By: ISHAN KUMAR and NAMAN KATYAL
Ishan Kumar is a third year undergraduate student pursuing a Bachelor’s degree in legislative laws. He attends Gujarat National Law University(GNLU) in Gandhinagar, India.
Naman Katyal is a third year undergraduate student pursuing a Bachelor’s degree in legislative laws. He attends Gujarat National Law University(GNLU) in Gandhinagar, India.
Introduction
Two of the world’s nuclear powers, India and China are locked in a border dispute in the Pangong Tso and Galwan Valley areas of Eastern Ladakh along the Line of Actual Control (“LAC”).[1] The LAC is a demarcation line along the Indo-China border based on the differing perception of the border by both sides and functions as the de-facto border between the two nations since both sides have consistently failed to establish a demarcated border due to China’s refusal to recognize the validity of the Simla Accord of 1914 and the Panchsheel Treaty of 1954 in the eyes of international law.[2]
The dispute turned violent for the first time in 45 years at the largely peaceful border on June 15, 2020, when the Indian side suffered a casualty count of 20 soldiers in a melee with Chinese troops.[3] Reports also indicate that the Chinese side lost 43 soldiers.[4] The Chinese have refused to reveal the exact count.[5]
This article analyzes the Indo-China border dispute by evaluating the validity of the aforementioned treaties in international law through an Indian perspective. The authors postulate that a third-party dispute settlement can be a suitable mechanism through which the dispute could be resolved.
Tracing the Roots
The Indo-China border dispute dates back to the nineteenth century with the first treaty signed between the independent forces of the two nations coming into effect only in 1842.[6] Since then, several attempts have been made to demarcate the boundary between the two nations.
The Simla Accord of 1914 established the McMahon Line as the boundary between the two nations.[7] The Panchsheel Treaty signed in 1954 was another historic agreement between the two sides.[8] However, both the agreements failed to resolve the border dispute and as a consequence the Indo-China war occurred in 1962. During this time, the People’s Liberation Army of China annexed parts of India’s Ladakh region.[9]
Sustained attempts to achieve peace and tranquility at the border resulted in several other agreements in 1993, 1996, 2003, 2005, 2012, and 2013.[10] Nonetheless, the tension at the LAC remains unresolved.
Legitimacy of the Simla Accord the Eyes of International Law
The Simla Accord of 1914 was a treaty negotiated amongst the representatives of British India, the Republic of China, and Tibet to define the boundary between Tibet and British India, as well as Tibet and China.[11] Although China participated in the negotiation of the treaty, it declined to sign the convention and the British and Tibetan plenipotentiaries signed it as a bilateral declaration and denied China any privileges.[12] The boundary between Tibet and British India came to be known as the McMahon Line.[13]
China’s refusal to recognize the Simla Accord as a legally binding treaty primarily stems from this very reason. The fact that no Chinese Central Government ever ratified the treaty also features as one of the objections by China in recognizing the Simla Accord as legally binding.[14] Furthermore, China has also lamented that the Accord was “a product of British policy of aggression against the Tibet Region of China”, [15] and therefore an unequal treaty.[16]
China’s contention that the Chinese plenipotentiary refused to sign the declaration, and, in any case, no Chinese Central Government ever ratified the treaty fails on two grounds. Firstly, the collapse of talks was on the issue of settlement of the border between Tibet and China, not Tibet and British India.[17] Subsequently, a bilateral agreement between Tibet and British India duly defined the boundary between both signatories.[18] China’s assent was not required to demarcate the boundary between Tibet and British India, as Tibet had control over its foreign affairs in 1914.[19] Secondly, the treaty, per Article 11 of the Accord, was to take effect from the date of signature and no explicit provision of the treaty stipulated ratification.[20]
Even if the Chinese contentions are accepted, even then the subsequent action of incorporating the updated map in official records and successive conduct of not raising the dispute for 45 years (until 1959) after the signing of the treaty belie the Chinese claim.[21] The doctrine of acquiescence requires the acquiescent party to raise any objection to the infringement of its rights and failure to do so can be held against it if the objection is raised after long-term acquiescence.[22] In the Pedra Branca islands dispute case, Singapore’s central argument that for 130 years–that Singapore’s exercise of sovereignty over the islands was not challenged by Malaysia–was accepted by the ICJ and the Sovereignty over the islands recognized to belong to Singapore.[23]
Further, China’s argument that Simla Accord was an unequal treaty given the aggressive policy adopted by the British against China also fails to advance the Chinese contention that Simla Accord cannot be recognized as legally binding. Even if a treaty includes provisions that appear unequal, a party cannot invoke the principle of inequality to invalidate the treaty if there is no coercion or use of force.[24] The Simla Accord came into force after exhaustive negotiations which spanned over a period of six-months and were based on an explicit authorization from the Chinese government.[25] This demonstrates that the Chinese government was under no duress from the British and acted without any inhibitions.
