Legal provisions in Nepal for Sustainable Development Concept
Abstract
Nepal, a country nestled in the Himalayas, has made significant strides in enacting legal frameworks that promote sustainable development. This article explores various aspects of Nepal's legal system and its commitment to fostering sustainable practices. We delve into the key elements that shape Nepal's legal landscape for sustainable development.
Nepal, a landlocked country in South Asia, is still in neonatal phase of infrastructure and economic developments. Due to century’s long political experiments, Nepal is yet to come for solid development plans and roadmap for the economic prosperity. While gelling up Environment, Social and Governance (ESG) components in each economic and infrastructure development, review of existing legal frameworks is crucial.
This study has been undertaken to review existing legal provisions of Nepal for Environmental, Social and Governance factors in development needs. Also, international treaties signed by Nepal and commitments made at various forum including Nepal’s obligations under bilateral/multilateral agreements were studied for wider analysis. The study reflects that the country has recognized the need of protecting its environment and ensure social welfare through a comprehensive legal framework. To this effect, Nepal has implemented various laws and regulations aiming conservation of natural resources, pollution mitigation, and sustainable development promotion. Existing legal provisions are designed to address challenges faced by our Society in environment protection but at the same time, to ensure better future for all Nepalese through economic development.
(Key Words: Environmental, Social, Governance, Nepal laws, Treaties, Sustainable Development)
?
1.????? Introduction
No development can be done in isolation and no progress can flourish at the cost of other’s devastation. Therefore, development and economic activities shall operate with minimum impairment to nature, bio-diversity, social harmony, and eco-system and governance system. The earth is common home of various components like plants, animals, society etc. So, the soil, air, water, and other various components of the planet need to be protected for long-term journey.
Sustainable development is?defined as development that meets the?needs?of the present, without compromising the ability of future generations to meet their own needs[1]. The concept of sustainable development can be interpreted in many different ways, but at its core is an approach to development that looks to balance different, and often competing, needs against an awareness of the environmental, social and economic limitations we face as a society. Living within our environmental limits is one of the central principles of sustainable development.?But the focus of sustainable development is far broader than just the environment. It's also about ensuring a strong, healthy and equal society. This means meeting the diverse needs of all people associated in existing and future communities, promoting personal wellbeing, social cohesion and inclusion, and creating equal opportunity.
Economic growth has been the greatest challenge of Nepal in its entire history. Industrialization is far behind the target and modernization in agriculture is a dream yet to be realized. However, some signs of development are observed in the field of energy, tourism, education and service sectors. Laws are formulated and amended from time to time to encourage industrial growth, economic reforms and also for safeguarding associated social and environmental aspects.
?
2.????? Legal history of Nepal and Coverage of Environment and Social parameters?
Laws are an indispensable element for the smooth running of any system of governance. In Nepal, efforts and achievements that should have happened in law implementation and enforcement are in continuous improvement phase.
Nepalese legal system is as old as human civilization. Nyabikasini was one of the early codified laws issued in 1436 BS (1380 AD) which existed even prior to the modern code of world community.[2] The sources of laws were religious scriptures, interpretations of such scriptures passed onto generations by words of mouths such as Manusmriti, social customs, traditions and royal edicts. Even punishment system was indigenous in nature from simple to complex. Western model of legal system started to influence Nepalese legal system only after 1850s after Prime Minister Jung Bahadur Rana’s visit and return from Europe.? Prime Minister Jung Bahadur Rana initiated the review of the then existing laws of Nepal. The most notable Statute codified under the reign of Prime Minister Jung Bahadur Rana is “The Country Code” (Compendium of Laws on Civil and Criminal Matters including Procedural Laws) (In Nepali “Muluki Ain 1854 AD”). For the first time in Nepal, it dealt with criminal and civil law, as well as on the issues of administrative law, land law, revenue administration, land survey, in the most systematic manner with influence of western jurisprudence. It embodied the various Nepali customs, laws, usages, social norms, and royal proclamations .? It continued as the main source of law in the country until 1963 AD, for about 110 years, until it was replaced by the Country Code (In Nepali “Muluki Ain”) of 1963 AD.[3]
The Country Code promulgated by Prime Minister Jung Bahadur Rana even then consisted some of the legal provisions, though primitive, to protect environment. For example, Chapter 32 of the Code provided punishments for “cutting down trees” of the public places. It specifically prohibited the felling down of trees which were planted on the roadside, near public wells and canals. For violation of this provision, the Code had provided monetary fines, penalties, and confiscation of such cut down trees. For any failure to pay the monetary fines, the culprit would be imprisoned. Therefore, it is evident that the protection of environment was a concern for the then rulers of Nepal as well back in 1910 BS (1854 AD). However, it can be understood that the laws on environmental issues were extremely primitive and had narrow coverage in those times.
