Refugees from Bhutan: Nationality, statelessness and the right to return

International Journal of Refugee Law

Volumn 10, Issue 1-2, 1998, Pages 118-154

  Lee, Tang Lay ^a  

^a Jesuit Refugee Service Asia Pacific   (Thailand)

Author keywords

[No Author keywords available]

Indexed keywords

GEOPOLITICAL STUDY; HUMAN RIGHTS; NATIONALITY; REFUGEES; REPATRIATION;

BHUTAN;

EID: 0031659834     PISSN: 09538186     EISSN: None     Source Type: Journal    
DOI: 10.1093/ijrl/10.1-2.118     Document Type: Article

References (148)

1. As at 31 August 1995, the total camp population was 88,613, 45,175 were male and 43,438 were female. Statistics provided by the Refugee Coordination Unit of the Ministry of Home, Nepal. In February 1998, UNHCR put the estimated total number of refugees at 93,000 refugees, living in seven camps in the eastern Nepal districts of Khapa and Morang. See http://www.unhcr.ch/ world/asia/nepal.htm.
2. According to the second quarterly report of the UNHCR in Kathmandu, a total of 30,360 children were enrolled in the primary school programme and another 587 in the secondary school programme, both run by Caritas Nepal. See UNHCR Kathmandu, 'Situation Report on Bhutanese Refugees and Asylum-Seekers in Nepal Covering the period 1 April-30 June 1995', No. 2/95, Jul. 1995, 16.
3. Bhutan refused to include any third party in the talks even though India's role was seen as crucial to the final outcome and UNHCR was ready to assist. The bilateral talks started in November 1992 and in October 1993, the Joint Ministerial Committee agreed on the refugee categorisation.
4. See interview by fax with Lyonpo Dawa Tsering, Foreign Minister of Bhutan in Himal, Vol. 7 No. 4, Jul.-Aug. 1994, 22. See also Kinley Dorji, Editor of Kuensel, the Bhutanese Government-run and only paper, in 'The View from Thimpu - Hoping for a Gentler Judgment', reproduced in Himal, Jul.-Aug. 1992, 39.
5. See interview by fax with Lyonpo Dawa Tsering, Foreign Minister of Bhutan in Himal, Vol. 7 No. 4, Jul.-Aug. 1994, 22. See also Kinley Dorji, Editor of Kuensel, the Bhutanese Government-run and only paper, in 'The View from Thimpu - Hoping for a Gentler Judgment', reproduced in Himal, Jul.-Aug. 1992, 39.
6. See 'Meandering Talks, Lingering Refugees' in HUROB, Bhutan: Right and Refugees, Report '94, 1994, 2-3.
7. Art. 2 of the 1949 Treaty states that 'The Government of India undertakes to exercise no interference in the internal administration of Bhutan. On its part the Government of Bhutan agrees to be guided by the advice of the Government of India in regard to its external relations'.
8. See interview with Nepalese Foreign Minister Prakash Chandra Lohani in 'The Shuttlecock Refugees', Asiaweek, 1 Mar. 1996.
9. An Appeal Movement for 'The Restoration of Fundamental Human Rights in Bhutan and the Early Repatriation of Bhutanese Refugees' was launched on 7 Sept. 1995 by the Appeal Movement Coordinating Council (AMCC) with a petition to the King appealing for national reconciliation. Since the petition elicited no response from the King, the refugees initiated a march from the camps to Thimpu, capital of Bhutan, on 14 Jan. 1996; this was preceded by a marathon cycle rally organised by the SUB (Students Union of Bhutan), member of the BCDM (Bhutanese Coalition for Democracy Movement) from Siliguri to Jaigaon, both in India. Both events have brought the refugees into conflict with the law in India for ostensibly contravening s. 144 of the Indian Penal Code (illegal assembly).
10. See Parmanand, The Politics of Bhutan: Retrospect and Prospect, Pragati publications, Delhi, 1992, 92-107, for a brief personal history of the king, Jigme Singye Wangchuck, his induction to statecraft and his monarchial style. For a more critical view of the tight political control wielded by the king, see Dhakal, D.N.S. & Strawn, C., Bhutan: A Movement in Exile, Nirala Publications, New Delhi, 1994, 83-105 (hereafter Dhakal & Strawn, Movement in Exile).
11. See Parmanand, The Politics of Bhutan: Retrospect and Prospect, Pragati publications, Delhi, 1992, 92-107, for a brief personal history of the king, Jigme Singye Wangchuck, his induction to statecraft and his monarchial style. For a more critical view of the tight political control wielded by the king, see Dhakal, D.N.S. & Strawn, C., Bhutan: A Movement in Exile, Nirala Publications, New Delhi, 1994, 83-105 (hereafter Dhakal & Strawn, Movement in Exile).
12. See 'Population Politics' in Himal, Jul.-Aug. 1992, 17.
13. See Basu, G.K., Bhutan: The Political Economy of Development, South Asian publishers, New Delhi, 1996, 98 (hereafter Basu, Political Economy).
14. Ibid. See van Driem, G., 'Language Policy in Bhutan' in Aris, M. & Hutt, M., Bhutan: Aspects of Culture and Development, Kisdale, United Kingdom, 1994, 92, where undated figures are given of number of speakers of the various languages in Bhutan according to linguistic affinity and not ethnicity: Dzongkha, 160,000; Nepali, 156,000; and Tshangla, 138,000. The reliability of these figures is discounted by Dhakal & Strawn, Movement in Exile, 47-51, in light of other academic sources and van Driem's position as an employee of the Bhutanese Government.
