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Soft-Footed Dragon and the Game of Islands & Villages: A Para-Legal Perspective ; By Dr R Srini

Image Courtesy: Wikimedia Commons

Article 01/2021

On November 27th, the New York Times reported that China had completed a new village closer to the Doklam Plateau, where India and China stood a nerve racking 73-day stand-off in 2017. The report (Myers, 2020) said:

The exact location of the new village, called Pangda, emerged in a series of satellite images published recently by Maxar Technologies, a company based in Colorado. They showed that construction began late last year and was completed, it seems, not long before Oct. 1, China’s National Day.  China’s version of the border lies south of the village.

The report also drew a comparison between innocuous creations of artificial islands in South China Sea that eventually turned into armed fortresses. On December 6th, NDTV India reported that Chinese have constructed three villages about five km from Bum La in Arunachal Pradesh with electricity, water, internet and well connected by metaled roads. Importantly, these villages are spaced just a kilometer from each other with over 100+ population each (Som, 2020).

The populating tactic adopted by China has two-fold strategy as its aim. First aim, population subject Chinese law stays in them for years which gives credible proof (and media value too) to show to the world that the area indeed is Chinese strategy. Second aim is obvious, to protect its own people every legitimate government is expected to deploy its forces on ground. China is precisely doing that!

The third unspoken aim is about the people who are encouraged to move to the villages. Give them enough training, keep them armed and lo behold, you have a ‘standing army’ that would fight to protect its own hearth and home!!

This demographic aggression, however innocent it may look has a legal connotation too. To indulge into the legal angle, we must turn to International Law.

State and International Law

International Law provisions concerning State and territory are derived from the Resolutions of United nations General Assembly (UNGA), the decisions of the International Court of Justice (ICJ), codifications by International Law Commission and of course, the decisions of individual members of UN to recognize or not to recognize those states or territories. Even though only twenty countries have so far ratified or signed it, the Montevideo Convention on the Rights and Duties of States 1933, still forms the bedrock of legal discourses when a question of territory is debated. For general understanding, the Montevideo Convention states the following four as the criteria (UiO, n.d):

Article 1: The state as a person of international law should possess the following qualifications:

  1. A permanent population;

  2. A defined territory;

  3. A stable and effective government; and

  4. Capacity to enter into relations with the other states.

Amongst these criteria, of specific interest to us are the second and third conditions. It is necessary to do a short discourse for appreciating their implications.

Defined Territory

The State of Israel was proclaimed on 15 May 1948. On formation Israel applied for membership of UN. Arab States led by Egypt, Syria, et.al, appealed to the UN not to grant membership on the grounds that Israel had no defined borders and that the Israeli claims to land are disputed by the Arab neighbors. Interestingly, even the UK whose sudden departure from Jerusalem resulted in the formation of Israel objected to the membership citing the same reasons (Cohen, 1961). Other countries that looked at the question of territory more liberally however, pointed out that an earlier resolution of UNGA in 1947 (UNGA, n.d) gave sufficient leeway for not holding ‘defined territory’ in a water-tight compartment. Postponements and discussions eventually resulted in accepting an important rider to the clause of defined territory: That the absence of delimitation or presence of disputes over territorial delimitation does not disqualify the claim to the status of a “State”.

A stable and effective government

When the Korean War of 1950 eventually ended in the partition of the peninsula into North and South along the 38th Parallel, both Democratic Peoples’ Republic of Korea (North Korea) and Republic of Korea (South Korea) both applied for membership of UN in 1949. The Chiang Sheik led China and US argued that Republic of Korea is the only government in Korean Peninsula whereas Soviet Union argued that North Korea too had a government of its own  (Choi, 1975). The deadlock prevailed for over four decades during which China became PRC and Taiwan. PRC supported North Korea now whereas US supported South Korean. In 1991, interestingly both North and South Korea were given membership of UN simultaneously.

When Kuomintang and Chiang fled to Taiwan and PRC under Mao was established, similar debates over recognition of PRC have raged in UN as well as in academic circles. Under UN Res 2758 (25 Oct 1971) eventually Taiwan was also granted membership, though China has never recognized it.

These cases also indicated that the world (UN) was divided in its opinion whether to interpret “stable and effective government” as democratically elected government or not. In the course a series of such debates, it is apparent that UN has settled into recognizing a government rather than qualifying whether “stable” means democratically elected. Cases of Congo, China, etc. prove this liberal interpretation (Cohen, 1961).

Artificial Islands and Villages – Para-legal View

The liberal interpretations given by the International Law Regime over territory and government, however debatable they may be, give an essential understanding of the Chinese strategy in creating and populating islands and villages in territories that are contested.

