A. G. NOORANI
(The author establishes Afghanistan’s territorial claim on Pakistan to be “ as devoid of morality as it is of logic.” Through extensive research and referencing he proves that “neither history nor law” can in any way validate this claim. – Editor.)
It would be hard to find a territorial claim more spurious than Afghanistan’s territorial claim on Pakistan. It is supported neither by history nor the law and is as devoid of morality as it is of logic. In 1947 it picked up speed and assumed proportions unheard of before; but time also ripped apart one pretext after another. What exposes its moral bankruptcy is the fact that Afghanistan was willing to let matters be if only the British had continued to rule India. It was India’s independence and, with it, the establishment of two new States in the subcontinent, Pakistan and India, which moved it to register its claim but only in the vaguest of terms.
Afghanistan was one of the members of the League of Nation’s whose Covenant provided in explicit terms, in Article 19, that “the Assembly may from time to time advise the reconsideration by Members of the League of treaties which may have become inapplicable and the consideration of international conditions whose continuance might endanger the peace of the world.” The Covenant was part of the Treaty of Versailles (1919).
Not only did Afghanistan not invoke Art. 19 but it went on to sign, at Kabul, on 22 November 1921, a Treaty with Britain which effectively affirmed the Durand Line Boarder Agreement it had signed at Kabul on 12 November 1893 because it was, in turn, affirmed by the Treaty of Peace signed at Rawalpindi on 8 August 1919. The Treaty of 1921 affirmed the Rawalpindi Treaty.
The XII Volumes of The Transfer of Power 1942-47 published by the British Government (H.MSO. London) provide startling evidence of the initial moves gingerly made by Afghanistan. On 20 February 1947 the British Government declared its intention to transfer power in India not later than 30 June 1948. On 3 April 1947 Sir Giles Squire I.C.S., British Minister at Kabul, reported to the Foreign Secretary of the Government of India, Hugh Weightman, I.C.S., increasing “Afghan anxiety regarding developments on the North-West Frontier”. Kabul wished to speak directly to the tribesmen there. This was rejected by the Officiating Foreign Secretary, Major General Crichton in categorical terms right at the outset on 24 April in a letter to Squire “We cannot possibly accept the Afghan view that the tribesmen in tribal territory (if by this they mean tribal territory on the Indian side of the Durand Line) are more closely connected with the Afghan Government than with the Government of India. Ever since the Durand Agreement of 1899 (page 256 of Aitchison’ Treaties volume XIII) it has been recognized that all territory including the tribal areas on the Indian side of the Durand Line forms part of India. The fact that there is an interim Government in India does not alter that position in the slightest and it follows that any overt attempt by the Afghan Government to exercise influence in these areas would be open to the same strong objection as in the past. You will see from Chapter XI of the last Afghan Precis (compiled by Dundas) that this matter has a long history and that Afghan attempts to interfere in our tribal areas have always been strenuously resisted. That attitude, we consider, must be maintained so long as the Afghans continue to recognize the Durand Line as the boundary between India and Afghanistan, and we take it that there is no intention on their part of denouncing it. The attitude of H.M.G. and the Government of India in this matter has in fact already been made clear to the Afghan Government in the course of recent discussions held with the Foreign Minister on Afghan Frontier Policy…
“As for the other aspects of the matter, it is of course quite irrelevant whether or not the Afghan Government are under pressure from their own subjects; but we are frankly skeptical of the Prime Minister’s statement that our tribes are looking to the Afghan Government for a lead. Our own information is that the tribes, at present, are indifferent to Afghan interest in the problem of their future and intend to rely on themselves when it comes to determining the question of their association with an independent Indian Government. This question, as the Afghan Government are doubtless aware, is one for negotiation between the tribes and the Constituent Assembly”
In his letter of 9 May, Squire reported that he had conveyed to the Afghan Foreign Minister the views of the Government of India. Ali Muhammad was “disappointed and said so frankly. He admitted that the Government of India’s contention was unanswerable but reiterated what he had often said before that as long as the British Government remained responsible for the control of the Frontier the Afghans had nothing to say. He thought it however somewhat hard that when we had announced that the British Government would be relinquishing that control in June next year we should still expect the Afghan Government to refrain from all attempts to clarify a potentially dangerous situation until the British had actually left India. He expressed the fear that the new Indian Government would attempt to coerce the tribes to come under Indian administration and that this would lead to a conflagration in which Afghanistan would inevitably be involved, with results that no-one could foresee.” (TOP; Vol. X; pp. 412-13).
This was not an assertion of a territorial claim but an expression of interest; perhaps concern which history proved wrong. The British stand on the Durand Line was accepted as being “incontestable.”
