Kathmandu School Of Law (KSL)
in co-operation with Center for Legal Research and Resource Development (CeLRRd)

 

Admission Opened in One Year Interdisciplinary M. A. Program in Human Rights
and Conflict and International Humanitarian Laws

KSL announces admission- open  in one year interdisciplinary M.A program in Human Rights and Conflict and International Humanitarian Laws. Interested students holding Masters' Degree in any discipline are eligible to apply for the program. The last date for the submission of application form is 10 March, 2006. Classes will commence from 2 April, 2006.  For more information <click here>

 

News

       

One Day Workshop on Safe, Secured and Organized Foreign Employment

Centre for Legal Research and Resource Development (CeLRRd), Civic Concern Nepal (CCN) and Kathmandu School of Law (KSL) organized a seminar cum workshop program on 25th February 2006 on the issue of safe, secured and organized foreign employment at conference hall of KSL.

The programme was organized to highlight the issues and problems relating to foreign employment and to identify the solutions for safe, secured and organized foreign employment. It was also intended to bring issues in the surface for discussion on the required strategy for organizations and companies working in the field of foreign employment to protect best interests of the people.

The participants included students and teachers of Tribhuvan University, students and teachers of KSL, representatives from different ministries, NHRC, Nepal Bar Association, NGOs, INGOs, political parties, journalists, and labours returned from foreign employment. Experts representing labour law and trade union were invited in the program to comment and provide valuable inputs on the paper presented by the professionals working in the field.

The general objective of the programme was to highlight the current pattern of foreign employment and problems being faced by Nepali workers in the foreign land. It focused on the causes of migration of Nepali youths in foreign land, problem they are facing and the solution for safe, secured and organized foreign employment.

The programme formally started with the Chairing from Associate Prof. Yubaraj Sangroula, Executive Director of KSL. Similarly, Mr. Ajamber Kangbang from Democratic National Youth Fourm, Mr. Ravi Khanal from Nepal Bar Association, Mr. Chandra Kanta Poudel from Ministry of Labour, Mr. Aabhusan Timilsina from Nepal Police, Bishnu Rimal from GEFONT, and several other personnel having related experience were invited as guest and keynote speakers.

Ms. Geeta Pathak, Head of LL.M Department, KSL, welcomed the participants and resource persons. She stated that KSL being a socially responsive institution for legal education believes in joint efforts and interdisciplinary interactions. She highlighted on the importance of safe, secured and organized foreign employment and expressed her belief that the interaction will extensively help to address the problem and finding the possible solutions to the problem.

Ms. Sujita Shakya, Chair Person of CCN, was the next speaker for the program. She highlighted the issue of large number of brain drain and its effect over Nepal and stated that unemployment shouldn't be a cause for migration for foreign employment, which has been a major cause in Nepalese context. Her accentuation was on the urgent need of employment generation to stop that flow. She emphasized on the risk factors associated with foreign employment in the stages of pre-migration, risk at work and after return to homeland. She urged for socio-economic analysis as well as analysis from human rights perspective of foreign employment to address the issue properly.

Sharing his viewpoint, Ajamber Kangbang, Secretary of Democratic National Youth Forum said that it has been hard to stop the flow of continuous migration of youths but trainings should be provided to them for better opportunity for prestigious work and better salary. He focused that government has been highly benefited from remittance but has done nothing for the people going out of Nepal for work. He emphasized for strict monitoring of the works of manpower companies including contract between foreign company and workers. He highlighted on the urgency of consultancy to the people returning from foreign work to invest money to productive sector instead of investing in buying land and buildings.

Next speaker was Mr. Ravi Khanal from Nepal Bar Association. He expressed that this kind of forum is a great attempt to think and work for migrant Nepali workers. He emphasised on need of a committee that works for migrant workers.

Representing the cooperative associations, Mr. Man Bahadur Aryal also expressed the need of collective voice for migrant workers as they are poor section of society and are cheated and exploited by all. Mr. Komal Acharya from Law Ministry put his view that migrant workers' rights should be analysed in three phases: pre-migration, during work, and after return in home land. He admitted that there are several difficulties in laws as well as in practice regarding the rights of migrant workers. In raging voice he disclosed multiple practices of manpower companies to cheat people and problems faced during handling their cases in legal aspect.

