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saiyan0321

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Jan 9, 2012
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Durand Line: A Border Recognized
By
Saiyan0321

Screenshot_26.png


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.

Acquiescence

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.


Recognition

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

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.


Grisbadarna Arbitration


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.

New-Steps-Security-at-Pak-Afghan-border2.jpg


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.

rrhtyhr.jpg
hgfhtrhthst.jpg


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.


@jaibi
@Arsalan
@Joe Shearer
@PanzerKiel
@Jungibaaz
@Moonlight
@WAJsal
@Neutron
@Slav Defence
@SQ8
@That Guy
 
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Joe Shearer

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Apr 19, 2009
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This article warranted three readings: the first, in the same spirit of respect for the erudition and knowledge that imbues all articles by this member; the second, with a strange, haunting sense of having encountered these issues elsewhere, and simultaneously of having a feeling that there was something at the windows that needed to be let in, once it was clear which window was in the way; the third, with astonishment and increasing amusement, as the dots sprang about aligning themselves and forming very clear and very familiar pictures, those exact same ones that had flitted half-seen across the windows of a distant memory.

It is best that the story should tell itself; there are reasons for that being the most useful method of narration.

they had not signed the treaty with Pakistan thus they do not recognize the border with Pakistan.
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.
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 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.
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.
This is just a sampler.

Please note that this concerns India in vital ways; that this does not concern Pakistan other than indirectly; that this is unlikely to be seen with neutral eyes in Pakistan because of the present geo-political situation.

@saiyan0321

It may be best to discuss the matters raised off line; they are sensitive (for others).
 

The Accountant

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Aug 13, 2016
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Durand Line: A Border Recognized
By
Saiyan0321

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.

Acquiescence

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.


Recognition

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

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.


Grisbadarna Arbitration


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.


@jaibi
@Arsalan
@Joe Shearer
@PanzerKiel
@Jungibaaz
@Moonlight
@WAJsal
@Neutron
@Slav Defence
@SQ8
@That Guy
A fantastic written article and covers alot of ground in very few words. I have few queries to understand the topic further. It will be very kind of u if you can out some light on those:

1. Did afghan raised this border dispute issue formally with Pakistan or at any international forum other than political speeches?

2. If durand line is not acceptable to afghanistan then how much additional area they calim and on what basis ?

3. Altough my knowledge of laws is restricted to taxation corporate and labor laws (which are much simpler) but things are not always simple. Like the points u mentioned in favor of Pakistan is there any legal argument in favor of Afghanistan ? And have they raised it anywhere till to date.
 

saiyan0321

PDF THINK TANK: ANALYST
Jan 9, 2012
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....in the United Nations.
:D

This article warranted three readings: the first, in the same spirit of respect for the erudition and knowledge that imbues all articles by this member; the second, with a strange, haunting sense of having encountered these issues elsewhere, and simultaneously of having a feeling that there was something at the windows that needed to be let in, once it was clear which window was in the way; the third, with astonishment and increasing amusement, as the dots sprang about aligning themselves and forming very clear and very familiar pictures, those exact same ones that had flitted half-seen across the windows of a distant memory.

It is best that the story should tell itself; there are reasons for that being the most useful method of narration.











This is just a sampler.

Please note that this concerns India in vital ways; that this does not concern Pakistan other than indirectly; that this is unlikely to be seen with neutral eyes in Pakistan because of the present geo-political situation.

@saiyan0321

It may be best to discuss the matters raised off line; they are sensitive (for others).
Well it would concern India as well since India is also embroiled in several disputes and they could also be argued within the ambit of International law and the hierarchy system of International courts. So even though this talks solely about Durand Line and how Afghanistan has given an implied recognition to the line post 1947, It also has points for India and Indians themselves which they could use to understand how their disputes can be seen from this perspective. The law of Boundary is both vast and ambiguous due to the simple fact that the entire issue is sensitive in nature and it is perhaps one of the most recurring cases in International Law due to which this is also the most legally evolved section of International Law.
I remember reading a very fine saying in Boundary Law.

'There is no such thing as a just boundary, anymore than there are natural boundaries'

The above is especially true when we look to the modern world and discover how once these so called natural barriers are being traversed more and more.

China of 1800s may have been happy in saying that they dont want anything further than the Kun Lun mountains or the Karakorum line or the Jhonson line but with modern accessibility and the rising ability to traverse, nations have started wondering the question of what if. Afghanistan in this context is also no different. Once they used to look at the durand line and saw it as Yaghistan an area uncontrollable but with modern accessibility, importance of sea routes, we see old claims rising up. In this manner, the role of Boundary Law is equally very important.

