Implementation of International Treaties and Conventions on Human Rights in Nepal
Introduction
Human rights are the
fundamental and inalienable rights which are essential for life as human being.
It is irrespective of the persons’ nationality, race, religion and sex etc.[1]
In the past more than fifty years, the issues of human rights have been
enormously discussed by the most of the countries of the world. After the
promulgation of Universal Declaration of Human Rights (UDHR) 1948[2],
many nations of the worlds have shown their acquaintance towards it and adopted
many approaches from national level, regional level as well as international
level. The commitment shown by the host nations towards the human rights
related treaties and conventions obliges them to ensure and practice those
norms of human rights in the respective nations.
Of all those treaties and
conventions on human rights, the Paris Declaration relating to the Status of
National Institutions, 20 December 1993 is one that talks about a
particular focal institution for the monitoring and study of the situation of
human rights in a particular host nation.
Besides this, the Vienna Convention on
the Law of Treaties 1969 in its preamble states that states are determined to establish conditions under
which justice and respect for the obligations arising from treaties can be maintained.[3]
Nepal
has become state party to 21 international human rights related conventions and
that include 7 core conventions. Nepal treaty law defines that all those
conventions ratified by Nepal are equal to the statutory law.[4]
In this regard with respect to all the international obligations arising from
the treaties as well as per the obligation arising from the Article 9 of the
Treaty Act 1990[5], Nepal
is obliged to implement those provisions in its domestic laws.
Nepal has shown its acquaintance with its
obligations arising due to its ratification of the international treaties and
conventions on human rights. The establishment of National Human Rights
Commission, prevalence of the particular Law and Human Rights Department in the
Office of Prime Minister and Cabinet of Ministers, International Law, Treaty
and Human Rights Division in the Ministry of Law and Justice and so on. To some
extent, these government agencies seem to be working in the area of
implementation of international human rights laws in the domestic laws.
However, if the pace of work of these agencies is looked into, the situation is
not what ought to be.
Institutions working for the implementation of the
international treaties on human rights
i.
National Human Rights Commission of Nepal
National Human Rights Commission of
Nepal is one of the Constitutional Body of Nepal as guaranteed by the
Constitution of Nepal[6]. It is worth noting that as it was established
in 2000, it was not established as a constitutional body by the Constitution of
the kingdom of Nepal . It was established on May 26, 2000 Under the Human
Rights Commission Act 1997 [7]
and is mandated relating to the promotion and protection of Human Rights. For
this it can conduct inquiries, investigations and recommendation action against
the perpetrator on the matters of violation or abetment of human rights of a
person or a group of persons upon the complaint [8]by
the victim or any person on her/his behalf.[9]
Also, it can recommend the government to make necessary reforms and amendments
in the prevailing laws relating to human rights.[10]
Human Rights Commission Act 2053 is the act which
established the National Human Rights Commission as an independent and
autonomous body for the effective enforcement as well as protection and
promotion of Human Rights conferred by the Constitution and other Prevailing
laws.[11]
It includes the Provisions relating to
the constitution of the Commission and terms of service of Members, functions
and procedures of omission, functions and duties of the commission and other
provisions relating to human rights.
Talking about the role of
National Human Rights Commission in the implementation of international
treaties and conventions on human rights, it plays a recommendatory role. Article
9(g) of the Human Rights Commission Act 2053 has
given the power and duty to recommend Nepal Government for the effective
implementation of the related provisions of the international treaties and
instruments in human rights. [12]
However, with the promulgation of
the Interim Constitution of Nepal 2063, it included National Human Rights
Commission as a constitutional body and in Article 132 (g) of the Constitution;[13]
it has stated the similar power to the Commission as stated in Section 9(g) of
the Human Rights Commission Act 2053.
In the Three Years Human Rights National Action Plan (FY
2067/68-2069/70) has obliged the Commission to evaluate the implementation
status of the International treaties submitted by the particular Ministries. [14]
ii.
International Law, Treaty and Human Rights Division
International Law, Treaty and Human
Rights Division is the division under the Ministry of Law and Justice of Nepal.
