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

Introduction

The treaty-making process is a cornerstone of international relations, enabling states to forge agreements that govern cooperation, trade, security, and a range of other global issues. For a small, sovereign nation like Brunei Darussalam, located on the northern coast of Borneo in Southeast Asia, treaties play a critical role in establishing its place within the international community. Despite its modest size and population, Brunei has engaged in numerous bilateral and multilateral agreements, reflecting its commitment to international cooperation as a member of organizations such as the Association of Southeast Asian Nations (ASEAN) and the United Nations (UN). This article examines Brunei’s treaty-making process, focusing on its constitutional foundations, the mechanisms through which international commitments are undertaken, and the implications for its engagement with international law. It further explores whether Brunei adopts a monist or dualist approach to the incorporation of treaties into national law and assesses its stance on the Vienna Convention on the Law of Treaties (VCLT) of 1969. Finally, the article discusses how Brunei’s treaty-making framework informs other states on the proper procedures for entering into treaties with the Sultanate.

Brunei’s legal system is unique, shaped by its history as a British protectorate until achieving full independence in 1984, and by its adherence to Islamic principles under the absolute monarchy of the Sultan. The Constitution of Brunei, promulgated in 1959 and amended over the years, provides the foundational legal framework for the state’s governance, including its capacity to enter into international agreements. This article seeks to elucidate the constitutional provisions that govern treaty-making in Brunei, analyze the practical and legal processes involved, and situate these practices within the broader context of international law. By doing so, it aims to contribute to the limited body of scholarly work on Brunei’s engagement with international legal obligations.

Constitutional Foundations of Treaty-Making in Brunei

The Constitution of Brunei Darussalam serves as the supreme legal document outlining the governance structure and the distribution of powers within the state. While the Constitution does not extensively detail the treaty-making process compared to some other national constitutions, it implicitly vests the authority to engage in international agreements with the Sultan, as the head of state and government. Under Brunei’s absolute monarchy, the Sultan holds executive, legislative, and judicial powers, making the constitutional framework highly centralized.

Section 4(1) of the Constitution of Brunei Darussalam (1959, as amended) establishes the Sultan as the Head of State with full executive authority. Although the Constitution does not explicitly mention treaty-making powers, this broad executive authority is understood to encompass the ability to enter into international agreements on behalf of the state. This interpretation aligns with the historical and legal tradition of monarchies, where the sovereign often represents the state in international affairs. Additionally, Section 39 of the Constitution affirms the Sultan’s prerogative powers, which include matters of foreign affairs and international relations. These prerogative powers, inherited from the period of British protection and adapted to the post-independence context, provide the legal basis for the Sultan to negotiate, sign, and ratify treaties.

In practice, the Sultan delegates aspects of the treaty-making process to relevant government bodies, such as the Ministry of Foreign Affairs, which handles diplomatic negotiations and coordination with other states. However, the final authority to commit Brunei to an international agreement rests with the Sultan. This centralized approach reflects the absolute nature of the monarchy and ensures that treaty-making aligns with national interests as determined by the Sultan. Unlike parliamentary systems where legislative approval is often required for treaty ratification, Brunei’s system does not mandate such a process due to the absence of an elected legislative body since the suspension of the Legislative Council in 1984 following independence. Instead, decisions regarding international commitments are made within the executive sphere, under the Sultan’s direct oversight.

Another relevant constitutional provision is Section 84, which addresses the application of laws in Brunei. While this section does not directly reference treaties, it implies that any international agreement necessitating changes to domestic law would require the Sultan’s assent through subsidiary legislation or royal decrees, known as “Orders.” This mechanism underscores the Sultan’s role as the ultimate arbiter of both international and domestic legal matters, ensuring that treaties are consistent with national policies and Islamic principles, which are enshrined in the Constitution under Section 3 as the state religion.

