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Ethnic and political tensions play a central role in the current Bhutanese refugee situation in Nepal. Ethnic Nepalese began migrating to southern Bhutan in the nineteenth century and many were granted Bhutanese citizenship by the 1958 Nationality Law.1 However, their growing numbers and the formation of a political party were perceived as a threat to the cultural and political order of Bhutan,2 ruled by the Ngalongs, descendents of Tibetan Buddhists.3 Beginning in the late 1970s, the government of Bhutan introduced a series of progressively discriminatory measures focused on the political, economic, and cultural exclusion of Nepali-speakers (Lhotshampas).4
In particular, two Citizenship Acts, one passed in 1977 and one in 1985, tightened the requirements for obtaining and retaining citizenship.5 The 1985 Bhutan Citizenship Act included provisions for the revocation of citizenship, including for those who have shown any form of disloyalty to the King or country, that are arbitrary and discriminatory in violation of international human rights law.6 The government began enforcing the 1985 act through a census in 1988 that resulted in the mass denationalization of many Lhotshampas.7 The census was implemented only in southern Bhutan, and reports suggest that local government officials made arbitrary census classifications designed to push the Nepali-speaking community out of Bhutan.8
The government of Bhutan soon introduced other Bhutanization measures like the 1989 one nation, one people policy that forced the practice of Drukpa culture through a compulsory dress code and the termination of Nepali language instruction in schools.9 In the early 1990s, the Bhutanese government crushed resistance by ethnic Nepalese and others who protested the policies, which included large public demonstrations and the formation of a political party calling for a multi-party democracy in the early 1990s.10 Some ethnic Nepalese were involved in violent activities, such as the burning of schools and attacks on government officials.11 Schools and health services were suspended in southern Bhutan. Members of the Bhutanese police and army imprisoned, raped, and tortured many of those who were directly, indirectly, or accidentally associated with the demonstrations. Government forces also destroyed houses and forced many ethnic Nepalese off of their lands.12
Tens of thousands of people fled these abuses in Bhutan or were forcibly deported by 1992. Before they crossed the border into India, the Bhutanese government forced many to sign voluntary migration certificates, thus surrendering their rights to Bhutanese citizenship under the nationality laws.13 Some households were given compensation for their property, but often these amounts did not equal the value of the land. Initially, refugees fled overland to West Bengal and Assam in India. However, harassment from the Indian police forced them to move on to southeastern Nepal.14 Aid agencies such as The Lutheran World Federation began to assist the Bhutanese refugees soon after their arrival, and the government of Nepal enlisted the help of UNHCR in late 1991.
The crisis of the early 1990s has evolved into a protracted dispute, with most refugees in Nepal wanting to invoke their right to return to Bhutan15 and the government of Bhutan refusing them entry on the grounds that they are illegal migrants or anti-nationals.16 Of those who fled, approximately ninety thousand individuals were registered in refugee camps in Nepal, while some ten thousand non-registered refugees live outside of the camps in Nepal.17 Another fifteen thousand live in India.18 There are a small number of Sarchop families among the refugees, mostly non-registered, who fled persecution related to the expression of their political views.19
Over the last decade, the government of Nepal and UNHCR have jointly administered the camps with the World Food Program (WFP) providing basic food assistance. Several NGOs, including The Lutheran World Federation, Caritas, Save the Children, Oxfam, Nepal Red Cross Society, and Asian Medical Doctors Association have also operated as implementing partners. The refugees are well organized and are deeply involved with the administration and daily operations of the camps. Bhutan and Nepal have engaged in a series of ministerial-level meetings to resolve the impasse over the ultimate fate of the Bhutanese refugees, but until recently made virtually no progress.
As discussed above, the refugees living in the camps in Nepal were either forcibly expelled from their home areas by the Bhutanese government or were subjected to more generalized persecution in Bhutan, which caused them to flee to Nepal. Persons forcibly exiled are entitled to what is known as the right to return.20 Some of the mechanisms for the enjoyment of this right are discussed below. Others are set forth in voluntary repatriation standards established by UNHCR, and discussed in a subsequent section of this briefing paper.
