Committee on Economic, Social and Cultural Rights concludes consideration of report of Nepal

Committee on Economic, Social
  and Cultural Rights

20 November 2014

The Committee on Economic, Social and Cultural Rights today concluded its consideration of the third  periodic report of Nepal on how it implements the provisions of the International Covenant on Economic, Social and Cultural Rights.

Raju Man Singh Malla, Secretary, Office of the Prime Minister and Council of Ministers of Nepal, presenting the report, reiterated Nepal’s unflinching commitment to respect, protect and fulfil basic human rights and fundamental freedoms of all people.  There had been significant progress since the submission of the third report.  Despite unflinching commitment and efforts, Nepal had been lagging behind in full achievement of some of the targets and in fulfilling its obligations, and faced numerous challenges.  While aware that much still had to be achieved, Nepal believed it was on the right track and the privilege of an open and democratic regime always served as a platform to bring change for improvement and to rectify the wrong course of action, if any, where appropriate.

During the interactive dialogue Committee Experts raised issues relating to, among others, the constitutional drafting process, the impact of the International Covenant on Economic, Social and Cultural Rights on the domestic legal order; the ability of women to transfer their citizenship to their children; school drop-out rates; policies currently being implementing to end harmful traditional practices, particularly against children; the National Commission for Human Rights; bonded labour; and refugees and internally displaced persons. 

In concluding remarks, Mr. Malla said that Nepal was pleased to participate in this interactive dialogue which was very motivating to adopt further measures to implement the International Covenant on Economic, Social and Cultural Rights.  The Government highly valued international human rights instruments and had shown unflinching commitment.  However, it was aware that much more needed to be done despite progressive outcomes, and requisite resources were needed.  Concluding observations of the Committee would provide a practical framework to adopt a more inclusive development approach. 

Maria-Virginia Bras Gomes, Committee Rapporteur and Country Rapporteur for the report of Nepal, thanked Nepal for this constructive dialogue.  It was hoped that the final constitution would come as fast as possible, hopefully by mid-January.  Nepal had come out of a painful conflict process and efforts undertaken were recognized, but normative gaps had also been signalled.  It was hoped that in the concluding observations some suggestions and recommendations on how to reduce those gaps would be found.  It was also hoped that constructive cooperation with non-governmental organizations would be maintained. 

Zdzislaw Kedzia, Chairperson of the Committee, thanked the delegation for its very constructive attitude to the dialogue, which was very helpful.  The Committee had learnt a lot about the transformation process in Nepal, which was certainly facing a lot of challenges but was also already able to note significant steps forward, which was encouraging.  There was a need to cross fingers that the constitution development process would be finalized before the deadline established. 

The delegation of Nepal  included representatives of the Office of the Prime Minister and Council of Ministers, the Ministry of Finance, the National Planning Commission Secretariat, and the Permanent Observer Mission of Nepal to the United Nations Office at Geneva.

The Committee will resume its meeting this afternoon, at 3 p.m., to begin its consideration of the combined third to fifth periodic report of Romania (E/C.12/ROU/3-5).
 
The Report

The Committee is considering the third periodic report of Nepal (E/C.12/NPL/3).

Presentation of the Report
 
RAJU MAN SINGH MALLA, Secretary, Office of the Prime Minister and Council of Ministers of Nepal, presenting the report, reiterated Nepal’s unflinching commitment to respect, protect and fulfil basic human rights and fundamental freedoms of all people.  Nepal had been heading towards the constitution making process through the inclusive and well represented Constituent Assembly.  The political transition after a decade long armed conflict had been coming to an end, bringing more stability to facilitate peace and development in the country with considerable structural transformation.  The Government’s approach to the development process was gradually taking a major shift by introducing a holistic and multi-faceted human rights-based approach in development, governance and jurisprudence.  The Interim Constitution of Nepal broadened the scope of human rights and recognised their interdependency by incorporating a bundle of economic, social and cultural rights, and by realising the fact that those basic rights were inevitable for the full enjoyment of basic liberty.

