Public International Law

Extradition is the formal process by which one state (the requested state), at the request of another state (the requesting state), surrenders to the requesting state a person found in its territory who is accused or convicted of a crime committed within the jurisdiction of the requesting state, so that the person may be prosecuted or punished. It rests on a treaty or reciprocal arrangement, since there is no general duty in international law to extradite absent a legal basis.

Under the Extradition Act, 2070 (2013), extradition is made in accordance with the Act when the following conditions are met:

1. Treaty or reciprocity – There must be an extradition treaty between Nepal and the requesting state, or the requesting state must have given a written assurance of reciprocity (Sec. 3).
2. Extraditable offence – The offence must be extraditable under the treaty, or, in the absence of a treaty, punishable under Nepali law by imprisonment of one year or more or a heavier punishment; dual criminality is required.
3. Not a political offence – The offence must not be political; however, murder, attempt to murder, kidnapping, hostage-taking, explosives-related offences and terrorism are not deemed political.
4. Not a Nepali citizen – A citizen of Nepal shall not be extradited; Nepal may prosecute him herself.
5. No double jeopardy – The person must not have been already acquitted or convicted and punished by a competent court, and the offence must not have been pardoned or amnestied.
6. Not time-barred – The offence must not be barred by limitation under Nepali law or the law of the requesting state.
7. Assurances – The requesting state must assure a fair trial, no torture or cruel, inhuman or degrading treatment, and that the death penalty will not be imposed or, if imposed, not executed.
8. Proper request through diplomatic channel – The request must come from a competent authority of the requesting state through the diplomatic channel to the Government of Nepal, and the offence must fall within Nepal's jurisdiction.
9. Not a purely military offence – Extradition is not granted for an offence of a purely military nature under military law.

Only after these conditions are satisfied and the procedure under the Act (including inquiry by the competent court) is followed does the Government of Nepal order extradition.

Why International Law is Often Considered "Weak Law" — [5 marks]

International law is law, but it is structurally different from municipal law. Its weakness lies not in the absence of rules but in the absence of a central authority to make, interpret and enforce them. The following points explain why it is called weak law:

1. No central legislature. There is no world parliament. Rules are made by treaties and customs, which bind a state only after its own consent. A state can refuse to sign a treaty or make reservations, so law-making is slow and voluntary.

2. No compulsory jurisdiction. The ICJ can decide a dispute only if the parties consent. States often make reservations excluding important matters from the Court's jurisdiction, so judicial settlement is not guaranteed.

3. Weak enforcement. There is no international police or bailiff. The UN Security Council may impose sanctions under Chapter VII, but enforcement depends on the political will of the permanent members, who may use the veto to protect themselves or their allies. Collective action is therefore selective and inconsistent.

4. No effective sanction for breach. In municipal law, breach brings punishment or compensation as of right. In international law, sanctions are largely self-help — retorsion, reprisals, countermeasures — which powerful states can use and weak states cannot. A violator may go unpunished for years.

5. Sovereign equality in theory, inequality in practice. All states are equal before the law, but power politics decides compliance. Great powers violate rules with impunity while small states like Nepal are held to them strictly.

6. Lack of hierarchy and certainty. Unlike a constitution, international law has no clear superior norm in practice; conflicting rules (e.g. use of force vs. self-defence) are often interpreted to suit the interests of the state concerned.

7. Non-binding character of many instruments. Declarations, resolutions and guidelines are "soft law" — morally and politically persuasive but not legally enforceable.

Conclusion. International law is weak because it lacks centralised legislation, compulsory adjudication and reliable enforcement; its strength depends on reciprocity, self-interest and world public opinion. Yet it is not lawless: states comply most of the time because they need order, reputation and predictability. The weakness is thus one of machinery, not of legal character — and it is gradually reduced through institutions like the WTO dispute settlement system and international criminal tribunals.

Jurisdiction in international law refers to the legal competence or authority of a state to make and enforce laws, and to exercise judicial and executive power over persons, property, and events. It is an attribute of state sovereignty — every sovereign state possesses jurisdiction within its own territory, but international law also recognises certain situations in which a state may exercise jurisdiction beyond its borders. Jurisdiction is thus the legal link between a state and the conduct or persons it seeks to regulate.

Types of jurisdiction in international law:

1. Territorial jurisdiction (primary and objective). This is the most fundamental basis of jurisdiction. A state has full jurisdiction over all persons, property, and events within its territory. It has two aspects:

• Subjective territorial jurisdiction — jurisdiction over acts commenced within the territory, even if completed abroad.
• Objective territorial jurisdiction — jurisdiction over acts commenced abroad but completed within the territory (the "effects doctrine," applied notably in Lotus and in antitrust/competition cases).

2. Nationality (personal) jurisdiction. A state may exercise jurisdiction over its own nationals wherever they may be. This applies to natural persons as well as corporations (registered or having the nationality of the state). It is based on the bond of allegiance between the individual and the state. Many states, including Nepal, exercise criminal jurisdiction over their nationals for offences committed abroad.

3. Passive personality jurisdiction. A state claims jurisdiction over offences committed abroad by a foreigner where the victim is a national of that state. This is a controversial basis, though it has gained acceptance in cases of terrorism and hijacking.

4. Protective (security) jurisdiction. A state may exercise jurisdiction over conduct committed abroad by foreigners that threatens its national security, territorial integrity, or vital interests — for example, counterfeiting its currency, espionage, or plotting treason. It is an exceptional but widely accepted basis.

5. Universal jurisdiction. Certain crimes are regarded as offences against the international community as a whole, and any state may exercise jurisdiction over them regardless of where the crime occurred or the nationality of the offender or victim. Classic examples are piracy on the high seas, genocide, crimes against humanity, war crimes, and torture. This basis rests on the idea that such crimes threaten the international legal order itself.

6. Jurisdiction over ships and aircraft (quasi-territorial). Vessels on the high seas and aircraft in flight are treated as extensions of the flag state's territory for jurisdictional purposes. The flag state exercises legislative and enforcement jurisdiction over them, subject to exceptions such as the right of hot pursuit and universal jurisdiction over piracy.

7. Enforcement jurisdiction. This concerns the actual power to enforce laws — to arrest, prosecute, or punish. Unlike prescriptive (legislative) jurisdiction, enforcement jurisdiction is strictly territorial: a state may not enforce its laws in another state's territory without consent. The Lotus case confirmed that a state cannot exercise enforcement jurisdiction abroad without a permissive rule of international law.

Conclusion. Jurisdiction in international law is not a single concept but a bundle of competences — prescriptive, adjudicative, and enforcement — each governed by different rules. While territorial and nationality jurisdiction remain the primary bases, protective, passive personality, and universal jurisdiction operate as recognised exceptions, reflecting the growing need for international cooperation against transnational and international crimes.

Custom is a source of international law that has developed from the consistent practice of states. It consists of two elements:

1. State practice — the actual conduct of states, repeated consistently over a period of time (usus).
2. Opinio juris — the belief that such practice is followed out of a legal obligation, not merely courtesy or convenience.

When these two elements are present, the practice crystallises into a binding rule of customary international law. Custom is thus unwritten law, evidenced by the practice of states rather than by a formal text.

Role of custom in the development of international law:

1. Primary and oldest source — Custom is the oldest and most fundamental source of international law. Much of international law, such as diplomatic immunity, freedom of the high seas, and the law of war, originated as customary rules.

2. Law-making through practice — Custom allows law to develop gradually from the actual behaviour of states. When states repeatedly act in a certain way and accept it as legally binding, a new rule emerges. For example, the principle of pacta sunt servanda and the immunity of diplomatic envoys are products of long-standing custom.

3. Filling gaps in treaty law — Customary rules apply to all states, including those that are not parties to a particular treaty. Custom therefore fills the gaps where treaty law is silent or where a state has not ratified a convention.

4. Basis for codification — Custom provides the raw material for codification. International conventions such as the Vienna Convention on Diplomatic Relations, 1961 and the Vienna Convention on the Law of Treaties, 1969 largely codified pre-existing customary rules. The International Law Commission relies heavily on customary practice when drafting conventions.

5. Binding on all states — Unlike treaties, which bind only the parties, customary rules are generally binding on all states of the international community, giving them a universal character.

6. Recognition by international tribunals — Article 38(1)(b) of the Statute of the International Court of Justice recognises "international custom, as evidence of a general practice accepted as law" as a source the Court shall apply. The ICJ has repeatedly relied on custom in cases such as the North Sea Continental Shelf case and the Nicaragua case.

Conclusion: Custom has played a vital role in the growth of international law. It remains a dynamic source that allows international law to develop in step with the changing needs and practices of states, and it continues to supplement and reinforce treaty law.

Answer (5 marks)

The UNSC's mandate and coercive powers

Under the UN Charter, the Security Council (UNSC) bears "primary responsibility for the maintenance of international peace and security" (Art. 24). To discharge this, Chapter VI gives it pacific means of settlement (negotiation, mediation, conciliation, judicial settlement), while Chapter VII arms it with coercive means: determination of threats to or breaches of the peace (Art. 39), provisional measures (Art. 40), non-military sanctions such as economic embargoes and sanctions committees (Art. 41), and military action by air, sea or land forces (Art. 42). These decisions bind all member states (Art. 25), and enforcement may be carried out through agreements under Art. 43 or by authorising coalitions, as in Korea (1950), the Gulf War (1990) and Libya (2011).

