1 Introduction
“Diplomacy is the management of international relations by negotiation; the method by which these relations are adjusted and managed by ambassadors and envoys; the business or art of the diplomatist.”1 Diplomacy, an instrument of foreign policy, can be considered an art2 that allows the conduct of state relationships for gain without conflict. It has ancient roots with existence as early as 2500 BCE.3 The Egyptians and the Greeks maintained a relationship with other states through trade and political association.4 While Thucydides wrote about the tactful treatment of ambassadors, Ottoman Empire is known to have not sent diplomatic missions until the 19th century.5 The expansion and independence of countries brought forth the need for a balance of power among the sovereigns.6 To maintain this balance, a fundamental approach to maintaining relationships was sought, giving rise to the concept of “classical diplomacy,” which was seen as mere state policy.7 Scholars on diplomacy express a shift to ‘new diplomacy’8 with transparency and parliamentary participation following the First World War. The shift in diplomacy or way of understanding it can be looked at by how a state applies the diplomatic method. Gradual use of soft powers such as organizations and individuals to influence the government and the people of other states is seen as a method that applies to “public diplomacy.”9
Nepal’s diplomatic ties with the international community can be traced back to when different dynasties ruled before Nepal was mapped out into what it is today. One of the significant moments in history was when the 7th Century King Anshuvarma got his daughter Bhrikuti married to the famous Tibetian King Tsong Tsen Gampo.10 This marital relationship established a good relationship with Tibet, considered a “clever stroke” of diplomacy that maintained Nepal’s balance with its neighboring countries.11 Since then, Nepal’s interaction with the international community has developed. Its scope has broadened beyond establishing a smooth international relationship through marital relationships. Nepal’s interface with diplomacy can be discerned through its approach of relying on soft power, as well as legal instruments.
Despite the evolution of diplomacy and its method, diplomacy is a state-centric regime that relies on legal instruments to suppose the relationship between states. Nepal has a history of interacting with the states of the international community by establishing bilateral relationships. According to government records,12 one of Nepal’s first formal relations was with the United Kingdom (UK) in 1816 with the Treaty of Sugauli. Nepal’s willingness to be part of the international community and maintain the relation can be visibly seen to have widened following the end of the Second World War, with Nepal being part of the United Nations (UN) in 1955.13 Accession to the Vienna Convention on Diplomatic Relations, 1961 (VCDR) solidified Nepal’s stance on diplomacy as a legal tool requisite to maintain international peace and friendly relation14 with other nations.
2 Diplomatic Privilege and Immunity
“Privilege” can be defined as a “right or immunity granted as a special benefit, advantage, or favor, special enjoyment or an exemption from an evil or burden.”15 Diplomats are assigned tasks that need an atmosphere free of pressure and interruption for their completion. The concept of privileges and immunities is an ancient one,16 as can be seen indicated in the opening paragraph of the Vienna Convention on Diplomatic Relations of 1961 that is, “Recalling that peoples of all nations from ancient times have recognized the status of diplomatic agents …”17
The Vienna Convention is declaratory of existing rules and practices with respect to diplomatic immunities and privileges, which the States reciprocally accord without discrimination. Diplomats are an extension of the sovereign state whose functions represent the states.18 Thus, special privileges for diplomatic personnel grew partly due to sovereign immunity, independence, and equality of states and partly as an essential requirement of the international system. The prime motive behind extending immunities and privileges by States to their diplomatic representatives is to ensure independence in the performance of their official functions.19
Diplomatic privilege and immunity so far are not just treaty law when applicable but also have attained the status of customary international law.20 The Vienna Convention on Diplomatic Relations provides protection against criminal, civil, and administrative jurisdiction21 and exemption from paying taxes22 in the receiving nation to the diplomats. The privileges and immunities are extended to the family of the diplomatic agent if they are part of the diplomat’s household and bear no nationality of the receiving state.23 The Convention provides no exception to the immunity regarding criminal jurisdiction but three exceptions from civil and administrative jurisdiction.24
The Vienna Convention specifies that it is the duty of all persons enjoying such privileges and immunities to respect the laws and regulations of the receiving state without prejudice to their privileges and immunities.25 Most importantly, the scope of the immunities and privileges under the Convention is limited to the receiving state, and any action of the diplomatic agent does not preclude them from the jurisdiction of the sending state.26 Although the diplomats are immune to specific jurisdiction, the receiving state can declare a diplomat persona non grata and notify the sending state without explaining its decision.27 This suggests that immunity and privileges do not provide diplomats with impunity.
