Testimony of Bill Frelick to a Joint Briefing for the Congressional Children's Caucus and the Congressional Human Rights Caucus on the Status of Stateless Children
FEBRUARY 14, 2007
On February 15, 2007 Bill Frelick testified before the Congressional Children's Caucus and the Congressional Human Rights Caucus on stateless Bhutanese refugee children living in Nepal.
Recognizing that we have a very full panel of witnesses today and bearing in mind that the legal human rights framework I presented in my previous testimony is for the most part unchanged, and available on the Human Rights Caucus web page, I will today confine my remarks to one particular group that illustrates this problem—stateless children from Bhutan living in refugee camps in Nepal. I had the opportunity to visit all seven refugee camps in November to assess conditions in which the children there are living. Out of a total camp population of about 105,000 refugees, 40 percent are children. I must note at the outset, however, that the adult members of this population are stateless as well and are also left vulnerable due to their lack of a recognized nationality.
Let me first provide some background on the origins of these children.
Restrictive Citizenship Laws in Bhutan—the Cause of Statelessness and the Refugee Problem
These refugees are ethnic Nepalese. Their ancestors first began migrating to Bhutan in the nineteenth century. Many became eligible for Bhutanese citizenship under a 1958 Nationality Law. However, by the late 1970s the ethnically, culturally, and politically dominant Drukpa establishment had come to see the Nepali speakers’ growing numbers and influence as a threat to Bhutan’s cultural identity and to their own privileged position. Increasingly, the government asserted that the majority of the Nepali speakers in Bhutan were not in fact citizens but illegal immigrants who threatened Bhutan’s political, religious, and cultural identity.
The government invoked these perceived threats as justification for a series of discriminatory measures aimed at the political, economic and cultural exclusion of Bhutan’s Nepali speakers, including two Citizenship Acts that tightened the requirements for citizenship. The 1977 Citizenship Act was followed by a nationwide census, and citizenship cards were issued only to those who met the strict qualifications of that Act.
A 1985 Citizenship Act tightened the requirements for Bhutanese citizenship still further. Under the 1985 Act, a child would qualify for citizenship by birth only if both parents were Bhutanese. The requirements for eligibility for citizenship by naturalization under the 1985 Act were: residence in Bhutan of 15 years for government employees and children with one Bhutanese parent, and 20 years for all others; the period of residence must be registered in the government records; proficiency in Dzongkha, the language of the ruling ethnic group, the Ngalongs; good knowledge of the culture, customs, traditions, and history of Bhutan; good moral character; no record of imprisonment for criminal offences; and no record of having spoken against the king, country and people of Bhutan. The 1985 Act granted the government of Bhutan the right to reject any application for naturalization without giving reasons. The 1985 Act also provided for citizenship by registration, which required that one must have been permanently domiciled in Bhutan on or before December 31, 1958 and one’s name must have been registered in the Ministry of Home Affairs census register.
The 1985 Citizenship Act was followed by a new census in 1988. This census amounted to a selective, arbitrary and retroactive implementation of the 1985 Act. First, it took place only in southern Bhutan, where the Nepali-speaking population resided. Second, Nepali speakers were denied the benefits of the provisions in the 1985 Act on citizenship by naturalization; instead, Bhutanese citizenship for Nepali speakers was restricted to those who could prove residence in Bhutan since before December 31, 1958. The citizenship identity cards issued after the previous census were disregarded: people who could not prove residence since before the 1958 cut-off date were classified as illegal immigrants, even if they were in possession of a citizenship card.
The 1988 census placed people into one of seven categories. Only those people who could prove they resided in Bhutan in 1958 were categorized as “genuine Bhutanese”; everyone else was placed in one of six other categories. The Bhutanese authorities applied exceedingly strict criteria in this regard. For example, people who had documents proving residence before and after 1958, but not 1958 itself, were categorized as “returned migrants”, that is, people who had left Bhutan and then returned again. Census officials frequently confiscated the citizenship cards of people who had no documents to prove residence in 1958.
The census caused considerable anxiety among the Nepali speaking population in southern Bhutan. This state of fear and resentment was exacerbated by a series of “Bhutanization” measures aimed at enforcing a distinct national identity, in line with Bhutan’s “one nation, one people” policy. For example, on January 16, 1989, the king issued a decree requiring all citizens to observe the traditional Drukpa code of values and dress. This was followed in February 1989 by a decision to remove Nepali from the curriculum in all schools in southern Bhutan.
