International Refugee Law: A Case Study Of Pakistan
Let’s suppose I am being persecuted in my country of origin on the basis of race, religion, nationality, belonging to a particular social group or having a certain political opinion, and there is a threat to my life and security as a result of armed conflict and other forms of widespread violence which seriously disturb public order. Being an individual or the member of a family, if I am left with no choice, then what possible options might I exercise? If I choose to remain in my place of origin, consequently I could lose my life or the lives of my dearest family members, and that might not be a prudent decision to make. If I am not ready to exercise the above choice then what should I do if there are no other options? It would be better to leave my place of origin and seek a better place where I can live my life free from threats and fear. And when I flee towards that better place, I would be classified as a ‘refugee’. Being a refugee, I shall be entitled to enjoy certain rights under international law, in the place where I take refuge. The host country shall have certain obligations towards me, including non-discrimination and non-refoulement (prohibition of expulsion or return).
International refugee law developed after the Second World War on a priority basis because the world community felt a need to overcome the refugee issues and provide for their protection in a systematic manner. In this regard, the United Nations adopted a Convention Relating to the Status of Refugees in 1951. Before 1951, UN established a specialized agency, the International Refugee Organization, in order to respond quickly to the post-war refugee crisis. Afterwards IRO was replaced by United Nations Office of the High Commissioner for Refugees (UNHCR) through the UN General Assembly Resolution 428 (V) of 14 December 1950. The office was initially set up for three years, however, its mandate was regularly renewed thereafter for five-year periods until 2003, when the General Assembly decided “to continue the Office until the refugee problem was solved” (resolution 58/153 of 22 December 2003, paragraph 9). The primary responsibilities of the High Commissioner set out in paragraph 1 of the Statute annexed to resolution 428 (V), is to provide “international protection” to refugees including “promoting the conclusion and ratification of international conventions for the protection of refugees, supervising their application and proposing amendments thereto” (paragraph 8 (a) of the Statute), and secondly, by assisting governments, to seek “permanent solutions for the problem of refugees”.
The Convention Relating to the Status of Refugees, 1951 has been ratified by 144 states. It obliges state parties to extend possible protection to refugees. Some of its provisions have also become part of customary international law, which would be otherwise binding in nature such as the principle of non-refoulement. The Convention applies to refugees and for such a purpose the convention defines a refugee as follows:
“The term ‘refugee’ shall apply to any person who […] owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
The term ‘persecution’ is integral to the definition of ‘refugee’, though persecution itself is not defined in the Convention. Article 31 and 33 of the Convention do speak about threat in the sense of whose life or freedom ‘was’ or ‘would be’ threatened, such as the threat of death, threat of torture or cruel, inhumane or degrading treatment or punishment. The language of Article 31 and 33 clearly defines ‘threat’ both in past and future forms which is intrinsic to the meaning of persecution, thus it follows that states have affirmative obligations in respect of protection and negative obligations in that of expulsion of refugees. It can be regarded as a significant development in the field of human rights law where the above principle of freedom from threat and fear is enshrined in different human rights instruments like the 1984 Convention Against Torture, Article 7; 1966 International Covenant on Civil and Political Rights, article 3; 1950 European Convention on Human Rights, article 6; 1969 American Convention on Human Rights, article 5; and the 1981 African Charter of Human and Peoples’ Rights.
In addition to the 1951 Convention, there is a 1967 Protocol Relating to the Status of Refugees. Unlike other protocols, this one is an independent instrument. Only some states are parties to the Protocol, including United States, Venezuela, Swaziland and Cape Verde. While some states are parties only to the Convention, a majority of states are parties both to the Convention and the Protocol. Difference between the 1951 Convention and the 1967 Protocol is that the Convention had restricted refugee status to those whose circumstances had come about “as a result of events occurring before 1 January 1951”, as well as giving the states party to the Convention the option of interpreting this as “events occurring in Europe” or “events occurring in Europe or elsewhere”, while the 1967 Protocol removed both the temporal and geographical restrictions with respect to refugees.
