Afghan Repatriation & Transit Trade Standoff

The repatriation of Afghans faces a major hurdle, not from the Afghan Taliban’s Interim Government, but from a persistent issue between Pakistan and the United States. The US Embassy in Islamabad has presented a list of 25,000 Afghans, along with individuals from other countries, to the Pakistan Government, urging against their deportation.

These individuals, mostly former employees of the US forces during their occupation of Afghanistan, served as agents, informers, and translators. Originally intended to be settled in the United States or Europe, their relocation faced delays. The US deliberately kept them in Pakistan, as explained by the Middle East Institute, a Washington-based think tank,  the move consented to by the PDM Government during their tenure as an obligation for an alleged regime change in Pakistan.

The United States appears to have strategic motives behind retaining these Afghans in Pakistan. Firstly, it ensures that they continue to serve the US interests. Secondly, any untoward incident involving them could be attributed to either the Afghan-Interim Government or considered a routine blame on all Afghans. In reality, these individuals are officially recognized as US agents stationed in Pakistan.  

With Pakistan’s recent policy to repatriate all illegal foreigners, the US finds itself under pressure, as these individuals could potentially be sent back to Afghanistan. This raises the risk of the Afghan Government treating them as traitors and executing them, given their past roles. These individuals pose a dual threat to Pakistan, being trained US agents, who could be used against both the Afghan Taliban and Pakistan itself.

Presently, the US Ambassador Donald Blome appears to be using delaying tactics by suggesting that these individuals be allowed to stay in Pakistan until their documentation process for relocation is completed. However, skepticism arises as it seems that if the US were genuinely committed to settling them in America or Europe, this process could have been completed in the past two years.

The protection of migrants and their rights is underpinned by various international laws and agreements, including provisions in the United Nations Charter. One cornerstone document is the Universal Declaration of Human Rights (UDHR), adopted by the UN General Assembly in 1948. The UDHR emphasizes the inherent dignity and equal rights of all individuals, explicitly stating in Article 13(2) that everyone possesses the right to leave any country, including their own, and to return.

The International Covenant on Civil and Political Rights (ICCPR), adopted in 1966, further solidifies these principles. Article 12 of the ICCPR recognizes the right to freedom of movement, encompassing the right to leave any country, the right to enter one’s own country, and the prohibition of arbitrary interference with these fundamental rights.

Complementing these civil and political rights, the International Covenant on Economic, Social and Cultural Rights (ICESCR), also adopted in 1966, acknowledges the right to work and favourable conditions of work for everyone, including migrants. It underscores the importance of ensuring that migration does not compromise the economic and social rights of individuals.

For a more specific focus on the rights of migrant workers and their families, the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (ICRMW) was adopted in 1990. Addressing issues such as the right to work, protection against violence, and the right to an effective remedy, this convention seeks to ensure comprehensive safeguards for migrants.

In the context of combating migrant smuggling, the UN Convention against Transnational Organized Crime (UNTOC) and its Protocol against the Smuggling of Migrants by Land, Sea, and Air, known as the Palermo Protocols, were adopted in 2000. These protocols emphasize the protection of the rights of smuggled migrants and aim to prevent and combat migrant smuggling.

The application of international laws and agreements to Afghan migrants and other undocumented immigrants in Pakistan is a complex and multifaceted issue. Under the UDHR, Afghan migrants and undocumented immigrants are entitled to rights such as the freedom to leave any country and protection against arbitrary interference. Similarly, the International Covenant on Civil and Political Rights recognizes their right to freedom of movement. However, challenges arise when individuals are considered illegal immigrants, facing potential restrictions and deportation.

Moreover, the International Covenant on Economic, Social and Cultural Rights (ICESCR) asserts the rights of undocumented immigrants, including the right to work and just conditions. Yet, practical challenges often hinder their access to formal employment, leaving them vulnerable to exploitation. The International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (ICRMW) addresses migrant workers’ rights but may not fully apply to undocumented migrants.

The UN Convention against Transnational Organized Crime (UNTOC) and its Protocol against the Smuggling of Migrants emphasize protecting the rights of smuggled migrants. Afghan migrants and undocumented immigrants may face risks of exploitation or abuse, and these protocols aim to prevent and combat such activities. Goal 10 of the UN Sustainable Development Goals (SDGs) seeks to reduce inequalities, including facilitating safe and regular migration. However, the legal status of Afghan migrants and other undocumented immigrants in Pakistan may not align with this goal if they are considered illegal.

