Nepal evidences long history of having bilateral relations however Nepal started ratifying international instruments in significant number after being member of United Nations in 1945. Legal system has been divided broadly in two categories, common legal system and civil legal system. Nepal has been influenced by both the systems.
Hence, we practice traits of both. Approach of international law differs in both the systems. Currently international law is increasing its influence and setting its grip throughout the world. Nepal is not an exception which is demonstrated by the fact that till today Nepal has ratified more than 100 international instruments.
There are different frameworks being followed for implementation of International Law. Broadly they can be categorized into two frameworks and they are: Monism and Dualism. Monism lay its base on the idea that once international law is ratified it is to be adopted as domestic law.
Countries like Netherland, Norway, Austria follow this theory. Whereas dualism lay its base on the idea that once international law is ratified it is to be incorporated in domestic law via act of parliament in order to implement it. It is practiced in countries like the Australia, the UK, India etc.
In Nepal, implementation of ratified international laws is guided by Nepal Treaty Act ,1990. Section 9 of the Nepal Treaty Act mention that, in case any laws of Nepal is inconsistent with the international laws ratified by Nepal than such provisions shall be void.
In case of Reena Bajracharya V. Royal Nepal Airlines Cooperation( RNAC) , supreme court declared that rule 16.1.3 of Employees Regulations of Nepal Airlines, 1947 which stipulates the earlier age for air hostess to get retire from job than any other crew members as void describing that it is inconsistent with Article 11 of the then constitution and Article 15 of Convention On Elimination Of All Forms Of Discrimination Against Women(CEDAW).Similarly decision under same line was given on Lily Thapa’s Case. These examples reflects that Nepal follow theory of Monism for implementation of international laws.
But in property case of Meera Dhungana, petitioner invoked Article 16 of Chapter on Property, of Country Code mentioning that this property law is in conflict with Article 15 of CEDAW and equality clause of Constitution. Pleading on same line was done in (chapter on inheritance,No 2,3,9(a) and chapter on partiteon of property No 12) property case of Chanda Bajracharya.
In these cases Supreme court Declared that these particular provisions were discriminatory and directives were given to parliament to make laws in accordance to international laws but provisions were not declared void. This reflects that there must be an Act of parliament in order for international laws that are ratified to be followed. This idea is advocated by theory of Dualism.
From the above-mentioned examples, we can infer that implementation of international laws are contextual and inconstant, hence implementation of international laws is said to be guided by mixed approach in Nepal. Though Article 9 of Treaty Act mentions that international laws prevail over domestic laws it fails to mention, if international laws should be incorporated in domestic laws or they can be directly applied as statues.
Constitution of Nepal has been promulgated seven times. Few Constitutions included the idea of Nepal’s foreign relation in directives principles, but they have not included the provisions regarding international laws.
Rather than adopting or incorporating international law Nepal is only referring to ratified international laws. The graph of Supreme Court shows both progressive and regressive interpretations of international laws which has huge effect on its implementation.
When the credibility of international law is increasing day by day we should not be left out. So, position of international laws, method of its domestication and implementation should be incorporated in constitution itself. In many cases we tend to ignore international laws if national laws address the issue. This tendency must be sidelined.
Once we start citing international laws as much as possible in everyday cases the credibility of international laws in Nepal will also increase and its purpose of being ratified will be fulfilled. Nepal Treaty Act should also be revised or amended for it to adjust with time.
The opinions delivered in this article are the writer's her own, the NSM may not necessarily align with them.
Bijaya Sedai is a scholar at Kathmandu School of Law.