International law and its subjects are constantly scrutinized. The law concerning diplomatic privileges and immunities pursuant to the Vienna Convention on Diplomatic Relations, 1961 has received criticism28 for the potential abuse of immunity dating back to the 1980s.29 The question of impunity over immunity was heightened especially following the disappearance of the Washington Post journalist and a critique of Saudi Arabia, Jamal Khashoggi, visiting the Saudi Arabian consulate in Istanbul.30
Although the criticism concerning abuses of diplomatic immunity remains, it is essential to note that diplomatic law constitutes a self-contained regime also acknowledged by the International Court of Justice. In its decision in the United States of America v. Iran, it laid out:
The rules of diplomatic law … constitute a self-contained regime which, on the one hand, lays down the receiving State’s obligations regarding the facilities, privileges, and immunities to be accorded to diplomatic missions and, on the other hand, foresees their possible abuse by members of the mission and specifies the means at the disposal of the receiving State to counter any such abuse. These means are, by their nature, entirely efficacious.31
For a convention that forms a part of the self-contained regime with nearly universal recognition, it is rather interesting to see the call for reforms in how the diplomatic immunities are rolled out. The pertinent question about diplomatic immunity is if its rationality would dilute with events where the diplomats are not held accountable for the damage caused by them to the people of the receiving state.
This article recounts Nepal’s legal framework and its practice to derive Nepal’s approach concerning diplomatic privilege and immunities.
3 Diplomatic Privileges and Immunities: Mapping Nepal’s Law
The following are the legal instruments that help map out Nepal’s law concerning diplomatic privileges and immunities:
3.1 Vienna Convention on Diplomatic Relations, 1961
Nepal is a party to the Vienna Convention on Diplomatic Relations, 1961, with its accession to the Convention in 1965. Nepal should conform its practices to the Convention.
3.2 Constitution of Nepal
Nepal remains committed to upholding its obligations under international law. The Constitution of Nepal states that it is under Nepal’s State Policy to “conduct an independent foreign policy based on the Charter of the United Nations, non-alignment, principles of Panchasheel, international law and the norms of world peace, taking into consideration of the overall interest of the nation.”32 It further mentions the reviews of treaties and entering and making new treaties as a part of state policy.33 State policy provides the basis for the Constitution to refer to international law as a source while conducting its foreign policy.34
In this sense, the Constitution of Nepal provides ample space for Nepal to undertake its obligation under the Vienna Convention on Diplomatic Relations.
3.3 Diplomatic Privilege and Immunities of the Foreign States and Representatives Act, 1970
Section 10 of the Act provides immunity to the diplomatic agent from all criminal, civil and administrative jurisdictions. Similar to the Vienna Convention on Diplomatic Relations, the Act provides the following three exceptions to criminal civil and administrative jurisdictions:
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A real action relating to private immovable property situated in the territory of the Foreign State for the purpose of the Mission.
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An action relating to succession in which the diplomatic agent is involved as a private person and not on behalf of the Foreign State.
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An action relating to any professional or commercial activity exercised by the Diplomatic Agent outside his/her official functions.
The Act’s preamble caters to providing diplomatic privileges and immunities to the foreign state and their officials per international Law and practice. Besides the three exceptions and mentioning the scope of privileges and immunities based on reciprocity, Nepal’s Act does not limit the scope of the immunity it provides. It is essential to mark that the provision of persona non grata mentioned in the Vienna Convention is notably absent in the Act. However, the provision of persona non grata in the Vienna Convention has attained the status of customary international law.
3.4 Diplomatic Code of Conduct, 2011
The 2011 Diplomatic Code of Conduct provides a systematic and dignified manner of conducting official meetings, contacts, negotiations, and communications of the Government of Nepal with foreign governments that is consistent with diplomatic norms and international practices.35 Rule 9.3 of the Code of Conduct states that Heads of Nepalese Diplomatic Missions and other officials of the Mission should not abuse their diplomatic privileges and immunities. Rule 9.4 states that The Heads of Nepalese Diplomatic Missions or their spouses or diplomatic officials should not hold any position of benefit or engage in business activities.