A fantastic written article and covers alot of ground in very few words. I have few queries to understand the topic further. It will be very kind of u if you can out some light on those:

1. Did afghan raised this border dispute issue formally with Pakistan or at any international forum other than political speeches?

2. If durand line is not acceptable to afghanistan then how much additional area they calim and on what basis ?

3. Altough my knowledge of laws is restricted to taxation corporate and labor laws (which are much simpler) but things are not always simple. Like the points u mentioned in favor of Pakistan is there any legal argument in favor of Afghanistan ? And have they raised it anywhere till to date.
Thank you. No problem

Frankly. I tried to find such formal notes but couldnt come across anything and Bilal Sufi, another lawyer who has written on this, also couldnt find any formal diplomatic protest that the regions across the durand line are their specific territory. I am going to answer the second with the first.

When a case is brought to International Court, it often takes the form of one side is arguing as the border dispute i.e the border is not demarcated. We dont claim tracts of land but there was never a border between us so it needs to be demarcated through survey teams and map making and pointers to be set and rivers and mountain networks to be divided as such. This is what is called a boundary dispute. Martime disputes take this form as well where one state claims fishing rights at one point in the ocean and the other states that this area is in our nautical line.
Then there are territorial disputes like we have with India in case of Gilgit Baltistan or Hunza or Nagar (areas which officially joined Pakistan but are claimed by another state) or with the Abeyi region between Sudan and South Sudan. The reason both are often used interchanging is because of the fact that one often comes with the other. However the distinction was noticed in Libya vs Chad.

They have not reached out much apart from political speeches and when we diplomatic protest, i often means protest of any activity like for example, India stating that dont build Dam or dont hold elections in the area or cease all economic activity like taxes or investments immediately. Afghanistan never did that. It never went to the UN and formally protested on the floor nor did it ever send protests to Pakistan highlighting those activities that would question adverse possession. The protests that i have been able to find are the ones they made to the british in 1944-46 where it was becoming clear that British would leave the subcontinent. The protests were that British should either allow for Pashtunistan to become an independent state or allow them to become part of Afghanistan. British answer was that there is no foreign influence on any of these lands nor claims by any party and they are part of the federal union of British India and they shall remain so even after it. The Afghans spent time trying to convince them to allow for that area to be given the choice of independence. When the 3rd june plan was announced, Afghanistan again protested that Pashtunistan should be given an identity choice but the British retained that for all the territories that were not princely states, independence was not an option. Afghanistan argued that the changing dynamics of the British India had ceased any responsibility or duty upon afghanistan but at that time the courts were now forming two major concepts. Successor states and Uti Posseditiss concept. Both working against the arguments of Afghanistan. Afghanistan protested the referendum as well that there was no third option. By this time Afghanistan was arguing for Pashtunistan and not union with Afghanistan which again points to the Afghan recognition that they saw those territories as separate. Infact that was the only way they could ever hope to retake those territories. If Pashtunistan would become a sovereign state and would then willfully join then that would be a legal union however in any other scenario, it was impossible since the region was now fully and legally part of British India The Khudai Khidmatgars also were aware of this and they were not keen on joining Afghanistan as well. Their demands were either autonomy under India or Pakistan or formation of Pashtunistan as a separate nation. The autonomous structure proposed by Bacha Khan is not to the topic so i would talk about that. When Afghanistan talks about Pashtunistan, they talk about a separate nation and provide Acquiescence that the territory east of Durand line is not rightful territory of Afghanistan.

Now when they voted against the membership to the UN, they protested the refrendum and stated that Pakistan should give the people of Pashtunistan the right of Self Determination. Again they didnt protest that it is a state that has occupied our territory, they simply asked for self determination. This was also an implied recognition. I am gonna bring all of this together so bear with me.

Post that they On 20th October, King Zahir shah agreed to recognize Pakistan and they did recognize and they recognized without any protest like, we recognize only the territory without the pashtunistan area or only east of Indus or anything like that. They provided recognition to all of Pakistan which meant that the territorial dispute no longer existed and it doesnt exist since post that they never laid official claim to territories east of durand line. They didnt do that. So territorial dispute no longer exists. Zahir shah asked for a trade corridor for Afghanistan to the sea or a trade zone in karachi, Pashtunistan to be made a province autonomous in nature and Afghanistan to remain neutral in any indo-pak disputes since there were half the treaties that demanded Afghan support in case of any British Indian conflict with another nation and with Pakistan being a successor state, they could pressure Afghanistan for it. Pakistan only accepted the trade corridor one but rejected the others.

