Reference: The Second Periodic Report (Art.1-15) of Nepal to the Committee on Economic, Social and Cultural Rights (UN Doc. E/C.12/NPL/2) Parallel Information The Right to Adequate Food in Nepal (Article 11, ICESCR) Submitted at the occasion of the 38th session of the Committee on Economic, Social and Cultural Rights (30 April - May 2007) by FIAN International, an NGO in consultative status with ECOSOC, working for the right to feed oneself and Rights & Democracy, a Canadian institution in consultative status with ECOSOC working to promote the International Bill of Human Rights. - 1 -
Table of Contents I. Preliminary remarks p.3 II. The situation of the Right to Food in Nepal p.4 III. Legal Framework of the Right to Food in Nepal p.16 IV. Illustrative cases of violations of the Right to Food p.22 V. Concluding remarks p.27 VI. Recommendations to the CESCR p.28 Annex I - Description of the International Fact-Finding Mission p.29 Annex II - List of Acronyms p.37-2 -
I. Preliminary remarks The present document is presented to the Committee on Economic, Social and Cultural Rights as parallel information to the second periodic report of Nepal to the CESCR. The submitting organizations would like to acknowledge the opportunity given by the CESCR procedures and share with the Committee the first findings of two research projects which have been carried out by Rights & Democracy and FIAN International. 1. The Fact-Finding Mission to Nepal (coordinated by Rights & Democracy) The first measure is the Fact-Finding Mission (FFM) which took place from 8 to 20 April 2007 and was organized by the Canadian institution Rights & Democracy in collaboration with the Right to Food Research Unit at the University of Geneva, FIAN International and the Food and Agriculture Organisation (FAO). 1 Unfortunately, the recent timing of the FFM does not allow us to submit a full and final report to the Committee. However, the preliminary findings of the mission are useful in understanding some of the main issues related to the Right to Food in Nepal. Indeed, the purpose of the FFM was to assess persistent hunger in Nepal, to identify its causes and to propose solutions based on state obligations to respect, protect and fulfil the human right to food. The mission delegation visited affected communities in the districts of Siraha, Makawanpur, Nawalparasi, Chitwan, Banke, Jumla, Dadeldhura and Accham. Delegation members also conducted interviews with government representatives, as well as with parliamentarians, UN and donor agencies, and civil society organisations. A public seminar was held in Kathmandu at the conclusion of the mission in order to popularize the human rights framework for development, to build understanding of the nature of state obligations with respect to the human right to food and to share preliminary results of the mission experience with stakeholders from government, donor agencies and civil society. The FFM delegation was composed of representatives from both international and national organizations. Following national organization were represented: Action-Aid Nepal; All Nepal Peasants Association (ANPA); Community Self-Reliance Center (CSRC); Informal Sector Service Center (INSEC); Lutheran World Federation Nepal (LWF); Nepal Federation of Indigenous Nationalities (NEFIN); Rural Reconstruction Nepal (RRN). In addition, following international organizations were represented: Action-Aid Malawi; FIAN International; International Indian Treaty Council; Rights & Democracy. The Right to Food Unit - Food and Agriculture Organization as well as the Office of the UN Special Rapporteur on the Right to Food accompanied the FFM as international observers. The background information prepared for the FFM is shared in parts II and III of this report. A complete report of the mission findings is forthcoming. 2. The Right to Food project in Nepal (coordinated by FIAN International) The FIAN Right to Food project is funded by EED (Church Development Service), Germany, and carried out in collaboration with ODC, Nepal and Sahakarmi Samaj, Nepal. It started with a pilot phase in January 2007, and is envisaged to be carried on for a period of four 1 Please refer to Annex 1 to know more about the FFM. - 3 -
years. The objective of this project is to identify key issues and actors relevant for promoting the right to food in Nepal and initiate the process of mainstreaming the right to food in Nepal. Some of the key components of the project are: Intensive networking of capacitated organisations is expected to increase the awareness about the human right to food among victim groups and civil society in general and the starting of joint implementation of activities towards the realisation of the right to food in Nepal Case based work in combination with appropriate intervention in close collaboration with the victim groups will lead to increased awareness among key actors on the rights based approach in combating hunger. Victims will experience greater solidarity and legal support in their struggle towards the realisation of their right to food and will be empowered. Expert meetings, mass media campaign and training programmes will lead to increased awareness and the establishment of human capacities to spread the rights based approach in Nepal. Increased awareness about the human right to food with special reference to the FAO Voluntary Guidelines for the Human Right to Food and sharing experiences with other countries regarding its implementation will lead to a debate among members of government agencies about initiating similar processes in Nepal. International awareness about right to food violations in Nepal is increased within the UN human rights system. The establishment of an internet platform will contribute to the promotion of the right to food by serving as a watchdog in case of violations and will increase the pressure to include the right to food in the new constitution of Nepal as well as towards fulfilment of state obligations. Increased awareness about the right to food will lead to reflection among NGOs about their present poverty alleviation strategies and create an avenue for new discussions with funding agencies about appropriate strategies of fighting against poverty. One of the first initiatives in this project was to document various cases of violations of the human right to food in different parts of Nepal. Some of these documented cases are included in this report in chapter IV. II. The Situation of the Right to Food in Nepal 2 1. Nepal Nepal is a small landlocked country sandwiched between Tibet (China) to the north and India on the other three sides. It lies in the southern slopes of the Himalayas and its topography is uneven. Beginning from the very top of the Himalayas in the north, it extends to the plains of the Indo-Gangetic valley. It is rectangular in shape with about 800 km length and mean breadth of about 190 km. It has a population of approximately 27 million (World Bank estimates for mid-2005). For administrative and developmental purposes, the country is divided into five regions: Eastern, Central, Western, Mid-Western and Far-Western. After the 2 The information provided in Section II (the Situation of the Right to Food in Nepal) and Section III (the Legal Framework) of this submission has been prepared by Rights & Democracy as background for the fact-finding mission and will become part of the mission s forthcoming report. - 4 -
capital Kathmandu, Nepal has six provincial cities: Biratnagar, Patan, Pokhara, Birgunj, Dharan, Nepalgunj. There are 75 districts and more than 4 200 Village Development Committees at the grass roots level. Source : Nepal 101, www.roomtoread.org. Nepal s road network and density is the lowest in the region. Only 30 % of the rural population has access to all-weather roads and more than 60 % of the network is concentrated in the lowland areas of the country. The poor condition of the road network hampers the delivery of social services in the remote hill and mountainous districts, increases the cost of transportation and affects the country s economic development. Fifteen district headquarters are not connected by road. Only 15 percent of homes have electricity. It is estimated that the rate of rural households with electricity is as low as 3%. Villagers rely on kerosene, fuel wood and batteries which can be expensive, time-consuming to obtain and damaging to the environment. Telephone infrastructure is poor and concentrated in and around Kathmandu. Nepal has a teledensity of just over one line per 100 inhabitants. 3 Twelve of the 75 districts have no direct service, and less than half of the Village Development Committees have telephone access. 2. The current political situation 2006 began with widespread protests in the build up to the first anniversary of the Royal Coup by King Gyanendra in which he seized absolute control of power. These protests were 3 CIA World Factbook 2003, U.S. Department of State and World Bank 2003. - 5 -
met with curfews, mass arrests, threats to human rights defenders and violent repression. This took place against a background of continuing armed clashes between State security forces and Maoist insurgents. Maoist insurgency began in 1996, as a reaction to heavy corruption, bad governance and failure of the State to reduce economic and socio-cultural inequalities. After months of protests and demonstrations, on April 24, the King stepped down and reinstated the House of Representatives (HoR) that had been dissolved in October 2002. The April uprisings have been called Janaandolan Bhag 2 or People s Movement Part 2 as they are seen as a continuation of the popular movement of 1989 following which then King Birendra declared a multi-party system in Nepal. The decision taken by the seven-party alliance (SPA) 4 and the Communist Party of Nepal (Maoists) to work together to enable the election of a Constituent Assembly was decisive in bringing down the King. The Maoists declared a cease-fire in April and, over the next few months, initiated peace talks with the government. On May 18, the HoR adopted a proposal depriving the King of his privileges and declared Nepal a secular State. 5 On November 8, a 6-point agreement was reached that concerned the signing of a peace accord, as well as crucial issues such as arms management, the creation of an interim constitution and interim government and the holding of elections to the Constituent Assembly. The Constituent Assembly is to re-write the constitution through a democratic process and enable the abolition of the monarchy trough popular consent. Both the interim parliament and interim government are to include the Maoists, which is seen as an essential step in ensuring that differences are dealt with within the political system rather than trough armed conflict. All of the Maoists so-called people s governments and people s courts are to be dissolved. And a high-level commission is to be formed to recommend the restructuring of the State to ensure inclusive, democratic and progressive institutions and systems in order to bring an end to class, ethnic, linguistic, cultural, religious and regional discrimination. On January 15, 2007, the interim constitution was approved, the HoR and national assembly were dissolved and the Maoist rebels entered the interim parliament and interim government. They hold 83 of 330 seats of the unicameral legislature and count several Dalit representatives, which is a first in Nepal. Although the peace agreement represents a significant achievement after a decade of conflict, human rights violations continue 6 and key issues such as impunity and redress for victims have not seen real improvements. Also, tensions in the south-east continue as Madhesi 7 activists complain that their demands have been ignored by both the Maoists and the government. Elections to the Constituent Assembly are planned for June 2007. 3. Poverty and hunger in Nepal 4 The alliance includes all the main political parties of Nepal: Nepali Congress, Nepali Congress (Democratic), Communist Party of Nepal (Unified Marxist-Leninist), Nepal Workers and Peasants Party, Nepal Goodwill Party (Anandi Devi), United Left Front and People's Front. The only significant exception is the Monarchist Rashtriya Prajatantra Party or RPP. 5 The makers of the 1990 Constitution of Nepal had rejected the idea of a secular State which had been demanded by leftist parties and many non-hindu groups. Instead, the State was defined as a Hindu Kingdom. 6 Nepal: the Human Rights Situation in 2006, Asian Human Rights Commission, 2007. 7 Many residents of Nepal's Terai, also known as Madhesh, have deep cultural and linguistic links with the people of Northern India. Madeshi groups have suffered historical and systematic discrimination by the Hindu Hill rulers because of their geography and culture. Millions remain without citizenship certificates. Their demands include political representation, access to government jobs and an end to linguistic and cultural discrimination. - 6 -