15. Ibid. See van Driem, G., 'Language Policy in Bhutan' in Aris, M. & Hutt, M., Bhutan: Aspects of Culture and Development, Kisdale, United Kingdom, 1994, 92, where undated figures are given of number of speakers of the various languages in Bhutan according to linguistic affinity and not ethnicity: Dzongkha, 160,000; Nepali, 156,000; and Tshangla, 138,000. The reliability of these figures is discounted by Dhakal & Strawn, Movement in Exile, 47-51, in light of other academic sources and van Driem's position as an employee of the Bhutanese Government.
16. Ibid. See van Driem, G., 'Language Policy in Bhutan' in Aris, M. & Hutt, M., Bhutan: Aspects of Culture and Development, Kisdale, United Kingdom, 1994, 92, where undated figures are given of number of speakers of the various languages in Bhutan according to linguistic affinity and not ethnicity: Dzongkha, 160,000; Nepali, 156,000; and Tshangla, 138,000. The reliability of these figures is discounted by Dhakal & Strawn, Movement in Exile, 47-51, in light of other academic sources and van Driem's position as an employee of the Bhutanese Government.
17. Since Nepali may connote a single ethnicity and Nepalese may give the impression of one nationality, I use the term Llotshampa to denote the Nepali-speakers who reside in southern Bhutan.
18. See Sinha, A.C., Bhutan: Ethnic Identity and National Dilemma, Reliance Publishing House, New Delhi, 1991, 21-42, for a detailed account of the ethnic groups and their geographic locations. See also Dhakal & Strawn, Movement in Exile, 41-7. Among the Nepalese, the Brahmans and Chhetris belong to the higher caste while other ethnic groups, rather than tribes, include the Rai, Tamang, Gurung, Magar, Sunwar, all of which were represented among the refugees interviewed by the writer. For a fascinating overview of the ethnic groups in Nepal, see 'Ethnicity', the theme focus of Himal, May-Jun. 1992.
19. See Sinha, A.C., Bhutan: Ethnic Identity and National Dilemma, Reliance Publishing House, New Delhi, 1991, 21-42, for a detailed account of the ethnic groups and their geographic locations. See also Dhakal & Strawn, Movement in Exile, 41-7. Among the Nepalese, the Brahmans and Chhetris belong to the higher caste while other ethnic groups, rather than tribes, include the Rai, Tamang, Gurung, Magar, Sunwar, all of which were represented among the refugees interviewed by the writer. For a fascinating overview of the ethnic groups in Nepal, see 'Ethnicity', the theme focus of Himal, May-Jun. 1992.
20. See Sinha, A.C., Bhutan: Ethnic Identity and National Dilemma, Reliance Publishing House, New Delhi, 1991, 21-42, for a detailed account of the ethnic groups and their geographic locations. See also Dhakal & Strawn, Movement in Exile, 41-7. Among the Nepalese, the Brahmans and Chhetris belong to the higher caste while other ethnic groups, rather than tribes, include the Rai, Tamang, Gurung, Magar, Sunwar, all of which were represented among the refugees interviewed by the writer. For a fascinating overview of the ethnic groups in Nepal, see 'Ethnicity', the theme focus of Himal, May-Jun. 1992.
21. Dhakal & Strawn, Movement in Exile, 118.
22. Ibid., 70.
23. Ura, K., 'Development and Decentralisation', in Aris, M. & Hutt, M., Bhutan: Aspects of Culture and Development, 35.
24. See van Driem, G., 'Language policy in Bhutan' in Aris, M & Hutt, M., Bhutan: Aspects of Culture and Development, 95. See also 'The Facts Behind Recent Developments in Southern Bhutan' in INSEC & ICLD, The Bhutan Tragedy - When will it end?, INSEC & ICLD, Kathmandu, 1992, 148.
25. See van Driem, G., 'Language policy in Bhutan' in Aris, M & Hutt, M., Bhutan: Aspects of Culture and Development, 95. See also 'The Facts Behind Recent Developments in Southern Bhutan' in INSEC & ICLD, The Bhutan Tragedy - When will it end?, INSEC & ICLD, Kathmandu, 1992, 148.
26. Above note 6. See Rose, L.E. 'Bhutan' in Blaustein, A.P. & Flanz, G.H., Constitutions of the Countries of the World, Oceana Publications, N.Y., 1974. Art. 7 of the Treaty provides that subjects of one country residing in the other's territory would enjoy 'equal justice' on a level with its own citizens.
27. See Basu, Political Economy, 95; Dhakal & Strawn, Movement in Exile, 135-41.
28. See Basu, Political Economy, 95; Dhakal & Strawn, Movement in Exile, 135-41.
29. See Basu, Political Economy. Llotshampas were represented in the newly formed National Assembly and eligible for civil service.
30. See Resolutions no. 12 of me 24th Session of the National Assembly of Bhutan in 1966, no. 36 of the 32nd Session in 1970, no. 32 during the 34th Session in 1971, nos. 2 and 10 of the 35th Session in the same year and no. 20 of the 49th Session.
31. See Basu, Political Economy, 54. According to the World Bank figures, in 1982, Bhutan had 35,527 non-nationals in the labour force comprising 6,532 in the public sector, 1,732 in the private sector and 27,263 casual labourers.
32. See Dhakal & Strawn, Movement in Exile, at 186, where Dago Tshering the then Deputy Home Minister is quoted as saying that over 100,000 non-nationals were in the country employed mainly in development projects and comprising 80% of the workforce.
