Dr. Ijaz Hussain*  

Introduction

Pakistan is back on the map of the refugee-recipient countries as the haven for the largest number of displaced Afghans in the world on its soil. With the presence of an estimated 3.1 million1 and many more expected to cross the border into Pakistan, the total figure is expected to touch, if not exceed, the number which obtained in 1989, the peak period in terms of the presence of Afghan refugees in Pakistan.2 However, as opposed to the situation during the period of the Soviet occupation of Afghanistan when Pakistan welcomed, indeed encouraged displaced Afghans on its soil, this time around, particularly since November 2000 when they again started to move into Pakistan in droves as a result of the continuing draught, civil war and Taliban repression, the latter, amid protests from UNHCR, UNOCHA and other human rights organization and activists, decided to close its border to stop their mass influx onto its territory.

               Contrary to what Pakistan did last time, this time it asked the concerned UN agencies to provide assistance to displaced Afghans inside Afghanistan. The UNHCR, which is the lead agency in the matter, refused to go along with Pakistan’s suggestion on the ground that it was outside its mandate to look after internally displaced persons (IDPs) which resulted in a deadlock between the two. First, Kofi Annan, the Secretary-General of the United Nations3, and later, Ruud Lubbers,4 the head of UNHCR, during their visit to Islamabad tried to resolve the issue but failed to do so. The matter was, however, subsequently resolved through the conclusion of an MoU5 between Pakistan and UNHCR by virtue of which the former agreed with the latter to jointly screen the newly arrived Afghans in order to register genuine refugees for “temporary stay” and deport those who were merely economic migrants. It is noteworthy that as opposed to Pakistan’s earlier stand the MoU did not incorporate the idea of the establishment of refugee camps inside Afghanistan. And the fundamental question of the closure of the Pakistan border to displaced Afghans that was an anathema to UNHCR receded into the background as the MoU did not touch it at all.

               Following the American bombardment of Afghanistan in the “War on Terrorism”, the refugee question which seemed to have been taken care of by the MoU got a new lease of life as mass exodus of refugees towards Pakistan started once again. The latter however refused to open its border despite repeated calls by UNHCR and other refugee welfare agencies except to those individuals whom it called the “vulnerable cases”.6 Additionally, a good number of refugees termed as “invisible refugees” were able to enter Pakistan through the unfrequented routes. At the height of the war in Afghanistan by the International Coalition, UNHCR, by virtue of a letter addressed to President Musharraf, agreed to provide assistance to displaced Afghans inside Afghanistan under certain conditions.7 At the same time, Pakistan, following the example set by Iran but in consultation with the Taliban authorities, asked private NGOs to establish refugee camps inside Afghanistan.8

               The current phase of the Afghan refugee situation as described above gives rise to a large number of questions, some of which the present paper proposes to answer. First, is Pakistan legally justified in closing its border to the fleeing displaced Afghans? Secondly, is Pakistan justified in insisting on the establishment of refugee camps inside Afghanistan? Thirdly, is Pakistan under any legal obligation to accept the expanded definition of a refugee as incorporated in the MoU signed between Pakistan and UNHCR?  

Pakistan and the 1951 Refugee Convention and the 1967 Protocol  

               Before dealing with the questions of the closure of Pakistan border, we propose to say a word about a prior question as to whether the obligations enshrined in the 1951 Refugee Convention and the 1967 Protocol are opposable to Pakistan. This is important in view of the persistent demand made by UNHCR, other refugee welfare agencies and the Western countries asking Pakistan to observe the obligations meticulously, particularly those relating to non-refoulement contained in the above-mentioned instruments.

               Pakistan, like other countries of South Asia, is not a party to the said instruments. Hence the obligations flowing from them are clearly not binding on it in terms of conventional law.  Following the conclusion of the above-mentioned MoU, UNHCR representative Mr. Peter Nicholaus contended9 that its acceptance showed that Pakistan was under obligation to implement the 1951 Refugee Convention. On the other hand, the advocacy and protection coordinator for the International Rescue Committee, Mr. John Sifton has argued10 that “by signing the screening agreement, the government of Pakistan has subscribed to some parts of customary international law promulgated through the 1951 Refugee Convention.”

