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III. The Status Verification Process
Exercising the right to return to their home country remains an unfulfilled dream for the Bhutanese refugees, and the current situation in the camps is disheartening. While humanitarian assistance in the camps has ensured that their basic survival needs have been met, the refugees live in highly crowded conditions. They have experienced growing frustration, anxiety, and depression about their lack of a nationality, their uncertain future, and their inability to pursue higher education and employment. Recent cases of sexual and gender-based violence in the camps highlight the problems that emerge in long-standing refugee situations, such as tensions with the local community, increased intensity of domestic violence, and vulnerability of young girls and women to trafficking.29 Furthermore, UNHCR has reported a worrying increase in the number of mental health problems in the camps, including seventeen suicides since November 2001.30 As Prahlad K., a member of the refugee-run camp committee reflected, People keep thinking, worrying about the future. Its mental torture.31
Given the protracted nature of the refugee situation in Nepal, all parties, including the governments of Nepal and Bhutan, UNHCR, and most importantly the refugees themselves, are eager to achieve a resolution. As one elderly refugee told Human Rights Watch, Bhutan is my motherland. I dont want to stay here, even though we have the aid of other countries.32 The first step in the realization of the Bhutanese refugees right to return has been the status verification and categorization process pursued by the governments of Nepal and Bhutan, discussed in the following section.
A breakthrough in the tenth round of ministerial talks in December 2000 led to the creation of a Joint Verification Team (JVT) comprised of representatives from the governments of Bhutan and Nepal to verify the refugees status. This process has excluded UNHCR, although the agency did provide funds to the government of Nepal for the process, and it provided technical advice to both governments on legal issues related to the status of refugees and durable solutions.33 The Bhutanese and Nepalese governments have agreed upon a system of categorization into four groups: (1) bona fide Bhutanese who were forcibly evicted, (2) Bhutanese who voluntarily migrated, (3) non-Bhutanese, and (4) Bhutanese who have committed crimes. To date, only 12,096 individuals from Khudanabari camp have been interviewed, and the results of their categorization have yet to be announced.34 No verification whatsoever has been done in the other six refugee camps in Nepal.
As of this writing, it is not known what percentage of the refugees will be placed into each of these categories. Each category presents particular concerns, especially category three, for non-Bhutanese. An independent human rights organization, AHURA-Bhutan, compiled a detailed digital database of the interviewed refugees and their documents in Khudanabari camp. They found that over 66 percent of the residents have Bhutanese citizenship documents and 25 percent have land tax receipts (which was a basis for citizenship under the 1958 Nationality Law). This documentation challenges the Bhutanese governments claims that the majority of refugees are illegal migrants or citizens of India and Nepal who moved into the camps to take advantage of international humanitarian assistance.
In the thirteenth and most recent round of talks held in late March 2003, Bhutan and Nepal announced that they would declare the categorization results at the next round of talks in May, and that voluntary repatriation forms would be distributed to those classified in categories one, two, and four.35 Human Rights Watch welcomes the announcement that all three categories recognized as Bhutanese will be allowed the opportunity to repatriate, but wants to ensure that their human rights are respected. In particular, those categorized as having committed crimes should be protected from refoulement in accordance with customary law,36 afforded due process of law during any criminal proceedings, and should not be prosecuted for the peaceful expression of their political views. All returning refugees, regardless of their classification, should be entitled to the same opportunities to file claims for their land, seek employment, return to their region of origin, and enjoy full citizenship privileges and freedoms. Furthermore, all refugees should have access to a fair, independent, and efficient appeal process to contest their categorization.
Human Rights Watch is also concerned about the slow pace of the current verification and categorization process. If continued at this rate, completing all seven camps would require several years. The prolonged wait for the results of Khudanabari camp, the lack of transparency about the categorization criteria, and concerns that the government of Bhutan remains reluctant to take back refugees, risk creating an environment in which refugees, if finally given a window of opportunity to repatriate, may feel pressured to return before conditions protecting their safety and dignity are established.
Human Rights Watch is concerned about the role of women in the verification and categorization process. In Khudanabari camp, women had minimal participation during the verification interview unless they were heads of household. As Kala G., a forty-seven year old woman from Khudanabari camp stated, They asked my husband about why he left Bhutan. But I was not given a chance to tell my story, and I was tortured more than he was.37 Except for one woman on the Nepal team who was later replaced, the entire Joint Verification Team was comprised of men. The group format of the interviews as well as the absence of women on the JVT make it difficult for rape, domestic violence, and sexual assault survivors to discuss either their reasons for flight or their hesitations about return. Several women Human Rights Watch interviewed reported that they were survivors of rape in Bhutan.
