Some 100,000 Bhutanese refugees (Lhotshampas) have been living in exile in eastern Nepal since the early 1990s after being denied citizenship rights by the government in Bhutan. After two decades of attempts to secure for the refugees the internationally recognised right to return to their original homes, the search for durable solutions has now shifted markedly in the direction of third country resettlement. Eight countries including the United States, Australia, Norway and others have offered resettlement places and permanent residency rights to the majority of the refugees concerned. In 2008, resettlement processes commenced.
While many issues are at stake in this process, this project proposes to explore viable means of addressing one fundamental human rights issue relevant to these refugees, but which has been virtually ignored in the various processes to date. This issue concerns the rights of those Lhotshampa refugees who choose to resettle in third countries to reclaim, repossess or otherwise exercise control over their original homes, lands and properties inside their country of origin, Bhutan.
This project will examine three highly compelling questions:
1. What rights do those refugees opting for third country resettlement have under international human rights, refugee and humanitarian law to reclaim their former homes and lands, and to what extent are these rights affected by choosing to resettle?
2. In lieu of physical repossession of these original homes and lands (eg. HLP Restitution), what type of compensation arrangements might be developed to provide at least some measure of justice to those forcibly expelled from or otherwise obliged to leave their homes and lands?
3. What creative policy options could be developed to find rights-based solutions for securing the HLP rights of those opting for third country resettlement, both in terms of the legal responsibilities of the Royal Government of Bhutan and the international community (including UN agencies and countries hosting the resettlement population)?
This project will be dedicated to promoting both compliance with relevant international legal responsibilities and the protection of the international (and national) legal rights of the refugee population.
In developing a series of practical proposals for achieving these two objectives and comprehensively answering the questions posed above, the project will draw on the expertise of some of the world’s leading practitioners and experts in the fields of HLP rights, displacement law, refugee law and human rights law. Analysis will be carried out on the extent to which international precedents already exist for developing human rights consistent remedies for forced displacement involving the provision of just and satisfactory compensation. Among others, the post-World War Two German-Jewish compensation measures will be explored, together with the work of the UN Compensation Commission (UNCC), the more recent Kurdish compensation programme in Turkey and the jurisprudence of the European Court on Human Rights and other concrete examples of HLP compensation in practice. The very latest developments in international, regional and national law concerning the rights of refugees and displaced persons to housing, land and property restitution will also be explored in detail, in particular the application of the UN “Pinheiro Principles’ on Housing and Property Restitution for Refugees and Displaced Persons (2005).
The project will be implemented on the basis of the following premises:
1. Third-country resettlement should not in any way jeopardise or otherwise reduce the HLP restitution rights of refugees to return to, reclaim or re-assert control over their original homes, lands and properties inside Bhutan;
2. Resettlement by refugees does not in any way extinguish HLP restitution rights within Bhutan, and these rights remain in place and claims thereon remain outstanding;
3. If compensation in lieu of return-based restitution is seen by the relevant parties (international community, resettlement countries, Bhutan, Nepal, the refugee community, etc) to constitute an acceptable remedy to which all resettling refugees are entitled, a range of research efforts will be required to provide the basis for a just and satisfactory compensation programme. These will include:
4. If physical return is not allowed and no compensation programmes are developed, any crimes or human rights abuses that may have taken place affecting the refugees concerned will effectively have been allowed to take place without penalty or accountability. Moreover, the Bhutanese authorities will understand that their actions in expelling one-sixth of the pre-exodus population of Bhutan on the basis of ethnicity did not attract international condemnation, and was in fact somehow tacitly affirmed by the international community. As a result, they and other regimes might inadvertently be encouraged to undertake similar actions in the future. For the stability of the region, as well as in the interests of justice for those affected, this must by all means be avoided.
Formation of Bhutanese Refugee Restitution Organisation, March 2012
The recent formation of the Bhutanese Refugee Restitution Organisation (BRRO) in March 2010 by members of the refugee community provides an ideal and timely impetus for carrying out this innovative project. This project will be led by Displacement Solutions, and carried out jointly with the BRRO.