Kathmandu School of Law Review Volume 6 Issue 2 November 2018 Paradigm Shifts in Internalization of International Law: A Case Study of Growing Human Rights Jurisprudence in Nepal Prof. Geeta Pathak* 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. Introduction International human rights law is not only one of the modern branches of public international law, but a heartfelt empirical testament proliferated with the hope of conveying normative values in the dorms of the states. Taking human rights home is indicative of their recognition of the need to comply. But the question arises whether States are willing to respect, protect and fulfill their international obligations.1 Principles * Prof. Geeta Pathak is Professor of Kathmandu School of Law. She is Steering Committee Member of the Asia Pacific Masters Program (APMA) under the Global Campus of Human Rights. 1 Article 2(2) of the UN Charter requires all Members to fulfill their obligations in good faith. See Vienna Convention on the Law of Treaties, 1155 UNTS 331, 1969, art. 26. 12 Volume 6 Issue 2 November 2018 Kathmandu School of Law Review of good faith,2 analogous to pacta sunt servanda3 further strengthen these obligations towards international law, including international human rights treaties. The success of internalization of international human rights laws depends on the political willingness of the government4 and independence of the judiciary. Numerous human rights treaties explicitly mention the responsibility of the State to take legal and other measures for domestic implementation. The core human rights treaties5 require the provisions for State parties to adopt legislative and other measures to give effect to the relevant rights. Article 2 (2) of the International Covenant on Civil and Political Rights, 1966 (ICCPR)6 can be referred as one of the examples7. Notably, some treaties are effective or functional only after the criminalization of acts such as the Genocide Convention8 (1948), the UN Convention against Torture (1984)9, the four Geneva Conventions (1949)10 and so on. In order to prevent, punish, and provide the reparations including compensation to the victims, the State parties to these conventions are obliged to adopt legislative, 2 In 1625, Hugo Grotius presented a general theory of treaties based on the concept of natural justice. He focused in particular on the scope of general applicability of the principles of equity and good faith. See, H Ziegler V€olkerrechtsgeschichte, Second edition, 2007 cited at Oliver Dorr, ‘Introduction: On the Role of Treaties in the Development of International Law', Springer-Verlag GmbH Germany, 2017, para 6 available at https://www.researchgate.net/publication/301181232_Introduction_On_the_Role_ of_Treaties_in_the_Development_of_International_Law, accessed on 10 September 2018. 3 Pacta sunt servanda is a Latin term, which means agreements must be kept. It is based upon the principle of good faith, which indicates that a party to the treaty cannot invoke provisions of its domestic law as a justification for a failure to perform. The legal definition is available at https://definitions.uslegal. com/p/pacta-sunt-servanda/, accessed on 12 September 2018. This principle is stipulated in the preamble, paragraph three, and Article 26 of the VCLT. This provision has been interpreted in conjunction with article 53 regarding jus cogens and a number of other provisions under the VCLT. See Kirsten Schmalenbach, 'Article 26 Pacta Sunt Servanda', pp. 427-476, at 'Vienna Convention on The Laws of Treaty, A Commentary, Dörr et. al. (eds.), Springer-Verlag Berlin Heidelberg, 2012. 4 Wade M. Cole, ‘Mind the Gap: State Capacity and the Implementation of Human Rights Treaties’ International Organization, 2015 available at https://www.cambridge.org/core/journals/international- organization/article/mind-the-gap-state-capacity-and-the-implementation-of-human-rightstreaties/ F6F0A33C5909506F3AA200AF32989150, accessed on 26 September 2018. 5 The UN human treaties having their monitoring mechanisms are regarded as core treaties. As of now, there are nine core human rights treaties. Each of these instruments has established a committee of experts to monitor implementation of the treaty provisions by its States parties. Some of the treaties are supplemented by Optional Protocols dealing with specific concerns, whereas the Optional Protocol to the Convention against Torture establishes a committee of experts. See Office of High Commissioner of Human Rights Official Website available at https://www.ohchr.org/EN/ProfessionalInterest/Pages/ CoreInstruments.aspx, accessed on 25 August 2018. 6 Article 2(2) of the ICCPR states: "…each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such laws or other measures as may be necessary to give effect to the rights recognized in the present Covenant." 7 International Covenant on Civil and Political Rights, 999 UNTS 171, adopted on 16 December 1966, art 2. 8 Convention on the Prevention and Punishment of the Crime of Genocide, 78 UNTS 277, adopted on 9 December 1948. 9 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1465 UNTS 85, adopted on 10 December 1984. 10 The four Geneva Conventions of 12 August 1949 are international humanitarian law treaties, ratified or acceded to by virtually all States. They protect the wounded and sick in armed forces in the field (GC I); wounded, sick and shipwrecked members of armed forces at sea (GC II); prisoners of war (GC III); and civilians (GC IV). Geneva Conventions do not permit derogation. 13 Kathmandu School of Law Review Volume 6 Issue 2 November 2018 administrative, judicial, or other measures. However, there is a doubt whether States are ready to shoulder these obligations. The answer is self-evident, especially in a given situation where States have put reservations11 even on the key provisions such as right to justice, equality and non-discrimination and some non-derogable rights that hold the jus cogens12 or the rules of customary international legal norms13. Amidst the dichotomy between international and national legal order, the paper attempts to explore the theories or approaches that help in synchronization of international human rights law with the domestic legal system. Chapter one of the paper explores the theories of internationalization of international law underpinning the theories of monism and dualism and their conceptual, philosophical, political, and constitutional constructs, including some state practices. Chapter two examines the status of 'internalization' of international human rights treaties to which Nepal is a party. The paper provides glimpses of growing thematic human rights jurisprudence adopted by the Supreme Court of Nepal. The range of cases may help in understanding the judicial trends of application and interpretation of international human rights provisions along with constitutional guarantees in Nepal. Part 1: Theories and Practices of Internalization of International law The word 'internalization' used in this article is synonymous with 'domestication.' Although both words are related to the same process, I have chosen the former with a feeling that the process of internalization is not merely formalism but a profound realization of the process of building ownership over the normative values of universalism of international law. Theories and understandings may be relatively modified, shaped, or changed, but the underlying essence of human dignity and worth of human values remain forever. The ongoing debate over the political, philosophical, and legal significance of the theories of monism and dualism has given a wide range of the margin of appreciation to the governments and all other entities of the State. The scholars argue that the debate is related to national and international politics, not really about the essence.