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«TIBET’S STATELESS NATIONALS II: TIBETAN REFUGEES IN INDIA A report by TIBET JUSTICE CENTER September 2011 440 Grand Avenue, Suite 425 Oakland, CA ...»

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TIBET’S STATELESS NATIONALS II:

TIBETAN REFUGEES IN INDIA

A report by

TIBET JUSTICE CENTER

September 2011

440 Grand Avenue, Suite 425

Oakland, CA 94610 USA

+1 510-486-0588

tjc@tibetjustice.org

www.tibetjustice.org

2 Tibet’s Stateless Nationals II:

Tibetan Refugees in India

TABLE OF CONTENTS

I. Executive Summary

II. Methodology

III. Background: Sino-Indian Relations

IV. Indian Policy Toward Tibetan Refugees: Continuity and Change

A. The First Wave (1959-1979): Tibetan Refugees Entering India After the Lhasa Uprising, and the First Tibetan Settlements in India

1. Humanitarian Aid and Early Settlements

2. Status Issues

B. The Second Wave of Arrivals (1980-1993)

C. The Third Wave of Arrivals (1994-1999)

D. Refugees Arriving Between 2000 and the Present

V. Legal Overview

A. Indian and International Legal Framework

B. Documentation

1. Registration Certificates (RCs)

2. Identity Certificates (ICs): International Travel

3. Special Entry Permits

C. Citizenship

1. The Formal State of Indian Law

2. Application in Practice to Tibetans

VI. The Status of Tibetan Refugees Residing in or Transiting through India

A. Introduction

B. Current Population of Tibetans in India

C. Settlements

D. Health

E. Education

F. Property Ownership

G. Employment

H. Freedom of Speech, Expression, and Assembly

I. Relations Between Tibetan and Indian Communities

VII. Conclusion

VIII. Acknowledgements

IX. Appendix: Table of Contents

I. Indian Constitution and Statutes

1. The Citizenship Act, 1955

2. The Foreigners Act, 1946

3. Indian Bare Acts: The Registration of Foreigners Act, 1939............... 105

4. Selections from the Constitution of India:

II.

Documents Issued by the Government of India:

© Tibet Justice Center 2011 Tibet’s Stateless Nationals II Tibetan Refugees in India 3

5. Identity Certificate:

6. Registration Certificate:

III. Laws of the People’s Republic of China

7. Nationality Law of the People’s Republic of China:

IV. US State Department Documents

8. Unclassified Cables:

V. Canadian Documents

VI. Tibetan Government in Exile Documents

9. Kashag Circular:

10. Tibetan Birth Certificate

11. Tibetan Green Book and Translation

–  –  –

Tibet Justice Center (TJC) began research for this report in 2003 and carried out additional research, through 2011, in order to reflect new developments and further clarify the issues. We owe thanks to the many TJC volunteers, staff, and board members who contributed to the report and whose efforts we acknowledge below, pages 73-74.

At the outset, however, we must acknowledge with gratitude the generous pro bono work carried out for TJC by Eileen Kaufman, Professor of Law, Touro College. With TJC’s permission, Professor Kaufman published some of her field research and legal conclusions in Shelter From the Storm: An Analysis of U.S. Refugee Law as Applied to Tibetans Formerly Residing in India, 23 GEO. IMMIGR. L.J. 497 (2009). TJC and the Georgetown Immigration Law Journal agreed to this arrangement.

Much of this report therefore overlaps with, and at times reproduces verbatim, parts of Professor Kaufman’s article.

But insofar as discrepancies may exist, this report represents TJC’s most current research. TJC alone bears responsibility for any errors or omissions.

–  –  –

I. Executive Summary For more than two decades, as part of its immigration work, Tibet Justice Center (TJC) has sought to provide lawyers, immigration officials, judges, and other government decision-makers with clear and accurate information about the legal status and circumstances of undocumented Tibetans abroad. Some of these Tibetans eventually petition for asylum, withholding of removal, or other relief in the United States, Canada, Switzerland, and elsewhere. In this context, their legal status vel non in a third state may emerge as an issue that potentially affects their eligibility for asylum or other relief.

