It is well said that one should not let die her dreams because these are the inspirations for living. But all are not equally able to take care of their dreams due to multiple factors. Among them refugees is the most vulnerable group who cross the frontiers of their own and seek asylum in alien land due to the well founded fear of persecution. Unsurprisingly, there are tens of millions of people who have lost their dreams and hardly believe to meet the same again in their lifetime. Similarly internally displaced persons (IDPs) have the same story but they don't cross the border of the country of nationality. Both are forcibly exiled from a familiar social world and home through a combination of war, violence, political crises, rapid social transformations, failed development and social or ethnic exclusion. It is certainly a disappointing scenario to the world community who believe in the norms of human rights and equal enjoyment of dignified life at one's own place. It is hard to believe that the world is full of displaced persons either as refugees or IDPs or even stateless, who are not getting protection from their state of nationality. Statistics presented by the United Nations High Commissioner for Refugees (UNHCR), 25.2 million people were receiving protection or assistance from UNHCR at the end of 2010, out of which 10.55 million were refugees. Statelessness is estimated to have affected up to 12 million people by the end of 2010, but the data collected by the governments of the 65 countries is just 3.5 million.
Thousands of Nepali-speaking ethnic minority people, Lhotshampas, fled from Bhutan in early 1990s due to the persecution of Wangchuck regime's Bhutanization campaign of maintaining 'one nation, one people', have been hosting by Nepal over two decades. Few of them are serially protesting for fulfilling their demands urgently by the government of Nepal. Basically, their demands are concerned with the issues of status determination: for issuing them with refugee identity card and providing ration. This has also drawn the attention of all human rights agencies and activists, at both the national and international level.
At the outset, the believers of international human rights norms and standards seem to agree with the genuine demands made by them. As both right to food and right of getting certain status are fundamental human rights as no one can longer remains stateless ad infinitum. The person's right to seek and enjoy an asylum in other countries from any kind of persecution is also guaranteed by the Universal Declaration of Human Rights (UDHR), Article 14(1). The protesters have claimed that some of them could not get refugee identity card at that time since they missed the census taken by UN refugee agency and government of Nepal at the camps due to some reasons of going out for earning their livelihood and also others who crossed the Nepali frontier in the days that followed. After the departure of half of the population to the West for resettlement, recently there are around 60,000 refugees left in the camps. Out of that 50,000 are being processed by United Nations High Commissioner for Refugees (UNHCR) and International Organization for Migration (IOM), who have expressed their keen interest for opting for third country resettlement.
It's praiseworthy that Nepal has a long tradition of providing refuge to the thousands of people either, asylum seekers or refugees or immigrants since its early history and proved as a heaven for all. Similarly, some alien groups like Burmese, Bengalis and Tibetans have already been assimilated into Nepali society. 'Not rejecting anyone who asks for the shelter' is a common human-practice of Nepali society. Besides these we can see many Tibetan and other strangers from African continent living in Kathmandu with the assistance of UNHCR.Nevertheless, the problem of Bhutanese refugees is of multidimensional character. They are compelled to leave their homeland, property, dignity and original identity aside in the face of likely persecution by the state. As the 1951 UN Convention relating to the Status of Refugees (CSR) and its 1967 Protocol states that there must be an element of 'well founded fear of persecution' to get the refugee status in the country of asylum, and the persecution must be on the grounds of race, religion, nationality, membership of a particular social group or political opinion. And the person is unable or unwilling to return to it due to the fear of persecution.
Nepal has no specific legislation to deal with the refugee problems and she is not a signatory to the 1951 CSR. Issues relating to granting an asylum are solved through administrative jurisdiction and ad hoc in character. But it is the duty of Nepal to show due respect to the international human rights norms and standards as a party to other various international human rights instruments and being a member state of the United Nations as well. No doubt that Bhutanese were given refugees status on the 'prima facie' (group determination) basis, as per the mandate of UNHCR and called mandate refugee. It is a universally applied scheme of determining refugee status at the time of mass influx. The legitimate demands of Bhutanese nationals seek quick solution because of its delicate nature. If the local bodies have sent it for the Cabinet decision then it should be done at the earliest.
In order to mitigate the refugee problem, Nepal immediately can do two things. Firstly, Nepal must take a quick action on Bhutanese's agendas. It is said that the protesters are from the family of recognized refugees. They want to join with their families. According to the provisions of CSR, CRC and CEDAW, the family ties must be respected, while granting refugee status. It is an international practice also. Remaining family members of the refugees deemed to seek asylum on that ground. So, Nepal should follow this trend if they are proved correct. One's right to live in a family-harmony cannot be overlooked. Secondly, as Nepal shares open border with India and could not close her frontier totally for aliens who ask for asylum. Unfortunately, it is not good that Bhutanese are still entering into Nepal to seek asylum. Now, Nepal needs to start dialogue with Bhutan in this regard with the mediation of International Community not bypassing the Indian interests. Bhutan should improve the human rights situation within her territory and should stop expelling the people who are living for centuries. How can they be illegal immigrants?
The international community has played a very crucial role in the protection and resolving of Bhutanese refugees problem, importantly third country resettlement. But it is still controversial that whether it is okay to give a clean chit to the Wangchuck regime for the gross violation of human rights of Nepali-speaking minority and expelling them from Bhutan or not? Probably it may remain unanswered for a long time until and unless the Bhutanese refugees won't get justice. And the dual standard of human rights for Bhutan could be justified. Several rounds of bilateral talks held between Nepal and Bhutan became unproductive due to the lack of realization of their wrong on the part of Bhutan. Even in the international forums, the Bhutanese authority frequently blames the people who left Bhutan and opine that they were illegal immigrants and criminals instead of apologizing for their forced expulsion. The need of the hour is to pressurize Bhutan to respect the human rights of all ethnic groups without any discrimination and not to suppress and expel Nepali-speaking minority, living for centuries. The new born Bhutanese democracy should not only serve the vested interest of limited elites. Fate of the refugees who cannot go for the resettlement for different reasons should be decided soon. Refugees like handicapped, mentally ill and old age people who want to die in their land of birth also need a special attention.
Glossed over by its image as a peaceable Shangri-La, Bhutan has escaped international scrutiny and censure, and with each passing year memories of the ethnic cleansing fade and accountability seems more and more to slip away. Bhutan has continued steadfastly to refuse any responsibility for expelling its people and creating a huge stateless population. This 'non-solution' is the plain failure of host state, and the international community more broadly, to deliver the durable solution to which refugees are entitled. Failure to recognize this has a high cost for the individuals concerned and is also directly linked with the increase in the number of asylum-seekers using illegal migration channels for gaining access to protection in Western countries.
(*Laxman Lamichhane is an Advocate. He is pursuing LL.M. in International Human Rights Law at Tribhuvan University).