Basically this division deals with the implementation
of international treaties and conventions as a whole to which Nepal has been a
party with or without ratification. It works
on recommending the government for its entry into any international treaties or
conventions. It provides the government with the recommendations about the
consequences[15]
arised upon the ratification of those treaties and conventions. Besides, it
also works as an agency for recommending the particular ministries in their
activities in the implementation of international treaties and conventions. It
is such that the ministries usually form a Task Force for that purpose where
the members from this division are included for taking the recommendations. [16]
iii.
Law and Human Rights Department
Law and Human Rights Department is
one of the most important agency that holds major executive role in the promoting
and co-coordinating the implementation status of the international treaties and
conventions in human rights. This cell
is under the Office of Prime Minister and the Council of Ministers. The Cell
consists of a Law Department and a Human Rights Promotion Sectoin.This agency
is also the resource center for the Office of United Nations High Commission
for Human Rights (OHCHR). [17]It
coordinates and harmonizes human rights related matters with various line
agencies. Its main functions are:
a.
Seeking
recommendations from the International Law, Treaties and Human Rights
Department Under Ministry of Law and Justice for its entry into any
international treaties or conventions on human rights, their scopes, challenges
and technicalities.
b.
Co-coordinating with the
respective ministries in their works in the course of implementation of
international obligations in human rights raised from its ratification on those
treaties.
c.
Upon the any
recommendations from the National Human Rights Commission for the
implementation of international treaties and instruments in human rights, the
Cell is the first instance to receive those kind of recommendation. Then it
forwards those recommendations to the respective ministries for their
implementation and gives back reply to the National Human Rights Commission
within three months. [18]
Procedures involved in the imple Procedures involved in the
implementation of the treaties and instruments in human rights.
i.
Procedures involved in the International Law, Treaties and
Human Rights Department
The Department does not take part in any phase of implementation
phase of international treaties and instruments in human rights. But, it is the
focal point for the Government of Nepal to seek the recommendations about the
scope, challenges and technicalities while ratifying any international treaties
and instruments. The Department provides the government with the recommendation
to a possible extent. Besides the ministries who has the responsibility of
implementing the provisions of the respective international treaties and
instruments in human rights usually form a Task Force for that purpose where
the members from this division are included for taking the recommendations.
ii.
Procedures involved in National Human Rights Commission
The procedures involved in the function as
provided by the particular article of the act are as follows:
- The Commission first involves in the doctrinal
research of the particular issue.
- After that it involves in the dialogue with
members of the civil society as well as other Non-Governmental Organizations
in this regard and prepare the report.
- The report recommending the government to
implement the international treaties and conventions on human rights
should be approved by the meeting of 5 Commissioners of the commission.
- Such a report is submitted to the Office of Prime
Minister and the Cabinet of Ministers.
- Such an address of from the commission through
the report should be replied by the particular ministry within 3 months.
If the reply does not come, the Commission again approaches the
Government. [19]
iii. Procedures involved in the Law and Human Rights
Department in Nepal
The recommendations sent from
the National Human Rights Commission for the implementation of the treaty
provisions of human rights are received by this cell. As being the coordinating
agency, based upon the recommendations of National Human Rights
Commission, it informs the respective ministries who are supposed to work on
the implementation of the particular human rights provision embodied the
international treaties. The cell is also responsible for submitting a written
report about the status of implementation to the National Human Rights
Commission as recommended by it within three months of its dispatch from NHRC.
iv.
Procedures involved in the Particular Ministries:
There are no particular
procedures involved in implementing the obligation due to international instruments
on human rights. It differs from ministries to ministries and also the style of
the leadership. So far as the procedures adopted by Ministry of Women, Children
and Social Welfare, the issues of domestication of international obligations
under the jurisdiction of the particular Ministry when are noticed by the Law
and Human Rights Department under the Office of Prime Minister and Cabinet of
Ministers or from other sources[20],
the Ministry conducts text review of those obligations related to women and
children. For this purpose, the Ministry may form a Task Force comprising the
experts, representatives from the Ministry of Law and Justice as well as other
Ministries. After working on that, the Ministry decides whether those
obligations can be addressed by putting them in the annual plan and policy of
the Ministry. The Ministry then decides the suitable means for the possible
implementation of those obligations like through the means of making necessary
amendments in the existing legislations, enactment of new legislations or other
suitable methods. In the situation the new legislation is to be drafted, the
Ministry drafts such a bill and forwards it to the Ministry of Law and Justice
for editing purpose and to other Ministries for their comments. After that the
draft bill is forwarded for its implementation as law as per the procedures stated
by the Interim Constitution of Nepal 2063 as well as other relevant
legislations. [21]
Practices
i.