The Code of Conduct directs the diplomats as a sending state not to abuse the privileges vis-à-vis reciprocity to the receiving state. It, however, does not mention the consequences of violating the rules concerning diplomatic privileges and immunities.
3.5 Protocol and Consular Handbook, 2018
Protocol and Consular Handbook, 2011 is a handbook promulgated by the Ministry of Foreign Affairs. The handbook provides practical advice for foreign missions to perform their functions in Nepalese territory.36 The handbook regarding privileges and immunities states that only the diplomatic agent and their family enjoy protection according to the international provision. In terms of limitation, it only provides limitations on Tax/Duty Exemption Privileges.37
4 Affairs to Account
This section of the article accounts for significant affairs during which Nepal has been embroiled in matters concerning diplomatic immunities and privileges or its exception.
4.1 Dismissal for Shoplifting Books
In 1988, Nepal’s Ambassador to the United States was detained by the police for suspected shoplifting of books.38 The ambassador was not prosecuted in the United States because of diplomatic immunity. While the Nepalese ambassador was recalled,39 it is unknown if he was charged under Nepalese law.
4.2 Saudi Diplomat, Indian Territory, and Nepali Victims
In 2015, a Saudi Arabian diplomat was recalled from India, where he was accused of raping two Nepali women.40 India’s Ministry of External Affairs statement stated that the diplomat was protected from prosecution because of diplomatic immunity.41 Although the Saudi Arabian side recalled the diplomat, they maintain that the allegation against him was false.42
This case not only triggered the public of India and Nepal, countries sensitive to sexual misconduct and trafficking but also brought forth questions concerning the regime of diplomatic immunity. The incident does pose a question on the extent of diplomatic privileges and immunities.
4.3 Diplomats, Foreign Intervention, and a Case for Persona Non Grata
In 2001, a Pakistani ambassador was declared persona non grata and ordered to return to Pakistan by the Nepal government.43 The diplomat was found with 16.2 kg of RDX from his residence. Although the Diplomatic Privilege and Immunities of the Foreign States and Representatives Act, 1970 does not provide provisions concerning persona non grata, Article 9 of the Vienna Convention on Diplomatic Relations, 1961, to which Nepal is a party, does.
In 2016, complaints were lodged against an Indian ambassador requesting the government declare him persona non grata considering his ill-intended involvement in the internal affairs of Nepal.44 As a result, there was a lot of media traction, with outlets reporting the Nepalese government preparing45 to declare the ambassador persona non grata, which the Foreign Minister rebuffed, citing as baseless rumors.46
Providing specified measures to counter problems within a particular regime allows a regime of law to be self-contained.47 Persona non grata was foreseen as a mechanism envisioned by the law of diplomatic immunity to govern the possible misuse of the law. Thus, Article 9 of the Convention, with the placement of persona non grata, formed the law of diplomatic immunity as a part of a self-contained regime.48
4.4 Human Trafficking and Resignation
In 2019, the Nepalese Ambassador to Australia resigned following allegations against her alleged involvement in human trafficking. The ambassador’s driver made allegations against her taking money from people to provide safe passage to Australia.49
This case probed the attention of the opposition party at the time, which demanded the government take steps to remove her if she was found guilty of the charges.50 The Ministry of Foreign Affairs formed a three-member panel to investigate claims made against her. While the panel recommended relieving her from duties, she resigned,51 saying she did not feel morally equipped to continue with her service, which was fueled by a false allegation. Media reports that the three-member panel submitted a report to the government suggesting discontinuing the Ambassador’s career after she failed to provide convincing evidence against the charges by her own driver.52 However, during the research for the article, the author could not find an official document indicating the submission of a report that indicated such a suggestion.
