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VII. Repatriation

UNHCR’s Executive Committee has repeatedly affirmed not only the right of refugees to return to their own country, but also that “voluntary repatriation, in safety and dignity, where and when feasible, remains the most preferred solution in the majority of refugee situations.”¹¹⁴ In Resolution 50/152 the UN General Assembly reaffirmed the same principle, calling voluntary repatriation, when feasible, “the ideal solution” to refugee problems, and called upon “countries of origin, countries of asylum, the Office of the High Commissioner [for Refugees] and the international community as a whole to do everything possible to enable refugees to exercise their right to return home in safety and dignity.”¹¹⁵

Throughout their stay in the refugee camps in Nepal, refugees have clung to the hope that one day they would be allowed to return to Bhutan. A young refugee woman expressed a widely heard sentiment when she said, “I want to go to my own country. My motherland where I was born is precious to me.”¹¹⁶

The Right to Return to One’s Own Country

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.”¹¹⁷ 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.”¹¹⁸ 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.”¹¹⁹

In addition to its legal basis under treaty law,¹²⁰ the right to return is recognized as a norm of customary international law.¹²¹

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 10^th round of bilateral talks in December 2000 to establish a Joint Verification Team (JVT).¹²² The 12^th 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.¹²³

The JVT completed the verification exercise of the first camp, Khudunabari, between March and December 2001, but did not release the results until June 2003.¹²⁴ Out of a total of 12,643 people registered in the camp, the JVT categorized 12,090. Of these the JVT placed 293 (2.4 percent) in category one; 8,595 (70.55 percent) in category two; 2,948 (24.2 percent) in category three; and 347 (2.85 percent) in category four. The two governments confirmed their agreement on the treatment of the four categories during the 15^th round of bilateral talks in October 2003.¹²⁵ Since then no progress has been made.¹²⁶ No verification exercises have been conducted in other camps, and none of the residents of Khudunabari camp have been allowed to return to Bhutan.¹²⁷

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.¹²⁸ However, the circumstances surrounding their departure from Bhutan in the early 1990s make clear that, far from leaving voluntarily, ethnic Nepalis were either forced to leave, or felt compelled to leave the country to avoid harassment, physical abuse, and imprisonment.¹²⁹ 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.”¹³⁰ The Human Rights Committee stated:

The wording of article 12, paragraph 4, does not distinguish between nationals and aliens (“no one”). Thus, the persons entitled to exercise this right can be identified only by interpreting the meaning of the phrase “his own country.” The scope of “his own country” is broader than the concept “country of his nationality.” It is not limited to nationality in a formal sense, that is, nationality acquired at birth or by conferral; it embraces, at the very least, an individual who, because of his or her special ties to or claims in relation to a given country, cannot be considered to be a mere alien. This would be the case, for example, for nationals of a country who have been stripped of their nationality in violation of international law, and of individuals whose country of nationality has been incorporated in or transferred to another national entity, whose nationality is being denied them. The language of article 12, paragraph 4, moreover, permits a broader interpretation that might embrace other categories of long-term residents, including but not limited to stateless persons arbitrarily deprived of the right to acquire the nationality of the country of such residence.¹³¹

Thus the General Comment adopts an inclusive interpretation of “own country” to protect all those with “special ties” or connections with a country, those who cannot be considered “mere aliens.” Criteria for determining the existence of such “special ties,” and thus the existence of a right to return based on such ties, can be derived from the criteria set out by the International Court of Justice in the Nottebohm case in relation to the concept of a “genuine and effective link.”¹³² The court said that different factors need to be taken into consideration, including “the habitual residence of the individual concerned but also the centre of his interests, his family ties, his participation in public life, attachment shown by him for a given country and inculcated in his children, etc.”¹³³ Thus a “genuine and effective link” to one's “own country” can be composed of various elements, including long-term residence, cultural identity, family ties, etc.