Mr. Chandra Kanta Poudel from Ministry of Labour revealed the facts of duplicate demands of foreign employment by companies. He also shared the experiences of the works done by trade unions of different countries. Sharing his impression of OWWA (Overseas Workers Welfare Agency) of Philippines, he pointed out that if trade unions are strong, migrant workers' rights are better protected. He suggested for the orientation for those workers imparting skill to them, effective monitoring of manpower companies, need of extensive discussions at policy level, and need of translation of contract paper between worker and companies in mother language. Complaint handling mechanisms should be established in two sections; Complaint handling section regarding manpower companies, and Complaint handling section regarding individual persons, he suggested.

Aabhusan Timilsina from Nepal Police complained about the government for no effective monitoring. He highlighted the need to assess the problem of victim migrant workers. He also discussed the white collar crime that there are very big names involved in crime relating to foreign employment.

Mr. Bishnu Rimal from GEFONT highlighted on the migration phenomenon in Nepal and said that migration could not be stopped but there is a dire need to regulate and monitor it. He discussed the problem of migrant workers categorizing them as (1) unskilled and incapable to spend any money to pay for manpower companies, who go India for foreign employment;  (2) who can manage up to 1-2 lakhs and mostly go to Arabian countries and Malaysia (3) who can manage up to 3-4 lakhs and go to Japan , Korea in their own or relatives' effort, and (4) who can manage up to 10-12 lakhs and go to USA, UK, Canada, Australia or NZ in the name of seminar and don't return back to the country. He mentioned that unemployment and inadequate remuneration system are the major cause of high trend of migration to foreign employment.

Associate Prof. Yubaraj Sangroula concluded the first session with his remarks on multiple perspectives to be looked at the issues and problems attached to migrant workers.  He highlighted on the pattern of disrespecting other's work prevailing in the country. Nepalese are hated by Nepali on the basis of work they do, he pointed out. Additionally, he said that 10% of Nepali elites are enjoying major resources of the country, they exploit it first and later migrate to the foreign country. He talked about the issue of exploitation of person who goes for foreign employment. He added that law is not a solution of the problem rather it is only an instrument. He focused the need of political will to work for the betterment of people as solution.

Paper presentation followed the first session. Mr. Dilli Upreti presented a paper entitled Socio-Economic Analysis of Foreign Employment in Nepalese Context as a first presenter. His paper highlighted on importance of human resource for nation building. He provided the data that 5% of Nepali population is completely unemployed and 32.3% are partially unemployed. He said that Nepal joined in foreign employment after signing treaty in 1816 A.D with Britain. But the trend of migrating for foreign employment took its momentum after Nepal became a member of ILO in 1956 and after establishment of labour department in 1971. With the increase of various companies in course of globalization and demand for the labour for these companies, Nepali workers are headed for the foreign employment. Providing the data, he presented that more than 696,621 people have been migrated for foreign employment. Most of them are engaged in building construction, mechanical works, agricultural farming, security guards, factory workers, and workers in hotel, caterings and others.

He lampooned the government for enjoying poor peoples' money through remittance. Citing out the Living Standards Survey Report 2004, he shared that living standard of Nepali has increased due to the money coming from foreign country where their family members vigorously work. He also highlighted that the money coming from foreign is being invested in unproductive work, such as building houses. He emphasized the need to alert people to invest for productive work.

He also provided data that migrant workers of Nepal in foreign land earn very little with their hard work. According to him, 8.8% of the people spend up to fifty thousands; 12.5% of the people spend up to 50-75 thousands and 33.1% of the people spend up to seventy five thousands to go for foreign employment but more than 49.4% of the people get Rs.10,000 per month and they got there only for 2-3 years. He concluded that in return they have very less money which is spent for their general and essential needs. They can't save the money of their hard work.