There came the Partition Plan of 3 June 1947. Eight days later the Afghan Minister in London called on the Foreign Office to express his views on the referendum in the N.W.F.P. which the Plan envisaged. “The Afghan Minister called at the Foreign Office on 11 June to express his Government’s views on that part of declaration of 3 June which concerned the North West Frontier Province. The Minister said that the Afghan Government were concerned at possible fate of the population of this Province if, in accordance with the present plan, a referendum took place and the choice were offered to them of associating themselves either with Pakistan or Hindustan. The Afghan Government considered that the population of the former Afghan territories annexed by Great Britain to India during the last century should have the opportunity of deciding whether they wished to rejoin Afghanistan or to form a separate State enjoying complete independence. The Afghan Government had hitherto acknowledged the necessity of treating the question of the North West Frontier Province in connection with the question of partition in India. In view of recent developments however they considered that the moment was opportune for them to make official representations regarding the Province and to put forward proposals for its future in accordance with ethnological considerations.” (ibid.; p. 415). Evidently those considerations did not exist during British rule.
Prof. Mehrunnisa Ali has published the note dated 13 June 1947 which was presented by the Afghan Minister of the Afghan Legation to the Foreign Secretary in her invaluable compilation (Pak-Afghan Discord : A Historical Perspective Documents 1855-1979; Pakistan Study Centre, University of Karachi, 1990; pp.89-92). The note said “The Royal Afghan Government has, during the last decade, consistently made it clear to the British Representatives in Kabul, that, in the event of any change in India, the future of the millions of Afghans and their land must not be neglected. Moreover with the change of Indian status, obligations created by Anglo-Afghan treaties pertaining to the territories under discussion will no longer be regarded as binding in the future. On this basis, consecutive discussions took place between H.E. the Afghan Foreign Minister and H.E. the British Minister in Kabul, as well as between the Afghan Minister in London and members of His Majesty’s Foreign Office. It is now however becoming more and more apparent as the Indian Question is progressing rapidly towards a solution in which there is prospect of a definite change in the status of India, that there is unfortunately no corresponding sign of a satisfactory settlement for the North-West Frontier Province….
“The Royal Afghan Government are of the opinion that the settlement of a matter not related to India, should on no account be dependent on the future Government or Governments of India, (and if in the past such matters have ever been discussed informally with the Government of India, it has always been considered as contact with Great Britain through the British Government in India), and that obviously it is most opportune at this stage, while the settlement is being reached on the Indian Question, to consider the problem of the North-West Frontier Province and the future of its population.
“The decision that a referendum is being arranged for the North-West Frontier Province, so that I can express its wish to join either Pakistan or Hindustan, is in the opinion of the Royal Afghan Government incompatible with justice, as it debars them from choosing, either an obvious and natural way of forming a separate free state, or of rejoining Afghanistan their motherland.”
Kabul was not clear in its own mind. For, on 23 June the Afghan Foreign Minister assured Squire “that Afghan interest in North West Frontier is purely ideological. They do not consider Pathans to be Indians and are anxious that they should have the utmost freedom to decide their own future. Afghan Government have given no thought to political, economic or security implications of independent Pathanistan or other alternatives.” (TOP Vol. XI; p. 577).
The Governor of the NWFP, the highly cerebral Sir Olaf Caroe, a former Foreign Secretary, wrote to the Viceroy Lord Mountbatten on 23 June “It was inevitable that the Afghan would bring their weight to bear in this matter and raise the cry of Afghanistan irredenta, but it is interesting that they should have timed it and brought it into line with the Congress theme of Pathanistan. I do not myself think that this Afghan interference is going to be very dangerous, if (and this is the important point) the successor authority make it quite clear that the tribesmen are going to get the benefits that they enjoy at present from this side.” (ibid.; p. 579).
Predictably Khan Abdul Ghaffar Khan jumped into the fray, with the strong backing of M. K. Gandhi, in a statement on 24 June opposing the referendum. “In view of this situation, it was pointed out to the Viceroy that it would be necessary to provide an opportunity for us to vote in the referendum for a free Pathan State. The Viceroy said he was unable to change the procedure laid down except with the consent of the parties. I consulted the leaders of Congress and they assured me they were perfectly willing for this opportunity to be given to us. Mr. Jinnah, however, on behalf of the Muslim League, entirely opposed the idea of a free Pathan
State, and would not agree to the opportunity being given to us to vote for this.” (ibid.; p. 595).
