INTERIOR Minister Chaudhry Nisar Ali Khan recently stated that Pakistan was suspending the agreement ‘On the Readmission of Persons Residing Without Authorisation’ (2010) between the EU and Pakistan, since he believed EU member states were not following the treaty in the spirit of cooperation mentioned in the preamble. In particular, he stated that this was because two EU states were unilaterally deporting Pakistanis on unfounded terrorism charges. He was critical of Europe for maintaining double standards on human rights; domestic investigations, he said, revealed the repatriated persons were innocents and their nationality had to be verified by Pakistan, before deportation proceedings.
Chaudhry Nisar’s criticisms seem justified: European states have been deeply critical of Pakistan’s human rights record, cajoling Pakistan to ratify human rights treaties in exchange for GSP-Plus. But they seemed all too willing to deport migrants, third-country nationals, and stateless persons to Pakistan. This is striking since the latter has limited capacity to deal with refugees and has not ratified the 1951 Refugee Convention binding ratifying states to provide additional protections. One critical protection is the principle of non-refoulement, prohibiting countries to “expel or return (refouler) a refugee … to … territories where his life or freedom would be threatened”. The question then must be asked whether or not the EU itself is in violation of its international legal obligation vis-à-vis refugees and migrants within its territory.
But what haunts Pakistan time and time again is that it continues to burden itself with treaty obligations without first fully considering their adverse legal and policy effects. Pakistan frequently enters into treaties for short-term political and economic reasons without addressing long-term legal obligations it assumes asymmetrically. Only when things go wrong does it react; but, by then the lopsided nature of the treaties it signs or ratifies places Pakistan on weak legal ground, and the country ends up being labelled an irresponsible state unwilling or incapable of fulfilling its international legal obligations.
The interior minister’s criticism of Pakistan’s recently suspended readmission treaty with EU appears valid.
It is true that the readmission treaty is reciprocal in nature; but realistically speaking, it is unlikely that many EU citizens would become migrants in Pakistan and subsequently illegal migrants subject to deportation. It is, therefore, clear that this treaty was intended instead to deport Pakistani migrants or Afghan refugees who migrated to Europe from Pakistan, and who are no longer welcome in the EU.
This is apparent from the language of the treaty itself which is excessively broad; Articles 2 and 3 provide that EU states can deport a Pakistani citizen, a third country national, or a stateless person “who does not, or who no longer fulfils the conditions in force for entry into, presence in, or residence on, the territory of the requesting state”. This phrasing opens up the possibility of the treaty being used to forcibly deport migrants by stripping them of their visa status, thus rendering them vulnerable to the application of these provisions.
The treaty’s application is, however, subject to certain procedures, eg in requesting the repatriation of an individual a readmission application must be submitted to the requested state which must be given at least 30 days to respond. The individual’s nationality also needs to be established. Under the treaty, however, this is often a formality: for example, an expired passport is considered sufficient to circumvent the need for further investigation.
The interior minister’s statements imply that the EU did not follow these procedures. The treaty, however, also establishes a joint readmission committee, tasked with providing mutual assistance to both parties for monitoring the application of this treaty and resolving disputes. It is also unclear whether or not Pakistan approached this committee before unilaterally suspending the treaty; however, Pakistan retains the right to terminate this treaty after providing six months’ notice.
It is thus perceived that EU-Pakistan ties are deteriorating, and the extension of GSP-Plus trade status is at risk. Europe is currently facing an influx of refugees on a scale not seen since the Second World War, and with the increase in high-profile terrorist incidents in the region — such as the Charlie Hebdo attack and the recent attack in Paris, there has been a concurrent rise in xenophobia. The rise of far right, anti-immigration political parties, spurred by the refugee crisis and terrorist incidents in Europe, has almost certainly contributed to the anti-immigration sentiment in the region, opening the way for the treaty to be used to forcibly repatriate Pakistanis and third-state nationals from Europe.
If Chaudhry Nisar’s statements are correct, by unilaterally deporting Pakistanis and third-state nationals back to Pakistan the EU might certainly be going against “the spirit of cooperation” described in the preamble to the treaty, and acting beyond its scope ie to “strengthen their cooperation to combat illegal immigration effectively”. According to reports, there are over two million Pakistanis settled in Europe, people who have established themselves in the region to make a living and many of whom have been settled in Europe for decades. These are hardworking, law-abiding individuals who have left their families to earn for them abroad and send back remittances contributing to the country’s foreign exchange and liquidity.
The treaty, as it stands, enables the EU to forcibly uproot such individuals — whether or not they stand accused of criminal activity — in complete violation of the ostensibly ‘European’ notion of social democracy, common welfare, and basic human rights. The refugee crisis and terrorist incidents the EU is grappling with do not justify such violations, which run counter to the traditions of human rights and welfare of which Europe is particularly proud.
However, the fact that Pakistan continues to assume such unbalanced international legal obligations, and subsequently acts in contravention of these obligations, undermines its reputation in the international community. Greater care must be taken when entering into such agreements in order to ensure that the responsibilities thereunder are within the state’s capacity to fulfil, and prove beneficial to the polity as a whole.
Sikander Ahmed Shah is former legal adviser, Ministry of Foreign Affairs.
Abid Rizvi is an expert on international law.
Published in Dawn, November 23rd, 2015
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