Tahira khan
Durand line agreement of 1893 has been the principal contradiction between Pak-Afghan relations since 1947 which has not only hampered the way of diplomatic and strategic progress but also has affected the inhabitants of both sides severely.
Despite International recognition, Afghan government never reclined upon her fundamental objection and this refusal has been continued over centuries. Different political stripes, no matter what their ideology or organization is, never joined hands with Pakistan with reference to acknowledging the status of Durand line. Few suggested re-incorporation of territories in Afghanistan while others were in favour of separate independent state notoriously called as ‘Pashtunistan’. Both these claims are unclear and lack uniformity in the context of historical and legal framework.
The emotions and controversies being attached to the topic has not only made the disputation intractable in nature but also lead it to bring negative consequences for the region particularly and Balochistan specially.
Historical aspects
Like Amir Abur Rehman-who made agreement with Sir Mortimer- his successor, Amir Habib ullah, followed in his footsteps by signing treaty on March 21, 1905. This treaty is known as ‘Dane Habib ullah agreement which saved Afghan commitment in the following words;
“His said majesty (Habib ullah Khan) does hereby agree to this that, in the principles and in the matters of subsidiary importance of the treaty regarding external and internal affairs and of the engagements which His Highness, my late father,… concluded and acted upon with the exalted British government, I also have acted, am acting and will act upon the same (Durand line) agreement and compact, and I will not contravene them in any dealings or in any promise”.
Apart from that, article 5 of Anglo-Afghan treaty explicitly depicts the Afghan acceptable position towards border recognition along with reclamation of her Independence. Surprisingly, this last agreement was put forward in absence of any external pressure.
Article 5 says; “The Afghan government accepts the Indo-Afghan frontier accepted by the late Emir (Habib ullah Khan)”.
Legal confrontation over the status of Durand line
Afghanistan up till now has raised three arguments which are questioning the legality of Durand line.
1) Pakistan is not a Legal successor of British India
False mirage created by the so-called nationalists has led the people and Afghan government to question the legal status of Pakistan being the rightful successor of British India along with the validity of border on various occasions. From time to time, many countries supported Pakistan view including USA and Britain. Noel Baker, the British secretary of state, has commented on the issue in the following words; “His majesty’s government’s view is that Pakistan is in international law, the inheritor of the rights and duties of 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”.
After Afghan Prime Minister Mahmood Shah who first raised the issue, Pakistan responded as under; “At the international level, issues pertaining to succession of states are dealt with by the Vienna Convention on succession of states in respect of Treaties (VCSSRT). Article 11 of VCSSRT explicitly states that succession of states can’t impact
(a) international border agreed upon in result of an agreement, and
(b) rights and obligations concerning international border created through an agreement.
Thus, under this agreement, the cessation of British India and birth of Pakistan as its successor in the northwestern region of the Indian subcontinent doesn’t affect the legality of border.”
As far as the International court of Justice is concerned, it will act upon its principal of ‘UtiPossidetisjuris’ which says that bilateral agreements being established during colonial times will remain alive even after the occurrence of Independence.
Above all, Independence act (1947) has made the Afghan claim null and void in the following words; “Rights and obligations under international agreements having an exclusive territorial application to an area comprised in the dominion of Pakistan will devolve upon that dominion.”
So, the very first claim put forward by Afghanistan that “Pakistan in not legal successor of British India but a clean state” has itself no Legal footing and needs to be abolished as soon as possible from the international arena.
2) Violation Of Durand Line Agreement By Pakistan
One of terms of Durand Line clearly states that none of the sides will exercise interference on the other side of the border but in 1949 one of the Air-Force planes from Pakistan bombarded the Afghan Village. Loya Girga (Grand Council) decided to exterminate Durand line agreement. Apart from that, the recent exchange of firing at Torkham shows that violations are still continued.
But according to International law, no bilateral binding can be abandoned unilaterally.
Thus, the second argument also nullifies itself legally.
3) Expiration of Durand Line:
Another rumor which has not only harbored doubts but went well without being questioned is that the agreement was established for 100 years only from the date of endorsement. It is indeed a mystery that neither any provision of agreement nor any further treaty rectifies this claim. Afghan government itself has been unable to bring some overt instrument or evidence in support of their presumption which is deeply engraved in the former old political psyche. Debates on such propositions will lead to wastage of time and nothing else.
Both Pakistan and Afghan should start negotiations leading to the solution of issues pertaining to the line. Both have to stop political games which are intended to divert attention by raising issue like demanding separate state ‘Pashtunistan’ or blaming Kabul for Indian proliferation in Balochistan assessing separatist movement which has not only added fuel to the already fragile situation but has also blocked all ways towards reconciliation process. Durand line was and is a binding bilateral agreement, defining the international border. Even Khan Abdul Ghaffar Khan has refuted the idea of re-demarcation of the line. Afghanistan has to accept the legal status of line whereas Pakistan has to concede respect towards the terms of agreement.
Writer is a Student of BS Honors Political Science in University of the Punjab Lahore
Disclaimer: Views expressed in this article are those of the author and Balochistan Voices not necessarily agrees with them.
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