Crucially, the rights and status of Afghan migrants and undocumented immigrants in Pakistan are significantly shaped by national laws and policies. The enforcement of Pakistan’s immigration laws and government policies influences how these individuals are treated. In practice, they often encounter challenges related to legal status, access to basic services, and protection of their rights. Addressing the needs and safeguarding the rights of this vulnerable population requires humanitarian considerations, international cooperation, and adherence to the principles outlined in international agreements. The effectiveness of these protections depends on the political will and commitment of the involved nations.

In Pakistan, the legal status and treatment of undocumented migrants, including Afghan migrants, are primarily governed by immigration laws and regulations. The cornerstone legislation addressing these issues is the Foreigners Act, 1946, which provides the legal framework for regulating the entry, stay, and departure of foreigners in Pakistan. Empowering the government to oversee the entry, movements, and departure of foreigners, this act establishes penalties, including deportation, for violations.

The Passport Act, 1974, is another crucial piece of legislation outlining requirements for obtaining passports and travel documents, addressing offenses related to their illegal possession, forgery, or misuse. Complementing these acts are immigration rules and regulations established by the government, detailing procedures for entry, stay, and registration. In the context of national security, the National Action Plan has been implemented, emphasizing measures to regulate and monitor the movement of foreigners, particularly in border areas, to address issues related to illegal immigration and enhance border security.

In Pakistan, the National Database and Registration Authority (NADRA) and the National Alien Registration Authority (NARA) manage the registration and documentation of individuals. NADRA is tasked with registering Pakistani citizens and issuing Computerized National Identity Cards (CNICs), while NARA — operating under the Ministry of Interior — is responsible for registering and documenting foreign nationals, issuing Alien Registration Certificates (ARCs) as official identification for aliens residing in Pakistan. Both agencies collaborate to ensure effective information sharing and coordination between databases of citizens and foreign nationals. They contribute to border control and security measures, verify the identities of foreign nationals, and play a vital role in preventing illegal immigration. NARA is particularly involved in the registration and documentation of refugees, including the issuance of Proof of Registration (PoR) cards to Afghan refugees. Together, NADRA and NARA uphold data integrity and security, essential for accurate and up-to-date information in their respective databases.Top of Form

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While Pakistan is not a signatory to the 1951 Refugee Convention, it has historically hosted a significant number of Afghan refugees, leading to the implementation of various policies and agreements, including the issuance of Proof of Registration cards for Afghan refugees. The treatment of undocumented migrants can vary based on factors such as nationality, circumstances of presence, and overall geopolitical situation, with enforcement involving collaboration between government agencies, including law enforcement, immigration authorities, and refugee agencies. As the legal framework and government policies regarding undocumented migrants may evolve, it is advisable to consult the latest versions of relevant laws and regulations for the most accurate information.

Simultaneously, Pakistan has taken measures for the effective monitoring of the Afghan Transit Trade, citing an increasingly challenging economic climate and a deteriorating law and order situation. This move reflects a careful consideration of the delicate balance between economic facilitation and security concerns. However, it also raises questions about the potential impact on regional trade dynamics and the broader geopolitical landscape. The decision to temporarily block Afghan Transit Trade underscores the complexities surrounding cross-border trade, prompting a reassessment of commitments and obligations made by the state to various stakeholders. As authorities navigate these challenges, strategic planning becomes crucial to mitigate the potential consequences on both economic interests and national security. The impact on regional trade dynamics and the broader geopolitical landscape will require careful consideration and strategic planning in the face of these complex challenges.

Trade relations between Afghanistan and Pakistan have undergone a significant evolution, shaped by historical agreements, changing geopolitical landscapes, and economic aspirations. The foundation of Afghan-Pakistan trade relations was laid with the Afghan Transit Trade Agreement (ATTA) of 1965, a bilateral commitment between Pakistan and Afghanistan. This agreement provided landlocked Afghanistan access to international seas, in adherence to the UN Convention on the Law of the Sea (1958).

The ATTA identified two transit routes – Peshawar-Torkham and Chaman-Spin Boldak – to facilitate the movement of goods between the two nations. Afghanistan, being landlocked, was destined to be the primary beneficiary of this agreement, gaining access to Indian and Chinese markets via Pakistani sea ports and land crossing points.

As the years passed, the need for a new agreement became apparent due to the changing dynamics of multi-modal transportation. This led to the crafting of the Afghan-Pak Transit Trade Agreement (APTTA) in 2010, a successor to ATTA, aimed at easing the flow of trade and providing more extensive economic benefits. The APTTA marked a paradigm shift, allowing Afghan exporters to use their trucks for exports to Pakistani sea ports and the Wagah border, providing a significant boost to the Afghan economy.

