The Legal Status of Afghan Refugees in Pakistan, a Story of Eight Agreements and Two Suppressed Premises

Over 25 per cent of present day refugees enjoy asylum in Pakistan,most of them having been there for more than a quarter of acentury. Pakistan is not, however, a party to either the 1951Convention relating to the Status of Refugees or the 1967 Protocolrelating to the Status of Refugees. The legal status of theAfghan refugees it hosts is therefore not a foregone conclusion,even though they were considered to be refugees on a prima faciebasis during the first two decades of their exile in Pakistan.This article identifies the legal status of the Afghan refugeeson the basis of a series of agreements Pakistan concluded withUNHCR and also occasionally with Afghanistan. By virtue of thelast of the series of agreements, Afghan refugees can returnto Afghanistan under a UNHCR-assisted voluntary repatriationprogramme until December 2009. In view of the fact that allAfghans have been granted leave to stay in Pakistan until thesame date, many are expected to stay in Pakistan rather thanreturn with the assistance of UNHCR. Unlike the preceding agreements,the last one does not address the fate of those who will stillbe in Pakistan upon completion of the voluntary repatriationprogramme. It seems therefore imperative to identify the legalstatus and corresponding entitlements of the Afghan refugees.It is argued that the prima facie recognition of refugee statuscan 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 themost vulnerable refugees, is irreconcilable with the statusand entitlements of the Afghan refugees, and the same holdstrue with respect to the usual practice of ‘screening’those refugees who have opted not to return under a voluntaryrepatriation programme. An alternative that would be reconcilableis a collective cessation of refugee status if and when thesituation in the country of origin so warrants, provided individualrefugees may contest this.     

The European Union Qualification Directive: The Creation of a Subsidiary Protection Regime

The European Union Qualification Directive is the first supranationalinstrument to seek to harmonize complementary protection (termed‘subsidiary protection’ in the EU). Though it hasshifted complementary protection beyond the realm of ad hocdomestic practices to a codified regime, it entrenches a protectionhierarchy that unjustifiably differentiates between the rightsand status accorded to Convention refugees vis-à-visbeneficiaries of subsidiary protection. This article tracesthe development of the Qualification Directive by examiningpreparatory documents and drafting records. It discusses changesto the categories of persons granted subsidiary protection aswell as to the substantive rights attaching to that status.In particular, it criticizes the narrowing-down of originally-proposedcategories of persons eligible for subsidiary protection, arguingthat omitting to provide for known groups of extra-Conventionrefugees does not eliminate them, but simply creates new categoriesof unprotected persons. It also highlights the absence of anyinternational legal basis on which to base distinctions betweenthe rights granted to Convention refugees vis-à-vis beneficiariesof subsidiary protection. It concludes that the QualificationDirective represents a regional, political manifestation ofthe broader legal concept of complementary protection, and assuch does not provide a model for emulation at the internationallevel.     

Work, the Right to Work, and Durable Solutions: A Study on Sierra Leonean Refugees in The Gambia

It is rare indeed that the forced movement of people will nothave an economic dimension. Economic issues related to the movementof people have generally been viewed as beyond the scope ofthe debate on the international status and protection of refugees.Instead, ‘economics’ and ‘refugees’when heard together, or even in loose association, have evokedthe pejorative images of those who move to seek a ‘betterlife’. While recognising on the one hand the inevitabilityof economic dimensions to refugee movements, many advocatesfor refugees have traditionally taken great care in their policyand advocacy work to downplay the economic element of the complexmatrix of motivations that lead refugees and other forced migrantsto move. This paper takes a different approach. It promotesthe right to work, a social and economic right, as integralto protection and to all durable solutions. It explores itsrelevance, and indeed its significance, as a matter of law,policy and practice to the lives of refugees and those responsiblefor their protection, including their hosts. After all, ‘[d]espitethe statistical existence of unemployment in every country inthe world, work continues to be "an essential part of the humancondition"’. In addition, the paper examines the importanceof a rights-based analysis of work in understanding its relevancein the field both of international and national protection.In doing so, it explores the connections between work and theright to work and the three durable solutions. It acknowledgesthat social and economic conditions and inequities are oftenamongst the root causes of conflict which then lead to the failureof national protection and precipitate flight.     

