Nepal’s role in protection of Refugee

Term Paper in the Subject of the legal Research

B.A.LL.B. 3rd Year

10th April 2020

No. of Words: 2086

Submitted by:

Alina KC

BALLB 3rd Year

Submitted to:

Professor Rachit Murarka

Kathmandu School of Law

Purbanchal University

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Table of content
Abbreviation
Abstract
Chapter-1
1. Introduction
1.1 Background
1.2 Objectives
1.3 Methodology
1.4 Limitation
1.5 Rationality
Chapter – 2
2. Nepal’s role in Protection of refugee
2.1 Tibetan’s Refugee
2.2 Bhutanese Refugee
2.3 Urban Refugee
Chapter-3
3. Finding and Analysis
Chapter-4
4. Conclusion
Bibliography

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Abbreviation
ICCPR- International covenant on civil and political rights
UDHR- Universal Declaration and Human Rights
UNHCR- United Nation High commissioner’s for Refugee

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Abstract
Refugee protection has been of great concern to the international community ever since the
creation of United Nations. The access to asylum and responsibility for refugee protection is
supported by UNHCR (The United Nations High Commissioner for a Refugee’s) upholding its
core mandate to protect ‘Refugees’. This paper simply analyzes the concept, legal framework
and instruments in regards to refugee and how Nepal not being state party to the 1951
convention and 1954 convention host large groups of refugee since long time. Despite the fact
that the ‘Asia-pacific’ has been slow to engage with refugee protection and many state in the
region remain reluctant to sign up convention, Nepal is willingly showing its desirability of
international co-operation in regard to this. Nepal has acceded to number of other international
human rights instrument in regard to refugee protection. Though not being state party to refugee
convention Nepal itself obliges not to expel or return a refugee to the frontiers of territories
where their life or freedom would be threated on account of their race, religion, nationality or
whatever grounds, manifesting customary practice of our country to provide shelter and food to
stateless or homeless people. Therefore, this paper limits within the Nepal’s role in protection of
refugees and some recommendations for the Nepal’s are formulated at the end, including an
action in relation to protection, operations and resettlement.

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 Chapter – 1
1.1Introduction
1.1.1 Background
The term ‘refugee’ refers to a person or group of people who flew due to fear of life and
property and take shelter in another country who are not in position to return to their own
state due to fear of being victimized or insecure to their own interest. The refugee holds no
identity and left in a position of stateless and homeless due to having so called particular
caste, language, religion or member of a certain social or a particular group. The laws either
national or international states that every individuals in the world to be treated and protected
equally regardless of any things or any social identity they possess, yet people are fighting
over one’s superiority or inferiority creating humanitarian disasters like war, violence, ethnic
riots, religious strife etc. resulting number of people forced to leave their own lands where
their identity belongs. Therefore, Refugee is internally displaced person, stateless person or
asylum seekers whose safety and liberty is questioned.

However, the 1951 convention relating to the status of refugees 1, it states that “A refugee is
someone who owing to a well- founded fear of being persecuted for reasons of race, religion,
nationality, memberships of a particular social group or political opinion, is outside the
country of his nationality, and is unable to or, owing to such fear is unwilling to avail himself
of the protection of that country.” So refugee is one who seek asylum for their protection,
security and safety to another state. And an asylum giver nation is like a coin with human
rights on one side and refugee on other side.

Virtually, the first and most important basis for protecting refugee is the humanity. Human
life is an important assets and the rights regarding dignified life, has been enshrined in every
constitution of world I guess. So the protection of refugee and their status shall not be limited
as subject of international law only, morally it is also the subject of every nation who have
signed human law instruments. Nepal’s contribution for the protection can be seen as the
humanitarian basis on one hand on other Nepal has signed many human rights treaties which
clearly does not obliges to protect but Nepal found itself to obliged with it. There is a
prevailing view of refugee convention, supported by UNHCR and others is that the
responsibility for the care asylum seekers and the determination of their claims faults on the
state within whose jurisdiction the claims is made. 2 However Nepal’s initiatives adopted so
far challenge the prevailing view and have the potential to undermine compliance with
international refugee and human rights law.