With the adoption of Nepalese Constitution in 2072 BS (2015 AD), it has brought a paradigm shift in the mechanism, structure, and functioning of the entire governance system in Nepal. Nepal’s new Constitution enshrines various provisions and articles and tries to balance economic prosperity with preservation of environment. Article 30 of the Constitution guarantees a clean and healthy environment to every citizen as a fundamental right and provides the victim a right to obtain compensation for any damage caused by environmental pollution or degradation. Further, the same article directs the state to formulate necessary laws to balance environment and development. ?
There is a landmark case of Godawari Marble Industries pertaining to the environmental protection (vide Surya Prasad Dhungel Vs. Godavari Marble Industries. NKP, pp 132-150, 169, 2052) in which the Supreme Court concluded that the clean and healthy environment is the right to life under article 12(1) of the Constitution of Kingdom of Nepal 1990 and directed the respondents to enforce the Minerals Act 2042 (1985), enact necessary legislation for protection of air, water, sound and environment and to take action for protection of the environment of Godawari area. Similarly, in another case of Prakash Mani Sharma et al. Vs. Office of the Prime Minister et al. NKP 2073. D.N. 9575, the Supreme Court declared Godavari area as a living museum of cultural and biological significance directed the government to shut down the controversial Godawari Marbles Industries as Godawari area was negatively impacted by the mining operation. Both the decisions cover in length various aspects of environmental protection and sustainability development including Stockholm Conference 1972, World Summit on Sustainable Development 2002, Polluters Pay Principle, Environmental Management System, EIA, IEE, SDGs and so on.
Apart from the Constitution, there are numerous statues that guide and govern the environmental and social aspects of development activities. Some of the major legislations are listed below:
??????? National Parks and Wildlife Conservation Act, 2029
??????? Land Acquisition Act, 2034
??????? Water Resources Act, 2049
??????? Electricity Act, 2049 and Electricity Rules, 2050
??????? Child Labor (Prohibition and Regulation) Act, 2056
??????? Human Trafficking and Transportation (Control) Act, 2064 (2008)
??????? The Land Acquisition, Rehabilitation and Resettlement Policy 2072
??????? Labor Act, 2074 and Labor Rule, 2075
??????? Environment Protection Act, 2076 and Rules, 2077
??????? National Climate Change Policy, 2076
??????? Forests Act, 2076 and Rules, 2079
??????? Minerals Act, 2042
?Nepal's legal framework places significant emphasis on environmental protection and conservation. There are various legal requirements for promoting sustainable practices in agriculture and tourism. Legal framework extends to the promotion of sustainable practices in various key sectors such as in hydropower, agriculture, tourism etc. We look into some of the major legislations that come into play in protection of environment while promoting sustainable development at the same time. We have grouped them under various categories by looking at their nature and function.
2.1. Laws on Protection of Environment
Nepal has enacted several laws to safeguard its environment and combat environmental degradation. These laws focus on preserving biodiversity, preventing pollution, and promoting sustainable practices. Some key pieces of legislation include:
i.???? Environment Protection Act, 2076 (2019):
This Act provides the legal basis for environmental protection in Nepal. It establishes mechanisms to control pollution, preserve natural resources, and enforce environmental standards. The EPA emphasizes the use of clean technologies, waste management, and pollution control measures.
ii.?? Forests Act, 2076 (2019):
This Act is enacted to safeguard Nepal's extensive forest cover, and regulates the conservation and management of forests. It promotes sustainable forestry practices, discourages deforestation, and strives for reforestation efforts. The Forest Act also emphasizes the rights of local communities to participate in forest management and benefit from forest resources. The Community Forest Users' Group Guideline empowers local communities to participate in sustainable forest management, ensuring their socio-economic development and environmental stewardship. However, it has been subject to severe criticisms by development sectors especially from Hydropower developers, and contractors involved in transmission line, roads and canals for the laws being very strict and having cumbersome process for trees cutting in development activities.