33. See 'The Dragon bites its tail' in Himal, Jul.-Aug 1992, 17-18; and Dhakal & Strawn, Movement in Exile, 185-7.
34. See 'The Dragon bites its tail' in Himal, Jul.-Aug 1992, 17-18; and Dhakal & Strawn, Movement in Exile, 185-7.
35. Kuensel, 'Translation of the Proceedings and Resolutions of the 73rd Session of the National Assembly of Bhutan held from August 10-September 2, 1995' in 'National Assembly Supplement', 18.
36. See Department of Information, 'Anti-National Activities in Southern Bhutan: A Terrorist Movement,' Bhutan, 1991, 21. In the towns of Phuntsoling, Pugli, Gomtu and Samchi, the Government stated that 50% of the students in primary schools were non-nationals. See also Dhakal & Strawn, Movement in Exile, 165, for a critique of the government's allegations that southern Bhutanese enjoy better access to the education facilities than northerners. Dhakal, however, is silent on the issue of non-nationals in the southern schools.
37. See Department of Information, 'Anti-National Activities in Southern Bhutan: A Terrorist Movement,' Bhutan, 1991, 21. In the towns of Phuntsoling, Pugli, Gomtu and Samchi, the Government stated that 50% of the students in primary schools were non-nationals. See also Dhakal & Strawn, Movement in Exile, 165, for a critique of the government's allegations that southern Bhutanese enjoy better access to the education facilities than northerners. Dhakal, however, is silent on the issue of non-nationals in the southern schools.
38. See Dhakal & Strawn, Movement in Exile, 193-1.
39. Ibid., 406-38. For an account of the role played by Nepalis in the merger, see ibid., 407-19 and for a brief history of the GNLF: ibid., 426-38.
40. Ibid., 406-38. For an account of the role played by Nepalis in the merger, see ibid., 407-19 and for a brief history of the GNLF: ibid., 426-38.
41. Ibid., 406-38. For an account of the role played by Nepalis in the merger, see ibid., 407-19 and for a brief history of the GNLF: ibid., 426-38.
42. INHURED, Bhutan: An Iron Path to Democracy, Kathmandu, 1992, 6. The seven categories were F-1, genuine Bhutanese nationals, namely, those with 1958 land tax receipts; F-2, returned immigrants; F-3, those not present at the time of the census; F-4, non-national wife and Bhutanese husband; F-5, non-national husband and Bhutanese wife; F-6, legal adoption cases; F-7, non-nationals, that is, migrants and settlers.
43. See petition dated 8 Apr. 1988 to the King by two southern Royal Advisory Councillors, Tcknath Rizal and B.P. Bhandari in Dhakal & Strawn, Movement in Exile, 592, which sets out some of the problems faced by the people during the census. They also proposed changes to the 1985 Citizenship Act to alleviate the hardships suffered by the people. Both were subsequently detained for presenting a seditious petition. They were released soon after but Teknath Rizal was kidnapped from Nepal and redetained. He has been under detention in Bhutan since mid-1989 and is an Amnesty International prisoner of conscience.
44. Four of the twenty-nine refugees interviewed by the writer cited 'driglam namsha' as one factor leading to their flight from Bhutan; at least one was unhappy with the implementation of the 1988 census, while three others were categorised as non-nationals under F-4, F-5 and F-7. See also Dhakal & Strawn, Movement in Exile, 171. Refugees, mainly Brahman and Chhetri, told the writer that they found it irksome to wear the gho and kira, heavy traditional Drukpa clothing for men and women respectively, even when they were working in the field. Penalties for failing to comply with the policy aggravated the southerners' resentment. See AHURA Bhutan, Bhutan: A Shangrila without Human Rights, AHURA Bhutan, 1993, 12.
45. Four of the twenty-nine refugees interviewed by the writer cited 'driglam namsha' as one factor leading to their flight from Bhutan; at least one was unhappy with the implementation of the 1988 census, while three others were categorised as non-nationals under F-4, F-5 and F-7. See also Dhakal & Strawn, Movement in Exile, 171. Refugees, mainly Brahman and Chhetri, told the writer that they found it irksome to wear the gho and kira, heavy traditional Drukpa clothing for men and women respectively, even when they were working in the field. Penalties for failing to comply with the policy aggravated the southerners' resentment. See AHURA Bhutan, Bhutan: A Shangrila without Human Rights, AHURA Bhutan, 1993, 12.
46. See van Driem, G., 'Language policy of Bhutan' in Aris, M. & Hutt, M., Bhutan: Aspects of Culture and Development, 99-102, for a favourable comparison of the Bhutanese policy with language policies of European countries. It is evident from van Driem that behind the UNICEF report one of three reasons for dropping Nepali from the school curriculum was that it encouraged illegal immigrants to take advantage of the free educational facilities in Bhutan.
47. See Anti-national Activities in Southern Bhutan, Sept. 1991, 3.
48. See also Dhakal & Strawn, Movement in Exile, 243-4. One refugee told the writer that he had fled in late 1990 because army soldiers had accused him of giving money to the 'party' and beaten him up. See Sharma, S., Lama, S., Ale, S. & Maharjan, J., 'Rape Survivors: Nepal district management of refugees' in Torture, Denmark, 2/95, 8-10, describing the work of the Centre for Victims of Violence (CVICT), a Nepalese non-governmental organisation, with 235 rape victims in the camps by Nov. 1991. 178 had suffered multiple rape by army soldiers, 3 by the police and 12 by civilians.