Nepal is classified as a least-developed country (LDC) and ranks 138 out of 177 in UNDP s Human Development Report 2006. About 6 million people or 23% of Nepal s population is undernourished. Half of all the children under the age of five suffer from malnutrition. 8 An estimated 31% of the population lives below the national poverty line 9 and 24% live with less than $1 a day. Life expectancy is 62 years and adult literacy at 44 % is among the lowest in the world. Infant and under-five mortality rates are high, at 59 and 82 per 1 000 live births respectively. Poverty in Nepal is for the most part a rural phenomenon, with 95% of the poor living in rural areas. 10 Studies on food security have shown that about 50% of the people involved in farming land, agricultural labour, share-cropping, portering non-tourist items and providing traditional rural services are hungry. 11 The most important forms of undernutrition include protein energy malnutrition, iron deficiency anaemia, vitamin A deficiency and iodine deficiency. 12 Substantial disparities exist across Nepal s three main agro-ecological zones: the mountains, the hills and the southern plains of the Terai. Within rural areas, poverty is worse in mountainous areas, especially in most remote mid- and far- western hill and mountain districts where as much as 70 % of the population is poor and local food production sometimes covers just three months of annual household needs. In some cases, due to rugged terrain and lack of roads, people cannot access food even if they can afford to buy it. Households in some areas face seasonal food shortages every year; conditions of famine are frequently and regularly reported from the north-western Narnali region. 13 Further, wide variations in poverty levels are reported based on gender, ethnic groups and occupational castes. For instance, the lowest consumption levels are among low-caste Dalits with a poverty incidence of 46%, hill Janajatis (ethnic communities) with 43% and Muslims with 41%. Dalits, in particular, have a 15% higher incidence of poverty than the national average. 14 4. Agriculture in Nepal Agriculture represents the largest sector of the Nepalese economy, contributes to 82 % of the export 15 and provides the principal livelihood for over 80 % of all working adults. If equally distributed, the production of the country would be just adequate to feed every Nepali. However, agriculture has been in relative decline since the 1980s. Its annual growth rate was of 2.5 % in the 1990s, against 4% in the 1980s. Over the same period, population has continued to grow at an average rate of 2.3 % annually, making it increasingly difficult for the country to meet its internal food demand with local production. Nepal is a net importer of food since the beginning of the 1990s. The share of agriculture in the GDP has fallen from 66% to 38 % during the last twenty years. 16 Wage labour and remittances 17 from 8 FAO, 2006. 9 In Nepal, the concept of an absolute poverty line is used. This specifies the income required to buy a package of nutritionally defined food items and normatively defined other goods and services (FAO, 2003). 10 World Bank, 2005. 11 Food Security and Hunger Survey in Nepal, United Mission Nepal, 2004. 12 FAO, 2003. 13 UNDP, 2002. 14 Human Development Report, UNDP, 2006. 15 National census, 2001. 16 Services represent 37% of the GDP, followed by industry (22%). Foreign aid represents about 6% of the GDP (World Bank, 2004 data). - 7 -
family members working in urban areas or abroad represent an increasingly important source of support for poor rural households. The proportion of women in agriculture has been increasing steadily (from 37 % in 1981 to 49 % in 2001). Conversely, men s share in agriculture decreased progressively during this period. Women seem to be replacing the outgoing men in agriculture. The feminisation of agriculture has a direct impact on female food security, subjecting women to greater risks of poverty and deprivation. 18 Nepal is roughly divided into three agro-ecological belts, which from north to south are known as the mountains, the hills and Terai. Only 20 % of the total land area is cultivable. Major features are shown in the table below. Mountains Hills Terai Altitude range 3000-8840 m 300-3000 m 60-300 m Climate Temperate-Alpine Subtropical-Temperate Tropical-Subtropical Population 7.3 % 44.3 % 48.4 % Cultivated area 0.3 % 48.1 % 51.6 % Dominant agricultural system Livestock-based Cereals, horticulture, livestock Cereals, cash crops, livestock Source: Agricultural policy and strategies for poverty alleviation and food security in Nepal, FAO, 2003 There is a large regional variation in food availability within the country. Thirteen out of 16 mountain districts and 21 out of 39 hill districts are food deficit. In the mountains, depending on the altitude, rainfall, soil type and infrastructure, a variety of staple food crops (like wheat, maize, potatoes, barley, oats, buckwheat and vegetables are grown. Given the shortage of land suitable for cultivation, pasture land used for raising livestock and forests that are rich in non-timber products are extremely important. In the hills, maize, wheat and finger millet are the main crops grown. Households with some terraced land can also produce rice and higher-value legumes (mostly black gram). Livestock and horticulture are an important part of the agrarian economy of the hills. In the Terai, land is fertile with good ground water reserves. However, little use is made of fertilizer, irrigation or high-yielding seeds and the agricultural productivity is low. Paddy (rice), wheat, lentil and gram are the main crops grown. A relatively high share of land in the Terai is forested and officially protected. Due to internal migration, the population of the Terai has increased substantially over the last decades, which represents an additional strain on the environment. 19 5. Food insecurity and vulnerable groups Nepalese agriculture is characterized by low-productivity subsistence production. Food insecurity in Nepal manifests itself in three ways. Availability of food resulting from own production is insufficient to meet the family needs, due to low productivity, bad weather and the small size and poor quality (steep, un-irrigated) of holdings. 20 Access to food is insufficient, because of lack of purchasing power and poverty (wages are low, job opportunities are scarce). Finally, nutrient utilization is poor, especially among expectant and 17 Remittances are expected to reach 12 to 15 % of the GDP in the coming years (World Bank, 2006). 18 UNDP, 2004. 19 During the three decades from 1961, the Terai received about three quarters of all internal migrants (UNEP, 2001). 20 A substantial proportion of farmers are share-croppers who must give half or more of their harvest to the landlord. - 8 -
nursing mothers and infants, as a result of diseases and lack of micronutrients. Food insecurity among women is not simply a matter of resources but a reflection of the rigid socio-cultural norms and practices inherent in Nepal s patriarchal society. Studies have shown that intra-household distribution is often uneven and that women eat last in 70 % of the households. 21 Across the three ecological regions, farm households with less than 0.5 hectares of land, tenant farmers (share-croppers) and landless peasants are among the most vulnerable 22 groups. Agricultural labourers in the Terai, rural service castes, 23 non-tourist porters and the urban poor have also been identified as vulnerable in terms of food security. 24 Within these groups, women and girls, tribals and members of lower caste groups are among the most food insecure. Nepal is particularly vulnerable to natural disasters such as hailstorms, droughts, landslides, floods, epidemics and earthquakes which can significantly disrupt the normal food situation. Over the last ten years, internal conflict has also had an effect on food security as the supply and movements of food have been limited and between 100 000 and 200 000 people have been internally displaced 25. The World Food Programme (WFP) operates a series of food-forwork programmes in the far-west, mid-west and high mountains regions of Nepal. It also distributes food to about 100 000 Bhutanese refugees in eastern Nepal and intervenes in case of severe food deficit. Since June 2006, WFP has provided emergency food aid to nearly 200 000 drought-affected people in eight districts in mid- and far- western Nepal. This was the first emergency operation of its kind in WFP s 40-year history of working in Nepal. In February 2007, WFP announced it would extend its food aid operations to communities in three drought-affected areas in the eastern Terai. This decision brings the numbers of current WFP beneficiaries to 400 000. 26 6. Access to resources One of the main factors affecting food security in Nepal is the lack of access to productive resources like land. The pattern of land holdings is highly unequal. The bottom 40 % of agricultural households operate only 9 % of the total agricultural land area, while the top 6 % occupy more than 33 % of all agricultural land. 27 The vast majority of land holdings are small and fragmented, and their productivity is low. Land plots are often located on slopes or at higher elevations with low moisture retention and no irrigation. Over 70 % of peasants own less than one hectare of land. 28 Households that depend on agriculture as their main livelihood can usually only produce enough to cover a small proportion of their annual needs. For many, insecure tenure over the land on which they depend and fear of eviction are critical issues. 29 About 20 % of all agricultural households are estimated to work as tenants, 30 21 Food Security and Hunger Survey in Nepal, United Mission Nepal, 2004. 22 The term vulnerable groups is used to refer to both the potentially food insecure and the food insecure. 23 Traditional caste-based occupations include singers and entertainers, shoemakers and leather workers, metal workers, tailors, etc. 24 Food insecurity and Vulnerability in Nepal: profiles of seven vulnerable groups, FAO, 2004. 25 Internal Displacement Monitoring Center, Nepal, 2006. 26 WFP extends food aid operations in Nepal to cover continuing drought, WFP, 09 Feb 2007 27 UNDP, 1999. 28 National Planning Commission, 1998. 29 Food insecurity and Vulnerability in Nepal: profiles of seven vulnerable groups, FAO, 2004. 30 The Badaal High Commission Report, 2051 (1992) cited in «Land Rights in Nepal», CSRC, 2003. - 9 -
most of them under the adhiya system of half share-cropping. Although these peasants are legally entitled to tenancy right, only 30 % of them have legal status as tenant-cultivators. 31 According to national census 2001, 1.02 million (or 24.4 %) households are landless, a number that has doubled since the 1991 census. 32 The landless constitute 7.5 % in the high mountains, 20.6 % in the hills and 30.8 % in the Terai. 33 A significant fraction of them work as permanent labourers under a wide variety of terms and conditions. Due to low wages and poverty, debt bondage 34 is common among them. Huge proportions of indigenous population are wage labourers with no land of their own. Nepal is blessed with abundant water resources and an estimated 90 % of the population 35 have access to an improved 36 water source. However, access to year round irrigation is still problematic and only 35 % have access to improved 37 sanitation. 38 Inadequate sanitation can severely reduce an individual s capacity to absorb and utilize nutrients from food. Moreover, inequitable access to water is considered an important problem. Domination of water systems by male elites in Nepal often prevents women, Dalit and ethnic men from accessing water in a sustainable way. 39 Another key factor affecting food security is the shrinking access to natural resources. 40 The expansion of industrial activities is polluting rivers and reducing fish stocks. The establishment of national parks, banning of slash and burn cultivation and conversion of open access resources in community forests limits the access to resources traditionally used by indigenous groups. The over-exploitation of forest and land has caused a marked degradation in the quality of natural resources (soil loss, deforestation). Deforestation has reduced access to an important source of food, fuel wood, 41 fodder and income for many vulnerable households in the Terai and hill regions. The access to productive resources is further constrained by social exclusion based on caste, gender, origin and/or livelihood. Although rural communities in the highlands tend to have high levels of social capital (sharing of labour, etc), the availability of social capital is confined within ethnic and caste boundaries. Discrimination against rural service castes limits their involvement in economic activities. For example, social custom prevents Dalits from touching drinking water, milk, cooked food and entering temples, hotels, private houses, shops or cowsheds, which excludes them from selling tea, milk, or running a restaurant. The scarcity of roads, the severe transportation difficulties, and the lack of access to financial capital, credit, education, drinking water and health services all contribute to food insecurity. 31 Land Rights in Nepal, Community Self-Reliance Center (CSRC), 2003. 32 Ibid. 33 Ibid. 34 Debt bondage is used not only to extract excessive hours of work from the bonded labourers, but also labour service from other family members (wife, children). The most widespread debt bondage labour systems are Haliya (hills), Haruwa (Terai) and Kamaiya (western lowlands, almost solely the burden of the Tharu ethnic group). Source: INSEC, 1999. 35 According to the District Demographic profile of Nepal 2002, only 67% of the population have access to safe, clean drinking water (Nepal Water for Health, NEWAH, www.newah.org.np) 36 Not improved water sources are: unprotected well, unprotected spring, vendor-provided water, tank truck-delivered water. 37 Not improved sanitation includes: service or bucket latrines (where excreta are manually removed), public latrines, latrines with an open pit. 38 Human Development Report, UNDP, 2006. 39 Nepal Water for Health, NEWAH, www.newah.org.np. 40 Food insecurity and Vulnerability in Nepal: profiles of seven vulnerable groups, FAO, 2004. 41 Forests provide 80 % of fuel needs and 50 % of fodder requirements (UNEP, 2001). - 10 -