1
The convention on the status of refugee, 1951
2
The convention on the status of refugees, 1951

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1.1.2 Objectives
The main objective of this paper is to study about;
 The refugee
 Nepal’s Role in protection of refugee

1.1.3 Methodology
The researcher has used doctrinal method for the study. The primary source for this study
is refugee convention and the secondary sources are books, articles, journals and
websites.

1.1.4 Limitation
Due to the word limits in this paper, the researcher here only discuss about the Nepal’s
role only.

1.1.5 Rationality
This topic is chosen with the expectation that this paper will assist to those who want to
research further on this same topic.

Chapter- 2
2.1 Nepal’s role in protection of Refugee
As stated above, Nepal along with other 42 states is non-signatory state to the 1951
convention and its 1967 protocol3. These convention and protocol documents agrees to create or
authorize signing states to protect refugees. This convention defines which institutions will be
responsible for refugee processing, monitor implementation of the national laws and gather
relevant data to review impacts of their programs 4. So Nepal does not hold any responsibility to
host refugee in their territory. Despite this Nepal was and is actively participate in refugee
protection since long decade which are as follows:

2.1.1 Tibetans Refugee

3
https://immigrationforum.org/article/fact-sheet-international-refugee-protection-system/access on 29th march
2020
4
Ibid

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 Tibetans first sought refuge in Nepal in 1959, when tens of thousands left Tibet following
the flight of the Dalai Lama XIV to India. Although many only transited Nepal on their way to
India, several thousand Tibetans remained and the government of Nepal responded generously
by providing land to settle and the right to residence. Today it is estimated that Nepal hosts
between 12,000 and 20,000 Tibetans.5

2.1.2 Bhutan Refugee

The second group of refuges consists of refugees from Bhutan residing in camp settings
in eastern Nepal. As of 31 December 2014, the total camp population stood at 23,059 refugees.
Refugees from Bhutan are also recognized by the government of Nepal since the onset of the
crisis in the early 1990’s.6 Bhutanese refugee are many opted for the third country and resettled
like US, Canada. However, about 7000 refugee are still here in Nepal.7

2.1.3 Urban Refugee

Lastly, the so called urban refugees and asylum seekers also seek protection in Nepal.
They come from 11 different countries and the majority of them are from Pakistan, Myanmar
and Afghanistan. As of 31 December 2014, Nepal hosted 137 asylum-seekers and 431
recognized refugees awaiting a durable solution. 8 The on- going Rohingya Muslims refugee
crisis stands as a problem to world and a couple of hundred find their way to Nepal. According
to united Nation Refugee Agency (UNHCR) Nepal small number of Rohingya refugees are
recognized under international law. Also it is believed that several hundred are living in Nepal
without UNHCR recognition.

Chapter-3

3. Finding and Analysis

5
Compilation report submitted by the United Nations High commissioner for Refugees ‘for the office of the High
commissioner for Human Rights’- pdf file:///C:/Users/Lenovo/Documents/legal%20research%20term%20paper/
unhcr_upr23_npl_e_main.pdf access on 29th march,2020
6
Ibid
7
https://www.nepalitimes.com/opinion/who-stands-with-bhutanese-refugees-in-nepal/access on 29th march
2020
8
UNHCR report - 2014

