A law for crossing the Durand Line?

By
Ahmer Bilal Soofi
It is clear that non-state actors - Haqqani network, TTP supporters etc. - going back and
forth across the Durand Line are the major cause of serious differences growing
between Pakistan, Afghanistan and the United States.
The US and Afghanistan blame Pakistan for allowing safe havens to those who cross
over inside Afghanistan and Pakistan blames the Indian hand etc., for allegedly
infiltrating miscreants from Afghanistan, allowing them to cause suicide attacks and
other sabotage activities particularly in Balochistan and KPK.
One solution that has been ignored so far is that the government of Pakistan considers
making a comprehensive legislation that documents the persons who are crossing the
Durand Line back and forth. Such legislation should also declare various legal
categories in which the persons crossing Durand Line can possibly fall.
For example, there is a category of persons who cross Durand Line in exercise of their
easement rights because their tribes have been divided and the Durand Line sometimes
goes through entire villages or settlements. These divided tribes and their families have
been historically allowed right to move back and forth under the legal rubric of
`easement rights. Sometimes people tend to argue that because of this movement of the
users of easement rights, the Durand line is a soft border or that it is legally lesser than
an international frontier. This is not correct. The Durand line is an international border
under international law. The exercise of easement rights does not dilute its legal status
as an international boundary. It must also be clear that the right of easement is exerciseable by a member of divided tribe only and not by a resident of Kabul or Islamabad for
that matter. The proposed law should, therefore, define easement right users and they
be issued special `easement right user IDs.
Another category of persons who cross Durand Line is Afghan refugees. The proposed
Pakistani law should also define and describe `Afghan Refugee. It may provide that a
refugee shall remain confined to a premises designated. His particulars shall be
documented. His movements should be under check and he should be issued a specific
document specifying his status as a refugee.
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At the moment NADRA issue ID but they only account for the refugees and does not
confer a legal status. Plus these IDs are issued at random without any administrative
authority verifying the claim as refugee. It should also be made sure that the definition
of the refugee in the proposed law should be in conformity with the definition of
refugee under UN Convention on Refugees. The said refugee shall not have a status of
citizen of Pakistan. His length of stay may not confer on him a right to insist on
Pakistani ID or a citizenship status. The law should provide the KP Government or the
federal government with the power to return the refuge to his country of origin-which
often is Afghanistan-to be settled in provinces that have become relatively stable. The
government should-under the proposed law-should have the powers to periodically
review the internal stability situation in Afghanistan provinces to ascertain if the right
to return the refugee is exercisable.
Further the proposed law should also provide for the legal and objective basis of
resettlement of refugees in other states like Canada, Australia etc. It should also provide
for provisions ensuring cooperation between the UNHCR and the government of
Pakistan on implementation of the traditional rights of the refugees.
The proposed law should also contain sanctions if the Afghan refugee misuses his
status as a refugee and indulges in crimes or trafficking of drugs in Pakistan or across
Durand Line or supports miscreants who are targeting state structures in both Pakistan
and Afghanistan.
The law should also provide that if a refugee declines to return to his country or region
then what are the grounds of same. If the refugee has obtained an employment in
Pakistan, or opened a shop for doing business then he comes closer to the definition of
an economic migrant and somewhat drifts away from the definition of `refugee. An
Afghan refugee who is now doing business in Pakistan and having become a `economic
migrant since he is now driven by economic motives to stay in Pakistan, raises lots of
issues that require proper legal treatment. Can he be given rights to hold property?
Should he become a taxpayer? Or should he pay an annual levy to the provincial
government are questions that can be addressed in the proposed law.
The ex-refugee, who now becomes an `economic migrant, should be given a legal
category of `economic temporary migrant. He can be issued a proper ID in this regard.
His territorial zone of doing business in Pakistan (can he do trucking business in
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Karachi or should he do transit business in KP only or should he have a shop in

Peshawar etc) be spelled out.
Further, the personal issues need to be resolved in the proposed law. For instance, if the
economic migrant marries locally, what shall be the legal status of his children and wife
and perhaps himself few years later? Right now all this is actually happening but
without any proper legal cover.
At the moment the Afghan refugees who have moved on to become `economic
migrants, are treated by local courts in KP under Foreigners Act or as an adhoc
arrangement, the government issues notifications (that cannot as such override
applicable statute) preventing prosecution under the same. All this complicates the
issues of personal liberties of the economic migrants or ex-refugees.
Another category that the proposed law should define and regulate is that of the
`asylum seeker. If the Afghan refugee does not want to return to Afghanistan at all on
the ground that he shall be persecuted on his return and he is able to show evidence
then he will now be legally called an `asylum seeker, which again is a separate legal
category under international law.
And then there will be a broad category of unauthorized persons crossing Durand Line
back and forth who fall in none of the above specific categories.
They can be collectively referred to as `non-state actors. It shall be necessary to further
sub-classify them. For example, the `non-state actors, who are neither refugees nor
economic migrants or asylum seekers, are either foreigners or unauthorised infiltrators.
In case of foreigners, we have seen that sometimes their countries of origin decline to
accept them. So what should Pakistan do with them? There is no clarity on their legal
treatment. That is why the proposed law should provide for the legal treatment of such
unauthorised and undocumented non-state actors.
It is somewhat surprising that while Pakistan has enacted extensive legislation for
goods (Afghan Transits regime) that cross Durand line yet it does not have a regime for
individuals who cross the said line frequently. Therefore, to summarise Pakistan is in
need of a legislation that would define clearly the categories of persons who cross over
Durand Line back and forth. This shall streamline, identify, account for the crossing of
Durand Line and shall result in decrease of unauthorised crossings that lead to a crises
that we are witnessing between Pakistan and US.
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However, in such a case it will be helpful if Afghanistan also enacts `matching

legislation, so that both the states have identical legal vehicle to use for regulating
Durand Line crossing.
The author is a leading expert of International law and Advocate Supreme Court of Pakistan

Published in The News on October 08, 2011

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