Durand Line: A Border Recognized
It has become a common Practice for members of the Afghan Jirga or opposition to denounce the Durand line, an internationally recognized boundary between Pakistan and Afghanistan. The recent Chaman-Spin Boldak incident and the continuous border fencing, has once again allowed for the same statements and declarations to be made by the Afghan government.Pakistan has defended its action of fencing and criticized the Afghan government in calling the act as ‘Illegal’. The Durand line is the historical boundary between Afghanistan and Pakistan which was demarcated through an ongoing process that started with the ‘Treaty of Gandamak’ in 1879 and was done again in 1893 and reached its maximum form in 1919 with the ‘Treaty of Rawalpindi’. In 1947, Afghan government raised concerns with Pakistan inheriting the treaty and became the only state to vote against the membership of Pakistan. On 26th July 1949, Afghanistan unilaterally declared all treaties void in a Loya Jirga and called the lands beyond the Durand Line as part of Afghanistan. Now the position of the Afghan government is that previously it was not a sovereign nation in 1893 (although it was one in 1919) and that they had not signed the treaty with Pakistan thus they do not recognize the border with Pakistan. The question to ask is whether this claim of not recognizing the border with Pakistan is true or false? For this we must first look into International law and some of the views of the ICJ.
Now Vienna Convention on the Succession of States 1978, Article 11, that states:
A succession of States does not as such affect:
(a) a boundary established by a treaty; or
(b) obligations and rights established by a treaty and relating to the regime of a boundary.
And it should also be remembered that in 1945, around partition, the UN Charter had come into existence and its entire super structure was based on Article 2(4) where principle of non-intervention was factually linked with a clearly identified boundary among states. Therefore, the view was that in 1945 all boundaries' treaties were sacrosanct and whatever they had decided, whether in Africa, Asia or elsewhere, the said boundaries would not be altered on the pretext of war or of a boundary treaty being 'invalidly executed'.
The sanctity of treaty law has been repeatedly stated in the ICJ judgments where it was discovered that the ICJ, firstly avoids declaring any border demarcation as void and if there exists any treaty on that demarcation then it most certainly upholds the demarcation. This was seen in the famous case of ‘Libya vs Chad’. A careful study of ICJ judgments on multiple cases allows us to understand that there exists a tripartite hierarchy in cases where the courts have decided the border disputes. The court looks to a broad understanding of treaty law where treaty is treated both as a civil contract and as the very foundation of International law. The court used the contract nature of the treaty and created consent from it and consent plays a vital role. Even willingness to enter into a treaty plays a vital role and signed treaties are always seen as a formal expression of consent. The importance of treaty could be determined with the fact that the courts even gave importance to treaties where the original parties to the treaty weren’t even the litigants and through the doctrine of Uti Possedites, the court established the legal aspirational force of a treaty. They elevated this concept to International law by stating that the parties were to be governed by the border treaties even if they were post-colonial constructs of colonial empires.
In the tripartite, the court placed importance firstly to ensure stabilized borders by protecting states harmonized expectations; secondly the court places more importance on contract based justification over property based justification however that does not mean that the concept of adverse possession is completely ignored in International boundary. In fact the courts have placed great importance to effective control and that is where the third hierarchy stems from. Adverse possession. It has been the nature of ICJ to focus first on treaty law, then on Uti Possedetis and then lastly on effective control as to who administers the territory and for how long has it administered and is this administration legal in itself. Now the third factor does not mean that a nation annexes a land and then goes to ICJ claiming effective control. It is not based on aggression of states but on stability of the frontier. The principle behind such a thought is ‘Quieta Non Movere’ which means ‘Don’t move settled things’. This was meant to create stability in the world and in the absence of a formal treaty, demarcate borders where effective control had been placed for a long period of time. These have been applied in various case laws. Three concepts of Civil Law which are Acquiescence; Recognition and Estoppel also play a role in International boundary agreements. In context of the Durand line, all three play a major role.
Now the old understanding in Civil law is that the absence of opposition per se does not necessarily or always imply consent. It is also used in criminal law as well however in state, silence or protest is relevant where it would call for a response in expressing disagreement or objection upon the conduct of state. This is to highlight how Acquiescence is seen in International Law. A diplomatic protest is the most common way of expressing those rights and the state, whose rights are being challenged by the conduct of another state, reserves its juridical position in relation to those rights, thus preventing the formation of adverse rights.