5 Analysis
Apart from the legal and policy framework, Nepal’s history suggests its keenness to maintain decent foreign relations. An essential part of maintaining diplomatic relationships is striking a balance between maintaining diplomatic relations with diplomatic immunity. Nepal’s accession to the Vienna Convention on Diplomatic Relations, 1961 automatically suggests its disposition to oblige the legal obligation the Convention supposes. Nevertheless, analysis of the legal framework with the country’s accounts of involvement with matters relating to diplomatic immunity can help derive the Nepalese way or attitude towards diplomatic immunities and privileges.
5.1 Derivation from Mapping out Nepal’s Law
5.1.1 Conformity to the International Legal Framework
Nepal’s accession to the Vienna Convention and its constitutional framework provides the necessary provisions to reconcile international obligations with the domestic framework. Diplomatic Privilege and Immunities of the Foreign States and Representatives Act, 1970, Diplomatic Code of Conduct, 2011, and Protocol and Consular Handbook, 2018 make up Nepal’s domestic framework concerning diplomatic immunity. The adherence to international obligation while framing the rules and conducts domestically suggests Nepal’s conformity to the existing laws concerning diplomatic privileges and immunities.
5.2 Derivation from the Dismissal of Diplomats
5.2.1 Balancing Friends or Legal Conformity?
The 2015 diplomatic crisis between Saudi Arabia, India, and Nepal following the withdrawal of a Saudi diplomat for charges of rape of Nepali women in India led to the question of the extent to which diplomatic immunity is applicable.
Offenses related to sexual violence are primarily condemned in both India and Nepal. However, India did not declare anyone persona non grata for a criminal charge which otherwise would have been prosecuted in its jurisdiction. Instead, it released a statement highlighting the invokable immunity against its criminal jurisdiction.
This case brings a question to the applicability of diplomatic immunity-are immunities also applicable to the diplomats when the abuse results in criminal acts towards the nationals of a third state? Article 46 of the Vienna Convention provides the temporary protection of the interest of the third state and its nationals by the sending state in the receiving state when the third state is not represented in the receiving state.
Here, Nepal (third state) has a bilateral relationship with both India (receiving state) and Saudi Arabia (sending state). However, the immunity was applied to a criminal act committed against nationals of a third state which the Vienna Convention provides to no avail. Although the Nepali victims are said to have been rescued from the tip provided by the Nepalese embassy, the silence of Nepali officials and the Foreign Ministry of Nepal during the time regarding the matter speaks otherwise.
The derivation of silence during this incident from the Nepalese side is that if diplomatic immunity supersedes the abuse of the sending state by virtue of the diplomats’ action toward its nationals as a third state, it will continue confirming the legal norm.
Diplomatic immunity is vital in maintaining international relations and a state’s sovereignty, but at what cost? Making sovereign friends does come with benefits but should it come at the expense of making foes with the public, the innocent? Nepal’s silence about its nationals’ abuse at the hands of a diplomat in a different country, even when it has a bilateral relationship with both, suggests hesitancy in approaching the reform to the extent of applicability of the diplomatic immunity.
5.2.2 No Accountability of the Sending State?
It is understood that where a diplomat has been detected in some personal misconduct, the diplomat is withdrawn without the receiving State making any formal notification withdrawing his recognition as a mission member. Vienna Convention states that even if the diplomat is exempted from receiving state, the scope of the Convention is not extended to the sending state’s jurisdiction.
Saudi Arabia did claim that the charges against its diplomat were false, but seeing as the immunity does not apply in the sending state, could the diplomat have been investigated in that state?
The same applies to the Nepalese ambassador’s shoplifting case in 1988. Reports suggesting any follow-up investigation in Nepal could not be found during the drafting of this article. Interestingly, in the case of the Nepalese Ambassador to Australia, the opposition party probed the then government to take action against the diplomat had the charges been proven. The domestic legal framework in Nepal does not have any provision through which it can charge a diplomat for abusing their immunity. In this instance, it is essential that we, again, draw our attention to Vienna Convention expressly mentioning the limitation of immunity’s scope – applicable only within the receiving state.
On another note, the Convention neither provides a mechanism to follow up nor provides ways in which the sending state can investigate the charges pressed on the diplomats it withdrew, nor does it hold the sending states accountable for the suffering caused by the abuse of power of the diplomats they dismissed without seeing through any consequences.