Lastly he underlined the problems and challenges and provided recommendations for safe, secured and organized foreign employment. The problems he highlighted included lack of clear statistics records of government, improper information about the country where people are being sent, lack of skill and competency among the workers, trend of cheating by companies and various persons, no agreement between country of origin and second state, unawareness of law relating to foreign employment and the law of that country where the people are being sent etc.

As recommendation he focused on developing compulsory insurance of those workers, providing training and information of work to the workers prior visiting the country of destination, effective monitoring of the companies, initiation of diplomatic process for better salary and safety at work, making environment for transparent work by manpower companies.

Advocate Ramesh Badal's presentation on 'Right to Form and Join Trade Union and the Role of Trade Union' followed the first presentation. His paper focused on law on foreign employment and trade union; migrant workers and trend of discrimination; trade union's perspective on migrant workers; and migrant workers and role of trade union. In his presentation he informed that Nepalese laws give priority to Nepali not to foreigners. There is such a mechanism in law that foreigners can't reach to the highest post in trade union. While dealing the role of trade union, he highlighted that where trade unions are strong, workers rights are better protected. If workers are organized, they do have power for collective bargaining. He also expressed that, in most of the countries, trade unions don't support and help foreigners. They adversely view the foreigners. Laws also discriminate foreign workers. He informed that ILO Conventions 97, 143, 118, 157, 100 and 158 provides right against discrimination to foreign workers and the right to organize.

He said that Nepalese workers are less organized in foreign land. They rarely join trade union and there is very less possibility for the same. He identified this as one of the causes of Nepalese workers' discrimination and exploitation in foreign land. He mentioned that in Nepal some organizations like GEFONT are working for foreign workers as well. 

As a third presenter of the programme, Associate Prof. Geeta Pathak, presented her paper entitled 'Protection of Human Rights of Migrant Workers'. Her presentation focused on migration patterns and trends; national and international migration; magnitude of the problem associated with foreign employment; problem of denial of fair trial for the migrant workers; realization and recognition of the rights of migrant workers as human rights; the content of the migrant workers' convention including the definition of migrant workers and definition of family of migrant workers. She also covered the issues human rights of family of migrant workers.

Other issues she covered in her presentation was the principle of non-discrimination as effective tool to combat migrant worker's problem, civil and political rights and economic, social and cultural rights of migrant workers. She emphasized on the role of consular or diplomatic authorities of their sate of origin for the protection and assistance of migrant workers and their family. She also highlighted additional rights of documented and regular migrant workers and associated relation between migration and trafficking.

The significance of her presentation was on the outlining of measures to be taken in case of violation of the rights of migrant workers. She informed about individual complaint mechanism at Committee on migrant workers. She also highlighted on relationship of migrant workers' Convention with other Conventions, particularly, six other core treaties. She highlighted on the responsibility on the part of state to safeguard migrant workers' rights, especially the rights of protection of migrant women. She concluded her presentation with the information on the situation of internalization of migrant workers' Convention and tools to protect human rights of migrant workers and the members of their families.

After presentation session, participants were divided into three groups to comment and to discuss on the papers presented. Mr. Tej Adhikari presented on behalf of the first group showed the need to do a lot of homework regarding foreign employment. If sustainable development is to be achieved, the country shouldn't depend on remittance. He also highlighted on the need to change the psychology of Nepali people and the transparency in the work of ministries and companies concerned.

On behalf of the second group, Mr. Uddhav Sigdel viewed that there is a need of effective orientation to the workers willing to go for foreign employment. He also highlighted the need of bilateral agreement with the concerned country and need to aware people regarding trade unions.

Similarly, Mr. Birendra Lamsal on behalf of third group presented that before ratifying or accessing any instrument there should be extensive discussions whether to ratify the convention or not so that positive and negative points can be identified in the concerned issue.

Associate Prof. Yubaraj Sangroula delivered the concluding speech stating that the programme is only an initiative to brainstorm the large section of population that are completely unaware and dispassionate to the clamour and agony of poor people. This is not the end of the programme but a new starting to awake those passive sections. He added that there can be no compromise in universally recognized principle of human rights so there is need to convince the companies that work for mediating for foreign employment. He accentuated on a need of team spirit and the academic institutions to raise voice of the migrant workers. 