7. Discrimination Discrimination in Nepal affects mostly indigenous groups, lower caste Dalits and women. The indigenous people of Nepal, also known as Janajatis, comprise approximately 37% of the total population. Fifty-nine different nationalities have been listed in the Indigenous Nationalities Act 2002 and between 92 and 125 languages/dialects have been identified. These groups can be regarded as indigenous on account of their descent from the populations which inhabited the country when the Hindus took refuge in Nepal from India after the 11 th century. The Hindus have controlled the political economy since the 18 th century. During the 104 years of Rana rule (1846-1950), many indigenous groups where hinduized and sanskritized and began to loose their culture and language. Their land was confiscated and distributed to State elites and they were exploited through forced labour. Although indigenous nationalities do not fall within Hindu social hierarchy, the Muluki Ain or Civil Code of 1854 restructured caste and ethnic groups and divided them into a fourfold social hierarchy. According to the Nepal Federation of Nationalities, 42 26 provisions in the 1990 Constitution and 49 legal acts discriminate against minorities. Source: University of Texas Library. Dalits represent about 20 % of Nepal s population and 23 Dalit castes have been identified by the government of Nepal. Caste-based untouchability was abolished in the revised Muluki Ain of 1963 but due to lack of enforcement laws, discriminatory practices continue to this day. It should be noted that discrimination exists among Dalits themselves. There was not a single Dalit in the last House of Representatives. 42 http://nefin.org.np - 11 -
Madhesis or people from Madhesh (Terai) reportedly suffer from cultural and linguistic discrimination. Mostly Hindi-speaking, they represent 30-40 % of the total population. Madhesi activists say their people don t have appropriate political representation and have been discriminated against in their access to government positions and the army. They also complain about hill s people domination and the hegemony of Nepali language. Madhesi Dalits are said to live in more difficult conditions than hill Dalits. The situation of women and girls is particularly difficult in Nepal due to the dominant patriarchal ideology. Research showed that 54 different laws, including the 1990 Constitution, have discriminatory provisions against women. 43 Extreme forms of discrimination are found among Hindus. Some indigenous women are victims of both gender and ethnic discrimination. Political representation is low, with only 12 women in the last HoR. 8. Economic, agricultural and development policy Over the past decade, Nepal has undertaken three major parallel programmes to increase economic and agricultural growth rates: an economic reform programme, an Agricultural Perspective Plan (APP) and the Ninth and Tenth Five Year Plans. The National Planning Commission (NPC) 44 is the apex body for formulating development plans for the country. Implementation of the economic reform programme began in the late 1980s, with support from the International Monetary Fund (IMF) and the World Bank (WB). A Structural Adjustment Programme was introduced in 1987. An Enhanced Structural Adjustment Facility was implemented during 1992-1995, this time extending beyond the fiscal-monetary-external sector to include reforms in the civil service, human resource development, poverty alleviation and environmental protection. In the recent past, public enterprises have been privatised, subsidies have been reduced, and efforts have been made to create an enabling environment for the private sector in areas that include health, education and agriculture (deregulation of fertilizer trade, 45 leasing out of government farms). Import duties have been standardized and made compatible with WTO and SAFTA provisions. 46 Tariff reduction has given Nepal one of the most liberal trade regimes in South Asia. 47 The Agricultural Perspective Plan or APP (1995-2015) focused on agricultural growth and identified a series of priorities such as irrigation, agricultural roads, fertilizer and technology development. The APP aimed at transforming subsistence agriculture in commercial agriculture and therefore chose to promote key outputs like rice, apple, citrus, apple, vegetables, livestock and forestry products. Agribusiness was seen as part of a commercialisation strategy. The Ninth Five Year Plan (1997-2002) adopted poverty alleviation as its main objective and intended to bring rural communities in the development mainstream by giving priority to agriculture. It also adopted a long term visionary concept, which meant consolidating policies and strategies from different sectors. It incorporated most of the recommendations of the APP, as well as the Master Plans for Forestry and Irrigation. The emphasis was put on 43 Pradhan-Malla, 2000 cited in Indigenous nationalities and minorities in Nepal, K. Battachan, 2003. 44 The National Planning Commission (www.npc.gov.np) works under the guidance of the National Development Council. 45 Subsidies on agricultural inputs like fertilizers were withdrawn in 1999. 46 Nepal: Agricultural policy and strategies for poverty alleviation and food security, FAO, 2003. 47 UN Development Assistance Framework Nepal (UNDAF), 2002-2006. - 12 -
reducing inequalities between various regions and communities and decentralizing 48 the implementation of development programmes and policies. The Plan recognized that poverty was high and widespread and intended to address it through agricultural growth and social programmes. The Tenth Five Year Plan (2002-2007) or Poverty Reduction Strategy Paper (PRSP) is very much in the same line. Regarding land management and land reform, the Plan recommends preparing land use policies and guidelines to implement new ceiling on land, setting up a land bank to help the poor acquire land, settling resettlement problems of the bonded labourers and preparing the legal basis for the promotion of contractual and cooperative farming systems. The Plan focuses on increasing agricultural productivity and production as a way to address poverty and food insecurity. It also proposes some targeted measures like enhancing food supply and distribution in food deficit areas, food-for-work programmes in famine-hit areas, food stock maintenance, food aid distribution through NGOs and the rehabilitation of people suffering from disorder in affected areas. These programs are to be implemented through the Poverty Alleviation Fund (PAF), an autonomous institution which was created to channel government and donor resources to the District Development Committees, Municipalities and Village Development Committees and Community-Based Organisations. The Plan recognizes that women, Dalits and indigenous communities are particularly vulnerable. However, apart from a few references to women s and labour rights, human rights are barely mentioned in the Tenth Plan. In terms of allocation of public sector resources, the agricultural sector (including agriculture, forestry, fisheries and irrigation) has historically received the highest share of public expenditure, with more than 40 % going to irrigation (and less than 1 % to land reform) between 1985 and 1995. 49 Government expenditure on agriculture, however, has declined steadily since the eighties. It amounted to 4.3 % of GDP in 1980 and was down to 3.2 % of GDP in 1990. 50 Its proportion of total expenditure has continued to drop ever since. 51 To a large extent, this reflects government decision to give higher priority to other sectors like education, health and power generation. For example, in 2003-2004, public expenditure on education and on health amounted to 3.4 % and 1.5 % of GDP respectively. 52 However, some analysts 53 say these figures show a considerable disconnect between the government's development objectives as articulated in Five Year Plans and annual budget allocations. About two-thirds of the development budget of Nepal is derived from foreign assistance. 54 Development aid policy is coordinated through the Nepal Development Forum, whose members include donor countries, international financial institutions and UN agencies. Japan is the largest bilateral aid donor and the bulk of EU aid comes from the UK, Germany and Denmark. The World Bank and the Asian Development Bank (ADB) are the principal 48 The Local Self-Governance Act (1999) has created the legal basis for decentralisation. 49 Between 1985 and 1995, the share of irrigation was 43.8 % of the total amount spent on agricultural development, while agriculture proper (crops, livestock and fisheries) represented 38.7 %, forestry 16.7 % and land reform less than 1%. A substantial portion of the budget allocated to agriculture proper was for the purpose of subsidising fertilizer prices. ( Land and agriculture, status review and dialogue, National Strategy for sustainable development, submitted by Devendra P. Chapagain to Word Conservation Union Nepal, 2001). 50 Mark W. Rosegrant, 2000, UN Economic and Social Commission for Asia and the Pacific (ESCAP). 51 Between 1995 and 2001, the share of agriculture in total expenditure has fallen steadily from about 15% to around 10%. ( Agreement on agriculture: domestic support measures, Bishnu D. Awasthi and Shrawan K. Adhikary in Implications of the WTO Membership on the Nepalese Agriculture, FAO. 2004.) 52 Human Development Report 2006, UNDP. 53 Public Expenditure Review 2000, Nepal Development Forum. 54 Ministry of Finance (MoF) data, 1999. - 13 -
