Significance of human rights

instrument in rationalization
of domestic law
ANU BHATTARAI
Human rights
Human rights are rights inherent to all human beings, regardless of
gender, nationality, place of residency, sex, ethnicity, religion, color or
and other categorization. Thus, human rights are non-discriminatory,
meaning that all human beings are entitled to them and cannot be
excluded from them.
Basic principle of human rights
Universality and Inalienability: All people everywhere in the world are
entitled to them. Article 1 of the Universal Declaration of Human
Rights: “All human beings are born free and equal in dignity and rights.”
Indivisibility: All human rights have equal status, and cannot be
positioned in a hierarchical order.
Interdependence and Interrelatedness: The fulfilment of one right often
depends, wholly or in part, upon the fulfilment of others.
Equality and Non-discrimination: All individuals are equal as human
beings and by virtue of the inherent dignity of each human person.
Participation and Inclusion: All people have the right to participate in
and access information relating to the decision-making processes that
affect their lives and well-being.
Accountability and Rule of Law: States and other duty-bearers are
answerable for the observance of human rights.
Domestication of international instruments, broadly speaking, is a
process of giving effect to the provisions enumerated in the
instruments to which the state is a party at the national arena. This is
also a part of fulfilling obligations from such instruments.
There are at least two modes of giving effect to the international
instruments at the national level:
By incorporating the provisions of the instruments into domestic
statutes :dualistic
By accepting such instruments as higher authority within the national
legal framework: monistic
In monist countries, where the Constitution provides the same or
higher status to international law, there is no need for a separate
domestic legislation.
Dualism: They form two distinct systems of law .
State obligation
Obligation to respect
Obligation to protect
Obligation to fulfil
State obligation
Obligation to Respect: States have an obligation to respect human rights,
which means they must refrain from interfering with or violating the rights of
individuals. This obligation requires states to ensure that their laws, policies,
and practices do not infringe upon the rights recognized in the human rights
instruments. For example, states must not engage in torture, arbitrary
detention, that would violate the right to freedom of expression.
Right to education
The state has to build school
Favorable environment
State obligation to provide affordable, available, acceptable and accessible
education to all.
Article 126(1): The matters relating to adjudicating justice shall be
exercised by courts and other judicial bodies in accordance with other
laws and the recognized principles of justice.
Article 249(2)(h) confers the right to The National Human Rights
Commission for monitoring human right treaty or agreement to which
Nepal is already a party has been implemented.
Article 279. Ratification of, accession to, acceptance of, or approval of,
treaties or agreements: clearly stipulated that the federal law of Nepal
shall provide to the ratification of, accession to, acceptance of, or
approval of, treaties or agreements to which Nepal or the Government of
Nepal is a party to.
The constitution clearly stipulates that such treaty or agreement shall
not apply to the Government of Nepal.
However, no treaty or agreement may be concluded in detrimental to
the territorial integrity of Nepal.
Obligation to Protect: States have a duty to protect individuals from
human rights abuses committed by both state and non-state actors.
This obligation includes taking measures to prevent, investigate, and
punish human rights violations. States should have effective legal
frameworks and institutions in place to ensure the protection of human
rights, including a functioning judicial system, law enforcement
agencies, and human rights commissions.
Obligation to Fulfill: States also have an obligation to take positive
action to fulfill and promote human rights. This obligation requires
states to adopt legislative, administrative, and other measures to give
effect to the rights recognized in human rights instruments. For
example, states may need to enact laws that guarantee equal rights and
opportunities for all individuals, provide access to education,
healthcare, and housing, and promote the right to work and social
security.
International Convention on the Elimination of All Forms of Racial
Discrimination, 1965:
National Human Rights Commission Act, 2012
The Caste based Discrimination and Untouchability Act, 2011
Article 24 of Constitution of Nepal (Right against Untouchability and
Discrimination)
Local Government Operation Act, 2017
Convention against Torture and other Cruel Inhuman or Degrading
Treatment or Punishment, 1984 (Torture) :
Art. 22 Constitution of Nepal (Right against Torture)
Compensation Relating to Torture Act 1996
Police Act 1995, Military Act 2006.
Convention on Elimination of All Forms of Discrimination against
Women, 1979 (Women):
Article 18 and 38 Constitution of Nepal (Right to Equality/ Rights of
Women)
Local Self Governance Act, 1999
Domestic Violence Act, 2009
Convention on Right of the Child, 1989 (Child)
Article 39 of the Constitution of Nepal (Rights of the Child)
Children Act, 1991
The Child Labors Act, 1999
Police Act, Police Regulation, Military Act (minimum age of recruitment
is 18 years)
Advocate Keshav Raj Aryal vs N.G , 2010, Vol. 6, p. 162970 :The Human
Right Treaty that Nepal have ratified, it is the duty of the state to be
accountable to it.
Jyoti Poudel v. NG Writ no. WO-0424, 2007 : Nepal cannot derogate
from its treaty obligation once it becomes a party of a treaty or
convention. After being state party to a treaty or convention, the
provision of the treaty or convention should be complied with the
verbatim in good faith.
Reena Bajracharya vs H.M.G. , 2002, Vol. 5, p. 376: The court declared
RNAC regulation rule 14.1.10 void based on the CEDAW provision.
Conclusion
International law doesn’t disregard the municipal law completely.
General rule of international law is that a state cannot defend itself
with its own municipal law against an international claim. In other
words, state cannot invoke their internal law as a justification for not
complying with their international obligations.
Nepalese status of monism or dualism is still a grey area since it is not
written clearly neither in the Constitution nor in any statutory laws. In
addition to it, court interpretation in case to case basis is not coherent
and inconsistent making a state of dilemma in adhering the
international law.