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Legal Inaccuracies regarding the Durand line.
by Saiyan0321
Introduction
The Durand line is a 26,11km2 border that demarcates Afghanistan and Pakistan. The line is home to several myths and controversies and inaccuracies that must be corrected.
Legal inaccuracy no 1. Afghanistan never accepted the line formally.
Article 5 of the treaty of Rawalpindi 1921 stated very clearly showed that Afghanistan has formally and legally recognized the Durand line as a border between the two states.
'The Afghan Government accept the Indo-
Afghan frontier accepted by the late Amir [under the
Durand Line Agreement].' 1
And this was ratified in the treaty of 1930 2 as well as in the exchange of letters during the treaty of peace in 1919.
In fact formally Afghanistan government has accepted the areas across the Durand line as Pakistan territory with subsequent treaties that it has signed with Pakistan accepting those territories as Pakistan territory. The 2010 Pak-Afghan transit trade agreement stands above all else.
In its preamble it has stated “reiterating their commitment to ensure the smooth, rapid and efficient movement of goods and vehicles between and through the territories of the two countries".
The words 'through their territories' are used repeatedly again and again all over the agreement.
The right is given strength in article 32.1 of the treaty which states that "Each contracting party may levy charges, generally applicable for all traffic in the territories of the contracting parties, including fees for weighment, scanning and sealing by custom officials; toll for the use of roads, bridges, tunnels and parking, or those commensurate with the administrative expenses which result from traffic in transit, or with costs of services rendered".
Afghanistan once more implied such recognition at the third regional economic cooperation conference on Afghanistan where it stated to ensure security and development through border mechanism and security. 3
Afghanistan along with the US and the USSR again accepted the territorial integrity of Pakistan in the Geneva accords of 1988 which were stated in the following annexures.
Annex 1 bilateral agreement between the republic of Afghanistan and the Islamic republic of Pakistan on the principles of mutual relations, in particular of non-interference and nonintervention.
The republic of Afghanistan and the Islamic republic of Pakistan, hereinafter referred to as the 'High contracting parties'
Article II (1) to respect the sovereign, political independence, territorial integrity, national unity, security and non-alignment of the other high contracting party as well as national identity and cultural heritage of its people.
The sovereignty is pointed out again in article II (3) (4) (5) (9)
Signed by both Afghanistan and Pakistan.
Such dejure recognition highlights the authenticity of the border in the eyes of the state of Afghanistan. Even during the 2001 American war in Afghanistan, the American army treated and to this day treats the line as border.
Legal inaccuracy no 2. The world does not recognize it and Pakistan is not the successor state and it has no standing in international law.
The world recognizes the Durand line as the border between Afghanistan and Pakistan as highlighted by UNSC resolution 1267, the Bonn conference and the conference on Afghanistan in London where they showcased the limits of Afghanistan and this was also displayed in the ICJ judgment atlantique aerial incident case between Pakistan and India. 4
In fact the United States made a public statement accepting the Durand line as the border between the two in 1956 and more recently by the United States special representative to Afghanistan and Pakistan, Marc Grossman that the Durand line is the international border between the two states. 5
After the creation of Pakistan, Novl Backer, the Secretary of States of Common Wealth Affairs, further clarified this position in a speech to the House of Commons on June 30, 1950 in the following words:
"It is His Majesty’s Government’s view that Pakistan is in the international law the inheritor of the rights and duties of the old Government of India, and of His Majesty’s Government in the United Kingdom, in these territories and that the Durand line is the international frontier" 6
In this respect, Ahmar Bilal Sufi, President Lahore Based Research Society of International Law, states:
According to Article 62 of the Vienna Convention of the Law of Treaties, it is accepted by all that whenever a new state of country is carved out of an existing colonial domain, all international agreements and undertakings that the previous rulers of the regions had entered into, are transferred to the new independent nationals’ government. So, after independence in 1947, Pakistan is rightly the party which succeeded the British Indian Government and inherited the Agreement.7
About the legal position of the Durand Line and the approach of the international community towards such issues Arif Ayub has quoted a number of examples:
Article 62 of the Convention on the Law of Treaties between States and International Organizations (1986) provides likewise that a fundamental change of circumstances may not be invoked, as a ground for terminating or withdrawing from a treaty between two or more states and one or more international organizations, if the treaty establishes a boundary. The principle of succession to colonial borders was underlined by the international court in the Burkina Faso vs. Republic of Mali case, as well as by the Arbitration Commission opinion on Yugoslavia with respect to the status of the former internal boundaries between Serbia on the one hand, and Croatia, Bosnia and Herzegovina on the other, concluded that except where otherwise agreed, the former boundaries become frontiers protected by international law.8
Clarifying the legal aspect of the Durand Line, Arif Ayub further mentions Article 11 of the Vienna Convention on Succession of Treaties. A successor state cannot as such affect a boundary, obligations and rights established by a treaty. For instance, the International Court gave its verdict in the case of Libya vs. Chad case through which it was established beyond an iota of doubt that once agreed upon, the stability of boundaries will remain on permanent basis. Interestingly, the court gives its emphasis that a boundary established by a treaty, thus achieved permanence which the treaty itself does not necessarily enjoy. The treaty can cease to be in force without in any way affecting the continuance of boundary when a boundary has been the subject of agreement; the continued existence of that boundary is not dependent upon the continuing life of the treaty under which the boundary is agreed.9
Afghanistan has been prevented from unilaterally
renouncing the Durand Line Agreement due to the
international law principle of uti possidetis juris
directly applicable in the context of decolonization,
which provides that newly decolonized states should
have the same borders that their preceding dependent
area had before their independence. The International
Court of Justice has repeatedly upheld the principle of
uti possidetis juris 'as a principle that transforms former
administrative borders created along the colonial
period into international frontiers
in fact during the Pakistan discussions with the kalat, mountbatten pointed out that Pakistan is the successor state of British India and thus is the inheritor of its treaties.
With the above all three points have been highlighted that the Durand line has international recognition, it has full legal standing and Pakistan is the successor state of British India.
Legal inaccuracy no 3. The referendum flawed and did not have an Afghanistan option.
The referendum in the area of North west frontier province happened as the congress ministry headed by Bacha khan came into power in the elections of 1946. As support for Muslim league grew, calls for reelection emerged. As the date for independence grew closer Mountbatten called for a referendum with the option to join either India or Pakistan as a compromise between Nehru and Jinnah. Over 97% voted for Pakistan. The election was boycotted by khudai khidmatgars.
Three things must be cleared.
The area of NWFP belonged to the British and was such recognized by the amirs of Afghanistan and thus Afghanistan had no right to claim itself as an option. It was not a princely state thus did not have the independence option. In fact such a blatant call for interference is against the treaty which the Afghans signed.
Bacha khan was not for Pakistan and wanted to stay with the union of India and called for such an independent option when he saw the support for Pakistan, thinking that such an option would see NWFP away from Pakistan and the strength of congress would remain intact in NWFP and would later reintegrate with India 10. Bacha khan continuously advocated for the union of India. The Afghans use him as a patriot for Afghanistan but wonder if history had turned differently and NWFP had stayed with the union of India, would they have called him such a patriot still or would they have abused him as they abuse pashtuns which are loyal to Pakistan. I believe he would face worse and the same with India however history took a different turn. It would also be pertinent to mention here that he did not ask for an Afghan option but for an independent option and the Afghans in the 1950s and 1960s peddled pashtunistan and not union with Afghanistan which once again shows that the Afghan govt saw the Durand line as a border.
A boycott of an election or referendum by a political party does not in any sense question its validity as the election did see a sizeable turn out which voted for Pakistan in a huge number. The referendum was valid in every sense and the area of NWFP voted for Pakistan.
According to Leonard Moseley
"The people of the North West Frontier Province have made manifest their choice, in the most democratic manner possible, is an established, historical fact. If the people of the province were not interested in joining Pakistan or if they cherished any idea of a separate state of their own, they would not have given this verdict in favor of Pakistan in such absolute terms"11
Legal inaccuracy no 4. FATA was not part of Pakistan and was independent of British.