iii. National Parks and Wildlife Conservation Act, 2029 (1973):
National Parks and Wildlife Conservation Act aims to manage the national parks, protect wildlife and their habitat, regulate hunting and conserve, promote, develop, and make appropriate arrangements for and the use of places which are of special importance. Nepal as a contracting party to the Convention on Biological Diversity (CBD) is obliged to fulfill all the three objectives of the CBD including the conservation of biological diversity, its sustainable use, and fair and equitable sharing of benefits from the utilization of genetic resources[4].
iv.? Water Resources Act, 2049 (1992):
The Water Resource Act dictates the proper utilization and conservation of water resources through sustainable practices.
v.??? National Climate Change Policy, 2076 (2019):
Government of Nepal has introduced the National Climate Change Policy with the objective of providing policy guidance to various levels and thematic areas towards developing a resilient society by reducing the risk of climate change impacts. Nepal recognizes the urgency of addressing climate change and has implemented legal measures to mitigate its effects and adapt to the changing climate. This Policy sets out strategies to reduce greenhouse gas emissions and enhance resilience to climate impacts. It has various sustainable development friendly policies such as commitment to use renewable energy sources with practices of optimum utilization.
2.2.???????????? Laws on Social Safeguards
In addition to environmental protection, Nepal has also prioritized social safeguards through legislative measures. These laws aim to protect the rights and welfare of individuals, especially marginalized and vulnerable population. The most notable laws include:
i.????????????? The Social Welfare Act, 2049 (1992)
This act establishes the Social Welfare Council, which plays a crucial role in coordinating and monitoring social welfare activities. It ensures the efficient utilization of resources for poverty alleviation, social empowerment, and inclusive development. The act focuses on the protection and promotion of the rights of children, women, senior citizens, and persons with disabilities.
领英推荐
ii.??????????? The Labor Act, 2074 (2017)
This Act is enacted to safeguard workers' rights and promote decent working conditions and covers various aspects of employment, including minimum wage, workplace safety, and social security. The Labor Act emphasizes the fair treatment of workers, prohibits child labor, and provides mechanisms for resolving labor disputes.
3.????? Other Policy Measures
Apart from legislative enactments, the government of Nepal has devised several other policies to steer the country towards sustainable development The National Sustainable Development Goals (SDGs) framework aims to tackle a range of interconnected environmental and social issues. Additionally, the Renewable Energy Policy encourages investment in renewable energy sources such as solar and hydroelectric power. The Agriculture Development Strategy focuses on sustainable agricultural practices, including organic farming and integrated pest management.
Also, Nepal Ratra Bank has released the country’s first Environmental and Social Risk Management (ESRM) Guidelines for Banks and Financial Institutions in 2018 which was updated and revised in 2022.? Nepal Rastra Bank’s guidelines on ESRM for Banks and Financial Institutions of Nepal is another such step towards meeting SDGs. The core objective of the ESRM Guideline is to require BFIs to integrate Environmental & Social risk management into the overall credit risk management process. [5] Since financial sectors constitute a growth of economy, BFIs have immense potential to influence environmental sustainability and bridge the gaps between development and environmental degradation through their project financing.?The Guideline is prepared in order to fully inform the credit authority of environmental and social risks prior to the financing decision regarding individual transactions. The ESRM Guideline sets standards for the identification, assessment, and management of risks and lists acceptable thresholds of environmental and social performance.
4.????? International Treaties
Nepal has signed, been party to and ratified various multilateral treaties and conventions, participating in global initiatives aimed at addressing challenging environmental issues. Notable multilateral treaties include:
i.??United Nations Framework Convention on Climate Change (UNFCCC)
Key provisions of UNFCCC: commitment to tackle climate change through international cooperation, mitigation, adaptation, and funding mechanisms and encouragement of technology transfer to assist developing countries like Nepal.
ii.?Paris Agreement
Key provisions of this agreement: aim to limit global warming to well below 2 degrees Celsius, encourage countries to set and achieve ambitious climate targets, promote climate financing and technology sharing.
iii.??????????????? Human Rights Treaties
Nepal has also confirmed its commitment to safeguarding human rights by signing various international treaties in this domain. Some significant human rights treaties include: Universal Declaration of Human Rights (UDHR) which recognizes the inherent dignity and equal rights of all individuals and emphasizes fundamental freedoms, such as freedom of speech and religion. Agreement signed by Nepal is Convention on the Rights of the Child (CRC) which focuses on the protection and well-being of children?