Most refugees who are deemed not to be Bhutanese nationals and who therefore fall in category three can likely demonstrate such special ties to Bhutan. Some were long-term residents of Bhutan who were arbitrarily denied the right to acquire Bhutanese citizenship under Bhutan’s discriminatory citizenship laws. Others were arbitrarily stripped of their Bhutanese nationality by the 1988 census. Therefore, category three refugees, too, have a right to return to Bhutan; it is their individual choice whether to exercise that right, but it does not come within Bhutan’s prerogative to deprive them of their right to return.¹³⁴

People in category four, who are deemed to have committed crimes and would face prosecution upon their return to Bhutan, may choose not to exercise their right to return because they fear such prosecution would be a form of persecution. The agreement between Nepal and Bhutan on the treatment of refugees in the four different categories does not specify what kind of “criminal acts” warrant the placement of a refugee in category four. However, a number of Bhutan’s criminal laws are not in conformity with accepted human rights standards, and prosecution under those laws could amount to persecution.¹³⁵ In particular, under the law of Tsa-Wa-Sum (which translates as the “law of the three main elements,” namely king, country, and government), anyone who defames, or attempts to defame, any or all of the three main elements of king, country, and government is guilty of an act of treason and is liable to life imprisonment.¹³⁶ This criminalization of such peaceful exercise of freedom of expression and the excessive punishment under Bhutan’s penal code are incompatible with the right to freedom of opinion and expression as protected under international law.¹³⁷ Nepal is bound by customary international law not to return refugees, including those in category four, who have a well founded fear of persecution in Bhutan, including that which would stem from prosecution for exercise of rights protected by international law.¹³⁸

Right to a Nationality

Article 15(1) of the Universal Declaration of Human Rights states: “Everyone has the right to a nationality.” Article 15(2) adds: “No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.”¹³⁹ The right to a nationality, in particular the right of children to a nationality is also reflected in Article 24 of the ICCPR, and in two Conventions to which Bhutan is a party: Article 7 of the CRC and Article 9 of the Convention on the Elimination of Discrimination Against Women (CEDAW).¹⁴⁰ While not all acts that deprive a person of a nationality are arbitrary, any deprivation of nationality that causes statelessness would negate the essence of the right to a nationality. The avoidance of statelessness and the right not to be arbitrarily deprived of nationality are core principles reflected in various sources of international law, most specifically encompassed in the 1954 Convention Relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness. Deprivation of nationality resulting in statelessness is therefore widely considered arbitrary and incompatible with international law.

In 1988 the UN Sub-Commission’s Special Rapporteur on the right to leave any country, including his own, and to return to his own country, stated:

In view of Human Rights law, denationalization should be abolished. It constitutes a breach of international obligations, in particular, if it is based on racial or religious discrimination. There is also a growing tendency to require the acquisition of another nationality as a precondition for the validity of denationalization. The recognition of the right to nationality as a basic human right, in effect, limits the power and freedom of a State arbitrarily to deprive its citizens of nationality.¹⁴¹

Bhutan’s denationalization of its ethnic Nepali citizens rendered them stateless and thus breached the principle that no one should be arbitrarily deprived of nationality. Bhutan should, therefore, restore citizenship to refugees arbitrarily rendered stateless. UNHCR’s Executive Committee’s Conclusion 101 of 2004 “notes the importance of ensuring nationality; and urges countries of origin to ensure that there is no exclusion of returning refugees from nationality and that statelessness is thus avoided.”¹⁴² UNHCR’s Repatriation Handbook states: “Where refugees have lost their nationality, the country of origin should arrange for its restoration as well as for its granting to children born outside the territory and, as appropriate, to non-national spouses.”¹⁴³ Moreover, UNHCR’s Executive Committee’s Conclusion 18 of 1980 “call[s] upon governments of countries of origin to provide formal guarantees for the safety of returning refugees and stresse[s] the importance of such guarantees being fully respected and of returning refugees not being penalized for having left their country of origin for reasons giving rise to refugee situations.”¹⁴⁴

As discussed above, under the agreement reached by the governments of Bhutan and Nepal, Bhutan is offering to restore Bhutanese nationality only to the exceedingly small group of refugees who it deems to be genuine Bhutanese (category one).¹⁴⁵ Under the agreement, refugees in category two (genuine Bhutanese who are deemed to have left Bhutan voluntarily) would be allowed to return to Bhutan, but would have to re-apply for Bhutanese citizenship. However, the provisions of the 1985 Bhutan Citizenship Act would exclude most, if not all, people in this category.¹⁴⁶

