Introduction
The treaty-making process of a state is a critical aspect of its engagement with the international community, reflecting both its constitutional framework and its commitment to international law. In the case of Botswana, a landlocked country in Southern Africa with a history of stable democratic governance, the process of entering into treaties is shaped by its constitutional provisions, legal traditions inherited from British colonial rule, and its approach to international obligations. This article explores Botswana’s treaty-making process, delving into the constitutional foundations that govern this process, the country’s approach to integrating international commitments into its domestic legal system, and its relationship with key international legal instruments such as the Vienna Convention on the Law of Treaties (VCLT) of 1969. By examining these elements, the article aims to provide a comprehensive understanding of how Botswana navigates its international commitments and to offer insights for other states engaging in treaty-making with this nation.
The analysis will be structured as follows: first, it will outline the constitutional provisions in Botswana that regulate treaty-making, focusing on the roles of the executive, legislative, and judicial branches. Second, it will discuss whether Botswana adheres to a monist or dualist approach in its treatment of international law within the domestic sphere, including the process of translating treaties into national law. Third, the article will assess Botswana’s status with respect to the VCLT 1969 and the implications of this for its treaty-making practices. Finally, it will consider how Botswana’s approach can inform other countries in establishing effective and legally sound treaty relationships with it. This exploration is vital in a globalized world where treaties play a central role in addressing issues ranging from trade and environmental protection to human rights and security.
Constitutional Foundations of Treaty-Making in Botswana
The legal framework for treaty-making in Botswana is primarily derived from its Constitution, which was adopted at the time of independence in 1966. The Constitution of Botswana establishes a republican form of government with a clear separation of powers among the executive, legislative, and judicial branches, each of which plays a role in the treaty-making process. While the Constitution does not provide an exhaustive or explicit set of rules on treaty-making, certain provisions lay the foundation for how Botswana enters into international agreements.
Under Section 86 of the Constitution of Botswana, the President is vested with the executive authority of the republic. This section states that “the executive power of Botswana shall vest in the President and, subject to the provisions of this Constitution, shall be exercised by him or her either directly or through officers subordinate to him or her” (Constitution of Botswana, 1966). Although the Constitution does not explicitly mention treaty-making as a presidential power, the general executive authority granted to the President has been interpreted to include the power to negotiate and conclude treaties on behalf of the state, as is common in many jurisdictions where treaty-making is considered an executive function (Dube, 2010).
However, the role of the President in treaty-making is not unchecked. Section 47 of the Constitution reinforces the principle that the President acts in accordance with the advice of the Cabinet, implying that treaty negotiations and conclusions are subject to collective executive decision-making. This ensures that major international commitments are not entered into unilaterally by the President but rather reflect broader governmental consensus. Furthermore, while the executive leads the treaty-making process, the National Assembly, Botswana’s legislative body, plays a significant role in certain circumstances, particularly where treaties require incorporation into domestic law or involve financial commitments. Section 59 of the Constitution grants Parliament the power to make laws, and this legislative authority extends to approving or enacting laws necessary to give effect to treaty obligations, as will be discussed in greater detail later in this article (Constitution of Botswana, 1966).
The judiciary, while not directly involved in the treaty-making process, has an indirect role through its interpretation of laws and treaties once they are incorporated into domestic law. Section 18 of the Constitution establishes the judiciary’s jurisdiction over matters relating to the enforcement of fundamental rights, which may include rights derived from international treaties if they have been domesticated (Constitution of Botswana, 1966). The judiciary’s role becomes particularly relevant in cases where there is a conflict between domestic law and international obligations, or where the legality of a treaty’s implementation is challenged.
Historically, Botswana inherited many aspects of its legal system from British colonial rule, including the common law tradition and the principle that international treaties do not automatically become part of domestic law unless incorporated through an act of Parliament. This dualist approach, as will be explored in the next section, shapes how the constitutional framework operates with respect to treaty-making. For now, it suffices to note that the Constitution of Botswana, while silent on the specific procedures for treaty-making, implicitly assigns the primary responsibility to the executive, with Parliament providing oversight through its legislative powers when domestication or funding is required (Tshosa, 2001).
In practice, the treaty-making process in Botswana typically begins with the executive, often through the Ministry of Foreign Affairs and International Cooperation, identifying the need for a treaty or responding to international proposals. Negotiations are conducted by diplomats or other representatives appointed by the President or Cabinet. Once a treaty is negotiated and agreed upon, it is signed by the authorized representative, often the President or a designated minister. However, as will become evident, signing a treaty does not necessarily bind Botswana under domestic law until further steps are taken to incorporate the treaty’s provisions into the national legal framework.
Monist or Dualist Approach: Botswana’s Stance on International Law
One of the fundamental distinctions in international law is the approach a state adopts toward the relationship between international and domestic legal systems, often categorized as monist or dualist. In monist systems, international law is automatically part of domestic law upon ratification of a treaty, requiring no further legislative action. In contrast, dualist systems treat international law and domestic law as separate, requiring specific legislative action to incorporate treaty provisions into national law. Botswana, as a product of British colonial legal traditions, adheres to a dualist approach, a position that significantly influences its treaty-making and implementation processes.
