Delineating political power and physical constraints, borders and boundaries have influenced the contemporary world order. Boundaries define the legal rights and sovereign space of governments, although borders can be demarked by agreement or natural features. They have provided security, controlled migration, and trade, and maintained sovereignty since ancient times. Conflict, treaties, and diplomacy have frequently been involved in their establishment. Concepts of frontiers were influenced by the Roman Empire, and the nation-state structure and territorial sovereignty were established by the 1648 Peace of Westphalia. Later, numerous arbitrary borders were drawn by colonial powers, resulting in lingering problems. Collapsing empires altered maps following the World Wars, influencing modern geopolitics and international relations on a global level.
International borders demarcate a nation’s territory from another and represent a state’s sovereignty over its people, assets, terrain, and lands. Over time, specific regulations under international law have been created to give international borders stability and clarity. International peace and security are characterized by borders that are well defined. Indirect denial of another nation’s integrity and independence occurs when one nation disregards or denies its borders. Threatening or using force against a state’s political independence or territorial integrity is expressly forbidden by the UN Charter.
However, when we narrow dawn to neighbors, the concept of “bilateral contact” fails to sufficiently describe the difficulties and problems that exist between Islamabad and Kabul. Over time, it has become more complex and now has an impact on important aspects of Islamabad’s national and international security. The implications of Afghanistan’s internal instability on regional security are not limited to Pakistan. Western countries have criticized Islamabad policymakers and leveraged this issue to further their regional goals. The truce was expected to de-escalate tensions along the Pakistan-Afghanistan border, according to the earlier statement released previously. The word “border” was removed from the revised news release. When Kabul disputes the Durand Line’s legitimacy as Pakistan and Afghanistan’s international border, it is not acting responsibly. One more illustration of the Afghan government’s obduracy, which dates to the early 1950s. Except for the claim that the Durand Line treaty of 1893 was signed “under duress” by the Afghan ruler at the time, Afghanistan has been unable to produce any historical or legal justification for its vague and unsupported denial over the years. Let us examine the “duress” argument now. There was more than one Afghan monarch who conducted the Durand Line Agreement. In treaties signed between the Afghan and British governments in 1919 (the Treaty of Rawalpindi), 1921 (the Kabul Agreement), and 1930 (the reaffirmation of the Kabul Agreement), it was repeatedly and unopposed endorsed by a number of Afghan rulers. Article 26 of the 1969 Vienna Convention on the Law of Treaties (VCLT) and customary international law both require states to fulfil their international commitments in good faith. The Afghan government argues that the (VCLT) cannot generate international duties retroactively because it was signed later than the Durand Line Agreement.
The Afghan transit agreement itself is proof that the Durand Line has been acknowledged as the international border by the two nations’ customs and other state officials for many years.
This line of reasoning is incorrect, though, as the (VCLT) is widely acknowledged to be one of the so-called “codifying treaties,” or agreements that codify long-standing customary rules. They should be compared to “law-making” treaties, which, for the first time, implement new laws, including those pertaining to chemical and nuclear non-proliferation. Therefore, the Durand border treaty’s standing is unaffected by (VCLT. Instead, it supports it. When Afghanistan disputes the Durand Line’s legitimacy as an international border, it is not acting responsibly.
A state is required by Article 62 of the (VCLT) to respect boundary agreements signed by its predecessor. After gaining independence in 1947, Pakistan was obligated to respect the Durand Line Agreement that the British had made with the Afghan monarch at the time. Similarly, international borders passed down through state succession are recognized by the Vienna Convention on the Succession of States in Respect of Treaties, 1978. Since both provisions codify customary international law, which is binding on all states regardless of treaty presence, the argument against retroactivity likewise fails in this case. Additionally, the VCSSRT only restates the venerable old idea of juris,” which acknowledges the legitimacy of newly independent states’ borders.
Article 62 of the (VCLT) mandates that a state honour border agreements made by its predecessor. Pakistan was required to uphold the Durand Line Agreement, which the British had negotiated with the Afghan king at the time, after winning independence in 1947. Similarly, the Vienna Convention on the Succession of States in Respect of Treaties (VCSSRT), 1978, recognizes international borders that are passed down through state succession. The argument against retroactivity also fails in this case because both articles codify customary international law, which is binding on all governments regardless of the existence of treaties. Furthermore, the (VCSSRT) just reiterates the ancient principle of “uti possidetis juris,” which recognises the validity of the borders of recently independent states.
In the case known as “Superintendent Land Torkham vs. Zewar Khan,” which was determined by the Supreme Court of Pakistan and reported as PLD 1969 SC 485, the principle was also given legal validation. The Durand Line is also acknowledged as the international border by the United Nations, which has accepted Pakistan as a member state and unconditionally recognised its borders. Another element that favoured Pakistan in 1949 and 1950 was the House of Commons’ and the British Crown’s acknowledgement of the Durand Line Agreement as establishing the international border. In 1956 and 2012, the United States reaffirmed its recognition of the Durand Line as the international border. The Durand Line is reaffirmed as the de jure international border in UNSC Resolution 1267/1999. In the 1988 Geneva Accords, the US and USSR acknowledged it as the international border. When it comes to transit, trade, and granting visas to foreign visitors, Afghanistan has implicitly acknowledged the Durand Line as the de facto international border. The excitement around the 1993 Durand Line Agreement’s expiration, like the 100-year-old Convention on the Extension of Hong Kong Territory, is misguided because the Durand Line Agreement, in contrast to the Hong Kong Convention, contains no such clause. Afghanistan likewise opposes Pakistan’s border wall and asserts easement rights over the Durand Line for its people. Both assertions, however, are baseless because the Durand Line Agreement makes no reference to them. Naturally, by enclosing the international boundary, Pakistan is advancing its national security goals, and international law permits no objections. Under the Secure Fence Act of 2006, which was passed by the US Congress, the US also unilaterally fenced its border with Mexico. Only tribes that cross both sides of the international border are eligible for easement rights. Easement rights are not available to other Afghan citizens. The Afghan transit agreement itself is proof that the Durand Line has been acknowledged as the international border by the two nations’ customs and other state officials for many years. It is understandable that no government, except for Afghanistan, has endorsed the Durand Line, as the claim that it is not an international border is untenable under international law.
The writer is a PhD candidate at QAU and has worked at SDPI.