NATIONAL 5 (Spotlight Weekly)]

Scarcity Of Seriousness

Each round of official bilateral talks raises expectations that are soon shattered

By AKSHAY SHARMA

The plight of Bhutanese refugees huddled in the camps of eastern Nepal has been front-page news for nearly a decade. Even in the midst of such extensive media coverage and growing pressure to act, the two governments are still trying to agree on a mutually acceptable way of addressing the problem. With considerable nudging from the international community, official discussions between Nepal and Bhutan have some momentum over the last year. But not enough, as it is becoming increasing clear, to instil in the refugees or their hosts any trace of optimism.

Demonstration for refugees : Talks dragon

The return of Finance Minister Dr Ram Sharan Mahat from the Bhutanese capital, Thimpu, last week following the 11th round of ministerial talks with Bhutan triggered a new surge of speculation over what the two sides actually agreed — or disagreed — on. The ambiguity and uncertainty, however, has only accelerated the familiar cycle of anticipation and apathy.

Media reports say that the joint verification initiative, which Nepal and Bhutan agreed to launch during their 10th round of ministerial talks in Kathmandu last year, has processed the cases of 1,940 people in the Khudnabari camp in Jhapa district. When you consider that there are 12,424 people in that camp alone, you can see how slow the pace of work is.

The good news coming from the recent talks in Thimpu, if you go by Nepalese officials, is that the Bhutanese government has shown indications of a greater willingness to resolve the issue. However, lack of specifics on modalities has left clouds lingering on the horizon.

If you read newspaper editorials and commentaries, you can detect a feeling that the Thimpu talks may have actually yielded very little of value. The two governments were not able to address the core issue of establishing who is and is not a Bhutanese with the candor needed.

In a statement, A.B. Subba, president of the Association of the Bhutanese Refugees, said Nepal was not able to take a firm stand on the issue, He added that the approach of the Bhutanese government could further complicate the problem. Subba stressed that unless the process of classifying and repatriating the refugees actually began, the association could not consider any settlement as satisfactory.

Some analysts are already weighing the stakes involved for each side. "It seem Bhutan is facing a much bigger crisis than Nepal," says one analyst. "It is becoming hard for Bhutan, whose leaders are used to taking orders from Indian military strategists, to understand where its national interests lie."

Others believe Nepal has not been pursuing the case strongly enough. In terms of international law, they say, Nepal has a solid case. An International Law Association document states: "The imposition of the refugee burden upon a country without its consent is a violation of its territorial sovereignty, including its right to exercise jurisdiction over its own territory and over all persons and things therein. It impinges upon the basic norms governing the rights and duties of the state."

Experts are baffled by Kathmandu’s inability to make full use of the legal advantage it enjoys. "Nepal has not been able to articulate clearly enough the fact that Nepal and Bhutan do not share a border. The Bhutanese refugees crossed Indian territory before entering Nepal. Why doesn’t India play host to the refugees as international law requires of it?" asks one expert.

The International Law Commission’s Draft Declaration on Rights and Duties of the States, Article 2 (1949) affirms that states have a duty to avoid interfering with the exercise by other countries of their jurisdiction in territories. It states: "If a state violates, or is delinquent in its duty towards, the rights of the other states, international responsibility is incurred. Such a duty is inherent in the principles of states."

Some political analysts view the Bhutanese refugee issue as part of a wider regional game. "Nepalis must be alert to the designs of those who do not want to see permanent peace in Nepal. The interests of a third party in Nepal has forced Nepalis to live in a state of tragic suspense," one analyst says.

Among the most frequently cited norms of international behavior is that no state has the right to permit the use of its territory in such a manner as to cause injury to the territory of another state or the property of persons therein. The following paragraphs from the Legal Status of Refugees published by the International Law Association bear relevance to the Bhutanese refugee issue.

"The state cannot, either by the administration or judicial procedure, expel its own nationals whatever may be their difference in religion, race or national origin. Such an act constitutes a grave violation of the international law when its international results is to cast upon other territories individuals suffering from such a condemnation or even placed merely under the pressure of judicial proscription."

"The right of a country of asylum to compensation is based, inter alia, on the economic, social and other burdens that the presence of large number of refugees inevitability imposed upon it. The shifting of a country’s own burdens of caring for its citizens to another without the letters consent by means of a refugee movement caused directly or indirectly by the formers action creates a quasi- contractual relationship under which the former owns a duty of compensation to the latter."

"By directly or indirectly forcing its own citizens to flee/and to remain abroad, the government evades the responsibilities of statehood by destroying the legal bond between a state and its citizen’s acceptance of which is the foundation of the international law. Where such evasion adversely affects another state, the latter has a claim to compensation even if the refugees retain the formal nationality of the country of origin."

"An internationally wrongful act committed to a stage in a field of activity in which that a state is a subject to the power of direction or control of another state entails the responsibility of that other state. An internationally wrong act committed by a state as the result of coercion exerted by another sate to the commission of that act entails the international responsibility of the other state."

A relevant example would be India’s protest against Pakistan’s military action in East Pakistan, which resulted in the exodus of nearly two million East Pakistanis into India, according to Keesing’s Contemporary Archive, July 3-10, 1971.

"If the country of origin has committed an ‘international crime’...the appropriate response would be collective sanctions by the international community as a whole. An international [crime] committed by the state entails an obligation for every other state. And they are: (a) not to recognize as legal the situation created by such crime; (b) not to render aid or assistance to the state which has committed such crime maintaining the situation created by such crime; (c) to join other states in affording mutual assistance in carrying out the obligations under subparagraph (a) and (b)," states the International Law Association.

"In implementing the rights of the countries of asylum to compensation, states should, directly or through the United Nations, condition the granting of economic and development assistance to countries of origin on their fulfilment of this right," it further states.

Where are Nepal and Bhutan headed in tackling a problem that is so serious in terms of international law? If the two governments are not making sufficient progress on resolving the issue, what is keeping them apart? These and other questions are too serious to be left for the 12th round of talks.

"Bhutanese refugees have been languishing in camps in Nepal for a decade. When will Nepalese leaders raise their legitimate concerns that are rooted in international law?" a legal expert wonders. Every round of bilateral talks raises hopes of a breakthrough, which turn out to be misplaced. In dealing with a crisis of such seriousness, neither country can expect much progress without demonstrating greater seriousness.