Public International Law

1.    Introduction of Public International Law : Definition, Origin and importance, Nature and basis of International Law, General Principles and rules of Public International Law, the relation between International Law and Municipal Law shall be appraised at the backdrop of Nepal Treaty Act, 2046.

International law is a set of rules, agreements, and treaties that are binding between countries. It governs the relationships and interactions between sovereign states and other international actors. This body of law is designed to promote peace, security, and cooperation on a global scale, ensuring that international affairs are conducted in an orderly and predictable manner.

The origin of international law can be traced back to ancient civilizations, but its modern form began to take shape in the 16th and 17th centuries. Key developments in the history of international law include:

• Ancient Times: Early examples of treaties and alliances can be found in the ancient civilizations of Egypt, Greece, and Rome.
• Middle Ages: The concept of sovereignty began to evolve, and the Church played a significant role in mediating conflicts.
• 16th-17th Century: The works of scholars like Hugo Grotius, known as the "father of international law," laid the foundations of modern international law, emphasizing natural law and the concept of a just war.
• 19th Century: The establishment of the Concert of Europe and various international conventions marked significant steps towards the formalization of international law.
• 20th Century: The formation of the League of Nations and later the United Nations marked the institutionalization of international law.

Importance

1.      Peace and Security: It provides mechanisms for the peaceful resolution of disputes and conflicts, thus promoting global stability.

2.      Human Rights: International law protects the fundamental rights and freedoms of individuals across the world.

3.      Trade and Economic Relations: It regulates international trade and investment, facilitating economic cooperation and development.

4.      Environmental Protection: It sets standards for environmental conservation and the sustainable use of natural resources.

5.      Global Cooperation: It fosters cooperation among states on various issues, including health, education, and technology.

Nature of International Law

International law is primarily characterized by its consensual nature, where states voluntarily agree to abide by certain rules and norms. Unlike domestic law, it lacks a centralized enforcement mechanism. Instead, it relies on principles such as reciprocity, mutual benefit, and the desire to maintain international order.

Basis of International Law

1.      Treaties and Conventions: Written agreements between states that are legally binding.

2.      Customary International Law: Practices and customs that have evolved over time and are considered legally binding, even without written agreements.

3.      General Principles of Law: Fundamental principles recognized by civilized nations, such as justice, equity, and good faith.

4.      Judicial Decisions and Scholarly Writings: Decisions of international courts and writings of legal scholars that help interpret and develop international law.

General Principles and Rules of Public International Law

1. Sovereignty: The principle that states are supreme within their own territories and are equal in their external relations.
2. Non-Intervention: States should not interfere in the internal affairs of other states.
3. Self-Determination: Peoples have the right to freely determine their political status and pursue their economic, social, and cultural development.
4. Prohibition of the Use of Force: States should refrain from the threat or use of force against the territorial integrity or political independence of any state, except in self-defense or with the authorization of the United Nations.
5. Human Rights: Respect for human rights and fundamental freedoms is a core principle of international law.
6. Pacta Sunt Servanda: Agreements must be kept; treaties are binding upon the parties and must be performed in good faith.

 

2.      Sources of International Law and Codification: Treaties, Custom, General principles of law (including Ex aequo et bono), Judicial reason, Writings of the publicists, Resolution of the General Assembly and Security Council, Draft Conventions of International Law Commission, Modern trends (including consideration of humanity), State practice.

Treaties: Treaties are formal agreements between states that are legally binding. They can be bilateral (between two states) or multilateral (between multiple states). Treaties are a central source of international law and cover a wide range of issues, including peace, trade, environmental protection, and human rights. Examples include the United Nations Charter and the Geneva Conventions.

Customary International Law: Customary international law consists of practices and customs that have developed over time and are considered legally binding. For a custom to be recognized as law, it must meet two criteria:

1.      State Practice: There must be a general and consistent practice of states.

2.      Opinio Juris: States must follow the practice out of a sense of legal obligation.

Examples include the prohibition of genocide and the principles of diplomatic immunity.

General Principles of Law: They are fundamental principles recognized by civilized nations. These principles fill gaps where treaties and customs do not provide clear rules. They include principles such as justice, equity, good faith, and the prohibition of unjust enrichment.

Ex Aequo et Bono: "Ex aequo et bono" means "according to what is fair and good." In certain cases, if the parties agree, the ICJ can decide a case based on fairness and equity rather than strict legal principles. This allows for flexibility and consideration of justice in the resolution of disputes.

Judicial Decisions: It, especially those of international courts and tribunals, contribute to the development of international law. While they are not binding precedents, they are influential and provide guidance on the interpretation and application of international law. Important courts include the ICJ, the International Criminal Court (ICC), and the European Court of Human Rights (ECHR).

Writings of Publicists: The writings of respected legal scholars and publicists are considered a subsidiary means for determining rules of international law. These writings help clarify and interpret legal principles and are often cited in judicial decisions.

Resolutions of the General Assembly and Security Council: It, while not legally binding in the same way as treaties, can influence the development of international law. General Assembly resolutions reflect the collective opinion of the international community and can contribute to the formation of customary international law. Security Council resolutions can be binding on member states, especially when taken under Chapter VII of the UN Charter concerning peace and security.

Draft Conventions of the International Law Commission (ILC): The ILC plays a crucial role in the codification and progressive development of international law. The ILC drafts conventions and articles that may eventually become binding treaties. Notable examples include the Vienna Convention on the Law of Treaties and the Draft Articles on the Responsibility of States for Internationally Wrongful Acts.

Modern Trends in International Law: Modern trends in international law reflect evolving norms and values in the global community. These include considerations of humanity, state practice, and other emerging principles.

