Monday, 10 April 2017

The Durand Line argument – Legal ramifications

The Durand Line argument – Legal ramifications
Authored by – Afzal Khan Shinwari, LLB (London), MBA (LUMS)

Since the recent comment by an Afghan MP with regards to the Durand line, the age old issue has once again become a topic of hot debate. I am going to share my thoughts with regards to the legal position of the Durand line, and invite genuine counter arguments with respect to its legal grounds (and no rhetoric or political point scoring), to help point in the right direction.

FIRST ARGUMENT: 'Pakistan not a successor state' but a 'clean state'.

Under the British 'Indian independence order 1947', Pakistan succeeded to all rights and obligations of British India. Article 62 of the Vienna convention on the law of treaties says:

'...whenever a new country is carved out of an existing colonial dominion, all int'l agreements & undertakings .... would be transferred to the new independent national government'.

The Vienna convention also goes on to say that a state is a successor state if it:

'...has replaced another state on the occurrence of a succession of states'.

Article 11 of the convention goes on that:

'a succession of states does not as such affect (a) a boundary established by a treaty or (b) obligations & rights established by a treaty & relating to the regime of a boundary'.

Furthermore under the International Court of Justice (the ICJ) dictum of 'uti possidetis juris' Afghanistan is legally prohibited to unilaterally change its border. This dictum was upheld in particular to 'transform former admin borders created along the colonial period into international frontiers'.

Additionally, this also finds baseless the argument that due to Pakistan's violation of the border in the 1950s the Durand line agreement was found in breach, and therefore no longer valid. As such, the Durand line had become a dejure international boundary upon succession of the Pakistani state as a former colony (as discussed above) for all purposes of International Law.

SECOND ARGUMENT: the Durand agreement was time bound to a 100 years.

There is no clause within the whole actual agreement that mentions a time line. Neither is this agreement similar to the convention for extension of Hong Kong territory, expressly or impliedly.

THIRD ARGUMENT: the Durand agreement was a personal agreement between Amir Abdur Rehman and the British.

The Amir derived legitimacy as the head of the state of Afghanistan through tribal consensus through the traditional jirga institution. Further, the agreement was presented by the Amir at a darbar of reportedly over 400 tribal chiefs. Why would he require the need for that if it were a personal agreement? Alternatively, if he had been acting in his personal capacity, then by that grounds all agreements made by the Saudi Kingdom also personal between the house of Saud and the International community?
The Amir then goes on in his memoirs to say that 'it was necessary to mark out the boundaries between my dominions and those of my neighbours, for the safety & protection of my kingdom'. This also removes doubts of any possibility of duress in the agreement.

FOURTH ARGUMENT: The Agreement was not a bilateral treaty.

This argument is closely related to the third argument above, and is countered based on the same grounds given for the third argument. Additionally, the agreement was acknowledged by the Amir’s son during his dealings with the British, until his death in 1919. The 3rd Anglo-Afghan war broke out in 1919, which ended with the Rawalpindi (1919) and Kabul (or Anglo-Afghan) (1921) treaties. Article 5 of the Rawalpindi treaty said that 'the Afghan government accept the indo-Afghan frontier accepted by the late amir [under the Durand line Agreement]'. This position was further referred to in the Kabul treaty and in future correspondence between the Afghan and British Indian dominions. A point of note here is that the Afghan government did dispute some territories, including parts of mohmand & waziristan agencies, and some adjoining parts of Baluchistan, but never mentioned rescinding the whole agreement. The first time that happened was in 1947, and in the 1949 loyal Jirga held by Afghanistan.

FIFTH ARGUMENT: The Durand Agreement never a boundary treaty but treaty for easement rights.

Again, the whole document has no mention of establishing easement rights. Article 4 of the agreement said 'the need for demarcation along the frontier to be carried out by respective British and Afghan Commissioners'. Likewise article 6 clearly talks about 'demarcating the boundary line'. From the whole text of the agreement, it can be clearly seen that the objective was to define the boundaries between the states. The easement was therefore a non-treaty right.

Furthermore, easement rights were meant to be exercisable only by the tribes affected by the boundary and not by other citizens of Afghanistan or British India, thus preserving the nature of the line as a boundary.

SIXTH ARGUMENT: 'the Sphere of Influence' argument

A popular argument put forth is that the British meant the boundary only to limit their ‘sphere of influence’ in Afghanistan. If that had been the case, then why had the British not mentioned including a ‘second boundary’ for that of India (which would effectively define the buffer area that the British purportedly wanted to influence)?

Articles 2 and 3 of the Durand line agreement clearly lay down the 'no interference' policy across the boundary, which is clearly in line with practice of border control. No text within the doc can be found with regards to ‘spheres of influences’ to be maintained by both sides. Notwithstanding and alternatively, even if it were implied, The 1947 act and the Vienna conventions grant the Durand line an international boundary status for all purposes of international law.

The above analysis is notwithstanding the genuine rights of the tribes to move freely across the border, albeit regulated, given the security concerns of both states. Genuine legal arguments invited.