Image Courtesy: Washington Post
Article: 25/2023
The media report today that China is aggressively building villages on the Bhutanese border and the India-China LAC. These reports indicate that an estimated 630 villages have been built in Tibet Autonomous Region (TAR), 30 villages towards Tawang and 25 villages towards Tulung La where Chinese PLA ambushed Assam Rifles in 1975 and killed four Indian troops. In Chumar and West/North Bhutan borders too, many settlements have been noted (Singh, 2023).
Three days ago, another report indicated that the Indian PM, Shri Narendra Modi, flagged the unresolved issue of border to President Xi of PRC, on the sidelines of their meeting at Johannesburg for the BRICS Summit (Seli, 2023).
Both these reports need an understanding of two aspects beyond what they merely state. The first is the question of settlements or villages near or on the LAC or border and, the second is the meaning of the term LAC.
Settlements and Villages
The Montevideo Convention 1933 still forms the bedrock of all learned discourses on questions of territory and territorial claims. While United nations General Assembly (UNGA) Resolutions, decisions of the ICJ, contribute to such discourses, the decision of individual states to recognize or not to recognize such claims plays an important role. Under the Montevideo Convention, a defined territory is a necessary condition for territorial claims. A careful examination of the case of Israel for its membership of the UN reveals that the UNGA consider that the absence of delimitation or presence of disputes over territorial delimitation does not disqualify the claim to the status of a “State” (UNGA, n.d.). The ambiguity built into this considered view of UNGA resulted in grant of membership to Israel despite objections from Arab States.
The ambiguity in this UNGA resolution is extended and read in conjunction with Montevideo Convention by the ICC in cases where jurisdictions of countries are disputed. International practice appears to indicate that across the board, this ambiguity appears to be exploited in cases where the question of legality of sovereign right over disputed territories is raised. Even the UNSC appears to have cast its vote suiting the political pressures of the time when the issue came up. As John Quigley (Quigley, 2009) notes:
That strong vote indicates that Palestine was regarded as a state. Had there been opposition, it would have been expressed. One may contrast in this regard the U.N. reaction in 1983 to a declaration of statehood for a Turkish Republic of Northern Cyprus. The international community found this declaration invalid, on the grounds that Turkey had occupied Cypriot territory militarily and that the putative state was an infringement on Cypriot sovereignty. The U.N. Security Council pronounced the independence declaration illegal: "Concerned at the declaration by the Turkish Cypriot authorities issued on 15 November 1983 which purports to create an independent State in northern Cyprus, . . . [c]onsidering . . . that the attempt to create a 'Turkish Republic of Northern Cyprus' is invalid,” the Security Council said that it “[c]onsiders the declaration referred to above as legally invalid and calls for its withdrawal; . . ." (S.C. Resolution 541 (1984).
Delving on the issue of Israel’s contention that the occupation of Gaza Strip and West Bank did not invite the provisions of Geneva Convention IV, the ICJ ruled against the Israeli contention in the following terms (Mendes, n.d.):
In view of the foregoing, the Court considers that the Fourth Geneva Convention is applicable in the Palestinian territories which before the 1967 conflict lay to the east of the Green Line and which, during that conflict, were occupied by Israel, there being no need for any enquiry into the precise prior status of those territories.
The International Commission of the Red Cross (ICRC) has also authoritatively stated that humanitarian law, in particular, the 1949, 4th Geneva Convention, does apply to the situation of belligerent occupation, but also notes that since the belligerent occupation is temporary, it cannot make far-reaching changes in the existing order (Mendes, n.d.):
The annexation of conquered territory is prohibited by international law. This necessarily means that if one State achieves power over parts of another State’s territory by force or threat of force, the situation must be considered temporary by international law. The international law of belligerent occupation must therefore be understood as meaning that the occupying power exercises provisional and temporary control over foreign territory. It follows from this that measures taken by the occupying authorities should avoid farreaching changes in the existing order.
The ICRC itself further explains the position of occupying power by clearly stating the provisions of international law and the duties that are imposed on occupying powers in the following terms (ICRC, 2004):
The duties of the occupying power are spelled out primarily in the 1907 Hague Regulations (arts 42-56) and the Fourth Geneva Convention (GC IV, art. 27-34 and 47-78), as well as in certain provisions of Additional Protocol I and customary international humanitarian law.
Agreements concluded between the occupying power and the local authorities cannot deprive the population of occupied territory of the protection afforded by international humanitarian law (GC IV, art. 47) and protected persons themselves can in no circumstances renounce their rights (GC IV, art. 8).
The main rules of the law applicable in case of occupation state that:
The occupant does not acquire sovereignty over the territory.
Occupation is only a temporary situation, and the rights of the occupant are limited to the extent of that period.
The occupying power must respect the laws in force in the occupied territory, unless they constitute a threat to its security or an obstacle to the application of the international law of occupation.
The occupying power must take measures to restore and ensure, as far as possible, public order and safety.
To the fullest extent of the means available to it, the occupying power must ensure sufficient hygiene and public health standards, as well as the provision of food and medical care to the population under occupation.
The population in occupied territory cannot be forced to enlist in the occupier's armed forces.