States such as Nepal that confirm the diplomatic rules not being vocal over the lack of accountability of the sending state could be the preventive approach taken to withhold its accountability should it someday be in the shoes of sending state. This analogy can be applied to look over the silence of Nepal over Saudi Arabic diplomats to its citizen and the fact that Nepal has not volunteered to see through the limitation of diplomatic immunity in its jurisdiction as a sending state.
5.3 Derivation through the Application of Persona Non Grata
Given persona non grata’s status as customary international law, its exclusion from the text of domestic legislation does not hinder Nepal’s conformity with the diplomatic laws being a part of a self-contained regime. Additionally, Nepal’s practice shows that it has, when deemed suitable, declared diplomats persona non grata. This suffices Nepal’s conformity to Article 9 of the Vienna Convention under treaty law as well as the status of customary international law.
6 Conclusion
Nepal’s legal and policy framework keeps high regard on international relations and law. This vantage point is derived from the international legal framework Nepal has signed and the integration of international treaties in its state policy. Mutual respect for territorial integrity and sovereignty, non-interference in each other’s internal affairs, respect for mutual equality, and cooperation for mutual benefit53 is the basis for the applicability of the Vienna Convention.
Analysis of Nepal’s legal framework and the trend of its involvement in issues relating to diplomatic immunities suggest that it has a conformist approach toward the rules relating to diplomatic immunity. Looking through the involvement of Nepalese elements in the issues concerning diplomatic privileges and immunities, we can derive the two significant gaps that Vienna Convention has: the abuse of diplomatic immunity to the national third party in receiving state; and absence of accountability of the sending state towards the abuse of immunity.
Will Nepal look at these gaps? Will Nepal shift from the conformist approach towards the diplomatic immunities that it enjoys? Looking at Nepal’s approach towards diplomatic privileges and immunities through its legal framework and state practice, the answer to these questions tends towards a “no.” Despite that, it is imperative that time, and again, we are reminded of the Nepalese approach toward diplomatic privileges and immunity. Nepal should, even if it does not call for reform or confirm the validity of reform of the Vienna Convention, look at the gaps in the given two accounts to strike a balance between diplomatic immunity and preventing spillover of the bad taste of diplomacy because of abuse amidst its nationals.
Research Assistant, Kathmandu School of Law.
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Roncati, supra note 2, ¶ 9.
Id. ¶10.
Id.
Id. ¶17.
Id. ¶21.
Id. ¶29.
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Id.
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Privilege, Webster New International Dictionary, https://www.merriam-webster.com/dictionary/privilege (last visited 05. 09. 2023).
Holger P Hestermeyer, Vienna Convention on Diplomatic Relations (1961), Max Planck Encyclopedias of International Law (2009) ¶ 2, https://opil.ouplaw.com/display/10.1093/law:epil/9780199231690/law-9780199231690-e1004?rskey=Kf2Irc&result=1&prd=OPIL.
VCDR, supra note 14, at 2.
Hestermeyer, supra note 16, ¶ 43. see also Nicholson supra note 1.
Kalicharan M.L., Diplomatic Immunities and Privileges Critical Study With Special Reference to Contemporary International Law 57 (Mar. 31, 2015) (Ph.D dissertation, University of Mysore) (Shaodganga@INFLIBNET Centre).
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VCDR, supra note 14, art. 31.
Id. art. 23.
Id. art. 37 (1).
Id. art. 31 (1) (a) (b) (c).
Id. art. 41.
Id. art. 31 (4).
Id. art. 9.
See S.R. Subramanian, Abuse of Diplomatic Privileges and the Balance between Immunities and the Duty to Respect the Local Laws and Regulations under the Vienna Conventions: The Recent Indian Experience, 3 The Chinese Journal. of Global Governance 182, 232 (2017), https://doi.org/10.1163/23525207-12340027; see also Erin Handley, Jamal Khashoggi: Does Diplomatic Immunity Make It Possible to Get Away With Murder?, ABC News (Oct. 10, 2018)https://www.abc.net.au/news/2018-10-10/diplomatic-immunity-clouds-jamal-khashoggi-case/10356566.
Vannesha Mae, Challenging the Vienna Convention on Diplomatic Relations: Possibilities of New Obligations to Protect Domestic Workers (2019), (Masters dissertation, University of Amsterdam) (Scripties).
