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14th JMC between Bhutan and Nepal at Kathmandu: a raw deal for the refugees:Update 31

 

Note No. 186                                                 04.06.2003

by Dr. S. Chandrasekharan 

There could be no greater betrayal than what has transpired in the Nepal-Bhutan, fourteenth ministerial joint committee meeting held at Kathmandu between 19 and 22nd May, 2003.

Though official figures of classification have not been announced, there have been leaks not denied by either party. It is said that three percent of the those verified come under the category of 1 and 4 roughly of 360 each, while about 75 percent would be under category 2-the so called "voluntary migrants." Full details of the classification and of persons coming under various categories will be spelt out only after fifteen days on the ground that the cases of over 600 refugees who were not present during verification will have to be settled.

Joint Press release and agreed position on four categories: A joint Press release with the agreed position on the four categories as an Annexure was issued at the end of the meeting. These are being reproduced as Appendix I to this update.

Under category 1, the Bhutan government takes responsibility for the Bhutanese found to be forcefully evicted from Bhutan and will be repatriated to Bhutan. This group consists of citizens who did not or were not coerced to sign the voluntary migration forms. It has taken twelve years for Bhutan to admit that their citizens were forcibly kept outside Bhutan.

There are six more camps to be verified and it is going to take many more years for others in similar position in other camps to be verified and repatriated. These citizens have a lawful and just case to take Bhutan government to a court of law for willfully keeping them out of Bhutan.

The position of the two governments on category 2 has been cleverly worded to the detriment of those who were forced to sign the voluntary migration forms. The agreement says "If any Bhutanese who has emigrated is found to have been forcefully made to leave the country, such persons will fall under category one." The rest will be given the option to reapply for citizenship.

Many questions arise on this issue.

Firstly this is a new classification suddenly sprung upon the poor refugees. The Bhutanese government had maintained that all those under category 2 left voluntarily and it is almost certain that the bulk of this category will be treated as citizenship applicants and not as citizens. This itself is factually wrong as all these refugees were forced to sign the forms under threats, coercion, harassment of relatives and in many cases physical punishment. They have a right to go back as citizens and not as citizenship applicants. We have in the past pointed out that category two is not legally sustainable and these people will also have to seek legal remedies with the help of international organisations and human rights watch groups.

Granting that category two refugees are taken back, it appears that they will be located in different camps, under the full control of Bhutan government. The Bhutan government cannot be trusted to give them "human" treatment when even their relatives still in Bhutan are being harassed. Will they be in a "forced labour camp" as Shalendra Kumar Upadhyay head of BRRSG (Bhutan Refugee repatriation Support Group has pointed out?

Our position is that the whole categorisation into voluntary migrants is totally illegal and against all international norms. Therefore, the citizenship laws of Bhutan for readmission do not apply in the first place. It is a pity that media and even well meaning friends of the refugees like those of BRRSG have accepted the position of "readmission" and have moved further on to insist on transparency and a third party intervention to ensure that the refugees are treated humanely and given all facilities. The past record of Bhutan government does not indicate that their assurances can be accepted.

Offer of Nepalese citizenship to the refugees:

There is one other provision that has created a controversy within Nepal itself. Nepal has agreed to consider applications for Nepalese citizenship of those who do not wish to return to Bhutan.

Prima facie, there is nothing wrong with Nepal offering citizenship to those who prefer to stay back in Nepal and the refugees given the option to stay back and acquire the citizenship of their host. In fact Nepal should be complimented for taking a humanitarian view of the refugees who have stayed for long and have developed roots in their country. But this gives rise to two other connected issues.

Firstly, this offer has been made by a government whose legitimacy has been questioned by the political parties. In the mock parliament of 29 May, the five major political parties condemned the proposal in no uncertain terms. Therefore it is not certain whether this offer would still hold good when a popular government takes over. Those who opt to stay could be left stateless ultimately.

Secondly, the Bhutan government has created the impression that life is not going to be easy for the second category people, with the prospects of another refugee camp for two years, eventual settlement in places far away from where they were driven out and with no incentives for employment or education. At present over 42000 children of the refugees are studying in various schools in Nepal. The refugees may not prefer to jump from the "frying pan into the fire." and may prefer to stay. This is rather unfair to the refugees themselves.

