Refugee from Bhutan: Nationality, Statelessness and the Right to Return

In some cases, it is a short step from denationalisation to statelessness and that in turn is a stark reality for a large proportion of the Lhotshampa refugees. They could be stateless refugees under the 1951 Refugee Convention or stateless persons under the 1954 Convention Relating to the Status of Stateless Persons.[94] Unless they have acquired or continue to hold another nationality, they are likely to be de jure stateless. The issue of' their status is central to determining which State is responsible for admitting them, and relevant also from the perspective of their right not just to a nationality but to return to their country. The possibility that some of them possess another nationality cannot be disregarded, since there are couples of mixed nationalities in the camps. India signed CEDW79 with reservations on 30 July 1980 and Nepal ratified it on 22 April 1991. Nepal ratified CRC89 with reservations on 14 September 1990 and India ratified it on 11 December 1992.[95] All three countries are bound by these two conventions to protect the nationality rights of' the women and children who are now refugees in Nepal and India, and to prevent them from becoming stateless. The nationality laws of India and Nepal will be referred to after the discussion on the Lhotshampa refugees' right to return to their country under international law.

3.1 Right to Return and the 1951 Refugee Convention

The 1951 Refugee Convention implicitly recognises the right of stateless refugees to return to the country of their former habitual residence. The popular assumption is that this Convention provides only for cessation of refugee status under certain circumstances,[96] but does not deal with repatriation or the right to return. Given that the right to return to the country of nationality or of habitual residence is not explicitly mentioned, the consequence is that the refugee who has a nationality loses international protection upon regaining or resuming national protection under the cessation clauses. The refugee who is without a nationality, however, stands to lose international protection without regaining something resembling national protection. If so, the cessation clauses may never apply with respect to stateless refugees, if their right to return to the country of former habitual residence is not protected. For refugees rendered stateless by denationalisation prior to departure, this adds insult to injury. By way of illustration, refugees A and B are from country C. Due to fundamental change of circumstances in country C, A returns to C because he is a national of C. B is not permitted to return because she is a non-national and is unable to go anywhere else because she is stateless.[97] Does it mean that the cessation clause article 1C(6) will never apply in the case of stateless refugee because of the inability to return to the country of' habitual residence? Is there, then, a gap in the 1951 Refugee Convention concerning protection for stateless refugees?[98]

The thrust of article 1C(6) is to ensure that stateless refugees should not be in the position to refuse to return to the country of their former habitual residence unless they have compelling reasons arising out of past persecution for refusing to do so.[99] It is a fallacy to say that the 1951 Convention does not deal with the right to return. Article 1 C(4) expressly provides for the cessation of refugee status upon re-establishment of the refugee in the country of origin. Such re-establishment cannot occur without the refugee first returning to assess whether or not to stay. One could say that re-establishment is medicated on repatriation. Hence the right to return is implicit in this provision of the cessation clauses whether in the case of a refugee who is a national of the country of origin or one who is a stateless former habitual resident. Granted the travaux preparatoires are silent on the specific right to return of refugees, stateless or otherwise,[100] but there are at least two good reasons for asserting that the right to return of refugees; including those stateless, are implicit in article IC(4) of the 1951 Convention.

The development of the concept of the right to return parallels the development of human rights law after the Second World War, as it began in the Universal Declaration and as it evolved in the 1966 International Covenant on Civil and Political Rights. The 1951 Refugee Convention paved the way for the development of the concept in theory and in practice. The phrase 'right to return' is associated with both UDHR48 and ICCPR66 but its effect clearly stems from the latter which is binding on a large number of States.

The context which crave rise to the rights and freedoms protected by UDHR48, including the right to return, reveals that the practice preceded the concept. There were an estimated 30 million refugees and stateless persons in Europe after the Second World War. While a comparatively small number were resettled, some within Europe and most abroad, the majority, both refugees and stateless persons, found their way home. In May and June 1945 alone, 5.25 million persons were repatriated.[101] In 1946, the General Assembly affirmed that the main task concerning displaced persons was to encourage and assist in every way possible their early return to the countries of origin, excepting war criminals and Germans being transferred to Germany from other States or who fled to other States.[102] In light of the prior mass denationalisation of' the Jews and other minorities by Nazi Germany and its satellites, it is clear that the prevailing practice was that those who were denationalised and rendered stateless were entitled, if they so wished, to return home. Hence, the fact that they were stateless in no way impeded their return to their homeland. The practice was confirmed by article IC(4) of' the 1951 Refugee Convention. This phenomenon was entirely contrary, to the international law principles on nationality and statelessness at the time.

It signalled a departure from established principles, in order to accommodate the new phenomena of mass denationalisation and statelessness. The plight of the residual number of stateless persons who were unable or unwilling to return to their home led to further debate and eventual adoption of the Conventions, one for Stateless Persons and the other for the Reduction of Statelessness.

In view of the above, the Lhotshampas, as stateless refugees who have been discriminatorily denationalised, have an implicit right to return to Bhutan as the country of their former habitual residence. Although this right of stateless refugees is implicit in the 1951 Refugee Convention to which neither Bhutan nor Nepal is party, it is compelling authority in all refugee situations caused by mass denationalisation and expulsion. In terms of the number of accessions and the prominent role of the UNHCR in implementing the terms of the Convention in the proliferation of refugee situations since its inception, certain concepts manifest in the provisions of the 1951 Refugee Convention could now be part of customary international law. Certainly, the voluntary re-establishment of refugees in their country of origin and the implicit right to return could reflect relevant rules of customary international law.