…………….Now let me tell you about the five major flaws of Pakistan’s legal claims and arguments .
(a) FLAW – 1: Firstly, the Durand Line agreement, signed in 1893, simply laid down a political line, separating respective spheres of influence and not a physical line to define two sovereigns. More so, from the British perspective, the Line intended mainly to restrict the King’s political influence over the Tribal areas adjacent to the British India. The British did not ever control these Free Tribal areas. It is critical to understand and thereby distinguish between the meaning of line separating spheres of influence and that of a sovereign boundary.
Now let us find out how sphere of influence differs from sovereignty. Professor Giovanni Distefanoof the Public International Law at the University of Geneva, Switzerland captures the meaning of spheres of influence based on international laws. Spheres of influence are usually established by international treaties. The object and purpose of which is solely the partition among the Parties of those territories which have not yet been occupied (or even explored). Thus, in the case of spheres of influence there is no transfer of sovereignty, or of the right to exercise it. The contracting Parties are not the holders of sovereign rights on those areas.
Mortimer Durand in an interview, after returning back to India, said that: “The tribes on the Indian side are not to be considered as within British territory. They are simply under our influence in the technical sense”. As he clearly said that the Durand Line was intended to be a virtual boundary which was supposed to define and separate the British sphere of influence from the rule of the KING of Afghanistan. He further added that We the British just wanted to create a strong buffer as a strategy under the Great Game. In order to acquire sovereignty, the British needed to completely occupy all the regions peacefully that came under its side of the line. Even later, while the North Western Frontier Province (NWFP) was established in 1901, the free tribal areas were kept under separate arrangements with the Federal Government like the special laws under the Frontier Crimes Regulations (1901) .
In simple words, these free tribes on the Indian side of the Durand Line were only kept away from the political influence of the King of Afghanistan. The British never enjoyed any sovereign rights over these territories. Therefore, the question of succession of state specifically with respect to the Durand Line agreement of 1893, which is not a binding bilateral agreement , defining a sovereign boundary but a colonial agreement defining line separating spheres of influence.
So it is not the case addressed by VCSSRT (Vienna Convention on Succession of States in Respect of Treatie,) and is therefore subject to objections under international laws.
(b) FLAW – 2 : The second major flaw of the Pakistani argument, that the Durand Line was a clearly defined international border in 1893 and that Afghanistan had merely confirmed it in 1905. But it is the problem of the 1893 Durand Line agreement- because it was a personal agreement signed between the King of Afghanistan, Amir Abdur Rahman Khan, and the Government of British India. This was, in fact, the position taken by the British when they sought further concessions from Amir Habibullah Khan and decided to withdraw the previously given annual subsidies, arms and ammunition to the late Amir Abdur Rahman. However, in response, Amir Habibullah Khan had questioned the validity of the Durand Line itself as I have explained you already. It was this very reason that the British had to renegotiate the terms of the Durand Line agreement with Amir Habibullah Khan in the new Anglo-Afghan Treaty of 1905. Thus, it would be correct to state that Durand Line Agreement of 1893 had to be revised in 1905 because it was a personal treaty. The British too had accepted it in 1905, when they agreed to renegotiate the terms with the King Habibullah Khan.
Even the treaty of 1905, signed between Amir Habibullah Khan and the Government of British India, was questioned later by Habibullah’s son, Amir Amanullah Khan in 1919. Amanullah Khan’s argument was that the Afghanistan of 1905 was not an independent sovereign state and the British had firm control over the foreign affairs of Afghanistan and that the treaty of 1905 was signed by the Government of India, on the one hand, and the King of Afghanistan, on the other.
After a brief war between the British and the Afghan forces, Afghanistan was given complete freedom. As the ruler of a free and sovereign country, King Amanullah Khan brought the British onto the table to re-re-negotiate the terms of the Durand Line Agreement and, as a result, established an Indo-Afghan Frontier which was territorially different from the 1893 Durand Line. Thus, both the 1893 agreement and the 1905 treaty were personal in nature. The British had accepted it and after giving Afghanistan complete independence, had agreed to sit again to discuss the Durand Line but only this time with the Government of Afghanistan. So it was not a personal one as before.
