The Durand Line argument – Legal ramifications

The Durand Line argument – Legal ramifications
Authored by – Afzal Khan Shinwari, LLB (London), MBA (LUMS)

Since the recent comment by an Afghan MP with regards to the Durand line, the age old issue has once again become a topic of hot debate. I am going to share my thoughts with regards to the legal position of the Durand line, and invite genuine counter arguments with respect to its legal grounds (and no rhetoric or political point scoring), to help point in the right direction.

FIRST ARGUMENT: 'Pakistan not a successor state' but a 'clean state'.

Under the British 'Indian independence order 1947', Pakistan succeeded to all rights and obligations of British India. Article 62 of the Vienna convention on the law of treaties says:

'...whenever a new country is carved out of an existing colonial dominion, all int'l agreements & undertakings .... would be transferred to the new independent national government'.

The Vienna convention also goes on to say that a state is a successor state if it:

'...has replaced another state on the occurrence of a succession of states'.

Article 11 of the convention goes on that:

'a succession of states does not as such affect (a) a boundary established by a treaty or (b) obligations & rights established by a treaty & relating to the regime of a boundary'.

Furthermore under the International Court of Justice (the ICJ) dictum of 'uti possidetis juris' Afghanistan is legally prohibited to unilaterally change its border. This dictum was upheld in particular to 'transform former admin borders created along the colonial period into international frontiers'.

Additionally, this also finds baseless the argument that due to Pakistan's violation of the border in the 1950s the Durand line agreement was found in breach, and therefore no longer valid. As such, the Durand line had become a dejure international boundary upon succession of the Pakistani state as a former colony (as discussed above) for all purposes of International Law.

SECOND ARGUMENT: the Durand agreement was time bound to a 100 years.

There is no clause within the whole actual agreement that mentions a time line. Neither is this agreement similar to the convention for extension of Hong Kong territory, expressly or impliedly.

THIRD ARGUMENT: the Durand agreement was a personal agreement between Amir Abdur Rehman and the British.

The Amir derived legitimacy as the head of the state of Afghanistan through tribal consensus through the traditional jirga institution. Further, the agreement was presented by the Amir at a darbar of reportedly over 400 tribal chiefs. Why would he require the need for that if it were a personal agreement? Alternatively, if he had been acting in his personal capacity, then by that grounds all agreements made by the Saudi Kingdom also personal between the house of Saud and the International community?
The Amir then goes on in his memoirs to say that 'it was necessary to mark out the boundaries between my dominions and those of my neighbours, for the safety & protection of my kingdom'. This also removes doubts of any possibility of duress in the agreement.


FOURTH ARGUMENT: The Agreement was not a bilateral treaty.

This argument is closely related to the third argument above, and is countered based on the same grounds given for the third argument. Additionally, the agreement was acknowledged by the Amir’s son during his dealings with the British, until his death in 1919. The 3rd Anglo-Afghan war broke out in 1919, which ended with the Rawalpindi (1919) and Kabul (or Anglo-Afghan) (1921) treaties. Article 5 of the Rawalpindi treaty said that 'the Afghan government accept the indo-Afghan frontier accepted by the late amir [under the Durand line Agreement]'. This position was further referred to in the Kabul treaty and in future correspondence between the Afghan and British Indian dominions. A point of note here is that the Afghan government did dispute some territories, including parts of mohmand & waziristan agencies, and some adjoining parts of Baluchistan, but never mentioned rescinding the whole agreement. The first time that happened was in 1947, and in the 1949 loyal Jirga held by Afghanistan.

FIFTH ARGUMENT: The Durand Agreement never a boundary treaty but treaty for easement rights.

Again, the whole document has no mention of establishing easement rights. Article 4 of the agreement said 'the need for demarcation along the frontier to be carried out by respective British and Afghan Commissioners'. Likewise article 6 clearly talks about 'demarcating the boundary line'. From the whole text of the agreement, it can be clearly seen that the objective was to define the boundaries between the states. The easement was therefore a non-treaty right.

Furthermore, easement rights were meant to be exercisable only by the tribes affected by the boundary and not by other citizens of Afghanistan or British India, thus preserving the nature of the line as a boundary.

