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Rethinkingthe Durand Line: The legality of the Afghan-Pakistan Frontier

Bijan Omraniand Frank Ledwidge

 

This is an electronic versionof an article published in RUSI Journal, Oct2009, Vol. 154, No. 5, Pages 48-56. The article isavailable online at the RUSI Journal website [http://www.rusi.org/publications/journal/ref:A4AEB148D13F17/]

 

Newly uncovered archival evidence suggests the DurandLine was never intended to be an international boundary. This article examinesthe consequences for Afghanistan/Pakistan policy-makers, concluding thatserious attention should be paid to reconceptualising the frontier zone in thecurrent crisis.

 

Although the current frontier between Afghanistan andPakistan (the Durand Line) was only settled by treaty in 1893, the question ofwhere borders should be laid down in the area

goes back thousands of years. Afghanistan, in the words ofthe late Professor Arnold Toynbee, is a ‘roundabout of empires’. It is the spotin Central Asia where three great empires – the Persian in the west, theTurkic/Mongol/Russian in the north, and the Indian in the south-east – met.

Yet Afghanistan offers no coherent and secure lines forborders to divide them. Many of the conflicts which have raged perenniallythroughout the country, from skirmishes between the Mughals, Uzbeks andPersians in the early sixteenth century, to the Anglo-Afghan wars of the

1800s, to the present clash with the Taliban, can all betraced back to this single origin: the search for a stable set of borders.

 

Given the critical importance of borders and the Pakistanifrontier in the current Afghan conflict, many strategists are now looking toits history to seek lessons for the present day. Special attention has beenpaid to the military strategies employed by the British in the pacification ofthe Frontier region, particularly on the Pakistani (British Indian) side.However, less work has been done in recent years on the legal aspects of theDurand Line.[1]1This is an omission which this paper seeks to rectify. Not only is this amatter ripe for new research, with the recent declassification of British Governmentdocuments; it is also a matter of vital importance to military and diplomaticpolicy-makers. For the former, it calls into question the scope of action

they can legitimately take with regard to cross-frontieraction; for the latter, it can better illuminate how the current settlement ofthe frontier question is insufficient to meet the region’s contemporaryproblems. The article also contributes to understanding of how to achievestability along the frontier as well as in the wider area.

 

Nineteenth-Century Afghanistan: Theft and Plunder

The nineteenth century was marked by the first advance ofEuropean powers – primarily Britain and Russia – into wide swathes of India andCentral Asia never before held by the West.[2]The first culmination of this trend – the Great Game – was the disastrous FirstAnglo-Afghan War (1838-42), in which the British attempted to install a puppetgovernment in Kabul to act as a first line of defence against Russianencroachment towards India. Although it was unsuccessful, a similar policy wasagain attempted forty years later in the Second Anglo-Afghan War (1878-80),when British proponents of the ‘forward policy’ attempted to push the border ofIndia forward to what they considered to be the ‘scientific frontier’ – theHindu Kush Mountains, with the cities of Kabul, Ghazni and Kandahar forming thefirst line of defence against Russia. With the ultimate failure of this policy,primarily on account of its expense, flaws in intelligence and strategy, andthe hostility of the people, the British were forced to reassess their approachto the frontier.

 

It was not only the threat of a Russian attack that theBritish needed to take into account when setting their frontier policy; therewas also the question of internal security in India. In 1849, after the end ofthe Second Sikh War, the area of British control was pushed forward to thefoothills of the Suliman Mountains, the seat of the modern Federally AdministeredTribal Areas (FATA) of Pakistan. This created a direct border between theBritish jurisdiction and the Pashtun hill tribes, who were nominally under thesovereignty of Kabul, but who in fact entirely disregarded Afghan control andlived a de facto independent life, not acknowledging the power of any external agent.

 

The Pashtun hill tribes made turbulent neighbours for theBritish. The mountainous and convoluted valleys which they inhabited allowedthem little in the way of a regular livelihood. Agriculture and trade wasscant. For many centuries they had depended on theft, kidnap, the plunder oftrade caravans and raids on settled territory for an income. Their home terrainwas near inaccessible, and it was almost impossible for the settled populationsto launch any meaningful counter-attacks against the tribes to chastise themfor raids, or to extract fines for stolen plunder. Given the paucity of thetribesmen’s possessions, even should a counter-attack

be successful, there was little damage that could be causedor compensation extracted from them. This did not mean that neighbouring rulersabstained from attacking them. However, they preferred to use bribery andintervention in tribal politics to encourage the tribesmen to keep the roadsopen and raiding to a minimum.