Has the goal been achieved? — Partial success only

Arguments that it has partly succeeded:

• It has prevented a third world war and managed several inter-state conflicts through ceasefire resolutions, peacekeeping operations (Suez 1956, Congo, Namibia, Cambodia, East Timor) and sanctions regimes (Rhodesia, South Africa, Iraq).
• It has developed tools not expressly written in the Charter — peacekeeping, sanctions committees, ad hoc tribunals (ICTY, ICTR) — and has addressed new threats such as terrorism (Res. 1373) and proliferation of WMDs (Res. 1540).

Arguments that it has failed to achieve the Charter's vision:

1. Cold War paralysis: The veto (Art. 27) deadlocked the Council for decades, so it could not act in Hungary (1956), Czechoslovakia (1968), Vietnam, Bangladesh (1971) or Afghanistan (1979).
2. Selective and politically biased enforcement: Action was swift in Kuwait and Libya but absent or delayed in Rwanda (1994), Srebrenica (1995), Darfur, Syria and Palestine. The Council's silence on the veto-holders' own allies shows double standards.
3. Veto as an instrument of impunity: Permanent members use or threaten the veto to shield themselves and their clients, defeating the collective security design of Arts. 39–42.
4. Structural imbalance: The 1945 composition (5 permanent, 10 elected members) no longer reflects today's world; demands for reform (G4, African Union, Uniting for Consensus) remain unmet.
5. Weak enforcement: Art. 43 agreements were never concluded; the Military Staff Committee is dormant; sanctions are often violated; peacekeepers are under-resourced and lack robust mandates.
6. New conflicts beyond its reach: Intra-state wars, proxy wars, cyber and hybrid threats, and non-state armed groups expose the limits of a state-centric Council.

Conclusion

The UNSC has achieved its goal only partially. It has contained major inter-state wars and built useful peacekeeping and sanctions machinery, but the veto, great-power politics, selectivity and outdated composition mean it has not fully realised the Charter's promise of collective security. Genuine reform — expansion of membership, restraint on the veto (especially in mass-atrocity situations) and stronger enforcement mechanisms — is essential if the UNSC is to fulfil its envisioned role.

Advisory Opinion of the International Court of Justice

Meaning. An advisory opinion is the opinion given by the International Court of Justice (ICJ) on a legal question referred to it by certain authorised international bodies. It is not a judgment in a contentious case between states; it is advice on a point of law. The Court's power is conferred by Article 65 of the Statute of the ICJ, which provides that the Court may give an advisory opinion on any legal question at the request of whatever body may be authorised by or in accordance with the Charter of the United Nations.

Who may request. Under Article 96 of the UN Charter, two categories of bodies may seek an advisory opinion:

1. The General Assembly and the Security Council may request an opinion on any legal question.
2. Other organs of the UN and specialised agencies, when authorised by the General Assembly, may request opinions on legal questions arising within the scope of their activities (e.g. ECOSOC, ILO, WHO, UNESCO, WHO).

Nature and features.

• The opinion is advisory, not binding — it carries no direct legal obligation on the requesting body or on states. It has moral and legal weight rather than binding force.
• The Court may decline to give an opinion if the question is not legal, is vague, or if giving it would exceed its judicial function.
• The Court follows its contentious procedure (written and oral proceedings, Article 66) but delivers the opinion in open court.
• Judges may append separate or dissenting opinions.

Leading examples.

• Conditions of Admission of a State to Membership in the UN (1948)
• Reservations to the Genocide Convention (1951)
• Certain Expenses of the United Nations (1962)
• Legality of the Threat or Use of Nuclear Weapons (1996)
• Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (2004)
• Kosovo Declaration of Independence (2010)
• Chagos Archipelago (2019)

Role in the Development of International Law

Yes — the advisory opinion of the ICJ plays an important role in the development of international law, for the following reasons:

1. Clarification of ambiguous rules. The Court interprets treaties and customary rules, removing uncertainty. The Reservations to the Genocide Convention opinion clarified the law on reservations to multilateral treaties.
2. Progressive development of law. In the Nuclear Weapons opinion (1996), the Court held that the threat or use of nuclear weapons is generally contrary to the rules of international law, and that there exists an obligation to pursue nuclear disarmament in good faith — a significant contribution to the law on the use of force.
3. Authoritative statement of custom. Advisory opinions often declare the existence and content of customary international law, guiding states and later codified in treaties.
4. Guidance to UN organs. They help the General Assembly and Security Council act lawfully, and influence subsequent resolutions and conventions.
5. Influence on state practice and courts. Though non-binding, advisory opinions are widely cited by national courts, arbitral tribunals and the International Law Commission, and shape state conduct.
6. Codification support. They assist bodies like the ILC in drafting conventions (e.g. on diplomatic law, law of treaties).
7. Peaceful settlement. They provide a legal basis for resolving disputes without resort to force, promoting the peaceful settlement of disputes under Article 33 of the Charter.

Conclusion. The advisory opinion is not binding, yet it is a powerful instrument. Through interpretation, clarification and progressive development of legal rules, the ICJ's advisory jurisdiction has significantly contributed to the growth of modern international law.

Extradition Act 2070 (2013) of Nepal and the Maxim aut punire aut dedere — 5 marks

1. The maxim and its meaning

Aut punire aut dedere means "either punish or surrender." It is the foundation of extradition: a state on whose territory a fugitive is found must either try and punish the offender itself or hand the person over to the requesting state. The purpose is to close the net around fugitive offenders so that no state becomes a safe haven. Nepal gives effect to this maxim mainly through the Extradition Act, 2070 (2013).

2. Main features of the Extradition Act 2070

• Extraditable offences: Section 3 allows extradition for offences punishable by imprisonment of one year or more under the law of Nepal or of the requesting state, and for offences covered by a treaty to which Nepal is a party. Petty offences are excluded.
• Treaty-based and reciprocity-based: Extradition may be granted where a bilateral/multilateral treaty exists, or on the basis of reciprocity (assurance that Nepal's request will be honoured in return).
• Procedure: A request is made through the diplomatic channel to the Ministry of Foreign Affairs, which forwards it to the Ministry of Home Affairs; the case goes to the District Court for inquiry, and the final decision rests with the Government of Nepal.
• Grounds for refusal: Section 6 bars extradition for political offences, offences of a military nature, Nepali citizens (Nepal follows the principle of non-extradition of its own nationals and instead prosecutes them), cases already tried and punished, and where there is a risk of double jeopardy or unfair trial.
• Guarantees: The requesting state must assure that the extradited person will not be re-extradited to a third state and will not be punished for an offence other than the one for which extradition was granted (rule of specialty).
• Time limit: A person taken into custody must be produced before the court within 24 hours, and the inquiry must be completed within 60 days.

3. Effectiveness in closing the net around offenders

Positive aspects:

• It provides a clear statutory basis where earlier extradition depended only on treaties and the 1988 Act, removing legal vacuum.
• It fills the gap for treaty-less states through the reciprocity clause, so offenders cannot escape merely because no treaty exists.
• It harmonises Nepali law with international practice (non-extradition of nationals, political offence exception, specialty rule), making Nepal a credible partner in mutual legal assistance.
• It empowers Nepal to demand the return of its own offenders from abroad on the same footing, thereby discouraging impunity.

Limitations

• Non-extradition of nationals means many Nepali offenders are not surrendered but prosecuted at home; in practice such prosecution is often weak or delayed, so the net is not fully closed.
• The political offence exception is broad and undefined, and can be misused to shield offenders.
• Weak enforcement machinery, resource constraints, and slow court inquiry reduce practical effectiveness.
• Nepal has extradition treaties with only a limited number of countries, so reciprocity often remains untested.
• Human rights and fair trial concerns in the requesting state may justify refusal, which offenders exploit.

4. Conclusion

The Extradition Act 2070 substantially implements the maxim aut punire aut dedere by creating a legal framework to punish or surrender fugitives, and it has strengthened Nepal's ability to deny safe haven. However, its effectiveness is diluted by the absolute bar on extraditing nationals, the vague political offence exception, weak enforcement, and limited treaty coverage. Full effectiveness requires wider treaty networks, clearer definitions, and credible domestic prosecution of nationals who are not surrendered.

Treaty-Making Process in Nepal (5 marks)

1. Legal framework

• Article 51(b)(3) of the Constitution of Nepal (2072) directs the State to conduct foreign policy on the basis of international law, and Article 51(b)(4) requires that treaties be concluded only in the national interest.
• Article 279 of the Constitution lays down the procedure for ratification of, accession to, and approval of treaties.
• The Nepal Treaty Act, 1990 (2047 BS) is the ordinary law that operationalises Article 279 and prescribes the detailed procedure.

2. Treaty-making procedure

(a) Initiation and negotiation — The Ministry of Foreign Affairs, in consultation with the concerned ministry and the Council of Ministers, negotiates the draft treaty through diplomatic channels or plenipotentiaries.

(b) Approval by the Council of Ministers — Before signature, the Council of Ministers approves the draft. Under Section 3 of the Nepal Treaty Act, 1990, a treaty may be signed only after such approval.

(c) Ratification, accession or approval — Under Article 279(1), certain treaties must be ratified, acceded to or approved by the House of Representatives by a two-thirds majority of its members present and voting. These are treaties relating to:

1. Peace and friendship;
2. Defence and strategic alliance;
3. Boundaries of Nepal;
4. Natural resources and the distribution of their uses;
5. Trade and transit;
6. Any other matter specified by law.

(d) Simple treaties — Treaties not falling in the above list may be ratified, acceded to or approved by the Council of Ministers itself (Article 279(2)), and are only reported to Parliament.

(e) Ratification by the President — After parliamentary or Cabinet approval, the treaty is formally ratified by the President of Nepal on behalf of the State.