Acquiescence deals with implicit condonation whereas recognition is the formal expression however it is almost impossible to determine the difference between Acquiescence and implicit recognition and in many cases, it is very hard to separate one from the other and with this we can understand why International changed the principle of Acquiescence from the general municipal law concept. Ivor Jennings stated in 1963, “Recognition itself need not be express but may be implied in certain circumstances…Whereas recognition is the adaption of the positive acknowledgement on the part of the state, acquiescence may arise from mere omission to protest against a situation where a right to protest existed and its exercise was called for.”
Estoppel is a juridical concept according to which a party is prevented from arguing and rebutting a previously made (explicit or tacit) statement of fact or representation on one same issue. As will be shown later, the circumstances in which that party is hindered from subsequently altering its position and denying the truth of a prior statement are, nonetheless, very restricted. An important distinction has to be made. Acquiescence and recognition, as expressions of consent, are the “method by which a situation becomes opposable to a state. Estoppel, on the other hand, is not in itself a manifestation of consent. It is a sanctio juris that operates provided that certain prerequisites are met. In practical terms, however, the distinction is barely feasible, because the same facts concerning the respondent state’s conduct may be regarded as showing the attitude it did adopt, or as estopping it from denying that it had adopted that attitude, even if it had not.
Ivor Jennings, while referring to the Mosul Case, stated that
‘A Principle title may be defined even before the territorial boundaries are properly established.’
The above principle was given credence in the case of ‘Germany vs Denmark’ 1969 where the courts held that in international law, there exists no rule establishing that the boundaries of a state must be fully delimited and defined. The reason behind such a view of the courts is that there exists many boundaries and borders that are not defined yet have existence and are recognized by both states. To allow for such a rigid definition of a boundary would have called to question those boundaries as well which would be the opposite of the entire purpose behind International Law. Thus the courts decided to allow for this so that there would be more stability in the boundaries of the world.
Now the permanent court of arbitration was asked to determine the maritime boundary line between the two states of Sweden and Norway. The tribunal was placed with a question on whether the boundary was fixed in the 1961 treaty and if it wasn’t then the court of arbitration should fix it in view of the circumstances that are prevalent in the territory.
The tribunal reasoned that the acts performed by Sweden on that territory were not meet with any specific or strong opposition. Which showed that “she not only thought she was exercising her right but even more that she was performing her duty.” It emphasised, moreover, that those acts had been carried out “without meeting any protest… of Norway.” The Court concluded then that “Sweden had no doubt as to her rights over the Grisbadarna and that she did not hesitate to incur in the expenses incumbent on the owner and possessor.” Resorting to the principle of quieta non movere, the court had “no doubt whatever that the assignment of the Grisbadarna banks to Sweden [was] in perfect accord with the most important circumstances of fact.”
Amongst the evidence weighed was the setting up and maintenance of a light-boat and of a large number of navigation beacons. Norway kept silent in relation to Sweden’s conduct, thus taking the risk of giving rise to acquiescence. In the tribunal’s view, Sweden’s reliance upon the Norwegian inaction, which led to the installation of expensive infrastructures, gave rise to an estoppel which precluded Norway from claiming title over the Grisbadarna Banks.
To say the International court does not give relevance to non-legal arguments i.e. economic and social and linguistic and ethnic links is wrong since they do and most of the border disputes, presented to the ICJ always found elements of such non-legal arguments. Infact it has been stated that most have been based on non-legal arguments however the courts, in the presence of legal arguments, give far greater weightage to legal arguments. The courts rarely, if ever give a judgment that will bring changes to the region, to a region that has been stable for some time.
Coming back to Pakistan and Afghanistan, We see all three principles play here. The Acquiescence existed from 1893 and in 1919 there was explicit Recognition and Afghanistan did not give any protest to the activities of the British in their post 1947 claimed territory, a territory which was home to recognized separate states from the British. Now in the above case, building of lighthouses and economic activity was not opposed thus leading to recognition of right. In terms of the territory so claimed by Afghanistan, they would be economic activities, incorporation of them in constitutions, developmental activities, foreign investments, political and social reforms and diplomatic activities like building of embassies and alike and none of these actions were protested and these warrant a protest but none were given by Afghanistan to Pakistan which showed Acquiescence was in place along with implicit recognition which creates a form of estoppel on Afghanistan on claiming the territory as Afghan territory. There is a distinct difference between Boundary in dispute and territory in dispute where in the former, one states that the boundary was never formally demarcated and needs to be demarcated whereas in the latter the territory of another state is expressly through various open protests and diplomatic stands is declared as the territory of the claimant state. This distinction was pointed in the case of ‘Libya vs Chad’ and Afghanistan has been unable to determine whether it is making a territorial dispute or a border dispute. However in both it will face an estoppel.
