The argument between Afghanistan and
Pakistan centers on the issue of Durand Line Agreement and its
validity. But, the Government of Balochistan (GOB) in Exile
challenges the “legality” of the Durand Line Agreement between
Afghanistan and British India in 1893, not its “validity”. We
believe that the Durand Line Agreement is an illegal agreement,
and therefore, it is null and void.
DURAND LINE AGREEMENT
In 1839, the Afghan and British
governments agreed to demark a 2,450-kilometer (1,519 miles)
long border dividing British India and Afghanistan. The
signatory of the document, known as The Durand Line Agreement,
were His Highness, Amir Abdur Rahman Khan, ruler of Afghanistan,
and Sir Henry Mortimer Durand, the foreign secretary of the
British Indian government.
Since British India ceased to exist in
1947 with the independence of India, Pakistan, and princely
States, it was assumed that the Durand Line Agreement will be
automatically upheld by the International Court of Justice as a
binding agreement under uti possidetis juris, i.e, binding
bilateral agreements with or between colonial powers are "passed
down" to successor independent states.
The Durand Line has been a source of
contention between Afghanistan and Pakistan. On September 30,
1947, at the UN General Assembly meeting, Afghanistan even caste
a vote against the admission of Pakistan to the United Nations.
International Law states that boundary
changes must be made among all concerned parties; and a
unilateral declaration by one party has no effect. So, when in
1949, Afghanistan’s “Loya Jirga” (Grand Council) declared the
Durand Line Agreement invalid, it was considered a unilateral
declaration, and therefore, could not be enforced. Furthermore,
Durand Line, like virtually any international boundaries, has no
expiration date, nor is there any mention of such in the Durand
Line Agreement, which is contrary to the popular beliefs of
certain Afghan scholars that the Agreement lapsed in 1993 which
is after a hundred years of its signing.
To this date, the relations between
Afghanistan and Pakistan are characterized by rivalry, suspicion
and resentment. The primary cause of this hostility rests in the
debate about the validity of the Durand Line Agreement. But, so
far, it appears that Pakistan’s position in this debate is
legally correct, and the Government in Afghanistan has never
challenged Pakistan in the International Court of Justice.
In 1839, when the British army advanced
through Balochistan towards Afghanistan, they battled with the
Baloch for the first time. During this conflict, 400 Baloch were
killed along with Mehrab Khan (ruler of Balochistan), and the
British took 2,000 Baloch prisoners of war. After recognizing
Mehrab Khan’s young son, Nasir Khan II, as his successor, the
Baloch and British signed their first treaty in 1841 that dealt
with “Military Offensive and Defensive” matters. The British
vacated Balochistan after the treaty was signed, and until 1854,
there were no major diplomatic interactions between the Baloch
and the British.
On May 14th, 1854, a new Treaty was signed
which annulled the 1841 Treaty. The new Treaty focused on
“Alliance, Defensive and Offensive” matters. It also demanded
the Baloch rulers to oppose all enemies of the British
government; required British consent prior to any Baloch ruler
could negotiate with any other state; and it permitted the
British to station troops within selected parts of Balochistan.
When the Baloch ruler broke certain
provisions of the 1854 Treaty, diplomatic relations between
Balochistan and British were discontinued in 1874. But, after
two years, in 1876 the Treaty of 1854 was rectified with minor
modifications allowing the British government to mediate any
Baloch tribal disputes, and lease Quetta valley to establish a
military cantonment. Although the Baloch ruler’s writ still ran
over Balochistan, but now it was under the watchful eye of a
British Indian government.
From 1890 to 1891, to contain the Pashtun
tribes of the Suleman Mountains from conducting border raids,
the British carried out a series of military expeditions that
resulted in the occupation of Zhob valley. Soon afterwards, they
constructed a cantonment at Fort Sandeman along with extensions
of a line of outposts.
In 1893, serious differences arose between
the ruler of Balochistan, Mir Khodadad Khan and the British.
