International Journal of Refugee Law Advance Access published online on April 30, 2008
International Journal of Refugee Law, doi:10.1093/ijrl/een014
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The Legal Status of Afghan Refugees in Pakistan, a Story of Eight Agreements and Two Suppressed Premises
* Associate Professor of Public International Law, Amsterdam Law School/Amsterdam Center for International Law, University of Amsterdam; Extraordinary Professor of Public International Law, Pakistan College of Law, Lahore
Over 25 per cent of present day refugees enjoy asylum in Pakistan, most of them having been there for more than a quarter of a century. Pakistan is not, however, a party to either the 1951 Convention relating to the Status of Refugees or the 1967 Protocol relating to the Status of Refugees. The legal status of the Afghan refugees it hosts is therefore not a foregone conclusion, even though they were considered to be refugees on a prima facie basis during the first two decades of their exile in Pakistan. This article identifies the legal status of the Afghan refugees on the basis of a series of agreements Pakistan concluded with UNHCR and also occasionally with Afghanistan. By virtue of the last of the series of agreements, Afghan refugees can return to Afghanistan under a UNHCR-assisted voluntary repatriation programme until December 2009. In view of the fact that all Afghans have been granted leave to stay in Pakistan until the same date, many are expected to stay in Pakistan rather than return with the assistance of UNHCR. Unlike the preceding agreements, the last one does not address the fate of those who will still be in Pakistan upon completion of the voluntary repatriation programme. It seems therefore imperative to identify the legal status and corresponding entitlements of the Afghan refugees. It is argued that the prima facie recognition of refugee status can be sustained on the basis of the agreements referred to. In addition it is argued that the current ‘profiling’ exercise of UNHCR, even while presumably beneficial for the most vulnerable refugees, is irreconcilable with the status and entitlements of the Afghan refugees, and the same holds true with respect to the usual practice of ‘screening’ those refugees who have opted not to return under a voluntary repatriation programme. An alternative that would be reconcilable is a collective cessation of refugee status if and when the situation in the country of origin so warrants, provided individual refugees may contest this.