Introduction
The treaty-making process is a critical element of a state’s engagement in international relations, reflecting both its constitutional framework and its commitment to international law. For Burkina Faso, a landlocked West African nation with a history of political transitions and constitutional reforms, understanding the legal and procedural foundations of treaty-making is essential to assessing its role in the global arena. This article explores Burkina Faso’s treaty-making process, focusing on the constitutional provisions that govern the formation, ratification, and implementation of international agreements. It examines whether Burkina Faso adopts a monist or dualist approach to the incorporation of treaties into domestic law, elucidating the mechanisms by which international commitments are translated into national legislation. Furthermore, the article investigates Burkina Faso’s relationship with the Vienna Convention on the Law of Treaties (VCLT) of 1969, a cornerstone of international treaty law, and discusses the implications of this relationship for other states entering into treaties with Burkina Faso. By analyzing these elements, this article aims to provide a comprehensive overview of Burkina Faso’s treaty-making framework and its significance in the context of international law.
The analysis is structured as follows: the first section outlines the constitutional foundations of treaty-making in Burkina Faso, citing specific provisions of the Constitution. The second section addresses the monist or dualist nature of Burkina Faso’s approach to treaties and the process of translating treaties into national law. The third section discusses Burkina Faso’s status as a party to the VCLT 1969 and the implications for international treaty-making. The final section offers concluding remarks and reflects on potential lessons for other states engaging with Burkina Faso in treaty negotiations.
Constitutional Foundations of Treaty-Making in Burkina Faso
The legal framework for treaty-making in Burkina Faso is rooted in its Constitution, which has undergone several revisions since the country gained independence from France in 1960. The current Constitution, adopted in 1991 and amended multiple times (most notably in 2015 following the ouster of President Blaise Compaoré), establishes the principles and procedures for entering into international agreements. The Constitution serves as the supreme law of the land, delineating the roles of various state organs in the treaty-making process and providing a basis for Burkina Faso’s international commitments.
Under Title I of the Constitution, which addresses sovereignty and the fundamental principles of the state, Article 1 affirms Burkina Faso’s commitment to international law and cooperation. It states that the state “shall be open to all forms of international cooperation in the respect of its sovereignty and the principles of equality and reciprocity” (Constitution of Burkina Faso, 1991, as amended). While this provision does not directly address treaty-making, it sets the tone for Burkina Faso’s engagement in international relations, emphasizing the importance of sovereignty and mutual respect—key principles that underpin treaty negotiations.
The specific authority to negotiate and conclude treaties is vested in the President of Burkina Faso, as outlined in Title V concerning the powers of the President. Article 49 of the Constitution grants the President the power to “negotiate and ratify international treaties and agreements” (Constitution of Burkina Faso, 1991, as amended). This provision establishes the President as the primary representative of the state in international affairs, aligning with the common practice in many states where the executive branch plays a central role in treaty-making. However, the Constitution also introduces checks and balances to ensure that the exercise of this power is subject to oversight by other branches of government, particularly the legislative branch.
Article 148 of the Constitution, found under Title X on international relations, elaborates on the process of treaty ratification and approval. It stipulates that certain categories of treaties—namely those concerning peace, territorial boundaries, international organizations, financial commitments, and those affecting the status of individuals—require prior authorization by the National Assembly before they can be ratified or approved by the President (Constitution of Burkina Faso, 1991, as amended). This requirement reflects a democratic principle of legislative oversight, ensuring that treaties with significant implications for national policy or sovereignty are subject to parliamentary scrutiny.
Furthermore, Article 149 provides that treaties and agreements duly ratified or approved “shall, upon their publication, have an authority superior to that of laws,” subject to the condition that the other contracting party also complies with the agreement (Constitution of Burkina Faso, 1991, as amended). This provision is crucial as it establishes the hierarchy of norms in Burkina Faso’s legal system, indicating that ratified treaties take precedence over domestic legislation, provided they are published in the official gazette. The requirement of publication ensures transparency and public awareness of international commitments, while the reciprocity clause safeguards Burkina Faso’s interests in the event of non-compliance by the other party.
The role of the Constitutional Council in the treaty-making process is also noteworthy. Under Article 152 of the Constitution, the Constitutional Council has the authority to review the constitutionality of treaties before their ratification if requested by the President, the Prime Minister, the President of the National Assembly, or a certain number of parliamentarians (Constitution of Burkina Faso, 1991, as amended). This provision serves as a safeguard against treaties that may contravene constitutional principles, ensuring that international commitments align with the fundamental values and rights enshrined in the Constitution.
In practice, the treaty-making process in Burkina Faso involves several stages: negotiation, often led by the Ministry of Foreign Affairs under the President’s directive; signature of the treaty text; submission to the National Assembly for authorization (if required under Article 148); ratification or approval by the President; and finally, publication in the official gazette to ensure legal effect. This multi-layered process reflects a balance between executive authority and legislative oversight, aiming to uphold democratic principles while enabling Burkina Faso to engage in international cooperation.
