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Is DURAND LINE International Border

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The research on Durand Line is based on hard facts, available documents and historical events which has been certified time and time again by historians, government documents, including papers released by United States/CIA, international laws and logics given by experts.

There is another view that falls in the realm of myths which has suitably been crafted by interested groups at different times. Their views aim at making the society disillusioned of facts by hiding the reality and drawing their own twisted conclusions and myths.

The International and historical documents when studied closely with events which have taken place in the past leave no doubt about the reality of Durand Line as an International border. Researches done on issue and 2 x CIA declassified papers (approved for release in 2012) gives a clear picture.

The study is divided into three different sections. Section 1 will give the readers an overview of the historical events that led to the need for demarcation of an International frontier, and the events and agreements thereafter. Section 2 will discuss the myths followed by an explanation of reality to clarify the ambiguous notions held so far. Section 3 entail details regarding the views of researchers and jurists on Durand Line as an accepted International Frontier between Pakistan and Afghanistan as of today. It will also state US position on recognition of Durand Line as an accepted International Frontier between Pakistan and Afghanistan. This study aims at bringing each point to the forefront and aid the readers in drawing logical conclusions in the light of shared facts gathered from authentic sources. Supporting documents and videos are also attached at the end of paper as annexures for further information.

The research has been carried out by a group and  Ali Bin Shahid and Sadia Tariq are the main researchers for collection of material.

By : Waheed Hamid

HISTORICAL PERSPECTIVE

1. In Eighteenth Century British and Czarist Russia were expanding their borders in Asia, the one advancing from the south and the other from the north, there was a fear of armed conflict between the two powers. Both the powers mutually agreed to halt their onward march at a reasonable distance from one another. Afghanistan was selected as a buffer state.

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Satirical Cartoon from a British Newspaper 1878. The Afghan Amir is caught between   Russian bear and the British lion

2. To protect its territorial integrity, Afghanistan decided to define its clear-cut frontier, which it did not have till the last quarter of 19th With Russia, it demarcated its frontiers in 1873.

3. Subcontinent then ruled by Britishers, decided to mark its border with Afghanistan and called this “Durand Line”. From the spur of the Sarikol Range in the north to the Iranian border to the southwest, the Durand Line marks the 2,450-kilometer border between Afghanistan and Pakistan.

Abdur Rahman, the king who united Afghanistan and was nicknamed the 'Iron Amir' because of his harshness. Photo: Luckow Fry/Moesgaard Museums arkiver

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4. Sir Mortimer Durand, a representative of the British-Indian Government, and then Afghan Ameer- Abdur Rehman led the commission from respective governments.

 

The commission took 40 days to negotiate and conclude the Durand Line Agreement in Kabul which was signed between the two parties in 1893. This dedicated effort was materialized by 6 x demarcation commissions which marked Durand Line in their area of responsibility as under:

  • Donald and Sardar Shireendil Khan settled the boundary from Sikaram Peak (34-03 north, 69-57 east) to Laram Peak (33-13 north, 70-05 east) in a document dated 21 November 1894. This section was marked by 76 pillars.
  • The boundary from Laram Peak to Khwaja Khidr (32–34 north) was surveyed and marked by H. A. Anderson in concert with various Afghan chiefs marked by (39) pillars which are described in a report dated 15 April 1895.
  • W. King (issued a report dated) 8 March 1895 (on) the demarcation of the section from Khwaja Khidr to Domandi (31–55 north) by 31 pillars.
  • The line from Domandi to New Chaman (30–55 north, 66-22 east) was marked by 92 pillars by a joint demarcation commission led by Captain(later  Colonel SirHenry McMahon and Sardar Gul Muhammad Khan (who issued a) report dated 26 February 1895.
  • McMahon also led the demarcation commission with Muhammad Umar Khan which marked the boundary from new Chaman to the tri-junction with Iran by 94 pillars which are described in a report dated 13 May 1896.
  • In 1896, the long stretch from the Kabul River to China, including the Wakhan Corridor, was declared demarcated by virtue of its continuous, distinct watershed ridgeline, leaving only the section near the Khyber Pass, which was finally demarcated in the treaty of 22 November 1921 signed by Mahmud Tarzi, “Chief of the Afghan Government for the conclusion of the treaty” and “Henry R. C. Dobbs, Envoy Extraordinary and Chief of the British Mission to Kabul. It is worth mentioning that Durand Line doesn’t extend the full distance of the Pak-Afghan boundary. The entire stretch between Western Terminus of the line and a point northwest of Parachinar, as well as a small sector in the vicinity of Khyber Pass is demarcated. Rest all is un-demarcated. [Map attached as Annexure A]                                                                                                                               [Source: 1. Prescott, J. R. V. Map of Mainland Asia by Treaty. Melbourne University Press, Carlton, Victoria, Australia, 1975. pp. 182–208.  2. Muhammad Qaiser Janjua. “In the Shadow of the Durand Line; Security, Stability, and the Future of Pakistan and Afghanistan” (PDF). Naval Postgraduate School, Monterrey, California, US, 2009. pp. 22–27; 45. ]