multilateral donors. The majority of foreign assistance is in the forms of loans. 55 The Nepal Development Forum (NDF) is usually held every 2 years. The main objective of NDF 2002 was to get inputs for the drafting of the Tenth Plan/PRSP. The NDF 2004 looked at the PRSP implementation, priority reform areas, and aid harmonization. In 2002, the government finalised a Foreign Aid Policy which is expected to improve the co-ordination and efficiency in utilisation of aid resources. The Ministry of Finance has a Foreign Aid Coordination Division. 56 The UN Development Assistance Framework Nepal, 2002-2006 (UNDAF) was completed in the year 2000. It is designed to facilitate collaborative programming between UN agencies and follow-up at the country level of the commitments in the Millennium Declaration and the outcomes of other global conferences. It recommends a rights-based approach to development and places the emphasis on targeting the most deprived, State accountability and citizens participation. The programming cycles of most UN agencies active in Nepal are harmonized with the UNDAF timeframe, which also fully coincides with the Tenth Plan/PRSP. So far, the above mentioned plans and programmes have failed to deliver the expected results. According to the FAO, this is mainly due to persistent instability, which manifests itself in the forms of frequent organizational restructuring, high personnel turnover, changing policy paradigms and fragmentary approaches to institution building. 57 It should be noted also that, apart from the UNDAF and the National Human Rights Action Plan (NHRAP), these plans make no real attempt to incorporate or implement Nepal s human rights commitments into development policy. 9. Impacts of trade agreements on the right to food Nepal was the first Least Developed Country to join the WTO, on April 23, 2004. Nepal is also a member of the South Asian Free Trade Agreement (SAFTA) which has been implemented from July 1, 2006, and includes Bangladesh, Bhutan, India, 58 Maldives, Pakistan and Sri Lanka. Given that India accounts for about 80% of Nepal s total agricultural export, almost all of it within the framework of the Nepal-India Trade Treaty, WTO-compatibility of the Treaty is of immense significance for Nepalese agriculture. It appears that some of the provisions of the Treaty are inconsistent with the WTO rules. 59 The Treaty is neither a Free Trade Area (FTA) 60 nor can it be justified under the Enabling Clause as a Preferential Trade Agreement (PTA). 61 The changes required to make the treaty WTO-compatible will have different economic consequences for Nepal and India, as well as for Bangladesh and others. The South Asian Free Trade Area (SAFTA) can be seen as the middle way between the current preferential agreement and a most favoured nation trade regime. Unfortunately, very little analytical 55 Official Development Assistance (ODA) was 6.4 % of GDP in 2004 while total debt service amounted to 1.7 % of GDP the same year. Nepal s outstanding debt accounts for about 50 % of the GDP (UNDP Development Report 2006). 56 www.mof.gov.np/facd/index.html 57 Nepal: Agricultural policy and strategies for poverty alleviation and food security, FAO, 2003. 58 Currently, more than 50 % of Nepal s exports and imports are to and from India (ADB data, 2005). 59 Ramesh P. Sharma, Madhab K. Karkee and Lakshman K. Gautam (eds.), The Implications of the WTO Membership on the Nepalese Agriculture, FAO, UNDP and Ministry of Agriculture and Cooperatives, Nepal, 2004. 60 The Treaty is not a FTA because it does not meet the substantially all trade criterion of GATT Article XXIV as industrial products are excluded from reciprocal preferential treatment. 61 The Treaty cannot be justified under the Enabling Clause as a PTA because India does not grant to other LDCs the same preferences given to Nepal. - 14 -
work has been undertaken in Nepal on the costs and benefits of alternative trade regimes. As a result, debates on these issues do not seem to be based on informed analysis. 62 A series of WTO Agreements have direct consequences for agriculture, notably the Agreement on Agriculture (AoA), Sanitary and Phytosanitary Measures (SPS), Technical Barriers to Trade (TBT) as well as property rights (TRIPS) in the context of bio-diversity and the protection of plant variety. The implications of Nepal s accession to the WTO are hard to anticipate. In order to take advantage of the WTO Membership, it is essential to be competitive in trade, both in exports and in the domestic market. Currently, Nepal is not competitive on a most-favoured nation basis both in the Indian and other markets, as made clear by the fact that India absorbs bulk of Nepal s agricultural exports within the framework of the bilateral preferential trade agreement. 63 In terms of the potentially negative impacts of the WTO Agreement on Agriculture (AoA) on the right to food, a series of issues can be raised under each of the three main pillars of the AoA: domestic support measures, market access and export competition. Domestic support measures the key issue here is whether the WTO rule constrains Nepal from supporting its agriculture. The main conclusion of the study 64 realised in 2004 by the FAO, UNDP and Ministry of Agriculture and Cooperatives (MoAC) is that support to Nepalese agriculture is very low, relative to what the AoA permits. Currently, Nepal does not have any product-specific support programmes (e.g. support price for paddy) but the AoA allows this if the government wishes to implement such programmes in the future. In addition, Nepal can grant subsidies that are not specific to any commodity (e.g. fertilizer subsidy) up to 10% of the value of agricultural output (VoAP). Compared with this limit of 10%, actual subsidies in the 1990s have been very low - less than 1% of the VoAP. Market access the main question in relation to market access is whether the bound rates provide necessary policy space to ensure some protection to respond for example to import surges. 65 The main conclusion of the above mentioned study is that there is a considerable degree of policy flexibility for a majority of agricultural products. The analysis also shows that there is a modest degree of tariff escalation. This means that the tariff structure favours processing activities and value addition in the country. But this is at the cost of less protection to primary products and thus to farmers. Export subsidies - Nepal does not subsidize exports. At the time of the WTO accession, it committed not to subsidize exports in the future also. Another issue relates to the Sanitary and Phytosanitary Measures (SPS) Agreement and trade in food products. It is a common knowledge that the level of technical standards of foods 62 Ramesh P. Sharma, Madhab K. Karkee and Lakshman K. Gautam (eds.), The Implications of the WTO Membership on the Nepalese Agriculture, FAO, UNDP and Ministry of Agriculture and Cooperatives, Nepal, 2004. 63 Ramesh P. Sharma, Madhab K. Karkee and Lakshman K. Gautam (eds.), The Implications of the WTO Membership on the Nepalese Agriculture, FAO, UNDP and Ministry of Agriculture and Cooperatives, Nepal, 2004. 64 Ibid. 65 Import surges could occur for many reasons, including unfair trade practices by exporting countries. On the whole, the MoAC/FAO/UNDP study concluded that observed statistical associations between import surges and impact indicators were fairly weak. However, the main reason for this seems to be the inappropriateness of the available statistics in Nepal for identifying the phenomenon of import surges and analysing negative effects. For example there are no statistics on quantity or volume of imports from India (only value data are available). Nor are the data available on monthly basis. The available data are often highly aggregated. - 15 -
and other products in Nepal is fairly low, relative to standards set by international standardsetting. These gaps will continue to be the major impediment for increasing export of agricultural products, thus undermining the gains of WTO Membership. By and large the main issues and constrains are the lack of comprehensive policies on standards, weak export inspection agency, lack of coherence between various laws and poor coordination among the law enforcing agencies. At present, there is no Codex standard for a number of products. Moreover, standards set by Nepal and India also differ for several food commodities, which has been a source of trade friction in the past. Considering its level of economic development, resource endowment, agricultural and industrial policies, public and private research capability, and special needs of small farmers and indigenous communities, the FAO/UNDP/MoAC analysis concludes that a sui generis model of plant protection serves the best interest of the Nepalese agriculture. Among the other alternatives, the patent model is not found suitable for Nepal due inter alia to inadequate seeds security provisions while the UPOV 1991 model does not address effectively farmers concerns. Some commodities have been identified for the purpose of Geographical Indications (GIs). 10. Food supply and distribution policy Organizing a public food distribution system to ensure food security in food deficit areas has been one of the major food policies of successive governments. This system began after the drought and crop failure of 1972/73. Since then, the public food distribution has continued and is aimed at ensuring adequate and continuous supply of cereals, providing relief supplies in times of emergency caused by natural disasters, maintaining support prices for farmers and affordable prices for customers. The Nepal Food Corporation (NFC) was established in 1974 to perform these functions. However, the volume of cereals distributed by NFC to remote food-deficit areas has always been very small, meeting only a very modest part of their deficits. Moreover, it is widely held that the bulk of the food NFC distributes goes to government employees, the police and the military. 66 The Tenth Plan highlights that public sector agencies which have been given the responsibility (and transport subsidies) for supplying basic food and supplies (NFC) and agricultural inputs (AIC) have remain highly inefficient. According to the FAO, the fact that the government s capacity to finance subsidized operations is so limited ( ) in combination with the fact that poor and foodinsecure people lack access to whatever food is supplied by NFC, has raised questions about the legitimacy of continued cereal distribution. As a result and as part of a larger economic reform package as required under the Second Agriculture Programme Loan of the Asian Development Bank, the government is in the process of reforming the NFC and curtailing subsidized cereal distribution. 67 III. Legal Framework of the Right to Food in Nepal 1. Nepal s Human Rights Commitments Nepal has ratified major international human rights treaties including the ICCPR, ICESCR, CEDAW, the Convention on the Rights of the Child and the Convention on the Elimination of all forms of Racial Discrimination. Nepal has ratified most but not all fundamental labour 66 Ramesh P. Sharma, Madhab K. Karkee and Lakshman K. Gautam (eds.), The Implications of the WTO Membership on the Nepalese Agriculture, FAO, UNDP and Ministry of Agriculture and Cooperatives, Nepal, 2004. 67 Ibid. - 16 -
rights conventions. In particular, Nepal has not ratified 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. Despite the presence of more than 100 000 refugees in Nepal (mostly from Bhutan and Tibet), the State has not acceded to the 1951 Convention relating to the Status of Refugees. 68 The International Covenant on ESCR and other international treaties have an unclear status 69 in Nepal s legal order. Nepal s constitutional history and legislative practice suggest a dualist 70 legal system while Treaty Act of 1991 71 sees that international legal instruments prevail over the Constitution and laws. Some analysts 72 see this as a constitutional anomaly but no related case has yet been brought to the Supreme Court. Nepal submitted its first report to the Committee on Economic, Social and Cultural Rights in 1990. The second report, submitted in August 2006, will be reviewed by the Committee in May 2007. The 1990 Constitution of Nepal does not expressly mention the right to food under the head of fundamental rights. However, it can be argued that, considering the right to food is an integral part of the right to life, there is an ample scope to identify this right through the interpretation of the Constitution. 73 Acting Secretary of the National Human Rights Commission (NHRC) of Nepal, Kedar Prasad Poudyal explains that: An issue regarding this right was raised in the Supreme Court of Nepal. In a petition filed in the court, the court was urged to issue a writ of Mandamus to the government to supply adequate food in some districts of the Far Eastern Region. 74 The Court took the matter seriously and recognized that it is the duty of the government to supply adequate food as it is the obligation of the state to uplift the standard of living of the people under the directive principles of the state enshrined in the constitution. The petition however was repealed on the ground that the government was doing its best to meet the demands of adequate food. 75 The National Human Rights Commission (NHRC) 76 of Nepal 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. Key priorities include pressing for constitutional and/or legislative changes to ensure that citizens are able to exercise their rights, monitoring the effective implementation of the government s action plan to address food security in food scarce regions, pursuing the government to define appropriate national standards for the right to food, health, shelter, education and work, and monitoring the enforcement of minimum and 68 The Committee on ESCR lists the following relevant instruments which have not been ratified: ILO Conventions Nos 29, 81, 87 and 182 and the 1967 Protocol relating to the Status of Refugees, the 1954 Convention relating to the status of Stateless Persons and the 1961 Convention on the reduction of statelessness. 69 Committee on ESCR, 26th session, 13-31 August 2001, Concluding observations on Nepal. 70 A dualist legal system requires the incorporation of international legal obligations into the domestic legal system through the adoption of national legislation. In countries with a monist legal system, the constitution provides the same or superior status to international law and there is no need for a separate domestic legislation. 71 Section 9 (A) 1 establishes that if domestic law is in contradiction with the provision of any international convention, then the provision of the Convention shall prevail. 72 Domestic human rights advocacy : approaches and strategies, Dr. Ananda Mohan Bhattarai. 73 The protection of socio-economic rights with special reference to the right to food, right to education and right to health, Kedar Prasad Poudyal, 2002. 74 Madhav Kumar Basnet v. Rt. Honorable Prime minister, Supreme Court Judgment on Constitutional Issues, by Narendra Kumar Pathak, p. 516. 75 The protection of socio-economic rights with special reference to the right to food, right to education and right to health, Kedar Prasad Poudyal, 2002. 76 www.nhrcnepal.org/ - 17 -