In 2002, after carrying out an extensive fact-finding mission to Nepal, TJC published a report setting forth the legal status and circumstances of undocumented Tibetans residing in or transiting through Nepal.1 Since then, we have sent fact-finding missions to India and conducted secondary research to clarify the analogous—but, as it turns out, even more complex—legal issues that frequently arise for undocumented Tibetans residing in or transiting through India.

This report, Tibet’s Stateless Nationals II: Tibetan Refugees in India, is thus the product of research by TJC that took place over the course of nearly a decade. Like our report on undocumented Tibetans in Nepal, the principal objective of this report is to explain the legal status of and circumstances of life for Tibetan “refugees”2 residing in or transiting through India—whether in flight from persecution or otherwise.





For centuries before Tibet’s military occupation and subsequent annexation by China in 1951, the peoples of India and Tibet enjoyed mutually beneficial cultural, economic, and religious ties by virtue of extensive commerce, cultural exchange, and diplomatic communication across what is now the Sino-Indian border. This amicable relationship continued during the era of British rule in India and into the first few years of India’s independence. But less than five years later, the Chinese People’s Liberation Army (PLA) of Mao Zedong occupied Tibet and

TIBET JUSTICE CENTER, TIBET’S STATELESS NATIONALS: TIBETAN REFUGEES IN NEPAL

(2002) [hereinafter TIBET’S STATELESS NATIONALS I].

2 N.B. For purposes of this report, “Tibetan refugee” refers to any Tibetan residing in India without Indian citizenship or transiting through India without the documents India ordinarily requires of foreigners. As we explain below, however, India does not consider these Tibetans to be refugees in any legal sense—national or international. India is not a party to the Convention Relating to the Status of Refugees, July 28, 1951, 1989 U.N.T.S. 150, or the Protocol Relating to the Status of Refugees, Jan 31, 1967, 606 U.N.T.S. 267. Nor has India enacted national laws that enable Tibetans living in India to petition for legal refugee status.

Accordingly, throughout this report, we use the phrase “Tibetan refugee” only in the colloquial sense. Except where otherwise noted, we do not intend by the use of this phrase to express or imply anything about their legal status under either Indian or international law.

© Tibet Justice Center 2011 6 Tibet’s Stateless Nationals II:

Tibetan Refugees in India coerced representatives of the Tibetan government to sign the 17-Point Agreement.3 India did not interfere. But neither did it recognize China’s claim—memorialized in the 17-Point Agreement—that Tibet is (and always has been) “part of” the Chinese “Motherland.”4 In 1959, however, India could no longer remain neutral, for on March 10 of that year the PLA brutally crushed a popular Tibetan uprising against Chinese rule, an event known as the Lhasa Uprising.

At that time, fearing for his life, the Fourteenth Dalai Lama and many of his advisers, friends, and family members fled Tibet, arriving shortly thereafter in northern India. In part because of its strong historic and religious ties to the Dalai Lama and Tibet, India welcomed the Dalai Lama and generously offered him and his immediate retinue protection and refuge. But contrary to a common misperception, India did not grant the Dalai Lama refugee status or any other type of permanent status. To this day, the Indian government refers to the Dalai Lama simply as an “honored guest” and cultivates a studied ambiguity relative to his legal status in India. Nonetheless, since 1959, thousands of Tibetans have followed the Dalai Lama into exile in India. According to current estimates, somewhere between 110,000 and 130,000 ethnic Tibetans reside in India today.

This report describes the legal status and circumstances of life for these Tibetans; the Indian laws and informal policies that govern them;

the relationship between these Tibetan refugees and local Indians living in proximity to them; and, in general, the social, economic, political, and other circumstances for Tibetan refugees in India. These factors may be especially relevant for Tibetan asylum seekers facing the legal bar of firm resettlement in the United States,5 or an analogous doctrine in another country. The balance of this executive summary provides a brief description and road map of the remainder of the report.

3 Agreement of the Central People’s Government and the Local Government of

Tibet on Measures for the Peaceful Liberation of Tibet, May 23, 1951, P.R.C.-Tibet [hereinafter 17-Point Agreement], reprinted in MICHAEL C. VAN WALT VAN PRAAG, THE STATUS OF TIBET: HISTORY, RIGHTS AND PROSPECTS IN INTERNATIONAL LAW 337 (1987).

