A Term Paper on An Outline on Principle of Non-Refoulement and its Application in Nepal, with special focus on the issue of Tibetan Refugees
Date of Submission: 29 th of Baisakh, 2068
Submitted To: Ms. Laxmi Sharma International Human Rights Law LLB 3rd Year
Submitted By: Yugichha Sangroula LLB 3rd Year Roll no. 1
Table of Contents 1
Chapter I……………………………………………….……………………………..3
1.1. Background of the Study………..……….…………...………………………….3 1.2. Objectives of the Study……………………………..………………………………4 1.2. Limiations of the Study………………………………….…………………………4 1.3. Research Problem………………………………………………………………….4 1.4. Organization of the Study…………………………………………………………4 1.5. Research Methodology……………………………………………………………4 Chapter II………….………………………………………………………………….4
2.1.Introduction to the term ‘Non-Refoulement’…………………………….…..….5 2.2. Definition of ‘Refugee’………………………….…………………………….….5 2.3. Interrelation of Refugee Law and Human Rights………………….……………6 2.4. Principle of Non-refoulement and its Legal Framework………………………….7 2.5. Voluntary Repatriation…………………………………………………………...8 2.6. Principle of Responsibility Sharing………………………………………………9 2.7. Convention Against Torture and Non-refoulement……………………………..9 Chapter III……………………………………………………………………….……10 3.1. The backdrop and magnitude of Tibetan refugee problem in Nepal….…….….10 3.1.1. The Lhasa Uprising……………………………………………………………10 3.1.2. Fear of Persecution…………………………………………………………….11 3.2. The ‘Gentlemen’s Agreement’………………………………………………….12 3.3. Forced Expatriations of Tibetan Refugees in Nepal……………………………13 3.4. The Concern of the International Community…………………………………14 Chapter IV…………………………………………………………………………….15 4.1. Analysis……………………………………………………………………………15 4.2.Conclusion…………………………………………………………………………17 Bibliography………………………………….……………………………………….1 CHAPTER I
2
1.1. Background of the Study
Frequently the actions taken by one state results to, or outrage on, the dignity or prestige of another state…and in international law, state responsibility has been authoritatively stated to be confined to ‘the responsibility of state for internationally wrongful acts’.1 However, for the purpose of the paper, state responsibility takes account of state’s responsibilities towards the aliens seeking refuge or asylum with minimum protection of right to life and right to live. Indeed, most applicants for territorial asylum will also claim status as refugee. The researcher shall for consistency in content, define asylum seeker and refugee in the chapters to come. The primary focus of 1951 refugee convention was the condition of treatment of refugees. Hence, the convention does not address the more important issue of refugee law, which was the issue o reception and admission of refugees or under what circumstances should a person seeking admission to a state as a refugee be recognized as such and be granted permanent or temporary asylum.2 The Convention did not succeed in achieving a principle of special importance. Article 33 of the Convention provides that, even if for any reason a state no longer desires that a refugee remain in its territory, it ‘may not expel or return (refouler) a refugee in any manner whatsoever to the frontiers of the territories where his life or freedom would be threatened on the account of his race, religion, nationality, membership…or a political opinion’.3 This article, establishing the principle of non-refoulement, is now regarded as having the status of binding rule of general international law.4 In the milieu of the vices that remain article 33 and its scope and how such vices are present in case of the Tibetan refugees and what underlying international politics is in play for these circumstances shall be analyzed in the paper. 1.2. Objectives of the Study: 1
I.A. Shrearer, Stark’s International Law, Eleventh Edition (Oxford University Press: New York, 1994), 264. 2 Ibid. 3 Convention relating to the Status of Refugee, Article 33(1). 4 Goodwin-Gill, The Refugee in International Law, 3rd Revised Edition (Oxford University Press), 97-100.
3
•
To trace out the development of application of the principle of non-refoulement in
Nepal •
To examine the application of the same in the context of the Tibetan refugees.
1.3. Limitations of the Study:
This paper examines the problems explored within, from international refugee law perspective and the element of human right is included only to complement the discussed subject matter. The paper excludes study of other refugees of Nepal. 1.4. Research Problem:
Whether Nepal’s steps taken towards the Tibetan Refugees has been concurrent to the norms prescribed by the principle of non-refoulement embedded in various international conventions? 1.5. Organization of the Study
The first chapter serves the purpose introducing the principle of non-refoulement with relevant foreign experience. The second chapter introduces the problem of Tibetan refugee in Nepal and deals with the research problem. The third chapter contains the analysis and conclusion of the study. 1.6. Research Methodolody
The research is doctrinal in nature, with references drawn from primary as well as secondary sources of date. Library and Internet digital database as well as resource materials provided from concerned organizations working in promoting the issue of refugee rights in Nepal have been utilized.