Sourcing from China: stopping the IP leaks from your clients' supply chain

Legal context: It is no secret that IP in China is a challenge. However, commercialactivity in or with China is now predictable enough that companiescan, and should, plan for it by taking control of their supplychain. This requires a combination of legal and practical measures.This article sets out some of these steps. Key points: In order to minimize the risks of IP leakage their supply chainsin China, there are three key stages of protection: (i) Pre-sourcing;(ii) Negotiating strong contracts with suppliers; and (iii)Managing the relationship with your supply chain. Practical significance: If your clients do business in China or source products fromhere and cannot answer the following questions, their IP isat risk of infringement. They need to take steps to proactivelymanage their supply chain.

• Do your clients know which factoryis producing their products?How many links are in your clientssupply chain, each one increasingthe chances for IP infringement?
• Do your clients' agreements with their suppliers adequatelyprotect their IP?
• Have your clients taken steps to prevent‘midnight productionruns’ and ‘backdoor sales’by their suppliers?
• How is the IP being provided to them?Do your clients need togive them everything for production?
• What steps have been taken post-production to ensure thatyourclients' suppliers don't continue to manufacture theirproducts?

     

International Law and Detention of US Asylum Seekers: Contrasting Matter of D-J- with the United Nations Refugee Convention

US refugee law reflects an ever-increasing conception that theapplication of international standards would constitute an unacceptablerisk to national security. CSR Article 31(2)’s requirementthat refugees ‘shall not’ be detained unless ‘necessary’appears among the chief casualties of such suspicions. US jurisprudenceremains strikingly devoid of reference to Article 31, and 2003’sMatter of D-J- is a prime example. D-J- was an administrativedecision in which the US Attorney General held that nationalsecurity required all US asylum seekers who successfully arrivevia boat must be subject to mandatory detention throughout thecourse of removal proceedings. Despite US accession to the Protocol,Article 31(2) was not mentioned. This article explores what might have happened to D-J- if theRefugee Convention had indeed been applied to his case. Utilizingthe international methodology for treaty interpretation, itapplies Article 31(2) to various aspects of the Attorney General'sdecision. Part 2 argues that under the Supreme Court's CharmingBetsy rule, statutory discretion to detain must be interpretedconsistently with US international obligations. Part 3 concludesthat Article 31(2) of the Refugee Convention grants asylum seekersa right to release whenever their detention is not ‘necessary’.Part 4 proposes a three-part ‘pyramid’ approachto explain the elemental phases of the decision to detain anasylum seeker and examines necessity at each stage. Finally,Part 5 discusses Article 31(2)’s implications regardingevidence and proportion. The premise throughout is that, hadit been applied, the Refugee Convention could have protectedthe interests of both D-J- and ‘national security’.     

Clear, Simple, and Precise Legislative Drafting: How Does a European Community Directive Fare?

In 2001, Martin Cutts redrafted Toy-Safety Directive 88/378/EEC¹in plain language. He criticized the language of that Directiveas being archaic legalese.² He added that Directives, as a whole,were poorly drafted.³ The European Commissions Legal Servicerejected his criticisms. It stated that it had published theEuropean Commission’s plain language guidelines⁴ afterDirective 88/378/EEC had been drafted. In a previous articlein the Statute Law Review,⁵ Butt and Castle’s⁶ plain languageguidelines were explicated using examples from Directive 2002/2/EC.⁷In this article, their guidelines are applied to the whole ofthat Directive to see if its language is ‘clear, simple,and precise’.⁸ The criticisms made in the previous article,⁹combined with those made in this article, suggest that the draftersof Directive 2002/2/EC¹⁰ have not yet mastered the skill ofwriting in ‘clear, simple, and precise’ language.     