These policies were perceived as a direct attack on the cultural identity of the ethnic Nepalese, and led to growing unrest in southern Bhutan, culminating in mass demonstrations in September and October 1990. The government response was swift. All participants in the demonstrations were classed as ngolops (“anti-nationals”), and thousands of people accused of taking part in the demonstrations were arrested and detained. Many were subjected to ill-treatment and torture; a number of people were reported to have died in detention. The security forces staged frequent raids on the homes of ethnic Nepalese, and there were numerous accounts of women and girls being raped in the course of these raids.
By the end of 1990, the first Nepali speakers fled Bhutan. Some had been released from prison on condition that they would leave the country, while others fled to avoid falling victim to arbitrary arrest and detention. People who were categorized as non-nationals under the 1988 census were told to leave the country or face imprisonment. The security forces harassed many Nepali speakers, in some case destroying their homes, and forced others into exile by intimating them into signing so-called “voluntary migration forms.”
Protracted Statelessness: No Resolution after 15 years in Refugee Camps
The Bhutanese have been living in the camps in Nepal for more than 15 years. Despite 15 rounds of bilateral talks between Bhutanese and Nepalese government authorities, there has been no progress toward resolving their situation. Exhaustive negotiations, so far, have resulted only in a “verification exercise” carried out over a two-year period by a Joint Verification Team of Nepalese and Bhutanese officials. The verification exercise was intended to resolve the nationality status of the refugees and pave the way for the repatriation of those found to be Bhutanese nationals who were forced out of the country by placing them in one of four categories. The results, released in 2003, were disappointing to say the least. First, the verification exercise never expanded beyond one camp, Khundunabari, so, at best, was able to verify the status of only 10 percent of the total refugee population. Even so, only 2.5 percent of the refugees were found to be Bhutanese citizens who had been forcibly expelled and who would be allowed to repatriate with full citizenship rights.
To date, none of this small “category 1” group has actually been allowed to return. The bulk of the refugees, 70 percent, were categorized as “Bhutanese who voluntarily migrated”—category 2, which supposedly provides for the right to return (though none have yet been allowed back), but without compensation or restoration of lost property and with an arduous process for reclaiming the Bhutanese citizenship. Another 24.5 percent were categorized as non-Bhutanese—utterly stateless. Finally, 3 percent were categorized as “criminals”—usually as a result of the nonviolent expression of their political beliefs, who presumably would be subject to arrest upon return.
Bhutan’s attempts to limit the unconditional right of return to people in category 1 violate its obligations under international law. Regarding the people in category 2, Bhutanese who are deemed to have left Bhutan voluntarily, Bhutan argues that these people have renounced their Bhutanese citizenship. However, the circumstances surrounding people’s departure from Bhutan in the early 1990s make clear that, far from leaving voluntarily, Nepali-speakers were either forced to leave, or felt compelled to leave the country to avoid harassment, physical abuse and imprisonment. There is, thus, no basis for distinguishing between people in categories one and two: they should all be allowed to exercise their right to return to Bhutan should they so wish and have their status as citizens of Bhutan restored to them with immediate effect.
The verification exercise put children in a particular quandary. Under the 1985 Citizenship Act, only children whose parents are both citizens of Bhutan are citizens by birth. Since only 2.5 percent of the refugees in one camp have been recognized as citizens, few children will have two Bhutanese citizen parents. Those belonging to Category 2, the largest category that theoretically will be allowed to return will find it nearly impossible to obtain Bhutanese citizenship upon return. They will be required to qualify under the 1985 Citizenship Act. Among other strict provisions, the Act requires proficiency in the Dzongkha language, which in almost all cases the children have not heard spoken their entire lifetimes outside primary school language classes in the camps. The Act also requires 20 years of residency in Bhutan (or 15 years for children with one Bhutanese parent)—which no child could fulfill. After returning, they would have to wait 15-20 years before being able to apply for citizenship. This means that it is likely that most Bhutanese children currently living in the Nepalese refugee camps if they ever are allowed to repatriate will most likely remain stateless. As stateless persons they would face significant restrictions to their basic rights. Under the current Bhutanese ID system, they would not be able eligible for higher education or to obtain government jobs, trading or business licenses without a “No Objection Certificate”. Such certificates would not be issued to the children of stateless people. They would be reduced to being subsistence farmers, but would not have land, so no means to sustain themselves.