Collective or individual forcible transfers of population from and within the occupied territory are prohibited.
Transfers of the civilian population of the occupying power into the occupied territory, regardless whether forcible or voluntary, are prohibited[1].
Collective punishment is prohibited.
The taking of hostages is prohibited.
Reprisals against protected persons or their property are prohibited.
The confiscation of private property by the occupant is prohibited.
The destruction or seizure of enemy property is prohibited, unless absolutely required by military necessity during the conduct of hostilities.
Cultural property must be respected.
People accused of criminal offences shall be provided with proceedings respecting internationally recognized judicial guarantees (for example, they must be informed of the reason for their arrest, charg ed with a specific offence and given a fair trial as quickly as possible).
India and China formally engaged in war in 1962. Even though China declared a unilateral ceasefire on 21 Nov 1961 and voluntarily agreed to withdraw its forces to pre-1962 positions, it has time and again engaged in incursions and occupation of lands well beyond the ceasefire line of 1962. It is necessary to understand where the unilaterally declared pre-1962 positions lay. In Chou Enlai’s own words (Wilson Centre, 1962):
On 21 November [1962] our government made the decision to cease fire and to withdraw the border units 20 kilometers into the hinterlands. We suggested the establishment of an unpopulated zone 20 kilometers deep [on each side--ed.].
The self-proclaimed 20 km withdrawal into hinterlands, meaning in TAR and across the McMohan Line (even though China claimed sovereign possession, now stands breached by hundreds of square kilometers into the Aksai Chin and far closer to the McMohan Line in the east. Even after 19 rounds of Joint Working Group Meetings, every time the talks have ended with mere courtesies without holding tangible outcomes. The official press release merely states: They agreed to resolve the remaining issues in an expeditious manner and maintain the momentum of dialogue and negotiations through military and diplomatic channels. In the interim, the two sides agreed to maintain the peace and tranquility on the ground in the border areas (MEA, 2023).
Including the bridge that China has built across the Pangang Tso Lake, there are many structure, settlements and villages that the Chinese have created would come within the purview of international law as expounded by ICRC and therefore deserve to be treated as such as occupied territory. As observe in the decision taken by UNSC and ICJ in the Cypriot case, India must deeply examine Chinese actions in the territories that come within the ceasefire line as agreed in November 1961. Accepting Chinese position on date as the baseline for negotiations will result in India progressively losing territories in the garb of mutual and friendly talks.
Reports that indicate China consistently building roads across Aksai Chin closer to Indian positions ( (Krishnan, 2022) are evidence that China is pushing the envelope perhaps with the intent to use the ambiguity in international law as and when the occasion demands. The cases cited above and the interpretations of ICRC, ICJ and UNSC show that India must pre-emptively act and protest Chinese infrastructure building as violative of Article 11 of the Montevideo Convention, stance of ICRC and the ICJ in Cypriot case.
It is instructive to note that nothing has changed in Chinese disposition towards settlement of the dispute through amiable methods, especially concerning withdrawal from occupied territory in Ladakh. Way back in 1962 itself, it was evident that the annexation of Aksai Chin despite the commitment to withdraw to pre-1962 positions was seen as the evidence for a larger design by Chinese for their dreams in South Asia. As noted by Fisher and Rose (Fisher & Rose, 1962):
The Chinese continue to indicate unwillingness to accept any withdrawal proposals as a precondition to border negotiations. Even if agreement were to be achieved on preconditions, however, the success of border negotiations would not be assured. The earlier Chinese proposal that their claims elsewhere on the frontier would be renounced in return for the possession of the Aksai Chin area is utterly barren from the Indian point of view. The claims that the Chinese would be renouncing (mainly affecting the north east frontier area) are claims that they have never been able to enforce, and could not enforce without a full-scale war – a war, moreover, for which they would be better prepared if they had undisputed control of Aksai Chin. If a settlement is to be reached, clearly something more substantial in the way of a quid pro quo would have to be forthcoming from both the sides (p. 34).
The observations by Fisher hold good even more today since the Chinese are in full control of Karakoram Pass and their Urumqi-Kashgar-Islamabad-Gwadar BRI dream is threatened only by Indian held (and rightfully owned) territories adjoining and flanking their proposed connectivity programs through CPEC.
Implications of LAC
It is important to recognize that borders, frontiers and borderlands do not mean the same thing in political geography and strategic affairs. Border is a clearly delineated line that two nations clearly recognize. Frontiers are lands that are beyond the clearly recognized border while borderlands situate on both side of the border becoming borderlands for either side depending on where it is seen from. Ladis Kristoff[2] is credited to have given conceptual and theoretical mooring to the discussion on all these three aspects in the scholarship on borders that is universally relied upon for learned discourses.
But the Indian Prime Minster, President Xi and the Joint Working Working Group apparently are focused on Line of Actual Control (LAC). It must be noted that LAC is neither the border nor the Line of Control (LoC) as in the case of the line separating India and PoK. It is also important to recognize that a LoC is de facto the ceasefire line when hostilities between two nations cease.
