Abstract
This study examines civil society organisations’ perspectives on the contemporary human rights situation of Indigenous Peoples (IP) in Nepal. It confirms they continue to be subject to violations of all three generations of human rights laws – including discrimination, denial of land rights, inadequate social welfare provision, exclusion from decision-making, violence and suppression of indigenous languages. The violations are systemic. This points to the urgent need for strengthened civil society activism to secure IP rights. Time is not on the side of the smaller IP communities. Their survival is in question if remedial action is not forthcoming soon.
Introduction
This study examines civil society organisations’ (CSOs) perspectives on the contemporary human rights situation of the 26.5 million Indigenous Peoples (IPs) (alternatively, Adivasi Janajati) in Nepal. It uses thematic analysis of CSOs’ written submissions to the latest Universal Periodic Review (UPR), the United Nations’ 5-yearly human rights treaty compliance exercise. This issue matters because, as earlier work has highlighted (Lawoti, 2009; Devasish Roy and Henriksen, 2010; Langford and Jones, 2011; Subba et al., 2014), IPs in Nepal have long suffered discrimination, marginalisation and oppression. In the wake of the civil war, the new constitution of 2015 promised a fresh start by guaranteeing equality for all before the law. It proscribed discrimination on any grounds and set up a dedicated commission for the promotion of IPs’ rights. In addition, as will be discussed below, Nepal has a raft of legal duties on equality, ethnicity and human rights that extend to IPs, notably those set out in UN treaties. Bibliographic searches reveal this topic to be understudied. Much of the literature is dated. Little research has emerged following the adoption of the new constitution. Here we seek to address this lacuna and examine civil society perspectives on the rights situation of IPs in the latest UPR. This can inform future policy and practice, as well as academic enquiry.
The remainder of this article is structured thus, next we present a succinct outline of the research context, followed by the study’s methodology. Attention then turns to the thematic analysis of different rights issues highlighted in the UPR data in relation to IPs across Nepal. We conclude with a discussion of the principal findings and their significance.
Research context
Nepal has undergone major upheavals over the last few decades. The first jana andolan (People’s Movement) of 1990 mobilised to re-establish parliamentary politics and end oppressive monarchic rule. In 1996, insurrectionary groups, including the Maoist Communist Party of Nepal (maobadi), started a guerrilla campaign resulting in a civil war that lasted until 2006. In response, King Gyanendra suspended parliamentary activities, curtailed civil freedoms and extended more power to the military to fight the rebels. In April 2006, during the second jana andolani, millions of people took to the streets to protest and the rebel maobadi leadership called a general strike. Consequently, the king conceded powers to parliament, a peace agreement was signed, and a republic was founded. Elections for a Constituent Assembly took place in 2008, with a new constitution finally agreed in 2015. Representation of IPs in the Constituent Assembly has been a significant outcome of the constitutional turmoil of recent years. Although, as the following analysis explains, not all IP groups have elected representatives.
IPs have long been marginalised and discriminated against in Nepal. Linguistic oppression has an extended history. Shrestha’s (1999) classic account tells of the imprisonment and torture of language rights defenders among the Newars, the indigenous population of the Kathmandu Valley. Writing nearly two decades ago, Sherpa (2009: 23) showed how this extended history of marginalisation and discrimination underpinned IPs’ 21st-century demands that the state take action to ensure IPs’ self-determination, political representation, recognition of locally spoken mother tongues, indigenous rights to natural and cultural resources, and full implementation of international human rights instruments.
Today, IP number around 26.5 million, comprising at least 35% of the total population. Some indigenous organisations claim the actual proportion would be closer to 50% if some presently unrecognised IP groups were incorporated. 1 According to the 2021 Census, the major groups of IP are Magar (6.9%), Tharu (6.2%), Tamang (5.62%), Newar (4.6%), Rai (2.2%), Gurung (1.86%) and Yakthung/Limbu (1.42%). Among the remaining 34 IP are the Thakali, Bote, Raute, Hayu, Jirel and Kusunda, whose populations are less than 0.1% of the total population. The combined size of Nepal’s IPs has given it a degree of political clout. As Torri (2019: 3) explains, ‘It is hard to underestimate the rise of indigenous movements in Nepal, the place they occupy in contemporary politics and the pressure they are able to exert on the social and political sphere through their fronts, organizations and associations’. However, as the following analysis reveals, this influence has failed to fully deliver IPs’ policy demands.
