Introduction

Tuvalu, a small Pacific Island nation, faces unique challenges and opportunities in engaging with the international community through treaty-making. With a population of just over 11,000 and a landmass threatened by climate change, Tuvalu’s participation in international agreements is often driven by existential concerns such as environmental protection, security, and economic development. The process of treaty-making in Tuvalu is shaped by its constitutional framework, its historical context as a former British colony, and its commitments to international law. This article examines Tuvalu’s treaty-making process, exploring how its constitutional provisions govern the formation of international agreements, the approach to integrating treaties into national law, and the implications of its relationship with the Vienna Convention on the Law of Treaties 1969 (VCLT). By delving into these aspects, this analysis aims to provide a comprehensive understanding of how a small state navigates the complex interplay between domestic legal structures and international obligations, offering insights for other nations engaging with Tuvalu in treaty negotiations.

Historical and Political Context of Tuvalu’s Legal System

Tuvalu, formerly known as the Ellice Islands, gained independence from the United Kingdom on October 1, 1978. As a sovereign state, it adopted a constitutional framework that reflects both its indigenous governance traditions and the Westminster model of parliamentary democracy inherited from its colonial past. Tuvalu’s legal system is based on a combination of written statutes, common law principles, and customary law, with the Constitution serving as the supreme law of the land. The Constitution of Tuvalu, enacted in 1978 and subsequently amended, provides the foundational legal structure for governance, including the mechanisms through which the state can engage in international relations and enter into treaties.

As a small island developing state (SIDS), Tuvalu’s international engagements are often motivated by the need to address vulnerabilities such as climate change, limited economic resources, and geopolitical isolation. The country has been an active participant in international forums, particularly in relation to environmental agreements, such as the Paris Agreement on climate change, and regional arrangements within the Pacific Islands Forum. Understanding the treaty-making process in Tuvalu requires an appreciation of these contextual factors, as they influence both the priorities and the procedural constraints of the state in international dealings.

Constitutional Framework for Treaty-Making in Tuvalu

The Constitution of Tuvalu establishes the legal basis for the country’s engagement in international treaties and agreements. While the Constitution does not provide an exhaustive or detailed procedure for treaty-making, it assigns powers and responsibilities to specific branches of government, which form the foundation for negotiating, signing, and ratifying international agreements. The relevant provisions can be found in sections related to the executive and legislative branches of government, reflecting the separation of powers within Tuvalu’s Westminster-inspired system.

Under Section 4 of the Constitution of Tuvalu, the principles of governance emphasize adherence to internationally recognized standards of law and justice, which implicitly includes respect for international treaties and commitments. More specifically, treaty-making powers are associated with the executive authority, which is vested in the Head of State, the Governor-General, acting on the advice of the Cabinet. Section 52 of the Constitution outlines the role of the Governor-General as the representative of the Sovereign (the monarch of the United Kingdom, who remains Tuvalu’s ceremonial head of state). In practice, the Governor-General exercises powers on the advice of the Prime Minister and the Cabinet, meaning that treaty negotiations and decisions to enter into international agreements are primarily driven by the executive branch.

Section 62 of the Constitution further delineates the executive powers of the Cabinet, stating that it is responsible for the general direction and control of the government, which includes matters of foreign affairs. Although the Constitution does not explicitly mention treaty-making as a distinct function, the authority over foreign policy inherently encompasses the power to negotiate and conclude treaties. This interpretation aligns with common law traditions in many former British colonies, where the executive holds the prerogative to conduct international relations, including treaty-making, unless explicitly restricted by legislation or the Constitution.

The role of Parliament in the treaty-making process is less explicitly defined in the Constitution of Tuvalu. Section 77 establishes the legislative power of Parliament to make laws for the “peace, order, and good government” of Tuvalu, which could include the implementation of treaty obligations into domestic law. However, there is no constitutional requirement for parliamentary approval of treaties before ratification, as is common in some other jurisdictions. This suggests that the executive can commit Tuvalu to international agreements without mandatory legislative consent, although political convention or specific legislation may encourage consultation with Parliament on significant matters.

In practice, the treaty-making process in Tuvalu often involves coordination between the Cabinet, the Office of the Prime Minister, and relevant ministries, such as the Ministry of Foreign Affairs, Trade, Tourism, Environment, and Labour. Legal advice is typically sought from the Attorney-General’s Office to ensure compliance with both domestic law and international obligations. While the constitutional framework provides the executive with significant latitude in treaty-making, the involvement of other stakeholders reflects a commitment to transparency and accountability within the constraints of a small administrative system.

Monist or Dualist Approach: Treaties and National Law in Tuvalu

A critical aspect of understanding Tuvalu’s treaty-making process is determining whether the country follows a monist or dualist approach to the incorporation of international law into its domestic legal system. In a monist system, international law is automatically part of domestic law upon ratification of a treaty, without the need for further legislative action. In contrast, a dualist system treats international law and domestic law as separate spheres, requiring specific legislative enactment to transform treaty obligations into enforceable national law.

