VII.  INTERNATIONAL STANDARDS

This report addresses the responsibilities and sometimes failures of governments and UNHCR to protect Bhutanese refugee women from discrimination and gender-based violence in Nepal.  International customary and treaty law protect the human rights of refugees. 

Nepal has a series of international obligations to ensure the rights of all persons, including Bhutanese refugees, who are "within its territory and jurisdiction."[175]  Donor and resettlement governments also have responsibilities to protect and assist refugees.  When donor governments adequately fund the refugee programs of host governments such as Nepal, or agencies such as UNHCR, they are fulfilling their international cooperation obligation. [176]

Nepal is obligated to protect refugees from human rights abuses defined in, among other treaties, the International Covenant on Civil and Political Rights (ICCPR) and the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment.[177]  Both Bhutan and Nepal are party to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and the Convention on the Rights of the Child (CRC).[178]  They must ensure that domestic law and its enforcement meet their international obligations to protect the rights of women and children.

International law protects the right of women and children refugees to be free from discrimination in the enjoyment of their rights.[179]  They also have the right to be protected from violations of their bodily integrity.[180]  Women refugees, as "persons," must also be treated equally before courts and tribunals,[181] including in the verification and categorization process described in this report.[182]

Although primary responsibility resides with governments when they fail to protect refugees, the U.N. General Assembly has entrusted UNHCR with providing international protection to refugees, and with seeking permanent solutions for the problem of refugees by assisting governments.[183]  This protection "revolves around ensuring that refugees and others in need of international protection are recognized and granted asylum, and that their basic human rights are respected in accordance with international standards."[184]  UNHCR has formulated several important policies and guidelines that give detailed guidance on how the agency should perform these functions.  For example:

• The agency's role in camp settings is governed by its Handbook for Emergencies,[185] which gives detailed guidelines for setting up and administering assistance and protection in refugee camps.
• The agency's obligations toward refugee women and children are set out in its Guidelines on the Protection of Refugee Women,[186]Sexual and Gender-Based Violence Against Refugees, Returnees, and Internally-Displaced Persons:  Guidelines for Prevention and Response,[187]Guidelines on Protection and Care of Refugee Children  (Guidelines on Refugee Children),[188]and Guidelines on Policies and Procedures in Dealing with Unaccompanied Children Seeking Asylum.[189]

Protection from Violence

International human rights law establishes state accountability for abuses by private actors and requires states to show due diligence in preventing and responding to human rights violations. [190]   The due diligence requirement extends to a government's responsibility to address violence against women.  In her first report, the U.N. Special Rapporteur on violence against women, its causes and consequences emphasized, "In the context of norms recently established by the international community, a State that does not act against crimes of violence against women is as guilty as the perpetrators.  States are under a positive duty to prevent, investigate and punish crimes associated with violence against women." [191]  

The United Nations reaffirmed this obligation in the Declaration on the Elimination of Violence Against Women, stating that governments have an obligation to "prevent, investigate, and, in accordance with national legislation, punish acts of violence against women, whether those acts are perpetrated by states or by private persons." [192]   A state's consistent failure to do so amounts to unequal and discriminatory treatment, and constitutes a violation of the state's obligation to guarantee women equal protection of the law. [193]

Declarations in international conference documents, notably the 1994 Cairo Programme of Action on Population and Development and the 1995 Beijing Declaration and Platform for Action, have led to increasing recognition of women's rights to sexual autonomy.[194]  The Platform for Action establishes that "human rights of women include their right to have control over and decide freely and responsibly on matters related to their sexuality, free of coercion, discrimination and violence."[195]  When a woman confronts violence and discrimination, her right to make decisions about her sexual relations, as well as her right to physical security and bodily integrity, are violated.[196]

Violence against women includes abuse by intimate partners, and states are legally obligated to ensure that laws governing marital relations are non-discriminatory and criminalize violations of bodily integrity.   The Special Rapporteur on violence against women has noted that a government's responsibility to prevent and respond to domestic violence is not confined to enacting domestic violence laws and punishing perpetrators of domestic violence.  Its obligations extend to providing funding and support for complementary mechanisms, including victim support services, shelters, documentation of domestic violence, training for government personnel, and education. [197]

The CEDAW Committee recommends that effective complaints procedures and remedies, including compensation, should be provided to survivors of gender-based violence.[198]  More specifically:

(t) States parties should take all legal and other measures that are necessary to provide effective protection of women against gender-based violence, including, inter alia:

(i) Effective legal measures, including penal sanctions, civil remedies and compensatory provisions to protect women against all kinds of violence, including, inter alia, violence and abuse in the family, sexual assault and sexual harassment in the workplace;

(ii) Preventive measures, including public information and education programmes to change attitudes concerning the roles and status of men and women;

(iii)  Protective measures including refuges, counseling, rehabilitation and support services for women who are the victims of violence or who are at risk of violence.[199]

Gaps in Nepalese law violate women and girls' right to protection from violence and preclude the punishment of perpetrators.  The thirty-five-day statute of limitations for registering complaints about rape and other forms of sexual violence tightly constrains victims' options. [200]   This provision fails to account for factors like social stigma, fear of retaliation, and lack of awareness about legal protections that may inhibit a survivor of sexual assault from coming forward immediately.  Procedural obstacles, including the responsibility placed on the victim to name a perpetrator, and the burdensome requirements for obtaining legally admissible medical evidence also impede survivors' ability to prosecute cases.  The lack of domestic violence legislation obstructs survivors of partner violence from finding legal redress and creates an environment of impunity for abusers.

