Submission to the UN Committee on the Rights of the Child

 NGO response to the 
Second Periodic Report of the Kingdom of Bhutan under the Convention on  the Rights of the Child
(CRC/C/BTN/2)

Committee on the Rights of the Child
47th Session (January 2008)

Submitted by:
Bhutanese Refugee Support Group (Ireland and UK)
Co-sponsored by:
Association of Human Rights Activists (AHURA), Bhutan

July 2007

Introduction

1. This response to Bhutan’s second periodic report has been initiated by the Bhutanese Refugee Support Group (UK and Ireland), some of whose members witnessed at first hand the events of the late 1980s and early 1990s leading to the exodus of tens of thousands of Lhotshampas (southern Bhutanese people of Nepalese ethnicity) from Bhutan. The group responded to the Initial Report of Bhutan under the Convention on the Rights of the Child, published in 1999, in the knowledge that no response would or could be initiated from within Bhutan. For the same reason, and realising that there are issues which urgently need to be brought to the attention of the Committee, we have undertaken this work.  

2. The circumstances which gave rise to the flight of refugees from Bhutan in the 1990s are replete with well-documented violations of Bhutan’s obligations under the Convention on the Rights of the Child. It now appears to be beyond doubt that the repression leading to the mass exodus of Lhotshampas in the early 1990s was merely the beginning of a programme to rid Bhutan of its Lhotshampa population. The second phase of the programme was quietly put in place with the erosion of the citizenship status of large numbers of Lhotshampas remaining in Bhutan. Following a nationwide census in 2005, it was announced that 81,976 of Bhutan’s total population of 634,972 were “non-national residents.”  It is thought that many, if not all of these people, are Lhotshampas. Further to that, figures produced by the Ministry of Labour and Human Resources and quoted in Kuensel, Bhutan’s national newspaper, on June, 20, 2007, state that “the total population stood at 537,900 people as of October last year“. It seems that the people previously termed “non-national residents” are no longer included in the total population figures. Unless the situation is remedied (and it can be done), Bhutan will have succeeded in expelling more than one sixth of its population, and pushing one eighth of the remainder right out to the margins, within a period of less than twenty years. 

3. It is outside the scope of this response to address all aspects of the Committee’s 2001 recommendations and of Bhutan’s implementation of the CRC. The principal focus of our response is Bhutan’s failure to protect children under articles 2, 7 and 8 of the Convention. The majority of the victims of this failure are Lhotshampa children. The background to the refugee situation is set out in the section  Background to the Bhutanese Refugee Crisis. The marginalisation experienced by Lhotshampa children living in Bhutan today follows in a direct line of continuity from the oppression which led to the exodus of the early 1990s and from the failure of the Bhutanese authorities to take responsibility for resolving the crisis.

4. The following sources were used to prepare this response:
•	The Concluding Observations of the Committee on the Rights of the Child, 2001 
•	Second Periodic Report of the Kingdom of Bhutan to the Committee on the Rights of the Child, 2007
•	The draft Constitution of the Kingdom of Bhutan
•	Publications by the National Commission on Women and Children, Bhutan
•	Last Hope: the Need for Durable Solutions for Bhutanese Refugees in Nepal and India, Human Rights Watch, May 2007.
•	Articles from the Bhutanese press (www.kuenselonline.com, www.bhutantimes.com, and www.apfanews.com
•	First hand testimonies.

Historical background to the Bhutanese refugee crisis

In Bhutan’s  initial report under the CRC,  Lhotshampas (Southern Bhutanese of Nepali origin) were identified as one of the main ethnic groups in the country.

The Bhutanese refugees in Nepal come principally from this Lhotshampa group. Many claim that their ancestors came to Bhutan between 1875 and 1940. Over the twentieth century, the Nepali-speaking community became well established, with settlements and farms spread across the south of the country. In 1958, the Lhotshampa  population was granted full citizenship. As the country developed during the 1960s and 1970s, many Lhotshampas rose to occupy influential positions in the bureaucracy. Communities in all parts of the country were well served by government programmes.

Harmonious coexistence came to an abrupt end in the 1980s. Following a nationwide census in 1980, the Bhutanese government appears to have felt that the growth of the Lhotshampa population posed a threat to the dominant culture and identity. A new Citizenship Act was passed in 1985 which seemed to discriminate against Lhotshampas. During subsequent census operations, carried out in southern districts only, people previously recognized as Bhutanese were re-classified as "non-nationals". Several thousand were forced to leave the country. Tek Nath Rizal, then a Royal Advisory Councillor, led a petition to the King expressing concern at the situation. This action was regarded as seditious. Rizal was removed from office and briefly imprisoned. He fled to Nepal and formed the 'People's Forum for Human Rights'. There he was arrested for alleged activities against the Bhutanese government. He was returned to Bhutan in November 1989, where he remained imprisoned until December 1999. 