Tuvalu operates under a predominantly dualist approach to international law, a characteristic inherited from its British legal tradition. In common law systems, treaties concluded by the executive do not automatically have the force of law domestically unless they are incorporated through an Act of Parliament. This principle is evident in Tuvalu’s legal practice, where the implementation of treaty obligations often requires enabling legislation to be passed by Parliament under Section 77 of the Constitution, as noted earlier. For example, while Tuvalu may ratify an international convention, such as those related to environmental protection or human rights, the provisions of such agreements do not become directly enforceable in Tuvaluan courts until domesticated through national statutes.

This dualist approach is not explicitly stated in the Constitution but is inferred from the general structure of the legal system and judicial precedent in common law jurisdictions. Courts in Tuvalu are likely to follow the principle that international treaties are binding on the state at the international level but lack direct effect domestically without legislative incorporation. This can create practical challenges, particularly given Tuvalu’s limited legislative and administrative capacity to draft and enact laws implementing treaty obligations. For instance, while Tuvalu is a party to several international environmental agreements, the translation of these commitments into actionable domestic policies and laws can be delayed due to resource constraints.

However, it is worth noting that certain constitutional provisions, such as Section 4, which emphasizes adherence to international standards, may provide a basis for courts to consider international law as a persuasive or interpretive tool in domestic cases, even if not directly enforceable. This reflects a nuanced application of the dualist approach, where international obligations may indirectly influence judicial reasoning or policy-making, particularly in areas of significant national interest like climate change mitigation.

The process of translating treaties into national law in Tuvalu typically begins with the executive identifying the need for legislative action following ratification. The relevant ministry, often in consultation with the Attorney-General, prepares draft legislation to be tabled in Parliament. Once passed, the law enables the enforcement of treaty provisions within the domestic legal framework. This process ensures that international commitments are aligned with national priorities and legal norms, although it can be slow due to the limited frequency of parliamentary sittings and competing legislative agendas in a small state like Tuvalu.

Tuvalu and the Vienna Convention on the Law of Treaties 1969

The Vienna Convention on the Law of Treaties 1969 (VCLT) is often referred to as the “treaty on treaties” due to its comprehensive codification of customary international law governing the formation, interpretation, and termination of treaties (United Nations, 1969). Adopted on May 23, 1969, and entering into force on January 27, 1980, the VCLT provides a universal framework for treaty-making among sovereign states and has been widely accepted as a cornerstone of international law.

Tuvalu is not a party to the VCLT 1969 as either a signatory or a ratifying state. According to records from the United Nations Treaty Collection and other international legal databases, Tuvalu has neither signed nor acceded to the Convention since its independence in 1978. This absence of formal accession may be attributed to a variety of factors, including the country’s limited administrative capacity to engage with all international legal instruments, the prioritization of treaties directly relevant to its national interests (e.g., climate change and maritime agreements), and the historical context of its late entry into the community of sovereign states post-VCLT adoption.

Despite not being a party to the VCLT, Tuvalu is still influenced by its provisions, as many of the rules codified in the Convention are considered part of customary international law. Customary international law binds all states, regardless of whether they have formally acceded to a specific treaty. Provisions such as those related to the consent to be bound by a treaty (Article 11 of the VCLT), the principles of good faith (Article 26), and the rules on treaty interpretation (Articles 31-33) are generally applicable to Tuvalu’s treaty-making practices. This is particularly relevant in the Pacific region, where treaty-making often occurs within frameworks established by regional organizations like the Pacific Islands Forum, which implicitly adhere to VCLT principles.

For other countries seeking to enter into treaties with Tuvalu, the non-membership in the VCLT suggests a need for clarity and explicit agreement on procedural matters. While Tuvalu is likely to follow customary practices in treaty negotiations—such as ensuring formal expressions of consent through signature or ratification—partner states should be mindful of potential discrepancies in interpretation or application of treaty rules that might arise due to Tuvalu’s non-ratification of the VCLT. For example, in negotiating agreements like the recent Falepili Union Treaty with Australia, signed in 2023, explicit documentation of mutual understanding on treaty processes and obligations becomes crucial to avoid misunderstandings (National Indigenous Times, 2023).

Additionally, Tuvalu’s non-accession to the VCLT highlights a broader lesson for the international community: small states may not have the resources or immediate incentive to ratify all foundational international legal instruments, yet they remain active participants in global governance through customary law and issue-specific treaties. Other nations should approach treaty-making with Tuvalu with flexibility, recognizing that while formal adherence to the VCLT framework may be absent, the substantive principles of international law are still likely to guide Tuvalu’s conduct.