International human rights law provides for the right to return to ones country. Article 13(2) of the 1948 Universal Declaration of Human Rights (UDHR) states that Everyone has the right to leave any country, including his own, and to return to his country. This language is also reflected in the International Covenant on Civil and Political Rights (ICCPR),21 and the International Convention on the Elimination of all Forms of Racial Discrimination (CERD), the latter of which Bhutan is a signatory. Article 5 of CERD 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:... [t]he right to leave any country, including ones own, and to return to ones country.22
International human rights law also recognizes the right to return to ones former place of residence. For example, Article 12 of the ICCPR recognizes everyones freedom to choose his residence, which incorporates the right to return to ones home area. In some cases, the right to return to ones former place of residence is also supported by the right to family reunification and to protection for the family.23 Recognizing these various rights, the Sub-Commission on the Promotion and Protection of Human Rights has reaffirmed the right of all refugees . . . to return to their homes and places of habitual residence in their country and/or place of origin, should they so wish.24
Moreover, the right of Bhutanese refugees to return to the specific land or property they lost in Bhutan is rooted in Article 12 of the UDHR and Article 17 of the ICCPR, both of which protect individuals from unlawful or arbitrary interference with their privacy, family, home, or correspondence. Numerous resolutions of the U.N. General Assembly and of the Security Council, as well as several peace agreements, recognize the right to return to ones home and property, regardless of whether the original deprivation was arbitrary.25 The right to an effective remedy, contained in ICCPR Article 2(3), requires that Bhutanese refugees should be able to repossess their land and homes after being deprived of these, or if this proves impossible, they should be financially or otherwise compensated.
While the ethnic Nepalese have a legal right to return to their homes in Bhutan and receive compensation for their losses, it is important that this right is implemented in a manner that does not cause additional human rights abuses. The government of Bhutan has engaged in a policy of resettling northern Bhutanese on lands formerly occupied by refugees.26 The right to repossess private property must be balanced against any rights these new northern Bhutanese settlers may have in domestic or international law, using impartial and efficient procedural safeguards.27 In other contexts in which refugees have returned home to find others occupying their land (for example in Bosnia), property claims administrators have attempted to resolve these disputes in a manner that respects the rights of the secondary occupier as well as the first possessor.28
1 Under the 1958 Nationality Law, an adult may obtain Bhutanese citizenship by owning land, residing in Bhutan for ten years, and taking an oath of loyalty to the King.
2 The government of Bhutan feared a repeat of the events in neighboring Sikkim, where a growing Nepalese population had supported a 1975 merger with India, and in North Bengal, India where the militant Nepalese Gorkha National Liberation Front (GNLF) led an unsuccessful but bloody uprising pushing for a separate Nepali state. See Ben Saul, Cultural Nationalism, Self-Determination, and Human Rights in Bhutan, International Journal of Refugee Law, Vol. 12, 2000. According to Yeshey Dorji, the deputy permanent representative of Bhutan to the U.N., What has happened in the neighborhood is very disturbing. Look at Sikkim, Darjeeling, Ladakh. In Sikkim, the original inhabitants are now only 17 percent of the population. In 1990, Nepal had just become a multi-party democracy. The political leaders [of the ethnic Nepalese in southern Bhutan] wanted to take over, to have the same thing happen in Bhutan. It comes down to the question, does Bhutan have the right to exist? Human Rights Watch interview, New York City, May 6, 2003.
3 Bhutan is home to three major ethnic groups: the ruling Ngalongs live in the west, speak Dzongkha, and practice Buddhism; the eastern Sarchops speak Tsangla and practice Buddhism; and the southern Lhotshampas speak Nepali, and are primarily Hindu. See Tang Lay Lee, Refugees from Bhutan: Nationality, Statelessness, and the Right to Return, International Journal of Refugee Law, Vol. 10, No. 1-2, 1998, p. 118.