SIXTH ARGUMENT: 'the Sphere of Influence' argument

A popular argument put forth is that the British meant the boundary only to limit their ‘sphere of influence’ in Afghanistan. If that had been the case, then why had the British not mentioned including a ‘second boundary’ for that of India (which would effectively define the buffer area that the British purportedly wanted to influence)?

Articles 2 and 3 of the Durand line agreement clearly lay down the 'no interference' policy across the boundary, which is clearly in line with practice of border control. No text within the doc can be found with regards to ‘spheres of influences’ to be maintained by both sides. Notwithstanding and alternatively, even if it were implied, The 1947 act and the Vienna conventions grant the Durand line an international boundary status for all purposes of international law.

The above analysis is notwithstanding the genuine rights of the tribes to move freely across the border, albeit regulated, given the security concerns of both states. Genuine legal arguments invited.

QK archives: Maulana Sufi Mohammad is an unusual prisoner

• Maulana Sufi Mohammad is an unusual prisoner
QK archives: circa 2002/03
Rahimullah Yusufzai

PESHAWAR: Maulana Sufi Mohammad is an unusual prisoner. He refuses to eat food provided by the authorities in the Central Prison, Dera Ismail Khan. He also turned down requests from his followers and well-wishers to submit an application to the courts for his release on bail.

Inmates who spent time in the same prison said the old man cooked his own food in his cramped cell in the sprawling jail. Supporters, mostly madrassa students in the city, bring him bread and water from outside.

The founder of the Tanzim Nifaz Shariat-i-Mohammadi (TNSM) has spent about two years behind the bars. He might spend several more years in jail if he continues to ridicule the existing courts as "kufri" (un-Islamic) courts.

The Maulana was arrested when he crossed over to Pakistan from neighbouring Afghanistan where he had gone as the commander of several thousand TNSM fighters wanting to fight alongside the Taliban against the invading US-led forces. The quick US military victory and the fall of the Taliban regime in November 2001 prompted the Maulana and his followers to escape to Pakistan. Several hundred TNSM members are still being held in official and private Afghan prisons.

The 85 or so TNSM activists who were arrested along with Maulana Sufi Mohammad have all been released. All of them, including the Maulana, were tried and sentenced under the Frontier Crimes Regulations (FCR), which is applicable in the Federally Administered Tribal Areas (FATA) bordering Afghanistan. This was obviously done to facilitate a quick trial and award them heavy punishment.

Except the Maulana, the other TNSM prisoners including his son, Zia, filed appeals against their sentences, got relief from the courts and won their freedom. The Maulana had been sentenced to 20 years' imprisonment by the tribal political administration under the FCR. The home department reduced his sentence by half when Javed Ibrahim Paracha, a former PML-N MNA from Kohat, filed an appeal on his behalf.

Paracha and other well-wishers of Maulana Sufi Mohammad now want to take the case to the courts to challenge his continued imprisonment and seek his release. But the Maulana has refused to sign any document that would take his case to courts that he considers "kufri." Paracha, who spent 29 days in the same prison cell with the Maulana, said he failed to persuade him to approach the courts. "He has termed the allegations against him as false and is unwilling to appear in any Pakistan court. He doesn't recognize the Pakistani courts because he considers them un-Islamic," Paracha explained.

Paracha, president, All Pakistan Prisoners Relief Committee, pointed out that Maulana Sufi Mohammad has consistently rejected any deal with the government that would facilitate his release. Hopes for his release were raised after the Islamist MMA swept the October 2002 elections and formed the government in the NWFP. A few MMA leaders reportedly met him or sent messages to him in jail. But nothing came out of this exercise and the ageing Maulana is still languishing in the prison.

The Maulana's critics believe that he wants to remain imprisoned to avoid confrontation with families of TNSM members and sympathizers who were killed or captured or went missing in Afghanistan. The critics felt the Maulana's life would be in danger once he is out of prison.