Such issues notwithstanding, recent years have seen some positive reforms. Some pre-date the new constitution, such as the National Foundation of Indigenous Nationalities Act (2002), under which 59 IP groups were initially recognised, with other groups subsequently added to the list, such as the Humlo Peoples. 2 As noted, under the 2015 constitution, further measures were introduced. 3 Notably, the Indigenous Nationalities Commission (INC) was founded under Article 261. 4 As detailed in the INC Act, 2074, its role is to protect the rights and interests of IP. 5
Nepal is party to over 24 human rights treaties and declarations including, the International Covenant on Civil and Political Rights (ICCPR, circa 1991), International Covenant on Economic, Social and Cultural Rights (ICESCR circa 1991), Convention on the Rights of the Child (CRC, circa 1990), International Convention on the Elimination of All Forms of Racial Discrimination (ICERD, circa 1971), Convention on the Elimination of All Forms of Discrimination against Women (CEDAW, circa 1991), International Labour Organisation Convention No. 169 (the first country in Asia to ratify this instrument), and the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP, circa 2007). 6 Article 51 (b) (3) of the 2015 Constitution states that the government shall ‘implement international treaties, agreements to which Nepal is a party’. 7
In the case of the UNDRIP, its purpose is to identify standards through which governments can realise the rights of IP. Reflecting the contested nature of the term ‘Indigenous Peoples’, UNDRIP avoids a fixed universal definition. Instead, Article 8 states that (emphasis added), ‘Indigenous peoples have a collective and individual right to maintain and develop their distinct identities and characteristics, including the right to identify themselves as indigenous and to be recognized as such’. Legal scholarship underlines that, as a UN General Assembly resolution, UNDRIP has far-reaching legal implications in international human rights law (Barnabas, 2017). Inter alia, it sets the minimum standards for the survival, dignity and well-being of IPs. According to Devasish Roy and Henriksen (2010: 9), it is ‘compatible with and expands upon legally binding human rights norms and international jurisprudence developed by international supervisory bodies and mechanisms’. In contrast to its larger South Asian neighbours, Nepal’s government voted in favour of the UN Declaration on the Rights of Indigenous Peoples. The refusal of India and Bangladesh to embrace UNDRIP links to the term ‘indigenous’. As Uddin (2018: 5–6) explains, ‘Whereas definitions of indigenous people in the Americas have been largely undisputed, activists in many parts of Africa and Asia, in contrast, have faced more difficulties because of different historical backgrounds or ethnic settings’. They continue,
Many Asian and African states refrain from acknowledging indigenous people as a category of citizens who are eligible for special rights and benefits on the basis of being oppressed. . . The arguments employed by these governments often rely on an interpretation of the notion of indigenous people that relates to specifics of the American populations.
India and Bangladesh’s rejection of the term IPs is also shaped by the nation-building projects of dominant ethno-religious groups in those countries, with governing elites wishing to emphasise a nation built in their image rather than a state founded on ethnic and social diversity.
Methodology
As noted, the dataset for this study comprises CSO submissions to the third-cycle United Nations UPR. This was considered by the OHCHR (Office of the United Nations High Commissioner for Human Rights) in January 2021. The UPR process stems from a 2006 UN General Assembly resolution (No. 60/251). On a 5-yearly basis, the UPR monitors all governments’ UN human rights treaty compliance. In assessing state practices, the Working Group examines evidence, including the testimony of those outside government. Accordingly, any CSO that registers with the UN and complies with its requirements, can submit a report to the UPR. Under HRC resolution 5/1 of 18 June 2007 the UN states that the UPR should ‘ensure the participation of all relevant stakeholders, including non-governmental organizations and national human rights institutions’ (see Cochrane and McNeilly, 2013). Accordingly, civil society reports submitted to the UPR form the basis of the following analysis. They provide a detailed data source founded upon the situated knowledge of organisations made up of – and working on behalf of, Indigenous People. This complements ethnographic and legal analyses and gives insight into rights implementation. CSO submissions to the UN are a robust data source. Submitting CSOs must pre-register with the United Nations ahead of the UPR in a process that establishes their bona fide status. A reflection of the rigour of the UPR registration and data submission processes is that CSO submissions constitute the basis of UN assessments of all 180+ UN member states and can be used in legal proceedings against rights violating governments.
The present CSO dataset comprised 62 reports submitted by CSOs to the UPR. Here it should be noted that this figure under-reports the extent of civil society input because many are joint submissions authored by extensive alliances and networks of CSOs. For example, the joint submission by the Nepal National Coalition for UPR (NNC-UPR), National Women Coalition and Durban Review Conference Follow-up Committee (DRCFC) Nepal comprises 440 CSOs, and the joint submission by the Coalition of Indigenous Peoples’ Organisations in Nepal, is an alliance of 40 IP organisations. Because the current scientific method focuses on all CSO submissions to the UPR it constitutes an example of corpus analysis (Vaughan and O’Keeffe, 2015), a methodology that is concerned with the issues and framings in a complete dataset.
The dataset was examined using thematic analysis (Fereday and Muir-Cochrane, 2006; Neuendorf, 2018). First, to generate initial codes of Indigenous People’s rights violations, a formative exploratory reading was undertaken of the submissions. Subsequently, the texts were re-read. Through this iterative process 12 recurrent (non-discrete) themes were identified and related to violations of the rights set out in UNDRIP, CESCR, CERD and CCPR (see ‘Rights violations’, Table 1). Attention now turns to the study findings.
Thematic analysis of related UNDRIP and international human rights treaty violations against IP in CSOs’ third-cycle UPR discourse (c. 2021).
International Covenant on Economic, Social and Cultural Rights – ratified by Nepal on 14 May 1991.
International Covenant on Civil and Political Rights – ratified by Nepal on 14 May 1991.
International Convention on the Elimination of All Forms of Racial Discrimination – ratified by Nepal on 30 January 1971.
Nepal voted in favour of UNDRIP at the UN General Assembly on 13 September 2007.
Findings
Constitutional rights/ legal redress/ access to justice/HRDs
Previous studies have highlighted the marginalisation and exclusion of IPs under the monarchy (see Langford and Jones, 2011). While the 2015 constitution and associated governance reforms have advanced the general situation of IPs, they are nonetheless flawed. As Thami (2022: 1) notes, the constitution is still characterised by ‘gaps’ and ‘contradictions’. He continues,
on the one hand, it seems that the Constitution of Nepal is recognizing [the] plurality that exists in Nepali society and on the other hand, it still maintains the old version of the state mechanism that gives emphasis to Hindu culture, benefitting the ruling caste groups, Bahun and Chhetri. It is apparent that the Nepali state is promoting the ‘color-blind’ approach that neglects the historical injustices and discriminations against marginalized groups.
