framework, Bhutan faces several challenges in its treaty-making process. One significant issue is the capacity to negotiate and implement complex multilateral agreements, given the country’s small administrative and diplomatic infrastructure. This limitation can result in delays in ratification or implementation, particularly for treaties requiring extensive legal or policy reforms.
Additionally, the dualist nature of Bhutan’s legal system can create discrepancies between international commitments and domestic enforcement. Without automatic incorporation of treaties into national law, there is a risk of non-compliance or inconsistent application, especially in areas where legislative action is delayed or insufficient. Addressing this challenge requires strengthening institutional mechanisms for treaty implementation, including capacity-building for lawmakers and administrators.
On the other hand, Bhutan’s treaty-making process offers unique opportunities for international collaboration. The country’s emphasis on Gross National Happiness provides a novel framework for negotiating treaties that prioritize well-being over purely economic considerations. Other states can learn from Bhutan’s holistic approach, incorporating elements of sustainability and cultural preservation into their own treaty-making practices.
Furthermore, Bhutan’s commitment to international law, despite not being a party to the VCLT, demonstrates that adherence to customary norms can be a viable alternative for states with limited resources. This approach encourages flexibility and mutual understanding in international relations, fostering trust and cooperation between Bhutan and its treaty partners.
Conclusion
Bhutan’s treaty-making process is a reflection of its unique constitutional framework, cultural values, and geopolitical context. Guided by the Constitution of 2008, particularly Articles 2, 9, and 10, Bhutan balances executive initiative with parliamentary oversight to ensure that international commitments align with national interests. The country’s predominantly dualist approach to international law necessitates the incorporation of treaties into domestic legislation, a process that varies depending on the nature and significance of the agreement. While Bhutan is not a party to the Vienna Convention on the Law of Treaties of 1969, it adheres to customary international legal principles, offering a model of engagement that prioritizes sovereignty and cultural identity.
For other states, engaging in treaty-making with Bhutan requires an understanding of its legal and cultural framework, as well as patience in navigating capacity constraints. By respecting Bhutan’s commitment to Gross National Happiness and sustainable development, treaty partners can build mutually beneficial agreements that contribute to global peace and cooperation. Ultimately, Bhutan’s approach to treaties underscores the diversity of international legal systems and the importance of adaptability in fostering effective diplomatic relations.
References
- Constitution of the Kingdom of Bhutan. (2008). Royal Government of Bhutan.
- Vienna Convention on the Law of Treaties. (1969). United Nations Treaty Series, Vol. 1155, p. 331.
- Ministry of Foreign Affairs, Bhutan. (2007). Treaty of Friendship between Bhutan and India.
- Wikipedia. (2023). Vienna Convention on the Law of Treaties. Retrieved from online sources.
