Introduction
Eswatini, a small landlocked monarchy in Southern Africa, operates within a unique legal and constitutional framework that shapes its engagement with the international community through treaty-making. As globalization intensifies, the ability of states to enter into treaties and honor international commitments while adhering to domestic legal structures becomes increasingly significant. This article examines Eswatini’s treaty-making process, focusing on the balance between its constitutional provisions and international obligations. It explores the legal mechanisms through which Eswatini enters into treaties, the nature of its approach to international law (whether monist or dualist), and the implications of its relationship with foundational international legal instruments such as the Vienna Convention on the Law of Treaties (VCLT) of 1969. The analysis aims to provide clarity on how Eswatini navigates the intersection of national sovereignty and global cooperation, offering insights for other states engaging with this nation in international agreements.
Constitutional Framework for Treaty-Making in Eswatini
The Constitution of the Kingdom of Eswatini, adopted in 2005, serves as the supreme law of the land and provides the foundational legal framework for the country’s engagement in international relations, including treaty-making. The Constitution outlines the distribution of powers among the branches of government and delineates the processes through which the state can enter into binding international agreements. Key provisions related to treaty-making are primarily found in Chapter V, which addresses the Executive, and Chapter VI, which pertains to the Legislature. These provisions establish a clear delineation of authority between the King, as the head of state, and Parliament, reflecting Eswatini’s monarchical system blended with parliamentary oversight.
Section 238 of the Constitution of Eswatini explicitly addresses the country’s engagement in international relations. This section vests the authority to conduct foreign affairs, including the signing of treaties, in the Executive, acting under the leadership of the King. Specifically, Section 238(1) states that the King, in consultation with the government, retains the prerogative to enter into international agreements. This provision underscores the monarch’s central role in foreign policy, a characteristic rooted in Eswatini’s traditional governance structures. However, the Constitution also imposes checks on this authority by requiring parliamentary involvement under certain circumstances, ensuring that treaty-making aligns with national interests and legal norms.
Section 238(2) further elaborates that any international agreement entered into by the government requires ratification or approval by Parliament if it involves significant national resources, affects existing laws, or imposes financial obligations on the state. This requirement introduces a democratic element into the treaty-making process, ensuring that significant international commitments are subject to scrutiny by elected representatives. For example, treaties that necessitate changes to domestic legislation or substantial budgetary allocations must pass through parliamentary approval, reflecting a balance between executive authority and legislative oversight.
Moreover, Section 2 of the Constitution, which affirms the supremacy of the Constitution, implies that any treaty entered into by Eswatini must comply with constitutional principles. If a treaty provision conflicts with the Constitution, it is unlikely to be enforceable within the domestic legal system without constitutional amendments. This principle underscores the importance of aligning international commitments with national legal norms, a point that will be revisited when discussing the monist or dualist nature of Eswatini’s legal system.
In practice, the treaty-making process in Eswatini begins with negotiations conducted by representatives of the Executive, often through the Ministry of Foreign Affairs and International Cooperation. Once an agreement is reached, the draft treaty is presented to the King for approval. If the treaty falls under the categories outlined in Section 238(2), it is then submitted to Parliament for ratification. Upon ratification, the treaty becomes binding on the state at the international level, though its domestic applicability may require further legislative action, as will be explored in the subsequent section on the incorporation of treaties into national law.
Monist or Dualist Approach: Eswatini’s Position on International Law
A critical question in understanding Eswatini’s treaty-making process is whether the country adopts a monist or dualist approach to the relationship between international law and domestic law. Monism posits that international law and national law form a single legal system, where international treaties are automatically binding within the domestic legal order upon ratification. Dualism, conversely, views international and domestic law as distinct systems, requiring treaties to be translated into national law through specific legislative or executive action before they can be enforced domestically (Cassese, 2005).
Eswatini’s legal framework aligns more closely with a dualist approach, as evidenced by the constitutional provisions governing treaty-making and the practical steps required for treaties to have domestic effect. While Section 238 of the Constitution empowers the Executive to enter into treaties, there is no explicit provision stating that treaties automatically become part of national law upon ratification. Instead, the requirement for parliamentary approval in certain cases, as well as the need for enabling legislation to implement treaty obligations domestically, indicates a separation between international commitments and domestic legal obligations.
For instance, if Eswatini enters into a treaty that requires changes to existing laws or the creation of new legal frameworks, such changes must be enacted through parliamentary legislation. This process is consistent with dualist principles, where international law does not directly penetrate the domestic legal system without an intermediary act of incorporation. This approach is further reinforced by Section 2 of the Constitution, which establishes the supremacy of the Constitution over all other laws, implying that international agreements must conform to constitutional standards and cannot override domestic law without proper legislative action.