Common Understanding Developed in the program is the urgent need to reform current patterns of migration for foreign employment. Nepalese law doesn't properly address the problems of migrant workers and the persons who are cheated by companies. There is thus urgent need of effective monitoring system by the government. Likewise, persons willing to go abroad for work should be provided training on skill development and orient properly on the work they are going to perform. Awareness among the workers is needed to join trade unions and the laws of the land where they work. 'We shouldn't say no migration but safe, secured and organized foreign employment', they agreed unanimously.


Participants and Guests at the Program

Top

Seminar on International Humanitarian Law

International Committee of Red Cross (ICRC) Nepal, in cooperation with Kathmandu School of Law and Faculty of Law, Tribhuvan University organised a one day seminar on "International Humanitarian Laws (IHL)" on 23 February, 2006. The program was targeted for academicians in order to discuss on the scope and role of academicians to play in the implementation of international humanitarian laws in the context of armed conflict of the non-international nature. Teachers and faculty members of Nepal Law Campus and Kathmandu School of Law including representatives from Nepal Bar Association, and Human Rights and Public Concern Committee took part in the seminar.

The programme began with a welcome speech of Krishna Chalise. Following him, Mr. Thierry Schreyer, Communication Coordinator of ICRC Nepal highlighted on the objective of organizing such seminar. He said that as IHL is a part of curriculum in law colleges of Nepal it is necessary to have interactions among such colleges and ICRC to update and refresh the related issues. Similarly, Mr. Larry Maybee, Regional Legal Advisor of ICRC for South Asia spoke on the role of ICRC in implementation and compliance of IHL. He emphasized on the need of promoting State's obligation to enforce international treaties, Geneva Convention, in particular. He said that ICRC seeks promotion of IHL to ensure, prevent and minimize sufferings of conflicts as well as to protect and help the conflict victims.

Executive Director of Kathmandu School of Law, Associate Prof. Yubaraj Sangroula, highlighted on the need of accelerating the process of understanding IHL. He expressed his thanks to ICRC for its active involvement in this regard and added that the seminar will facilitate Nepali Legal academics to understand the need of implementation and compliance of IHL.

Gunanidhi Neupane, Campus Chief, Nepal Law Campus thanked ICRC for initiating such important seminar for law faculties. "As there is growing attention of human rights and conflict situation of Nepal from international community, it is important to have a similar kind of understanding by the academics and to suggest the government officials for observance of humanitarian law as Nepal is in crisis of armed conflict since a decade", he opined.

Professor Kanak Bikram Thapa, Dean of Faculty of Law, Tribhuvan University, expressed the seminar's importance viewing the situation of Nepal which is passing unusual situation. He appreciated ICRC's initiation as the existing knowledge of IHL to Nepali academicians is not enough to tackle the situation arisen due to armed conflict.

Following the opening remarks, Mr. Larry Maybee presented a presentation on IHL. He entered to the issue highlighting basic characters of public international law and international legal framework. He clarified that there were three different scopes of international law basically, the mechanism to observe legality or legitimacy of war, international humanitarian law and international human rights law. He stressed that there is still confusions and mismatching of understanding that many people discuss and interpret these different scopes together.

He briefed the underlying principles of IHL, particularly the military necessity, humanity and the proportionality. He also highlighted the scope of IHL with special reference to the war of international character and armed conflicts of non-international character.

His final presentation was on an ICRC study on customary international humanitarian law. Giving a brief account on the process of the study carried out, he focused his presentation on the central issues covered by the study report. The study has pointed out 161 rules of customary humanitarian law applicable in the situation of armed conflict of international as well as non-international character. These rules cover the themes including, prohibition of indiscriminate attacks, proportionality in attack, precautions in attacks, specially protected persons and objects, humanitarian relief personnel and objects, protected zones, specific methods of warfare, starvation and access to humanitarian relief, applicable principles of use of weapons, treatment of civilian persons, compliance and enforcement of IHL, responsibility and reparations.

