REFUGEE WATCH
"A South Asian Journal on Forced Migration" - Issue NO.31
Bhutanese Refugees: A Search for a Durable Solution- Discussion Paper II (Prepared by Hari Prasad Adhikari, Bhutanese Refugee and Activist)
Bhutan is a country of immigrants ruled presently by the fifth hereditary and absolute monarch, Jigme Gyesar Wangchuck. Little exposed to the world, Bhutan is a member of the UN since 1971 and is signatory to the International Convention on Elimination of Racial Discrimination (ICERD) and has ratified Convention on the Elimination of All forms of Discrimination against Women (CEDAW) and the Convention on the Rights of the Child (CRC).
At the quest to establish democratic culture, the suppressed nations experienced the struggle for change in the eighties which apparently perceived threat to their hegemony by the ruling Drukpa elite. The country has multi-cultural, linguistic and multi religious bindings. Yet the struggle of the eighties rooted a deep suspicion in the minds of the rulers who subsequently adopted an ethnic cleansing policy through different means and implementation of which resulted to the expulsion of over one-sixth of its population. These expelled innocent Bhutanese citizens are languishing as refugees in eastern Nepal as asylum seekers; assisted and monitored by the UNHCR and the Government of Nepal. There are over 106,000 Bhutanese asylum seekers registered in the camps in Nepal and over 15-20 thousand unregistered and scattered around the camps and in India mainly along the Do oars belt adjoining Bhutan. Fifteen rounds of bilateral talks have taken place but with no conclusive decision to solve the refugee crisis. While it may be said that each round of bilateral talks began with renewed hope for the refugees, it all ended invariably in utter disappointment and frustration for them. In fact, the bilateral process turned out to be no more than a farce and a cruel joke on the refugees. The sixteenth bilateral talk has not taken place since 2003 and the refugees have heard nothing about any development with regard to their return after the announcement of the result of the joint verification of the two countries on December 22, 2003. As agreed, Bhutan was to take back the verified refugees for good.
The refugees launched numerous movements for their right to return. The goodwill persuasions of the international community did not also supplement to creating an atmosphere of return and solving the protected problem of the Bhutanese refugees – on the ground as the saying goes “justice delayed is justice denied”. There have been offers for the resettlement of desiring refugees from countries like US, Australia, Canada, Norway, New Zealand, and a few European countries. This has brought hopes of future for many refugees particularly those who want to build their future in these countries. There are many who believe that they can return from these countries when the situation favors them. Yet there are also people opposing resettlement who believe that they can organize radical protests against their government in Bhutan to get their rights back. The two different ideas of solution have resulted to critical security problems in the camps.
The Bhutanese Government is unlikely to repatriate all the refugees and as Nepal is in the midst of a democratic transition, it will take some time to address the aspirations of the refugees who are willing to integrate locally. On the other hand, refugees have suffered more than enough in silence for the last decade and a half and are seeking ways and means to improve their quality of life economically and socially. Present development of the interest shown by some resettlement countries seems to be attractive to those who desire to grab this opportunity. Families with educated children are more open to volunteering for the resettlement.
Refugees have human rights, including rights that speak specifically to their particular forms of vulnerability. As a willingness of state to grant meaningful protection to involuntary migrants decreases, it is critical to understand clearly the entitlements that can be invoked to safeguard the basic interest of refugees. Beyond the classic prohibition of the refoulement of refugees to the risk of prosecution, the UN Convention Relating to the Status of Refugees mandates respect for a series of crucial civil and socio-economic human rights of refugees. These span the range from freedom of association, movement, and religion to rights of access to key social institutions, including employment, education and social and economic assistance.
The sentimental ethic of “Patriotism” in many cases has encouraged the victimized population to ruin their productive period of life. The seen and unseen interest of actors or the people in the community with profile always play with the unrealistic irrational emotions of these vulnerable populations.
Repatriation Versus Resettlement
Repatriation at this point of time is not workable given the different constraints arising from the part of the Royal government of Bhutan though there are legal provisions in the international laws. Human Rights Watch in its 2007 report has clearly pointed out the negligence of the Bhutanese government to its international obligation.