Now these are the protests that they made with territorial disputes and you can see how Afghanistan accepted the sovereignty of Pakistan on that land. Territorial disputes, you challenge sovereignty, in border dispute, you challenge the existence of the demarcation.

Now Afghanistan, post that took two positions only. One that they support the Pashtun right to self determination, that they should decide which area they should join in a free referendum and two that the durand line is neither for Afghan government or Pakistan to decide but for the people of the region i.e. the Ethnic argument. This way Afghanistan could always challenge any acceptance to the line in political speeches or put some pressure on Pakistan. They never went to court and they wont because they know that these are just speeches and pressure tactics and not legal arguments.

SO Afghanistan Officially claims no territory. They make speeches of meeting India at Lahore or bathing in Indus but officially nothing and even if tomorrow they do, which some dictators do to legitimize their position as working in the interest of the people, its value would be equivalent to hot air.

If you would ever find videos of two sides where Pakistan army or Afghan army meet post a clash on the fence, you would notice that afghanistan wouldnt be saying that fencing is illegal or dont make fence but would say that the spot you fenced was our land and you need to go back 2-3 kilometer and make it your land and we would give maps and stuff like that and they would give theirs. The most classic example is the Torkham gate clash of a few years back and the fencing clash of a year ago when Raziq was still alive.


So officially they claim no land but politically they claim everything just like officially delhi is part of India but politically we have Sheikh Rashid talking about annexing the red fort. Even now, yesterday i think, they stated that their official position is that the durand line does not exist and is upto the people of the region. However they take this position to the ICJ or ICA and they will come back empty handed and this is why during the days of Zahir Shah when Pakistan was not strong and Afghanistan was pretty good, they didnt take it to court when every nation was taking it to court. You also need to do that. You cant sit on a dispute without any attempt to correct it or protest it anywhere. This would formalize the border and as i mentioned above, ICJ does not make changes so easily.

As for third. Labor and taxation are pretty lucrative fields although not as lucrative as 302 murder cases or corporate field. :thumbsup:

Frankly not much. They argued unofficially on expiration date which does not exist on the treaty or any subsequent treaties signed, they argue initially officially and then unofficially on pakistan not being a successor state but a new state since Pakistan was refused continuation of membership at the UN whereas India was allowed. They argue that Pakistan was declared free from the responsibilities and obligations of the previous state thus the Durand Line is out and Pakistan can no longer claim the border and the territories ceded. Now as i mentioned above that the territorial question was removed by the recognition of Pakistan without any protest and how International sees borders and disputes. There are two major cases i think one in nicaragua vs Hondorus i think and Cambodia vs Laos where in the former the court held that even treaties which are no longer in force or have lost their enforcement, if they demarcate a border then that border shall be considered as the demarcation between the two nations and in the latter the court held that even if a treaty to demarcate is not ratified, mere acceptance of the treaty or its signatory status by the officials, unless so expressly implied by wihtin the treaty that it may only come in enforcement post ratification, shall lead to the creation of the border. So we have this and let us come to the third of successor states.

Succession of states, at that time was not well defined. Law evolves in practice. Jurists have often utilized the term of obligation in the sense of whether a successor state is responsible for the war crimes committed by the previous state and whether the successor state should be obliged to pay the repatriation.

the concept of successor state truly evolved when saw the British India collapse into two states and then into three. The question whether Pakistan was responsible for the treaties of the British and then whether Bangladesh was responsible for the treaties of the british. This reached its apex when the USSR collapsed and then Yugoslavia collapse and then Czechoslovakia. Now International world had a bunch of states having borders with other states and having trade treaties and responsibilities with other states. Who was the successor, who would get the UN membership and in case of USSR the permanent membership?
International Jurists divided into two types. Where many have brought forth, and before that let me tell you that International Jurist is a source of law. Its secondary but it is there when there is no other primary source. So they decided to decided that there shall continuator state which shall continue in the responsibilities and duties of the previous state and in case of USSR it was Russia, although Ukraine had alot to say about that. The rest were successor states and they all had to get memberships. Another example would be Yugoslavia which broke into several states. Now Bosnia, Croatia, Macedonia and Slovenia all of them claimed to be continuator states and all were rejected. The Federal Republic of Yugoslavia , union of serbia and macedonia, claimed continuator state position the previous state called Socialist Federal Republic of Yugoslavia, which was the country that broke into these states. They were rejected as well. Now in 2000 i think, Macedonia and Serbia broke apart and Serbia is the Continuator state of FRY. I am gonna reel this in.