(c)FLAW – 3: Another error and a crucial one is the Pakistani assumption that the Government of Afghanistan had merely recognized the Durand Line in the treaties of 1919 and 1921. The subsequent treaties of 1919 and 1921, similar to the treaty of 1905, did not just accept or recognize the “original” Durand Line as proposed in the 1893 agreement. To the contrary, these treaties of 1919 and 1921 were concluded upon cancellation of all previous treaties made between British India and kings of Afghanistan. They were, in fact,negotiated in an attempt to resolve the territorial disputes associated with the “original” Durand Line, to remove the anomalies that still remained, and thus,to readjust the “original” Durand Line physically.
It is this very reason why the “original” Durand Line of 1893 is territorially different from the “present” Durand Line. This difference is crucial as it highlights that the Durand Line is, after all, not a sacrosanct boundary which has remained as it is for more than 100 years. ( CIA Map).
(d) FLAW – 4 : The Treaty of Kabul, signed on 22nd November 1921 is the last official treaty negotiated and signed between the two contracting parties concerning the Durand Line or “Indo-Afghan Frontier” as mentioned in the Treaty. Because in the treaty it has been mentioned Indo-Afghan frontier and not Durand line. The Treaty of Kabul was signed between the two Governments and thus, was not a personal treaty.
The treaty again attempted to resolve the anomalies left over the Durand Line or the “Indo-Afghan Frontier” described in the Treaty of Peace, signed in 1919.
Article II of the Treaty of Kabul further highlights the territorial adjustments that were made along the Indo-Afghan frontier in 1921. The two High Contracting Parties mutually accept the Indo-Afghan Frontier as accepted by the Afghan Government under Article V of the treaty concluded at Rawalpindi on the 8th August 1919 .However, not all pending anomalies were resolved and there remained yet more territorial disputes between the two Governments, along with other diplomatic issues of conflict.
That’s why they had kept a provision under Article XIV of the Treaty which had clarified that the Treaty was only a temporary arrangement and that : “The provisions of this treaty shall come into force from the date of its signature, and shall remain in force for three years from that date”. This clause did not even require the side, choosing any reason to annul the Treaty and the Treaty “contained no other provisions indicating that any part of it was intended to be permanent or dealing with the question of succession”. The treaty was initially made for three years.
Thereafter, the treaty remained valid until 12 months from the date when either of the high contracting parties from the two Governments decided to denounce it.
Lord Birkenhead in a memorandum circulated in June 1925 assessed the same when he mentioned that “the treaty was made for three years in the first instance, and is now subject to denunciation by either party with 12 months’ notice.”
Thus the Government of Afghanistan, as one of the contracting parties of the Treaty of Kabul, signed on 22nd November 1921, has always had the legal right to denounce the Treaty of Kabul and thereby cancel the temporary arrangements made under it concerning the Indo-Afghan Frontier (now Afghanistan Pakistan Frontier).
(e) FLAW – 5: While analyzing the Treaty of Kabul 1921, Pakistani scholars come up with another defence by referring to the fact that the Government of Afghanistan, in exchange of notes and letters with the Government of India and Britain in 1930 had accepted that the Treaty was in full force and that it remained valid and that they thereby have lost the right to denounce it, even though the provision remains in the treaty.
This point of defence is based on Vienna Convention on the Law of Treaties (VCLT), 1969. Thus, Pakistani scholars base their defense on Article 45 (a) of the VCLT. However, this line of defence is not proclaimed and accepted globally because it contains an obvious flaw.
Article 4 on “Non-retroactivity of the present Convention” in the VCLT clearly states that: “The Convention, thus, only applies to those countries , which have signed and ratified the convension.and it applies to those treaties which have been signed after the ratification of the Convention”. But in the case of Treaty of Kabul, both contending parties, that is Afghanistan and Pakistan, have not yet ratified the Convention and thus the Convention has not yet entered in force into these two nations, And the Treaty in question was signed in 1921, long before 1969, when the Convention was opened for signature.
…….to be Continued….
This Artcile was originally published at goo.gl/wKC9GM
About the Author
Mashal Khan Takkar is Founder: Great Afghanistan Movement ( GAM). Editor in Chief :THE VOICE TIMES ;http://www.thevoicetimes.com Politician ,Social worker , poet , writer, , broadcaster
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