Asian Centre for Human Rights

Dedicated to promotion and protection of human rights in Asia

 

ACHR REVIEW
[ Special Issues for the 61st session of the United Nations Commission on Human Rights]

Embargoed for 9 March 2005
Review: CHR61/63/05
UNDP and OHCHR in Nepal: A test case for rights
Stage managed: In support of King Gynendra

The report of UNDP to the 61st session of the United Nations Commission on Human Rights argues that human rights are an essential key to development. In short, the report posits that if we have established a positive virtuous circle, expanding human rights will support development and vice versa. While CHR must celebrate UNDPís role in establishing these virtuous circles it must also examine the other side - UNDPís response to vicious circles of rights and development. How, we might usefully ask, does UNDP respond to deteriorating human rights environments impacting on development and vice versa? The report does not address this as explicitly as it ought

to. And the failure by the report to differentiate countries in terms of their place on the vicious or virtuous circle continuum is a cause for some further concern.

UNDP:

An interesting case in this regard is Nepal. In Nepal there is little doubt that just such a vicious circle has been established. There is no space here for an in-depth analysis but it is important to be clear about the nature of the regime. Nepal is not like the rest of South Asia. Nepal has neither rule of law, nor checks and balances nor any notion amongst the Army of a need for civilian oversight. India, it is worth noting, is one of the few Ďfriendsí of Nepal that appears to understand the implications of these fundamental differences. To sum up, Nepalís conflict is being driven by systematic violations of human rights and the perpetration of war crimes by both the security forces and the Maoists. These abuses are further compounded by the total impunity enjoyed by both sides.The cycle of violation and impunity that has been established has, in a large part, pushed the country into an increasingly feudal looking dictatorship.

What has UNDP done? The report presents the following:

- Support to the National Human Rights Commission

- A pilot project on access to justice

- A basic training for UNDP staff on human rights (carried out two years ago)

- Two workshops on mainstreaming human rights.

- Support to developing the governments National Human Rights Action plan (and what has become the principal defense of the regime for its record Ė see Nepalís statement to the third Committee).

We must ask if this response is appropriate to the scale of the problem of human rights? Most observers would conclude that the above is, at best, insufficient.

Moreover, UNDPís report is very limited in scope. It looks only at positive actions Ė only items clearly marked Ďhuman rightsí are included. What the report fails to do is examine how the wider work of UNDPís program may also affect the human rights sum. Surely such an examination is appropriate for an organization that supports the idea that human rights are mainstreamed. One example will suffice: the financial support of UNDP to any country is a powerful measure of political support to that country. If any countryís regime has a policy of violation (and the reports of the various working groups, rapportuers etc of the Office of the High Commissioner with regard to Nepal would support that view) then by definition UNDP is supporting a regime that commits serious violations of human rights. And by inference, such political support should be factored into UNDP account of its actions.

The above is obviously a simplified case. I am not, of course, necessarily arguing for unconditional suspension in the case of UNDP but rather that the spending is at least conditional on engendering a climate for meaningful development, and that, going by the logic of UNDPís annual report, would include serious human rights measures. Again with these arguments in mind we can return to the measures set out in the UNDP and again ask Ė now, with no small measure of concern - does UNDP consider its human rights work sufficient?

Even if we are to exclude human rights factors from UNDPís sums, it is interesting, in this regard, to compare the approach with the World Bank. On 8 March, the World Bank suspended loans to Nepal worth $70 million. The loan was suspended over the failure of the government to carry through reforms. The point is the Bank makes such decisions based on a very restricted set of conservative criteria. It does not believe in human rights as part of the development equation but nonetheless the Bank is signaling that it does not believe that its reform program can be sustained. UNDP might equally respond that its development is not aimed wholly at reform and much of its work is now more humanitarian in character. Most seasoned Nepal observers would wonder openly about any development agency actually reaching the poorest even before the conflict. First, they would cite a host of reports that demonstrate the failure of the development community to reach or impact on the lives of the target populations. Secondly they would then point out basic market logic: unequal players entering an unequal market leave with unequal rewards. Take away the rule of law and replace it with the chaos that now reigns, and dysfunctional markets favour the strongest (and best armed); the poorest and most vulnerable leave with nothing. Development is not possible without an equitable distribution system and without the rule of law this is simply unattainable.