 

A further problem was the tribesmen’s strong attachment totheir traditional way of life. For centuries they had followed tribal customsderived from principles of honour, shame and hospitality. Feuds and vendettasbetween families and tribes were endemic, and often flared up into wide-rangingand destabilising conflicts. They were strongly attached to this way of life, andvehemently resisted any external influence that might change their mode ofexistence, or compromise their radical independence. On top of this, although theyhad no deep understanding of religion and adhered more to tribal rather thanIslamic law, they were easily made prey to sudden waves of religious enthusiasm,and even itinerant preachers could easily inflame the tribesmen to holy war,particularly if the tribesmen felt that their independence or way of life was underthreat.

 

Establishment of the Frontier

Throughout the second half of the nineteenth century,British policy towards the establishment of a frontier with Afghanistanvacillated. On the one hand, they sought a secure border for the northwest ofIndia which could be defended against any possible attack by Russia. They alsoneeded to find a way of defending the settled areas in the Punjab againstpredatory raids from the

Pashtuns in the Suliman Range. However, the British werealso fearful of including under their control areas and people such as thesewhich they knew they could not effectively govern. They perceived from thestart that the expense in money and manpower could potentially be extremely high.

 

As a result, the appearance of the frontier with Afghanistanwas a slow and tentative process, evolving uncertainly as the ideas of governmentfluctuated. For decades, the border remained at the foothills of the SulimanMountains, with no attempt made to bring the Pashtun hill tribes under theircontrol. The British sought, like the Sikh and Mughal Empires before them, toprevent attacks by tribesmen on the towns and agricultural settlements in theplains by a combination of subventions and counter-raids. This policy was not notablysuccessful. From 1857 to 1881there were twenty-three expeditions of varyingsizes into the foothills in response

to Pashtun tribal raids on the settled territory, with nosign that this British military commitment brought about any lastingimprovement in the security of the region or tribal behaviour. As a result, aforward policy began to come into fashion. Its proponents argued that the BritishGovernment should make itself responsible for the welfare of the Pashtun tribes.They held that there should be a policy of ‘peaceful penetration’ into the tribalareas, the securing of strong-points, and the employment of tribesmen by the governmentwhich would lead to their economic betterment and, by extension, theirpacification. Such a policy, known as the Sandeman System, had worked well inthe neighbouring region of Balochistan, and it was held that the same would be thecase for the Pashtun tribal areas.[3]

 

During this period, partly as a result of the ascendancy ofthis policy, there was a greater formal penetration into the tribal regions.Control of the Khyber Pass came into the hands of the British during the SecondAfghan War, and small outposts, including the Samana Crest, the Southern

Tirah and the Kurram Valley were under British occupation by1892. However, this was a local rather than a general occupation; the areaswere by no means under British control, and a forward policy was not fullypromulgated, with many officials in the British administration hesitant aboutputting it into practice.

 

Drawing the Line

 

Nonetheless, with British forces now advancing through thehills towards Afghanistan with no certainty as to how far they might proceed,it seemed expedient to make an agreement with Afghanistan, defining up to whatpoint the British might move. A further imperative towards making such anagreement with Afghanistan was generated by an apparently revived Russianinterest in pushing their territory down through the undefined areas of theWakhan and towards the northwest of India. Afghan support had to be garnerednot only to create an Anglo-Afghan frontier, but also so that the Afghans, forthe sake of British security, could come to an agreement with the Russians todemarcate a northern border for Afghanistan.

 

Consequently, the Foreign Secretary of India, Sir MortimerDurand, was despatched to Kabul in October 1893 to negotiate an agreement forsuch a frontier with the Afghan king, the Amir Abdur Rahman. After a month of discussions,a treaty was signed allowing for the establishment of a line which, in thewords of the treaty, fixed ‘the limit of their respective spheres ofinfluence’. The treaty stated in Article 2 that ‘The Government of India willat no time exercise interference in the territories lying beyond this line onthe side of Afghanistan, and His Highness the Amir will at no time exerciseinterference in the territories lying beyond this line on the side of India’.[4]

 

Durand and the Afghan Amir had together sketched out on amap the ultimate course of the line, and this was in the main part demarcatedon the ground by various Anglo-Afghan frontier commissions between 1893 and1896. Some segments, however, on account of tribal disturbances and otherdifficulties remained undemarcated until the 1930s. Reaction amongst thePashtun tribes to the demarcation was generally (though with a few exceptions)negative. The Mahsuds attacked and burned the British Boundary Commission campin Wana in 1894, and in 1897, after the conclusion of the Commission’s work,there was a general rising which required the action of 60,000 troops tosuppress. It should be noted that the line not only divided the Pashtuns, butalso various tribal groupings within the Pashtuns, in particular the Mohmandsand the Waziris.