(f) Publication and enforcement — Under Section 9 of the Nepal Treaty Act, 1990, a ratified treaty is published in the Nepal Gazette and thereafter its provisions prevail over inconsistent domestic laws (Section 9(2)), except that they cannot override the Constitution itself.

3. Conclusion Thus, treaty-making in Nepal is a blend of executive negotiation and legislative control, ensuring that important treaties receive democratic approval while ordinary treaties are handled by the Cabinet — a system designed to protect national sovereignty and the national interest.

Short Notes (any three)

a) Clausula rebus sic stantibus

Clausula rebus sic stantibus is a doctrine of international law meaning "things so standing" or "while matters remain as they are." It holds that a treaty remains binding only so long as the fundamental circumstances that existed at the time of its conclusion continue substantially unchanged. If a fundamental change of circumstances occurs which was not foreseen by the parties, a party may invoke this doctrine to suspend or terminate the treaty.

Conditions for its application:

1. The change must be of a fundamental character, not a minor or incidental change.
2. The change must relate to circumstances that formed an essential basis of the parties' consent to be bound.
3. The change must have the effect of radically transforming the extent of obligations still to be performed.
4. The doctrine cannot be invoked for a treaty that fixes a boundary, nor where the change results from the wrongful act of the party invoking it.

It is codified in Article 62 of the Vienna Convention on the Law of Treaties, 1969, though as an exceptional remedy. It reflects the idea that treaties are not immutable and must adapt to changed realities, but it is applied restrictively to preserve the stability of treaty relations (pacta sunt servanda).

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b) Consular immunities and privileges

Consular immunities and privileges are the special rights and exemptions granted to consular officers and consular posts to enable them to perform their functions independently. They are governed mainly by the Vienna Convention on Consular Relations, 1963, and by bilateral consular agreements.

Main privileges and immunities:

1. Inviolability of consular premises — the premises, archives and documents are inviolable and cannot be entered or searched by the receiving State except in cases of emergency with consent.
2. Protection of consular officers — the receiving State must treat them with due respect and take all appropriate steps to prevent any attack on their person, freedom or dignity.
3. Immunity from jurisdiction — consular officers enjoy immunity from the civil and administrative jurisdiction of the receiving State in respect of acts performed in the exercise of consular functions, and limited immunity from criminal jurisdiction except for grave crimes.
4. Exemption from taxation and customs duties — consular officers are exempt from direct taxes and customs duties on articles for official and personal use.
5. Freedom of communication — the consular post may communicate freely with its government and other consular posts using official means, including couriers and diplomatic bags.
6. Exemption from personal services — they are exempt from military service, jury duty and other compulsory public services.

These privileges are functional in nature — they exist to ensure the efficient discharge of consular duties, not for the personal benefit of the officer. They are distinct from and narrower than diplomatic immunities, which are more extensive.

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d) Exhaustion of local remedy

The doctrine of exhaustion of local remedies is a rule of 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 local remedies in the State alleged to be responsible for the injury.

Essence of the doctrine:

1. The injured alien must pursue all judicial and administrative remedies available in the host State's legal system.
2. Only after these remedies have been exhausted without adequate redress can the home State exercise diplomatic protection.
3. The rule gives the host State an opportunity to redress the wrong through its own legal machinery and respects its sovereignty.

Exceptions to the doctrine:

1. When local remedies are not available or are ineffective.
2. When there is undue delay in the local proceedings.
3. When the injury is caused directly to the State itself (not to its national).
4. When the local courts lack jurisdiction or there is no possibility of obtaining redress.

The doctrine is well established in international law and has been recognised in several decisions of the International Court of Justice, such as the Interhandel and Elettronica Sicula (ELSI) cases. It is closely linked with the law of State responsibility and diplomatic protection.

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e) Termination of treaty

Termination of a treaty means the ending of the treaty's binding force on the parties. Once terminated, the treaty ceases to be a source of obligations and rights for the parties, though certain provisions may survive.

Modes of termination:

1. By consent of the parties — the parties may agree to terminate the treaty, either expressly or by concluding a new treaty on the same subject.
2. By expiry of time — where the treaty is concluded for a fixed period, it terminates automatically on the expiry of that period.
3. By fulfilment of purpose — when the object of the treaty is fully achieved, it may terminate.
4. By material breach — a material breach by one party entitles the other party to terminate or suspend the treaty (Article 60, VCLT).
5. By fundamental change of circumstances — under the doctrine of clausula rebus sic stantibus (Article 62, VCLT).
6. By supervening impossibility — where performance becomes impossible due to permanent disappearance of an object essential to the treaty (Article 61, VCLT).
7. By outbreak of war — generally, bilateral treaties are suspended or terminated, though multilateral treaties on humanitarian law continue.
8. By denunciation or withdrawal — where the treaty itself provides for it or it is implied by the nature of the treaty.

Termination must be effected through the procedure laid down in Articles 65–68 of the VCLT, and a party invoking a ground of termination must notify the other parties. The Vienna Convention on the Law of Treaties, 1969 is the principal legal framework governing termination.

Definition of International Law

International law (also called the law of nations or public international law) may be defined as the body of rules and principles that governs the conduct of sovereign states and other subjects of international law in their mutual relations. Oppenheim defines it as "the body of customary and conventional rules which are considered legally binding by civilised states in their intercourse with each other." In the words of J.G. Starke, it is "that body of law which is composed for its greater part of the principles and rules of conduct which states feel themselves bound to observe, and therefore, do commonly observe in their relations with each other." Its principal sources are international conventions (treaties), international custom, general principles of law recognised by civilised nations, and judicial decisions and teachings of publicists as subsidiary means (Article 38 of the Statute of the International Court of Justice).

Relationship between International Law and Municipal Law

Two main theories explain this relationship:

1. Monism — International law and municipal law are parts of one single legal order; international law is superior and municipal law derives its validity from it. No separate transformation is needed.
2. Dualism — The two are distinct legal systems, differing in sources, subjects and sanction. International law binds states; municipal law binds individuals. For international law to apply within a state, it must be "transformed" or "incorporated" into municipal law by the state itself.

In practice, states follow a middle path. Some constitutions adopt a monist position (e.g., the Netherlands), while others require transformation by legislation. Nepal follows the transformation approach, and the Nepal Treaty Act, 1991 (2047 B.S.) is the clearest expression of it.

The Nepal Treaty Act, 1991

The Act lays down the procedure and effect of treaties in Nepal:

• Section 3 — A treaty must be ratified, acceded to or approved by the House of Representatives by a simple majority, except in four cases where a two-thirds majority is required: (a) treaties on peace and friendship; (b) treaties relating to boundaries of Nepal; (c) treaties concerning the use of natural resources or the sharing of water with a neighbouring country; and (d) treaties delegating sovereignty or transferring any part of Nepal's territory to another state.
• Section 4 — A treaty may be ratified without parliamentary approval if it concerns a matter of ordinary administration or is of a routine nature.
• Section 9 — "In case of conflict between a provision of a treaty to which Nepal is a party and a provision of a municipal law, the provision of the treaty shall prevail." This is the key provision. It gives treaties a superior position over inconsistent domestic legislation, subject to the requirement that the treaty has been duly ratified and published in the Nepal Gazette.
• Section 9 also provides that no provision of a treaty shall be applied if it is inconsistent with the Constitution of Nepal; in such a case the treaty must be amended or the Constitution amended as required.

Relationship in the Light of the Act

• Transformation, not automatic incorporation — A treaty becomes operative in Nepal only after ratification/approval and publication; hence the dualist element is retained.
• Supremacy of treaties over ordinary statutes — Once transformed, a treaty prevails over conflicting municipal law (Section 9). This is a monist feature within a dualist framework.
• Supremacy of the Constitution — The Constitution stands above both; a treaty inconsistent with it cannot be applied. Thus the hierarchy is: Constitution > Treaty > Ordinary Municipal Law.
• Parliamentary control — The requirement of ratification by the House of Representatives ensures democratic scrutiny of treaties affecting sovereignty, boundaries, natural resources and peace.

Conclusion

International law and municipal law are not rivals but complementary systems. Nepal resolves their relationship through the Nepal Treaty Act, 1991, which requires transformation of treaties into municipal law but, once transformed, gives them supremacy over ordinary statutes, while preserving the paramountcy of the Constitution. This balanced approach reflects the modern trend of harmonising international obligations with national sovereignty.

Recognition

Recognition is the formal acknowledgement by an existing state (or group of states) that another entity possesses the essential attributes of statehood — a permanent population, a defined territory, a government, and the capacity to conduct international relations — and that it is therefore entitled to be treated as a sovereign state and a subject of international law. It is a unilateral act of the recognising state, though it may be collective when made by an international organisation or a group of states.

Recognition is declaratory in nature in the sense that it does not create a state but confirms its existence; yet it is constitutive in practice because an unrecognised entity cannot fully exercise its rights and duties in the international community.

Types of Recognition

1. Recognition of a State and Recognition of a Government

• Recognition of a state is granted when a new entity emerges as a sovereign state (e.g., by secession or dissolution) and is accepted as such permanently, irrespective of changes in its government.
• Recognition of a government is granted when a new government comes to power in an already recognised state, usually through unconstitutional means such as a coup or revolution. It concerns the legitimacy of the ruling authority, not the state itself. The Estrada Doctrine (Mexico, 1930) holds that states should not pass judgment on foreign governments, only continue diplomatic relations.

2. De Facto and De Jure Recognition

• De facto recognition is provisional, factual and revocable. It is granted when the new entity has effective control over territory and population but its permanence is doubtful. It permits limited dealings — trade, humanitarian contact — but not full diplomatic relations. Example: Britain's de facto recognition of the Soviet Union in 1921.
• De jure recognition is definitive, legal and generally irrevocable. It is granted when the entity fulfils all requirements of statehood and its stability is established. It enables full diplomatic relations, treaty-making and immunity. Example: Britain's de jure recognition of the Soviet Union in 1924.