Pepper v Hart: A Footnote to Professor Vogenauer's Reply to Lord Steyn

This Note is intended to stand as a short supplement to thecompelling article by Stefan Vogenauer entitled, ‘A Retreatfrom Pepper v Hart? A Reply to Lord Steyn’ published inthe Journal at the end of 2005.¹ In his article, Professor Vogenauercalls in question the argument advanced by Lord Steyn in hisarticle in the Journal, entitled ‘Pepper v Hart: A Re-examination’.²In that article, Lord Steyn called for a retreat from the decisionof the House of Lords in Pepper v Hart³ concerning the circumstancesin which reference may be made to Hansard as an aid to statutoryconstruction and for a reinterpretation of the decision in linewith a theory that a Minister speaking in Parliament who givesan explanation of the meaning or effect of a clause in a Billshould be taken to create a binding legitimate expectation thatthe executive will apply the provision, once enacted, in thatsense. In this Note, I express my agreement with Professor Vogenauer’sargument, and seek to support it with some additional pointsunder three heads: (1) the proper interpretation of Pepper vHart and its status as authority; (2) the basis in principlefor adhering to that interpretation; and (3) conceptual difficultiesattached to Lord Steyn’s legitimate expectation thesis.     

The Problem with Entrapment

In R v Looseley; Attorney General’s Reference (No. 3 of2000) the House of Lords articulated a legal framework to govern‘entrapment’ in criminal cases. Their Lordshipsregarded the need for judicial intervention to assist entrappeddefendants as uncontroversial. This article argues that thedoctrine they set out, in fact, necessitates substantial, andlargely unarticulated, departures from principles the courtsordinarily stress as fundamental to the criminal law. In particular,entrapment doctrine determines liability for criminal acts byreference to the kind of environment inhabited by their perpetrators,a perspective the law ordinarily attempts to exclude. This articlesuggests that the anomalous treatment of entrapment can be understoodas a device to prevent the police from relocating the temptationto commit crime to environments in which they are not ordinarilyconfronted and to ensure that those from backgrounds in whichserious criminality is not usually a plausible option will escapepunishment if tempted to commit crime by the police.     

The Shifting and Multiple Border and International Law

The question of how the ‘border’ is conceived ininternational law, and how it shapes identity and peoples’lives, remains largely unexplored in the international legalliterature. This article seeks to contribute to our understandingof the meaning of the border in international law, and in thecontemporary context, by drawing on the work of the philosopherand political theorist, Étienne Balibar, and by reflecting,in the light of his work, on the recent decision of the Houseof Lords in R v Immigration Officer at Prague Airport. It isshown that international law's focus on the territorial bordermay render invisible other borders which are significant forsubaltern groups, and thereby fail to address the manner inwhich borders affect lives and determine outcomes. Borders arenot stable and ‘univocal’, but instead, ‘multiple’,shifting in meaning and function from group to group. They arealso being ‘exported’ such that a person may experiencea foreign border while still within the territory of their owncountry. In highlighting the multiplicity of borders, the articleseeks to prompt further reflection on the articulation and applicationof norms of international law in a way that addresses the realitiesof the contemporary context.     

Separated Children: A Comparison of the Treatment of Separated Child Refugees Entering Australia and Canada

Separated children are in a uniquely vulnerable situation. Notonly are they in fear of persecution but they have been separatedfrom their families. They are seeking multifaceted protections.Such children need a country to protect them from further persecution,a caregiver to nurture them and fulfil the family role and asociety that will foster their social and intellectual growth.This article analyses the treatment of separated child refugeesin the context of international human rights law as it relatesto children and from the viewpoint of domestic immigration law.The article bases this analysis on a comparison of the treatmentof separated child refugees in Australia and Canada. The fundamentalprinciple of the International Convention on the Rights of theChild is that member states should act in the child's best interests.This principle has two important aspects, firstly, that detentionof children should only be used as a last resort and, secondly,that child refugees should enjoy the right to seek asylum. Thearticle examines the domestic law of both Australia and Canadawith a view to determining how these two aspects are appliedto unaccompanied children.     