UNDP Organizational Logic:

Key to understanding the relationship between UNDP and human rights is to understand the interdependent relationship between UNDP and the domestic government. Put simplistically, UNDP works through governments and hence UNDP is there because the government wants it to be there. To carry out development work UNDP needs the government and in most cases the government needs UNDPís money. On the other hand, violation of human rights, by definition, involves the state: and herein lies the problem. While UNDP depending on the political dexterity of its staff can work with a certain level of rights violation, systematic violation is a more difficult issue that challenges this basic structural relationship.

UNDP is not wholly to blame. UNDP organizationally, and as a whole, has little capacity for human rights work though UNDP Nepalís response of a basic training of staff two years ago nonetheless does seem a little poor. And from the evidence presented here it clearly has little capacity to understand that basic structural contradiction. Human rights remains at best ill understood and at worst performed for the donors. And as we have seen, institutionally UNDP is liable to shy away from issues that push it away from its basic purpose. The behavior may lack morality but it is organizationally logical. But these are excuses. UNDP in its report talks of its purpose to protect human rights, the essential link to development and to mainstreaming. If UNDP wishes to hold to its public commitment it would do well to examine its own performance in Nepal against its own logical frame.

But this is not the real point of this article. Clearly, while UNDP has internal contradictions with human rights, the Office of the High Commissioner does not. And its organizational responsibilities are clear.

OHCHR:

One must ask to what extent the Office of the High Commissioner for Human Rights (by agreeing to operate under these institutional arrangements), is actually providing support to the current regime in Nepal and its policies - policies that include widespread and systematic violation of fundamental rights, including most recently Ministers flying to Kapilabastu (Western Nepal) to celebrate and encourage the emergence of a vigilante movement. In mid February 2005 Ďthe mobí beat to death at least 30 persons. The weapons used were sticks, axes, knives and paraffin. The Ministers encouraged the actions of the vigilante groups and even agreed to consider a request for shotguns. This is not tacit complicity with violation; this is the policy. If anyone needed more official evidence of a state policy of violation they need to look no further. And they might also ask - where was the response of the Office?

The really worrying thing is that Nepal is just one example. The problem is across the board. Is this what we meant by mainstreaming?And the critics do have a point when they argue that human rights is being diluted by wider UN field operations into non- existence.

Ignoring human rights is a false reality. This is demonstrated by the example Ė the UN can argue forcibly about a return to democratic government in Nepal. This is, of course, a desirable objective, but unless that return addresses the fundamental issue of impunity and civilian control of the military, such a return would simply let impunity develop. Accepting modifications to Emergency laws while there is no rule of law would be similarly ill-advised. A return to democracy means addressing human rights. Human rights are an inconvenient but imperative part of the solution.

For the Office of the High Commissioner for Human Rights, Nepal (and indeed all the other technical assistance that it offers) is a challenge to the credibility of the institution. Surely the OHCHR must examine delivery of technical assistance through UNDP. It must ask if the arrangement may compromise with its own institutional purpose as the actions of human rights advisers will be limited to the organizational logic of UNDP.

International Non-Governmental Organisations have tended to back away from overt criticism of the OHCHR in the past. Given its history of failure the OHCHR has really had an easy ride.The OHCHR has been mostly ineffective, but more rarely valuable. But the move toward the current crop of technical assistance through UNDP needs to be re-visited. Time is running out. The test case is Nepal.

© Copy right 2003, Asian Centre for Human Rights, C-3/441-C, Janakpuri, New Delhi-110058, India