The constitutional framework of Brunei thus places treaty-making authority firmly within the purview of the Sultan, supported by a small but efficient bureaucratic structure. This centralized model contrasts with democratic states where treaty-making often involves multiple branches of government. However, it enables Brunei to respond swiftly to international obligations, provided they align with the Sultan’s vision for the state. The lack of explicit constitutional provisions on treaty-making also means that the process relies heavily on customary practices and royal discretion, which can sometimes lead to ambiguity in the legal status of treaties within the domestic framework.

Monist or Dualist Approach: Incorporation of Treaties into National Law

A critical aspect of understanding a state’s treaty-making process is determining whether it follows a monist or dualist approach to international law. In a monist system, international law is automatically incorporated into domestic law upon ratification of a treaty, without the need for additional legislative action. Conversely, in a dualist system, treaties do not become part of domestic law until they are explicitly enacted through national legislation, reflecting a separation between international and domestic legal orders.

Brunei operates under a dualist approach to the incorporation of treaties into national law. This conclusion is drawn from the structure of its legal system and the absence of any constitutional provision or judicial precedent suggesting that international treaties automatically acquire direct effect in domestic courts upon ratification. Instead, for a treaty to have legal force within Brunei’s domestic jurisdiction, it must be translated into national law through an act of the Sultan, typically in the form of an Order or subsidiary legislation issued under the authority of existing statutes. This process ensures that international commitments are aligned with national priorities and legal traditions, including the principles of Sharia law, which play a significant role in Brunei’s legal system.

The dualist approach is further evidenced by the limited role of the judiciary in directly enforcing treaty provisions. Brunei’s courts, which operate under a mixed legal system combining common law principles (inherited from British rule) and Islamic law, generally do not recognize international treaties as directly applicable unless they have been domesticated through national legislation. This practice contrasts with monist states where courts may directly apply treaty provisions as part of domestic law. For instance, if Brunei enters into a trade agreement that requires changes to customs or tariff laws, such changes must be enacted through a royal decree or an amendment to existing legislation before they can be enforced domestically.

The dualist framework in Brunei serves several purposes. Firstly, it allows the state to maintain sovereignty over its legal system by ensuring that international obligations do not override national laws without explicit consent from the Sultan. Secondly, it provides a mechanism to adapt treaty obligations to the unique cultural and religious context of Brunei, where Islamic principles often take precedence in legal interpretation. However, this approach can also pose challenges, as the process of domestication may delay the implementation of international commitments, potentially affecting Brunei’s compliance with treaty obligations on a timely basis.

While there is little publicly available case law or official documentation detailing specific instances of treaty incorporation in Brunei, the general practice suggests a cautious approach to aligning international law with domestic priorities. The Sultan’s central role in both treaty-making and law-making ensures that only those international commitments deemed compatible with national interests are fully integrated into the legal system. This dualist stance underscores Brunei’s preference for maintaining control over the impact of international law within its borders, a reflection of its historical emphasis on sovereignty and self-determination following decades under British protection.

Brunei and 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 a cornerstone of international law governing the creation, interpretation, and termination of treaties. It provides a comprehensive framework for states to follow when engaging in treaty-making, ensuring clarity and consistency in international agreements. A key question in analyzing Brunei’s treaty-making process is whether the Sultanate is a party to the VCLT and how its stance on the Convention influences other states’ interactions with Brunei.

Brunei Darussalam is not a signatory or a party to the Vienna Convention on the Law of Treaties (1969). According to the official records of the United Nations Treaty Collection, Brunei has neither signed nor ratified the VCLT. This absence of formal adherence does not, however, imply that Brunei disregards the principles enshrined in the Convention. Many of the VCLT’s provisions are widely considered to reflect customary international law, which is binding on all states regardless of whether they are parties to the Convention. As such, Brunei is indirectly influenced by the VCLT’s rules on treaty formation, interpretation, and termination in its international dealings.