               In our opinion, the contention by the UNHCR representative on the first question is untenable. There is no principle of international law on the basis of which it could be argued that acceptance of certain provisions of a treaty amount to an acceptance of that instrument in its entirely. Consequently, acceptance of the MoU incorporating certain parts of the 1951 Refugee Convention cannot be equated with acceptance of the latter as a whole.  It cannot therefore be said that by accepting the MoU, Pakistan has become a party to the 1951 Refugee Convention.

               As to the argument advanced by Sifton that acceptance of the MoU signifies acceptance by the Government of Pakistan of parts of customary international refugee law is not tenable either. This is so for the reason that the so-called customary international law which Mr. Sifton has in mind is at best no more than regional in character and ipso facto has no applicability to South Asia (more of it under the next rubric).  

Principle of Non-Refoulement  

               The question as to whether Pakistan is under any legal obligation to open its border to the fleeing Afghans seeking refuge on its territory is the most fundamental bone of contention between the latter and UNHCR. The call for opening the border was articulated by the head of the UN Office of the Coordinator for Afghanistan (UNOCHA), Mr. Eric de Mul, who, in November 2000 when Pakistan closed its international border with Afghanistan, made the following statement:11 “If people are forced to leave their homes to survive, they have the right to decide where their best chance for survival rests.” Mr. Hashim Utkan, the head of UNHCR office in Islamabad, made a similar statement when he said:12 “I would fail in my duty if I would not regret the fact that the border was closed. It is a matter of reconciling legitimate interests of States with the need to maintain international principles of asylum.”

               The question of opening of the border relates to the principle of non-refoulement, enshrined in article 33 of the 1951 Refugee Convention13, which is couched in these words:  

(1)   No contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of race, religion, nationality, membership of a particular social group or political opinion.

(2)   The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.  

The principle of non-refoulement encompasses14 two concepts, namely, non-return and non-rejection. It is contented that at the time of the conclusion of the Refugee Convention in 1951, the principle had the conventional law status and did not include the concept of non-rejection at the border. It is argued that today the principle has assumed the status of customary international law and incorporates the concepts of both non-return and non-rejection.

It has been contended that keeping in view the requirement of widespread and representative participation including that of States whose interests are specially affected in the conventions which supposedly embody the putative customary rule as underlined by the World Court in the North Sea Continental Shelf and Nicaragua cases, the extent of State participation in the 1951 Refugee Convention, 1967 Protocol, Torture Convention, International Covenant on Civil and Political Rights and other conventions which enshrine the principle of non-refoulement, indicates its near universal acceptance.15 Messrs. Lauterpacht and Bethlehem in their opinion on the question of non-refoulement submitted to UNHCR have pronounced that participation in conventions embodying non-refoulement is more than simply “widespread and representative. It is in fact near universal including by States whose interests are specially affected”.16

Additionally, it is argued that the wide recognition of the principle in instruments such as the Declaration on Territorial Asylum, Asian-African Refugee Principles and Cartagena Declaration is also important because the State practice and opinio juris that these instruments reflect support to existence of a customary principle of non-refoulement17.

Lastly, the Conclusions of the Executive Committee of UNHCR are cited on this point because the latter is composed of representatives of States whose interests are specially affected by issues concerning refugees. Messrs. Lauterpacht and Bethlehem have concluded on this point as follows18: “With a membership of 57 States having a declared interest in the area, Conclusions of the Executive Committee can be taken as expressions of opinion which are broadly representative of the views of the international community.”

Taking up the argument of the near universal acceptance of the principle of non-refoulement, including by States whose interests are specially affected, we observe that this is not borne out by the facts on the ground in the refugee context as opposed to the human rights context. Thus writing separately in 198219 Feliciano, Hyndman and Kalin expressed cautious reservations against the principle of non-refoulement having attained the customary international law status. For example, Feliciano basing his argument on the non-acceptance of the principle by the socialist countries stated:20 ”Thus it appears the non-refoulement is a principle not of general customary law but of regional or hemispherical customary law, being widely or generally acknowledged in the non-socialist part of the globe.”

               Hyndman equally doubted the idea of non-refoulement as a principle of customary international law on the ground that many States had made reservations in the case of threats to national security or in situations of mass influx. He expressed his disagreement in these words:21 “…The oft-repeated…exceptions cannot be ignored and may be indicative that if non-refoulement has become a binding principle it has become so with these limitations.”