The participants had ample opportunity to interact on the subject matters, the plight of IHL in context of Kosovo, Iraq, Bosnia  were discussed to bring clarity on identifying their international or non-international character. 

The in-house Sensitization on Agenda ITEM NO 9

The in-house sensitization program on Item No 9 took place in Kathmandu School of Law on 23 Feb, 2006. The program was attended by students, faculty members and staffs in which various future implications of item no 9 were discussed. The need to discuss this issue was imperative with regard to the recent development of probable imposition of stringent Item No 9 in Geneva Convention with the recommendation of UN Office of High Commission of Human Rights (OHCHR) supported by NGOs at home. Speakers were Associate Professor Yubaraj Sangroula, Associate Professor Geeta Pathak Sangroula, Assistant Professor Mr. khagendra Prasai and Human Rights scholar Mr. Kapil Aryal.

On the occasion, Mr. Sangroula shared that if sanction is approved, it will have multifaceted effects on all aspects of life. Nepal will have an identification of human rights violator countries. Its international relation will be worse affected and foreign aid will virtually stop. Presenting the existing reality of human rights situation, he stated that both the security forces and the rebels have been blatantly violating the human rights norms, values and international humanitarian law practices. Having Item No 9 enforced will not bring pride to the nation. However, by the present situation international community is forced to think about it. But it would be nice to bring the issue under discussion of the people. The practices of few organizations keeping such issue in their private domain must end. 

Describing the development, he further said Swiss and EU had drafted the resolution under item no 9 earlier too, however that could not be materialized after the government of Nepal made an agreement with United Nations Office of the High Commissioner for Human Rights (OHCHR) to ensure the presence in the country of international human rights personnel to monitor human rights violations being committed by the government and the Maoists. Accordingly, an OHCHR office was set up in Nepal in order to establish accountability for human rights abuses, notably through investigation and verification by international human rights officers deployed in the field.  Based on the information collected by the UN office, the High Commissioner for Human Rights will submit periodic analytical reports to the Commission on Human Rights, the General-Assembly and the Secretary-General of the UN. This positive commitment of the government at that time led the sponsors of the resolution to put it under item no 19. However, the government in practice has failed to comply with its obligations. Similarly, human rights violations by Maoists have reached to an unacceptable degree. He also added that the enforcement of Item No 9 provides ground for economic sanction and stoppage of bilateral relationship with the government of Nepal. This process, which enforces intrusive international monitoring, is considered as “designating and shaming” the country. Concluding, Mr. Sangroula urged everyone to be prepared and discuss on this issue more to come forward with a logical conclusion.

Likewise, next speaker Mrs. Geeta Pathak Sangroula said that the resolution of Item No 9 against Nepal may create further hardship to people, and she blamed the present regime for emergence of this present situation. She flatly called it unwanted and unfriendly in our socioeconomic context. Mr. Khagendra Prasai expressed the issue from the prospective of sovereignty, by raising simple questions: should such strong measure be taken with or without the consent of people? What is our political party’s position on the issue? Has this been discussed adequately in Nepali media and among Nepali citizens? In his opinion, the issue needs discussion in Nepal.

Others taking part in the discussion held their view that the use of Item No 9 should only be targeted to prevent human rights violation but not to deprive ordinary population from benefits of the development assistance of friendly countries.

Top

 

Feature Article

 

 

 

 

Expatriate Youths: A Setback to Democracy

Nepal has arrived in a very difficult part of the history making process. Its failure to address the present crisis may lead the country to a bloody future. By and large, institutions of government have almost paralyzed. Displacement in rural part of the country is massive, whereas the brain drain from urban elite population is serious too. The latter has been a characteristic feature of the Nepalese society. About 10% elite population of the country enjoys powers as well as resource of the country for its development, and ultimately a large part of it migrates to USA, Europe and other and some other developed countries. If one statically analyzes this trend, he/she can definitely find that most educated people of Nepal who used the national resource for their development do not stay in Nepal. Incredibly huge number of those who obtained government scholarship for education abroad never return, and those fortunate people who have been able to obtain education from best institutions in the country do not intend to stay in Nepal. The poor and socially marginalized population of Nepal has thus been doubly crushed, firstly every opportunity is grabbed by the urban elites and, secondly, the country is deserted by this group once their personal benefits are satisfied. This is the time in the history of Nepal which requires service of most prosperous and intelligent youth population, and unfortunately with the present trend of brain drain situation the nation may see its ordeal time.

