Analytical School of Jurisprudence: State Power and its Relevance to the Nepalese Legal System

1. Meaning and Nature of the Analytical School

The analytical school of jurisprudence (also called the positivist, imperative or Austinian school) studies law as it actually is (lex lata), not as it ought to be (lex ferenda). It treats law as the command of the sovereign, backed by sanction, and confines its enquiry to the formal sources of law — legislation, precedent and custom recognised by the state. Its chief exponents are Jeremy Bentham (who coined the term "analytical"), John Austin, Sir Henry Maine, John Salmond and Hans Kelsen.

2. Austin's Concept of State Power (Command Theory)

Austin defined law as "a command of the sovereign backed by a sanction." His theory rests on three elements:

1. Sovereign — a determinate human superior who receives habitual obedience from the bulk of society and is himself not in the habit of obeying any other superior.
2. Command — an expression of the sovereign's will that others shall do or forbear from doing something.
3. Sanction — the evil or punishment that follows disobedience, which alone makes the command binding.

Thus, in this school, state power is the source of all law. Law is not valid because it is just, moral or natural, but because it emanates from the sovereign. Austin distinguished law "properly so called" (positive law) from law "improperly so called" (moral rules, customs, international law), because the latter lack sovereign command and sanction. Kelsen refined this with his pure theory of law and the Grundnorm (basic norm), holding that validity flows down a hierarchy of norms from the basic norm, and that the state and law are identical. Salmond added that law consists of the rules recognised and enforced by the state in the administration of justice.

3. Criticism of the School

• It ignores the moral, social and historical dimensions of law (natural law and sociological schools).
• Sovereignty in a democracy lies with the people, not with a determinate superior; Austin's sovereign is hard to locate in a federal or international setting.
• Custom and international law are law in practice, though Austin denied them that status.
• The theory justifies arbitrary and tyrannical legislation.

4. Most Relevant Aspect to the Present Nepalese Legal System

The most relevant aspect of this school to Nepal is its doctrine of sovereignty and the hierarchy of state-made norms, reflected in the following:

1. Sovereignty of the people and supremacy of the Constitution — Article 2 of the Constitution of Nepal, 2072 vests sovereignty in the Nepali people, and Article 1 declares the Constitution the fundamental law. All law derives validity from this supreme norm, exactly as Kelsen's hierarchy suggests.
2. Legislation as the dominant source of law — Nepal follows the civil law tradition; the Muluki Civil Code, 2074, Muluki Criminal Code, 2074 and other statutes are commands of the sovereign legislature. Customary law applies only when recognised by statute.
3. Sanction as the basis of enforcement — the Codes prescribe punishment, compensation and penalties, reflecting Austin's sanction element. Courts enforce only those rules that carry state sanction.
4. Judicial review — Articles 133 and 137 empower the Supreme Court to declare laws inconsistent with the Constitution void, showing that validity is tested against the superior norm, not against morality.
5. Codification and legal certainty — the analytical emphasis on a determinate, written body of law supports Nepal's codification drive and the rule of law.

5. Conclusion

The analytical school explains law through state power — the sovereign's command and its sanction. Although criticised for ignoring ethics and social realities, its core ideas of sovereignty, constitutional supremacy, legislation as the primary source and sanction-based enforcement remain the backbone of the Nepalese legal system. Hence, the analytical school is most relevant to Nepal in its positivist conception of state authority and the normative hierarchy headed by the Constitution.

Concept of Person and Personality

1. Concept of Person

In law, the term person does not mean a human being in the ordinary sense. It means any entity that the law recognises as capable of having rights and duties. A person is thus a legal or juristic concept — whoever or whatever can sue and be sued, can own property, and can enter into contracts is a person in the eyes of the law.

• Legal meaning: A person is a being or entity having legal rights and obligations.
• Salmond's view: "A person is any being whom the law regards as capable of rights and duties."
• Key point: Personality (legal personality) is conferred by law, not by nature. Hence a human being may exist without being a full legal person (e.g., a slave in ancient times), and an entity that is not a human being at all (e.g., a company) may still be a legal person.

2. Concept of Personality

Personality in law means the legal capacity or status by which an entity is recognised as a person. It is the sum total of the rights and duties that the law attaches to that entity. Legal personality has two essential elements:

1. Capacity to have rights (rights in rem and rights in personam).
2. Capacity to bear duties and liabilities.

Legal personality begins at a certain point and ends at a certain point. For a natural person it generally begins at birth (in some systems, from conception for certain purposes) and ends at death. For an artificial person it begins on incorporation and ends on dissolution.

3. Kinds of Person

Persons are broadly of two kinds:

A. Natural Person

A natural person is a human being. Law recognises every human being as a person, subject to certain conditions such as birth, age, and sanity. Features:

• Created by nature, not by law.
• Personality begins at birth and ends at death.
• Rights and duties are attached to the living human being.
• Capacity may be limited by age (minor), unsoundness of mind, etc.

B. Artificial (Juristic) Person

An artificial person is an entity created by law, which is treated as a person though it is not a human being. It has rights and duties in its own name, separate from its members. Main types:

B.1 Natural vs. Artificial Person — Comparison

Conclusion

A person is any entity capable of rights and duties, and personality is the legal capacity or status that makes it so. Persons are of two kinds — natural (human beings) and artificial or juristic (entities such as companies, the State, and trusts created by law). The law, not nature, is the ultimate source of legal personality.

Sources of Law

Meaning: The term "source of law" refers to the origin from which law is derived — the places where legal rules come from, the authority that gives them binding force, and the materials in which they are found. In jurisprudence, "source" is used in several senses: the historical source (the origin of the rule in the past), the formal source (the authority that gives the rule legal validity, e.g. the sovereign or the constitution), the material source (the matter out of which the rule is drawn, e.g. customs, morality, religion), and the literary source (the document where the rule is recorded).

Classification of Sources of Law

1. Formal Sources — those from which the law derives its legal force and validity. Examples: the constitution, legislation, delegated legislation, and judicial precedent. These are recognised by the state as authoritative.

2. Material Sources — those from which the content of the law is drawn. Examples: customs, usages, morality, religion, justice, equity, and the opinions of jurists. They supply the substance but not the binding force.

3. Historical Sources — the remote origins of legal rules, such as the customs of ancient communities, Roman law, Hindu law, and religious texts. They explain how a rule came into existence.

4. Legal Sources — those recognised by the courts as authoritative for deciding cases: legislation, precedent, custom, and agreement.