CHAPTER II GENERAL CONCEPT OF NON-REFOULEMENT
2.1. Introduction to the term ‘Non-refoulement’
4
The term refoulement appears on the title of article 33 of the 1951 UN Convention. It is derived from the French word ‘refouler ’ which means to drive back, to force back or to refuse entry. 5According to Goodwin-Gill ‘refouler’, means ‘to drive back or to repel, as of an enemy who fails to breach ones’ defences’.6 Weissbrodt and Hortreiter are also of the opinion that the word 'refouler' means literally to drive back or repel. Garner defines refoulement as expulsion or return of a refugee from one state to another.7 Therefore, refoulement in refugee law means the expulsion of persons who have the right to be recognised as refugee.
2.2. Definition of ‘Refugee’
The 1951 United Nations Convention relating to the Status of Refugees (1951 UN Convention) is recognized as the first comprehensive international instrument created to deal with refugees.8 The definition of refugee under article 1 of 1951 UN Convention encompasses these key elements: •
well-founded fear persecution
•
unwillingness to avail oneself to the protection of that country
•
has no nationality, is dislocated from one’s habitual residence9
2.3. Interrelation of Refugee Law and Human Rights
The rights of refugees and basic human rights are inextricably linked. Today’s human right abuse is tomorrow’s refugee movements.10 Quite often, refugees' rights are curtailed by the same states that declare them in accordance with international and domestic instruments only because they are non-nationals.
5
http://en.wikipedia.org/wiki/Non-refoulement (accessed on 2011/5/1).
6
Goodwin-Gill (n 6), 117. BA Garner (ed) Eighth Edition (2004).
7 8 9
A refugee in the 1951 UN Convention is defined as a person who: As a result of events occurring before 1 January 1951 and owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion is outside the country of his nationality and is unable or owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence. 10 Amnesty International ‘Refugees: Human rights have no borders’ AI Index: ACT 34/03/97 .
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Note: While the foundation of refugee rights is the principle that all men and women
have the right to belong to a society in which they are protected by the state, the respect to the principle of non-refoulement is at the core of being a refugee as human right does differentiate, but it does not discriminate. The 1951 Convention on the Status of Refugees elaborates on Article 14 of the Universal Declaration of Human Rights which provides that "Everyone has the right to seek and to enjoy in other countries asylum from persecution."11 However, states use international principle of sovereignty shut their doors in front of asylum seekers. In addition, international law has few precedents on the matter even assuming it was treated as an exception to the former rule. This situation puts refoulement v ictims in a dilemma.12 Note: Nonetheless, the 1951 Convention has extensively brought out the basic rights for
refugees of which all member states have to respect. Among which the right to nonrefoulement has gained customary status, thus is binding on all states irrespective of accession as also enunciated by Goodwill-Gill.13 The Canadian delegate reminded other delegates during the Conference of Plenipotentiaries that the drafters of the 1951 UN Convention had regarded article 33 as of fundamental importance to the Convention as a whole.
2.4. Principle of Non-refoulement and its Legal Framework
No Contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.14 No Contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be
11
Mary Robinson, ‘Refugees Magazine Issue 111 (Universal Declaration of Human Rights 50th Anniversary) - Welcoming the downtrodden’, Refugee Magazine, Issue 111 (UNHCR: 1998) Available at http://www.unhcr.org/publ/PUBL/3b80e2a74.html (accessed on 2011/5/1). 12 The 1951 United Nations Convention relating to the Status of Refugees (1951 UN Convention) is recognised as the first comprehensive international instrument created to deal with refugees. 13 GS Goodwin-Gill, Washington University Law Quarterly, Second Edition (1996), 167. 14 1951 UN Convention, Article 33(1).
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threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.15 Note: Both article 1 and article 33 of the convention have same subjects. While formal
deals with definition of the subject, latter talks about their protection.