Handley, supra note 28.
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Constitution of Nepal, Sept. 20, 2015, art. 51 (m)(1).
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Id. art. 51(a); see also supra note 12, Nepal’s Foreign Policy.
Diplomatic Code of Conduct Preamble (2011) (Nepal).
Ministry Of Foreign Affairs Protocol Division, Protocol and Consular Handbook 1 (2018), https://mofa.gov.np/wp-content/uploads/2018/12/Pro-and-Con-Handbook-Update-on-Dec-2018.pdf.
Id. at 21.
Ambassador Accused of Shoplifting Recalled Home, UPI (Jan. 4, 1988), https://www.upi.com/Archives/1988/01/04/Ambassador-accused-of-shoplifting-recalled-home/2316568270800/.
Kim Patch, Ambassador Accused of Shoplifting Recalled Home, UPI (Jan. 5, 1988), https://www.upi.com/Archives/1988/01/05/Ambassador-accused-of-shoplifting-recalled-home/9278568357200/.
Jason Bruke, Saudi Diplomat Accused of Raping Two Maids Uses Immunity to Leave India, The Guardian (Sept. 17, 2015), https://www.theguardian.com/world/2015/sep/17/saudi-diplomat-accused-of-raping-two-maids-uses-immunity-to-leave-india.
Nida Najar, Saudi Diplomat Accused of Rape Has Left India, Government Says, New York Times (Sept. 17, 2015), https://www.nytimes.com/2015/09/18/world/asia/saudi-diplomat-accused-of-rape-has-left-india-government-says.html.
Saudi Diplomat Accused of Rape Withdrawn from India, Reuters (Sept. 17, 2015), https://www.reuters.com/article/uk-india-saudi-rape/saudi-diplomat-accused-of-rape-withdrawn-from-india-idUKKCN0RH0IJ20150917.
Pak Diplomat Labeled Persona Non Grata, Zee News (Apr. 14, 2001), https://zeenews.india.com/news/south-asia/pak-diplomat-labelled-ipersona-non-grata/i_11589.html.
Persona Non Grata Complaint Registered Against Indian Envoy Rae, My Republica (Dec. 4, 2016), https://myrepublica.nagariknetwork.com/news/persona-non-grata-complaint-registered-against-indian-envoy-rae/.
Indian Envoy Ranjit Rae May Be Declared Persona Non Grata by Nepal, India Today (May 8, 2016), https://www.indiatoday.in/watch-right-now/video/indian-envoy-ranjit-rae-may-be-declared-persona-non-grata-by-nepal-443276-2016-05-08?jwsource=cl.
Nepal Rejects Reports on Government Mulling Indian Envoy’s Expulsion, The Economic Times (May 9, 2016), https://economictimes.indiatimes.com/news/politics-and-nation/nepal-rejects-reports-on-government-mulling-indian-envoys-expulsion/articleshow/52185399.cms?from=mdr.
Eileen Denza, Diplomatic Law: Commentary On The Vienna Convention On Diplomatic Relations 61 (4th ed. 2016), https://opil.ouplaw.com/display/10.1093/law/9780198703969.001.0001/law-9780198703969.
Id.
Tapendra Karki, Amid Controversy, Lucky Sherpa Resigns as Ambassador to Australia, My Republica (Feb. 1, 2019), https://myrepublica.nagariknetwork.com/news/amid-controversy-lucky-sherpa-resigns-as-ambassador-to-australia/.
Sanjaya Lama, NC Demands Probe Against Ambassador Lucky Sherpa, The Kathmandu Post (Dec. 5, 2018), https://kathmandupost.com/national/2018/12/05/nc-demands-probe-against-ambassador-lucky-sherpa.
Sanjaya Lama, Nepali Envoy to Australia Lucky Sherpa Resigns, The Kathmandu Post (Feb. 1, 2019), https://kathmandupost.com/national/2019/02/01/nepali-envoy-to-australia-lucky-sherpa-resigns-20190201162707.
Id.
Nepal’s Foreign Policy, Government of Nepal Ministry of Foreign Affairs, https://mofa.gov.np/foreign-policy/.