Panchsheel Treaty As a Political Document?
The Panchsheel Treaty is a set of Five Principles of Peaceful Coexistence enshrined in the preamble to the “Agreement on trade and intercourse between Tibet Region of China and India” which was signed in 1954.[26] The first principle of the treaty envisaged mutual respect for one another’s territorial integrity and sovereignty. The treaty was signed after meticulous negotiations with almost all aspects of the Indo-China relations being discussed but no border dispute was raised.[27]
All this put the then Prime Minister of India under the impression that there were no border disputes between the two countries.[28] Meanwhile, China continued to term the treaty as a political document for bargaining bilaterally and not a treaty that would be subjected to interpretations by international courts.[29] The Chinese government’s stand of subverting the treaty does not stand ground in International Law as oral declarations made by government functionaries have been held to be valid and binding. For instance, in the Eastern Greenland case, an oral statement given by Norway’s Foreign Minister was considered by the Permanent Court of International Justice to be binding on Norway. [30]
Moving Towards a Resolution
The Indo-China border dispute has now turned at least 65 years old with no significant breakthrough in defining the border.[31] Even the most rudimentary task of exchanging maps to understand the differing perception of the two nations with respect to the LAC has not been concluded.[32] The prospects of a resolution secured through bilateral arrangements look improbable. Other mechanisms to resolve the dispute need to be considered.
One such recourse could be to make use of a third-party dispute settlement mechanism. The third-party dispute settlement mechanism allows a party that is external to the dispute to help the disputants reach a settlement.[33] A combined reading of Article 33(1) and 33(2) of the UN Charter authorizes the UN Security Council to call upon the parties to a dispute to resolve their differences through means stated in Article 33(1) (which includes third-party means).[34]
In the past, third-party interventions in dispute settlement have yielded positive results. The Rio Protocol of 1942 was signed by the governments of Peru and Ecuador (the disputants) with Brazil, Argentina, Chile, and the United States, wherein the latter four nations would act as guarantors for the former two.[35] This agreement led to the successful demarcation of 95% of the disputed border by 1946.[36] Similar instances include the role of the Pope and Algeria in successfully adjudicating the Argentina-Chile Beagle Channel Dispute and the Iran hostage’s crisis, respectively.[37] [38]
Russia could be asked to mediate between India and China by virtue of it sharing cordial relations with both the countries.[39] India and Russia have enjoyed a longstanding “special and privileged strategic partnership.” [40] On similar lines, Russia and China have a plethora of common interests, which prominently includes ending the dynamics of the US-dominated unipolar world.[41] Also, Russia has prior experience of attempting to settle the Indo-China border differences, which could be crucial in restoring peace between India and China.[42]
Conclusion
The uncertainty surrounding the border dispute has adversely affected the bilateral relations between India and China. The Indo-China border faceoff has spiraled into a precarious trade war which could have repercussions on the economies of both nations. [43] The situation calls for a thorough revamping of diplomatic channels to overcome differences and ensure the anti-status quo.
Therefore, the two Asian giants must strive to amicably resolve their territorial dispute to avoid hampering their decades-long ties and international repute. The emerging world order after the advent of COVID-19 outbreak may help China and India to settle the boundary stand-off.
