The problems that Tibetan refugees face upon their arrival in India are nothing new to so many of those who make the journey. The Tibet Justice Centre estimates that some 3,000 Tibetans flee their homeland each year to transit through Nepal on their way to India. It is further estimated that there are approximately 20,000 displaced Tibetans in more than a dozen settlements spread throughout Nepal – one of the largest communities of displaced persons in the world. The reality for the vast majority of these is that they survive in a perpetual legal limbo: not officially recognised as refugees; acquiring no definable legal status; acknowledged without being truly recognised and facing an increasingly insecure future.
Nepal-China co-existence
In 1989, facing mounting pressure from its Chinese neighbour, the Nepalese Government closed its border to Tibetan refugees in response to the “Five-Point Peace Plan” it established with China that included the stipulation that there would be “Non-interference in each other’s internal affairs for any reasons of an economic, political or ideological character.” From that point, Tibetan refugees fleeing well-documented persecution and maltreatment in their homeland would be refused entry to Nepal if they were stopped at the legal border crossings. Prior to 1989, Tibetan refugees were allowed entry to Nepal and had the right to the issue of a Refugee Certificate (RC), a form of identity card that validated their presence in Nepal, although they were nevertheless considered neither citizens nor refugees in the legal sense. This allowed them to remain in Nepal with limited rights but denied Tibetan refugees the right to freedom of expression, freedom of movement and the right to acquire property or business interests – in short, those essential human rights that we in the west take so much for granted. However, the issue of an RC recognised the recipient as a genuine refugee and entitled them to protection under international refugee laws.
The issue of the RCs to Tibetans currently resident in Nepal is by no means complete: the children of these original refugees, upon reaching the age of 18, are entitled to be issued with an RC but the reality, for so many, is that this fails to be the case. Nepalese officials make the journey annually to the Tibetan settlements to renew the RC, which has to be renewed every 12 months. If a resident Tibetan is not at the settlement at the time of the official visit then his documentation will not be renewed. They can, of course, make the journey to the local central district office to renew the card themselves which will typically cost a small fee and a bribe to the official. Refusal or inability to pay the bribe invariably leads to an invitation to “come back tomorrow”, leaving them in the precarious and invidious position of an illegal alien who can be deported at any time. Without an RC, a Tibetan refugee cannot purchase a motorcycle (the preferred means of transport throughout Asia), is debarred from employment in certain areas and fields, finds he is unable to apply for a driver’s licence, faces exclusion from education at all levels, confronts the daily prospect of harassment and threats of deportation and has no legal right to own property in Nepal. Possession of an RC is necessary in order to apply for a refugee document - the only means of international travel. The cruel irony is that possession of a refugee document can actually prevent the possibility of international travel and third country resettlement: for example, the United States deems possession of a refugee document to be clear evidence of firm resettlement, the possession of which means a mandatory bar to asylum in the US.
The “gentleman’s agreement” on paper
The United Nations High Commissioner for Refugees (UNHCR) and the Nepalese Government reached a “gentleman’s agreement” in respect of Tibetan refugees arriving in Nepal from 1989 onwards. On paper, this agreement means that Tibetan refugees that are apprehended at the official border crossing will be denied entry to Nepal and will be turned back from where they came. Those apprehended within Nepal should be handed into the custody of the UNHCR who will determine if they are persons “of concern”, which effectively means they are deemed to be in transit through Nepal on their journey to India. The UNHCR will then recommend that an “exit permit” be issued and the refugees be taken to the Kathmandu Tibetan Refugee Reception Centre where they can receive food, shelter and medical aid. The tacit understanding is that they must then depart for India within 14 days of their arrival in Nepal to seek the assistance of the Tibetan Government-in-exile in Dharamsala, northern India.
The “gentleman’s agreement” in practice
Tibetan refugees who flee Tibet are considered political dissidents by the Chinese authorities and referred to as “splitists.” There are many instances on record of returning “dissidents” who have faced detention, maltreatment and torture – an issue that is currently of grave concern to Amnesty International. International refugee laws are in place to protect genuine refugees from refoulement but this is exactly what happens too often to Tibetan refugees who are apprehended within Nepal in clear violation of Article 33 of the 1951 Refugee Convention.
The gentleman’s agreement calls for the Nepalese police to escort the refugees they apprehend within Nepal’s borders to the Refugee Reception Centre in Kathmandu with a stipend being paid to reimburse them for any expense they incur in cooperating with the agreement. The reality is that the Nepalese police often return apprehended Tibetans to Chinese-occupied Tibet in clear violation of international laws intended to protect those whose lives or freedom are under threat or exploit the vulnerability of those apprehended through theft or extortion to support their own salaries.