Main Sources of Law

(a) Custom — the oldest and most important source. Rules of conduct that have been observed by a community for a long time, continuously and uniformly, and which are accepted as obligatory, become law.

(b) Legislation — law made deliberately by the sovereign law-making body (Parliament). It is the most modern and most powerful source, since it can override custom and precedent.

(c) Precedent (Judicial Decisions) — decisions of higher courts that must be followed by lower courts in similar cases. This is the backbone of the common law system.

(d) Religion and Morality — in early societies, religious texts and moral principles were the chief sources of law. Hindu law, Islamic law, and Christian canon law all grew from religion.

(e) Equity and Justice — principles of fairness used to soften the rigour of strict law and to fill gaps in it.

(f) Opinions of Jurists — the writings of legal scholars (e.g. Blackstone, Salmond, Manu, Kautilya) which influence courts and legislators.

(g) Agreement or Contract — the terms agreed between parties, which the courts enforce, become law for those parties.

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Custom as the Most Important Source of Law

Custom is regarded as the most important source of law for the following reasons:

1. Antiquity and primacy: Custom is the earliest source of law. Before legislatures or courts existed, communities were governed by customs. All early legal systems — Hindu, Roman, Islamic, and English common law — grew out of customs.

2. Natural growth: Custom is not made deliberately; it grows spontaneously out of the habits, needs, and repeated practices of the people. It therefore reflects the real life and conscience of the community.

3. Popular acceptance: Because custom arises from the people themselves, it is voluntarily obeyed. It carries the sanction of public opinion, which makes it more effective than imposed law.

4. Flexibility: Custom changes slowly with the changing needs of society, so it stays in harmony with social conditions.

5. Source of legislation and precedent: Legislatures often codify existing customs, and courts decide cases on the basis of customs. Thus custom feeds the other sources of law.

6. Continuity and certainty: Long, uniform practice gives custom certainty and predictability, which are essential qualities of law.

However, custom is not absolute. It must satisfy certain conditions to be recognised as law: it must be ancient, reasonable, continuously and uniformly observed, certain, not immoral, not opposed to public policy, and not in conflict with statute or the constitution. Modern legislation can override a custom, so in practice legislation is now the superior source; but historically and materially, custom remains the most important source.

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Kinds of Customs

Customs may be classified as follows:

1. Legal Custom — a custom recognised and enforced by the courts as law. It is binding on all persons to whom it applies. It is of two types:

• General Custom — observed throughout the whole country; it forms part of the general law of the land (e.g. the custom of monogamy in most societies).
• Local Custom — observed only in a particular locality, district, or region; it binds only the people of that place (e.g. a local rule of inheritance in a particular village or district).

2. Conventional Custom (Usage) — a practice that is not law by itself but becomes binding on parties because they have agreed, expressly or impliedly, to be bound by it. It is also called "usage" and operates as an implied term of a contract. Example: in a particular trade, the usage that payment is made within 30 days.

3. Customary Law in a Broader Sense — customs may also be grouped as:

• Ancient Custom — long established and recognised by courts.
• Modern Custom — of recent origin but gaining acceptance.
• Religious Custom — based on religious beliefs and practices.
• Social Custom — based on social usages such as marriage and funeral rites.
• Commercial Custom — usages followed in trade, commerce, and business.

Essentials of a valid custom: antiquity, continuity, uniformity, certainty, reasonableness, morality, and conformity with statute and public policy.

Rights: Concept, Elements, and Relationship with Duties

1. Concept of Rights

A right is a legitimate claim or entitlement recognised by society or the state, which allows a person to act, possess, or demand something for the development of his or her personality. Rights are essential conditions of social life — without them, an individual cannot grow physically, mentally, morally, or socially.

Rights exist only in a society, not in isolation. They are:

• Recognised and protected by the state or by social customs and morality.
• Backed by sanctions — violation invites punishment or social disapproval.
• Not absolute — they are limited by the equal rights of others and by the general welfare.

Scholars like T.H. Green held that rights are powers necessary for the realisation of the common good, while Laski viewed rights as conditions of social life without which no individual can be his best self. Thus rights are neither pure privileges nor unlimited freedoms; they are socially recognised claims.

2. Elements of Rights

Every right has certain essential elements. These are:

1. Subject (the holder of the right): There must be a person — an individual or a group — who holds and exercises the right. Only a person can be the subject of a right.

2. Object (the content of the right): There must be something over which the right is exercised — life, liberty, property, reputation, education, expression, etc.

3. Claim or demand: A right is always a claim — the holder can demand it from others or from the state. A claim without the power to demand is not a right.

4. Recognition: The claim must be recognised by society, by law, or by the state. Unrecognised claims remain mere wishes.

5. Obligation or duty on others: Every right creates a corresponding duty on others to respect and not to obstruct it. My right to life obliges others not to kill me.

6. Sanction or enforcement: There must be a mechanism — courts, police, or social pressure — to enforce the right if it is violated. Without sanction, a right becomes meaningless.

7. Purpose (welfare and development): Rights exist for the welfare of the individual and the common good of society, not for selfish gratification.

3. Relationship between Rights and Duties

Rights and duties are two sides of the same coin. They are inseparable, correlative, and complementary.

(a) Correlative nature: Every right of one person implies a duty on others. My right to property implies the duty of others not to steal it. Conversely, my duty to respect others' property implies their right to own it.

(b) Rights imply duties: A person who enjoys rights must also perform duties — paying taxes, obeying laws, respecting others' rights, and serving society. A citizen who claims the right to vote must also perform the duty of voting responsibly.

(c) Duties imply rights: When a person performs a duty, he or she earns a corresponding right. A taxpayer earns the right to public services; a law-abiding citizen earns the right to state protection.

(d) No right without duty: If everyone claims rights without performing duties, society collapses into chaos. Rights cannot survive in a duty-free environment.

(e) No duty without right: Duties performed without any corresponding rights lead to slavery or exploitation. Hence duties must be matched by rights.

(f) Balance is essential: A healthy democracy and a just society require a proper balance between rights and duties. The Universal Declaration of Human Rights (1948) and the Constitution of Nepal both recognise this — rights are granted along with fundamental duties.

Conclusion

Rights are socially recognised and state-protected claims essential for human development. They possess elements such as subject, object, claim, recognition, obligation, sanction, and purpose. Rights and duties are inseparable — each right creates a duty and each duty supports a right. Therefore, a person can enjoy rights fully only by performing duties sincerely, and a society can remain peaceful and progressive only when rights and duties are kept in balance.

