Copyright © 2011 EastWest Institute The EastWest Institute is an international, non-partisan, not-for-profit policy organization focused solely on confronting critical challenges that endanger peace. EWI was established in 1980 as a catalyst to build trust, develop leadership, and promote collaboration for positive change. The institute has offices in New York, Brus- sels, and Moscow. For more information about the EastWest Institute or this paper, please contact: The EastWest Institute 11 East 26th Street, 20th Floor New York, NY 10010 U.S.A. 1-212-824-4100 [email protected], www.ewi.info Recognizing the Durand Line A Way FORwaRD FOR AFGHanistan AND PAKistan? Brad L. Brasseur 4 EWI • RecOGNIZING THE DuRAND LINE INTRODUCTION he Durand Line was drawn up in 1893 as the border between Afghanistan and British India after intense negotiations between the founder of modern Afghanistan, King Ab- dur Rahman Khan, and the British Foreign Secretary of India, Sir Henry Mortimer Du- rand, after whom the line was named. Since then, there have been endless debates on Tevery aspect of the 1893 agreement among politicians, intellectuals and media on both sides of the Durand Line – debates that have further complicated the already difficult relationship between Afghanistan and Pakistan. While Pakistan recognizes the Durand Line as its official border with Afghanistan, consecutive Afghan governments so far have refused to acknowl- edge the Durand Line as Afghanistan’s border with Pakistan. The author is fully aware that the recognition issue continues to constitute a highly sensitive topic. Yet the author feels the time has come for a constructive debate on the recognition is- sue in light of the challenges the region will face in coming years. Obviously the debate on Du- rand Line recognition will require time and prudence, but the author is convinced such debate should begin. The security situation on both sides of the Durand Line remains of great concern not only to both countries but also to the international community. With the upcoming withdrawal of coalition forces from Afghanistan in 2014 and the full handover of security responsibility to Afghanistan’s National Security Forces, creating conditions for sustainable stability between Afghanistan and Pakistan based on the principles of non-interference, good neighborliness • EWI and mutual respect is of utmost importance. Against this backdrop, this paper argues that the Durand Line should constitute the legal Rec border and as such be recognized by both countries. In fact, as this paper outlines, the Du- OG rand Line can already be considered a border under international law. International practice NI amounts to de facto recognition, as is explained in this paper. Z IN G Recognition could be a major step toward sustainable trust building between Afghanistan and T Pakistan. In addition, formal recognition of the border and efficient border management that H E st makes good use of 21 century tools are mutually dependant. Recognition would not only Du facilitate the establishment of a more secure environment, but also speed economic develop- R ment for the Pashtun tribes who live on both sides of the Durand Line. AN D L The paper argues that formal recognition of the Durand Line must, however, be accompanied INE by determined Pakistani efforts to assure much better security, governance, and economic development in the Federally Administered Tribal Areas (FATA). To support this effort, the in- ternational community should use a “carrot approach,” guaranteeing increased investment in the border region after border recognition is achieved. 5 Recognizing the Afghanistan’s handling of the border is- Durand Line sue has been contradic- tory: while not recognizing the Durand Line as the formal border Afghan Treaty).2 In addition, the Durand Line with Pakistan, Agreement of 1893 led to continued annual I. payments and shipments of weapons by the it has under- British to the Afghan King until the 1920’s, taken numer- After many years of difficult negotiations on which makes it difficult to follow any reason- his country’s eastern border with the British ing that the Durand Line was signed under ous steps that Empire, the Afghan King Abdur Rahman, ap- duress.3 amount to de peared quite satisfied with the result that was achieved. He noted in his diary: An argument put forward by some that the facto recogni- agreement of 1893 should have expired in tion. “At the time when I was occupied 1994 — exactly one hundred years after it in breaking down the feudal system was negotiated, like the British agreement on of Afghanistan and moulding the Hong Kong — does not take into account that country into a strong consolidated unlike the British–Chinese agreement on Kingdom, I was not unaware nor Hong Kong, no expiry date was ever written neglectful of the necessity of defin- on the official Durand Line treaty.4 ing my boundaries with the neigh- bouring countries. I