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
The Office of the High Commissioner for Human Rights (OHCHR)
Nepal participated in the third cycle of the Universal Periodic Review of Nepal held during the 37th session of the Human Rights Council UPR Working Group. (MOFA, Report (2020–2021), p. 52)
World Health Organization (WHO)
Nepal participated in and attended the 74th session of the World Health Assembly. It addressed the need to ensure equitable distribution of vaccines to all and prioritize the most vulnerable first.
International Labor Organization (ILO)
Nepal attended the 109th session of the ILO in May 2021. Nepal also advocated for safe, secure, and dignified foreign employment. It called for the international community to ensure the safety, well-being, and access to health care for migrant workers amid the pandemic.
World Trade Organization (WTO)
Nepal participated in the Trade Negotiation Committee (TNC) meetings on 15 July and chaired the Enhanced Integrated Framework (EIF) Board meetings on 26 November 2020 and 17 June 2021. (MOFA, Report (2020–2021), 2021, p. 47) In its participation, Nepal lobbied for the benefits of the Least Developed Countries (LDCs) and Land-Locked Developing Countries (LLDCs).
Admission, Membership, and Participation in Regional Organization
South Asian Association for Regional Cooperation (SAARC)
Nepal participated in the 16th Informal Meeting of the SAARC Finance Ministers. It was a virtual meeting held on the sidelines of the 54th Annual Meeting of the Asian Development Bank (ADB). Nepal stressed the need for global solidarity, collective response, and cooperation to suppress the transmission of COVID-19 and measures to protect the lives and livelihoods because of COVID-19. (MOFA, Report (2020–2021), p. 40)
Bay of Bengal Initiative for Multi-Sectoral Technical and Economic Cooperation (BIMSTEC)
In March 2021, the Special Session of the BIMSTEC Senior Officials Meeting (S-SOM) was held to prepare for the Ministerial Meeting in April. Nepal participated in the 17th BIMSTEC Ministerial Meeting, which was organized virtually by the organization’s current chair, Sri Lanka. Nepal emphasized furthering and deepening regional cooperation. (MOFA, Report (2020–2021), p. 41)
Asia Cooperation Dialogue (ACD)
Asia Cooperation Dialogue, established in 2002, aims to promote interdependence among countries of Asia in all areas of cooperation. (MOFA, February 2018) Nepal participated in the 17th Ministerial Meeting of the ACD. The meeting was hosted virtually by Turkey, the current chair. The conference was themed ‘The New Normal and Safe and Healthy Tourism.’ (MOFA, Report (2020–2021), 2021, p. 43) Before the Ministerial Meeting, a virtual ACD Senior Officials’ Meeting (SOM) was conveyed, during which the members, including Nepal, deliberated on draft texts of the Ankara Declaration of the Ministerial Meeting, and Guiding Principles for the Functioning of the ACD Secretariat. (MOFA, Report (2020–2021), p. 43)
The critical takeaway of Nepal’s participation in the Working Group on ACD Blueprint is being able to bring forth an ACD Roadmap which consists of the following six pillars: (MOFA, Report (2020–2021), p. 44)
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(i) Connectivity,
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(ii) Science, Technology, and Innovation,
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(iii) Education and Human Resource Development,
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(iv) Interrelation of Food, Energy and Water Security,
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(v) Culture and Tourism, and
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(vi) Promoting Approaches to Inclusive and Sustainable Development.
Shanghai Cooperation Organization (SCO)
Established in 2001, Shanghai Cooperation Organization (SCO) aims to strengthen confidence and good neighborly relations and promote effective cooperation in politics, trade and economy, science and technology, energy, and counterterrorism. (MOFA, Nepal and SCO, February 2018) Convened under the Chairmanship of the Republic of Tajikistan, Nepal, participated in a virtual meeting of the National Coordinators of the SCO Member States. Nepal expressed interest in attaining the ‘Observer State’ status of SCO. (MOFA, Report (2020–2021), p. 44)
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
COVID-19 Related Cooperation
Nepal was part of several COVID-19-related cooperation due to its relationship with the international community. The Ministry of Foreign Affairs, in its bulletin, lists the following as significant COVID-19-related cooperation:
Nepal received medical supplies including Pulse Oximeter, Patient Monitor Medical Ventilator, and Portable Oxygen Concentrator, provided by by the Kuwait Red Crescent Society on 22 July 2021.
