History of Interactions between State and International Law and International Community

History and Theoretical Approach of Nepal in International Law

Nepal has always maintained its interaction between state and international law and the international community with high regard. The poignant exchange traced back to the marital relationship between Bhrikuti, married to the famous Tibetian King Tsong Tsen, has evolved over the years into bilateral and multilateral relationships with legal instruments such as the United Charter as the fulcrum.

On an organizational front, Nepal’s interaction with the international community can be traced back to 1769 to an office called Jaisi Kotha. It was established to look after foreign affairs specific to Tibet and China. The office’s name was changed to Munshi Khana. Despite undergoing reorganization, after 1934, the Munshi Khana was referred to as the Foreign Department in English correspondence and was subsequently upgraded to the level of Department. There was a decisive shift in the correspondence with the international community from the development and growth of the foreign ministry following the 1950 political revolution in Nepal. Since then, the Ministry of Foreign Affairs has gone under multiple reorganizations, administrative, institutional, and policy level reforms and suffices to render functions related to foreign affairs to date. (MOFA, History, 2021)

Nepal’s interactions and conduct of foreign relations have always been determined under the fundamentals of foreign policy under the Constitution of Nepal. On the bilateral level, looking at its geopolitical placement, Nepal has always been committed to maintaining friendly relations with its neighbors. For example, it first established bilateral ties with the United Kingdom in 1816 and, over the years, has successfully established bilateral relationships with 172 countries. In 2021, it expanded its interaction with four member states of the international community. (MOFA, Foreign Policy, 2021)

Nepal’s Approach to ‘Law’ and ‘International Law’

While Nepal remains committed to upholding its obligations under international law, its conduct is guided by national independence, sovereignty, territorial integrity, freedom, and national unity principles. Article 5 and Article 50(4) of the Constitution of Nepal set out the national interest as a pivotal step even before confirming international law. The constitution shapes Nepal’s approach to ‘international law’ discernible through Nepal’s State Policy to “conduct an independent foreign policy based on the UN Charter, non-alignment, principles of Panchasheel, international law and the norms promoting peace, taking into consideration of the overall interest of the nation.” (Constitution, Art. 51) Its approach to international law is perceptible with its basis on cognizance of the evolving global situation and its foreign relations motto – ‘Amity with all, enmity with none.’ (MOFA, Report (2020–2021), p. 138)

Sources of International Law

Article 51 of the Constitution of Nepal refers to international law and norms to shape the state’s policy and mentions the reviews of treaties and entering and making new treaties. This puts treaties as a primary source of international law in Nepal’s case, which it has also acknowledged in its yearly reports. (MOFA, Report (2020–2021)) Additionally, as a party to UN Charter and the ICJ statute, subsequently, the sources of international law are applied similarly to that in the ICJ statute.

Recognition of and by Nepal

Statehood & Sovereignty

Nepal has always had the same position and affirms recognizing one China policy. (MOFA, Report (2020–2021), pp. 4–5)

Authority and Sovereignty over Territory

Territory & Jurisdiction

Article 2 of the Constitution of Nepal vests the authority and sovereignty over the territory of Nepal to the people of Nepal.

Territorial Disputes

Nepal and India continued to maintain their claims over the territories of Kalapani, Limpiyadhura, and LipuLekh. While Nepal looked forward to collecting the necessary information about the people residing in the ‘disputed’ territory for the 12th National Population and Household Census (Republica, 2021), India published its new map, including the territories of Kalapani, Limpiyadhura, and LipuLekh within the boundaries of India. (NepalLiveToday, 2021)

Theories of International & Domestic Law

Relationship between International & Domestic Law

Nepal’s stance on the theory of international and domestic law delves between the Monist and Dualist theories and is rather unclear. The Constitution of Nepal specifies the Constitution to be the supreme law of the land and any other laws inconsistent with it are to be void. Article 279 provides for a dualist lens of approaching law providing constitutional supremacy by enlisting the specifics to ratify, accession, accept and approve treaties. However, Section 9 of the Treaty Act 1990 stipulates that once ratified by Nepal; a treaty is treated as equal to the national law, and in any inconsistency, a treaty provision would prevail over national law. This gives a formative structure to examine Nepal’s relationship with the law through a monist approach.