5.  Although the Agreement granted effective political control of parts of this region to the British colonial authorities, the locals were generally left independent and were granted a certain degree of autonomy under the idea of ‘spheres of influence.’ Ameer Abdur Rehman was satisfied with the outcome of his negotiations with Sir Mortimer Durand. They were conducted according to the satisfaction of both parties, and eliminated past misunderstandings.

6. Ameer himself in his memoirs writes that “before the audience I made a speech to commence the proceedings in which I gave an outline of all the understanding which had been agreed upon and the provisions which had been signed for the information of my nation and my people and all those who were present. I praised God for bringing about friendly relations which now existed between the two Governments and putting them on a closer footing than they had been before.”

7. The Rawalpindi Treaty 1919 [Excerpt Attached as Annexure- B] formalized the border arrangement between Afghanistan and British India based on the Durand Line Agreement in exchange for Afghanistan’s grant of full sovereignty. The treaty clearly shows that the Afghan Government did formally and legally recognize the Durand Line as the international border between Afghanistan and British India by conclusively stating that ‘the Afghan Government accept the Indo- Afghan frontier accepted by the late Amir [under the Durand Line Agreement].’

8. This position was reinforced in the Kabul Treaty/Anglo Afghan Treaty 1921 [Excerpt Attached as Annexure C] and in the exchange of letters between the British India authorities and the Afghan Government in 1930 in which the Afghans reiterated the validity of the Kabul Treaty.

9. In 1919, following the death of Amir Abdur Rehman’s successor Amir Habibullah, the British Indian forces and the Afghans began to fight against each other in the Third Anglo-Afghan War.

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Third Anglo Afghan War

This fight ended with the Rawalpindi Treaty in 1919 and its successor, the Anglo- Afghan Treaty of 1921. In both these treaties, the respective parties agreed to follow the border division parameters accepted in the Durand Line Agreement .Since then, the global community has internationally recognized the Durand Line, first as the border between Afghanistan and British India, and eventually between Afghanistan and Pakistan.

10. Such accounts and terms of the Agreement itself, it is evident that the Durand Line Agreement was signed under no duress and there was popular public approval.

11. Under customary international law as codified in Article 62 of the Vienna Convention on the Law of Treaties, ‘it is accepted by all that whenever a new country is carved out of an existing colonial dominion; all the international agreements and undertakings that the previous ruler of the region had entered into would be transferred to the new independent national Government.

12. Following a loya jirga, the Afghan Government on July 26, 1949, unilaterally declared that it considered the Durand Line as an imaginary line and that all previous Durand Line Agreements were thenceforth void.

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LOYA JIRGA

13. 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. Moreover, Afghanistan has been prevented from unilaterally renouncing the Durand Line Agreement due to the international law principle of uti possidetis juris, directly applicable in the context of decolonization, which provides that newly decolonized states should have the same borders that their preceding dependent area had before their independence. The International Court of Justice has repeatedly upheld the principle of uti possidetis juris ‘as a principle that transforms former administrative borders created along the colonial period into international frontiers’.

MYTHS & REALITY

Myth no. 1: The regions between west of the Indus River and the Durand Line were previously a piece of the Afghan empire set up by Ahmad Shah and same be basis of fixing border after 1947.

Reality: The territories between the west of Indus River and the Durand Line, as proclaimed by some forces in Afghanistan, is from an old history of 18th century which lacks documentation/authentication etc.

  • The written history available in form of signed pact before 1947 is from 1893 when the agreement was signed between Sir Mortimer Durand and Ameer Abdur Rehman.
  • Same was ratified by all succeeding rulers of Afghanistan namely Ameer Habibullah in 1905, Ali Ahmad Khan—representative of Ameer Amanullah Khan.
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    AMEER AMANULLAH KHAN

     

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  • In 1947, same agreement was intact and was transferred to the newly formed Pakistan from Indian Subcontinent. Same has also been ratified afterwards according to article 62 of Vienna Convention of the Law of Treaties (1969).