Distress among Lhotshampas was further increased in 1989, when they were forced to observe dress codes and etiquette characteristic of Northern Bhutanese, under threat of punishment. Nepali, the language of the southern Bhutanese, was removed from the school curriculum. Lhotshampas who were unhappy with these repressive measures spoke out against them and petitioned the King. 

Public demonstrations against government policies took place in southern districts in September-October 1990. All who took part were branded 'anti-nationals' by the government. Of over 140 educational institutions in Bhutan, 72 (all in southern Bhutan) were closed.  Several thousand Lhotshampas were imprisoned for many months in terrible conditions; more than two thousand were tortured. On their release, many found that their houses had been destroyed and their families had fled the kingdom.

The exodus of thousands of people into Nepal, where they went or were pushed by the Indian authorities, provoked a humanitarian crisis. At the request of the Nepalese government, the UN High Commissioner for Refugees (UNHCR) established refugee camps in south-eastern Nepal in 1991.

During 1992 and 1993, thousands more fled to Nepal, some through fear of arrest and torture, some following eviction by government forces. Others were pressurised into signing "Voluntary Migration Forms". According to Bhutanese law, people leaving the country voluntarily forfeit their right to citizenship. 

In 1993, the governments of Nepal and Bhutan established a Ministerial Joint Committee (MJC) to verify the status of the people in the refugee camps and work towards a resolution of the refugee problem. The first round of bilateral talks was held in Kathmandu The MJC agreed to classify the refugees into four categories:
		1. Bona fide Bhutanese
		2. Bhutanese who migrated “voluntarily”
		3. Non-Bhutanese
		4. Bhutanese who have committed criminal acts.

In 1998, 219 relatives of “anti-nationals” were dismissed from government service in Bhutan.

In 1999, Bhutan submitted its first report under the Convention on the Rights of the Child. Tek Nath Rizal was granted an amnesty by the King of Bhutan and released from jail.

Under increasing pressure from the international community to find a solution for the refugees, Bhutan and Nepal agreed in 2000 to commence a pilot screening of refugees in one of the camps in Nepal.

The screening of the 12,500 refugees registered in Khudunabari camp was carried out in 2001 by a joint Bhutanese-Nepalese Verification Team (JVT).  The Royal Government of Bhutan declared in July 2003 that over 75% of  people screened were either  Bhutanese citizens, or Bhutanese citizens who had relinquished their nationality under Bhutanese citizenship law by migrating voluntarily, and were eligible to return to Bhutan. The Bhutanese government agreed to an appeal process to deal with cases of people who wished to query their categorisation. 

The Bhutanese leader of the JVT called a meeting in Khudunabari camp on December 22, 2003, to spell out terms for repatriation of those found to be eligible to return to Bhutan.
 
•	Category 1  (293 bona fide Bhutanese found to have been forcefully evicted) might return to Bhutan as citizens, but not to their original houses and lands.
•	Category 2  (8,595 Bhutanese people who had “migrated voluntarily“ thereby renouncing their citizenship under Bhutanese citizenship law) would have to reapply for citizenship under the terms of the 1985 Citizenship Act, after a probationary period of two years in a closed camp.
•	Category 4  (347 people classified as Bhutanese who had committed criminal acts, although they had not yet been charged with any criminal act) included relatives of “criminals“, among them children and babies born in exile. They would be detained in a designated camp.
•	The appeal process which was to review the classification of the 2,948 people placed in category 3  (non-Bhutanese) was unilaterally cancelled.  

A scuffle ensued in reaction to the news of these conditions, and members of the Bhutanese team were injured. The terms offered were harsher that those outlined in June 2003. They may have been deliberately provocative, designed to incite an angry reaction and   give the Bhutanese authorities an excuse to collapse the verification process. That is exactly what happened.

At a press conference in Delhi in January 2005, the King of Bhutan  was reported as saying that the people in the refugee camps were not Bhutanese citizens, and could have been living in India or Nepal previously. He was speaking as if the screening at Khudunabari camp had never happened.

Kuensel, Bhutan’s national newspaper, reporting on the visit of the US ambassador to India on his visit to Bhutan in April 2007, quotes the Bhutanese Foreign Minister as expressing “deep appreciation” to  the US for its decision to “resettle the people“. The US has indeed offered to resettle 60,000 Bhutanese refugees.   Arrangements for processing applications for resettlement are being put in place at the time of writing (July 2007). Other countries have also made offers to  welcome refugees.

The Bhutanese Foreign Minister, in periodic reports on the situation on people in the camps,  has persisted in maintaining  that the bilateral process is the means by which the issue will be resolved, and that the failure to resume bilateral talks since the notorious December 2003  incident in Khudunabari camp is due to the intransigence of the Nepalese and the breakdown of security in Nepal. 

There are now over 100.000 refugees sheltering in the UNHCR-administered camps in eastern Nepal, with an estimated 35,000 living elsewhere in Nepal and India. 

Bhutan remains silent on the possibility of repatriation for refugees who under international law should be able to return to their country of origin. It has not made any improvement on the conditions outlined on December 22, 2003. On the contrary, it appears to have walked away even from that offer, and left the international community to provide a solution for its people who have been in exile, waiting for a resolution of their plight, for up to 16 years. 