Caroe saw through the game and wired to Mountbatten on 25 June. “Your Excellency should know that there is reason to conclude that this move was to some extent inspired by Frontier Congress leaders with certain Afghan elements and considered when Abdul Ghaffar Khan visited Kabul for Qashan last summer. Moreover fact that Gandhi is wedded to Pathanistan idea will make it difficult for E.A. (external Affairs) Dept at present juncture to approach this issue objectively.” (ibid.; p. 633). Once the Afghan proposal to send a mission to the NWFP was rejected, a press campaign was shipped up in Afghanistan.
New Delhi informed London. “In effect Afghan Government have come into open with Irredentist claim recently raised informally in course of exchanges on mutual frontier policy questions. There is this difference that whereas in conversations territorial scope of Afghan interest in frontier areas was somewhat vaguely defined it is now specifically related to whole area between Durand Line and Indus River; and Pathans living in this area are referred to throughout the articles enclosed with Squire’s dispatch as Afghans; possibly intention is to claim that they are afghan subjects.
“Since Afghan Government have chosen to come out into the open Government of India assume H.M. Government will reaffirm unequivocally the views expressed during informal conversations that took place in 1944-46. Any claim that Pathans who have for generations been domiciled between Durand Line and Indus are Afghan subjects cannot possibly be accepted by Government of India. By Article two of Durand Agreement of 1893 Amir Abdur Rahman Khan bound Afghanistan to refrain from interference in territories lying beyond Durand Line ‘on the side of India’ in return for undertaking by Government of India that they would not interfere in territories on Afghan side of line. The Agreement has been respected up to present day by successive Indian and Afghan Governments. In other words Afghan Government have at least since 1893 recognized that Pathans living East of Durand Line are British Indian nationals or British protected persons. (Inhabitants of tribal areas are classed as British protected persons). It follows that present press campaign in Afghanistan and language used by Afghan Minister in Nanking to Indian Ambassador constitute unwarranted attempt by Afghan Government to interfere in internal affairs of India. …
“In a telegram the Indian Ambassador in Nanking reported a conversation on 19 June 1947 with the Afghan Minister there, during the course of which the latter had said that Afghanistan had always wished to see a united India, but now that India was going to be divided the claims and sentiments of Afghanistan regarding the Afghan portions of India should not repeat not be ignored. By Afghans he meant Pathans. Why, he asked, should they be forced to join either Hindustan or Pakistan? Why should not repeat not the North West Frontier Province and Baluchistan be formed into an independent State in intimate relations with Afghanistan? The Afghan Minister added that Afghanistan now expected recompense for all wrong done to her in the last century. He did not define the recompense but one thing Afghanistan would insist on was an outlet to the sea.” (ibid.; pp. 730-1).
New Delhi pointed out to London, on 30 June, that “the historical grounds on which Kabul now claims a special interest in them would if pushed back far enough chronologically justify India’s claiming Afghanistan. Such arguments from whichever side they may be pressed only lead to a reductio ad absurdum. We have to deal with things as they are not as they were in some less or more distant past. The Afghan proposal to send a Mission now to discuss the frontier question with us is as much an attempt to interfere in what is an internal affair of India as other proposals designed to claim a voice in settlement of this question and we cannot repeat cannot accept it.
“We have always recognized that both India and Afghanistan are interested in the welfare and development of the tribes inhabiting their respective zones of tribal territory. The appropriate time for discussing these common problems will be after the new Governments of India and Pakistan come into being; it is not now.
“As regards the first alternative… “independence” in the sense of freedom to people of the territory in question to join (Afghanistan) or to separate from both the Dominions of India and of Pakistan cannot be conceded. The fact that what is now India is soon to be succeeded by two sovereign Federal States cannot affect the strategic importance of the territory in question to these two States.” (ibid.; p. 799).
To his credit, Jawaharlal Nehru, Member for External Affairs in the Interim Government, was incensed at the Afghan propaganda. He said at a meeting of the Cabinet on 4 July, in the presence of Liaquat Ali Khan, that “about a month ago the press and the Radio in Afghanistan had started a campaign giving prominence to Afghanistan’s interests in the North West Frontier and the claim was made that Pathans were Afghans rather than Indians and they should have the utmost freedom to decide their own future and should not be debarred, as the proposed referendum would appear to do, from deciding either to form a separate free State or to rejoin their mother-land, viz. Afghanistan. These claims had later been taken up on an official level with H.M.G. and the Government of India. The Government of India had refuted this irredentist claim of Afghanistan to the area lying between the Durand line and the Indus river, and had pointed out that the issue regarding an independent Pathan State was a matter entirely for the Government of India and the Afghan Government had no locus standi. H.M.G.’s Minister at Kabul had mentioned the possibility that the Afghan Government’s object might be to divert public attention in Afghanistan from the internal economic situation which was precarious.” (ibid.; p. 878).