 

The Creation of Tribal Agents

 

By 1901, the region had assumed the political configurationwhich, with only minor alterations, has persisted to this day. At theinstigation of the new Viceroy, Lord Curzon, the North Western FrontierProvince (NWFP) was carved out of the old province of the Punjab. Within it,conventional British administration went only as far as the foothills of theSuliman Mountains. Beyond this, the Tribal Territories (FATA) were not part ofthe NWFP in terms of administration. They were not formally part of BritishIndia, and any power that the British had within them was by virtue ofagreements between the tribal chiefs and the British Crown. Divided into five (nowseven) separate agencies, their affairs were overseen to by Tribal Agents whoreported directly to the Government of India. Based in strongholds in each of theagencies, the agents would work in conjunction with local notables (maliks)to manage local affairs, relations with the tribes, the disbursement ofsubsidies, and matters of justice. Parts of the FATA were under the BritishFrontier Crimes Regulations (FCR) which were specially designed to accommodatethe customs of the region. This included provision for trial by jirga (tribalcouncil), the suppression of any right of appeal, concessions to the tribalpractice of vendetta and the use of collective punishment; all of these provisionscontinue to be in force.[5]The other, unadministered parts of FATA continued to be governed purely by the Pashtuntribal code (Pashtunwali). In terms of military engagement, Curzon set thestandard for a ‘close border’ policy, withdrawing troops as much as possible, andleaving the tribes to conduct their own affairs, with matters of defence left inthe hands of border levies.

 

Thus, by the beginning of the twentieth century, the BritishGovernment had achieved a long-cherished vision for the Indian frontier. Thiswas the ‘tripartite frontier’, which officials, including Curzon, believedwould give India the greatest security against Russian encroachment.[6] This policyheld that there should be not one, but three concentric frontiers for India.The first would be the end of the directly administered settled areas, whichwere under normal governmental control. The second would be a belt of vassalstates, under the influence, but not the sovereignty, of British India. The thirdfrontier would consist of a fully independent buffer state. In the case of thenorth western frontier, the role of the second frontier was assumed by FATA, andthe third frontier, or buffer state, by Afghanistan.

 

Contesting the Durand Line

 

The legal status of the Durand Line has long been indispute. Pakistan holds that it is the official international boundary betweenAfghanistan and Pakistan. The British Government, since Indian independence,has supported this view.[7]Afghanistan, by contrast, holds that the line is not valid under internationallaw and, certainly since independence, has refused to recognise it as theborder. It is instructive to survey the arguments made by each side to date, andthen to add to these new arguments, thanks to new research in original source material.

 

Pakistan’s case is simple, and on the face of it strong.[8] It holdsthat the Durand Line was established as the international border by treaty andthe assent of the Afghans in 1893, and was confirmed as such by furthertreaties in 1905, 1919, and 1921.[9]It further asserts that as a legitimate successor state to British India, itinherits the rights and obligations of British India, and the treatiesestablishing the Durand Line are no exception to this. As for Afghanistan’svocal repudiation of the treaties establishing the Durand Line, Pakistan refersto the well-known maxim of international law that once an internationalboundary is established by the assent of two parties, it cannot be changedafterwards without the assent of both of the parties. It is not possible for oneof two parties unilaterally to alter an international boundary between them.

 

The case made by Afghanistan is somewhat prolix, relying onmany different arguments.[10]It olds that the initial treaty in 1893 was obtained under duress. They suggestthat there was no genuine meeting of minds, and that the Afghan king did notunderstand what he was signing up to, and did not intend the line to be a fullinternational boundary. They also complain about the division of the Pashtunpeoples. For this, it must be remembered that the Pashtuns can be regarded asthe founding people of Afghanistan. In the mid-eighteenth century, Pashtuntribesmen under the first Afghan king, Ahmad Shah Durrani, were responsible forcarving out an Afghan Empire from the neighbouring Persian Empire and MughalIndia, which later evolved into the modern Afghan state. A claim frequentlymade by the Afghan government is that Afghanistan should be regarded as amother or umbrella state for all Pashtuns. They therefore complain that atIndian independence, when plebiscites were held amongst the British Indianterritories as to whether the states should join India or Pakistan, thePashtuns in the NWFP and FATA were not given any option also of joiningAfghanistan, or at least of outright independence; they claim, as theself-proclaimed protector of Pashtun interests throughout the region, that theyhave been denied self-determination. On top of this, they assert that Pakistanis not a valid successor state to British India, and therefore all treatyobligations made before Indian independence between British India and Afghanistanhave lapsed.