Practices in National Human Rights Commission:
Dr. Bipin Adhikari in a Seminar on
Reporting to Treaty Bodies November 16, 2003 says that the practice of the
National Human Rights Commission on performing what is referred in Article 9(g)
of the Act is not satisfactory. He has pointed out many problems within the
National Human Rights Commission. Up
to date NHRC has recommended on most of the international treaties and
conventions on human rights for their domestication, but so far it has been
found on the basis of the research found, only 3 of them are subjected to an
study of the status of domestication.[22]
They are:
a.
International Covenant on Civil and Political
Rights (ICCPR)
b.
Convention for Elimination of All forms of
Discrimination Against Women (CEDAW)
c.
Convention on the
Rights of Child (CRC)
But rest of the Other important
international treaties and instruments on human rights like Convention Against
Torture (CAT), Convention on the Rights of Persons with Disability, Rome
Statute of ICC, Protection of all Migrant Workers and Members of their
Families, Convention Against Enforced Disappearance etc. although have already
been recommended by NHRC for its implementation, they are not being put a
subject matter of study for its implementation in its domestic laws.
ii.
Practices in International Law, Treaties and Human Rights
Division
International Law, Treaties and
Human Rights Division focuses only within giving recommendations to the Nepal
Government when it decides to ratify any international treaties and instruments
on human rights. Besides, it also plays advisory role in recommending the
ministries the possible measures for the implementation of the treaty
obligations of human rights. Besides that, the Division does not take any
concern about the implementation status of those treaties and instruments.
Till date, the division has
recommended the Nepal Government in all the international treaties and
instruments in human rights Nepal has ratified. [23]
iii.
Practices in Law and Human Rights Department
The Law and Human Rights Department under the Office of Prime
Minister and Council of Ministers as stated earlier holds the most crucial role
in the implementation process of international human rights instruments in
which Nepal Government has ratified. More recently, the Nepal Government has
submitted the Universal Periodic Review to the Human Rights Council of UN in
December 2010.[24]In
the report. It has stated[25]that
it has repealed the traditional caste system and also attempted to end
caste-based discrimination by eliminating untouchability and caste hierarchy.
The 11th and 12th Amendments in the Muluki Ain have made
reforms in the existing provisions particularly on property, marriage, divorce
and abortion in compliance with the major instruments on women’s rights.
Besides that, it also states that he Government of Nepal is currently drafting
civil code, penal code, sentencing legislation and civil and criminal procedure
codes, which will upon promulgation, codify relevant laws and abolish a range
of laws and practices that are still perceived to be discriminatory. Similarly,
the rights of the children, women’s rights, right against torture and rights of
persons with disabilities are the sectors where the Government of Nepal have
enacted specific laws.
In the Three Years Human Rights National Action Plan (FY
2067/68-2069/70), the office has stated that the existing laws of Nepal shall
be reviewed with reference to the international human rights instruments to
which Nepal has been a party and formulate an action plan to formulate them.
Similarly, it has also stated that an Inter-Ministerial Unit will be
established which would be obliged to make the report that Nepal has to submit to
the respective human rights committee under UN.[26]
iv.
Practice of execution of obligations of international human
rights instruments by the Ministries of Nepal
The obligations of international
human rights instruments differ according to the nature of the instruments and
the respective ministries are obliged for their execution.In the research, the
role of implementation of such obligations by the Ministry of Women, Children
and Social Welfare and the Ministry of Home Affairs were made the sample of
study.
a. Ministry of Women ,Children and
Social Welfare:
The issue of women and
children is in fact, the mostly found to have been addressed by Nepal
Government. In this aspect, the role of the government itself, NGOs and INGOs
working in this area, as well the efforts from law schools and universities are
responsible. So far the issue of women is concerned, the obligations arised due
to Nepal’s ratification on Convention on
the Elimination of All Forms for Discrimination against Women (CEDAW
Convention) on April 22, 1991 without any
reservation, the government of Nepal submitted its initial and second and third
periodic reports on 2000 and 2004 respectively.