4 Lhotshampas refers literally to people living in the south.
5 In order to become a citizen by naturalization the 1985 Bhutan Citizenship Act requires: twenty years of residency in Bhutan; the ability to speak, read and write Dzongkha proficiently; good knowledge of the culture and history of Bhutan; a good moral character; no record of imprisonment for criminal offenses in Bhutan or elsewhere; and no record of having spoken or acted against the King, country and people of Bhutan in any manner whatsoever. Furthermore, section 3 in the 1985 act retroactively makes 1958 the cut-off date for citizenship by registration. In these cases, the person must provide land tax receipts or other proof of residency from on or before December 31, 1958.
6 For a more detailed analysis of the 1985 Bhutan Citizenship Act, see Tang Lay Lee, Refugees from Bhutan, p. 118.
7 AHURA Bhutan, Bhutan: A Shangri-La without Human Rights, March 2000; Amnesty International, Bhutan: Human Rights Violations against the Nepali-speaking Population in the South, December 1992; Amnesty International, Bhutan: Forcible Exile, August 1994; Tang Lay Lee, Refugees from Bhutan, p. 118; and U.S. Department of State, Bhutan, Country Report on Human Rights Practices - 2002, March 31, 2003.
10 Ibid. See also Amnesty International, Bhutan: Human Rights Violations, 1992 and Amnesty International, Bhutan: Forcible Exile, 1994.
11 Amnesty International, Bhutan: Human Rights Violations, 1992.
12 Under the 1977 Citizenship Act, a naturalized citizen and their family who successfully applies to emigrate may not reapply for Bhutanese citizenship. Coercion would negate the application; the Act specifically delays loss of citizenship for applications made during times of crises such as war. Amnesty International, Bhutan: Human Rights Violations, 1992; Amnesty International, Bhutan: Forcible Exile, August 1994;Tessa Piper, The Exodus of Ethnic Nepalis from Southern Bhutan, 1995; and Bhutanese Refugee Support Group, Ireland and UK, NGO Response to Initial State Party Report: Bhutan (CRC/C/3/Add.60) under the Convention of the Rights of the Child, 27th Session, November 21, 2000.
13 Amnesty International, Bhutan: Human Rights Violations, 1992 and Amnesty International, Bhutan: Forcible Exile, 1994.
14 D.N.S. Dhakal and Christopher Strawn, Bhutan: A Movement in Exile (New Delhi: 1994) as quoted in Tang Lay Lee, Refugees from Bhutan, p. 118.
15 See the section following for a discussion of the right to return.
16 Representatives of the government of Bhutan have also argued that the refugees are voluntary migrants who followed their political leaders out of Bhutan in the early 1990s. The people were misled by their leaders, they were told they should go stay in the refugee camps for a few months where they would get huts and food, and that a few months later they would return in triumph. The leaders also thought there should be at least one hundred thousand refugees so they could get international attention. They told people living in India and Nepal to come live in the camps, and they would be rewarded with land in Bhutan. Human Rights Watch interview with Yeshey Dorji, the deputy permanent representative of Bhutan to the U.N., New York City, May 6, 2003.
According to the Thrimshung Chhenpo Tsa Wa Sum (Law on Treason and Anti-Nationals), anti-nationals are those aversed [sic] to the development of the Kingdom of Bhutan and those who assist the enemies. The National Security Act of 1992 (NSA) criminalized anti-national activities such as treason, undermining the security and sovereignty of Bhutan by creating or attempting to create disaffection among the people, creating hostility or misunderstanding between the government and the people of Bhutan, and promoting or attempting to promote feelings of hatred between different religious, racial or language groups.
17 U.S. Committee for Refugees, World Refugee Survey 2002, p. 152 (citing Nepalese authorities). Currently, 102,140 refugees live in the camps jointly administered by Nepal and UNHCR (Refugee Coordination Unit, Ministry of Home Affairs, Nepal, November 30, 2002).
