Human Right to Food in Nepal: Report of an International Fact-Finding Mission page – 9

Human Right to Food in Nepal: Report of an International Fact-Finding Mission

Rights & Democracy

Legal Framework

International Human Rights Commitments

Nepal has ratified major international human rights treaties including the ICCPR, ICESCR, the Convention on the Elimination of All Forms of Discrimination against Women, the Convention on the Rights of the Child and the Convention on the Elimination of all forms of Racial Discrimination. Nepal has not acceded to the 1951 Convention on the Status of Refugees despite the presence of 107,000 Bhutanese and 20,000 Tibetan refugees in the country.

Nepal has ratified most but not all core labour rights conventions. Important exceptions include International Labour Organization (ILO) Convention 87 on freedom of association and collective bargaining, Conventions 29 and 105 on the elimination of forced and compulsory labour, and Convention 169 concerning indigenous and tribal peoples in independent countries.

Nepal submitted its first periodic report to the CESCR in 1990. The second report, submitted in August 2006, was reviewed by the CESCR in May 2007.40

National Legislation

The Interim Constitution of Nepal includes provisions that protect economic, social and cultural rights. Article 33 of the Constitution, under duties and directive principles, lists the following obligations, which are relevant for the right to food:41

  • Pursue the policy of establishing the rights of all citizens to education, health, housing, employment, and adequate food (h).

  • Adopt universally accepted fundamental human rights (c).

  • Effectively implement international treaties and agreements of which the Nepali State is a party (m).

  • Adopt a policy of providing economic and social security to the class that are socio-economically backward such as the landless, bonded labourers, tillers and shepherds (i).

  • Pursue the policy of adopting scientific land reform programs by gradually ending capitalistic land ownership practices (f).

In addition, Article 18 of the Interim Constitution protects the right to employment and social security and provides that “every citizen shall have the right to food sovereignty according to the provision made by the law.” Food sovereignty, a concept that promotes local ownership of productive resources for food security, incorporates a human rights perspective.42

The Interim Constitution recommends that the NHRC be upgraded from a statutory body to a constitutional body.43 The NHRC was established in the year 2000 under the Human Rights Commission Act 1997. In its strategic plan for 2004-2008, the NHRC identifies the right to food, health, shelter, education, and work as the focus of one of its seven strategic objectives. Other commissions have been created specifically to address the issue of discrimination in Nepal, including the National Women’s Commission, the National Dalit Commission, and the National Committee for the Development of Nationalities, but they currently lack appointment of chairperson and other members.

In 2000, the Government of Nepal announced that it formally abolished the Kamaiya44 bonded labour system. The Bonded Labour (Prohibition) Act was passed in 2002.

Land Reform

A vast body of legislation regulates access to land in Nepal. Traditionally, land was considered the property of the state (Raikar). Only the state had the right to allocate land through sale, mortgage or bequest. During the 104 years of Rana rule (1846-1950), many indigenous peoples saw their land confiscated and distributed to supporters of the royal family. By 1950, almost one third of all agricultural and forest land had been granted to private individuals and the rest belonged to the ruling Rana family. Local functionaries obtained a great deal of land from the state and rented it to peasants under tenancy arrangements. In this way, local functionaries became landlords.45

Efforts at land reform began in the mid-fifties and were amplified in 1964 with the Land Act 2021 (1964), which put a ceiling on land holding, fixed the rent to be paid as contract (Kut) by tenants at 50% of the principal crop, and emphasized security of tenant farmers against eviction. The Act failed to achieve any significant results. In 1997, the fourth amendment to the Land Act abolished the tenancy system and provided for the equal division of land between the owner and the tenant, thereby eliminating dual ownership. Under the fourth amendment, peasants were given a period of six months to register their proof of tenancy after which unregistered tenants were unable to claim their right. In 2001, the government reduced the land ceiling to 3.75 ha in all hill and mountain areas, 1.5 ha in the Kathmandu Valley and 7.43 ha in the Terai.46

• Access to Forests

About 29% of Nepal’s total area is covered by forests. Forests represent an important source of food, fodder, fuel wood and timber. Historically, the ownership of forest area corresponded to the patterns of indigenous land ownership particularly in hill areas. The 1993 Forest Act divided Nepal’s forests into six ownership regimes: government managed, community, leasehold, religious, protected and private forests. It is estimated that 40% of the country’s population (divided in 20 000 users’ groups) is involved in community-based resource management systems such as community forestry.