Under international law refugees and exiles have a right to return to their country. Article 13(2) of the Universal Declaration of Human Rights states, “Everyone has the right to leave any country, including his own, and to return to his country.” The United Nations Convention on the Rights of the Child (CRC) to which Bhutan is a party and legally bound also sets out that “States Parties shall respect the right of the child and his or her parents to leave any country, including their own, and to enter their own country.” Bhutan has also signed, but not ratified, the International Convention on the Elimination of All Forms of Racial Discrimination which in Article 5(d)(ii) of the Convention guarantees “the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights: …The right to leave any country, including one’s own, and to return to one’s country.”
In addition to its legal basis under treaty law, the right to return is recognized as a norm of customary international law.
In October 1993 the governments of Nepal and Bhutan met for the first time for negotiations aimed at resolving the refugee crisis. Each subsequent round of bilateral talks built up refugee hopes that a way out of the impasse would soon be found, allowing them to exercise their right to return to Bhutan. However, the negotiations got off to an inauspicious start when Bhutan proposed, and Nepal agreed, to categorize the camp population into four different groups: (1) bona fide Bhutanese who were forcibly evicted; (2) Bhutanese who voluntarily migrated; (3) non-Bhutanese; and (4) Bhutanese who have committed crimes. Both this categorization scheme and the verification process reflecting Bhutan’s intention from the start to limit the right of return to only a small subset of the refugees met with widespread international criticism for failing to meet established standards for refugee screening and verification.
After many years of fruitless talks and delays, Bhutan and Nepal agreed during the 10th round of bilateral talks in December 2000 to establish a Joint Verification Team (JVT). The 12th round of bilateral talks in February 2003 produced an agreement whereby only people in category one were accorded the right to repatriate to Bhutan and have their status of citizens of Bhutan restored to them. People in category two would have to re-apply for Bhutanese citizenship after their return to Bhutan, whereas people in category four would first have to stand trial in Bhutan. People in category three would not be allowed to return to Bhutan at all.
The JVT completed the verification exercise of the first camp, Khudunabari, between March and December 2001, but did not release the results until June 2003. Out of a total of 12,643 people registered in the camp, the JVT categorized 12,090. The categorization of the Khudunabari refugees was reported as follows:
- Category I – Bona fide Bhutanese citizens (293 people – just 2.5 percent of the refugee population);
- Category II – Refugees who supposedly “voluntarily” migrated from Bhutan (8,595 people, or 70 percent of the refugees);
- Category III – Non-Bhutanese (2,948 people, or 24 percent of the refugees);
- Category IV – Refugees who have committed “criminal” acts, including those who participated in so-called “anti-national” (pro-democracy) activities in Bhutan (347 people, or 3 percent of the refugees).
According to the joint press release of 21 May 2003, the Royal Government of Bhutan would take ‘full responsibility’ for the 293 individuals categorized as ‘bonafide Bhutanese evicted forcibly’ and that these people would be permitted to return and would be issued citizenship cards. The complete text of the terms and conditions of return is attached for reference.
The comprehensive mission of the Geneva based support group who did a thorough survey on the process of the joint verification has criticized the process that it created barriers for the return of the refugees from the camps in Nepal. This process simply does not stand up to scrutiny under international law, refugees have been classified as “criminals” in the absence of clear charges or any semblance of a trial, and apparently in punishment for exercising their fundamental rights to freedom of expression and association. Category II is similarly flawed. All the refugees classified as so-called “voluntary migrants” claim they signed so-called “voluntary migration forms” under duress when they were expelled from Bhutan. Many were unaware of the content of these forms and that signing them would that result in their loss of citizenship under Bhutanese law. “Under international law everyone has the right to leave and return to their own country,” “Bhutan’s policies clearly violate this right.” Ethnic Nepalis were either forced to leave, or felt compelled to leave the country to avoid harassment, physical abuse, and imprisonment.
The two governments confirmed their agreement on the treatment of the four categories during the 15th round of bilateral talks in October 2003. Since then no progress has been made. No verification exercises have been conducted in other camps, and none of the residents of Khudunabari camp have been allowed to return to Bhutan.