Consideration of Humanity: The principle of humanity emphasizes the protection of human dignity and the prevention of suffering. This principle underlies many areas of international law, including human rights law, humanitarian law, and refugee law. It reflects a growing recognition of the importance of protecting individuals and groups in international relations.

 

State Practice: State practice remains a dynamic source of international law. Contemporary issues such as cyber operations, climate change, and the use of artificial intelligence are shaping new practices and norms. State behavior in these areas, combined with opinion juris, can lead to the development of new customary international laws.

Codification: It involves the process of systematically collecting, restating, and clarifying the rules of international law. This is often done through treaties and conventions that formalize existing customs and practices. Codification aims to provide greater clarity, stability, and accessibility to international law, making it easier for states to understand and comply with their legal obligations. The work of the ILC is fundamental to codification efforts. By drafting conventions and providing authoritative interpretations of international law, the ILC helps ensure that international law evolves in a coherent and structured manner.

3. Subject of International Law: State, Concept of state and sovereignty, Modes of acquiring and losing state territory, International Institutions, Individuals (position individual in International Law: this includes, inter alia, Migration, displaced person, refugees and Human rights), PrivateCorporations/MNCs/MNEs

A state is the primary subject of international law and must meet specific criteria to be recognized as such. The Montevideo Convention on the Rights and Duties of States (1933) outlines these criteria:

1. Permanent Population: A stable community of people.
2. Defined Territory: Clearly demarcated geographical boundaries.
3. Government: An effective and functioning political and administrative organization.
4. Capacity to Enter into Relations with Other States: Sovereignty and independence to engage in foreign affairs.

Sovereignty: It refers to the supreme authority of a state over its territory and population, free from external interference. It has two key dimensions:

       i.          Internal Sovereignty: The state's authority to govern itself without internal conflict or external intervention.

      ii.          External Sovereignty: The state's independence to conduct foreign relations and enter into agreements with other states.

Modes of Acquiring and Losing State Territory

       i.          Occupation: Taking control of terra nullius (land belonging to no one).

      ii.          Accretion: Gradual natural addition of land, such as through river deposits.

     iii.          Cession: Transfer of territory through treaties or agreements between states.

     iv.          Conquest: Acquisition of territory by force (though modern international law prohibits conquest as a means of acquiring territory).

      v.          Prescription: Acquisition of territory through continuous and uncontested exercise of sovereignty over a long period.

     vi.          Succession: Transfer of territory following the dissolution or merger of states.

International Institutions: It play a crucial role in the development, implementation, and enforcement of international law. Key institutions include:

1. United Nations (UN): The principal global organization for maintaining international peace and security, promoting human rights, and fostering social and economic development.
2. International Court of Justice (ICJ): The judicial organ of the UN that settles legal disputes between states and gives advisory opinions.
3. International Criminal Court (ICC): An independent institution that prosecutes individuals for serious international crimes, such as genocide, war crimes, and crimes against humanity.
4. World Trade Organization (WTO): An organization that regulates international trade and resolves trade disputes between member states.
5. International Monetary Fund (IMF) and World Bank: Institutions that provide financial assistance and support economic development globally.

Individuals: The position of individuals in international law has evolved significantly, with individuals now recognized as subjects with rights and responsibilities.

Migration, Displaced Persons, and Refugees

1.      Migration: Individuals moving from one country to another for various reasons, including economic opportunities, education, or family reunification. International law governs the rights and obligations of migrants, including labor rights and protections against exploitation.

2.      Displaced Persons: Individuals forced to leave their homes due to conflict, natural disasters, or other crises. International law, particularly under the UN Guiding Principles on Internal Displacement, seeks to protect their rights and provide humanitarian assistance.

3.      Refugees: Individuals who flee their country due to persecution, conflict, or violence. The 1951 Refugee Convention and its 1967 Protocol outline the rights of refugees and the obligations of states to protect them, including non-refoulement (the principle of not returning refugees to a place where they face serious threats).

Human Rights: It aims to protect the fundamental rights and freedoms of individuals. Key instruments include:

1.      Universal Declaration of Human Rights (UDHR): A foundational document outlining basic human rights.

2.      International Covenants on Civil and Political Rights (ICCPR) and Economic, Social and Cultural Rights (ICESCR): Binding treaties that expand on the rights in the UDHR.

3.      Regional Human Rights Conventions: Such as the European Convention on Human Rights (ECHR) and the American Convention on Human Rights (ACHR).

Private Corporations/MNCs/MNEs: They have increasingly become subjects of international law due to their significant global influence. Role and Responsibilities:

       i.          Economic Influence: MNCs/MNEs play a major role in global trade, investment, and economic development.

      ii.          Human Rights: Corporations are expected to respect human rights in their operations, guided by frameworks like the UN Guiding Principles on Business and Human Rights.

     iii.          Environmental Standards: Companies must adhere to international environmental standards and practices, often monitored through international agreements and corporate social responsibility initiatives.

     iv.          Anti-Corruption: MNCs/MNEs must comply with international anti-corruption laws, such as the OECD Anti-Bribery Convention.

Accountability and Regulation: International law seeks to regulate the activities of private corporations through various mechanisms:

1.      National Laws and Regulations: Countries implement domestic laws that align with international standards to regulate corporate behavior.

2.      International Agreements: Treaties and conventions impose obligations on states to oversee corporate activities, such as the Paris Agreement on climate change.

3.      Corporate Codes of Conduct: Voluntary codes and standards, often developed by international organizations, set guidelines for ethical corporate behavior.