The dualist stance of Eswatini has significant implications for how treaties are translated into national law. Upon ratification of a treaty by Parliament, the government is obligated under international law to fulfill its commitments. However, for these obligations to be enforceable within Eswatini’s courts or administrative systems, the relevant treaty provisions must often be domesticated through enabling legislation. This process ensures that international commitments are harmonized with national laws and are actionable within the domestic context. For example, treaties related to human rights or trade may require specific statutes to be passed by Parliament to align domestic practices with international standards.
While Eswatini’s dualist approach provides a clear mechanism for maintaining sovereignty over domestic legal affairs, it can sometimes lead to delays or inconsistencies in the implementation of international commitments. If Parliament is slow to pass enabling legislation or if there is political resistance to certain treaty obligations, the state’s ability to comply with international law may be hindered. This tension highlights the importance of effective coordination between the executive and legislative branches to ensure that treaties are not only ratified but also effectively incorporated into national law.
Treaty Implementation in National Law
The process of translating treaties into national law in Eswatini follows a structured yet sometimes complex path due to its dualist orientation. As previously noted, treaties do not automatically become part of domestic law upon ratification. Instead, they require specific legislative or administrative actions to be enforceable within the country. This section elaborates on the mechanisms through which treaty obligations are implemented and the challenges associated with this process.
Once a treaty is ratified in accordance with Section 238 of the Constitution, the next step involves assessing whether its provisions require changes to existing laws or the creation of new legal instruments. If such changes are necessary, the Executive, typically through relevant ministries, drafts legislation to align domestic laws with the treaty’s requirements. This draft is then tabled in Parliament for debate and approval. For example, Eswatini’s commitments under regional trade agreements, such as those within the Southern African Development Community (SADC), often necessitate amendments to customs or economic regulations, which must pass through parliamentary processes.
In cases where a treaty does not require legislative changes—such as agreements on diplomatic relations or non-binding memoranda of understanding—the Executive may implement the treaty through administrative measures. However, even in these instances, the principles of the Constitution, particularly those related to human rights and the rule of law under Chapter III, must be upheld. This ensures that all international commitments are consistent with Eswatini’s legal and cultural norms.
One challenge in the implementation of treaties in Eswatini is the capacity of parliamentary and administrative bodies to handle complex international obligations. Limited resources, coupled with the intricacies of aligning international standards with local contexts, can result in delays or incomplete implementation. Furthermore, the dualist approach means that individuals or entities within Eswatini cannot directly invoke treaty provisions in domestic courts unless those provisions have been incorporated into national law. This can create a gap between international obligations and domestic remedies, particularly in areas such as human rights or environmental protection.
Despite these challenges, Eswatini has made efforts to honor its international commitments through legislative reforms and policy initiatives. For example, the country’s participation in international human rights treaties has led to the enactment of domestic laws aimed at protecting vulnerable groups, though the pace and depth of implementation vary. The dualist framework, while preserving national sovereignty, requires robust mechanisms to ensure that international treaties are not merely symbolic but have tangible effects within the country.
Eswatini and the Vienna Convention on the Law of Treaties (1969)
The Vienna Convention on the Law of Treaties (VCLT) of 1969 is a cornerstone of international law, often referred to as the “treaty on treaties.” It provides comprehensive guidelines on the formation, interpretation, amendment, and termination of treaties between states. Adopted on 23 May 1969 and entering into force on 27 January 1980, the VCLT codifies customary international law and serves as a critical framework for regulating treaty-making practices globally (United Nations, 1980).
Eswatini, however, is not a party to the VCLT. As of the latest records available, Eswatini has neither signed nor ratified the Convention. This status raises questions about how the country approaches treaty-making in the absence of formal adherence to the VCLT’s rules and whether customary international law, as reflected in parts of the VCLT, still influences its practices. Many non-parties to the VCLT, including major states like the United States, recognize significant portions of the Convention as restatements of customary international law, which are binding on all states regardless of ratification status (Wikipedia, 2023).
For Eswatini, the non-ratification of the VCLT does not necessarily imply a disregard for international norms. The country’s treaty-making practices, as governed by its Constitution, broadly align with fundamental principles of international law, such as pacta sunt servanda (agreements must be kept), which is a cornerstone of the VCLT under Article 26. Eswatini’s participation in regional and bilateral agreements suggests an implicit adherence to customary rules governing treaty formation and implementation, even if not formally bound by the VCLT itself.
The absence of formal accession to the VCLT has implications for other states seeking to enter into treaties with Eswatini. First, it underscores the importance of understanding Eswatini’s domestic legal framework, particularly the constitutional provisions under Section 238, to ensure that agreements are duly ratified and implemented. Other states must recognize that Eswatini’s dualist approach requires treaties to be domesticated through legislative action, which may affect the timeliness and certainty of implementation. Engaging with Eswatini’s Ministry of Foreign Affairs and International Cooperation early in the treaty-making process can help clarify procedural requirements and ensure alignment with national laws.
