Introduction
Namibia, a nation with a rich history of struggle for independence and a commitment to sovereignty, has established a unique framework for engaging with the international community through treaty-making. As a young democracy, having gained independence from South African rule in 1990, Namibia’s legal and constitutional systems reflect a deliberate effort to balance national interests with international obligations. This article explores Namibia’s treaty-making process, focusing on the constitutional principles that guide this process, the mechanisms for aligning these principles with international commitments, and the implications for Namibia’s role in the global legal order. Through an in-depth analysis of relevant constitutional provisions, the nature of Namibia’s approach to treaties—whether monist or dualist—will be clarified, alongside a discussion of how international agreements are incorporated into national law. Additionally, the article examines Namibia’s stance on the Vienna Convention on the Law of Treaties (VCLT) of 1969 and the broader implications for other states engaging in treaty negotiations with Namibia.
The significance of this analysis lies in understanding how a post-colonial state navigates the complexities of international law while preserving its sovereignty and constitutional integrity. Namibia’s experience offers valuable insights for other nations, particularly those in the Global South, striving to reconcile domestic legal frameworks with international commitments. This article is structured to first outline the constitutional basis for treaty-making in Namibia, followed by a discussion of its monist or dualist orientation, the process of domesticating treaties, and finally, an examination of Namibia’s relationship with the VCLT and its implications for international treaty practice.
Constitutional Framework for Treaty-Making in Namibia
The Constitution of the Republic of Namibia, adopted in 1990, 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 reflects Namibia’s commitment to international cooperation, human rights, and the rule of law, principles that were hard-won during the liberation struggle. Several key articles within the Constitution are directly relevant to the treaty-making process and establish the parameters within which the Namibian government can enter into international agreements.
Article 32(3)(e): Powers of the President
Under Article 32(3)(e) of the Namibian Constitution, the President is vested with the authority to “negotiate and sign international agreements and to delegate such power.” This provision explicitly empowers the Executive, through the President, to act as the primary agent in treaty-making. The President’s role in this process underscores the centrality of executive authority in representing Namibia on the international stage. However, while the President may negotiate and sign treaties, this power is not absolute and must align with the broader constitutional framework and principles of accountability.
Article 63(2)(e): Role of the National Assembly
Article 63(2)(e) of the Constitution mandates that the National Assembly must “agree to the ratification of or accession to international agreements which have been negotiated and signed in terms of Article 32(3)(e).” This provision introduces a critical element of parliamentary oversight in the treaty-making process. While the President initiates and negotiates treaties, the National Assembly’s approval is required for ratification or accession, ensuring a democratic check on executive power. This dual involvement of the Executive and Legislature reflects a deliberate constitutional design to balance efficiency in international negotiations with accountability to the Namibian people through their elected representatives.
Article 144: International Law and Domestic Law
Perhaps the most significant constitutional provision regarding treaties and international law is Article 144, which states: “Unless otherwise provided by this Constitution or Act of Parliament, the general rules of public international law and international agreements binding upon Namibia under this Constitution shall form part of the law of Namibia.” This article establishes a direct link between international commitments and domestic law, suggesting an automatic incorporation of binding international agreements into Namibia’s legal system. The implication of this provision is profound, as it indicates a framework where treaties, once ratified, may not require additional legislative action to be enforceable domestically, depending on their nature and content. Article 144 serves as a bridge between Namibia’s domestic legal order and its international obligations, a topic that will be explored further in the context of the monist-dualist debate.
Together, these constitutional provisions—Articles 32(3)(e), 63(2)(e), and 144—create a clear and structured process for treaty-making in Namibia. The President initiates and negotiates agreements, the National Assembly provides democratic assent through ratification, and international agreements can become part of domestic law under the framework of Article 144. This process reflects a commitment to both executive leadership in foreign affairs and legislative oversight, ensuring that international commitments align with national interests and constitutional principles. Furthermore, the Constitution’s emphasis on international law as part of Namibia’s legal fabric underscores the nation’s intent to be an active and responsible member of the international community.
