Stateless in Shangri-La minority rights, citizenship, and belonging in Bhutan.

• Author: Ferraro, Matthew F.

1. INTRODUCTION II. BHUTAN AND THE BHUTANESE: A HISTORY OF CITIZENSHIP AND THE STATE A. From Disorder to Dynasty: The Rise of the Wangchuk Dynasty, 1651-1977 B. The Narrowing Path: Growing Restrictions on Citizenship, 1977-2008. III. THE 2008 CONSTITUTION: THE CREATION OF DUAL POLITIES A. Constitutionalizing a High-Bar to Citizenship B. Civic Republicanism for "Citizens"; Limited Rights and Duties for "Persons" IV. INTERNATIONAL LAW AND BHUTAN'S CITIZENSHIP RESTRICTIONS: THE CHALLENGES OF HIGH EXPECTATIONS AND CONCRETE COMMITMENTS V. A POSSIBLE APPROACH: EXPLOITING AMBIGUITY TO REMEDY THE CONSTITUTION'S DEMOCRATIC DEFICIT VI. CONCLUSION I. INTRODUCTION

   It could be said that modern Bhutan sprang from a dream.

   In the early 17th century, a monk named Zhabdrung Ngawang Namgyal of the Ralung monastery in western Tibet clashed with rival religious leaders over who was the true reincarnation of the founder of their Drukpa school of Buddhism. Violence between the claimants seemed imminent, but omens told the Zhabdrung to flee his native land and head south to the area then known a Lho Mon, or the Southern Land of Darkness. In one dream, the Zhabdrung saw a protective deity in the form of a black raven steering him south to where there were many Drukpa monasteries in which he could teach Buddhism. In 1616 at the age of 23, he heeded the spirit guide and left his homeland, settling in the area that is now Bhutan. Until then, the land was governed by a disparate mesh of family elites and Buddhist principalities, but the Zhabdrung instigated radical political changes. He centralized governing authority for the first time in Bhutan's history, united the leading families under him, promulgated a legal code, strengthened the country against threats of invasion, and built a network of fortresses, or dzongs, that continue to dot the forested countryside. (1) As an illustration of the Zhabdrung's lasting influence, to this day the figure of the bird who guided him is carved into the golden Raven Crown worn by Bhutan's monarch. (2)

   Given the course of later events, it is ironic that the man who established Bhutan as a distinct and sovereign entity--who is considered the country's "first great historical figure" (3)--was a foreigner. Often in its history, and especially in recent decades, Bhutan has withdrawn from the outside world--banning foreign television transmissions until 1999, (4) discouraging mass tourism, (5) and acting with hostility toward residents who do not meet the country's demanding requirements of citizenship. (6) About the size of Switzerland and similarly landlocked, Bhutan is bordered by China (Tibet) to the north and west and by India to the east, southwest (Sikkim), and south (see Figure 1 in Appendix for a map). Mountainous, verdant, and rural, (7) Bhutan--known as Druk Yul, or Land of the Thunder Dragon to Bhutanese (8)--was never colonized and lived in self-imposed isolation for much of its modem history. (9) With a population estimated at about 700,000 (10) and vulnerably sandwiched between two great powers, (11) Bhutan's monarchy has feared threats both from abroad and from what it considers internal social disharmony and cultural dilution. "We are a small country between giant and powerful neighbors," Bhutan's King Jigme Singye Wangchuk said in 1992. "We have no resources, we have only our culture and identity." (12)

   In light of this perceived vulnerability, over the past several decades, Bhutan has instituted increasingly restrictive laws on citizenship and embarked on an aggressive effort to build an "ideolog[y] of peoplehood," (13) fortifying a conception of national identity around the characteristics of Bhutan's politically dominant ethnic group, the Drukpas. (14) For instance, the government declared a national language in 1961, (15) mandated a national dress in 1988, (16) and retroactively limited birthright citizenship to those born to two Bhutanese parents in 1985-effectively denationalizing ethnic minorities who were citizens under previous laws. (17)

   The government has justified these actions to protect Bhutan from "demographic inundation." (18) Before a United Nations human rights panel, (19) the government argued that "given our tiny population and fragile culture, [migration] is a question of our survival as a nation state, and, therefore, one of national security as well. Under these circumstances, our nationality and citizenship laws are our only safeguards, as well as our sovereign duty to our people." (20)