The 1973 National Parks and Wildlife Conservation Act provides the basis for the management of protected areas in Nepal. The area covered by national forests and protected area systems, which includes national parks, wildlife reserves, hunting reserves, conservation areas, and buffer zones, represents about 40% of the total land area of the country. These parks and reserves have mainly been established in the territories of the indigenous peoples, displacing them from the forestland upon which they depend.47

Legal Provisions on Access to Water

The 1992 Water Resources Act gives ownership of water resources to the state but grants the right to use water to individuals and other private parties. It provides the legal framework for the registration of water users’ associations to make use of water resources for collective benefits. The Act also lists the different priorities for water usage, such as drinking, sanitation, cultural and religious use, irrigation, agriculture, hydropower, and industry. The 2003 Irrigation Policy establishes irrigation users’ committees. It has a provision that prohibits access to irrigation services to those who will not pay the service charge, which has a discriminatory impact on poor farmers.48 The 2003 National Water Resource Development Policy has some provisions for people affected by hydro-projects, such as minimizing displacement, providing compensation and rehabilitation, and encouraging affected people to participate in projects. However, in practice, the state is not strong enough to negotiate such provisions in foreign investment or international lending agreements.49

Legal Provisions on Minimum Wage

The legal minimum wage in Nepal is low and does not provide a decent standard of living for workers and their families, particularly in the agricultural sector.50 These rates were revised in 2003 and recently in 2006. The daily wage for labourers is NPR 125 and NPR 95 for tea plantation workers. This is the minimum wage fixed at the national level, but the local government District Development Committee (DDC) has the authority to raise the minimum wage in consideration of the economic status of the concerned district. Discrimination in wage rates between women and men is rampant, although the Labour Act guarantees “equal pay for equal work.”

 

<<< NOTES

40 – To read the government’s report and the CESCR concluding observations, visit www.ohchr.org/english/bodies/cescr/cescrs38.htm

41 – An unofficial translation of the Interim Constitution can be found on the Canada Forum for Nepal Web site: http://cffn.ca

42 – Windfuhr, Michael and Jennie Jonsén, Food Sovereignty: Towards Democracy in Localized Food Systems, FIAN International, 2005.

43 – www.nhrcnepal.org

44 – The most widespread debt bondage labour systems in Nepal are Kamaiya (in the western lowlands, almost solely the burden of the Tharu ethnic group), Haliya (in the hills), and Haruwa (in the Terai).

45 – See A Case Study on Marginalized Indigenous Communities’ Access to Natural Resources in Nepal: National Laws, Policies and Practices, International Conference on Agrarian Reform and Rural Development (ICARRD), 2006.

46 – Ibid.

47 – Battachan argues that the Tharus, Magars, Gurungs, Thakalis, Pacnhgaunles, Baragaunles, Tamangs, Sherpas, Rais, Limbus, Rautes (the last nomads) and Chepangs have all been affected by the creation of parks and reserves. “Dominant Groups Have Right to Live?” K. Bhattachan, 2000.

48 – See A Case Study on Marginalized Indigenous Communities’ Access to Natural Resources in Nepal: National Laws, Policies and Practices, International Conference on Agrarian Reform and Rural Development (ICARRD), 2006.

49 – For example, a recently-announced hydro project contract guarantees India’s Power Trading Corp (PTC) 100% of the power produced but only vaguely refers to compensation for 1500 displaced families. See http://newspostindia.com/report-6379

50 – Ibid.