However, Paracha and TNSM leaders such as Maulana Mohammad Alam reject this theory and term it misleading. They maintain that none of the families that lost a member in Afghanistan has expressed any hostility towards Maulana Sufi Mohammad. According to Paracha, the Maulana showed him documents that had been signed by every Afghanistan-bound TNSM member and in which each of them declared that Maulana Sufi Mohammad would not be responsible if they were killed or captured. Each document, said Paracha, was signed by four witnesses to make them authentic. If true, it explained the Maulana's shrewdness even if he outwardly appears very simple and naïve.

The Maulana, who hails from Maidan area of Lower Dir district, has had his way in the past. He has led a sustained campaign for enforcement of Shariat in the old Malakand division. In 1995, his movement turned violent once TNSM workers occupied the Saidu Sharif airport, blocked roads in Swat and made judges and other government officials hostage. The mercurial Maulana also forced senior government functionaries to remove pictures, including those of Quaid-i-Azam Mohammad Ali Jinnah, from places where he held negotiations with authorities on the plea that photographs are un-Islamic.

Though the TNSM has now been banned and its support base has shrunk, Maulana Sufi Mohammad is not ready to give up his struggle. Against heavy odds, this unusual prisoner might prevail and walk out of the jail as a free man without completing his sentence.

QK Archives: Gomal Zam dam

The dam remains incomplete..

Gomal Zam Dam: A multipurpose project


Col Muhammad Safir Tarar
Updated on 11/5/2001 12:00:46 PM

Water is a precious resource of life on our planet.

The ancient civilisations flourished on banks of watercourses and disappeared when the rivers change their courses.

Water always played a vital role in the rise and fall of civilisations.

Mankind always made efforts to develop water storages in its endeavours to save civilisations.

Technology enables us to build water storages so as to defend the civilised human life against the odds of drought and flood-like natural calamities.

Additionally, hydroelectric power is generated benefiting from the resource to march forward on the road to development, progress and prosperity.

However, in order to, befittingly, use technology in the service of mankind, a nation needs to have a clear vision and understanding of its priorities, otherwise, wealth of all kind, goes waste in aimless efforts and time goes waste in dwelling on hotchpotch matters.

Is this not an irony that a country like ours, blessed with the wealth of five major rivers is a prey of drought for last two years and the available additional water is being allowed to go waste into the sea? Pakistan is primarily an agriculture-based country.

For agro-development and to meet food requirements of the fast increasing population, water reservoirs are dire need of the nation, to adequately manage timely irrigation supplies to meet requirements of the summer and the winter crops.

But the fact is that no new dam has been built for water storage during last 25 years after the completion of Tarbela Dam project.

This serious folly of the past devoid the people of bringing lakhs of acres of fertile land under cultivation and the country of giving boost to economy and attaining food produce matching the national needs.

Pakistan has the potential of irrigating lakhs of acres of land.

The biggest barricade in this way is the in-effective control over river waters.

The fast increasing population and rapid water reservoirs capacity depletion are fast pushing our country towards the fold of water-short countries.

In presence of this state, construction of new reservoirs has become inevitable.

The present government, alive to the sensitive nature of prevailing conditions and keeping in view national water and power needs and requirement, accorded approval to the gigantic "National Water Resource Development Programme, Vision 2025", presented by WAPDA.

President General Pervez Musharraf performed the groundbreaking ceremonies of a number of projects aimed at developing the country's resources, betterment of national economy and poverty alleviation during August this year.

Gomal Zam Dam is among these projects and its groundbreaking ceremony was performed by the President on August 22, 2001.

Seeing commencement of work on Gomal Zam Dam Project and its entering into construction stage is a pleasant experience.

It manifests a ray of hope and a better future.

Had the dam been undertaken a few years ago there would have been lush green fields instead of barren land tracts in the area today.

The need for storing floodwaters of Gomal River had been observed as early as 1880 at the time of first settlement of Dera Ismail Khan by the British administration.

Gul Kach, a site on Gomal River above its confluence with Zhob River was pointed out as the likely site for the construction of a high dam.

After independence investigations were started at site.

In 1951-52, a flood control-cum-irrigation scheme was proposed for Gomal Zam.

The scheme included a 250 feet high concrete dam at Gul Kach with a diversion weir at Murtaza.

The feasibility of Gomal Zam Dam project was first prepared by Messrs Energoprojekt, a Yugoslavian firm during May 1963, invited by WAPDA.

