Federalism, Ethnic Autonomy and Right Federalism, Ethnic Autonomy and Right to Self-Determinationto Self-Determination

&&RecommendationRecommendation

Krishna B. Bhattachan, Ph.D.

Advisor

Nepal Federation of Indigenous Nationalities (NEFIN)

Presented in a forum meeting with indigenous peoples/nationalities during visit of the Special Rapporteur

on the situation of human rights

and fundamental freedoms of indigenous peoples

to Nepal

25 November 2008

Problems Faced by IPs in Nepal

IPs lost identity, ancestral domain, land, indigenous knowledge systems, customary rights etc. due to -

• GUN, TREATY & MANUSMRITI

• Unitary, predatory, exclusionary, Hindu State

• Monarchy

• Brahmanism

• Patriarchy

• Policies of melting pot

• Domination, Hegemony, Monopoly, Discrimination, Subjugation, Suppression and Oppression against IPs by one caste (Bahun-Chhteri), one religion (Hindu), one culture (Hindu), one language (Khas Nepali), one sex (male), and one region (the Hill).

Problems contd.

• IPs continue to suffer from the State direct, structural and cultural violence

• Loss of ownership and control over territories and lands (forest, pasture, mines and other natural resources).

• Rapid destruction of IPs’ languages/mother tongues

• Rapid destruction of IPs’ indigenous knowledge system and customary practices.

• Landlessness, poverty, illiteracy and bad health

• Denial of Free Prior Informed Consent (FPIC) by the state

• Denial of human rights based development approach to indigenous peoples

• Nepal is best in ratification of international instruments of human rights but fails to implement them effectively.

Problems contd.

Also, IPs continue to suffer from various forms of discrimination including:

– Racial

– Social & Cultural

– Linguistic

– Religious

– Economic

– Political

– Pshychological

Best and Bad Practices of the Nepal Government

Best Practices Bad Practices

Census data disaggregated by caste, ethnicity, language, and religion

Data are engineered to show less population of IPs, mother tongues and non-Hindu religions

Constitutional and legal recognition of IPs; 59 IPs in the government’s list and effort to include remaining IPs

Domination and discrimination against and exclusion of IPs continue unabated

Establishment of the autonomous Foundation for Development of Indigenous Nationalities (NFDIN)

Nominal budget and controlled by the government

Targeted Five/Three Year Plan (PRSP) for IPs

No relation to UNDRIP, ILO C. 169 and other human rights of IPs; and targeted plans for IPs are often not implemented effectively.

Best and Bad Practices of the Nepal Government

Best Practices Bad Practices

Agreements with indigenous peoples’ movement, including agreement with NEFIN and JSCIN; and with Federal Democratic National Forum (FDNF)

Failed to implement

Declaration of the Secular state

It is in paper only but nothing in practice

Declaration of Federal Democratic Republic

Basis of federalism contested

Ratification of ILO C. 169 Slow and poor implementation

Adoption of UNDRIP No implementation

Hence, to address these and other problems raised in previous thematic presentations, IPs of Nepal have been struggling to ensure ethnic autonomy with right to self-determination in Federal Democratic Republic of Nepal

Federalism

IPs Demand that– Basis of Federalism must be Ethnic for IPs;

and

– Linguistic and Regional for other communities

IPs reject federalism on any other basis

Ethnic Autonomy

Ethnic Autonomous State of Each IPs Ethnic Autonomy of more than Two IPs Undecided for Territorial or Non-Territorial Autonomy

Undecided

Limbuan of the Limbus Kirata Autonomy of the Rais, Limbus, Sunuwar, Lapcha, Sherpa nad Bhote

Mjahi Remaining IPs

Tamsaling of the Tamangs Morang Autonomy of the Meche, Dhimal, Gangai, Tajpuria, Urao (Jhangad), Santhal

Bhujel

Nepal Mandala or Nepa: of the Newars Raji

Tamuwan of the Tamus

Magarat of the Magars

Tharuhat or Tharuwan of the Tharus

Khabuan of the Khambus (Rais)

Rong Autonomy of the Lapchas

Sunuwar Autonomy of the Sunuwars

Chepang Autnomy of the Chepangs

Kochila Autonomy of the Rajbanshis

Right to Self-Determination

• IPs demand for right to self-determination in accordance to Article 1 of ICCPR; Article 1 of ICSCER; and Articles 3, 4 and 46 of UNDRIP.

• IPs’ right to self-determination in deciding autonomy or self-rule must be ensured by the Constituent Assembly.