well knew that The history of de facto recognition of the bor- INE it was necessary to mark out the der by Afghan leaders themselves puts into boundary lines between my domin- D L question the country’s formal stance against ions and those of my neighbours, recognition: AN R for the safety and protection of my Kingdom, and for purpose of putting Du The government accepted annual • E a check on their advances and get- subsidy payments in exchange for H T ting rid of misunderstandings and signing the original Durand agree- 1 G disputes.” ment for over twenty years after it IN 5 Z was signed. NI The King’s remarks make it difficult to fol- • Afghanistan has continuously treat- low any reasoning of several generations OG ed the border as the de facto inter- of Afghan leaders that the Durand Line was national boundary in terms of tran- Rec forced upon the country by a colonial pow- er. Moreover, Afghanistan has reconfirmed 2 Dr. Sultan-I-Rom, “The Durand Line the Durand Line Agreement after the death Agreement (1893): Its Pros and Con.” Valley Swat, Vol. 1, EWI • EWI (2004), http://www.valleyswat.net/literature/papers/ of King Abdur Rahman and his successors The_Durand_Line_Agreement.pdf. 11. three times: in 1905 (Anglo Afghan pact), 6 3 Ibid. 1919 (Treaty of Rawalpindi) and 1921 (Anglo 4 Afghan Mirror, “Facts on the Durand Line.” (2006), Accessed April 15th 2011, http://afghanmirror. tripod.com/id25.html. 5 Aga Amin. “Resolving the Afghan-Pakistan 1 S. Fida Yunas. “The Durand Line Border Border Question.” Afghanistan Study Centre Kabul.( Agreement: 1893.” University of Peshawar (November June-August 2004). Accessed April 15th,2011, http:// 2005): 4. www.scribd.com/doc/21715514/Durand-Line sit, trade and visas for international on Respect of Treaties (VCSSRT) up- travelers. holds uti possidetis juris that bind- • More recently, in the Third Regional ing bilateral agreements are handed Economic Cooperation Conference down to successor states. Therefore on Afghanistan (RECCA) meeting even though Pakistan was estab- in 2009, Afghan leaders agreed to lished in 1947, several decades after work on an efficient, integrated, the original Durand Line Agreement, and modern border management it is still party to that agreement. mechanism to promote security • International courts have universally and development. Afghan leaders upheld uti possidetis juris and thus also announced that they would up- any binding bilateral agreement date their customs law to conform with or between colonial powers to World Trade Organization (WTO) are “passed down” to independent and World Customs Organization successor states. A unilateral dec- (WCO) international requirements.6 laration by one party, such as Af- ghanistan’s disavowal of the Durand Pakistan’s In sum, Afghanistan’s handling of the border Line, has no effect to the contrary, claim that the issue appears contradictory to say the least: because boundary changes must be While not recognizing the Durand Line as the made bilaterally.8 Durand Line formal border with Pakistan, it has undertak- is an official en numerous steps that amount to de facto With regard to international practice, Pak- recognition of the Durand Line as an interna- istan can claim that: border is tional border. supported by • In 1949, the British House of Com- mons officially reconfirmed their international original position of 1893 on the Du- law and rand Line as the legal border be- tween Afghanistan and Pakistan. In practice. II. 1950, the Queen of England subse- quently recognized that Pakistan is, Pakistani governments, on the other hand, according to international law, the have continuously maintained that the Du- inheritor of the rights and duties of rand Line is the legal border between the two the old Government of India and that countries, despite the fact that Pakistan was the Durand Line is its international only established as a sovereign country after western border.9 • EWI the partition of India, 54 years after the Du- • The secretary-general of the United rand Line Agreement. For this position, Pak- Nations is the official depository of Rec istan has the legal argument on her side: the Vienna Convention on Succes- sion of States that proclaims uti OG • The international law principle uti possidetis juris. Although the United NI Z possidetis juris enshrined in the Vi- Nations has not made any formal IN enna Convention, states that newly statement about the Durand Line, G formed sovereign states should its approval of this principle implies T H have the same borders that they an acceptance for that particular E had as colonial states; Pakistan thus border.10 Du does not need to conclude a formal R AN agreement with Afghanistan to keep 7 D L the disputed territory. The Vienna 8 United Nations. “Vienna Convention on Convention on Succession of States Succession of States in respect of Treaties 1978.” INE Treaty Series, (1946), Accessed May 18th 2011, http:// 6 RECCA II.