Additionally, Burkina Faso’s membership in regional and international organizations, such as the African Union (AU) and the Economic Community of West African States (ECOWAS), often influences its treaty-making process. Under Article 148, treaties relating to international organizations require National Assembly approval, reflecting the significance of regional integration in Burkina Faso’s foreign policy. This provision ensures that commitments to supranational bodies, which may involve ceding certain aspects of sovereignty, are subject to rigorous domestic scrutiny.
Overall, the constitutional framework of Burkina Faso provides a robust foundation for treaty-making, balancing executive initiative with legislative and judicial oversight. The specific provisions in Articles 49, 148, 149, and 152 of the Constitution delineate a clear process for entering into treaties, ensuring that international commitments are both legally binding and aligned with national interests.
Monist or Dualist Approach: Incorporation of Treaties into National Law
A key aspect of understanding Burkina Faso’s treaty-making process is determining whether the country adopts a monist or dualist approach to the relationship between international and domestic law. In monist systems, international law and domestic law form a single legal order, and treaties are automatically part of national law upon ratification. In contrast, dualist systems view international and domestic law as separate, requiring specific legislative action to incorporate treaties into national law.
Burkina Faso’s approach to international treaties aligns more closely with monism, as evidenced by the constitutional provisions discussed earlier. Article 149 of the Constitution explicitly states that duly ratified or approved treaties have authority superior to domestic laws upon their publication (Constitution of Burkina Faso, 1991, as amended). This provision suggests that once a treaty is ratified and published, it becomes directly applicable within the national legal system without the need for additional legislative enactment. This is a hallmark of monist systems, where international law can be invoked directly in domestic courts, provided the necessary procedural steps (such as publication) are fulfilled.
However, Burkina Faso’s monism is not absolute and incorporates elements that resemble dualist practices. For instance, the requirement of publication in the official gazette as a condition for the treaty’s domestic effect indicates a procedural step akin to those in dualist systems, where formal incorporation is necessary. Moreover, the involvement of the National Assembly in authorizing certain types of treaties under Article 148 introduces an element of legislative control that could delay or influence the direct applicability of treaties. Therefore, Burkina Faso’s system can be described as a hybrid or “qualified monist” approach, where treaties generally have direct effect but are subject to specific domestic procedural requirements.
The translation of treaties into national law in Burkina Faso thus primarily occurs through ratification and publication. Once a treaty is ratified by the President (with or without National Assembly authorization, depending on the treaty’s nature) and published in the official gazette, it assumes a status superior to ordinary laws. This means that in the event of a conflict between a domestic statute and a ratified treaty, the treaty prevails, provided the other party to the treaty also complies with its obligations (as stipulated in Article 149). This supremacy clause is critical for ensuring that Burkina Faso honors its international commitments, fostering trust and reliability in its international relations.
In practice, however, the direct applicability of treaties in Burkina Faso may face challenges due to institutional and systemic factors. For instance, the judiciary may not always be well-versed in international law, and there may be delays in the publication of treaties, hindering their effective enforcement at the domestic level. Additionally, while treaties have superior authority over laws, they remain subordinate to the Constitution itself. This hierarchy implies that any treaty provision deemed inconsistent with constitutional principles could be challenged before the Constitutional Council, potentially limiting the direct effect of international law in certain cases.
Burkina Faso’s commitment to human rights treaties provides a practical illustration of its monist tendencies. For example, Burkina Faso is a party to several international human rights instruments, including the African Charter on Human and Peoples’ Rights. Under Article 149, provisions of such treaties are directly applicable in domestic courts upon ratification and publication. However, the extent to which these provisions are invoked or enforced often depends on the awareness and capacity of legal practitioners and judicial authorities to apply international norms. This suggests that while the constitutional framework supports a monist approach, practical implementation may require further institutional strengthening.
In summary, Burkina Faso’s legal system exhibits a predominantly monist approach to the incorporation of treaties into national law, as reflected in the direct applicability and superior authority granted to ratified treaties under Article 149 of the Constitution. However, procedural requirements such as publication and legislative authorization for certain treaties introduce elements of dualism, creating a nuanced hybrid system. This framework underscores the importance of both constitutional compliance and practical enforcement in ensuring that international commitments are effectively translated into domestic legal obligations.
Burkina Faso 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 definitive international instrument governing the creation, 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 with clarity and predictability. Given its significance, whether Burkina Faso is a party to the VCLT is a pertinent question in understanding its approach to international treaty law and its implications for other states entering into agreements with Burkina Faso.
Burkina Faso acceded to the VCLT on April 2, 1999, becoming a party to the Convention nearly two decades after its entry into force. This accession is recorded in the United Nations Treaty Series and confirms Burkina Faso’s formal commitment to the principles and rules set forth in the VCLT. As a party to the Convention, Burkina Faso is legally bound by its provisions, which cover a wide range of issues, including the conclusion and entry into force of treaties, reservations, interpretation, invalidity, termination, and suspension of treaties. This commitment aligns with Burkina Faso’s broader dedication to international cooperation, as enshrined in Article 1 of its Constitution.
