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Durand Line; The Legal perspective - By GHANIZADA - Mon Aug 18 2014, 9:35 pm
Hazrat Bahar has contributed this article to Khaama Press (KP). The author can be followed on Twitter @Hazratbahar.
In the nineteenth century, the Great Britain pursued and kept struggling for ‘forward policy’ in Asia and Russia as a ‘great power’ in the region annexed Central Asian countries and was moving toward South Asia. Afghanistan turned to be maneuvering ground between East and West blocks. After the defeating of the British India in the first Anglo-Afghan war (1838), Britain occupied Afghanistan in the second Anglo-Afghan (1878) war sparked by the coercive and intractable arrival of the Russian delegation to Kabul. Afghanistan became a ‘protectorate’ country of the British India following the ‘Gandamak Treaty’ in 1879. Afghanistan as a ‘buffer state’ between the ‘great game’ players came under the Russian attack and annexed Panjdeh, the Northwest part of Afghanistan in 1885. To block further expansion of the Russia, British India first demarcated northern boundaries of Afghanistan with Russia in 1887 and later signed the Durand Line (brokered by the British foreign secretary Mortimer Durand and Amir – Leader – Abdul Rahman of Afghanistan), which delineated the south, southeast and east borders of Afghanistan in 1893.
The Durand Line, which splits Pashtuns tribe, ignited local people to attack and burn the British Boundary Commission in Wana, today’s North Waziristan of Pakistan in 1894 and the unrest spread across the Durand Land or ‘Pashtun-belt’ in 1897 (Northwest Pakistan and Southeast Afghanistan) and Britain deployed 60,000 troops to suppress the turbulence, (Bijan Omrani 2009) & (Waziri 2012). The successor of Abdul Rahman – his son – Amir Habibullah renewed the Durand Line agreement in 1905. Following the war for liberation in 1919, the British India recognized the independency of Afghanistan in an agreement, where Amanallah Khan – later the King – agreed upon his father’s (Habibullah) agreement of 1905.
During the India Partition (1947), Afghan government expressed her concern about the Durand Line first to the U.K. (Ali 1990) and later cast a negative vote when Pakistan was joining U.N. membership in 1948 (Wakman 1985). Two years later after the establishment of the Pakistan (July 1949) the Afghan parliament unanimously passed a resolution nullifying the covenants signed by Afghanistan and British India and declared the Durand Line a ‘bogus and fictitious’ border (Saqeem 2008). Pakistan that claims as a successor of the British India has been dominating the Durand Line since 1947 and sees the ‘frontier’ as de jure border (Durrani 2010).
This paper tries to examine mainly the legal perspective of the Durand Line and also discussing whether Pakistan was/is the legitimate inheritor – successor state – of the British India. But prior to these two issues, it briefly touches upon the Gandamak agreement (1879).
The Gandamak Agreement
Following the second Anglo-Afghan war (1878), the British forces toppled down Shir Ali Khan kingdom (1873 – 78) and installed first Yaqubi Khan (1879 – 80) – with whom the Gandamak treaty was signed – and later Abdul Rahman Khan (1880 – 1901). During the war, Afghanistan lost Baluchistan and Quetta to the British India and, thus for the first time Afghanistan became a landlocked country. By signing the Gandamak agreement, Afghanistan lost her control on foreign relations and then needed the British India approval for any international interactions. The third and 10th article of the agreement reads as follow:
3: His Highness the Amir of Afghanistan [Yaqub Khan] and its dependencies agree to conduct his relations with Foreign States in accordance with the advice and wishes of the British Government. His Highness the Amir will enter into no engagements with Foreign States, and will not take up arms against any Foreign State, except with the concurrence of the British Government. On these conditions the British Government will support the Amir against any foreign aggression with money, arms, or troops, to be employed in whatsoever manner the British Government may judge best for this purpose. 10: … the British Government agrees to pay to His Highness the Amir and to his successors an annual subsidy of six lakhs [600,000] of Rupees.