Monist or Dualist Approach: Namibia’s Orientation
A fundamental question in international law is whether a state adopts a monist or dualist approach to the relationship between international and domestic law. Monism posits that international law and domestic law form a single legal system, with international law automatically becoming part of domestic law upon ratification of a treaty or recognition of customary norms. Dualism, in contrast, treats international and domestic law as distinct systems, requiring specific legislative action to incorporate international obligations into national law. Understanding Namibia’s position on this spectrum is crucial for analyzing how treaties are translated into enforceable domestic law.
Namibia’s approach to international law, as articulated in Article 144 of the Constitution, leans strongly toward monism. The provision that “general rules of public international law and international agreements binding upon Namibia… shall form part of the law of Namibia” suggests an automatic incorporation of international law into the domestic legal order. This monist inclination implies that once a treaty is ratified by the National Assembly in accordance with Article 63(2)(e), it becomes directly applicable within Namibia without the need for further legislative enactment, unless the Constitution or an Act of Parliament provides otherwise. This interpretation aligns with the findings of scholars who have analyzed Namibia’s constitutional framework (see, for example, the critique in the Global Journal of Comparative Law, 2020).
However, while Namibia exhibits a monist tendency, the practical application of international law within the country reveals nuances that suggest elements of dualism. For instance, the phrase “unless otherwise provided by this Constitution or Act of Parliament” in Article 144 allows for exceptions where domestic legislation may be required to give effect to certain international obligations. This indicates that for some treaties, particularly those requiring detailed implementation mechanisms or affecting existing domestic laws, additional legislative action might be necessary. Judicial decisions in Namibia have also shown variability in the direct application of international law, with courts sometimes requiring explicit domestication of treaties to enforce them in specific cases (Global Journal of Comparative Law, 2020). Thus, while Namibia’s constitutional framework leans toward monism, its practice incorporates dualist elements, creating a hybrid system that seeks to balance international commitments with domestic legal sovereignty.
Translation of Treaties into National Law
The process of translating treaties into national law in Namibia is governed by the interplay of constitutional provisions and practical considerations. As outlined earlier, Article 144 provides the constitutional basis for the automatic incorporation of binding international agreements into Namibian law. However, the extent to which a treaty is self-executing—meaning it can be directly applied by courts without further legislation—depends on the nature of the treaty and the specificity of its provisions.
For treaties that are clear and specific in their obligations, such as those related to human rights or international trade, courts in Namibia may directly apply these agreements as part of domestic law under Article 144. For example, Namibia’s ratification of international human rights instruments, such as the International Covenant on Civil and Political Rights (ICCPR), has been cited in judicial decisions to uphold individual rights, demonstrating the direct applicability of such treaties. However, for treaties that are more general or require detailed regulatory frameworks—such as environmental agreements or complex trade pacts—domestic legislation is often enacted to give effect to the treaty’s obligations. This dual approach ensures that while Namibia honors its international commitments, it retains the flexibility to tailor implementation to national circumstances.
The role of the National Assembly in this process is critical. As mandated by Article 63(2)(e), the ratification of treaties requires parliamentary approval, which serves as a democratic safeguard to ensure that international commitments reflect the will of the Namibian people. Once ratified, the treaty becomes binding on Namibia internationally, and under Article 144, it forms part of domestic law. However, if additional legislation is needed to implement the treaty, the National Assembly must pass the necessary laws. This legislative process allows for public debate and scrutiny, ensuring that the domestication of treaties aligns with national priorities and constitutional principles such as the protection of fundamental rights and freedoms (enshrined in Chapter 3 of the Constitution).
Judicial interpretation also plays a significant role in the translation of treaties into national law. Namibian courts, particularly the Supreme Court, have at times adopted an interpretative approach that uses international law as a guide to inform domestic legal principles, even in cases where a treaty may not be directly enforceable. However, inconsistencies in judicial application have been noted, with some critiques suggesting that courts have occasionally failed to give full effect to international obligations due to a lack of clarity on the scope of Article 144 (Global Journal of Comparative Law, 2020). This highlights the need for greater judicial training and legislative clarity to ensure consistent implementation of treaties in Namibia.