APTTA introduced several key elements, including the recognition of Pakistani and Afghan driver’s licenses, harmonization of regulations for inspecting and certifying trucks, and the establishment of the Afghanistan-Pakistan Transit Trade Coordination Authority (APTTCA) for monitoring and facilitating agreement implementation.

While the agreements opened doors for enhanced trade, challenges such as border delays, security issues, smuggling, and infrastructure limitations have persisted. Addressing these challenges has been crucial for sustaining the positive momentum in Afghan-Pakistan trade relations.

Afghanistan’s trade portfolio isn’t confined to Pakistan alone. Kabul has transit agreements with Iran, Tajikistan, Turkmenistan, and Uzbekistan. However, Pakistan continues to be a major player, with 34% of Afghanistan’s trade passing through its borders.

In 2021, both Pakistan and Afghanistan showcased distinctive economic profiles, each with its own set of strengths and challenges. Pakistan experienced a notable surge in its export performance, reaching $833 million and securing the 9th position globally out of 202 nations. The key driver behind this success was the export of rice, which contributed significantly with a value of $121 million. Despite its relatively complex economic structure, as reflected by an Economic Complexity Index (ECI) of -0.55, Pakistan positioned itself at 87th among 131 countries.

Pakistan’s Gross Domestic Product stood at $348 billion during the period 2011-2021, positioning the country at 42nd among 204 nations. Notably, Pakistan demonstrated an impressive GDP growth of 63.1% in 2021, securing the 34th position globally. The GDP per capita for Pakistan was $1,505 in 2021, ranking 174th among 204 countries, and it experienced significant growth of 39.9% in GDP per capita, placing it at the 48th position.

In contrast, Afghanistan faced unique economic circumstances in 2021. Despite exhibiting a less complex economic structure with an ECI of -1.2, ranking 116th among 131 countries, Afghanistan emerged as the top global exporter, recording exports worth $595 million and securing the 1st rank out of 121 countries. Raw cotton played a pivotal role in Afghanistan’s export landscape, contributing $156 million to its export revenue. However, Afghanistan encountered challenges on the economic front. The overall GDP for the country was $14.6 billion in current US dollars during the period 2011-2021, positioning Afghanistan at 129th among 204 countries. In 2021, the country experienced a notable decline of -19.8% in GDP growth, ranking 195th globally. The GDP per capita for Afghanistan was $364 in 2021, placing it at 203rd among 204 countries, and it saw a decline of -41.5% in GDP per capita, ranking 198th.

Afghanistan’s Top 10 Trade Items

These narratives highlight the contrasting trajectories and economic landscapes of Pakistan and Afghanistan in 2021. Looking ahead, the evolution of Afghan-Pakistan trade dynamics holds the promise of fostering regional connectivity and economic growth. Initiatives that reduce border delays, enhance security measures, and invest in infrastructure can further solidify this evolving partnership.

The agreement between Pakistan and Afghanistan on transit trade holds significant implications in the context of the law of the sea and the rights of landlocked states. With 16 landlocked states in Africa and 44 globally, access to the sea through transit states is crucial for these nations to exercise their rights under the 1982 UN Convention on the Law of the Sea (UNCLOS).

The freedom of transit is a general right, and the terms and modalities are typically determined through agreements between concerned states.

The recent developments between Pakistan and Afghanistan echoes the principles outlined in UNCLOS, emphasizing the need for cultivating mutually beneficial agreements that safeguard the rights and interests of landlocked states and the transit country’s rights as well.

The Pakistan Business Council’s (PBC) report, titled “A Framework for Renegotiating the Afghanistan Pakistan Transit Trade Agreement August 2020,” presents a comprehensive analysis and proposes a potential framework for renegotiating the Afghanistan-Pakistan Transit Trade Agreement (APTTA). The report emphasizes the need to fortify the existing checks and balances within the treaty to prevent misuse, offering valuable suggestions to enhance its efficacy. One notable observation highlighted in the report is that the beneficiaries of diversion and evasion are not limited to Afghan traders alone; Pakistan and UAE-based businesses are identified as complicit in these activities. The porous borders and weak controls contribute to this issue, with Customs and Frontier Constabulary often working independently, allowing full containers to re-enter with transit goods.