A Note Verbale and Aide Memoire of 4 July on behalf of Britain as well as India reasserted this stand clearly enough. “His Majesty’s Government would regard as incompatible with the undertakings exchanged by the British and Afghan Governments in Article I of the Treaty of 1921 (by which they mutually ‘certify and respect each with regard to the other all rights of internal and external independence’) any attempt by the Royal Afghan Government to intervene in the internal affairs of any territory situated on the Indian side of the Anglo-Afghan frontier mutually accepted by the two contracting parties in Article II of the Treaty and as defined in the map attached thereto.” (Mehrunnisa Ali; p. 98).
Kabul rejoined with a letter on 10 July “In the Treaty of 1921 or in the previous treaties concluded between the Afghan Government and the British Government there is no phrase or a small sentence to denote that the Afghan Government or Afghan Governments have ever recognized the Independent Frontier Belt or the Settled Districts inhabited by the Afghan race of British nationality as an integral part of India. The Treaty of 1921 was executed only between the British Government and the Afghan Government and not with any National Government in India. No National Government in India has, by force or Policy cut adrift from Afghanistan any part of the territories situated on that side of the Durand Line and stretching right up to (Rivers) Jhelum and Indus. If the British Government or the British Rule in India was a national Government or National Rule in India, then what was the significance of all these struggles put forward by the Indian nation against England, or what is the meaning of the Indian independence in these days? From the time of Lord Auckland, the Governor-General of India right up to the Third Anglo-Afghan War, it was the British Government – and not India – who constantly indulged in aggressive acts against Afghanistan.” (ibid.; p. 1010). This was a virtual, but note, not a formal denunciation of past treaties.
In London the Foreign Secretary Ernest Bevin met the Afghan Prime Minister on 31 July. Bevin recorded “It was notable, however, that His Royal Highness did not press the specific Afghan claims mentioned in the preceding paragraph and put forward by them in their note of 13 June. On the contrary he made it clear that the primary anxiety of the Government of Afghanistan was that their kinsmen in the province should continue to be well treated and be given every opportunity of preserving their cultural integrity after the transfer of power in India. In reply to a reference to the Anglo-Afghan Treaty of 1921 His Royal Highness indicated that, since this treaty was concluded with His Majesty’s Government, the Afghan Government could no longer regard it as valid after the transfer of power by His Majesty’s Government in India. They would, however, regard as equally valid, and be prepared to abide by, any treaty subsequently negotiated, e.g. with Pakistan.” (TOP; Vol. XII; p. 541).
In August, Caroe’s successor as Governor of N.W.F.P., Lt. Gen. Sir Rob Lockhart, reported to Mountbatten the intrigues that were afoot. “The revival of talks on the Kabul Radio and articles in the Afghan Press, after the recent lull, is also a disturbing feature. It is I think significant that this revived interest coincided with a visit to Kabul of one Puri, the Peshawar correspondent of the Hindustan Times and the Deputy Speaker of the province’s Legislative Assembly. He is commonly supposed to be the main link here with Gandhi. In articles to the Hindustan Times from Kabul he has made the most of Afghan interest in Pathanistan. I cannot help feeling that his visit to Kabul at this particular time was not accidental.” (ibid., p. 617).
This was the state of play when Pakistan and India attained independent Statehood on 15 August 1947, the day the Indian Independence Act, 1947 came into force. This is in the nature of a cut off date. By then the issues were defined by the recent claimant Afghanistan. The Durand Line was assailed on two main grounds. One was that in law Pakistan did not and could not inherit the treaties between Britain and Afghanistan. The other was that the treaties had been concluded by use of force.
In an essay on the validity of the Durand Line one is not concerned with Afghanistan’s later posturing. For example, Afghanistan voted in the U.N. General Assembly on 30 September 1947 against Pakistan’s admission to the membership of the United Nations but decided on 20 October, 1947, “to withdraw the negative vote” it had cast.
Nor is one concerned here with Khan Abdul Ghaffar Khan’s varying position. Both are set out in Prof. Mehrunnisa’s compilation. However, an early definition of his scheme by Khan Abdul Ghaffar Khan in Pakistan’s Constituent Assembly on 5 March 1948 deserves to be recorded now. “Khan Abdul Ghaffar Khan: What does our Pathanistan mean? I will tell you just now. You see, that the people inhabiting this Province are called Sindhis and the name of their country is Sind. Similarly, the Punjab or Bengal is the land of Punjabees or Bengalees. In the same way there is the North-West Frontier. We are one people and ours is a land. Within Pakistan we also want that the mere mentioning of the name of the country should convey to the people that it is the land of Pakhtoon. Is it a sin under the tenets of Islam?
