Introduction

Treaty-making is a fundamental aspect of international relations, enabling states to establish legally binding agreements that govern a wide range of issues, from trade and security to human rights and environmental protection. For a state like Eritrea, a relatively young nation that gained independence from Ethiopia in 1993, the treaty-making process is not only a tool for engaging with the international community but also a reflection of its constitutional framework and sovereignty. This article explores Eritrea’s treaty-making process within the context of its constitutional provisions, focusing on the legal mechanisms for entering into international agreements, the nature of its approach to integrating treaties into national law (monist or dualist), and its relationship with the Vienna Convention on the Law of Treaties (VCLT) of 1969. By examining these elements, this analysis aims to provide insight into how Eritrea navigates its international commitments and offers guidance to other states on engaging with Eritrea in treaty-making.

The article is structured into several key sections. First, it provides an overview of Eritrea’s constitutional framework, with specific reference to provisions related to treaty-making. Second, it analyzes whether Eritrea adopts a monist or dualist approach to international law and how treaties are implemented within its national legal system. Third, it investigates Eritrea’s status concerning the VCLT 1969 and the implications of this status for treaty-making with other states. Finally, the article concludes with reflections on the broader significance of Eritrea’s treaty-making process in the context of international law and diplomacy.

Eritrea’s Constitutional Framework for Treaty-Making

Eritrea’s legal system is grounded in its Constitution, which was ratified in 1997 but has faced challenges in full implementation due to political and governance issues. Despite these challenges, the 1997 Constitution remains the foundational legal document for understanding the country’s governance structure, including its approach to international relations and treaty-making. The Constitution establishes the framework for the state’s authority to engage with the international community, delineating the roles of various branches of government in the treaty-making process.

Chapter II of the Eritrean Constitution, which addresses the fundamental principles of state policy, emphasizes the promotion of international cooperation and respect for international law. Specifically, Article 7(2) of the Constitution states that Eritrea shall pursue a foreign policy based on mutual respect, peaceful coexistence, and the promotion of international and regional peace and security. While this provision does not explicitly address treaty-making, it establishes a guiding principle for Eritrea’s engagement with other states, which naturally includes the negotiation and conclusion of treaties (Constitution of Eritrea, 1997).

More directly relevant to treaty-making is the allocation of powers concerning international agreements, which is addressed under the provisions related to the executive branch. According to Article 42 of the Constitution, the President of Eritrea holds significant authority in the realm of foreign affairs. The President is empowered to represent the state in international relations, appoint ambassadors, and conduct negotiations with foreign entities. Importantly, Article 42(6) grants the President the power to sign international agreements on behalf of the state, subject to ratification by the National Assembly in certain cases (Constitution of Eritrea, 1997).

The role of the National Assembly in the treaty-making process is articulated in Article 32, which outlines the legislative powers of the Assembly. Under Article 32(4), the National Assembly is responsible for ratifying international agreements that involve significant national interests, particularly those with financial implications or those affecting national sovereignty. This provision indicates that while the executive, through the President, initiates and negotiates treaties, legislative approval is required for treaties of substantial importance to become binding on the state (Constitution of Eritrea, 1997). This division of roles reflects a system of checks and balances, ensuring that international commitments align with national interests as determined by the legislature.

However, the practical application of these constitutional provisions remains complex due to the lack of full implementation of the 1997 Constitution. Since its ratification, Eritrea has operated under a transitional government, and the National Assembly has not functioned as envisioned in the Constitution. As a result, the treaty-making process in practice often falls under the centralized control of the executive, particularly the President, with limited legislative oversight. This reality raises questions about the adherence to constitutional norms in treaty-making and the extent to which international agreements reflect broader national consensus.

Despite these challenges, the constitutional framework provides a clear legal basis for Eritrea to enter into treaties. The President’s authority to negotiate and sign agreements, coupled with the National Assembly’s role in ratification, establishes a two-tiered process that mirrors the practice of many other states. Treaties, once ratified, are intended to become part of the legal obligations of the state, subject to their integration into national law—a process that will be explored in the next section.

Monist or Dualist Approach: Integration of Treaties into National Law

A critical aspect of a state’s treaty-making framework is its approach to the relationship between international law and domestic law. States typically adopt either a monist or dualist approach to this relationship. In a monist system, international law is automatically incorporated into national law upon ratification of a treaty, without the need for additional legislative action. In contrast, a dualist system requires treaties to be transformed into national law through specific domestic legislation before they can be enforced within the state.

