Publications

Pakistan-Afghanistan Border Management: A Legal Perspective (PILDAT)

As part of an initiative on quality of governance and democracy, PILDAT has been working on developing analyses on the need for a better-managed Western border. Their focus stems from the belief that no state can survive with soft borders and unless Pakistan secures its borders, it will continue to face a host of issues branching not only in internal and external complications but also matters relating to health and trade, among others. Pakistan-Afghanistan Border Management

It is in this regard that PILDAT commissioned a paper on “Pakistan-Afghanistan Border Management: A Legal Perspective” by requesting Mr. Ahmer Bilal Soofi to draft answers to questions, such as, the international status of the Durand line, historic easement rights of tribes residing along the border and how these can and should be regulated by law and the need for regulating the Pakistan-Afghanistan international border.

The Pakistan-Afghanistan border is frequently described as one of the most volatile and dangerous places in the world due largely to the presence of terrorist safe havens and lax Governmental control. The area is also a hub for various forms of illegal activity, such as the smuggling of weapons, narcotics, vehicles, timber and electronic goods. The health hazards over the years due to the spread of polio and other viruses through free movement also pose a challenge to the state.

The Durand Line constitutes the legal border between Pakistan and Afghanistan under International Law. However, much confusion arises from misunderstanding the legal concept of ‘easement rights’ that are said to have been granted to the various tribes along its sides. These rights have come to be seen as facilitative of cross border movement at will. This assumption has evolved outside any codified framework through practice by tribes divided by the Durand Line.

Based on the premise of easement of rights, the Durand Line has emerged as a soft border or legally, an entity less than an international border, however this is a hollow argument. The practice of easement rights does not in any way dilute or diminish that legal status. It is also important to understand that easement rights are only exercisable by members of the tribes divided by the Durand Line and are not available to other ordinary nationals of Afghanistan or Pakistan.

This paper argues, that as a matter of international law, both Afghanistan and Pakistan are compelled by United Nations Security Council Resolution 1373 to “deny safe haven to those who finance, plan, support, or commit terrorist acts, or provide safe havens” and to “prevent those who finance, plan, facilitate or commit terrorist acts from using their respective territories for those purposes against other states or their citizens.”

Additionally, the argument is made that the Government of Pakistan should consider enacting a comprehensive legislation, which enables it to document persons crossing the Durand Line. In order to institute an effective system of checks and balances along the Durand Line, the proposed legislation should define easement right users and issue special ‘easement right user IDs’ to individuals falling under this category.

The paper is published by PILDAT under its Democracy and Governance Programme for which it has received financial support from the Danish International Development Agency (DANIDA), Government of Denmark.

Download PDF