The government of Japan assisted Nepal with about 1.6 million doses of AstraZeneca COVID vaccines. Nepal also received 13,000 COVID-19 AstraZeneca vaccines from the Government of the United Kingdom (UK). The Governments of Lithuania and Hungary also supported Nepal with medical equipment and health materials in 2021. China has pledged to provide a total of 4.4 million Vero Cell and CoronaVac vaccines to Nepal under grant assistance. The United States provided Nepal with 1.53 million doses of J&J vaccines on 12 July 2021 as significant humanitarian support. (MOFA, Report (2020–2021), p. 37)
Nepal-India Joint Project Monitoring Committee (JPMC) Meeting on Post-Earthquake Reconstruction (MOFA Bulletin, Vol. 6, No. 2)
India assisted in the post-earthquake reconstruction following the 2015 earthquake in the housing, education, health, and cultural heritage sectors. The JPMC meeting saw satisfaction from Nepal and India on completing 50,000 houses in Nepal’s Gorkha and Nuwakot districts.
Millennium Challenge Corporation (MCC)
The Millennium Challenge Corporation (MCC) is a U.S. foreign assistance agency that provides time-limited grants promoting economic growth, reducing poverty, and strengthening institutions. (MCC, 2022) Nepal signed the MCC compact in 2017, and yet to be implemented. A delegation from the U.S. Government’s Millennium Challenge Corporation visited Nepal and exchanged views on the USD 500 million MCC-Nepal Compact and its potential for Nepal’s economic transformation.
Specific Bilateral Relations Issues
Afghanistan
Nepal and Afghanistan have engaged in bilateral relations since 1961. Following the crisis after the United States Armed Forces withdrew from Afghanistan, the Ministry of Foreign Affairs, Nepal, initiated the evacuation process of the Nepali citizens in Afghan territory. A total of 906 Nepali citizens were evacuated by September 2021. (MOFA Bulletin, vol. 6, no. 1)
Bangladesh
Nepal and Bangladesh agreed to initiate the power trading process by finalizing the trading modalities, transmission system, and regularity issues in the third meeting of the Joint Working Group (JWG) and the Joint Steering Committee (JSC) on Nepal-Bangladesh Cooperation in the Field of the Power Sector was held virtually on 13–14 September 2021. (MOFA Bulletin, vol. 6, no. 1) The meeting focused on utilizing Nepal’s hydropower potential for mutual benefit.
China
Apart from COVID-19 assistance, Nepal and China share bilateral relations on other fronts. China and Nepal have bilateral relations in the railway sector. In 2021, Nepal and China held the 7th meeting on enhancing cooperation in the railway sector.
India
Trade
India remains Nepal’s largest trade partner and source of tourists. It was also one of the most prominent investors in Nepal. Nepal’s export to India was NPR 106 billion, and its import was NPR 971 billion as of July 2021. (MOFA, Report (2020–2021))
Railway
India has assisted in completing 34.9 km out of 68.72 km of rail link under the Jaynagar – Bijalpur – Bardibas rail link project. The assistance in rail operation enhances trade and commercial activities and facilitates easy movement of people. India handed over the Jaynagar-Kurtha Rail Section to Nepal in October 2021. (MOFA Bulletin, vol. 6, no. 2)
Security Coordination Meeting
India and Nepal have an open border resulting in both sides facing the problem of illegal cross-border activities. India and Nepal held the 5th coordination meeting between Armed Police Force (APF), Nepal, and Sashastra Seema Bal (SSB) in October 2021. (MOFA Bulletin, vol. 6, no. 2) The meeting reviewed the progress made on the security scenario at the Nepal-India border. It deliberated on measures to enhance mutual coordination and continued cooperation for regulating illegal cross-border activities.
France
Nepal-France Agreement On The Functioning Of French Cultural Centre (MOFA Bulletin, vol. 6, no. 3)
Nepal and France signed the updated Agreement on establishing and functioning of the Alliance Française in Kathmandu on 27 December 2021. The Agreement aims to facilitate the smooth functioning of the French Cultural Centre in Kathmandu.