Soon after, on instigation of the British, Mir Mahmud Khan
deposed his father and became the new ruler of Balochistan in
November 1893. By July 1899, the Baloch administration had
negotiated perpetual lease and transfer of management to British
agency of the Nushki district and Niabat with all rights,
jurisdiction and administrative power, in lieu of perpetual
rent. This secured direct British control of the great highway
connecting Quetta to Taftan. This arrangement prevailed till
August 1947 when British India was dissolved.
SOVEREIGNTY OF BALOCHISTAN
On August 11, 1947, the British acceded
control of Balochistan to the ruler of Balochistan, His Highness
Mir Ahmad Yar Khan - the Khan of Kalat. The Khan immediately
declared the independence of Balochistan, and Mohammad Ali
Jinnah signed the proclamation of Balochistan’s sovereignty
under the Khan.
The New York Times reported on August 12,
1947: “Under the agreement, Pakistan recognizes Kalat as an
independent sovereign state with a status different from that of
the Indian States. An announcement from New Delhi said that
Kalat, Moslem State in Baluchistan, has reached an agreement
with Pakistan for free flow of communications and commerce, and
would negotiate for decisions on defense, external affairs and
communications.” The next day, the NY Times even printed a map
of the world showing Balochistan as a fully independent country.
According to the Indian Independence Act
1947, all treaties and agreements between the British Government
and the rulers of States were terminated as of August 15, 1947.
On that day, the Khan addressed a large gathering in Kalat and
formally declared the full independence of Balochistan, and
proclaimed the 15th day of August a day of celebration. The Khan
formed the lower and upper house of Kalat Assembly, and during
the first meeting of the Lower House in early September 1947,
the Assembly confirmed the independence of Balochistan.
Jinnah tried to persuade the Khan to join
Pakistan, but the Khan and both Houses of the Kalat Assembly
refused. The Pakistani government took an aggressive stance
against Balochistan, and in March 1948, the Pakistani armed
forces started their operation against the Balochistan
government. They invaded Balochistan on April 15th, 1948, and
imprisoned all members of the Kalat Assembly.
LEGALITY OF THE DURAND LINE AGREEMENT
Throughout the period of British rule of
India, the British never occupied Balochistan. There were
treaties and lease agreements between the two sovereign states,
but neither state invaded the other. Although the treaties
signed between British India and Balochistan provided many
concessions to the British, but none of the treaties permitted
the British to demark the boundaries of Balochistan without the
consent of the Baloch rulers.
The Durand Line Agreement of 1893 divides
boundaries between three sovereign countries, namely
Afghanistan, Balochistan and British India. According to
International Law, all affected parties are required to agree to
any changes in demarking their common borders. In reality, the
Durand Line Agreement was a trilateral agreement and it legally
required the participation and signatures of all three
countries. But, the Agreement was drawn as a bilateral agreement
between Afghanistan and British India only, and it intentionally
excluded Balochistan. Hence, under the rules of demarking
boundaries of the International Law, the Agreement was in error,
and thus, it was null and void as soon as it was signed.
The British, under false pretenses,
assured the Afghan rulers that Balochistan was part of British
India, and therefore, they were not required to have the consent
of anyone from Balochistan to agree on demarking borders.
Meanwhile, the British kept the Baloch rulers in the dark about
the Durand Line Agreement to avoid any complications. This
policy helped the British to concentrate on fortifying their
military positions in the region without causing any tensions
between Afghanistan and Balochistan about demarking their
boundary lines, otherwise this could have resulted in a war
between Afghanistan and Balochistan.
To ascertain that Balochistan and
Afghanistan were not discussing the legality of the Durand Line
Agreement among themselves, the British continued to reaffirm
the Durand Line Agreement by each of the successive Afghan
rulers who followed His Highness, Amir Abdur Rahman Khan. King
Habibullah (1901-19), King Amanullah (1919-29), King Nadir Shah
(1929-1933), and King Zahir Shah (1933-1973) reaffirmed the
Agreement during their reign.