 

4.      Recognition: Nature of recognition, Recognition of government and state, Effect of recognition and non-recognition, De facto and de jure recognition

Nature of Recognition: Recognition is a political act with legal implications. It involves a state acknowledging the existence of another state or government, thereby accepting its legal status and engaging with it within the framework of international law. Recognition can be explicit, through formal declarations, or implicit, through actions that clearly indicate acceptance of the entity’s status.

Types of Recognition

1.      Recognition of State: Acknowledgment of an entity as a sovereign state, possessing the characteristics defined by the Montevideo Convention: a permanent population, a defined territory, a government, and the capacity to enter into relations with other states.

2.      Recognition of Government: Acknowledgment of a specific government as the legitimate representative of an already recognized state. This often occurs during regime changes, revolutions, or coups.

Effect of Recognition and Non-Recognition

Effects of Recognition

·        Diplomatic Relations: Recognition allows for the establishment of diplomatic and consular relations, facilitating formal communication and negotiation.

·        International Agreements: Recognized states and governments can enter into treaties and international agreements, creating binding obligations.

·        Sovereign Immunity: Recognition grants entities sovereign immunity, protecting them from lawsuits in the domestic courts of the recognizing state.

·        Membership in International Organizations: Recognition can influence eligibility for membership in international organizations such as the United Nations.

Effects of Non-Recognition

·        Non-Interaction: Non-recognized entities may face diplomatic isolation, unable to engage formally with the non-recognizing state.

·        Legal Ambiguity: Non-recognition can lead to legal uncertainties regarding the status and actions of the non-recognized entity.

·        Economic and Trade Restrictions: Non-recognition can result in economic sanctions and trade embargoes, limiting the entity’s economic interactions.

De Facto and De Jure Recognition

De Facto Recognition: It refers to the acknowledgment of an entity’s effective control over a territory and population, without officially declaring full legal recognition. This form of recognition is often provisional and based on the practical realities on the ground. Characteristics:

·        Acknowledgment of control and governance.

·        Limited and often temporary.

·        Does not imply full legal acceptance.

Example: A state might recognize the control of a rebel group over a region without officially recognizing it as the legitimate government of the entire country.

De Jure Recognition: It is the formal and official acknowledgment of an entity as a legitimate state or government according to international law. It implies full legal acceptance and the willingness to establish formal relations. Characteristics:

·        Official and unequivocal recognition.

·        Full legal and diplomatic interactions.

·        Permanent unless revoked.

Example: Recognizing a new government following free and fair elections that comply with constitutional processes.

Recognition of Government and State

Recognition of Government: It involves acknowledging a specific government as the legitimate authority of a recognized state. This is particularly relevant during times of political upheaval, such as coups, revolutions, or contested elections. Factors Considered:

·        Control over the state’s territory and population.

·        Stability and effectiveness of governance.

·        Adherence to international obligations and norms.

·        Democratic legitimacy and constitutional processes.

Recognition of State: It involves acknowledging an entity’s sovereignty and statehood based on the criteria established by international law. Criteria:

·        Permanent population.

·        Defined territory.

·        Effective government.

·        Capacity to enter into relations with other states.

 

5.      Nationality: Importance and function; Modes of acquiring and losing nationality: Migration, Internal displacement, refugees Double nationality; Statelessness/Migration/IDPs/Refugees

Importance and Function of Nationality:

·        Identity: Nationality provides a sense of belonging and national identity.

·        Rights and Obligations: Nationality determines an individual's rights and obligations within a state, such as voting rights, social benefits, and military service.

·        State Protection: A state generally offers protection to its nationals abroad, and nationals can seek consular assistance.

Modes of Acquiring Nationality:

·        Jus Soli (Right of Soil): Nationality is acquired by birth within a state's territory, regardless of the parents' nationality. (e.g., United States)

·        Jus Sanguinis (Right of Blood): Nationality is acquired by descent from a national parent (or parents), regardless of the place of birth. (e.g., Japan)

·        Naturalization: Foreign nationals can acquire nationality through a formal process, often involving residency requirements and integration measures.

Modes of Losing Nationality:

·        Renunciation: Voluntarily giving up one's nationality.

·        Denaturalization: Involuntary loss of nationality, typically for serious offenses against the state. (This practice is controversial and uncommon)

·        Acquisition of another nationality: Some countries revoke nationality if a person acquires citizenship elsewhere.

Connection to Migration and Displacement:

·        Migration: The movement of people across borders can raise complex questions about nationality. Migrants may face challenges acquiring citizenship in their new country or retaining their original nationality.

·        Internal Displacement: People displaced within their own country due to conflict or natural disasters remain nationals of that state.

·        Refugees: Individuals fleeing persecution who seek refuge in another country often face a long and difficult process to acquire nationality.

Double Nationality: Occurs when an individual is legally recognized as a national of two or more countries. This can create complications, such as conflicting obligations for military service or taxation.

Statelessness: The situation of being without a recognized nationality by any country. This can leave individuals vulnerable and without access to basic rights and protections

 

 

Axylum: It provides a safe haven for individuals facing threats to their life, liberty, or security due to reasons like political persecution, race, religion, nationality, or membership in a particular social group. The function of asylum is multifaceted:

·        Humanitarian Protection: Provides safety and protection to individuals fleeing persecution and violence.

·        Human Rights: Ensures respect for the fundamental human rights of asylum seekers.

·        Non-Refoulement: Upholds the principle of non-refoulement, which prohibits returning individuals to a place where they face serious harm.

·        International Responsibility Sharing: Facilitates international cooperation and responsibility-sharing in protecting refugees and asylum seekers.

Types of Asylum:

·        Territorial Asylum: Granted within the territory of the state offering asylum. This is the most common form.