 

These are the strongest of the Afghan arguments. Others,rather weaker, include assertions that the instruments of the treaty wereforged by the British after the return of Durand to India, and a claim that thetreaty was only valid for a hundred years after 1893. The latter is an oft-repeatedcanard with no basis in any documentation whatsoever, and might be a garbledecho of the British hundred-year lease of the New Territories from China inHong Kong, which were made at around the same time as the Durand Treaty.

 

Many of the arguments put by the Afghan side are easily met.As to the question of state succession, it was held at the time of Indianindependence that although Pakistan was indeed to be regarded as a new statecarved out of India, the ‘Rights and obligations under international agreementshaving an exclusive territorial application to an area comprised in theDominion of Pakistan [thus including the Durand Line] will devolve upon thatDominion’.[11]

 

The point about self-determination is superficiallyattractive, but is also fraught with many practical problems. Afghanistan mightoriginally have been established as a state by the efforts of various of thePashtun tribes, but it can hardly be claimed that in history there has everbeen a moment where the Pashtuns as a whole have shown any peaceable desire tocoalesce into a unitary state.[12]Besides this, it must be remembered that there are more Pashtuns living in Pakistanthan in Afghanistan. It might therefore be argued that, for the sake of self-determination,Pashtuns in Afghanistan should be offered a plebiscite to join Pakistan, orelse to form an independent state with the Pashtuns over the Pakistani border; itwould be inequitable just to offer the option of self-determination just toPakistani Pashtuns.

 

The point of duress is also difficult to prove. In hismemoirs, Abdur Rahman appears to have given full assent to the drawing up ofborders for Afghanistan. However, these are of dubious authenticity and cannotbe taken as definite proof. The point can be clearly argued from other sources.It is not the case that Durand turned up in Kabul and dictated an agreement tothe Afghan king which he was ordered to accept on pain of punishment. In fact,the discussions took one month and were difficult and protracted.[13] They hadthe character of a proper negotiation with give and take, the British makingconcessions to the Afghans, particularly with respect to the Birmal tract ofWaziristan, which they could have otherwise have easily kept. The British,having suffered terrible losses in the Second Afghan War just a few years previously,were in no position to inflict any major military damage on the Afghan kingdom.They were so hamstrung by fear of Russian encroachment and the need to getAfghanistan to accept a northern boundary with Russia that the Afghan king hada strong negotiating hand and used it well in the discussions. Besides this,the demarcation of a line gave him many strategic advantages at that point intime, especially given that he was engaged in the work of attempting to imposeunity of his kingdom, still in disunity after the Second Afghan War. In thewords of Leon B Poullada, ‘the constraints placed upon him [the Afghan king]were to some extend compensated by perceived advantages buttressing his ownvolition so that, on balance, the duress involved did not amount to a suppressionof his will’.[14]

 

The Legal Status of Durand’s Line – New Evidence

 

The one argument made by Afghanistan which does stand up togreater scrutiny is the claim that the Durand Line was never intended to be afull international boundary. Their assertion is that it was intended to be aline of control which, for the sake of security, divided the area into zones ofinfluence. They also hold that assent was never at any point given to dividesovereignty over the tribal areas between British India and Afghanistan. Theofficials of the time ‘well versed in tribal problems, thought they were demarcatinga “frontier” in the sense of a zone rather than a “boundary” line marking anabrupt transition of sovereignty’.[15]In this respect, there would have been a meeting of minds between the Britishand the Afghans when the treaty was first negotiated. The point has been madeby both Afghan and Western historians, for example Kakar, Dupree and Poullada,but to date using evidence which does not exactly pin down the nature of theDurand Line. Historians have variously quoted Durand himself, who after thenegotiations said that:[16]

The tribes on the Indian side are not to be considered as withinBritish territory. They are simply under our influence in the technical senseof the term, that is to say, so far as the Amir is concerned and as far as theysubmit to our influence or we exert it.

 

Similarly, the Viceroy, Lord Elgin, writing in 1896:[17]

The Durand Line was an agreement to define the respectivespheres of influence of the British Government and of the Amir. Its object wasto preserve and to obtain the Amir’s acceptance of

the status quo.

 

However, a memorandum written by Sir Denis Fitzpatrick, theLieutenant-Governor of the Punjab and thus the most senior British Governmentofficial in the province responsible for the frontier, appears to clinch thispoint. This memorandum, which does not seem to have been referred to by otherscholars, was written in 1896 (though he emphasises that this was also thegovernment view in 1893 when Durand was sent to negotiate with the Afghan King)and gives the official British Government view as to the legal status of theDurand Line. Fitzpatrick

writes: [18]

I think it is of the highest importance that it should simplybe understood to be a line on our side of which the Amir’s [Abdur Rahman]interference except when we allow him to chastise a tribe, shall be absolutelyexcluded … I think if the agreement between us and the Amir were treated to beanything like a partition of territory, it would have a bad effect, andalthough I see it must practically involve something like a partition of … the‘Sphere of influence’ I think it would be unwise to put it expressly that way.