The 1963 border treaty between Pakistan and China was provisional in nature and thus the treaty recognized the disputed nature of the territory incorporating that in the Preamble and in Article 1 and thus this has continued in all the subsequent treaties Pakistan has signed concerning the region of Gilgit and Baltistan, due to the disputed nature of the region.
Pakistan and Afghanistan have entered into two very important treaties that prove Afghanistan has given dejure recognition to the Durand line demarcation and this recognition was given both before Pakistan and after the formation of Pakistan.
As stated above that the treaty of any form that concerns demarcation, without express negation of the boundary, is treated as recognition of the demarcation. It is true that any non-demarcating treaty cannot create a demarcation and this is the principle of the ICJ however if that demarcation exists and that treaty concerned that territory and it did not contain any formal or express negation, then it is seen as if the state has given dejure recognition and this is what we saw in the case of ‘Libya vs Chad’ where a treaty of good neighbors was used to highlight the acceptance of the border demarcation.
The first was the Geneva Accords of 1988 where it was recognized that neither Pakistan nor Afghanistan will interfere in the territorial integrity of each other and the two countries will follow a policy of non-intervention. This states that both sides recognized the territory held by each other and recognized the border between the two nations.
The second was the Afghan Trade and Transit Treaty which spoke of Pakistan allowing Afghan trade to enter into its territory and then crossing further and vice versa. Over here the Afghan government, this current government, recognized the territorial sovereignty of Pakistan. In treaties where disputed nature of the border exists, such is mentioned as witnessed in the treaty of 1963 between Pakistan and China which explicitly mentioned the disputed nature of the region and the Free Trade Agreement which once again does not provide Pakistan with Sovereign recognition by China on the Northern border.
These two treaties prove that Afghanistan had recognized the border with Pakistan repeatedly and the Custom agreements between the two nations also provides for such recognition. In this manner it must also be stated that the Pakistani Supreme Court in 1969, in the famous case of Zewar Khan PLD 1969 SC 485 where a smuggler Zewar Khan who got arrested when he crossed into Pakistan by the customs authorities, took the plea that he did not smuggle anything because there was no 'importation' of the goods since the Durand Line is not an international border. The matter eventually went to the Supreme Court where in the context of the plea by the accused the Supreme Court was forced to examine the legal basis of the Durand Line and it came to a very clear conclusion that it constitutes an international border between the two states, so any unauthorized item brought across the border will be viewed as smuggling into Pakistan. The Court was headed by one of the most respected judges of all time, Justice Hamood-ur-Rehman, who authored the judgment. He referred to the decision put forward by members of SEATO in 1956 as well as an address by the Secretary of State for Commonwealth Relations in 1950, both of which unequivocally accepted both Pakistan as the successor state and Durand Line as the border.
Afghanistan raised no concern nor did it try to become party to the case and this was another instance where the Afghan government needed to protest. Both in International law and precedents as well as by the actions of the Afghan government, it can be seen that the border demarcation is wholly recognized by them. The acts of fencing the border are protested whenever there exists any military engagement due to the fact of fence being built in the territory they perceive as their own or on strategic areas once abandoned but now claimed. The building of forts or military checkpoints behind the fence are neither disputed nor protested by the Afghan government which is another instance of Acquiescence. The people of Afghanistan need to come back to reality and rather than antagonize Pakistan and further strain the relations between the two nations, they must bury this dead argument of non-recognition and work towards a secure frontier.
The existence of a visa requirement is another point where the Afghan government could have protested i.e. they didn’t protest on the non-existence of border or the territorial claims but on the easement right of the people that are divided through this demarcation. The recent arguments through official channels concern largely on easement rights rather than border claims or territorial claims. Another example of as such are the constant protests done by India on projects in Pakistan administered Kashmir whether it is the building of dam or the highway and even the protest in recent election. All of these are the international legal way of making sure the other party does not get adverse rights and the claims of the party protesting are protected in international stage.
Having said that, the International Court rarely, if ever changes the stable boundaries of a state and are keen to protect the status quo of the nations. The concept of stability is the corner stone of International boundary and those that have went to court asking for the breaking of such stability without any legal grounds have never found a friendly court.
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