equal wage requirements. Additional Commissions have been created 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. Between 2002 and 2004, Nepal undertook the formulation of a National Human Rights Action Plan (NHRAP). The NHRAP aims to address all rights in the human rights framework - civil, cultural, economic, political and social - in an integrated and methodical manner. A significant aspect of the NHRAP is its integration with the Tenth Five-Year Plan and thereby support to the poverty alleviation through focus on economic and social rights. The NHRAP has identified that protecting and promoting human rights requires the coordination and involvement of twelve subjects: education and culture, health, environment and sustainable development, indigenous, ethnic, Dalit, specially-abled, and senior citizens, women s empowerment, gender equality and equity, and women s rights, children's rights and development, law reform, justice administration and management, prison management and reform, labour and employment, conflict management and institutional strengthening. 77 The NHRAP highlights the importance of addressing the food needs of children, senior citizens and prison inmates and the low wages and underemployment in agriculture. But the NHRAP does not seem to give appropriate attention to the right to adequate food, considering the prevalence of food insecurity. For example, the issue of access to land, forest and other productive resources is not addressed. In the interim constitution, the rights to education, health, housing, employment, and adequate food have been included under Part 4, which deals with the State's duties and directive principles. Article 33 lists the principal duties of the State. The following are the most relevant for the right to food: 78 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 socioeconomically backward such as the landless, bonded labourers, tillers and shepherds (i); and Pursue the policy of adopting scientific land reform programs by gradually ending capitalistic land ownership practices (f). The Maoists wishes to include education, healthcare, employment and food under Part 3, which deals with the fundamental rights of the people, led to major disagreements during the drafting process as large parties, such as Nepali Congress, did not agree with them. In its final version, article 18 on the right to employment and social security provides that every citizen shall have the right to food sovereignty in according to the provision made by the law (article 18 (3)). It should be noted here that the food sovereignty framework also applies a rights-based approach. The concept of food sovereignty was developed by the International Peasant Movement La Via Campesina. According to Michael Windfuhr from FIAN, it includes the aspect of the rights of access of smallholder farmers, pastoralists and fisherfolk to foodproducing resources as well as the right to food and availability of just markets. The Food 77 National Human Rights Action Plan, 2004. 78 An unofficial translation of the interim constitution can be found on the Canada Forum for Nepal website: http://cffn.ca - 18 -
Sovereignty framework is formulated as an alternative policy proposition to liberalized industrial agriculture and it amalgamates elements from different policy areas into one framework. It covers issues which are already recognized in international law e.g. the Right to Food but also includes other aspects using rights-based language, which are so far not part of international law, such as the right to Food Sovereignty or the right to produce. The rights-based language is used to support the political demands by showing that these objectives have to be implemented to fulfil rights that are considered as basic by the affected communities. The framework covers the rights of individuals and the rights of all people at the same time. Even though both approaches are possible, more precision is needed in the use of the rights-based language. 79 The interim constitution also sees that the National Human Rights Commission be upgraded as a constitutional body. It is currently a statutory body. Land reform and tenancy rights, as well as the right of indigenous people to self-determination are key issues for future discussions. 2. Legal provisions on access to land A vast body of legislation regulates the access to land in Nepal. Traditionally, land was considered the property of the State (State landlordism) and was called Raikar. Only the State had the right to alienate land through sale, mortgage or bequest. The State granted cultivated or uncultivated State-owned Raikar lands to individuals in different forms such as Jagir, Birta, Rakam, Sera and Rajya and to charitable or religious organisations in the form of Guthi. 80 In the indigenous communities, a communal land tenure system generally known as Kipat was used, where headmen had the authority to grant individuals the right to cultivate certain areas and collect forest products from other areas. By 1950, almost one third of agricultural and forest land was 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 turned into landlords. 81 In the late forties, the traditional Kipat land tenure was confiscated from all the indigenous groups but the Limbus. It was finally completely abolished in the late sixties. Efforts at land reform began in the mid-fifties and were amplified in 1964 with the Land Act 2021, 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. The landlords manipulated land above ceiling and the government was only able to acquire less than 1.7 % of total available land for redistribution. 82 In many places, the excess land was transferred to religious or community institutions controlled and used by the landlords themselves. In 2001, the government reduced land ceiling to 3.75 ha in all hills and mountain areas, 1.5 ha in the Kathmandu Valley and 7.43 ha in the Terai. 83 In doing so, it did not follow the recommendations of the Badal High Level Land Reform Commission 2051 (1992) which had suggested a more drastic reduction in land ceiling. In 2005, the Agricultural Development Bank was assigned the responsibility of purchasing surplus land from the landlords and distributing it to the poor farmers, who have to pay back within 15 years. 79 Food Sovereignty - Towards democracy in localized food systems, Michael Windfuhr and Jennie Jonsén, Fian International, 2005 80 The Guthi land tenure system also included the endowment of private lands by individual landlords for religious purposes. 81 Regmi M.C. (1963, 1976) cited in A case study on marginalized indigenous communities s access to natural resources in Nepal, Bishnu Raj Upreti and Jagannath Adhikari, 2006. 82 A case study on marginalized indigenous communities s access to natural resources in Nepal, Bishnu Raj Upreti and Jagannath Adhikari, 2006 (presented at the ICARRD, Porto Alegre, March 2006). 83 Ibid. - 19 -
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 6 months to register their proof of tenancy and all unregistered tenants were excluded from claiming this right. This measure is said to have affected negatively more than 0.45 million unregistered tenants who were not able to produce legal documents. 84 The Trust Corporation (Guthi) Act, 1976, defined the role of the Guthi Corporation to manage Guthi lands. The Guthi land tenure system does not create favourable conditions for tenants 85 and the Guthi Corporation denies registering actual tenants. In 2000, the Government of Nepal announced that it formally abolished the Kamaiya bonded labour system but there is no appropriate government program in place to provide ex-kamaiyas and other bonded labourers with sustainable livelihoods. 86 3. Legal provisions on 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. During the unification period (1769-1846) and subsequent Rana rule (1846-1951), the power of government to determine land and forest holding was introduced. Forestry sector legislation in the post-1950 period attempted to undo the accumulation of forest as property by the ruling elites. It also partly responded to popular perceptions of environmental problems. 87 A series of policies were enacted during the 60s and 70s. A donors meeting in 1984 conceived the idea of preparing a forestry master plan for a period of 25 years. The first national community forestry workshop 88 held in 1987 contributed to the prioritization of the community forest program in the Master Plan for the Forestry Sector that was passed in 1988. The Forest Act 1993 divided Nepal s forests into six ownership regimes: government managed, community, leasehold, religious, protected and private forests. However, community and private forests have been the focus of forestry programs and financing. In the Master Plan, the community forestry program focused on the community as users rather than on variations within a community. Initially, it had no plan for women, Dalits and indigenous people. Later on, guidelines were developed to address the issue of social inclusion in the so-called community forests users groups. There is currently much debate around the community forest idea. Some analysts criticize the fact that such programs have reduced or wiped out traditional indigenous management practices 89 and say that social inequalities are usually reflected in unequal access to forest resources at the community level. 84 Ibid. 85 Ibid. 86 A human rights group, the Informal Sector Service Centre (INSEC), initiated a campaign to eliminate bonded labor in Nepal. In 1992 it published a comprehensive report on the practice in Nepal. On the basis of the report, INSEC approached the Supreme Court of Nepal seeking to have the court issue a directive to the government to enact a law prohibiting bonded labor. The court did so, and the government enacted a law in 1993 abolishing bonded labor. Based on a report on the working of the law, INSEC in 1998 again sought the help of the Supreme Court, this time to ensure that the government implements the law effectively. 87 A case study on marginalized indigenous communities s access to natural resources in Nepal, Bishnu Raj Upreti and Jagannath Adhikari, 2006 (presented at the ICARRD, Porto Alegre, March 2006). 88 Community forestry national workshops are held every five years since 1987. The third workshop attempted to link forest management to overall development policy. The fourth workshop, held in 2004, identified sustainable management, livelihoods and good governance as the three agendas to be promoted in community forestry. 89 A case study on marginalized indigenous communities s access to natural resources in Nepal, Bishnu Raj Upreti and Jagannath Adhikari, 2006 (presented at the ICARRD, Porto Alegre, March 2006). - 20 -