So International Law defined Continuator state as the state which would inherit all obligations and responsibilities and benefits of the previous state. In USSR case, it was embassy. USSR had embassies everywhere so who would get the embassy? Ever single new state wanted them. Ukraine and Russia really argued. The continuator state would and the successors would have to open new ones and that was russia. So Russia got the responsibilities and everything. So what does a successor state get? The successor state has the power to leave an obligation like in a treaty the new state can leave it. That right is not conferred to the other party that was part of the treaty when signing with previous state but it is the right of the successor state however this concept of clean slate will not apply to Treaties that Demarcate a Border or Treaties in Rem. Unless the abrogation follows the principles of the Vienna convention in extinction of treaty clauses. Not gonna go there. They are not relevant to this topic.

The concept of Clean slate was argued by Afghanistan in the 1950s when they sent to Britian about it but they received a negative reply but now it is no longer because the concept of Successor state has evolved drastically. Succession of states is another large topic.

These are the arguments that they make and i am being neutral here.

Another argument they make is that Abdur Rehman was under duress and did not consent but unfortunately his own biography says otherwise and his successors didnt help his case.

Their last argument is on Ethnic links which is actually one of the 9 types of arguments that court gives weightage to in International Boundary law however this argument is only given weightage when all other legal arguments and the principles of no major changes do not apply anymore. Alot of nations go the Ethnic route in International boundary law but without any legal support, the arguments of emotions will fail in opposition to legal arguments.

They struggle with the ground and this is why they dont take us to court. Neither Zahir shah nor his Pashtunistan loving successor nor his Communist successor and that guy had USSR as its support.
 

Silverblaze

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:D



Well it would concern India as well since India is also embroiled in several disputes and they could also be argued within the ambit of International law and the hierarchy system of International courts. So even though this talks solely about Durand Line and how Afghanistan has given an implied recognition to the line post 1947, It also has points for India and Indians themselves which they could use to understand how their disputes can be seen from this perspective. The law of Boundary is both vast and ambiguous due to the simple fact that the entire issue is sensitive in nature and it is perhaps one of the most recurring cases in International Law due to which this is also the most legally evolved section of International Law.
I remember reading a very fine saying in Boundary Law.

'There is no such thing as a just boundary, anymore than there are natural boundaries'

The above is especially true when we look to the modern world and discover how once these so called natural barriers are being traversed more and more.

China of 1800s may have been happy in saying that they dont want anything further than the Kun Lun mountains or the Karakorum line or the Jhonson line but with modern accessibility and the rising ability to traverse, nations have started wondering the question of what if. Afghanistan in this context is also no different. Once they used to look at the durand line and saw it as Yaghistan an area uncontrollable but with modern accessibility, importance of sea routes, we see old claims rising up. In this manner, the role of Boundary Law is equally very important.



Thank you. No problem

Frankly. I tried to find such formal notes but couldnt come across anything and Bilal Sufi, another lawyer who has written on this, also couldnt find any formal diplomatic protest that the regions across the durand line are their specific territory. I am going to answer the second with the first.

When a case is brought to International Court, it often takes the form of one side is arguing as the border dispute i.e the border is not demarcated. We dont claim tracts of land but there was never a border between us so it needs to be demarcated through survey teams and map making and pointers to be set and rivers and mountain networks to be divided as such. This is what is called a boundary dispute. Martime disputes take this form as well where one state claims fishing rights at one point in the ocean and the other states that this area is in our nautical line.
Then there are territorial disputes like we have with India in case of Gilgit Baltistan or Hunza or Nagar (areas which officially joined Pakistan but are claimed by another state) or with the Abeyi region between Sudan and South Sudan. The reason both are often used interchanging is because of the fact that one often comes with the other. However the distinction was noticed in Libya vs Chad.

