Kathmandu School of Law Review

P-ISSN : 2091-2110, E-ISSN : 2773-8159, DOI : 10.46985, Publisher : Kathmandu School of Law, Nepal
Annual flagship journal of Kathmandu School of Law, Nepal

Volume 6, Issue 2, November 2018
Articles

Paradigm Shifts in Internalization of International Law: A Case Study of Growing Human Rights Jurisprudence in Nepal

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  • Prof. Geeta Pathak
Prof. Geeta Pathak
Professor, Kathmandu School of Law
Bio

Published 2018-11-30

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How to Cite

Geeta Pathak, P. (2018). Paradigm Shifts in Internalization of International Law: A Case Study of Growing Human Rights Jurisprudence in Nepal. Kathmandu School of Law Review, 6(2), 12–40. Retrieved from https://kslreview.org/index.php/kslr/article/view/209

Abstract

The concept of internalization (domestication) of international law, underpinning the traditional theories of ‘monism and dualism,’ is being shifted along with the change in the contexts. Internalization can be mapped out through the process and result indicators of recognition of international legal norms through incorporation or transformation in the domestic laws, including the Constitution. The success of the internalization of international human rights law depends on the political will of the government and independent judiciary. The state practices, including decisions of the courts, discussed in this paper, further indicate the eventual changes in the process. Most importantly, the level of internalization can be measured by jurisprudential trends of application of international law in general and the international human rights instruments in particular. The second part of this paper minutely observes the 'bramble-bush effects' on the laws and jurisprudence developed along with democratization in Nepal since 1990. Nepal is an interesting case study due to its experiment of the theories of monism and dualism. Although the Treaty Act of Nepal explicitly recognizes the higher legal status of international agreements or treaties to which Nepal is a party, the Constitution of Nepal does not recognize the same. Nevertheless, the situation of ratification and accession of a large number of human rights treaties without reservation and growing thematic human rights jurisprudence reasonably justify the greater scope of internalization of international human rights laws in Nepal.