Power Politics and the Rule of Law: Shakespeare's First Historical Tetralogy and Law's 'Foundations'

Legal scholars’ interest in Shakespeare has often focusedon conventional legal rules and procedures, such as those ofThe Merchant of Venice or Measure for Measure. Those plays certainlyreveal systemic injustice, but within stable, prosperous societies,which enjoy a generally well-functioning legal order. In contrast,Shakespeare's first historical tetralogy explores the conditionsfor the very possibility of a legal system, in terms not unlikethose described by Hobbes a half-century later. The first tetralogy'sdeeply collapsed, quasi-anarchic society lacks any functioninglegal regime. Its power politics are not, as in many of Shakespeare'sother plays, merely latent, lurking beneath the patina of anotherwise functioning legal order. They pervade all of society.Dissenting from a long critical tradition, this article suggeststhat the figure of Henry VI does not merely represent antiquatedmedievalism or inept rule. Through Henry's constant recourseto legal process, arbitration and anti-militarism, the firsttetralogy goes beyond questions about how to establish a functioninglegal order. It examines the possibility, and meaning, of ajust one.     

The Amicus Brief Issue at the WTO

The near-exclusive attention which many commentators have givento the importance of analysing the amicus brief issue in termsof transparency and accountability, often accompanied by accusationsof a lack of democratic status on the part of the countriesthat have objected to the admission of such briefs, is misplaced.The World Trade Organization (WTO) Members that have objectedmost strenuously to amicus brief submissions have been developingcountries—ironically, the most vocal proponents of anindependent, strong "trade court". Why should developing countriescomplain if the issue is really one of strategic and politicalinterests? After all, a "court" that takes it upon itself toaccept amicus briefs despite the protestations of the majorityof the WTO Membership is, in this sense, a "strong court". Whatthis article aims to provide is a very close account of theviews of the Members in the political debates on this issue.On that basis, it seems that abstract arguments based on thepositive role that non-governmental organizations (NGOs) canplay are unlikely to assuage developing countries' concerns.They only address the supposition that developing countriesare morally mistaken in their political views, or are sufferingfrom a false consciousness of the (real) threat of trans-boundarynon-governmental moral entrepreneurs. Instead, the concernsof these and other Members have to do with estimations aboutthe likely impact of WTO Appellate Body activism on the misapplication(and consequent unpredictability) of negotiated trade rules.These concerns should be taken seriously, for they go to theoriginal intent at Uruguay of having an impartial body whichwould impartially apply negotiated rules, with an eye towardsthe avoidance of political controversy. According to this view,fundamental gaps in trade regulation should be resolved by theMembers—not the Appellate Body.     

Adapting to Changing Legal Frameworks: Mozambican Refugees in South Africa

This paper argues that legal frameworks to manage immigrationand refugee rights need to be understood from below, namely,how they are interpreted and used locally by the immigrantsaffected and by the host communities, in their specific historicalcontext. Using the case of Mozambican refugees in South Africa(1985–2006), the paper outlines why many of the policiestargeted at or affecting this group of immigrants have had counterproductiveeffects (from the perspective of policy makers) because of thedisjuncture between the goals and assumptions of the legal frameworkand the reality experienced and desired by the refugees. Thesituation of Mozambican refugees in South Africa over the pasttwenty years has been shaped by a radically changing legal context.These changes are charted and matched with how Mozambican refugees,especially those settled in the rural border areas, have adaptedto, made use of and subverted the various legal constraintsand opportunities provided by the South African state and itslocal representatives.     

From the Right to Return to the Return of Rights: Completing Post-War Property Restitution in Bosnia Herzegovina