The Honourable Mr. Liaquat Ali Khan: Is Pathan the name of a country or that of a community?
Khan Abdul Ghaffar Khan: Pathan is the name of the community and we will name the country as Pakhtoonistan. I may also explain that the people of India used to call us Pathans and we are called Afghans by the Persians. Our real name is Pakhtoon. We want Pakhtoonistan and want to see all the Pathans on this side of the Durand Line joined and united together in Pakhtoonistan. You help us in this. If you think it un-Islamic, then I would say that it is just Islam. If you argue that Pakistan would be weakened by it, then I would say that it is not so. Pakistan can never become weak by the creation of a separate political unit.” (Mehrunnisa’s Art. P. 121). The Durand Line was not challenged. Pakhtoonistan was demanded as “a separate political unit” within Pakistan. His clarification in the Assembly on 25 March 1954 suggests it was to be a Province of Pakistan like all those others.
“Sir, you will remember that in this House Mr. Liaquat Ali Khan had once asked me a question about it and I had then explained it to him. I shall once again reiterate before you what I had then said to him. Mr. Liaquat Ali Khan had asked what exactly I meant by Pakhtoonistan. I had replied that you say we are five brothers in Pakistan. There is Bengal, there is the Punjab, there is Baluchistan, there is Sind and we ourselves make up the fifth. Our four brothers have each a name; their country has a name by which they are recognized. I shall give you an illustration. Whoever, hears the name of Bengal knows that it is the land of the Bengalis; whoever hears the name of the Punjab knows that it is the land of the Punjabis; whoever hears the name of Baluchistan knows that it is the land of the Baluchis; whoever hears the name of Sind knows that it is the land of the Sindhis. In the same way we too have a country of our own but it has no name of its own. No one can visualize our country, the country of the Pathans until it has an expressive name of its own. When the countries of our other four brothers have their own names, it is necessary that our country should also have a name of its own. I would therefore say that our country too should have a significant name by which it may be known that it is the land of the Pathans. It is just this much and no more, but I am surprised to find that even such responsible persons should make mountain of a mole-hill.” (ibid.; pp. 181-182).
The two issues merit careful analysis. State Succession Article 11 of the Vienna Convention on Succession of States in Respect of Treaties (1978) says in explicit terms “A succession of States does not as such affect (a) a boundary established by a treaty, or (b) obligations established by a treaty and relating to the regime of a boundary”. This was merely declaratory of the prevailing rule in customary international law; namely that boundary treaties ran with the land (Oppenheim’s International Law, 9th Edn.; Vol. 1, p. 213). “The change of sovereignty does not as such affect boundaries”. Prof. Brownlie holds, citing a ruling of the International Court of Justice in support of the rule (Principles of International Law, Sixth Edition, 2003, Oxford University Press; p. 635).
There is another aspect to this matter which has been glossed over once a Cold War erupted between India and Pakistan. The Indian Independence Act, 1947 did not define the boundaries of India but specified in different ways, ‘the territories’ that were to form part of the ‘two independent Dominions’ of India and Pakistan.
Section 9 of the Act empowered the Governor-General of undivided India, Louis Mountbatten, to make Orders for bringing the provisions of the Act into effective operation after it came into force on 18 July 1947. Leaders of the two Dominions concluded an agreement on 6 August 1947 which the Governor-General enforced by a formal Order under section 9 entitled the Indian Independence (International Arrangements) Order 1947. The agreement was set out in the schedule to the Order.
In a comprehensive Report, the Expert Committee IX on Foreign Relations considered the problem in depth. Annexure V of the Report is decisive. It listed the treaties “which are of exclusive interest” to each country and “those which are common interest”.
Agreements with Afghanistan on 12 November 1893 and thereafter defining the boundary devolved on Pakistan exclusively; in short, those relating to the Durand line (p. 231). “The 1914 Anglo-Tibetan Conventions, in its operation between the British and the Tibetan Governments regarding the relation of Tibet vis a vis China and Great Britain”, was listed as item No. 141 in Annexure V (p. 230). So, in item No. 143, was the “Indo-Tibetan Boundary Agreement of 1914 regarding the Assam-Tibet Boundary” commonly known as the accord defining the McMahon Line. Both the agreements devolved on India. The issue of membership of the United Nations (UN) and other international organizations was resolved by Ivan Kerno, Assistant Secretary-General for Legal Affairs, to whom it was referred. He opined that “the new Dominion of India continues as an original member of the United Nations. Pakistan will be a new non-member State’ which would have to apply for admission to the UN.
