|Pak-Afghan Relations: The Durand Line Issue|
|Written by Ahmad Shayeq Qaseem|
[The Durand Line remains a contentious issue in Pak-Afghan relations, since the birth of Pakistan in 1947. The people and various governments of Afghanistan have raised, from time to time, a number of questions on the acceptability of the Durand Line agreement, signed between British India and Afghanistan in 1893. The roots of the issue, besides other factors, however, lie in lack of proper information and misunderstanding of related documents. Historical documents signed, ratified and endorsed by successive Afghan regimes negate the claim that validity of agreement has expired. Research also proves the view of the Line being an imposed border as dubious. International law does not support the stand that the agreement is not enforceable in post-British period. Promoting better understanding of the issue among Afghan government, civil society and people may lay the foundation of warm relations between the two countries that both need. Pakistan government should also try to address the genuine apprehensions of Afghan brethren. – Editors]
Afghanistan’s stability is, to a considerable extent, correlated with the nature of its relations with neighboring Pakistan. Afghanistan and its foreign allies are fully conscious of the fact that, without sincere and multidimensional cooperation from Pakistan, eradicating the Taliban and al-Qaeda from the region would be unimaginable. On many occasions, the Afghan leadership has accused its neighbor of harboring the Taliban resistance; and encouraged the international community to participate wholeheartedly in eliminating the roots of terror in Pakistan. Each time Pakistan has responded by rejecting the Afghan accusations. Khurshid Ahmad Kasuri, Pakistan’s minister of foreign affairs, has pointedly asked his Afghani counterpart, Dr. Spanta, about the reasons for the accusations, saying: “Could you please figure out Pakistan’s interest in deliberately destabilizing your country?” Since this meeting with Dr. Spanta, Mr. Kasuri has referred to the exchange at numerous international forums, as if his asking the question simply ended the argument. In fact, the question whether Pakistan has any motive in destabilizing Afghanistan, in the current scenario or otherwise, is a serious and important point that could be discussed in depth in terms of the advantages and disadvantages for Pakistan of continued instability in Afghanistan.
What is very clear is that relations between the two states have been tinged with hostility ever since Pakistan became an independent state in 1947. There are mainly two interrelated, historical reasons for this: the problem of the “Durand Line” — the shared but disputed border of the two countries; and Afghan support for the “Pakhtoonistan” movement in Pakistan’s North West Frontier Province (NWFP).
During the initial decades after Pakistan’s creation, the Pakhtoonistan issue was the mainframe of Afghan foreign policy. Indeed, many scholars hold that its fanatic support for the Pakhtoonistan movement in Pakistan caused Afghanistan’s economic and political dependence on the Union of Soviet Socialist Republics (USSR) in the 1950s-1980s, resulting in its invasion in 1979.
In recent years, whenever the Durand issue has been raised, the administration of Afghan President Karzai has avoided comment, favoring a resolution of the issue through parliament. President Hamid Karzai, in an interview to Radio Liberty, has said that “The Afghan nation, and not Hamid Karzai, would have to decide the issue of Durand Line.” In this manner, Afghanistan successfully avoids reigniting a historical conflict with Pakistan, while withholding acceptance of the Durand Line as a valid international border. Notably, referring the Durand Line issue to the Afghan parliament does not guarantee a peaceful solution to the conflict. In 1949, the Afghan parliament issued a resolution condemning the covenants signed by Afghanistan and British India and declaring the Durand Line a bogus and fictitious border. Although the country’s conditions have changed considerably since then, it remains uncertain how the parliament would view the issue today. It does seem, however, that, notwithstanding the 1949 resolution by its parliament, the Afghan government regards the Durand Line conflict as unsolved: why else would Mr. Karzai refer it to the parliament a second time?
According to some experts, continuing misapprehensions about the Durand Line count amongst the issues that could complicate dealings further in the already unfriendly and mistrustful environment that characterizing the war on terror.