Fata was not independent of the British as it was under British law and a very infamous one which was the Frontier Crimes Regulations of 1901. The Tribes of Fata had their own dealings with the British and did not claim themselves as part of Afghanistan.
The British dealt with these tribes through Jirgas (which are part of pashtun culture) and these Jirgas were to decide their own fate. According to the June 3rd plan all tribal agreements would cease to exist on the 15th august and the dominions would have to have sign new agreements with those tribal states. The governor of NWFP, Sir George Cunningham who used to deal with these tribes on behalf of the governor general met these tribes. All of them through verbal or written consent opted for Pakistan and an agreement was signed between them and the state of Pakistan. 12
Currently in 1996 FATA was allowed to vote according to Adult franchise and has representations in the senate and the national assembly. On top of it all the recent bill passed has seen the jurisdiction of the Supreme Court and the high court extent to all of FATA as well as a merger with khyberpakhtunkhwa in a period of five years.
Fata in every sense is part of Pakistan. The inability of the state to establish writ as well as its decision to utilize the FCR in its running have nothing to do with it.
Legal inaccuracy number 5. Easement rights mean the border never existed.
First we must study whether these easement rights ever existed. The Durand line indeed cut through tribes however in the agreement there is no explicit or expressive point on easement rights which means that these rights evolved outside the basic framework of the agreement.
True that Pakistan did not establish Visa rights or even cross border mechanisms on the Durand however that does not diminish its authority as we have seen in the past two years as Pakistan has vigorously started border mechanisms and fences and visa requirements.
Easement rights do not weaken the border but showcase a humanitarian and conscious decision by Pakistan to provide for divided tribes as can be seen by special cards allotted to those who have tribes on both sides by Pakistan which do not require visa.
Easement has no locus standi upon the validity if the Durand line.
Legal inaccuracy number 6. It was not a border agreement but 'spheres of influence'.
As we have seen the various treaties that were signed by the British India and Afghanistan the agreements were indeed for border. The agreements specifically mentioned 'demarcation' which is used for lining of borders. On top of it all the British implemented their laws in various areas without an expressive or tacit disapproval by Afghanistan.
Conclusion
With this It can be concluded that Afghanistan has no standing both on historical as well as on legal front so again a question rises, why the afghan govt gives statements like such? The answer is simply bcz its politics. No afghan govt can say that the line is official bcz they will lose all power. Political careers play an important role in the path a country takes and political slogans play an equal role. The Durand line is now a political slogan that will be spoken by all parties. Case in point. Pakistan has started fencing the border and is fencing a kilometer a day. The govt is silent about this but the opposition is vocal bcz it’s a political slogan to harm the govt in power and take power. When issues become emotional, rationale arguments and thoughts dwindle.
1. Treaty of Peace between Governments of India and Afghanistan. (1919).
2. Biswas, A. (2013). Durand Line: History, Legality & Future. Vivekananda International Foundation
3. Supra, note 6 at 7.
4. United Nations. United Nations Security Council Resolution 1267.
International Court of Justice, (2014). Aerial Incident of 10 August 1999 (Pakistan v. India). [online] Available
at: http://www.icj-cij.org/docket/index.php?sum=585&p1=3&p2=3&case=119&p3=5
5. McDonald, M. (2012). Pakistan: Now or Never? Reuters Blog
6. S. M. Burke “Pakistan’s Foreign Policy: An Historic Analysis”, P. N, pp. 68 – 90.
7.Vienna Convention, 1969, Also see http://www.pashtunforum.com/social/...-agreement-1893-pact-had-no-expiry-limit.html.
8. Arif Ayub, The Nation, November 03, 2010.
9. bid..
10. H. V. Hudson, The Great Divide: Britain- India- Pakistan (Karachi: Oxford University Press, 2001), p. 93.
11. Leonard Moseley, The Last Days of the British Raj (London: Weidenfeld and Nicolson, 1962), p. 132.
12. Iqbal Ahmad, Statement before the UN General Assembly, October 09, 1974, UNGA 29th Session, P. V. R, 2263rd Meeting October 09, 1974.
I apologize for any grammatical mistakes.