On category 3, the decision of the JCM is correct, but with regard to the fourth category there could be reservations. Roughly, from the Kudenabari camp, three percent of the people have been declared to have a criminal background. Strictly speaking, this category should apply only to people against whom criminal cases have already been registered in Bhutan and not to prospective ones.. It is almost certain that all politically active refugees would be brought under this category. There should be a neutral body to verify the claims made by the Bhutan government before deciding on the fate of such refugees.

The report of Human rights Watch group:

On the eve of the fourteenth round of ministerial talks, the Human Rights watch has produced a detailed briefing paper for the meeting. The summary of the note begins with an optimistic note that the "Bhutanese refugees living in Nepal’s refugee camps may finally have an end in sight for their ordeal." We do not share their hope and rather we expect more problems for the poor refugees. It is going to be a long drawn out affair with verification still to begin in six other camps.

In para seven of the report, detailed recommendations have been given for the governments of Bhutan and Nepal, to UNHCR, to donors, the international community and the government of India. This is reproduced as Appendix II,

It is natural for human beings to survive on hope and the Bhutanese refugees are no exception. The international organisations which have been supportive of the cause of the refugees for the last one decade and more should continue to give them moral and material support so that they could go back to their homes, (not elsewhere) with honour and dignity.

Appendix I 

NEPAL-BHUTAN

FOURTEENTH MINISTERIAL JOINT COMMITTEE MEETING

KATHMANDU, MAY 19-22, 2003 

Joint Press Release 

1.     The Ministerial Joint Committee (MJC) of His Majesty’s Government of Nepal and  the Royal Government of Bhutan held its Fourteenth meeting in Kathmandu from May 19 to 22, 2003 

2.    His Excellency Lyonpo Jigmi Y Thinley, Minister of Foreign Affairs of Bhutan led the Bhutanese delegation that included His Excellency Dasho Ugyen Tshering Foreign Secretary, Dasho (Dr.) Sonam Tenzin, Director General, Ministry of Home Affiairs, Mr Daw Penjo, Director, Ministry of Foreign Affairs, and other senior officials of   the Royal Government of Bhutan. 

3.     Hon. Mr. Nerandra Bikram Shah Minister of Foreign Affairs, led the Nepalese delegation that included  Mr. Madhu Raman Acharya, Foreign Secretary, Mr. Madan Kumar Bhattarai, Joint Secretary, Minister of Foreign Affairs Mr. Sushil Jung Bahadhur Rana, Joint Secretary, Ministry of Home Affairs and other senior officials of  His Majesty’s Government Nepal. 

4.      His Majesty the King of Nepal granted audience to the leader of the Bhutanese delegation His Excellency Lyonopo Jigmi Y. Thinely on May 21, 2003 at the Narayanhity Royal Palace. The Bhutanese delegation also called on the Rt. Honourable Lokendra Bahadhur Chand, Prime Minister of Nepal, on May 21, 2003 at the Prime Minister’s Office. 

5.    The MJC adopted the report of the work of the JVT and considered and categorized the unresolved cases. The Categorization was carried out as per the Terms of Reference and guidelines agreed upon during the 10th, 12th & 13th  MJCs and the harmonized positions achieved during the 12th MJC (Annex-I). The two Ministers commended the efforts of the JVT in carrying out important responsibilities. 

6.     The MJC directed the JVT to undertake the Verification and Categorization of the absentees of the Khudunabari Camp within two weeks. Following this, the JVT is to officially release and make public the results of the completed categories at exercise on Khudunabari Camp. 

7.     It was agreed that the terms, procedures and facilities regarding voluntary repatriation/reapplication and similar information for those seeking to remain in Nepal would be made known to the camp residents simultaneously by the JVT. 

8.     The implementation schedule on the outcome of Categorization was also agreed upon. The schedule provides the people to appeal against Categorization within fifteen days after the release of Categorization results. The appeals will be considered only upon the presentation of new material evidence or determination of clear error in this process. 

9.     The two Ministers expressed their firm resolve to find a lasting solution to the issue of the people of the camps in Nepal through bilateral discussions. 