Accordingly, the CEDAW committee provided its recommendations on
seventeen areas which includes: Amendment of Discriminatory Laws against Women;
Citizenship/Nationality; National Machinery for Women; Participation of Women
in Peace building; Access to Education; Cultural practices; Marriage and Family
Relations and Other Practices; Anti-trafficking; Access to Health Care
Services; Political participation; Access to land; Refugee Women; Periodic
Report and Dissemination of Concluding Comments; Ratification of Optional Protocol;
Gender Sensitization; Wage Discrimination and Special Measures for Women; and
Information on Rural Women.[27]
In
its report to the CEDAW Committee[28], the
ministry stated that in accordance with CEDAW, 65 discriminatory provisions
have already been eliminated while the Ministry has proposed 60 provisions and
19 different acts for amendment which are not consistent with the provisions of
CEDAW or insertion of new gender friendly provisions. Besides that, the
ministry has also presented a Draft Bill on “An Act to Amend Some Nepalese Acts
to Make or Maintain Gender Equality 2011” which has already been sent to the Parliament
for ratification. More presently, the Ministry is has been working on the
promulgation of an act to eliminate all forms of traditional violence against
women.[29]
b.
Ministry of Home Affairs:
In the study of practice adopted by
the Ministry of Home Affairs, it was found that although the work on the
implementation of international treaty obligations which falls under the
responsibility of Law Department of the Ministry, the Local Administration
Section of the Ministry has been doing such work. It was found that the Ministry
has drafted the bill regarding the Protection of Witness which is due at the
Parliament for the comment. Several amendments in the prevailing laws, bi-laws,
regulations etc have been made in order to comply with such treaty obligations.
Besides that, the Ministry is found doing no effort in the implementation and
status review of the several provisions of ICCPR which falls under the domain
of this Ministry.[30]However,
the Annual Report of the Status of ICCPR in Nepal is not to have been sent to
the UN on time. The second, third and fourth of such edition was submitted in a
combined form.[31]
Obstacles
In the study, the agencies which
were selected pointed a common problem for the implementation of international
instruments on human rights i.e. Transitional Period in Nepal. All of the
agencies contended that the 12 Years of Armed Conflict followed by the
transitional period has put an obstacle in the working in this area.
The obstacle encountered by National
Human Rights Commission were the non-responsive nature of Nepal Government towards
the recommendations made by the Commission[32]
and the lack of qualified personnel in the commission
as an obstacle.
Office of Prime Minister and
Council of Ministers contend that it generally takes a minimum time of 5 years
to promulgate any laws due to the long procedures involved in it.
Ministry of Home Ministry finds
the lack of technically qualified personnel in this regard as an obstacle for
carrying out the obligation efficiently.
According to the Ministry of
Women, Children and Social Welfare, the style of leadership determines the
homework for the implementation of the international human rights instruments
under the domain of this Ministry.
Conclusion
In the study
in the various agencies of Nepal Government responsible for the implementation
of international instruments of human rights in which Nepal has been a party,
it was seen that there was at least one Law Department in each Ministries to facilitate
in this particular task.[33]
Three Years Human Rights National Action Plan (FY 2067/68-2069/70) has also the
provision for the establishment of an Inter-Ministerial Unit to prepare the
report of the implementation status of every international human rights
instruments on time. In the research, it was found that the Office of Prime
Minister and the Council of Ministers and the Ministry of Law and Justice are attending
in a series of meetings and discussions to discuss the possibility of shifting
all the authority of the particular Law and Human Rights Division to the Ministry of Law and Justice in
order to get the benefit of the expertise. Most probably the concept of the
Intra-Ministerial Unit incorporates such an effort.