3. Express and Implied Recognition

• Express recognition is made by a formal declaration, statement, note or treaty.
• Implied recognition arises from conduct, such as entering into a bilateral treaty, exchanging diplomatic envoys, or voting for the entity's admission to the United Nations. Mere informal contact or humanitarian aid does not amount to implied recognition.

4. Individual and Collective Recognition

• Individual recognition is granted by a single state acting alone.
• Collective recognition is granted by several states together or by an international organisation. Admission to the UN under Article 4 of the Charter is a leading example.

5. Conditional Recognition

Recognition may be granted subject to conditions, such as respect for human rights or settlement of boundary disputes. Such conditions are not legally binding unless accepted by the recognised entity.

Legal Significances of Recognition

1. Conferment of international personality — The recognised entity acquires the capacity to enjoy rights and bear duties under international law, including the right to sue and be sued before international tribunals.
2. Capacity to make treaties — Only a recognised state can validly conclude treaties and become a party to multilateral conventions.
3. Right to diplomatic relations — Recognition enables the exchange of diplomatic missions and the enjoyment of diplomatic privileges and immunities.
4. Sovereignty and territorial integrity — Recognition protects the state's boundaries and sovereignty against unlawful interference by other states.
5. Immunity from jurisdiction — A recognised state enjoys sovereign immunity before the courts of other states; an unrecognised entity generally does not.
6. Access to international organisations — Recognition is a precondition for membership of the UN and other international bodies.
7. Effect on municipal law — Courts of the recognising state will give effect to the laws and acts of a recognised state; acts of an unrecognised entity may be treated as nullities.
8. Political and economic consequences — Recognition opens the door to foreign aid, trade, investment and diplomatic protection of nationals abroad.
9. Evidence of statehood — Recognition, especially collective recognition, serves as strong evidence that the entity satisfies the Montevideo criteria of 1933.
10. Non-recognition as a sanction — Withholding recognition can be used to condemn unlawful acts such as aggression or illegal annexation, as in the Stimson Doctrine of 1932.

Conclusion

Recognition is thus both a political act and a legal institution. It does not create a state in theory, but in practice it determines whether an entity can fully participate in international life. The distinction between de facto and de jure, and between recognition of a state and of a government, remains central to the law of recognition and continues to shape contemporary disputes over statehood.

Introduction

The Vienna Convention on Consular Relations, 1963 (VCCR), in force since 1967, is the main treaty on consular relations. It gives consular officers the privileges and immunities they need to perform consular functions without interference from the receiving State. Nepal is a party to it. Consular immunities are functional, and narrower than the diplomatic immunities of the Vienna Convention on Diplomatic Relations, 1961.

Privileges and immunities of the consular post (Articles 31 to 39)

1. Inviolability of consular premises (Art. 31). The receiving State's authorities may not enter the part of the premises used for consular work without the consent of the head of post, except in case of fire or other disaster that requires prompt protection. The State has a duty to protect the premises from intrusion or damage.
2. Exemption of premises from taxation (Art. 32).
3. Inviolability of consular archives and documents (Art. 33) at all times and wherever they are.
4. Freedom of movement (Art. 34) and freedom of communication (Art. 35), including by diplomatic or consular courier and in code or cipher. The consular bag shall not be opened or detained (Art. 35(3)); if there is serious reason to believe that it contains something other than official correspondence, the receiving State may ask for it to be opened in its presence or returned.
5. Communication with nationals of the sending State (Art. 36). Consular officers may contact and visit their nationals. If a national is arrested or detained, the receiving State must inform the consular post without delay if the national so requests, and allow the officer to visit him.
6. Use of the flag and emblem (Art. 29) and exemption from taxes and customs duties on fees and on articles for official use (Arts. 39, 50).

Personal privileges and immunities of consular officers

1. Personal inviolability (Art. 41). Consular officers shall not be liable to arrest or detention pending trial except in the case of a grave crime and pursuant to a decision by the competent judicial authority. They shall not be committed to prison or subjected to any other form of restriction on their personal freedom except in execution of a final judicial decision.
2. Immunity from jurisdiction (Art. 43). Consular officers and employees are not amenable to the jurisdiction of the judicial or administrative authorities of the receiving State in respect of acts performed in the exercise of consular functions. This is functional immunity. The exceptions are: (a) civil actions arising out of a contract concluded by a consular officer in which he did not contract expressly or impliedly as an agent of the sending State; and (b) civil actions by a third party for damage from an accident in the receiving State caused by a vehicle, vessel or aircraft.
3. Liability to give evidence (Art. 44). Members of the post may be called to attend as witnesses. A consular employee shall not decline to give evidence, but a consular officer may decline to give evidence on matters connected with his functions or to produce official correspondence and documents, and may refuse to give evidence as an expert witness on the law of the sending State.
4. Waiver (Art. 45). The sending State may waive any of the privileges and immunities of a member of the post. Waiver must in all cases be express and, except under Art. 45(3), communicated to the receiving State in writing. Waiver of immunity from jurisdiction in civil or administrative proceedings does not imply waiver as to the measures of execution of the judgment, for which a separate waiver is needed.
5. Exemption from registration of aliens and residence permits (Art. 46), from work permits (Art. 47), from social security provisions (Art. 48) and from taxation on salaries and emoluments (Art. 49).
6. Exemption from customs duties and inspection (Art. 50) on articles for personal use, including those for establishment, and on personal baggage (subject to the conditions of the Article).
7. Exemption from personal services and contributions (Art. 52) and from military obligations.

Duration (Art. 53)

Privileges and immunities begin when the person enters the territory of the receiving State to take up his post, or from his taking up duties if already there, and normally end when he leaves or on the expiry of a reasonable period to do so. Immunity for acts performed in the exercise of consular functions continues without limit of time.

Honorary consular officers (Chapter III)

Honorary consuls enjoy a narrower set of privileges: inviolability of archives (if kept separate), exemption from some taxes and a limited personal immunity in respect of official acts.

Comparison with diplomatic immunity

Conclusion

The VCCR balances the sending State's need for free consular work against the sovereignty of the receiving State. The receiving State may declare a consular officer persona non grata (Art. 23) if he abuses his position.

If international disputes are not settled through peaceful (amicable) means, they are settled through coercive or compulsive means — methods involving pressure, force or compulsion applied by a state or group of states against another to make it accept a settlement. These are also called non-amicable or forcible means. They are broadly of two types: (i) those not involving the use of armed force (retorsion, reprisals, embargo, boycott, pacific blockade, severance of diplomatic relations), and (ii) those involving the use of armed force (intervention, war, and collective action under the UN Charter).

A. Coercive means not involving the use of armed force

1. Retorsion — A lawful but unfriendly act of one state against another in retaliation for a similar unfriendly act. It is always legal because the act itself is lawful. Examples: withdrawing diplomatic privileges, expelling diplomats, imposing trade restrictions, reducing tariffs or refusing aid. It is a tit-for-tat measure.

2. Reprisals — Otherwise unlawful acts of one state against another, justified as a counter-measure against the latter's prior illegal act. Examples: seizure of ships or property, freezing assets, or (in extreme cases) limited military action. Reprisals are lawful only if: (a) there is a prior illegal act by the other state; (b) peaceful means have first been tried and failed; and (c) the measure is proportionate. Under modern international law, reprisals involving the use of force are prohibited (Article 2(4) of the UN Charter), except in self-defence.

3. Embargo — The detention or seizure by a state of ships or goods of another state lying in its ports, or a ban on trade with a particular state. It is a form of reprisal used to exert economic pressure. Example: the US embargo on Cuba.

4. Boycott — Suspension or refusal of trade and commercial relations with a state, or refusal to buy its goods. It may be imposed by one state or collectively by several states or international organisations. Example: the Arab boycott of Israel; UN sanctions against South Africa during apartheid.

5. Pacific blockade — A blockade of the ports of a state by naval forces without a formal declaration of war. It is a coercive measure short of war, used to cut off the target state's trade and force it to submit. Example: the blockade of Greece by the Great Powers in 1886.

6. Severance of diplomatic relations — Withdrawal of one's ambassador and diplomatic mission from the offending state. It is a strong expression of displeasure and a coercive measure, though it does not by itself settle the dispute. Example: India's recall of its High Commissioner from Pakistan after certain incidents.

7. Withdrawal of recognition, suspension of treaties, and suspension of membership of international organisations — These are also coercive measures short of force. Example: expulsion or suspension of a member from the UN or the Commonwealth.

B. Coercive means involving the use of armed force

1. Intervention — Interference by one state in the internal or external affairs of another by threat or use of force. It is generally prohibited under international law (principle of non-intervention), except in cases such as self-defence, humanitarian intervention (controversial), or intervention by invitation of the lawful government. Example: the US intervention in the Dominican Republic (1965).

2. War — The most extreme coercive means. War may be declared to compel the other state to accept terms. However, under Article 2(4) of the UN Charter, member states must refrain from the threat or use of force against the territorial integrity or political independence of any state. War is lawful only in self-defence under Article 51 or when authorised by the Security Council.

3. Collective action under the UN Charter — Chapter VII of the UN Charter empowers the Security Council to take enforcement action against a state whose act amounts to a threat to or breach of the peace or an act of aggression. Such action includes:

   • Article 41 — measures not involving armed force: economic sanctions, embargoes, interruption of rail, sea, air, postal, telegraphic and radio communications, and severance of diplomatic relations.
   • Article 42 — measures involving armed force: blockade, demonstration, and other military operations by UN forces. Examples: sanctions against Iraq (1990), Libya (2011), North Korea; the Korean War (1950) and the Gulf War (1991) under UN authorisation.