10.   The fifteen MJC meeting would be held in Thimphu from August 11 to 14, 2003. 

11.    The Two Ministers expressed their gratitude to previous leaders of the MJC from Nepal and Bhutan for their contribution towards the progress that has been achieved so far. 

12.   The two Ministers exchanged views on several areas of mutual interest to further promote and strengthen friendly relations and cooperation between two countries and expressed satisfaction that cooperation between private sectors specially in the fields of trade and tourism was growing. 

13.   They expressed mutual satisfaction with the progress achieved during the 14th MJC which was held in a very cordial and friendly atmosphere. 

14.   H.E. the Foreign Minister of Bhutan expressed appreciation for the warm welcome and hospitality extended to his delegation by His Majesty’s Government of Nepal. He also extended a cordial invitation to Hon. Narendra Bikram Shah, Minister for Foreign Affairs of Nepal, to visit Bhutan to attend the Fifteenth MJC in August. The invitation was accepted with pleasure. 

May 21, 2003

Kathmandu. 

Annex-I 

AGREED POSITION ON THE FOUR CATEGORIES 

1 Category 1: Bonafide Bhutanese, if have been evicted forcefully

 

The Royal Government of Bhutan will take full responsibility for any Bhutanese found to have been forcefully evicted from Bhutan. People under this category shall be repatriated to Bhutan. 

2. Category 2: Bhutanese who emigrated

a. Those who have emigrated shall be dealt with in accordance with the Citizenship and Immigration Laws of the two countries.

b. If any Bhutanese who has emigrated is found to have been forcefully made to leave the   country, such persons will fall under Category 1 (forcefully evicted) and shall be repatriated to Bhutan.

c. In a liberal interpretation of the Bhutanese Citizenship and Immigration Laws, people falling under this category  and  desiring to return, will be given the option to re-apply for citizenship.

d. Likewise, people under this category, who do not wish to return to Bhutan, will be given the option to apply for Nepalese citizenship in accordance with laws of the Kingdom of Nepal.

3. Category 3: Non-Bhutanese People

 Those persons found to be citizens of countries other than Bhutan and found to have come from other countries must return to their respective countries.  

4. Bhutanese, who have committed criminal acts

Repatriation of people under this category shall be in keeping with the laws of the two countries. These people will have full opportunity to prove their innocence in the court of law in Bhutan.

http://bhutannewsonline.com/14_mjc_press_release.rtf

Appendix II   

 RECOMMENDATIONS

To the Governments of Bhutan and Nepal

· Promote a fair verification process and the conditions for a safe and dignified return of refugees in Nepal by:

o including UNHCR as an equal member in all Joint Verification Team activities;

o being fully transparent about the criteria used for the verification and categorization of persons in Khudunabari camp;

o eliminating the four categories currently used in the verification process in favor of a determination identifying those who have the right under international law to voluntary return to Bhutan;

o beginning verification in the remaining six camps promptly, using transparent criteria, and complete this process within an announced and reasonable timeframe;

o establishing an appeal mechanism using fair procedures before an impartial decision-maker for individuals whose claims to Bhutanese nationality or refugee status are rejected. Additional measures should be put in place to provide for the future status and integration of these individuals in accordance with international human rights as well as refugee law; and

o reactivating immediately a screening process for new and recent asylum-seekers as well as long-term unregistered refugees.

· Implement a voluntary repatriation process that conforms with international standards as outlined in UNHCR’s 1996 Handbook on Voluntary Repatriation and ExCom Conclusions. Important measures include:

o ensuring the absence of negative “push” factors (like the reduction of humanitarian assistance in Nepal);

o allowing refugees to visit Bhutan before making their decision to repatriate;

o disseminating full, impartial, and regularly updated information to refugees about the conditions in their regions of origin, the specific rights they will enjoy there, and their options if they choose not to return; and

o guaranteeing protection against forced or coerced return to unsafe or discriminatory conditions inside Bhutan.

· Take steps to ensure the meaningful participation of refugee women at all stages of verification, repatriation or resettlement, and integration.

· Demonstrate commitment to international human rights standards by becoming parties to the 1951 Convention relating to the Status of Refugees and its 1967 Protocol, the 1954 Convention relating to the Status of Stateless Persons, and the 1961 Convention on the Reduction of Statelessness.

