SINO-INDIA TIES AND STAND OFFS: A HISTORICAL LEGAL ANALYSIS

Source : The Economic Times

This article has been authored by Maria Binny Palamattom, a second year student of Law at School of Law, CHRIST(Deemed to be University), Bengaluru.

Introduction

‘Border tensions’ is not a new topic of discussion between India and China, the countries which share nearly 2500 miles of border. Some kind of friction in the borders of the countries are almost a century old. Several peace and tranquility agreements were signed between the nations in order to prevent the extreme possibility of profound casualties at the border from both the sides.

However, as most of these agreements have proved to be futile, we are forced to look back and introspect, the history of relationship maintained between these neighbor countries which shall primarily lead us to Chinese rejection of the McMahon Line in 1914 and the existent treaties and agreements between the nations. There arises the need to analyze the International legislations, obligations and their enforcement by the member nations.

Sino-India Border War 1962 and aftermath

The kinship between the Asian giants were visibly persistent especially during the independence era of China, where India was one among the member nations to advocate for the membership of People’s Republic of China(PRC) at the United Nations in 1949 and hence, implies the efforts to enhance the diplomatic ties between the nations since then. However, the Chinese occupation of Tibet in 1959 followed by India granting asylum to Dalai Lama raised various questions and concerns in the existing relationship between the nations. This was followed by the Sino-India Border War, 1962 in which the Chinese disputed Himalayan border acted as the root cause.

International Law on customary frontiers

The practice of accepting long- established natural or customary or validity of traditional historic frontiers was devalued by the intrusion and entry of Chinese troops in to the borders of India. In its Advisory Opinion regarding Polish-Czechoslovak frontier, the permanent Court of International Justice also upheld the validity of these category of frontiers. Therefore the question on whether demarcation of territories is required was met in the Grisbadarna Case, where little intervention in territories was sought by the ICJ.

The territories invaded by the Chinese troops at the Himalayan Frontiers were evidently belonging to India, whose rule was further enunciated during the British Era, later got further reaffirmed in the Treaty of 1852 where the boundary between Ladakh & Tibet shall remain to be in the same position. However, later one of the contentions raised by China included that China was not a party to the treaty which was invalidated by the provisions of the treaty which proved otherwise. The war further viewed and sought to realize the differences among the nations in the observance of International treaties, where India has considered International Law to be a part of the Common Law while China was in partial recognition of the same.

Post War of 1962

Followed by the War of 1962, both the nations undertook ambassadorial exchanges and bilateral visits by Foreign Ministers with the intent to resolve the border disputes and for the maintenance of tranquility during the period of 1979-81. The activation of ambassadorial relationships in adherence to the Vienna Convention on Diplomatic Relations, 1961[i], which adopted the optional protocol dealing with The Acquisition of nationality, The Compulsory Settlement of Disputes, The Final Act and the four resolutions attached to it, where both India and China were signatories settled down the disputes temporarily.

The establishment of LoC and post 1993 developments

The agreement of September, 1993 at the disputed Himalayan Region resulted in the establishment of the Line of Control (LoC), which resulted in the recalling of the army, from the borders by both the nations duly. After the establishment of LoC, the bilateral relations continued to be tranquil and improved. This agreement and establishment of LoC that followed is identified to be a historic step towards an improved relation by both the nations.

The informal summit at Mamallapuram

An informal summit was held between the Prime Minister of India and the Chinese President Xi-JinPing in the month October, 2019. The UNESCO World Heritage Site of Mammallapuram was chosen for the summit and the same gained international attention. This waived a ray of hope to the relation between both the countries with reference to the strained ties in Kashmir. Hence, the expected and the most welcoming outcome was a peaceful and regardful settlement according to the UN Charter.

The Galwan Valley Attack

The attacks followed by retaliations with increased casualties at the border from both the sides which were flagged off at the Galwan Valley raises serious concerns on the fulfillment of then existent peace treaties and assured tranquility. This incident intensified the concerns over the increasing tensions in the Sino-China Border.