4. Self-defence — Under Article 51, a state may use armed force in individual or collective self-defence if an armed attack occurs, until the Security Council takes measures to maintain peace and security. Example: Israel's action in 1967; India's response in 1971.

5. Retortion and reprisals in armed form — Historically, armed reprisals (e.g., the bombardment of Corfu in 1923) were used, but they are now considered unlawful under the Charter.

Conclusion

Thus, when peaceful means fail, states resort to coercive means — retorsion, reprisals, embargo, boycott, pacific blockade and severance of diplomatic relations on the one hand, and intervention, war, self-defence and collective enforcement action under Chapter VII of the UN Charter on the other. Modern international law, however, strongly discourages forcible measures: Article 2(4) prohibits the use of force, and Article 33 obliges parties to seek a peaceful settlement first. Coercive means are therefore lawful only in exceptional circumstances — self-defence, Security Council authorisation, or measures short of force — and the general trend of contemporary international law is to prefer peaceful settlement through negotiation, mediation, conciliation, arbitration and judicial settlement.

Importance and Function of Nationality

Nationality is the legal bond between an individual and a State, by virtue of which the individual owes allegiance to the State and, in return, is entitled to its protection. It is distinct from citizenship in the strict sense — nationality denotes membership of a nation-State in international law, while citizenship denotes the full political and civil status within the domestic legal order. In practice, the two terms are often used interchangeably.

Importance of Nationality

1. International recognition and protection — Nationality identifies the State to which a person belongs. In international law, a State may extend diplomatic protection to its nationals against other States. A stateless person lacks this protection.
2. Basis of rights and duties — Nationality determines a person's entitlement to civil, political, economic and social rights, and imposes duties such as allegiance, taxation and, in some States, military service.
3. Political participation — It confers the right to vote, to contest elections and to hold public office, thereby making the individual a participant in the governance of the State.
4. Access to public benefits — Employment in the public service, social security, education subsidies and welfare schemes are generally reserved for nationals.
5. Determination of jurisdiction — Nationality fixes the personal jurisdiction of the State over the individual, both within and outside its territory.
6. Foundation of statehood and sovereignty — A defined body of nationals constitutes the population of a State, which is one of the essential elements of statehood under international law.
7. Sense of identity and belonging — It gives the individual a legal identity, a passport, and a sense of cultural and political belonging.

Functions of Nationality

• Protective function — secures the individual against denial of rights and against injury by foreign States.
• Inclusionary function — admits persons into the political community and integrates them into the legal order.
• Exclusionary function — distinguishes nationals from aliens, thereby regulating immigration, deportation and the enjoyment of certain privileges.
• Distributive function — allocates scarce public goods, offices and benefits among those who legally belong to the State.
• Allegiance-enforcing function — binds the national to loyalty and obedience to the State, and in many legal systems prohibits extradition of a State's own nationals.

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Modes of Acquiring Nationality

Nationality may be acquired by the following modes:

1. By birth — Two competing principles operate:

   • Jus soli (right of the soil): nationality is conferred by place of birth, irrespective of the parents' nationality. Followed notably by the United States.
   • Jus sanguinis (right of blood): nationality is conferred by descent from a national parent, irrespective of place of birth. Followed by Nepal and most civil-law countries.
   • Many States apply a combination of the two.

2. By descent — A person born abroad acquires the nationality of the parent's State, subject to conditions such as registration within a prescribed period.

3. By naturalisation — A foreigner may acquire nationality by fulfilling statutory conditions, typically: residence for a specified period, good character, sufficient knowledge of the national language, renunciation of former nationality, and taking an oath of allegiance. In Nepal, the Nepal Citizenship Act, 2063 (2006) prescribes the conditions for naturalised citizenship.

4. By marriage — Many legal systems allow a foreign spouse to acquire the nationality of the national spouse, usually after a period of residence and on fulfilment of formalities. Nepal permits a foreign woman married to a Nepali citizen to acquire naturalised citizenship, subject to renunciation of her former nationality.

5. By legitimisation or adoption — A child born out of wedlock may acquire the father's nationality upon legitimisation; an adopted child may acquire the adoptive parents' nationality.

6. By resumption or reacquisition — A person who has lost nationality may regain it by complying with prescribed conditions, such as returning to reside in the State and applying for restoration.

7. By subjugation or cession — When territory is transferred from one State to another by conquest or treaty, the inhabitants of the transferred territory acquire the nationality of the successor State.

8. By option — Where territory is transferred, inhabitants may be given the right to choose between the old and the new nationality within a stipulated period.

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Modes of Losing Nationality

1. By renunciation (voluntary) — A national may voluntarily give up nationality, usually on acquiring or intending to acquire the nationality of another State, by making a declaration before the prescribed authority.

2. By deprivation (involuntary) — The State may withdraw nationality on grounds such as:

   • fraud, misrepresentation or concealment in obtaining nationality;
   • disloyalty, treason or acts prejudicial to the security of the State;
   • serving in the armed forces of an enemy State;
   • prolonged residence abroad without registration;
   • accepting public office or employment under a foreign State without permission.

3. By marriage — In some legal systems, a woman who marries a foreign national automatically loses her nationality. Modern law and international conventions, however, discourage automatic loss on marriage.

4. By legitimisation or adoption — A child may lose the nationality of the mother or of the natural parents on acquiring the nationality of the father or of the adoptive parents.

5. By long absence or failure to register — Some States withdraw nationality where a national resides abroad beyond a prescribed period without registering at the consulate.

6. By subjugation or cession — Inhabitants of transferred territory may lose the nationality of the former sovereign and acquire that of the successor State.

7. By option — Where the right of option is exercised in favour of another State, the original nationality is lost.

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Conclusion. Nationality is the legal and political link that determines a person's identity, rights, duties and protection in both domestic and international law. Its acquisition and loss are governed by each State's municipal law, subject to the limitations imposed by international law — notably the principle that statelessness should be avoided and that no person should be arbitrarily deprived of nationality.

a) Sources of International Humanitarian Law

International Humanitarian Law (IHL), also called the law of armed conflict or jus in bello, is that branch of international law which regulates the conduct of parties during armed conflict and seeks to limit suffering. Its sources are the same as those of general international law, as listed in Article 38 of the Statute of the International Court of Justice.

1. International Conventions (treaties): The most important source. These include the Hague Conventions of 1899 and 1907 (regulating means and methods of warfare) and the four Geneva Conventions of 1949 with their Additional Protocols of 1977 (protecting victims of war — wounded, shipwrecked, prisoners of war and civilians). Other treaties include the Genocide Convention 1948, the Chemical Weapons Convention 1993 and the Ottawa Landmine Treaty 1997.

2. Customary International Law: Long-established state practice accepted as law, binding even on states that are not party to a treaty. The Martens Clause (Hague Convention II, 1899) confirms that in cases not covered by treaty, civilians and combatants remain protected by the principles of humanity and the dictates of public conscience. Much of the Geneva law is now customary and applies in both international and non-international conflicts.

3. General Principles of Law: Principles such as humanity, military necessity, proportionality and distinction between combatants and civilians, recognised by civilised nations.

4. Judicial Decisions and Teachings: Judgments of the International Court of Justice, the International Criminal Tribunals for Yugoslavia and Rwanda, and the International Criminal Court (e.g. Nicaragua, Tadić) are subsidiary means for determining IHL rules. Writings of jurists also assist.

Thus, IHL draws from treaties, custom, general principles and judicial decisions, with the Geneva and Hague Conventions forming its core.

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b) Rebus Sic Stantibus

Rebus sic stantibus is a Latin phrase meaning "things standing thus" or "so long as conditions remain the same." It is a doctrine of international law under which a treaty may be terminated or suspended when there is a fundamental change of circumstances which was not foreseen by the parties at the time of conclusion, provided the change radically transforms the extent of obligations still to be performed.

Essentials:

1. The change must be of circumstances existing at the time the treaty was concluded.
2. The change must be fundamental and not foreseen by the parties.
3. The change must be such that it radically alters the obligations still to be performed.
4. The doctrine cannot be invoked if the change results from the breach of the treaty by the party invoking it.
5. It cannot be invoked to terminate a treaty establishing a boundary or a territorial regime.

Codification: Article 62 of the Vienna Convention on the Law of Treaties, 1969 codifies the doctrine. It provides that a fundamental change of circumstances may be invoked as a ground for terminating or withdrawing from a treaty, subject to the above conditions. The ICJ applied the doctrine in the Fisheries Jurisdiction case (1973) and discussed it in the Gabčíkovo–Nagymaros Project case (1997).

Conclusion: The doctrine is an exception to the rule pacta sunt servanda and is applied restrictively, only in exceptional circumstances, to prevent injustice arising from changed conditions.

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c) Maritime Jurisdiction

Maritime jurisdiction refers to the competence of a state over maritime areas and activities on the sea, governed principally by the UN Convention on the Law of the Sea, 1982 (UNCLOS) and customary law. The sea is divided into zones, each carrying different rights of jurisdiction.

1. Internal Waters: Waters landward of the baseline. The coastal state has full sovereignty and complete jurisdiction, as over its land territory. Foreign ships have no right of innocent passage.

2. Territorial Sea (up to 12 nautical miles): The coastal state exercises sovereignty, but foreign ships enjoy the right of innocent passage. The state has criminal and civil jurisdiction over foreign ships, subject to exceptions in Articles 27 and 28 of UNCLOS (e.g. it should not exercise criminal jurisdiction over offences committed on board a foreign ship passing through, except in specified cases).