 

The intention behind its establishment was not to annexterritory or extend sovereignty, but to ‘obviate the need for necessity foreffective occupation as a bar to annexation or encroachment by a competingstate’. Fitzpatrick is very clear that the government wanted to avoid theappearance of a partition of territory since it might ‘at some points of theline, cast on us obligations of a very onerous nature without any commensurate advantage;and 2nd, because it might alarm the tribes and set them against us’. Fitzpatrickthen goes on to write in a note that the status of the Tribal Areas, beyond theboundary of the settled districts, should only be regarded as a ‘possible protectorate’and nothing more. Although such an area might, in the course of time, tendtowards an area over which full sovereignty is held, it could only be the casewhen ‘full and close control’ couldbe exercised over the territory all the way upto the Line. It therefore seems clear that there was no intention to makethe Durand Line an international boundary. Further evidence to this end isadduced from the wording of the actual 1893 treaty. The form of words used isat first sight strangely convoluted. As quoted above, it merely claims to limitthe states’ ‘respective spheres of influence’, and is a line over which eachstate pledges not to ‘exercise interference’. This is to be contrasted with theagreement that Durand signed with the Afghan King at exactly the same moment in1893, garnering Afghan agreement for a northern border with Russia. Here, theword used is simply ‘boundary’.[19]It is striking that at the

same moment such different forms of words should be used. Byconvention, the word ‘boundary’ refers to international sovereign borders,whereas ‘frontier’ refers to other grades of border. The fact that the word isused in one treaty but not the other further confirms that there was nointention to make the Durand Line an international sovereign boundary.

 

The question remains whether, even though the Afghans mightnot have accepted the Durand Line as a sovereign boundary in 1893, they didaccept it as such in the later treaties. Here, it must be said that there wasno change of the position. In every treaty after 1893, there is always areference back to an affirmation of the original provisions of the 1893 Durandtreaty, without any substantive changes whatsoever of its original nature.Hence, if it was the original intention for the line to be nothing more than adivision of zones of influence in 1893, the Afghans at no point ever agreed toit being anything more than this.

 

Legal Nuance: The Significance of the Executory Clause

 

A further point of law which has at no point been consideredby commentators, but which caused considerable worry to the British ForeignOffice in the 1950s, was the question of the status of the clauses establishingthe Durand Line. In international treaties, there are two types of clause, ‘executed’and ‘executory’. The former describes a clause which seeks for something to bedone once only. The latter describes an act which is continual, and requiresthe constant participation of both parties for its fulfilment. Clauses relatedto the establishment of sovereign boundaries are ‘executed’: once they are done,they stand even if one party should repudiate them, and cannot be revoked. Clausesfor matters such as trade and tariff agreements are executory; they arecontinuous actions, which can be broken off if one of the parties should so decide.

 

It was the observation of Sir Dan Lascelles, the BritishAmbassador in Kabul, that the clauses in the 1893 Durand Treaty had theappearance of being executory rather than executed clauses.[20] Hence, hereasoned, the Afghan government – which was, at that time, eager to repudiatethe Durand Line and which had already denounced the frontier treaties – mightwell be in their rights to withdraw from any acknowledgement of the DurandLine: it being an executory clause, they would legitimately be able to ceaseany recognition of it, despite earlier treaties. The point had not, at thismoment, occurred to the Afghan government, but Lascelles feared that it mightdo, and were the matter to come to an international tribunal, Afghanistan mightwin a case against Pakistan. This would cause considerable humiliation, givenearlier British guarantees to the government of Pakistan that the line waslegally watertight as an international boundary.

 

The contested clause reads:

 

The Government of India will at no time exercise interferencein the territories lying beyond this line on the side of Afghanistan, and HisHighness the Amir will at no time exercise interference in the territorieslying beyond this line on the side of India.

 

It could be strongly argued that an agreement not to‘exercise interference’ constitutes an action that is ongoing and continuous,requiring a constant effort from the contracting parties, rather than somethingwhich is executed once and for all. Hence, under these terms, it can be arguedthat the clause is, as Lascelles feared, an executory rather than executed clause,and open to repudiation by either party.