Given the numbers displaced as part of the means and methodsof the armed conflict during the war in Bosnia Herzegovina between1992–95, it is not surprising that the return processhas been long and drawn out. Nevertheless, a remarkable processof post-war reconciliation has quietly drawn to completion inBosnia Herzegovina. In less than a decade after the end of thewar, over 90 per cent of the 211,871 claims for the restitutionof real property made by internally displaced persons (IDPs) and refugees have been resolved. Annex 7 of the Dayton Agreement, The Agreement on Refugees andDisplaced Persons, provided for the return of IDPs and refugees,but it was the object of obstruction in the mid to late 1990s.However, by the middle of the first decade of the 21^st century,restitution was all but complete. The significance of this turn-aroundextends far beyond the hundreds of thousands of Bosnians whobenefited directly. It is a model, both positive and negative,for the resolution of many other conflicts around the worldin which land is a major issue. While a number of factors contributedto the dramatic acceleration of the restitution process in Bosnia,certainly the unexpected staying power — and, indeed,concerted action on property restitution — of the internationalcommunity played its part. A ‘carrot and stick’strategy manifested itself in high-profile funding, admittanceto international bodies, and the removal of obstructive officials.As this paper shall argue, the greatest factor in seeing theprocess through to the end was the shift from a process thatfocused primarily upon ethnically-linked ‘return’,sometimes at the expense of individual property rights, to onethat was driven primarily by the recognition of property rightsand the rule of law. This was possible for a number of reasons.Uniquely, international human rights conventions were incorporateddirectly into post-war Bosnian domestic law. Influenced by this,legislative amendments and changes in implementation strategyprogressively slanted the process in favour of simple, almostintuitive, rights recognition. Shifting away from the emphasison ‘return’ removed a subjective element from implementationand, combined with greater emphasis on the ‘rule of law’,narrowed the scope for the system to be manipulated and thwarted.This, thereby, de-politicised restitution.     

The Doha Round's Public Health Legacy: Strategies for the Production and Diffusion of Patented Medicines under the Amended TRIPS Provisions

The entry into force of the World Trade Organization (WTO) TRIPSAgreement in 1995 transformed the international intellectualproperty system. The harmonization of basic intellectual propertystandards has operated to protect investment in innovation,limiting risks from unjustified ‘free riding’. Yetthese same harmonized IP standards sharply curtailed the traditionalcapacity of suppliers of public goods, such as health care andnutrition, to address priority needs of less affluent membersof society, particularly in (but not limited to) developingcountries. In the Doha Declaration, the Waiver Decision of 30August 2003 and the Article 31bis Protocol of Amendment, stakeholdersconcerned with re-opening policy space for the supply of newerpharmaceutical products pushed back against restrictive elementsof the TRIPS Agreement. Governments around the world are in the process of decidingwhether to ratify and accept the Article 31bis Amendment. Basedon their Study for the International Trade Committee of theEuropean Parliament, the authors argue that acceptance of theAmendment will provide a ‘net benefit’ for countriesseeking to improve access to medicines. At the insistence ofWTO delegations acting on behalf of the originator pharmaceuticalindustry lobby, Article 31bis regrettably is saddled with unnecessaryadministrative hurdles. Nonetheless, through skillful lawyering,political determination and coordinated planning, the systemcan be made to work. Among other options, expeditious back-to-backcompulsory licensing linked with pooled procurement strategiesmay effectively achieve economies of scale in production anddistribution of medicines. The authors doubt that the international political environmentwould support renegotiation of an ‘improved’ solution.They express concern that failure to bring the Amendment intoforce will open the door to a campaign to undermine the WaiverDecision. Recent events in Brazil and Thailand illustrate boththe opportunities and risks associated with implementing TRIPSexception mechanisms, and help to inform views on the negotiatingenvironment. Specific proposals for regional cooperation inimplementing the Amendment are laid out, and the authors emphasizethe importance of pursuing concrete transfer of technology measuresin support of developing country pharmaceutical manufacturing.Over-reliance on private market mechanisms for the supply ofpublic health goods leaves the international community withan unresolved collective action problem on a large scale.     

Does Dworkin Commit Dworkin's Fallacy?: A Reply to Justice in Robes

In an article entitled ‘Dworkin's Fallacy, Or What thePhilosophy of Language Can't Teach Us about the Law’,I argued that in Law's Empire Ronald Dworkin misderived hisinterpretive theory of law from an implicit interpretive theoryof meaning, thereby committing ‘Dworkin's fallacy’.In his recent book, Justice in Robes, Dworkin denies that hecommitted the fallacy. As evidence he points to the fact thathe considered three theories of law—‘conventionalism’,‘pragmatism’ and ‘law as integrity’—inLaw's Empire. Only the last of these is interpretive, but each,he argues, is compatible with his interpretive theory of meaning,which he describes as the view that ‘the doctrinal conceptof law is an interpretive concept’. In this Reply, I arguethat Dworkin's argument that he does not commit Dworkin's fallacyis itself an example of the fallacy and that Dworkin's fallacypervades Justice in Robes just as much as it did Law's Empire.     