Finally, the continued closure of the screening post at Kakarbhitta by the government of Nepal and UNHCR (on the border of India and Nepal) since January 2001 severely limits access to asylum procedures. Although some asylum seekers have tried to appeal directly to the Refugee Coordination Unit (RCU) district headquarters, few are familiar with this process or have been provided with the appropriate guidance from camp-level RCUs or UNHCR. Those who did apply said they received no response despite repeated applications.
The situation of non-registered refugees or Indian and Nepali citizens who married refugees is even more precarious than for other refugees. The registration procedures are discriminatory: if a refugee woman marries a local Nepali man, their children cannot be registered in the camp, whereas if a refugee man marries a local Nepali woman, their children are registered. These rules violate Article 9 of CEDAW and Articles 7 and 8 of CRC, both of which Bhutan and Nepal have ratified. Despite strong arguments based on family reunification grounds, those individuals who are not registered were not included with their families during verification interviews. Dil Maya S., a refugee woman in her mid-twenties, told Human Rights Watch,
The lack of safeguards for refugees like Dil Maya S. and her children, as well as the problems about the status verification process discussed above create the risk of statelessness for many refugees, and deny women fundamental equality.
The right to a nationality is a fundamental human right. Article 15 of the UDHR, to which all member states of the United Nations are deemed to adhere, states that "[e]veryone has the right to a nationality." The CRC guarantees the right of every child to acquire a nationality,39 and requires states to "undertake to respect the right of the child to preserve his or her identity, including nationality."40 Furthermore, "[w]here a child is illegally deprived of some or all elements of his or her identity, States Parties shall provide appropriate assistance and protection, with a view to speedily reestablishing his or her identity."41
The Universal Declaration of Human Rights further declares at article 15, "No one shall be arbitrarily deprived of his nationality." Although there is no exact counterpart in the ICCPR, this right is implicit in the rights to freely enter and leave one's own country and the right of children to acquire nationality.42 A state act can be deemed "arbitrary" under international human rights law if it lacks a basis in law, flouts requirements of due process and fair procedure, or in other ways trammels other basic human rights norms, such as the norm against invidious discrimination.
The right to a nationality finds its counterpart in the norm against statelessness, which is embodied in several treaties and evolving legal principles. Any time a government withdraws nationality from an individual or group, there is a prospect that those persons will be rendered stateless. The theoretical availability of an alternate nationality upon application does not negate this prospect.43 Similarly, the imposition of nationality without an individual's consent is generally not recognized as valid in modern international law.44
While neither Nepal nor Bhutan is party to the Convention on the Reduction of Statelessness, this treaty and other international instruments are relevant in that they illustrate evolving norms and state practice in this area. This convention provides that a state shall not deprive a person of nationality if such deprivation would render her stateless.45 It also reaffirms, in article 9, that a state may not "deprive any person or group of persons of their nationality on racial, ethnic, religious or political grounds."
The verification exercise risks depriving some of the residents of the camps in Nepal of their nationalities. Depending on how the classifications are applied in practice, individuals returning to Bhutan may be denied their right to Bhutanese nationality (see discussion below). Moreover, some camp residents who are considered ineligible to return to Bhutan may in fact be Bhutanese citizens, and therefore denied the ability to enjoy their nationality. Finally, individuals such as the woman described above, who has a mixed marriage, may be forced to choose between rendering their children or themselves stateless if adequate safeguards are not provided. This is why Human Rights Watch recommends that all individuals determined to be ineligible to return to Bhutan are given full appeal rights and that procedures are put in place to ensure that no one is deprived of their nationality or rendered stateless as a result of the verification process.
Several UNHCR Executive Committee (ExCom) Conclusions and General Assembly Resolution 50/152 confirm the special role that UNHCR must play when statelessness is a potential eventuality.46 However, the agency has not been actively involved in the Nepal verification exercises. Human Rights Watch urges UNHCR to become more actively involved to apply its mandate to address statelessness47 by ensuring that these exercises do not render anyone returning to Bhutan or remaining in Nepal stateless.
The status verification exercise must become more transparent and should be amended to conform with guidelines established by UNHCR on refugee status determination procedures.48 In order to avoid depriving people of their nationality or rendering them stateless, the governments of Bhutan and Nepal should improve the current status verification and categorization process by inviting the full and equal participation of UNHCR in the Joint Verification Team and initiating a fair and independent appeal process. The classifications and attendant citizenship privileges determined by the verification exercise are closely linked to the success or failure of a voluntary repatriation program for Bhutanese refugees that respects human rights standards of return in conditions of safety and dignity.