 

Lascelles engaged in a correspondence with the ForeignOffice Legal Department, who attempted to reassure him on this point. Relyingsolely on the 1893 treaty for their authority, they reminded him that underinternational law, clauses setting up international boundaries were to beregarded as executed; and that since the Durand Line was an internationalboundary, it could only be seen as an executed clause, and therefore was immuneto repudiation by the Afghan side. However, bearing in mind the analysis aboveof the legal nature of the Durand Line, this assertion of the Foreign OfficeLegal Department seems seriously open to question. It has been established thatthe Durand Line was at no point agreed to have been an international boundaryline, or a line dividing areas of sovereignty.[21]Therefore, it cannot automatically be said to be an

executed clause.

 

No Man’s Land

One of Lascelles’s fears about the language which had beenused by British Government representatives was their repeated statements thatPakistan had ‘inherited’ the Tribal Territories (FATA) from the British. This wasnot, he hastened to remind them, the case. The Tribal Territories, as has beenstated above, were not a part of British India. They were, in the words ofFitzpatrick, possible protectorates. The British did not assume any sovereigntyover them. They merely stood in the position of vassal territories. Anyfunctions administered in the Tribal Territories by the Indian Government werecarried out by virtue of agreements made directly between the tribes and theBritish Crown. At the moment of Indian independence, these agreements weredissolved, so that, in the words of a Foreign Office legal adviser, a ‘gap’ or‘sort of no-man’s-land’ existed in the Tribal Territories after independence, intowhich it was expected that Pakistan would step. Pakistan could only take aninterest in the Tribal Territories as a result of its own positive effort to  establishagreements with the tribes such as the British Crown itself had once possessed.There was no way in which Pakistan could have been the inheritor of any of therights that the British Crown had possessed with regard to the Tribal Territories.A legal case can even be made that the appearance of such a ‘gap’ at the momentof Indian independence invalidated the Anglo-Afghan treaties, so radicallyaltering the circumstances under which they were negotiated that they could notbe expected to continue in force.

 

It is especially illuminating in this regard to note thecomments of the Foreign Office Legal Department on the ‘sort of no-man’s-land’status of the Tribal Areas immediately after Indian Independence:[22]

It might be argued that in these circumstances, and despitethe fact that no automatic change in the frontier line would have occurred, itwould have been open to Afghanistan if she had acted at once, to negotiate withthe tribal chiefs, as being the party in actual and temporarilysemi-independent possession of the areas on the other side of the frontier,some revision of that frontier. It might even be argued that Afghanistan mighthave taken the view that the tribal areas, not being in the ordinary sensesovereign independent States, were devoid of rights in the strict internationalsense, and were therefore susceptible [to] annexation, and that Pakistanjurisdiction not at that time extending over those areas, that country wouldhave had no right to object.

 

The Convention of Evolution

 

One further and final point of law in the regard of theestablishment of international state boundaries relates to the concept of statepractice. This holds that it is not always necessary for an instrument such asa formal treaty between states to be made to create an international sovereignborder. By contrast, it holds that if two contiguous states behave over aperiod of time as if a certain line is an international sovereign border, thenit becomes de jure an international sovereign border, although not explicitlyspelled out as such in a treaty. It is envisaged that in such a way lines ofcontrol might evolve into borders over time; Fitzpatrick himself conceded sucha thing might be possible in his 1896 memorandum, should full British administrativecontrol ever be imposed all the way up to the Durand Line (which was never tobe the case).

 

Should such a case ever come to international arbitration todetermine whether a line had evolved into an international sovereign border, itwould be the duty of the arbitration body to examine the behaviour of thestates on either side of the line to see if they had treated the line for aprolonged period as such a boundary. If the case of Afghanistan and Pakistanwere to come to such a tribunal of international arbitration, it is arguablethat it would find that neither country had treated the Durand Line as aninternational boundary. It is not necessary to rehearse the evidence in fullhere, but a brief summary of the conduct of either side will suffice to showthe strength of the case.

 

On the part of Afghanistan, even after they signed the 1893treaty, the Afghan Amir by no means ceased to ‘exercise interference’ on theBritish Indian side of the Durand Line. It is well attested that he continuedto send grants of money, arms, dresses of honour and deputations to tribalchiefs on the British side of the line. Tribal chiefs from the British side ofthe line still continued to play an extensive role in the Afghan state, beinginvited to jirgas in Kabul, and later even participating in the choiceof new Afghan monarchs. At times of tension, Abdur Rahman also used variousmeans of propaganda and agents to incite risings against the British.[23] Suchagitation, which continued through the twentieth century, was significantlystepped up after Indian independence. Various armed Afghan tribal incursions,with the assistance of the Afghan government and army, were made from 1947until the early 1960s. Afghanistan gave political support to parties supportinga Pashtun state independent of Pakistan, and also to agents calling forindependence for the Tribal Territories, or their incorporation intoAfghanistan. Propaganda was also extensively issued on the subject. Support forsuch parties has been acknowledged by Afghan officials to be continuing even tothe present day. All of this is as a result of the Afghan government’spersistent refusal to recognise the validity of the line.