While voluntary repatriation is recognized, in principle as the optimal refugee solution, it presumes fundamental changes in the conditions that caused the refugees to flee in the first place. Available evidence suggests that conditions in Bhutan have not significantly improved for ethnic Nepalis. Human Rights Watch interviewed Bhutanese Nepali speakers who managed to avoid expulsion and still live in Bhutan, and found their status in Bhutan to be very insecure. Some have been denied citizenship cards following the latest census in 2005 and so they are now effectively stateless in their own country. Without documents, their situation in Bhutan is so difficult that some said that even if they are not going to be forced out of the country, they might have to leave at some point in the future simply because they won’t be able to survive in Bhutan.
Schools have reopened in southern Bhutan, but Nepali speakers have difficulty getting admission. This is true even for the ones with documents. There are very few health care facilities in the south, so in effect Nepali speakers are denied access to health care much of the time. This is true even for people with documents.
Another acceptable durable solution for refugees is local integration. The statelessness of some of the refugees—and particularly the one-quarter of the population categorized as non-Bhutanese—could be resolved through naturalization and integration into the fabric of life in Nepal. However, the policy of the government of Nepal has been firmly aimed at precluding the Bhutanese refugees from integrating in Nepal, both in legal and in economic terms. While Nepal allows the Bhutanese refugees to remain on its territory, it accords them few rights. First, regardless of the fact that many Bhutanese refugees have now resided in Nepal for more than 15 years, and that a significant proportion of the Bhutanese refugee population consists of children who were born in Nepal, no provision is made for Bhutanese refugees to acquire Nepalese citizenship.
The most recent development is an offer the U.S. government made publicly late last year to resettle up to 60,000 Bhutanese refugees from the camps in eastern Nepal. While many welcome this initiative, resettlement as a durable solution is not well understood among the refugees and has been the cause of some tension and conflict in the camps.
The Children: Misery, Frustration, Hope
We spoke with many young people during our visit to the camps. On one hand we were struck at how bright and capable they appeared to be. Despite living all or most of their lives in the restrictive setting of a refugee camp, they have benefited from parents who for the most part value education. The children were generally vocal in expressing their desires and in articulating their human rights. On the other hand, they are extremely frustrated and see their lives as wasting away. For the most part, they are not set on a particular solution, but do not want to remain in limbo any longer.
Time and again, the refugees expressed their gratitude for the support they have received from the international community. They consistently said that their true desire was to be restored to the status of full citizens with full respect for their political, civil, economic, social, and cultural rights. A young man expressed his frustration, saying, “I cannot live in the camp any more. I will go to any country where they will give me citizenship, even if it is Afghanistan.” Another young man told me:
I don’t want the mask of a refugee any longer. We don’t know about things in Bhutan. I was only 5 or 6 years old when I left. I don’t remember much about my country. I wasn’t even in school yet. Now when young people talk about Bhutan, they have no sense of what it is. We want to brighten our future. And we want a speedy solution—by any means.
A student said:
Young people in the camp are frustrated. We have many talents, but as refugees we don’t get a chance to express ourselves. Sometimes I feel I want to end my life.
I was only 6 or 7 when I left Bhutan. I have little memory of the country. The refugee life is miserable. We are suffering. We lack financial support. Our brothers and sisters have no jobs. The only job is to be a teacher [in the camp]. We can’t go outside the camp to work. We are not allowed to go outside the camp. We are hearing about third country resettlement. We want to know about life in America. My aim is to return to Bhutan, but the autocratic government of Bhutan would make if very hard to change the system of government of Bhutan. There is no UNHCR officer there, no human rights office in Bhutan. It would have to change. That is so very difficult. Lhotshampas [a name some give the Nepalese who lived in southern Bhutan] are living in miserable conditions. We hear news from people in Bhutan, but we have no direct communication with them. We have lived here for 15 years. I am not married, but one day I will have children. I want to know what it will be like. Our first aim is repatriation, but if that is not possible, we need to think of something else. We need Nepalese nationality as our second aim.