@Slav Defence @Azlan Haider @hellfire @RealNapster
by Saiyan0321
Introduction
The Durand line is a 26,11km2 border that demarcates Afghanistan and Pakistan. The line is home to several myths and controversies and inaccuracies that must be corrected.
Legal inaccuracy no 1. Afghanistan never accepted the line formally.
Article 5 of the treaty of Rawalpindi 1921 stated very clearly showed that Afghanistan has formally and legally recognized the Durand line as a border between the two states.
'The Afghan Government accept the Indo-
Afghan frontier accepted by the late Amir [under the
Durand Line Agreement].' 1
And this was ratified in the treaty of 1930 2 as well as in the exchange of letters during the treaty of peace in 1919.
In fact formally Afghanistan government has accepted the areas across the Durand line as Pakistan territory with subsequent treaties that it has signed with Pakistan accepting those territories as Pakistan territory. The 2010 Pak-Afghan transit trade agreement stands above all else.
In its preamble it has stated “reiterating their commitment to ensure the smooth, rapid and efficient movement of goods and vehicles between and through the territories of the two countries".
The words 'through their territories' are used repeatedly again and again all over the agreement.
The right is given strength in article 32.1 of the treaty which states that "Each contracting party may levy charges, generally applicable for all traffic in the territories of the contracting parties, including fees for weighment, scanning and sealing by custom officials; toll for the use of roads, bridges, tunnels and parking, or those commensurate with the administrative expenses which result from traffic in transit, or with costs of services rendered".
Afghanistan once more implied such recognition at the third regional economic cooperation conference on Afghanistan where it stated to ensure security and development through border mechanism and security. 3
Afghanistan along with the US and the USSR again accepted the territorial integrity of Pakistan in the Geneva accords of 1988 which were stated in the following annexures.
Annex 1 bilateral agreement between the republic of Afghanistan and the Islamic republic of Pakistan on the principles of mutual relations, in particular of non-interference and nonintervention.
The republic of Afghanistan and the Islamic republic of Pakistan, hereinafter referred to as the 'High contracting parties'
Article II (1) to respect the sovereign, political independence, territorial integrity, national unity, security and non-alignment of the other high contracting party as well as national identity and cultural heritage of its people.
The sovereignty is pointed out again in article II (3) (4) (5) (9)
Signed by both Afghanistan and Pakistan.
Such dejure recognition highlights the authenticity of the border in the eyes of the state of Afghanistan. Even during the 2001 American war in Afghanistan, the American army treated and to this day treats the line as border.
Legal inaccuracy no 2. The world does not recognize it and Pakistan is not the successor state and it has no standing in international law.
The world recognizes the Durand line as the border between Afghanistan and Pakistan as highlighted by UNSC resolution 1267, the Bonn conference and the conference on Afghanistan in London where they showcased the limits of Afghanistan and this was also displayed in the ICJ judgment atlantique aerial incident case between Pakistan and India. 4
In fact the United States made a public statement accepting the Durand line as the border between the two in 1956 and more recently by the United States special representative to Afghanistan and Pakistan, Marc Grossman that the Durand line is the international border between the two states. 5
After the creation of Pakistan, Novl Backer, the Secretary of States of Common Wealth Affairs, further clarified this position in a speech to the House of Commons on June 30, 1950 in the following words:
"It is His Majesty’s Government’s view that Pakistan is in the international law the inheritor of the rights and duties of the old Government of India, and of His Majesty’s Government in the United Kingdom, in these territories and that the Durand line is the international frontier" 6
In this respect, Ahmar Bilal Sufi, President Lahore Based Research Society of International Law, states:
According to Article 62 of the Vienna Convention of the Law of Treaties, it is accepted by all that whenever a new state of country is carved out of an existing colonial domain, all international agreements and undertakings that the previous rulers of the regions had entered into, are transferred to the new independent nationals’ government. So, after independence in 1947, Pakistan is rightly the party which succeeded the British Indian Government and inherited the Agreement.7
About the legal position of the Durand Line and the approach of the international community towards such issues Arif Ayub has quoted a number of examples:
Article 62 of the Convention on the Law of Treaties between States and International Organizations (1986) provides likewise that a fundamental change of circumstances may not be invoked, as a ground for terminating or withdrawing from a treaty between two or more states and one or more international organizations, if the treaty establishes a boundary. The principle of succession to colonial borders was underlined by the international court in the Burkina Faso vs. Republic of Mali case, as well as by the Arbitration Commission opinion on Yugoslavia with respect to the status of the former internal boundaries between Serbia on the one hand, and Croatia, Bosnia and Herzegovina on the other, concluded that except where otherwise agreed, the former boundaries become frontiers protected by international law.8
Clarifying the legal aspect of the Durand Line, Arif Ayub further mentions Article 11 of the Vienna Convention on Succession of Treaties. A successor state cannot as such affect a boundary, obligations and rights established by a treaty. For instance, the International Court gave its verdict in the case of Libya vs. Chad case through which it was established beyond an iota of doubt that once agreed upon, the stability of boundaries will remain on permanent basis. Interestingly, the court gives its emphasis that a boundary established by a treaty, thus achieved permanence which the treaty itself does not necessarily enjoy. The treaty can cease to be in force without in any way affecting the continuance of boundary when a boundary has been the subject of agreement; the continued existence of that boundary is not dependent upon the continuing life of the treaty under which the boundary is agreed.9
Afghanistan has been prevented from unilaterally
renouncing the Durand Line Agreement due to the
international law principle of uti possidetis juris
directly applicable in the context of decolonization,
which provides that newly decolonized states should
have the same borders that their preceding dependent
area had before their independence. The International
Court of Justice has repeatedly upheld the principle of
uti possidetis juris 'as a principle that transforms former
administrative borders created along the colonial
period into international frontiers
in fact during the Pakistan discussions with the kalat, mountbatten pointed out that Pakistan is the successor state of British India and thus is the inheritor of its treaties.
With the above all three points have been highlighted that the Durand line has international recognition, it has full legal standing and Pakistan is the successor state of British India.
Legal inaccuracy no 3. The referendum flawed and did not have an Afghanistan option.
The referendum in the area of North west frontier province happened as the congress ministry headed by Bacha khan came into power in the elections of 1946. As support for Muslim league grew, calls for reelection emerged. As the date for independence grew closer Mountbatten called for a referendum with the option to join either India or Pakistan as a compromise between Nehru and Jinnah. Over 97% voted for Pakistan. The election was boycotted by khudai khidmatgars.
Three things must be cleared.
The area of NWFP belonged to the British and was such recognized by the amirs of Afghanistan and thus Afghanistan had no right to claim itself as an option. It was not a princely state thus did not have the independence option. In fact such a blatant call for interference is against the treaty which the Afghans signed.
Bacha khan was not for Pakistan and wanted to stay with the union of India and called for such an independent option when he saw the support for Pakistan, thinking that such an option would see NWFP away from Pakistan and the strength of congress would remain intact in NWFP and would later reintegrate with India 10. Bacha khan continuously advocated for the union of India. The Afghans use him as a patriot for Afghanistan but wonder if history had turned differently and NWFP had stayed with the union of India, would they have called him such a patriot still or would they have abused him as they abuse pashtuns which are loyal to Pakistan. I believe he would face worse and the same with India however history took a different turn. It would also be pertinent to mention here that he did not ask for an Afghan option but for an independent option and the Afghans in the 1950s and 1960s peddled pashtunistan and not union with Afghanistan which once again shows that the Afghan govt saw the Durand line as a border.
A boycott of an election or referendum by a political party does not in any sense question its validity as the election did see a sizeable turn out which voted for Pakistan in a huge number. The referendum was valid in every sense and the area of NWFP voted for Pakistan.
According to Leonard Moseley
"The people of the North West Frontier Province have made manifest their choice, in the most democratic manner possible, is an established, historical fact. If the people of the province were not interested in joining Pakistan or if they cherished any idea of a separate state of their own, they would not have given this verdict in favor of Pakistan in such absolute terms"11
Legal inaccuracy no 4. FATA was not part of Pakistan and was independent of British.
