By Shivam Shekhawat*
The bilateral relationship between Afghanistan and Pakistan has always been under duress. A major point of contention between the two neighbours is the status of a colonial legacy—the Durand line, cutting through the Pashtun-dominated tribal areas. In an already precarious environment, with the ascendancy of the Taliban, the tempo of tensions flared up in the last few weeks of 2021. According to reports, the Pakistani forces encroached 15 kilometres inside Afghani territory in the Chahar Burjak district to erect fences, a second such attempt after their efforts to do the same near the Nangahar province were thwarted by the Taliban.
To put into perspective the dispute over the boundary, it is imperative to understand the circumstances which led to the signing of the Durand agreement and paved the way for the promulgation of the Durand Line. In Afghanistan, irrespective of the people in power, the Line is considered a ‘historic mistake’, a vestige of British colonialism that the Afghanis don’t accept. After usurping the US-sponsored government in August 2021, the Taliban reiterated their position, asserting that the fencing has separated families, with the Commander of the group, Mawllawi Sanaullah Sangin restating that they won’t accept any fresh attempts to fence the ‘alleged’ border. Pakistan, on the other hand, considers it the legally binding international border and regards the fencing as a fait accompli as 90 percent of it is completed, with no option left for Afghanistan but to accept its reality.
Genesis of the dispute
After the fall of the Durrani dynasty in the 18th century, the Pashtun empire disintegrated and the British eventually extended their control to the region. But the hinterlands were always a tough area to govern. When the two Anglo-Afghan wars (1838-42 and 1878-80) failed to expand British influence and tame the belligerent tribal groups, a policy reassessment was undertaken. Fearing Russian advancement towards Central Asia, and a possible attack from the Pashtun tribes on their settled populations, a multi-layered defence mechanism—a tripartite frontier—was postulated with three concentric frontiers: The first at the foothills of the Sulaiman hills, till where the British had formal control; the second where the vassal states under the ‘influence’ of British were located; and the final buffer which was Afghanistan itself.
The Foreign Secretary, Sir Mortimer Durand was despatched to sign an agreement with the Amir of Afghanistan, Abdur Rahman. Inked on 12 November 1893, the Durand line demarcated the Pashtun-inhabited region, creating a cleavage amongst the people who shared the same culture and ethnicity and didn’t identify with either of the two parties. The agreement, apart from ensuring protection in case of a Russian assault, gave Britain access to major trade and access routes and complemented its strategy of divide and rule to curb the burgeoning Pashtun nationalism.
Both sides agreed to limit their area of influence and refrain from interfering into the territories of the other. In exchange for the 40,000 square miles of area which Afghanistan lost; the British increased their grant to 60,000 pounds a year and assured protection in any eventuality. Boundary commissions were formed, with the final boundary delineated in 1897. Protests soon erupted, with tribes resisting the line, a resistance continuing till the present. At a Loya Jirga (tribal assembly) in 1949, Afghanistan unilaterally withdrew from the agreement. This position has remained unchanged, irrespective of who is at the helm in the country.
The role of borders in nation building
For the newly independent countries in South Asia, the borders became imperative in the transition from a colony to a nation state. The boundaries served as sites for the performance of sovereignty. This ‘policing’ of the border to exercise national sovereignty and territoriality has had an adverse impact on the closely knit sense of community that the people feel. For the Pashtuns, their ethnic identities surpassed any state-imposed identity. Having lived together since the beginning, they regarded the line as nothing more than an ‘artificial division’. Many Pashtuns still hold on to their tribal ways of living, exhorting ‘Pashtunwali’ more than the state-sponsored ideology that is forced on them. Even before independence, the Pashtun Khudai Khidmatgar movement in the North-western Frontier Agency, opposed
Partition, and when Parition became a reality, they pushed for an independent ‘Pashtunistan’, refusing to integrate with Pakistan.
Having retained all major policies of the British after independence, Pakistan, however, continued to rule the erstwhile Federally Administered Tribal Areas (FATA) through the Frontier Crimes Regulation (FAR), aggrandising power to inflict collective punishment on whole tribes for crimes committed by an individual. It was only after the province merged with the Khyber-Pakhtunkhwa province in 2018 in an effort to bring it into the mainstream of the Pakistani state that the FAR was replaced by customary laws.
The fencing is a means of regulating the movement and obstructing the smuggling of drugs and goods that has continued unabated. There are also plans to establish border posts and a new wing of Frontier Corps, with a cost of approximately US $500 million. But this policy has made life extremely difficult for the people on the borders, hindering the free flow of movement between families while the militants and their murky work continues unabated through illegal smuggling gates. Pakistan has also been unilaterally moving the frontier westward with reports that after 2001, it moved inside the Chaman border by a mile and constructed a new crossing.
(Il)legality of the agreement
The validity of the agreement, which is generally considered as inviolable by countries in the West, has been questioned on the basis of certain provisions of the Vienna Convention on the Law of Treaties (1969) (VCLT). Afghanistan had evoked Article 51 and 52 of the VCLT to argue that as the agreement was signed under pressure by the Amir and cannot be considered legal. This, along with its unilateral withdrawal from all agreements signed with the British Indian authorities in 1949 and its objection to Pakistan’s status as the successor state raise important questions regarding the applicability and retroactivity of international law. Pakistan defends its claim based on four subsequent agreements signed in 1905, 1919, 1921, and 1930.
Recently declassified British Foreign office files point otherwise. The architects of the line didn’t wish to establish an international border. For them, its utility was in that specific time and space. This was pointed out by Durand himself who worried that envisioning the agreement as a ‘partition’ wouldn’t bode well for British interests in the region. The Lieutenant Governor of Punjab, Denis Fitzpatrick, was also apprehensive that a formal partition would incite the tribes against the British and put additional obligations on them. Even Abdur Rahman pointed out that a formal annexation by the British will neutralise the presence of a virtual buffer, i.e., the more or less independent tribes like the Waziris and the Mahsuds who inhabit the region. This point is also accentuated by the wording of the agreement, as is evident in the difference between the reference to a ‘boundary’ in the treaty with Russia in the north as opposed to a ‘sphere of influence’ in the Durand agreement. If this claim stands ground, then it also weakens Pakistan’s reliance on the four subsequent agreements as mentioned above as all of them reiterate the original treaty.
The way forward
The cancellation of the Pakistani NSA’s visit to Kabul to discuss the issue of fencing, prompted by fears of anti-Pakistani protests show that the sentiments in Afghanistan regarding the Durand Line are still very strong. Notwithstanding these concerns, the heightened emotions abutting the line may not irrevocably dampen the relationship between the two neighbours, at least in the short run. Even though a legal challenge to the validity of the agreement does hold water, the possibility of the Taliban taking it up in the current political reality seems bleak. With Afghanistan on the brink of a humanitarian crisis and the Taliban struggling to establish order in the absence of international support and recognition, Pakistan’s support is still very crucial. The increased rhetoric on the Line can thus be seen as the Taliban’s attempts to gain public support and legitimacy.
The author is a research intern at ORF.