Featured Durand Line: A Border Recognized

[Longhorn]

A very lucid explanation. Allow me to give my two cents.

Without travelling too far, Afghanistan's treaties with the British can be more appropriately compared to -Anglo-Nepalese Treaty of Sugauli 1816 and Anglo-Burmese Treaty of Yandabo -1826. Both ceded sizable territories previously held by them to the British.

After Hindu India's independence, both Nepal and Burma signed treaties of friendship with India in 1950 and 1951 respectively and recognized India's as a successor of the British Empire thus ratifying their previous treaties.

Question is why didn't Afghanistan do this with Pakistan? In fact, Afghanistan was conducting raids especially during the 50s at a time when India had mobilized its troops on Both East and West Pakistan.

A merger in the late 50s proposed by Pakistan was also rejected. Even though few sane Afghans fearing USSR did voice their support later, it was desultory.

The problem seems to be contempt for Pakistan and its people. This to my mind has no legal, political or economic solution. Hence, Afghan govts will continue to dispute the durand line in any way they seem fit be it ethnic, legal, historical or political.

Pakistan has to come up with a permanent solution realizing these ground realities.

Pakistan already has a permanent solution.
It's called The Pakistan Army.

 

[HalfMoon]

The solution to the Durand line is not recognition rather nonrecognition.

Pakistan just need to annex Afghanistan and be done with this.

 

[H. Dawary]

Here is the issue that I as an Afghan have with the Durand line... and hopefully someone can answer this question, then as regards to history and what transpired I will get into that after the question is answered.

I have family that lives in KPK and they have been there before there was a Pakistan they consider themselves Pakistanis, our ancestors have traversed these lands for 5000 years, and one day a group of people come from Europe and decide such will be such and such will be such. I have issues with this; Many peoples from India travelled to what is modern day Pakistan, and yet these people have more rights to my ancestral lands over me when my ancestors have been walking these lands for thousands of years and yet people who just came here 70 years ago have suddenly more rights to it than I, tell me how you can negate the history of a people?

 

[saiyan0321]

Here is the issue that I as an Afghan have with the Durand line... and hopefully someone can answer this question, then as regards to history and what transpired I will get into that after the question is answered.

I have family that lives in KPK and they have been there before there was a Pakistan they consider themselves Pakistanis, our ancestors have traversed these lands for 5000 years, and one day a group of people come from Europe and decide such will be such and such will be such. I have issues with this; Many peoples from India travelled to what is modern day Pakistan, and yet these people have more rights to my ancestral lands over me when my ancestors have been walking these lands for thousands of years and yet people who just came here 70 years ago have suddenly more rights to it than I, tell me how you can negate the history of a people?

The same way it has been negated all over the world. The International Law and the Law of treaties. I talked about this argument that is based on old social and ethnic links and on emotions but as i have mentioned before, they are not given weightage at all in International law in the face of Treaties, recognitions and implied recognitions and if there exists such recognition then it is the right of the sovereign power over there with the mandate of the people to erect laws that govern the people. No nation can be forced to open its land border to another ( I use land border here because the law of Sea has travel rights due to sea passages and law of strait) for example can the people of Punjab that moved from Jallandhar and other areas, demand the opening of the border? Was Pakistan obligated legally to open kartarpur like corridors or is India obligated to do that in International Law? The answer no. A sovereign territory is legally fully in right to create as many border regulations as it may see fit. It is its prerogative as a sovereign nations recognized by the UN.

As for the people that traveled from India. Pakistan was a dominion under British Laws and the right to citizenship was not just granted because legally they were traveling from one end of the British India to the other Since in the Independence Act Article 18, i believe held that the people would remain as subjects of the crown and the people of the princely states that were considered as Dejure foreigners but protected persons would be treated as British Subjects. So they never had to fight for legal citizenship until 1951 when the migrations were closed and both countries passed citizenship laws.

Nobody is negating history but they are declaring that the right of the state will be above the right of a foreigner in concern to the land of the state and a foreigner is a person who is not a citizen of the state.