Obligation vs. Liability

Obligation is a broad legal and moral concept. It refers to any duty or bond by which a person is bound to do or refrain from doing something — whether the duty arises from law, contract, social custom, or morality. An obligation may be enforceable in a court of law or may rest only on conscience and social pressure. For example, a promise made to a friend to help him in difficulty creates a moral obligation, though it is not legally enforceable.

Liability is a narrower and more technical concept. It refers to a legal responsibility or debt that a person is bound to discharge — usually the payment of money or performance of a duty that the law can enforce. In accounting and business law, liability means an amount owed by the business to outsiders (creditors, lenders, suppliers, etc.). For example, a loan taken from a bank is a liability because it must be repaid, and the bank can recover it through legal process.

Basis of Difference

In short, every liability is an obligation, but every obligation is not a liability. Liability is that part of obligation which the law recognises and enforces.

Kinds of Liability

Liability may be classified as follows:

1. Civil Liability A liability arising from civil wrongs such as negligence, breach of contract, defamation, or nuisance. The remedy is usually compensation (damages) to the injured party, not punishment of the wrongdoer. For example, if a trader fails to supply goods as per contract, he is civilly liable to pay damages.

2. Criminal Liability A liability arising from an act or omission punishable by the State. Here the wrong is against society as a whole, and the remedy is punishment — imprisonment, fine, or both. For example, theft, assault, and fraud create criminal liability.

3. Strict Liability Liability imposed without proof of intention or negligence. A person is held liable merely because he did a particular act or kept a dangerous thing, even if he took all care. It applies to inherently dangerous activities. For example, a person keeping dangerous animals is liable for harm caused by them even without negligence.

4. Absolute Liability A stricter form of strict liability where even the defences available under strict liability (such as act of God) are not allowed. It arises in cases of hazardous industries. For example, an enterprise engaged in a hazardous industry is absolutely liable for any harm caused by it.

5. Vicarious Liability Liability of one person for the wrong committed by another, based on a special relationship. The most common example is the liability of a master for the wrongs of his servant committed in the course of employment. Similarly, a principal may be liable for the acts of his agent.

6. Joint and Several Liability Where two or more persons are liable for the same wrong, the injured party may sue any one of them for the whole amount, and that person may later claim contribution from the others. For example, partners are jointly and severally liable for the debts of the firm.

7. Contingent Liability A liability that may or may not arise in future depending on the happening of an uncertain event. It is not recorded as a liability until the event occurs. For example, a suit pending against a firm may result in a liability if the firm loses the case.

8. Statutory Liability A liability created by a statute or law, such as payment of taxes, duties, or contributions to provident funds. It arises because the law commands it, not because of any contract.

9. Contractual Liability A liability arising out of an agreement between parties. For example, a buyer is liable to pay the price of goods purchased under a contract of sale.

Concept of Ownership

Ownership is the sum total of all rights that a person has over a thing — the right to possess, use, enjoy, consume, destroy, transfer, or exclude others from it. It is the highest and most complete right that one can have over an object. Jurists define it in different ways:

• Salmond: Ownership is the relation between a person and a thing, which confers the fullest bundle of rights over that thing.
• Austin: Ownership is the right to use and dispose of a thing indefinitely, subject only to the restrictions imposed by law.
• Holland: Ownership is the plenary control of a person over a thing, exercisable against the whole world.

Essentials / Characteristics of Ownership

1. Absolute and complete right — the owner can use the property in any lawful manner.
2. Indefinite duration — ownership lasts as long as the thing exists; it is not limited by time.
3. Right against the whole world (jus in rem) — enforceable against every person, not against a particular person only.
4. Right to transfer and dispose — the owner may sell, gift, mortgage, or destroy the property.
5. Residuary right — all rights over a thing that remain after others' limited rights are subtracted belong to the owner.
6. Subject to law — ownership is not unlimited; it is restricted by law, public policy, and the rights of others.

Kinds of Ownership

Ownership is classified in several ways:

1. On the basis of the number of owners

• Sole / Individual ownership — one person alone owns the property (e.g., a man owning his own house).
• Co-ownership — two or more persons own the same property together. It may be:
  • Tenancy in common — each has a distinct, undivided share; on death the share passes to heirs.
  • Joint tenancy (joint ownership) — no distinct share; on death the interest passes to the surviving joint owners (jus accrescendi).
  • Partnership property — co-ownership arising from a business partnership.
  • Coparcenary ownership — ownership of ancestral property by members of a Hindu undivided family, where the interest passes by survivorship.

2. On the basis of the nature of the thing

• Corporeal ownership — ownership of material things such as land, house, car.
• Incorporeal ownership — ownership of immaterial rights such as copyright, patent, trademark, easement.

3. On the basis of the manner of acquisition

• Original ownership — acquired by one's own effort without transfer from another (e.g., catching fish, creating a new thing).
• Derivative / derivative title — acquired through transfer from a previous owner (purchase, gift, inheritance).

4. On the basis of the extent of right

• Absolute / unrestricted ownership — full rights, subject only to general law.
• Limited / restricted ownership — rights limited by the interest of another, e.g., a mortgagor's ownership, a trustee's ownership, a life tenant's ownership.

5. On the basis of the holder

• Legal ownership — recognised and protected by law, though possession may be with another (e.g., a lessor).
• Equitable / beneficial ownership — the real beneficial interest, as in trust property.
• Vested ownership — title is complete and immediate.
• Contingent ownership — title is perfect only on the happening of a future event.

Ownership in the Nepalese Context

Nepal follows a mixed legal system in which ownership is governed mainly by the Muluki Civil Code, 2074, the Land Act, 2021, the Land Revenue Act, 2034 (1977), the Company Act, 2063, the Contract Act, 2056, the Copyright Act, 2059, the Patent, Design and Trademark Act, 2022, and the Constitution of Nepal, 2072.

1. Constitutional guarantee. Article 25 of the Constitution guarantees the right to property to every citizen. It provides that no person shall be deprived of property except in accordance with law, and that the State shall not acquire or requisition private property except for public purposes with just compensation. Article 25(4) also permits the State to make laws for land reform, management, and redistribution.

2. Types of property recognised. Nepalese law recognises movable property (cash, vehicles, goods, shares) and immovable property (land, buildings, trees, minerals). Ownership may be individual, joint, family (undivided), partnership, trust, corporate, or State/public.