Legislative, executive and judicial branches had shown genuine concerns and activism within respective jurisdiction to internalise the International Covenant on Economic, Social and Cultural Rights in the domestic system, including careful consideration of concluding observations and recommendations adopted by the Committee in relation to Nepal’s second periodic report.  The Government had been working to strengthen the national human rights institutions to perform their mandates in an autonomous and independent manner. The Government had also been working closely with civil society as an actor of development and social mobilisation, particularly for the effective utilisation of local resources, awareness-raising, promotion of downward accountability and for receiving input in order to reform measures towards the full realization of human rights.

There had been significant progress since the submission of the third report.  A bill to criminalise sexual harassment against women in the workplace had recently been passed.  Important bills against witchcraft practicing, and amendments to end gender based violence and to maintain gender equality, among others, had been submitted to the Legislature Parliament.  Similarly, the Government was engaging in efforts to finalise  bills to criminalise all kinds of harmful traditional practices against women, to control dowry and other ill practices, employment guarantees, and a new bill on children.

Nepal had made considerable achievements such as in a gradual decrease in poverty, increase in access to education, enrolment and literacy rates, an increase in child immunization, access to family planning devises and services, a decrease in maternal and child mortality rates, efficient functioning of specialised institutions for anti-corruption initiatives, establishment of policy and organizational frameworks for the rehabilitation of freed bonded labourers, rescue and rehabilitation support for victims of gender-based violence, and fast track court proceeding to deal with cases of children and gender-based violence, among others.  

Through successive periodic development plans Nepal had shown its commitment to accelerating economic growth and distributive justice for the overall wellbeing of all people.  Despite unflinching commitment and efforts, Nepal had been lagging behind in the full achievement of some of the targets and in fulfilling its obligations, and faced numerous challenges.  Prolonged political transition after a decade-long armed  conflict, weak national consensus on prime economic issues, absence of elected local bodies, energy crisis, alarming trade deficit, insufficient infrastructures, difficult geographical set-up, poor industrial relations and socially and culturally interwoven ill practices, among others, had been significant threats.  While aware that much still had to be achieved, Nepal believed it was on the right track and the privilege of an open and democratic regime always served as a platform to bring change for improvement and to rectify the wrong course of action, if any, where appropriate.

Questions by Experts

MARIA-VIRGINIA BRAS GOMES, Committee Rapporteur and Country Rapporteur for the report of Nepal, said that significant progress had been made since the Comprehensive Peace Accord of 2006, and the adoption of the interim constitution in January 2007, which had incorporated many economic, social and cultural rights.  Much of the information provided was in the future tense, or in the conditional tense.  On the constitutional drafting process, was this close to finalization?  What were the remaining challenges?  Though it included a number of guarantees protecting economic, social and cultural rights, these rights could not be effectively enjoyed as there was a lack of a legal framework.  Nor could the rights be realized without adequate budget allocations.  What was the allocation of domestic resources, and in what ways was official development assistance utilized?  On internally displaced persons, most persons displaced during the armed conflict had not yet returned to their homes.  Could an assessment be provided on the situation of internally displaced persons?  Registered Dalits continued to face great discrimination in terms of access to education, health services, land and income activities, among others.  Dalit women in particular were subject to discrimination.   What were the main obstacles in this regard? 

An Expert asked for clarification on the impact of the Covenant on the domestic legal order. 

Another Expert enquired whether women could transfer citizenship to their children.  Could women inherit property as well as men?  If there was equality in law, how was it implemented?  What was the system envisaged to implement the law against witchcraft practicing, if passed?  What policies were currently being implemented to end harmful traditional practices, particularly against children?  On investigation of sexual violence committed during the armed conflict, could more information be provided?  There was information that human rights defenders working on sexual violence were facing threats.  Was there awareness of this fact and what measures were there to counter this? 

On the National Commission for Human Rights, this appeared not to be independent or working properly, and it was not in accordance with the Paris Principles.  Had the Government considered addressing this situation? 

It was understood that bonded labour was now illegal.  Could it be confirmed that no one was living under that system any longer, asked an Expert? 

What measures were envisaged to curb corruption, enquired another Expert?

MARIA-VIRGINIA BRAS GOMES, Committee Rapporteur and Country Rapporteur for the report of Nepal, on non-discrimination in the interim constitution, said it did not incorporate all grounds for discrimination, such as on property and birth.  Was there a plan to broaden the grounds for discrimination in the new constitution?  On refugees, there was still no refugee law, which restricted their enjoyment of economic, social and cultural rights.  Would there be a bill on recognition of refugees?