49. See also Dhakal & Strawn, Movement in Exile, 243-4. One refugee told the writer that he had fled in late 1990 because army soldiers had accused him of giving money to the 'party' and beaten him up. See Sharma, S., Lama, S., Ale, S. & Maharjan, J., 'Rape Survivors: Nepal district management of refugees' in Torture, Denmark, 2/95, 8-10, describing the work of the Centre for Victims of Violence (CVICT), a Nepalese non-governmental organisation, with 235 rape victims in the camps by Nov. 1991. 178 had suffered multiple rape by army soldiers, 3 by the police and 12 by civilians.
50. See also Dhakal & Strawn, Movement in Exile, 253. The reasons given by 29 refugees interviewed by the writer were accusations of helping dissidents, beatings by army or police, imprisonment, being forced to sign voluntary migration forms, confiscation of citizenship cards, being unable to produce certificate of origin, dissatisfaction with the dress code, fear of human rights violations, involvement in the demonstrations, threats and general insecurity in the village, eviction. CVICT stated that by 31 Jan. 1995, of 2,331 persons in their care, 1,842 were men (including boys) and 489 were women (including girls).
51. Of the 29 refugees interviewed, 5 claimed that their citizenship cards were confiscated, 6 reported confiscation of land tax receipts and other documents, 5 claimed they were forced to sign voluntary migration forms while 2 claimed they were videotaped signing the forms or testifying to the voluntariness of their departure, 2 claimed no compensation for the land and two reported their houses were burnt or destroyed. See Amnesty International, 'Bhutan: Forcible Exile', ASA 14/04/ 94, Aug. 1994 for further details and reports of refugees' experiences prior to their departure; Guragain, G., 'Refugees Unwelcome', in Himal, Jul./Aug. 1993, for data on documents in the possession of refugees when the population was 38,874. Only 332 households out of a total of 13,237 did not have any documents.
52. Of the 29 refugees interviewed, 5 claimed that their citizenship cards were confiscated, 6 reported confiscation of land tax receipts and other documents, 5 claimed they were forced to sign voluntary migration forms while 2 claimed they were videotaped signing the forms or testifying to the voluntariness of their departure, 2 claimed no compensation for the land and two reported their houses were burnt or destroyed. See Amnesty International, 'Bhutan: Forcible Exile', ASA 14/04/ 94, Aug. 1994 for further details and reports of refugees' experiences prior to their departure; Guragain, G., 'Refugees Unwelcome', in Himal, Jul./Aug. 1993, for data on documents in the possession of refugees when the population was 38,874. Only 332 households out of a total of 13,237 did not have any documents.
53. See Dhakal & Strawn, Movement in Exile, 267-73.
54. See Chan, J.M.M., 'The Right to a Nationality as a Human Right', 12 Human Rights Law Journal, No. 1-2, 1-14.
55. See Aris, M., Sources for the History of Bhutan, Wiener Studien zur Tibetologie und Buddhismuskunde, Heft 14, Vienna, 1986 - the Bhutan law code of 1729, 122-68, at 129.
56. Ibid., especially 143, 147. Since Bhutan shares religious and legal traditions similar to those of Tibet, for a extremely instructive account of the jurisprudence of truth in the legal cosmology of Buddhist Tibet, see French, R.R., The Golden Yoke, (Uncorrected Proof) Cornell University Press, London, 1995, 137-45.
57. Ibid., especially 143, 147. Since Bhutan shares religious and legal traditions similar to those of Tibet, for a extremely instructive account of the jurisprudence of truth in the legal cosmology of Buddhist Tibet, see French, R.R., The Golden Yoke, (Uncorrected Proof) Cornell University Press, London, 1995, 137-45.
58. See Ura, K., 'Development and Decentralisation' in Aris, M. & Hutt, M., Bhutan: Aspects of Culture and Development, 40.
59. Citizenship Act of 1958 as amended by the Lhengyel Shungtshog (Council of Ministers), 22 Mar. 1977, section THA.1.
60. Ibid., s. 2 under Eligibility and Power, which begins 'Any applicant holding lhe Citizenship of another country . . . shall not be granted Citizenship even if all the other required conditions are fulfilled.' It is silent on those who obtain the nationality of another country afterwards although this should still be covered by section 6 of the 1958 Law. See also s. the 1985 Bhutan Citizenship Act.
61. Nationality Law of Bhutan, 1958, s. 4(1).
62. Ibid., s. 5.
63. 1977 Citizenship Act, s. 2 under Conditions required for the grant of Citizenship.
64. Ibid., s. 1 under Conditions required for the grant of Citizenship.
65. Ibid., s. KA.3. under Conditions required for the Grant of Citizenship.
66. Bhutan Citizenship Act, 1985, s. 4.
67. Ibid.
68. 1977 Citizenship Act, s. CHA.3. under Procedure for Acquisition of Citizenship read with Thrimshung KA 12-2.1.
69. S. 6(a).
70. Ibid, s. 6.d.
71. The same official document sanctioned the migration in accordance with KA9(14)2/87/909, pursuant to the order of the Ministry of Home Affairs. It was unclear on what legal provision this order is based.
72. The records of CVICT, above note 37, would be useful independent information.
73. 1985 Citizenship Act, s. 6.c.