After the defeating in war, The King Shir Ali Khan fled to the northern part of the Afghanistan and passed away there. The British India approached the King family members and appointed Yaqub Khan – son of Shir Ali Khan – as a leader and he signed the Gandamak agreement so then Afghanistan became a ‘protectorate’ country of the British India. When tribal armed people attacked and killed some British soldiers in their camp near the Kabul, the British India replaced Yaqub Khan by Abdul Rahman Khan in 1880. So we can argue that this is a unilateral agreement where the stronger side achieved and imposed their demands and also offered incentives (cash) to the ‘protectorate’ to comply.
The Durand Line Agreement
The Durand Land, signed on 12th of November 1893, sparked widespread unrest across the Line, which explicitly meant that the people (Pashtuns) denounced after they learned about the agreement in 1894 and 1897, so the agreement was less applicable in practice. In the agreement more vague terminology has been used, for instance, instead of ‘boundary’ a word ‘frontier’ has been used which has different meaning as Bijan defined ‘frontier’ “refers to other grades of border” and the word “boundary refers to international sovereign borders’ (Bijan Omrani 2009). Besides that, As the preamble of the agreement reads, “both His Highness Amir and the Government of India are desirous of settling and of fixing the limit of their respective spheres of influence”. It is assumed that this agreement was more intended to define the ‘spheres of influence’ not the border of the sovereignty.
Article four of the agreement entails the demarcation of the borderline, “The frontier line will hereafter be laid down in detail and demarcated….” which has yet to be fully and properly demarcated. It is highly likely that it is because of the residents’ resentment live on either side of the border, “the Pashtun themselves resent their arbitrary separation between two countries, which has reduced their [British India and then Pakistan] capacity to exercise political power” (MacDonald 2012). Besides that, Durand Line also divided Baluch (who live now in a joint-geography separated among Pakistan, Afghanistan and Iran) people who were not consulted about the Line, as Miraki argues that, “international law requires all parties that are affected by any agreement wherein border demarcation are set to be party to the agreement, otherwise the agreement does not hold legality.” (Miraki 2011). Lacking the exclusive participation may question the legitimacy of the treaty.
The King Abdul Rahman as mentioned before was appointed and installed by the British India and the Gandamak agreement made Afghanistan as a ‘protectorate’ state. So, here it seems less likely that the King could act independently vis-à-vis British India, a senior researcher Abdul Rashid quoted in ‘RSCA Journal’ saying “ he [Abdul Rahman] was forced to accept and sign he Durand Line, he was warned to be replaced if he fails to comply with the plan [Durand Line]” (Zia ul Haq 2011). The author further argues that the successor of the Abdul Rahman also did not consensually sign the agreement, “His son [Habibullah] declined to come to India and obey the terms [of the Durand Line] so the British India suspended the payment of 1,200,000 rupees (Indian currency) and later they [British] came to Kabul and made the Amir [Habibullah] agree, they later released and started the payments.” (Zia ul Haq 2011). The Vienna Convention on the law of treaty nullifies an agreement that has been procured by the threat or use of the force. Article 52 of the Convention (1969) reads “A treaty is void if its conclusion has been procured by the threat or use of force in violation of the principles of international law embodied in the Charter of the United Nations.” Here it is arguable whether the Britain has not violated the international principles.
The British India has offered money in both agreements with Afghanistan; the Gadamak and the Durand Line. A part of article 7th of the Durand Line agreement says “… in order to mark their sense of the friendly spirit in which His Highness the Amir has entered into these negotiations, the Government of India undertake to increase by the sum of six lakhs of rupees a year the subsidy of twelve lakhs now granted to His Highness.” Meanwhile, the international law denounces corruption and explicitly says that treaty procured through corruption is invalid. Article 50 of Vienna convention reads, “If the expression of a State’s consent to be bound by a treaty has been procured through the corruption of its representative directly or indirectly by another negotiating State, the State may invoke such corruption as invalidating its consent to be bound by the treaty.”
