The Durand Line and The Implication of International Law

Nabi Habibi, B.A., M.A.

Canada Based Afghan Researcher

www.pashtu.ca

A secular Afghanistan was punished by Muslim countries due to the rise of the so called “Islamic State” of Pakistan. When Pakistan prominence came into play, the Arab, Muslim and Western world were aligning with the newborn Pakistan; happy for Indian Muslims to be having a separate state. Consequently, Afghanistan (who once brought a glory to the Muslim world) was unceremoniously herald as becoming a pro-communist state due to the political circumstances at that time. It was tough choice for Afghanistan and it was partly because of the unacceptable demands of the superpowers. Pakistan remained Machiavellian and hypocritical in her relations with Afghanistan, who once saved Pakistan from Indian attacks. Moreover, if Afghanistan would have been as Hippocratic as Pakistan towards it, together Afghanistan and India could have divided Pakistan in to pieces, long before Pakistan would even have stood on her feet. Should Afghanistan have had accepted the Indian deal, there would have been no Pakistan on the map of the earth. Today we would have not fought for the Durand Line but rather we would have a Greater Afghanistan. In return to the Indian deal, thousands of Afghans stood behind Pakistani cause and they went to the front lines to fight for a new brother Pakistan. Not only that, they fought in the front lines and helped the Punjabis to regain their Punjab from the Indians. Thousands of Pashtuns died for Muslim Punjab. Later Pakistan needed to heal; Afghans helped Pakistan through their healing process. Nevertheless, the Russian invasion and the civil wars resulted that Afghan Nation could not speak about the Durand Line issue. As a result, the line remained unresolved till today. This article will put some lights on the history and legality of the treaty from international law perspective.

The Durand Line Treaty ( Nov 12 1883(

The Durand Line refers to an imaginar y border of about 2700 KM between Afghanistan and British India. It was first signed on Nov 12, 1893. The treaty was originally signed as a form of an understanding between Afghanistan and British India. Due to weak political situation in Afghanistan, the so called Pakistani academics produced number of small forfeit articles and video conferencing justifying the Durand line to be an accepted international line between the two countries. Pakistani government officials also claimed that the treaty was signed between the two parties (Afghanistan- British India) has been an official document and therefore, the treaty was considered an international document. They also refer to the International Court of Justice (ICJ) claiming it gave them the authority to hold to the treaty, at least on papers. However, these so called Pakistani scholars neglected that in May 06- Aug 08-1919, Afghanistan fought third Anglo-Afghan after that so called agreement or treaty. Thus third Anglo-Afghan war automatically cancelled all the treaties between Afghanistan and British- India. War means dishonouring any treaty between the two opponents. Having in mind that, with the change of each Amir or King in Afghanistan, the British tried to renew the treaty each time and they offered more financial rewards to convince the Amir’s to continue and hold to the treaty. It was very important for the British to keep their double buffer against Russia.

Nevertheless, Pakistani academics, politicians, and scholars are responsible for misleading their own nation with regard to the Durand Line issue. Similarly, Afghans should also learn that the treaty was not for one hundred years, it was expired right after its creation. Pakistani societies do not know much about the ground reality of the border too, for which I encourage them to read more. [i]

Let us have in mind that the 1921, Anglo- Afghan memorandum of understanding was another outcome of peace negotiations following the Third Anglo-Afghan War. It was due to the cease-fire of June 3, 1919, where negotiations begun at Rawalpindi between an Afghan mission headed by ʿAlī-Aḥmad Khan, commissary for home affairs, and the British delegation headed by Sir A. H. Grant, foreign secretary to the government of India. In the resulting memorandum of understanding of Rawalpindi, which was concluded on August 8, 1919, Afghanistan ceded the privilege of importing arms and ammunition through India; the British subsidy was discontinued, and funds granted in appreciation of Afghanistan’s neutrality during World War I were confiscated. [ii]

Yet the Afghan frontier was to be demarcated west of the Khyber, and a memorandum of understanding of friendship was to be concluded six months after Afghan government had shown itself “sincerely anxious to regain the friendship of the British Government.” But the key point appeared in a letter, attached to the original treaty, where Grant acknowledged Afghanistan’s independence, stating that “. . . the said Treaty and this letter leave Afghanistan officially free and independent in its internal and external affairs” (L. W. Adamec, Afghanistan, 1900-1923, A Diplomatic History)[iii].