The present crisis has been thus intensified by consistent failure of the government and political parties to manage its resources, and failure to subject the small section of the elite population to the 'people's control'. It was also a serious failure of the political parties after 1990. In fact, a significant proportion of the political leadership merged within the elitist population. This is elf evident by "Pajero" scam. To some extent, foreign development assistance organizations are also responsible for this unwanted happening. Many donor agencies and international organizations befriended with 'elitist population' of Nepal in selecting projects, setting priorities and implementing project activities'. Especially, the project funding through civil society did not flow based on capacity, commitment and credibility of the organizations, but it was mainly governed by personal contact of NGO leaders with managers of the donors. Obviously, a significant amount of the development assistance fund raised out of taxes of people in the friendly countries went to the 'personal benefit' of the so-called civil society leaders. Over the years, a group of 'airport residence' population (people who spend time in participating in seminars, conference and meeting and spend large part of their time in airport) emerged in Nepal, whereas persons and organizations seriously engaged in development activities in Nepal had been somehow neglected. Their noble actions of changing the lives of Nepalese’s came under shadow. This phenomenon was largely counterproductive to the institutionalization of the democracy in Nepal. Fundamentally, the foreign development assistance to the education sector was largely neglected. Investment both by the government and foreign donor agencies failed to realize that 'a vibrant new generation needed to emerge to assume leadership in all spheres of governance'.  If the advocacy about democracy, good governance, human rights, gender justice, and empowerment of socially marginalized groups was brought to the schools and colleges, a new generation of leadership would have been emerged by now.. However, the empowerment of the new generation of leadership was a dismal failure of the development assistance. Many organizations spent their money on observation tour of political leaders, judges, bureaucrats and other elites. These observation visits had well utilized by participants to 'do marketing'. Judiciary and other institutions had similar situations. Some judges had over a dozen times opportunity to visit western countries. Even today, this fashion continues.

The democracy has been in crossroad today. Youth leadership in every aspect of development is the only way out. Nepalese society now should give up its pessimistic attitude and start boosting up the innovative and creative youth leadership. The discussion needs to be initiated on 'how this can be done'. The country's future is rested on emergence of a new generation with development vision. KSL has revealed, while doing inclusive democracy discussion for about 600 students from over 60 schools in Kathmandu, that the new generation thinks politics a 'dirty game'. Politics is one of the least preferred issues for consideration. This kind of psyche is detrimental for consolidation of democracy but a boon for authoritarianism. It would be meaningless to talk good governance, human rights and rule of law without a vibrant young generation to defend 'democracy'. If we start this mission now, we may have its result in ten years. The coming ten years in Nepal is thus a time to nurture a new generation in politics, with vision of development, understanding of diplomacy, commitment to human rights and love to people. The civil society should therefore work to this direction. "Please go to schools and colleges to find intelligent, talent and progressive people”, if you still are inclined to work for democracy.

Active discussion and healthy comments are encouraged for the article.  Join in our discussion >>

KSL E-Bulletin  invites feature articles for discussion on the contemporary issues. Selected article will be published in E-Bulletin feature section. We will provide  honorarium of NRS. 500 for the selected article. We, thus,  call upon the research based feature article with word limits (600-1000)

Top


Kathmandu School of Law          / Telephone : 977-01-634455/6634663, 2042268
Dadhikot, Bhaktapur                   /   Fax           : 977-01-634801
Kathmandu, Nepal                     /   E-mail       : info@ksl.edu.np        Web   :  www.ksl.edu.np