The National Parks and Wildlife Conservation Act, 1973, provides the basis for the management of protected areas in Nepal. By now, 8 national parks, 5 wildlife reserves and 3 conservation areas cover about 20 % of the total land of the country. These parks and reserves have mainly been established in the territories of the indigenous populations and have displaced them from the forestland they either lived in or depended on. 90 The Act provides for strict and government-led protection of these areas. For example, entry inside the parks and reserves requires prior approval of entry in written form by the concerned authority. Although a series of amendments provided for a buffer zone and slightly participatory schemes with people living in surrounding areas, the last amendment of the Act (January 2006) seems to restrict people s participation and deprives them of the benefits given in the fourth amendment of 1996 which mandated investment of 30-50 % of the income of the parks for the welfare of the affected people. Many indigenous groups depend on slash and burn agriculture, pasture, hunting, gathering or fishing. They collect roots, fodder and firewood in the forest areas. Their ability to access forest (and eventually river) resources and feed themselves has been largely undermined by forest and conservation policies. In some cases, their access to forest products has been restricted by community forest users groups. Indigenous rights advocates highlight the need for a separate forest policy for indigenous communities. The Tenth Plan (2002-2007) seeks to maintain a proper balance between forest and agriculture to contribute to food production and conserve land from erosion, floods and deforestation. According to the Tenth Plan, the development of the forestry sector should rely on a combination of private sector investment and sustainable forest management through popular participation. 4. Legal provisions on access to water Nepal is rich in water resources, with over 600 rivers and about 660 lakes with stagnant surface water of more than one hectare in area. Despite huge water resources potential, large proportion of Nepalese people has no access to safe drinking water, year-round irrigation and hydropower facilities. The Water Resources Act 1992 provides ownership right of water resources to the State, but grants 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 uses of water to be prioritized: drinking water and domestic use, cultural and religious use, irrigation, agriculture, hydropower, industrial use (etc.). Irrigation Policy 2003 establishes irrigation users committees. It has a provision which prohibits access to irrigation services to those who will not pay the service charge, which may negatively affect poor farmers. 91 The National Water Resource Development Policy 2003 focuses on sustainable development of water resources for poverty alleviation. The policy has some provision regarding people affected by hydro-projects: displacement should be minimized, compensation and rehabilitation should be provided and affected people should be encouraged to participate in 90 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. Battachan, 2000. 91 A case study on marginalized indigenous communities s access to natural resources in Nepal, Bishnu Raj Upreti and Jagannath Adhikari, 2006 (presented at the ICARRD, Porto Alegre, March 2006). - 21 -
the projects. In recent years, some measures have also been taken by the government to recognise the entitlements of local people, including indigenous communities, to a part of the revenue that derives from hydro-projects. All these elements are crucial since hydropower development is seen as a key income generating strategy for Nepal in the future. The Committee on Economic, Social and Cultural Rights has raised concerns about the occurrence of force evictions, such as in the case of the people displaced by the Kulekhani and Marshynagdi hydropower projects, without adequate compensation or appropriate relocation measures. 92 Privatization of water is currently a major policy debate. Water-related policies mention water rights but do not recognize the right to water. Rural Drinking Water Supply and Sanitation Policy 2003 categorizes water as a commodity with economic value. It emphasizes community participation in need assessment, project formulation, implementation and management, and clearly states the inclusion of women, Dalits and ethnic communities at each step. 5. 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, in particular in the agricultural sector. 93 In January 2000, minimum wages for agricultural workers were declared for the first time in the history of Nepal, after 34 years of minimum wage declaration for industrial sectors. The adult daily wage was set at Rs. 60 in agriculture (exactly CAD 1 or USD 0.85), Rs. 62 in tea plantations and Rs. 74 in the formal sector. These rates were revised in 2003. According to the General Federation of Nepalese Trade Unions (GEFONT), 94 minimum wages are not effectively implemented and there is no adequate mechanism to monitor their implementation. The effective implementation of minimum wage in every part of the country is seen as essential to improve the economic condition of the agricultural labourers and former Kamaiyas (bonded labourers) in particular. Discrimination in wage rate between women and men is also an issue. Women get paid less for the same work, especially in informal sectors. IV. Illustrative cases of violations of the Right to Food 95 The three cases presented below are the first outcome of documentation efforts concerning violations of the human right to food and water in Nepal. Investigations for those cases have been carried out in five districts (Siraha, Dhanusha, Accham, Dadeldhura and Banke). The brief information presented hereafter reflects the first findings on visited cases. The latter as well as several other cases will be thoroughly analyzed and accompanied in the future within the framework of the civil society Right to Food project carried out by FIAN International in collaboration with national NGOs. Cases Presented: 92 Committee on ESCR, 26th session, 13-31 August 2001, Concluding observations on Nepal. 93 Ibid. 94 www.gefont.org 95 The information provided in Section IV (Illustrative cases of violations of the Right to Food) of this submission has been prepared by FIAN International as part of its Right to Food project in Nepal. - 22 -
1. Denied access to drinking water to Dalits (Dom community) 2. HIV & AIDS affected and infected single women face hunger and malnutrition 3. Bounded labour and Right to food violation of freed Haliyas 1. Denied access to drinking water to Dalits (Dom community) Location District: Dhanusha District VDC: Hariharpur, Ward No. : 4 Village: Bin Tole Description The Government of Nepal has failed to protect the right to water for all its people. The access to drinking water by low caste and Dalit families (Doms) in the village has been threatened, as higher caste people do not allow the Doms to touch any of the 17 public wells in the village. Background Dom is considered the lowest of the low caste category in Terai (lowland areas of Nepal). Therefore they are the most discriminated group in terms of untouchability. They are not allowed to touch people of other caste, cannot enter hotels, restaurants, and temples. Similarly they are prohibited from touching water sources such as wells and tube wells. The extreme levels of untouchability with Doms result from their traditional professions. Doms dispose of dead animal carcasses, use leftover food, and use wood from cremation. Furthermore, the Doms population very often faces addiction to alcohol and tobacco which contributes even more to their marginalization within society. Doms earn their living by pig rearing, and are skilled in the preparation of utensils from bamboo and cane, such as handfan, dhakiya, chalani, changera etc; however, this traditional occupation has been challenged by the use of plastic utensils. Due to their untouchable status, Doms have minimal livelihood options and are often denied access and ownership of land. Hariharpur Village Development Committee (VDC), ward No. 4 has had a long-standing minority of Dom residents. Doms in Hariharpur are denied access to any of the 17 public wells in the village and therefore cannot access drinking water on their own. They are required to rely on the mercy of upper caste people to pump drinking water for them; in return Doms are bound to pay off the gratitude in kind with some hand-made utensils or in cash. This practice violates not only the right to water but also the right to food of the Doms as they have to remain dependent on others' mercy for water so that they can prepare meals. This situation leads to serious violations of the right to water, but also as a matter of fact and interdependence, of other human rights such as the right to adequate food and the right to health. In the light of the persisting discrimination in broad regions and sections of Nepal, local and national social projects aim at eradicating the caste discrimination and its resulting human rights violations. Thus, many social meetings have been organised and attempts to allow the Doms to use the wells and access water have been undertaken. However, these attempts often generate tense situations in the villages. For instance, a community facilitator was outcast by his community members for drinking water from a well where Doms had been given access as part of the fight against caste discrimination. In fact, in this example, Doms reported that social tensions generated by anti-discrimination projects had worsened the situation. Indeed, now the villagers charge even more money for water. - 23 -
Currently, interim solutions are proposed such as digging of a well exclusively for Doms. This could be the solution to provide immediate relief for Doms, but this is definitely not the lasting solution to the wider and pressing problems of caste disparity and of denial of access to water, adequate food or means for its procurement for each and every person. Breached of human rights obligations Nepal is a state party to the ICESCR. Ensuring right to water of the people is an obligation of the state and is one of the important elements of complying with ICESCR obligations. General Comment No. 15 on the Human Right to Water stipulates the obligation of the state to ensure non-discriminatory access to water for every individual. The human right to water entitles each person to sufficient, safe, acceptable, physically accessible and affordable water for personal and domestic uses. General Comment 15 says that there should be no discrimination to access water and water facilities and services must be accessible to all, including the most vulnerable or marginalized sections of the population, in law and in fact, without discrimination on any of the prohibited grounds. In this regard, the accessibility of water has been challenged in this case example. Doms continue to fear harassment and violence when they attempt to access water. The right to non-discrimination has been shattered here; as the Doms access to water has been denied based on their caste status which is an offensive act as per the constitution of Nepal. Evem Nepal's Constitution of 1990 ensured right to equality. The Interim Constitution has gone one step ahead in Article 14 which clearly protects citizens from untouchability and racial discrimination. Article 14 (2) says: No person shall, on the basis of caste, be discriminated against as untouchable, be denied access to any public place, or be deprived of the use of public utilities or be denied entry into public religious places or be denied to perform any religious ceremony." So did the Part 3, Article 11 (4) of the 1990's Constitution. In this case, there is a breach of the obligation to protect the right to water of a community from others. The obligation to protect requires State parties to prevent third parties from interfering in any way with the enjoyment of the right to water. Third parties include individuals, groups, corporations and other entities as well as agents acting under their authority. The obligation includes, inter alia, adopting the necessary and effective legislative and other measures to restrain, for example, third parties from denying equal access to adequate water; and polluting and inequitably extracting from water resources, including natural sources, wells and other water distribution systems. 2. HIV & AIDS affected and infected single women face hunger and malnutrition Location VDC: Payal, Ward No. 2&6 District: Accham Description According to a survey conducted in different VDCs of Achham, Payal VDC is one of the most affected by HIV/AIDS. With the loss of active adults due to HIV/AIDS, many households are not able to meet even their basic food needs. Many of the families have lost their agricultural fields and property to pay for medical treatment living the family without assets and perspectives. - 24 -