This view is reflected in the UPR dataset. For example, this CSO complains, ‘there are a number of groups who are yet to be enlisted’ under the National Foundation for Indigenous Peoples Act (2002) (Coalition of Indigenous Peoples’ Organisations in Nepal, 2021, para 12). Moreover, in law, there are 98 officially recognised ‘minorities’, 55 of which are IPs’ groups. Yet, because of their small populations (less than 0.5% of the local population), they fall outside the special quota system of representation for minorities in local government (albeit that, when aggregated, they form 13.17 of the overall IP population in the country). 8
A further, frequently cited problem is that the government does not adhere to its UN treaty obligations. For example, this CSO concluded,
there is no meaningful implementation of these international laws. Nepal Treaty Act, 1990, Section 9 states that the international law has a higher status than the national law. In case of inconsistency, [it should be the case that] international law prevails over the national law. (Nepal Tamang Women Ghedung et al., 2021: 7)
While this CSO complained,
In 2015, Nepal accepted [UPR] recommendations to address sexual and gender-based violence, through reform and strict enforcement of the law, and awareness-raising campaigns. Since then, there has been an increase in reports of rape. . . Often the police refuse to register cases or to pursue a credible investigation, particularly if victims belong to Dalit or indigenous communities. (Human Rights Watch [HRW], 2021: para 21)
In terms of access to justice, an earlier official report found that, despite IP constituting 30%–40% of the overall population, they made up for ‘only about 10 percent of total judges . . . and that only around 18 percent of total lawyers in Nepal are from indigenous communities’ (National Judicial Academy Nepal, 2013: 17). More recently, the Government of Nepal’s submission to the last UPR states, there ‘are the mechanisms to ensure free legal aid to the indigent persons’ (Government of Nepal [GoN], 2021: 8–9, para 43). Yet the Asian Human Rights Commission (2021, unpaginated) disagreed, concluding that the ‘state is failing its citizens’. The CSO submissions support this. For example, this CSO explained that, under ‘Article 42 (1) of the Constitution . . . “Right to Social Justice”. . . Indigenous Peoples shall have the right to participate in the state bodies on the basis of the principle of inclusion’. It continued, ‘In practice, however, exclusion exists in all high-level political appointments [. . . there] is not a free, meaningful and accountable representation of Indigenous Peoples’ (Sunuwar Sewa Samaj et al., 2021: 5).
A burgeoning international literature (cf. Van De Velde, 2018; Chaney, 2022) supports the UN OHCHR Special Rapporteur’s reference to ‘The worldwide problem of shrinking space for the work of human rights defenders’ (UN, 2016, unpaginated). Nepal is no exception. As this CSO concluded,
The state of civic space in Nepal is rated as ‘obstructed’ [there are . . . ] Documented violations of fundamental freedoms include arbitrary arrests and the use of excessive force with impunity during protests, as well as the ongoing targeting of journalists, including through harassment, attacks and criminalization. (Civicus, 2023: unpaginated)
In a similar vein, this CSO said, ‘Despite constitutional guarantees of their equal rights, women from marginalised groups in Nepal, such as indigenous women . . . as well as women human rights defenders (WHDRs) still face multiple and intersecting forms of discrimination, exclusion and violence’ (NNC-UPR, National Women Coalition and DRCFC, 2021: 6).
Discrimination/ rights denial
A burgeoning literature charts how IPs have been subject to long-standing patterns and processes of discrimination and oppression (Lawoti, 2009; Subba et al., 2014; Gurung, 2022). The UPR submissions vividly illustrate how this continues today. For example, this CSO observed,
Despite the [UN CRPD] Committee’s recommendation to pay particular attention to children with disabilities belonging to marginalized groups in rural and mountainous areas, especially children with intellectual or psychosocial disabilities and those from indigenous communities, the government has taken no specific measures to support children with disabilities and their families. (KOSHISH, 2021: 6)
Allied to this, the literature on intersectionality (Crenshaw, 1989) explains how discrimination often occurs in relation to people’s multiple characteristics (e.g. on grounds of ethnicity and gender). This resonates with the UPR data. For example, this CSO said,
the GoN should adopt temporary special measures with clear timelines in line with constitutional provisions on ‘special opportunities’. This will enhance access for personnel facing intersecting and multiple forms of discrimination by virtue of being in LGBTIQ community and also including indigenous [women]. (Coalition of the stakeholders working for human rights issues of LGBTIQ people in Nepal, 2021: 3)
Participation in decision-making/ governance/ autonomy
As Thami (2022: 3) cogently observes,
Inclusion of marginalized communities in decision-making is one of the key aspects to overcome marginalization and discrimination. But the Constitution failed to accommodate a separate policy of inclusion for IPs that recognizes their issues as distinct and specific. Instead, the constitutional provision is ambiguous and vague.