Pakistan has neither ratified the 1951 Convention nor the Protocol of 1967, even though Pakistan hosts the second largest refugee population globally. Currently, there are 1.5 million registered Afghan refugees in Pakistan. The status of these refugees in Pakistan has been regulated under tripartite agreements between UNHCR, Pakistan and Afghanistan on periodical basis. The last agreement expired on 31st December, 2015, after which the Government of Pakistan extended the period for six months till June, 2016, followed by a second extension until December, 2016. The Government of Afghanistan has requested in the Tripartite Commission meeting held in March, 2015, for further extension in the period uptil December, 2017. However, the refugees will be required to hold Proof of Registration cards in Pakistan, in the absence of which, refugees will be considered unlawful. The main provisions of the tripartite agreements include the principles of non-refoulement and voluntary repatriation.
UNHCR performs its functions both under the 1951 Convention and 1967 Protocol. State parties are required to cooperate with UNHCR for the carrying out of its functions. Cooperation with UNHCR can be derived primarily from two sources: firstly, under the 1951 Convention and the 1967 Protocol, and secondly, obligation to cooperate under the UN Charter. However, the obligations to cooperate with UNHCR under all three of these instruments, differ from the obligations under the agreement with the host state. In the former case, obligations require to cooperate with UNHCR in assistance of its functions, while in the latter case the cooperation agreement turns the cooperation into a joint venture of cooperation between UNHCR and the host state, where both are required to extend protection to refugees jointly. Actually these types of agreements are specifically intended to fill the gap where a matter or a person falls outside the scope of the Convention or Protocol. In this regard UNHCR has concluded several agreements with the Government of Pakistan in order to protect refugees in the host state. The rationale behind these joint venture agreements is to extend the mandate of UNHCR and international refugee law to refugees who are otherwise outside the scope of the conventional law.
The Convention of 1951 and 1967 protocol both are based on common legal principles. Such as non-refoulement, non-discrimination and other common standards of treatment. As set out in the Convention, non-refoulement provides that ‘no refugee should be returned in any manner whatsoever to any country where he or she would be at risk of persecution’. Article 3 of the Convention Against Torture, 1984 extends the same protection where ‘there are substantial grounds for believing that a person to be returned would be in danger of being tortured’. The principle of non-refoulement thus stands among the rules of customary international law, which is considered binding among the states regardless of whether the states have codified the law domestically or through treaties. As stated in Article 38(1)(b) of the Statute of International Court of Justice, customary international law is the “evidence of a general practice accepted by states”. It is generally determined through two factors: the general practice of states; and what states have accepted as law (opinio juris). When certain rules of customary international law achieve universal recognition by the states, then it becomes jus cogens (peremptory norms of international law) from which no derogation is permitted. However, states can deviate from customary international law by enacting treaties or conflicting laws, while they cannot do so in case of peremptory norms. It is said that all jus cogens are part of customary international law but all customary laws may not sufficiently constitute jus cogens. The principle of non-refoulement is a customary international norm from which no derogation is permitted unless there is any law or treaty contrary to it.
In Pakistan the issue of Afghan refugees has gained more attention than ever through media and public gatherings of political parties. The issue of Afghan refugees tends to get overlooked either in a political or economic context or on moral grounds. The refugee issue in Pakistan needs to be considered in a legal manner, particularly in light of the principles of international law. Pakistan, though not party to the 1951 Convention and 1976 Protocol, is still bound under the norms of customary international law to address the issue of refugees. Moreover, Pakistan has specific agreements with UNHCR for the protection of refugees, thus it has certain obligations to fulfill. It would be highly undesirable to claim the forceful repatriation of Afghan refugees on political or moral grounds. International refugee law provides for voluntary repatriation rather than forceful. Furthermore, the Government of Pakistan is under an obligation to observe the principle of non-refoulement because of its customary legal nature. In addition to this, the Government of Pakistan needs to create awareness among the people about its agreement with UNHCR with respect to the Afghan refugees, as well as regarding its obligations under public international law, in order to ensure that the people of Pakistan do not remain in confusion, which might otherwise lead to hatred and rivalry between the people of Pakistan and Afghanistan.
The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any other organization with which he might be associated.