The lack of formal accession to the VCLT may be attributed to several factors. Given Brunei’s small size and limited diplomatic resources, the state may not prioritize formal participation in treaties that it perceives as adequately addressed by customary international law. Additionally, Brunei’s absolute monarchy and dualist legal system may lead to a cautious approach toward international legal frameworks that could be seen as imposing external obligations without sufficient domestic scrutiny. Nevertheless, Brunei’s engagement in multilateral agreements, such as those under ASEAN and the UN, suggests that it adheres to generally accepted norms of treaty-making, many of which are codified in the VCLT.

For other states entering into treaties with Brunei, the Sultanate’s non-party status to the VCLT has several implications. Firstly, while Brunei is likely to follow customary international law principles reflected in the VCLT—such as the requirement of good faith in treaty negotiations (pacta sunt servanda)—other states should not assume automatic adherence to all of the Convention’s detailed provisions, such as those related to treaty invalidity or reservations. Instead, treaty negotiations with Brunei should explicitly address procedural and substantive issues to ensure mutual understanding. For instance, states should clarify the process of ratification and the legal effect of the treaty within Brunei’s domestic system, given its dualist approach.

Secondly, other countries should recognize that Brunei’s treaty-making process is highly centralized under the Sultan’s authority. This centralization means that commitments made by Bruneian representatives during negotiations may require final approval from the Sultan before they become binding. Other states should therefore ensure that treaty texts are finalized with the explicit consent of Brunei’s highest authority to avoid delays or misunderstandings. Additionally, given Brunei’s emphasis on aligning international commitments with Islamic principles, other states may need to consider cultural and religious sensitivities during negotiations, especially for treaties touching on social, legal, or economic issues.

In summary, while Brunei is not a party to the VCLT, its treaty-making practices are shaped by customary international law and its own constitutional framework. Other states can engage effectively with Brunei by understanding its unique legal and political system, ensuring that treaty processes respect the Sultan’s central role, and addressing potential discrepancies arising from its non-adherence to the VCLT through clear and detailed agreements.

International Commitments and Brunei’s Treaty-Making Practices

Brunei has entered into a range of international commitments since gaining independence in 1984, reflecting its strategic interests in regional stability, economic development, and global cooperation. As a member of ASEAN, Brunei participates in regional agreements aimed at fostering economic integration, such as the ASEAN Free Trade Area (AFTA) and the Regional Comprehensive Economic Partnership (RCEP). Additionally, Brunei is a party to several UN conventions, including the United Nations Convention on the Law of the Sea (UNCLOS), which it ratified in 1996, demonstrating its commitment to international maritime law, critical given its coastal geography.

The process of entering into these commitments follows the constitutional framework discussed earlier, with the Sultan playing a pivotal role in approving treaties. In practice, Brunei’s Ministry of Foreign Affairs conducts preliminary negotiations and drafts agreements, often in consultation with other relevant ministries, such as the Ministry of Finance and Economy for trade agreements. Once an agreement is finalized at the governmental level, it is presented to the Sultan for approval. Upon receiving royal consent, the treaty is ratified, typically through a formal instrument of ratification deposited with the relevant international body or counterparty state.

Brunei’s engagement in international treaties also reflects its foreign policy priorities, which emphasize non-interference, sovereignty, and mutual benefit—principles aligned with ASEAN’s core values. However, the domestication of these treaties into national law remains subject to the dualist approach discussed earlier. For example, while Brunei has ratified UNCLOS, specific provisions related to maritime boundaries or resource exploitation require implementation through domestic legislation or royal decrees to be enforceable within the state. This process ensures that international obligations are tailored to Brunei’s context, but it can sometimes result in discrepancies between international commitments and domestic enforcement.

One notable challenge in Brunei’s treaty-making practice is the lack of transparency and public documentation regarding the incorporation of treaties into national law. Given the absence of an active legislative body or public parliamentary debates, the process of treaty ratification and domestication is often opaque to external observers. This opacity can pose challenges for international partners seeking to verify Brunei’s compliance with treaty obligations. To mitigate this, other states and international organizations often rely on diplomatic channels and formal communications with Brunei’s government to ensure mutual understanding and follow-through on commitments.

