People seek asylum owing to the well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. Rohingya issue in Bangladesh is the latest example in South Asia. This article attempts to look at Nepal’s policy measures in relation to refugees.
Nepal and international instrument
Nepal, as of yet, does not have specific laws to address refugee issues. Nonetheless, it has been hosting refugees for a long time. Tibetan refugees started coming to Nepal since the 1950s. It hosted Bhutanese refugees since 1990s and currently, Rohingyas have made it to Nepal.
Even if a state has ratified an international treaty, the obligation of the treaty does not automatically become a part of its national legislation.
If we look at the international instrument on refugees, the Refugee Convention 1951 does not refer as to how the agreed meaning of refugees and their rights should come into effect in the territories of the contracting parties. However, the state parties of the Convention Relating to Status of Refugees, 1951 (1951 Refugee Convention) have agreed to communicate with the General Secretary of the United Nations on refugee laws and regulations which they may adopt to ensure the application of Article 36 of the 1951 Refuge Convention.
When requested, information regarding refugees should also be given to the Office of the High Commissioner (Article 35 of the 1951 Refuge Convention). Even if a state has ratified an international treaty, the obligation of the treaty does not automatically become a part of its national legislation. It is, therefore, up to the concerned state party when and how the content of the treaty is to be implemented.
There is however a political and moral obligation for a state party to ensure that its national refugee laws are in conformity with international instruments. One way of incorporating international instruments is by enshrining them in the constitution itself. Another method is to enact laws reflecting the spirit of international instruments.
Nepal is bound to follow international instruments to which it is a party, as stipulated by the Nepal Treaty Act, 1990. The act requires Nepal to enact laws to incorporate the provisions of an international instrument to which it is a party. That means international instruments triumph over national acts. Thus, the country’s laws in conflict with an international instrument to which Nepal is a party will be considered void to the extent of such conflict.
As for Nepal, since it is not a party to the Refugee Convention 1951, it is under no obligations to follow procedures stipulated by the international instrument concerning refugees.
There are international recommendations on the procedure to be followed such as UNHCR Handbook on Refugee Determination Procedure and Criteria for Determining Refugee Status under the 1951 Convention and the Protocol Relating to Status of Refugee.
It is important that asylum-seekers, administration handling refugees and state authorities are fully aware of the procedures and law in place regulating refugees. So, it is pertinent that a state clearly defines refugees and the procedures to grant someone a refugee status.
As for Nepal, since it is not a party to the Refugee Convention 1951, it is under no obligations to follow procedures stipulated by the international instrument concerning refugees.
Nepal is yet to enact a law governing refugee issues. However, in practice, Nepal has adopted a comprehensive practice as laid down in Article 1A (2) of the 1951 Refugee Convention. Nepal has been liberal to refugees and asylum seekers. There have not been cases of denial of the status of refugees or asylum seekers in Nepal since the very beginning of the arrival of refugees.
Refugee status procedures
As part of obtaining refugee status in Nepal, an asylum seeker needs to present himself/herself (or themselves) to a joint verification team consisting officers from the Ministry of Home Affairs (MOHA) and UNHCR. This team works under the coordination of the protection officer at UNHCR.
The team holds an inquiry. After inquiry, the team declares immediately whether or not a person or a group is to be granted refugee status. In the course of collecting information, the team has the authority to summon the person or the group claiming to be refugee(s) or any other persons who can provide additional information regarding the asylum seekers in question.
The asylum seeker(s) will be questioned on personal details such as name, place, date of birth, family, and affiliation to any organization and his/her reason to seek asylum.
Refugees can enter into the territory of Nepal via different entry points. They can declare their intention to seek asylum directly to the team at a frontier post. They can enter into Nepal’s territory as a tourist or may cross the border at a point where the team is not stationed.
Upon entering Nepal the concerned person is expected to report to the nearest immigration officer and police station at the earliest to claim asylum. Once the asylum-seeker has reported to the immigration officer and the police station or is escorted by the team, he/she will be individually interviewed by the joint verification team.
The asylum seeker(s) will be questioned on personal details such as name, place, date of birth, family, and affiliation to any organization and his/her reason to seek asylum.
The claim by an asylum-seeker is usually investigated immediately. Or it can also take a longer time depending on his/her background.
In lack of national or international legal instruments thereby reducing procedural delay, Nepal can grant asylum immediately after holding an interview. While registering and issuing identification documents for an asylum-seeker, the officer of UNHCR plays a key role in assuming responsibility during the process. There have been almost no cases of denial of the status of refugee or asylum in Nepal since the very beginning of the arrival of refugees.
Conclusion
Considering the above practice, we can deduce that, though Nepal is not a party to the 1951 Refugee Convention as modified by the 1967 Protocol and even as there is no national refugee law and regional refugee convention governing refugee protection in Asia and SAARC countries, the practice of granting refugee status in Nepal is fully in compliance with the 1951 Refugee Convention.
Besides, Nepal has taken a step further regarding the safeguarding of the asylum-seeker by involving UNHCR officials as the key persons in determining the refugee status.
Either voluntarily or non-voluntarily seeking a refugee status by a person or a group is definitely not a privileged choice. States should assume full responsibility towards their citizens such that they are do not become asylum-seekers. International bodies are active and international instruments are activated to the cause of asylum seekers only when states fail to fulfill their duties and responsibilities towards their citizens.
Dr. Shrestha is former Secretary of the Government of Nepal.
(Views expressed in this article are the author’s own and do not necessarily reflect Khabarhub’s editorial stance).
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