Myth no. 2: The Durand Agreement stands null and void as per the International Law because it was imposed upon the Afghans by the mighty British Empire.

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Reality: The Durand Line is an International frontier resulting after mutual consensus of Ameer Abdur Rehman and Sir Mortimer Durand, and later ratified by treaties of 1919 and 1921 and thereafter. The same is also ratified by UN/International Laws. Therefore its validity stands beyond any doubt.

Myth no. 3: The Afghans are ethnically, culturally, religiously and linguistically different from other inhabitants. Therefore they should be given an opportunity to decide through plebiscite the fate of their state.

Reality: The Pashtuns whether inhabitants of Tribal Agencies or of Khyber Pakhtunkhwa and the Balochis democratically decided to join Pakistan and therefore constitute as an integral part of Pakistan.

Myth no.4: The Durand Line agreement of 1893 was meant to be valid only for hundred years from the date of its ratification.

Reality: As per the text of 1893 or even subsequent treaties of 1919 and 1921 affirmed that Durand Agreement [Attached as Annexure-D] was not signed for any time limit. It is internationally accepted which is also evident from US statements and later released documents by CIA.

Myth no.5: It is also contended by some that as the Durand Line Agreement spells out respective spheres of influence it was never intended to physically divide the border.

Reality: Article 4 of the Agreement clearly states the need for demarcation along the frontier to be carried out by the respective Afghan and British commissioners. This shows that the intended purpose of the Agreement was indeed the formulation of a border between the two states, without the need for physical occupation and direct control exerted by the British in those regions.

WHY TODAY DURAND LINE IS ACCEPTED INTERNATIONAL BORDER BETWEEN AFGHANISTAN & PAKISTAN?

Today the jurists and researchers put forth following points in support of Durand Line being an International border between Pakistan and Afghanistan.

a. UNSC Resolutions on Afghanistan [United Nations Security Council Resolution 1267] reaffirm de jure recognition of the Durand Line as an international border where the international law principle of non-intervention fully applies. This was reconfirmed in the Bonn Agreement and International Conference on Afghanistan in London 2010.

b. Afghanistan along with the USA and the USSR accepted the Durand Line as an international border in the Geneva Accords of 1988. Such recognition was reinforced when the USA sent its forces into Afghanistan in 2001 and ordered its troops to remain on the Afghan side of the Durand Line. 

c. Afghanistan has consistently recognized the Durand Line in terms of visa issuances, trade and transit. At the international level, Afghanistan demonstrated acceptance of the Durand Line when it agreed to ensure security and development through modern border management mechanisms at the third Regional Economic Cooperation Conference on Afghanistan (RECCA).

d. In the early years following the independence of Pakistan, Philip Noel- Baker, Secretary of State for the Commonwealth, in his speech to the British House of Commons on June 30, 1950 proclaimed that ‘it is his Majesty’s view that Pakistan is in international law the inheritor of the rights and duties of the 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.’

e. The extract from the communiqué issued on March 8, 1956, at the conclusion of the Southeast Asia Treaty Organization (SEATO) Ministerial Council Meeting held in Karachi, also reaffirmed the recognition of the Durand line as an international border. [Refer to CIA declassified document, attached as Annexure-E]

f. In 1969 the matter was scrutinized by the Supreme Court of Pakistan in the Zewar Khan case (PLD 1969 SC 485). A smuggler Zewar Khan who got arrested when he crossed into Pakistan by the customs authorities, took the plea that he did not smuggle anything because there was no ‘importation’ of the goods since the Durand Line is not an international border. The matter eventually went to the Supreme Court where in the context of the plea by the accused the Supreme Court was forced to examine the legal basis of the Durand Line and it came to a very clear conclusion that it constitutes an international border between the two states, so any unauthorized item brought across the border will be viewed as smuggling into Pakistan. The Court was headed by one of the most respected judges of all time, Justice Hamood-ur-Rehman, who authored the judgment. He referred to the decision put forward by members of SEATO in 1956 as well as an address by the Secretary of State for Commonwealth Relations in 1950, both of which unequivocally accepted both Pakistan as the successor state and Durand Line as the border.              The said view has remained unchallenged for decades. No opportunity was availed by the Afghan government to challenge this view. They never filed an application to become a party or even bother to file for a review. In other words, the said judgment provides judicial authenticity to the legal view on the Pak-Afghan border. In the said judgment, the judge took note of the state practice and other international documents of that time as well.