Background Achham is one amongst the five districts of Seti Zone in the far-western region of Nepal. Geographically, it is connected with Bajura in North, Surkhet in East and Doti in South-West. Achham is one of the biggest districts with the geographical coverage of 1680 sq. km. It contains 75 VDCs. The literacy rate of Achham district is 33.83% including women's literacy rate of 16.2%. Though Achham is one of the biggest districts according to territorial coverage, but has the least fertile land. Due to no proper irrigation facilities in the district people have to depend on rain-fed agriculture. Lack of employment opportunities and insufficiency of agricultural produce throughout the year has led the people of Achham to migrate to Mumbai, India to earn a living. Almost one person from each house in Achham goes to India. The migrants to Mumbai are illiterate and therefore confined to manual labour work. Usually, these people do not return home for 3-4 years and this exile leads to various social problems. Indeed, during the time away from home many become addicted to alcohol and become accustomed to visiting brothels. As a consequence of these social trends, HIV/AIDS has dramatically increased among the population of men selling their labour force in large cities and subsequently within their families back in Nepal. Seasonal migration to India is a common phenomenon; a common livelihood mechanism all over Nepal but the largest number of cases of HIV/AIDS is reported in the Far Western Region including Achham. As a result of this socio-economic situation and trend, many rural households face significant food insecurity. Many households have been compelled to sell land and other assets in order to afford medication. Widows (often affected themselves) are left with the responsibility to feed large families without the financial assistance previously provided by the labour of healthy adults. Breaches of human rights obligations The rights to health and to food are interlinked. A sick person is unable to access and afford food as efficiently as others. HIV/AIDS has been aggravating the situation of food insecurity across the developing world. The disease has an impact on the entire family which often becomes food insecure as a result of decreased capacity of the affected individual to earn a livelihood. Those affected are less able to earn money to purchase food or to produce enough food for self-sufficiency through cultivation. At the same time, the person living with HIV/AIDS is required to have nutritious food and health care. The situation worsens when a woman loses her husband who is often the primary bread earner of the family. Subsequently she may also lose her property or access to treatment and the suffering increases if she also is infected with HIV/AIDS. The single women in Payal VDC are therefore a very vulnerable group; with no husbands to earn, no land to produce food, no employment opportunities. The women are burdened with disease and dealing with the additional responsibility of raising the family members. The situation therefore demands the State to meet its obligation of fulfil, in this case by providing appropriate safety nets. This is a violation of human right to food as interpreted in General Comment No. 12. Also, it is a violation of UNDHR, Article 25 (1) of rights to food, shelter and medical treatment. This is also a violation of right to health (Article 16), right to employment (Article 18-1) and right to social security for single women, orphans, aged people, disabled etc. (Article 35-9) as enshrined as Fundamental Rights in the Interim Constitution of Nepal, 2007. - 25 -
3. Bounded labour and Right to food violation of freed Haliyas Location Tole: Khanwada Tole Municipality: Dhangadhi District: Dadeldhura Zone: Mahakali Development Region: Far Western Development Region Description Khanwada tole is a community of dalit people, totaling 25 households. The people have been in the tole for the last 5-7 generations although they do not know exactly when the community started to reside there. The people who have been working as haliyas since generations have a small piece of land and a house built on it. They are nearly landless and are dependent on ploughing for a livelihood. Background Dadeldhura is a district in the far-western hills of Nepal, one of four districts in Mahakali Zone. It has 20 VDCs, one municipality and one electoral constituency. People in the district are of various cultural backgrounds under the tradition of Hindu religion. Untouchability, gender-based discrimination and caste discrimination is prevalent in Dadeldhura. One of the worst manifestations of caste discrimination in the district is the Haliya System that is practiced widely in Dadeldhura. In the Haliya system a low-caste person is made to work as a ploughman (haliya) fir a higher-caste landlord to pay off the interest on a loan taken from the landlord. The system involves a bonded relation in which the entire family of the debtor is bound to work for the creditor until the debt is paid off. In reality, paying off the debt becomes almost impossible because the debtors are no-income people, and they lose the freedom to take up any other work once debt-bonded to the creditors. In the event a person dies without clearing the loan, the responsibility is transferred to subsequent generations. The word haliya refers to a male member, mostly the debtor, who ploughs the land. But in the system, the whole family members are affected. Each is involved in the work of the landlord as domestic servants. For all the work, they get a nominal wage mostly in kind. Belonging to the so-called low-caste, almost all the people are illiterate. Illiteracy keeps them from getting access to state privileges, such as the allowance for elderly and widow, and scholarship for dalit students. We have heard of these privileges, but have not been able to obtain them. There is no one to advocate for us, and we on our own are unable to go to government offices and talk to officers about these privileges, says an elderly man. Breaches of human rights obligations After the government of Nepal declared the Kamaiya (bonded labour) system illegal in 2001, seven families of the Khanwada community filed a case at the Dadeldhura District Administration Office against the haliya system. The case was filed with the help of a Social Welfare Organisation, Dadeldhura, fighting for the liberation of the haliyas. In the case, the community demanded the abolition of the haliya system as it was a form of bonded labor. On 4 August 2004, the District Administration Office mediated an agreement between the haliyas and the landlords. They agreed to bring the practice of the haliya system to an end by destroying all bonds containing records of loans and pardoning the loans. - 26 -
Despite this agreement, the landlords have excluded the seven families from working in the fields, and are not providing any jobs to them. They are also not allowed to use community land for grazing their animals and collecting firewood. Without access to credit, which was formerly provided by the landlords, they are now unable to buy raw materials for their baskets. These freed Halyiyas could also not make use of the government scheme (under which to goats had been provided to each family), as without access to grazing land they were forced to sell the goats and some animals even died. In order to find employment they have to walk one hour to the next city Dhadeldhura. The situation of the haliyas is a clear violation of the obligation to protect and fulfil the right to food of this community. The state of Nepal has not protected these freed haliyas against the influence of the landlord with regard to the free use of community land, which is a very strong component of the right to food (grazing animals, collecting firewood for cooking). Furthermore, the state has also violated the obligation to fulfill the right to food. The freed haliyas are in need of a livelihood resource (work or land, or functioning welfare scheme), which has not yet been provided to them by the state. So far they did not receive assistance from the government to ensure their right to food. - 27 -
V. Concluding remarks The FFM, organized by Rights & Democracy, reported that hunger and food insecurity is pervasive across Nepal and that child malnutrition rates of more than 50 % are at crisis level. The delegation observed that food insecurity is pervasive in both food surplus and food deficit districts and affects primarily women and children, Adivasi janajatis (indigenous nationalities), dalits (untouchables), Kamayas, Haliyas and Haruwas (bonded labourers) and people living with HIV/AIDS. Obstacles to the realization of the right to food include: Endemic discrimination and social exclusion; Insufficient and insecure access to land and other productive resources; Landlessness and evictions; Discriminatory access to traditional resources such as forests and fishing areas. Although the Government of Nepal is in a political transition and therefore continues to lack capacity to fully implement programs and policies, the mission did observe examples of positive initiatives towards the realization of the right to food. Delegates welcomed the inclusion of the right to food sovereignty and the integration of land reform provisions in the interim constitution, as well as innovative management systems for community forestry and protected area buffer zones. Nevertheless, the mission members were concerned that the government has no comprehensive strategy to address hunger and the situation is exacerbated by a lack of coordination between the capital, regions and districts, as well as between government ministries. Existing programs do not fully respect, protect or fulfil the human right to food. For example: Genuine land reform is not being implemented; Agricultural policy focuses on production and commercialisation but does not address accessibility and distribution; Relief measures for natural and man-made disasters are ad-hoc and lack sustainable resettlement plans; Food distribution does not reach the most vulnerable and there is a need for greater transparency, accountability and effective monitoring. International donors and implementing agencies focus primarily on the political process at the expense of attention to the economic and social causes of the conflict. International agencies active in Nepal do not apply a human rights framework nor do they emphasize the human right to food in their programs. The mission delegates believe that the realization of the human right to food in Nepal is the key to reconciliation and peace. The concrete cases of violations of the right to food documented in part IV gives further rise for serious concerns with regards to the compliance of the Nepalese state with its obligation to proceed as expeditiously as possible towards the full realization of the Right to Adequate Food as enshrined in the ICESCR, Article 11 and as interpreted by the CESCR in General Comment 12 of 1999. In the light of the first results of the documentation of cases under the FIAN project towards a national Right to Food report, FIAN International would like to highlight the need to take advantage of the current legal and political environment to - 28 -
strengthen and mainstream the right to food in the Nepalese domestic law regime. FIAN would also like to stress the need to effectively address all forms of discrimination and marginalisation in the access to food productive resources including land and water, given the fact that most of the victims of right to food violations and the vulnerable groups to food insecurity live in rural Nepal. VI. Recommendations to the CESCR In the light of the background research and preliminary findings of the Fact-Finding Mission to Nepal organized by the Canadian organization Rights & Democracy, as well as in the light of the cases documented by national organisations in the context of the FIAN Right to Food Project, the submitting organizations would like to ask the Committee: To closely follow future legal developments regarding the right to food within the new constitutional context. In particular, the Committee should encourage the state to establish as the outcome of a democratic and participative process a framework legislation for the right to food settling right to food principles, setting up a national action plan, benchmarks and indicators as well as monitoring and enforceability mechanisms for the achievements of the action plan; To ask the state distribute the FAO Voluntary Guidelines on the Right to Adequate Food within all the three powers of the state, including at the local level; To carry out awareness-raising activities and capacity-building efforts on the right to food for concerned civil servants and judges; To urge the state to carry out and to implement a genuine land reform in order to improve access to food for thousands of landless, small-scale peasants and other rural poor; To urge the state to design and monitor agricultural policy in a participative way in order to avoid the single focus on production and commercialisation and to duly address accessibility and distribution issues; To demand that the state design and implement early-warning and relief measures for natural and man-made disasters which are completed by sustainable resettlement and rehabilitation plans; To urge the state to ensure that food distribution reaches the most vulnerable and that programmes are carried out with greater transparency, accountability and effective monitoring; To put in place effective programs to fight caste discrimination and bounded labour in rural Nepal; To urge the state to investigate cases of discrimination of Doms in the access to drinking water and to protect this access against any attacks by third parties; To urge the state to take measures for awareness-raising and participatory processes with regards to the sharing of resources and assets such as water; To urge the state to investigate on the threats of eviction and insecurity of land tenure faced by the Musahars and Terai Dalits in general and to explore effective ways to protect and fulfil the right to food of these vulnerable groups. - 29 -