               Kalin maintained22 that the principle had the status of regional custom in Europe, the Americas and Africa only and was in the process of becoming customary international law. He drew attention in particular to the fact that in the course of the debate in the Sixth Committee of the General Assembly on the UN Declaration on Territorial Asylum where this issue was discussed, the great majority of delegates emphasized that the draft in hand “was not intended to propound legal norms, but to lay down broad humanitarian and moral principles upon which States might rely in seeking to unify their practices relating to asylum”. In his opinion the inconsistencies and divergences in State practice including application of the refugee definition and its exceptions further narrowed the scope of the principle.

In the opinion of the present writer, it is doubtful if the principle has a customary law status in parts of what was previously termed as non-socialist world. For example, the South Asian countries which have a population of about 1.3 billion people do not accept this principle as testified by the fact that in the two major events of refugee migration which took place in this region, namely, of Afghans in Pakistan during the Soviet occupation of Afghanistan and of Bengali Hindus in India on the eve of the 1971 Indo – Pakistan War, the element of opinio juris crucial to the formation of customary international law, was clearly missing. This is so because in the case of Afghan refugees who came to Pakistan during the Soviet occupation of Afghanistan, the former categorically stated that it was admitting them on its territory out of “Islamic and humanitarian considerations,”23 whereas India refused to accord refugee status to displaced Bengalis found on its territory  and accepted them on condition that they would return to East Bengal within a six-month period and referred to them as “evacuees” to emphasize their temporary status.24

               As to the argument of the wide recognition of the principle based on instruments such as the Declaration on Territorial Asylum, Asian-African Refugee Principles and Cartagena Declaration, the proposition is highly doubtful for the reason that these instruments are not legally binding. Therefore, the principle that they embody can at best be an evidence of emerging customary law but not customary law itself.

               Finally, the argument of the emergence of the customary law based on the Conclusions of the Executive Committee of UNHCR is also fallacious on the ground that the “soft law” that they embody is, as in the situation described in the previous paragraph, no more than an evidence of the emerging custom rather than custom itself. It is equally doubtful to suggest that the 57 members of the Executive Committee of UNHCR are broadly representative of the views of the international community for the simple reason that some of them like India and Pakistan categorically reject the notion of non-refoulement as binding on them.

               If, on the one hand, the customary international law status of the principle of non-refoulement is of dubious validity as shown above, the practice of States who consider themselves bound by this principle on the basis of conventional or customary law, particularly those in the Western democracies, shows that their commitment towards it is, at best lukewarm. This is borne out by their restrictive policies under the garb of combating illegal immigration and abuse of asylum system resulting in virtually slamming their doors shut to refugees. The term “Fortress Europe” which has consequently become synonymous with this phenomenon says it eloquently.

               As we analyze the content of these restrictive policies, we observe that four types of measures25 are envisaged to take care of the “mixed flows” of irregular migrants and refugees who are considered as threatening to swamp Europe. First is the adoption of policies aimed at preventing improperly documented aliens from reaching Europe through visa requirements and “carrier sanctions”. Some countries even resort to posting of immigration liaison officers abroad to stop asylum seekers from travelling to Europe. It is noteworthy in this connection that in a recent article published in the Times, the British Prime Minister Mr. Tony Blair expressed the desire to bring about an amendment to the 1951 Refugee Convention whereby asylum seekers would be able to submit applications in their home countries rather than travel to the country of asylum to do so. He justified this as follows:26

 

It  [1951 Refugee Convention] was drawn up for a vastly different world in which people did not routinely travel huge distances across multiple borders…. With vastly increasing economic migration around the world and most especially in Europe, there is an obvious need to set proper rules and procedures for distinguishing well-founded asylum cases from cases of economic migration.  

               Secondly, “diversion” policies are designed against those asylum seekers who, despite all hurdles, are successful in reaching borders whereby the responsibility for assessing their claims and providing protection is shifted to other countries. For example, the emergence of Central European countries where refugees could at least in theory find protection made this approach possible. The West European Governments began sending asylum seekers to “safe” countries through which they had travelled on the basis of re-admission agreements with the Central and Eastern European countries and other Governments. This resulted in “chain deportations” of asylum seekers from one state to another.

               Thirdly, these Governments tend to put a restrictive application on the 1951 Refugee Convention in order to exclude certain categories of claimants from the scope of refugee definition. Some countries exclude those who have suffered persecution at the hands of “non-state agents” from the refugee category.  This factor, among others, has resulted in the decline of applicants seeking refugee status.