Undeniably, the benefits that accrue of settled land borders between the two Asian powerhouses are obvious and of utmost importance. If ever there is a historic opportunity for the two Asian giants to resolve the contested boundary, it is now.
[1] Bagchi I, “Jaishankar to Meet China FM in Virtual RIC Meet on June 22” The Times of India (June 15, 2020) <https://timesofindia.indiatimes.com/india/jaishankar-to-meet-china-fm-in-virtual-ric-meet-on-june-22/articleshow/76377098.cms> accessed June 15, 2020
[2] Krishnan A, “ Line of Actual Control | India-China: the Line of Actual Contest ”The Hindu (June 13, 2020) <https://www.thehindu.com/news/international/line-of-actual-control-india-china-the-line-of-actual-contest/article31822311.ece> accessed June 15, 2020; Prabhakar Singh, “Sino–Indian Attitudes to International Law: of Nations, States and Colonial Hangovers” 3(2) Chinese Journal of Comparative Law
[3] Krishnan A, “Forgotten in Fog of War, the Last Firing on the India-China Border ”The Hindu (June 14, 2020) <https://www.thehindu.com/news/national/forgotten-in-fog-of-war-the-last-firing-on-the-india-china-border/article31827344.ece> accessed June 16, 2020.; Safi M and Davidson H, “ Soldiers Fell to Their Deaths as India and China’s Troops Fought with Rocks” The Guardian (June 17, 2020) <https://www.theguardian.com/world/2020/jun/17/shock-and-anger-in-india-after-worst-attack-on-china-border-in-decades> accessed June 17, 2020
[4] “Galwan Valley: India and China Downplay Reports of Soldier Release” BBC News (June 19, 2020) <https://www.bbc.com/news/world-asia-53102629> accessed June 16, 2020
[5] “China Suffered 43 Casualties in Violent Face-off in Galwan Valley, Reveal Indian Intercepts” Hindustan Times (June 17, 2020) <https://www.hindustantimes.com/india-news/china-suffered-43-casualties-in-violent-face-off-in-galwan-valley-reveal-indian-intercepts/story-7JhOt8tC6cfC9bx3CUzrTI.html> accessed June 17, 2020
[6] “Ladakhi Letter of Agreement (1842)” (Tibet Justice Center) <https://www.tibetjustice.org/materials/treaties/treaties3.html> accessed June 18, 2020
[7] Gupta K, “The McMahon Line 1911–45: The British Legacy” (1971) 47 The China Quarterly 521
[8] ‘The Five Principles’ (Ministry of foreign Affairs of the People’s Republic of China, 14 June 2014) < https://www.fmprc.gov.cn/mfa_eng/topics_665678/seminaronfiveprinciples_665898/t140589.shtml > accessed 27 June 2020
[9] “India-China War of 1962: How It Started and What Happened Later” India Today (November 21, 2016) <https://www.indiatoday.in/education-today/gk-current-affairs/story/india-china-war-of-1962-839077-2016-11-21> accessed June 19, 2020
[10] Gill P, “India Says There Are Five Treaties to Push the Chinese Army behind the Line of Actual Control — While Experts Tell Modi to Remain Cautious” Business Insider (May 29, 2020) <https://www.businessinsider.in/defense/news/five-treaties-to-address-india-china-border-issue-experts-warn-modi-to-remain-cautious/articleshow/76085340.cms> accessed June 19, 2020
[11] “Convention Between Great Britain, China, and Tibet, Simla (1914)” (Tibet Justice Center) <http://www.tibetjustice.org/materials/treaties/treaties16.html> accessed June 20, 2020
[12] Mehra P, “A Forgotten Chapter in the History of the Northeast Frontier: 1914–36” (1972) 31 The Journal of Asian Studies 299
[13] Ibid.
[14] Surya P Sharma, ‘The India-China Border Dispute: An Indian Perspective’ (1965) 59 Am J Int’l L 16
[15] Ibid.
