Nepal: INTERNATIONAL LAW AND RECOGNITION OF STATE

Late Prof. Sadmukh Thapa, Ph.D.

Nepal

(a) International Law

Law in simple sense is a body of rules. But it may be taken in different sense too. In the field of physics it denotes the sequence of cause and effect - like the law of motion and gravitation. In social and customary sense, it is related to behavior of man in society. There is also the moral law which relates to the question of right or wrong good or bad in maintenance of our lives. But, modern laws combine both the essence of natural law and the spirit of positive law. As such at modern times a law is the body of rules enforced by a sovereign State.

Etymologically, the word ‘law’ comes from the old Teutonic root ‘lag’ which means to lay to place, to set or to fix something in an orderly manner In this sense, law is something positive and imposed. In deeper sense of the term law derives from the Latin word “Jes’ that is linked with another Latin word ‘lingere’ meaning ‘abound or tie’. A dictionary may define law as ‘ a rule of conduct imposed by an authority. However, in the strictest of modern sense it is a ‘command of the sovereign,’ as philosophers from Bentham through Hobbes to Austin have all justified. In modern positive sense, law combines as its sources things like custom, religion, adjudication, equity, statutes, standard works etc.

Classification; as taken in different senses, laws are categorized variously by different interpretations but summing up all the combination, law in general can be classified as follows:

Originally, laws are natural or positive. Natural laws devote universal law prescribed by divinity or nature. All modern laws are positivistic in nature. They dominate modem times. In the twenty first century of today, modern laws comprise in the main all the positive elements of State and Society. But they respect the essence of natural human rights and democracy.

Then the modern positive laws are divided into national and informational laws. National laws are further distributed into the categories of ordinary and constitutional. Besides the constitutional law, ordinary laws are divided into private and public. This means that private laws govern private and public laws the public conducts of life. Public laws are still classified into 3 kinds namely the civil, criminal and administrative. Civil laws are related to the normal conduct of civil society, while criminal laws are concerned with activities of crimes. Administrative laws are specific laws applied to the conducts of administrative life of civil servants. Such administrative laws may not be general in all countries. They are specific to specific countries.

Concept of Constitutional law: Constitutional law is a part of national or municipal law. It is in parallel with another branch of national law called the ordinary law. But constitutional law is more important than the ordinary law in the sense that it is related to the basic fundamental law of a State, which is the constitution itself so a constitutional law derives for being attached to the constitution and its provisions.

Thus, a constitutional law can be defined as the body of rules directly concerned with interpreting and applying the constitutions of a State. It, so to speak, defines and delimits the powers, rights and duties of governments, the organs of the State and the citizens. Constitutional laws are based on some fixed and stable rules of constitution which are being interpreted by a fixed constitutional mechanism or body. The constitution of the USA is one such example which sets certain rigid laws and principles that can be interpreted by none other than the Supreme Court. A constitutional law, however, may not be the product of a written constitution like that of USA. It may be unwritten too as in the United Kingdom. Nevertheless, there are constitutional laws in practice, which are based on long held historic and well established conventions. Constitutional laws are profoundly pronounced under the famous constitutions of countries like the US, Australia Canada, Germany etc. The Habeas Corpus in the UK is as much constitutional law as the due process of law in the US.

There are two basic schools of thought regarding the meaning of constitutional law. The juridical point of view is dogmatic and also obsolete while the sociological outlook which came from the World War period is scientific and pragmatic befitting the modern world. In the modern American sense it is behavioral in character and spirit dealing with micro politics within a state. It is also more or less, related to modern idea of institutionalism. As an important branch of modem Political Science, constitutional law can be interpreted as an expression of the general will of abstract justice and political institutions. It is an instrument functioning in the interest of the whole of society.

Features & Characteristics: To have a more clear understanding of the meaning of constitution law, it helps to look into its basic characteristics:

• Constitutional law is sanctified and granted by the Constitution. An ordinary law may not be so.

• It is truly constitutional in nature for, it is directly related to the constitutional provisions of a State.

• A constitutional law is basically related to the fundamental law of laws.

At modern times all ordinary laws are in written form. But constitutional laws may be both written as well unwritten. The examples of USA and UK are sufficient for this.