Second, while the VCLT’s detailed rules on treaty interpretation (Articles 31-33) or termination (Articles 54-64) may not be directly binding on Eswatini, customary international law principles reflected in these articles are likely to guide negotiations and dispute resolution. Other states should approach treaty-making with Eswatini under the assumption that customary norms, such as good faith and mutual consent, will underpin the process. Drafting clear, unambiguous treaty texts and establishing mechanisms for consultation and dispute resolution can mitigate potential misunderstandings arising from Eswatini’s non-party status to the VCLT.
Finally, Eswatini’s non-ratification of the VCLT may serve as a cautionary note for other states about the diversity of treaty-making frameworks across the international community. It highlights the need for flexibility and due diligence in international negotiations, ensuring that domestic legal processes are respected alongside international norms. For states accustomed to dealing with VCLT parties, engaging with Eswatini may require additional efforts to align expectations and procedural approaches.
Balancing Constitutional Provisions and International Commitments
Eswatini’s treaty-making process exemplifies the broader challenge faced by many states in balancing national sovereignty with international cooperation. The constitutional framework, centered on the King’s prerogative under Section 238, reflects a historical and cultural preference for centralized authority in foreign affairs. However, the requirement for parliamentary ratification in significant cases introduces a democratic check, ensuring that international commitments align with national interests. This balance is further complicated by the dualist approach, which prioritizes domestic law over international obligations unless explicitly incorporated, safeguarding Eswatini’s legal autonomy.
At the international level, Eswatini remains committed to regional and global cooperation, participating in organizations such as the African Union (AU) and the Southern African Development Community (SADC). These engagements demonstrate a willingness to align with international norms, even in the absence of formal adherence to instruments like the VCLT. However, the practical implementation of treaties within Eswatini often faces hurdles due to resource constraints, legislative delays, and the need to reconcile international standards with local realities. For instance, while Eswatini has ratified several human rights treaties, such as the African Charter on Human and Peoples’ Rights, the domestic enforcement of these commitments sometimes lags due to systemic challenges.
The tension between constitutional provisions and international commitments is not unique to Eswatini but is particularly pronounced in a dualist system with a strong monarchical tradition. To enhance the effectiveness of its treaty-making process, Eswatini could consider capacity-building initiatives for parliamentary and administrative bodies to streamline the domestication of treaties. Additionally, greater public awareness and stakeholder engagement in the treaty-making process could ensure broader societal support for international commitments, reducing resistance to legislative reforms.
For the international community, Eswatini’s approach underscores the importance of patience and cultural sensitivity in treaty negotiations. States must recognize that the domestic legal processes of non-VCLT parties like Eswatini may differ from global standards, necessitating tailored approaches to ensure mutual benefit. Clear communication and the establishment of joint monitoring mechanisms can help bridge gaps between Eswatini’s constitutional requirements and international expectations, fostering sustainable and enforceable agreements.
Conclusion
Eswatini’s treaty-making process is a complex interplay of constitutional provisions, cultural traditions, and international aspirations. The Constitution of 2005, particularly under Section 238, provides a structured yet balanced framework for entering into treaties, vesting primary authority in the King while mandating parliamentary oversight for significant agreements. The country’s dualist approach to international law ensures that treaties are not automatically enforceable domestically, requiring legislative action to translate international obligations into national law. This preserves Eswatini’s sovereignty but introduces challenges in timely and effective implementation.
Eswatini’s non-party status to the Vienna Convention on the Law of Treaties (1969) further shapes its international engagements, emphasizing the need for other states to engage with its domestic legal processes and rely on customary international law principles. While this status does not preclude effective treaty-making, it highlights the diversity of legal frameworks governing international relations and the importance of adaptability in negotiations.
Ultimately, Eswatini’s experience offers valuable lessons for balancing constitutional mandates with international commitments. For Eswatini, strengthening domestic capacity and legislative efficiency could enhance its ability to honor treaties. For the international community, understanding and respecting Eswatini’s unique legal and cultural context is essential for fostering cooperative and mutually beneficial agreements. As globalization continues to shape state interactions, such nuanced approaches to treaty-making will remain critical for ensuring harmony between national and international legal orders.
References
- Cassese, A. (2005). International Law (2nd ed.). Oxford University Press.
- Constitution of the Kingdom of Eswatini (2005). Retrieved from official government sources.
- United Nations (1980). Vienna Convention on the Law of Treaties, 1969. Retrieved from https://legal.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf
- Wikipedia (2023). Vienna Convention on the Law of Treaties. Retrieved from https://en.wikipedia.org/wiki/Vienna_Convention_on_the_Law_of_Treaties
