Wednesday, October 08, 2008

Tribal areas

I found the following explanation of the status of Pakistan's 'tribal areas' by Ashley Trellis at AFFCA Intelligence both clear and rather remarkable, in that what is describe is so very different from what is presented in the news media. Anyway, here it is:
The seven tribal agencies are constitutionally independent states co-equal with Pakistan, not component parts of Pakistan. Their status was negotiated by formal state-to-state treaties, very similar to those negotiated between the United States and various American Indian tribes.

The quintessential agreement that the colonial power, the United Kingdom, reached with the tribes it could not conquer was a grant of total internal government autonomy, but with defense and foreign affairs managed by the central government.

Pakistan as the power that inherited the rights and obligations of the United Kingdom chose, wisely, to honor the colonial agreements. It had less military power than the British to force a legal change, making necessity the mother of invention. The tribes are under no obligation to respect the Afghanistan border, according to the Pakistan constitution, and also are exempt from border controls and taxation, except as they prescribe for themselves.

Law enforcement and border enforcement are the responsibility of the tribal agencies. This means the Frontier Corps and Constabulary and the tribal lashkars, all of which are locally recruited in all seven agencies. The Pakistan Army has no legal basis for operating in the tribal agencies, except in support of the Frontier Corps. This is how Pakistan was created. The Army’s sole constitutionally authorized mission is to defend the agencies from outside aggression, not invade or occupy them or to enforce Pakistan’s laws and orders. Juridically, the seven agencies are sovereign.

Thus, most conventional theories about international law founder on the two other sources of international law: bilateral agreements or conventions and local laws that relate to international practices.

As for bilateral law and local practices, Afghan governments have accepted in practice the cross-border trade and movements of the Pashtuns in eastern Afghanistan and Pakistan’s tribal agencies. This is, in part, an acknowledgement of a lack of Afghan capability to enforce border controls. However, long before a modern state emerged, governments in Kabul tolerated Pashtun customs that ignored colonial artifices, namely the Durand Line, which Sir Mortimer Durand drew on a map in London in 1893. This remains contested, controversial and never accepted by either modern Pakistan or Afghanistan.

Modern international law, such as the theory of national control, is fundamentally irrelevant to the solution to the Afghanistan and the Pakistan border security problems. Moreover, cross border trade and smuggling have benefited both Afghanistan and Pakistan. Under Pakistan’s constitution, the Pakistan Army has no legal authority to operate in the tribal agencies, which are de jure independent states within the Pakistan federation.
Thus it would seem that current Pakistan army activities in Bajaur are illegal. Doubtless the local population is aware of this, even if we are not.


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