The Durand Line: A Legal Perspective and Way Forward

The Durand Line, a significant historical marker, has been a major cause of turbulence in the diplomatic relations between Pakistan and Afghanistan. Its historical significance, deeply rooted in the region's 19th-century geopolitics, is a crucial aspect that cannot be overlooked.

The agreement establishing the Durand Line, signed on November 12, 1893, between Sir Mortimer Durand and Abdur Rahman Khan, the Emir of Afghanistan, is a pivotal moment in the region's history. This agreement, often misquoted and misinterpreted, has been a source of contention, leading to a strained relationship between Afghanistan and Pakistan.

The main reason is that some elements in modern-day Afghanistan refuse to acknowledge the Durand Line. Kabul argues that this agreement was made under duress and, thus, not enforceable. It was meant to be admissible only for a hundred years till 1993. Furthermore, Afghanistan argues ‘force majeure’ that the event of independence of the Subcontinent from colonial rule voids all prevailing agreements between the British Government of India and other parties as the British Government of India no longer exists, and there is an emergence of another state altogether, Pakistan.

Under the legal framework of the Vienna Convention on the Law of Treaties, specifically Article 62, the Government of Pakistan is bound to uphold all international treaties previously undertaken by the British Indian Government, including the Durand Line Agreement.

Customary International Law, later codified in Article 11 of the Vienna Convention on the Succession of States concerning Treaties, dictates that (a) the succession of states does not affect a boundary established by a treaty or (b) obligations and rights established by a treaty relating to the regime of a boundary. Under this, Pakistan, therefore, has no obligation to renegotiate or amend any previous agreements regarding its border with Afghanistan.

Instead of considering this, Afghanistan unilaterally declared on 26 July 1949 that it believed the Durand Line was an ‘imaginary line’ and that all agreements regarding this border were void. Afghanistan fails to remember that it wasn’t just in 1893 that they signed an agreement regarding their border. Still, in 1905 , an agreement to continue the prevalent contracts between the British Government and Abdur Rahman Khan was signed due to the passing of the Emir.

Furthermore, in 1919, a detailed contract was signed between the British and Independent Afghan governments, establishing the modern-day border. It should further be noted that none of these three agreements was signed between the Government of India and Afghanistan but between the Government of Britain and Afghanistan, and when ‘force majeure’ did occur, the death of the Emir of Afghanistan or the establishment of the independent government of Afghanistan, the British took it upon themselves to sign a fresh document, even if the clauses were verbatim, with just the names of the parties changed to reflect changes in the status of Afghani politics and leadership.

Furthermore, Afghanistan cannot renounce the Durand Line Agreement unilaterally due to the principle of ‘uti possidetis juris’. This principle states that post-colonial states like Pakistan should maintain the same borders as the preceding state. In the Durand Line Agreement context, the border established by the agreement should be respected and maintained by the successor states.

The legitimacy of the Durand Line as an international border was further cemented in the Geneva Accords of 1988. This was corroborated in various United Nations Security Council Resolutions, such as Resolution 1267, which recognises the Durand Line as an international border and states that the principle of non-intervention shall apply.

Meanwhile, in Kabul, some believe that any government that recognises the Durand Line would lose the support of the public, which views it as nothing more than a colonial heirloom with no legality or reality. This highlights the intricate political implications of the Durand Line, which often overshadow its legal, geographical, or ethnic aspects.

This is further emphasised by the fact that after the dissolution of the Union of Soviet Socialist Republics (USSR), Afghanistan never questioned its borders with the newly emerged and independent Central Asian States.

It should be noted that Kabul has never formally launched any initiative to negotiate the current agreement, and Afghanistan has continued to abide by the clauses of the Durand Line Agreement. Afghanistan has never raised the Durand Line issue at any international forum with Pakistan. It has continued to carry out operations along with Islamabad at immigration and customs checkpoints along the so-called “disputed border”, a testimony that Kabul recognises it as the valid border between states.

Pakistan decided to fence its border with Afghanistan against cross-border terrorism. Under the UNSC Resolution 1373, Pakistan has every right to fence the border with Afghanistan to deny safe haven to those who finance, plan, support, or commit terrorist acts using their respective territories against other states or their citizens. Furthermore, taking a leaf out of the US Secure Fence Act 2006, Pakistan can also lawfully fence the Durand Line on its side of the border without Afghanistan’s consent, following a similar action taken by the United States of America.

However, to maintain and build better relations with its neighbour, it is recommended that Pakistan may stop using the term “the Durand Line” to refer to its international border with Afghanistan. The term may also be removed from the national curriculum but remain the same in documents for historical accuracy.

Above in view, it is clear that having no legal standing, the Durand Line issue is raised as and when it is politically convenient for the Afghan political regimes to distract domestic public opinion.