Meaning: International law is a body of rules that regulate the conduct of States in their intercourse with each other. It is related to the international relations going on among States in the international world. It is distinguished from a national law in that the latter is formulated by a sovereign authority and applicable to the people living under its territorial jurisdiction. On the contrary an international law is only international in nature and spirit. It is not made by any definite sovereign authority which is not practicable in international politics. It is rather based on the good will, harmony and cooperation among nations. It is so enforceable only through the country of nations as such.

There is a universal organization of 191 nations called the UNO. Its charter is mandatory only by respect. It is not enforceable as a sovereign law. The UN formulates a world of international laws through the rituals of international treaties and conventions. But they are not as enforceable either however the world of today is growing Global. At this, national sovereignty is being diluted in favor of trans-nationalism and multilateralism. But a sovereign nation and its sovereign law are still pertinent. International law is not, yet, pertinent.

To trace back the origin of international law it is enough to sense that it began from the time when nations existed and maintained their relations. It originates from the Vedic Age in the Hindu mythology some 4000 years B.C. Manu’s Dharmasastra and Kautely’s Arthsastra are our sources of ancient international code. Likewise, the Greeks and the Romans and the Jews had such laws that were being practiced in ancient times.

the constitution which might be more rigid and stable in effects, than any ordinary law.

• A rigid constitutional mechanism is required as in the USA, to interpret constitutional laws. This may not be the case of ordinary

• Constitutional laws are in away, the basic principles of a constitution and more permanent in sprit and action.

• Constitutional law is different from an ordinary law in the sense that the latter is basically a stature law out of legislative enactment. This is not so about a constitutional law.

At modern times all ordinary laws are in written form. But constitutional laws may be both written as well unwritten. The examples of USA and UK are sufficient for this.

Meaning: International law is a body of rules that regulate the conduct of States in their intercourse with each other. It is related to the international relations going on among States in the international world. It is distinguished from a national law in that the latter is formulated by a sovereign authority and applicable to the people living under its territorial jurisdiction. On the contrary an international law is only international in nature and spirit, It is not made by any definite sovereign authority which is not practicable in international politics. It is rather based on the good will, harmony and cooperation among nations. It is so enforceable only through the country of nations as such.

There is a universal organization of 191 nations called the UNO. Its charter is mandatory only by respect. It is not enforceable as a sovereign law. The UN formulates a world of international laws through the rituals of international treaties and conventions. But they are not as enforceable either however the world of today is growing Global. At this, national s9vereignty is being diluted in favor of trans-nationalism and multilateralism. But a sovereign nation and its sovereign law are still pertinent. International law is not, yet, pertinent.

To trace back the origin of international law it is enough to sense that it began from the time when nations existed and maintained their relations. It originates from the Vedic Age in the Hindu mythology some 4000 years B.C. Manu’s Dharmasastra and Kautely’s Arthsastra are our sources of ancient international code. Likewise, the Greeks and the Romans and the Jews had such laws that were being practiced in ancient times.

community of nations as defining their rights and the means of procedure by which these rights may be protected or violation of them redressed.”

Professor Fenwick has given an elaborate definition of international law. He stresses that this kind of law is first, binding on nations. It generally defines the rights and duties of States in their mutual treatments. It also purports to defend and preserve such rights and relations of nations. It further aims to redress the violations if any of such rightful dealings among the nations concerned. From the formulation to the enforcement all internal laws are to be followed and appreciated effectively. This definition given by Prof. Fenwick is accepted by scholars as the general standard of in international law.

Nature of International Laws: The nature of international law means whether it has the true nature of a law, or not there is a debate still raging among scholars as to whether international law has its nature in the strict sense. It yes what should be the exact nature of it? There are mainly three schools of views about its nature. They represent the following ideas:

International Law is not a law: The first point of view about international law is that it is not and cannot be a law. This is also the oldest traditional thought from the time aw came into existence. Accordingly, though international law came to prevail at much later times and it has been regarded as mandatory or binding on sovereign states as national or municipal laws on the citizens within a State territory.

