Refugee right to property restitution (Reproduction)
By Vidhyapati Mishra
A study report on the Bhutanese refugees by South Asians for Human Rights (SAHR) published in April 2007 highlighted that "resettlement is the only viable option; the refugees want an assurance that their right to return to Bhutan would be protected, should democracy be restored."
The members of prominent mission of SAHR included Pamela Philipose, Kuldip Nayar and Jacqueline Netto-Lyman. They visited Nepal from December 11 to December 14, 2006 and prepared the report on "No Gross National Happiness for Bhutanese refugees". Several aspects on refugees, including the living conditions in the UNHCR-administered camps, have been taken into account.
That the refugees are living in a sub-human condition is the stark reality. A nine-member family lives in a hut. There are 15 members squeezing into the same hut. There are cases of four to five families sharing the same hut. They use it just to spend nights. During the day they spend their time in the open.
This has created an unmanaged situation in the camps. Approximately, 40,000 refugees are children and teenagers. What happens to the right to safe living when the refugees are confined to such a small hut?
With the beginning of interviews for the third country resettlement plan by the International Organization for Migration and the United Nations High Commissioners for Refugees (UNHCR), the rights to housing and property restitution have been an issue. All the refugees languishing in UNHCR-administered camps want their land and property back when the situation becomes congenial for repatriation.
It is not that all the refugees willing to be resettled would prefer to be resettled permanently in any third country. Many refugees consider that once Bhutan becomes safe, they would move into their farm lands and get their property back.
A Geneva-based human rights organization, Centre on Housing Rights and Evictions (COHRE), is working in Nepal to provide guidelines to the refugees on the Pinheiro principles. The Pinheiro principles are very useful as they address the legal and technical issues surrounding housing, land and property restitution in situations when the displaced people have been arbitrarily or unlawfully deprived of their former homes, land, properties or places of habitual residence.
Legal Advisor to COHRE Kees Wouters in "Hoping to Return Home-Applying the Pinheiro Principles for Bhutanese Refugees and Displaced Persons" has written that the Pinheiro principles apply to ethnic Nepalis who had their places of residence in Bhutan and who were – because of various discriminatory measures – forced to leave Bhutan. The report published recently indicates that these principles are applicable to all the refugees living within and outside the camps as they are the victims of the ethnic cleansing.
However, lands and farms owned by the Lhotsampas have already been given to the Bhutanese. Habitat international Coalition undertook a fact-finding mission in 2001 to verify the claims of the refugees that Bhutanese king was resettling people from northern Bhutan on the lands once owned by the refugees.
The Habitat International Report on Fact-Finding Mission to Bhutan wrote, "In a private dispensary in Hatisar in India, the mission met two other residents of Gaylegphug, who verified the information given by Hari Prasad Adhikari, a refugee from Khudunabari camp, about his departure from Bhutan and the status of his properties. They confirmed that the sub-divisional officer has taken half of Adhikari's house and that his hotel has been renamed".
This means there would be two owners for the same land.
According to Pinheiro principles, the state must first recognize the rights to housing and property restitution of primary landowners. However, temporary or secondary residents must not be dishonoured. Article 10 of Pinheiro principles states: States shall allow refugees and displaced persons who wish to return voluntarily to their former homes, lands or places of habitual residence to do so. The right cannot be abridged under conditions of state succession, nor can it be subjected to arbitrary or unlawful time limitation".
The refugees and displaced persons have the right to return voluntarily to their former homes, lands or places of habitual residence, in safety and dignity. But a voluntary return in safety and dignity must be based on a free, informed, individual choice. The refugees should be provided with complete, objective, up-to-date, and accurate information, including information on physical, material and legal safety issues in countries or places of origin.
The Pinheiro Principles sets a standard for restitution law, policy and procedures derived from international treaties and related standards, as well as from restitution policies and practices of other national jurisdictions. The fact that Bhutan is a state party to only very few treaties does not alter their obligation to recognize the rights to return and restitution. It is imperative that all regulations, policies, procedures, institutions and agencies involved in restitution programs recognize the right to voluntary return and should reflect the understanding that restitution is often the most dignified long-term solution to displacement.
The refugees have every right to file a case for restitution of their lands and properties once they are repatriated to Bhutan. Further, the implementation of restitution procedures must necessarily be a national exercise, with the involvement of appropriate national agencies and experts. International involvement in restitution claims that procedures have been of much assistance, where there is political bias against groups of persons, and where a third party involvement makes the return and restitution process more secure in the context of post-conflict tension. COHRE's report clearly quotes "Ethnic Nepalis who lost Bhutanese citizenship and their ownership rights and whose land, that they originally owned, used and occupied, has been confiscated remain entitled to restitution"
There can be refugees who do not want to be repatriated to Bhutan but always want compensations of their lands and properties. Article 21 of the principles entitles that all refugees and displaced persons have the right to full and effective compensation as an integral component of the restitution process. Compensation may be monetary or in kind.
Bhutan, being a UN member, is a signatory to various international conventions and protocols. Bhutan should acknowledge the rights to land and property restitution of refugees in exile.
If Bhutan holds itself to be a responsible and respected UN member, it must abide by the laws that the UN have set out especially the rights to housing and property restitution. Undoubtedly, Bhutan has obligations towards this, as it can never be away from international peripheral guidelines. King Jigme's regime should clearly understand that refugees in exile enjoy rights to get their properties back. Any transactions done forcefully are considered invalid. So Bhutan must never think that marginal compensations given to refugees at gun-points are major tools to confiscate the land and properties of the refugees in exile.
Source: The Kathmandu Post, March 14