g. USA’s STANCE ON RECOGNITION OF DURAND LINE AS AN INTERNATIONAL BORDER

The United States made a public statement in 1956 supporting Pakistan’s claim territory up to the Durand Line, largely in reaction to Soviet calls in 1955 for self-determination for Pashtunistan. On March 8, 1956, SEATO council members including the US, meeting in Karachi issued a communique that stated:

“Insofar as these [Soviet] statements referred to ‘Pakhtoonistan’ the members of the council severally declared that their governments recognized that the sovereignty of Pakistan extends up to the Durand Line, the international boundary between Pakistan and Afghanistan”

More recently in 2012, United States Special Representative for Afghanistan and Pakistan, Marc Grossman, reiterated the United States’ position that the Durand Line is the internationally recognized boundary between Pakistan and Afghanistan.  


ANNEXURES

ANNEXURE- A

PAK - AFGHAN BORDER

SOURCE: Central Intelligence Agency (US)

Retrieved from: https://www.cia.gov/library/readingroom/docs/CIA-RDP08C01297R000100140005-3.pdf



ANNEXURE- B

Anglo-Afghan Treaty of 1919

  Peace treaty between the British and the Afghans government after the third Anglo-Afghan war. It was negotiated at Rawalpindi and signed on August 8, 1919, by A.H. Grant, foreign secretary of the government of India, and Ali Ahmad Khan, commissary for home affairs. The treaty made a return to the “old friendship” between the two states contingent on negotiations started after a six month waiting period. In the meantime Britain would not permit Afghanistan to import arms and ammunition through India, the payment of a subsidy would be ended, and the arrears in payments would be confiscated. Finally, undefined portions of the Khaibar were to be demarcated by a British commission and Afghanistan was to accept the Indo-Afghan frontier as marked. An annexure stated that “the said Treaty and this letter leave Afghanistan officially free and independent in its internal and external affairs.” British hopes that a contrite Amir would gain conclude an exclusive alliance were soon seen to be unrealistic. Amir Amanuallah sent a mission to the Soviet Union, Europe, and the United States and acted on his right to establish diplomatic relations with foreign powers. The Pashtun tribes on the Indian side of the frontier were made to believe that the treaty represented only a cease-fire after which war was to be resumed if Britain did not agree to various Afghan demands. Indeed it was only after a fruitless, three month conference at Mussoorie (April 17 – July 18, 1920) and the Kabul Conference (January 20 – December 2, 1921) that normal neighbourly relations between Britain and Afghanistan were established.

Retrieved from:

https://web.archive.org/web/20120711175059/http://www.afghan-network.net:80/Culture/treaties.html


ANNEXURE-C

Anglo-Afghan Treaty of 1921

Also called ” Treaty of Kabul” because it was negotiated and signed at Kabul by Henry R. C. Dobbs, the British envoy, and Mahmud Tarzi, chief of the Afghan delegation, after arduous, eleven month negotiations. The treaty restored “friendly and commercial relations” between the two governments after the third Anglo-Afghan War and negotiations at the Mussoorie Conference and Rawalpindi. The negotiations proceeded in four phases: During the first session, January 20 to April 9, 1921, the Afghan Amir unsuccessfully demanded territorial concessions, while Britain wanted the exclusion of Russian consular offices from southeastern Afghanistan. In the second phase, from April 9 to mid-July, 1921, Britain asked Afghanistan to break the newly established diplomatic with Russia in exchange for a subsidy of 4 million rupee and weapons, as well as guarantees from unprovoked Russian aggression. When in the third stage, from mid-July to September 18, the British foreign office informed the Italian government that it was about to conclude an agreement which would, “admit the superior and predominant political influence of Britain” in Afghanistan, the Afghans refused to accept an “alliances.” An exclusive treaty was impossible after Afghanistan announced ratification of the Russian-Afghan treaty of 1921. In the fourth and final stage of negotiations, from September 18 to December 8, 1921, the British mission twice made preparations to return to India, when finally an agreement was signed at Kabul on November 22, 1921. Ratifications were exchanged on February 6 of 1922.