3. Modes of acquiring ownership. Ownership in Nepal is acquired by:

• Purchase and sale — through a registered rajinama (deed of sale) at the Land Revenue Office.
• Gift (bakas / dana) — by registered deed.
• Inheritance — under the Muluki Civil Code, sons, daughters, and the widow have rights in ancestral property; daughters now have equal rights in parental property.
• Partition (anshabanda) — division of joint family property.
• Adverse possession — a person in continuous, open, and peaceful possession of land for the statutory period may acquire ownership.
• Government grant / allotment — land granted by the State, e.g., to landless squatters (sukumbasi), guthi land, birta abolition, raikar land.
• Accession, mixture, and specification — as provided in the Civil Code.

4. Registration and proof. Ownership of immovable property must be registered in the Land Revenue Office; the lalpurja (land ownership certificate) is the primary proof of title. Unregistered transfers are not legally recognised. The Land Revenue Act and Land Survey Act regulate survey, registration, and records.

5. Restrictions on ownership. Ownership in Nepal is not absolute. Restrictions arise from:

• Land ceiling under the Land Act, 2021 (limits on holding size).
• Tenancy rights of mohi (tenant) farmers.
• Guthi land tied to religious trusts.
• Forest, national park, and conservation laws.
• Town planning, building codes, and compulsory acquisition for public projects.
• Foreigners cannot own land in Nepal; only citizens may hold land (with limited exceptions for companies).

6. Recent developments. The Recent amendments to the Land Act and the Land Revenue Act have simplified registration and digitalised land records. The National Land Policy, 2075 aims at scientific land use, security of tenure, and resolution of sukumbasi, guthi, and raikar issues. The Land Related Problems Resolution Commission addresses landlessness and disputes. E-governance in land administration (online lalpurja, digital signature) is expanding.

7. Practical realities. Despite legal guarantees, problems persist: fragmented holdings, absentee landlordism in some areas, illegal occupation of public land, delays in registration, disputes over inheritance, and weak enforcement in remote districts. Women's ownership of land remains low though improving due to tax rebates and legal reform.

Conclusion

Ownership in Nepal is a constitutionally protected but socially regulated right. The legal framework recognises several kinds of ownership and provides for acquisition through purchase, gift, inheritance, partition, and State grant. In the present context, land reform, digitalisation of records, and resolution of historical land problems are the main issues shaping the institution of ownership in Nepal.

Short Notes

a) Rule of Law

The rule of law is the principle that every person and institution, including the government itself, is subject to the law and accountable to it. It means that no one is above the law, and that the law must be applied equally, fairly, and impartially to all.

The concept was given classic expression by the British jurist A. V. Dicey in his work Introduction to the Study of the Law of the Constitution (1885). Dicey identified three essential elements:

1. Supremacy of law — No person can be punished except for a breach of law established through the ordinary legal process. Arbitrary power and wide discretionary authority are excluded.
2. Equality before the law — All persons, including government officials, are subject to the same ordinary courts and the same law. There is no separate law or tribunal for officials.
3. Predominance of legal spirit — The general principles of the constitution (such as fundamental rights) are the result of judicial decisions determining the rights of private persons in particular cases, rather than mere declarations in a written document.

In the modern context, the rule of law also requires an independent judiciary, free and fair elections, transparency in governance, protection of fundamental rights, and the absence of discrimination. In Nepal, the rule of law is guaranteed by Article 20 of the Constitution of Nepal (right to justice) and is enforced through an independent judiciary headed by the Supreme Court. The rule of law is thus the foundation of a democratic and just society, protecting citizens against the arbitrary exercise of state power.

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b) Feminist Jurisprudence

Feminist jurisprudence is a school of legal philosophy that examines how the law has historically reflected and reinforced male perspectives, values, and interests, and it seeks to reform law so that it treats women and men as equals. It emerged as a distinct movement in the 1970s, though its roots go back to earlier feminist thought.

Its central claim is that the law is not neutral or objective; it is "gendered." Traditional legal concepts such as "reasonable man," the public/private divide, and the focus on rights in the public sphere have historically excluded or disadvantaged women. Feminist jurisprudence therefore asks how legal rules affect women differently and whether those rules rest on patriarchal assumptions.

Main strands include:

• Liberal feminism — Demands equal treatment and equal opportunity for women within the existing legal system; focuses on removing formal discrimination.
• Radical feminism — Argues that patriarchy is the fundamental form of oppression and that law itself is a tool of male domination; focuses on issues such as sexual violence and reproductive control.
• Socialist/Marxist feminism — Links women's subordination to class and economic structures, examining how capitalism and patriarchy together shape women's legal position.
• Cultural/difference feminism — Emphasises the different experiences and values of women and argues that law should take women's perspectives into account rather than forcing them into a male norm.
• Postmodern feminism — Rejects the idea of a single "woman's experience" and stresses the diversity of women across class, race, and culture.

In Nepal, feminist jurisprudence has influenced laws on citizenship rights, property and inheritance rights, domestic violence, sexual offences, and workplace equality, and it continues to press for reforms such as equal inheritance and safe abortion rights. Its central contribution is to make the legal system more inclusive, responsive, and just for women.

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c) Kinds of Jurisprudence

Jurisprudence is the science or philosophy of law. It studies the nature, sources, and functions of law. It is broadly divided into several kinds:

1. Analytical (Positivist) Jurisprudence — Concerned with the analysis of the law as it actually exists, its concepts, structure, and terminology. It studies law without reference to its moral or ideal content. Chief exponents: John Austin (command theory of law), Jeremy Bentham, and H. L. A. Hart (rule of recognition).

2. Historical Jurisprudence — Studies the origin and development of law and legal institutions over time. It holds that law grows out of the customs, traditions, and social conditions of a people. Chief exponents: Savigny and Sir Henry Maine (law develops from status to contract).

3. Sociological Jurisprudence — Studies law in relation to society and its needs. It treats law as a means of social engineering and social control. Chief exponents: Roscoe Pound (law as social engineering), Ehrlich (living law), and Max Weber.

4. Natural Law Jurisprudence — Holds that there is a higher, universal law derived from reason or nature, above man-made law. An unjust law is not true law (lex injusta non est lex). Chief exponents: St. Thomas Aquinas, Hugo Grotius, and John Finnis.