They have not reached out much apart from political speeches and when we diplomatic protest, i often means protest of any activity like for example, India stating that dont build Dam or dont hold elections in the area or cease all economic activity like taxes or investments immediately. Afghanistan never did that. It never went to the UN and formally protested on the floor nor did it ever send protests to Pakistan highlighting those activities that would question adverse possession. The protests that i have been able to find are the ones they made to the british in 1944-46 where it was becoming clear that British would leave the subcontinent. The protests were that British should either allow for Pashtunistan to become an independent state or allow them to become part of Afghanistan. British answer was that there is no foreign influence on any of these lands nor claims by any party and they are part of the federal union of British India and they shall remain so even after it. The Afghans spent time trying to convince them to allow for that area to be given the choice of independence. When the 3rd june plan was announced, Afghanistan again protested that Pashtunistan should be given an identity choice but the British retained that for all the territories that were not princely states, independence was not an option. Afghanistan argued that the changing dynamics of the British India had ceased any responsibility or duty upon afghanistan but at that time the courts were now forming two major concepts. Successor states and Uti Posseditiss concept. Both working against the arguments of Afghanistan. Afghanistan protested the referendum as well that there was no third option. By this time Afghanistan was arguing for Pashtunistan and not union with Afghanistan which again points to the Afghan recognition that they saw those territories as separate. Infact that was the only way they could ever hope to retake those territories. If Pashtunistan would become a sovereign state and would then willfully join then that would be a legal union however in any other scenario, it was impossible since the region was now fully and legally part of British India The Khudai Khidmatgars also were aware of this and they were not keen on joining Afghanistan as well. Their demands were either autonomy under India or Pakistan or formation of Pashtunistan as a separate nation. The autonomous structure proposed by Bacha Khan is not to the topic so i would talk about that. When Afghanistan talks about Pashtunistan, they talk about a separate nation and provide Acquiescence that the territory east of Durand line is not rightful territory of Afghanistan.

Now when they voted against the membership to the UN, they protested the refrendum and stated that Pakistan should give the people of Pashtunistan the right of Self Determination. Again they didnt protest that it is a state that has occupied our territory, they simply asked for self determination. This was also an implied recognition. I am gonna bring all of this together so bear with me.

Post that they On 20th October, King Zahir shah agreed to recognize Pakistan and they did recognize and they recognized without any protest like, we recognize only the territory without the pashtunistan area or only east of Indus or anything like that. They provided recognition to all of Pakistan which meant that the territorial dispute no longer existed and it doesnt exist since post that they never laid official claim to territories east of durand line. They didnt do that. So territorial dispute no longer exists. Zahir shah asked for a trade corridor for Afghanistan to the sea or a trade zone in karachi, Pashtunistan to be made a province autonomous in nature and Afghanistan to remain neutral in any indo-pak disputes since there were half the treaties that demanded Afghan support in case of any British Indian conflict with another nation and with Pakistan being a successor state, they could pressure Afghanistan for it. Pakistan only accepted the trade corridor one but rejected the others.

Now these are the protests that they made with territorial disputes and you can see how Afghanistan accepted the sovereignty of Pakistan on that land. Territorial disputes, you challenge sovereignty, in border dispute, you challenge the existence of the demarcation.

Now Afghanistan, post that took two positions only. One that they support the Pashtun right to self determination, that they should decide which area they should join in a free referendum and two that the durand line is neither for Afghan government or Pakistan to decide but for the people of the region i.e. the Ethnic argument. This way Afghanistan could always challenge any acceptance to the line in political speeches or put some pressure on Pakistan. They never went to court and they wont because they know that these are just speeches and pressure tactics and not legal arguments.

SO Afghanistan Officially claims no territory. They make speeches of meeting India at Lahore or bathing in Indus but officially nothing and even if tomorrow they do, which some dictators do to legitimize their position as working in the interest of the people, its value would be equivalent to hot air.

If you would ever find videos of two sides where Pakistan army or Afghan army meet post a clash on the fence, you would notice that afghanistan wouldnt be saying that fencing is illegal or dont make fence but would say that the spot you fenced was our land and you need to go back 2-3 kilometer and make it your land and we would give maps and stuff like that and they would give theirs. The most classic example is the Torkham gate clash of a few years back and the fencing clash of a year ago when Raziq was still alive.


So officially they claim no land but politically they claim everything just like officially delhi is part of India but politically we have Sheikh Rashid talking about annexing the red fort. Even now, yesterday i think, they stated that their official position is that the durand line does not exist and is upto the people of the region. However they take this position to the ICJ or ICA and they will come back empty handed and this is why during the days of Zahir Shah when Pakistan was not strong and Afghanistan was pretty good, they didnt take it to court when every nation was taking it to court. You also need to do that. You cant sit on a dispute without any attempt to correct it or protest it anywhere. This would formalize the border and as i mentioned above, ICJ does not make changes so easily.