At the same time, the situation for Lhotshampas who still live in Bhutan is dire.

1. General Measures of Implementation

National legislation
5. In 2001, the Committee on the Rights of the Child recommended that Bhutan undertake a review of existing legislation to ensure its conformity with the principles and provisions of the Convention. 

6. Bhutan’s Second Periodic Report outlines developments in national legislation to safeguard children in conflict with the law, to regulate child labour, and to control substance abuse among minors. It states that there is an increasing effort to reinforce protection of children in sectoral plans and policies. It acknowledges the shortcomings of existing laws in dealing with cases like domestic violence and child abuse. It notes that Bhutan has signed and ratified a number of regional and international conventions to strengthen child protection. 

7. There is no reference to any development in relation to two crucial areas affecting the fundamental rights of large numbers of vulnerable children in Bhutan: the right to non-discrimination under article 2, the right to a name and nationality, and to preservation of identity under articles 7 and 8. The continuing denial of these rights will be the focus of this response to Bhutan’s second periodic report. 

Coordination and monitoring
8. Bhutan has established a National Commission for Women and Children (NCWC) as the national mechanism for coordinating and monitoring activities related to women's and children's rights, promoting those rights and reporting to treaty bodies. The report refers to activities carried out by the NCWC together with the government and other agencies: training for the judiciary and police on child-sensitive approaches; promotion of understanding and awareness of the CRC among stakeholders. 

9. The Situation Analysis of Women and Children in Bhutan, 2006, produced by the NCWC with support from UNICEF, mentions the difficulties faced by Lhotshampa children (see below, paragraph 28), but their concern does not feature in Bhutan’s Second Periodic Report.  It is clearly within the mandate and part of the duty of the NCWC to promote the rights of children vulnerable because of their ethnic background.

Other changes in legislative and judicial procedures
10. Bhutan has produced a draft constitution which is expected to be adopted in 2008, superseding all other legislation. In its draft form, the constitution  fails to uphold Bhutan’s commitment under the CRC that a child has the right to acquire a nationality at birth. Under the heading Civil Rights and Freedoms, the implications of this shortcoming for tens of thousands of Bhutanese children will be studied .  

Judiciary
11. The judiciary has been engaged, in cooperation with the NCWC, in a campaign among children and youth to enhance their awareness of the law of the land.  The campaign is entitled Know the Law to Protect your Rights. To judge by the leaflet produced for the campaign, it falls short of disseminating information on all the rights which a child should enjoy under the CRC. 

Remedies for Violations 
12. Specific violations mentioned under this heading are domestic violence and abuse cases, and the need to provide separate facilities and detention centre for young offenders.

13. Bhutan’s report does speak of the challenges in understanding the needs of children in Bhutan today, the increasing steps and initiatives being taken which will lead to strategies for remedying any existing violations against the rights of the child. 

14. Those responsible for implementing the CRC must not lose sight of the rights set out in articles 2, 7 and 8 of the CRC which are fundamental to the enjoyment of all other rights.  

Data collection
15. Bhutan’s National Statistics Bureau, upgraded by the government in 2004, has been able to publish disaggregated data on a number of themes.  

16.  In its 2001 recommendations, the Committee on the Rights of the Child named  children of different ethnicity at the head of a list of groups of vulnerable children in Bhutan. In Bhutan’s Second Periodic Report, this group is the only vulnerable group referred to by the Committee which is not specifically mentioned.

17. In the core document forming part of Bhutan’s initial report under the CRC in 1999, Lhotshampas are said to comprise nearly 25% of Bhutan’s population. That document falsely states that they enjoy equal opportunities and representation at all levels of society. Results of the 2005 nationwide census disaggregated  on the basis of ethnic group have not been made public. There is an urgent need to do this. Lhotshampa children must be made the subject of statistical analysis in order to assess the degree to which they are marginalized from or included in the mainstream of society. Data must then be used to redress and make reparation for any rights violations based on ethnicity.

Publicising the Convention
18. It is not clear that all the provisions of the Convention have been publicised. Bhutan’s initial report is carried on the NCWC website, but not the recommendations of the Committee. 

19. Two leaflets are posted on the NCWC website: Know the Law to Protect your Rights, and The Convention on the Rights of the Child: helping to Make a Difference for the Children of Bhutan.  The scope of the former is limited . The latter, published by the Royal Government with UNICEF,  refers to child rights in a very general way: nobody reading it would be made aware that a number of rights enshrined in the CRC are not only inadequately protected in Bhutan, but are actively violated.

20. The Convention itself is not posted on any official website, nor is any link which would enable the public to access it easily.

21. Bhutan’s report does say that more systematic campaigns are being planned by the NCWC in partnership with a number of stakeholders. The scope of these must be broadened to develop awareness of all rights enshrined in the CRC.

Future and Difficulties  
22. Bhutan’s report acknowledges that the NCWC is newly established, and not yet a fully effective organisation. It refers to the lack of experience, expertise and resources as current constraints to it achieving its full potential.