5. Realist Jurisprudence — Holds that law is what the courts actually decide, not what is written in statutes. It focuses on the behaviour of judges. Chief exponents: Oliver Wendell Holmes (American realism) and Karl Llewellyn.

6. Ethical and Sociological Schools — Ethical jurisprudence studies law in relation to justice and morality; sociological jurisprudence studies its relation to social welfare.

Thus, jurisprudence is studied from different angles — analytical, historical, sociological, natural, and realist — each giving a distinct understanding of law.

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d) Rights in rem and Rights in personam

Rights are classified on the basis of the persons against whom they are available into rights in rem and rights in personam.

Rights in rem (from Latin res, meaning "thing" or "the world") are rights available against the whole world. The duty corresponding to such a right lies upon all persons generally. They are negative in nature, as they require others only to abstain from interfering. For example, the right to ownership of a house, the right to reputation, and the right to life are rights in rem. If A owns a piece of land, every other person in the world is under a duty not to trespass on it. Such rights are protected against all persons and are sometimes called absolute rights or jus in rem.

Rights in personam (from Latin persona, meaning "person") are rights available against a specific person or persons only. The duty corresponding to such a right lies upon a definite individual or individuals. They are positive in nature, as they require the other party to do or refrain from doing a particular act. For example, if A lends Rs 50,000 to B, A has a right to recover that amount only from B; no third person is bound by it. Similarly, rights arising out of a contract, a lease, or a partnership are rights in personam. Such rights are also called relative rights.

Key differences:

In short, a right in rem is enforceable against all, while a right in personam is enforceable only against a particular person.

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e) Distributive and Corrective Justice

Justice is the supreme end of law. The Greek philosopher Aristotle classified justice into distributive justice and corrective justice, a classification still used in legal and political theory.

Distributive justice concerns the fair distribution of benefits, burdens, resources, and opportunities among the members of a society. It deals with what each person receives from the community — wealth, income, property, education, health care, and positions of authority. The guiding principle is proportional equality: each person should receive according to merit, need, or contribution. For example, progressive taxation, reservation or affirmative action for disadvantaged groups, and social security schemes are instruments of distributive justice. In Nepal, provisions such as free basic education, reservation for women, Dalits, and indigenous groups, and social security allowances reflect distributive justice.

Corrective justice (also called commutative or remedial justice) concerns the correction of wrongs and the restoration of a disturbed balance between parties. It applies when one person has wrongfully harmed another, and it seeks to restore the injured party to the position he or she would have been in but for the wrong. The guiding principle is equality of treatment between the parties, regardless of their social or economic status. For example, awarding compensation for negligence, damages for breach of contract, and punishment for a crime are instances of corrective justice. It is administered mainly through civil and criminal courts.

Key differences:

Thus, distributive justice aims at a fair share for all in society, while corrective justice aims at repairing the harm done by one person to another. Both are essential for a just legal order.

Nature and Significance of Public International Law in the Present International Order

1. Meaning and Definition

Public international law is the body of rules, principles and norms that governs the conduct of states and other subjects of international law in their mutual relations. Oppenheim defines it as "the law of nations, being the body of customary and conventional rules which are considered legally binding by civilised states in their intercourse with each other." Unlike municipal (domestic) law, it regulates relations between sovereign states rather than between individuals within a single state.

2. Nature of Public International Law

(a) Law properly so-called, but of a weak kind. The older view (Austin) treated international law as mere "positive morality" because it lacks a sovereign command backed by sanction. The modern view rejects this: states themselves regard these rules as binding, and breaches are treated as unlawful. Hence it is law, though its enforcement machinery is decentralised.

(b) Law among equals, not above them. It is based on the sovereign equality of states. No state is subject to the will of another; obligations arise from consent — express (treaties) or implied (custom).

(c) Sources. Article 38(1) of the Statute of the International Court of Justice lists the sources: international conventions, international custom, general principles of law, and, as subsidiary means, judicial decisions and the writings of publicists.

(d) Subjects. Traditionally only states were subjects. Today international organisations, and to a limited extent individuals, also enjoy rights and duties under international law.

(e) Absence of a central legislature, executive and judiciary. There is no world parliament; law-making is by consent. There is no world police; enforcement rests on collective action, countermeasures and sanctions. The ICJ has jurisdiction only with the consent of the parties.

(f) Sanctions. Though decentralised, sanctions exist: retorsion, reprisals, economic sanctions, expulsion from international organisations, and collective security measures under Chapter VII of the UN Charter.

3. Significance in the Present International Order

(a) Maintenance of international peace and security. The UN Charter prohibits the threat or use of force (Article 2(4)) except in self-defence (Article 51) or with Security Council authorisation. This is the cornerstone of the present order.

(b) Regulation of inter-state relations. It provides rules on diplomacy, treaties, recognition, state succession, territorial sovereignty and the law of the sea (UNCLOS), giving stability and predictability to international dealings.

(c) Peaceful settlement of disputes. The ICJ, arbitration and conciliation offer peaceful means of settling disputes, reducing resort to war.

(d) Protection of human rights. Instruments such as the UDHR (1948), ICCPR and ICESCR have made the individual a subject of international concern, limiting what a state may do to its own citizens.

(e) Regulation of trade and economic relations. The WTO, IMF and World Bank frameworks rest on international legal rules that govern trade, finance and development.

(f) Protection of the environment. Treaties on climate change, biodiversity and transboundary pollution reflect the growing role of international law in global commons.

(g) Promotion of cooperation. It provides the legal basis for international organisations, humanitarian law (Geneva Conventions), and collective action against terrorism, piracy and organised crime.

(h) Limitation of state sovereignty. Though sovereignty remains central, states increasingly accept limits — through treaties, international tribunals and human rights monitoring — in the interest of the common good.

4. Conclusion

Public international law is not a perfect legal system: it lacks a central authority and its sanctions are weak. Yet it is indispensable to the present international order. It restrains the arbitrary use of force, provides a framework for cooperation, protects human rights and the environment, and gives order and predictability to a world of sovereign but interdependent states. Its significance has grown with globalisation, and it remains the principal instrument for maintaining a rule-based international society.

Answer

Introduction

International law was originally regarded as the law governing relations between states only. The individual was treated merely as an object of international law. However, modern international law has recognised the individual as a subject of international law to a considerable extent. A subject of international law is an entity that possesses international rights and duties and has the capacity to enforce its claims at the international level.