ANNEX I Description of the International Fact-Finding Mission The Human Right to Food in Nepal An International Fact-Finding Mission In collaboration with: the Office of the UN Special Rapporteur on the Right to Food, FIAN-International and the Food and Agriculture Organisation (FAO). Mission dates: April 8-20, 2007. Objectives of the mission: To assess hunger and food insecurity in Nepal from a human right to food perspective; To provide practical training for local civil society on the use of the human rights framework; To apply the FAO Voluntary Guidelines on the Human Right to Food in a practical context; To demonstrate the advantages of using a human rights framework for policy and program development. Focus of the mission: The mission will assess hunger and food insecurity in Nepal from the perspective of the state s obligation to respect, protect and fulfill the human right to food. This will include attention to restricted or denied access to productive resources, internal displacement linked to infrastructure development, the situation of bonded labourers, agrarian reform and the rights of peasants, and the impact of food aid. A special emphasis will be put on the rights of indigenous people, women and Dalits. Mission s activities: The mission will include visits to affected communities and interviews with political parties, members of parliament, UN and donor agencies, representatives of social movements and civil society organizations. Preliminary findings will be released during a press conference at the end of the mission. A fact-finding mission report will be submitted later in the year. Composition of the mission team: The mission will be composed of 6 international experts and 6 national experts. The international delegation will include: Mohan Dhamotharan Alberto Saldamando Carole Samdup Mildred Sharra Andreas von Brandt Sally-Anne Way FIAN International International Indian Treaty Council Rights & Democracy Action-Aid Malawi Food and Agriculture Organisation, Right to Food Unit Office of the Special Rapporteur on the Right to Food Contact information: Mission co-ordinator Priscilla Claeys (Rights & Democracy) pclaeys@dd-rd.ca - 30 -
Fact-Finding Mission International Delegates Priscilla Claeys, Belgium Fact-finding mission Co-ordinator, Rights & Democracy Priscilla Claeys is an Economist with specialization in environmental management. She has worked on issues relating to agricultural trade liberalization, labour rights and the right to food. She used to co-ordinate the Belgian section of Fian-International and has participated in fact-finding missions on the right to food in Brazil and the Philippines. Priscilla lives in Mexico. Mohan Dhamothran, India Consultant, FIAN International Mohan Dhamotharan is an Agricultural Engineer and Independent Trainer. He is involved in designing and implementing capacity building programs for FIAN sections and other NGOs in India. He has worked in the area of development cooperation both in Germany (INWENT, FIAN) and Japan (Asian Productivity Organisation) for more than 15 years. He also worked as visiting scientist at ICRISAT in India for three years, where he focused on participatory methods for farmer-driven research in pearl millet farming. Mohan lives in Germany. Alberto Saldamando, United States General Counsel, International Indian Treaty Council (IITC) Alberto Saldamando has a J.D. (Doctor of Law) degree and has wide experience as a public interest attorney. He does international human rights work for the IITC and has developed expertise in the UN s non-conventional mechanisms for the vindication of Indigenous Human Rights. He is responsible for filing complaints with international human rights mechanisms and provides training to grass-roots Indigenous Communities on International Humanitarian Law, Human Rights Law and complaints procedures. He has done a lot of research on the right to food of Indigenous people. Carole Samdup, Canada Program Officer, Rights & Democracy Carole Samdup is a Program Officer at Rights & Democracy, where she has worked since 1994 on issues related to Globalization and Human Rights. In that capacity, her areas of focus have been regional integration in Asia; human rights in China; agriculture and the human right to food; and economic, social and cultural rights in multilateral processes. Before coming to Rights & Democracy, Carole worked in the private sector. Mildred Gloria Sharra, Malawi Women s Rights Thematic Coordinator, ActionAid International Malawi Mildred Sharra is a Women s Rights, Gender, HIV/AIDS and Human Rights activist. She has conducted a lot of research in relation to women s rights and the right to food and is a member of the Malawi Right to Food Task Force. In October 2005, on behalf of the task Force, she presented a paper at University of British Columbia in Canada entitled Bringing Home the Right to Food, as part of advocacy for the Food and Nutrition Security Bill in Malawi. - 31 -
Andreas von Brandt, Germany Right to Food Unit, FAO Andreas von Brandt is in charge of communications at the FAO Right to Food Unit. He also supervises the FAO work on the right to food in Nepal and India. He has worked for the United Nations Department of the German Federal Ministry of Foreign Affairs, where he designed German development and UN reform policy on the UN Millennium +5 Summit and coordinated follow-up to the World Food Summit: five years later. He has also worked as a consultant for the World Bank. He has a background in International Legal Studies and Political Science. Sally-Anne Way, UK Office of the UN Special Rapporteur on the Right to Food Sally-Anne Way is a specialist on rights-based approaches to development and on economic, social and cultural rights. She is Senior Adviser to the UN Special Rapporteur on the Right to Food and Research Associate at the Graduate Institute of Development Studies of the University of Geneva. She has also advised a range of UN organisations on human rights and development, including the UN Office of the High Commissioner for Human Rights. Fact-Finding Mission National Delegates Action-Aid Nepal ActionAid has been working in Nepal since 1982. Its mission here is to empower poor and excluded people to eradicate poverty and injustice. AAN adopted a rightsbased approach in 1998 with an aim to creating an environment in which poor and excluded people can exercise their rights. AAN has prioritised five themes based on the local context and needs Women s Rights, Education, Food Security, HIV and AIDS and Peace Building. AAN is also engaged in issues such as Emergency and Disaster, Globalisation, Governance, Gender Equity, and Social Inclusion that cut across their priority themes. Delegate: Mr. Ila Sharma. All Nepal Peasants Association (ANPA) ANPA s membership comprises of landless, lower and middle class peasantry, farm and bonded labourers, pastorals as well as indigenous and Dalit farmers, women and youths including peasants working on various farm sectors such as cereal crops, cash crops, fisherfolks, indigenous people, cattle ranching and sheep-flocking, vegetable farming, poultry farming, fruits and herbal farming, etc. Delegate: Dr. Keshav Khadka. Community Self-Reliance Center (CSRC) - CSRC is working to build a sustainable movement of tenants, landless farmers, bonded labourers (Kamaiya, Haliya) and other landdeprived men and women who have the capacity of bringing about real change. CSRC focuses on land rights and social mobilization through the capacity building of people deprived of land rights. Delegate: Mr. Jagat Deuja. Informal Sector Service Center (INSEC) INSEC has been working in the human rights sector for the last 17 years and has raised a number of human rights issues to the national agenda to influence the necessary policy and legislations. - 32 -
INSEC has been emphasising economic, social and cultural rights in its agenda, highlighting issues of bonded labour, minimum wage for the agricultural workers and other issues. Delegate: Mr. Bidhya Nath Bhurtel. Lutheran World Federation Nepal (LWF Nepal) LWF Nepal is the country programme of the international LWF based in Geneva. LWF was established in Nepal in 1984 and implements programmes directly as well as through partner NGOs and Community Based Organizations. LWF Nepal works in the following areas: relief and rehabilitation, development through empowerment, advocacy and networking, and organizational effectiveness and development. Delegate: Mr. Basanta Ghimire (Eastern Nepal). Nepal Federation of Indigenous Nationalities (NEFIN) NEFIN consists of 50 indigenous member organizations widely distributed throughout the Terai, Hills and Himalayas of Nepal. The mission of NEFIN is to acquire social equality and justice for Indigenous Nationalities by preserving their distinct social, political, cultural and linguistic identities and by promoting their representation in very aspect of national life. Delegate: Mr. Ram Bahadur Thapa Magar Rural Reconstruction Nepal (RRN) RRN is working to implement development programmes from a human rights perspective, to conduct action-oriented research on relevant socio-economic issues, to publish people-oriented educational and promotional materials, and to campaign at the local, national and international levels on the root causes of poverty, human rights violations and other related development issues. Delegate: Dr. Arjun Karki. Our approach: the Human Rights Framework The International Covenant on Economic, Social and Cultural Rights (ICESCR) recognizes the right to an adequate standard of living, including the right to adequate food also referred to as the right to be free from hunger (Article 11). One hundred and fifty-three States, including Nepal, are currently party to the ICESCR, representing an international consensus on which international cooperation can and should be built. All rights be they economic, social, cultural, civil or political rights share common governing principles: they are universal and must be applied without discrimination; they are indivisible, interdependent and inter-related; and they require mechanisms for effective remedies when violations occur. General Comment 12, devoted specifically to the human right to adequate food, was adopted by the UN Commission on Human Rights in 1999. One of its lasting contributions was to provide a tripartite typology for monitoring State compliance with obligations under the ICESCR. The typology to respect, to protect and to fulfill is now generally applied to all economic, social and cultural rights. The obligation to respect requires State accountability for its own action or failure to act with regards to human rights; the obligation to protect requires States to take all necessary steps to ensure that non-state actors do not violate human rights; the obligation to fulfill requires States to provide an institutional framework to ensure that human rights can be effectively enjoyed in practice. - 33 -
The Voluntary Guidelines to support the progressive realization of the right to adequate food in the context of national food security were adopted by the FAO members in 2004. They provide a practical tool to assist States to both understand and fulfill their obligations. The Guidelines are significant because they represent the first time that governments set about to interpret an economic, social or cultural right and to recommend actions for its realization. General Comment 12 also addresses the international dimension of the right to food, requiring States to take joint and separate action to achieve the full realization of the right to adequate food and in international agreements whenever relevant, ensure that the right to adequate food is given due attention. - 34 -
Potential Right to Food Violations in Nepal according to the State s obligation to respect, protect and fulfil typology - 35 -
Fact-finding Mission Program April 2007 Sunday April 8 Arrival in Kathmandu, informal meeting Monday April 9 Meeting with fact-finding mission (FFM) team, introductions, briefing on the country situation and the objectives of the FFM, and preparation for site visits (itinerary, issues, ) Press conference 4pm (Hotel Himalaya) Tuesday April 10 Courtesy visit with Government, meetings with local actors Wednesday April 11 Separation in 3 teams - travel to districts and visits Thursday April 12 Visit (3 teams) Friday April 13 Visit (3 teams) Saturday Sunday April 14 Visit (3 teams) April 15 Travel back to Kathmandu Monday April 16 Reporting from 3 teams, debriefing and preparation for interviews with government, political parties, donors, UN agencies etc. Tuesday April 17 Meetings and interviews Wednesday April 18 Meetings and interviews Thursday April 19 Right to Food seminar (1/2 day) Friday April 20 Departure Press conference on the FFM findings - 36 -