As the dust settles over the graveyard of empires, a new wave of distasteful incidents along the Pakistan-Afghanistan border has arisen. The first note worthy incident happened on the 18th of December, a day before the extraordinary session of the Organization of Islamic Cooperation (OIC) on Afghanistan hosted by Islamabad to address the humanitarian crisis looming over Kabul.
In a video that made rounds on social media, Taliban soldiers could be seen appropriating spools of barbed wire meant of the border and a senior Taliban commander warning the Pakistani authorities not to resume the fencing of the border. A subsequent incident occurred on the 2nd of January where again video footage surfaced of Taliban fighters hindering the completion of the 2600km border fence.
It has to be noted here that traditionally the international border between Pakistan and Afghanistan has not been fenced. The 2600km long border runs through rugged mountains, inhospitable expanses of land, and cuts right through settlements. The local populace has enjoyed uninterrupted access in and out of the country. However, in the wake of the new great game post the Soviet invasion of Afghanistan in 1979, this porous border became a focal point first for the Afghan war and subsequently post 9/11 the global war on terror. The fact that the border was more or less open made it incredibly difficult to regulate the movement of men, drugs, and guns.
Pakistan started constructing the border fence in 2017 to better regulate the movement of people and formalize the economic trade with Afghanistan, with unregulated trade (according to unofficial estimates) amounting to 20 billion dollars per annum. This construction was met with considerable resistance from the American-backed Ghani regime and translated into bloody border skirmishes in 2020 leaving dozens dead and scores wounded.
Opposition to a formal border between the two countries can be attributed to three factors. Firstly, the border that was proposed in 1893 by Mortimer Durand, the Foreign Secretary of British India, cuts right through tribal settlements which have existed for millennia, thus splitting the local population between Pakistan and Afghanistan. This issue is particularly prevalent in the former Federally Administered Tribal Areas of Pakistan (FATA). Since independence, the local populace has enjoyed a special status as to the fact that they were awarded dual nationalities, thus mediating the issue. With the erection of a formal border, the population feels disenfranchised from their freedom of movement. However, in reality the border only formalizes this movement and doesn’t hinder it. Here, it’s advantageous to highlight that a large part of the tribal economy revolves around the smuggling of drugs and arms which without a doubt will be disrupted. Afghanistan is the world’s largest opium producer accounts for 85% of the global production and most of these opioids pass through the unregulated border.
There exist some 8 formal border crossings between the countries namely Torkham, Arandu (Chitral), Gursal (Bajaur), Nawa Pass (Mohmand), Kharlachi (Kurram), Ghulam Khan (North Waziristan), Angoor Adda (South Waziristan), and Chaman (Balochistan) and after the completion of the fencing, this number will be increased to 18.
The second factor that contributes to the uneasy border situation is the question of its legitimacy. As mentioned earlier, the modern-day border between the two countries was formalized during the British Raj in an attempt to formalize the frontier of the dominion. After independence, Pakistan – in accordance with international law – inherited the border. However successive Afghan governments disputed this.
It’s worth mentioning that arguments made against the validity of the international border are based on the notions that Amir Abd al-Rahman Khan of Afghanistan was either cheated into signing the Durand agreement, also called the Kabul convention, or he did not fully comprehend the long-term implications of the treaty. Both of these notions hold no value because the Amir was fully aware of what the treaty meant. In fact, he led the negotiations personally. He even went to lengths to solidify the treaty by calling a special Durbar where he along with Durand explained the terms and implications of the treaty to an assembly of Pashtun tribal and religious leaders. Furthermore, copies of their speeches were distributed between the delegates and every leader was required to set his seal on the speeches. It’s worth stating here that the Amir was not in any way surrendering, rather he saw the treaty as a means to solidify his relationship with the British as the treaty would formalize frontiers and gain him access to much-needed British munitions and funds that the Afghan sovereign needed to govern his realm.
The treaty was reaffirmed in both 1919 and again in 1921 and interestingly these subsequent negotiations were led by the so-called father of Pashtun nationalism Mahmud Tarzi himself.
With the historical claims aside, it would be advantageous to look at the issue at hand through the lenses of customary international law.
To begin with, after independence in 1949, it was stated by the British Government that
“Pakistan is in international law the inheritor of the rights and duties of the old Government of India and of His Majesty’s Government of the United Kingdom in these territories.”
Furthermore, in 1956, all members of the South East Asia Treaty Organization (SEATO) recognized Pakistan as the inheritor of British India’s treaty rights and obligations as regards the exclusive territory of Pakistan.
Pakistan’s case in regards to the inheritance of the border rests on three arguments. Effective possession of the territories by occupation or prescription, the employment of utipossidetis (Latin for “as you possess under law”), and the state practice of Afghanistan since 1947 (estoppel). We shall look into these three arguments in turn.
In regards to effective possession under international law, it is effective possession of a territory that determines sovereignty over it, not a nominal entitlement which seems to be the case with Afghan governments referring to the territory being historically under their sphere of influence. This basic principle is well laid down in the Island of Palmas case of 1928:
“a continuous and peaceful possession” of a piece of territory, “manifested in the actual display of state activities will generally override every other claim to the same territory whatever may be its basis”.
The rule does not apply in the cases of annexations which amounts to the acquisition of title by virtue of conquest. However, the exception does not apply in the case of Pakistan as the border was inherited under a treaty, not by illegal use of force. Furthermore, in the case of Clipperton Island, it was held that effective possession would be satisfied where the state exercises:
“Exclusive authority” within the relevant territory, which “strictly speaking, and in ordinary cases can only take… place when the state establishes in the territory itself an organization capable of making its laws respected.”
This further strengthens Pakistan’s argument regarding the matter. Lastly, the landmark case of Minquiers and Erechos (1953) had its judgment resting on the effective administration of the territory which included the establishment of criminal jurisdiction, the holding of inquests, and the collection of taxes. When applied to Pakistan’s case we can easily ascertain that all of these requirements per se have been present.
The second argument deals with the doctrine of utipossidetis. The mentioned doctrine was developed in the 19th century to better mitigate the process of decolonization. The principle here states that boundaries that were established at the time of decolonization should be respected and preserved in order to avoid any future conflicts. Here we may employ the case of Burkina Faso vs. Mali. Even though the principle of utipossidetis was seen to apply generally it was held that it was not restricted to ordinary borders, rather colonial boundaries must also be respected. Furthermore, the aforementioned case also holds that where claims of self-determination may be seen in conflict with utipossidetis, the latter will hold precedence. Thus, any objections to the international border between Pakistan and Afghanistan based on the notion of self-determination are considered invalid vis-a-vis the cannons of international law.
The third argument rests on the notion of Estoppel. Pakistan may stop Afghanistan from bringing any action beyond the border based on the irregular claims of successive Afghan governments regarding the matter. For example, in 1947 the Afghan government declared that it had no claims over the tribal areas, but changed its stance in 1949 challenging the Durand line. Over the years an array of inconsistent claims has been made from demanding territory as large as Baluchistan and Khyber Pakhtunkhwa to suggesting a referendum and independence of Pashtun-populated areas.
Before concluding, one also has to bear in mind that the current de facto government of the Taliban does officially recognize the international border, but does not maintain effective governance. After taking Kabul, the Taliban have been busy trying to gain recognition and have been trying to curtail the menace of the Islamic State of Khurasan (IS-K) in their territory. By virtue of the fluidity of militant groups in Afghanistan, there exists a real concern that Tehrik-e-Taliban and other minor factions may merge into IS-K.
This will only further the tensions on the border. However, the question of the international border between Pakistan and Afghanistan is of managing security and is not of the legitimacy of the border itself.