The UPR data support this assertion. For example, this CSO noted,
Indigenous Peoples, who comprise 35.8 percent of the total population, are low in representation in . . . state structures. The situation of other marginalized groups such as Madhesis, Muslims, and Dalits, including women, is similar. The main political parties have misused the proportional electoral system by including a quota to Khas Arya along with excluded groups, including Indigenous Peoples and Indigenous women. (Sunuwar Sewa Samaj et al., 2021: 14)
This CSO concurred, explaining,
While those affected indigenous groups, particularly indigenous women, have limited participation in decision-making processes in Nepal’s State structures, we are further alarmed by restrictions on freedom of assembly in Nepal manifested through the use of excessive security force to supress protests, which makes it further difficult for those groups to demand remedies for the harms they suffer. (Community Empowerment and Social Justice (CEMSOJ) Network, 2021: para 1.2)
Violence
Earlier studies have revealed how tensions between different indigenous groups and the majority population have often boiled over into ethnic violence (Bhattachan, 2021; Gurung, 2022). The UPR data detail manifold violent episodes involving the authorities and IPs. For example, speaking about violations against IPs in the country’s national parks this CSO said,
Indigenous Peoples who live in these areas routinely face injustices at the hands of the park authorities, security forces, and forestry officials. Moreover, they have lost their land and livelihoods, and their traditional ways of life have been wiped out. They have been displaced and denied compensation for their losses.
It continued, ‘They are prohibited even from grazing their cattle on the common pasture. They are harassed, beaten, fined and in some cases, raped and killed’ (Nepal Tamang Women Ghedung et al., 2021: 3). This CSO highlighted the gendered dimension to the violence, ‘In 2015, Nepal accepted [UPR] recommendations to address sexual and gender-based violence, through reform and strict enforcement of the law, and awareness-raising campaigns’. It continued,
Since then, there has been an increase in reports of rape, including of children. There have also been cases where victims were killed after they were raped. Often the police refuse to register cases or to pursue a credible investigation, particularly if victims belong to Dalit or indigenous communities. (HRW, 2021: para 21)
CSOs also complained about the violent official response to IP activism over the country’s constitution, ‘State security forces were deployed, particularly against Madhesi and indigenous Tharu protestors in southern Nepal to suppress their opposition when adopting the Constitution. That resulted in 55 persons killed and many charged falsely for breaching law and order’ (CEMSOJ Network, 2021: para 6.1).
Education
As Hough et al. (2009) describe, earlier official attempts to provide schooling in Indigenous languages were subject to limited gains, setbacks and failures. More recently, in its submission to the third-cycle UPR the GoN (2021: 12) asserted, ‘Every Nepali community residing in Nepal have the right to get education in their mother tongue’ (para 62). However, the present analysis shows many IPs are denied this right. For example, this CSO complained, the ‘Nepali language is the only official medium of instruction in education, which creates obstacles for Indigenous Peoples in accessing education. . . The parents and Indigenous communities are supposed to be involved in decisions about their children, but their voices and choices are hardly heard’ (Newa Misa Daboo et al., 2021: 7). In a similar vein, this CSO concluded,
there is a huge gap in implementation. Over 2 million children are estimated to speak so little Nepali that they are unable to learn effectively. . . Children in Palpa district left school as they could not pass the examinations since they could not understand teaching in Nepali language. The government is not adequately managing teachers including trainings, learning materials and awareness of stakeholders on the significance of multilingual education. (National Campaign for Education Nepal and NGO coalitions Linguistic Right to Education, 2021: 5)
In response, this CSO was forthright in its demand to the government, it must ‘Provide mother tongue-based multilingual education and ensure access to schooling for children from Dalit and indigenous communities’ (NNC-UPR, National Women Coalition and DRCFC, 2021: 7).
Sustainable development, resources & land rights
IPs’ knowledge is a key part of sustainable resource management. Yet as Ojha et al. (2008: 157) observe, there is a power imbalance and limited inclusive deliberation between policy makers and IPs on forest resource management. They conclude, the ‘policy framework should provide adequate space for unconstrained deliberation among diverse actors with different knowledge systems for social learning and innovations in governance practices’. Overall, the UPR data attest to CSOs’ dissatisfaction with the current state of affairs. For example, this submission captured the general tone when it referred to ‘Massive violations of Economic, Social and Cultural Rights of Indigenous Peoples’ rights to lands, territories and natural resources’. It continued,
currently, their land, forests, waters and natural resources are under threat due to the aggressive development projects such as hydropower generation, and road expansion, as well as declarations of national parks and protected areas. This infrastructure has been and is planned for construction in their land and territories without Free, Prior and Informed Consent (FPIC) nor meaningful participation in the planning, implementation and evaluation of such projects. (Indigenous Media Foundation et al., 2021: 9)
Earlier studies have highlighted tensions between government conservation efforts and IPs’ rights. For example, Stevens (2013: 29) said,
national parks and other protected areas have often been established in the customary territories of indigenous peoples by superimposing state-declared and governed protected areas on pre-existing systems of land use and management which are now internationally considered to be Indigenous Peoples’ and Community Conserved Territories and Areas.
He continued, ‘The challenge will be for Nepal to reverse long-established inter-ethnic and governmental relationships which have dispossessed and marginalised indigenous peoples and insufficiently respected their knowledge, institutions, conservation contributions, and human rights in national parks’. More recent research (Community Self-Reliance Centre and Amnesty International, 2021: 4) has highlighted that, while Nepal has long been praised for its efforts to protect wildlife and the natural environment,
it has come at a high cost for forest-dependent Indigenous peoples. The Government of Nepal has failed to uphold the rights of Indigenous peoples the country’s national parks and . . . to provide effective remedies to the Indigenous peoples for the many rights violations against them.