29 UNHCR Kathmandu, Nepal Information Note, Issue 2, December 24, 2002.
30 Human Rights Watch interview with Takeshi Moriyama, programme officer, UNHCR Sub-Office, Jhapa, March 19, 2003.
31 Human Rights Watch interview with Prahlad K., sub-sector head, Goldhap camp, April 3, 2003.
32 Human Rights Watch interview with Loknath R., Khudanabari camp, March 23, 2003.
33 UNHCR, Global Report 2001, p. 311.
34 E-mail message from Giulia Ricciarelli-Ranawat, protection officer, UNHCR-Nepal to Human Rights Watch, May 6, 2003.
35 Human Rights Watch interview with Foreign Minister N.B. Shah, government of Nepal, Kathmandu, April 11, 2003.
36 Neither Nepal nor Bhutan is party to the 1951 Geneva Convention Relating to the Status of Refugees. They are both, however, bound by the international customary law norm of non-refoulement, which protects refugees from being returned to a place where their lives or freedom are under threat because of persecution. International customary law is defined as the general and consistent practice of states followed by them out of a sense of legal obligation. That non-refoulement is a norm of international customary law is well established. See, e.g. Executive Committee (ExCom) Conclusion No. 17, Problems of Extradition Affecting Refugees, 1980; No. 25, General Conclusion on International Protection, 1982; Encyclopedia of Public International Law, Vol. 8, p. 456. UNHCRs ExCom stated that non-refoulement was acquiring the character of a peremptory norm of international law, that is, a legal standard from which states are not permitted to derogate and which can only be modified by a subsequent norm of general international law having the same character. See ExCom Conclusion No. 25, General Conclusion on International Protection, 1982. The Executive Committee is UNHCR's governing body. Since 1975, ExCom has passed a series of Conclusions at its annual meetings. The Conclusions are intended to guide states in their treatment of refugees and asylum seekers and in their interpretation of existing international refugee law.
37 Human Rights Watch interview with Kala G., Khudanabari camp, March 21, 2003.
38 Human Rights Watch interview with Dil Maya S., Khudanabari camp, March 23, 2003.
39 CRC, art. 7(1).
40 Ibid, art. 8(1).
41 Ibid, art. 8(2).
42 ICCPR, arts. 12(2) and (4) and 24(3).
43 See, e.g. Convention on the Reduction of Statelessness, 989 U.N.T.S. 175, entered into force Dec. 13, 1975, art. 7(1) and 7(2), which provides that renunciation of nationality, or application for naturalization in a foreign country, may not be grounds for denationalization unless the person concerned possesses, acquires, or has been accorded assurance of acquiring the nationality of that foreign country.
44 Ruth Donner, The Regulation of Nationality in International Law, sec. 3.1 "Imposition of Nationality," pp. 160-165 and Restatement of the Law Third, The Foreign Relations Law of the United States, sec. 211, comment d at p. 116 and note 2 at pp. 117-118 (American Law Institute, Washington, D.C.: 1986).
45 Convention on the Reduction of Statelessness, art. 8, 989 U.N.T.S. 175, entered into force Dec. 13, 1975.
46 The Executive Committee of UNHCR issued a Conclusion in 1995 which significantly broadened UNHCRs role concerning statelessness. Executive Committee Conclusion 78 on the Prevention and Reduction of Statelessness and the Protection of Stateless Persons acknowledges the responsibilities already entrusted to the High Commissioner for stateless refugees and with respect to the reduction of statelessness, and encourages UNHCR to continue its activities on behalf of stateless persons, as part of its statutory function of providing international protection and of seeking preventive action. The Executive Committee further requested in its Conclusion that UNHCR provide relevant technical and advisory services pertaining to the preparation and implementation of nationality legislation to interested states. These requirements were confirmed in General Assembly Resolution 50/152 of December 21, 1995.
47 UNHCRs mandate concerning statelessness derives from article 11 of the 1961 Convention on the Reduction of Statelessness which provides for a body to which a person claiming the benefit of this Convention may apply for the examination of his claim and for assistance in presenting it to the appropriate authority. This function has been entrusted to UNHCR and affirmed by General Assembly resolutions 3274 (XXIV) of December 10, 1974 and 31/36 of November 30, 1976.
48 UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status (Geneva: UNHCR, January 1992). In particular, see the sections relating to the cessation of refugee status, pp. 26-32.