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Webster and Gurung: Introdution INTRODUCTION Sarah Webster Om Gurung Poverty, discrimination, unemployment and the emergence of a culture of conflict have surfaced as major factors for the continuation of political instability in Nepal. In a climate of growing instability and escalating violence, there has been increased recognition of the multi-ethnic and multi-cultural character of Nepali society and the need for respecting this diversity for political stability and social progress. Nepal has at least 59 indigenous peoples (known as “Janajatis” or “Nationalities”), who are holders of distinct languages, cultures, beliefs and knowledge systems. The 2001 Census sets the total indigenous population at 8.4 million, constituting 37.2% of the total population in the country. The ongoing Maoist insurgency has succeeded in putting the empowerment, inclusion and advancement of indigenous nationalities firmly on the national political agenda.1 Some people may not be aware that the International Labour Organisation has a specific mandate to work for the protection and promotion of the rights of indigenous and tribal peoples. In fact the ILO has adopted the only international legal instruments on the rights of indigenous and tribal peoples: the Convention on Indigenous and Tribal Populations, 1957 (No. 107), now closed for ratification, and the Convention on Indigenous and Tribal Peoples, 1989 (No. 169). Convention 169 is the foremost legally binding international instrument protecting the rights of these peoples and provides the legal framework for the ILO’s work on indigenous and tribal peoples, including technical assistance programmes and other operational activities. On a broader level, the overall mandate of the ILO is to promote social justice, thereby contributing to universal and lasting peace. As such, the concerns of indigenous and tribal peoples, whose marginalization has often led to violent conflict in many parts of the world, clearly falls within its ambit. It is against this backdrop and at the request of indigenous peoples organizations in Nepal, that promotion of Convention 169 has been taken up by the ILO in Nepal and supported by the ILO's technical assistance programme: the Project to Promote ILO Policy on Indigenous and Tribal Peoples (which aims to make better known the basic provisions of ILO Convention No. 169 in order to facilitate its application both in law and practice2). In addition, it is also 1 Bhattachan and Webster, Indigenous Peoples, Poverty Reduction and Conflict in Nepal, ILO Project to Promote the Rights of Indigenous and Tribal Peoples (PRO 169), 2005, pp. 12. 2 An important objective of this programme has been to enable indigenous and tribal peoples to participate more effectively in national decision-making processes, and to promote dialogue and cooperation between and among indigenous and tribal peoples and governments. 1 Webster and Gurung: Introdution relevant to note that promotion of Convention 169 was highlighted by the Committee for the Elimination of all forms of Racial Discrimination (CERD) in their March 2004, ‘Concluding Observations’ for Nepal, which recommended the state to take stricter measures to combat discrimination against indigenous peoples and to consider ratification of ILO Convention 169.3 This edited volume is culmination of a concerted attempt by concerned individuals and organizations to shed more light on the complex issues associated with indigenous peoples, development and conflict in Nepal. More specifically the aim of the papers is to stimulate dialogue on ILO Convention on Indigenous and Tribal Peoples (No. 169) and its relevance in Nepal, particularly to explore its potential in the context of peace-building, with a view to seeking solutions at the national level to tackle social exclusion of indigenous nationalities, thus contributing to lasting peace and stability. This publication is also an attempt to address the gap in understanding and material on substantive and policy issues related to indigenous nationalities in Nepal and elsewhere, by including perspectives from government, civil society and international actors. Taking the spirit and provisions of Convention 169 as the guiding principle, it is hoped that the knowledge generated by this book will help create more understanding of the problems facing indigenous peoples in Nepal today, thus helping to stimulate cooperation and harmony between the government, policy makers, indigenous nationalities and civil society in tackling these important issues. The format of the publication largely corresponds with the proceedings and presentation of research papers presented at the National Dialogue Conference on ILO Convention 169 and Peace Building in Nepal, held in Kathmandu on 19-20th January, 2005. The main objectives of this national dialogue were: • To promote rights of indigenous nationalities within the framework of ILO Convention 169. • To enhance understanding of indigenous peoples issues among the general population, to reduce discriminatory practices. • To generate support and awareness for greater inclusion of indigenous nationalities in mainstream social, economic and political processes. • To facilitate the process of legal and administrative reforms for political empowerment of indigenous nationalities. • To contribute to the establishment of a participatory dialogue for lasting peace, through a better understanding of the role of Convention 169 in conflict situations with ethnic dimensions. 3 The National Human Rights Action Plan (NHRAP) also calls for the enactment and reinforcement of laws to protect and safeguard equal rights of indigenous peoples in conformity with international human rights norms and standards, including Convention 169. 2 Webster and Gurung: Introdution The first day of the conference served as an introduction to Convention 169 and focused on general issues related to the Convention, its provisions and its application in the Nepalese context. Day two looked particularly at Convention 169 in the context of social exclusion, conflict and lasting peace in Nepal. Since that time, extensive work has gone into the research papers by both the authors and editors to get them to their present format. In this publication, following the inauguration speeches (in which the then Prime Minister was reminded of his earlier commitment to ratify Convention 169) the chapters are arranged under two sections: Section One: ‘Convention 169 in the Nepali Context’, and Section Two: ‘Social Exclusion, Conflict and Lasting Peace in Nepal’. The first paper by Coen Kompier serves as a general introduction to the spirit and scope of Convention 169 by elaborating on its role as a development tool. Mr Kompier briefly discusses the major provisions of the Convention, focusing particularly on those which are sometimes open to misinterpretation by governments. These include issues related to definition (Article 1); land rights, including displacement, resettlement and natural resources (Articles 13-19). Finally, he brings up the question of feasibility of ratification by Nepal given the absence of Parliament and concludes by saying this is a choice which can only be made and orchestrated at the national level. The second paper by Hem Sharma Pokharel is pioneering in that it gives a comprehensive account of the government’s perspective of indigenous nationality issues, including documentation and brief analysis of the range of policies and initiatives related to indigenous nationalities undertaken by HMG/N, including constitutional and legal provisions; five year development plans (particularly the Tenth Plan); commitments made in the Nepal Development Forum; National Foundation for the Development of Indigenous Nationalities (NFDIN) and the National Human Rights Action Plan (NHRAP). Mr Pokharel concludes that the legislative and policy framework in Nepal is essentially conducive for ratification of Convention 169. However, he also raises some of the challenges faced by HMG-N in addressing indigenous peoples’ issues, before finishing with a list of recommendations for the future. Through its deeper analysis of national legislation and policy vis-à-vis the provisions of Convention 169, the comparative legal review by Shankar Limbu substantiates on the general opinion of the previous paper – i.e. that policy direction in Nepal is essentially favorable to the spirit of Convention 169. However, the inherent discrimination embedded in the national Constitution, which denies non-Hindus cultural rights, by designating Nepal as a Hindu Kingdom and Khas Nepali as the official language, remains a major impediment to equality and renders the constitution ambiguous in terms of the rights it affords to indigenous peoples.4 4 'Nepal is a multiethnic, multilingual, democratic, independent, indivisible, sovereign, Hindu and Constitutional Monarchical Kingdom' (Article 4 (1)). 'The Nepali language in the Devnagari script is the language of the nation of Nepal. The Nepali language shall be the official language' (Article 6 (1)). 3 Webster and Gurung: Introdution This comprehensive paper also gives a brief history of the plight of indigenous peoples in Nepal and the impact that historical processes and injustices, such as land alienation and discriminatory policies and laws justified in the process of state formation, have had on indigenous nationalities in the present. This is followed by a detailed analysis of each provision of the Convention against national legislation. The analysis is guided by the framework of Convention