Compliance without Ratification: Applying Transnational Legal Process Theory to the Criminalization of Enforced Disappearance in Nepal

Abstract

Enforced disappearance constitutes a grave violation of human rights, infringing multiple fundamental rights, including liberty, security, recognition before the law, and in many cases, life. The International Convention for the Protection of All Persons from Enforced Disappearance (CEDP) (2006) stands as the principal international instrument dedicated to preventing and addressing enforced disappearance. Although Nepal is not a state party to the CEDP and is therefore under no direct treaty obligation to incorporate its provisions into domestic law, it has nonetheless criminalized enforced disappearance under Section 206 of the National Criminal Code (2017). Existing scholarship generally explains the reception of international law through the traditional doctrines of monism and dualism. Moving beyond this dichotomy, this study examines the relevance of Harold Hongju Koh’s transitional legal process theory to examine how international human rights norms permeate Nepal’s domestic legal framework. Specifically, it assesses the extent to which the processes of interaction, interpretation, and internalization have influence Nepal’s legal response to enforced disappearance despite the absence of treaty ratification. Particular attention is given to the landmark decision in Rajendra Dhakal and others v. Government of Nepal (2007), in which the Supreme Court directed the Government to criminalize enforced disappearance in accordance with international human rights standard. Employing a qualitative doctrinal methodology grounded in an extensive review of legislation, judicial decisions, international instruments, and academic literature, the study demonstrates how international human rights norms may permeate domestic legislation through judicial interpretation, legislative reform, and transnational legal processes even in the absence of binding treaty obligations.