 

On the side of Pakistan, the state has repeatedly given itssupport to various proxies with the intent of taking control of large swathesof Afghanistan, especially the regions south of the Hindu Kush, in what can beseen as a reprise of the British attempt to achieve the ‘scientific frontier’in the 1880s. These actors have included the mujahedeen commanders in the civilwar in the 1990s; and the Taliban, first after 1995, and a second time in thecurrent decade, when it became unclear whether the international communitywould have the will to remain in Afghanistan and prevent the collapse of theKabul government. In all of these cases, Pakistan has given succour to theseproxies by way of safe haven, money and logistical support, and they have beeneager to move into any power vacuums in Afghanistan, extending their influencewell beyond the Durand Line.

 

There is the further point that reports have been made ofPakistan unilaterally moving the frontier line westwards into Afghan territorybeyond the line of demarcation. For example, Sarah Chayes reported that afterthe fall of the Taliban in 2001, Pakistani troops bulldozed an Afghan bazaar atthe Chaman border crossing, pushed the border a mile westwards, and built a newcrossing having annexed this new sliver of territory.[24]

 

Conclusions

There are various other arguments that could be made as tothe legality of the Afghan-Pakistan frontier. Many, such as the fear that the jirgaswhich were held to gain Pashtun tribal assent to

Pakistani suzerainty in the Tribal Areas were not conductedwith international observers nor according to international norms, wereprivately expressed by Lascelles in correspondence with the Foreign OfficeLegal Department, along with the hope that such arguments would not occur tothe Afghans, given the strong support that the British had given to Pakistanover the legal status of the line. However, from the arguments outlined here,it is clear that the status of the Durand Line is very much open to question.

 

The objection might now be made – what does this matter?What is the possible practical effect of the Durand Line being, or not being,an international sovereign border? As has been stated at the beginning of thispaper, there are two major effects, the first in the military field, and thesecond in the diplomatic and political spheres. The first point regards security.Although the intention was that each side should predominantly attempt to keepthe peace by forming relations with the tribes on their own sides of the Line,it was gloomily conceded that such was the difficulty and volatility of the area,this vision was too much to hope for. The architects of the Line took it asread that neither side on its own would be able to maintain security;consequently, hot pursuit would be an integral part of the constitution of theDurand Line. The preservation of security would not be possible without it. AsFitzpatrick put it, there should be no interference from the Amir ofAfghanistan on the British side of the line ‘… except when we allow him to chastisea tribe …’. The need for either side to cross over to conduct such operationswas envisaged very clearly by the architects of the Line. Fitzpatrick againspells this out even more distinctly. If the British did not pursue a fullforward policy, but rather held to a close border policy, as was the case afterthe 1897 uprising:

 

There would be places in which for a long time to come weshould not attempt to establish internal peace or prevent the tribes fromfighting amongst themselves and places like the Afridi country where it wouldbe difficult for us to prevent the tribes from raiding on the Amir’s territoryand in which accordingly we should in a proper case have to allow the Amir tocounter-raid, though on the understanding that he would not take permanentpossession.

 

The relevance of this to the current situation ofcross-border attacks cannot be escaped. Yet it cannot be denied that this ishardly satisfactory. A border that requires hot pursuit as one of the componentsof its security is not a border with which the modern world can be satisfied.This leads to the second point about the potential for the evolution of theborder, to put it and the wider security of the region on a firmer footing. Theofficials who designed the Durand frontier did not intend there to be a sharp delimitationof power and sovereignty across the line. Such was not possible given thenature of the people or terrain, where tribesmen cross freely, where peoples onboth sides of the line are closely linked by familial ties and custom, wherethe line cannot be guarded, or in many cases even marked out on the ground. Itis folly to attempt to treat such a line as an international border when it patentlycannot be administered as such. Moreover, it is also folly to maintain such a frontierwhich was evolved as a response to a nineteenth-century problem – the securityof the British Empire in India in the face of an expansionist Russia – when thechallenges now facing the area are quite different, and when it was acknowledgedby the architects of the Line that it was hardly satisfactory even when it wasdesigned.