The British ruled parts of Afghanistan
without any legal authority, but through treacherous use of a
piece of paper, the Durand Line Agreement, which did not have
any legal standing in any court of law. As long as the British
kept Afghanistan and Balochistan in the dark and apart from each
other to discuss the Agreement, the British could continue to
rule Afghan territory.
But, in 1947, the British Indian
government was dissolved, and hence, there was no reason for the
British to continue this façade. But, Mohammad Ali Jinnah and
his legal team immediately found out after Pakistan’s
independence that the Durand Line Agreement was not a legally
admissible/binding document. To continue the illegal occupation
of territories belonging to Afghanistan, it was important for
Pakistan to keep the flaw in the Agreement a secret. But, the
dilemma was that Balochistan was an independent country, and one
day the truth might be reveled to Afghanistan about the
Agreement. This truth could result in Pakistan losing its
Pashtun dominated areas to Afghanistan.
It was very important for Pakistan to
either annex or invade Balochistan to continue with their
illegal occupation of Afghan territories. When Jinnah failed to
convince the Baloch government to annex with Pakistan on basis
of the two sovereign states being predominantly Muslim
countries, he ordered his armed forces to invade Balochistan
and, under duress, forced the His Highness, the Khan of Kalat to
sign legal documents to merge Balochistan with Pakistan. This
simple act of aggression against a sovereign nation assured
Pakistan that their secret about the Durand Line Agreement would
Once Balochistan was secured, the
Pakistanis deceptively used the law of uti possidetis juris to
their advantage and continued occupation of territories
belonging to Afghanistan.
Pakistan is in illegal occupation of
territories belonging to Afghanistan under false pretenses. To
maintain its current territorial integrity, it is in Pakistan’s
interest to have a weak and destabilized government in
Afghanistan so there is no one to challenge the authenticity of
the Durand Line Agreement. Therefore, Pakistani intelligence
agencies have provided shelter for members of Al-Qaeda and
Taleban who are committing acts of terrorism within Afghanistan
to destabilize the democratically elected government of
President Hamid Karzai.
US armed forces in Afghanistan are
eradicating remnants of terrorists from Taleban era. The
Americans are also helping to rebuild Afghanistan and strengthen
the democratic process of government to get a strong foothold in
the country. But, Pakistan has waged a proxy war against the
United States, and continues to terrorize the Afghan nation in
hopes to frustrate the US to leave Afghanistan and weaken the
Meanwhile, the Baloch have launched their
“War of Independence” in Iran and Pakistan. Three tribal Sardars
(chieftains) have united their forces and are engaged in a
guerilla war against the well-equipped Pakistani armed forces.
The Baloch freedom movement is gaining momentum, and people from
all walks of like are joining in droves.
Afghanistan and Balochistan should form a
legal team to challenge the illegal occupation of Afghan
territories and Balochistan by Pakistan in the International
Court of Justice. Once the Durand Line Agreement is declared
illegal, it will result in the return of Pakistan-occupied
territories back to Afghanistan. Also, Balochistan will be
declared a country that was forcibly invaded through use of
force by the Pakistanis; and with international assistance,
Balochistan can regain its independence. It is the right time to
act now because the US and Allied forces in Afghanistan are
positioned to facilitate the enforcement of the Court’s
After Pakistan vacates territories
belonging to Afghanistan and Balochistan, a new boarder should
be demarked amicably to determine Baloch dominated areas to
become the new Balochistan, and Pashtun dominated areas to be
merged into Afghanistan. And, with the help of the US and Allied
forces, the Afghans and the Baloch forces can flush out members
of Al-Qaeda and Talebans from their respective countries.
A wise observer once said, “Pakistan is a
completely superfluous and artificially created spot on the
world map that has become a breeding ground for extremism, and
trouble that would be best done away with.”
Mir Azaad Khan Baloch