When negotiations were resumed in April 17- July 18, 1920, at Mussoorie, Sir Henry Dobbs, India’s foreign secretary, and Maḥmūd Khan Ṭarzī, the Afghan foreign minister, sought to conclude an “exclusive” or “Neighbourly” treaty. Britain was willing to recognize Afghanistan’s independence but hoped to limit Soviet influence, and Afghanistan was willing to conclude an alliance with Britain if support could be obtained for the liberation of Bokhara and Khiva from Soviet control. But Britain was not yet reconciled to granting Afghanistan its independence, nor were the Afghans contritely suing for friendship, and after three months of unsuccessful discussions, the two parties were unable to come to an agreement. Negotiations were resumed in Kabul on January 10, 1921, foreign secretary Dobbs later recapitulated them in four stages. During the first stage (January 20 to April 9 1921), the Afghan government demanded territorial concessions based on the Afghans’ right of self-determination in the Northwest Frontier Province of India. They also demanded payment of the “4 crore and 36 lakhs” of rupees owed by India in exchange for Afghan neutrality during World War I, and they insisted on a revision of the Turkish peace treaty. The British were willing to provide most of the funds but insisted on the exclusion of Soviet consular offices from south-eastern Afghanistan. During the next stage (April 9 to mid July), Afghanistan demanded an offensive-defensive alliance with Britain in exchange for the exclusion of Soviet consular offices from south-eastern Afghanistan; at the same time, the Afghan government ratified its treaty of friendship with the Soviet Union (April 20, 1921). [iv]

During the third stage (July to September 18 1921), the London government protested the conclusion of a treaty of friendship between Italy and Afghanistan (June 3) and indicated that Britain was about to conclude an agreement with Afghanistan which would “admit the superiority and predominate political influence of Britain.” At this point, the Afghans began to doubt British sincerity, and they were further antagonized when Lord Curzon, secretary of state for foreign affairs, rebuffed the Afghan mission to Europe, stating that the negotiations in Kabul were the affairs of Afghanistan and India. During the last stage (September 18 to December 8 1921), the British mission made preparations twice to leave Afghanistan, but both parties finally reached an agreement November 22, 1921. There was no formal treaty of friendship, since outstanding issues could not be resolved, but the treaty did acknowledge Afghanistan’s independence, except the boundary delimitation agreed upon at Rawalpindi, established commercial relations and postal arrangements, and provided for the exchange of information prior to military operations among the frontier tribes.[v] Since the creation of Pakistan, this line is said to be the rote cause of the political instability in that region.

Implication of International Law to the Durand Line

Before 1919, Afghanistan was believed to be politically dependent state. Therefore, the Durand line and any other treaties were automatically considered nullified and could not to be treated as treaties because international law could only hold independent states accountable for their agreements. All bilateral treaties could be executed and respected as treaties signed by to two or more “equal” independent states. Therefore, the line remained not only invalid but also the treaty remained an imaginary one. Having in mind that the Anglo-Afghan Treaty of 1921 was entirely not satisfactory to either Britain or Afghanistan and it was considered to be a temporary arrangement. It was to remain in force for at least three years and then until one year after cancellation by either of the contracting parties. For lack of an alternative, the treaty remained in force until India gained its full independence in 1947. [vi]

Toward the end of 1904 Sir Louis W. Dane, British India’s foreign minister, approached Kabul with new proposals which contained the same contents as the former documents i.e. the Durand Line, annual payments to the King, etc. The foreign minister of British India explained that though Abdur Rahman’s as a successor was willing to accept his father’s past deals. Britain was not willing to honour their promises and so does the death of the former king had nullified the original treaties. On March 21, 1905 Amir Habibullah had signed the documents and everything was re-instated. This was come to known as Dane Treaty which stated “In the words of His Majesty Amir Habibullah Khan: I hereby honour all the articles of Durand Treaty including all the other agreements and pacts that my late father signed with Britain’s representatives. I’ll act according to them and I’ll honour the pact of the Durand Line now and in the future.” The annual payments and weaponry was resumed and these new documents were valid until Amir Habibullah Khan’s assassination in 1919.[vii]

Having in mind that with the change of every Afghan ruler, British India tried to renew the treaty as it used to be valid until end of reign of each king in Afghanistan. Therefore, later, no modern Afghan governments ever accepted or ratified that so called treaty. Clearly speaking to Keep Pakistan a united country, she has no choice but to play with the blood of Pashtuns, imagining that by creating situations in Afghan politics the border will remain an international between the two countries.