74. See s. 7(b)i of the 1958 law and section TA. 1. of the 1977 law.
75. 1977 Amendment Act, s. 7(b)i. The Thrimshung Chhenpo Tsa-Wa-Sum is the law on treason and anti-nationals which is still in force. In Dzongkha, Tsa-Wa means King, Kingdom and Government while Sum means three. The National Assembly of Bhutan confirmed and approved the death penalty for offences against Tsa-Wa-Sum during its 69th session, 19-26 Mar., 1990.
76. See Dorji, K., 'A View from Thimpu' in Aris, M., & Hutt, M., Bhutan: Perspectives on Conflict and Dissent, Kisdale, United Kingdom, 1994, 83, where the claim is made to the effect that 'Judicial officials also explain that 1958 was not a blind cut-off year. It was the year when the country's first Citizenship Act was passed by the National Assembly to grant Bhutanese citizenship to ethnic Nepalis who had been in the country for at least ten years and owned agricultural land'.
77. 1985 Citizenship Act, s. 3.
78. INSEC, The Bhutan Tragedy - Wien Will It End?, 9, where it seems that census records date back only to 1972.
79. See Enright, Constitutional Law, (1977), 75; Wade and Phillips, Constitutional and Administrative Law, (9th ed., 1977), 588.
80. See Enright, Constitutional Law, (1977), 75; Wade and Phillips, Constitutional and Administrative Law, (9th ed., 1977), 588.
81. Driedger, E.A., 'Retroactive Retrospective Reflections' in 56 Can. Bar Rev. 264, (1978); Burrows, J.F., 'The Retrospective Effect of Changes in the Law', in New Zealand Law Journal, (1976), 343.
82. Driedger, E.A., 'Retroactive Retrospective Reflections' in 56 Can. Bar Rev. 264, (1978); Burrows, J.F., 'The Retrospective Effect of Changes in the Law', in New Zealand Law Journal, (1976), 343.
83. Halsbury's Lawes of England, vol. 44, 'Statutes', (4th ed., 1983), para. 923.
84. While some may attempt to distinguish between retroactive and retrospective laws, it seems rather artificial in that the outcome is the same in either case. For present purposes, it is sufficient to say that legislation which has an effect on past events or their consequences is retrospective. The terms retroactive and retrospective are used interchangeably here. See Burrows, above note 65, 343.
85. Singh, M.P., V.N. Shukla's Constitution of India, (9th ed., 1994), 12.
86. Above note 31.
87. Eight of the refugees interviewed by the author claimed that they had been forced to sign voluntary migration forms. See also AHURA, A Shangrila without Human Rights, Nepal, 1993, 67, 76, 88, 99, giving personal accounts of refugees being forced to sign voluntary migration forms from 1991-1993.
88. See Ura, K., 'Development and Decentralisation' in Aris, M. & Hutt, M., Bhutan: Aspects of Culture and Development, 40.
89. See Parmanand, The Politics of Bhutan: Retrospect and Prospect, 68.
90. See Dhakal & Strawn, Movement in Exile, 84-7. Refugee leaders often cite the criticism of Eric Sottas, Director of SOS Torture in Development and Human Rights, that people in Bhutan do not enjoy as a matter of right, freedom of speech and expression, to dissent, to publication and a free press, of association and organisation, of civil and political rights, of equality and freedom from discrimination, of cultural, economic and social rights.
91. Dhakal & Strawn, Movement in Exile, 94-7.
92. See Weis, P., Nationality and Statelessness in International Law; Sijthoff & Noordoff, Netherlands, (rev'd 2nd ed., 1979), 117-9 concerning grounds for denationalisation of all or only naturalised citizens.
93. Ibid., 120-3. Weis discusses, among others, the Swiss decision of Lempert v. Bonfol and the Polish decision of Rajdberg v. Lewi concerning the Soviet Decree of 1921, two other Swiss decisions, Levita v. Federal Department of Justice and Police and Rosenthal n. Eidg. Justin- und Polizeidepartment, as well as the United Kingdom decision in Oppenheimer v. Cattermole, regarding the validity of German denationalisation decrees. See also Donner, R., The Regulation of Nationality in International Law; Transnational Publishers Inc, N.Y., 2nd ed., 1994, 165-8, 171-6.
94. Ibid., 120-3. Weis discusses, among others, the Swiss decision of Lempert v. Bonfol and the Polish decision of Rajdberg v. Lewi concerning the Soviet Decree of 1921, two other Swiss decisions, Levita v. Federal Department of Justice and Police and Rosenthal n. Eidg. Justin- und Polizeidepartment, as well as the United Kingdom decision in Oppenheimer v. Cattermole, regarding the validity of German denationalisation decrees. See also Donner, R., The Regulation of Nationality in International Law; Transnational Publishers Inc, N.Y., 2nd ed., 1994, 165-8, 171-6.
95. See Mann, F.A., 'Present Validity of Nazi Nationality Law's' in 89 LQR 194, 201-2 (1973), on the difference between validity of an offensive denationalisation law and its effectiveness. He concludes that 'According to the true German law the whole of the Hitler regime was, in matters of the relevant kind, no more than a regime of gangsters, incapable of creating law, only to inflict invalid acts of wrong and injustice. This is not a case in which the law of Germany or, indeed, the law of mankind attributes any vindicating authority to facts or effectiveness.'
96. Official Collection of Decisions, CO; Annual Digest, 1933-34, Case No. 115.
97. (1975) 1 All ER 538; (1975) WLR 347 (H.L.)