Bhutan’s attempts to limit the right of return to people in category one violate its obligations under international law. Bhutan argues that the people in category two, Bhutanese who are deemed to have left Bhutan voluntarily, have renounced their Bhutanese citizenship. However, the circumstances surrounding their departure from Bhutan in the early 1990s make clear that, far from leaving voluntarily. There is, thus, no basis for distinguishing between people in categories one and two: they should all be allowed to exercise their right to return to Bhutan should they so wish and have their status as citizens of Bhutan restored to them immediately.
The agreement reached by the governments of Nepal and Bhutan purports to deny the right to return to those refugees who are deemed to be non-Bhutanese (category three). However, the right under international law is to enter one’s “own country” rather than only the country of one’s nationality. Guidance on the meaning of “own country” in this context has been provided by the Human Rights Committee in its General Comment 27 on Article 12 of the International Covenant on Civil and Political Rights (ICCPR), which states that “No one shall be arbitrarily deprived of the right to enter his own country.”
In such a situation voluntary repatriation does not seem feasible for these Bhutanese refugees. At this state of uncertainty, people in the camps are searching for alternatives or comprehensive durable solution.
In the Bhutanese refugee camps there are refugees in all three strategic options of solutions. Though there is a strong and forceful opposition of resettlement of those desiring refugees from radical groups, who believe that arrangements should be made to allow them to freely decide their future. Some of the refugees are expectant that they may be able to return to their country of origin as the situation improves even from the third country of resettlement as their right to return is not ceased when they resettle in a third countries.
“The description of resettlement as a ‘last resort’ should not be interpreted to mean that there is a hierarchy of solution and that resettlement is the least valuable or needed among them. For many Bhutanese refugees, resettlement, in fact, is the best or perhaps, “only alternative” as indicated by the then UN High Commissioner for Refugees, Ms. Sadako Ogata (2000-2003).
Seven countries viz. USA, Australia, Canada, New Zealand, Norway, Denmark and the Netherlands are in the core group of resettlement for Bhutanese refugees. USA alone has offered to resettle over 60,000 Bhutanese refugees from Nepal.
The present scenario in the ensuing refugee crisis can be briefly pointed as the following:
n Nepal government has decided that it would stick to its stand to prioritize repatriation of the refugees with dignity and honor while it will allow the resettlement countries to process for resettlement of the refugees to their countries and will not stop the refugees who desire to resettle in the third countries.
n International Organization for Migration for the resettlement in US has agreed with Nepal government and started interviewing refugees for processing.
n UNHCR is responsible to provide files of the refugee families to the authorized resettlement agencies of the concerned countries.
n More than 3000 cases are attending the proceedings for resettlements now.
n Refugees claim that they are not well informed about resettlement. To let the people make an informed decision, UNHCR has just started distributing information on resettlement in the third countries.
Refugees showed great interest in resettlement but the submission of the declaration of interest for resettlement to UNHCR is not encouraging for the following reasons:
n Refugees are unaware of rehabilitation support in the countries of resettlements.
n There is no adequate information on the resettlement country’s policy on the treatment to the refugee after resettlement with regard to their status such as citizenships, assistance programs, job opportunities and entitlements, social security, issues of cultural heritages, conditions of right to return.
n Compensation of the property left in Bhutan.
n There is a serious threat, intimidation to those who desire to be resettled from the Bhutanese Maoists and few radical youths.
n The newly established security arrangements in the camps have not fully guaranteed their security from the violent opposition.
n Following the various incidents of the destructions of the huts and property of those supporting resettlement there is no successful case of resettlement of any of these displaced, people are trying to locate the area of trust on the offer.
n Above all, the refugees are afraid that they will always be in dept as they may have to take loan to supplement the expensive living in the developed countries including the heavy medical and educational costs as heard.
