The Legal Dispute over the Durand Line

 By Aalekh Dhaliwal
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The Durand Line is the infamous, contentious border between two hostile nations, Afghanistan and Pakistan. Where one repudiates the demarcation and questions its legality, the latter has often cited international law and treaties to reiterate the validity of the British-era border. The Durand Line has provided for a 1900-mile porous frontier that has been exploited by Afghanistan to incite Pashtun nationalism, on the one hand, and tactfully used by Pakistan to further America’s ‘anti-terror’ agenda, on the other.

It is pertinent to understand the historical dimension of this tension, dating back to the late 19th century when Asia was torn between the Great Game of the Russian and British empires. While tracing South Asia’s colonial past, one is better equipped to understand the imperial motives behind seemingly practical demarcations that have resulted in a patchwork of nation-states. Therefore, the raison d’être of Afghanistan’s collapse amidst this bilateral imbroglio is as historical as it is political. In addition to the perpetuation of conflict along the border due to the presence of external and non-state actors, the legality of the Durand Line has been constantly challenged by Afghanistan and vehemently defended by Pakistan. Biased opinions of Afghan and Pakistani bureaucrats do not facilitate a balanced argument regarding the Durand Line dispute, and the lack of literature on the legal aspects of the disagreement is reflective of the ignorance of the international community.This article will put forth the historical origins of the predicament and shed light on the politico-legal arguments advanced by both nations whilst keeping in mind the difficult geography of the region.

Historical Background:

“From his memoirs it appeared that the Amir was pleased with the settlement he had reached. At the end of the negotiations Durand was presented in a Durbar in Kabul and praised and given various Afghan chivalric orders.”[i]

Although the foreign policy of Afghanistan remained under the mandate of the British until 1919, the Amir exercised control over matters of national importance, even showing interest in delimiting international boundaries before the region was overrun by Cossacks. British India, wary of a Russian invasion into its most prized colony and suspicious of Pashtun support for the Tsar’s army, hoped to employ its western neighbour as a “buffer state”,[ii] hence agreeing to a Russo-Afghan border along the Amu Darya (Oxus River) in 1887.

According to most scholars, Amir Abdur Rahman is said to have initiated the proceedings that led to the formalization of the Durand Line Agreement signed by the Amir and Sir Mortimer Durand in November 1893. The Amir’s memoirs are often cited as evidence of the loya jirga that was summoned to formally discuss and celebrate the prospects of an internationally defined border with both Russia and Britain.[iii]When viewed critically, Abdur Rahman could have acquiesced in the demands of the British in order to receive an increased allowance, and because he was attaining the leadership of an internationally recognized modern state with its own territoriality as early as 1893. These were unprecedented prospects for an era ravaged by imperialism, slavery and the wrath of colonizers who exacted the “white man’s burden”[iv] to perfection.

Pakistan only came into existence in 1947, but it inadvertently inherited a number of ethnicities along its Western boundaries. Since 1904, the North West Frontier Province (now called Khyber Pakhtunkhwa) has enjoyed autonomy and was governed by its own set of rules (Frontier Crimes Regulation)[v]. Even after the creation of Pakistan, the Federally Administered Tribal Areas (FATA) continued to be governed in accordance with Pashtunwali until 2018 when they were merged with Khyber Pakhtunkhwa. This region has become a safe haven for the Pakistani wing of the Taliban, the Tehreek-e-Taliban Pakistan (TTP), and has witnessed a massive insurgency since Pakistan’s murky involvement in the War on Terror.

The above historiography seeks to explain, albeit in a nutshell, the roots of the current disagreement. The legal argument put forth by both nations is in line with this historical description, but one must give equal leverage to socio-economic issues of the region, especially the stereotypes attached to the problematised Pashtun ethnicity in Pakistan. Pashtunwali, as an antediluvian code of conduct, has been exploited by both Afghanistan and Pakistan to further their agendas of Pashtunistan and Islamic fundamentalism respectively, and these are aimed at sowing domestic discord in both countries. Such anthropological classifications of Pashtuns were spearheaded by colonial historians and travelers, but generalized ideas of these ethno-lingual communities only serve to entrench current stereotypes.[vi] 

Legal Debate:

The Afghan Parliament issued a resolution denouncing the Durand Line as a fraudulently drawn international border in 1949. The following are the arguments on which Afghanistan opposes the Durand Line, and the justification as to why Pakistan defends the said frontier. The Vienna Convention on the Law of Treaties has been a useful document that has aided both States to contest and justify the boundary, but readers must take cognizance of the non-retroactivity of the Convention and that it is only applicable when both states in question have ratified it (both Pakistan and Afghanistan have not).

1. Signed by the Amir under duress and imposed by the British Empire: Article 52 of the VCLT explicitly states that any treaty “procured by threat”[vii] shall be proclaimed void. Furthermore, Article 50 elucidates the invalidation of any treaty that has been accepted after bribery or corruption, a possibility that must be entertained since the Amir was to receive annual payments of £60,000/annum along with military aid after the treaty was signed.