3. Contiguous Zone (up to 24 nm): The coastal state may exercise limited jurisdiction to prevent and punish infringement of its customs, fiscal, immigration and sanitary laws.

4. Exclusive Economic Zone (up to 200 nm): The coastal state has sovereign rights over exploration and exploitation of living and non-living resources, and jurisdiction over marine scientific research, protection of the marine environment and artificial islands. Other states enjoy freedom of navigation and overflight.

5. Continental Shelf: The coastal state has sovereign rights over the seabed and subsoil for exploring and exploiting natural resources.

6. High Seas: Beyond national jurisdiction, the freedom of the high seas applies. A ship on the high seas is subject to the exclusive jurisdiction of its flag state, with limited exceptions such as piracy, slavery and unauthorised broadcasting.

Conclusion: Maritime jurisdiction is thus graduated — full sovereignty in internal and territorial waters, limited rights in the contiguous zone and EEZ, and flag-state jurisdiction on the high seas.

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d) Treatment of Aliens

An alien is a person who is not a national of the state in which he resides. International law lays down standards for the treatment of aliens, though a state is not obliged to admit aliens and may expel them subject to certain conditions.

Standards of treatment:

1. National Treatment Standard: Aliens are given the same treatment as nationals in matters of civil rights, trade and commerce. This is common in treaties of friendship and commerce.

2. International Minimum Standard: Even if nationals are treated poorly, aliens must be given a minimum standard of justice — protection of life, liberty and property, and access to courts. This was affirmed in the Neer Claim (1926).

3. Denial of Justice: A state is responsible if its courts fail to provide justice to aliens, e.g. refusal of access to courts, undue delay or manifestly unjust decisions.

Rights of aliens: Generally, aliens enjoy civil rights, the right to own property (subject to local law), and the protection of their person and property. They do not enjoy political rights such as voting.

Expulsion: A state may expel aliens, but expulsion must be in good faith, not arbitrary or discriminatory, and must respect human rights and the principle of non-refoulement where applicable.

State Responsibility: If an alien's person or property is injured by the state or its officials in violation of international law, the state is responsible and must make reparation (restitution, compensation or satisfaction).

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e) Effects of War on Treaties

War has a significant impact on treaties existing between the belligerent states. The general effect is that bilateral treaties between belligerents are suspended or terminated, while multilateral treaties of a law-making character and treaties of a permanent nature generally survive.

Effects:

1. Bilateral Treaties: Treaties between belligerent states are generally suspended during the war and may be terminated depending on their nature. Political treaties (e.g. treaties of alliance, friendship) are terminated; commercial and economic treaties are suspended.

2. Multilateral Treaties: Treaties of a law-making character (e.g. Geneva Conventions, UN Charter) continue to operate, as they are not dependent on the continuance of peaceful relations between particular states.

3. Treaties of Permanent Character: Treaties creating permanent rights and obligations, such as boundary treaties, treaties of cession and treaties establishing territorial regimes, survive the outbreak of war. This principle is recognised in international law and reflected in the approach of the ICJ in cases such as Gabčíkovo–Nagymaros (1997) concerning the survival of treaty regimes.

4. Treaties with Neutral States: Treaties between a belligerent and a neutral state continue in force, as war does not affect relations with neutrals.

5. Revival: Treaties merely suspended by war may revive after the conclusion of peace, unless they are expressly terminated or are incompatible with the new situation.

Conclusion: War terminates or suspends political and bilateral treaties between belligerents, but law-making, permanent and neutral-related treaties continue. The doctrine of rebus sic stantibus may also be invoked where war brings a fundamental change of circumstances.

Examination of the Statement in the Light of Modern Subjects of International Law

1. Meaning of the Statement

The statement — "The rights and duties of states are only the rights and duties of human beings who compose them" — reflects the positivist and realist view that a state is not an abstract, independent entity but a collective of individuals. Since the state acts through human beings (rulers, officials, citizens), whatever rights and duties the state possesses ultimately trace back to the human beings who compose it. This view is associated with the fiction theory of state personality and with writers like Westlake, Oppenheim (classical position), and Kelsen in a modified form.

2. Traditional Position: States as the Only Subjects

Classical international law (19th and early 20th century) held that:

• States alone were subjects of international law.
• Individuals were merely objects — they could not claim rights or bear duties directly on the international plane.
• The Lotus case (1927) and the Reparation for Injuries case (1949) confirmed states as primary subjects.

Under this view, the statement is partly correct: since states are composed of human beings, the rights and duties of states are exercised by and for human beings. But classical law refused to recognise individuals as independent subjects.

3. Modern Position: Individuals as Subjects

After 1945, especially with the UN Charter, Nuremberg Charter (1945), UDHR (1948), Genocide Convention (1948), ICCPR and ICESCR (1966), and the Rome Statute (1998), individuals have acquired direct rights and duties under international law. This weakens the classical fiction and partly supports the statement.

(a) Individuals as Bearers of Rights

• Human rights law — individuals can petition the UN Human Rights Committee, European Court of Human Rights, Inter-American Court, and African Court.
• Diplomatic protection — states espouse claims of their nationals (Mavrommatis case).
• Individual criminal responsibility — Nuremberg, ICTY, ICTR, ICC.
• Investment arbitration — individuals and corporations sue states directly (ICSID).

(b) Individuals as Bearers of Duties

• Nuremberg Tribunal (1946): "Crimes against international law are committed by men, not by abstract entities." Principle I of the Nuremberg Principles (1950) likewise makes any person who commits an act constituting a crime under international law responsible and liable to punishment.
• Genocide, war crimes, crimes against humanity — individual criminal liability.
• Piracy, slavery, torture — universal jurisdiction.

4. Other Modern Subjects

The statement's focus on states and individuals overlooks other subjects:

5. Critical Evaluation

Arguments supporting the statement:

1. The fiction theory — state personality is a legal fiction; real will and action belong to individuals.
2. Kelsen's monism — all law ultimately binds human conduct.
3. Human rights jurisprudence — the individual is the ultimate beneficiary of state rights.
4. Nuremberg — pierced the veil of the state to punish individuals.

Arguments against the statement:

1. States have independent legal personality — they can own property, make treaties, and be responsible irrespective of changes in government or population (e.g., succession of states).
2. Reparation case (1949) — the UN (and by analogy states) has rights that cannot be reduced to those of individuals.
3. Collective rights — self-determination, permanent sovereignty over natural resources belong to peoples, not to individuals.
4. State responsibility — a state may be liable for acts not attributable to any identifiable individual (e.g., Corfu Channel, Nicaragua).
5. Diplomatic immunities — states and their agents enjoy immunities that individuals do not.

6. Conclusion

The statement captures an important truth — that states are composed of human beings and that the ultimate purpose of state rights and duties is human welfare. However, it is incomplete and partly outdated in the modern context. International law today recognises:

• States as primary subjects,
• International organisations as derivative subjects,
• Individuals as limited but direct subjects with rights and duties,
• Peoples, corporations, and armed groups as functional subjects.

Thus, while the rights and duties of states are ultimately traceable to human beings, modern international law does not treat states as mere aggregates of individuals. The statement is partially correct but not wholly accurate in the light of contemporary subjects of international law.

TU BBS–LLB First Year — Jurisprudence / Public International Law

1. Definition of International Law

International Law (also called the Law of Nations) is the body of rules and principles that governs the conduct of States and other subjects of international law in their mutual relations. It is not the municipal law of any single State but a body of norms created, recognised and enforced by the community of States itself.

Classical definitions:

• Oppenheim: "International Law is the name for the body of customary and conventional rules which are considered legally binding by civilised States in their intercourse with each other."
• J.L. Brierly: "The Law of Nations or International Law may be defined as the body of rules and principles of action which are binding upon civilised States in their relations with one another."
• Torsten Gihl: "International Law is the body of those rules which are binding upon States in their mutual relations and which are enforced by external sanctions."
• Starke: "International Law may be defined as that body of law which is composed for its greater part of the principles and rules of conduct which States feel themselves bound to observe, and therefore do commonly observe in their relations with each other."

Modern (wider) definition: After 1945, the definition has been widened to include international organisations (UN, WTO, EU), individuals, and non-State entities as subjects. Hence Fenwick and others define it as the body of rules governing the relations not only of States but also of international organisations and individuals in the international community.

Nature: International Law is true law (positivist view — Austin's objection that it is mere "positive morality" is now rejected), though it is weak law because it lacks a central legislature, a compulsory court and a centralised executive. It is horizontal (State-to-State), decentralised, and based on consent and consensus rather than command.

2. Basis of International Law

Two schools explain why States are bound:

(a) Natural Law Theory — Grotius, Pufendorf, Vattel. Law of Nations is derived from the law of nature, i.e. right reason and universal justice. It binds States because it is morally and rationally necessary. Vattel held that the "necessary law of nations" cannot be changed by agreement.

(b) Positivist Theory — Bynkershoek, Anzilotti, Triepel. The binding force lies in the consent (will) of States, expressed through customs and treaties. Pacta sunt servanda is the foundation. Criticised because new States are bound by pre-existing law without consent, and because it cannot explain the binding force of custom on dissenters.

(c) Eclectic / Grotian Theory — combines both: consent supplies the form, natural justice supplies the content. This is the most accepted modern basis.

(d) Consent and Community Interest — modern view: law is binding because it rests on the consensus of the international community and the necessities of peaceful coexistence (UN Charter, Art. 2).

