Durand Line – A Binding International Border
Afghanistan has historically been unstable. The instability in Afghanistan affects its neighbours, and particularly Pakistan, partly because of the fact that the border divides an ethnic group, however, this is not unusual either globally nor in the context of Afghanistan, as its northern border divide Uzbeks and Tajiks with Uzbekistan and Tajikistan, respectively. However, an added element of uncertainty is added by the fact that after fifty or so years of signing the Treaty (the Durand Line Agreement) and reaffirming it multiple times, the Afghan Government after the creation of Pakistan refused to consider it as legally demarcating the border between the two states. In the backdrop of Afghanistan being epicenter of terrorism this has increased the need to relook at the issue and assess the legality of the Treaty and hence the border.
The international border between Pakistan and Afghanistan is defined by the Treaty (the Durand Line Agreement) signed between British India and Afghanistan in 1893, and as a successor state, the rights and obligations were inherited by Pakistan, in place of the British government. Pakistan’s stance is that the treaty under all canons of international law is binding and forms the border between the two neighbours. However, successive Afghan governments have been denying its legality on various pretexts since the independence. The question is why Afghanistan initially for the first fifty or so years, considered the Agreement and the border it created as legal, but continues to question it since our independence and why are there certain elements in Pakistan, that are active in undermining the status of the treaty, and thereby the border.
This paper makes an attempt to assess the legality and the binding nature of the Treaty, and consequently of what it settles, that is the border between Pakistan and Afghanistan. In this regard it shall assess the legality under the relevant international norms and instruments. It shall also evaluate the objections raised by the government of Afghanistan, which are echoed by certain quarters in Pakistan, as well, who wish to do away with the current border.
During the 19th century Afghanistan was hedged between two Great Powers of the time, the British Empire in India and the ever expanding Russian Empire to their north. In addition, Afghanistan, whose name was an arbitrary imposition by the creator of the state, Ahmad Shah Abdali, whereas in fact, it is a misnomer, as more than half (the figures vary, from 2/3rds to close to half the population of Afghanistan, being non-Pushtuns, hence non-Afghans. This meant, and still does, that there are sizeable Uzbeks and Tajiks in Afghanistan, in additions to Hazaras (our own came from Afghanistan due to persecution by the Afghan King). The population estimates vary, but this means that half to 60% according to various estimates are Turk people, who speak Dari, a dialect of Persian, with Kabul itself being part of non-Pushtun territory. In this background the then King of Afghanistan, as per his own memoirs, felt a strong need to consolidate and protect his borders, by clearly defining them. He therefore was more than willing to sit down with the representative of Her Majesty, Sir Mortimer Durand, to reach a binding agreement (a treaty) to help demarcate the border between British India and Afghanistan. This Treaty was signed in the presence of four hundred plus tribal elders, signifying broad based concurrence of the Afghan leaders. The King hailed it and mentioned it as an accomplishment in his memoirs. The Treaty was reaffirmed thrice in later years.
However, when Pakistan was created, the Afghan government perhaps for some political reasons saw an opportunity to go back on their solemn and internationally binding commitments and words. As the Afghan government could not do so under international law, the Afghan government came up with a number of objections, questioning the Treaty/ Agreement. These later day objections were of two categories; one list of objections, takes the point that the treaty was with the British Indian state and is no longer valid with Pakistan, therefore a new border agreement needs to be negotiated. The other goes even further, and with back effect, questions the legality of the original agreement itself, and the consequent border. Government of Pakistan, absolutely and resolutely denies both sets of arguments and has taken the consistent view that the Durand Line forms the international border between the two states, and therefore there is no need to negotiate a new one. On the second basis, the arguments from the Afghan side are even more tenuous and perhaps politically motivated, rather than really legal, as it is unlikely that any serious international law expert will quote them as legal arguments for nullifying the Agreement, and on that basis denying the legality of the Pak-Afghan border. Additionally, it may be mentioned here that perhaps taking advantage of the American presence and interest in Afghanistan in the post September, 2001, some Afghan academics have tried to raise those arguments and even try to perhaps falsify facts to be able to question the legality of the original Agreement. What is further complicating the issue and perhaps troubling is that the propaganda from the other side of the border, is echoed by some people in Pakistan, and it is therefore perhaps time to look at the issue in some depth.
The Afghans quote not one, but multiple objections; first they claim that the treaty was forced onto Amir Abdur Rahman, secondly, they claim that the Amir acted against the will of his people, thirdly they claim that Abdur Rahman, was not allowed to represent his state. In the second category, they claim, that the treaty was binding as between the British and Afghanistan, but ceased to exist, when Pakistan was created.
Looking at the first set of objections, it is easy to prove that the King was neither coerced, nor did he act alone, nor was he not authorised to sign such a treaty. King Abdur Rehman, in his memoirs mentions that he negotiated and signed the Durand Line Agreement to help secure his realm and its borders;
“At the time when I was occupied in breaking down the feudal system of Afghanistan and moulding the
country into a strong consolidated Kingdom, I was not unaware nor neglectful of the necessity of defining my boundaries with the neighbouring countries. I well knew that it was necessary to mark out the boundary lines between my dominions and those of my neighbours, for the safety and protection of my Kingdom, and for purpose of putting a check on their advances and getting rid of misunderstandings and disputes.”
The memoirs of the late King, and the fact that he had his full court and four hundered plus tribal elders present at the signing of the Agreement, shows that the King entered into the Agreement of his own free will and also that his action was not simply that of a King, who acted arbitrarily against the wishes of his government or people, but with the will of all his tribal leaders, which we may refer to as a loya jirga. Under international law, any agreement entered between states is binding, unless it can be shown that the representative who signed, went beyond his mandate. In this case the King, was the King, not a representative, additionally, as already mentioned he had his full court and tribal elders representation with him. Then, the historical setting shows that the Agreement was signed by the King with full intention of securing his own and his country’s interests, there was no coercion or fraud.
The Agreement was reaffirmed by later Afghan Kings, in the Anglo-Afghan Pact of 1905, then in the Treaty of Rawalpindi 1919 and then again in the Anglo-Afghan Treaty of 1921.
With regard to the second set of objections that the Agreement ceased to hold, when Pakistan came into being, it is an established principle that successor states inherit the rights and obligations of the predecessor states. Additionally, under customary international law, which was later codified in the 1969 Vienna Convention on the Law of Treaties, a treaty or agreement is binding on both states, under the old principle, pacta sunt servanda. As regards the Durand Line Agreement the Government of Britain’s stance was expressed by Mr. Noel-Baker, the British Secretary of State for the Commonwealth Relations in the House of Commons on 30th June, 1950:
“It is his Majesty’s Government’s view that Pakistan is in 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.”
In addition, the principle uti possidetis juris is a principle of customary international law which states that the boundaries of colonies emerging as States shall be preserved. It is a general principle, which is logically connected with the phenomenon of the obtaining of independence, wherever it occurs. It’s obvious purpose is to prevent the independence and stability of new states being ‘endangered by fratricidal struggles provoked by the challenging of frontiers following the withdrawal of the administering power’.
In the light of the above discussion, it is clear that the Durand Line Agreement was, and is, a legally binding instrument between Pakistan and Afghanistan, and therefore the border it helped establish between the two states is also a legal border and there is no need to renegotiate it. It is time that this manufactured controversy was put to rest, and the border is accepted as such.
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.