Position of the Individual as a Subject of International Law

1. Rights conferred directly by international law

Modern international law confers certain rights directly on individuals, not through the medium of the state. Examples include:

• Human rights guaranteed under the Universal Declaration of Human Rights, 1948, and the International Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights, 1966.
• Protection under international humanitarian law (Geneva Conventions) during armed conflict.
• Rights of refugees under the Refugee Convention, 1951.
• Rights of women, children, migrant workers and persons with disabilities under various conventions.

2. Duties imposed directly on individuals

International law now imposes duties on individuals and punishes them for violations. The Nuremberg and Tokyo Tribunals held that individuals bear international criminal responsibility. This is continued through:

• Genocide Convention, 1948
• International Criminal Tribunal for the former Yugoslavia (ICTY) and Rwanda (ICTR)
• Rome Statute, 1998, establishing the International Criminal Court (ICC)

3. Procedural capacity (locus standi)

Individuals can now approach international forums in certain cases:

• Individual communication procedure under the First Optional Protocol to the ICCPR.
• European Court of Human Rights, Inter-American Court of Human Rights and African Court on Human and Peoples' Rights.
• Individual complaints to UN treaty bodies.

4. Individual responsibility in international law

Individuals can be held liable for piracy, war crimes, crimes against humanity, genocide and terrorism. This shows that international law directly binds individuals.

Limitations on the Individual's Status

Despite these developments, the individual's position is not equal to that of a state:

• States remain the primary and full subjects of international law.
• Individuals cannot make treaties or become members of the UN.
• In most cases, individuals can enforce rights only through their own state (diplomatic protection).
• Individual access to international courts is limited and depends on state consent.

Conclusion

Thus, in modern international law the individual possesses the status of a subject to a limited but growing extent. The individual is no longer a mere object; he/she enjoys international rights, bears international duties and has limited procedural capacity. However, the individual is still a derivative and partial subject, while the state remains the principal and full subject of international law.

Privileges and Immunities of Diplomats under the Vienna Convention on Diplomatic Relations, 1961

Introduction

The Vienna Convention on Diplomatic Relations, 1961 (VCDR) is the principal international treaty governing diplomatic relations. It was adopted on 18 April 1961 and entered into force on 24 April 1964. Nepal is a party to this Convention. The Convention codifies the customary international law rules relating to the privileges and immunities of diplomatic agents. The underlying rationale is expressed in the preamble — that such privileges and immunities are granted not for the personal benefit of individuals but to ensure the efficient performance of the functions of diplomatic missions as representing States.

Meaning of Privileges and Immunities

• Privileges are the special rights and facilities granted to diplomats beyond those available to ordinary persons (e.g., inviolability of premises, exemption from customs duty).
• Immunities are exemptions from legal process, jurisdiction, and obligations (e.g., immunity from criminal, civil and administrative jurisdiction).

Privileges and Immunities of Diplomatic Agents

1. Inviolability of the person (Article 29) The person of a diplomatic agent is inviolable. He shall not be liable to any form of arrest or detention. The receiving State must treat him with due respect and take all appropriate steps to prevent any attack on his person, freedom or dignity.

2. Inviolability of premises (Article 22) The premises of the mission are inviolable. Agents of the receiving State may not enter them except with the consent of the head of mission. The premises, furnishings, and means of transport are immune from search, requisition, attachment or execution. The receiving State has a special duty to protect the premises against intrusion or damage.

3. Inviolability of archives and documents (Article 24) The archives and documents of the mission are inviolable at all times and wherever they may be.

4. Immunity from jurisdiction (Article 31) A diplomatic agent enjoys immunity from the criminal, civil and administrative jurisdiction of the receiving State. However, immunity does not extend to:

• (a) a real action relating to private immovable property situated in the receiving State (unless held on behalf of the sending State for mission purposes);
• (b) an action relating to succession in which the diplomat is involved as executor, administrator, heir or legatee as a private person;
• (c) an action relating to any professional or commercial activity exercised by the diplomat outside his official functions.

5. Immunity from giving evidence (Article 31(2)) A diplomatic agent is not obliged to give evidence as a witness.

6. Exemption from taxation (Article 34) A diplomatic agent is exempt from all dues and taxes, personal or real, national, regional or municipal, except indirect taxes, taxes on private immovable property, and taxes on private income having its source in the receiving State.

7. Exemption from customs duties and inspection (Article 36) The receiving State shall permit entry, free of customs duty, of articles for the official use of the mission and for the personal use of the diplomat or his family. Personal baggage is exempt from inspection unless there are serious grounds to believe it contains prohibited articles.

8. Exemption from social security and personal services (Articles 33 and 35) A diplomat is exempt from social security provisions of the receiving State and from all personal, public and military services (e.g., jury duty, military service).

9. Freedom of movement and communication (Articles 26 and 27) The receiving State shall ensure freedom of movement and travel in its territory, subject to laws on prohibited zones. The official communication of the mission is inviolable, and the diplomatic bag cannot be opened or detained.

Immunities of Family Members and Staff

• Members of the diplomat's family forming part of his household enjoy the same privileges and immunities, subject to conditions in Article 37.
• Administrative and technical staff and their families enjoy immunity from criminal jurisdiction but not full civil immunity.
• Service staff enjoy immunity only in respect of acts performed in the course of their duties.

Critical Examination

Merits:

1. Functional necessity — The privileges and immunities are functional, not personal. They enable diplomats to perform their duties without interference from the receiving State.
2. Reciprocity — Since every State is both sending and receiving State, mutual respect for these rules is ensured.
3. Codification — The VCDR brought uniformity and certainty to a previously fragmented area of customary law.
4. Protection of State sovereignty — Diplomatic immunity protects the sovereignty and dignity of the sending State as represented by its diplomats.

Criticism and Limitations:

1. Abuse of immunity — Diplomats sometimes misuse immunity to escape criminal liability (e.g., traffic offences, smuggling). The Convention provides only for persona non grata (Article 9) and waiver of immunity (Article 32) as remedies, which are rarely invoked.
2. Inequality before law — Diplomatic immunity creates a class of persons above the ordinary law of the land, which conflicts with the principle of equality before law.
3. Weak enforcement — The Convention lacks a strong enforcement mechanism. Remedies depend on the goodwill of the sending State.
4. Diplomatic asylum — The Convention is silent on diplomatic asylum, leading to disputes in practice.
5. Tension with human rights — Immunity may prevent victims of diplomats' wrongs from obtaining civil redress in local courts.