98. Sec Weis, above note 75, 46-7, 126, on the duty of admission and of non-expulsion of nationals. See also van Panhuys, H.F., The Role of Nationality in International Law, 163, where the issue of large-scale denationalisation based on race discrimination is discussed; Fisher Williams, J., 'Denationalisation', 8 BYIL 45, 61 (1927), to the effect that 'There will be general agreement that a State cannot, whether by banishment or by putting an end to the status of nationality, compel any other State to receive one of its own nationals whom it wishes to expel from its territory.'
99. Sec Weis, above note 75, 46-7, 126, on the duty of admission and of non-expulsion of nationals. See also van Panhuys, H.F., The Role of Nationality in International Law, 163, where the issue of large-scale denationalisation based on race discrimination is discussed; Fisher Williams, J., 'Denationalisation', 8 BYIL 45, 61 (1927), to the effect that 'There will be general agreement that a State cannot, whether by banishment or by putting an end to the status of nationality, compel any other State to receive one of its own nationals whom it wishes to expel from its territory.'
100. Weis, above note 75, 242.
101. See Ko Swan Sik, 'Nationality in Public and Private International Law', 29-30 Netherlands International Law Review (1982-3), 100, 101. Ironically, the existence of the 1951 Convention on the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness supports the proposition that customary international law does not prohibit denationalisation.
102. Art. 15 UDHR48 states that everyone has the right to a nationality and that no one shall be arbitrarily deprived of his nationality. See Henckaerts, J., Mass Expulsion in Modern International Law & Practice, International Studies in Human Rights, Martinus Nijhoff Publishers, Netherlands, 1995, 86-7; also Goodwin-Gill, G.S., 'Mass Expulsion: The Legal Aspects', Working Group of Experts on the Problem of Mass Expulsion, Institute of Humanitarian Law, San Remo, Italy, Oct. 1984.
103. Art. 15 UDHR48 states that everyone has the right to a nationality and that no one shall be arbitrarily deprived of his nationality. See Henckaerts, J., Mass Expulsion in Modern International Law & Practice, International Studies in Human Rights, Martinus Nijhoff Publishers, Netherlands, 1995, 86-7; also Goodwin-Gill, G.S., 'Mass Expulsion: The Legal Aspects', Working Group of Experts on the Problem of Mass Expulsion, Institute of Humanitarian Law, San Remo, Italy, Oct. 1984.
104. See Weis, above note 75, 125, for the view that the principle of non-discrimination may be now regarded as a rule of international law or a general principle of international law, and for the view that prohibition of discriminatory denationalisation on racial grounds should extend to discrimination on other grounds mentioned in the Charter of the United Nations, that is, sex, language and religion. His views on the principle of non-discrimination are supported by the development of human rights law and practice to this day. See also Schram, G.G., The Right to Nationality and the Problem of Statelessness, University of Iceland, Reykjavik, 1992 - basing himself on the Proviso to art. 1 of the 1930 Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws, the author argues that States no longer have the unilateral and unequivocal right to enact nationality laws at will. Proviso 1 declares that such a nationality law 'shall be recognised by other States in so far as it is consistent with international conventions, international custom and the principles of law generally recognised with regard to nationality.' His view is also based on legal developments since the 1930 Hague Convention.
105. See Henckaerts, above note 83, 109: 'situations in which the government tolerates, or even abets such indirect measures by private persons or groups would also impose liability on a government for not having prevented a mass expulsion.' This explanation of indirect expulsion is pertinent to the Llotshampa refugees as in their case, denationalisation and expulsion were achieved by the same means. On indirect measures that compel aliens to leave as a group including outright civil war to subtle forms of pressure, see ibid., 109.
106. See Das, B.S., Mission to Bhutan: A Nation in Transition, 89.
107. See Multilateral Treaties Deposited with the Secretary-General: Status as at 31 December 1994, 91.
108. See Multilateral Treaties Deposited with the Secretary-General: Status as at 31 December 1992, ST/LEG/ SER.E/11, 1993, 162, 187 respectively.
109. Art. 9.1 CEDW79.
110. Art. 9.2 CEDW79.
111. As stated in Andrews v. Law Society of British Columbia, ISCR 143 (1989); cited in Mahoney, K.E., 'Canadian Approaches in the Courts', Cook, R.J., Human Rights of Women - National & International Perspectives, University of Pennsylvania Press, USA, 1994, 445-6.
112. For example, s. 3(b) of the 1958 Nationality Law provides that a child shall be a Bhutanese citizen wherever born of a Bhutanese father after the commencement of the Act.
113. Van Bueren, G., The International Law on the Rights of the Child, Martinus Nijhoff Publishers, Dordrecht/Boston/London, 1994, 367.
114. Art. 1A(2) of the 1951 Convention provides that a stateless refugee is 'any person who owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, . . . not having a nationality and being outside the country of his former habitual residence . . . is unable or owing to such fear, is unwilling to return to it.' Art. 1.1 of the 1954 Convention relating to the Status of Stateless Persons reads: 'For the purpose of this Convention, the term "stateless person" means a person who is not considered as a national by any State under the operation of its law."
115. See Multilateral Treaties Deposited with the Secretary-General: Status as at 31 December 1992, ST/LEG/ SER.E/11, 162, 187 respectively.
116. Art. 1C(1)-(5) of the 1951 Convention Relating to the Status of Refugees.
117. This is the explanation in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1979, regarding the position of a stateless refugee who may not be able to return to his country of former habitual residence even though there has been a fundamental change of circumstances. See also Grahl-Madsen, A., The Status of Refugees in International Law, vol.1, Sijthoff, Leyden, 1966, 405-6, to the effect that art. 1.C(6) should not operate against a stateless refugee who is not in possession of a valid re-entry permit. Grahl-Madsen did not explain his assumption that a stateless refugee does not have a right to return to the country of former habitual residence, and other comments suggest the contrary; cf. ibid., 375.