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References

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  40. Treaty of Rome (n 36).
  41. Ibid.
  42. See The Netherlands Constitution, 1983, art. 91(3).
  43. Cour de Cassation, ‘Belgium’, C.M.L.R. 330 at Trevor C. Hartley, The Foundations of the European Community Law, 1998, pp. 235-36.
  44. Ibid.
  45. Cour de Cassation, Pas. lux, vol. 16, p.150, 1954; Conseild' Etat, Pas.lux, vol. 26, p.174, 1984; See K. Lenaerts, ‘Constitutional Law of the European Union’ at K. Lenaerts, P Van Nuffel & R. Bray (eds.), 1999, p.507.
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  47. Flaminio Costa v. ENEL, 1964, Case 6/64. It was a landmark decision of the European Court of Justice which established the primacy of European Union law (then Community law) over the laws of its member states'. See Reference for a preliminary ruling: Giudiceconciliatore di Milano – Italy, Case 6-64, European Court of Justice, 15 July 1964; See Paolo Megnozzi, ‘European Community Law From the Treaty of Rome to the Treaty of Amsterdam’, at Patrick Del Luca (trans.) second edition, 1999, p.95.
  48. Part I of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (U.K.), 1982, c. 11 [Charter].
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  59. U.S. Constitution, art. VI, clause 2.
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  67. Australia Human Rights Commission, Fact Sheet 7: Australia and human rights Treaties, 2009 available at http://www.hreoc.gov.au/education/hr-_explained/download/FS7_Australia.pdf, accessed on 15 September 2018.
  68. See, Constitution of India, 1950, art. 253 which states that “Parliament has power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body.” 69 This Guidelines/SoP was adopted in August 2017 and revised in April 2018. The revised version is available at http//www.mea.gov.in/images/SOP-forwarding-letter-to-Ministries-with-revised-SOPs.pdf, accessed on 18 September 2018.
  69. See Part B of the SoP; Ibid.
  70. For example, in the case of Maghanbhai v. Union of India, AIR 783 SC, 1969 the Supreme Court held that legislative power belongs to the Parliament and anything to be enforced as law should go through the parliamentary process. The precedent has been reaffirmed by high courts of India. See the case of Shiva Kumar Sharma and Others v. Union of India, AIR 64 Del. High Court, 1968.
  71. See, Hungarian Constitution (amended 1949) art.7/1 which provides “the legal system of the Republic of Hungary accepts the universally recognized rules and regulations of international law and harmonizes the internal laws."
  72. Constitution of Poland, 1997, available at https://www.constituteproject.org/constitution/Poland_1997.pdf, accessed on 29 September 2018.
  73. See The Constitution of Russia (amended 1993), art.15, that states "the commonly recognized principles and norms of international law and international treaties of the Russian Federation shall be a component of its legal system.” 75 See The Constitution of Romania (amended 1991), art.20.
  74. See The Constitution of Estonia, (amended1992), art.3.
  75. The Constitution of Kenya, 2010, published by the National Council for Law Reporting with the Authority of Attorney General, available at https://www.wipo.int/edocs/lexdocs/laws/en/ke/ke019en.pdf, accessed on 23 September 2018.
  76. This Act incorporates portions of the 1949 Geneva Conventions into Kenyan law. “Section 3 provides for the punishment of persons who commit or are accessories to grave breaches. Reference is made to specific articles of the Geneva Conventions. Section 3 also provides a basis for universal jurisdiction by permitting prosecution of any person, irrespective of nationality or the place where the breach was committed.” National Implementation Database of ICRC, available at https://ihl-databases.icrc.org/applic/ihl/ihl-nat.nsf/0/E547A7559C2479FF412567930048C0FF, accessed on 20 September 2018.
  77. Constitution of Vietnam, 2013, art.12.
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  79. Professor Lauterpacht is a renowned figure who developed a modern approach "based on principles of legal normativism, legal completeness and absolute justice". His writings and contribution are remarkable. For example, ‘The Function of Law in the International Community (1933)’, and An International Bill of Human Rights (1945)’ and also contributed to the adoption of the 1950 European convention of human rights and also, to the Development of International Law by the International Court (1958). See https://www.theguardian.com/law/2010/nov/10/my-legal-hero-hersch-lauterpacht, accessed on 16 August 2018.
  80. See, Janet McLean, ‘Problems of Translation: The State in Domestic and International Public Law and Beyond’ in Hilary Charlesworth et al (eds), The Fluid State: International Law and National Legal Systems, Federation Press, 2005, pp. 210, 213; See also Janet McLean, ‘Divergent Legal Conceptions of the State: Implications for Global Administrative Law’ 2005, pp. 68(3– 4); Law and Contemporary Problems pp. 167, 173 in Edgar & Rayner, ‘Implementing Treaties in Domestic Law: Translation, Enforcement and Administrative Law’, vol. 19, no. 1, [2018] Melbourne Journal of International Law p. 2, 2018, p.3.
  81. Lukas HeckendornUrscheler, ‘Innovation in a hybrid system: the example of Nepal’, vol. 15, no. 3, Potchefstroom Electronic Law Journal, 2012 available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2164257, accessed on 26 September 2017.
  82. Treaty Act, Nepal, 2047 BS (1990).
  83. The Constitution of the Kingdom of Nepal 2047 BS (1990), art. 88(1).
  84. Interim Constitution of Nepal 2063 BS (2007), art. 107(1).
  85. The Constitution of Nepal, 2072 BS (2015), art. 133(1).
  86. Treaty Act, Nepal, 2047 BS (1990), art. 2(a).
  87. Article 1 (1) of the Constitution of Nepal, 2015 states, “Constitution is the fundamental law of Nepal, any law inconsistent with this Constitution shall, to the extent of such inconsistency, be void.” Article 1(2) further provides the “duty of every person to observe this Constitution.” 90 The Constitution of Nepal was promulgated by second Constituent Assembly on 20 September 2015 by replacing the Interim Constitution of Nepal 2007.