In the case of Eritrea, determining whether the country follows a monist or dualist approach requires an examination of both constitutional provisions and state practice. Article 2(3) of the 1997 Constitution establishes the supremacy of the Constitution over all other laws, stating that any law or act inconsistent with the Constitution is null and void. However, the Constitution does not explicitly address the status of international treaties in relation to domestic law, leaving room for interpretation (Constitution of Eritrea, 1997).

Given the lack of explicit constitutional guidance on the direct applicability of treaties, Eritrea appears to lean toward a dualist approach. This interpretation is supported by the requirement under Article 32(4) for the National Assembly to ratify significant international agreements. Ratification by the legislature often implies that further action, such as the enactment of enabling legislation, may be necessary to give effect to treaty provisions within the domestic legal order. Without such legislation, treaties may not be directly enforceable in Eritrean courts or by national authorities.

Moreover, Eritrea’s legal system, which is influenced by a combination of civil law traditions (from its Italian colonial past) and customary law, does not have a well-documented history of automatically incorporating international law into the national legal framework. In practice, the implementation of treaties often depends on the executive issuing decrees or the legislature passing laws to align domestic regulations with international obligations. For example, Eritrea’s commitments under regional agreements, such as those with the African Union, have typically required domestic legislative or administrative measures to ensure compliance.

The dualist nature of Eritrea’s approach can also be inferred from the limited judicial precedent on the direct application of international law. The Eritrean judiciary, which operates under significant executive influence, has not been widely reported to invoke treaty provisions directly in domestic cases, further suggesting that treaties must be domesticated through national legislation to have legal effect. This dualist stance contrasts with monist systems where ratified treaties might immediately confer rights or obligations enforceable in domestic courts.

However, a pure dualist characterization may not fully capture the nuances of Eritrea’s system. In the absence of a functioning National Assembly and with centralized executive power, the process of transforming international law into national law may be expedited or bypassed through executive action. This pragmatic approach, while not strictly aligned with a monist system, indicates that the distinction between monism and dualism may be less rigid in practice than in theory. Nonetheless, based on constitutional provisions and available evidence, Eritrea can be primarily classified as a dualist state with respect to the integration of treaties into national law.

The implications of this dualist approach are significant for both Eritrea and its treaty partners. For Eritrea, it means that international commitments do not automatically alter domestic legal obligations unless specific steps are taken to incorporate them into national law. For other states, this suggests that treaties with Eritrea may require follow-up monitoring to ensure that agreed provisions are enacted domestically, as ratification alone may not guarantee implementation.

Eritrea and the Vienna Convention on the Law of Treaties 1969

The Vienna Convention on the Law of Treaties (VCLT) of 1969 is often referred to as the “treaty on treaties” due to its comprehensive codification of the rules governing the formation, interpretation, amendment, and termination of treaties. Adopted on May 23, 1969, and entering into force on January 27, 1980, the VCLT has been ratified by 116 states as of 2018 and is widely regarded as reflecting customary international law, even for non-party states (Vienna Convention on the Law of Treaties, 1969).

Eritrea, having gained independence in 1993, emerged as a sovereign state after the VCLT’s entry into force. As such, its relationship with the VCLT depends on whether it has acceded to or ratified the convention as an independent state. According to available records from the United Nations Treaty Collection, Eritrea is not a party to the VCLT 1969. This status does not, however, mean that Eritrea is entirely unbound by the principles enshrined in the convention, as many of its provisions are considered customary international law, applicable to all states regardless of ratification (United Nations Treaty Collection, 2023).

The non-party status of Eritrea to the VCLT has several implications for its treaty-making practices and for other states seeking to enter into agreements with it. First, while Eritrea is not formally bound by the specific procedural and substantive rules of the VCLT, it is still expected to adhere to customary international norms regarding treaty formation and interpretation. For instance, principles such as pacta sunt servanda (agreements must be kept) and good faith negotiation, which are codified in the VCLT, are universally recognized and would apply to Eritrea’s international engagements.

Second, Eritrea’s non-accession to the VCLT may reflect a cautious approach to formal international legal frameworks, possibly due to concerns over sovereignty or capacity constraints as a developing state. This stance could influence how Eritrea negotiates treaties, potentially prioritizing flexibility over strict adherence to VCLT protocols. For example, Eritrea may prefer bilateral agreements over multilateral treaties governed by detailed procedural rules, allowing for more tailored arrangements that suit its national interests.