Main Political Parties’ Position on Right to Self-Determination and Ethnic Autonomy

Among the 4 main political parties:– The ruling NCP Maoist gives right to self-determination with right

to secede but it is in principle only but not to practice it; out of 11 autonomous states, including 7 autonomous states of IPs are in name only.

– The ruling NCP UML mentions right to self-determination in accordance to ILO C. 169 and UNDRIP in its election platform but in practice they are dead against right to self-determination and ethnic autonomy.

– The ruling Madhesi Jana Adhikar Forum demands for right to self-determination and regional autonomy for Madhesi but they are absolutely against ethnic autonomy.

– The Nepali Congress is absolutely against right to self-determination and ethnic autonomy.

Possible Future Scenario

• If IPs get their due human rights including right to self-determination, ethnic autonomy, ownership and control over natural resources, collective rights, customary rights positive peace shall prevail in Nepal;

• If IPs are denied of these human rights IPs may resort to armed struggle sooner or later.

RECOMMENDATIONS

NEFIN, NIWF-N and NFDIN would highly appreciate if the Special Rapporteur would make the following general recommendations to the following actors for the better protection of the human rights of indigenous peoples of Nepal:

General Recommendations to the Nepal Government

1. That the Nepal Government is appreciated and acknowledged for accepting UNDRIP and ratifying ILO C. 169 and these and other related international instruments of human rights be implemented effectively and speedily.

2. That the current provisions of the Interim Constitution and existing laws that contradicts with UNDRIP and ILO C. 169 and other international instruments of human rights be amended and also bring new legislation immediately.

3. That the Nepal Government immediately and effectively implement agreements reached with various indigenous peoples, including 20-point agreements of August 7, 2008 between the Nepal Government and the Nepal Federation of Indigenous Nationalities (NEFIN) and Joint Struggle Committee of Indigenous Nationalities, and later with Federal Democratic National Forum (FDNF)

General Recommendations to the Nepal Government contd.

4. That the Nepal Government adopt Human Rights Based Approach (HRBA) to Development.

5. That the Nepal Government implement its commitment to establish an autonomous Indigenous Peoples Commission as per 20-point agreement between the Nepal Government and NEFIN & JSCIN and that the Commission be mandated with semi-judicial authority in taking up the violations of human rights of indigenous people.

6. That the Nepal Government concentrate its efforts for reparation, compensation and resettlement of the freed Kamaiya and to stop violence against indigenous women, including trafficking.

General Recommendations to the Nepal Government contd.

7. That Secularism be effectively and speedily implemented by de-linking the state with religion, i.e. Hindu religion.

8. That the Constituent Assembly apply Free, Prior Informed Consent (FPIC) while making the new constitution of the Federal Democratic Republic of Nepal and also give right to self-determination and ethnic autonomy to indigenous peoples in accordance to Article 1 of ICCPR; Article 1 of ICSCER, & Articles 3, 4 & 46 of UNDRIP.

9. That the laws related to forest and land be amended in accordance to land related Articles of ILO C. 169 and UNDRIP.

10. That the policies, plans and programs related to MDGs, including poverty reduction and Education for All, must be reformulated and redesigned in accordance to human rights instruments including UNDRIP and ILO C. 169.

General Recommendation to International Organizations Working in Nepal

1. That the international organizations, including the UN agencies, multi-lateral, bi-lateral and INGOs, fully meet international standards set by UNDRIP, ILO C. 169 and other international instruments of human rights; and that the policy for indigenous peoples should refer to and implement UNDRIP as the primary

2. That the international organizations and diplomats honour for the human rights of Nepal’s indigenous peoples, including right to self-determination and ethnic autonomy would be highly appreciated.

3. Cite and abide by UNDRIP in policy documents of each of the international organizations working in Nepal.

General Recommendation to International Organizations Working in Nepal contd.

4. That acknowledge and/or incorporate Free Prior and Informed Consent a (FPIC), (i.e. collective decision making process held free from any coercion, prior to any decisions being made by others, provided with complete information of both positive and negative impacts based on a language understood by affected communities and the decision may change with time and with new information) in the projects supported by international organizations, including the UN, multi-lateral, bi-lateral agencies and INGOs.

5. That the use national and/or international experts of indigenous origin must be made mandatory in all EIA or SIA, planning, implementation, monitoring, evaluation, project-level-grievance mechanism in projects supported by international organizations and must include a process of validation by the affected indigenous peoples.

6. That support to promote multicultural and multilingual education.

7. That OHCHR continue to work in Nepal on IPs issues after its current mandate in Nepal is over.

THANK YOU