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Legal Issues of Afghan Objections to the Durand Line

Sajid Mosvi
Afghanistan’s stability is directly and indirectly connected with the nature of its relationship with Pakistan. Afghanistan and its alien allies are entirely aware of the fact that, without genuine support from Pakistan, it would be almost impossible to eradicating the Taliban and Al-Qaeda from the region. On many time the Afghanand USA has blamed Pakistan of harbouring the Taliban and each time Pakistan has responded by refusing the accusations. There are mainly two issues between Afghanistan and Pakistan since the creation of Pakistan. The problem of the “Durand Line” the shared but disputed border of the two countries and Afghan support for the “Pakhtoonistan” movement in Pakistan.
Pakistan recognizes the Durand Line as an international border, a positionsupported by international law on the other hand Afghanistan does not recognize it as international border. The very first objection, according to Afghans is that it was a decision enforced on them by the British Empire under great pressure.
The argument that Durand Line was enforced upon them by a British doesn’t hold the ground due to many reasons. Firstly the negotiations on Durand Line took many years as the British forces had withdrawn from Afghanistan by 1881 however the treaty was agreed upon in 1893 after many years of difficult negotiations. Additionally Amir AbdurRehman the king of Afghanistan was generally satisfied with the outcome of his negotiations with Sir Mortimer Durand. While signing the Agreement, the Amir held a ‘durbar’where his two elder sons, high-ranking civil and military officers, and four hundred leading chiefs were present. He wrote his biography then after reading this the truth and solid understanding comes to people’s mind about this treaty in his own words. He writes:
“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.”
In addition it is also clear that King AbdurRahman Khan consented to the Durand Line pact in consideration of increase in British aid from 1.2 million to 1.8 million Indian rupees. The fact is tallied in article seven of the very agreement itself. Not only this, but the treaty was reconfirmed several times by following Afghan administrations. King HabibUllah Khan ratified in 1905, through Dane Treaty. After the 3rd Anglo-Afghan war in 1919, King Amanullahsigned a peace treaty with Britain in Rawalpindi. The treaty, famously known as Treaty of Rawalpindi termed all earliertreaties between the two borders as null and void, was containing the 1.8 million yearly payment and delivery of weapons. However, the treaty recognized the Durand Line as the legitimate and permanent border between Afghanistan and British India through its article 5. It states:
“The Afghan Government accepts the Indo-Afghan frontier accepted by the late Emir [Habibullah].”.
The second objection on the agreement is that the treaty collapsed with the collapsed of British India as Pakistan is not a ‘successor state’ but rather as a ‘clean state’, which must renegotiate a new border settlement with Afghanistan.
However, as per International law, Pakistan clearly qualifies as a successor state, defined as ‘the State which has replaced another State on the occurrence of a succession of states,’ a position legalized by the Indian Independence Act 1947 and the United Kingdom Government in 1950.
Moreover, customary international law as codified in Article 11 of the Vienna Convention on the Succession of States says that ‘a succession of states does not as such affect (a) a boundary established by a treaty (b) obligations and rights established by a treaty and relating to the regime of a boundary. Afghanistan has been prevented from unilaterally renouncing the Durand Line Agreement due to the international law principle of utipossidetisjuris, directly applicable in the context of decolonization, which provides that newly decolonized states should have the similar borders that their previous dependent area had before their independence.

Therefore, Pakistan, according to law, inherited the Durand Line Agreement as the successor state to British India and is under no legal obligation to renegotiate or conclude a new border agreement with Afghanistan.
The third objection on agreement is that some Afghans believe that the Validity Period of the Durand Line has Expired in 1993 as it was meant to be valid only for 100 years from the date of endorsement just like Hong Kong agreement this narrative is also a false one as the Hong Kong agreement had an clear clause of 100 year expiry date while the Durand Line agreement had no such mention of an expiry date.
Last but not least objection from the opponents of the Durand Line also contend that the Agreement was between Amir AbdurRehman and the British India Government, and hence it was vitiated by the death of the Amir. ”Nevertheless, as the head of state of Afghanistan, deriving his powers from traditional tribal consensus, the Amir was flawlessly acceptable under international law to enter into treaties on behalf of his people with legal obligations attached to the Afghan state” said Dr Rashid Ahmad professor at NDU Islamabad
Moreover the international community and international organizations, including the USA, UK, United Nations (UN) and Islamic states recognize the Durand Line as a permanent international border between Afghanistan and Pakistan
Among the factors responsible for expansion of the dispute on the Durand Line is the lack of information available to the common Afghan. Afghan intellectuals and scholars have tended to blindly backing the policy of previous governments, unaware of whether or not it is rational. In fact it is in the best interest of Afghanistan to accept the agreement. The current narrative of Afghan government is proving counterproductive for them and over the last several decades Afghanistan has suffered exceptionally from the Durand Line tensions. Recognition of the actuality of Durand Line could be a main step to sustainable trust building between Afghanistan and Pakistan which lead not only both country but whole region to peace and stability.

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