The Durand Saga – An Account of International Law

The Durand Saga – An Account of International Law

Since the emergence of Pakistan, the Durand Line has been a flashpoint between Pakistan and Afghanistan despite having no legal basis. Successive Afghan governments, however, continue to contest the same on the premise that the alleged violation of Durand Line constitutes a violation of Afghanistan’s territorial sovereignty. This irredentist claim to Pashtun tribal regions is nothing more than a quest to reach the Arabian Ocean. The Afghan assertion was and is inspired by geopolitical interests than any basis in the law itself.

Afghanistan has used the argument of a linked Pashtun identity well during the past seven decades, but the same is no more a useful strategic tool due to change in the regional political paradox. Indo-Afghan growing ties are seen as a sign of betrayal by numerous Pashtun nationalists across the border, which has culminated into a dreadful death of the years-old sentimental and emotional political game.

It is a matter of record that the Durand Line resulted from an international agreement concluded in 1893 by two sovereign rulers, the British Secretary of State and the Afghan head of State. For the very reason, it is essential to observe the same through the prism of international law. This issue is directly linked to the concept of state succession. Pakistan has succeeded to the Durand Line Agreement (DLA) through the British empire as a parent state. State succession can be defined as the replacement of one state by another in the responsibility for the international relations of that territory.

It is an established principle of international law that any agreement concluded between a parent state and any other state is binding upon the newly emerged state out of such parent state. The emergence of a new state out of the contractual parties does not affect certain international agreements. The newly emerged state is under an obligation to take the responsibility of the existing international agreements.

State practice in favour of the continuance in force of boundaries established by treaty appears to be such as to justify the conclusion that a general rule of international law exists to that effect.[i] For reasons relating to the maintenance of international stability, this approach has been clearly supported by state practice and explicitly laid down in Resolution 16 of the meeting of Heads of State and Government of the Organization of African Union, under the terms of which all member states pledged themselves to respect colonial borders.[ii]

The extension of the principle of uti possidetis juris (as you possess under law), i.e. from decolonization of a state to the creation of a new state out of existing independent states, is also supported by international practice, taking effect during the transformation.

Similarly, Article 62(2) of the Vienna Convention on the Law of Treaties stipulates that a fundamental change in circumstances may not be invoked as a ground for terminating or withdrawing from a treaty that establishes a boundary. Also, Article 11 of the Vienna Convention on Succession to Treaties provides the following

“A succession of States does not as such effect:

(a) A boundary established by treaty; or

(b) Obligations and rights established by a treaty and relating to the regime of a boundary.”[iii]

The International Court has also dealt with cases of succession involving interpretation of  boundary treaties generally in the Libya/Chad case, where it was declared that “once agreed, the boundary stands, for any other approach would vitiate the fundamental principle of the stability of boundaries, the importance of which has been repeatedly emphasized by the court.”[iv] More particularly, the court emphasized that “a boundary established by treaty thus achieves a 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 the boundary. When a boundary has been the subject of the agreement, the continued existence of that boundary is not dependent upon the continuing life of the treaty under which the boundary is agreed.”[v] It is particularly important to underline that succession takes place not as such to the boundary treaty but to the boundary as established by the treaty. The tribunal in the Eritrea/Yemen case emphasized that boundary and territorial treaties made between two parties constituted a special category of treaties representing a “legal reality which necessarily impinges upon third states because they have effect erga omnes.[vi]

There are several myths regarding DLA, such as the alleged fact that it was only valid for 100 years or that it was signed under coercion and wasn’t applicable with regards to Pakistan. Firstly, nowhere in the DLA has the period of 100 years been mentioned. Secondly, the DLA was signed after hectic negotiations by the emir and Sir Mortimer Durand in 1893 in Rawalpindi. According to the DLA, Afghanistan relinquished a few districts, including Swat, Chitral and Chageh, and gained other areas including Nuristan and Asmar for instance, which it had historically not controlled. After careful reading of the events, it is clear that such allegations are baseless.