Today, there is a growing debate on the adequacy of the international refugee regime & role of UNHCR & other international actors. One peculiarity of South Asian refugee-receiving countries, including Pakistan, India, Nepal, & Bangladesh, is that none of them has ratified 1951 Refugee Convention or 1967 Protocol, nor have those countries enacted domestic, & a fortiori regional, frameworks to deal with refugee inflows. It means that governments in the region treat refugees on an ad hoc basis & it considerably limit the role of UNHCR. Traditions of hospitability are strained by resource limitations & internal political concern too.
There have been profound socio-cultural reasons that have pressurized many Bhutanese to leave Bhutan and settle in Nepal. If these reasons can be briefly enumerated, it will be the following:
§ Dilution of ethnic & cultural identity
§ Search for democratic space in Bhutan by Lhotsampas
§ Imposition of cultural values, practices & code of conduct
§ Mandatory Dzonkha language, Kho & Kira dresses
§ Instruments: Retrospective enforcement of Citizenship Act 1985 & Population Census of 1988.
Some Key Questions Related to the Legal Aspects of Bhutanese Refugee Crisis
If we can briefly enumerate Nepal’s position as a case in point of a haven for Bhutanese refugees, the following facts must be highlighted:
§ Nepal is not a party to the UN Refugee Convention & treats asylum seekers other than the Bhutanese & Tibetan populations as illegal immigrants who may be detained at any time
§ She is a party to ICCPR, & to its First & Second Optional Protocols & Torture Convention
§ Nepal nearly hosts nearly 135,000 refugees as of today, the majority of whom are Bhutanese.
§ Section 9 of Immigration Act of 1992 empowers immigration officers within MOH to investigate infractions of immigration regulations & to detain, fine, & deport person charged with their violation.
§ Although Nepal has no official standard refugee policy, it cooperates with UNHCR to assist refugees from Bhutan & Tibet.
§ Bhutanese refugees are subject to a Joint Verification agreement entered into between Bhutan & Nepal in late 2000.
§ Under the agreement, Bhutanese refugees are verified to determine their nationality status at UNHCR run camps with a view to ultimate repatriation to Bhutan.
§ To locate alternate solution to those Bhutanese refugees who cannot return to their country, Nepal entered up agreement with countries of resettlement in the third countries.
§ Massive deforestation and intrusion in labour market
§ Resisting repatriation & joining local politics
§ Serious law and order situation
§ Joining in illicit activities (drug/human trafficking)
§ Involvement in criminal nexus
§ People taking shelter in Nepal under the urban refugee program come from diverse nations such as Iraq, Somalia, Ethiopia, Pakistan, Burma & Afghanistan.
§ Government’s policy of not recognizing individuals under the urban refugee program is hampering their third-country resettlement.
§ Over 50 urban refugees accepted by the US government for resettlement in Sept’06 applied for exit permits.
§ Government says it cannot provide them the documents in the absence of a refugee policy.
§ Government says it only recognizes 107,000 Bhutanese & 12,540 Tibetans who arrived before 1989 as refugees
Fifteen rounds of Nepal-Bhutan Ministerial level talks produced no tangible results. The refugees were subjected to a Joint Verification agreement entered into between Bhutan & Nepal in late 2000. A Joint Verification Team verified 12,000 refugees in Khudnabari Camp & selected only 2.5 percent (293 persons) as bonafide. Disparagingly only those Bhutanese citizens who were accepted as forcibly evicted from Bhutan only have a right to return with full citizenship. It is interesting to note that within a single family the verification team found anti-national & criminals, even a child was found to be under criminal category!
Repatriated refugees were decided to be kept under watch before they are given normal citizens facilities. Nothing was mentioned or agreed with regard to the restitution of the property of the refugees, Government even sponsored occupation on the land and other property of the refugees to other communities. The issue of non-registered refugees has brought uncertainty for their future or hindering their solution. The whole process doesn’t involve a non-partial third party for finding solution to refugees and most astonishingly, international intervention was completely denied.