Human rights law also requires that governments address the legal and social subordination women face in their families and marriages.  CEDAW provides that states "shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations." [201] In particular, states are required to afford to women the right to enter into marriage only with their free and full consent, [202] equal rights with their spouses in marriage and during any separation or divorce, [203] equal parental rights and responsibilities, [204] and equal rights with regard to the number and spacing of their children. [205]

CEDAW explicitly acknowledges social and cultural norms as the source of many women's human rights abuses and obliges governments to take appropriate measures to address such abuses.  CEDAW requires states to "modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women." [206]

Discriminatory provisions in Nepal's polygamy laws, and the lack of enforcement that permits men freely to take second wives illegally, make women vulnerable to emotional, economic, and physical abuse.  The Country Code permits a man to take a second wife without the permission of his first wife in several situations, including if she is childless or if she has physical or mental health problems. [207]   Women are not granted similar permission to take a second husband, and while women only have three months to file complaints alleging polygyny, men have one year to file a case alleging polyandry.  In General Recommendation No. 21, the CEDAW committee noted that "[p]olygamous marriage contravenes a woman's right to equality with men, and can have such serious emotional and financial consequences for her and her dependents that such marriages ought to be discouraged and prohibited." [208]

By implementing discriminatory camp registration procedures that prevent refugee women from fully escaping abusive relationships, the government of Nepal and UNHCR have failed to fulfill their joint obligation to prevent and effectively respond to gender-based violence.  UNHCR must insist that Nepal change camp registration procedures to avoid violating two of UNHCR's "key commitments to refugee women." [209]   These include the responsibility to: 

Register refugee women individually and provide them with relevant documentation to ensure their individual security, freedom of movement and access to essential services.  Refugee women and men are to participate equally in the registration process…. 

Ensure refugee women's direct and indirect participation in the management of food and non-food item distribution so that these goods are directly controlled by adult female household members. [210]

The discriminatory camp registration procedures in Nepal's refugee camps are also not in conformity with several UNHCR Executive Committee conclusions and U.N. General Assembly resolutions calling for the elimination of discrimination against refugee women, protection from gender-based violence, and full access to humanitarian aid.  A 1991 Economic and Social Council resolution encourages " Member States and relevant organizations to provide access to individual identification and registration documents, on a nondiscriminatory basis, to all refugee women and, wherever possible, children, irrespective of whether the women and children are accompanied by male family members." [211]

Gender Discrimination in the Transfer of Citizenship

CEDAW and the CRC prohibit gender discrimination with respect to acquiring or passing on a nationality.  CEDAW provides that states "shall grant women equal rights with men with respect to the nationality of their children" and the "same rights and responsibilities as parents, irrespective of their marital status, in matters relating to their children." [212]   The CRC protects children from discrimination in the enjoyment of their rights, including the right to acquire a nationality "irrespective of the child's or his or her parent's or legal guardian's…sex…or other status."[213] Nepalese law violates international human rights law by denying women the ability to transfer citizenship to their children and by preventing children from enjoying their right to acquire a nationality free from discrimination based on their parent's sex. [214]   Camp procedures follow Nepalese law and prevent Bhutanese refugee women from registering their children if they do not have a refugee father registered in the camps. 

           These discriminatory registration procedures may result in the violation of refugee women's other civil and political rights.  International human rights law guarantees women equal rights with men as to marriage, including the "same right freely to choose a spouse." [215]   However, camp registration procedures may prevent a refugee woman from marrying the partner of her choice because she may fear that her children will lose eligibility for Bhutanese citizenship and aid in the camps.  Furthermore, she may be unable to exercise her right to return to Bhutan once repatriation starts if doing so would separate her from her children.[216]  International human rights law enshrines freedom of movement and the right to return to one's country in the UDHR and ICCPR. [217]

These discriminatory registration procedures may also render children stateless and deprive them of access to humanitarian aid like food, clothes, and shelter.  Under international human rights law, every child has the right to acquire a nationality. [218]   The CRC requires "State Parties to ensure implementation of these rights in accordance with their national law and their obligations under the relevant international instruments in this field, in particular where the child would otherwise be stateless.  States Parties [should] undertake to respect the right of the child to preserve his or her identity, including nationality." [219]  

Participation in the Verification and Categorization Process

The governments of Nepal and Bhutan have international human rights obligations to ensure that women are able to participate in the verification and categorization process on an equal basis with men.  Article 2(d) of CEDAW stipulates that states must refrain from any practice that discriminates against women and ensure that public authorities and institutions also  comply with this obligation.[220]  Article 15(4) of CEDAW further provides that "States Parties shall accord to men and women the same rights with regard to the law relating to the movement of persons and the freedom to choose their residence and domicile."  By using a camp registration system that prevents women from applying for repatriation independently, by directing interview questions to male heads of households, and by failing to employ techniques to address gender-specific problems, the governments of Bhutan and Nepal have not met their obligations to refrain from discriminatory practices against refugee women.

The governments of Bhutan and Nepal must take special measures to facilitate the participation of women in the verification and categorization process.  Article 4(1) of CEDAW clarifies that the "[a]doption by States Parties of temporary special measures aimed at accelerating de facto equality between men and women shall not be considered discrimination."[221]  UNHCR's 1991 Guidelines on the Protection of Refugee Women sets international standards for promoting women's full participation in refugee status determination interviews.  These guidelines direct authorities to:

 

• "afford opportunities for the women as well as the men in a family to provide information relevant to the determination of refugee status";
• "implement gender-sensitive techniques during interviews, including giving women the opportunity to be questioned out of the hearing of members of their family";
• "institute programmes to ensure that women have equal access to the procedures for voluntary repatriation so that those who want to return are able to do so and that those fearing return are provided protection against refoulement"; and
• "employ women as interviewers and interpreters for purposes of determining status." [222]