In contrast to many historical accounts, Afghanistan did recognize the Durand Line as an international border. Abdur Rahman Khan’s successor, Amir Habibullah Khan, in 1905 signed a new agreement with Britain confirming the legality of the Durand Line.[vii] More importantly, Article 5 of the Anglo-Afghan Treaty of 1919, on the basis of which Afghanistan reclaimed its independence, says that Afghanistan accepted all previously agreed border arrangements with the then India.[viii] Unlike the previous two agreements, the Anglo-Afghan Treaty was not imposed by Britain. Afghanistan as an independent state agreed to recognize the Durand Line as an international border.

A Utopian World

Many Afghans —Pashtuns in particular— still dream that one day they might reclaim the territories their forefathers lost between the Durand Line and the Indus River. That, of course, is unrealistic: the country lacks the political, economic and military means to pursue any such claim. At any rate, the 30 million Pakistani Pashtuns would appear to have little motivation to join the 15 million Afghan Pashtuns. For more than half a century, Pashtuns have played significant roles in civilian and military life in Pakistan. Why would leave that for a barely functioning Afghanistan? There are multiple examples of ethnic groups living in two or more countries: Kurds, Balochs, Tajiks, and Germans, to name a few. Residents of the bordering areas fear that accepting DLA as a binding legal instrument may amount to the severing of ties among various families living across the border, but it is only a myth. Since both parties are well aware of their stakes in respective countries, such assumption is totally unjustifiable. For an internally disturbed Afghanistan, to get control of the claimed areas by force is also an argument without weight and credibility.

Why the Durand line Matters as an International Border

Border control, otherwise known as border security, is extremely important in controlling and examining all those who enter or leave a country, especially today in a world so plagued with terrorist threats and criminal acts. There are several issues that border security is responsible to manage:

  • Controlling the movement of citizens in and out of the country;
  • Regulating legal and illegal immigration;
  • Collecting tax on goods;
  • Controlling the spread of diseases, both human and animal;
  • Preventing the smuggling of weapons, drugs, hazardous or illegal substances or objects, as well as endangered animals.

A porous Pak-Afghan border is critical for both countries as they are bearing a loss of $750-800 million annually due to illegal trade. A strong border mechanism will ultimately benefit the shattering economies of the both nations. The presence of terrorist networks in the border areas is a permanent menace, which is not just equally dangerous for the two, but for the entire region. These groups are actively involved in civil unrest and proxy wars. Both countries are blaming each other for the perilous state of affairs and try to shift the burden onto each other for the circumstances while underestimating the situation. An apt border arrangement will help minimize the trust deficit, as mutual understanding will be established on the shared basis. In long run, it will also amount to a reduced military budget, which is reserved for border security forces. This will be helpful to best utilize resources for human development instead. Owing to the porous borders, criminals get a free hand and commit crimes with impunity. A settled border will assist in establishing a strong writ of the state, which is otherwise faint. Pakistan has taken an appropriate step of fencing the border and it is high time for the Afghan leadership to support the initiative and accept the Durand Line as an international border as well. Afghanistan’s support and recognition of the initiative will serve as the litmus test of their seriousness to crush the menace of terrorism from the region. Accepting the truth may not make them financially wealthy in the short run, but it shall make them a free and strong nation in the longer term.

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References:

[i] Yearbook of the International Law Commission, 1968, vol. 11, pp. 92-3.
[ii]See, for example, M. N. Shaw, Title to Territory in Africa: International Legal Issues, Oxford, 1986, pp. 185-7, and other works cited in chapter 9, p. 446.
[iii]Vienna Convention on the Law of Treaties 1969
[iv] ICJ Reports, 1994, pp. 637; 100 ILR, pp. 136.
[v]Ibid.
[vi]114 ILR, pp. 1,48.
[vii] Anglo-Afghan Border agreement of 1905
[viii] Anglo-Afghan Treaty of 1919

 

The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any organization with which he might be associated.

Asad Ameer Chaudhary

The writer is a Lahore based lawyer and has keen interest in international law and politics.



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