INTERNATIONAL borders mark off the territory of one country from the other, signifying the sovereignty of a state over its citizens, resources and territories. Special rules under international law have been developed over a long period to impart fixity and certainty to international borders. Clearly demarcated borders are the hallmark of international peace and security. Disrespect or denial by one country of the borders of another amounts to indirect denial of the integrity and independence of the latter. The Charter of the United Nations clearly prohibits the threat or use of force against the territorial integrity or political independence of any state.

After the recently held peace talks in Doha between the Pakistan and Afghan Taliban governments, Qatar’s foreign ministry on Sunday issued an ‘amended’ press statement regarding the results of peace talks between the two neighbours. In the earlier statement issued on Saturday, optimism was expressed that the ceasefire would de-escalate tensions along the Pakistan-Afghanistan border. However, presumably strong objections were raised by the Afghan government against the use of the word ‘border’ in the press release. The press statement was reissued and the word ‘border’ omitted.

Kabul does not act as a responsible state when it denies the status of the Durand Line as the international border between Pakistan and Afghanistan. The amendment of the press release is yet another example of the obduracy of the Afghan government, which has its genesis in the early 1950s. Despite the passage of time, Afghanistan has not been able to come up with any historical or legal argument in favour of its amorphous and unsubstantiated denial except for the assertion that the Durand Line treaty of 1893 was executed ‘under duress’ by the then Afghan king. So let’s take a look at the ‘duress’ argument.

The Durand Line Agreement was not executed in isolation by only one ruler of Afghanistan. It was affirmed and reaffirmed, without protest, successively by several kings of Afghanistan in treaties executed between the British and Afghan governments in 1919 (Treaty of Rawalpindi), 1921 (Kabul Agreement) and 1930 (reaffirmation of the Kabul Agreement). Under customary international law and Article 26 of the Vienna Convention on the Law of Treaties, 1969, every state is obliged to perform its international obligations in good faith. The Afghan government contends that the VCLT, which came much after the Durand Line Agreement, cannot retroactively create international obligations. However, this line of argument is not correct because the VCLT is well recognised as falling in the category of what are referred to as ‘codifying treaties’, ie, treaties that document long-standing customary norms. They are to be contrasted with ‘law-making’ treaties, which enact a new law for the first time such as the ones relating to nuclear and chemical non-proliferation. Therefore, VCLT does not adversely affect the standing of treaty of the Durand border. Rather, it endorses it.

Afghanistan does not act as a responsible state when it denies the status of the Durand Line as the international border.

Under Article 62 of the VCLT, a state is bound to uphold boundary treaties made by its predecessor. Pakistan upon independence in 1947 became bound to uphold the Durand Line Agreement signed by the British with the then Afghan ruler. Likewise, the Vienna Convention on the Succession of States in Respect of Treaties, 1978, recognises international borders inherited through the succession of states. Here also the objection to retroactivity fails as both these articles codify customary international law, which binds all states irrespective of the existence of treaties. Further, the VCSSRT merely re-enacts the well-respected old principle of ‘uti possidetis juris’, which recognises the borders of newly independent states as valid. The principle also has received the judicial stamp in the case titled the ‘Superintendent Land Torkham vs Zewar Khan’ decided by the Supreme Court of Pakistan and reported as PLD 1969 SC 485.

Further Pakistan’s admission to the UN as a member state and the recognition of its boundaries unconditionally by the global body shows the acceptance of the Durand Line as the international border. In 1949 and 1950, the recognition on behalf of the British Crown and the House of Commons of the Durand Line Agreement as creating the international border was yet another factor in Pakistan’s favour. The US likewise recognised the Durand Line as the international border in 1956, and reiterated its position in 2012.

UNSC Resolution 1267/1999 reaffirms the Durand Line as the de jure international border. The USSR and US recognised it as the international border in the Geneva Accords of 1988. Afghanistan itself has recognised implicitly the Durand Line as the de facto international border when it comes to transit, trade and issuing visas for international travellers, etc. The much-hyped mantra of expiry of the Durand Line Agreement in 1993, like the expiry of the Convention on the Extension of Hong Kong Territory after a century, is misplaced as the Durand Line Agreement, contrary to the Hong Kong Convention, does not contain any such stipulation.

Afghanistan also claims easement rights over the Durand Line for its citizens and objects to the fencing of the border by Pakistan. However, both claims are unfounded as they find no mention in the Durand Line Agreement. Pakistan, of course, is acting in furtherance of its objects of national security by fencing the international border and no objection thereto can be taken under international law. The US likewise unilaterally fenced its border with Mexico under the Secure Fence Act, 2006, enacted by the US Congress. Easement rights are only reserved for tribes that straddle both sides of the international border. Other citizens of Afghanistan cannot claim to enjoy easement rights.

Above all, the Afghan transit arrangement itself serves as evidence that the Durand Line, for decades, has been recognised by Customs and other state authorities of the two countries as the international border.

Since the argument that the Durand Line is not an international border is not tenable under international law, it is no wonder it has not found support from any country except Afghanistan.

This article was originally published by Dawn and is reproduced here for educational and informational purposes only. The views and opinions expressed are solely those of the author, Ahmer Bilal Soofi, who is an Advocate of the Supreme Court of Pakistan and a former Federal Caretaker Minister for Law and Justice.

Also See: Pak-Afghan Border: Dividing History, Identity, and Politics