118. This is the explanation in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1979, regarding the position of a stateless refugee who may not be able to return to his country of former habitual residence even though there has been a fundamental change of circumstances. See also Grahl-Madsen, A., The Status of Refugees in International Law, vol.1, Sijthoff, Leyden, 1966, 405-6, to the effect that art. 1.C(6) should not operate against a stateless refugee who is not in possession of a valid re-entry permit. Grahl-Madsen did not explain his assumption that a stateless refugee does not have a right to return to the country of former habitual residence, and other comments suggest the contrary; cf. ibid., 375.
119. This is the explanation in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1979, regarding the position of a stateless refugee who may not be able to return to his country of former habitual residence even though there has been a fundamental change of circumstances. See also Grahl-Madsen, A., The Status of Refugees in International Law, vol.1, Sijthoff, Leyden, 1966, 405-6, to the effect that art. 1.C(6) should not operate against a stateless refugee who is not in possession of a valid re-entry permit. Grahl-Madsen did not explain his assumption that a stateless refugee does not have a right to return to the country of former habitual residence, and other comments suggest the contrary; cf. ibid., 375.
120. This seems to be implied in Hathaway, J., The Law of Refugee Status, Butterworths, Toronto, 1991, 59-63, but the argument does not appear to have any legal or historical foundation; cf. Goodwin-Gill G.S., The Refugee in International Law, Clarendon Press, Oxford, 2nd ed., 1996, 41, note 43.
121. This seems to be implied in Hathaway, J., The Law of Refugee Status, Butterworths, Toronto, 1991, 59-63, but the argument does not appear to have any legal or historical foundation; cf. Goodwin-Gill G.S., The Refugee in International Law, Clarendon Press, Oxford, 2nd ed., 1996, 41, note 43.
122. See Goodwin-Gill, above note 98, 41-2, on the implications of statelessness in the refugee definition; also, ibid., note 40, recalling that the Ad hoc Committee had concluded that 'unable' in the refugee definition and in the draft Convention as a whole refers more to stateless refugees but also includes those refugees with a nationality refused passports or protection by their governments. The inference then is that art. 1C(6) is conditional on the stateless refugee obtaining the relevant permit to return from the State authorities. Art. 1C(5) does not make a similar provision for refugees with a nationality refused passports or permission to return which supports the proposition that the concern of the drafters was to provide for those refugees, stateless or otherwise, who did not wish to return to the country of origin owing to reasons of past persecution.
123. Takkcnberg, A. and Tahbaz, C.C., The Collected Travaux Préparatoires of the 1951 Convention relating to the Status of Refugees, Dutch Refugee Council/European Legal Network on Asylum, 1988.
124. See Marrus, M.R., The Unwanted: European Refugees in the Twentieth Century, Oxford University Press, New York, 1985, 297-8, 310.
125. See Goodwin-Gill, G.S., 'Different Types of Forced Migration Movements as an International and National Problem', in Rystad, G., ed., The Uprooted: Forced Migrations as an International Problem in the Post-War Era, Lund University Press, Sweden, 1990, 15, 24.
126. Sec Hannum, H., The Right to Leave and Return in International Law and Practice, Martinus Nijhoff, The Netherlands, 1987, 44-5, citing a 1964 UN study on this issue: '. . . the committee has come to the opinion that "arbitrary" is not synonymous with "illegal" and that the former signifies more than the latter . . . [A]n arrest or detention is arbitrary if it is (a) on grounds or in accordance with procedures other than those established by law, or (b) under the provision of a law the purpose of which is incompatible with respect for the right and security of person.'
127. See also Zedalis, R.J., 'Right to Return: A Closer Look', 6 Geo. Imm. L. J. 504-7 (1992), supporting the broader interpretation by reference to the debate preceding the adoption of art. 13(2) UDHR48.
128. See Hannum, above note 102, 56-9, for discussion of the interpretation of the term 'his own country' and the difference between 'return' in art. 13 UDHR48 and 'enter' in art. 12(4) ICCPR66, based on Ingles' study of the Universal Declaration and the travaux préparatoires of art. 12.
129. Article II of the Draft Principles adopted by the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities, Res. 2B(XV): UN doc. E/CN.41846 (1963), 40.
130. Uppsala Colloquium, Uppsala, Sweden, 21 June 1972, Appendix E, in Hannum, above note 102, 150-3. See identical provision in Report and Conclusions of the Conference of Jurists on 'Right to Freedom of Movement', ICJ, Indian Commission of Jurists and Mysore State Commission of Jurists, International Year of Human Rights, The Eastern Press, Bangalore, India, 1968, 87: Article 7 'Right to Enter A Country' - '(a) The right of a citizen to enter his own country should be recognised without limitation. The re-entry of long-term residents, including stateless persons, may be refused only in the most exceptional circumstances.' This provision acknowledges the recurring and growing problem of stateless persons even after the Second World War. Although it is a qualified right, the effective links of long-term residents, including stateless persons to the country of origin appear to be the primary consideration. Art. 7(b) continues: 'Deprivation of citizenship should not be used for the purpose of circumventing this right.' This is in pari materia to art. 10 of the Declaration adopted at the Uppsala Colloquium: 'No person shall be deprived of his nationality for the purpose of divesting him of the right to return to his country.'