However, so far as the functioning of these
departments is concerned, it was not found satisfactory. When the researcher
asked for the authentic report and the progress report about their functioning,
most of the agencies could not show it.[34]There
were even some Gazetted Second Class Officers who contended that the
obligations towards the domestication of international human rights instruments
are the impositions for the least developed countries like Nepal and the powerful
nations were immune from its violation.[35]Many
of the Government officials pointed the mistake of others for not being the
work properly done. However, a great progress in the domestication process was
seen in the respect of women and children. It can be seen from the focus made
by the Nepal Government in its Universal Periodic Review of December 2010.[36]
National Human Rights Commission of Nepal in one hand
argues that Nepal Government has not been so much responsive in the
implementation of the international instruments of human rights. Up to now, NHRC
Nepal has reviewed on only three instruments and rest of the instruments, for
their implementation, needs the wish of the leader or the shortening of the
deadline for the submission of the reports of particular treaty. As stated by
Dr. Bipin Adhikari in a Seminar on Reporting to Treaty Bodies November 16,
2003, the work of Nepal Government in the implementation of those obligations
is ad-hoc in nature. Although there is a Law Department in every Ministries,
except some exceptions, work in ad-hoc basis.[37]
A clear example in this regard can be seen in the Ministry of Home Affairs
where the task which was assigned for the Law Department is being done by the
Local Administration Section under the excuse that the Local Administration
Section has been doing such work from long ago.
The reasons behind the prevalence of such
problems in the implementation of the international human rights instruments are
laden with many causes in which the political instability and transition, lack
of qualified personnel, lengthy process in the promulgation of new laws etc.
These are very genuine causes which
obstructs the smooth functioning of the task.
The ratification or accession to, international
human rights instruments obligates the contracting parties to rationalize
domestic laws.[38]The
status of any state with its due commitment towards the several international
instruments of human rights in one hand but on the other hand, prevalence of
the contradictory legal practices to that of the norms of those instruments as
well as the constitution clearly shows the failure of the government and its
responsible agencies. There is no point on blaming each other for the
inefficient job rather there is the liability in the wholesome. Human Rights as
said by the higher officials, is not in fact, a false expectation for the
people of least developed countries rather if they are properly followed, cause
no harm at all. Rather it should be taken as an opportunity to revisit the legal
system and rationalize it if necessary. The overall work of Nepal Government in
the implementation of international human rights instruments is found far
beyond satisfaction. This does not signify that no work has been done at all. The
work of the Nepal Government to work on this aspect in an ad-hoc manner is not satisfactory,
rather it could have set the priorities of implementation of those obligations
and work on it accordingly. For example: It has been such a long time Nepal
became a party of Convention Against Torture (CAT). There is an urgency in the
proper implementation of CAT rules in order to ensure the criminal justice
system as provided by the Interim Constitution of Nepal 2063 as well as Civil
Rights Act 2012. And for this, strong monitoring and supervising this work, the
mechanisms within the Nepal Government must be developed and the periodic
review of the status of the implementation of such instruments should be
prepared and should be put under evaluation and acting accordingly. National
Human Rights Commission also must be prompt and effective in recommending for
the proper implementation of the international instruments in human rights and monitor
the implementation status of them.
[1] Dr.
S.K. Kapoor, International Law and Human Rights, 17th Edition,
Central Law Agency, 799
[2]
Prior to UDHR, the Charter of the United Nations represents a significant
advancement so far as the faith in and respect for human rights is concerned.
[3]
Preamble of Vienna Convention on
Law of Treaties 1969 – Recalling the
determination of the peoples of the United Nations to establish conditions
under which justice and respect for the obligations arising from treaties can
be maintained,
[4] The Report of the NHRI of Nepal on the UPR
Processes, July 5, 2010
[6]
Article 131of Interim Constitution of Nepal
[7]
NHRC-Nepal; A Brief Overview, National Human Rights Commission of Nepal, 12
[8]
During the Year of 2010, 553 complaints of Human Right sViolations were filed
at Various offices of NHRC
[9]
Article 132(2)(a) of Interim Constitution of Nepal 2063
[10]
Article 132(2)(f) of Interim Constitution of Nepal 2063
[11]
Preamble of the Human Rights Commission Act 2053
[12] Article 9(g) of the Act
states the in the functions and duties of the commission as “Study
international treaties and instruments on human rights and submit the necessary
and appropriate recommendations to His Government of Nepal for effective
implementation of the related provisions.”
[13] (g) to recommend with reasons to the Government of
Nepal to become a party to any international treaties and instruments on human
rights, if it is required to do so, and to monitor the implementation of the
international treaties and instruments of human rights to which Nepal is a
Party and if found not being implemented, forward recommendations to the
Government of Nepal for effective implementation of such instruments,
[14]
Three Years Human Rights National Action Plan (FY 2067/68-2069/70, Nepal
Government, Office of Prime Minister and Council of Ministers, 112
[15] The
consequences here means that the particular division recommends the government
what types of domestic laws are to be legislated if the state undergoes
ratification of a new treaty. It also recommends the government about the laws
that may result inconsistent with the international treaties. Besides it also
recommends the government about the necessary reservations in the treaties as
per the provisions of reservations provided in the treaties or conventions
themselves.