23. The biggest single constraint faced by the NCWC may be outside of its own potential to remedy. That constraint is the unspoken policy, decided at high level and meticulously executed in practice, of 
(a) denying citizenship to thousands of children who could claim no nationality other than Bhutanese, and 
(b) of victimising and marginalizing people, including children, mostly but not exclusively Lhotshampa, who are in any way related to people associated  with what are termed “anti-national” activities.
These practices severely impact on Lhotshampa children’s rights to protection, development and participation.  

24. There is no representative of the Lhotshampa community on the NCWC.  Nevertheless, it is clear from the Situation Analysis of Women and Children in Bhutan, 2006, that members of the Commission are cognisant of the deficit that exists in upholding the rights of Lhotshampa children,  and it is hoped that they will be able to play a key role in addressing it.   

2. General Principles

The principle of non-discrimination (art. 2)
25. In its concluding observations on the right to non-discrimination in 2001, the Committee named children belonging to other ethnic groups as vulnerable. The committee expressly mentioned “the impact on children of reports of discrimination of individuals belonging to the Lhotshampas. In particular: reports that these children face de facto discrimination in access to education and other services; and alleged discriminatory practices of children on the basis of status, activities, or opinions of their parents, or relatives.” 

The Committee recommended the State Party to “take effective measures, including enacting or rescinding legislation where necessary, to prevent and eliminate discrimination in accordance with article 2 of the Convention, in all fields of civil, economic, political, social and cultural life; 

establish accessible, prompt, adequate and effective mechanisms to monitor, receive and address complaints of discrimination (e.g. prompt appeal in circumstances of denial of school enrolment); 

and take all appropriate measures, such as comprehensive public education campaigns, to prevent and combat negative societal attitudes towards different ethnic groups.” 

26. Nowhere in Bhutan’s Second Periodic Report are Lhotshampa children mentioned as a vulnerable group.  The report identifies as vulnerable those living in remote communities, the poor, children with disabilities, child workers, children in conflict with the law, child victims of violence. 

27. Discrimination and punishment on the basis of the status, activities, expressed opinions, or beliefs of family members became Bhutanese government policy and practice when a circular was issued by the Home Ministry on August 17, 1990. The circular stated: “Any Bhutanese national leaving the country to assist and help the anti-nationals shall no longer be considered as Bhutanese citizens. It may also be made very clear that such person’s family members living under the same household will be held fully responsible and forfeit their citizenship.” That the practice of “guilt by association” clearly promoted in the Home Ministerial circular was widespread is borne out by countless testimonies of refugees and of foreign nationals working in Southern Bhutan in the early 1990s. The practice of discrimination on the basis of relationship to or association with people termed anti-nationals (known in Dzongkha as ngolops) continues to this day. Since the closure of schools in southern Bhutan and their conversion into barracks for the army following widespread pro-democracy demonstrations in 1990, thousands of Lhotshampa children have been denied any access to education. 

28. Unlike Bhutan’s Second Report under the CRC, the Situation Analysis of Women and Children in Bhutan, 2006, refers to children in ethnic minorities as among those “whose inclusion and coverage requires special initiatives“. It states that a quarter of children aged 6-14 are not going to school, and are being denied their right to education. It cites the need to obtain a “security clearance” and says that the delay and difficulty in obtaining one is reported as a major problem, particularly for children in the south: 
“… children from the south whose family had been involved in activities that endangered the state have to obtain “security clearance” to be eligible for government professional scholarships after their higher secondary education. And there have been reports of children as young as six having been turned away from primary schools because they lack identity cards. The International Convention on the Rights of the Child makes it clear that every child has a right to education. Obstructing children’s access to school is thus a breach of the Convention.” .  

29. There is ample testimony to the difficulties faced by older children and young adults in accessing further education and job opportunities. It is reportedly common for young people whose school leaving examination results qualify them for access to third level education in Bhutan or India to be denied a Security Clearance Certificate (SCC) or No Objection Certificate (NOC).  In some cases, Lhotshampa families have been able to fund third level education in India for their children. On returning to Bhutan, however, the young people find that they are again denied an NOC and cannot find work. NOCs are required for enrolment in higher education, employment in the civil service, to obtain business and trading licences and  travel documents, for buying and selling land or selling some cash crops. It is reportedly impossible for a person known to have relatives living in the refugee camps in Nepal to get a NOC.

30. Young people from eastern Bhutan whose family members were been involved in the  pro-democracy demonstrations (termed “anti-national activities”) of 1997 have suffered exclusion from second and third level education or from employment on the basis of “guilt by association“. To these young people also, NOCs have been denied.  

31. The extracts which follow are from an article entitled The Path to Disunity, by “riverman“, which appeared in the www.bhutantimes.com forum in February 2007.  The article prompted responses in the readers‘ forum in Kuensel, Bhutan‘s national newspaper. Both the article and the responses have been removed from the archives of the respective papers, but at least the views were allowed to be aired for a brief time. 

