The two theories (the doctrinal pair): Dualism (Triepel, Anzilotti; the British tradition): international and municipal law are distinct orders — different subjects, sources, substance; a treaty takes domestic effect only by transformation (implementing legislation). Unimplemented, a treaty is domestically a promise, not a rule. Monism (Kelsen; varying continental practice): one unified order — treaties apply domestically automatically upon ratification (direct effect / self-execution). Radical monism: municipal validity itself flows from international law. The spectrum in practice: the UK — dualist for treaties (implementing legislation required), but customary international law is part of the common law; the USA — treaties "supreme law of the land" but only self-executing ones apply of their own force; France/the Netherlands — treaty- superiority over statutes. Nepal's position — the two-layer answer: The constitutional layer (ratification — dualist in form): the Constitution of Nepal (2015), Article 279, requires parliamentary ratification for the defined treaty classes — peace and friendship, security and strategic alliance, the boundaries of Nepal, and natural resources and their distribution (two-thirds of both houses); ordinary treaties by simple majority of the House of Representatives; unratified agreements cannot be implemented.
The statutory layer (application — monist in effect): the Nepal Treaty Act, 2047 B.S. (1990/91) — the syllabus's named backdrop. Its celebrated Section 9(1): where the provisions of a treaty to which Nepal is party (upon parliamentary ratification, accession, acceptance or approval) conflict with prevailing laws, the latter are invalid to the extent of the conflict, and the treaty provisions apply as Nepali law — ratified treaties thus prevail over inconsistent ordinary statutes, a monist-leaning rule rare in dualist systems.
Section 9(2): where an unratified treaty imposes obligations requiring legal arrangements, the Government must initiate legislation for its enforcement. The judicial layer: the courts construe statutes in conformity with treaty obligations and apply ratified human-rights treaties as interpretive standards — a soft-monist judicial culture inside a dualist constitutional frame. The doctrinal question Kathmandu debates: whether the 2015 Constitution should have given ratified treaties express superiority (the Treaty Act's Section 9 rule versus the new constitution's supremacy — the hierarchy the drafters left to practice). The reverse rule (the exam's second axis): municipal law before international tribunals — Article 27 of the Vienna Convention on the Law of Treaties: a party may not invoke its internal law to justify failure to perform a treaty. Municipal irregularity is no international defence (state responsibility — Unit 5). Exam Focus Long questions: "Define international law. Is it true law? Answer Austin's objection." / "Critically examine the theories regarding the basis of international law." / "Explain monism and dualism, and appraise Nepal's position with reference to the Constitution and the Nepal Treaty Act." Short questions: Oppenheim's definition; par in parem; Westphalia; pacta sunt servanda; the Lotus presumption; transformation vs. direct effect; VCLT Articles 26, 27.
Trick areas: (i) Section 9(1) of the Treaty Act makes ratified treaties prevail over ordinary statutes — do not write "over the Constitution" (the Constitution remains supreme); (ii) Article 279 supplies the ratification classes and majorities — two- thirds for the four grave classes, simple majority for ordinary treaties; (iii) the Austin answer needs all three limbs (opinio juris, sanction, adjudication) — one limb alone half- answers; (iv) monism/dualism is about domestic effect of international law, not about which law is morally superior; (v) the development ladder's dates: 1625 Grotius, 1648 Westphalia, 1815 Vienna, 1919 League, 1945 UN.