Forum (Spotlight Weekly)

Legal Aspects Of Refugee Issues In Nepal

By MICHEL DUPOIZAT

It was only in 1921 that the international community, through the Council of the League of Nations (the ancestor of the United Nations), decided to help the refugees and, in particular, at that time the victims of the First World War. The first High Commissioner for Refugees ever nominated was Dr. F. Nansen, a famous explorer. He was also the delegate of Norway to the League of Nations.

From 1920 to 1950, various international organizations were created to deal with refugee problems. They received successive mandates to look after specific groups of refugees defined according to their nationalities or according to the type of problems these refugees faced.

The Office of the United Nations High Commissioner for Refugees (UNHCR) was established on 14 December 1950 by the General Assembly of the United Nations. The Statute given to UNHCR by the UN General Assembly introduced a big change: for the first time a unique and universal definition of the word "refugee" was adopted. Since then, UNHCR has been competent to protect and assist refugees; that is to say: "any person who, owing to well-founded fear of being persecuted for reasons of race, religion, nationality, or political opinion, is outside the country of his nationality and is unable or, owing to such fear or for reasons other than personal convenience, is unwilling to avail himself of the protection of that country." The definition also makes a reference to "any person who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear or for reasons other than personal onvenience, is unwilling to return to it".

A refugee is a victim .One of the main protection functions of UNHCR is to ensure that no refugee is forced to return to a place where his/her freedom would be threatened on account of one of the reasons mentioned in the definition. Article 14 of the Universal Declaration of Human Rights reads "everyone has the right to seek and enjoy in other countries asylum from persecution".

A few months after the establishment of UNHCR by the General Assembly of the United Nations, the international community adopted in 1951 a Convention Relating to the Status of Refugees, which has been ratified by 140 states. So far, no member of the South Asian Association for Regional Cooperation (SAARC) has signed this international legal instrument, which contains the rights and obligations agreed upon by those states that have ratified it.

Refugees in Nepal

His Majesty's Government has granted asylum and refugee status to Bhutanese refugees who arrived in Nepal in 1991 and 1992. The international community through the UNHCR and the World Food Programme (WFP) provides protection and assistance to more than 100,000 Bhutanese refugees sheltered in seven refugee camps in eastern Nepal. As part of the solution UNHCR can provide its advice and governments should use its expertise and experience.

In December 2000, Bhutan and Nepal agreed during their 10th Ministerial Joint Committee meeting to establish a Joint Verification Team (JVT) for the validation of the family relationship and the interview mechanism to determine the categories and circumstances under which these persons left Bhutan. The population of the Khudunabari camp has been verified between 26 March and 14 December 2001.

In August 2001, further to a meeting that took place in Thimphu, the procedures of the JVT have been simplified. The two countries also agreed in principle that the voluntary repatriation of those declared eligible to return back to Bhutan may take place after the two governments have endorsed the report made by the JVT.

In mid-December 2001 the JVT went back to Kathmandu and Thimphu in order to consult their respective authorities. Since then, no date has been agreed upon for the 12th Joint Ministerial Committee meeting.

His Majesty's Government has generously granted asylum to Tibetan asylum-seekers up to 31 December 1989. Some 15,000 of them could remain in Nepal where they obtained refugee status. They are settled in different districts of Nepal. They can work and are self-sufficient.

The Tibetans arrived since the 1 January 1990 are only allowed to transit through Nepal. Until they proceed to a third country, they are assisted and they receive medical care, care and maintenance during their short stay in Nepal.

There are also a small number of so-called urban refugees in Nepal coming from various countries other than Bhutan and Tibet. UNHCR Branch Office undertakes their Refugee Status Determination when they arrive as asylum seekers. Those recognized under the UNHCR's mandate as refugees are accepted by the Nepalese government. They have no right to work and their prospect for long-term stay is non-existent.

Legal protection of refugees and role of UNHCRAccording to the Statute of his office, the High Commissioner is mandated to provide the protection of refugees by:

(a) Promoting the conclusion and ratification of international conventions for the protection of refugees and supervising their application,

(b) Promoting through special agreements with governments the execution of any measures calculated to improve the situation of refugees,

(c) Assisting governmental and private efforts to promote voluntary repatriation or assimilation within new national communities,

(d) Obtaining from governments information concerning the number and conditions of refugees in their territories and the laws and regulations concerning them.

Nepal and Refugee Laws

We have just seen that Nepal has three categories of refugees on its soil and three different ways to deal with them. This is somehow due to the fact that Nepal has no national refugee legislation of its own.

Since the 1951 Convention relating to the Status of Refugees has not been ratified by any of the SAARC countries, the previous High Commissioner for Refugees Mrs. Sadako Ogata took the initiative in 1994 to constitute Groups of Eminent Persons in Bangladesh, India, Nepal, Pakistan and Sri Lanka .The objective was to consult on common approaches to refugee and migration issues in order to develop better protection regimes for refugees in the region. As a result of these consultations, a Model National Law on Refugees was adopted at the Fourth Regional Consultation and Migratory Movements in South Asia, held in Dhaka in November 1997.

UNHCR continues to encourage the governments of the region, including Nepal, to sign the 1951 Convention or, as an interim measure, to adopt a national legislation on refugees, which could be based upon the Model National on Refugees adopted in Dhaka.

It is UNHCR's opinion that the adoption of a national legislation on refugees is a political and a moral obligation. Indeed such legislation would provide an appropriate legal framework to tackle the current refugee situations as well as any other that might occur in the future. UNHCR stands ready to assist any such country expressing the desire to adopt a national legislation.

UNHCR works together with governments and implementing partners. Our activities aim at finding ways and means to help refugees to find durable solutions to their situations. The best solution, which is also the one preferred by the refugees themselves, is their voluntary repatriation to their homeland. The two other solutions are, to a lesser extent, to settle in their country of asylum or, for a few number of them, to resettle to a third country.

Voluntary repatriation requires efforts of all concerned to promote respect, tolerance, spirit of Reconciliation as well as the active support of the international community. We all know that the absence of hope for durable solutions may breed grounds of despair. To avoid that, public opinion can contribute by encouraging governments to adopt proper policies and procedures favourable toward solutions to refugee problems, both at home and abroad.

(Dupoizat is UNHCR Representative in Nepal. This article is based on his recent speech at Tribhuvan University, Nepal Law Campus)