“No Objection Certificate (NOC) - The rules, made up or legitimate, surrounding the NOC issue is eye-brow raising to say the least. It is understandable to feel some bitterness or indignation when ngolops carry out anti-national activities against the country while their relatives live in the country, some of them giving them material and moral support. But it is going too far to make it a rule that anybody who has a ngolop relative is automatically guilty of such activities and  therefore does not deserve an NOC. But that happens to be the case. Not only are sons held responsible for the actions of their fathers, but brothers, sisters, husbands, uncles, nephews and even grandchildren!

We are all aware of the southern problem and the impact it has had on the rights of Bhutan’s southerners. Any visit to the Home Ministry is remarkable only by the number of our southern brothers who are forced to literally camp there to process very basic rights.[…]

All this makes a mockery of our justice system and throws our country in extremely poor light. It also reflects the laziness of a system that instead of properly identifying who is who and taking individual and specific action, decisions that are exclusivist and sweeping are taken and those who are “not of our kind” simply dumped into the no-NOC group.”

32. The practice is hardly a matter of laziness, as riverman suggests, but a deliberate policy of marginalisation in a direct continuum with the sustained oppression which led to the mass exodus of Lhotshampas in the early 1990s. 

33. If there were any will at the highest level to remove the injustice of discrimination, the remedy could be very straightforward. An order from the then Home Minister introduced the principle of guilt by association. An order from high  authority could outlaw it.     

34. If Lhotshampa child citizens are victims of institutionalised discrimination, children who have been termed “non-national residents” are even more vulnerable. Their plight will be outlined in the section Civil Rights and Freedoms below.

3. Civil Rights and Freedoms

Name and Nationality
35. The failure to register children at birth has been a problem, and in 2001 the Committee recommended that the state party make greater efforts to ensure the timely registration of all births, and to issue birth certificates. 

36. In response, Bhutan’s report states that according to the Citizenship Act, all children born must be registered. We have been told that  Lhotshampa children who are not categorised as F1 or F4 (see below) are not registered at birth.  

37. The denial of the right to a nationality is the greatest difficulty facing Lhotshampas in Bhutan. Under the heading of non-discrimination, we outlined the difficulties faced by Bhutanese citizens who through being denied NOCs are unable to take part in the civil, economic, political, social and cultural life of their own country. This is a state of affairs which could be reversed at any time, if those in authority had the will to uphold the right to non-discrimination.

38. Far greater are the problems faced by those people whose citizenship rights have been eroded, and whose children do not enjoy the right to acquire a nationality at birth. In 1988, Lhotshampas were divided into seven categories, as follows: 
	F1: genuine Bhutanese; 
	F2: returned migrants; 
	F3: people not available during the census; 
	F4: a non-national woman married to a Bhutanese man; 
	F5: a non-national man married to a Bhutanese woman; 
	F6: children legally adopted; 
	F7: non-nationals - migrants and illegal settlers. 

39. Placement in the seven categories was and still is often arbitrary. Through the 1990s,  categorisation was used as a tool to evict Lhotshampas. Nowadays, it is used as an instrument to declare them non-national. In some cases members of the same family have been placed in different categories, as evidenced in the following, posted in a readers’ forum in Kuensel on 10 May, 2007:

“What the immigration/Census Division is doing. You all are creating the problems within the family members. How can it be possible that two son from the same family having form one (1) getting married to two sister from other family having form one (1) are having different form. These is the big problems, whom to complain parents/Govt. So please do it properly. I have noticed these kind of problems. Now what happen children from older son are kept in form one and children from younger are kept in form four. How can it be possible. So come to the facility area whereby elder children get full but younger get not full. So that’s all and are fact too so I would like to once again request that please carry it properly.”

40. There are reports of status being changed from one year to another: for example, a person placed in F4 last year is F5 this year. Appeals against arbitrary changes in status are rebuffed: appellants are asked to come back again and again to the office, and finally nothing is clarified.  

41. Bhutan’s report states that the Ministry of Home and Cultural Affairs began issuing new Citizenship ID cards in 2004. It does not specify that these cards have been issued only to people falling into categories F1 and F4. Failure to issue Citizenship cards to people in F5 constitutes discrimination on the basis of gender of the parent, a matter of concern to the Committee in 2001. 

42. A nationwide census was carried out in Bhutan in 2005. The total population of Bhutan (excluding migrant workers whose numbers have remained fairly constant, at about 40,000) was declared to be 634,972.  Of these,  552,996 were said to be Bhutanese citizens, and 81,976 non-national  residents. 

43. So-called “non-national residents” are a  population category created after the 2005 census. It is likely that most or all of the people in this category are Lhotshampas whose citizenship status has been eroded by various measures taken since the end of the 1980s, their children and their children‘s children. The declaration that 81,976 of the resident population are non-national may amount to the effective denationalisation of many of the Lhotshampas remaining in Bhutan: a second round of what many have no problem in terming ethnic cleansing. According to the Ministry of Labour and Human Resources, the total population of Bhutan in October 2006 was 537,900. This seems to indicate that those termed “non-national residents” are not being counted any more.  