The present analysis supports this assessment. According to a number of accounts, around 84 major hydro-generation schemes are progressing across the country, with over two hundred smaller projects (with a total 7600 MW capacity). Many are backed by development banks such as the World Bank, Asian Development Bank, and European Investment Bank. Yet, as this CSO explained,
Most of these projects are operating or planned to operate on the lands and territories of Indigenous Peoples, who are often entirely dependent upon rivers for their livelihood have caused adverse impacts to their livelihood [. . . they] are operating without Free, Prior and Informed Consent, without public hearings and without adequate compensation for loss of lands and livelihoods.
This account continued,
The implementation of such projects is resulting in widespread human rights violations, including escalating conflicts, forced displacements, and massive environmental degradation. Communities that stand against and obstruct the works are often detained, tortured or seriously injured and left without justice. (Newa Misa Daboo et al., 2021: 15)
Indigenous languages
De Korne and Weinberg (2021: 306) point to the challenges of IP language revival work and how it can lead to new socio-linguistic hierarchies. They explain, ‘Our cases . . . show that drawing lines between correct and incorrect use of Indigenous languages may further discourage learners and even give proficient speakers who are new writers a sense that they are using their language incorrectly’. They added,
We believe that it is in the interest of language rights practitioners to avoid the challenges and constraints of writing as far as possible, while promoting writing as part of existing (multi)literacies that may enhance the personal and political opportunities of Indigenous language speaker’.
Broadcasting has a significant role to play. As Dahal and Aram (2013: 1) explain,
indigenous communities can reflect their agenda of identity re-establishment towards empowerment through the active participation in the production of media contents. Active participation of indigenous communities in local radio production not only mandates acknowledgement of ethnic identity in the new nation building but also give an opportunity of lesson learning on the potentiality of using community radios as one of the tools for empowerment.
Yet the UPR discourse highlights how IPs are largely marginalised and excluded from today’s local and mass media. For example, this CSO said, ‘The media can ensure Indigenous Peoples’ right to access to information, participation and voice. However, in Nepal, there are few media outlets which provide programming in Indigenous languages and from the perspective of Indigenous Peoples’. It continued,
Nepal’s media has been and is still overwhelmingly controlled by the members of the dominant social groups, not only in terms of ownership but also in terms of content production. The major language used in the media has been Nepali . . . the content does not reflect the cultures, concerns, and voices of Indigenous Peoples themselves. (Indigenous Women’s League et al., 2021: 8)
In a similar vein, this CSO concluded, ‘Media in Nepal exclude Indigenous voices and participation, even within community radio stations licensed to broadcast to rural populations, disenfranchising Indigenous Peoples from information and freedom of expression reflecting their cultural and lingual diversity’ (Newa Misa Daboo et al., 2021: 8).
Work/ employment
Earlier analysis by the UN highlighted how in Nepal there has been ‘rapid changes for indigenous peoples’ employment with increasing numbers of both men and women that migrate to the urban centres, or internationally, in search of employment’ (United Nations Inter-Agency Support Group (IASG) on Indigenous Issues, 2014: 3). Recent research confirms this. A third of Indigenous women and a half of Indigenous men are compelled by necessity to migrate to look for work (International Work Group for Indigenous Affairs (IWGIA) and the International Labour Organization (ILO), 2021: 30). Contemporary analysis also reveals many lack a secure job and that informal employment predominates. Just 15% of Indigenous women and 11% of Indigenous men are in the formal sector (ILO, 2021: 29). 9
Further serious problems were highlighted in the UPR dataset. One CSO explained that ‘Slavery and human trafficking is still prevalent in Nepal. The human product of those industries are almost exclusively indigenous people or members of other marginalized Communities’ (Just Atonement, 2021, para 15). Another alluded to how ‘The Kamaiya bondage system in Nepal, which was officially abolished in 2000, has created an economic vulnerability that has pushed the former Kamaiyas (98% of which are indigenous) into other perilous forms of employment’ (United Nations IASG on Indigenous Issues, 2014: 5). While the government has offered some support to freed labourers, as this CSO protested, it has been inadequate, ‘The human rights of freed bonded laborers and freed Haliya has been a critical issue since their emancipation from the state of bonded [labour]’ (Coalition of Indigenous Peoples’ Organisations 2021: para 32).
Religious freedom/ (in) tolerance
From the 1990s onwards, the jana andolan (movement for democracy) pressed for religious freedom and an end to the country’s Hindu Monarchic autocracy, and what Torri (2019: 1) dubs ‘state-enforced Hinduization of the people’. Post-2015, there has been the popular re-emergence of IPs’ religious practices. However, the UPR discourse details ongoing rights violations. For example, this CSO referred to an
aggressive road expansion project executed by the government of Nepal in the ancestral land of the Newar Indigenous Peoples, which has adversely impacted more than 150,000 peoples. The road expansion drive conducted without FPIC and adequate compensation has resulted in massive human rights violations, including mass-forced eviction, the demolition of symbols of identity such as cultural and religious sites, as well as intimidation. (Sunuwar Sewa Samaj et al., 2021: 15)
Similarly, this CSO referred to its use of the Right to Information Acts and how this had revealed ‘Numerous cultural heritage sites, including temples, Chaityas (stupas), monasteries and sacred sites such as Guthi (religious or cultural trust) lands and houses, have . . . been destroyed or at risk due to the road expansion’ (Community Empowerment and Social Justice (CEMSOJ) Network, 2021: para 2.1).