The project, which involved the construction of a 500 feet high dam to conserve flows of Gomal River for irrigation of about 100,000 acres in D.I.Khan district and generation of 127 mw of hydel power, was approved by the government of Pakistan during August 1963 at a cost of Rs. 200 million.

The activities for construction of infrastructure like access roads, colonies, etc, was started during early 1964.

However, due to the Indo-Pak war of 1965, field activities were stopped.

Since the end of 1965, the project remained at a virtual standstill and only limited maintenance and upkeep of the completed preliminary works was continued.

The Gomal Zam Dam Project was reactivated in early 1983 from a dormant stage of about 18 years when the project was taken up for an exhaustive review by Messrs Coyne et Bellier of France.

The consultants studied all the previous reports, data on hydrology and geology, made preliminary tests and observations at site, and submitted their final report on the engineering studies in October 1983.

After some additional investigations at site, the consultants prepared feasibility report including design of dam, powerhouse and other appurtenant structures during May 1990.

The updated feasibility study of the irrigation system and pre-feasibility of a hydropower plant at the toe of the dam was prepared by Messrs Coyne et Bellier in 1995.

WAPDA gave the Gomal Zam Dam project final shape based on the previous activities, as a fast track project in its National Water Resource Development Programme, Vision 2025.

The project envisages construction of 436 feet high and 492 feet long Roller Compact Concrete Gravity Dam which will create a reservoir with gross storage capacity of 1.14 Million Acre Feet of water.

The project has a spillway on the middle part of the dam for the disposal of floodwater, with a maximum discharge capacity of 153,000 cusecs.

At the toe of the dam, a small hydropower plant with the installed capacity of 17.4 mw would be installed.

The irrigation system of the Gomal Zam Dam Project envisage 63 kilometer long main canal with 848 Cusecs capacity, 203 kilometers of branch distribution canals and a 460 feet long barrage at Kot Murtaza.

The estimated cost of the Gomal Zam Dam Project, as per April 2001 prices, is US$ 136.2 million.

This investment will accrue the benefits of flood control, water for 163,086 acres of land and 90.9 gegawatt hours of hydro-electric energy, security to farmers as a result of reliable water supply, employment opportunities in the industry and commerce resulting from the processing form production, improved standard of living resulting from increased and more varied food production, balanced diet by providing opportunity to produce fruits, vegetables and other protein foods and water for domestic use.

The completion of project will bring tremendous benefits to the land and people of the area in terms of economic as social benefits.

Since this project is situated in a backward area of NWFP, the opportunities created by this project during and after the construction will provide far reaching socio-economic benefits.

The greatest advantage that will accrue to this backward area will be the development of means of communication to substantially add to the accessibility.

The environmental impacts of the project will be marginal.

Action to undertake land acquisition in the command area for barrage, main and branch canals in Tank and Kulachi tehsils of Tank district and Dera Ismail Khan district from project funds has already been initiated by the provincial government as per prevailing procedures and rates and Land Acquisition Collector has been appointed by the Revenue Department of NWFP.

Gomal Zam Dam Project has been designed to build a carry over type reservoir to store water during high flow years and utilise the same during low flow years based on the observance of inflows during drought period.

The live water storage capacity of the reservoir will be 8,92,000 acre feet.

The project has been designed to provide irrigation water to all the landowners on the basis of existing water rights.

The project area, considered for irrigation from Gomal Zam, consists of the areas where Gomal waters are or were used by farmers having water rights on it.

All villages having perennial rights are located in Tank district while those having flood rights belong to the three tehsils i.e.

Tank, Kulachi and D.

I.

Khan.

The map of perennial and flood water rights for the area was prepared by Messrs Energoprojekt in 1963 and the same is being implemented now.

Gomal Zam Dam Project, is planned to be constructed on turn key basis, hence for proper round-the-clock supervision and surveillance of construction work to be carried out in three shifts, each of eight hours, provision of 146 technical staff has been kept in the PC-1 proforma.

The project has already been approved by CDWP and ECNEC on August 2 and August 31 this year, respectively.

Preparatory works implementation has been awarded to Frontier Works Organisation (FWO) and construction work on main dam and irrigation system will soon commence.