It follows from this that India and Pakistan cannot claim frontiers beyond what they were in 1947; nor question each other’s frontiers. Pakistan cannot question the McMahon Line nor India the Durand Line. This was part of a tripartite agreement which binds India, Pakistan and U.K to this day.
Duress or Use of Force: In former times, treaties were held to be invalid if the negotiating envoy was bribed or personally subjected to duress; as distinct from duress against his State. The Vienna Convention on the Law of Treaties introduced the latter ground. Articles 52 of the Convention is relevant. It says “a treaty is void if its conclusion has been procured by the threat or use of force in violation of the principles of international law embodied in the Charter of the United Nations.” It has no retrospective force. Also relevant is Article 45 which says “A State may no longer invoke a ground for invalidating, terminating, withdrawing from or suspending the operation of a treaty under articles 46 to 50 or articles 60 and 62 if, after becoming aware of the facts: (a) it shall have expressly agreed that the treaty is valid or remains in force or continues in operation, as the case may be; or (b) it must by reason of its conduct be considered as having acquiesced in the validity of the treaty or in its maintenance in force or in operation, as the case may be.”
This would be very relevant if Afghanistan persists in its stand now. The record establishes two facts beyond doubt. There was no use of force against Afghanistan in the conclusion of the relevant Treaties and Afghanistan not only acquiesced to them but cooperated with Britain over decades in their implementation.
Authoritative accounts of the principal negotiations themselves belie accounts of duress between the King of Afghanistan, Amir Abdurrahman, and Sir Mortimer Durand, India’s Foreign Secretary. The Amir wrote in his autobiography “Sir Mortimer Durand left Peshawar for Kabul on the 19th September 1893. The Mission was met by my general, Ghulam Haidar Khan Charkhi, on their entering Kabul, and I arranged the residence of my son, Habibullah Khan, for their residence. After the first ceremonial Durbar we soon started discussing matters. Durand being a very clever statesman as well as a good Persian scholar, all the discussions were soon put right; but to keep a record of every word which was uttered by Sir Mortimer Durand, myself, and other speakers of the Mission, I had arranged for Mir Munshi Sultan Muhammad Khan to sit behind a curtain without being seen or heard, or his presence known of by anyone else except myself, to write down every word they spoke to me, or among themselves, either in English or in Persian. He wrote in shorthand every word uttered by Durand and myself, and this conversation is all preserved in the record office. The short outcome of the conversation was this, that the boundary line was agreed upon from Chitral and Baroghil Pass up to Peshawar, and thence up to Koh-i-Malik Siyah [the trijunction of Persia, Afghanistan and Baluchistan] in this way that Wakhan kafiristan, Asmar, Mohmand of Lalpura, and one portion of Waziristan [Birmal] came under my rule, and I renounced my claims from the railway-station of New Chaman, Chagai, the rest of Waziri, Biland Khel, Kurram, Afridi, Bajaur, Swat, Buner, Dir, Chilas and Chitral.
“The Mission left Kabul on 14 November, having greatly enjoyed their visit. The misunderstandings and disputes which were arising about these Frontier matters were put to an end, and after the boundary had been marked out according to the above-mentioned agreements by the Commissioners of both governments a general peace and harmony reigned which I pray God may continue for ever.” (Quoted in Olaf Caroe’s, The Pathans; Oxford University Press, Karachi; 1976; p. 391). Caroe pointed out that “The Amir had renounced sovereignty beyond the Line”.