Health/ social welfare / poverty
There is pronounced poverty among some Indigenous communities. For example, as Subba et al. (2014: 6) report, approximately 40% of the population of the Kumal, Sunuwar, Majhi and Chepang are living below the poverty line. More recent analysis suggests that just 36% of Indigenous women and 41% of Indigenous men are covered by social protection programmes (IWGIA and the ILO, 2021: 44). The UPR data also reveal the vulnerability of IPs. For example, this CSO observed,
Those who already initiated/ completed reconstruction work [in the wake of the devastating 2015 earthquake] had taken loans from local saving credit cooperatives at high interest rate (114% per month). In order to return this money to the saving credit cooperative, they have been forced to compromise on expenses for food: Some of them have even sold their land and/ or cattle, thus making them more vulnerable to hunger and malnutrition. (FIAN Nepal, 2021: 8)
Compared to the rest of the population, IPs suffer from a higher incidence of mortality and morbidity. As this account notes, ‘In addition to mortality differentials, in Nepal, the gap between Adivasi and non-Adivasi populations in life expectancy in 2009 was a staggering 20 years’ (Thresia et al., 2022: 62). The UPR data show IPs’ health rights violations to be ongoing. For example, this CSO referred to hydropower projects on IP land in Lamjung district and how
The blasting of the stone in hydropower projects have caused many respiratory problems . . . hearing impaired, psychological mental health problems have increased a lot in these recent years which has ultimately increased number of person with disabilities from indigenous and marginalized communities but no measures, precaution, health related measures have been intervened. (Indigenous Women’s League et al., 2021: 19)
The UPR corpus also details the inequalities faced by IPs in accessing social welfare. Referring to government welfare in the wake of the 2015 earthquake this CSO said, ‘Peoples with disabilities from indigenous and marginalized communities were and are deprived in relief, recovery and rehabilitation phase because the government applied blanket approach and single liner model for rehabilitation based on impairment to Peoples with disabilities’ (CIPON, 2021, para 42).
Gender equality
Prior to the adoption of the new constitution, Aguirre and Pietropaoli (2008: 356) asserted that
The peace-building initiatives unfolding in Nepal . . . is a human rights-based process that aims to empower marginalized groups . . . this must include women, who not only bore the brunt of the conflict but also continue to suffer systematic discrimination.
Yet, recent work suggests this hope has not been realised. For example, Bajracharya et al. (2022) reveal how Indigenous women face double disadvantage, suffering discriminatory and marginalising practice both from without and from within IP communities. Similarly, the UN Special Rapporteur on Violence against Women Visit to Nepal (2019: 14), recently reminded the Government of Nepal of the ‘alarmingly high prevalence of violence against indigenous women, who continue to experience higher rates of domestic and family violence and more severe forms of such violence compared with other women’. Our analysis also illustrates this. For example, this CSO complained,
The Criminal Code has increased the statutory limitation for rape and sexual violence to one year but is still insufficient. Women victims of physical violence, sexual violence, and caste-based discrimination are coerced to opt for mediation rather than seeking legal remedy. (Nepal National Coalition for UPR, National Women Coalition and Durban Review Conference Follow-up Committee Nepal [DRCFC], 2021: 8)
Another called on the government to ‘Collect and develop a system to track disaggregated data on violence against Indigenous women and girls and form special mechanisms to address multiple forms of discriminations faced by Indigenous women’ (Cultural Survival, 2021: 7).
Other key themes in the UPR discourse included women’s representation and access to justice. For example, this CSO opined ‘Unequal representation exists in both national and local governments. Female indigenous voices were perhaps the most excluded during the adoption of the 2015 constitution’ (Just Atonement, 2021, para 7). Similarly, this UPR submission said, ‘Despite constitutional guarantees of their equal rights, women from marginalised groups in Nepal, such as indigenous women . . . still face multiple and intersecting forms of discrimination, exclusion and violence’ (NNC-UPR, National Women Coalition and DRCFC, 2021: 6). On access to justice and effective remedy, this CSO asserted, ‘The judicial procedure is expensive and tiring. Legal aid hardly reaches indigent people and women due to the social and legal limitations’ (NNC-UPR, National Women Coalition and DRCFC, 2021: 7).
Govt. failure to act on previous UPR recommendations
Earlier studies have highlighted the flawed way that the UPR operates (Kälin, 2015). It allows governments to accept recommendations from the OHCHR Working Group but offers little in the way of sanctions when they subsequently fail to act. The CSO discourse repeatedly points to the Government of Nepal’s failure to implement the recommendations it accepted during earlier UPR cycles. For example, at the previous second cycle UPR in 2015, this CSO said, ‘The human rights situation of indigenous peoples in Nepal has seen little improvement since its first UPR in 2011’ (National Coalition Against Racial Discrimination (NCARD), 2015: 4).
In the latest UPR, this CSO complained ‘The following recommendations made to Nepal in the first (January 2011) and second cycle (November 2015) of UPR have not yet been fully implemented by the government of Nepal’. It continued,
1) Strengthen the legislative and institutional framework . . . to ensure their [IP] full participation in decision-making level and society . . . 2) Put in place an effective mechanism for addressing the reported multiple forms of discrimination against Indigenous women . . . 5) Continue to pursue policies that will increase enrolment in schools of school-going aged children, in particular girls . . . from Indigenous communities and minorities. (Cultural Survival, 2021: 4)
Other CSOs also alluded to implementation gaps. This one noted, ‘notwithstanding the criminalization of many harmful practices, chhaupadi (isolating menstruating women and girls), child marriage, dowry, son preference, polygamy, discrimination against widows, accusations of witchcraft, discrimination against Dalit and indigenous women and girls . . . remain persistent’ (Society for Humanism Nepal, 2021: 4).