Conclusion

The Vienna Convention on Diplomatic Relations, 1961 is a landmark achievement in international law. It balances two competing interests — the need to protect diplomats for the effective conduct of international relations and the sovereignty of the receiving State. While the privileges and immunities are essential for diplomatic functions, their abuse and the absence of strong enforcement mechanisms remain serious concerns. The remedy lies in strict observance of the Convention, responsible conduct by sending States, and timely use of persona non grata and waiver provisions.

Formal Processes of Conclusion of Treaties

A treaty is an international agreement between states, governed by written form and international law (Vienna Convention on the Law of Treaties, 1969 – VCLT). It is usually concluded in these stages:

1. Negotiation – representatives of the states, holding full powers, discuss and draft the terms.
2. Adoption of the text – by consent of all states participating, or by a two-thirds majority at an international conference (Art. 9 VCLT).
3. Authentication – the text is established as final, usually by signature, signature ad referendum or initialling (Art. 10).
4. Expression of consent to be bound – by signature, exchange of instruments, ratification, acceptance, approval or accession (Arts. 11–16). Ratification is the formal confirmation by the State's competent organ after signature.
5. Reservations – a state may, when signing or ratifying, exclude or modify the legal effect of certain provisions, unless the treaty prohibits it or the reservation defeats its object and purpose (Arts. 19–23).
6. Entry into force – as the treaty provides, or when all negotiating states have consented (Art. 24).
7. Registration and publication – with the UN Secretariat (Art. 102, UN Charter; Art. 80 VCLT).

Treaty-Making Power under the Constitution of Nepal

Article 279 of the Constitution of Nepal (2072) governs treaties:

• Treaties on peace and friendship, defence and strategic alliance, boundaries, and natural resources and their distribution (including water resources of a river basin) must be ratified, acceded to, accepted or approved by a two-thirds majority of the total members of both Houses of the Federal Parliament in a joint sitting.
• All other treaties require a simple majority of the members present in a joint sitting of both Houses.
• The Government must give the Parliament reasons and information about the treaty before it presents the proposal for ratification, and treaties not needing ratification (of a routine nature) may be concluded by the Government of Nepal, which must inform the Parliament.
• A treaty that affects the boundary of a province requires the consent of the concerned Provincial Assembly.
• The Federal Parliament makes laws on the procedure of treaty-making (Art. 279).

Legislative Provisions: Treaty Act, 2047

The Nepal Treaty Act, 2047 (1990) provides the procedure for treaties:

• The ministry concerned proposes the treaty, and the Council of Ministers approves the negotiation and grants full powers to the delegate.
• After negotiation and signature, treaties requiring ratification are submitted to the Parliament for approval.
• Ratification is made by the Government on behalf of the State, and the instrument is exchanged or deposited.
• Nepal Treaty Act, section 9, provides that where a treaty conflicts with national law, the treaty provisions prevail and the domestic law is treated as inoperative to that extent.
• Treaties are published in the Nepal Gazette.

Conclusion

Nepal follows the general international stages of treaty-making, while Article 279 of the Constitution and the Treaty Act, 2047 add democratic safeguards by requiring parliamentary approval, with a higher threshold for treaties of vital national interest.

Sources of International Law

The sources of international law are the materials and processes out of which rules of international law come into existence. Article 38(1) of the Statute of the International Court of Justice (ICJ) is generally accepted as the most authoritative statement of these sources. It lists:

1. International Conventions (Treaties) These are written agreements between states that create binding legal obligations. They may be law-making treaties (which lay down general rules, e.g. the Vienna Convention on Diplomatic Relations, 1961) or treaty-contracts (which deal with specific matters between particular states). Treaties are today the most important and most used source of international law.

2. International Custom Customary international law consists of rules that have emerged from the consistent and general practice of states, accepted by them as legally binding. It is discussed in detail below.

3. General Principles of Law These are principles recognised by civilised nations, such as good faith, res judicata, estoppel and reparation for wrongs. They are used mainly to fill gaps where neither treaty nor custom provides a rule.

4. Judicial Decisions and Teachings of Publicists Decisions of the ICJ and other tribunals, and the writings of highly qualified jurists, are subsidiary means for determining the rules of law. They are not themselves binding sources but help in identifying and interpreting the law.

5. Equity and Resolutions of International Organisations Although not expressly mentioned in Article 38, the general principles of equity and resolutions of the UN General Assembly and other international bodies also influence the development of international law.

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Customary International Law as a Source

Custom is one of the oldest and most important sources of international law. In the Lotus case (1927), the Permanent Court of International Justice observed that custom is the general practice accepted as law. Two elements are essential for a valid custom:

(a) State Practice (Usus) There must be consistent, general and uniform conduct of states over a period of time. Practice may take the form of diplomatic correspondence, legislation, judicial decisions of national courts, or the actual conduct of states. It need not be universal, but it must be sufficiently widespread, including among states specially affected by the matter. Duration is not fixed — long usage is usual, but a practice may become law quickly if it is general and representative.

(b) Opinio Juris (Subjective Element) The practice must be followed out of a sense of legal obligation, not merely from courtesy, habit or convenience. In the North Sea Continental Shelf cases (1969), the ICJ held that states must feel bound by the rule as a matter of law. Without opinio juris, a practice remains only a usage.

Nature and Effect Once a rule attains the status of customary law, it binds all states, including those that did not participate in its formation, except a state that has persistently objected to it from the beginning (the doctrine of the persistent objector). Customary rules are not written down, but many have been codified in treaties, e.g. the Vienna Convention on Diplomatic Relations, 1961, and the Vienna Convention on the Law of Treaties, 1969.

Examples Rules on diplomatic immunity, freedom of the high seas, prohibition of genocide, non-use of force, and the duty to settle disputes peacefully are well-recognised customary rules. Some of these have now acquired the status of jus cogens — peremptory norms from which no derogation is permitted.

Conclusion Thus, customary international law, built on consistent state practice and legal obligation, remains a vital source of international law. Even in an era of extensive treaty-making, custom continues to govern areas not covered by treaties and to bind all states generally.

Definition of Extradition

Extradition is the formal process by which one state (the requested state) surrenders a person accused or convicted of a crime to another state (the requesting state), which has jurisdiction to try or punish that person. It rests on treaty or reciprocity and is conducted through diplomatic channels and the courts.