However, there are two exceptions to this principle under article 33(2), which provides that: The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.16 Nonetheless, While commenting on the judgement of the Haitian refoulement case17, Goodwin-Gill emphasised that: the principle of non-refoulement has crystallised into rule of customary international law, the core element of which is the prohibition of return in any manner whatsoever of refugees to countries where they may face persecution.18 Though many acknowledge that the principle of non-refoulement is accepted as customary, there are concerns about its applicability in situations of mass influx.19 There are several other international instruments imbibing the quintessence of principle of non-refoulement, which are as follows:
15
Ibid The inclusion of this sub article with the two exceptions was proposed by France, United Kingdom and Sweden and supported by other delegates during the Conferences of Plenipotentiaries. 17 The first attack on the principle of non-refoulement was in the context of the 1981 US Haitian interdiction programme. There, the US coast guard set out to patrol the seas between Haiti and the US and intercepted boats believed to carry illegal migrants. Reagan’s executive order at the time recognised the non-refoulement obligation in so far as it indicated that anyone intercepted who claimed refugee status and might have a well- founded fear of persecution was not to be returned. The programme as originally formulated expressly recognised the non-refoulement principle and US statements at the time recognised the obligation without qualification, subject only to ‘operational problems.’ However, in 1992, the issue of Haitian interdiction became more complicated when former president Bush removed the screening requirement, which for a brief period continued under the Clinton administration, so that anyone intercepted was returned without regard to their status as potential refugees. Screening was then reintroduced, then taken out and re-introduced as the US political stance changed. The US has also claimed that the principle of non-refoulement does not apply extra-territorially, a position accepted by the US Supreme Court but firmly rejected by the UNHCR and not accepted by any other State. 16
18
GS Goodwin-Gill, International Journal of Refugee Law 1(1994), 105.
19
7
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1966 Principles Concerning Treatment of Refugees, article III (1) brings up the term ‘reasonable ground’ of fear 20
•
1967 Declaration on Territorial Asylum, Article 3 speaks about no compulsory return and the exception of national-security and mass influx21
•
1984 Cartegena Declaration is monumental in reiterating the principle of nonrefoulement as a corner-stone of refugee law and reinforcing its value as jus cogens under section III, paragraph 5.22
2.5. Voluntary Repatriation:
Linked to the right of non-refoulement is the concept of voluntary repatriation. The 1969 African
Union Convention stresses the importance of voluntariness of repatriation.
Consequently, states parties have an obligation to ensure that no forced repatriation is practiced. This is essential in order to safeguard the fundamental rights of refugees, albeit the practice of some host countries.23
2.6. Principle of Responsibility Sharing
The principle of responsibility sharing is recognised in the refugee regime. The preamble of the 1951 UN Convention provides that international co-operation is important in the
20
No one seeking asylum in accordance with these Principles shall be subjected to measures such as rejection at the frontier, return or expulsion which would result in his life or freedom being threatened on account of his race, religion, nationality, ethnic origin, membership of a particular social group or political opinion. The provision as outlined above may not however be claimed by a person when there are reasonable grounds to believe the person’s presence is a danger to the national security or public order of the country in which he is, or who, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of that country. 21 No person referred to in article 1, paragraph 1, shall be subjected to measures such as rejection at the frontier or, if he has already entered the territory in which he seeks asylum, expulsion or compulsory return to any State where he may be subjected to persecution. 2. Exception may be made to the foregoing principle only for overriding reasons of national security or in order to safeguard the population, as in the case of a mass influx of persons. 22 This principle is imperative in regard to refugees and in the present state of international law should be acknowledged and observed as a rule of jus cogens. 23
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achievement of a satisfactory solution of refugee problem. It is not binding on member states but its inclusion in the 1951 UN Convention shows its importance.24 The international community is involved in responsibility sharing through different ways. They do this through funding UNHCR and other organisations dealing with providing services to refugees. The international community also shares the responsibility of protecting refugees in states with refugee problems through programmes such as refugee security package and support to refugee hosting areas.25
2.7. Convention Against Torture and Non-refoulement
In Amerkane v. UK ,26 the European Commission on Human Rights interpreted Article 3 so as to contain a non-refoulement component. This jurisprudence inspired 1984 UN Convention Against Torture, Article 3(1), which provided (in unqualified terms) that: “No State Party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.” The General Comment issued by the Human Rights Committee on 1992 mentions that no violation of article 9 of ICCPR 27 based on the group of superior order or authority. It also calls the states not to expose people to cruel, inhuman and degrading treatment and punishment upon return to another country.28
24
Janeth Apelles Chambo, Application of Principle of Non-refoulement in Refugee Operation in Tanzania (2005), 45. 25 Ibid. 26 Amerkane v. UK (No.596/72) 16 YB 356 (1973) 27 http://www.unpo.org/downloads/AnnaBatalla.pdf (accessed on 2011/5/1). 28 Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.
