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2.The Legal Issues
The main issue is whether the Lhotshampa refugees have right
to return to Bhutan, that is, claim parallel to the duty of a State to admit
its nationals in international law; this approach places the nationality issue
clearly in a human rights context.[40]
The fourfold refugee categorisation insisted on by Bhutan to establish who are
its citizens, and who have been forcibly evicted, is rooted in the concept that
regulation of nationality matters is within the sole competence of the sovereign
State. A closer look at developments in international law indicates that this no
longer holds true.
The discussion begins with an analysis of the nationality
laws of Bhutan within the context of municipal law. The legality and
constitutionality of the nationality laws both retroactive or otherwise, to
effect discriminatory denationalisation on the basis of ethnicity, sex or other
grounds, will be presented as a challenge for the legal system evolving in
Bhutan, which is modeled on the common law system but incorporates legal
traditions based on Buddhist religious traditions.
The discussion continues with reference to international law,
in order to identify the limits on a State's power to deprive individuals of
nationality. Of immense relevance is the development of the concept in the first
half of this century that the State is prohibited from engaging in mass
denationalisation on discriminatory grounds, followed by expulsion of those
concerned. The situation of the Lhotshampa refugees will be examined against
this principle of international law which is delicately poised as much on the
concept of the territorial supremacy of the State as it is on the human rights
principle of non-discrimination. In this connection too, the use of 'voluntary
migration forms' as an indirect means of mass denationalisation and expulsion
will also be examined. The issue of denationalisation will be analysed from the
vantage point of the treaty obligations of Bhutan, in particular, but also of
Nepal and India, with reference to the Convention on the Elimination of
Discrimination Against Women (CEDW79) and the Convention on the Rights of the
Child (CRC89), to protect the rights of the Lhotshampa refugee women and
children to a nationality.
The right of the Lhotshampa refugees to return to Bhutan will
be examined from the perspective of those who have been rendered stateless
through deprivation of nationality. The fact that neither Nepal, Bhutan nor
India is party to the 1951 Refugee Convention raises the issue of the relevance
of the Convention, and whether the right of stateless refugees to return to
their country of former habitual residence is either of persuasive authority or
has attained force of customary international law.
Discussion on the right of the Lhotshampa refugees as
stateless persons to return to their own country will begin with the protection
accorded to the general right to return under the Universal Declaration of Human
Rights (UDHR48) and the International Covenant for Civil and Political Rights
(ICCPR66). Observations on the trend towards recognition of a general right to
return to one's own country will take account of declarations in international
fora since UDHR48, and since ICCPR66 came into force. One focus will be whether
the concept of one's country extends to the country of former habitual residence
of stateless persons or to the situation where people have been deprived of the
nationality of their country in order to prevent their return.
A bird's eye view-of the nationality laws of Nepal and India
helps to ascertain whether the refugees who are determined not to be Bhutanese
nationals are in fact nationals of Nepal or India, before concluding that they
are stateless.
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