A major reason for the continuation of this conflict is the ignorance and unawareness of some leaders as well as the masses of both countries about the general aspects of the original Durand Line agreement. Since this border conflict is a very sensitive issue, it has not been discussed in full detail. Although various governmental archives exist in Pakistan that might shed light on it, including with the Ministry of Foreign Affairs, many are classified; thus, much of the existing information is inaccessible, even to researchers. The Afghan constitution safeguards the right of access to information for all its citizens. It, however, puts the condition that national security and citizens’ rights are protected.
Another factor protracting the confusion regarding the Durand line is the biased attitude of Afghan and Pakistani writers on the subject, who tend to defend the stands of their respective governments. These defensive stances, and the aims of proving predetermined results and conclusions, have compelled writers to use secondary or tertiary documents and resources in their research. It is rare to find any research paper based on primary resources. In some cases, writers even resort to presenting false information to prove their point of view.
This article aims to facilitate understanding of the Durand Line conflict in the light of primary sources related to the issue. It focuses on the four key objections that Afghanistan has historically raised against the Durand Line, i.e. that its validity period has expired; that the agreements pertaining to it collapsed when the British transferred powers to Pakistan; that the agreements were forcibly imposed upon Afghanistan; and that it is morally unjustifiable. It is hoped that this effort will help, in however a small way, in the building of understanding and friendship between the two neighboring, and culturally tied, countries.
The Validity Period of the Durand Line has Expired
The majority of the Afghan population upholds the belief that the Durand Line agreement signed by British Foreign Minister for India Sir Henry Mortimer Durand and Afghanistan’s King Abdur Rahman Khan was meant to be valid only for 100 years from the date of endorsement. If this were true, it would mean that the agreement ended in 1993. This presumption is so deeply engraved in the political psyche of the Afghan masses that even some of the eminent figures in Afghan politics have been unable to deny it. Nevertheless, neither the Afghan government, nor the most active proponents of this view have ever presented any overt instrument proving their claim. Nor do we find, upon examining the relevant documents, i.e. the Durand Line agreement and the rest of the documents ratified until 1896 by the respective councils for determination and demarcation of the British-Afghan border, any provision restricting the term of the agreement to 100 years. It is indeed a mystery how this opinion could spread across the country without being questioned at all.
What is true, however, is that the validity of the Durand Line agreement was initially restricted to the lifetimes of the Afghan rulers who ratified it. In this respect, the initial period of its validity was even shorter than a hundred years. This restriction validity is not expressed in any provision of the agreement. However, it is mentioned in some historical instruments related to the Afghan-British relationship. These tell us that, after the death of King Abdur Rahman Khan, the British Viceroy Lord Curzon invited his son and successor, King Habibullah Khan, to pay a visit to India and discuss matters of bilateral interest with the British Indian authorities. At that time, “bilateral interest” revolved around the existing agreements between Afghanistan and India, specifically, the issue of borders’ demarcation.
King Habibullah Khan was unwilling to undertake such a visit. He said that his visit to British India is not required because he was aware of the agreements ratified by his father [King Abdur Rahman Khan] and would enforce these agreements. The British India considered his response as unsatisfactory. The Viceroy stressed the necessity of Habibullah Khan’s visit to India, stating that the first ratification of the agreement was restricted to the person of Abdur Rahman Khan, and the newly enthroned king had to renew the agreement in order for it to be enforceable. Thus, the British Indian authorities’ position was that the Durand Line agreement was enforceable only during Abdur Rahman Khan’s life and that the document had lost its value after his death.
Subsequently, in order to compel the new Afghan king to pay the visit, British India refused to fulfill the obligations created by the Durand Line agreement, i.e. pay a sum of 1.8 million rupees in Afghan aid and allow transit of military equipment through Indian territory. Although King Habibullah Khan still declined the invitation, he promised to welcome Sir Louis W. Dane, the British Minister for India, on his visit to Kabul to discuss matters of bilateral interest.