Fata was not independent of the British as it was under British law and a very infamous one which was the Frontier Crimes Regulations of 1901. The Tribes of Fata had their own dealings with the British and did not claim themselves as part of Afghanistan.
The British dealt with these tribes through Jirgas (which are part of pashtun culture) and these Jirgas were to decide their own fate. According to the June 3rd plan all tribal agreements would cease to exist on the 15th august and the dominions would have to have sign new agreements with those tribal states. The governor of NWFP, Sir George Cunningham who used to deal with these tribes on behalf of the governor general met these tribes. All of them through verbal or written consent opted for Pakistan and an agreement was signed between them and the state of Pakistan. 12
Currently in 1996 FATA was allowed to vote according to Adult franchise and has representations in the senate and the national assembly. On top of it all the recent bill passed has seen the jurisdiction of the Supreme Court and the high court extent to all of FATA as well as a merger with khyberpakhtunkhwa in a period of five years.
Fata in every sense is part of Pakistan. The inability of the state to establish writ as well as its decision to utilize the FCR in its running have nothing to do with it.
Legal inaccuracy number 5. Easement rights mean the border never existed.
First we must study whether these easement rights ever existed. The Durand line indeed cut through tribes however in the agreement there is no explicit or expressive point on easement rights which means that these rights evolved outside the basic framework of the agreement.
True that Pakistan did not establish Visa rights or even cross border mechanisms on the Durand however that does not diminish its authority as we have seen in the past two years as Pakistan has vigorously started border mechanisms and fences and visa requirements.
Easement rights do not weaken the border but showcase a humanitarian and conscious decision by Pakistan to provide for divided tribes as can be seen by special cards allotted to those who have tribes on both sides by Pakistan which do not require visa.
Easement has no locus standi upon the validity if the Durand line.
Legal inaccuracy number 6. It was not a border agreement but 'spheres of influence'.
As we have seen the various treaties that were signed by the British India and Afghanistan the agreements were indeed for border. The agreements specifically mentioned 'demarcation' which is used for lining of borders. On top of it all the British implemented their laws in various areas without an expressive or tacit disapproval by Afghanistan.
Conclusion
With this It can be concluded that Afghanistan has no standing both on historical as well as on legal front so again a question rises, why the afghan govt gives statements like such? The answer is simply bcz its politics. No afghan govt can say that the line is official bcz they will lose all power. Political careers play an important role in the path a country takes and political slogans play an equal role. The Durand line is now a political slogan that will be spoken by all parties. Case in point. Pakistan has started fencing the border and is fencing a kilometer a day. The govt is silent about this but the opposition is vocal bcz it’s a political slogan to harm the govt in power and take power. When issues become emotional, rationale arguments and thoughts dwindle.
1. Treaty of Peace between Governments of India and Afghanistan. (1919).
2. Biswas, A. (2013). Durand Line: History, Legality & Future. Vivekananda International Foundation
3. Supra, note 6 at 7.
4. United Nations. United Nations Security Council Resolution 1267.
International Court of Justice, (2014). Aerial Incident of 10 August 1999 (Pakistan v. India). [online] Available
at: http://www.icj-cij.org/docket/index.php?sum=585&p1=3&p2=3&case=119&p3=5
5. McDonald, M. (2012). Pakistan: Now or Never? Reuters Blog
6. S. M. Burke “Pakistan’s Foreign Policy: An Historic Analysis”, P. N, pp. 68 – 90.
7.Vienna Convention, 1969, Also see http://www.pashtunforum.com/social/...-agreement-1893-pact-had-no-expiry-limit.html.
8. Arif Ayub, The Nation, November 03, 2010.
9. bid..
10. H. V. Hudson, The Great Divide: Britain- India- Pakistan (Karachi: Oxford University Press, 2001), p. 93.
11. Leonard Moseley, The Last Days of the British Raj (London: Weidenfeld and Nicolson, 1962), p. 132.
12. Iqbal Ahmad, Statement before the UN General Assembly, October 09, 1974, UNGA 29th Session, P. V. R, 2263rd Meeting October 09, 1974.
I apologize for any grammatical mistakes.
@Slav Defence @Azlan Haider @hellfire @RealNapster
