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Conclusions and Recommendations
The right of the Lhotshampa refugees to return to
Bhutan is clouded by many issues, principally the survival of the Ngalong ruling
ethnic community in the geopolitical context of a Nepali-speaking diaspora in
the Himalayan region. A pessimistic view is that politics will govern the
solutions for the Lhotshampa refugees. A positive approach suggests that
principles of municipal and international law could assist the political process
for a genuine resolution to the situation of the Lhotshampa refugees. This paper
was an attempt to clarify the legal principles applicable to issues of
nationality, statelessness and the right to return.
Clearly, one must be alert to the pitfalls of the fourfold
refugee categorisation proffered by Bhutan. To accept the refugee categorisation
as it stands, without first clarifying the criteria determining nationality and
the application of the nationality laws, would result in, at best, utter chaos
or, at worst, grave injustice. Bhutan's ratification of CEDW79 and CRC89
establishes the validity of international standards to be met by the refugee
categorisation, particularly in the interests of women and children. Without
doubt, the refugee categorisation would benefit from being so refined as to be
non-discriminatory, just and efficacious in application.
The participation of India in talks about solutions is
plainly necessary because of Bhutan's allegations that the majority of' the
people in the camps are illegal immigrants from Nepal and the neighbouring
states of India, the actual presence of an unknown number of Indian nationals in
the camps, and ultimately, because this is a geo-political problem involving
India, Bhutan and Nepal. Should it be determined that some or all of the
refugees are stateless, it is finally a regional issue requiring a regional
resolution. India's continued protestations of non-intervention in the domestic
affairs of Bhutan are belied by the treatment meted out to the refugee marchers
in India on their way to Bhutan. Being a party to both CEDW79 and CRC89, India
should be mindful of its obligations to the refugee women and children of Indian
origin.
The alliance of India and Bhutan on many fronts, including
the implications of the Nepali-speaking diaspora in the Himalayan region, needs
to be taken into account in any attempt to include India in the talks to resolve
the Lhotshampa refugee issue. India's participation will not automatically
resolve in an equitable and just settlement, either for the refugees or Nepal.
Realistically, even if' a majority of the refugees were stateless, they simply
join the ranks of groups of stateless persons in the South Asian subcontinent,
thereby aggravating statelessness as a regional issue with an explosive
potential the future. It may make much better political sense to contain
and resolve the Lhotshampa refugee issue as soon as possible.
In the circumstances, therefore, it may
help to bring in an independent fourth party as mediator in the event of
disagreement between the three parties, or where two parties oppose the third
party on any issue throughout the whole verification process. This would ensure
that the international obligations of the three countries under the various
international conventions and general international law are duly observed.
Ideally, the mediator should be an expert on international law, particularly on
women and children and their nationality and statelessness. He or she might
usefully consult with a panel of five representatives, one each appointed by the
refugees and the government of Bhutan, Nepal and India, and the UNHCR, before
arriving at any decision on the issue. The government representatives would also
need to be conversant with the municipal laws of Bhutan, India or Nepal,
especially with regard to nationality issues and constitutional matters. The
refugee representative would ideally be familiar with the nationality laws of
Bhutan, but more importantly should possess a thorough knowledge of the
practical reality of nationality and residence matters in the lives of the
refugees. The UNHCR representative, finally, would need to be fully conversant
with the question of statelessness at international law.[125]
Harmonisation of the municipal and international laws and the conflicting
interests of the parties could well be achieved through such a mechanism.
A more appropriate categorisation of the population would
recognise Bhutanese, Nepalese, Indian and stateless. There should also be a
separate category for those families of mixed nationalities. The nationality
status criteria would be the nationality laws of each country which accord with
the international obligations of Bhutan, India and Nepal, especially under
CEDW79 and CRC89. The nationality laws of' Bhutan need not be an insurmountable
hurdle, if the above interpretations are accepted. Under the category for
Bhutanese nationals, two sub-categories could include those who did not sign the
voluntary migration forms and those who did. For the former subcategory, it
would be relevant to consider whether they acquired Bhutanese nationality under
the 1958 nationality law, given the deadline of 21 March 1977. Secondly, those
without documentary proof of being in Bhutan in 1958 could present other proof,
documentary or otherwise, of Bhutanese nationality under the 1958 or 1977Acts,
provided the 1985 Citizenship Act is retroactive in the narrow sense proposed.
For those who signed the voluntary migration forms, procedures for verifying the
context and circumstances leading to signing need to be established in view of
the provisions of the 1977 Act. Those who signed when the security situation in
southern Bhutan was fragile would appear to have a good claim to retain their
Bhutanese nationality. Those who are able to prove imprisonment or torture in
connection with signing the forms could call on the Bhutanese authorities to
rebut their evidence of coercion. Unless a general amnesty is granted, refugee
leaders and others deemed to be anti-.nationals disloyal to King, Country and
People who are not at the same time naturalised citizens, could face charges of
treason if ever they be allowed co return to Bhutan. Naturalised citizens
deprived of their Bhutanese nationality would appear to have no channel to seek
redress under the law of Bhutan should they wish to question the legality of'
such deprivation. Women and children stripped of their Bhutanese nationality or
declared stateless under these procedures could assert their rights under the
CEDW'79 and CRC89 vis-a-vis Bhutan, Nepal or India. Where the refugees are
unable co provide satisfactory proof of' their nationality or former habitual
residence in Bhutan, they would remain the joint responsibility of Bhutan, Nepal
and India. In view of the numbers who signed voluntary migration forms, others
who possess documentary proof of Bhutanese nationality and those families of
mixed nationalities, the residual numbers are unlikely to be too numerous for
India and Nepal to welcome to their territory.
The search is not for a perfect resolution. The quest is for
a resolution which embodies the spirit of regional responsibility and resonates
the refugees' yearning for justice, equity and a place to call home.
End of the document
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