ON Dec 15, at least six civilians were killed in a clash between Pakistani and Afghan border forces near their international border crossing at Chaman-Spin Boldak, the latest in a series of deadly flare-ups between the two neighbouring countries.

Against such a tense diplomatic backdrop, however, one group of persons often gets marginalised in international discussions on extremism and regional security: the Afghan refugee population extant within Pakistan.

While it is imperative that Pakistan safeguard its national security and continue to pursue a robust foreign policy — including by maintaining a hard-line stance against Afghanistan’s harbouring of terrorist entities — care must be taken to ensure that Pakistan also stands by its obligations under domestic and international law to protect vulnerable persons such as Afghan refugees.

Pakistan plays host to approximately three million Afghan refugees — roughly 1.4m and another 840,000 hold Pakistan-issued ‘Proof of Registration’ (PoR) cards and ‘Afghan Citizen Cards’ respectively, while an estimated 775,000 are undocumented — comprising the fourth-largest refugee population in the world.

In collaboration with the United Nations High Commissioner on Refugees, Pakistan’s Chief Commissionerate for Afghan Refugees provides key social services to the Afghan refugee population holding PoR cards. This, however, does little to address the needs of those without PoR cards, nor does it inure such persons from certain sociocultural, institutional, and systemic barriers to accessing basic human rights and constitutional guarantees within Pakistan.

Pakistan is presently not a party to the 1951 Convention on the Status of Refugees (1951 Convention), nor to its 1967 Protocol — the two seminal international legal instruments relating to the plight and treatment of refugee populations.

However, robust protections for refugees nonetheless exist as part of customary international law, the corpus of legal norms that informs state actions; these safeguards include the principle of ‘non-refoulment’, which prevents a state from “transferring or removing individuals from their jurisdiction or effective control when there are substantial grounds for believing that the person would be at risk of irreparable harm upon return, including persecution, torture, ill-treatment or other serious human rights violations”.

Pakistan must stand by its obligations to protect vulnerable persons such as Afghan refugees.

This principle is explicitly reproduced in Article 3 of the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, signed and ratified by Pakistan.

Further, Pakistan is also a party to other major human rights conventions, including the 1966 International Covenant on Civil and Political Rights, which guarantees all persons — regardless of nationality or immigration status — the inherent and inalienable right to life, and the 1965 International Convention on the Elimination of All Forms of Racial Discrimination, which explicitly prohibits “racial discrimination”, including “any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life”.

Given that the state has ratified the vast majority of international human rights treaties, Pakistan is obligated to extend the rights and protections under these instruments to all persons residing within its territory or indeed under its ‘effective control’. This latter principle was best enunciated by the International Court of Justice in its 2004 advisory ‘Israeli Wall Opinion’.

Domestically, certain avenues exist for Afghan refugees within Pakistan to seek the legal protections granted by the national legal system: in his 2022 Fazal Haq order, Justice Athar Minallah recognised that, based on the principle of jus soli (the ‘law of the soil’), every person born in Pakistan becomes a citizen automatically ie by operation of the law and enjoys all rights guaranteed under the Constitution.

Further, Article 199 of the Constitution, which governs the high courts’ writ jurisdiction, uses the terms ‘aggrieved party’ and ‘person’ in relation to a petitioner under the article, and not, for example, ‘national’ or ‘citizen’.

Thus, this can potentially provide Afghan refugees who are not citizens of Pakistan with access to basic human rights and due process protections under the Pakistani legal system, in particular those securable under the high courts’ writ jurisdiction.

While these mechanisms provide some recourse for the Afghan refugee population in Pakistan, much of the existing corpus of domestic laws is unfortunately inadequate.

Presently, the primary legal instrument which relates to refugees is the 1946 Foreigners Act, which regrettably grants broad and unfettered penal and carceral powers to the state over refugees; and provides little by way of checks and balances against executive overreach or abuse of the powers so granted.

Pakistan must also develop a system to distinguish between the various kinds of migrants and assimilate them accordingly: refugees, ie those escaping to Pakistan from conflict or natural disasters in their home states; economic migrants moving to Pakistan seeking better economic prospects; and those crossing borders to maintain historical tribal or ancestral ties.

Further, protecting, and to a certain extent assimilating, the Afghan refugee population in mainstream Pakistani society would yield significant dividends, not least of which would be the international political capital such a move would accrue.

Presently, much of the Afghan refugee population within Pakistan are engaged in the country’s grey and black economies, essentially working ‘under the table’ in informal employment arrangements. Regularising such individuals would allow their economic activity to contribute to the national GDP while also broadening Pakistan’s tax base.

Doing so would also benefit such refugees in the way of meaningful opportunities for economic self-improvement, rendering them less vulnerable to entanglement in criminal activity or extremist recruitment, while simultaneously granting the Pakistani economy access to a larger labour pool from which to draw upon.

Clarifying the contours of refugee status and incorporating — to a degree — such persons within the Pakistani milieu would provide net benefits from a humanitarian, economic, and security perspective, ensuring not only that such vulnerable persons — often fleeing persecution in their home countries — are accorded the necessary protections, but also that such persons are able to tangibly and positively contribute to their host country Pakistan.

The writer is former legal adviser to Pakistan’s foreign ministry, and faculty, Lums Law School.

Published in Dawn, December 24th, 2022