Qatar
In the 5th meeting of the Joint Committee on Nepal-Qatar Bilateral Labour Agreement, representatives from Nepal and Qatar agreed to review, upgrade or amend the existing labor agreement. They also discussed issues on exploring opportunities for a skilled Nepali workforce in Qatar, establishing technical training centers in Nepal, and reintegrating returnee Nepali migrant workers. (MOFA Bulletin, vol. 6, no. 3)
Regional Cooperation Initiatives
Non-Aligned Movement (NAM)
Nepal, a founding member of NAM, participated in the High-level Commemorative Meeting to mark the 60th anniversary of the movement. Nepal emphasized that NAM should reclaim its rightful place and initiate decisive actions for the poor, weak, and vulnerable countries. (MOFA Bulletin, vol. 6, no. 2)
South Asian Association for Regional Cooperation (SAARC)
Regional cooperation has remained a prominent feature of Nepal’s foreign policy. (MOFA, Report (2020–2021)) Nepal participated in the 15th and 16th Informal Meetings of SAARC Finance Ministers. Nepal hosted the virtual Informal Meeting of the SAARC Council. It emphasized the significant role of SAARC in bringing substantive improvement in the lives and livelihood of people in the region.
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
Donor agencies in Nepal for the year 2021
Source: Aid Management Information System for Nepal, DatabaseInternational 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.
Asian Development Bank (ADB)
In 2021, the Asian Development Bank’s (ADB) support to the Government of Nepal for the COVID-19 response measures included resources for containment and prevention, protection of vulnerable groups, and relief for small businesses. (Nepal and ADB, Asian Development Bank)
ADB committed a USD 165 million loan to procure about 15.9 million dosages of COVID-19 vaccines. The project supports Nepal’s National Deployment and Vaccination Plan. (ADB, 2021) The Government of Nepal and the Asian Development Bank signed a USD 5 million grant for the Prevention and Control of coronavirus disease (COVID-19) through WASH and Health initiatives in Secondary and Small Towns on July 2021. (IECCD, vol. 9, no. 2, 2021)
World Trade Organization (WTO)
Nepal has been a member of the World Trade Organization (WTO) since 2004. Nepal participated in the Trade Negotiation Committee (TNC) meetings held on 15 July and chaired the Enhanced Integrated Framework (EIF) Board meetings held on 26 November 2020 and 17 June 2021. Nepal actively lobbied for the benefits of the Least Developed Countries (LDCs) and Land Locked Developing Countries (LLDCs) in all engagements. The Government of Nepal and the World Bank signed USD 150 million (Rs. 17.78 billion) concessional loan agreement to support Nepal’s resilient recovery from the COVID-19 pandemic, protect the most vulnerable, and support sustainable growth on June 27, 2021. (IECCD, vol. 9, no. 2, 2021)
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:
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a) Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment (CAT)
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b) International Convention on the Elimination of All Forms of Racial Discrimination (CERD)
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c) International Covenant on Civil and Political Rights (CCPR)
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d) International Covenant on Economic, Social, and Cultural Rights (CESCR)
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e) Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)
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f) Convention on the Rights of the Child (CRC)
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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
Rights of the Women
In February 2021, the Department of Immigration, Nepal, proposed a policy requiring women below the age of 40 to require permission and recommendation from their families and local government before any international travel. (Mandal; Baral, 2021) The policy was received with immediate criticism citing the policy as being not just gender discriminatory but also violating the international human rights obligation Nepal has to fulfill. The Department suggested that it would help prevent trafficking, but the policy did not come into force. (Amnesty International, Nepal, 2021)
Concern over NHRC’s Independence
UN Human Rights expressed concern regarding the independence of Nepal’s National Human Rights Commission (NHRC) after the recent appointment of new members which they considered to be inconsistent with international standards. Currently, the NHRC enjoys the category ‘A’ status according to the Paris Principles. Still, the experts expressed that Nepal failed to implement the extensive guidelines of the Sub-Committee on Accreditation (SCA), based on which the NHRC was conferred its ‘A’ status. (OHCHR, Press Release, 2021)
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.