[16] “100 Years after Simla Accord, Its Historical Impact Is Still Debated” (Canada Tibet Committee April 28, 2014) <https://tibet.ca/en/library/wtn/12902> accessed June 22, 2020
[17] (n 11).
[18] Ibid.
[19] (n 14).
[20] (n 11).
[21] Green LC, “Legal Aspects of the Sino-Indian Border Dispute” (1960) 3 The China Quarterly 42
[22] I C MacGibbon, “The Scope of Acquiescence in International Law” (1954) 31 Brit YB Int’l L 143
[23] (2003) ICJ 146.
[24] Jiangfeng Li, “Equal or Unequal: Seeking a New Paradigm for the Misused Theory of Unequal Treaties in Contemporary International Law” (2016) 38 Hous J Int’l L 465
[25] (n 14).
[26] (n 8).
[27] Stahnke AA, “The Place of International Law in Chinese Strategy and Tactics: The Case of the Sino-Indian Boundary Dispute” (1970) 30 The Journal of Asian Studies 95, https://www.jstor.org/stable/2942725?seq=1.
[28] Ibid.
[29] Prabhakar Singh, “Sino–Indian Attitudes to International Law: of Nations, States and Colonial Hangovers” 3(2) Chinese Journal of Comparative Law
[30] 1933 P.C.I.J. (ser. A/B) No. 53.
[31] Singh VK, “Resolving the Boundary Dispute” (India Seminar2006) < http://www.india-seminar.com/2006/562/562-vk-singh.htm> accessed July 1, 2020
[32] Krishnan A, “It Took China Just Three Weeks since PM Modi’s Visit to Snub His Efforts to Clarify the LAC. The Neighbours Now Face Yet Another Stalemate in Resolving the Boundary Issue.” India Today (June 11, 2015) <https://www.indiatoday.in/magazine/the-big-story/story/20150622-china-india-lac-modi-visit-xi-jinping-border-dispute-819865-2015-06-11> accessed July 1, 2020
[33] Bilder RB, “International Third Party Dispute Settlement” (2020) 17 Denver Journal of International Law & Policy
[34] UN Charter, art 33(1).
[35] Simmons BA, “Territorial Disputes and Their Resolution The Case of Ecuador and Peru” [1999] United States Institute of Peace
[36] Ibid.
[37] “Chile, Argentina Sign Protocol on Beagle ”The Washingtom Post (October 19, 1984) <https://www.washingtonpost.com/archive/politics/1984/10/19/chile-argentina-sign-protocol-on-beagle/f8e5a9db-f01c-4a5a-9691-f91861c095eb/> accessed July 2, 2020
[38] Howe M, “Wary Algeria Edged Into Pivotal Role” The New York Times (January 26, 1981) <https://www.nytimes.com/1981/01/26/world/wary-algeria-edged-into-pivotal-role.html> accessed July 2, 2020
[39] “Russia as India-China Mediator: How Soviets, Mao’s China Split over India in 1950s-60s” The Week (June 23, 2020) <https://www.theweek.in/news/india/2020/06/23/russia-as-india-china-mediator-how-soviet-mao-china-split-over-india-in-1950s-60.html> accessed July 3, 2020
[40] Center M, “Joint Statement: Celebrating a Decade of the India- Russian Federation Strategic Partnership and Looking Ahead” (Ministry of External Affairs December 21, 2010) < https://mea.gov.in/bilateral-documents.htm?dtl/5118/Joint+Statement+Celebrating+a+Decade+of+the+India+Russian+Federation+Strategic+Partnership+and+Looking+Ahead> accessed July 2, 2020
[41] Wong K-H, “How Will the Coronavirus Outbreak Affect Russia-China Relations? ”The Diplomat (March 14, 2020) <https://thediplomat.com/2020/03/how-will-the-coronavirus-outbreak-affect-russia-china-relations/> accessed July 3, 2020
[42] (n 39).
[43] Misra U, “Explained: Why China Trade Ban Will Hurt India More” The Indian Express (June 22, 2020) < https://indianexpress.com/article/explained/india-china-trade-ban-explained-6465949/> accessed July 2, 2020