The situation is clearly difficult for the Nepalese Government which is reticent to recognise Tibetans fleeing their own country as genuine refugees – to recognise them as such would offend the political sensitivities of their most powerful neighbour since it would be explicit recognition of the human rights abuses that occur on a daily basis in Tibet under Chinese occupation, just as the gentleman’s agreement is a tacit recognition of the fact that these abuses do occur. The political solution is to simply refuse to officially concede that the well-documented maltreatment and restrictions on the freedom of Tibetans in their own homeland is a reality and a situation that determines the Tibetan people who flee their homeland as genuine refugees escaping a hostile regime that occupies the land of their birth. The gentleman’s agreement with UNHCR allows the Nepalese government to claim it is merely cooperating with an internationally recognised body without accepting that Tibetans residing in or transiting through Nepal are refugees of an occupying regime that commits human rights abuses.
Third-country resettlement
During the early 1960s, 1,500 Tibetan refugees successfully resettled in Switzerland following the intervention of the Swiss Red Cross, many of whom attained at a high level in education and who went on to varying degrees of success in business and employment. At the request of the Dalai Lama, encouraged by the success of Tibetans resettled in Switzerland, Canada accepted 500 Tibetan refugees in the late 1960s. The US, for reasons that remain unclear to this day, refused to accept any Tibetan refugees when requested to do so by the Dalai Lama in 1969. However, the US Congress passed an Immigration Act that issued “1,000 immigrant visas to ‘displaced’ Tibetans living in India and Nepal”, largely due to the efforts of Senator Ted Kennedy among others.
Does anyone care enough to act?
It is all too easy to be critical of the less than enthusiastic approach of the government of Nepal in its dealings with Tibetan refugees who are currently resident in Nepal and those in transit through Nepal on their way to India, but this has to be tempered with some degree of pragmatism. Nepal is a poor country that can barely provide for its citizens and there are concerns among the Nepalese people that their own culture and identity may become diluted with a continued influx of Tibetan refugees. We have to remember also that we remain distant from the long border that Nepal shares with China, a country that has shown the forceful steps it will take to protect its own interests in the region, a country also that the western nations have done perceptibly little about in respect of the forceful occupation of Tibet. Who will come to the aid of Nepal should it feel the wrath of a huge and increasingly powerful neighbour that it has offended by recognising Chinese “dissidents” as refugees? Nepalese officials clearly feel themselves entitled to query: “What are the wealthy nations of the west doing about the resettlement of Tibetan refugees?” To expect the small nation of Nepal to take on and deal with the burden of tens of thousands of displaced Tibetan citizens is unrealistic: for effective change to occur, for the dire situation of Tibetan refugees to be addressed in a manner that profers long-term benefit, the international community and the United Nations must take a leading role, and an altruistic and exemplary one at that.
The United States Embassy in Kathmandu
The difficult position that Nepal finds itself in is recognised by the officials of the US Embassy in Kathmandu: it recognises the fact that Nepal is operating a low-key agreement with UNHCR in an effort to avoid offending China while not being a full signatory to the Refugee Conventions (Nepal is a nation that has human rights issues of its own). Embassy officials cooperate with UNHCR, the Nepal Ministry of Home Affairs and the Tibetan Welfare Office but they have no official role in respect of the gentleman’s agreement or the issue of determining the refugee status of Tibetans in transit through Nepal. Nepal is very much viewed as a “stepping-stone” to a place of permanent resettlement by US officials in Kathmandu and its focus is to maintain, as best it can, the operational viability of the gentleman’s agreement by supporting UNHCR. As long as this agreement remains informal in nature, the current situation and difficulties faced by Tibetan refugees will prevail while the international community looks on.
India: the final step to freedom?
China shares a border with India of some 3,380km along the northern Indian states of Jammu and Kashmir, Himachal Pradesh, Uttarakhand, Sikkim and Arunachal Pradesh. Many Tibetan refugees make the journey to India directly through the border crossings of some of these states and the final destination of those in transit through Nepal is India, where the Dalai Lama is in residence in McLeod Ganj, Himachal Pradesh. The process for entry to India should be straightforward: those issued with an RC in Nepal should have right of entry to India as recognised refugees; those without papers should be allowed entry to proceed to seek the assistance of the Tibetan government-in-exile in McLeod Ganj. However, the reality upon arrival at the Indian border is something that those who have travelled through Nepal should be well used to, a reality that will be detailed in a following article.
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