·        Diplomatic Asylum: Granted by a state's embassy or consulate in another country, offering temporary refuge to individuals fleeing persecution. (This practice is less common today due to concerns about abuse and potential violation of the host country's sovereignty)

 

 

Right of Asylum:

·        The right of asylum is not explicitly enshrined in customary international law, but there's a principle of non-refoulement, which prohibits states from returning individuals to a country where they face a real risk of persecution.

·        The 1951 Refugee Convention outlines the rights and obligations of states regarding refugees.

Obligation of Asylum:

·        There's no general obligation for states to grant asylum under international law.

·        However, states have a responsibility to consider asylum requests in good faith and according to their national laws and international obligations.

State of Refugees and Extradition:

·        Individuals granted asylum are generally considered refugees under the 1951 Refugee Convention.

·        Refugees cannot be extradited (forcibly returned) to their home country if they face a real risk of persecution.

 

Extradition: It is the formal process where one state (requesting state) requests another state (requested state) to surrender a person accused or convicted of a crime for trial or punishment. Functions of Extradition:

·        Promotes cooperation between states in fighting crime.

·        Ensures that individuals accused of serious crimes are held accountable.

·        Deters crime by making it harder for criminals to escape justice by fleeing to another country.

Basis of Extradition in International Law:

·        There's no universal law governing extradition.

·        It typically occurs based on treaties negotiated between states that outline the specific offenses for which extradition can be requested and the procedures to be followed.

·        Customary international law also plays a role, establishing general principles of extradition, such as the requirement for reciprocity (both states must be willing to extradite) and the prohibition on extraditing individuals for political offenses.

Nepal Extradition Act, 2045 (1988):

·        This act governs extradition in Nepal.

·        It allows for extradition based on treaties Nepal has signed with other countries and conventions Nepal is a party to.

·        The Act outlines the procedures for requesting and processing extradition requests, including requirements for evidence and limitations on extradition for political offenses.

Political Offense vs. International Criminal Offense:

Political Offense

·        Definition: A political offense is an offense committed with a political motive or in furtherance of political aims, such as acts of rebellion, sedition, or espionage.

·        Extradition Principle: Extradition may be refused for political offenses, as states are reluctant to extradite individuals for actions considered to be part of political dissent or resistance.

·        Scope of Political Offenses: The scope of political offenses varies between states and may be defined broadly or narrowly in extradition treaties and domestic laws.

International Criminal Offense

·        Definition: An international criminal offense is a serious crime that violates international law, such as genocide, war crimes, crimes against humanity, and terrorism.

·        Extradition Principle: States are generally obligated to extradite individuals accused or convicted of international criminal offenses, as these offenses are considered to be of universal concern and importance.

·        International Tribunals: Extradition may also be sought for individuals wanted by international tribunals, such as the International Criminal Court (ICC) or ad hoc tribunals for specific conflicts or regions.

Mutual Legal Assistance (MLA):

·        It involves cooperation between states in the investigation, prosecution, and enforcement of criminal offenses.

·        A broader concept than extradition, encompassing cooperation between states in criminal investigations and proceedings.

·        This can include sharing evidence, locating witnesses, and executing search warrants.

·        MLA can be crucial in gathering evidence needed for extradition requests.

 

State Responsibility: It refers to the legal obligation of a state to respect the rights of other states and individuals within its territory. Here's a breakdown of how it applies to treatment of aliens (foreigners) and their nationality.

Treatment of Aliens: States have a responsibility under international law to treat aliens within their territory with fairness and respect. This includes:

·        Security of Person: Protection from violence, arbitrary arrest, or detention.

·        Equal Protection of the Law: Aliens should have access to the same legal system and courts as nationals.

·        Minimum Standard of Treatment: This is a baseline level of treatment that all states owe to aliens, regardless of their nationality. It includes protection from torture, cruel or inhuman treatment, and arbitrary deprivation of life.

Nationality of Aliens:

·        A state's responsibility extends to protecting the rights of its own nationals abroad.

·        International law doesn't generally dictate how a state treats aliens in terms of nationality. However, there are principles to consider:

o   Non-discrimination: Aliens should not be discriminated against based solely on their nationality when compared to nationals regarding basic rights.

o   Exhaustion of Local Remedies: Before seeking international protection, aliens must generally first pursue remedies available in the local courts of the state where they are located.

Treaties: Treaties between states can play a significant role in defining the specific rights and obligations regarding treatment of aliens. These treaties might address:

• Investment protection: Guarantees for foreign investors operating in a state.
• Human rights: Treaties like the International Covenant on Civil and Political Rights (ICCPR) establish human rights standards that apply to all individuals within a state's territory, regardless of nationality.

 

Transnational Business Law and Contractual liability:

The New International Economic Order (NIEO) was a set of proposals put forward by developing countries in the 1970s to address perceived imbalances and inequalities in the global economic system. Its objectives included:

• Reducing disparities between developed and developing countries.
• Ensuring fair and equitable treatment in international trade and economic relations.
• Enhancing the role of developing countries in global decision-making processes.

General Agreement on Tariffs and Trade (GATT) and World Trade Organization (WTO)

GATT

·        GATT was established in 1947 as a multilateral agreement aimed at promoting free and fair trade among its signatories.

·        It provided a framework for negotiating and implementing trade agreements, reducing tariffs, and resolving trade disputes.

·        GATT principles, such as the most-favored-nation (MFN) principle and the principle of national treatment, laid the foundation for the modern international trading system.

WTO

·        WTO was established in 1995 to replace GATT and oversee the implementation of trade agreements.

·        It has a broader mandate, covering not only trade in goods but also trade in services, intellectual property rights, and trade-related aspects of investment.