Sir Louis Dane arrived in Kabul in late 1904 with the draft of a new agreement between the two states. King Habibullah presented his own version of the agreement, which affirmed and extended the previous agreements. Consequently, [lengthy discussion on contents of the agreement] an agreement, popularly known as the “Dane-Habibullah agreement,” was signed between the two states on March 21, 1905. In it, the British government agreed to resume the release of 1.8 million rupees in aid, including the previous installments that had been withheld, and permitted the transit of military equipment to Afghanistan through India. Afghanistan’s commitment was expressed in the following manner:
“His said Majesty [Habibullah Khan] does hereby agree to this that, in the principles and in the matters of subsidiary importance of the treaty regarding internal and external 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.”
Thus, the Durand Line agreement, after losing its validity at the death of King Abdur Rahman Khan, retrieved it in 1905 and continued to be operative until the third Anglo-Afghan War in 1919.
Following the 1919 Anglo-Afghan war, a peace delegation headed by Interior Minister Ali Ahmad Khan visited Rawalpindi and signed a “peace agreement between Great Britain and Afghanistan” on August 8, 1919. Through this treaty, Great Britain recognized the independence of Afghanistan — nevertheless, they called him the encroacher — and some of the existing agreements, including payment of aid to Afghanistan and the right of transit for military equipments between the two states, were declared null and void. The validity of the Durand Line, however, was protected through article 5 of the treaty, which stated:
Thus, for the first time, recognition of the Durand Line by the two states as an international border between Afghanistan and British India was set free of any personal undertaking by the kings, and both states agreed to it as a permanent border between them.
However, the Rawalpindi agreement, as its title suggests, was primarily intended for commencing peaceful ties between the two states. Article 4 of the agreement provided that if Afghanistan acted in good faith, then, after a probation period of six months, Britain would send another delegation to Afghanistan to negotiate the establishment of friendly political relations on stronger foundations. Negotiations commenced again and Sir Henry R. C. Dobbs visited Kabul in January 1921 as a special British envoy to Afghanistan. Eventually, another agreement, titled “Agreement for establishment of friendly commercial relations between Afghanistan and Great Britain,” also called the Kabul Agreement, was concluded and signed by Sir Dobbs and by Mahmood Tarzai, representing the Government of Afghanistan, on November 22, 1921. The ratified instruments were exchanged in a meeting convened in Kabul on February 6, 1922 between representatives of both states.
The Kabul Agreement of 1921 superseded the Rawalpindi agreement of 1919, but recognized the Durand Line as an international border of Afghanistan. It stated, in article 2:
“Respective parties recognize Indian-Afghan border as was recognized by article 8 of Rawalpindi agreement 1919”.
“In response [to your notification], I am proud to officially confess that our position about both the agreements [agreement of 1919 and trade agreement of June 1923] enjoy complete validity and are enforceable with full force”.
According to some scholars, recognition of the international border between Afghanistan and British India was co-related with the independence of Afghanistan, which King Amanullah Khan intended to secure by any means.
It is worth mentioning that a letter of Special Representative of Great Britain addressed to the Afghan foreign minister is annexed to the original 1921 agreement which implies that Afghan interest in the tribal situation across the Durand Line is natural. Some scholars believe that the letter, at the very least, provided an excuse for King Amanullah Khan to interfere in across-border affairs.
It may be concluded that the period of the Durand Line agreement was initially much shorter than a hundred years, and that it was, however, extended, at least once by King Habibullah Khan, twice by King Amanullah Khan, and once by King Muhammad Nadir Khan. These extensions liberated the agreement from any limitation to the life or throne of any king and thus granted it permanence.
The Durand Line is an Imposed Border
A second major objection of the Afghan masses and some scholars to the Durand Line is that it was imposed on the country. Being an imposed agreement, it has no value for present-day Afghanistan.
According to some Afghan historians, Great Britain coerced Abdur Rahman Khan into signing the Durand Line agreement through threats of war and economic blockade, and therefore the king was neither allowed to call a Loya Jirga (Grand Assembly), nor could he consult with or gain the confidence of his state authorities. However, some foreign historians reject this contention, and hold that the king consented to the agreement wholeheartedly; due to the fact that British India was in a state of successive advance towards Qandahar and Kabul through construction of railway lines and highways, yet demarcation of border hindered or stopped that advance. In addition, it is clear that King Abdur Rahman Khan consented to the Durand Line agreement in consideration of increase in British Afghan aid from 1.2 million to 1.8 million Indian rupees. The details of this fact are enumerated in article 7 of the agreement itself.