[16]
The information stated in this particular heading is based on the interview of
Mr. Narendra Man Shrestha, Joint- Secretary, International Law, Treaties and
Human Rights Department of Ministry of Law and Justice.
[17] Universal
Periodic Review, National Report of Nepal submitted in Accordance with Paragraph
15(A) of the Annex to the human rights Council Resolution 5/1. Nepal
Government, Office of Prime Minister and
the Council of Ministers, 8
[19]
The procedures are based on the interview taken with Mrs. Uma Joshi and Mrs.
Kalpana Jha, the Human Rights Officers of NHRC.
[20]
Here ‘other sources’ means different NGOs, INGOs working on the particular
sector.
[21] The
information is based upon the interview taken with Mr, Sher Jung Karki,
Under-Secretary(Law Department), and Sunita Nepal, Section Officer (Department of
Women) Ministry of Women, Children and Social Welfare, 2068/01/23
[22] The
information is based upon the interview taken with Mrs. Kalpana Jha, Human
Rights Officer,
[23]
The information stated in this particular heading is based on the interview of Mr.
Narendra Man Shrestha, Under-Secretary - Secretary, International Law, Treaties
and Human Rights Department of Ministry of Law and Justice. At 2068/01/21
[24]
Universal Periodic Review, National Report of Nepal submitted in Accordance
with Paragraph 15(A) of the Annex to the human rights Council Resolution 5/1.
Nepal Government, Office of Prime
Minister and the Council of Ministers
[25]
Ibid 4
[26] See:
Three Years Human Rights National Action Plan (FY 2067/68-2069/70, Nepal
Government, Office of Prime Minister and Council of Ministers, 111,112
[27] The Implementation Status of Concluding Remarks and Recommendations made
by the CEDAW Committee to Nepal, Report,
2009 Submitted to: National Human Rights Commission
(NHRC); Submitted by Advocate Shom Prasad Luitel,
Advocate Purna Shrestha
[28] The
Issues and Questions With Regard to the Consideration of the 4th and
5th Periodic Combined Report of Government of Nepal on CEDAW 2011;
Submitted to the Committee of the Elimination and Discrimination Against Women.
[29]
The information is based upon the interview taken with Mr, Sher Jung Karki,
Under-Secretary(Law Department), Ministry of Women, Children and Social
Welfare, 2068/01/23
[30]
The information stated in this particular heading is based on the interview of
Mr. Mahendra Prasad Sakhi, Section Officer, Law Department, Ministry of Home
Affairs. At 2068/01/25
[31] The
information stated in this particular heading is based on the interview of Mr.
Mahesh Parajuli, Section Officer, Local Administration Section, Ministry of
Home Affairs. At 2068/01/25
[32]
It is rule that the recommendation made by the Commission to the Nepal
Government should be responded with a report within three months.
[33]
Those types of departments are established as an organ of Ministry of Law and
Justice under different Minsitries.
[34] Many
agencies like Ministry of Home Affairs, Office of Prime Minister and Council of
Ministers etc. said that the documents demanded by the researcher is about to
be published within one week and prior to that it can’t be shown so as to
maintain the secrecy. However, in this
regard, some of the documents were shown by the Members of NHRC, Ministry of Women,
Children and Social Welfare, Office of Prime Minister and Council of Ministers.
[35]
The Government Personnel gave the recent examples of US attack upon Libya and
Pakistan and urged the researcher to be more analytical in this aspect.
[36]
In this aspect, the active role of different NGOs and INGOs working in this
sector was also considered important by the Ministry.
[37] An
Officer said that Nepal Government was in the hurry to submit the Universal
Periodic Review (2010) to the UN Committee, so it prepared the UPR just for the
sake of submission and merely with the consultation of experts.
[38]
Yubaraj Sangroula, Concepts and Evolution of Human Rights: Nepalese
Perspective, Kathmandu School of Law, 237
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