4 Id. pmbl. In 2003, India and China signed a “Declaration of Principles of Relation and Comprehensive Cooperation.” In it, India for the first time formally recognized Tibet as a “part of the territory of the People’s Republic of China” and prohibited what the Declaration describes as “anti-China political activities” by ethnic Tibetans living in India. Declaration on Principles for Relations and Comprehensive Cooperation Between the People’s Republic of China and the Republic of India, China-India, June 25, 2003 (emphasis added) [hereinafter Cooperation Declaration].

5 For analysis of firm resettlement, with particular attention to the situation for Tibetan refugees in India and Nepal, respectively, see Eileen Kaufman, Shelter From the Storm: An Analysis of U.S. Refugee Law as Applied to Tibetans Formerly Residing in India, 23 GEO. IMMIGR. L.J. 497 (2009); and Robert D. Sloane, An Offer of Firm Resettlement, 36 GEO.

WASH. INT’L L. REV. 47 (2004).

–  –  –

Indian Policy Toward Tibetan Refugees India’s policy toward Tibetan refugees has changed over time and differs as it has been applied to the first wave of refugees who fled with or shortly after the Dalai Lama in 1959, entrants today, and every group in between. In general, however, it is possible and analytically helpful to identify roughly four approaches taken by India toward roughly four different groups of Tibetans, viz., those who arrived in India between (1) 1959 and 1979; (2) 1980 and 1993; (3) 1994 and 1999; and (4) 2000 and the present.

Tibetans Entering India Between 1959 and 1979. After the Dalai Lama’s flight into exile following the 1959 Lhasa Uprising, thousands of Tibetans followed him into India. To cope with the massive influx of Tibetans and a potential humanitarian crisis, the Indian government set up transit camps for the new arrivals and provided them with basic assistance, such as shelter, medical treatment, and rations. As it became clear that their exile would be long term, India also created programs to provide temporary work for some of the Tibetans. India limited its assistance to humanitarian support. It avoided providing overt political support to the Dalai Lama or to the Tibetan government-in-exile (TGIE) that he established soon after his arrival His Holiness the Dalai Lama (center-front) rests with Tibetan bodyguards during his flight into exile, March 1959.

By November 1959, approximately 30,000 Tibetans had arrived in India. They were received and sheltered in temporary camps, which had been designed to house far fewer people than those who eventually ended up residing in them.

At the time, India sought to avoid allowing large concentrations of unsettled refugees to develop, in part out of fear © Tibet Justice Center 2011 8 Tibet’s Stateless Nationals II:

Tibetan Refugees in India that they might attract undesired international attention. In 1960, India relocated the Dalai Lama and the fledgling TGIE from Mussoorie to McLeod Ganj, Dharamsala. The TGIE, which later became known as the Central Tibetan Administration (CTA),6 remains based in McLeod Ganj to this day. The CTA sought to relocate Tibetan refugees arriving during this early period to agricultural and other settlements on lands that were made available to them by the Indian government. It also sought to preserve, perpetuate, and develop Tibet’s language, culture, history, religious traditions, and educational system. India’s first Prime Minister, Jawaharlal Nehru, established a range of programs designed to help the new arrivals, including, for example, the Society for Tibetan Education and several Tibetan refugee handicraft centers. To keep track of new arrivals, the Indian government, with the cooperation of the CTA, issued Registration Certificates (RCs) to the majority of Tibetans arriving during this time. While RCs did not—and do not—indicate that their bearers enjoy any formal legal status, the Indian government has, to date, allowed Tibetans holding RCs to reside in designated areas of India as a matter of discretion and executive policy.

This first wave of Tibetan refugees thus benefited from logistical, financial, and other aid programs sponsored by India and various nongovernmental organizations (NGOs), at times aided by international assistance. However, despite their informal identification as “refugees,” none of these Tibetans, including the Dalai Lama, received refugee—or any other—legal status. Tibetans who fall within this group, despite being, for the most part, informally resettled in remote regions of India, do not qualify as refugees under Indian law. Nor, in practice, can they become Indian citizens. They remain, legally, stateless.

Tibetans Entering India Between 1980 and 1993. Soon after the 1959 Lhasa Uprising, Chinese authorities strictly curtailed Tibetans’ freedom of movement, staunching the flow of Tibetans into Nepal and India.



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