Namibia and the Vienna Convention on the Law of Treaties (1969)
The Vienna Convention on the Law of Treaties (VCLT), adopted on 23 May 1969 and entered into force on 27 January 1980, is widely regarded as the foundational instrument regulating the formation, interpretation, and termination of treaties between states. Often described as the “treaty on treaties,” the VCLT codifies customary international law on treaty practice and provides a framework for ensuring clarity and predictability in international agreements (Vienna Convention on the Law of Treaties, Wikipedia). Given its significance, whether Namibia is a party to the VCLT and how it applies the convention’s principles are important considerations for understanding its treaty-making process and for other states seeking to enter into treaties with Namibia.
Namibia is not a signatory to the VCLT of 1969. Having gained independence in 1990, long after the convention was opened for signature, Namibia did not accede to the treaty in the subsequent years. However, this does not mean that the principles of the VCLT are irrelevant to Namibia’s treaty practice. Many provisions of the VCLT are recognized as codifications of customary international law, which, under Article 144 of the Namibian Constitution, form part of the law of Namibia. Principles such as pacta sunt servanda (agreements must be kept), good faith in treaty negotiations, and rules on treaty interpretation (as outlined in Articles 31 and 32 of the VCLT) are binding on Namibia as customary norms, even in the absence of formal accession to the convention.
For other countries engaging in treaty negotiations with Namibia, this situation has several implications. First, while Namibia is not a party to the VCLT, it is bound by many of its core principles through customary international law. This means that states can expect Namibia to adhere to widely accepted norms of treaty-making, such as the requirement for treaties to be negotiated and concluded in good faith. Second, Namibia’s non-signatory status to the VCLT may require greater attention to detail in treaty drafting to avoid ambiguities, as there is no formal commitment to the interpretive frameworks provided by the convention. States should ensure that treaties with Namibia explicitly address issues such as dispute resolution mechanisms, amendment procedures, and termination conditions to mitigate potential misunderstandings.
Moreover, Namibia’s reliance on customary international law under Article 144 suggests that other states can use established customary norms as a basis for engaging with Namibia, even in areas not covered by the VCLT. For example, principles regarding the invalidity of treaties due to coercion or error, which are customary in nature, would apply to Namibia’s treaty relations. Finally, states negotiating with Namibia should be aware of the constitutional requirement for parliamentary ratification under Article 63(2)(e), ensuring that timelines for treaty conclusion account for domestic approval processes in Namibia. In this way, while Namibia’s non-accession to the VCLT does not hinder its ability to engage in treaty-making, it places additional responsibility on negotiating partners to align expectations and treaty terms with both customary international law and Namibia’s constitutional framework.
Aligning Constitutional Principles with International Commitments
Central to Namibia’s treaty-making process is the alignment of constitutional principles with international commitments. The Constitution of Namibia is rooted in values of sovereignty, democracy, human rights, and the rule of law, as articulated in its preamble and various substantive provisions. Chapter 3, for instance, guarantees fundamental rights and freedoms, including equality, non-discrimination, and the right to life, which must be upheld in any international agreement entered into by the state. Similarly, the principles of state policy in Article 95, which include promoting the welfare of the people and maintaining a sustainable environment, guide Namibia’s international engagements to ensure they reflect national priorities.
In practice, aligning these constitutional principles with international commitments requires careful negotiation and scrutiny during the treaty-making process. The requirement for National Assembly approval under Article 63(2)(e) serves as a mechanism to ensure that treaties do not contravene constitutional values. For example, if a proposed treaty were to compromise fundamental rights or undermine Namibia’s sovereignty, the National Assembly could withhold ratification, thereby protecting constitutional integrity. This democratic oversight is essential in post-colonial contexts like Namibia, where historical experiences of external domination heighten sensitivities to agreements that might infringe on national autonomy.
Furthermore, the judiciary plays a pivotal role in ensuring alignment between international commitments and constitutional principles. Under Article 144, Namibian courts can adjudicate disputes involving international agreements, interpreting them in light of constitutional mandates. Judicial review serves as a safeguard against treaties that might conflict with fundamental rights or other constitutional provisions, reinforcing the supremacy of the Constitution as per Article 1(6). This interplay between the executive, legislative, and judicial branches in the treaty-making process exemplifies Namibia’s commitment to constitutionalism while engaging with the international community.
