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:
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:
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
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
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:
175 See ICCPR, art 2. One of Nepal’s obligations is not to send refugees to a place where their lives or freedom are under threat from persecution, or nonrefoulement, provided for in article 33 of the Refugee Convention. Nepal is not party to the Refugee Convention; however the government is still bound by nonrefoulement as an accepted principle of international customary law. International customary law is defined as the general and consistent practice of states followed by them out of a sense of legal obligation. That nonrefoulement is a norm of international customary law is well-established. See, e.g., ExCom Conclusion No. 17, Problems of Extradition Affecting Refugees, 1980, and No. 25, General Conclusion on International Protection, 1982.
176 The Preamble to the Refugee Convention underlines the “unduly heavy burdens” that sheltering refugees may place on certain countries and states “that a satisfactory solution of a problem of which the United Nations has recognized the international scope and nature cannot therefore be achieved without international cooperation.” Numerous conclusions of UNHCR’s Executive Committee also reiterate the need for international protection responsibility sharing, particularly to assist host countries in coping with large refugee influxes. Governments are also playing a critical protection and responsibility function when they agree to take in or “resettle” refugees.
177 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, U.N. G.A. Res. 39/46, 39 U.N. GAOR Supp. No. 51, p. 197, U.N. Doc. E/CN.4/1984/72, Annex, 1984, entered into force June 26, 1987, and acceded to by Nepal on March 1, 1971.
178 Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), G.A. Res. 34/180, U.N. Doc. A/34/46, 1979, ratified by Nepal on May 22, 1991 and by Bhutan on September 30, 1981.
179 See ICCPR, art. 2(1): "Each State Party to the Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” See also, CEDAW, art. 1; CRC, art. 2.
180 See, e.g. ICCPR, art. 6 (right to life), art. 7 (freedom from torture, cruel, inhuman or degrading treatment).
181 See ICCPR, art. 14(1).
182 The Human Rights Committee has broadly interpreted the phrase “suits at law” for which article 14(1) applies, in addition to criminal cases. See, e.g. Yl. v. Canada, No. 112 (1981).
183 Statute of the Office of the United Nations High Commissioner for Refugees, GA Res. 428(V), December 14, 1950.
184 “UNHCR’s Protection Mandate,” UNHCR 2002 Global Appeal, p. 21.
185 UNHCR, Handbook for Emergencies.
186 UNHCR, Guidelines on the Protection of Refugee Women.
187 UNHCR, Sexual and Gender-Based Violence.
188 UNHCR, Guidelines on Refugee Children.
189 UNHCR, Guidelines on Policies and Procedures in Dealing with Unaccompanied Children Seeking Asylum (Geneva: UNHCR, 1997).
190 In its General Recommendation 19 on violence against women and state obligations, the Committee on the Elimination of Discrimination against Women (CEDAW Committee) emphasized: “States may also be responsible for private acts if they fail to act with due diligence to prevent violations of rights or to investigate and punish acts of violence.” CEDAW Committee, General Recommendation No. 19, para. 9.
191 Special Rapporteur on violence against women, its causes and consequences, “Preliminary Report Submitted by the Special Rapporteur on violence against women, its causes and consequences, Ms. Radhika Coomaraswamy, in accordance with Commission on Human Rights resolution 1994/45,” (Fiftieth Session), U.N Document E/CN.4/1995/42, November 22, 1994, para. 72.
192 Declaration on the Elimination of Violence against Women, G.A. res. 48/104, 48 U.N. GAOR Supp. (no. 49) at 217, U.N. Doc. A/48/49 (1993), art. 4.
193 See CEDAW, art. 15, and ICCPR, art. 26. See also, Committee on the Elimination of Violence Against Women (CEDAW Committee), General Recommendation 19, Violence against women, (Eleventh session, 1992), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI\GEN\1\Rev.1 at 84 (1994) (contained in document A/47/38), para. 6. For further discussions of international obligations with respect to violence against women by private actors, see Dorothy Q. Thomas and Michele Beasley, “Domestic Violence as a Human Rights Issue,” Human Rights Quarterly, vol. 15, no. 1 (February 1993); Human Rights Watch, Global Report on Women's Human Rights (New York: Human Rights Watch, 1995), pp. 39-44, and Ken Roth; “Domestic Violence as an International Human Rights Issue,” in Rebecca J. Cook, Human Rights of Women: National and International Perspectives (Philadelphia: University of Pennsylvania Press, 1994), p. 326.
194 United Nations, Programme of Action of the United Nations International Conference on Population and Development (New York: United Nations Publications, 1994), A/CONF.171/13, 18 October, 1994 and United Nations, Beijing Declaration and Platform for Action (New York: United Nations Publications, 1995), A/CONF.177/20, 17 October 1995.