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 Nepal has been traditionally providing hospitality to refugees for decade despite being an
underdeveloped landlocked nation. Nepal has given shelter to the first generation. Tibetan
refugees and the Nepali origin Burmese refugee. Nepal had provided security and assistance to
more than 100,000 refugees9 with the help of UNHCR who have entered Nepal from Bhutan in
the early 1990’s through ethnic cleansing. Now the arising problem is increasing of the rohingya
refugees.
There is clear law that if a person has committed a crime against peace, committed a war crime,
crime against peace, committed a crime against humanity, a serious non- political crime outside
the country of asylum and acted contrary to the principles of UN, the refugee protection cannot
be granted him/her.10
Although Nepal has not signed and adopted the convention relating to the status of refugee 1951
and not enacted any national laws to protect refugees, But Nepal has given shelter to the refugee
which is a good act of humanitarian. However Nepal has host large number of refugee means
Nepal accept the full responsibility for their protection as well. The core principle that a refugee
should not be returned to a country where they face serious threat to their life or freedom is a rule
of customary international law to which Nepal is subsequent compliance. Along with this Nepal
has signed many human rights instrument11 there though Refugee convention does not oblige
Nepal, Nepal virtually, is obliged to protect individual irrespective of their grounds. UNHCR
Nepal statics data12 shows billion of rupees has been spent every years for the refugee growth but
their recognition, their status are still in hold. We can find Nepal has dual policy on refugees, in
some cases, refugees has been welcomed and provided security, while in some cases the action
has been taken to stop on border and arrest the refugees who have already entered the country
and forcibly send them to the country of origin. In some cases even the generosity of moving
refugees to a third country is found. So the Nepal’s desirability is sometimes questioned because
of the equivocal standard of Nepal.
Moreover, refugees residing here in Nepal since long time is facing the problems of citizenship.
Many refugee doesn’t have citizenship and Nepal Government just couldn’t address this issues
which creates the refugee crisis and their complications. In fact the supreme court of Nepal has
also ordered to enact National laws on refugee and to be a party to the convention relating to the
status of refugee 1951 to end the discrimination against the refugees. Nepal is aware of refugee
crisis and their implications. The resettlement of Bhutanese refugees is still on-going
complications despite the fact that the number of years have passed.13 Therefore, adding more
refugee will led the country and individuals to critical situation since it took over two decade to
reach this level of success and entailed a milestone agreement between countries and UN
agencies. So, that the Nepal government should pay attention to the fact that Nepal is now a hub
for asylum seekers and is only increasing apparently. Nepal’s role in 1950’s was greater but

9
Ibid
10
Refugee convention on the status of refugee 1951, article 1(F)
11
Such as: ICCPR, ICESCR and UDHR
12
https://www.unhcr.org/nepal.html access on 29th march 2020
13
https://kathmandupost.com/opinion/2018/04/08/helping-people-on-the-moveaccess on 29th march 2020

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Nepal’s shall adopt more policies, law, rule settled previous refugee and then only open the gate
to the other refugee.

Chapter – 4
4. Conclusion
Although south Asian nations are liberalized in the traditional practice of providing hospitality to
refugees, these countries have unclear policies regarding refugees. There is no country in south
Asia other than Afghanistan which has a national refugee law and none of the south Asian
countries have signed the convention relating to the status of the refugee 1951. When we see the
behavior of Nepal’s neighboring nation India regarding giving refuge to the refugee, India
granted asylum to the Tibetan refugee easily but Bhutanese refugee were sent to Nepal crossing
the border . Therefore, Nepal shall institutionalized and instrumental zed the policies regarding
opt of refugee.
Because of the lack of laws and concrete policies regarding Refugee convention Nepal grants
asylum to the refugee as a voluntary act which ought to be institutionalized as soon as possible.
This issues shall be upheld through legal concept and instruments.

Bibliography

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1) Compilation report submitted by the United Nations High commissioner for
Refugees ‘for the office of the High commissioner for Human Rights’- pdf
file:///C:/Users/Lenovo/Documents/legal%20research%20term%20paper/
unhcr_upr23_npl_e_main.pdf access on 29th march,2020
2) https://immigrationforum.org/article/fact-sheet-international-refugee-
protection-system/access on 29th march 2020
3) https://kathmandupost.com/opinion/2018/04/08/helping-people-on-the-
moveaccess on 29th march 2020
4) https://www.nepalitimes.com/opinion/who-stands-with-bhutanese-refugees-
in-nepal/access on 29th march 2020
5) https://www.unhcr.org/nepal.html access on 29th march 2020
6) Refugee convention on the status of refugee 1951
7) UNHCR report - 2014

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