The VCLT’s relevance to Burkina Faso’s treaty-making process lies in its provision of a standardized framework that governs how treaties are negotiated, concluded, and implemented. For instance, Article 11 of the VCLT outlines the means by which states express consent to be bound by a treaty (e.g., signature, ratification, or accession), which aligns with Burkina Faso’s constitutional procedures under Articles 49 and 148. Similarly, Article 27 of the VCLT, which prohibits states from invoking domestic law as justification for failing to perform a treaty, reinforces the supremacy of treaties over domestic legislation as articulated in Article 149 of Burkina Faso’s Constitution.
Burkina Faso’s status as a party to the VCLT has significant implications for other states entering into treaties with it. First, it assures other states that Burkina Faso is committed to adhering to internationally recognized norms of treaty law, fostering trust and predictability in diplomatic negotiations. For example, states can rely on the VCLT’s rules on treaty interpretation (Articles 31-33) when engaging with Burkina Faso, ensuring that agreements are construed in good faith and in accordance with their ordinary meaning, context, and purpose. Second, Burkina Faso’s adherence to the VCLT facilitates dispute resolution concerning treaties, as the Convention provides mechanisms for addressing issues such as invalidity or termination of agreements.
Moreover, Burkina Faso’s accession to the VCLT serves as an instructive example for other states, particularly in the African context, on the importance of formal participation in foundational international legal instruments. It demonstrates a willingness to integrate into the global legal order, even for states with historical and systemic challenges in governance and legal capacity. For countries contemplating treaties with Burkina Faso, this commitment suggests that negotiations and agreements will likely be governed by widely accepted principles, reducing the risk of misunderstandings or conflicts arising from divergent legal traditions.
However, Burkina Faso’s relatively late accession to the VCLT (in 1999) raises questions about the extent to which its treaty-making practices prior to accession were aligned with the Convention’s principles. While many provisions of the VCLT are considered customary international law and thus binding on all states regardless of formal accession, there may have been inconsistencies or gaps in Burkina Faso’s early treaty-making practices. Other states should therefore exercise due diligence when reviewing historical treaties with Burkina Faso, ensuring that such agreements comport with current international standards as reflected in the VCLT.
Additionally, while Burkina Faso is a party to the VCLT, practical challenges in implementing its provisions may persist due to capacity constraints within its legal and diplomatic institutions. For instance, ensuring compliance with procedural requirements under the VCLT, such as timely notification of treaty actions to the United Nations under Article 102, may require sustained efforts to build administrative capacity. Other states engaging with Burkina Faso should be mindful of these potential limitations and may need to provide technical assistance or capacity-building support to facilitate smooth treaty implementation.
In conclusion, Burkina Faso’s status as a party to the VCLT 1969 underscores its commitment to international treaty law and provides a reliable framework for other states to negotiate and enter into treaties with it. This commitment enhances Burkina Faso’s credibility as a treaty partner while offering a model for other states on the importance of aligning domestic practices with international legal standards. However, practical challenges in implementation highlight the need for ongoing cooperation and support to ensure that treaty obligations are effectively fulfilled.
Conclusion
Burkina Faso’s treaty-making process is deeply rooted in its constitutional framework, which provides a structured and balanced approach to the negotiation, ratification, and implementation of international agreements. The Constitution, through provisions such as Articles 49, 148, 149, and 152, establishes the President as the primary authority in treaty-making while ensuring legislative oversight and judicial review to safeguard national interests and constitutional principles. The country’s predominantly monist approach to the incorporation of treaties, as reflected in the direct applicability and superior authority of ratified agreements under Article 149, facilitates the integration of international commitments into domestic law, albeit with procedural nuances that resemble dualist practices.
Burkina Faso’s accession to the Vienna Convention on the Law of Treaties in 1999 further solidifies its commitment to international legal norms, offering predictability and reliability to other states engaging in treaty negotiations with it. This formal participation in the VCLT not only enhances Burkina Faso’s standing in the international community but also serves as a reminder of the importance of aligning domestic treaty-making processes with global standards. However, challenges such as delays in publication, limited institutional capacity, and historical inconsistencies in treaty practices underscore the need for continued efforts to strengthen legal and administrative frameworks.
For other states, understanding Burkina Faso’s treaty-making process and its adherence to the VCLT provides valuable insights into how to effectively engage with it in bilateral and multilateral agreements. It highlights the importance of due diligence in assessing the domestic legal effect of treaties and the potential need for capacity-building initiatives to support compliance with international commitments. Ultimately, Burkina Faso’s experience illustrates the dynamic interplay between constitutional law and international obligations, offering lessons on navigating the complexities of treaty-making in a way that balances national sovereignty with global cooperation.
References
- Constitution of Burkina Faso. (1991, as amended). Available through national legal databases and government publications.
- United Nations. (1969). Vienna Convention on the Law of Treaties. United Nations Treaty Series, vol. 1155, p. 331. Retrieved from https://legal.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf
- United Nations Treaty Collection. (2022). Status of Treaties: Vienna Convention on the Law of Treaties. Retrieved from https://treaties.un.org
