Dhakal and Others v. Nepal Government and Others

Abstract

Human rights — Right to life — Right to liberty and security of the person — Right to protection from cruel, inhuman and degrading treatment — Enforced disappearances — Whether Nepalese security forces arresting and forcibly disappearing various persons in their custody during armed conflict between Nepalese Communist Party (Maoist) and Government of Nepal — Constitution of Nepal 1990 — Interim Constitution of Nepal 2007 — Whether Government of Nepal complying with its obligations under Constitution of Nepal 1990 and Interim Constitution 2007 — International human rights instruments ratified by Nepal — Universal Declaration of Human Rights, 1948 — International Covenant on Civil and Political Rights, 1966 — International Covenant on Economic, Social and Cultural Rights, 1966 — Convention against Torture and Other Cruel, Inhuman or Degrading Treatment and Punishment, 1984 — Whether Government of Nepal complying with its obligations under international human rights instruments ratified by Nepal — Relevance of Convention for Protection of all Persons from Enforced Disappearance, 2006 to which Nepal not a party

Human rights — Right to effective remedy — Duties of Nepalese Government to provide effective remedy — Duty to investigate and make information on disappeared persons public — Obligation to prosecute — Rights of persons deprived of their liberty — Orders of habeas corpus and mandamus — Compensation — Relevance of disappearances occurring at time of conflict — Whether interim monetary relief for families of disappeared persons constituting appropriate remedy

Relationship of international law and municipal law — Treaties — Nepal — Human rights treaties — Act incorporating international human rights treaties into Nepalese domestic law — Universal Declaration of Human Rights, 1948 — International Covenant on Civil and Political Rights, 1966 — International Covenant on Economic, Social and Cultural Rights, 1966 — Convention against Torture and Other Cruel, Inhuman or Degrading Treatment and Punishment, 1984 — Implementation of resulting obligations — Relevance of Convention for Protection of all Persons from Enforced Disappearance, 2006 to which Nepal not a party — Constitution of Nepal 1990 and Interim Constitution 2007 — Whether Government of Nepal complying with its obligations

War and armed conflict — Non-international armed conflict — Armed conflict between Nepalese Communist Party (Maoist) and Government of Nepal — Duty of State regarding detainees — Whether Government of Nepal complying with its obligations under international human rights instruments ratified by Nepal — Whether Nepalese domestic legal framework on enforced disappearances adequate and effective — The law of Nepal