The Galwan Crisis at the Himalayan Border can be categorized as one of the worst ever stand offs or tensions India and China ever had between each other in the past half a century. The rivalry between the countries have become precisely evident such through the transgressions undertaken by the Chinese troop into the Line of Actual Control (LAC) of India intensifying the border crisis. Hence, the delay in disengagement procedure continues to occur along the border. Followed by the attack, India had also attempted economic retaliation by banning 59 Chinese apps in India.

The defense mechanisms established

The defense mechanism/control as established by both nations admittedly is compatible and competent with each other by various means. Indian strategic Planners, as of 2018, faced difficulty in recognizing the intention and the authority of Command of the People’s Liberation Army (PLA) of China with reference to the Western Theater Command Apparatus whose pro activeness seemed profound at the Chinese Border. The Dokhlam Crisis and the affirmed aggressiveness of the diplomatic statements made by China provide a hint of its movement towards a hostile stand towards India. On the other hand, India is advantageous with the strong force positioned in New Delhi permanently to the border area has an upper hand to that of China with respect to the defense personnel positioning.

Another major issue of concern is the nuclear defense mechanism that is prevalent in both the sides. The PLA Rocket Base positioned near the border again raises major risks to the country. Hence, the possibility of a missile strike amidst an open conflict with India is again an unavoidable possibility. However, the development of Indian General Force along the Border is in response to the increased pressure and tensions across the LAC. However, this is irrespective of the existent Treaty on the Prohibition of Nuclear Weapons (TPNW),2017 , where the member nations are assigned with undertakings not to develop, test, acquire, produce, possess, stockpile, use or threaten to use nuclear weapons.

Who adhered, who faltered?

The reasons for the provocations that led to the attack at the Galwan Valley, which led to the martyr of 20 Indian soldiers and casualties to Chinese Soldiers as well are identified in various perspectives. The attack from China followed by their claim over the Galwan Valley points fingers towards the country for provocations at the border. The Agreement of 1993 or The Agreement on the Maintenance of Peace and Tranquility along the Line of Actual Control in India China Border Areas was inclusive of policies including Bilateralism and Non-Aggression which were not obeyed by both the sides, resulting in the attack and its counter.

Article 38 of the Statute of ICJ (based on the undertaking of the victorious western countries after WW2) which values International Treaties above International Customary Laws contrary to the existent autonomy of customary laws, thereby raised a few questions against India due to the historic changes incorporated from 5th August 2019(Abrogation of Article 370) leading to the redrawing of maps and subsequently violation of Clause 1 of the Agreement is considered by many internationalists a violation and a provocation as well which led to the erection of a structure by the PLA on Indian Side of the LAC which is again unjustifiable by crossing the de-facto border of India.

The efforts for diplomacy and ambassadorial relations

The series of India-China stand-offs also technically witnessed the deliberations undertaken on re-affirming their disengagement along the LAC after the number of rounds of talks among the military commanders, as on July, 2020. However, a prompt resolution has proved to be hard and hence requires profound interventions and deliberations to be undertaken by diplomatic channels into it though amid the pandemic situation.

The phases of disengagement have to be undertaken one by one such that the withdrawal of troops is made possibly gradually. However, the redeployment in the most recent crisis to the regular camps are not decided or agreed upon by both the countries.Reports also state that the movement of troops has begun to the LOC (Pakistan) and the LAC (China). India has also initiated its efforts to reinstate diplomatic ties in association with countries like Taiwan, Australia with China.

Conclusion

The bilateral relations that had received a major setback in 1962 have now raised a possibility of recurrence with border tensions since the Galwan Valley conflicts in May 2020. Out of the several options of resolution existent between both the nations, the most plausible option of choice is to enhance diplomatic ties. Hence, in order to prevent the occurrence of Economic wars and cold wars, both the nations have to duly initiate steps towards improved diplomacy. Therefore, the most plausible and tranquil way to resolve the existing trans-border issues is the application of the Vienna Convention on Diplomatic Relations, 1961 without further delay.

[i] (1973). Vienna convention on diplomatic relations and optional protocol on disputes, done at Vienna, April 18, 1961. [Washington] :[For sale by the Supt. of Docs., U.S. Govt. Print. Off.]