Indigenous rights, nondiscrimination and federalism:
Accommodating demos and ethnos in the case of Nepal.
Abstract
The future paper will examine some of the challenges to models of democracy arising from the implementation of indigenous peoples’ rights in Nepal, placed against the background of the evolution of indigenous peoples’ rights in international law. This includes ILO convention 169 on the rights of tribal and indigenous peoples (which Nepal has ratified as the only Asian country to have done so) and the United Nations Declaration on the Rights of Indigenous Peoples (Nepal voted in its favor when adopted by the General Assembly in 2007, and has actively supported it).
The core questions are these three:
(1) By ratifying international human rights instruments, states are bound to ensure within their domestic order respect and protection of the whole range of human rights contained in the instruments to which the state is a party. Whatever constitutional arrangements are made concerning federalism and autonomies, the state cannot divest itself from its international responsibilities to respect, protect and fulfill human rights. This would therefore have to apply to whatever decentralization are chosen in the case of Nepal, whether through symmetrical federalism, autonomy arrangements or otherwise. One of the core human rights principles for which the state has to remain responsible is the prevention of discrimination on grounds of race or ethnicity, gender etc. How can this overarching obligations of the state for human rights be reconciled with the arrangements for self-determination or autonomy made in the constitution?
(2) From a human rights perspective, self-determination has mostly been understood as a democratic principle in the sense that within the self-determining unit, the whole of the population and all individuals within it, irrespective of their different ethnic backgrounds, should constitute the demos that through their representatives or in other ways govern the unit. When self-determination or autonomy are demanded in the context of indigenous peoples’ rights, however, the focus is on the ethnos. The question therefore arises how to ensure that in the arrangements of decentralization and federalism guarantees can be achieved to secure the political and other rights of those that do not belong to the particular indigenous ethnos of the given region.
This has been reasonably simple in cases such as that of Nunavut or Greenland. In the case of the Saami in Norway, a particularly interesting case of co-management has been established through the Finnmark Act (2005). But the problems may turn out to be much more difficult in Nepal, where a much larger part of the population (the Adivasi Janajati) are considered to be indigenous (at least 37 %, probably more, of the total population of approximately 30 million), distributed throughout the mountains, hills and lowlands (Terai) regions. This sizeable component of Nepal’s population is in turn divided into 59 groups, with the Magar, Tharu, Tamang, Newar, Rai, Gurung and Limbu being the largest groups.
Collectively, Adivasi Janajati differ from the other, mainly Hindu- and Nepali-speaking, parts of society in various ways, including in their social structures, languages (approximately 103), distinct cultural and religious traditions, and ways of life. It will probably be necessary to develop a range of different solutions, some being mostly in the form of cultural autonomy and others tilting towards territorial autonomy,
(3) ‘Self-determination’ in the context of indigenous peoples’ rights does usually not amount to secession, but to greater or lesser degrees of autonomy. This means that there will be some kind of sharing of power but also sharing of resources between the central government and the authorities of the different autonomies. Implementation of all human rights and in particular the economic and social rights requires not that the state fulfill its obligations but also that all members of society to some extent contribute to the common welfare. How can this joint responsibility be ensured in the Nepalese context?
In regard to all of these questions, recognition must be given both to the land rights of the indigenous peoples and to their right to set their own priorities for development, as envisaged in the international instruments.