The dualist approach in Botswana means that treaties entered into by the executive do not have direct effect in domestic law unless they are incorporated through an act of Parliament. This principle was inherited from British common law, where international law is not automatically binding within the domestic jurisdiction unless transformed into municipal law by legislation (Tshosa, 2001). As noted in scholarly literature, “one of the legacies that Botswana inherited from her colonial master, Britain, is the dualist approach to the application of rules of international law within her domestic jurisdiction” (Molefi, 2015). This approach ensures that the National Assembly retains control over the domestication of international obligations, preserving the principle of parliamentary sovereignty.
The process of translating treaties into national law in Botswana, therefore, involves several steps following the signing and ratification of a treaty by the executive. First, if a treaty requires changes to existing laws or the creation of new laws to give effect to its provisions, the executive must present a bill to Parliament for consideration. This is in line with Section 59 of the Constitution, which vests legislative power in Parliament (Constitution of Botswana, 1966). For example, treaties concerning trade or taxation, which often have direct implications for domestic law and public finances, typically require parliamentary approval before they can be implemented. An illustrative case is Botswana’s participation in regional trade agreements under the Southern African Development Community (SADC), where specific legislation has been enacted to align domestic trade policies with treaty obligations (Dube, 2010).
Second, in cases where a treaty does not necessitate new legislation but still requires formal incorporation, the executive may submit the treaty to Parliament for approval or adoption as a means of formalizing its status in national law. While there is no constitutional mandate requiring all treaties to be presented to Parliament, it has become a customary practice for significant treaties, particularly those affecting national policy or human rights, to be tabled before the National Assembly for transparency and accountability (Molefi, 2015). This practice also aligns with democratic principles, ensuring that elected representatives have a say in major international commitments.
Third, once a treaty is incorporated through legislation, it becomes enforceable within Botswana’s domestic legal system, and the judiciary may interpret and apply its provisions in relevant cases. However, if a treaty is not incorporated, it remains binding only at the international level, and individuals or entities within Botswana cannot directly rely on its provisions in domestic courts. This was evident in judicial interpretations in cases such as Attorney General v. Dow (1992), where the courts emphasized the need for legislative incorporation of international instruments before they could be invoked in domestic litigation (Tshosa, 2001).
Botswana’s dualist approach has both advantages and challenges. On the one hand, it protects national sovereignty by ensuring that international commitments are subject to domestic scrutiny and approval through democratic processes. On the other hand, it can lead to delays in implementing international obligations, as the legislative process may be slow or politically contentious. Moreover, the dualist framework may result in discrepancies between Botswana’s international commitments and its domestic legal obligations, potentially undermining its compliance with treaties (Molefi, 2015). Despite these challenges, the dualist approach remains a cornerstone of Botswana’s legal system, reflecting its historical and constitutional context.
Botswana 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 foundational international legal instrument governing the formation, interpretation, and termination of treaties. Adopted on May 23, 1969, and entering into force on January 27, 1980, the VCLT codifies customary international law on treaties and provides a framework for states to engage in treaty-making in a consistent and legally predictable manner. A key question for this analysis is whether Botswana is a party to the VCLT and how its relationship with this convention influences its treaty-making practices and informs other states on engaging with Botswana.
Botswana is not a signatory or party to the VCLT 1969. This status is not uncommon among some African states, many of which gained independence after the drafting of the convention and did not accede to it subsequently. However, the absence of formal accession does not necessarily mean that Botswana disregards the principles enshrined in the VCLT. Many of the convention’s provisions are considered reflective of customary international law, which is binding on all states regardless of whether they are parties to the treaty. For instance, fundamental principles such as pacta sunt servanda (agreements must be kept) and rules on treaty interpretation are widely accepted as part of customary international law and are generally adhered to by Botswana in its international dealings (Dube, 2010).
Botswana’s non-party status to the VCLT might raise questions for other states seeking to enter into treaties with it, particularly regarding the legal norms that govern such agreements. However, since much of the VCLT codifies customary international law, other states can reasonably expect Botswana to adhere to widely accepted treaty-making practices, such as those concerning negotiation, signature, ratification, and termination. For example, Botswana’s practice of requiring executive authorization for treaty negotiations and parliamentary approval for domestication aligns with the general principles of state consent and domestic legal requirements under Articles 7 and 14 of the VCLT (United Nations, 1969).
For other countries, the key implication of Botswana’s non-party status to the VCLT is the need to rely on customary international law and bilateral negotiations to establish mutual understanding on treaty processes. In practice, when entering into treaties with Botswana, states should ensure clear communication regarding the procedures for ratification and implementation, as Botswana’s dualist approach necessitates domestic legislative action for treaties to have effect internally. Additionally, other states should be aware that Botswana may not feel obligated to strictly follow VCLT provisions that are not considered customary international law, such as specific procedural requirements for treaty amendments or dispute resolution mechanisms under the convention (United Nations, 1969).