As i stated above. Ethnic links and emotional arguments seldom hold in court when the other party brings forth legal arguments.

 

[Pakistan Space Agency]

So in short Afghani want to live a boundryless world where they can benefit from economic opportunities of Pakistan but dont have to follow Pakistani laws.

This is also evident from the conduct of these afghanis living in Pakistan

Yes. Afghans would like to move in and out of Pakistan as and when they like but don't want Pakistani law applied to them (Not sure who they think they are).

It's like Tirah Valley in the tribal belt which Pakistan invaded in 2002 for the first time in 50 years. Before this, the tribes were happy to live within Pakistan for half a century as long as Pakistan did not impose it's constitution on them.

But the mood at that time was that a nuclear armed Pakistan has to have full control of it's borders due to international pressure but tribes did not care and ended up negotiating with the Pakistani Government for the Islamic Emirates of Waziristan Accord in September 2006.

 

[H. Dawary]

The same way it has been negated all over the world. The International Law and the Law of treaties. I talked about this argument that is based on old social and ethnic links and on emotions but as i have mentioned before, they are not given weightage at all in International law in the face of Treaties, recognitions and implied recognitions and if there exists such recognition then it is the right of the sovereign power over there with the mandate of the people to erect laws that govern the people. No nation can be forced to open its land border to another ( I use land border here because the law of Sea has travel rights due to sea passages and law of strait) for example can the people of Punjab that moved from Jallandhar and other areas, demand the opening of the border? Was Pakistan obligated legally to open kartarpur like corridors or is India obligated to do that in International Law? The answer no. A sovereign territory is legally fully in right to create as many border regulations as it may see fit. It is its prerogative as a sovereign nations recognized by the UN.

As for the people that traveled from India. Pakistan was a dominion under British Laws and the right to citizenship was not just granted because legally they were traveling from one end of the British India to the other Since in the Independence Act Article 18, i believe held that the people would remain as subjects of the crown and the people of the princely states that were considered as Dejure foreigners but protected persons would be treated as British Subjects. So they never had to fight for legal citizenship until 1951 when the migrations were closed and both countries passed citizenship laws.

Nobody is negating history but they are declaring that the right of the state will be above the right of a foreigner in concern to the land of the state and a foreigner is a person who is not a citizen of the state.

As i stated above. Ethnic links and emotional arguments seldom hold in court when the other party brings forth legal arguments.

That is fine and all, but once again I ask as to whom decided that?

Here is my line of argumentation... The Pashtuns in KPK were given a choice to be with either India or Pakistan, and although the third and fourth option were not given (Afghanistan or Pashtunistan), nevertheless they chose Pakistan and that is a decision that must be respected. However I have two questions regarding this... Although the Pashtuns of KPK are the rightful owners of KPK, whoever said that we (Afghans) are not? And when that vote was made to be apart of Pakistan, did that also include depriving some of the natural inhabitants (Afghans in present day Afghanistan) of their legacy?

 

[saiyan0321]

That is fine and all, but once again I ask as to whom decided that?

The International community that formed the principles that govern International law

Although the Pashtuns of KPK are the rightful owners of KPK, whoever said that we (Afghans) are not?

The day the government of Afghanistan signed multiple treaties and then provided recognition to the region's separate nature and provided the recognition as i have stated in the Article.

And when that vote was made to be apart of Pakistan, did that also include depriving some of the natural inhabitants (Afghans in present day Afghanistan) of their legacy?

If the legacy is history of Pashtuns and culture then that cant be deprived nor claimed by any single country however if that legacy means right of easement or stake in land that is now a recognized part of another country then no that right does not exist and simply based on traveling rights or ethnic rights, borders cannot be removed as i mentioned in the Article.