Implementation of Treaties

Nepal did not take new obligations in terms of implementing treaties. Following its participation in the third review cycle under UPR in January 2021, it is looking forward to considering suggestions concerning the treaty obligation it is already a part of.

Establishment of Diplomatic and Consular Relations

Diplomatic & Consular Relations

Nepal established bilateral diplomatic relationships with the Commonwealth of Dominica, The Gambia, Sierra Leone, and Barbados in 2021, counting its diplomatic ties to 172. Nepal has a list of 28 residential embassies, of which three are for SAARC, the European Union, and the United Nations. (MOFA, 2021)

Admission, Membership, and Participation in International Organization

International & Regional Organizations

Admission, Membership, and Participation in Regional Organization

Non-Governmental Organization and International Law

Individuals & Non-State Actors

Non-Governmental Organizations have always played an essential role in vigilantly monitoring Nepal’s requirements to fulfill its obligations under international law. In 2021, multiple NGOs submitted individual and joint submissions under the Stakeholder Submission to the Office of the United Nations High Commissioner for Human Rights for the third cycle of Universal Periodic Review (UPR). (CEDAW/C/NPL/FCO/6, 2021) The list of the NGOs who submitted the reports is enlisted at the end of the summary report.

Bilateral/Multilateral Aid and Disaster Relief; Technical & Development Assistance

International Relations & Cooperation

Specific Bilateral Relations Issues

Regional Cooperation Initiatives

Diplomatic Solution of Disputes

Settlement of Disputes

One of Nepal’s prominent issues in the international community remains with India, which concerns the territory of Kalapani, Limpiyadhura, and LipuLekh. Nepal and India have both recourses to diplomatic measures to address the dispute. The sixth meeting of the Nepal-India Joint Commission held in January 2021 discussed reviewing the Peace and Friendship Treaty of 1950. (MOFA, Report (2020–2021), p. 11)

International and Regional Trade Treaties and Bodies

International Economic Law

Nepal became the 147th member of the World Trade Organization (WTO) in 2004. In the same year, Nepal became a member of the Bay of Bengal Initiative for Multi-Sectoral Technical and Economic Cooperation (BIMSTEC). It additionally ratified the South Asian Association for Regional Cooperation (SAARC) Agreement on a South Asian Free Trade Area (SAFTA). Under SAFTA, the eight SAARC nations have pledged to cut tariff rates on a product-by-product basis.

International Financial Institutions

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Donor agencies in Nepal for the year 2021

Source: Aid Management Information System for Nepal, Database

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International Development Association (IDA), part of the World Bank (WB) and Asian Development Bank (ADB), continues to remain the major international financial institution contributing as a donor agency in Nepal.

Rights of Landlocked & Geographically Disadvantaged States

Law of the Sea

Nepal is a landlocked country with China and India as its neighboring countries. As a landlocked country and as a party to the World Trade Organization (WTO), Nepal has a right to transit through the neighboring countries. Nepal has, in previous years, signed multiple transit treaties with India and China.

In 2021, Nepal and Bangladesh signed ‘Exchange of Letters’ on the designation of the Rohanpur-Singhabad railway route as an additional transit route for the movement of traffic-in-transit between Nepal and Bangladesh and for third-country transit trade. (MOFA, Report (2020–2021), p. 75)

Bringing attention to the importance of the Indian Ocean in the external trade for landlocked countries like Nepal (Bharat Paudyal, 2021), Nepal addressed the 5th Indian Ocean Conference held under the theme of “Indian Ocean: Ecology, Economy, Epidemic” in Abu Dhabi, the United Arab Emirates, on 5 December 2021. It highlighted the need for an enlightened approach to economic cooperation in the region to enhance intra-regional trade and investments. (MOFA Bulletin, vol. 6, no. 3, 2021)

Accession and Reservations to International Human Rights Treaties

Human Rights

Nepal did not enter into new international human rights treaties in 2021.