Prospects for Repatriation

Voluntary repatriation in safety and dignity is feasible only if refugees can once again avail themselves of the protection of their own country, so that international protection ceases to be necessary. The yardstick against which to measure the restoration of national protection in the country of origin is provided by international human rights law and standards.¹⁴⁷ More specifically, voluntary repatriation in safety and dignity requires guarantees of physical, legal, and material safety in the country of origin.¹⁴⁸ 

As section V of this report demonstrated, at present the human rights situation of the remaining ethnic Nepalis in Bhutan is precarious at best. ¹⁴⁹ While they have managed to avoid expulsion, their legal status in Bhutan is under constant threat. Under these circumstances, it could not be said that the conditions that caused the refugees to leave in the early 1990s have fundamentally and durably changed. Also, particularly in the absence of a UNHCR presence in Bhutan and Bhutan’s unwillingness to entertain the idea that UNHCR could facilitate and monitor voluntary repatriation of the refugees, there can be no guarantees of a secure legal status for any returning ethnic Nepali refugees.

Repatriation of the Bhutanese refugees in conditions of safety and dignity would only be feasible if Bhutan took real steps to protect ethnic Nepalis’ human rights by guaranteeing their physical safety and respecting their civil, political, economic, social and cultural rights. Until the Bhutanese government agrees to such terms and conditions, repatriation to Bhutan cannot be promoted as a durable solution for the Bhutanese refugees in Nepal. Many refugees expressed their concern about the conditions for ethnic Nepalis in Bhutan—and the implications of this for their own repatriation. A refugee student said, “I feel that even if we go back to Bhutan, since the Bhutanese government is not interested, they will oppress us. Because of that fear, we don’t want to go back. We will not be given any citizens’ rights in Bhutan.”¹⁵⁰ An elderly refugee man said:

I am frightened about the future. After the bilateral talks, if there is repatriation, there will be no security for us. There is no democracy; that is why I am fearful. There is no single UN agency in Bhutan and UNHCR is not allowed to enter in Bhutan. Generally, why refugees fear returning is that when they enter in Bhutan, there is no human rights agency, no UN agency, only UNDP is there. If we are punished severely, there is not anyone to look after us in Bhutan. It is an autocracy, it is not like other countries; it is not free.¹⁵¹

Refugees reported that their relatives in Bhutan are warning refugees against returning. A refugee teacher said, “People in Bhutan are suggesting to their relatives in the camps that they should be prepared for alternative solutions, because people in Bhutan don’t have security. They say, ‘It is better for you to take the good options.’”¹⁵² Another refugee said, “I have some relatives in Bhutan. They live in very difficult conditions, hand to mouth. They give me the message that I was very lucky to have left Bhutan, that I am in the position of a human being. They say, ‘We are still not that.’”¹⁵³

The Working Group on Resettlement of UNHCR’s Executive Committee stated that “voluntary return and repatriation must always be viewed as the preferred durable solution; if for no other reason than that it signals a positive change in the conditions of the country of origin to the benefit of the refugees returning there, as well as to the benefit of those who never left.”¹⁵⁴ The situation in Bhutan underscores that the converse of this statement is equally true: the absence of any positive change in Bhutan regarding the rights of the ethnic Nepalis not only means that the situation of the remaining ethnic Nepalis in Bhutan continues to be insecure, but for the foreseeable future it also rules out voluntary repatriation as a feasible durable solution. A young refugee man said, “We cannot go back to Bhutan in the absence of change in Bhutan. We cannot go back to the same country that expelled us.”¹⁵⁵ Another refugee said:

Everybody wants to go back to Bhutan, but there is no way to go back. The Bhutan government is not going to accept us as loyal citizens. Some people say, “We want to go back to Bhutan,” but they have not understood what the conditions in Bhutan are. The first option for people is to go back to Bhutan in dignity and honor. If there could be provision for that, almost all refugees would go back to Bhutan. But seeing all these things in Bhutan, people have less hope that the conditions will come. I don’t want to go back to the conditions that I left.¹⁵⁶