195 United Nations, Beijing Declaration and Platform for Action, paragraph 223.
196 ICCPR, art. 23; and UDHR, arts. 3 and 16.
197 Special Rapporteur on violence against women, its causes and consequences, “Preliminary Report Submitted by the Special Rapporteur on violence against women, its causes and consequences, Ms. Radhika Coomaraswamy, in accordance with Commission on Human Rights resolution 1995/85,” (Fifty-second Session), U.N Document E/CN.4/1996/53, February 6, 1996, para. 141.
198 CEDAW Committee, General Recommendation 19, art. 24(i).
200 Muluki Ain 2020 [Country Code 1963], chapter on Rape, number 1.
201 Ibid., art. 16(1).
202 Ibid., art. 16(1)(b).
203 Ibid., art. 16(1)(c). See the Universal Declaration of Human Rights, art. 16, for rights to marry, equal rights during marriage and at its dissolution, and requirement for free and full consent.
204 CEDAW, art. 16(1)(d).
205 Ibid., art. 16(1)(e).
206 CEDAW, art. 5(a).
207 Muluki Ain 2020 [Country Code 1963], chapter on Marriage, no. 9. See footnote 39 for the text of the law.
208 CEDAW Committee, Equality in marriage and family relations, General Recommendation 21, (thirteenth session, 1992), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.1 at 90 (1994), no. 14. The Human Rights Committee has said: “It should also be noted that equality of treatment with regard to the right to marry implies that polygamy is incompatible with this principle. Polygamy violates the dignity of women. It is an inadmissible discrimination against women. Consequently, it should be definitely abolished wherever it continues to exist.” Human Rights Committee, General Comment 28, Equality of rights between men and women, para. 24.
209 Although the manuals are not binding law, they provide a set of guidelines by which the behavior of UNHCR and governments may be judged. The U.N. General Assembly has endorsed the Guidelines on the Protection of Refugee Women and several ExCom conclusions related to the protection and participation of refugee women. U.N. G.A. Res. 43/117/OP8 (A/Res/43/117), G.A. Res. 44/137/OP9 (A/Res/44/137), G.A. Res. 45/140/OP6 (A/Res/45/140), and G.A. Res. 48/116/OP6 (A/Res/48/116).
210 UNHCR, Sexual and Gender-Based Violence, p. 30. The other three commitments are to develop integrated country level strategies to address sexual and domestic violence, ensure 50 percent representation of women in all management committees, and the provision of sanitary materials to all women and girls of concern to UNHCR.
211 U.N. Economic and Social Council Resolution 1991/23, OP5, May 30, 1991. See also G.A. Res. 35/135 (A/Res/35/135), G.A. Res. 47/105 (A/Res/47/105), G.A. Res. 50/182 (A/Res/50/182), and G.A. Res. 52/132 (A/Res/52/132). ExCom Conclusion No. 91 (2001) states “refugees should be registered on an individual basis,” and several other conclusions provide specific protections for refugee women, including ExCom Conclusions No. 39 (1985), No. 64 (1990), and No. 73 (1993).
212 CEDAW, art. 9(2) and art. 16(1).
213 CRC, art. 2(1).
214 Nepal Const, art. 9(1) and art. 9(2). The constitution states that “a person—whose father is a citizen of Nepal at the birth of the child shall be a citizen of Nepal by descent” and that “[e]very child who is found within the Kingdom of Nepal and the whereabouts of whose parents are not known shall, until the father of the child is traced, be deemed to be a citizen of Nepal by descent.”
215 UDHR, art. 16(1); CEDAW, art. 16; and ICCPR, art. 23(4).
216 Judgment of T.A. Aguda, Judge of Appeal in Attorney General of Botswana vs. Unity Dow, certified judgment of the Court of Appeal Civil Appeal, No. 4/91, Botswana, June 11, 1992, p. 60. In the landmark Unity Dow vs. Attorney General case in Botswana, the High Court and Court of Appeal found elements of Botswana’s 1982 Citizenship Act discriminatory because the courts restricted the right of Batswana women married to non-national men to pass their nationality to their children. The Court of Appeal noted, “it is totally unrealistic to think that you could permanently keep the child out of Botswana and yet by that not interfere with the freedom of movement of the mother. When the freedom of the mother to enter Botswana to live and to leave when she wishes is indirectly controlled by the location of the child, excluding the child from Botswana is in effect excluding the mother from Botswana.”
217 Article 13 of the UDHR states, “Everyone has the right to freedom of movement and residence within the borders of each State. Everyone has the right to leave any country, including his own, and to return to his country.” Article 12(4) of the ICCPR states, “No one shall be arbitrarily deprived of the right to enter his own country.” In addition to its legal basis under treaty law, the right to return has increasingly been recognized as a norm of customary international law. See“Current Trends in the Right to Leave and Return,” U.N. Doc. E/CN.4/Sub.2/1985.
218 UDHR, art. 15(1); ICCPR, art. 24(3); and CRC, art. 7(1).
219 CRC, arts. 7 and 8(1).
220 CEDAW, art. 2(d).
221 CEDAW, art. 4(1).
222 UNHCR, Guidelines on the Protection of Refugee Women, pp. 36-43.