The protagonist of this school is the 19 century jurist John Austin. His famous definition of “Sovereignty” explains that a sovereign body to be valid must be definitely all powerful commanding unquestioned obedience from the mass of people, signifying an independent State. Such a sovereign body can only be an absolute ruler, whatsoever. According to Austin national law is the Command of the sovereign to which the mass of citizenry pay habitual loyalty.

This Austinian premise has three assertions as to be effective and valid. First, a law comes from a definite process so that it commands the natural obedience of the society. This asserts the existence of a legislature. Second, there must a power that only can enforce such a law with effect. This further presupposes the next organ of a State, which is the executive. Lastly, a law would be interpreted and ascertained in a manner, which is liable to all such a body can a judiciary.

The above point of view of Austin assumes a State to have all the three organs functioning powerfully. A law in the true sense can exist and functional only in such a state, as such. Another jurist, Holland holds the same view as Austin. To him an international law far from being a real, law, is just its vanishing point. Lord Salisbury too follows this school of thought.

International law is a positive law: The second school of thought on whether international law is a law of not is one of the modern varieties of ideas supporting international law and its existence. In counter to the idea that only national law, not international law can be regarded as the real law, this second school suggests that any international law can be a law in the real sense of the term and it should be too. But contrasted to national law international law may not be as strong and stable or its effects. This kind of thought about international law has been propounded by writers and jurists like Hall, Lawrence, Oppenheim etc.

These scholars hold that international law would not be as binding as national law in one respect because there is no sovereign power to enforce the same. But they justify that laws are obeyed not only because they are binding and unviable but also because they carry the weight of general consent and obedience. Laws are obeyed out of respects, too. Such is also the character of international law, which is based on customs conventions and sanctity, which are usually being honored and obeyed by respect. In one respect, this kind of law is found more birding than the one, which is enforceable by State. For people tend to break a State law at every chance, but a law or rule followed under moral binding is found more powerful in effect.

International law is by the same token, being obeyed by nations more out of moral binding and courtesy. Civilized nations and societies are obliged to follow international law in a manner that vies for municipal laws. Therefore, to conclude, international laws too are regarded as laws but positive laws, which have moral and spiritual binding, the violation of which cannot be so easily repressible.

International law is a real law these are some renowned jurist of today that hold a third category of school of thought. Scholars like Sir Henry Maine, Briefly, F Pollock and P Cobet who strongly feel that international law is a real law in the true sense of law. Such laws are also as mandatory and binding as any municipal law. However, such laws are enacted by a definite mechanism enforced by a viable body and interpreted by a general recognized organization. The violation of such laws is punishable under guaranteed system.

The examples abound with the UNO. It has elaborate mechanisms for making and applying international laws. The international laws of today are formulated through international treaties and conventions under the auspices of the international body. They are enforced in the comity of nations by none other than the Security Council under its recognized mechanism. There is also the International Court of Justice as a compact part of the world body which interprets and applies the same. The verdict of such a court is bound to be followed by all nations’ member or non- members to the UNO. This universal system of international law is a compulsory provision for all nations in the world. There are conventions like the Hague and the Geneva Conventions on Arms Proliferation and Disarmament, Protocols like Geneva and Kyoto ones. There are the laws of the Partial Test Ban Treaty, The Non - Proliferation Treaty, the Law of the Sea, the Law of Neutrally and so on. These are all respected and followed internationally. Now there is an also the International Court of Criminal Justice (ICJ) trying and passing verdicts on war criminals and those against humanity. Milosevic of Serbia had been a case in point, recently.

An example of the binding character of an international body can be cited from the ICJ. The Article 59 of its statute clearly states that the verdict of the body is binding and enforceable on all 191 member States of the UN.

Moreover, in the world of global village today the growing importance and urgency of multinationals, trans-nationalism, regionalism and globalism the relevance of regional and international bodies and mechanism has powerful impact on the nations of the world. This mechanism has even discounted the relevance of National States and their sovereignty. The present socio-economic interests of nations have exerted more powerful pressures on nations, which they cannot ignore. ‘Even the question of national security is being diffused into issues like cooperative, common and human security. The European Union, NAFTA, SAFTA, APEC, ASEAN and the likes, have more prominence over national interest. So the pertinence of international laws as real laws has strong bearing on national states at modern times. Some more to follow: Ed. 

 

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