As for third. Labor and taxation are pretty lucrative fields although not as lucrative as 302 murder cases or corporate field. 👍

Frankly not much. They argued unofficially on expiration date which does not exist on the treaty or any subsequent treaties signed, they argue initially officially and then unofficially on pakistan not being a successor state but a new state since Pakistan was refused continuation of membership at the UN whereas India was allowed. They argue that Pakistan was declared free from the responsibilities and obligations of the previous state thus the Durand Line is out and Pakistan can no longer claim the border and the territories ceded. Now as i mentioned above that the territorial question was removed by the recognition of Pakistan without any protest and how International sees borders and disputes. There are two major cases i think one in nicaragua vs Hondorus i think and Cambodia vs Laos where in the former the court held that even treaties which are no longer in force or have lost their enforcement, if they demarcate a border then that border shall be considered as the demarcation between the two nations and in the latter the court held that even if a treaty to demarcate is not ratified, mere acceptance of the treaty or its signatory status by the officials, unless so expressly implied by wihtin the treaty that it may only come in enforcement post ratification, shall lead to the creation of the border. So we have this and let us come to the third of successor states.

Succession of states, at that time was not well defined. Law evolves in practice. Jurists have often utilized the term of obligation in the sense of whether a successor state is responsible for the war crimes committed by the previous state and whether the successor state should be obliged to pay the repatriation.

the concept of successor state truly evolved when saw the British India collapse into two states and then into three. The question whether Pakistan was responsible for the treaties of the British and then whether Bangladesh was responsible for the treaties of the british. This reached its apex when the USSR collapsed and then Yugoslavia collapse and then Czechoslovakia. Now International world had a bunch of states having borders with other states and having trade treaties and responsibilities with other states. Who was the successor, who would get the UN membership and in case of USSR the permanent membership?
International Jurists divided into two types. Where many have brought forth, and before that let me tell you that International Jurist is a source of law. Its secondary but it is there when there is no other primary source. So they decided to decided that there shall continuator state which shall continue in the responsibilities and duties of the previous state and in case of USSR it was Russia, although Ukraine had alot to say about that. The rest were successor states and they all had to get memberships. Another example would be Yugoslavia which broke into several states. Now Bosnia, Croatia, Macedonia and Slovenia all of them claimed to be continuator states and all were rejected. The Federal Republic of Yugoslavia , union of serbia and macedonia, claimed continuator state position the previous state called Socialist Federal Republic of Yugoslavia, which was the country that broke into these states. They were rejected as well. Now in 2000 i think, Macedonia and Serbia broke apart and Serbia is the Continuator state of FRY. I am gonna reel this in.

So International Law defined Continuator state as the state which would inherit all obligations and responsibilities and benefits of the previous state. In USSR case, it was embassy. USSR had embassies everywhere so who would get the embassy? Ever single new state wanted them. Ukraine and Russia really argued. The continuator state would and the successors would have to open new ones and that was russia. So Russia got the responsibilities and everything. So what does a successor state get? The successor state has the power to leave an obligation like in a treaty the new state can leave it. That right is not conferred to the other party that was part of the treaty when signing with previous state but it is the right of the successor state however this concept of clean slate will not apply to Treaties that Demarcate a Border or Treaties in Rem. Unless the abrogation follows the principles of the Vienna convention in extinction of treaty clauses. Not gonna go there. They are not relevant to this topic.

The concept of Clean slate was argued by Afghanistan in the 1950s when they sent to Britian about it but they received a negative reply but now it is no longer because the concept of Successor state has evolved drastically. Succession of states is another large topic.

These are the arguments that they make and i am being neutral here.

Another argument they make is that Abdur Rehman was under duress and did not consent but unfortunately his own biography says otherwise and his successors didnt help his case.

Their last argument is on Ethnic links which is actually one of the 9 types of arguments that court gives weightage to in International Boundary law however this argument is only given weightage when all other legal arguments and the principles of no major changes do not apply anymore. Alot of nations go the Ethnic route in International boundary law but without any legal support, the arguments of emotions will fail in opposition to legal arguments.

They struggle with the ground and this is why they dont take us to court. Neither Zahir shah nor his Pashtunistan loving successor nor his Communist successor and that guy had USSR as its support.

A very lucid explanation. Allow me to give my two cents.

Without travelling too far, Afghanistan's treaties with the British can be more appropriately compared to -Anglo-Nepalese Treaty of Sugauli 1816 and Anglo-Burmese Treaty of Yandabo -1826. Both ceded sizable territories previously held by them to the British.

After Hindu India's independence, both Nepal and Burma signed treaties of friendship with India in 1950 and 1951 respectively and recognized India's as a successor of the British Empire thus ratifying their previous treaties.