To refute the above argument, Pakistan has often cited the personal memoirs of the Amir which allude to a darbar that was summoned for the ministers to be able to endorse the treaty. Furthermore, the successive agreements accepted by the Afghan leadership are evidence of a continuous acknowledgement of the Durand Line as an international frontier. The Dane-Habibullah Agreement in 1905, the Rawalpindi Agreement after the Third Anglo-Afghan War in 1919, the Kabul Agreement in 1921 and the reaffirmation of the 1921 Anglo-Afghan Treaty by King Muhammad Nadir Shah in 1930 are some major testimonials for Afghan compliance in the frontiers laid by the Durand Line.[viii] Although Arka Biswas has stressed upon the reasoning that the 1919 Rawalpindi Agreement was a renegotiation of the Durand Line Agreement and “territorially different from the 1893 treaty,”[ix]Pakistan has remained of the view that the original Agreement was not signed under duress and must not be claimed so.

2.      Self-determination was not granted to the Pashtuns of North West Frontier Province when Pakistan was created in 1947: Afghanistan has often cited the Pashtun cause against the validity of the Durand Line, that the borders separated an ethnicity which is now marginalized in Pakistan; hence the borders are morally unjustifiable. Historically, the North West Frontier Province was only given the option to either remain in India or join the newly created State of Pakistan. Even after independence, Khan Abdul Ghaffar Khan continued to advocate for greater rights of Pashtuns and spent many years incarcerated for his activism. The British did not wish to cede to the demands for a Pashtunistan as it would not be economically viable for the commonwealth and could potentially fall into the hands of the Soviets. Here again, vested interests of the colonizers eclipsed the needs of indigenous folks.

Pakistan is of the view that if each erstwhile colony was given the option of self-determination today, nation-states would break-up across the globe leading to anarchy. Although the Durand Line was drawn to serve as a demarcation of influence, and not sovereignty,[x] Pakistan is said to have completed its transition into an international border by merging the Federally Administered Tribal Areas with Khyber Pakhtunkhwa and abolishing the Frontier Crimes Regulation (2018).

3. The creation of Pakistan in 1947 automatically led to the abrogation of all past treaties signed between Afghanistan and British India: The Vienna Convention on Succession of States in Respect of Treaties (VCSSRT) is only applicable to Pakistan and Afghanistan as part of customary international law, and both States cite two different articles of the 1978 Convention to justify their arguments.

  • Afghanistan evokes the Clean Slate Doctrine or tabula rasa that is enshrined in Article 16 and declares that independent states do not “automatically inherit treaty obligations.” [xi]
  • Pakistan, on the other hand, evokes the Continuity Principle of Article 11 that devolves all colonial- era obligations to the Dominion of Pakistan. [xii]

Additionally, the principle of succession of colonial borders by independent states that has been outlined in Article 62 of the Vienna Convention of the Law on Treaties between States and International Organizations (1986) favours Pakistan. It states that colonial-era boundaries are transferred upon the independent entity as international frontiers duly protected by international law unless negotiated otherwise. A change in circumstances, rebus sic stantibus, if often used quite convincingly as an as escape clause by Afghanistan, but Pakistan unilaterally holds its ground on having inherited all its past treaties and international agreements.

Conclusion:

The dispute over the Durand Line is not merely a dispute of an international border, but of ideologies and ethnicities, terror and fundamentalism, migration and infiltration. Unless the two states reach a consensus on the aforementioned affairs, the Durand Line will continue to spew enmity into both sides.

Pakistani civil society’s disenchantment with the country’s leadership and Afghanistan’s economic deterioration in the face of increased attacks by both the Taliban and the Islamic State of Khorasan have brought the Durand Line disagreement to the fore. Rampant human trafficking, fanatical warlordism and debilitating insurgencies on both sides of the border are slowly crippling the societal fabric of both nations. Unless a unanimous agreement is devised and the vicious blame-game is ceased, law and order may never be restored on the ‘Af-Pak’ border.

End Notes:-

[i] Omrani, B. (2009) THE DURAND LINE: HISTORY AND PROBLEMS OF THE AFGHAN-PAKISTAN BORDER, Asian Affairs, 40:2, 177-195, p. 195.

[ii] Yousafzai, I., & Yaqubi, H. (2017). The Durand Line: Its Historical, Legal and Political Status. Journal of Research Society of Pakistan, 54(1), 75-94, p. 78.

[iii] Ibid,p. 83.

[iv] Giunchi, E. (2013). The Origins of the Dispute Over the Durand Line. International Quarterly for Asian Studies, 44(1,2), 25-46, p. 30.

[v] Khan, A., & Wagner, C. (2013). The Changing Character of the Durand Line. Strategic Studies, 33(2), 19-32, p. 21.

 [vi] Malik, I. H. (2019). Pashtun Identity and Geopolitics in Southwest Asia: Pakistan and Afghanistan since 9/11. Anthem Press, p. 27.

[vii] Article 52 of the Vienna Convention on the Law of Treaties between States and International Organizations (1986).

[viii] Qassem, A., & Durand, H. (2008). Pak-Afghan Relations: The Durand Line Issue. Policy Perspectives, 5(2), 87-102, p. 91, 93.

[ix] Biswas, A. (2013). Durand Line: History, Legality & Future. Vivekananda International Foundation, p. 29.

[x] n 1,p.191.

[xi] Poya, F. (2020). The Status of Durand Line under International Law: An International Law Approach to the Pakistan-Afghanistan Frontier Dispute, Journal of Borderlands Studies, 35:2, 227-241, p. 233.

[xii] Ibid.