Kathmandu, January 24

Human rights activists and legal experts have expressed concern over a provision in the Nepal-China Agreement on the Boundary Management System, whereby Nepal has to hand over any Chinese national crossing the border into Nepal within seven days.

They are of the view that although the provision looks normal on the surface, chances are it will ultimately be targeted at Tibetans fleeing into Nepal due to political persecution.

The government has tabled the agreement in the Parliament Secretariat to proceed with parliamentary ratification of the agreement.

Article 26 of the agreement reads: “When persons crossing the border illegally are found by either side, the boundary representatives or competent authorities of both sides shall investigate and ascertain the identity of the persons crossing the border illegally within their own territory, and inform the other side.” The article further states, “The boundary representatives or competent authorities of both sides shall investigate the cases of persons found while crossing the border illegally, ascertain their identities, facts and reasons as soon as possible and hand them over to the side where they stayed before crossing the border within seven days from the day they were detained.”

Human rights activist Indra Aryal said previous communist-led governments in Nepal had always tried to deport Chinese nationals, especially Tibetans, illegally crossing into Nepal, and that this agreement was to formalise the efforts.

Aryal said that in a particular case in 2011, the Supreme Court, responding to a writ filed by rights activists, issued an interim order directing the then government not to deport 23 Chinese nationals.

“The government signed the agreement with China forgetting the Convention against Torture and Nepal’s own Extradition Act,” Aryal said. “Although this appears normal, it will ultimately target Tibetans.”

Aryal said since Tibetans were barred from entering Nepal, they enter illegally. He added that they basically enter Nepal to meet their spiritual leader the Dalai Lama, who is based in India, or they feel they cannot continue to live there because of political persecution.

“If Nepal hands over such individuals to China, they are sure to face capital punishment,” said Aryal. “Nepal cannot do so because of the CAT Convention and Nepal’s own Extradition Act.”

Referring to the recent deportation of 122 Chinese nationals, Aryal said despite the conventions and domestic acts barring Nepal from doing so, the provision in the new agreement will eventually be aimed at Tibetan refugees. “Therefore, this is against human rights,” he said.

Similarly, constitution expert Bipin Adhikari said although the provision was not an issue superficially, the major issue was how to distinguish between illegal immigrants and refugees.

“The provision is fine on the face of it. It is being practised in a similar style by many other countries. For example, when a person arrives at an international airport without visa or travel documents we make him/her return instantly to the country of origin,” he said.

“However, the issue here is how to distinguish between illegal immigrants and refugees running out of the country to save his/her life. What safeguards are there to check abuse of power is a question to be considered by critics.”