Scholars who reject that the agreement was imposed also cite entries from the diaries of King Abdur Rahman Khan in which he proudly appraises the Durand Line agreement. Moreover, according to some documentary evidences, King Abdur Rahman Khan convened a gathering, apparently for his state officials and the elders of Kabul, where he delivered a speech describing the Durand Line agreement as one of the major achievements of his era. At the end of his speech, a memorandum was read out on behalf of the audience approving the Durand Line agreement. However, Afghan historians dismiss this gathering, the speech of the king and approval of the audience as mere drama orchestrated by design. Some also believe that the memoirs of the king in respect of the Durand Line agreement are forged.
Whether or not the Durand line agreement was imposed on Afghanistan is certainly an issue worth further discussion and argument. However, while one may admit the contention to be just and true, it remains insufficient to negate the status of the Durand Line as an international border between Afghanistan and Pakistan. This is due to two factors. Firstly, contrary to popular opinion, the Durand Line agreement of 1893 is not the sole point of reference in border evaluation. At least other four agreements (of 1905, 1919, 1921 and 1930), which had the consent of both sides, must be consulted. Clearly, Afghanistan cannot claim that all of the later four agreements were concluded in a coercive environment, especially the Kabul 1921 agreement for establishment of friendly commercial relations, which it not only signed but ratified in 1922, and under which instruments were exchanged by the representatives of both states in Kabul.
Secondly, even a cursory look at the history of the political establishment of different states shows that some external pressure has existed in the demarcation of the borders of each state. If we choose to regard external pressure as a basis for declaring borders illegitimate, and thus give a unilateral right to each party to oppose the status of its international border, the current international regime for governing borders will collapse, especially given the fact that numerous states wish to extend their borders to bring more territories under their control.
It is noteworthy that not a single state, including India and the former Soviet Union, supported Afghanistan’s opposition to the status of the Durand Line. 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.
Durand Line Agreements Collapsed with British India
The collapse of British India in 1947 paved the way for Afghan revolt against the legitimacy of the Durand Line. During a meeting with the British Secretary of Foreign Affairs on July 31, 1947, Afghan Prime Minister Shah Mahmood Khan declared that all agreements in respect of the Indo-Afghan border had been concluded with British Indian authorities, and therefore all of them would be null and void after British India ceased to exist and power was handed over to the new state of Pakistan. This official viewpoint of the Government of Afghanistan was announced before August 14, 1947, the day Pakistan attained independence.
Consequently, Afghanistan’s relations with Pakistan were hostile since the latter’s birth as a Muslim state. As mentioned earlier, Afghan foreign policy was based on denunciation of the Durand Line and strict support of Pakhtoonistan. For decades, the local media, Afghan consulates and embassies all over the world strived systematically to disseminate this official viewpoint.
However, international law does not support this stand of the Afghan government. 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 cannot 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 does not affect the legality of the border.
However, according to article 7 of VCSSRT, the treaty is not enforceable retrospectively. Now, VCSSRT was drafted in 1978 and did not enter into force until 1996, when the required number of states announced its ratification. Thus, it came into being several decades after Pakistan’s creation. Moreover, Afghanistan is not a signatory to VCSSRT. These points raise the question whether the international treaty applies to the Durand Line issue.
As far as Afghanistan’s not being a signatory to the treaty is concerned, it is immaterial whether the country announces its succession or not. VCSSRT was ratified by a huge number of states — including Pakistan — and achieved enforceability in 1996. Moreover, regarding issues that are beyond its scope, the preamble to VCSSRT explicitly states that such issues will be dealt with in accordance with customary international law. Since customary international law is in any case a source of international treaty law, the argument that Durand Line issue predates the VCSSRT and is therefore out of its scope would lead to the same results: international law does not support Afghanistan’s stance that the Durand Line becomes invalid after the creation of Pakistan.