·        The WTO provides a forum for negotiating trade agreements, settling disputes, and monitoring members' trade policies.

Nepal's Accession to the WTO and Harmonization of Laws

Accession Process

·        Nepal became a member of the WTO in 2004 after completing a lengthy accession process that involved negotiating its terms of entry and bringing its trade laws and policies into compliance with WTO rules.

·        As part of its accession commitments, Nepal agreed to liberalize its trade regime, reduce tariffs, and comply with WTO agreements, including the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).

Harmonization of Laws

·        Nepal undertook significant legal reforms to harmonize its laws with WTO norms, particularly in areas such as intellectual property rights, customs procedures, and sanitary and phytosanitary measures.

·        These reforms aimed to ensure that Nepal's legal framework was consistent with WTO rules and obligations, facilitating its integration into the global trading system.

 

Organs and Functioning of WTO

Organs

1.      Ministerial Conference: The highest decision-making body, where ministers from member countries meet to discuss and negotiate trade-related issues.

2.      General Council: The principal governing body, responsible for overseeing the functioning of the WTO and implementing decisions taken by the Ministerial Conference.

3.      Dispute Settlement Body (DSB): Facilitates the resolution of trade disputes between member countries.

4.      Trade Policy Review Body (TPRB): Conducts regular reviews of members' trade policies and practices.

5.      Secretariat: Provides administrative and technical support to the WTO's various bodies and committees.

Functioning

·        The WTO operates on the basis of consensus among its members, with decisions made through negotiations and consultations.

·        Its primary functions include negotiating trade agreements, monitoring members' compliance with WTO rules, providing a forum for dispute resolution, and offering technical assistance and capacity-building to developing countries.

Settlement of Disputes under Global Settings, including WTO Dispute Settlement Mechanisms

Exhaustion of Local Remedial Rule

·        Before initiating dispute settlement proceedings at the WTO, parties are generally required to exhaust local remedies, such as domestic judicial or administrative procedures, to resolve the dispute at the national level.

·        This requirement ensures that parties have attempted to resolve the dispute through domestic channels before seeking international intervention.

WTO Dispute Settlement Mechanisms

·        The WTO's dispute settlement mechanism (DSM) is a central pillar of the organization, providing a forum for resolving trade disputes between member countries.

·        The process involves consultations, mediation, and adjudication by a panel of experts, with the possibility of appeal to the WTO's Appellate Body.

·        WTO rulings are binding on member countries, who are expected to implement them promptly and fully.

·        The DSM has been instrumental in resolving numerous trade disputes, contributing to the stability and predictability of the global trading system.

 

 

VI. Jurisdiction and Immunities

Jurisdiction refers to the authority of a state to hear and decide legal cases. Immunity protects certain entities from the legal authority of a state. Here's a breakdown of the different types of jurisdiction and immunities:

Territorial Jurisdiction:

• A state has jurisdiction over events, persons, and property within its geographical territory. This is the most basic and widely accepted principle of jurisdiction.
• For example, a crime committed within a country's borders falls under its territorial jurisdiction.

Personal Jurisdiction: A state can exercise jurisdiction over individuals or entities based on specific connections to the state, even if the events in question happened elsewhere. These connections could include:

• Nationality: A state generally has jurisdiction over its nationals regardless of their location.
• Domicile: A state can have jurisdiction over individuals domiciled within its territory.
• Minimum Contacts: A state can exercise jurisdiction over a foreign individual or entity if they have sufficient contacts with the state, such as doing business there.

Maritime Jurisdiction: Governed by the United Nations Convention on the Law of the Sea (UNCLOS). It defines different zones of jurisdiction over the ocean:

• Territorial Sea: The territorial sea extends 12 nautical miles from the coastline and is considered part of a state's territory. A state has full jurisdiction over this zone.
• Contiguous Zone: An additional zone extending 12 nautical miles beyond the territorial sea. A state can enforce customs, immigration, and pollution control laws in this zone.
• Exclusive Economic Zone (EEZ): Extends 200 nautical miles from the coastline. A state has exclusive rights to explore and exploit resources in this zone, but navigation and other freedoms are generally allowed.
• High Seas: Beyond the EEZ, the high seas are open to all states for navigation, fishing, and other activities. No single state has complete jurisdiction, but there are international agreements governing activities on the high seas.

Jurisdiction in Airspace:

• The 1944 Chicago Convention on International Civil Aviation establishes the principle of sovereignty over airspace.
• Each state has complete and exclusive sovereignty over the airspace above its territory.
• International law governs issues like air traffic control and overflight rights for commercial aviation.

VII. Immunities and Privilege

Diplomatic Immunities:

·        Granted to diplomatic missions (embassies and consulates) and their personnel.

·        Aim to ensure the smooth functioning of diplomatic relations and protect diplomats from undue interference by the host state.

·        Scope of immunity varies depending on the category of diplomatic personnel:

o   Diplomatic Agents (Ambassadors, High Commissioners): Enjoy the most extensive immunities, including immunity from criminal and civil jurisdiction, personal inviolability, and inviolability of their residence and mission premises.

o   Administrative and Technical Staff: Enjoy immunity from civil jurisdiction for acts performed in the official course of their duties.

o   Service Staff: Generally have limited immunities, such as immunity from arrest for minor offenses.

Consular Immunities:

• Granted to consular posts and their personnel.
• Less extensive than diplomatic immunities, but necessary for consular functions like assisting nationals abroad and issuing visas.
• Scope of immunity includes:
• Immunity from civil and administrative jurisdiction for official acts.
• Inviolability of consular premises and archives.