  88. See generally the Preamble of the Constitution of Nepal, 2072 BS (2015).
  89. See, Part III of the Constitution. Article 16 to 47 guarantee 31 fundamental rights; Article 48 provides the provision of duty of citizens; Ibid.
  90. See Ibid, art. 126 (1).
  91. See Ibid, Part IV of the Constitution.
  92. See Ibid, arts. 51(b) (2), 52 & 56(6).
  93. See the “List of Multilateral Treaties to which Nepal is a Party and a Signatory”, Published by Government of Nepal, Ministry of Law and Justice and Parliamentary Affairs, Revised on March 2018.
  94. Nepal has not ratified the VCLT; See, Ibid.
  95. Balkrishna Neupane v. Prime Minister Girija Prasad Koirala, NKP 2054 (1997), p.77.
  96. Ibid, cited at Surya Prasad Dhungel et.al, ‘Commentary on the Nepalese Constitution’ Kathmandu, DeLF, September 1998, p.675.
  97. Gyan Raj Rai v. Cabinet Secretariat and Others, WN. 2651, 2002.
  98. Ibid.
  99. Surya Subedi, ‘When a Treaty a Treaty in Law?’ An Analysis of the Views of the Supreme Court of Nepal on a Bilateral Agreement between Nepal and India’, vol. 5, Asian Yearbook of International Law, 1995, p. 201.
  100. Valerie C. Brannon, ‘Statutory Interpretation: Theories, Tools, and Trends’, Congressional Research Service, 2018, pp. 11-15.
  101. Dinesh Kumar Sharma v. Office of the Council of Ministers, NKP 2063 BS (2007, p.1136.
  102. Ibid, para 18.
  103. Advocate Jyoti Paudelet. al. v. Nepal Government, WN WO-0424, 2064 cited at Some Landmark Decision of Supreme Court of Nepal, vol. 2, 2010, p.561.
  104. Ibid.
  105. Dinesh Kumar Sharma v. Office of the Council of Ministers, NKP 2063 BS (2007), p.1136.
  106. Ibid.
  107. Meera Dhungana and Meera Parajuli v. HMG, Ministry of Law and Justice, NKP 2052 BS (1995), p.462.
  108. Clause 16 of the Chapter on the partition of property (Aungsabanda) of then Muluki Ain stated, "The daughter who has reached the age of 35 and remained unmarried is entitled to get a share in the property as equal to the sons. If she gets married or elopes after receiving the share in the property, then she has to return the remaining property to the person who is entitled to it."
  109. Ibid.
  110. See generally Paternal Property: Equal Rights to Daughter & Son (Compiled News), Institute for Legal Research and Resources, 1996.
  111. See Surya Prasad Dhungel et.al (n 99), pp. 117-118.
  112. Advocate Jyoti Paudel et. al. v. Nepal Government, WN WO-0424, 2064 cited at Some Landmark Decision of Supreme Court, vol.2, 2010, p.561.
  113. Ibid.
  114. See ‘International Principles on the Independence and Accountability of Judges, Lawyers and Prosecutors – A Practitioners Guide’, Second edition, International Commission of Jurists, 2007, p.20.
  115. Meera Dhungana (n 110).
  116. Article 18 (5) of the Constitution of Nepal provides ‘All offspring shall have the equal right to the ancestral property without discrimination on the ground of gender’. Previously, the Interim Constitution of Nepal, 2007 had guaranteed this right under the fundamental guarantee to the ‘rights of women’ under Article 20.
  117. National Civil Code, 2017(Muluki Dewani Samhita 2074 BS).
  118. See Chapter 10, Section 205, provision relating to Partition (Aungsabanda).
  119. Women for Human Rights, Single-women Group and Lili Thapa v. Prime Minister and Office of Council of Ministers, NKP, 2062 BS(2005).
  120. Reena Bajracharya and Others v. Royal Nepal Corporations, Cabinet Secretariat and Others, NKP 2057 BS (2002), p. 376.
  121. Ibid.
  122. Ibid.
  123. Ibid, p.12.
  124. Rabindra Prasad Dhakal on behalf of Rajendra Prasad Dhakal v. Nepal Government, Home Ministry and Others NKP 2064 BS (2007), p. 169.
  125. Ibid, p.216.
  126. Ibid.
  127. Nepal Disability Human Rights Center v. Government of Nepal cited in Some Decisions of the Supreme Court Nepal, 2012, p.406.
  128. Man Bahadur B.K. v. HMG, WN 2505, NKP 2049 BS (1992).
  129. Mohan Shasankar v. the Office of Prime Minister and Council of Ministers and other, WN 3416, NKP 2063 BS(2007).
  130. See the practice of Chaupadi challenged in the case of Dil Bahadur Bishwokarma v. Office of the Prime Minister, cited in Some Landmark Decision of The Supreme Court Nepal, 2010, p.61-9; See the case of accusation of witchcraft in Reshama Thapa v. HMG. Office of the Prime Minister cited in Some Landmark Decision of The Supreme Court Nepal, 2010, p.11-37; See also the case of bonded girl child (Kamalari) Som Prasad Paneru et. al. v. Office of the Prime Minister, cited in Some Landmark Decision of The Supreme Court Nepal, 2010, p.192-213; See also the case of Citizenship of Badi Community, Tek Tamrakar and Others for Pro Public v. Office of Prime Minister and Council of Ministers and Others, NKP 2062 BS (2005), p.680.
  131. Lawyers Association for Human Rights of Nepalese Indigenous Peoples v. Nepal Government, NKP 2070 BS (2013), p.61.
  132. Sunil Babu Pant and others v. The Government of Nepal and others, cited in Some Landmark Decision of The Supreme Court Nepal, 2010, p.387.
  133. Advocate Lila Mani Poudel v. Cabinet Secretariat, WN 3553, 2056 (2004).
  134. Devendra Ale v. Office of the Prime Minister, cited in Some Landmark Decisions of the Supreme Court of Nepal, 2010, p. 28.
  135. Madhav Kumar Basnet and others v. Government of Nepal, WN 069-WS-0057, 2014; See also, Suman Adhikari & others v. Office of the Prime Minister, NKP 2074 BS (2015).
  136. Prakashmani Sharma v. Nepal Government, 2009 cited in Some Decisions of the Supreme Court Nepal, 2012, p.284.
  137. Advocate Srikrishna Subedi v. Nepal Government, cited in Some Decisions of the Supreme Court Nepal, 2012, p.361.
  138. Prem Bahadur Khadka v. Nepal Government of Nepal, WN 2064/0719 (2008).
  139. LaxmiDhikta v. Nepal Government cited at Some Decisions of the Supreme Court of Nepal, 2011, p. 376; See also Prakash Mani Sharma and Others v. Ministry of Women, Children and Social Welfare and Others in Human Rights and Gender Justice cited at Some Decisions of the Supreme Court of Nepal, 2009, p. 414.
  140. Shiva Prasad Poudel v. Nepal Government cited at Some Decisions of the Supreme Court of Nepal, 2014, p. 268.

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