A young woman said:
Sometimes when we walk at night it is dangerous. There are difficulties inside and outside the camp. It is not safe to walk alone at night. I have to walk with friends. There is no guarantee for safety. We [women] do not get full opportunities compared to men. Women don’t get applications to work. I don’t get a full opportunity in any field. I want to work to improve women’s rights in our society. I am deprived. We are not able to do work other than teaching. We are stateless. We are compelled to do teaching….We want to go to our country. My motherland where I was born is precious to me. My family feels the same way. I want to go back to a Bhutan that is better than this. Until now, Bhutanese have been deprived of their rights. Men and women should be equal and free. If we go back to our motherland, I have the same hope for human rights.
A middle-aged man speaking to me with his daughter sitting in his lap told me:
Repatriation would be the best solution, but there is no way that will happen. The government of Bhutan, we have learned that it would not like to address us. The Royal Government of Bhutan does not want to call us Bhutanese. In such conditions people like me, having been tortured by pointing a weapon at my chest, I cannot go back to Bhutan. My life is at stake and I am at risk. Nothing they say would convince me to go back. I also would not like to appeal to the Nepalese to allow us to stay here. The Nepalese themselves are landless. They are homeless, so how can we stay here? My wife and I have heard the rumors all over camp. We have talked about it with our children. Our children said that we want resettlement. We want to live in an atmosphere where we can eat our own bread earned from our own sweat. We don’t want to be dependent on others. We no longer want the tag of “refugee.” Half our lives have been spent as refugees. We don’t want that tag on our children’s forehead. We want them to be proud citizens.
The refugees do not have a uniform opinion about their future. When asked, most initially say that their first choice is to return, and many stick to that as the only acceptable solution. But they differ on the terms and conditions of return. And they differ on how much longer they can wait for repatriation.
So far, Nepalese citizenship has not been an option. Nepal sees this population as Bhutan’s responsibility. There are some refugees, particularly those married to local Nepalese, who would opt for local integration in Nepal if that were an option. Nepal has recently passed a new citizenship law, which looks promising. Until now children born to a Nepalese mother and a Bhutanese father were not entitled to Nepalese citizenship. Now, although they are not accorded the automatic citizenship that applies to children of Nepalese fathers and Bhutanese mothers, they can be eligible for Nepalese citizenship if they have permanent residence in Nepal, and have not acquired citizenship of a foreign country on the basis of the father’s citizenship.
Many of the refugees—particularly among the youth—are thrilled with the prospect of resettlement to the United States. But what they lack is clear information about the resettlement process, and this creates anxiety and fear. In particular, they are anxious to know more about the conditions for acquiring US citizenship. Given their history of expulsion from Bhutan, they have understandable fears that without citizenship, their status would remain insecure and that they could even be expelled again.
This is an understandable reaction under the circumstances of their lives. The refugees need clear information about all three durable solutions—repatriation, local integration, or resettlement, and the terms and conditions of all three, including the feasibility of it happening at all. In any case, a “solution” without citizenship in the view of the overwhelming majority of the refugees would be no solution at all.
Recommendations to the U.S. Government:
Because this is testimony for a congressional briefing, our recommendations are confined to the U.S. government.
Despite the lack of diplomatic relations with Bhutan, the U.S. Government should use whatever diplomatic tools it is able to marshal to convince or pressure the Bhutanese government to allow all refugees to return if they so wish and restore their Bhutanese citizenship to them immediately; to respect the human rights of the remaining Nepali-speakers in Bhutan and to stop discriminating against them; and ensure that Bhutan doesn’t expel any more Nepali-speakers. Bhutan should allow Category 1 refugees from the Khundunabari camp to repatriate immediately and to permit the UN High Commissioner for Refugees and other international observers to monitor the repatriation.
The U.S. government should work with UNHCR to provide information to refugees in the Nepalese camps about the three durable solutions and, in particular, to provide information about the offer or refugee resettlement to the United States, particularly emphasizing that it is entirely voluntary, that it is intended to lead to U.S. citizenship, and that it does not preclude the possibility of returning at some future date to Bhutan.
The U.S. government should proceed expeditiously with plans to begin processing those refugees who express an interest in U.S. resettlement and who meet U.S. eligibility criteria. The longer the delay between the time the offer was announced and resettlement actually starts, the greater the chance for misunderstanding and for obstruction by elements opposing resettlement.
The U.S. government should encourage the Nepalese government to allow Bhutanese refugees to naturalize.