Immunities of Special Missions:

• Granted to temporary missions established for specific purposes, such as attending international conferences or negotiating treaties.
• Scope of immunity is determined by agreement between the sending and receiving states.

Immunity of Foreign States:

• Sovereign states generally enjoy immunity from the jurisdiction of the courts of another state in civil and commercial matters. This is known as sovereign immunity.
• Exceptions exist, such as when a state engages in commercial activities within the host state.
• The scope of sovereign immunity is a complex area of international law, with ongoing debates about limitations.

Immunity of Privileges of International Organizations:

• International organizations like the United Nations enjoy immunity from local jurisdiction within the territory of their host country.
• This immunity is necessary for the organization to function effectively and impartially.
• The extent of immunity is typically defined by agreements between the organization and the host state.

Laminations of Immunities: The concept of "laminations" refers to the different layers of immunity that can apply depending on the specific entity and situation. Here's a simplified illustration:

• Diplomatic Agents: Enjoy the most extensive immunity, encompassing all the layers below.
• Consular Officers: Have immunity for official acts, similar to diplomatic personnel with administrative and technical staff.
• International Organizations: Immunity applies within the scope of their agreements with the host state

 

VIII. State Succession: It refers to the situation where one state (predecessor state) ceases to exist, and its rights and obligations are transferred to another state (successor state). This can happen due to various events like decolonization, the dissolution of a state, or the merger of states. Here's a breakdown of the key concepts:

Theory of State Succession:

• International law provides a framework for the orderly transfer of rights and obligations between predecessor and successor states.
• The Vienna Convention on Succession of States in respect of Treaties (1978) is a key instrument that governs this process for treaties.

Types of State Succession:

• Universal Succession: The successor state inherits all the rights and obligations of the predecessor state. This typically occurs when a colony gains independence.
• Partial Succession: The successor state inherits only some of the predecessor state's rights and obligations. This can happen when a state splits into multiple states or when a part of a state's territory is annexed by another state.

Succession of Government:

• A change in government within a state (e.g., through revolution or election) does not constitute state succession.
• The existing state continues with its rights and obligations under international law.

Succession of International Organizations:

• When a state ceases to exist, its membership in international organizations typically terminates.
• However, the successor state may apply for new membership or continue the predecessor's membership under certain conditions.

 

IX. Treaties: Formal agreements between states or international organizations that are governed by international law. They can be bilateral (between two parties) or multilateral (involving multiple parties). Importance:

• Legal Binding: Treaties create legally binding obligations for the parties involved.
• Peace and Cooperation: They facilitate peaceful relations and cooperation among states on various issues, such as trade, defense, and environmental protection.
• Predictability: Provide a predictable legal framework that states can rely on in their international relations.

Types of Treaties

Bilateral Treaties: Agreements between two parties, such as trade agreements, defense pacts, or extradition treaties.

Multilateral Treaties: Agreements involving multiple parties, often addressing broader issues like human rights, environmental protection, and disarmament.

Constitutive Treaties: Establish international organizations and define their functions and powers, such as the Charter of the United Nations.

Treaty Ratification: Ratification: The formal process by which a state signifies its consent to be bound by a treaty. This usually requires approval by the national legislature or executive, depending on domestic law.

Reservation of Treaties: Declarations by a state when ratifying a treaty, indicating that it does not agree to be bound by certain provisions of the treaty. Reservations must not be incompatible with the treaty's object and purpose.

Conditions of Treaties: Treaties may include specific conditions or stipulations that must be met for the treaty to enter into force or remain in effect.

Key Principles of Treaty Law

Pacta Sunt Servanda: "Agreements must be kept." This principle underlines the binding nature of treaties, obligating parties to perform their treaty obligations in good faith.

Rebus Sic Stantibus: "Things thus standing." This principle allows for treaties to become inapplicable due to a fundamental change in circumstances that were essential to the parties' consent to be bound by the treaty.

Interpretation of Treaties

Vienna Convention on the Law of Treaties (1969):

• Primary Rules: Treaties are to be interpreted in good faith according to the ordinary meaning of their terms in context and in light of their object and purpose.
• Supplementary Means: If the primary rules leave the meaning ambiguous or obscure, supplementary means of interpretation, such as the preparatory work of the treaty and the circumstances of its conclusion, may be used.

Termination of Treaties

• Mutual Consent: Parties may agree to terminate a treaty.
• Fulfillment: The treaty's terms may specify that it terminates upon the fulfillment of certain conditions.
• Breach: A material breach by one party may give the other party the right to terminate the treaty.
• Impossibility of Performance: If circumstances change such that performance of the treaty becomes impossible.
• Fundamental Change of Circumstances: Under the principle of rebus sic stantibus.

Effects of War on Treaties

• War: The outbreak of war between states may lead to the suspension or termination of treaties, especially those incompatible with the state of war. However, humanitarian treaties (e.g., Geneva Conventions) often continue to apply.

Treaty-Making Power under the Interim Constitution of Nepal and Nepal Treaty Act, 2047

Interim Constitution of Nepal:

• Authority: The Interim Constitution of Nepal grants the power to negotiate and conclude treaties to the executive branch of the government, typically the Council of Ministers.
• Ratification: Major treaties, particularly those involving peace, defense, or territorial changes, require ratification by a two-thirds majority of the legislature.

Nepal Treaty Act, 2047:

• Implementation: The Nepal Treaty Act, 2047 (1990) provides the legal framework for the implementation of treaties within Nepal. It outlines the procedures for ratification, enforcement, and domestication of international treaties.
• Hierarchy: Treaties ratified by Nepal take precedence over domestic laws in case of conflict, emphasizing the importance of aligning national legislation with international obligations.

