PART – 2/5 : The Unsettled Territorial Disputes. ( The illegal status of the Durand line)
…….. but what about the legal status of the Durand line whether it is legal or illegal. There are some serious errors in the Durand line agreement.
The Durand line Agreement document was in English and Amir Abdul Rahman Khan did not understand the English language, therefore it leads the suspicious nature of forgery and or false documentation. The Dari or Pashto translation of this agreement has never been signed by Amir Abdur Rahman Khan. It suggests that he nullified this agreement even at that time.
“The total length of the boundary which had been delimited and demarcated between March 1894 and May 1896, amounted to only 800 miles.
James W. Spain , an ex US foreign service man , also notes that the Durand line agreement since it was signed, has been the source of dissension between Afghanistan and British India.
British writer Fraser Tytler says that durand line has many defects and few advantages” and it is illogical from the point of view of ethnography, strategy and geography”.
Louis Dupree, another scholar, said :it was a classic example of an artificial political boundary cutting through a culture area” because it cuts tribes and tribal groups in half.
Because of long established political, economic, and cultural connections among the various regional Pashtun populations, the Afghans viewed their division by the Durand Line as illegitimate. The Durand Line Agreement of 1893 divides boundaries between three countries, namely Afghanistan, Baluchistan and British India. According to International Law, all affected parties are required to agree to any changes in demarcating their common borders. In reality, the Durand Line Agreement was a trilateral agreement and it legally required the participation and signatures of all three countries. But, the Durand line Agreement was drawn as a bilateral agreement between Afghanistan and British India only, and the British intentionally excluded Baluchistan. Hence, under the rules of demarcating boundaries of the International Law, the Agreement was in error, and thus, it was null and void as soon as it was signed.
The British ruled parts of Afghanistan without any legal authority but through treacherous use of a piece of paper, the Durand Line Agreement, which did not have any legal standing in any court of law. As long as the British kept Afghanistan and Baluchistan in the dark and apart from each other to discuss the Agreement, the British could continue to rule Afghan territory. But, in 1947, the British Indian government was dissolved, and hence, there was no reason for the British to continue this drama any more.
On August 11, 1947, the British acceded control of Balochistan to the ruler of Balochistan, his Highness Mir Ahmad Yar Khan the Khan of Kalat. The Khan immediately declared the independence of Balochistan, and Mohammad Ali Jinnah signed the proclamation of Balochistan’s sovereignty under the Khan. The New York Times reported on 12th th August, 1947 that “Under the agreement, Pakistan recognizes Kalat as an independent sovereign state with a status different from that of the Indian States. The next day, the NY Times even printed a map of the world showing Balochistan as a fully independent country.
After Pakistan’s independence, Mohammad Ali Jinnah and his legal team immediately found that the Durand Line Agreement was not a legally admissible and binding document. To continue the illegal occupation of the territories belonging to Afghanistan, it was important for Pakistan to keep the flaw in the Agreement a secret. But the dilemma was that Balochistan was an independent country and one day the truth might be revealed to Afghanistan about the Agreement. This truth could result in Pakistan losing its Pashtun dominated areas till to Indus river to Afghanistan. So it was very important for Pakistan to either annex or invade Balochistan to continue with their illegal occupation of Afghan territories.
Jinnah tried to persuade the Khan of kalat to join Pakistan, but the Khan and both Houses of the Kalat Assembly refused. The Pakistani government took an aggressive stance against Baluchistan, and in March 1948, the Pakistani armed forces started their operation against the Baluchistan government. They invaded Baluchistan on 15th April, 1948, and imprisoned all members of the Kalat Assembly and merged Baluchistan with Pakistan. This simple act of aggression against a sovereign nation assured Pakistan that their secret about the Durand Line Agreement would remain intact.
The controversy over the Durand line agian came on the surface after the death of Amir Abdur Rahman on 1 October 1901. His son Amir Habibullah Khan bacame the king of Afghanistan. The British refused to pay Amir Habibullah khan the subsidy which was paid to Amir Abdur Rahman. The British asserted that the deal was fixed between the Government of India and the Amir Abdur reham, was thouroughly a personal one. It had nothing to do with the government of Afghanistan. However, to that Amir Habibullah Khan questioned: “if the deal was personal then would it mean that the Durand Line Agreement stands invalid? The British of course could not agree and finally, on 21 March 1905, a new agreement was signed by both the sides.
Amir Habibullah Khan demanded for some other territories. The request from Lord Curzon for the demarcation of parts of the boundary was not accepted and thus the issues concerning the Durand line then remained unresolved. However, it was also the time that the British still controlled Afghan foreign affairs.
After the death of Habibullah Khan ,his son Amir, Amanullah Khan became the King of Afghanistan , he declared Afghanistan an entirely free, autonomous and an independent state both internally and externally. He also raised the pending issue of Durand line. The British Indian government, however, perceived this declaration as an offensive. This resulted in the third Anglo-Afghan War.
Afghanistan’s purpose of the war was not only to take control over its own foreign policy but also to “re-establish Afghanistan’s former borders with India. The War ended after the cease-fire of 3 June,1919. The resultant Treaty of Peace was signed on 8th August 1919 at Rawalpindi. The Treaty of Peace concluded some critical points of major implications for Afghanistan. However, the most important one of them was the letter attached as an Annexure to the Treaty of Peace 1919, which clearly stated that: the said Treaty and this letter leave Afghanistan officially free and independent in its internal and external affairs. Moreover, this treaty has cancelled all previous treaties.