CSOs’ recommendations for government reforms to uphold IPs’ rights
The corpus of UPR submissions contains a raft of concrete solutions and policy recommendations proposed by the CSOs themselves across all thematic areas. On education and indigenous languages there are repeated calls for increased government spending, typified by ‘The Government should invest more resources to promote mother-tongue based multilingual education in public/community schools as well as to support indigenous communities or their representative institutions to set up their own educational institutions and systems’ (Community Empowerment and Social Justice (CEMSOJ) Network, 2021: 21). Moreover, ‘The Government should immediately adopt multilingual policy for its official languages at federal, provincial and local governments with provision of necessary resources to promote use local indigenous languages in its works’ (CEMSOJ Network, 2021: 22). In a similar vein this CSO called for government to
Implement Article 16 of UNDRIP by ensuring that community radio stations are reflective of Indigenous communities they serve, by establishing a mechanism to ensure meaningful participation of Indigenous communities on community radio’s board of directors, and by monitoring that the station’s content is reflective of the cultural and linguistic diversity of the communities to which they broadcast. (Indigenous Media Foundation et al., 2021: 7)
On sustainable development, resources and land rights this CSO’s recommendations were that government ‘In consultation with Indigenous Peoples, take steps to amend the National Parks and Wildlife Conservation Act to align with [ILO] Convention 169, ensuring Indigenous Peoples’ Free, Prior and Informed Consent and protecting their access to land and resources’ (Cultural Survival, 2021: 17). Furthermore, ‘The Government, in conjunction with the concerned indigenous communities and their customary and representative institutions such as the Guthis of Newars, should undertake appropriate measures to identify, demarcate and title their traditional lands and resources as well to return such lands and resources lost by the communities to State, business or other actors, where feasible, or provide effective remedy for such loss if return is not possible’ (CEMSOJ) Network, 2021: 22).
On gender equality issues CSOs recommend that the government ‘Make gender mainstreaming programs and activities compatible with UNDRIP and increase participation of indigenous women at all levels’ (Coalition of Indigenous Peoples’ Organisations in Nepal, 2021: 14). On health government must
Ensure access to public health care for all citizens, including to reproductive health care for women, and especially ensure access to the right to health for women from marginalised groups such as Dalits, indigenous women, the LGBTQI community, women with handicaps, women with HIV, women in shelters and women victims of natural disaster or victims of displacement. (Nepal National Coalition for UPR (NNC-UPR), National Women Coalition and Durban Review Conference Follow-up Committee (DRCFC) Nepal, 2021: 3)
With respect to discrimination and rights denial this CSO recommended government ‘Undertake a thorough review of national laws to end discrimination against indigenous women, ensuring their meaningful participation; and amend constitution and make policies to address the diversity within women’ (Coalition of Indigenous Peoples’ Organisations in Nepal, 2021: 14). Regarding IPs’ participation in decision-making, governance and autonomy CSOs also recommended multiple measures to increase the political representation of IPs. For example, ‘Strengthen the legislative and institutional framework for the promotion and protection of rights of Indigenous Peoples, in particular, to ensure their full participation in decision-making level and society’ (Sunuwar Sewa Samaj et al., 2021: 7). Numerous recommendations were also made to address violence against IPs. For example, the government should ‘Collect and develop a system to track disaggregated data on violence against Indigenous women and girls’ (Cultural Survival, 2021: 5).
In order to address human rights violations against IPs related to constitutional rights, matters of legal redress, access to justice as well as state failure to implement the Human Rights Council recommendations from previous UPRs, CSO recommendations included the government must ‘Implement the recommendation of the concluding observations of UPR, CERD, CEDAW, UNCRPD and other international human rights procedures . . . [and] Execute the decisions of the Supreme Courts pertaining to lands rights of Indigenous Peoples’. Furthermore, government should urgently
Appoint [a] commissioner in the Indigenous Peoples Commission and Tharu Commission and allocate sufficient budget for its smooth and effective function and operation [and. . . ] Ensure de-facto inclusion of indigenous peoples in all state organs including NHRC [and] Commission for the Investigation of Abuse of Authority (CIAA), and Information Commission [. . . and] Establish the Indigenous Peoples Commission to deal gross human rights violation against IPs. (CIPOIN, 2021: 19)
In order to address human rights violations related to religious freedom/ (in)tolerance the UPR corpus recommended government take measures to ‘Respect indigenous peoples’ right to exercise their religion, beliefs and culture as well as eliminate religious assimilation including obliterating name of indigenous peoples’ sacred and religious sites’ (Coalition of Indigenous Peoples’ Organisations in Nepal, 2021: 14). In relation to IPs marginalisation in the labour market and resulting poverty, CSOs also recommended
The Government should halt reversal of affirmative measures such as existing legal provisions for reservation/quota for indigenous peoples and other marginalized groups and should strengthen implementation of those provisions to ensure access by members of marginalized indigenous communities, particularly indigenous women, to employment in civil service and public institutions. (Community Empowerment and Social Justice Network, 2021: 21)
Discussion
While the Government of Nepal’s UPR submission asserts that, ‘Nepal believes in universality of human rights and considers all human rights are indivisible, interrelated, interdependent and mutually reinforcing. Nepal has incorporated most of the international human rights norms and values as fundamental rights’ (GoN, 2021: para 116). The present analysis reveals otherwise. CSOs’ submissions to the latest UPR reveal manifold rights violations experienced by IPs. These can best be understood with reference to Vašák’s classification of different generations of human rights (Vašák, 1977). First-generation rights are the right to life, freedom of speech, freedom of religion, right to fair trial, equality before the law, and other civil and political rights. Our analysis shows how IPs routinely suffer such violations, including violence and killings at the hands of authorities, security forces and forestry officials. CSOs also allude to the suppression of human rights defenders and campaigners. Notably, women HDRs still face multiple and intersecting forms of discrimination, exclusion and violence. There are also shortcomings in IPs’ access to justice and they are underrepresented in the judiciary. Contrary to freedom of religion, the UPR data show mass-forced eviction of IPs, and the demolition of their symbols of identity such as cultural and religious sites, as well as intimidation.