44. There is no indication that any Lhotshampa child of one Bhutanese parent has been able to acquire citizenship at the age of 15 as provided for in the 1985 Citizenship Act. It would be impossible for a child who has been denied access to education to fulfil the conditions required.

45. There is no indication of what is to become of the people who do not fall into either category 1 or 4. If they are the 81,976 people declared resident non-nationals following the 2005 census and not even mentioned in October 2006 figures, then they are de facto stateless, a permanent underclass in their own country. Whatever their current status in Bhutan, there is no nationality other than Bhutanese that they could possibly claim. 

46. Article 7, paragraphs 1-14 of Bhutan’s draft constitution outlines the fundamental rights which citizens will enjoy. If one expresses these rights as rights denied to non-citizens, a picture emerges which corresponds with the reality experienced by Lhotshampas since the early 1990s, and right up to the present day: 
•	In arbitrary detention, torture, rape, even extra-judicial killing in the 1990s, people have been denied life, liberty and security of person;
•	The exercise of freedom of speech, opinion and expression has led to punishment of the speaker and long-term victimisation of those related or connected to him;
•	Those deemed non-citizens will not have the right to vote;
•	In being denied the right to travel freely in their own country and constantly harassed at checkpoints, Lhotshampas have been denied freedom of movement;
•	Lhotshampas have been and are denied access and opportunity to join the public service on a discriminatory basis;
•	Lhotshampas have been and are denied the right to own property;
•	Lhotshampas have been and are deprived of property by forceful acquisition and requisition, and by being denied inheritance rights;
•	The right of those termed non-nationals and those denied NOCs  to practise any lawful trade, profession and vocation in the private sector is precarious.

47. According to the draft constitution (article 10.22), “existing International Conventions, Covenants, Treaties, Protocols, and Agreements entered into by Bhutan… shall remain in force“. The fact is that Bhutan’s obligations under the CRC in relation to the right to a nationality are not in force, and provisions of Bhutan’s constitution are in conflict with the CRC. 

48. Under international law, a person has the right to leave and return to his country. In Bhutanese law, people who migrate voluntarily are deemed to have forfeited their citizenship. Lhotshampas, although  they left under extreme duress, are deemed by the Bhutanese authorities to have migrated voluntarily. The discriminatory principle outlined in the the Home Ministry Circular referred to in paragraph 27 is still invoked to undermine the nationality status of people whose relatives have left Bhutan.

49. The right to retain one’s identity, the right not to be arbitrarily deprived of a nationality, the duty of the state to re-establish nationality of which a child has been illegally deprived, must be invoked  not only for Lhotshampas who are de facto stateless in their own country, but also, of course, for refugees who up to sixteen years after being forced out of their country are still living in limbo. Bhutan is clearly making repatriation a very undesirable if not impossible option for refugees, in the expectation that the vast majority will be resettled in third countries. Refugees who opt for resettlement should do so on the understanding that their right to return to their country will not be extinguished, and that when the human rights situation is more conducive, they may reclaim their Bhutanese nationality.

Freedom of expression
50. Bhutan’s Second Periodic Report claims that strides have been made to bring about freedom of expression. The Bhutan Times (www.bhutantimes.com) carries articles and links which may be critical of government policy. In a relatively new development, readers’ fora  in the online press have carried discussions on controversial matters. However, as of 25 June, 2007, access to the Bhutan Times website has been disallowed in Bhutan.

51. Widespread fear in Bhutan limits freedom of expression. Testimonies collected by Human Rights Watch and reflected in its report, Last Hope: the Need for Durable Solutions for Bhutanese Refugees in Nepal and India, published in May 2007, bear strong witness to people’s intense fear that if they speak out on injustices (a) their already precarious status may be further eroded or (b) their relatives will suffer.

 

4. Family Environment and Alternative Care

Parental Guidance, Parental Responsibilities
52. The NGO response to Bhutan’s initial report under the CRC referred to the frustration of parents who because of their dependent status as refugees or their marginalized status in Bhutan are unable to provide for their children. The situation has not changed. If anything, the sense of hopelessness has increased with the official denial of  Citizenship status to the thousands of people in Bhutan who have been living in an uncertain limbo for years. For refugees who may be resettled in third countries in the near future, there is the prospect of remedy. For marginalized parents of marginalized children in Bhutan, there is no solution in sight. The following testimony of  Lhotshampa parents, citizens of Bhutan, bears witness to the frustration of parents unable in the present circumstances to provide for their own children:

“I tried to stay in my country, and serve my country with loyalty and dedication. I honestly thought things would change, but […] there is no sign of improvement. Every year families are forced to leave the country. I and my family members were pushed too far. My nephews and nieces were all denied education. I knew my children wouldn’t be allowed to go to school. I decided that I should think about my children’s future. I just thought I would go and live somewhere and maybe when things improve I could go back.