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CHAPTER III APPLICATION IN CONTEXT OF NEPAL
3.1. The backdrop and magnitude of Tibetan refugee problem in Nepal 3.1.1. The Lhasa Uprising
The issue of Tibetan refugees in Nepal is intrinsically related with the Lhasa uprising of 1959. The Agreement of the Central People's Government and the Local Government of Tibet on Measures for the Peaceful Liberation of Tibet, or the Seventeen Point Agreement for the Peaceful Liberation of Tibet, a bilateral agreement between the delegates of 14th Dalai Lama and the People’s Republic of China affirmed the Chinese sovereignty over Tibet.29 More of a compromise on the side of Tibet, and the rebel groups were tagged as aggressive forces and their exile was demanded. Many people including the families of the rebel groups fled to Nepal fearing the active hostilities taking place in Lhasa. These asylum seekers established camps primarily in the Himalayan border regions of Nepal such as Mustang, Nubri, and Solu Khumbu. By 1961, many of the refugees faced serious food shortages and suffered from a lack of adequate shelter and healthcare.30 These people, in spite of their pitiful living, were unwilling to return to Tibet due to the widespread violence.31 Nepal was viewed as a shelter for Tibetan guerillas.32 The uprising in Tibet only grew with time.
3.1.2. Fear of Persecution
Since 1959, the unrest in Tibet has only worsened and gathered large share of international attention. The conference of international lawyers on issues relating to self determination and independence for which was held in January, 1993 has agreed that
29
http://en.wikipedia.org/wiki/Seventeen_Point_Agreement_for_the_Peaceful_Liberation_of_Tibet (accessed on 2011/5/1). 30 http://www.mtholyoke.edu/~shres20u/classweb/tibetan_refugee.html (accessed on 2011/5/1). 31 See Melvyn C. Goldstein, ‘Tibet, China and the United States: Reflections on the Tibet Question’, The (available at Atlantic Council Of The United States' Occasional Paper, 294 http://www.columbia.edu/itc/ealac/barnett/pdfs/link4-goldstn.pdf (accessed on 2011/5/1). 32 Ibid.
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China committed the crime of Genocides upon the people of Tibet.33 It also condemned the persecution of Tibetan people on grounds that they wrote letters to the United Nations and carried Tibetan flags with them. Likewise, a report ‘Dangerous Crossing’ claims that the Tibetans willing to flee the unrest in their homeland are so strongly driven towards long-term safety that they are willing to make the crossing in spite of the precarious mountains and the sealing off of the Tibetan plateau.34 Some of the examples the 2008 protests in Lhasa, in which several protesters were arrested, detained, beaten up and kept in confinement. Thus, in spite of the resistance of Chinese government, influx towards Nepal remains significant.35 In aggregate, 3,000 Tibetans flee Tibet through Nepal annually, and approximately 20,000 reside in settlements scattered throughout Nepal.36
3.2. The ‘Gentlemen’s Agreement’
Gentlemen’s Agreement is an informal agreement among the Government of Nepal, the UNHCR, and the Government-of-Tibet-in-exile which protects the Tibetans passing through Nepal to India. Since about 1990, the agreement has provided that “Tibetans apprehended by the police within Nepal’s borders should be detained and turned over to the [Nepalese] Department of Immigration who in turn will contact UNHCR.37 The way this agreement works is as follows: •
Tibetans apprehended by the police within Nepal’s borders, however, will be
detained and then turned over to the Department of Immigration. •
Nepalese police will accompany them to the Department, which pays the police a
stipend that, according to different accounts, compensates them for their expenses only, provides them with a per diem for their services, or both.38
33
http://www.tpprc.org/documents/resolutions/others/Intlawyers_6-10jan1993.pdf (accessed on 2011/5/1). See International Campaign for Tibet, Dangerous Crossing : Conditions impacting the flight of Tibetan Refugees (2009), 32. 35 Ibid. 36 UNHCR Country Profile, Nepal, 2010. 37 http://www.unhcr.org/refworld/docid/3f51fbfb4.html (accessed on 2011/5/1). 34
38
According to UNHCR, while the police receive this stipend from the Department of Immigration, UNHCR supplies the necessary funds through grants to the Ministry of Home Affairs. Interview with Michel Dupoizat, Representative, UNHCR, in Kathmandu (May 25, 2001)
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•