3. Factors that Led to the Development of International Law

1. Existence of independent sovereign States — the Peace of Westphalia (1648) ended the universal authority of the Pope and Holy Roman Empire and created the modern State system.
2. Growth of intercourse among States — trade, navigation, diplomacy and communication required common rules.
3. Reciprocity of interest — States realised mutual benefit in observing common standards.
4. Contribution of jurists — Grotius (De Jure Belli ac Pacis, 1625), Vattel, Oppenheim systematised the law.
5. Wars and their horrors — Napoleonic Wars, World Wars I and II produced the League of Nations (1920) and the United Nations (1945).
6. Codification and codification conferences — Hague Conferences (1899, 1907), Geneva Conventions, Vienna Convention on the Law of Treaties (1969), UNCLOS (1982).
7. Establishment of international institutions — PCIJ (1921), ICJ (1945), ILO, WTO, ICC.
8. Growth of international trade, human rights and humanitarian law — expanded the scope beyond war and peace.
9. Decolonisation and emergence of new States — widened participation and produced new rules on self-determination and economic sovereignty.
10. Technological change — aviation, space, nuclear energy, cyber space required new regulation.

4. Principles of International Law (in brief)

1. Sovereign Equality of States — all States are juridically equal (UN Charter, Art. 2(1)).
2. Pacta Sunt Servanda — treaties are binding and must be performed in good faith (VCLT, Art. 26).
3. Peaceful Settlement of Disputes — negotiation, mediation, conciliation, arbitration, judicial settlement (Art. 33).
4. Prohibition of Threat or Use of Force — Art. 2(4); exception of self-defence under Art. 51.
5. Non-Intervention in Domestic Affairs — Art. 2(7); Nicaragua case.
6. Respect for Human Rights and Fundamental Freedoms — UDHR, ICCPR, ICESCR.
7. Self-Determination of Peoples — colonial and alien domination.
8. Good Faith in International Relations — Art. 2(2).
9. Freedom of the High Seas — UNCLOS, Art. 87.
10. Peaceful Coexistence — Panchsheel (1954).
11. Fulfilment of International Obligations — Art. 2(2).
12. Immunity of States and Diplomatic Agents — sovereign immunity, Vienna Convention on Diplomatic Relations (1961).
13. Responsibility for Internationally Wrongful Acts — reparation, restitution, compensation (ILC Articles, 2001).
14. Prohibition of Genocide, War Crimes and Crimes against Humanity — jus cogens norms.
15. Common Heritage of Mankind — deep seabed, outer space, Antarctica.

Conclusion

International Law is a dynamic, decentralised legal system whose binding force rests on State consent tempered by natural justice and community interest. From the Peace of Westphalia to the UN Charter, its development has been driven by the needs of coexistence, commerce and peace. Its principles — sovereign equality, good faith, peaceful settlement, non-use of force and human rights — form the backbone of the modern international legal order.

Meaning and Importance of Nationality

Meaning: Nationality is the legal bond or relationship between an individual and a particular State by which the individual becomes a member of that State and owes allegiance to it. It is a legal and political concept, distinct from citizenship in the narrow sense (though in Nepal the two terms are often used interchangeably). Nationality determines a person's political status, rights and duties within the State and his or her position in international law. It is the quality of being a national of a particular country.

Importance:

1. Identity and membership: It gives an individual a definite identity as a member of a particular nation and State.
2. Political rights: It entitles a person to enjoy political rights such as voting, contesting elections and holding public office.
3. Protection by the State: A national can claim the protection of the State, including diplomatic protection in foreign countries.
4. Allegiance and duties: It imposes on the individual the duty of allegiance, loyalty and obedience to the State.
5. Rights and privileges: Nationals enjoy full civil, social, economic and cultural rights and privileges which aliens may not enjoy.
6. International recognition: Nationality determines a person's status in international law and enables the State to represent him or her at the international level.
7. State sovereignty and integrity: Nationality promotes unity, patriotism and the territorial integrity of the State.

Ways of Acquisition of Nationality

Nationality may be acquired mainly in the following ways:

1. By Birth (Jus Soli): Nationality is conferred on the basis of the place of birth, i.e. a person born within the territory of a State becomes its national.
2. By Descent (Jus Sanguinis): Nationality is determined by the nationality of the parents, i.e. a person acquires the nationality of the State to which his or her parents belong, irrespective of the place of birth.
3. By Naturalisation: A foreigner may acquire the nationality of a State by fulfilling certain conditions such as residence for a prescribed period, good character, knowledge of the language, etc., and by taking an oath of allegiance.
4. By Marriage: A person may acquire the nationality of the spouse upon marriage, subject to the conditions prescribed by law.
5. By Adoption/Legitimation: A minor adopted by a national, or a child legitimated by a national father, may acquire that nationality.
6. By Subjugation or Cession of Territory: When territory is conquered or ceded from one State to another, the inhabitants of that territory may acquire the nationality of the new State.
7. By Resumption/Reacquisition: A person who has lost nationality may reacquire it by fulfilling prescribed conditions.
8. By Registration: In some States, persons of a particular category may acquire nationality simply by registration.

Constitutional Provisions of Nepal

The Constitution of Nepal, 2072 (2015) deals with citizenship (nationality) in Part 2, Articles 10 to 15. The main provisions are:

Article 10 — Not to be deprived of citizenship: No citizen of Nepal shall be deprived of the right to obtain citizenship.

Article 11 — Provision relating to citizenship: This Article provides the ways of acquisition of citizenship:

1. Citizenship by descent: A person whose father or mother was a citizen of Nepal at the time of his or her birth shall be a citizen of Nepal by descent. (A person who has obtained citizenship by descent before the commencement of this Constitution shall continue to be a citizen by descent.)
2. Citizenship by birth: A person born in Nepal whose father and mother were both citizens of Nepal at the time of his or her birth shall be a citizen of Nepal by birth. (A person born in Nepal whose father or mother is a citizen of Nepal shall be a citizen by descent.)
3. Citizenship by naturalisation: A foreigner who fulfils the conditions prescribed by federal law may acquire citizenship of Nepal by naturalisation.
4. Citizenship by descent for children of citizens residing abroad: A minor child of a citizen of Nepal who is residing in a foreign country shall acquire citizenship by descent.
5. Citizenship by marriage: A foreign woman married to a citizen of Nepal may acquire citizenship of Nepal by naturalisation after fulfilling the conditions prescribed by federal law.
6. Citizenship by adoption: A minor adopted by a citizen of Nepal may acquire citizenship by descent.

Article 12 — Citizenship with identity of descent: Provisions relating to citizenship with identity of descent and gender.

Article 13 — Acquisition, reacquisition and termination: Provisions relating to the acquisition, reacquisition and termination of citizenship are to be made by federal law.

Article 14 — Non-resident Nepali citizenship: A person of Nepali origin who has acquired citizenship of a foreign country may be granted non-resident Nepali citizenship with economic, social and cultural rights, but without political rights.

Article 15 — Other provisions relating to citizenship: Other matters relating to citizenship shall be as provided by federal law.

Conclusion: Thus, nationality is the legal bond of membership between an individual and the State, and it is of great importance for identity, rights and allegiance. Nepal follows mainly the Jus Sanguinis principle (descent), with limited application of Jus Soli (birth), and also recognises naturalisation, marriage and adoption as modes of acquiring citizenship under Articles 10–15 of the Constitution of Nepal, 2072.

When two states cannot agree on amicable (pacific) means of settling their dispute, the alternative is coercive or compulsive means of settlement — measures backed by force or pressure that compel the other state to accept a settlement. These are resorted to only after negotiation, mediation, conciliation, arbitration and judicial settlement have failed or have been refused by one party.

Coercive means available to states:

1. Retorsion — an unfriendly but lawful act by one state in retaliation for a similar act by another, e.g. withdrawing diplomatic privileges, imposing trade restrictions, or expelling diplomats. It is lawful because the act itself is not a breach of international law.

2. Reprisals — otherwise unlawful acts taken in retaliation for an illegal act of the other state, permissible only if (a) the other state has committed an internationally wrongful act, (b) peaceful means have first been exhausted, and (c) the reprisal is proportionate. Examples include a trade embargo or freezing of assets. Under modern international law, armed reprisals are prohibited by Article 2(4) of the UN Charter.

3. Embargo — suspension of trade or economic relations, used to pressurise a state into settlement.

4. Pacific blockade — blockade of the other state's ports without a formal declaration of war, now largely of doubtful legality.

5. Intervention — dictatorial interference in the internal or external affairs of another state. It is generally illegal unless justified by self-defence or collective action authorised by the UN.

6. War — the ultimate coercive means. Since the Kellogg–Briand Pact (1928) and Article 2(4) of the UN Charter, war is illegal except in self-defence under Article 51 or when authorised by the Security Council under Chapter VII.

Why these means are suggested:

• They are resorted to only when the disputing states cannot agree on amicable means, so they serve as the last resort.
• They create real pressure on the reluctant state to come to the negotiating table, since the cost of refusal becomes higher than the cost of settlement.
• They are intended to restore the legal position that existed before the wrongful act, i.e. to secure reparation and respect for international law.
• In practice, most disputes still end in a negotiated settlement; coercive measures are used mainly as leverage to bring that about.

Conclusion: Although coercive means are recognised in international law, their use is strictly limited. The UN Charter prefers peaceful settlement under Article 33, and only proportionate, lawful measures such as retorsion and non-armed reprisals are generally permissible. War and armed reprisals are prohibited, so the suggested course is to use lawful coercive pressure — economic, diplomatic and political — to compel the other state to return to amicable means, and, if that fails, to refer the dispute to the Security Council or the International Court of Justice.