Family reunification
53. Bhutan’s report quotes article 9.19 of the draft constitution: “The State shall endeavour to create conditions that are conducive to cooperation in community life and the integrity of the extended family structure.”    

54. Through forced exile, extended families have been put under unbearable pressure. Fear  prevents family members inside and outside Bhutan from communicating with each other. For those who have left Bhutan in recent years to seek asylum elsewhere in the hope of being able to provide a future for their children, it is heartbreaking, in the interim between being granted refugee status and acquiring a new nationality, to be issued with a travel document which entitles the holder to go to any country in the world except his or her country of origin. 

55. Bhutan must make provision, if refugees are to be resettled in third countries, for them to be allowed to communicate without fear with members of their families in Bhutan, and to visit them freely.  

5. Basic Health and Welfare

Standard of Living
56. Bhutan’s Second Periodic Report refers to the Poverty Analysis Report published in Bhutan in 2004 which revealed that 32% of the population is considered poor. The government’s stated goal of poverty alleviation is in line with the UN Millenium Development Goals.

57. Policies of exclusion, put into practice both through the denial of NOCs or through the erosion or denial of citizenship rights, are in effect long-term poverty creation policies for the people affected. Article 9.10 of the draft Constitution, quoted in Bhutan’s report under the CRC, claims that “The State shall endeavour to promote those circumstances that would enable the citizens to secure an adequate livelihood”, does nothing to alleviate the fears of those people termed non-national residents. Once again, it must be stressed that the right to a nationality is fundamental to the enjoyment of all other rights.

6. Education, Leisure and Cultural Activities  

Draft Constitution and Five Year Plan Initiatives
58. If certain rights are reserved for citizens of Bhutan, the draft constitution declares the State’s intention to “endeavour to provide education for the purpose of improving and increasing knowledge, values and skills of the entire population” (article 9.13), and its commitment to “provide free education to all children of school going age up to tenth standard” (article 9.14).

59. It is well documented that thousands of Lhotshampa children have been denied access to education since the closure of schools in southern Bhutan in 1990. As schools were reopened, admission was granted to northern Bhutanese children and children of security forces, but not to Lhotshampa children. Children and relatives of “dissidents” in eastern Bhutan have also been denied access to education. 

60. Given the failure to register all births, and  the absence of disaggregated data, it is impossible to measure the extent to which  Lhotshampa children have access to primary schooling. It would be very easy to provide disaggregated data on the basis of ethnicity, given that the naming system in the Lhotshampa/Nepali tradition is quite distinct from the naming traditions, derived from Tibetan, of northern and eastern Bhutanese. 

61. Disaggregated data on the basis of gender, poverty indicators, urban-rural indicators, have been compiled for various purposes. Population data disaggregated on ethnic lines should be used as a basis for monitoring the admission of Lhotshampa children to primary schools and the retention rate at higher secondary and third level. Statistics on the drop out rate should show reasons, including the inability to produce an NOC or exclusion on the basis of citizenship status. 

62. In 2001, the Committee recommended the State Party to include human rights education in the curricula, in particular the development and respect for human rights, tolerance and equality of the sexes and religious and ethnic minorities.

63. With reference to efforts to disseminate information about child rights, Bhutan’s second report refers to the programme “Know the Law to Protect your Rights” initiated by the judiciary in all schools in 2005. The programme is supported by a pamphlet5  whose purpose is to impress upon children the broad range of offences and behaviour from which they should refrain, and for which, if over the age of ten years, they may be convicted. The pamphlet also lists a number of offences (mostly violent sexual offences) contained in the Penal Code as offences which may be committed against the child.  

64. It is not given to a child to know the full scope of protection afforded to him/her under the CRC, including under articles 2, 7 and 8. The failure to uphold these rights is deliberate and institutionalised. Nothing in Bhutanese law, as far as we know, says that this failure is a crime against children. 

65. The pamphlet The Convention on the Rights of the Child: Helping to Make a Difference for the Children of Bhutan produced by the Royal Government and UNICEF in 2001 is vague in its reference to provisions of the CRC6. Much still needs to be done, as Bhutan’s report acknowledges, in educating children and other stakeholders about the rights enshrined in the CRC, which Bhutan has ratified without reservation.

7. Special Protection Measures

Children in situations of emergency 
66. Paragraph 367 of Bhutan’s report gives a short account of the situation with regard to the people in the camps in eastern Nepal which ends with the now hardly credible statement that “Bhutan has always maintained that it will be responsible for all genuine Bhutanese refugees and it is hopeful that the two governments will find a way to move forward through the bilateral process.”  A brief background to the refugee issue, including an account of the circumstances which led to the collapse of the bilateral process purporting to seek a solution to the crisis is given in the section Background to the Bhutanese Refugee crisis above.

67. In its concluding observations in 2001, the Committee welcomed the commencement of the verification process of the refugees in Nepal, and urged the State party to accelerate the process.
 