At the international level, Namibia’s treaty-making process demonstrates a principled stand on aligning with global norms, particularly in areas such as human rights, environmental protection, and conflict resolution. For instance, Namibia’s engagement with international courts like the International Court of Justice (ICJ) and the International Criminal Court (ICC) reflects its commitment to upholding international law, as seen in its responses to global issues like the conflict in Gaza (The Namibian, 2025). This alignment with international norms, while rooted in constitutional principles, positions Namibia as a reliable partner in global governance, despite challenges such as limited resources or capacity to fully implement certain treaties.
Challenges and Opportunities in Namibia’s Treaty-Making Process
While Namibia’s treaty-making process is constitutionally robust, several challenges persist. One significant issue is the capacity constraint within government institutions to negotiate, ratify, and implement complex international agreements. Limited technical expertise and resources can hinder effective participation in treaty negotiations, particularly for agreements requiring sophisticated legal or technical frameworks. Additionally, the hybrid monist-dualist approach, while flexible, can create uncertainty in the application of international law within Namibia, as judicial and legislative interpretations may vary.
Public awareness and participation in the treaty-making process also remain areas for improvement. While the National Assembly provides democratic oversight, broader public consultation could further enhance transparency and legitimacy in treaty-making. Ensuring that civil society and affected communities have a voice in the process would align with Namibia’s constitutional commitment to democracy and participatory governance.
Despite these challenges, there are significant opportunities for Namibia to strengthen its treaty-making framework. Leveraging regional cooperation through organizations like the Southern African Development Community (SADC) and the African Union (AU) can provide technical support and shared expertise in treaty negotiations. Additionally, investing in capacity-building for government officials and legal professionals can enhance Namibia’s ability to engage effectively in international agreements. Finally, greater judicial clarity on the application of Article 144 through landmark rulings could solidify Namibia’s monist orientation, reducing ambiguity in the domestication of treaties.
Conclusion
Namibia’s treaty-making process is a testament to its commitment to balancing constitutional principles with international commitments. Anchored in Articles 32(3)(e), 63(2)(e), and 144 of the Constitution, the process reflects a structured interplay of executive initiative, legislative oversight, and judicial interpretation. While Namibia exhibits a predominantly monist approach to international law through the automatic incorporation of treaties under Article 144, elements of dualism are evident in the need for domestic legislation for certain agreements, creating a hybrid system that prioritizes both international obligations and national sovereignty.
The absence of formal accession to the Vienna Convention on the Law of Treaties (1969) does not diminish Namibia’s engagement with international treaty norms, as customary international law, recognized under Article 144, governs its treaty practice. For other states, this underscores the importance of relying on customary norms and ensuring clarity in treaty terms when engaging with Namibia. Moreover, Namibia’s alignment of constitutional principles with international commitments through democratic and judicial mechanisms offers a model for post-colonial states seeking to navigate the complexities of global legal obligations.
As Namibia continues to define its place in the international community, addressing challenges such as capacity constraints and public participation will be crucial. By leveraging regional partnerships and investing in institutional capacity, Namibia can enhance its treaty-making process, ensuring that it remains a principled and reliable actor on the global stage. This analysis not only illuminates Namibia’s unique approach to treaties but also contributes to broader discourses on the interplay between national and international law in emerging democracies.
References
- Constitution of the Republic of Namibia, 1990.
- “The Namibian Constitution, International Law and the Courts: a Critique.” Global Journal of Comparative Law, Volume 9, Issue 2, 2020. Brill. Available at: https://brill.com/view/journals/gjcl/9/2/article-p271_271.xml?language=en
- “The Hague Group: Namibia’s Principled Stand on International Law and the War in Gaza.” The Namibian, 2025. Available at: https://namibian.com.na/the-hague-group-namibias-principled-stand-on-international-law-and-the-war-in-gaza
- “Vienna Convention on the Law of Treaties.” Wikipedia. Available at: https://en.wikipedia.org/wiki/Vienna_Convention_on_the_Law_of_Treaties