By 1920 Amir Amanullah Khan started developing closer ties with Russia which the British could no longer afford. To avoid any such development of relations between Afghanistan and Russia, the British in 1921 were forced to conclude a treaty which was far away from a formal treaty of peace and friendship. After eleven months long negotiation, the Treaty of Kabul was signed on 22 November 1921 by Henry R. C. Dobbs, the Indian Foreign Secretary, and Mahmud Tarzi, Chief of Afghan delegation. During the first session, from January 20 to April 9, 1921 the Afghan Amir, Amanullah Khan demanded territorial concessions based on Afghans’ right to self- determination in the North-West Provinces of India but he was not succeeded. The Treaty of Kabul could not resolve all the pending territorial and diplomatic disputes between the two nations. It also did not resolve most of the pending anomalies in respect of the Durand line that were left for future discussions under the 1919 Treaty of Peace.
The Kabul Treaty was agreed by both parties, thus, to be a temporary arrangement. According to the article number 14 of the tready of 1921, The provisions of this treaty shall come into force from the date of its signing and shall remain in force for three years from that date.
For a lack of an alternative, the treaty remained in force until after India gained Independence in 1947. And the Issue even Remains alive from 1947 till to date. Afghanistan challenged the Durand Line when the Partition plan of Indo-Pakistan was announced on June 3rd 1947. Afghanistan also claimed over their own territories that lay between the Durand line and the Indus River.
So far as the legal status of Durand line is concerned , Afghanstan put forward three major arguments which questions the legal status of the Durand Line agreement:
Afghanistan Argument No.1: Pakistan is not the legal successor of British India because Pakistan was a new state carved out of the British dominion of India. During a meeting with the British Secretary of Foreign Affairs on 31st July, 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 the British India ceased to exist and power will be handed over to the new state of Pakistan. This official viewpoint of the Government of Afghanistan was announced before Pakistan officially became independent. But after independence Pakistan’s response to this question was that by the international court of justice Pakistan has the legal right to inherit all the treaties of the British empire with Afghanistan , so Pakistan is legally the rightful successor of the British rule of all its binding bilateral agreements. But here the questions arise whether Durand line agreement was binding bilateral agreement , defining a sovereign border or not?, this I will explain in some following lines. There is also a need to distinguish between the Durand Line agreement of 1893 and the subsequent treaties of 1919 and 1921.
Afghanistan argument no.2. Pakistan Violated the Durand Line Agreement in 1949. After a Pakistan Air force plane bombed a village ” Maghulgai” in Afghanistan where 23 persons were killed . The Afghan Government convened a “Loya Jirga” (Grand Council) on 26th July 1949 and it was declared that it recognized “neither the imaginary Durand line nor any similar line” and that all agreements from the 1893 Durand line agreement onward pertaining to the issue were void. According to the Afghan Government, Pakistan had violated the term of the article number 2 of the Durand Line agreement; that no side will exercise interference on the other side of the line. The loya Jirga also declared that from durnad line to the Indus river all the Pukhtun territory belongs to Afghansitan. Pakistan, on the other hand, again highlighting the International Law that Afghanistan, in any case, could not unilaterally repudiate an executed binding agreement. However, this Pakistani counter argument again rests on the presumption that the Durand Line agreement and the subsequent treaties were binding in nature. However non of these treaties concerning the durand line were binding in nature.
Afghanistan Argument No.3 : The Durand Line Agreement expired after 100 years in 1993. Most prominent sholars like Dr. Hasan Kakar, argue that the Durand Line agreement, signed in 1893, expired after 100 years of being in force. Their claim is based upon the narration that after signing, the Durand Line agreement was manipulated by the British and that certain terms and clauses were removed, one of which- was the clause of expiration of the agreement. They argue that the translated version of the Durand Line agreement given to the Amir was different from the one which the British declared later. Drawing similarities to the case of Hong Kong and its transfer to China, it has been argued that the Durand Line agreement too was signed under such terms . This claim received further spark from the Governor of the Khyber Pukhtunkha , Khalilur Rahman in 2005 , saying to journalists that in 1993 the Durand Line agreement had expired after 100 years and that he had already spoken with President General Pervez Musharraf to request an arrangement for its renewal. A renowned journalist, Rahimullah Yusufzai said in 2005 “Pakistani Governor says Durand Line Agreement expired in 1993”. Farhad Ali Khawar,a journalist ,publishing in the news paper, says on oath that Ex. interior minister late General Nasirullah babar said to him that he was invited by Zulfiqar ali bhutto when he was the prime minister of Pakistan and told him that 1993 is around the corner and the durand line agreement will be going to expire and Afghanistan will demand for its territory, therefore Afghanistan must be burned. Nasir u llah babar then said that by the help of Afghan religious groups we burned afghanistan to such an extent that former soviet union also got burned in it.
Pakistani line of argument since 1947 mainly rests on the presumption that the 1893 Durand Line agreement was a binding bilateral treaty defining a clear international border. Pakistan also refers to the treaties of 1905, 1919 and 1921, stressing that Afghanistan had also recognized the Durand Line in those treaties. However, this argument further weakens Pakistan’s position….. to be Continued……….
Writer : Mashal Khan Takkar
Editor in Chief
THE VOICE TIMES