The Department of Immigration contacts UNHCR
•
UNHCR first meets the refugees and makes sure they are going to India and upon
confirmation, carries out its mandate of safe expatriation of the person/s to India. This agreement is not applicable where the individual is determined to be a businessman or a legal visitor to Nepal with a valid Chinese passport and Nepalese visa and where UNHCR’s interview raises concerns that the individual may not be a Tibetan.39
3.3. Forced Expatriations of Tibetan Refugees in Nepal
There are three much hyped and well-known cases of forced expatriation and breach of the gentlemen’s agreement on the side of Nepal. One is the incident of 2003 and another of 2007. May 2003 when Chinese officials seized 18 Tibetan refugees from a Kathmandu jail, it is certainly possible that other incidents have happened unobserved in remote border areas. A near case of refoulement occurred also in June, when a group of Tibetans, including two sick children, were apprehended in the Nepal border region by Nepalese police, then abandoned on the difficult route back towards Tibet. The group hid for two days from Chinese police searching for them in the mountains of Nepal until they were rescued and brought safely to the Tibetan refugee transit center in Kathmandu.40 On July 16, Twenty-five year old Tsering Wangchen was handed over to Chinese officials and police on the Friendship Bridge, which marks the border between Nepal and Tibet. According to an eyewitness source in Nepal: Wangchen initially refused to get into the Immigration Department's vehicle because he was afraid, knowing he was going to be deported to China. But he got into the vehicle when immigration officers told him that he would be sent to India."41 This person, though earlier he was promised to be safely escorted to the Indian border became compelled to return back as the decision was 39
http://www.tibetjustice.org/reports/nepal.pdf (accessed on 2011/5/1).
40
http://www.savetibet.org/media-center/tibet-in-the-news (accessed on 2011/5/1).
41
http://www.savetibet.org/media-center/ict-news-reports/new-refoulement-case-nepal-tibetan-exilereturned-tibet (accessed on 2011/5/1).
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reached that Mr Tsering Wangchen, an ethnic Tibetan, should be deported from Nepal and not allowed to enter Nepal for three years. In early June 2010, two more cases of refoulement surfaced, which included two monks and a female under the joint operation of China’s border police and Nepalese police and a politician was also allegedly involved in this act. Two of the Tibetans, one of the monks and the young woman were jailed.42 Note: UNHCR was not as per the gentlemen’s agreement contacted prior to the
expatriation of these persons. The rising concern over Nepal’s actions taken in contrary to the principles of nonrefoulement is proximately related with the Sino-Nepal relations. Chinese government allegedly deployed financial incentives: it was rumored to pay bounties to Nepalese policemen to take refugees back to the border instead of to Kathmandu.43 There are also allegations of harassment by Chinese border guards within Nepal's borders, including a credible report by an international observer of a joint patrol by Chinese and Nepali border officials more than 30 miles inside Nepal. There were also numerous instances of APF officers assisting and protecting Tibetan refugees found in the border region. There were no confirmed reports of refoulement, but there were unconfirmed allegations of acquiescence to the return of Tibetans found on the border .44
3.6. The Concern of the International Community
The cases of forced repatriation of Tibetan refugees from Nepal have been matter of frequent international remarks. The UN Committee Against Torture (CAT) expressed concern on cases of refoulement of Tibetan refugees by Nepal the concluding observation adopted during the Committee's 35th session on 2005.45 The Committee recommended Nepal to "consider acceding to the 1951 Refugee Convention and other related 42
Nepal less tolerant towards Tibetan refugees, Newstex Web Blogs, January 22, 2010, available at www.lexisnexis.com (accessed on 2011/5/1). 43 "Refugees give cops tough time," Kathmandu Post, July 11, 2010. 44 Human Rights Report: Nepal, 2009 Country Reports on Human Rights Practices, US department of state March 11, 2010 45 http://www.savetibet.org/media-center/ict-news-reports/un-torture-body-concerned-refoulement-tibetanrefugees (accessed on 2011/5/1).