In the treaty both government “mutually certify and respect each with regard to the other all rights of internal and external independence.” Afghanistan reaffirmed its acceptance of the boundary west of the Khaibar, subject to minor “re-alignment.” Legations were to be opened in London and Kabul, consulates established in various Indian and Afghan towns, and Afghanistan was permitted to import arms and munitions through India. No customs duties were to be charged for goods in transit to Afghanistan and each party agreed to inform the other of major military operations in the frontier belt. Representatives of both states were to meet in the near future to discuss conclusion of a trade convention, which was signed in June 1923.


ANNEXURE-D

Durand Line Agreement,November 12, 1893

Agreement between Amir Abdur Rahman Khan, G. C. S. I., and Sir Henry

Mortimer Durand, K. C. I. E., C. S. I.

Whereas certain questions have arisen regarding the frontier of Afghanistan on the side of India, and whereas both His Highness the Amir and the Government of India are desirous of settling these questions by friendly understanding, and of fixing the limit of their respective spheres of influence, so that for the future there may be no difference of opinion on the subject between the allied Governments, it is hereby agreed as follows:

 

  1. The eastern and southern frontier of his Highness’s dominions, from Wakhan to the Persian border, shall follow the line shown in the map attached to this agreement.
  1. The Government of India will at no time exercise interference in the territories lying beyond this line on the side of Afghanistan, and His Highness the Amir will at no time exercise interference in the territories lying beyond this line on the side of India.
  1. The British Government thus agrees to His Highness the Amir retaining Asmar and the valley above it, as far as Chanak. His Highness agrees, on the other hand, that he will at no time exercise interference in Swat, Bajaur, or Chitral, including the Arnawai or Bashgal valley. The British Government also agrees to leave to His Highness the Birmal tract as shown in the detailed map already given to his Highness, who relinquishes his claim to the rest of the Waziri country and Dawar. His Highness also relinquishes his claim to Chageh.
  1. The frontier line will hereafter be laid down in detail and demarcated, wherever this may be practicable and desirable, by joint British and Afghan commissioners, whose object will be to arrive by mutual understanding at a boundary which shall adhere with the greatest possible exactness to the line shown in the map attached to this agreement, having due regard to the existing local rights of villages adjoining the frontier.
  1. With reference to the question of Chaman, the Amir withdraws his objection to the new British cantonment and concedes to the British Governmeni the rights purchased by him in the Sirkai Tilerai water. At this part of the frontier the line will be drawn as follows:

From the crest of the Khwaja Amran range near the Psha Kotal, which remains in British territory, the line will run in such a direction as to leave Murgha Chaman and the Sharobo spring to Afghanistan, and to pass half-way between the New Chaman Fort and the Afghan outpost known locally as Lashkar Dand. The line will then pass half-way between the railway station and the hill known as the Mian Baldak, and, turning south-wards, will rejoin the Khwaja Amran range, leaving the Gwasha Post in British territory, and the road to Shorawak to the west and south of Gwasha in Afghanistan. The British Government will not exercise any interference within half a mile of the road.

  1. The above articles of’ agreement are regarded by the Government of India and His Highness the Amir of Afghanistan as a full and satisfactory settlement of all the principal differences of opinion which have arisen between them in regard to the frontier; and both the Government of India and His Highness the Amir undertake that any differences of detail, such as those which will have to be considered hereafter by the officers appointed to demarcate the boundary line, shall be settled in a friendly spirit, so as to remove for the future as far as possible all causes of doubt and misunderstanding between the two Governments.
  1. Being fully satisfied of His Highness’s goodwill to the British Government, and wishing to see Afghanistan independent and strong, the Government of India will raise no objection to the purchase and import by His Highness of munitions of war, and they will themselves grant him some help in this respect. Further, in order to mark their sense of the friendly spirit in which His Highness the Amir has entered into these negotiations, the Government of India undertake to increase by the sum of six lakhs of rupees a year the subsidy of twelve lakhs now granted to His Highness.                                                                                                                                      M. Durand ,Amir Abdur Rahman Khan.

Kabul, November 12, 1893.

Retrieved from: afganic.de/images/Docs/Durand%20Line%20Agreement.pdf


ANNEXURE-E

USA's STANCE ON DURAND LINE AS INTERNATIONAL BORDER

USA’s STANCE ON DURAND LINE AS INTERNATIONAL BORDER

 

 

 

 

 

 

 

 

 

 

Retrieved from: https://www.cia.gov/library/readingroom/docs/CIA-RDP08C01297R000100140003-5.pdf

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