No Afghan government ever tried to take the Durand Line issue to the International Court of Justice (ICJ) and there were number of reasons for that. First of all, the Soviet invasion of Afghanistan, a vivid cause that made Afghans busy fighting Russians and later the communist regime for such a long time, which made them busy enough to forget the border issues with our neighbours. Secondly, the absent of the strong central government because of civil proxy wars in Afghanistan.

So the leaders of Afghanistan knew the issues of its borders with neighbours but the Afghan politician used this issue for their political gains. Some argues under the “laws of succession”, treaties signed by states the past, however, the modern states are obliged to stay the course! But if so was the case, why didn’t it happen in the case of East and West Germany and other newly emerged independent states who were set free at end of the cold war. However, it seems that we are in the age of “Might is Right’. If Pakistan thinks that because of the so called international laws of succession, they could keep Durand Line as an inheritance, so does Bangladesh left for Pakistan!

Article 96 of United Nations convention, there is something called “unequal treaty” and those are treaties acquired by the use of force and interventions by powerful states against the weaker. International law considered those treaties and agreement to be nullified. Simply because of the “inequality in power” between the two states. Afghanistan was very week and Britain was a Superpower. Therefore, there was no balance of power between the two states and Afghanistan was pushed to her neck by Britain to sign those memorandum of understandings and therefore, Aghanistan can always take Pakistan to the International Court of Justice (ICJ).[viii]

“By virtue of Resolution 2145 (XXI) of 27 October 1966, the United Nations General Assembly declared that South Africa had failed to fulfill its obligations as mandatory over South West Africa/Namibia and decided that the mandate was therefore terminated, that South Africa had no other right to administer the territory, and assumed direct responsibility for the territory until its independence.”[ix]

Let us assume momentarily if the treaty was a valid document, Pakistan had been failed since her creation to comply with its international obligations, with regard to the Durand Line, i.e. annual financial rewards to Afghanistan, as well as violating trade agreements between the two countries. Therefore, the Durand Line is not only a political issue for Afghanistan, but rather it has been a legal issue.

Pakistan Doesn’t Respect Bilateral Treaties.

Most Afghans travels through Pakistan to Afghanistan are still required to pay hundred dollars in form of unknown payment to the Pakistani Embassy or consulates in Canada. Despite an active free visa treaty between the two countries. To my knowledge, as of today, more than one hundred thousand Pakistani nationals have been working in Pakistan and no single evidence will show that an Afghan embassy or consulate have ever charged for a fee or asked Pakistani visitors for bribes. On the other hand, opportunistic Pakistani diplomats, consider Afghans those animals from which they could milk 24/7.

The Quest for Independent Pashtunistan?

In 2009, thousands of innocent Pashtun under age children under the name of Taliban were massacred by Punjabi army.[x] No Urdu speaking writer, scholar, activist, or even Pakistani nationals residing inside or outside Pakistan, had the guts to criticize their own military for the cold blooded executions of under aged children in SWAT valley. No one is speaking for Pashtuns in Pakistan, even the so called Pashtun politicians who are unable to read and write Pashtu and claims to be representing Pashtuns in Pakistani government also did not question the massacre of under aged boys. There could be two reasons why Punjabis did not criticized their government for such a cruel and inhumane action against under aged Pashtuns. First, it means that the Punjabi or Urdu speaking population agreed with the barbaric actions of their military against Pashtuns in Pakistan, and secondly by keeping quiet about the atrocities against Pashtuns, Punjabis agreed and further encouraged their military personal to carry on more of similar executions and attacks in Pakhtunkhwa to vanish and demoralize the Pashtuns in Pakistan. The situation in Pakistan clearly shows that Pashtuns are tired of the Punjabi government’s inhuman actions and no wonder the Bengalese freed themselves. Similarly, Pashtuns are pushed to raise the quest for their independence. Well said by Douglas Mck. Brown a lecture at the University of British Columbia “laws are not mathematics, if it were, we would not need judges”. I therefore, call the international community to understand the pain of the Pashtun nation.