 

Neutrality: It refers to the legal status of a state that refrains from taking sides in an armed conflict between other states. It's about maintaining impartiality and avoiding actions that could be seen as favoring one belligerent over another.

Neutrality vs. Non-Alignment:

• Neutrality is a legal concept, focusing on impartiality during a specific armed conflict.
• Non-alignment is a broader political stance where a state avoids formal military alliances in peacetime. A non-aligned state might still choose neutrality during a conflict, but it might also take a more active role in promoting peace or supporting one side based on the specific circumstances.

Neutrality under the UN Charter:

• The UN Charter encourages peaceful settlement of disputes and prohibits the use of force except in self-defense or with Security Council authorization.
• While the Charter doesn't explicitly mention neutrality, the principle applies when a conflict erupts without Security Council action.

Rights and Duties of a Neutral Country:

·        Rights:

o   To remain uninvolved in the conflict.

o   To have its territory and sovereignty respected by belligerents.

o   To trade with both belligerents on an equal footing (with some limitations).

·        Duties:

o   To prevent belligerent activities within its territory (e.g., recruitment of soldiers, passage of troops).

o   To treat both belligerents impartially in terms of access to supplies and facilities.

o   To prevent its territory from becoming a base of operations for a belligerent.

Concept of Peace Zones:

• A peace zone is a region where states agree to refrain from the use of force and settle disputes peacefully.
• The concept aims to promote regional stability and prevent armed conflict.
• Nepal, for example, has long advocated for the establishment of a Zone of Peace (ZOP) in South Asia.

 

Intervention: It refers to the act of interfering in the internal affairs of another state. It's a controversial topic in international law, with arguments for and against its use. Intervention involves a state or group of states inserting themselves into a situation within another state's territory. This can take various forms, from diplomatic pressure to economic sanctions or even military force. Types of Intervention:

• Humanitarian Intervention: Justified on the grounds of preventing a humanitarian crisis or protecting human rights within another state. This is a highly debated concept, with concerns about potential misuse and violation of sovereignty.
• Intervention by Invasion: The use of military force to intervene in another state's affairs. This is generally considered the most extreme form of intervention and is prohibited under the UN Charter except in very specific circumstances, such as self-defense or with Security Council authorization.

 

Blockade: It is an act of war whereby one state (belligerent) restricts entry to or departure from a defined part of the enemy's territory, most often its coasts. It's a tool used to exert pressure on the enemy, typically aiming to:

• Disrupt trade and supplies.
• Weaken the enemy's war effort.
• Coerce the enemy into submission.

Characteristics of a Valid Blockade:

• Effectiveness: The blockade must be effectively enforced to prevent ships from entering or leaving the blockaded area.
• Impartiality: The blockade must be applied impartially to all ships of neutral states (states not involved in the conflict).
• Declaration: The blockading state should issue a public declaration of the blockade, specifying its extent and duration.
• Warning: Ships approaching the blockade should be given a warning before being seized or fired upon.

Validity of a Blockade:

• The lawfulness of a blockade depends on its adherence to the characteristics mentioned above.
• Blockades declared for humanitarian reasons (e.g., preventing the delivery of weapons) might be viewed more favorably under certain circumstances.

Breach of Blockade:

• If a neutral ship attempts to enter a blockaded area after receiving a warning, it may be seized by the blockading state.
• This can be a risky maneuver for neutral states, as their ships could be damaged or sunk.

 

Contraband: Itrefers to specific goods destined for a belligerent (country at war) that can be used in the conflict.The key concept is the potential military use of the goods. Forms:

·        Absolute Contraband: These are goods with a primary purpose for warfare. Examples include weapons, ammunition, explosives, and military uniforms. A belligerent nation has the right to seize absolute contraband regardless of the destination (military or civilian) within enemy territory.

·        Conditional Contraband: These are goods with dual-use, meaning they can be used for civilian or military purposes. Examples include food, clothing, fuel, barbed wire, and medical supplies. A belligerent nation can only seize conditional contraband if it's destined for the enemy's armed forces or military use.

 

Settlement of International disputes

International disputes can arise for various reasons, like border disagreements, trade conflicts, or human rights violations. Thankfully, there are mechanisms in place to resolve these issues peacefully and avoid resorting to violence.

Peaceful Means: These are the preferred methods for resolving conflicts and maintaining international peace and security. The United Nations Charter (Article 33) encourages states to settle their disputes through peaceful means. Here are some common methods:

·        Inquiry and Negotiations: This is the most basic method where states directly communicate and exchange information to find a solution. Negotiations involve a back-and-forth process to reach a mutually agreeable settlement.

·        Mediation and Good Offices: A neutral third party (mediator) facilitates communication between disputing states. The mediator doesn't impose solutions but helps them find common ground. In the case of "Good Offices," a third party simply offers its assistance to facilitate communication without actively participating in negotiations.

·        Conciliation and UN Efforts: Similar to mediation, conciliation involves a neutral third party facilitating communication. However, the conciliator may also propose solutions for the states to consider. The UN plays a significant role in conciliation efforts through various bodies like the Security Council and the Secretary-General.

·        Arbitration (ICA, ICSID and other bodies): In arbitration, disputing states present their arguments to a neutral panel (arbitrators) who issue a binding decision. This decision is legally enforceable. The International Court of Arbitration (ICA) and the International Centre for Settlement of Investment Disputes (ICSID) are prominent arbitration institutions.

·        Judicial Settlement: Disputes are settled through a formal court process based on international law. The International Court of Justice (ICJ) is the primary judicial body for resolving disputes between states. Its decisions are binding on parties who accept the Court's jurisdiction.