Prohibition of the Use of Force under the UN Charter: A Critical Examination

1. Introduction

The prohibition of the use of force is the cornerstone of modern international law. It emerged from the ashes of two World Wars and represents a fundamental shift from the pre-Charter era, where states enjoyed an unrestricted "right to war" (jus ad bellum). The UN Charter, particularly Article 2(4), seeks to outlaw unilateral recourse to force and to centralise the use of coercive power in the Security Council. However, the principle is neither absolute nor free from controversy, as state practice has repeatedly tested its boundaries.

2. The Principle of Prohibition of Use of Force

Article 2(4) of the UN Charter provides:

"All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations."

This provision establishes a general prohibition on the use of force. Its key elements are:

1. Scope — It applies to "international relations," meaning force used within a state's own territory (e.g., against rebels) is not covered.
2. "Threat or use of force" — Both actual armed force and credible threats of force are prohibited. The threat must be of a military nature.
3. Protected interests — The prohibition protects the "territorial integrity" and "political independence" of states.
4. Residual clause — The phrase "in any other manner inconsistent with the Purposes of the United Nations" gives the prohibition a broad, residual character.

Customary International Law: The prohibition is also recognised as a peremptory norm (jus cogens) and a fundamental principle of customary international law. The ICJ in Nicaragua v. United States (1986) affirmed that the prohibition of the use of force is a customary rule binding on all states, regardless of treaty ratification.

3. Critical Examination of the Principle

While Article 2(4) is widely celebrated, a critical examination reveals several weaknesses:

A. Ambiguity of Language

• The phrase "against the territorial integrity or political independence" has been interpreted by some (e.g., during the 1999 Kosovo intervention) as permitting force that does not permanently violate territory or independence. Most scholars reject this narrow reading, arguing it would eviscerate the prohibition.
• The term "force" is not defined. It is generally understood as armed force, not economic or political coercion (though some developing states argued for a broader interpretation during the Charter's drafting).

B. Erosion through State Practice

• Humanitarian Intervention: NATO's intervention in Kosovo (1999) without Security Council authorisation was justified on humanitarian grounds. This raised the controversial doctrine of "humanitarian intervention," which remains legally contested.
• Responsibility to Protect (R2P): The 2005 World Summit endorsed R2P, but it is a political commitment, not a legal right to use force without Council authorisation.
• Pre-emptive/Self-Defence Claims: The 2003 Iraq War saw the US and UK invoke "pre-emptive self-defence" against weapons of mass destruction — a claim widely rejected as unlawful.

C. Selective Enforcement

• The Security Council's permanent members (P5) can veto action against themselves or their allies, leading to inconsistent enforcement. For example, force was authorised in Libya (2011) but not in Syria or Yemen, reflecting political bias.

D. Weak Enforcement Mechanism

• Article 2(4) lacks automatic enforcement. The ICJ can hear cases only with consent, and the Security Council's enforcement powers (Chapter VII) are subject to veto.

4. Exceptions to the Prohibition

Despite its broad language, the prohibition is subject to two recognised exceptions under the Charter:

(a) Self-Defence — Article 51

"Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations..."

Conditions for lawful self-defence:

1. Armed attack must have occurred (or be imminent under the restrictive view).
2. Necessity — force must be necessary to repel the attack.
3. Proportionality — response must be proportionate to the attack.
4. Temporal limitation — self-defence ends when the Security Council takes measures to maintain peace.
5. Reporting — the state must report to the Security Council.

Controversies:

• Anticipatory self-defence: The Caroline incident (1837) established a customary right to pre-emptive self-defence against imminent attack. Whether this survives Article 51 is debated. The ICJ in Nicaragua avoided ruling on it.
• Pre-emptive self-defence: The 2002 US National Security Strategy claimed a right to strike first against potential future threats — a doctrine rejected by most states as contrary to Article 51.
• Collective self-defence: Requires a request from the victim state (ICJ, Nicaragua).

(b) Security Council Authorisation — Chapter VII

Under Article 39, the Security Council may determine the existence of any threat to the peace, breach of the peace, or act of aggression. It may then authorise:

• Article 41: Non-military measures (sanctions, embargoes).
• Article 42: Military action "as may be necessary to maintain or restore international peace and security."

Examples: Korea (1950), Gulf War (1991), Libya (2011).

Limitations: The veto power often paralyses the Council. The 1999 Kosovo intervention was not authorised due to Russian/Chinese opposition.

5. Other Contested Exceptions

1. Humanitarian Intervention — Not expressly in the Charter. The 1999 Kosovo intervention is the leading example. The ICJ in Yugoslavia v. Belgium (1999) did not rule on legality. Most states remain opposed.
2. Intervention by Invitation — Force used with the consent of the territorial state is lawful (e.g., US intervention in Afghanistan 2001 after Taliban's refusal to hand over bin Laden was not by invitation; but French intervention in Mali 2013 was).
3. Self-Determination Struggles — Some argue colonial peoples have a right to use force for self-determination (GA Resolution 2625). This is contested.
4. Punitive/Retaliatory Action — Generally unlawful. The ICJ in Nicaragua rejected US claims of collective self-defence and reprisals.

6. Conclusion

The prohibition of the use of force under Article 2(4) is a landmark achievement of international law, reflecting a global consensus against unilateral war. However, its effectiveness is undermined by:

• Ambiguous drafting,
• Selective enforcement due to the veto,
• Expanding claims of self-defence (anticipatory, pre-emptive),
• Contested doctrines like humanitarian intervention and R2P.

While the prohibition remains a jus cogens norm, its practical application is shaped more by political power than legal principle. The challenge for the future is to strengthen the Security Council's role and to clarify the limits of self-defence, ensuring that force is used only in strict conformity with the Charter.

Short Notes (any three)

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a) Territorial Jurisdiction

Territorial jurisdiction is the principle that a state exercises legal authority over persons, property and events occurring within its own territory. It is the most fundamental and least controversial basis of jurisdiction in international law, flowing directly from State sovereignty over land, internal waters, territorial sea and airspace.

Under this principle, a state may enact and enforce laws, and its courts may try offences committed within its territory, regardless of the nationality of the offender. It is recognised in the Lotus case (1927), where the Permanent Court of International Justice held that a state may exercise jurisdiction within its territory as it wishes, subject only to limits imposed by international law. The principle is also reflected in Section 3 of Nepal's Muluki Criminal Code, 2074, which applies to offences committed within Nepal.

Territorial jurisdiction is not absolute. It is subject to exceptions such as diplomatic immunity, and states may also exercise extraterritorial jurisdiction on other bases such as nationality, protective and universal principles.

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b) Pacta Sunt Servanda

Pacta sunt servanda is a Latin maxim meaning "agreements must be kept." It is the foundational principle of treaty law, providing that treaties are binding upon the parties and must be performed by them in good faith. It is codified in Article 26 of the Vienna Convention on the Law of Treaties, 1969.

The principle rests on the assumption that states enter into agreements voluntarily and are therefore morally and legally bound to honour them. It gives stability and predictability to international relations, without which no system of treaty law could function. It is closely linked with the principle of good faith (bona fides).

Its operation is subject to certain exceptions, such as a fundamental change of circumstances (rebus sic stantibus) under Article 62 of the Vienna Convention, and the emergence of a new peremptory norm (jus cogens). Nevertheless, pacta sunt servanda remains the cornerstone of international treaty obligations.

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c) Meaning and Function of Extradition

Extradition is the formal process by which one state (the requested state) surrenders a person found within its territory to another state (the requesting state) for trial or punishment for an offence committed outside the requested state's territory.

Its main functions are:

1. Prevention of impunity — it ensures that offenders do not escape punishment merely by fleeing to another country.
2. Cooperation in criminal justice — it promotes mutual assistance among states in suppressing crime.
3. Deterrence — the certainty of return discourages persons from committing crimes and fleeing abroad.

Extradition is generally governed by bilateral or multilateral treaties, and by the principle of double criminality (the act must be an offence in both states). Certain offences, such as political offences, are exempt, and many states refuse to extradite their own nationals. In Nepal, extradition is governed by the Extradition Act, 2070 (2013).

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d) Concept of State and Sovereignty

A State, in international law, is a political entity possessing four essential elements: a permanent population, a defined territory, a government, and sovereignty. These elements are reflected in Article 1 of the Montevideo Convention on the Rights and Duties of States, 1933.

Sovereignty is the supreme and independent authority of a state to govern itself without external interference. It has two aspects: internal sovereignty (supreme power over persons and territory within the state) and external sovereignty (independence from control by other states). It is the distinguishing feature of statehood and the basis of equality among states in international law.

Sovereignty is not absolute in practice; it is limited by international law, treaty obligations, membership of international organisations, and the growing recognition of human rights and peremptory norms. Nevertheless, it remains the foundational concept of the international legal order.

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e) Statelessness

Statelessness is the condition of a person who is not recognised as a national by any state under the operation of its law. Such a person is called a stateless person. It is defined in Article 1 of the 1954 Convention Relating to the Status of Stateless Persons.

Statelessness may arise from:

1. Conflict of nationality laws — for example, where one state withdraws nationality upon marriage to a foreigner while the other does not grant it.
2. Loss or deprivation of nationality — by operation of law or as a punitive measure.
3. State succession — where a new state is formed and some residents are left without nationality.
4. Failure to register births — leaving persons without proof of nationality.

Stateless persons suffer serious hardship: they lack legal identity, cannot vote, travel, own property freely, or access many public services. International law addresses this through the 1954 and 1961 Conventions and the Universal Declaration of Human Rights (Article 15), which affirms everyone's right to a nationality.