Thanks to a collection edited by Pakistan’s dedicated diplomat S. Fida Yunus, we have ready access to Durand’s account as well (The Durand Line Border Agreement 1893, Area Study Centre, University of Peshawar; 2005; pp. 45-69). He was received on 5 October, 1893. “After this interview the Amir signified that he was ready to enter upon business, and during the next six weeks we had numerous discussions upon the matters at issue. I began by informing His Highness that, in deference to his strongly expressed desire, the Government of India had decided that for the future the Persian text of all communications between them and the Amir would be regarded as binding. His Highness seemed much pleased at this concession. … His Highness was somewhat troublesome, declining with real or simulated indignation to be bound by any agreement made by his predecessor, Sher Ali, and denying the accuracy of our maps, and questioning the genuineness of our documents, and raising a variety of objections; but eventually, after some days’ delay, he gave in with a fairly good grace, and consented to abandon all districts held by him to the north of the Upper Oxus, on condition that he received in exchange all districts not now held by him to the south of this part of the river. …
‘His Highness made considerable capital out of his comparatively ready acquiescence regarding the Oxus frontier, and repeatedly pointed out that he was on that account entitled to consideration in the matter of his differences with the Government of India. In the second place, His Highness imagined that he had an intimate personal acquaintance with the questions discussed, and with the geography of the country in dispute, and he declined to accept any maps or statements not according with his views. More over he was disposed to claim for Afghanistan everything that former Afghan monarchs had possessed, arguing that the British occupation of India was a thing of yesterday, and that he had far more right to press his claims to Kashmir and Delhi than we had to talk of our fifty year connection with the Waziris and Afridis and Bajauris. I cannot say that he was violent or discourteous, but he was not easy to deal with. …
“In order to attain this object, I had to recognize his occupation of Asmar in the Kunar valley, which he flatly refused to evacuate, and I had to leave him the Birmal valley, on the north-western corner of the Waziri country. The Waziri lands in this valley are occupied in winter when the Waziris retire by the Amir’s Kharoti herdsmen. …
“The agreement which embodies our understanding as to the Afghan frontier on the side of India is attached to this report. It will be seen that by it the Amir clearly binds himself not to interfere in any way for the future with the Bajauris, Afridis, Waziris, Kalkars, and other tribes on our frontier. The maps appended to the agreement show the line now laid down, and the amount of independent territory surrendered on both sides. The balance is very largely in our favour, and gives us practically a free hand in dealing with the frontier tribes for the future. I have not included in the territory surrendered by the Amir Chitral or the Afridi country, because though he did at one time claim both these countries, he had practically withdrawn his claim to them before the present negotiations took place. It is important that steps should be taken without much delay to clinch the agreement by demarcation, where demarcation may be desirable and possible, or some of the advantages of the settlement may be lost. The Amir, though he at first asked for immediate demarcation and invited me to leave an officer behind me to settle the Asmar boundary, afterwards said he would rather wait a month or two. …
In the matter of trade I found His Highness quite impracticable. … I could get no further with him, and his last word was that he wanted nothing except facilities for selling his brandy and opium in India. As to this matter he is hopeless at present – caring for nothing but his personal profit. In the matter of his barbarities he is unapproachable. He says the Afghans are not Englishmen, which is quite true, and that he must make examples or he will have disorder all over the country. He regards any remonstrance on this subject as an interference with his internal affairs, and resents them accordingly.” (pp. 51-55). There was no duress; only camaraderie.
Matters did not end there. Proceedings for defining and demarcating the Durand Line were prolonged and protracted; from 1893 till 1934. We have a detailed account in J.V.R. Prescott’s masterly work, Map of Mainland Asia by Treaty; Melbourne University Press, 1975 (p. 181-186) from which these extracts are drawn. “The agreement which created the Durand Line consists of seven short articles and a small-scale map of the Afghan-Indian border. The boundary was marked on the map, and the section west of New Chaman was also described in the fifth article. This section measured 50 miles (80 kilometres) from the Peha pass north of New Chaman to the Khwaja Amran range 26 miles (42 kilometres) south of New Chaman. The third article also made reference to the allocation of territories in summarizing the main concessions by both sides. Afghanistan was allowed to retain Asmar and the Birmal tract, while British India gained Chagai, and the emir’s promise that he would not interfere in the affairs of ‘Swat, Bajaur, or Chitral, including the Arnawai or Bashgal valley’. By the other short articles both sides undertook to refrain from interference in the territories of the other; arrangements were made for the demarcation of the line shown in the map by joint commissions; both sides confirmed that the settlement was full and satisfactory, and that future problems would be settled in a spirit of friendship; and the British government abandoned its objections to the import of arms and ammunition into Afghanistan. The spirit of compromise abroad in these negotiations is shown in the arrangements for the Chagai. This region was claimed by Britain as part of Baluchistan. The emir’s forces had occupied the area in 1886 and therefore controlled the trade routes from Sistan to Quetta. Durand secured the retrocession of the trade routes by leaving Afghanistan in control of northern Chagai. Thus Afghanistan secured firm tile to the Shela Hamun, a large salt lake, and the British border was kept well away from the Helmand river at Rudbar.
“The demarcation began in April 1894, five months after the signature of the agreement, and was completed in May 1896. During the two years of demarcation, seven sections of the boundary were precisely defined, and these can be most conveniently described in geographical sequence from the north. In an agreement dated 9 April 1895 R. Udny and Ghulam Haidar Khan settled the boundary from a point just east of Charkhao pass (36º 3’ north) to Nawa pass (34º 45’ north). This boundary was not demarcated and included the controversial section of the Bashgal valley.
“Thus at the conclusion of this work two sections remained unsurveyed. The boundary in the neighbourhood of the Khyber pass between Nawa pass and Sikaram peak remained unmarked until 1919. The section north of Charkhao pass to the Chinese border, along the crest of the Hindu Kush, needs no human demarcation. …
Since the settlement of the Third Afghan War one part of the boundary has been clarified in the vicinity of Arnawai. The agreement prepared by Udny and Ghulam Haidar Khan on 9 April 1895 described the boundary in this area.