The Durand Line restricts the movement of local people who have lived in the area for centuries, and who did not previously face any obstacles in traveling to and from the areas now separated by the Durand Line. Successive governments in Afghanistan and some intellectuals denounce the Line because it bars tribes of the same race, language and culture from intermingling, and because, in their opinion, it has given rise to disunity among tribes and families. In this sense, one might say, they object to the Durand Line on moral grounds.
Contrary to the opinion of critics of the Durand Line, it cannot be regarded as the sole factor responsible for disunity among the local people. Indeed, tribes and families on both sides of the Durand Line have engaged in rivalries for a long time. Historically, the people of western Afghanistan have been politically inclined towards Iran, while eastern races and tribes have leaned towards India. (Events of the second half of the eighteenth century comprise an exception and are beyond the scope of this discussion.)
The credibility and accuracy of arguments delivered by scholars for and against the Durand Line may be judged by the reader himself.
If the decision is referred to international law, there seems little chance that the Afghan government would receive support for its “moral wrong theory.” According to customary international law, two factors would have to be considered in deciding whether the moral criticism of the Durand Line is valid: firstly, Afghanistan’s historical and current approach towards its borders with other states; and secondly, the existence or otherwise of other international borders that are similar to the Pak-Afghan border in that they pass through populations of the same culture, language and race.
One may ask how these two factors are linked with Afghanistan’s “moral” stand regarding the Durand Line. The answer may be explored in the nature of the principles of customary international law. This law is extracted from the continuous, persistent and uniform behaviors of states in respect of issues of the same kind over a period of time. Thus, how Afghanistan views its borders with other states, and how the majority of states with borders similar to Durand Line behave would be considered legal norms or principles in the light of which the credibility of Afghanistan’s moral criticism of the Durand Line may be measured.
Almost all Afghan borders were demarked in the second half of the nineteenth century. Among them, the Durand Line is the only border in respect of which the king of Afghanistan was taken into confidence. The borders with Tsarist Russia and China were determined through dialogue between Britain and Russia; Afghanistan was not even allowed to take part in these consultations. Similarly, the Afghan-Iran border was fixed through dialogue between Iran and Britain.
Thus, when Afghanistan questions its border with Pakistan on moral grounds, international customary law requires it to implement the same criterion with respect to all of its other borders as well. However, despite the fact that Afghanistan was not even present when the destiny of its borders was determined, it accepts these borders as legitimate. This inconsistency weakens Afghanistan’s moral claim.
It is also important to note that Afghanistan’s northern borders also divide and disunite a population of the same language, culture and race. If the reasoning of former Afghan governments is accepted, then the downfall of the Soviet Union should have the same impact on these borders as the downfall of British India had on the Durand Line. Is Afghanistan ready to adopt the same policy in respect of its borders with the republics of Central Asia?
As far as the second factor, i.e. other states’ practice, is concerned, there are numerous borders between states that divide people of the same race, culture and language. If each state started opposing its border based on the above claim and demanded independence, or concatenation with the territory of its neighbor, or the contemporary international order would collapse.
However, the fact is that Afghanistan has neither posed a question regarding its northern borders, nor would those states agree with the Afghan position and point of view. Consequently, international customary law, derived from states’ practice — including Afghanistan’s own practice in respect of its northern borders — contradicts Afghanistan’s stand on the Durand Line. The states’ general opinion favors Pakistan over Afghanistan in this matter.
The Durand Line is the only Afghan border demarked through bilateral understanding with its ex-neighbor, and yet the only border that Afghanistan is not willing to recognize. Under international law and the international legal regime, Afghanistan’s objections to the Durand Line are unlikely to find any significant support.
