Bhutan: An Introduction

Since the Lhotshampa refugees are not in Bhutan, municipal remedies are beyond their reach. As the implementation of the 1985 Act may have effected mass denationalization of a section of Bhutan's population now encamped in Nepal, it is necessary to discuss the validity, effectiveness and legality of such denationalisation from the perspective of international law.

2.5.1 Denationalisation: Municipal and International Law

Citizenship matters are usually perceived as failing within the realm of domestic jurisdiction, with the municipal law of a country determining who are nationals. Yet, this proposition itself is one of international law, not municipal law, and so there as international law regulates relations between States, so there may be limits on State rights in matters of nationality.

Deprivation of nationality or denationalisation by a State on certain grounds have been considered acceptable by other States, at least since the nineteenth century. A person who enters foreign civil or military service or accepts foreign distinction, departs or sojourns abroad or is convicted for certain crimes may find themselves denationalized under the municipal laws of his or her country.[75] The nationality laws of Bhutan reflect this practice.

Denationalisation on political grounds, such as subversion against the State or collaborating with the enemy, is also common to municipal legislation. Denationalisation on political grounds occurred on a large scale with the Russian decrees of the 1920s, when some two million people were deprived of their citizenship. Mass denationalisation on racial grounds was practised by Nazi Germany, Hungary and Italy in the 1930s, targeting the Jews from or in these countries. This was followed by mass denationalisation on national grounds of Germans and Hungarians in the 1940s in Czechoslovakia, Poland and the former Yugoslavia.

The validity of these decrees was considered by the municipal courts of various countries including the United Kingdom., Switzerland, Israel, Poland and the United States of America, and generated considerable debate among legal scholars of the day.[76] On one view, nationality is a matter entirely within the domestic law of a country to the extent that States have to accept the effect of denationalisation by another State even though it may be oppressive, shocking one's sense of propriety and morality, or be condemned as barbaric.[77] This was the approach of the Swiss courts in the case of Lempert v. Bonfol,[78] which considered the nationality of a child whose mother was Swiss and whose father had been denationalised by the Soviet Decree of 1921. The child would have had Swiss nationality if the father had been stateless. The Canton of Berne challenged the legality of the Soviet Decree as contrary to international law, in that a State could not simply deprive of their nationality citizens who are out of sympathy with the regime and so force them on other States. The court declined to consider whether international law contained such precise principles and instead decided the case on the principle of effectiveness. This contrasts with the view expressed by the House of Lords in Oppenheiner v. Cattermole.[79] The legality of a 1941 German Decree fell to be considered in the course of determining whether Mr. Oppenheimer was a national of the United Kingdom only or a national of both Germany and the United Kingdom. If he were a dual national, he would be exempt from English income tax on two pensions paid to him by the West German Government. The majority opinion of the House of Lords was that the German Decree, which was based on racial grounds and deprived the Jews of their German nationality, was both contrary to international law and such a serious violation of rights that it should not be regarded as law.

As a general proposition, the duty of a State to admit its own nationals and not to expel them is inherent in the concept of nationality. And the concept of nationality is itself based on the territorial supremacy of States. It follows that this duty of admission is not owed to non-nationals except in very special circumstances. Thus, Paul Weis argued that if States were free to expel their nationals or refuse to re-admit them it could amount to a violation of the territorial supremacy of the receiving States, because the latter would be forced to keep on their soil aliens whom they have the right to expel under international law.[80] This argument merits consideration in a situation where expulsion takes place before or after a denationalisation which is en masse and discriminatory.[81]

2.5.2 Denationalisation: Territorial Supremacy and Human Rights

The issue is whether international law imposes any limits on the right of States to withdraw nationality from natural persons. Denationalisation is almost always a unilateral act by the State of nationality and has been generally accepted by other States where the grounds are perceived as reasonable and the numbers have been small enough to be absorbed if expulsion followed. But this century has witnessed the phenomenon of denationalisation on discriminatory grounds which affected massive numbers of people. As Weis pointed out, denationalisation coupled with denial of residence or expulsion poses serious difficulties for other States and the persons expelled. Even if a State can 'validly' denationalise its citizens under its municipal laws, it may nevertheless be in violation of its international obligations towards other States. Customary international law does not address the issue of denationalisation adequately, but developments in treaty obligations, especially in regard to human rights, are quite significant.[82] An approach premised on the violation of the territorial sovereignty of receiving States and on the violation of individual rights under various human rights instruments is the most compelling argument, representing convergence of traditional international law, where States are the only subjects, and modern law, where there is growing, recognition of individual rights. In view of its obligations towards other States, the denationalizing and expelling State should act with justification and for reasonable cause. Equally, the power of expulsion and denationalisation should be exercised with due regard for the individual and his or her rights. Therefore, denationalisation which is either arbitrary or discriminatory is contrary to international law.[83]

2.5.3 Human Rights Law and the Principle of Non-discrimination

The rapid development of human rights law after the Second World War was a response to the realisation that protection for individual rights and dignity was essential to prevent the recurrence of the sorts of grave atrocities witnessed both before and during the war. The proscription against arbitrariness in article 15 of UDHR48 is widely recognised as a limitation on the power of a State to denationalize its citizenry. Article 9 of the 1961 Convention on the Reduction of Statelessness provides that 'A Contracting State may not deprive any person or group of persons of their nationality on race, ethnic, religious or political grounds.' Although few States are party to this Convention, it articulates the fundamental principle of non-discrimination which has become intrinsic to international law.[84] Hence it sets a standard by which the legitimacy of State conduct can be measured.

2.5.4 Bhutanese Nationality Laws, Denationalisation and Mass Expulsion

It is impossible to escape the conclusion that the 1985 Citizenship Act is, in essence, a denationalisation decree in the retroactive formulation of section 3 and the retroactive operation of its provisions on the acquisition of nationality. It is denationalisation based on racial or ethnic grounds, specifically aimed at the Nepali-speaking Lhotshampas. This was followed by the departure and expulsion of those denationalised. Its effects mirror, the description by Weis, whereby Nepal is currently burdened with the responsibility of assisting a large number of Aliens on its territory who, under international law, it has a right to expel but is unable to do so because of the purported denationalisation.

Bhutan also refuses to re-admit those who left after signing voluntary migration forms. These people form perhaps half the refugee population in the camps. Strictly speaking, denationalisation is an act of the State, whereas loss of nationality through voluntary expatriation is an act of the individual. Nevertheless, there is good reason to suppose that indirect denationalizations[85] has been effected, where there are compelling reasons to believe that voluntary migration forms were signed under duress.

The refugee categorisation proposed by Bhutan as a basis for determining which of the Lhotshampa refugees are entitled to return as Bhutanese nationals is ambiguous. If Bhutan insists that the category of genuine Bhutanese nationals should be determined according to the 1985 Citizenship Act implemented since the 1988 census, then it affirms thereby the validity of the denationalisation, effected both directly and indirectly. The irresistible conclusion is that Bhutan has breached its obligations towards other States under international law.