Case Studies: Tuvalu’s Engagement in International Treaties

To illustrate Tuvalu’s treaty-making practices, this section examines two notable examples: the Paris Agreement on climate change and the Falepili Union Treaty with Australia. These cases highlight how Tuvalu navigates its constitutional framework and international commitments, as well as the practical implications of its dualist approach to treaty implementation.

The Paris Agreement (2015): Tuvalu ratified the Paris Agreement on November 22, 2016, demonstrating its commitment to global efforts to combat climate change, a critical issue for a nation vulnerable to rising sea levels. The executive, through the Cabinet, facilitated the ratification process without a mandatory requirement for parliamentary approval, consistent with the constitutional allocation of foreign affairs powers under Section 62. However, the implementation of specific commitments under the Agreement, such as nationally determined contributions (NDCs), requires domestic legislative and policy measures. Given Tuvalu’s dualist approach, the provisions of the Paris Agreement are not directly enforceable in national courts but must be translated into local laws or regulations, a process that remains ongoing due to capacity constraints.

The Falepili Union Treaty (2023): Signed on November 10, 2023, between Tuvalu and Australia, the Falepili Union Treaty represents a landmark bilateral agreement addressing climate change adaptation, security, and human mobility (Earth Refuge, 2023). The treaty-making process was led by the executive branch, with the Prime Minister and relevant ministries coordinating negotiations. As with other treaties, the obligations under the Falepili Union Treaty require domestication through national legislation to be fully operational within Tuvalu’s legal system. This agreement underscores the importance of international partnerships for Tuvalu and the role of the executive in swiftly committing to treaties of existential significance, even as legislative incorporation lags behind.

These case studies demonstrate that while Tuvalu’s constitutional framework enables the executive to engage in treaty-making efficiently, the dualist approach can create a gap between international commitments and domestic enforceability. This gap is often exacerbated by the practical challenges of a small state with limited resources to draft and pass enabling legislation. Nevertheless, Tuvalu’s active participation in such agreements highlights its prioritization of international cooperation, particularly on issues central to its national survival.

Implications for International Relations and Treaty-Making

Tuvalu’s treaty-making process offers several insights for the broader international community. First, the predominance of executive authority in treaty negotiations reflects a flexible and pragmatic approach suitable for a small state with limited bureaucratic structures. However, the lack of a mandatory role for Parliament in ratification may raise concerns about democratic oversight, particularly for agreements with significant long-term implications, such as security or mobility arrangements. Other nations engaging with Tuvalu should be aware of this dynamic and may consider encouraging greater legislative consultation as part of bilateral discussions to ensure broader domestic support for treaties.

Second, the dualist nature of Tuvalu’s legal system underscores the importance of patience and support in treaty implementation. Larger states or international organizations entering into agreements with Tuvalu should anticipate delays in the domestication of treaty provisions and consider capacity-building initiatives to assist with legislative drafting and policy development. This is particularly relevant for complex multilateral agreements where compliance requires significant legal and administrative adjustments.

Finally, Tuvalu’s non-accession to the VCLT 1969 serves as a reminder that adherence to international legal instruments is not a prerequisite for meaningful participation in global governance. While Tuvalu abides by customary international law in its treaty-making practices, other states should prioritize clear communication and documentation of procedural expectations to mitigate potential misunderstandings. This approach can foster stronger and more equitable partnerships, particularly with small island states facing unique challenges in the international arena.

Conclusion

Tuvalu’s treaty-making process is a fascinating study of how a small Pacific Island nation balances constitutional constraints, international commitments, and practical realities. The Constitution of Tuvalu, through provisions such as Sections 4, 52, 62, and 77, assigns primary authority for treaty-making to the executive branch while leaving the incorporation of treaties into national law to legislative action, reflecting a dualist approach to international law. Although Tuvalu is not a party to the Vienna Convention on the Law of Treaties 1969, it adheres to customary international law principles in its engagement with other states, offering lessons on flexibility and pragmatism in treaty negotiations.

For other countries, understanding Tuvalu’s legal and procedural framework is essential to building effective and sustainable partnerships. By recognizing the challenges of legislative incorporation and the predominance of executive decision-making, partner states can tailor their approaches to treaty-making with Tuvalu, ensuring mutual respect and clarity. As global challenges like climate change continue to necessitate international cooperation, small states like Tuvalu will remain vital actors in the treaty-making landscape, navigating their constitutional frameworks and international commitments with resilience and determination.

References

• Constitution of Tuvalu. (1978). Tuvalu Government.
• United Nations. (1969). Vienna Convention on the Law of Treaties. United Nations Treaty Series, 1155, 331.
• National Indigenous Times. (2023, July 30). Tuvalu, Australia look to develop landmark climate pact. Retrieved from relevant web information.
• Earth Refuge. (2023, November 15). What Does the World’s First Bilateral Climate Mobility Treaty Mean for Tuvalu? Retrieved from relevant web information.