The recent kidnapping of five Iranian security guards by Jaishul Adl deeply strained diplomatic relations between Pakistan and Iran. Iran claimed that the guards had been transferred and were being held hostage on Pakistani territory — a charge strongly denied by Islamabad — and subsequently threatened sending its forces into Pakistan to free the guards if Pakistan did not act expeditiously to secure their release.
This situation, unfortunately, is not unprecedented: Iran has regularly complained that Pakistan lacks effective control over its border and has previously warned Pakistan to rein in the militant outfit Jundullah, which it claims operates from Balochistan and whose members infiltrate and conduct terrorist activity in Iranian territory.
Further north, the doctrine of ‘hot pursuit’ has been presented as justification when Nato helicopter attacks, US drone strikes and other aerial operations have been conducted on Pakistani territory without Pakistan’s consent, in order to target Afghan Taliban forces. The latter, it is claimed, have crossed the border into Pakistan following engagements with Nato and the US forces in Afghanistan.
Such instances have also resulted in the loss of Pakistani lives, with soldiers on the border posts being killed in cross-border aerial raids. While under international law the doctrine of hot pursuit is only recognised in maritime zones, and not across land territorial boundaries, the fact remains that some states will continue to argue that Pakistan’s inability to monitor and guard its border is a prime reason to disregard its sovereignty.
One way in which Pakistan could prevent the erosion of its territorial integrity is by entirely and securely fencing its western borders. While the culmination of this project might take some time due to geographical and geopolitical constraints, any substantial progress would go a long way in securing our borders. In a similar vein, Iran has been building a barrier on its side of the border with Pakistan.
Under Article 2(4) of the UN Charter, it is the sovereign prerogative of Pakistan to fence its borders. This principle was upheld by the International Court of Justice (ICJ) in the Israeli wall case, where the apex court did not find the building of a separation wall by Israel on what it considered Israeli territory to be a violation of international law, but did find such construction illegal on Palestinian lands.
Furthermore, a number of countries have fenced their borders such as those between India and Pakistan, India and Bangladesh, Uzbekistan and Afghanistan, Kazakhstan and Uzbekistan, Saudi Arabia and Yemen and the US and Mexico.
When borders are clearly delimited then no legal challenges can exist to such fencing; thus, India’s building of such a fence in Kashmir would be illegal. Pakistan’s borders with Iran, on the other hand, are recognised and the legal status of the Durand Line is also established under international law — contrary to the position of some Afghan officials.
The treaty between the British and the Afghan emir in 1893 resulted in the culmination of the Durand Agreement; Sir Henry Mortimer Durand, the British foreign secretary to India, represented the British in the formulation of this agreement with King Abdur Rehman of Afghanistan. This agreement was subsequently reaffirmed by the emir’s successors on at least three separate occasions: in 1905 (Anglo Afghan Pact), in 1919 (Treaty of Rawalpindi), and in 1921 (Anglo- Afghan treaty).
While under customary international law treaties are void if entered into under coercion or duress, the standard of proof required for the nullification of a treaty is near impossible to meet and has not been met in relation to the Durand Agreement. This agreement was entered into by the contracting parties freely as per international law and the fact that the British made annual payments on a continual basis and undertook shipment of weapons to the Afghan king until the 1920s on the basis of this treaty further emphasises the fact that there was no duress.
The treaty had no expiry date and under international law such treaties exist till abrogation by mutual agreement. Moreover, the Afghans themselves have historically treated the Durand Line as a valid border for state relations — eg for travel and visa purposes. Additionally, under the international law doctrines of ‘estoppel’ and ‘acquiescence’ the Afghan government cannot question the sanctity of the Durand Line.
Under the established customary international law principle of uti possidetis, previous border arrangements are handed down to newly created states and borders delineated by colonial powers are inherited by successor states. This fundamental principle of international law has been reiterated and confirmed by the ICJ and is enshrined in the Vienna Convention on Succession of States in Respect of Treaties.
Importantly, the British House of Commons affirmed the Durand Line agreement and the Durand Line as the legal border between Afghanistan and Pakistan in 1949 and the queen subsequently reaffirmed the sanctity of this border in 1950. This is conclusive keeping in mind that Britain was the previous colonial power governing this region.
The major threat that Pakistan currently faces is the degradation of its sovereignty at the hands of both non-state actors and powerful states. While recently the focus has shifted from the international to the local in relation to national security imperatives, securing Pakistan’s frontiers will improve the writ of the government.
The writer is an associate professor of public international law at Lahore University of Management Sciences.
Keywords: Political science , Political process , International relations , International law , Political relations , Drone attacks , Security policy , Diplomacy , Abdur Rehman , Afghanistan , United States , Pakistan , Yemen , Balochistan , Bangladesh , Iran , NATO , ICJ
