Nepal acceded to the International Covenant on Economic, Social and Cultural Rights (ICESCR) in 1991 without any reservation. The fundamental ESC rights such as the right against discrimination, right to equality, work and favourable environment to work, social security, adequate living standard, health, education, physical and mental health, and preserve one’s culture have, however, not been realised effectively. There is no effective national mechanism for remedy on the violation of ESC rights.
The state ignores the ESC rights stating that they are subjects of progressive realisation. Nepal is not a party to the Optional Protocol of the ICESCR (OP-ICESCR). This hinders implementation of the Covenant and denies one the right to seek remedy for its violation.
The 38th Session of the UN Economic, Social and Cultural Committee has recommended that "..special units be established to monitor the implementation of programmes to protect and promote the full enjoyment without discrimination of their economic, social and cultural rights by disadvantaged and marginalised groups, in particular the Dalit, the Madhesi and indigenous communities, and especially women within these groups."
While noting that Nepal is a low income country and its resources are correspondingly limited, the Committee reminds the State party that it is obliged to comply with its Covenant obligations to the maximum of its available resources. In this regard, the Committee refers to the State party to its recent statement on the evaluation of the obligation to take steps to the "maximum of available resources" under an Optional Protocol to the Covenant.
The Committee also recommends that "specific mechanisms and procedures be established to monitor the implementation of such strategies and evaluate the progress achieved in combatting poverty effectively, including among the most disadvantaged and marginalised groups." This recommendation itself justifies that Nepal needs to immediately ratify OP-ICESCR to implement them.
The Interim Constitution of Nepal, 2007 with a comprehensive catalogue of fundamental rights, and provisions for their effective protection, is the basic source of human rights. It heavily incorporates the rights set forth in the Universal Declaration of Human Rights (UDHR) and ICESCR. This constitutional provision has created an obligation on the State to provide a system that fully upholds, inter alia, the universally recognised basic human rights and establishes the rights of all citizens to education, health, housing, employment and food security.
It also inscribes some ESC rights in the Directive Principles and State Policies, which include provisions for positive discrimination, reservations and other forms of special support for the vulnerable or marginalised groups or communities in connection with education, health, housing, employment and food, for their empowerment, protection and development.
Article 34 of the constitution has made the establishment of a just system in all aspects of life, including economic and social advancement, as the fundamental objective of the State. Article 35 provides for state policies about raising the standards of living of people through development of education, health, transportation, housing, and employment of the people of all regions by ensuring equitable distribution of economic resources for balanced development of the country. To fulfill this state obligation, there is urgent need to intervene on the ESC rights issue in post-conflict Nepal.
Social exclusion, discrimination, violence, structural inequalities, corruption and lack of political will are among the major barriers to the realisation of ESC rights in Nepal. For many Nepalese communities, the most important constitutional reforms needed pertain to basic quality of life, including livelihood, food, water, health, housing and education. This is due to the extreme poverty and underdevelopment experienced by much of the population.
The aspirations of the Nepalese people shown in Jana Andolan II were not only for a change of government but also to strengthen a human rights culture, including economic and social justice.
Nepal is currently undergoing an historic transition from a monarchy to a democratic federal republic. The elected Constituent Assembly (CA) is tasked with drafting a permanent constitution. Despite numerous challenges and obstacles, this is a time of great hope and expectation for the country. Analysts argue that the conflict in Nepal was partly rooted in the socio-economic and cultural inequalities, resulting from the state’s failure to ensure and protect the ESC rights.
In this manner, denial of equal access to socio-economic opportunities and development directly contributed to the armed conflict. Therefore, there is a need to immediately intervene in Nepal to promote ESC rights. For this, the Government should immediately ratify / accede to the OP-ICESCR.