“This definition drew the boundary along a spur south of the Arnawai stream, which was occupied by the Afghan settlement of Dokalim. The inhabitants of this village farmed some irrigated fields on the south bank of the Arnawai. Since the 1895 agreement also gave the power to vary the line slightly to protect the rights of villages, it was decided to take this action in 1932. W. R. Hay and Aliqadr Sadaqatmaab Habibullah Khan Tarzi met in July 1932 and quickly agreed on an amended boundary, which followed the Arnawai stream for 1540 yards (1408 metres) above its confluence with the Kunar river, thus leaving the Dokalim territory intact. This boundary was defined by a signed map which was attached to an Exchange of Notes in February 1934.
The agreement of 1893 was followed up in accords right till 1930. They are quoted in Appendix B by Caroe and are reproduced here for facility of reference.
I. Extracts from Durand Agreement. (Signed in Kabul by Amir Abdurrahman on 12th November 1893).
1. The eastern and southern frontier of His Highness’s dominions, from Wakhan to the Persian border, shall follow the line shown in the map attached to this agreement.
2. The Government of India will at no time exercise interference in the territories lying beyond this line on the side of Afghanistan, and His Highness the Amir will at no time exercise interference in the territories lying beyond this line on the side of India. …
4. The frontier line will hereafter be laid down in detail and demarcated wherever this may be practicable and desirable by joint British and Afghan Commissioners, whose objects will be to arrive by mutual understanding at a boundary which shall adhere with the greatest possible exactness to the line shown on the map attached to this agreement. …
II. Extract from Anglo-Afghan Pact of 1905. (Signed by Amir Habibullah in April 1905 with the mission led by Sir Louis Dane.)
His said Majesty does hereby agree to this that in the principles and in the matters of subsidiary importance of the engagements which His Highness my late father (Abdurrahman) concluded and acted upon with the exalted British Government, I also have acted, am acting, and will act upon the same agreements and compacts, and I will not contravene them in any dealing.
III. Extract from Treaty of Rawalpindi of 1919. (Signed on 8th August, 1919, by the Afghan peace mission sent to Rawalpindi to conclude the Third Afghan War).
5. The Afghan Government accept the Indo-Afghan Frontier accepted by the late Amir [Habibullah].
Note : This treaty also agreed to the small demarcation proposed at the western end of the Khaibar, and this demarcation was then carried out.
IV. Extracts from Anglo-Afghan Treaty of 1921. (Concluded by the Dobbs Mission in Kabul, 22nd November 1921).
2. The two high contracting parties mutually accept the Indo-Afghan frontier as accepted by the Afghan Government under Article 5 of the treaty concluded on the 8th August, 1919.
II. The two high contracting parties, being mutually satisfied themselves each regarding the good will of the other and especially regarding their benevolent intentions towards the tribes residing close to their respective boundaries, hereby undertake each to inform the other in future of any military operations of major importance which may appear necessary for the maintenance of order among the frontier tribes residing within their respective spheres, before the commencement of such operations.
Supplementary letter from the British Representative to the Afghan Foreign Minister: “As the conditions of the frontier tribes of the two governments are of interest to the Government of Afghanistan, I inform you that the British Government entertains feelings of good will towards all the frontier tribes and has every intention of treating them generously, provided they abstain from outrages against the inhabitants of India. I hope this letter will cause you satisfaction.”
V. Exchange of letters between H.M.’s Secretary of State for Foreign Affairs and the Afghan Minister in London, dated 6th May 1930. Extracts:
(i) We have agreed that it is desirable, in view of the recent accession to the Afghan throne of His Majesty King Muhammad Nadir Shah, to reaffirm the validity of the Treaty concluded at Kabul on 22 November 1921 … I accordingly have the honour to place on record that it is our understanding that these Treaties continue to have full effect.”
Afghanistan’s Ambassador to India one Najibullah Khan exploited the Indo-Pak Cold War to declare open season on its spurious claims till he was posted in London. One Rahman Pazhwak of 31 Princess Gate, London, SVV, republished the Afghan Information Bureau’s booklet, The Pashtun Question in an enlarged edition entitled Pakhtunistan. The text and the attached map extended the bogus claim to include Balochistan.
Publication of a White Paper or a Blue book is itself a political act; unwise in present circumstances. But there is no reason why a University or a think-tank should not publish a very full account, with the documents appended, for all to read.
The author is an eminent Indian scholar and expert on constitutional issues.