               Fourthly, countries have introduced “deterrent” measures including automatic detention of asylum seekers, denial of social assistance and restriction on access to employment. Additionally, refugees already in the country are denied the right to bring their families to join them.

               The foregoing narrative on the practice of States especially of the Western democracies bound by the principle of non-refoulement on the basis of conventional or customary law shows their weak commitment towards it. As opposed to this, it has been argued on the basis of the suggestion made by the Executive Committee of UNHCR in 1982,27 the OAU Convention on Refugee Problems in Africa28 and Cartagena Declaration in 198429 that the principle of non-refoulement amounts to a rule of jus cogens which no state practice and no treaty can set aside.

               In our view, the above assertion, which has also been made by some individuals, is not well founded.30 This is so, for the simple reason that unlike a norm of jus cogens–which is peremptory in nature and from which no derogation is permitted in terms of Article 53 of the Vienna Convention31, the principle of non-refoulement does not enjoy that status as evidenced by the exceptions to it.

               To begin with, paragraph 2 of article 33 of the 1951 Refugee Convention unambiguously excludes potential beneficiaries of this principle on grounds of “national security” and “public order” in these words:  

The benefit of the present provision [prohibition of non-refoulement] may not, however, be claimed by a refugee whom there are reasonable grounds of regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.              

It is noteworthy that the Declaration on Territorial Asylum not only acknowledges the national security exception, but also appears to authorize another exception in the case of a mass influx of persons. This took place at the 1977 Conference on Territorial Asylum when following the Turkish amendment it was stipulated that non-refoulement might not be available “in exceptional cases, by a great number of persons whose massive influx may constitute a serious problem to the security of a Contracting State”32.

               As far as the OAU Convention is concerned even though it declares the principle of non-refoulement to be without exception, on closer scrutiny this does not seem to be the case. This is so because even though considerations of national security find no place in the Convention, appeal is provided in cases of difficulty directly to other member States through the OAU.33 In such an eventuality temporary residence, pending settlement, is envisaged but this is not mandatory. In short, one can say that as far as the OAU Convention is concerned, though no formal provision is made to escape the rigidity of the principle of non-refoulement, for all practical purposes it is available to States parties.

               It is also noteworthy that the OAU Convention was drawn up to take care of those individuals who were displaced as a result of the freedom struggle waged during the colonial period. However during the post-colonial period the African States no longer display the kind of solidarity that they showed with refugees in the past.34

As far as the Cartagena Declaration is concerned, it is no more than a non-binding instrument. Consequently, the principle of non-refoulement, which it suggests as having the status of jus cogens, is no more than an exhortation.

               In the light of the foregoing analysis one can say that the principle of non-refoulement is neither a principle of customary international law nor a rule of jus cogens as it is given to understand in the literature on the subject. If it is still insisted that the principle has assumed the status of customary law or that of jus cogens while ignoring the non-acceptance of the principle by 1.3 billion people of South Asia who are deeply affected by the refugee question, then one may be obliged to say that the formation of refugee law is nothing but West-centered.   

Refugee Camps inside Afghanistan  

               Another contentious issue between Pakistan and UNHCR was the demand made by the former to provide assistance to the fleeing Afghans inside Afghanistan by establishing refugee camps there. It justified its contention on the ground that it was already overburdened with more than 3 million refugees and that there was no room for more. The UNHCR rejected this demand on the ground that looking after IDPs did not fall within its mandate and that such a course of action would additionally undermine the concept of asylum which, it is under an obligation to defend. It felt so strongly about it that on one occasion the head of UNHCR, in response to Pakistan’s persistent demand in the matter, leaving all diplomatic etiquette aside, stated:35 “This is a silly idea in Pakistan. This is not the solution.”

               As far as IDPs are concerned, they did not figure in the international legal and institutional regime set up fifty years ago as they were perceived to fall within the domestic jurisdiction of the State concerned. Two factors accounted for this state of affairs. First was the notion of State sovereignty that did not leave any room for looking after IDPs by outside agencies as, in the eyes of the State concerned, it amounted to interference in its internal affairs. Second and more important was the Cold War framework of the 1951 Refugee Convention in which the West in its struggle for supremacy over the East was able to get the definition of refugee accepted in terms of individuals who had crossed international border, excluding those who did not do so.