 

[saiyan0321]

The most obvious example would be when afghan Refugees are treated as refugees and placed under the limitation of refugees. The International community and International Law finds no fault in that because cultural or ethnic links do not mean that lands under the recognized and sovereign control of another could be ignored. The superiority of Municipal Law is very much respected in International law when we talk about law of immigration or Refugee law.

 

[AgNoStiC MuSliM]

They want this border to be treated as an open border like the borders within the European Union.

There's nothing wrong with this, and in fact this should be a goal for Pakistan, not just with Afghanistan, but also with Iran.

However, such open borders in the EU did not just magically appear - they are the result of extensive negotiations and engagement between EU countries on their laws and policies. Before Pakistan and Afghanistan can even consider such open borders, Afghanistan needs to stabilize, develop its institutions & law enforcement mechanisms to at least come to a level closer to Pakistan.

 

[AgNoStiC MuSliM]

Although the Pashtuns of KPK are the rightful owners of KPK, whoever said that we (Afghans) are not?

Another way to look at this (in a very simplistic manner) is to use the analogy of an extended family.

My parents own land/property. Under law this transfers to their children. My parents also have siblings (my Uncles, Aunts, Cousins) who have tried legal and illegal means (unsuccessfully) to take over parts of said land/properties.

My siblings and mother have no intention of letting them take that which is ours, even if they are the same ethnicity/tribe/family/bloodline.

What is ours is ours, what is theirs is theirs.

 

[H. Dawary]

That is fine and all, but once again I ask as to whom decided that?

Here is my line of argumentation... The Pashtuns in KPK were given a choice to be with either India or Pakistan, and although the third and fourth option were not given (Afghanistan or Pashtunistan), nevertheless they chose Pakistan and that is a decision that must be respected. However I have two questions regarding this... Although the Pashtuns of KPK are the rightful owners of KPK, whoever said that we (Afghans) are not? And when that vote was made to be apart of Pakistan, did that also include depriving some of the natural inhabitants (Afghans in present day Afghanistan) of their legacy?

Yes Recognition that KPK is apart of Pakistan, I agree with that wholeheartedly, but not recognition of absolving ourselves of our ancestral lands.

This is essentially the crux of the matter, in essence we do not recognize a border and want open borders with KP and it should be something that should be discussed in the future. Free movements of people in the near future.

 

[H. Dawary]

Another way to look at this (in a very simplistic manner) is to use the analogy of an extended family.

My parents own land/property. Under law this transfers to their children. My parents also have siblings (my Uncles, Aunts, Cousins) who have tried legal and illegal means (unsuccessfully) to take over parts of said land/properties.

My siblings and mother have no intention of letting them take that which is ours, even if they are the same ethnicity/tribe/family/bloodline.

What is ours is ours, what is theirs is theirs.

It’s a different scenario in this case, it’s one thing to belong to that land and another to own private property...

 

[saiyan0321]

es Recognition that KPK is apart of Pakistan, I agree with that wholeheartedly, but not recognition of absolving ourselves of our ancestral lands.

It doesnt work that way in Law. The right to movement and right to live on it simply by stating that we have ethnic link to foreign land is simply not possible and is against the legal principles of International law. The day that recognition took place was the day that such rights on the land and its resources and all that is on it and will be on it were lost.

This is essentially the crux of the matter, in essence we do not recognize a border and want open borders with KP and it should be something that should be discussed in the future. Free movements of people in the near future.

You cant force a country to open a border. That is the right of a country in International law and there is a world of difference between Free movement like EU and claiming rights on land.


States, when they become part of UN, become part of International law

 

[AgNoStiC MuSliM]

It’s a different scenario in this case, it’s one thing to belong to that land and another to own private property...

My extended family is always welcome to visit, but the land is ours, not theirs, and they must respect us, respect our rules and our claim on it.

 

[saiyan0321]

My extended family is always welcome to visit, but the land is ours, not theirs, and they must respect us, respect our rules and our claim on it.

Actually property rights played an important role in the formation of law of Dispute like possession being 9/10th of the law and in absence of no legal conclusion the court stating that settled borders should not be moved.