What measures would be put forward to deal with the high percentage of the population working in the informal sector, enquired an Expert? 

There had been work to develop a national employment policy mentioned in the replies, noted another Expert.  Did that mean that until now Nepal had not had a national employment policy in place?  If so, was there a target date for adoption of such a policy?  What percent of public sector jobs were held by persons with disabilities?

An Expert said that Nepal was a country with one of the highest child labour rates in the world, which was very worrying.  There were cases of 12, 14 or 16 hour working days for some of these children.  What measures were being taken to address this very important issue? 

Ms. Bras Gomes, in relation to informal employment, drew attention to the particularly difficult situation of women.  Were there any targeted measures for women under these circumstances?  It seemed that bonded workers had been freed but still faced difficulties as they lacked skills and access to land.  What was the assessment of the delegation on this issue?  Women that migrated to the Gulf countries were now subject to age criteria.  Could nothing more be done in terms of bilateral agreements, rather than restricting opportunities for women in this regard?  What measures were there to protect domestic workers? 

Response by the Delegation

In response to these questions and comments, the delegation said that despite adversities, Nepal had been gradually moving towards the realization of economic, social and cultural rights through constitutional, legal and institutional measures and targeted programmes, in an integrated manner.  It was hoped that in January the new Constitution would be promulgated.  Nepal was in a transition phase.  Until or unless there was a new Constitution, there would be many difficulties in applying various provisions of the International Covenant on Economic, Social and Cultural Rights. 

The National Human Rights Commission had been developed as an independent constitutional body.  It enjoyed  structural, functional and financial independence in compliance with the Paris Principles. 

Regarding anti-corruption initiatives, Nepal was now a State party to the United Nations Convention again Corruption.  There was legislation to criminalise and prevent corruption.  Specialized institutional structures had also been established, which had been actively engaged to prevent corruption.  There was a zero-tolerance policy on corruption.

Gender equality in education had improved substantially and the 2015 target regarding equal access of girls and boys to primary education had already been achieved.  Women’s participation in public life had also improved.

On internally displaced persons,  the Government had taken many steps for effective remedy for conflict victims, including reparations and interim relief.  There had been many guidelines, policies, programmes and schemes, to integrate and rehabilitate conflict victims.  Due consideration had been given to all conflict victims.  There were challenges.

On exclusion of Dalits, a National Dalit Commission had been established for the protection and promotion of their interests and rights, and specific measures had been taken.  There were obstacles however, despite Constitutional provisions and legal safeguards.  It may take time to change knowledge, attitudes and cultures deeply rooted in society.

Concerning citizenship and non-discrimination against women, a mother was entitled to transfer citizenship to her children as per Constitutional and legal provisions.  Around 100 laws had been amended to end gender-based discrimination.  There were still discriminatory laws, so proposals had been made to amend 30 laws.  There was a need to implement laws and policies.  Again, deeply-rooted customary values had to be changed and there was full commitment of the Government in this regard. 

On the investigation of cases of sexual violence in the armed conflict, there were problems and the issue was of concern.  There was a process to establish a transitional justice mechanism.  Once it was established, then all problems would be addressed.  It would ensure justice, reparations and other services to these victims.   

On human rights defenders, every person was entitled to enjoy any rights guaranteed by the constitution and laws.  No negative action had been taken on the exercise of these rights by the Government.  If there was any threat or reprisal, the Government was committed to taking action against the alleged perpetrators. 

Concerns were raised about convictions in cases of corruption, there had been very many cases that had resulted in convictions.

Regarding refugees, there were no specific laws at the moment.  The Supreme Court had given a verdict and the Government was in the process of preparing a bill.  Though not party to the United Nations Refugee Convention, Nepal fully recognized the principle of non-refoulement and shelter had been provided to Tibetan and other refugees.  They were entitled to exercise the rights guaranteed by the Constitution and laws.
 