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international legal instruments. In addition, the Committee recommends that the State party enacts legislation aimed at prohibiting refoulement of persons without an appropriate legal procedure. UN Human Rights Council's Universal Periodic Review mechanism scrutinized Nepal's human rights record on 25 January, 2011 and recommended to: "Protect vulnerable refugee populations by allowing for registration of the refugee population in Nepal and by refraining from forcibly returning Tibetan asylum seekers to China” but the Nepalese delegation rejected it.46
CHAPTER IV
4.1. Analysis
The word jus cogens implies a great moral compulsion. Non-refoulement is a jus cogens as well as international customary law. Tibetan refugees enter India enroute Nepal and only a few stay behind, thus mass influx is not a problem for Nepal. Moreover, it was only in 2008 during the anti-Olympic protests within the Nepalese territory that threat to National Security was felt which cannot justify the cases of repatriation prior to it. Thus, there is little ground on which limitation to the principle as provided by the 1951 refugee convention can be cited. Nepal has not as of yet ratified the 1951 refugee convention, nonetheless, it had the moral obligation to respect the irrefutable human dignity. Reiterating the Convention against Torture’s principles, Article 3 of European Charter on Human Rights talks about nonendorsement of inhuman and degrading treatment. Nepal ratified the Convention against 46
Nepal asked not to send back refugees to China, (n 45).
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Torture on 14 May 1991, the article 3 of which explicitly prohibits refoulement. Thus, having not acceded to the 1951 refugee convention and its 1967 protocol cannot be a way out for Nepal in its moral and legal obligation to provide security to the refugees. Regarding the cases of forced expatriation of Tibetan refugees, there seems a wellgrounded fear of persecution as reported by the United State’s Department of State’s annual report on Human Rights situation around the world, regarding Nepal in 2009 that those refugees who are sent back to China face the formidable consequence of torture, illegal detention, unreasonable punishment and other severe and inhuman treatment which is a grave breach in right to dignified life. Though there are very few cases of refoulement reported in the UNHCR annual country report regarding Nepal, it has been presumed that the cases of forced expatriation that take place are much more than those that get noticed and reported. Moreover, there have been numerous concerns raised regarding the discrimination of providing the status of refugees to pre-1989 asylum seekers and not conferring the same to those who crossed the border since then. However, it is important to know that this is due to the treaty signed with China which calls for strict-border policy. The geopolitics between Nepal and China depends upon this policy. The US State Department 2009 Country Report on Human Rights points out that Tibetans repatriated from Nepal suffered torture, including electric shocks, exposure to cold and severe beatings, and were forced to perform heavy physical labour, thus, the authorities of Nepal should learn to reconcile their political interests with China and the agreements made with the International Community, in this case, the Gentlemen’s Agreement. Vigilance of what the world has to say about its actions in field of human rights is a must for Nepal if it seek to maintain its untainted image in International community. Damages to lives of people are irreparable consequences of Refoulement. Thus, the autonomy of UNHCR in aiding Tibetan refugees should be respected. However, we can not negate the non-binding character of the Gentlemen’s Agreement. Thus, a legal framework of international nature is most essential to generate a sense of accountability in the field of non-refoulement in the Nepalese context. Nepal is not a 15
monist country due to which accession and ratification is a must for a treaty to be binding upon Nepal and as of yet, Nepal is not a party to the parent refugee law, that is, the 1951 Refugee convention. The Nepalese delegate representing in UN arena has been refusing accession of this convention though recommendations have been made for the same. The Tibetan’s struggle for independence is not going to be solved overnight and the influx of refugee is, though, dropping in number, is still relatively high. In absence of a legal framework and presence of a high number in influx, the chances of violation of human rights becomes significantly high. And the bottomline is that human life is greater than trans0boundary politics. As mentioned above, Non-refoulement is only derogable in two conditions and is nonderogable if on the basis of political ideology. Nepal observes the principle of neutrality and equidistance. Whether Tibetan’s struggle for independence against China is genuine need not be decided by Nepal, but a Tibetan who endorses such idea should not be shunned and forcibly expatriated. The Extradition Act, 1988 under section 3 does allow Nepal to extradite an absconding alien on the request of a foreign country, however, the terms are that one should have committed an offence. Pursuance of a political ideology should not be interpreted as an offence. 4.2. Conclusion:
In a nutshell, efforts have been made by Nepal in implementation of the principle of nonrefoulement in the case of Tibetan refugees, however, geopolitics and absence of a legal framework limit the scope of application of the principle of non-refoulement in Nepal. In this milieu, following recommendations can be made: •
•
•
Accession and ratification of the 1951 refugee convention and its 1967 protocol Non-refoulement to be considered as directive principle in the upcoming constitution UNHCR’s role in safe expatriation of refugees and the gentlemen’s agreement be respected by Nepal
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17
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•
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