For other countries seeking to enter into treaties with Eritrea, the absence of formal VCLT membership means that explicit clarity in treaty terms and negotiation processes is essential. States should not assume that Eritrea will automatically follow VCLT guidelines, such as those on treaty interpretation under Articles 31-33 of the convention. Instead, treaty texts should include detailed provisions on dispute resolution, amendment procedures, and termination to mitigate potential misunderstandings (Vienna Convention on the Law of Treaties, 1969).

Furthermore, other states should be aware of Eritrea’s dualist approach when negotiating treaties. Given that ratified treaties may not be directly enforceable in Eritrea without domestic legislation, treaty partners may need to collaborate with Eritrean authorities to ensure that necessary national laws are enacted. This process could involve capacity-building initiatives or technical assistance to support legislative reforms aligned with treaty obligations.

In a broader context, Eritrea’s non-party status to the VCLT serves as a reminder to the international community that not all states operate within the same legal frameworks, even for fundamental aspects of international law like treaty-making. This diversity necessitates adaptability and cultural-legal sensitivity in diplomatic engagements. States engaging with Eritrea should prioritize clear communication and mutual understanding of legal expectations during treaty negotiations, rather than relying solely on presumed adherence to international conventions like the VCLT.

Case Studies and Practical Considerations in Eritrea’s Treaty-Making

To illustrate the application of Eritrea’s treaty-making framework, it is useful to consider its engagement in regional and international agreements. One notable example is Eritrea’s membership in the African Union (AU), which entails adherence to the AU Constitutive Act and other regional treaties. While specific details of Eritrea’s ratification and implementation processes are not always publicly documented, its participation in AU frameworks suggests that the executive plays a dominant role in committing to such agreements, with limited evidence of legislative involvement due to the current political structure.

Another significant case is the 2018 peace agreement with Ethiopia, brokered under the auspices of regional and international actors. This agreement, which ended a long-standing border conflict, was primarily driven by executive decisions on both sides, with Eritrea’s President playing a central role in negotiations and signing. The agreement’s implementation has faced challenges, partly due to the lack of transparent domestic legal mechanisms to enforce its provisions, underscoring the importance of Eritrea’s dualist approach and the need for domestic legislative action (United Nations Security Council Reports, 2018).

These examples highlight practical challenges in Eritrea’s treaty-making process, including the centralization of power and the limited role of legislative oversight. For other states, these case studies emphasize the importance of engaging directly with Eritrea’s executive leadership while advocating for inclusive processes that could enhance the legitimacy and enforceability of agreements.

Conclusion

Eritrea’s treaty-making process is shaped by its constitutional framework, which allocates significant authority to the President while reserving a role for the National Assembly in ratifying important international agreements. Despite challenges in the full implementation of the 1997 Constitution, the legal basis for entering into treaties is clear, rooted in Articles 42 and 32, which delineate executive and legislative powers in foreign affairs. Eritrea’s approach to integrating treaties into national law aligns more closely with a dualist system, requiring domestic legislative action to transform international commitments into enforceable national law.

Eritrea’s non-party status to the Vienna Convention on the Law of Treaties 1969 further nuances its engagement with international law. While bound by customary principles reflected in the VCLT, Eritrea retains flexibility in its treaty-making practices, which may necessitate greater diligence from treaty partners to ensure mutual understanding and compliance. For other states, engaging with Eritrea in treaty-making requires an appreciation of its dualist approach, centralized decision-making, and non-accession to key international frameworks like the VCLT.

In the broader context of international relations, Eritrea’s treaty-making process offers valuable lessons on navigating diversity in legal systems and political structures. While challenges remain in ensuring transparent and inclusive treaty processes within Eritrea, opportunities exist for international cooperation to support capacity-building and legal reforms that enhance the effectiveness of its international commitments. Ultimately, understanding Eritrea’s unique constitutional and legal landscape is essential for fostering mutually beneficial treaty relationships that respect both national sovereignty and global norms.

References

• Constitution of Eritrea. (1997). Asmara: Government of Eritrea.
• United Nations Treaty Collection. (2023). Status of Treaties: Vienna Convention on the Law of Treaties. Available at: https://treaties.un.org/
• Vienna Convention on the Law of Treaties. (1969). United Nations, Treaty Series, vol. 1155, p. 331.
• United Nations Security Council Reports. (2018). Reports on the Eritrea-Ethiopia Peace Agreement. Available at: https://www.un.org/securitycouncil/