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 support the policy of former governments, unaware of whether or not it is rational. According to some scholars, Afghan governments have adopted this policy deliberately, to indulge the masses with an imaginary enemy and divert their attention from internal issues. Consequently, due to trust and confidence of people in their leaders, intellectuals and media besides the extension of the Durand Line issue; they have inferred that the Agreement is free from any legal and moral justification. Thus, even if it desires friendly relations with Pakistan, the Afghan leadership is unable to take any steps in this direction owing to public opposition.
In fact, this hesitation to diverge from the traditional acrimonious stance against Pakistan is discernable in all spheres of leadership in Afghanistan, whether the leaders represent the Afghan government, civil society or the public. It seems as if each of these elements of Afghan society has immured itself within a tight circle of thought, afraid of condemnation from the other two elements if they violate the circle by demanding a peaceful and realistic solution of the issue. What is certain, meanwhile, are the negative implications of the unstable relationship with Pakistan, which may be observed in different spheres of life in Afghanistan.
If Afghanistan sincerely intends to improve its relations with Pakistan, it will have to break these circles. The least it could do is make the thus-far confidential instruments relating to the Durand Line public to help people to understand the real situation. Later on, Afghanistan could open a chapter of understanding with Pakistan in a relatively friendly environment that is free of irresponsible statements and lack of information leading to public pressure and finally reach a permanent solution to the Durand Line issue.
Obviously, continuation of tense relations between Afghanistan and Pakistan will not favor either country. Besides, both of them wish to enjoy peaceful and friendly relations. As far as, Afghanistan’s national interests are concerned, provisions exist in each agreement relating to the Pak-Afghan border that favor Afghanistan. For example, each agreement obligated British India to allow transit of goods from its ports through its territory to Afghanistan. It is imperative that Afghanistan understand that such a permission for transit through another state is not, as it seems to believe, a right but an incentive: according to international law, under the principle of sovereignty, every state exercises complete authority over its resources, natural or otherwise, and every act challenging the sovereignty of a state is illegal and condemnable. The present strategy of Afghanistan to secure more concessions from Pakistan such as transit trade, considering the same as its “rights”, seems to be less effective. It would be better for the country to improve its relations with Pakistan to a level where Pakistan’s national interests, particularly economic, converge with those of Afghanistan.
Notably, it is not just the Durand Line issue that needs to be solved to normalize relations between Pakistan and Afghanistan. In the decades since the Soviet invasion of Afghanistan, the interests of Pakistan’s foreign policy in that country have expanded further than the former Pakistani leadership could even have imagined. On the other hand, solution of the issue never means that an iron wall has been established between both the countries as to divide the alike-cultured masses. To create such an iron wall would neither be possible in the current age, nor in accordance with Afghanistan’s regional economic programs of Afghanistan.
Even though it is not the sole source of contention, however, efforts for the resolution of the Durand Line issue could lay the foundation for establishing a peaceful and brotherly environment between the two states leading to more stable relations between them.
In the required efforts to resolve the Durand Line issue, it is obvious that the parliament of Afghanistan would be the proper forum for discussing and deciding, as for all other matters of national importance. What is even more important in this context, however, is that the people’s representatives know the complete facts of the issue before it is taken to the parliament’s floor. Failure to apprise the Afghan leaders and people of the facts would once again mean irresponsible statements from all quarters, including the Afghan parliament, and a bleak future for relations with Pakistan.
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Durand Line Agreement
Agreement between Amir Abdur Rahman Khan, G. C. S. I., and Sir Henry Mortimer Durand, K. C. I. E., C. S. I.
Kabul, November 12, 1893. H. M. Durand,
The writer visited Afghanistan from November 2005 to February 2006 and met numerous leaders and government representatives. Very few of these people could have seen or read the Durand Line agreement. Similarly, some Pakistani leaders are also ignorant of the agreement and its provisions; for instance, they have the impression that the agreement was valid only for 100 years and needs to be renewed. See Dawn, September 2, 2005, “Governor Urges Federal Govt. to Renew Durand Line Agreement.”
Pazwak 1960. The 1949 resolution of the Afghan Parliament that denounced the Durand Line as an “imaginary line” was partly informed by the assertion that the Durand Line agreement had become extinct after British India ceased to exist.