Compulsive Means: These methods involve applying pressure on a state to force compliance, and should be used as a last resort after peaceful means have been exhausted.

Retaliation and Reprisal: This involves taking action (e.g., economic sanctions) against a state for a wrongful act. However, retaliation must be proportional to the initial offense.

Embargo and Pacific Blockade: An embargo restricts trade with a state, while a pacific blockade prevents the movement of goods into or out of a specific territory. Both methods aim to pressure a state to change its behavior.

 

Use of force and war:

There's no universally accepted legal definition of war. However, it's generally understood as an armed conflict between states characterized by:

• Sustained use of force: Significant military operations involving armed clashes.
• Organization of armed forces: Belligerents have organized military structures.
• Serious consequences: Widespread destruction and casualties.

Attempts to Outlaw War:

• Kellogg-Briand Pact (1928): Renounced war as an instrument of national policy. However, it lacked enforcement mechanisms.
• UN Charter (1945): Prohibits the threat or use of force in international relations with some exceptions (see below).

Principles of Prohibition of Use of Force:

The core principle is enshrined in Article 2(4) of the UN Charter. It prohibits member states from threatening or using force against another state's territorial integrity or political independence. This aims to maintain international peace and security.

Force Under the UN Charter: The UN Charter allows the use of force in limited circumstances:

• Self-Defense (Article 51): A state can use force in response to an armed attack. This right is inherent but needs to be necessary and proportionate to the attack.
• Collective Security (Chapter VII): The UN Security Council can authorize the use of force to maintain or restore international peace and security. This can involve peacekeeping missions or even military intervention.

Definition of Aggression: The UN General Assembly adopted a definition of aggression in 1974. It includes acts like:

• Invasion or armed attack by the armed forces of one State on the territory of another State.
• A bombardment by the armed forces of one State against the territory of another State.
• The blockade of the ports or coasts of another State by the armed forces of one State.

Self-Defense and Collective Self-Defense:

• Self-Defense: As mentioned earlier, a state can use force in self-defense against an armed attack. The use of force must be necessary and proportionate to the threat.
• Collective Self-Defense: If a state is attacked, its allies can come to its defense under the principle of collective self-defense. However, this right is subject to the same limitations as individual self-defense.

Collective Security: This is a system where states cooperate to maintain international peace and security. The UN Security Council plays a central role in collective security by authorizing the use of force, imposing sanctions, and deploying peacekeeping missions.

 

XIII. International Humanitarian Law and Laws of warfare

IHL, also known as the Law of War or Law of Armed Conflict, is a set of rules that seek to:

·        Limit the effects of armed conflict.

·        Protect people who are not or are no longer directly participating in hostilities.

·        Restrict the means and methods of warfare available to combatants.

IHL is based on considerations of humanity and aims to alleviate human suffering during armed conflict.

Principles of IHL:

·        Distinction: Combatants can be targeted, but civilians and civilian objects must be protected.

·        Necessity: Military action should be limited to what is necessary to achieve military objectives.

·        Proportionality: The anticipated harm to civilians should not be excessive compared to the military advantage gained.

·        Humanity: Unnecessary suffering should be avoided.

Scope and Sources of IHL:

·        IHL applies to international armed conflicts (between states) and non-international armed conflicts (protracted armed conflicts within a state).

·        Sources of IHL include:

o   Treaties: The Geneva Conventions (1948) and their Additional Protocols are the cornerstone of IHL.

o   Customary International Law: Rules established through general practice accepted as law.

o   General Principles of Law: Fundamental principles of law recognized by civilized nations.

Key Conventions and Instruments:

·        Conventions of 1899 and 1907: The Hague Conventions laid the groundwork for IHL, addressing issues like the use of weapons and the treatment of wounded and sick soldiers.

·        Geneva Conventions (1948) and Additional Protocols: These treaties significantly expanded the scope of IHL, protecting civilians, wounded soldiers, prisoners of war, and shipwrecked persons.

·        Geneva Protocol (1925): Prohibits the use of chemical and biological weapons.

·        Rome Statute of the International Criminal Court (ICC) (2002): Establishes the ICC to prosecute individuals for genocide, crimes against humanity, war crimes, and the crime of aggression.

·        Tribunals: International Criminal Tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR) were established to prosecute war crimes committed in those specific conflicts.

Legality of War:

·        The legality of war is governed by principles of jus ad bellum, which regulate the resort to war, including principles of self-defense, UN Security Council authorization, and humanitarian intervention.

·        Under IHL, the conduct of war must adhere to principles of jus in bello, which regulate the conduct of hostilities and protect civilians and combatants.

Prisoners of War (POWs): They are combatants who have been captured by an enemy during armed conflict and are entitled to certain legal protections under IHL. Rights:

·        POWs are entitled to humane treatment, protection from violence and intimidation, access to medical care, and legal representation.

·        They must be treated with dignity and respect and cannot be subjected to torture, inhumane treatment, or unfair trials.

Right of Angary

·        The right of angary, also known as the right of requisition, allows a belligerent party to requisition neutral vessels or aircraft for military purposes during armed conflict.

·        The right of angary is subject to certain conditions, including payment of fair compensation, respect for neutral sovereignty, and adherence to humanitarian principles.

War Crimes and International Criminal Law

War crimes are serious violations of IHL committed during armed conflict, including crimes against humanity, genocide, and grave breaches of the Geneva Conventions. IHL prohibits various acts, including:

·        Wilful killing of civilians or protected persons.

·        Torture or inhuman treatment.

·        Taking of hostages.

·        Deliberate attacks on civilians or civilian objects.

·        Indiscriminate attacks causing excessive civilian casualties.