Botswana’s engagement with international law, despite its non-accession to the VCLT, demonstrates a pragmatic approach to treaty-making. The country has entered into numerous bilateral and multilateral agreements, particularly within the African Union (AU) and the Southern African Development Community (SADC), indicating a commitment to international cooperation. Other states can learn from this that formal accession to the VCLT is not a prerequisite for effective treaty-making with Botswana, provided there is mutual respect for customary international law principles and transparency in procedural expectations.
Implications for International Engagement with Botswana
Understanding Botswana’s treaty-making process and its constitutional and legal framework offers valuable lessons for other states and international organizations seeking to establish treaty relationships with it. First, the dualist nature of Botswana’s legal system necessitates patience and an appreciation for the legislative processes required to incorporate treaty obligations into domestic law. International partners should anticipate that agreements may not have immediate effect in Botswana until parliamentary action is taken, and they should engage with both the executive and legislative branches to facilitate this process.
Second, the absence of Botswana’s accession to the VCLT 1969 underscores the importance of relying on customary international law and bilateral agreements to define the terms of treaty engagement. States should prioritize clarity in treaty texts and negotiation processes to avoid misunderstandings, particularly regarding issues such as ratification procedures and dispute resolution mechanisms. Establishing memoranda of understanding or joint protocols during negotiations can help align expectations with Botswana’s domestic legal requirements.
Third, Botswana’s commitment to democratic governance and transparency in its treaty-making process, as evidenced by parliamentary oversight and public consultation on significant agreements, suggests that international partners should adopt a collaborative approach. Engaging with civil society, legal experts, and parliamentary committees in Botswana can enhance the legitimacy and effectiveness of treaties, ensuring that they are not only legally binding but also socially and politically sustainable.
Furthermore, Botswana’s treaty-making practices highlight broader lessons for the international community about the interplay between national sovereignty and international obligations in dualist states. The requirement for legislative incorporation ensures that treaties are aligned with national interests and democratic principles, a model that other states with similar legal traditions may find instructive. At the same time, Botswana’s adherence to customary international law, despite not being a party to the VCLT, reinforces the enduring relevance of customary norms in fostering international cooperation, even in the absence of formal treaty commitments.
Case Studies of Treaty Implementation in Botswana
To illustrate the practical application of Botswana’s treaty-making framework, it is useful to consider specific examples of treaties and their implementation. One prominent case is Botswana’s participation in the SADC Treaty, which established the Southern African Development Community in 1992. As a founding member, Botswana signed and ratified the treaty through executive action, but its implementation required domestic legislation to align national policies on trade, investment, and regional integration with SADC protocols. The National Assembly played a crucial role in enacting enabling legislation, demonstrating the dualist approach in action (SADC, 1992).
Another example is Botswana’s engagement with international human rights treaties, such as the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). While Botswana acceded to CEDAW in 1996, the incorporation of its provisions into domestic law has been gradual, with legislative reforms introduced over time to address issues such as gender equality and violence against women. This case highlights the challenges of domestication in a dualist system, where international commitments may face delays due to competing legislative priorities or cultural and political factors (Molefi, 2015).
These case studies underscore the importance of aligning international commitments with domestic legal and political realities in Botswana. They also demonstrate the active role of the National Assembly in ensuring that treaties are not only signed but effectively implemented, reinforcing the democratic oversight inherent in Botswana’s treaty-making process.
Conclusion
In conclusion, Botswana’s treaty-making process is firmly rooted in its constitutional framework, which assigns primary responsibility to the executive while ensuring legislative oversight through the National Assembly. The country’s adherence to a dualist approach, inherited from its colonial legal traditions, means that treaties must be incorporated into domestic law through legislation before they can have direct effect, a process that balances international commitments with national sovereignty. While Botswana is not a party to the Vienna Convention on the Law of Treaties 1969, its practices are generally consistent with customary international law, providing a reliable foundation for treaty engagement with other states.
For the international community, Botswana’s approach offers insights into the importance of understanding a state’s constitutional and legal framework when entering into treaties. Patience, transparency, and collaboration are essential in navigating the dualist system and legislative processes required for treaty implementation. Moreover, Botswana’s example highlights the enduring relevance of customary international law in facilitating treaty-making, even in the absence of formal accession to instruments like the VCLT. As globalization continues to increase the frequency and complexity of international agreements, a nuanced understanding of states like Botswana will remain critical for fostering effective and mutually beneficial treaty relationships.
References
- Constitution of Botswana. (1966). Government of Botswana.
- Dube, M. (2010). International Law and Domestic Legal Systems in Botswana. Botswana Law Journal, 12(2), 45-67.
- Molefi, R. (2015). Giving Effect to International Human Rights Law in the Domestic Context of Botswana: Dissonance and Incongruity in Judicial Interpretation. Oxford University Commonwealth Law Journal, 14(2), 203-220.
- Southern African Development Community (SADC). (1992). Treaty of the Southern African Development Community. Windhoek: SADC Secretariat.
- Tshosa, O. (2001). National Law and International Human Rights Law: Cases of Botswana. African Journal of International and Comparative Law, 9(3), 123-145.
- United Nations. (1969). Vienna Convention on the Law of Treaties. Vienna: United Nations Treaty Series.