   The government frames such efforts as protecting a singular culture despite the fact that "the kingdom is multi-ethnic, multi-religious, and multi-lingual." (21) The population is divided between three main ethno-linguistic groups: the Ngalongs "of the west; the Sharchhops of the east; and the Lhotshampas (or 'Nepali Bhutanese') of the extreme south." (22) The Ngalongs are the politically and economically dominant group. (23) "The Ngalongs, the central Bhutanese and the Sharchhops practice a Tibetan style of Buddhism, which is supported by the state: they and the other Buddhist communities of northern Bhutan are therefore usually known collectively as 'Drukpas,' and intermarriage is common between them." (24) The Nepali Bhutanese, (25) however, "are in terms of religion, language and culture completely distinct from the first two ethnic groups." (26) They are mostly Hindu, and speak Nepali. (27) Of Bhutan's ethnicities, they have suffered the greatest as a result of the state's narrowing conception of belonging; it has been estimated that onesixth of all Nepali Bhutanese lost their citizenship as a result of the 1985 law. (28) The large Nepali diaspora in the region coupled with the significant Nepali minority in Bhutan triggered government fears of cultural dilution and political challenge, (29) leading to a rising hostility that reached an apex in the early-1990s when as many as 100,000 Nepali Bhutanese emigrated from Bhutan to refugee camps in Nepal, either through official inducement, coercion, or force. (30)

   Figures for the demographic composition of Bhutan vary widely: "[R]ecent estimates have ranged from 10 percent to 28 percent for the Ngalong; from 30 percent to 44 percent for the Sharchhop, and from 25 percent to 53 percent for the Lhotshampa." (31) About 75 percent of the population, irrespective of ethnicity, practices Buddhism. (32) While it is beyond the scope of this Note to determine the precise ethnic make-up of Bhutan, the Nepali Bhutanese constitute--at the least--a substantial minority population that does not share the language, religion, or ancestry of the dominant ethnic group.

   Bhutan's efforts "to encourage a particular mode of national imagining" that reaffirms the privileged position of its elite33 have proceeded as the government has curtailed its long-practiced isolation and moved from an absolute monarchy to a constitutional one over the past fifteen years. (34) These reforms culminated in the adoption of a constitution in 2008, which establishes the state as a constitutional monarchy and enshrines many principles of liberal governance, including fundamental rights, checks on executive authority, and separation of powers. (35) The constitution, however, affirms in the state's foundational document the restrictive citizenship policies that preceded it. (36) It also establishes dual polities: one for full-blooded ethnic Bhutanese who qualify as "citizens" and enjoy a panoply of rights and duties and one for non-Bhutanese "persons," many of whom may have lived in the country for generations but are excluded from the Bhutanese polity, are denied political and economic equality, and are essentially stateless. (37)

   Bhutan has been called "probably the most understudied country in South Asia," (38) and the new constitution's democratic deficit has largely escaped scholarly attention. (39) This Note adds to the existing literature by examining the citizenship rights (or lack thereof) of those minorities who remain within the country but are not considered nationals under the constitution. It shows that while "ethnic nationalism" (40) is not unique to Bhutan, the government's actions are hypocritical given its full-throated embrace of international human rights norms. These policies are also likely inconsistent with international law--specifically the Convention on the Rights of the Child, which Bhutan has ratified--and under customary international law, more generally.

   Finally, this Note shows how the constitution contains sufficient ambiguity to allow for dynamic interpretation. It is the first publication to suggest capitalizing on Bhutan's doctrine of universal standing (41) and its Supreme Court's purposive approach to interpretation (42) to use three provisions in the constitution--one establishing Buddhism as the state's "spiritual heritage," (43) one ensuring equal protection before the law, (44) and one dedicating the state to fostering "respect for international law" (45)--to argue for establishing a category of de facto permanent residency for long-term, non-ethnically Bhutanese. This status would guarantee them basic civil rights, ameliorate the constitution's greatest weakness, and provide a political status to an otherwise stateless people.

2. BHUTAN AND THE BHUTANESE: A HISTORY OF CITIZENSHIP AND THE STATE

   1. From Disorder to Dynasty." The Rise of the Wangchuk Dynasty, 1651-1977

      Bhutan has always been "conscious of its precarious existence" (46) and--dating from the consolidations of the Zhabdrung Ngawang Namgyal--has looked to strong leaders to protect its sovereignty from external threats and internal instability. To that end, the government kept the Zhabdrung's 1651 death secret for fifty-four years, lest his absence lead to chaos. (47) Without a single figure to fill the political vacuum, that is exactly what ensued when the news broke: religious and civil elites battled for control, leading to "constant civil war, plots, and...