PBC underscores the economic incentives for evasion, pointing out the high import duty in Pakistan, coupled with the compounding impact of sales tax, which creates a tempting incentive to engage in such practices.

Furthermore, the report asserts that Pakistan’s negotiation strength has significantly increased since 2010 when the agreement was influenced by the United States. It emphasizes the imperative for Pakistan to enhance the cost-effectiveness, speed, and reliability of logistics and border handling. In addition, Pakistan’s access to Central Asia is no longer solely reliant on Afghanistan, as the Kashgar route provides an alternative, albeit operational for seven months of the year.

In terms of financial transparency and compliance with international standards, the Pakistan Business Council recommends that transit goods be imported under letters of credit drawn on banks operating in Afghanistan, rather than third countries like the UAE. Additionally, it advocates for payments not to be made from third countries, aligning with the principles of transparency and compliance with the Financial Action Task Force (FATF) and Anti-Money Laundering laws.

Pakistan has not acquiesced to the US stance thus far, but the longevity of this resistance remains uncertain, given historical challenges in navigating such delicate situations.

In recent developments, Pakistan has articulated a robust policy position regarding its role as a transit country for commercial imports destined for Afghanistan, indicative of a nuanced evolution in the Afghanistan-Pakistan Trade Transit Agreement (APTTA). The Federal Board of Revenue (FBR) and the Ministry of Commerce have issued a series of notifications, introducing measures aimed at curbing illicit activities such as smuggling and enhancing the effectiveness of regulatory frameworks governing transit trade.

The Ministry of Commerce, through SRO 1397(1), has prohibited the transit of various goods through Pakistan into Afghanistan. This includes categories such as fabrics, tyres, black tea, home appliances, toiletries, cosmetics, and nuts, which have been deemed “prone to smuggling” by the ministry.

Furthermore, acting on the ministry’s recommendation, the FBR has imposed a 10% processing fee on major categories of Afghan transit commercial goods. This processing fee, according to the notification, applies at the rate of 10% ad valorem on goods imported into Afghanistan via Pakistan, encompassing confectionery, chocolates, footwear, machinery (mechanical and electrical), blankets, home textiles, and garments.

In response to concerns about smuggling-prone items, the FBR has proposed stricter controls on transit trades, introducing measures such as increased scanning of consignments after the Goods Declaration (GD) has been signed. Additionally, draft resolutions suggest mandating a bank guarantee equal to duties and taxes on the consignment to ensure that Afghanistan-bound goods reach their final destination, with the possibility of encashing guarantees if the goods do not reach Kabul.

The recent collaboration between civil and military leadership under the Special Investment Facilitation Council (SIFC) has expedited these measures. The urgency is underscored by the impact of smuggling on Pakistan during a period of restricted imports and a balance of payments crisis. The Ministry of Commerce notes a substantial 67% increase in the volume of Afghan Transit Trade via Pakistan during FY 2022-23, reaching US $6.71 billion from US $4.016 billion in FY 2021-22.

This surge is perplexing, considering Afghanistan’s economic challenges, limited exports, and the imposition of sanctions on the interim government. The growth in transit imports is attributed to a decrease in Pakistan’s imports of the same goods, as part of measures to curtail the import of non-essential and luxury items to improve the country’s current account deficit.

The decision to tighten transit trade regulations is not only a response to the economic impact on Pakistan but also aims to preserve the effectiveness of government measures to curb imports. With a looming balance of payments crisis and the risk of defaulting on debt, Pakistan has taken a reactive approach to address the pressing issue of smuggling.

However, questions linger about the timeliness of the decision, especially as import restrictions on some items have been eased. The move might have political implications, considering recent hostilities on the border regions. For Afghanistan, the increased transit costs, including the processing fee through Pakistan, could push the country toward exploring alternative transit routes, potentially affecting Pakistan’s role as a transit country.

The intricate interplay and the love triangle between Afghanistan, Pakistan, and the United States, exacerbated by the challenges in Afghan repatriation, underscores the delicate nature of diplomatic relations in a post-conflict landscape. The unresolved issue of former US-employed individuals in Pakistan adds a layer of complexity, with potential repercussions for all stakeholders. As the region grapples with the evolving dynamics of trade agreements, transit routes, and economic aspirations, the need for nuanced diplomatic strategies becomes paramount. Washington’s reluctance to expedite the relocation of these individuals, coupled with Pakistan’s firm stance on repatriation, sets the stage for a continued diplomatic tussle. It remains to be seen how these unfolding events will shape the future trajectory of regional collaboration and cooperation.