131. See Hannum, above note 102, 27-32, where both considerations are discussed in relation to the right to leave articulated in art. 12 ICCPR66.
132. See Winning the Human Race? The Report of the Independent Commission on International Humanitarian Issues, Zed Books, London, 1988, 114-5 where the Commission also emphasised that regional organisations should work to resolve the problem and that regional mechanisms to control human rights could serve to ensure respect for the nationality, choice of residence and freedom to enter one's country and freedom from expulsion from one's country.
133. Art. 8 of the Declaration in Hannum, above note 102, Appendix F, 154-8, 156. See also Frelick, B., 'The Right to Return', 2 IJRL 444-5 (1990) on why the right to return is so fundamental.
134. See Mann, F.A., 'Present Validity of Nazi Nationality Laws' in 89 LQR 194, 196 (1973).
135. Art. 9 of Part II of the 1949 Constitution of India and s. 8(1) of the 1955 Indian Citizenship Act provide for renunciation of Indian citizenship upon acquisition of foreign nationality. S. 8(2) also provides for loss of citizenship of minor child of male person renouncing Indian nationality although such child could resume Indian citizenship by means of declaration within one year of attaining age of majority.
136. Art. 5, 1949 Constitution of India, which applies to people born before the Constitution, stipulates domicile as a requirement whether for citizenship by birth, citizenship by descent where either parent born in India or citizenship by residence where person has resided for 5 years in India before the enactment of the Constitution. Art. 8 provides that a person whose either parent or grandparent was born in India will be an Indian citizen if the person is registered with Indian consular or diplomatic representative in the country of residence.
137. Citizenship Act of India, s. 3(1) which applies to those born on or after 26 January 1950, provides for citizenship by birth in India on or after 26 January 1950 unless the person's father is a diplomat or an enemy alien and the person was born in a place held by the enemy. S. 4 provides for citizenship by descent where the person is born outside India after 26 January 1950 of an Indian father provided the child is registered within one year of birth or of the Act at the Indian consulate or the father is in Government Service.
138. S. 5 of the 1955 Citizenship Act provides for citizenship by registration where a person is of Indian origin, is resident outside India but has been ordinarily resident in India for 6 months before making the application. The wife and minor children of an Indian citizen may also obtain citizenship by registration under s. 5(1)(c) and (d) respectively. A person of Indian origin is defined as one whose either parent or either grandparent was born in undivided India.
139. S. 10(2)(e) 1955 Citizenship Act.
140. See s. 8 of the 1952 Citizenship Act. 1964 Citizenship Act of Nepal, s. 6(1)(c) provided for steps in surrendering foreign citizenship but was amended in 1992 to surrender of the foreign citizenship as a precondition before application for Nepalese citizenship. See also s. 9(1) which provides for automatic loss of Nepali citizenship upon acquiring foreign citizenship.
141. Citizenship Act of Nepal, 1952, s. 4(a) provides that children of Nepalese parents living outside but who have not acquired citizenship of that country will have Nepalese citizenship by birth. S. 2 provides that a resident in Nepal who was born there has Nepalese citizenship. Alternatively, a resident, one of whose parents is a Nepalese national and submits a written declaration making Nepal his home also has Nepalese citizenship.
142. 1964 Citizenship Act, Nepal, s. 3(1) provides that those born after commencement of the Act of Nepalese father will have Nepalese citizenship.
143. Constitution of Nepal, 1990, art. 9(1) provides that those born after the commencement of the Constitution of Nepalese father will have Nepalese citizenship.
144. 1964 Citizenship Act of Nepal, s. 6(1)(f). This was amended by s. 4 of the Nepal Citizenship (Fifth Amendment) Act 1992, which provided in new s. 6(2) for submission in prescribed form of application and evidence of steps taken to renounce foreign nationality. It is similar to the first limb of art. 9(5) of Part II of the 1990 Constitution.
145. Ibid., s. 10(3)(b) provides for deprivation of citizenship where a naturalised citizen other than one of Nepali origin for being absent from Nepal for more than seven years. See also Nepal Citizenship (Fifth Amendment) Act, 1992, s. 6 of which replaced 'persons of Nepali origin' in s. 10(3)(b) by 'son, daughter, or descendant of a Nepali national'.
146. Art. 9(5) of Part II of the 1990 Constitution.
147. Art. 9(6) of Part II of 1990 Constitution provides that the child or descendant of a Nepali citizen except one who was naturalised, is eligible for Nepalese citizenship after 2 years' residence in Nepal.
148. See UNGA res. 50/152, 5 Feb. 1996, entrusting UNHCR with the task of continuing efforts on behalf of stateless persons pursuant to UNGA resolutions 3274 (XXIX), 10 Dec. 1974 and 31/ 36, 30 Nov. 1976. The High Commissioner's Office was requested actively to promote greater number of accessions to the 1954 Convention relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness, and to provide relevant technical and advisory services on the preparation and implementation of nationality legislation to interested States. Further, States were urged to adopt nationality legislation with a view to reducing statelessness, consistent with fundamental principles of international law, particularly by preventing arbitrary deprivation of nationality, and by eliminating provisions which permit renunciation of nationality without the prior possession or the acquisition of another nationality. See also Executive Committee Conclusion 78 (XLVI-1995), requesting UNHCR actively to 'promote the prevention and reduction of statelessness through the dissemination of information, and the training of staff and government officials; and to enhance co-operation with other interested organizations'.