Questions by Experts

Had an assessment of Nepal’s poverty reduction strategies been carried out, asked an Expert?  If so what conclusions were reached and results achieved?  What steps had been taken to ensure sustained food security and freedom from hunger in both the food surplus and food deficit districts, especially for disadvantaged and marginalized groups?  What measures had been taken to deal with the housing situation of the poor in urban areas?  Had there been instances of landless people with no security of tenure in rural areas, that had been forcibly evicted from lands they occupied?

What efforts were there to raise awareness of safe and legal abortions at the community level, enquired an Expert?  Did women know that abortion had been legalized?  Had the impact of the 2014 National Health Policy been assessed?

Another Expert noted the serious problem of child marriage.  What was the enforcement mechanism of the Law on Child Marriage?  With regards to birth registration, there had been information that there were 4 million persons in Nepal without nationality because of difficulties in birth registration.  Could the delegation comment on this?

Was there any legislation in place prohibiting and criminalizing corporal punishment, asked an Expert?  What measures were being taken to address trafficking of women and children, which seemed to be quite widespread? 

MARIA-VIRGINIA BRAS GOMES, Committee Rapporteur and Country Rapporteur for the report of Nepal, on drinking water and sanitation, said it appeared that there were programmes but that they were mostly concentrated in urban areas.  Couldn’t some official development assistance be used to provide drinking water and sanitation in rural areas? 

Another Expert enquired whether Nepal was going to recognize the rights of minority communities to their ancestral lands.

Relating to the right to education and minority languages, this was dealt with from a protection of cultural heritage point of view.  Were there any programmes in place or studies carried out on the possibility of access to services that indigenous persons may have access to in their own languages?  Had there been endeavours to promote education in indigenous languages?

Ms. Bras Gomes said drop-out rates were significant, with gender disparity.  What could be done to address this and ensure that girls in particular, stayed in school?

An Expert said there had been information that some 7,000 persons had sold their kidneys, had been tricked into doing this and been exploited by brokers.  Was there awareness of this problem?
 
Response by the Delegation

A lot still remained to be done to fully comply with the International Covenant.  To eradicate deep-rooted ill practices, there was a need for a social transformation.  This would not happen overnight and would take time.  Nepal was doing its best.  Gradual changes in society had been seen and people were becoming aware of their rights.  Once the constitution-making process was successfully completed, this would provide direction. 

A census would be conducted and data would emerge as to representation of the Dalits in the civil service.  On support to freed bonded labourers, a monitoring committee had been established, with representation of civil society and organizations that were directly involved.

On corruption, there was a penalty of a maximum of 10 years of imprisonment.  Additionally, there were provisions for an extra five years if high ranking Government officials were involved in charges of corruption. 

Follow-up Questions by Experts

If a Nepali woman married a foreign man, could the foreign husband obtain Nepali citizenship, just as a foreign woman who married a Nepali man could obtain citizenship?

Why did Nepal did not have a plan to ratify the United Nations Convention on Refugees, asked another Expert?

Response by the Delegation

As per current constitutional provisions and the Citizenship Act, there were two types of citizenship, by descent and under naturalization.  A person whose father or mother was a citizen of Nepal at his or her birth was entitled to obtain citizenship by descent.  On acquisition by naturalization, a foreign woman married to a Nepalese man would have to submit an application form, produce the marriage document and evidence of initiation of measures to renounce the former nationality.

Nepal was in the process of preparing a specific bill on the refugee issue.  Once this was finalized, then there would be more favourable conditions to consider being a party to the United Nations Refugee Convention. 

Follow-up Questions by Experts

Could more information be given on the provisions of the interim constitution and the Citizenship Act with regards to obtaining of citizenship, enquired an Expert?  Another Expert asked what happened to a child whose father could not be identified.  Did the law require that both parents be identified?

Response by the Delegation

The interim constitution clearly stated that every child found within the territory of Nepal and the whereabouts of parents were not known would, until they were identified, be deemed to be a citizen of Nepal.  If a father was not identified they could still obtain citizenship, with a remark that the father was not identified.

On poverty reduction, Nepal had started efforts in 2006 and implemented twelve periodic plans in this regard.  There had been a detailed analysis of poverty and Nepal had tried to define poverty as  a multi-dimensional phenomenon, of a mostly rural nature.  It had started to carry out a national living standards survey, to disaggregate data based on social groups.  A multi-pronged approach had been adopted, with activities to build capacity of persons, and implement social inclusion measures, among others.  