Second generation rights address social and economic inequalities and require active state involvement. They were encompassed in the Universal Declaration of Human Rights (United Nations [UN] General Assembly, 1948), as well as the ICESCR and the ICCPR, both ratified by Nepal in 1991. The current analysis reveals intersectional inequality and discrimination, notably affecting women and disabled IPs. Moreover, this study shows IPs predominate in informal employment. Through necessity they have to migrate from their homelands to access temporary, insecure work. They are subject to widespread poverty and they are subject to trafficking, exploitation and the toxic legacy of bonded labour. Our analysis further reveals IPs are often denied social welfare. Despite government’s espousal of universal human rights (GoN, 2021: para 116 op cit), the UPR data shows how they have limited access to social protection, healthcare and education.
Vašák’s third-generation rights have particular salience to IPs. They are solidarity rights (and include the right to development, right to peace, right to a healthy environment, land rights, humanitarian governance with respect for local languages and cultures, and the right to participation in decision-making and cultural life). They are set out in UNDRIP and the International Convention on Economic, Social and Cultural Rights (ICESCR). Our analysis reveals IPs’ languages and culture are being oppressed by failings in government policy (notably, inadequate resourcing of schooling in local languages) and displacement by major development schemes without Free, Prior Informed Consent. Thus, the UPR discourse details how IPs’ land, forests, waters and natural resources are under threat due to the aggressive development projects such as hydropower generation, and road expansion, as well as declarations of national parks and protected areas on IPs’ land. The UPR dataset also shows widespread violation of IPs’ participatory rights. For example, the parliamentary quota system is flawed, it fails to extend positive action to the small indigenous groups; IPs are denied FPIC (Free, Prior, and Informed Consent) in development schemes and they are underrepresented in the judiciary.
Adding to this malaise are the flaws in the UPR process (Kälin, 2015). Not least because it allows governments to accept recommendations from the OHCHR Working Group but offers few sanctions when they subsequently fail to act. The CSO discourse repeatedly highlighted the Government of Nepal’s failure to implement the recommendations it accepted during earlier UPR cycles.
Overall, the present findings are significant in several regards. They show the broad extent of rights violations. Breaches are not found in one or two areas; they span three generations of human rights. This points to systemic failings. While, over recent years, civil war and mass mobilization – jana andolan – have led to new laws, policies and institutions to uphold IPs’ rights, our findings reveal dissembling on the part of the government. For example, in its UPR submission it claims, ‘significant progress has been achieved to ensure participation of women, [and] indigenous nationalities’ (GoN, 2021: para 118) and ‘The indigenous people may educate their children in their mother tongue’ (GoN, 2021: para 65). Yet, this study reveals a gap between such statements and the situated knowledge of CSOs’ UPR submissions.
As noted, the human rights violations faced by IPs are systemic and point to historical discrimination and constitutional flaws. The underlying political, economic and social structures and power dynamics that cause these systemic issues are wide-ranging. In particular, there is a debilitating bias towards ruling caste groups that excludes and marginalises other castes and, notably, IPs. A further problem is misuse of electoral systems. This has led to Nepal being categorised as a ‘partly free’ country in terms of democracy and civil liberties (Freedom House, 2023). Another recent assessment gave the country its lowest Democracy Index score since 2006 (Economist Intelligence Unit, 2024).
Other key issues include IPs’ marginalisation in public decision-making, notably the judiciary and in political representation. Further causes include the privileging of neo-liberal economics and the power of overseas corporations and multinational extractive industries. Other compounding factors include widespread corruption and maladministration by public officials, as well as limited state capacity and political will to pursue reforms. The latter is compounded by budgetary constraints.
In turn, our findings indicate the need for strengthened civil society activism to secure IP rights and hold the government to account. However, this is threatened by the shrinking civil space in Nepal (Uprety, 2020). CSOs’ UPR submissions detail the authorities’ repressive actions against IP, notably Indigenous human rights defenders. They provide testimony of how they are denied access to justice, and subject to killings, harassment and violence. Time is not on the side of smaller IP communities in the country – such as the Meche (population 4,203), Lepcha (3,578), Hayu (1,133), Kisan (1,004), Raute (741), Kusunda (273), Surel (174), Bankariya (86) and Raji (76). 10 They are particularly vulnerable. For these communities, if remedial action is not forthcoming soon, the future looks bleak.
Footnotes
Funding
The author disclosed receipt of the following financial support for the research, authorship and/or publication of this article: We gratefully acknowledge of grant funding for this study by the Economic and Social Research Council under Award No: UKRI264 and the Academy of Medical Sciences (Award No. NGR1\1042.) – thank-you.
