Merits of Accession to the Refugee Convention of 1951 and Its Protocol Of 1967

MERITS OF ACCESSION TO THE REFUGEE CONVENTION OF 1951 AND ITS PROTOCOL OF 1967 MERITS OF ACCESSION TO THE REFUGEE CONVENTION OF 1951 AND ITS PROTOCOL OF 1967 By Mr. Justice Ali Nawaz Chowhan* * The author has been an International Judge of the United Nations at The Hague, Permanent Judge of the Lahore High Court, a visiting Professor and Co-Chairman of UNESCO Appeal (Judicial) Board-Paris, France. Email:chowhan2alhotmail.com On 28th July 1951, The Convention Relating to the Status of Refugees was approved at a special United Nations conference and entered into force on 22nd April 1954. In 1967 The Protocol Relating to the Status of Refugees was promulgated for the purpose of expanding the scope of the Convention, to include more than just the people affected by the Second World War in Europe. As a result of this the protections afforded under the Convention could now be awarded to persons in any part of the world, afflicted by any conflict without geographical or time-related restraints. Due to the similarity in, rights and obligations under the Convention and Protocol, a State has the liberty to accede to the Protocol directly without having first ratified the Convention. Pakistan has seen the arrival of different waves of Afghan refugees during the last several decades posing a refugee and a humanitarian problem. It is managing one of the greatest refugee problems in history but paradoxically it is not a signatory to the ratification of the 1951 Refugee Convention or its 1967 Protocol. It is therefore resolving the emerging issues through an ad hoc basis and a discretionary policy arising out of non-signing either the 1951 Refugee Convention or its 1967 Protocol. The decision taken by the Government of Pakistan during the cabinet session of 24th of March 2010, has for the first time since the inception of the Afghan refugees crisis given the opportunity to deal with the Afghan refugee issue in a hostistic manner to provide a historic opportunity for Pakistan to embark on the impending end of the Afghan refugee problem in a pragmatic manner and to avoid future ad hoc response that restricts the Government to deal with such problem outside a legal framework. Misconceptions regarding the Refugee Convention and its Protocol have remained one of the biggest obstacles for Pakistan for n& signing these instruments. Policy makers, concerned government departments and parliamentarians in general, are neither fully aware of the terms contained in the Convention nor about the flexibility it offers to acceding State. Further, there has been little discourse on the benefits that accession to the Refugee Convention could have for the Government of Pakistan in managing issues related to refugees. It is a known fact that Government of Pakistan is already bound by a number of human rights instruments and Islamic precedents that protect and give rights to refugees. It is remembered that the genesis of the refugees rights has its origin in the Hijra of the Holy Prophet (PBUH). Many of these obligations mirror those stipulated under the Refugee Convention. The State practice of Pakistan shows that by and large Pakistan complies with the requirements of international refugee law. In such circumstances, the Government of Pakistan's decision with regards to acceding to the Convention would put the State in the drivers seat to deal with the issues related to refugees more directly. Discussions on Pakistan's accession to the 1951 Geneva Convention on Status of the Refugee and its 1967 Protocol should not be seen or linked to the presence of Afghan refugees in Pakistan. Solutions for the Afghan refugees in Pakistan that came after 1978 Soviet invasion was not linked to the Refugee Convention as such and its solutions are not entirely based on the Refugee Conventions, but on the GOP Cabinet decision of 24th March 2010. There are misgivings that the Refugee Conventions can be applicable to Bihar's or Bengalis that presently live in Pakistan. This is a legal misperception, as the 1951 Geneva Convention does not apply to them. The arrival and stay in Pakistan of Bihari's or Bengalis is related to citizenship and economic migration and thus not within the scope of the legal provisions of the Refugees Conventions. The very first Article of the Geneva Refugee Convention, which defines the term refugee, will not be applicable for this category of people. The other misconception is about Kashmir problem and applicability of refugees Convention. People in AJK are in Pakistan-administrated territories. The refugee conventions do not apply to this situation. Only those arriving from outside of the Line of Control may apply for refugee status and they will be treated according to the laws in Pakistan. Any State acceding to the Convention can enter reservations while acceding to the Convention or the Protocol, although Article 42 of the Convention places some restrictions on the acceding State: it cannot make reservations to Articles 1, 3, 4, 16(1), 33 and 36'- 46 (inclusive). Article 1 provides the definition of the term 'refugee' which at present is universally accepted worldwide. Article 3 endorses the prohibition against discrimination; Article 4 deals with the protection of religious practice; Article 16(1) gives refugees the right to access to courts of law of a State from whom a refugee is seeking protection and Article 33 emphasizes the principle of non-refoulement (deportation at the borders). Articles 36 to 46 do not lay down any substantive obligations on the State but it prohibits to place a reservation with regards to these Articles because they deal with procedural aspects such as providing information on national legislation (Article 36), settlement of disputes by the International Court of Justice (Article 38), and the entitlement of State Parties to sign, ratify and accede to the Convention (Article 39). Over the past 30 years; Pakistan has had very little or no legal basis to deal with the refugee problem. Accession to the Refugee Convention would be conducive to address the security risks along the porous Afghan border, illegal migration and the twin problems of people smuggling and human trafficking with their links to transnational criminal networks. The Convention and accession to it does not impose upon the State a legal obligation to admit refugees on a permanent basis integrate them or naturalize them. The State sovereignty eclipses all these issues in the Convention. Hence, it does not impose any such obligation on part of Pakistan when it accedes to the Geneva Convention. If Pakistan accedes to the Conventions, it will then have to ratify. The Convention is not a self-executing treaty and hence, it will have to be applied through a national refugee regulation, which will be based on Pakistan's terms. This means that Pakistan will still have ample time to work on the issues of practically executing the Convention. Moreover, the Convention allows Pakistan to make reservations to most of the provisions related to rights and obligations. Some of others benefits will be as follows: (1)? Accession will greatly facilitate the Government of Pakistan and UNHCR to mobilize continued international support as another form of solidarity and cooperation. (2)? Acceding to the Refugee Convention would help Pakistan distinguish between genuine asylum seekers who need international protection, and illegal or economic migrants and would be an important component of the government's new strategy on the Management of Afghans in Pakistan, which was endorsed by the government in March 2010. (3)? Acceding to the Convention may also potentially ease the current economic strain of caring for the refugees rather than acerbating it as the government fears. Convention very firmly encourages repatriation as the best solution for refugees and the UNHCR has done much work of the repatriation of Afghan refugees in Pakistan in the past few years and there have been an unprecedented number of refugees repatriating to Afghanistan in this period also assuaging the fear that refugees will want to stay on in Pakistan. Secondly, as stated earlier, refugees naturalizations, granted citizenship and their integration in the host country is not a precondition for granting refugee status. It is to be noted with gratification that a Commission has already been set up for purposes of looking at the pros and cons of ratification of the refugees laws. It is hoped that keeping in view the benefits of ratification the democratic Government of Pakistan will be in a position to ratify the refugees laws along with necessary reservations in the best interest of the State, the humanitarian laws its obligation under the Islamic precedents and the grave refugees problem.