To the Government of Bhutan

· Promote a fair verification process and the conditions for a safe and dignified return by:

o repealing or amending the 1958 Nationality Law and the 1977 and 1985 Citizenship Acts. In particular, remove burdensome and discriminatory  provisions such as a two-year waiting requirement, the loss of citizenship by those deemed “voluntary migrants,” and the twenty-year residency requirement.  Remove provisions which infringe the right to acquire a nationality at birth, to keep that nationality, to leave and return to one's country, and to not be arbitrarily deprived of one's nationality; and

o protecting the rights of returnees by prioritizing family unity during repatriation.

· Implement a voluntary repatriation process that conforms with international standards as outlined in UNHCR’s 1996 Handbook on Voluntary Repatriation and ExCom Conclusions. Important measures include:

o guaranteeing immediate, full, and free access for UNHCR and humanitarian aid organizations to assess conditions for return and to set up assistance programs for returnees in Bhutan;

o establishing procedures for returning refugees to reclaim their original land and property and to settle property claims in a fair and timely manner;

o halting the resettlement of northern Bhutanese on the land of the refugees immediately; and

o ensuring that the human rights of returning refugees who are accused of committing crimes are respected.

· Ensure that the human rights of returning refugees are protected, including by:

o ending existing discrimination against ethnic Nepalese and political dissenters, especially in regard to access to education and employment, freedom of movement, and the right to culture, language, and religion;

o following through on its commitment to women and children’s rights signaled by its ratification of the Convention on the Rights of the Child and the Convention on the Elimination of all Forms of Discrimination against Women, for example by acting on the recommendations made by the Committee on the Rights of the Child in 2001. Follow through on its commitment to racial and ethnic equality established by its ratification of the Convention on the Elimination of all forms of Racial Discrimination; and

o ratifying the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights.

To the Government of Nepal

· Facilitate voluntary repatriation and do not scale back assistance in order to “push” refugees back to Bhutan. With support from the international community, continue the hospitality extended for the last twelve years by offering local integration to those who are unwilling or unable to return to Bhutan.  

To the Office of the United Nations High Commissioner for Refugees

· Act in accordance with UNHCR’s mandate on the prevention of statelessness under Article 11 of the Convention on the Prevention of Statelessness, subsequent UNHCR ExCom Conclusions, and UN General Assembly resolutions by seeking durable solutions for all Bhutanese refugees, but particularly for those who may be rendered stateless by the verification exercise.

· Implement a voluntary repatriation process that conforms with international standards as outlined in UNHCR’s Handbook on Voluntary Repatriation and ExCom Conclusions.

Important measures include:

o actively seeking cooperation from the government of Bhutan in order to assertively monitor and facilitate the repatriation of those refugees who wish to return to Bhutan;

o providing all refugees with full, impartial, and updated information about conditions in Bhutan prior to their return; and 

o refraining from scaling back assistance or closing the camps prematurely in order to “push” refugees back to Bhutan. Voluntary return should only be encouraged when refugees can return to Bhutan without fear of harassment, intimidation, or persecution. UNHCR should insist that the Bhutanese government guarantee the full rein tegration of all returnees and protection of their social, economic, cultural, civil, and political rights.

· Take steps to ensure the meaningful participation of refugee women at all stages of verification, repatriation or resettlement, and integration.

To Donors, the Government of India, and the International Community

· Urge the governments of Bhutan and Nepal to include UNHCR in the verification and repatriation process.

· Step up efforts to ensure that conditions are created under which the refugees can return to Bhutan voluntarily. The return process must ensure refugees’ safety and dignity and must respect their human rights.

· Uphold legal and humanitarian obligations to share responsibility for refugees by committing financial support for the transition from camps to local integration, compensation to refugees who are unable to repossess their property, and funding for a mechanism to resolve disputes.

· Ensure that a voluntary repatriation program is planned and funded so that it meets all international standards, particularly those stipulated in UNHCR’s Handbook on Voluntary Repatriation and in ExCom Conclusions.

· Provide third-country resettlement possibilities as a durable solution for those who are unable or unwilling to return to Bhutan and for whom long-term protection is not available in Nepal.

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