               Consequent upon this development, the issue of IDPs remained unattended for a number of years by UNHCR, although ICRC did provide assistance to those who fell victims during armed conflicts. Over the years the question assumed importance as the number of IDPs increased dramatically in the 1990s resulting in the appointment in July 1992 of Mr. Francis Deng as the UN Secretary-General’s representative on IDPs. He viewed the latter as falling into “a vacuum of responsibility”36 within the State.

               Although UNHCR Statute is stricto sensu concerned with those who had crossed international border in search of safety and is not mandated to deal with IDPs, the High Commissioner, by virtue of Article 9, may, “engage in such additional activities… as the General Assembly may determine, within the limits of the resources placed at his disposal.” In pursuance of this article a series of UN General Assembly resolutions, acknowledging UNHCR’s particular humanitarian expertise encouraged its involvement with cases of internal displacement.  The UN General Assembly Resolution 48/116 (1993) in particular lays down important criteria to deal with IDPs by UNHCR. In sum, one can say that these resolutions in tandem with Article 9, provide the legal basis for UNHCR’s involvement with IDPs.

               In addition to the argument of the lack of mandate to look after IDPs, UNHCR also contends that involvement with them would undermine the concept of asylum, which it is under an obligation to defend. Though the present writer disagrees with UNHCR on the question whether a displaced person in every region of the world can claim asylum as a matter of right on the basis of customary international law, the latter has a point if the matter is looked at from its perspective. However, it must be said that the principle, which UNHCR so fervently espouses, is not sacrosanct.37 For example, in the case of Iraqi Kurds, Turkey’s closure of border with Iraq was accepted through the creation of “safe havens” on the latter’s territory. Similarly, in the case of Rwandan refugees, UNHCR signed a refoulement agreement with Tanzania. Besides, the objective of international protection is under attack by the international community as evidenced by Conclusions of the Executive Committee.

Despite all the theoretical objections raised by UNHCR against looking after IDPs, the welfare agency has practically been involved with them since 1960s. And this involvement increased dramatically during the 1990s. By 1999 UNHCR was providing protection and assistance to some 5 million IDPs in the world.

            It must be said that time has come that we revise the Refugee Convention, with the view, among others, to mandating UNHCR to look after IDPs. This is eminently justified because the distinction between the latter and refugees is an artificial one. Interestingly, Pakistan, along with India, tried to convince the delegates at the Refugee Conference in 1951 not to make a distinction between IDPs and refugees but the Western countries guided by their Cold War interests refused to pay any heed to these pleas.38 The US ambassador to the UN, Richard Holbrooke recently made an impassioned plea that policy makers should “not let bureaucratic euphemisms and acronyms allow us to ignore these people (IDPs)”.39 

               In view of the fact that Pakistan was burdened with more than three million Afghan refugees who had been pouring into its territory in droves since the Soviet occupation of Afghanistan and to whom the international community had stopped all assistance since about 1995 because of “donor fatigue”, the former had a good case in favour of the establishment of refugee camps inside Afghanistan. However, UNHCR’s attitude was patently negative as shown above by Mr. Lubbers’ remarks on Pakistan’s proposal. The reason for this attitude seems to be more political than anything else because in the Western Governments’ view any help to IDPs meant strengthening the hands of the Taliban Government which they were not prepared to do.         

Expanded Refugee Definition  

               Another issue, which needs attention, is the question of refugee definition. The MoU signed between Pakistan and UNHCR incorporates an expanded refugee definition rather than the narrow one given in the 1951 Refugee Convention.  We understand that in the process of implementation of the MoU, the Government of Pakistan started having second thoughts in the matter as it felt that it had accepted much more than it had bargained for. The question arises as to what is the legal status of the expanded definition in international law and whether Pakistan is under legal obligation to accept it.

               The definition of a “refugee” given in the 1951 Refugee Convention40 with a focus on a person who has “a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion”, was formulated in the light of the European experience during the period of the Cold War.  The subsequent experience in other parts of the world on the refugee question was different from that of Europe. This resulted in at least two regional instruments, namely the 1969 OAU Convention and the 1984 Cartagena Declaration which carry definitions of a “refugee” based on experiences peculiar to those regions. For example, the OAU Convention definition of a refugee41 in addition to encompassing the definition given in the 1951 Refugee Convention also includes “every person who, owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of his country of origin or nationality”.  Similarly, the Cartagena Declaration42 embraces not only the definition contained in the 1951 Refugee Convention but also incorporates “persons who have fled their country because their lives, safety or freedom have been threatened by generalized violence, foreign aggression, internal conflicts, massive violation of human rights or other circumstances which have seriously disturbed public order”.