68. When the results of the screening exercise in Khudunabari camp were published in June 2003, it seemed possible that a resolution of the problem might be based on the right to a nationality and the right to leave and return to one’s country. Four years later, it seems that this is not even a remote possibility.   

69. If Bhutan intends to offer repatriation to any of its people, it must spell out conditions which will allow refugees to make an informed choice based on all the options  open to them.

70. Currently, the most likely solution is that large numbers of Bhutanese refugees will be resettled in third countries. This "solution" will come about because of Bhutan's refusal to accept its moral and legal responsibility. In the long term, however, there are issues of restorative justice which Bhutan must address. If Bhutan fails in its obligation, under international law, to respect the right of refugees to return, those refugees have the right  to compensation for any housing, land or property of which they have been unlawfully deprived. Furthermore, resettlement in a third country does not extinguish the right of Bhutanese people to return to their country at a time in the future when the situation is conducive.  

71. In the meantime, in ways indicated throughout this response to Bhutan’s report under the CRC, thousands of children in Bhutan are even more vulnerable than refugee children for whom the international community is about to take responsibility. 

72. The arrest of 30 people (according to Kuensel) or 39 people (according to www.apfanews.com) in June 2007 for alleged membership of the Communist Party of Bhutan (Marxist-Leninist-Maoist), for being engaged in seditious meetings to recruit members and collect donations to finance subversive activities, has left a number of children vulnerable. Families have had no access to detainees, who according to reports are being tortured and treated inhumanely. Detainees reportedly include two children aged 6 and 3. 8 children from 3 families have been left alone because both their parents are detained. If injustices against Lhotshampas are not addressed, emergency situations  are likely to recur, placing children at risk.  

8. Conclusion

73. The concluding section of Bhutan’s report cites the difficulties faced by a society in transition: political changes, rapid economic development, an evolving value system, modernisation, globalisation, urbanisation, the dilution of social and cultural traditions that held communities together. It speaks of emerging problems, the efforts it has already made to deal with them,  and the need to develop skills, experience and resources to do so. It recognises the value of the guidelines set out in the Convention on international norms, plans of action, and programme interventions that are urgently needed to ensure that the child is guaranteed the rights and benefits to live a wholesome life. There is almost a sense of being overwhelmed by difficulties.  

74. In 2001, it seemed  possible to give Bhutan the benefit of the doubt and be prepared to accept that the authorities were acting in good faith as they embarked on the pilot verification of refugees in Khudunabari camp. There is no longer any expectation of justice being done. The privations suffered by Lhotshampas today are in a continuum with the persecution suffered by their kin from the late 1980s. All appear to be part of a master-plan.

74. The problems faced by Lhotshampa children living in Bhutan are invisible in Bhutan’s report, and the report is crafted in such a way as to divert attention away from rights violations on ethnic grounds. The Situation Analysis of Women and Children, 2006,  intended as a basis for Bhutan’s second report under the CRC, refers explicitly to denial of rights to Lhotshampa children. The omission of any reference to these children in the report itself is therefore deliberate.  It is very likely that the authors of the report do not have the authority to speak in it of the flagrant violations of the rights of Lhotshampa children and young people.  

75. The following statements would seem to characterise the treatment meted out to Lhotshampas in Bhutan in varying degrees at varying periods of time from the early 1990s to the present day, but in a widespread, deliberate and systematic fashion:
•	Deportation or forcible transfer of population;
•	Imprisonment or other severe deprivation of physical liberty in violation of the fundamental rules of international law;
•	Persecution on political, racial, ethnic, cultural, religious grounds that are universally recognised as impermissible under international law;
•	Apartheid;
•	Other inhumane acts of a similar character intentionally causing great suffering.
They are some of the definitions of crimes against humanity set out in article 7 of the Rome Statute of the International Criminal Court.

76. The situation will only be remedied if there is the will to address it at the highest level. Following the dissolution of Bhutan’s National Assembly in June 2007, and up to the time of elections in 2008 and the entry into force of the new Constitution, the King will be the sole authority. It will be his last period as absolute monarch, although he will have extensive royal prerogatives under the constitution.

77. As things stand, violation of their fundamental rights affects every aspect of the lives of Lhotshampas in Bhutan, from birth onwards, and precludes any possibility of long-term restorative justice for Bhutanese people in exile. If the current situation continues, it will stand as the result of meticulous planning and execution: the achievement, though the word is hardly appropriate, of the fourth King of Bhutan, and the legacy he has chosen to hand to his young son now entering into his reign as the fifth King.

78. Under the new constitution, expected to come into effect in 2008, the royal prerogative allows the monarch to grant citizenship, and to exercise powers relating to matters which are not provided under the constitution or other laws. It may therefore be in his power to provide for those people who can claim no nationality other than Bhutanese to enjoy full Bhutanese citizenship, for all Bhutanese citizens to enjoy non-discrimination, and for those Bhutanese citizens who were forced into exile to hope for long-term restorative justice. At the present time, the only mechanism by which measures to remedy the violation of children’s rights in Bhutan could be initiated is the exercise of the royal prerogative.