Question is why didn't Afghanistan do this with Pakistan? In fact, Afghanistan was conducting raids especially during the 50s at a time when India had mobilized its troops on Both East and West Pakistan.

A merger in the late 50s proposed by Pakistan was also rejected. Even though few sane Afghans fearing USSR did voice their support later, it was desultory.

The problem seems to be contempt for Pakistan and its people. This to my mind has no legal, political or economic solution. Hence, Afghan govts will continue to dispute the durand line in any way they seem fit be it ethnic, legal, historical or political.

Pakistan has to come up with a permanent solution realizing these ground realities.
 

peagle

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Durand Line: A Border Recognized
By
Saiyan0321

View attachment 672799

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.

Acquiescence

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.


Recognition

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

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.


Grisbadarna Arbitration


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.

View attachment 672798

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.

View attachment 672805View attachment 672806

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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This is a second beautifully written article I've read, authored by you, might I add, better than I've come across in main stream media and other writings. Well done and thank you.

In this instant, I think you forgot to add a very important aspect to this issue. The referendum in the NWFP at time of independence in 1947.

Although the choice given to voters was either India or Pakistan, but the arguments put to voters also included the option to go with Afghanistan, this last option was presented in the form of a boycott, and much of the leadership had advocated for India.

But, the voters opted for pakistan by a overwhelming majority. There was a 51% turnout at a time when voting must have been difficult, due to lack of infrastructure etc...

99% of the voters voted for Pakistan, 0.98 voted for India. It must also be remembered there was a larger then 0.98 non-Muslim population in the NWFP at the time.

This is an extremely important and regularly overlooked part of NWFP history, when people actually were given a choice and wholeheartedly choose Pakistan.
The organisers were a third party, the leadership was pro-india, and yet, the people shouted, PAKISTAN.

@Pan-Islamic-Pakistan @Mangus Ortus Novem @Blacklight @SecularNationalist @masterchief_mirza

Great article above guys
 

SecularNationalist

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This is a second beautifully written article I've read, authored by you, might I add, better than I've come across in main stream media and other writings. Well done and thank you.

In this instant, I think you forgot to add a very important aspect to this issue. The referendum in the NWFP at time of independence in 1947.

Although the choice given to voters was either India or Pakistan, but the arguments put to voters also included the option to go with Afghanistan, this last option was presented in the form of a boycott, and much of the leadership had advocated for India.

But, the voters opted for pakistan by a overwhelming majority. There was a 51% turnout at a time when voting must have been difficult, due to lack of infrastructure etc...

99% of the voters voted for Pakistan, 0.98 voted for India. It must also be remembered there was a larger then 0.98 non-Muslim population in the NWFP at the time.

This is an extremely important and regularly overlooked part of NWFP history, when people actually were given a choice and wholeheartedly choose Pakistan.
The organisers were a third party, the leadership was pro-india, and yet, the people shouted, PAKISTAN.

@Pan-Islamic-Pakistan @Mangus Ortus Novem @Blacklight @SecularNationalist @masterchief_mirza

Great article above guys
No doubt the leadership that time was corrupt and didn't represent the sentiments of people.
Bacha Khan was doing bacha baazi with Gandhi and nehru and was very against the creation of pakistan.
 

peagle

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A very lucid explanation. Allow me to give my two cents.

Without travelling too far, Afghanistan's treaties with the British can be more appropriately compared to -Anglo-Nepalese Treaty of Sugauli 1816 and Anglo-Burmese Treaty of Yandabo -1826. Both ceded sizable territories previously held by them to the British.

After Hindu India's independence, both Nepal and Burma signed treaties of friendship with India in 1950 and 1951 respectively and recognized India's as a successor of the British Empire thus ratifying their previous treaties.

Question is why didn't Afghanistan do this with Pakistan? In fact, Afghanistan was conducting raids especially during the 50s at a time when India had mobilized its troops on Both East and West Pakistan.

A merger in the late 50s proposed by Pakistan was also rejected. Even though few sane Afghans fearing USSR did voice their support later, it was desultory.

The problem seems to be contempt for Pakistan and its people. This to my mind has no legal, political or economic solution. Hence, Afghan govts will continue to dispute the durand line in any way they seem fit be it ethnic, legal, historical or political.

Pakistan has to come up with a permanent solution realizing these ground realities.
Although I totally agree with your points, I do feel the onus to do something is almost always and unfairly placed on Pakistan.

We have given millions and millions of Afghans a home and refuge for 40 years and counting, that's doing something.

We have given them support to fight their enemies and invaders, that's doing something.