The importance of non-governmental organizations, civil society and the private sector in the national development process was recognized.  Poverty affected men and women in different ways, with inequality of opportunities for women.  Poverty in Nepal had been decreasing though the pace differed among various social groups and geographical regions.  It was slow among disadvantaged groups, particularly the Dalits.  Poverty reduction had been possible due to social sector investment and the implementation and effectiveness of targeted interventions, as well as the contributions of civil society.

Regarding school drop outs, assessments made had shown that there were various factors that contributed to high drop-out rates.  An analysis had to be done to identify the role of each factor in drop-outs.  There was a positive correlation between separate toilets for girls and having them remain and achieve in schools.

Concerning the maternal mortality rate, it was indeed among the highest in the world.  However, it had been sharply reduced and a lot had been achieved.  There would be continued focus and efforts  to reduce this further.

The Labour Act guaranteed basic working conditions, with provision for maximum hours of work, facilities, holidays, wages, health and safety, as well as paid and unpaid leave, among others.  Inspections were also carried out.  The Government had been working to ensure more exhaustive favourable working conditions.  Like many other poor and underdeveloped countries, a large part of the population was employed in the informal sector.  The Government was well aware of problems faced by workers in this sector, particularly women.  On work with regard to the national employment policy, this did not mean that there had been no previous strategy.  There were labour and employment policies enacted in 2006 and sectoral policies with specific strategies and programmes to ensure employment in the country.  When the new interim constitution was adopted, there had been a requirement to enact a specific and comprehensive national employment policy.

Discrimination against persons with disabilities was restricted in practice but the goal  was to eradicate it and ensure de facto equality.  The Government was making efforts to fully implement the Persons with Disabilities Act, though challenges and constraints remained.  There was also a specific act for the protection and provision of social security for senior citizens. 

On child labour, the engagement of children under the age of 14 was totally prohibited and specific programmes were directed to ending child labour.  A new children’s act would be drafted, as the current one was now quite old. 

The age bar for migrant women was limited only for some Gulf countries, for domestic work, to prevent women from exploitation, violence and discrimination, but not for other sectors of work.   

Follow-up Questions by Experts

An Expert was curious as to the criteria for determining poverty.  Another Expert enquired as to whether there were any plans to revise the Labour Act.   

Responses by the Delegation
 
The national poverty line calculation was based on the cost of basic needs.  It was calculated with various food items and other expenditures.  Over 70 countries in the world were also adopting this World Bank approach.  Poverty lines of the rural and urban sectors and different regions of the country were determined, and an average of these was then calculated. 

On the revision of the Labour Act, yes there was a plan to revise it and a bill had already been drafted in that regard.  The Ministry of Labour was in the process of submitting that bill for endorsement.  It was believed that it would address many issues that had not been addressed by the existing one. 

The Government was planning to formulate a specific legal framework with regards to food security and nutrition.  In the meantime, it had launched programmes, with the long term objective of reducing malnutrition.  Challenges were faced.  Once the legal framework with a rights-based approached was developed, then more specific programmes could be created.

On forced evictions, if there was an area and land where indigenous persons resided from a long customary period, due respect of those communities was given.  When there had to be specific development programmes in those areas, the policy provided alternative accommodation.

On abortion, this had been legalized since 2002.  Information about this had been massively disseminated through health facilities, volunteers, media, and by non-governmental organizations.  There was a programme for free access to safe abortions in public facilities.  The law prohibited child marriage, and child marriage had been a decreasing trend.  A fast-track system on taking action against child marriage had been established and there was awareness-raising on prevention.  Many measures had been adopted to address violence against women and the Government was working on reforming existing laws and ensuring specific safeguards for victims.  Any kind of corporal punishment was prohibited in Nepal. 

Follow-up Questions

Was the highest attainable standard of physical and mental health not the responsibility of the State?  Why was this left to non-governmental organizations?

There was no recognition of unity ownership of land of indigenous people.  Would the Government make efforts to ensure that the new constitution would have such a provision?  In cases where land was needed for development programmes, was there any consultation of indigenous persons? 