 

The fact that the Durand Line was not intended to be aninternational sovereign border, and cannot properly be administered as such,suggests that the best way to solve the many problems on either side of it –poverty, illiteracy, poor health, corruption, terrorism, laws which contraveneall notions of human rights – is not to persist in the attempt to split sovereignty,but to share it. An area so unified in terrain, population and custom cannotbear inequalities in administration, but requires a common approach on both sidesto solve the problems. The Durand Line need not necessarily be discarded as away of demarcating Afghanistan and Pakistan, but the pooling of sovereignty andfull cross-border co-operation – such as has occurred in Northern Ireland – islikely to be the only way forward. It is little known that such a solution wasgiven serious consideration by the Foreign Office in the 1930s (even to the extentof holding negotiations with the Afghan Government on cross-border co- operation),and again by the US State Department immediately after Indian Independence, butunfortunately the momentum was insufficient to come to a settlement.[25] There ismuch pride and political capital invested on both sides in the current position– it would be a blow to Pakistani pride to admit of any change of position onthe Durand Line, and might perhaps affect the question of its other borders,and Afghanistan politicians are loath to give up any absolute claims over thePashtun tribes. However, it is only

by overcoming these totems that any progress will be madetowards the peace and development which is so longed for on all sides.

 

 



[1]The best recent treatment has beenmade in a recent American Institute of AfghanStudies Paper, ‘The Durand

Line: History, Consequences and Future, November2007’, <http://web.bu.edu/aias/reports/durand_conference.pdf>.

[2]For a full account of the history of the Durand Line, see Bijan Omrani, ‘TheDurand Line: History and Problems of the Afghan-Pakistan Border’, AsianAffairs (Vol. 40, Issue 2, July 2009), pp. 179-195.

[3]See James W Spain, The Pathan Borderland (The Hague: Mouton &Co.,1963), p. 117.

 

[4]The full text of this and subsequent treaties can be found in Percy Sykes, AHistory of Afghanistan, Vol. II, (London: Ams Pr Inc, 1940) p. 352ff.

 

[5]Some alterations were made to these laws in July 2009, but they remainsubstantially in force.

[6]The concept of the ‘three-fold frontier’ (Curzon’s phrase, used in his lectureon frontiers) is fully explained in Ainslie T. Embree ‘Pakistan’s ImperialLegacy’, in Pakistan’s Western Borderlands (New Delhi, 1971), p. 131.

 

[7]See Olaf Caroe, The Pathans (Oxford: Oxford University Press, 1958), p.465.

[8]The viewpoint of Pakistan is well summed up in Azmat Hayat Khan, The DurandLine: Its Geo-strategic Importance (Peshawar: Area Study Centre, Universityof Peshawar, 2000).

[9]See the appendices in Sykes, op. cit, for the full text of the treaties.

[10]A full summary of the Afghan position and interpretation of history is given inProfessor M Hasan Kakar, A Political and Diplomatic History of Afghanistan,1863-1901 (London: Brill, 2006).

 

[11]See Indian Independence (International Arrangements) Order, 1947.

[12]See Spain, op. cit., p. 30ff.

[13] The full progress of the negotiations, at least fromthe view of Durand, can be seen in his correspondence with the Viceroy of Indiain Mss. Eur. D727/4, British Library, Asia, Pacific and Africa Collections.

[14]See Leon B Poullada, ‘Pushtunistan: Afghan Domestic Politics and Relations withPakistan’, in A T Embree (ed.), Pakistan’s Western Borderlands (NewDelhi, 1971).

 

[15]Ibid.

[16]In an interview with Durand quoted by G W Leitner, ‘The Amir, the FrontierTribes and the Sultan’, The Asiatic Quarterly Review Series 3, 1897, p.4, 237, quoted by Kakar, op. cit.

[17] Elgin to Hamilton, 22 April 1896, quoted by Kakar, op.cit.

[18]See IOR/PS/5265, ‘Note by Sir Denis Fitzpatrick’, p. 61 ff.

[19] See Sykes, op. cit., p. 352.

[20]See FO/371/111939-111941, National Archives, Kew.

[21]This seems to be a matter which escaped the Foreign Office after Indianindependence. Poullada conjectures that Whitehall officials, many years afterthe agreements had been made, and being ‘less familiar with the tribalsituation and who were conditioned by traditional European notions of internationalboundaries, construed the Durand Agreement as an international territorialsettlement rather than a device for facilitating the administration andpacification of the peoples who inhabited the tribal zone’. The Lascellescorrespondence seems to confirm this conjecture.

[22]See note 13.

[23]See David Loyn, Butcher andBolt (London: Hutchinson, 2008), p. 146.

 

[24]See Sarah Chayes, The Punishment of Virtue (London: Penguin, 2006), p.132.

[25] See DO/35/6696 and FO/371/10385,F14257/G, National Archives, Kew.