RECENT relations between Pakistan and Bangladesh have, regrettably, been far from ideal, and the fact that the Awami League party in Bangladesh has been at the helm of its country’s affairs for two successive terms serves to further strain diplomatic ties between the two populous South Asian states.
Unlike Khaleda Zia, who leads the Bangladesh Nationalist Party, Prime Minister Sheikh Hasina Wajed is a strong ally of India and is well known for her anti-Pakistani posturing. The recent execution of Motiur Rahman Nizami, head of the banned Jamaat-i-Islami party, as well as the earlier executions of senior JI members for their alleged involvement in war crimes in the 1971 war by a controversial and widely discredited Bangladesh’s International Crimes Tribunal has only further polarised Bangladesh’s relations with Pakistan.
These events have also had an adverse impact on the existing visa regime between the two nations. The issuance of visas is becoming increasingly difficult and, coupled with onerous requirements imposed upon their approval, is making travel for ordinary citizens between the two countries exceptionally hard.
Both Pakistan and Bangladesh need to protect vulnerable Bengali expatriates.
The larger problem at hand, however, is something else entirely. Estimates put the total number of Bengalis currently residing in Pakistan at around three million. Many of them are low-income labourers from Bangladesh who have either overstayed their visas and/or are illegal immigrants. Bangladesh denies the presence of any such illegal aliens in Pakistan, and with the recent cooling in relations there is a genuine fear that such groups could face expulsion or refoulement from Pakistan or even the possibility of domestic incarceration.
Under international law, the distinction between a stateless person and a refugee is not always clear-cut. One major indicator, however, is that while a refugee must experience a well-founded fear of being persecuted upon their return to their state of origin, such is not a requirement for the qualification of a stateless person. Under the Convention relating to the Status of Stateless Persons (1954), a stateless person is defined as one “who is not considered as a national by any state under the operation of its law”.
Unfortunately, many of the Bengali expatriates in Pakistan could potentially fall within this category if both Pakistan and Bangladesh continue to harden their stances towards one other.
The 1954 convention is intended to ensure that minimum human rights protections are extended to all people, including the right to identity and the necessary documentation for travel.
Further, the 1954 convention states cannot expel a stateless person who is lawfully within their territory save on the grounds that such person poses a threat to national security or public order. Even in cases of expulsion, all states are obliged to allow the stateless person being expelled a reasonable period within which to seek legal admission into another country.
The Convention on the Reduction of Statelessness (1961) aims to reduce statelessness and establishes a global framework to ensure that the right of nationality is extended to everyone. The 1961 convention requires states to have common safeguards in place to prevent statelessness at any point in the life of a person, including due to state succession or the loss or renunciation of nationality.
The 1961 convention also establishes that children are to acquire the nationality of the country in which they were born if they do not acquire any other nationality. This is significant, considering that many in the Bengali expatriate community who actually have Pakistani identity cards have complained that the National Database and Registration Authority is creating hurdles for the issuance of national identity cards to their children who are born in Pakistan.
One major issue is that neither Pakistan nor Bangladesh are party to either of these two conventions, even though both are widely ratified, with the 1954 Convention having 88 state parties and the 1961 Convention having 67. Further, neither of the two states is party to the 1951 Refugee Convention nor to its 1967 protocol. It must be noted, however, that under the customary international law principle of non-refoulement, all states — regardless of whether or not they are party to the aforementioned conventions — are barred from forcing persons to return to a country in which they are likely to be persecuted.
Further, under the Universal Declaration of Human Rights — an international legal instrument now considered to be customary international law and hence binding upon all states — “[e]veryone has the right to a nationality [and] … no one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality”.
Additionally, both the UN General Assembly and the UN Human Rights Council recently welcomed and encouraged states through their respective resolutions to accede to both the 1954 and the 1961 conventions. While it seems, therefore, that Pakistan might not be strictly bound by many of the international law obligations regarding stateless persons outlined in letter, it is nonetheless bound by them in spirit. Having ratified both the ICCPR and the ICESCR, Pakistan is obliged to protect international human rights as outlined therein of all persons within its territory and jurisdiction, irrespective of whether one is a citizen or otherwise.
The diplomatic relationship between Pakistan and Bangladesh is a complex one, further complicated by recent steps taken by the government in Dhaka. A long-term, sustainable solution to the Bengali expatriates’ plight can only be achieved through greater dialogue and a thawing of relations between the two states.
International human rights law operates to protect those most vulnerable, such as the Bengali expatriates currently residing in Pakistan, and both countries need to ensure their compliance with their international legal — and indeed moral — obligations to protect those most in need by mending their relations and ensuring a just and equitable resolution to the plight of the Bengali expatriates.
Sikander Shah is former legal adviser, Ministry of Foreign Affairs, and law faculty at Lums.
Abid Rizvi is an expert on international law.
Published in Dawn, August 29th, 2016