Shadows in Paradise - Exploring Non-Refoulement as an Open Concept

The principle of non-refoulement contains a paradox. While stateshave committed to respecting the principle by joining the 1951Refugee Convention and key human rights conventions, its contentis not established in international law. In other words, stateshave committed to a principle the content of which is indeterminate.Since no common definition exists, in practice, national andinternational bodies have extensive powers of discretion togive content to the terms ‘persecution’, ‘torture’,‘degrading’ or ‘cruel’ treatment. Thepurpose of this article is to explore non-refoulement as anopen and ambiguous concept. Acknowledgement of the indeterminacyis important, as open concepts never remain such in practicebut are always issued with content or interpreted. This approachcalls for a further question: how do interpretations come aboutand what kind of factors influence them? The conclusion of thearticle is that different national and international actorspromote their own ‘correct’ interpretations of thiskeystone of refugee protection.     

Duress, International Criminal Law and Literature

This paper uses parallels between Sophocles’ Theban Playsand the House of Lords decision in Dudley and Stephens, to questionthe decision in the Erdemovi case before the International CriminalTribunal for the former Yugoslavia. One should distinguish betweencausal, moral and criminal responsibility. If a man who commitsa crime, not by the action of his free will, is to be foundguilty, we are essentially equating causal responsibility withcriminal guilt. This logic clearly does not correspond withthat of the rest of international criminal law. The storiesof Erdemovi, Oedipus, Dudley and Stephens are tragedies. Eachof the victims/perpetrators felt an overwhelming sense of remorse.Whether they should be considered morally guilty of murder isa matter of individual conscience. The International CriminalTribunal for the Former Yugoslavia majority erred in using anabsolute moral position in Erdemovi. The majority's moral condemnationof the killing of innocents was confused with the question ofwhether Erdemovi should have been criminally punished. The contentof the majority opinion is largely of an irreproachably moralisticnature, though shrouded and mystified by the discussion of precedent.More generally, the decision to try Erdemovi at the InternationalCriminal Tribunal for the Former Yugoslavia was itself self-defeating.Erdemovi should never have stood trial at The Hague. The internationalcommunity should not aid in self-flagellation. While his actionscannot be approved of, they should not be punished internationally.He could have been helped, supported and reintegrated with fargreater benefit to all.         ‘Heroesare hard to find in an atmosphere of total terror.’¹     

The WTO's First Antitrust Case - Mexican Telecom: A Sleeping Victory for Trade and Competition

A World Trade Organization (WTO) dispute panel has decided theWTO’s first antitrust case. It resolved the matter infavour of the United States’ claim that Mexico had anticompetitivelyfacilitated exploitative prices and a cartel that raised theprice of terminating cross-border telephone calls in Mexicoand thereby harmed trade and competition. The case is Mexico– Measures Affecting Telecommunications Services (April2004) (‘the Mexican telecom case’). This essay arguesthat if the WTO’s antitrust clause was in fact triggered(which is a point of contention), Mexico’s conduct violatedits obligations. Furthermore, it argues that the GATS antitrustobligation in the telecommunications sector should be acknowledgedas occupying an important place at the intersection of trade,competition and industrial policies. Antitrust law is the otherside of the coin of liberal trade law. Antitrust law opens marketsby prohibiting private and other commercial restraints, whiletrade law opens markets by prohibiting public restraints. BeforeMexican telecom, no legal discipline was regarded as copiousor flexible enough to address combined public and private restraints.In particular, nations were allowed free rein to privilege nationalchampions that harmed competition in and out of their country,imposing costs on outsiders as well as on their own people.A positive reading of the antitrust clause helps to fill thegap.     

A good introduction to publishing

Hugh Jones and Christopher Benson's book entitled, simply, PublishingLaw seeks to provide a useful and straightforward guide to copyrightlaw in the field of publishing. The accolades on the back statethat it is ‘an excellent, accessible, one-stop legal reference’and that it is ‘an invaluable resource for those practisingor studying the business of publishing’. Such praise bodeswell. The great tomes on copyright present a standard that is difficultto achieve. Laddie, Prescott & Vitoria