There is huge frustration, mostly among youths, owing to life becoming more & more difficult to sustain, & lack of any progress in finding a ‘desirable’ solution. There is a sudden surge of radicalism – contributed by political changes in Nepal (Loktantra/Ganatantra voices beginning to take root). Also there have been increased activities of CPB MLM & other youth groups & growing possibility of armed insurgency originating from the refugee camps. Simultaneously threats are meted to individuals & groups promoting and opting ‘comprehensive durable solution’. The refugees desiring to be resettled in third countries are being displaced from camps affected by the CPB MLM and other radicals and there is a growing feeling that HCR is working in tandem with people or groups it finds dealing with more convenient & not considering the involvement of refugees in the decision making process. There has been calls for the closure of IOM & OPE office by the extreme leftwing political outfit advocating total political change in Bhutan. There is deep opposition for the allotment of Armed Security Force in the camps & call for the removal of security post is given from camps by Bhutan Revolutionary Student Union.
§ Government policy on refugees has put the status of hundreds of people in confusion, prompting UNHCR to call for proper legislation.
§ The difference of opinion centres on about 400 people who are classified as ‘urban refugees’ by UNHCR but not recognized by the govt.
§ The issue has led to the government accusing UNHCR of giving refugee status to people without its consent.
§ “UNHCR should not issue refugee & asylum seeker certificates unilaterally & people taking shelter under the UNHCR’s ‘urban refugee programme’ would be treated as illegal immigrants” Home Ministry
§ Nepal cannot provide such a document in the absence of a refugee policy- Ministry of Foreign Affairs
§ UN General Assembly has mandated the refugee body to provide protection & assistance to anyone who flees the country of origin out of fear of persecution or conflict & Nepal must distinguish between refugees & migrants or travelers – UNHCR
§ There are people who arrived here whom we cannot put in limbo because we do have an obligation under the mandate to provide protection to these individuals-UNHCR
§ Statute of the UNHCR passed by the UN GA and mandate to protect refugee through special agreements or under 1951 Convention (Nepal and UNHCR has signed such agreement in 1987)
§ Conventional Refugees and Mandate Refugees
§ Absence of legal provision to regulate Conventional and Mandate refugees
§ Use of Immigration Act against mandate refugee,
§ No use of special power under Immigration Act to exempt refugee and no lenient approach – safe passage to UNHCR and safe custody of UNHCR- by the DOI and even by the courts unlike in India
§ There appears to be some tension with the UNHCR and with the Ministry of Home and DOI resulting to double victimization of asylum seekers
§ No specific national legal provision, however, an asylum seekers or a refugee can exercise the fundamental rights (some universal rights are limited to Nepali only under the Constitution)
§ Nepal’s approach to refugees (for Tibetan and Bhutanese) is based on the humanitarian grounds and protection afforded largely is equivalent to international standards, however, there are reports of refoulment of Tibetan Refugees and asylum-seekers.
§ There exist Camps regulation in Bhutanese Refugees Camps, but not sure about the Tibetan refugees
§ In case of any criminal activities by any refugees, the law of the land applies
§ There exist NUCRA – National Unit for Co-ordination of Refugee Affairs – its mandate – RCU and Camp Units – staffing – looks into technical issues – not substantive legal policy issues such as initiating drafting national policy and law on refugees
§ Department of Immigration – deals with foreigners and includes refugees under foreigners (may not be all but urban refuges)
§ Ministry of Foreign Affairs – Bilateral Dialogue – question on technical knowledge and appears to be conservative to dialogue with externals
§ UNHCR’s initiatives- Eminent Persons-project funded and not substantive follow up by any national institutions
§ Ratify 1951 Refugee Convention and its Protocol
§ UNHCR has the mandate to determine the status of refugee under the agreement
§ Enact law to protect the rights of refugees and to regulate the relationship of the UNHCR and the Government authority to determine the status of the refugees
§ Nepal has human rights obligation not to refoul asylum-seekers and refugee
§ Human Rights Obligation applicable to refugees or asylum seekers – such as under Concluding Remarks -question of implementation
§ Implement the decision of the Supreme Court to ratify the Refugee Convention and enact the law
§ Evaluate the performance of the NUCRA and broaden the scope to draft the refugee policy, law and regulation
§ Start discussion on the nature of the content of proposed Bill
§ Build partnership at the regional level to develop the refugee legal regime