The economic, social and cultural rights (ESCR) guaranteed in Nepal’s Constitution are enforceable in Nepal’s courts, which routinely apply international human rights law and standards, including the International Covenant on Economic Social and Cultural Rights (ICESCR). Nevertheless, Nepali lawyers have bemoaned the authorities’ failure – as elsewhere in the world – to execute and implement court orders and judgments.
On 29 March 2023, the International Commission of Jurists (ICJ) and the Economic, Social and Cultural Rights National Network of Nepal (ESCR-Network Nepal) organized a workshop to exchange and share knowledge on litigating ESC rights in the global south. While building on similar prior engagements, the workshop sought to discuss and identify key opportunities and challenges in better implementing ESC rights through strategic litigation in Nepal.
Lawyers belonging to the Public Interest Litigation (PIL) Lawyers group from Nepalgunj in Lumbini Province, Nepal, shared their experiences and frustrations in initiating strategic litigation.
One common problem worldwide is the non-implementation of courts’ judgments on ESC rights, with governments frequently claiming a lack of resources to do so. These are often no more than baldly stated excuses, with authorities typically providing little or no information about details of budgets, how they have been spent, and why they could not be allocated, in part, to implementing binding court orders,” said ICJ Legal Adviser, Timothy Fish Hodgson.
Nepali lawyers, Senior Advocate Sunil Kumar Shrestha, Advocate Raju Prasad Chapagai and Advocate Basanta Gautam also highlighted the importance of lawyers working at Supreme Court and High Court levels sharing information with one another to ensure the implementation of court orders.
After hearing about litigation experiences in South Africa, Kenya and Nepal, the Nepali lawyers identified some key issues in the country with respect to strategic litigation on ESC rights, including: eviction of the slum dwellers in Kathmandu; the authorities consistent failures to plan for entirely predictable infrastructural damage during monsoon seasons; forceful removal of street vendors; exploitation of persons living in poverty through unlawfully provided loans; the overstretched and underfunded status of public hospitals and public schools; and underregulated privatization of social services, such as education and healthcare.
The workshop also highlighted the importance of an intersectional approach to ESC rights litigation, which, in turn, would result in greater integration and prioritization of the needs of marginalized groups, including persons with disabilities.
Sharing his personal experience litigating cases on discrimination against person with disabilities in Kenya, ICJ Associate Legal Adviser, Wilson Macharia said:
The Convention the Rights of Persons with Disabilities entrenches a full range of ESC rights, in addition to a range of other human rights. It is a powerful weapon for persons with disabilities in challenging systemic discrimination that remains all too common. Lawyers should engage in court-based interventions, as well as extensive rights-based advocacy to protect the rights of persons with disabilities. The first step is public interest lawyers themselves understanding the human rights of persons with disabilities and engaging local disability rights organizations to appreciate the priority areas for advocacy and litigation.
The workshop participants resolved to continue to work together to ensure the effective implementation of international and domestic human rights standards on ESC rights and the human rights of persons with disabilities.
If judgments are not implemented, there is a risk for the people of Nepal losing faith in the ability of ESC rights litigation to assist in alleviating poverty and inequality”, said Karuna Parajuli, ICJ’s National Legal Adviser. “It is clear, in particular, that the ESC rights of persons with disabilities, should be an urgent priority for future advocacy and possible litigation, she concluded.
Out of nine core human rights treaties, Nepal has ratified seven of these treaties, including the International Covenant on Economic, Social and Cultural Rights and the Convention on the Rights of Persons with Disabilities. In line with its international obligations, the Constitution of Nepal, 2072 (2015) guarantees human rights, including various economic, social and cultural rights. Article 46 of the Constitution also provides for approaching the Supreme Court or the High Court for the enforcement of such rights.
In terms of Article 51(b)(3) of the Constitution of Nepal, 2015, Nepal has an obligation to pursue policies related to “implementing international treaties and agreements to which Nepal is a State party”. Similarly, Section 9(1) of the Nepal Treaty Act, (2047) 1990, provides that, if domestic laws are inconsistent with Nepal’s international obligations, “the inconsistent provision of the law shall be void”.
The Act Relating to the Rights of Persons with Disabilities, 2074 (2017), which is aimed at domesticating the CRPD, was a welcome step towards realizing the human rights of person with disabilities. Nepal is a State party to the CRPD, and its State periodic report to the CRPD Committee is due in 2024.
This workshop occurred on a visit of ICJ global staff to Nepal between 26th March to 1st April 2023 during which they consulted with a range of lawyers, judges, civil society organizations and organizations of persons with disabilities. the ICJ also made presentations to law students in the Kathmandu School of Law regarding strategic litigation on ESCR and disability rights on 28 March.
Karuna Parajuli, ICJ National Legal Adviser, e: firstname.lastname@example.org
Wilson Macharia, ICJ Africa Associate Legal Adviser, e: email@example.com
Timothy Fish Hodgson, Legal Adviser, ESCR, e: firstname.lastname@example.org
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