Conditions for Extradition under the Extradition Act, 2070

The Extradition Act, 2070 (2014) of Nepal allows extradition on these conditions:

1. Treaty or reciprocity – extradition may be made under an extradition treaty with the requesting state, or, in the absence of a treaty, on the basis of a reciprocal assurance given by that state.
2. Fugitive offender – the person sought must be an accused, or convicted, fugitive offender of the requesting state, found in Nepal.
3. Extraditable offence and dual criminality – the act must be an offence punishable in both Nepal and the requesting state, with a minimum punishment (generally one year of imprisonment or more) as provided by the Act.
4. Proper request and documents – the request must be made through the diplomatic channel, accompanied by the warrant or conviction, a description of the offence and evidence, the law applicable and identification of the person. A competent court examines the request and the Government of Nepal decides on surrender.
5. Rule of specialty – the person is to be tried or punished only for the offence for which extradition was granted, and not surrendered onward to a third state without Nepal's consent.
6. Assurance on the death penalty – where the offence carries the death penalty, extradition requires an assurance that it will not be imposed or carried out.

Grounds on which extradition is refused:

• The person is a citizen of Nepal.
• The offence is political or of a military nature.
• The request is made to prosecute or punish the person for race, religion, sex, nationality or political opinion, or there is a risk of torture or unfair trial.
• The person has already been tried or acquitted for the same offence (double jeopardy), or the case is time-barred.

a) Refugees

A refugee is a person who has been forced to flee his or her country because of persecution, war or violence, and who cannot return home or is afraid to do so. The legal definition is given in the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol. Under Article 1A(2), a refugee is a person who:

• has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion;
• is outside the country of his nationality; and
• is unable or, owing to such fear, unwilling to avail himself of the protection of that country.

Key principles:

1. Non-refoulement (Article 33): No refugee shall be expelled or returned to a territory where his life or freedom would be threatened. This is the cornerstone of refugee protection.
2. Non-discrimination: Refugees must be treated without discrimination as to race, religion or country of origin.
3. Rights: Refugees enjoy rights such as access to courts, education, employment, identity papers and travel documents.

Distinction: A refugee differs from an internally displaced person (IDP), who remains inside his own country, and from an economic migrant, who moves voluntarily for economic reasons.

Nepal's position: Nepal is not a party to the 1951 Convention but hosts refugees (e.g., Bhutanese refugees) on humanitarian grounds and follows the principle of non-refoulement in practice.

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b) Jus Cogens

Jus cogens (Latin: "compelling law") means peremptory norms of general international law from which no derogation is permitted. It is defined in Article 53 of the Vienna Convention on the Law of Treaties, 1969 (VCLT):

"A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law."

Features:

1. Superior status: It stands at the top of the hierarchy of international law, above treaties and customary law.
2. Non-derogable: States cannot contract out of it, even by agreement.
3. Universally binding: It binds all states, whether or not they consent.
4. Can be modified only by a later norm of the same character (Article 64, VCLT).

Examples:

• Prohibition of genocide
• Prohibition of slavery and slave trade
• Prohibition of torture
• Prohibition of aggression
• Prohibition of racial discrimination and apartheid
• Principle of self-determination of peoples

Significance: Any treaty conflicting with jus cogens is void; obligations arising from it are owed to the international community as a whole (erga omnes), and serious breaches entail state responsibility.

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c) Territorial Jurisdiction

Territorial jurisdiction is the power of a state to exercise its legislative, executive and judicial authority over persons, property and events within its own territory. It is the most important and least controversial basis of jurisdiction in international law, flowing from the principle of state sovereignty and the equality of states.

Bases of territorial jurisdiction:

1. Subjective territorial principle: A state may exercise jurisdiction over acts that begin within its territory, even if completed abroad.
2. Objective territorial principle: A state may exercise jurisdiction over acts that are completed within its territory, even if begun abroad (e.g., a shot fired across a border causing death inside).

Scope:

• Land territory, internal waters, territorial sea (up to 12 nautical miles) and airspace over them.
• Ships flying its flag on the high seas and aircraft registered in that state are treated as extensions of territory.
• Diplomatic premises remain part of the territory of the receiving state, though inviolable.

Limitations:

• Immunities: Foreign heads of state, diplomats and foreign states enjoy immunity from local jurisdiction.
• International law limits: A state cannot exercise jurisdiction over acts committed wholly in another state's territory without a recognised connecting link (nationality, protective or universal principle).

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d) Exhaustion of Local Remedies

The rule of exhaustion of local remedies is a procedural requirement in international law which provides that before a state can bring an international claim on behalf of its national against another state, the injured individual must first exhaust all effective and available remedies in the courts and tribunals of the state alleged to be responsible.

Basis: It rests on the presumption that the respondent state is able to do justice to the injured alien through its own legal system, and that international protection is only a subsidiary remedy. It is reflected in Article 2(3) of the ICCPR (right to an effective remedy) and in diplomatic protection law (ILC Draft Articles on Diplomatic Protection, 2006, Article 14).

Conditions:

1. Remedies must be available, effective and adequate — not merely formal.
2. The individual must pursue them up to the highest court of the state concerned.
3. Only local (domestic) remedies need be exhausted, not international ones.

Exceptions:

• Remedies are unduly delayed or ineffective.
• No remedy is available in practice.
• The injury is a direct injury to the state itself (not to its national).
• The respondent state has waived the requirement.
• The claimant has no access to the courts.

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e) Arbitration

Arbitration is a method of peaceful settlement of international disputes in which the parties agree to submit their dispute to one or more arbitrators of their own choice, and agree in advance to accept the award as binding. It is a judicial or quasi-judicial method, distinguished from mere diplomatic methods (negotiation, mediation, conciliation) because it results in a legally binding decision.

Essential elements:

1. Consent of the parties — expressed through an arbitration agreement, treaty clause or compromis.
2. Selection of arbitrators by the parties themselves.
3. Application of law — international law, or equity (ex aequo et bono) if agreed.
4. Binding award — final and without appeal, though it may be nullified for excess of jurisdiction or corruption.

Leading examples:

• Alabama Claims Arbitration (1872) — USA v. Great Britain, Geneva.
• Permanent Court of Arbitration (PCA), The Hague (1899) — institutionalised arbitration.
• Iran–US Claims Tribunal (1981).

Advantages: Flexibility, party control over the tribunal, speed and confidentiality.

Disadvantages: High cost, difficulty in enforcing awards, and no strict precedent value.

Comparison with judicial settlement: In arbitration the parties choose the judges and the procedure; in the ICJ the court and procedure are fixed in advance.