CLOSE on the heels of the Pakistani proposal to fence the mountainous and rugged border between Pakistan and Afghanistan, the recent statement of the governor of the Frontier province, Mr Khalilur Rehman, that after one hundred years the Durand line border agreement between Pakistan and the erstwhile British Indian government had expired in 1993 has baffled many. As usual there has been a cryptic denial.

It is not for the first time that the question of Durand Line has come to public attention. In fact, Afghan rulers repeatedly raised this issue whenever it suited their interests. However, the discussion has always reflected a partisan attitude. The Durand agreement should be examined in the light of the available facts; the interested parties point of view, and the legal position on the subject.

After successfully negotiating a border agreement with the Russians, Amir Abdur Rehman wrote in March 1891 to the viceroy of India, Lord Lytton, that he thought steps should be initiated to open negotiations for the demarcation of the boundary between British India and Afghanistan, and requested that a high-ranking official be sent to Kabul for preliminary discussions. The two sides agreed on Sir Mortimer Durand who was foreign secretary for India in the Delhi government. After negotiations spread over more than two months, a border agreement known as the Durand agreement was signed on November 12, 1893.

The agreement has seven clauses. The first pertains to the territorial limits of the agreement, while the second specifies the obligations of the two sides, stipulating that the British government “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.”

Clause three refers to territorial adjustments, the British agreeing to the Amir retaining Samara and the valley above it and the Birmal tract and the Amir agreeing that he will not interfere in Swat, Bajaur or Chitral valley and relinquishing his claim to the rest of the Waziri country and Dawar and Chageh. Clause four refers to the functions of the joint commission that will demarcate the boundary, and clause five to the demarcation of the boundary in parts of Balochistan. Clause six refers to the mechanism to be adopted in case of any differences regarding the demarcation. The final clause refers to the increase in subsidy of the Amir and the British government having no objection to the Amir’s purchasing and importing arms and ammunition, in fact promising help.

It is evident that the agreement took care of all matters, which were a source of disagreement between the two countries, particularly in relation to the sphere of influence that each side exercised in the tribal belt. Amir Abdur Rehman in his biography expresses his full satisfaction about the agreement.

Many experts on the subject consider the Durand agreement as one of the best, encompassing all problems and issues confronting the two contracting parties at the time of its signing. However, some aspects of the agreement have to be kept in mind while analysing it. For instance, the agreement is silent on its duration. Would it be operative for 10 years, 20, 50 or 100 years? Similarly, it does not provide any mechanism for amending, revising or revoking it. The inevitable conclusion is that the agreement is in perpetuity and can be renegotiated or revoked only with the mutual consent of the two contracting parties.

The one aspect of the agreement which created many problems in subsequent years and which compels one to conclude that enough attention was not paid to essential details was that the agreement divided the same tribe in an unnatural and perhaps arbitrary manner, giving the control of a section of a tribe to one country and the other to another. In some cases half a dwelling was in Afghanistan and the other half in British India.

Notwithstanding this, the intriguing fact is that neither the Afghans nor the British and not even the affected tribes raised any serious objections or did anything to rectify this anomaly. In fact the two governments confirmed the validity of the agreement in a number of subsequent agreements.

This narrative will be incomplete without analysing the reasons, which compelled the Afghan government to express reservations about the Durand agreement in subsequent years. In fact, between 1893 when the agreement was signed and until the announcement of the partition plan on June 3,1947, Afghanistan had raised no serious objection to the agreement or lamented the so called “miserable plight of the Pushtoons “on the Indian side of the border.

In fact, the first indirect reference was made to the border agreement by the Afghan Prime Minister Mohammad Hashim Khan in a press interview on June 21, 1947, when he said that “if an independent Pukhtoonistan cannot be established then the Frontier Province should join Afghanistan,” thus trying to nullify the border agreement. Raising this question on the eve of the partition of India the Afghan leadership of the day thought that the nascent state of Pakistan would not be in a position to sustain itself for a long time and that, therefore, it was a good time to stake a claim to the contiguous territory. They were also encouraged by the pronouncements of some leaders belonging to the Frontier Province whose objection to the creation of Pakistan falling on deaf ears had then advanced the idea of an independent entity for the Pushtoons.

The various other reasons given by the Afghan leadership from time to time about the invalidity of the Durand Line were: (a) the agreement was extracted from the Afghan Amir through duress; (b) the tribal areas were never a part of the Indian empire so how could the British decide about their fate; (c) the Pushtoons were a separate entity from other Pakistanis with a distinct culture, language, customs and traditions, and had more affinity with the people on the other side of the Durand Line, the Durand Line was an arbitrary line, which divided tribes and people in an unnatural way and therefore had no sanctity and (e) the Durand Line had lapsed with the departure of the British from the subcontinent

One of these objections that the agreement was extracted as a result of duress and that it lapsed with the exit of the British from the Indian subcontinent, should be debated. That the agreement was signed as a result of coercion or duress is not borne by facts, as it was the Amir himself who had asked the viceroy of India to negotiate the border agreement. The subsequent confirmation of the agreement by successive rulers of Afghanistan is a testimony to the fact that the rulers of Afghanistan were satisfied with the agreement and considered it as beneficial for their country.

The agreement of 1905 has this to say about the Durand Agreement: “His Majesty does hereby agree to this that in the principles and in 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 agreement and compact and I will not contravene them or any dealing or any promise.”

Article 5 of the 1919 states as follows, “The Afghan government accepts the Indo-Afghan Frontier accepted by the late Amir. They further agree to the early demarcation, by a British commission, of the undemarcated portion of the line west of Khyber and to accept such boundary as the British may lay down.” The treaty, ratified on February 6, 1922, (signed on November 22, 1921) at the time of Amir Amanullah Khan who had secured complete independence for Afghanistan after the third Afghan war, in Article 2 states as follows, “The two high contracting parties mutually accept the Anglo- Afghan Frontier as accepted by the Afghan Government under Article 5 of the treaty concluded on 8th August in Rawalpindi.

Thus it is crystal clear that successive Afghan governments accepted the Durand agreement willingly and without any reservations.. Even King Zahir Shah who ruled Afghanistan for 40 years did not refer to the Durand Line when on May 30, 1947, only four days before the announcement of the partition plan, he announced that his government was considering the revision of its boundary with the Soviet Union.

On the second point international law is very clear. According to the principal of ‘res transit cum suo onere,’ treaties of the extinct states concerning boundary lines remain valid and all rights and duties arising from such treaties of the extinct state devolve upon the absorbing state. Regarding the establishment of an independent state for the Pushtoons, it would have assumed some credibility if the Afghan rulers had included the southern and eastern regions of their country in the contemplated state. The fact that the Line has divided tribes, though valid, has been fully exploited by the shrewd tribesmen who on the plea of affinity travel freely to both sides of the border with minimum formalities.

A convincing explanation about international borders has been offered by Sir Fraser-Tytler, a consummate diplomat and the author of a widely acclaimed book on Afghanistan in the following words “The recognition of the existence, sanctity, and the permanence of frontiers is one of the foundations on which the law of nations has been built. Frontiers are a real fact of international law; once negotiated and laid down, they cannot be denounced and torn up. They are there on the ground, ascertainable at any time by geographical surveys, and unalterable save by mutual agreement or by force majeure”. In the case of the Durand Line also, only one of these two options is available to the parties.

The writer is a former ambassador.