Every country was involved in the Afghanistan civil war, even those that had no border and hadn't helped it's people, those countries were involved, but the blame was always on Pakistan.

We gave them transit trade access without asking for much, that's doing something.

We have built a fence and forts, that is the best thing we've done, they are ungrateful and they need to sort out their sick minds, we just have to wait and be ready for the day Afghanistan decides to behave in a mature sensible manner. We can't control their mindset and we've done enough already.
Let's just stop putting more burden on our shoulders.
 

Silverblaze

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Although I totally agree with your points, I do feel the onus to do something is almost always and unfairly placed on Pakistan.

We have given millions and millions of Afghans a home and refuge for 40 years and counting, that's doing something.

We have given them support to fight their enemies and invaders, that's doing something.

Every country was involved in the Afghanistan civil war, even those that had no border and hadn't helped it's people, those countries were involved, but the blame was always on Pakistan.

We gave them transit trade access without asking for much, that's doing something.

We have built a fence and forts, that is the best thing we've done, they are ungrateful and they need to sort out their sick minds, we just have to wait and be ready for the day Afghanistan decides to behave in a mature sensible manner. We can't control their mindset and we've done enough already.
Let's just stop putting more burden on our shoulders.
We are losing men and material so we have to do something. A permanent solution is needed.
 

peagle

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We are losing men and material so we have to do something. A permanent solution is needed.
I know my brother, and I feel your pain. But no one has the power to control events, we can only do the right thing and try to take the correct actions, we have tried that, the more we do the more we are accused interfering in Afghanistan, no one else is blamed, always us.

So, fence, forts and keep watch. Sometimes you just have to take measured actions. At last we have taken this route.
Lets not remain stuck in a quicksand, it will drag us to our deaths, We have learnt to take a measured approach, please give it time and you will see the results.
 

Silverblaze

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I know my brother, and I feel your pain. But no one has the power to control events, we can only do the right thing and try to take the correct actions, we have tried that, the more we do the more we are accused interfering in Afghanistan, no one else is blamed, always us.

So, fence, forts and keep watch. Sometimes you just have to take measured actions. At last we have taken this route.
Lets not remain stuck in a quicksand, it will drag us to our deaths, We have learnt to take a measured approach, please give it time and you will see the results.
Thanks for ur reply. I still believe deterrence and strikes inside afghanistan targetting its elite is an option.
 
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1. Did afghan raised this border dispute issue formally with Pakistan or at any international forum other than political speeches? ...
I listened to an interview of Afghan President a few years back (can't remember whether it was Hamid Karzai or Ashraf Ghani) and he basically explained that they recognise it that a border exists between Afghanistan and Pakistan but they don't want to call it a "border".

They want this border to be treated as an open border like the borders within the European Union.

Other than that, they asked British India to return NWFP to Afghanistan twice during the creation of Pakistan but didn't get it. Instead, Afghanistan formally accepted Pakistan and it's borders in 1947 but then two years later in 1949, their parliament voted to stop recognising the border due to a violent incident.

Here's a secret CIA report from 1978 (now declassified), explaining the issue in more detail.

CIA document

Afghanistan, since 1947 has been a disorganised nation. They used force against Pakistan to try and grab Khyber Pakhtunkhwa and never bothered on the diplomatic and the legal side.

Pakistan on its part also responded with force and never bother to make it a diplomatic or a legal issue (as it was not needed).
 

The Accountant

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I listened to an interview of Afghan President a few years back (can't remember whether it was Hamid Karzai or Ashraf Ghani) and he basically explained that they recognise it that a border exists between Afghanistan and Pakistan but they don't want to call it a "border".

They want this border to be treated as an open border like the borders within the European Union.

Other than that, they asked British India to return NWFP to Afghanistan twice during the creation of Pakistan but didn't get it. Instead, Afghanistan formally accepted Pakistan and it's borders in 1947 but then two years later in 1949, their parliament voted to stop recognising the border due to a violent incident.

Here's a secret CIA report from 1978 (now declassified), explaining the issue in more detail.

CIA document

Afghanistan, since 1947 has been a disorganised nation. They used force against Pakistan to try and grab Khyber Pakhtunkhwa and never bothered on the diplomatic and the legal side.

Pakistan on its part also responded with force and never bother to make it a diplomatic or a legal issue (as it was not needed).
So in short Afghani want to live a boundryless world where they can benefit from economic opportunities of Pakistan but dont have to follow Pakistani laws.

This is also evident from the conduct of these afghanis living in Pakistan
 

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