Implementation of Human Rights Treaties

Under its state policy, the Constitution of Nepal allows a review of treaties concluded in the past and allows the conclusion of treaties and agreements based on equality and mutual interest. Section 9 of the Treaty Act 1990 states that even if the treaty to which Nepal is a party is inconsistent with the domestic laws, the treaty provisions shall be enforceable as that of Nepalese laws. This is in contradiction to the Constitutional provision, which requires the Nepalese law to be applicable in cases where the treaty provisions are inconsistent with the domestic law. No specific legal instrument guides the implementation of human rights treaties, and one must rely on the requirement under the Constitution and the Treaty Act.

Despite the ambiguity in the law, the National Human Rights Commission (NHRC) is an independent constitutional body whose function heavily relies on monitoring and checking the implementation of human rights situations according to the state obligation. (Constitution; Art 249) Confirming the Paris Principles and accredited as category ‘A,’ the NHRC of Nepal monitors the human rights situation and enjoys independence in fulfilling its mandate. The NHRC plays an essential role in carrying out periodic reviews of the relevant laws relating to human rights and making recommendations to the Government of Nepal for necessary improvements and amendments to such laws.

Other than domestic mechanisms, the international human rights treaties’ implementation is also overlooked by Nepal’s participation in the periodic review. It is common knowledge that ratifying a treaty means states parties willingly submitting their domestic legal system, administrative procedures, and other national practices to periodic review by committees of independent experts. (UN Nepal) Nepal submits its report to the Treaty Bodies, which allows the state to be transparent about treaty implementation and subjects itself to international scrutiny over its mechanism. In 2021, Nepal submitted a State Party report as Follow-up to the Concluding Observations of the Committee on the Elimination of Discrimination against Women adopted on 14 November 2018. (CEDAW/C/NPL/FCO/6, 2021)

Protection under International and Domestic Law

Nepal is a party to the seven core treaties, which are:

• a) Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment (CAT)

• b) International Convention on the Elimination of All Forms of Racial Discrimination (CERD)

• c) International Covenant on Civil and Political Rights (CCPR)

• d) International Covenant on Economic, Social, and Cultural Rights (CESCR)

• e) Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)

• f) Convention on the Rights of the Child (CRC)

• g) Convention on the Rights of Persons with Disabilities (CRPD)

Treaty obligations under these core nine treaties have implemented into domestic legislations, including the The Act Relating to Children, 2018, Compensation Relating to Torture Act, 1996, Safe Motherhood and Reproductive Health Rights Act, 2018 and fundamental rights under the Constitution of Nepal. This protection under international and domestic law has been guaranteed before 2021 by Nepal.

Nepal’s delegation participated in the 37th Session of the Human Rights Council Working Group on Universal Periodic Review in January. It was marked with a positive, with the Nepali delegation welcoming the Special Rapporteur on the right to food and Special Rapporteur on extreme poverty and human rights. The Foreign Minister, while addressing the President and the members of the Working Group, pointed out Nepal’s role in protecting and respecting human rights, the part of human rights mechanisms and Non-Governmental Organizations (NGOs), and affirmation of Nepal mainstreaming SDGs in the national development plans and policies to realize them by 2030. (MOFA, Report (2020–2021), pp. 145–154)

Specific Human Rights Incidents or Cases

Application of Hague & Geneva Conventions

International Humanitarian Law

Nepal has been a party to the Geneva Conventions since 1964 but has not acceded to the Additional Protocols. Nepal is currently working on a draft titled the Geneva Convention Acts bill, but it has yet to see the light of day.