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WHENEVER Pak-Afghan ties are strained, the issue of the Durand Line surfaces. Host to over three million Afghan refugees, Pakistan sees thousands of Afghans enter daily — mainly through the Torkham and Chaman checkpoints, but also unregulated entry points.
Contrary to perceptions, the Durand Line Agreement (DLA), 1893 is not an isolated historical aberration thrust upon Afghanistan by the British Raj. A series of events, including the Anglo-Afghan wars, the Forward Policy, Russian advancement into Central Asia, and demarcating Iran’s borders are some events of the Great Game which culminated with its signing and that of subsequent treaties.
There are several myths regarding DLA, such as its validity for 100 years, and that it was signed under duress and isn’t applicable with regard to Pakistan.
In 1873, the British sought a reply from Russia over Badakhshan and Wakhan. The Russian-Afghan border was drawn in 1888 by the Russo-Anglo Joint Boundary Commission. Attempting to contain Russian advancement, Britain exerted pressure on Russia to demarcate the Russo-Persian frontier. Britain accepted their proposal and signed the protocol in 1887. Now it was Russia’s turn to have Britain demarcate Afghanistan’s southern frontier. Russia was equally suspicious of British desires and its intended expansion northwest.
In 1888, emir Abdur Rahman wrote a letter to Lord Dufferin, viceroy of India, requesting a mission to Kabul to settle the Indo-Afghan border. The DLA was signed, after hectic negotiations, by the emir and Sir Mortimer Durand in 1893 in Rawalpindi.
Bilateral pacts can’t be unilaterally revoked.
It must be mentioned that the British invaded Afghanistan in 1878 and forced the Gandamak treaty on them a year later — stripping their sovereignty. Afghanistan was to conduct its foreign relations according to the wishes of the British. DLA is the outcome of almost 80 years of British and Afghan wars, diplomacy, victories and reversals, which started with the 1809 Elphinstone Mission to Peshawar. In signing DLA, Afghanistan was allowed to purchase and import ammunition, and the emir’s subsidy was increased threefold.
Nowhere in DLA is the period of 100 years mentioned. It was not a one-time transaction; as per its mechanisms, active boundary demarcations continued up to 1908 and beyond.
Many Afghan, and some Indian, writers argue that DLA was signed with the British, not Pakistan. They contend the emir signed it in his personal capacity and, thus, was not between two governments. They also refer to the Afghan treaty, 1921, which stated that its provisions would remain in force for three years.
Critical examination of these objections indicates that, while the British did not recognise Afghanistan’s sovereignty as per the Gandamak treaty, DLA was nonetheless signed by Abdur Rahman as head of the Afghan government. It was ratified by emir Habibullah in 1905 and Afghanistan independence was recognised by the British. The Treaty of Peace, 1919 clearly ratifies the Indo-Afghan frontier accepted by Abdur Rahman. The 1921 treaty’s main focus was on maintaining good ties and trade concessions, which Afghanistan still enjoys in the form of the Afghanistan-Pakistan Transit and Trade Agreement, 2010. Its very signing by Kabul shows that the Durand Line is an international border.
DLA is independent and self-contained, ratified by successive Afghan governments in 1905, 1919 and 1921. Shah Wali Khan, Afghan legation in London, reaffirmed the 1921 treaty in 1930. Such bilateral pacts cannot be revoked unilaterally.
Pakistan is the successor-in-interest of the British Raj. This principle is enshrined in the Vienna Convention on Succession of States in respect of Treaties, which declares that state successions cannot impact international borders resulting from agreements, including rights and obligations concerning such borders through such pacts.
Similarly, the ICJ maintains the principle of uti possidetis juris: bilateral pacts defining international borders with or between colonial powers are passed on to successor independent states. The Pakistan-Iran border, which both countries accept, was also drawn by the British. If we accept the contrary and reopen borders drawn by colonial regimes, almost the entire world’s political map will be redrawn. As result of DLA and subsequent treaties, Afghanistan has emerged as an independent nation and been given trade and transit concessions honoured by Pakistan.
It is correct that Pakistan’s tribal areas were, strictly speaking, not part of the British Raj. While suzerainty with regard to princely states and tribal areas lapsed on Aug 14, 1947, these states and areas voluntarily acceded to Pakistan. Tribal-elected representatives are the framers of our Constitution. There is need to differentiate between ‘disputed’ and ‘non-demarcated’ border areas.
Inbuilt mechanisms exist in DLA for demarcation; while some portions are still not demarcated, hardly any are disputed as claimed. It also provides a clear mechanism for resolving un-demarcated areas; through a joint commission that shall adhere to the greatest possible exactness to the line shown on the map.
The writer is a civil servant.
Published in Dawn, July 31st, 2016