In February 2021, The Government of Nepal has also signed a landmark agreement with the World Bank’s?Forest Carbon Partnership Facility?(FCPF), unlocking up to US$45 million to support Nepal to decrease carbon emissions from deforestation and forest degradation through 2025. With this Emission Reductions Payment Agreement (ERPA) in place, Nepal is expected to reduce 9 million tons of carbon dioxide emissions in the Terai Arc Landscape[6].
5.????? International Guidelines of Donor Agencies
Donor Agencies have their own guidelines on environmental protection issues while providing grants or loans to development activities. One of the major donor agencies is the World Bank which follows International Financial Corporation’s (IFC) guidelines also known as IFC Performance Standards on Environmental and Social Sustainability.
IFC has Performance Standards (PS) designed to help companies manage the environmental and social risks associated with their projects, and to ensure that these risks are mitigated. Various donor-funded projects in Nepal adopt these performance standards for safeguarding. There is total 8 PSs which are as follows:
??????? PS 1: Assessment and Management of Environmental and Social Risks and Impacts
??????? PS 2: Labor and Working Conditions
??????? PS 3: Resource Efficiency and Pollution Prevention
??????? PS 4: Community Health, Safety, and Security
??????? PS 5: Land Acquisition and Involuntary Resettlement
??????? PS 6: Biodiversity Conservation and Sustainable Management of Natural Resources
??????? PS 7: Indigenous Peoples
??????? PS 8: Cultural Heritage
?
6.????? Safeguard Documents in Practice
Various documents are prepared to document the plan and execute the safeguarding measures in infrastructure and economic development projects.
??????? EIA Report - The Environmental Impact Assessment (EIA) process ensures that development projects adhere to strict environmental standards.
??????? ESIA Report - Environmental and Social Impact Assessment (ESIA) is?a comprehensive document of a Project's potential environmental and social risks and impacts.
??????? ESHSMP - Environmental, Safety, and Health Strategy and Management Plan is to ensure safety of workers and communities affected by the project during implementation. The ESHSMP is designed to provide practical guidance for managing engineering works in ways that safeguard the environment and people. Components of ESHSMP are: Construction site management, Health & Safety obligations, Social safeguards required by the project, Environmental Safeguards (physical and biological), Waste Management, Monitoring, Reporting and Enforcement process, Safety Absolutes, Stakeholder Engagement Plan (SEP) including Grievance Redress Mechanism, Communication Plan etc.
??????? SGIP Social and Gender Integration Plan (SGIP), which provides a comprehensive roadmap for social inclusion and gender integration throughout the development projects.
??????? Trafficking in Person (TIP) Risk Management Plan, which provides plan for ensuring no one shall?commit or cause to commit human trafficking and transportation in the development works too.
?
7.????? Conclusion:
Nepal is a multi-racial, multi-lingual, multi-cultural and multi-religious country. Nepal's legal framework for sustainable development encompasses various policies, legislative measures, and guidelines reflecting national commitment to fostering a sustainable future. As the country continues to evolve in global environmental need, social evolution, cultural diversities and political stability, its legal framework will play a crucial role in shaping its path towards environmental preservation, social well-being, and economic prosperity of the country.
Nepal's participation in international treaties are remarkable commitments and highlights its commitment to global cooperation, sustainable development, and human rights. These agreements provide a platform for Nepal to engage with the international community and address shared challenges. Through bilateral, multilateral, and human rights treaties, Nepal continues to contribute to a more harmonious and equitable world where economic growth will respect co-existence and collaboration with nature and all stakeholders. In Nepal, there is no shortage of environmental laws and procedure however their implementation needs to be improved to attain sustainable development.
References:
[1]Sustainable Development Commission : ?https://www.sd-commission.org.uk/pages/what-is-sustainable-development.html
[2] Suman Acharya, Nepal Rasta Bank 2021, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3835576
[3] Kanak Bikram Thapa, Religion and law in Nepal 2010, https://digitalcommons.law.byu.edu/cgi/viewcontent.cgi?article=2537&context=lawreview
[4] The Convention on Biological Diversity (CBD) entered into force on 29 December 1993 with three main objectives which are: conservation of biological diversity, the sustainable use of the components of biological diversity, and the fair and equitable sharing of the benefits arising out of the utilization of genetic resources.
[6] https://www.worldbank.org/en/news/press-release/2021/02/26/nepal-and-world-bank-sign-innovative-financing-agreement-on-forests-and-climate-change-for-building-back-greener (Accessed on 29/12/2023)
[Originally published in December 2023 Journal of The Institute of Chartered Accountants of Nepal. ]