In 1948, when India declared a unilateral ceasefire in Jammu & Kashmir, quite akin to the Chinese in November 1962, India recognized a line beyond which territories disputed by both nations remained. For India, the PoK was disputed territory and for Pakistan, Jammu & Kashmir controlled by India. Both parties referred their cases to the UN and the rest is in common knowledge
The LAC on the other hand is a line that is actually held on a specific date by the forces of each country. Recognizing this, the Chinese have successfully nudged India for example, to withdraw from Kailash Range and by quickly occupying it thereafter, created an LAC that is under negotiation. The term salami slicing that is popular use, actually exemplifies that reliance on LAC is actually advantageous to China since PLA constantly pushes forward, unlike Indian Army and therefore creates LACs that change with the day.
When the term LAC is to be re-visited, therefore, it must be recognized as the LoC that technically China accepted and agreed to withdraw to, as per the terms of its own ceasefire declaration. That would mean, China withdrawing its forces 20 km behind McMohan Line in the North East and withdrawing to pre-1962 positions in Ladakh. This obviously entails vacation of Aksai Chin. Continued occupation of Aksai Chin thereby makes China the aggressor and all the villages, settlements, et al, created by it in full violation of the Law of Occupied Territories as expounded by ICRC and as validated by the stand taken by UNSC and ICJ in the Cypriot case.
The Way Forward
India for long has consistently played by the principles of Panchsheel and universal principles of good neighbourhood. However, China’s aggressive expansion in India’s neighbourhood, the CPEC project and its criticality to the BRI dream must usher in a greater sense of understanding in dealing with China and the border dispute.
India must, with its universal standing today, utilise the opportunity to spell the conditions for peaceful settlement for the border issue based on impeccable historical evidence it has on the borderlands under Chinese occupation. To start with India must unambiguously discard the term LAC. It must specify where the border is, and negotiate on terms that talk of LoC insisting upon withdrawal of Chinese forces to pre-1962 positions. Such a stance may invite open aggression on the part of China. However, in the prevailing economic scenario in China, the gross risk to CPEC itself owing to the affairs in Pakistan, the implications of Russian-Ukraine conflict and the currency of coalitions in the SCS against it may discourage it and rather compel it to take credible action on the border issue.
[1] The provisions highlighted are especially applicable to the occupied territories in Chinese control since adequate evidence is publicly available to show that these are being flouted. [2] Kristof, L.K.D. (1959), The Nnature of Frontiers and Boundaries. Annals of the Association of American Geographers, 49: 269-282. https://doi.org/10.1111/j.1467-8306.1959.tb01613.x
References
Fisher, M., & Rose, L. (1962). Ladakh and the Sino-Indian Border Crisis. Asian Survey, 2(8), 27-37. doi:https://doi.org/10.2307/3023601
ICRC. (2004, Aug 04). Occupation and international humanitarian law: questions and answers. Retrieved Aug 28, 2023, from ICRC: https://www.icrc.org/en/doc/resources/documents/misc/634kfc.htm
Krishnan, A. (2022, July 20). China plans another highway in Aksai Chin. The Hindu. Retrieved Aug 14, 2022, from https://www.thehindu.com/news/international/china-plans-another-aksai-chin-highway/article65663018.ece
MEA. (2023). oint Press Release of the 19th Round of India-China Corps Commander Level Meeting. New Delhi: GOI. Retrieved Aug 28, 2023, from https://www.mea.gov.in/press-releases.htm?dtl/37010/19th_Round_of_India_China_Corps_Commander_Level_Meeting
Mendes, E. (n.d.). Statehood and Palestine for the Purpose of Article 12(3) of the ICC Statute: A Contrary Perspective. Retrieved Feb 21, 2023, from The International Criminal Court: https://www.icc-cpi.int/sites/default/files/NR/rdonlyres/D3C77FA6-9DEE-45B1-ACC0-B41706BB41E5/281876/OTPErrolMendesNewSTATEHOODANDPALESTINEFORTHEPURPOS.pdf
Quigley, J. (2009, Spring). The Palestine Declaration to the International Criminal Court: The Statehood Issue. The Internet Journal of Rutgers School of Law, 35, 4. Retrieved Dec 02, 2022, from https://lawrecord.com/archive/volume-35/
Seli, Y. (2023, Aug 25). Respect LAC, Modi tells Xi. The New Indian Express, p. 11. Retrieved Aug 25, 2023
Singh, M. (2023, Aug 28). Chinese Villages Coming up Along Sensitive Areas. The New Indian Express, p. 1. Retrieved Aug 28, 2023
UNGA. (n.d.). Resolution 181 (II). Future government of Palestine 29 Nov 1947. Retrieved Dec 01, 2020, from UN: https://unispal.un.org/DPA/DPR/unispal.nsf/0/7F0AF2BD897689B785256C330061D253
Wilson Centre. (1962, Dec 26). Record of Conversation Between Chinese Premier Zhou Enlai and Mongolian Leader J. Zedenbal. Retrieved Dec 22, 2022, from Wilson Centre Digital Archive: https://digitalarchive.wilsoncenter.org/document/record-conversation-between-chinese-premier-zhou-enlai-and-mongolian-leader-j-zedenbal