As a normal procedure of a treaty, bilateral or any other multilateral and international agreements go through different steps; signing of a treaty, ratification in parliament and publishing for public. Afghanistan in 1890s had monarchy system, where she did not have a parliament or any other parallel authoritative structure to approve or veto the King orders. On the contrary, the United Kingdom had a parliament, but neither their parliament ratified the Durand Line agreement nor they published it in an official gazette. Besides that, all international agreements are supposed to be registered in United Nations, where either the U.N. itself or any other country can be a depository, however; the Durand Line agreement has yet to be registered and also has no depository. These are some other applications that the Durand Line Lacks.
Pakistan assumes herself as a successor of the British India. This succession seems very open to be questioned. Before the occupation of the subcontinent of India by the Britain, Pakistan did not exist. In other words, the U.K. occupied the India not a Pakistan. After the occupation in 1947, India automatically become the United Nations member (She did not apply for a UN membership), while Pakistan needed to apply, and Afghanistan cast a negative vote followed by Parliament nullification in 1949 of all treaties signed between Afghanistan and the British India. Pakistan was created as a new country on 14th of August 1947. If Pakistan, as she argues, is an original successor, they might not need to apply for a U.N. membership, as India did not. Here it is arguable whether India – a predecessor of the subcontinent – is the successor or Pakistan – a newly born country.
International agreements have two kinds of clauses, ‘executory’ and ‘executed’ that describes ‘continual act’ and an act to be done ‘only once’ respectively. As Bijan argues that “the clause in 1893 Durand Treaty had the appearance of being executory rather then executed clause…and open to repudiation by either party” (Bijan Omrani 2009). The words ‘exercises interference’ needs continuous effort from both parties. Here it is arguable that the Durand Line agreement is more open and its legitimacy can be questioned anytime.
Since 1893 up to date (120 years), eighteen different governments have ruled Afghanistan except the first 4, the rest have not recognized the Durand Line and the later became harsher than the previous ones regarding the agreement. However, Pakistan has been dominating the Durand Line since her establishment and will continue to govern it. Nevertheless Pakistan government has relatively less dominance in most of the Durand Line area, FATA (Federally Administered Tribal Area). FATA is still governed by FCR (Frontier Crimes Regulations) introduced by the British India and has never been updated. To sum up these points and arguments, we can argue that the Durand Line agreement is open to questions, but for both countries, Pakistan and Afghanistan, as MacDonalad argues and has put “the best way to solve the many problems on either side of it – poverty, illiteracy, poor health, corruption, terrorism, laws which contravene all notions of human rights – is not to persist in the attempt to split sovereignty, but to share it. An area so unified in terrain, population and custom cannot bear inequalities in administration, but requires a common approach on both sides to solve the problems.” (MacDonald 2012).
Ali, Mehrunnis. Pak-Afghan Discord: A Historical Perspective. Karachi: Pakistan Study Center, 1990.
Bijan Omrani, Frank Ledwidge. “Rethinking The Durand line.” The Rusi Journal 154, no. 5 (October 2009): 48-56.
Durrani, Mohib Ullha. “Pakistan – Afghanistan relations: Historic Mirror.” The Dialogue IV, no. 1 (2010): 25-64.
MacDonald, Myra. Reuters. October 24, 2012. http://blogs.reuters.com/pakistan/2012/10/24/in-afghan-war-enter-sir-mortimer-durand/ (accessed March 02, 2013).
Miraki, M. Daud. TolAfghan. December 12, 2011. http://www.tolafghan.com/assets/download/articles/respond_to_durandLine_recognition.pdf (accessed March 11, 2013).
Saqeem, Ahmad Shayeq. Pak-Afghan Relations: The Durand Line Issue. Research Paper, Institute of Policy Studies, Islamabad: Institute of Policy Studies, 2008.
Wakman, M. Amin. Afghanista at the Crossroad. New Delhi: ABC Publishing House, 1985.
Waziri, Abdul Rashid, interview by Hazrat M. Bahar. Afghanistan and Pakistan Relations Kabul, (July 14, 2012).
Zia ul Haq, Samia Saai, Khatira Shinwari. “Pakistan and Afghanistan: Regioin and the World.” The Journal of Regional Studies Center of Afghanistan 23, no. Winter (2011): 6-65.