Implications for International Cooperation

Brunei’s treaty-making process and constitutional framework have significant implications for international cooperation. The Sultanate’s dualist approach, centralized authority under the Sultan, and non-adherence to the VCLT shape how other states and organizations interact with Brunei in the context of international agreements. For effective engagement, several considerations must be taken into account.

First, the centrality of the Sultan in treaty-making necessitates that international partners prioritize direct communication with Brunei’s highest authorities during negotiations. This ensures that agreements are not only negotiated at a technical level but also receive the necessary political and legal endorsement from the Sultan. Delays in treaty implementation can be avoided by securing explicit confirmation of royal approval at key stages of the process.

Second, the dualist nature of Brunei’s legal system implies that treaty obligations may not be immediately enforceable within the state unless domesticated through national legislation. International partners should therefore anticipate potential delays in the implementation of treaty provisions and work with Brunei to facilitate the necessary legal changes where applicable. This may involve providing technical assistance or capacity-building support to align domestic laws with international commitments.

Third, Brunei’s non-party status to the VCLT highlights the importance of customizing treaty texts to address procedural and substantive issues explicitly. While customary international law provides a baseline for treaty-making, states should ensure that agreements with Brunei include detailed clauses on entry into force, interpretation, and dispute resolution to avoid ambiguity.

Finally, cultural and religious sensitivities play a significant role in Brunei’s approach to international commitments. Treaties that touch on social norms, family law, or economic practices must be crafted with an understanding of Brunei’s Islamic legal traditions to ensure acceptance and compliance. This cultural dimension underscores the broader importance of mutual respect and adaptability in international treaty-making, particularly with states that prioritize national identity and sovereignty.

Conclusion

Brunei Darussalam’s treaty-making process is deeply rooted in its constitutional framework, which centralizes authority under the Sultan as the head of state with full executive powers. The Constitution, particularly through Sections 4(1) and 39, provides the legal basis for the Sultan to engage in international agreements, reflecting the absolute monarchy’s influence on both domestic and foreign policy. Brunei’s dualist approach to international law ensures that treaties are incorporated into national law only through deliberate legislative action, typically via royal decrees, allowing the state to maintain control over the impact of international commitments within its borders.

While Brunei is not a party to the Vienna Convention on the Law of Treaties (1969), it adheres to customary international law principles in its treaty-making practices, shaping how it engages with other states. This non-adherence necessitates that international partners adopt a tailored approach to treaty negotiations with Brunei, focusing on explicit agreements and direct engagement with the Sultan’s authority. Brunei’s participation in regional and global treaties, such as those under ASEAN and the UN, demonstrates its commitment to international cooperation, albeit within the constraints of its unique political and cultural context.

This analysis of Brunei’s treaty-making process contributes to a broader understanding of how small, absolute monarchies navigate the complexities of international law. It highlights the importance of constitutional structures, cultural considerations, and legal traditions in shaping a state’s approach to treaties. For other states seeking to enter into agreements with Brunei, an appreciation of its centralized authority, dualist system, and non-VCLT status is essential for fostering effective and mutually beneficial partnerships. Future research could explore specific case studies of treaty implementation in Brunei to provide deeper insights into the practical challenges and successes of its international commitments.

References

• Constitution of Brunei Darussalam (1959, as amended). Available through the Attorney General’s Chambers of Brunei Darussalam.
• United Nations Treaty Collection. (n.d.). Status of the Vienna Convention on the Law of Treaties (1969). Retrieved from the United Nations Treaty Collection database.
• Vienna Convention on the Law of Treaties, May 23, 1969, 1155 U.N.T.S. 331. Retrieved from the United Nations legal resources.
• ASEAN Secretariat. (n.d.). Treaty and Agreement Database. Retrieved from the official ASEAN website.
• United Nations Convention on the Law of the Sea, December 10, 1982, 1833 U.N.T.S. 3. Retrieved from the United Nations Treaty Collection database.

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