               Conscious of the fact that the refugee definition given in the 1951 Refugee Convention has a limited applicability, UNHCR, in the absence of an amendment in the latter instrument which could have taken care of this deficiency, has over the years tried to cover this lacuna by giving an expanded definition.  For example, it has done so in the National Model Law43 for the South Asian countries that it prepared with the help of Eminent Persons Group (EPG). The MoU referred to above also incorporates the expanded definition by drawing upon the 1951 Refugee Convention and the two regional instruments mentioned above. The resulting refugee definition in addition to the “well-founded fear of being persecuted” clause also includes any person who faces “a threat to life or security as a result of widespread violence which seriously disturbed the public order.”

               UNHCR has been urging Pakistan to become a party to the 1951 Refugee Convention and deals with the latter on the assumption that the refugee definition, among others, as given in the foregoing instrument is binding on Pakistan on the basis of customary international law. However, in the MoU in question, UNHCR has gone beyond its working hypothesis by making Pakistan accept the expanded definition.

               As to the legal status of the expanded definition, there is no consensus in the international community with regard to its customary character. For example, an eminent authority on refugee law, Guy Goodwin-Gill, justifies the expanded definition on the ground44 that a new class of refugees is recognized in customary international law. Kay Hailbronner, on the other hand, describes45 this as “wishful legal thinking” on the ground of paucity of extensive and uniform State practice as well as lack of sufficient opinio juris to justify the assertion of international rights for refugees outside the 1951 Refugee Convention. He also argues that since the international practice based on expanded definition is no more than institutional in character on the part of UNHCR it cannot bind States in their own actions. Additionally, in his view, regional standards are not binding and treatment of humanitarian refugees is looked upon as a matter of discretion over immigration.

               In the view of the present writer, because of the inconsistencies and divergences in the State practice the expanded refugee definition does not seem to be founded in customary international law. Consequently, it cannot legally bind Pakistan. However, since Pakistan accepted it in the MoU out of free will, it cannot wriggle out of it without the consent of UNHCR.   

Conclusion   

               The question of the influx of Afghan refugees confronted Pakistan the first time when the Soviet Union occupied Afghanistan during the 1980s. The issue came back to haunt it again in 2000 when as a result of draught, continuing civil war, Taliban repression, etc., a large number of displaced Afghans started swarming into  its territory. Unlike the previous occasion, this time Pakistan decided to close its border with Afghanistan which created differences with UNHCR which focused on three areas, namely, (a) closure of the border; (b) demand for the establishment of IDP camps inside Afghanistan; and (c) definition of refugee. The present paper has tried to deal with these issues from the refugee law perspective.

               As to the question of the closure of Pakistan’s border with Afghanistan, it relates to the principle of non-refoulement. Contrary to the general belief principally based on the writings of Western jurists which suggests that the principle has a customary international law status, our findings prove that it is no more than a regional custom under erosion because of its weak implementation by the Western democracies. Nor has the principle attained the status of jus cogens as suggested by some.

Regarding the question of the establishment of IDP camps inside Afghanistan as insisted by Pakistan, UNHCR has stonewalled the proposal on the ground that it falls outside its mandate. Our investigation shows that the latter’s Statute provides sufficient basis for such a course of action. The UNHCR is at present looking after 5 million internally displaced persons. It appears as if the latter is motivated more by political considerations than anything else.

As to the definition of refugee, UNHCR has imposed an expanded one on Pakistan through the MoU concluded between itself and the latter. There was no legal obligation on Pakistan to accept it because it does not enjoy customary international law status. However, since Pakistan accepted it out of free will, it is bound to implement it unless it succeeds in renegotiating the question with the refugee agency. It is noteworthy that the narrow definition of refugee and the supposed interdiction on the establishment of IDP camps inside Afghanistan are a vestige of the Cold War period when the Statute and the Refugee Convention were concluded. UNHCR however takes a contradictory attitude on these issues. Thus on the definition of refugee it is always eager to abandon the narrow Cold War formulation in favour of the expanded one whereas on the establishment of refugee camps inside Afghanistan it is most reluctant to abandon the Cold War position.n