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Lawyers, other representatives, expert(s), tribunal’s secretary

Award of Arbitrator Goldsmid

PREAMBLE

[I].

The Arbitral opinion which I am required to deliver has been formed after perusal of the several histories of Sistán of more general note; after examination of much oral and written evidence; and after a stay of forty-one days within the localities under dispute. Naturally the more immediate argument with which I have to deal is contained in the statement authoritatively given in by the Persian Government (through the Foreign Office, or Mirza Melkam Khán), and Afghán Commissioners. These have been carefully considered together with the documentary evidence with which they are supported.

[II].

I now proceed to summarise my views on the whole Sistán question, and to carry out the instructions with which I have been honoured.

SUMMARY

I.

Sistán was undoubtedly in ancient times part of Persia, and it appears to have been so especially under the Safavian Kings: but under Ahmad Shah it formed part of the Duráni Empire. Further it had not been recovered to Persia until at a very recent date; and that only partially, and under circumstances the nature of which materially affect the present enquiry.

II.

Ancient associations, together with the religion, language, and perhaps habits of the people of Sistán Proper, render the annexation of that tract to Persia by no means a strange or unnatural measure. But Persia has no valid claim to possess it on abstract right, whether the country be taken from Afghanistan, or whether it be simply deprived of independence. The period referred to for former connection is too remote. A century of disconnection cannot fail to be a bar to validity.

III.

The possession of the Afghans for the second half-century may have been more nominal than real, and more spasmodic than sustained. It may have been asserted by raids and invasions, or mere temporary tenure: but it has nevertheless a certain number of facts in support; and these are most material in an enquiry of this nature. General principles and theories are always important, but they cannot produce facts: whereas facts have a more practical tendency - for they support and establish general principles and theories. Neither ancient associations nor national sympathy are strong enough to nullify the force of circumstances, and circumstances show that Persia has exercised no interference in the internal administration of Sistán from the days of Nadir Shah until a very recent date.

IV.

Geographically, Sistán is clearly part of Afghánistán, and the intrusion of Kain into that province is prejudicial to the delineation of a good natural frontier.

It has been commonly considered part of Herát and Lásh Juwain; though its dependence on the Helmand for irrigation may cause it to be included by some in the general valley of that river. The Neh Bandan Hills manifestly separate Sistán from Persia. I cannot but believe such would have been found to be the status had an illustrative map accompanied the sixth article of the Paris treaty.

V.

But while, in my opinion, Afghánistán has the advantage in claims on the score of an intermediate tenure, superseding that of Nadir Shah or the Safavian Kings, it cannot be denied that from year to year she has been relaxing her hold over Sistán; and this has been evinced in a marked manner since the death of the Wazir Yar Muhammad. It would be absurd to contend that the second half-century of Afghán connection with the province has been a period of continuous possession. That Sistán has now fallen into the hands of the Amir of Kain can only be attributed to the helplessness of its independence and the personal action of its ruler. It was for a time at least out of the hands of Afghánistán. I do not admit that the manner in which Sistán was occupied by Persian troops corresponds with an appeal to arms such as contemplated by Lord Russell’s letter quoted - There was no fair fighting at all. Nor can it be admitted that allegiance was obtained by the single means of military movements or open procedure of any kind. On the other hand, I cannot see that the Afgháns took any measures to counteract the proceedings of Persia when treating with Ali Khán, Taj Muhammad, or other Sistán chiefs.

VI.

As the Sistán of the present day is not the separate principality of the past, and it is essential to a due appreciation of claims, that the parts in possession of either side should be intelligibly defined, I revert to a territorial division which has appeared to me convenient and approximate. By this arrangement the rich tract of country, which, the Hámún on three of its sides and the Helmand on the fourth, cause to resemble an island, is designated, 'Sistán Proper,’ whereas the district of Chakhansúr and lands of the Helmand above the Bank, and Sistán desert, are known as 'Outer Sistán.’

The first may be considered in absolute possession of Persia, and has a comparatively large and mixed population.

The second is either without population or inhabited chiefly by Balúchis, some of whom acknowledge Persian, some Afghán sovereignty. The professions of Kamal Khán and Imam Khán do not to my mind prove a possession to Persia, similar to that of Sistán Proper. Chakhansúr on the right bank of the Helmand is under the Afgháns. But the fort of Nad Ali on the same bank has been lately taken by the Persians.

VII.

I have to consider ancient right and present possession, and report briefly my opinion on both these heads: 1st. That Sistán was incorporated in the Persia of ancient days: but the Afghánistán of Ahmad Shah, which also comprised Sistán, had not then come into existence; and it is impossible to set aside the fact that this kingdom did exist, any more than that Ahmad Shah was an independent monarch. 2nd. That the possession of Sistán obtained in recent days by Persia cannot affect the question of right as regards Afghánistán. If admitted at all under the circumstances, it can only be so subject to certain restrictions, and with reference to the particular people brought under control.

ARBITRAL OPINION

[I].

Weighing therefore the merits of the case on either side as gathered from evidence of many kinds, and with especial regard to the great advantages of a clearly defined frontier, I submit an opinion that the tract which I have called 'Sistán Proper’ should be hereafter included by a special boundary line within the limits of Persia, to be restored to independence under Persian protection, or governed by duly appointed governors. This opinion is accompanied by an expression of the sincere and earnest hope that the Persian rule will prove beneficial to a people whose nominal state has been from time immemorial one of terror, suspense, and suffering.

[II].

But I am thoroughly convinced that, by all rules of justice and equity, if Persia be allowed to hold possession of a country which has fallen to her control under such circumstances as these detailed, her possession should be circumscribed to the limits of her actual possession in Sistán Proper, as far as consistent with geographical and political requirements. She should not possess land on the right bank of the Helmand.

[III].

If in a question of ancient right and present possession, a military occupation of six or seven years and the previous action of a local chief be suffered to outweigh rights and associations extending more or less over a whole country, and Arbitration award the most coveted, populous, and richer part of the Sistán province, it is manifestly fair that some compensating benefit should accrue to the losing side.

[IV].

It appears therefore beyond doubt indispensable that Nád Ali should be evacuated by Persian garrisons, and both banks of the Helmand above the Kohak Band be given up to Afghanistan. And this arrangement becomes doubly just and proper when the character of the inhabitants along the banks of the river is compared with that of the Sistánis of Sekuha, Deshtak, and Sistán Proper.

[V].

The main bed of the Helmand therefore below Kohak should be the eastern boundary of Persian Sistán, and the line of frontier from Kohak to the hills south of the Sistán desert should be so drawn as to include within the Afghán limits all cultivation on the banks of the river from the Band upwards.

[VI].

The Malik Siáh Koh on the chain of hills separating the Sistán from the Karmán desert, appears a fitting point.

[VII].

North of Sistán the southern limit of the Naizár should be the frontier towards Lásh Juwain. Persia should not cross the Hámún in that direction. A line drawn from the Naizár to the 'Kuh Siáh' (black hill) near Bandan, would clearly define her possessions.

[VIII].

It is moreover to be well understood that no works are to be carried out on either side calculated to interfere with the requisite supply of water for irrigation on the banks of the Helmand.

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