18 U.S. Committee for Refugees, World Refugee Survey 2002, p. 149.
19 Amnesty International, Bhutan: Crackdown on anti-nationals in the east, January 1998.
20 The right to return encompasses the right of refugees and others forcibly exiled to return to their country and recover lost property. In addition to its legal basis under treaty law, the right to return has increasingly been recognized as a norm of customary international law. SeeCurrent Trends in the Right to Leave and Return, U.N. Doc. E/CN.4/Sub.2/1985 (emphasizing that the right to return is part of the whole body of human rights, and stating that the "concordance of State practice and common opinio juris, [the right to return] created a legal obligation according to customary international law.").
21 International Covenant on Civil and Political Rights, G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force Mar. 23, 1976, art. 12. The right to return under Article 12(4) of the ICCPR is not subject to restrictions to protect national security, public order, public health or morals, or the rights and freedoms of others. The Human Rights Committee, the authoritative U.N. body for interpreting the ICCPR, has ruled, "there are few, if any, circumstances in which deprivation of the right to enter one's own country could be reasonable."
22 International Convention on the Elimination of All Forms of Racial Discrimination, 660 U.N.T.S. 195, entered into force Jan. 4, 1969. Bhutan signed the CERD in 1973. Under article 18 of the Vienna Convention on the Law of Treaties, a state that has signed but not yet ratified a treaty is obliged to refrain from acts that would defeat the object and purpose of a treaty.
23 International Covenant on Economic, Social, and Cultural Rights, 1966, entered into force January 3, 1976, Art. 10; Convention on the Rights of the Child (CRC), U.N. Doc. A/44/49, 1989, entered into force September 2, 1990, Art. 9. Bhutan ratified the CRC in 1990.
24 Sub-Commission on the Promotion and Protection of Human Rights, Housing and Property Restitution in the Context of the Return of Refugees and Internally Displaced Persons, Resolution 1998/26.
25 With regard to Bosnia, see U.N. Security Council resolutions 947 (1994) and 859 (1993). See also Report of the Committee on the Elimination of Racial Discrimination, U.N. Doc. A/50/18 (1995) (requiring that persons be given opportunity to safely return to the places they inhabited before the beginning of the conflict.). With regard to Kosovo, see U.N. Security Council resolutions 1199 (1998), 1203 (1998), 1239 (1999), and 1244 (1999). With regard to Israel, see U.N. General Assembly resolutions 3236 (1974), 3089(D) (1974). With regard to Cyprus, see U.N. General Assembly resolutions 253 (1983), 30 (1979), 3212 (1974), and U.N. Security Council resolutions 774 (1992), 361 (1974). With regard to Cambodia, see Agreements on a Comprehensive Political Settlement of the Cambodia Conflict (1991). With regard to Guatemala, see Agreement on Identity and Rights of Indigenous Peoples (1995) and Agreement on Resettlement of the Population Groups Uprooted by the Armed Conflict (1994). With regard to Rwanda, see Arusha Peace Agreement (1993).
26 Habitat International Coalition, Habitat International Report on Fact Finding Mission to Bhutan, 2002 [online], http://www.geocities.com/bhutaneserefugees/habitat_ffm.html (retrieved March 7, 2003).
27 For example, in 1998, the Sub-Commission on the Promotion and Protection of Human Rights urged all States to ensure the free and fair exercise of the right to return to ones home and place of habitual residence by all refugees and internally displaced persons and to develop effective and expeditious legal, administrative and other procedures to ensure the free and fair exercise of this right, including fair and effective mechanisms designed to resolve outstanding housing and property problems. See Sub-Commission on the Promotion and Protection of Human Rights, resolution 1998/26, August 26, 1998.
28 For example, the Dayton Agreement set up the Commission for Real Property Claims (CRPC) and the Office of the High Representative Ombudsperson to resolve property disputes. See Dayton Agreement, Annex 7 (1995).