Response by the Delegation

It was the State’s responsibility to ensure  the highest attainable standard of physical and mental health and the Government had done this in various programmes.  Partnership and collaboration with non-governmental organizations was crucial, so there was a policy of mobilising them, particularly in raising awareness in rural areas where their presence was very much important. 

The Government was planning on introducing a policy and to revise the Land Act.  The proposed policy would particularly provide for accommodation and other support for the landless.  On consultations before development projects, the policy would also cover this issue.  Right now there was no specific legislation in this regard.  There were practices of stakeholder analysis, where they were consulted and pre-informed about displacement and their inputs were received. 

On International Labour Organization Convention 169, the Government had pursued a policy of creating specific structures in this regard before it decided whether to be a party to a convention or not. 

Regarding recognition of traditional knowledge of indigenous persons in law, there were laws which recognized and valued traditional knowledge of indigenous persons and there were acts that specifically recognised their customary rights.  On protection of minority languages, various programmes had been organized to ensure that indigenous persons were able to enjoy their identity and culture, including their language.  School books had already been prepared in 16 mother tongues. 

Concerning kidney selling, this was a big problem. Existing law prohibited selling and extraction of organs, without the consent of the person concerned.  Due to economic factors, persons were involved, particularly in rural areas, in selling of their kidneys.  Awareness-raising was taking place on the Nepal-India border in particular.  

Follow-up Questions

Could more specific information be given about indigenous languages in the official education system and any laws and good practices if they existed, asked an Expert?

What was Nepal’s position on ratification of the Optional Protocol to the Convention on Economic, Social and Cultural Rights?  Another Expert enquired as to whether there was close cooperation between various ministries on issues to be addressed. 

Response by the Delegation
 
Responding to these questions and comments and others, the delegation said that there were indeed mechanisms for the coordination of ministries.

On the Optional Protocol to the Covenant, it was stressed that this issue had been taken as a package.  There were other human rights instruments that had not yet been ratified, such as the Rome Statute, the Third Optional Protocol  to the Convention on the Rights of the Child, the Convention on the Protection of Migrants Workers, and the Convention on Enforced Disappearance.  As so many international human instruments had already been ratified to prove commitment, a lot of things had to be done.  Gaps were being filled.  Efforts were being directed to building specific infrastructure and enact specific laws.  Then the Government would in due course be able to declare its position. 

On the language of indigenous persons, there was indeed an Act with specific provisions to preserve mother longue language, script and cultural heritage of indigenous tribes.   

Concluding Remarks

RAJU MAN SINGH MALLA, Secretary, Office of the Prime Minister and Council of Ministers of Nepal, said Nepal was pleased to participate in this interactive dialogue which was very motivating to adopt further measures to implement the International Covenant on Economic, Social and Cultural Rights.  The Government highly valued international human rights instruments and had shown unflinching commitment.  However, it was aware that much more needed to be done despite progressive outcomes, and the requisite resources were needed.   Nepal was actively engaged in the constitution-making process and it was believed that it was a process of national building. Concluding observations of the Committee would provide a practical framework to adopt a more inclusive development approach. 

MARIA-VIRGINIA BRAS GOMES, Committee Rapporteur and Country Rapporteur for the report of Nepal, thanked Nepal for this constructive dialogue.  It was hoped that the final constitution would come as fast as possible, hopefully by mid-January.  The constitution should include all economic, social and economic rights, guarantee constitutional status of international treaties, as well as build on acquired rights.  A number of policies and measures taken had been indicated.  Nepal had come out of a painful conflict process and efforts undertaken were recognized, but normative gaps had also been signalled.  It was hoped that in concluding observation some suggestions and recommendations on how to reduce those gaps would be found.  It was also hoped that constructive cooperation with non-governmental organizations would be maintained. 

ZDZISLAW KEDZIA, Chairperson, thanked the delegation for its very constructive attitude to the dialogue, which was very helpful.  The Committee had learnt a lot about the transformation process in Nepal, which was certainly facing a lot of challenges but was also already able to note significant steps forward, which was encouraging.  There was a need to cross fingers that the constitution development process would be finalized before the deadline established. 

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