Note of CHAPTER 10: Significance of Human Rights instruments in rationalization of domestic laws (in common), from exam perspective. (Cursory notes).
CHAPTER 10: Significance of Human Rights instruments in rationalization of domestic laws (in common).
DOMESTICATION OF HUMAN RIGHTS IN NEPAL
Human rights are rights inherited to all human beings whatever our nationality, place of residence, sex, national or ethnic origin, color, religion, language or any other states. We are equally entitled to our human rights without discrimination. These rights are interrelated, interdependent and indivisible.
Principles of Human Rights
- Universal (Applicable in every place)
- Non- Discrimination
- Equality and Equity (Positive Discrimination)
- Inalienable
- Indivisible
- Transparency
- Rule of law (No one is above the law)
- Inherent (Person gains the very rights by the birth)
D0MESTICATION
Domestication of international instruments, broadly speaking is a process of giving effect to the provisions enumerated in instruments to which the state is a party at the national arena.
This is also a part of fulfilling obligations accruing from such instruments.
Domestication means to make the international instruments domestic or making law as per international conventions.
MODES OF DOMESTICATION
They are two modes of giving effect to the international instruments at national level.
- Monism- Automatically adopts all signed treaties as binding and as good as or even above its municipal laws. (US, France, China)
- Dualism- State enacts separate laws and deals with international law through its own municipal laws. (UK)
DOMESTICATION OF IL IN NEPAL
Section 9 of the Treaty Act 2047 states that once a state is party to the international instruments, State is oblige to follow the obligations provided by it.
FEW INSTANCES/ VIVID EXAMPLES
| Theme and Convention | National Laws and Mechanisms | ||
Civil and Political Rights Convention on Civil and Political Rights (ICCPR), 1966 and | Constitutional provision: -Right to life, including right against death penalty), Right to equality |
| Optional Protocols related to Abolition of Death Penalty | Legislation: Civil Rights Act 2012 Administration of Justice Act 2048 Judicial Administration Act, 2073 State Cases Act 2049 National Human Rights Commission Act 2067 Political Parties Act 2058 Act Related to Political Parties 2073 | ||
Economic, Social and Cultural Rights International Covenant on Economic, Social and Cultural Rights (ICESCR), 1966 | Constitutional Fundamental guarantees: - Right to Social Security, including Women, laborers, the aged, disabled as well as incapacitated and helpless citizens, right to food sovereignty, Right to Social Justice, including right to participate in the state mechanism on the basis of proportional inclusive principles. Legislation: Labor Act 2048 Labor Act, 2074 Senior Citizen Act, 2063 Poverty Alleviation Fund Act, 2063 | ||
Women's Rights The Convention on the political Rights of Women 1952, Convention on the Elimination of All form of Discrimination Against Women (CEDAW), 1979 | Constitutional Provision: Right to equality, Property right to women, and right against untouchability Legislation: Domestic Violence (Offense and Punishment) Act 2066 Witchcraft Act2072 Human Trafficking and transportation control Act 2064 Safe motherhood Act 2075 Sexual Harassment at Workplace (Punishment) Act, 2071 | ||
Rights against Torture United Nations Conventions against Torture (CAT), 1984 | Constitutional provision: Rights against Torture Legislation: Torture Compensation Act 2053. | ||
| Rights of Children Conventions on Rights of Child (CRC), 1989 | Constitutional provision: Rights of children: Art. 39 Legislation: Child Right Act 2048. Child Right Act 2075 Child Regulations 2076 Child Labor (Prohibition) Act, 2062 Police Act & Military Act (minimum age of recruitment is 18 years) National Broadcasting Act,2049 |
Though the promulgation of Treaty Act 2047 became successful in winning international law provisions the first priority in relation to the domestic laws, the old legislation and government policies contradicting
with the international human rights laws remained unchanged. Therefore, a number of cases were filed (still being filed) to challenge the discriminatory provisions.
Hrithik Yadav.
