LAST week, Afghan ambassador to Pakistan Omar Zakhilwal weighed in on the prime minister’s proposal to naturalise Pakistan-born children of protracted Afghan refugees, by asserting Afghanistan’s desire to see them return. Thus far, the arguments behind the controversial proposal have received surprisingly little legal scrutiny given that they are based in law. Crucially, the narrow focus on naturalisation ignores that the solutions being sought to refugees’ problems can as effectively be achieved under refugee status.

The prime minister firstly argued that ‘automatic’ birthright citizenship, or jus soli, is a universal norm. This is a fallacy. International law does give every child the right to acquire ‘a’ nationality (Article 7, Convention on the Rights of the Child; Article 24, ICCPR), but any particular state’s nationality is not a birthright unless its law states so. Pakistan is one of only 30-odd world states with an unconditional jus soli law. Today, this English common law idea has only conditional application in the UK itself, in Bangladesh and Afghanistan and has been repealed by India.

It was argued secondly that Pakistan’s citizenship laws entitle 60 to 74 per cent of its refugees to citizenship by birth. The remainder would analogously be entitled by long residence. Factually, mass naturalisation of this scale would be unprecedented in the history of protracted refugee situations.

Refugees’ problems can as effectively be achieved under refugee status.

The Citizenship Act 1951 is intended for general cases of citizenship, as is clear from its ‘internal context’. It expressly mentions only three extraordinary cases, all of mass influxes (from India, East Pakistan and Jammu and Kashmir) resulting from state successions within Indo-Pakistan territories. Given their extraordinary nature, it would be fundamentally wrong to read into the act any other masses of persons not expressly covered by it. This interpretation can be supported by an aid to statutory construction, which holds: when one or more things of a class are expressly mentioned, others of the same class are excluded.

Equally, the state’s consistent reliance on special separate agreements to govern its protracted Afghan refugee population, and its emphasis on their ultimate repatriation, shows that it has, in effect, precluded the application of citizenship or naturalisation laws to them.

Merely four years into Independence, the Citizenship Act’s drafters could not have envisaged a future influx from a non-Indo-Pakistan territory. Nor would the term ‘refugee’ have been accessible to them, as the Geneva Refugee Convention formalised in 1951 limited the term to those fleeing the Holocaust or war in Europe before 1951. The mass influx Pakistan faced at Partition was, in the judgement of the Convention’s drafters, a case of statelessness. Muslims coming into Pakistan had relinquished their Indian nationalities, intending to permanently reside here. Had Pakistan denied these settlers, and their children, citizenship, they would have indeed been rendered stateless.

It bears stressing here that the Afghans living in Pakistan, including those born here, are not stateless but are entitled to full Afghan citizenship under Article 9(2) of the Afghan Law on Citizenship (revised in 2000), a natural consequence of Afghan­istan having lost many of its citizens in refugees.

From an international law standpoint, the commentaries to Article 34 (on naturalisation) of the Refugee Convention tell us that naturalisation is an ‘absolute’ sovereign prerogative. Facilitating the naturalisation of a refugee, even in general cases, is a recommendation which states cannot be compelled to perform “even after a long wait”, particularly where large numbers are concerned. Indeed, at the time of its drafting, Austria could not guarantee compliance with the article because of its “exceedingly large number of refugees”, and Italy placed a reservation because of its “overpopulation and unemployment”.

Although Pakistan is not a contracting party, we can still glean from this that the determinants of naturalisation in any given protracted situation are less legal than economic, social, cultural or racial. So, any suggestion of there being a legal obligation on states to naturalise the protracted refugee families they have generously hosted would be untenable. As wealthier states limit financial assistance and their own resettlement criteria and quotas in disregard of their international responsibility to share the burden of refugees, host states in the Global South are bearing nearly all the world’s protracted refugee populations — a staggering two-thirds (13.4 million) of all existing refugees.

In Pakistan, reservations that the representatives of host communities have fiercely expressed to any suggestion of naturalisation are expressions of their complex circumstances: concerns over space and resources, ethnic and demographic tensions and the environment. Entrenching these through naturalisation would be condescending to those in the thick of it.

Naturalisation, then, is neither legally nor pragmatically realisable in Pakistan.

But that cannot justify denying either the de jure or de facto Afghan refugees the rights that they are entitled to whilst they are present here. Indeed, the prime minister’s third assertion, that giving them citizen status can solve their work or housing problems, overlooks entirely that, as refugees, even with their Afghan nationality, they are already entitled to dignified work and housing under human rights instruments and the Constitution.

Their precarious refugee status itself, however, has meant that the need to give these entitlements as fixed, enforceable ‘refugee rights’ has been avoided entirely. Instead, they have informally, albeit generously, been given liberties in the areas of livelihood, housing, healthcare, education and movement. So, first, their refugee status must be stabilised. Then, the state must put in place a dedicated national refugee law clearly stating their rights and specifying the parameter of each right as well as the refugees’ obligations towards the state, such as respect for the law and general tax payment. It may understandably restrict claims to land given its scarcity, and with a view to what would be most equitable for host communities. The state should simultaneously push for refugee-specific international funding assistance to support these rights.

Finally, making these rights meaningful would require the sensitisation of institutions, services and society at large. The experience of Azerbaijani refugees in Armenia tells us that not even naturalisation can prevent governments and societies ostracising former refugees based on their origin if they are so inclined.

At its most liberal, a non-citizenship refugee regime can give refugees all the same economic, social and civil rights (save political rights) as nationals, while they retain their existing nationality. This is the method Nigeria adopted with its Liberian and Sierra Leonean refugees. Any number of variations is possible, but whichever one is adopted, the state must ensure that refugees are respected as refugees.

The writer is an international relations and law researcher.

Published in Dawn, October 21st , 2018