Mathew Sutherland, a policy researcher with US-China Economic and Security Review Commission, (Southerland, 2016), in a Staff Research Report brought out that China had started dredging and building artificial islands in Spratly Islands from 2013 onwards. His report categorically stated, “Environmental degradation is just one of many implications of China’s land reclamation in the South China Sea, which taken together illustrate Beijing’s troubling attitude of general disregard for regional and international norms, laws, and the mature conduct expected of a major power. Beijing has demonstrated an apparent willingness to flout international law; militarize an already tense and contested area; eschew an established dispute management mechanism in favor of unilateral actions to consolidate a more powerful position vis-à-vis other claimants; and damage the environment in a region where food security is already threatened by overfishing”. Policy analysts and strategic observers noted that China’s actions are in violation of international law, UNCLOS and even in open defiance of the Arbitral Award by UNCLOS in favour of Phillipines (PCA, 2016). Notwithstanding the Philippines’ objection (together with Vietnam, Malaysia and Japan) and the US actions to patrol the contested waters as part of its FONOPS, international observers also note that even US cannot dislodge China from these islands considering that it has poured millions of dollars of public money in building its infrastructure and continues to assert its sovereign right to do so. A new name has been given to this unique geopolitical situation – Perpetual Stalemate! (Stashwick, 2017). Citing Sir Angus Houston, former Chief of Australian Defence Forces, Stashwick said that it is too late to dislodge China from its bases in the South China Sea without a clash.

The inferences are very assuring in what we may surmise as a chilling manner: With ambiguous international interpretation of territory, if China makes an island or a village in a contested territory, the objecting nations have just two choices:

  1. Appeal to China to adhere to international law regime and expect it to act in a responsible manner, or

  2. Go to war and decide the claim at the tip of a bayonet!

Lessons

The Philippine Arbitration example amply demonstrates the Hobson’s choice that the international community is left with when it comes to China’s unabashed territorial expansions. If war is not in the interest of anyone (economically speaking), then there appears to be only one choice: prevent the soft footed dragon from building its nests in territories that we have a claim to. Abrupt and sweeping it may seem, this preventive method has attending requirements too.

China sweeps into territories at times when the Himalayan region comes in the grip of harsh winters. It also engages in small clashes across a vast area to maximize the ‘irritational’ value. Under equipped and spread out, an emotionally drained opponent will show signs of wearing out eventually for the Dragon to exploit. It also a fact that border guarding forces withdraw from most of the posts in the higher reaches due to harsh winter conditions. Ideal time for populating them or at least near about.

Nations like Afghanistan, India, Nepal, Bhutan, Myanmar, Laos, Vietnam and SCS littoral countries in Southeast Asia are to recognize this factor that ambiguities or ambivalence in the legal definition of their borders could potentially fall victim to the relentless pursuit of territorial ambitions by China. The contests and claim-counter claims are unlikely to find a redress through mechanisms of international law regime. In any case, even the institutions of internal law are not beyond falling prey to geopolitics. Three recommendations therefore deserve mention:

  1. Concretive action therefore is needed on the part of these countries to ensure that the land-sea borders in their control are suitably populated and governed to prevent the soft-footed dragon from availing advantages.

  2. Regional and Multilateral mechanisms and international for a like UNGA/UNSC must be constantly appealed to prevent the designs of such demographic aggressions.

  3. Trade and economic alliances with China must be tempered with a condition for abstaining from such aggressions.

(Dr R Srinivasan is an independent researcher and the Managing Editor of Electronic Journal of Social and Strategic Studies (www.ejsss.net.in) He can be contacted at srinivasan.r961@gmail.com. The views expressed are personal.)

 

References

Choi, C. (1975). The Korean Question in the United Nations. Verfassung Und Recht in Übersee / Law and Politics in Africa, Asia and Latin America, 8(3/4), 395-406. Retrieved from http://www.jstor.org/stable/43108477

Cohen, R. (1961). The Concept of Statehood in United Nations Practice. University of Pennsylvania Law Review,, 109(8), 1127-1171. doi:doi:10.2307/3310588

Myers, S. L. (2020, November 27). New York Times. Retrieved December 06, 2020, from Beijing Takes Its South China Sea Strategy to the Himalayas: https://www.nytimes.com/2020/11/27/world/asia/china-bhutan-india-border.html

PCA. (2016, July 12). Permanent Court of Arbitration. Retrieved December 01, 2020, from The South China Sea Arbitration (The Republic of Philippines v. The People’s Republic of China): https://pca-cpa.org/en/cases/7/

Som, V. (2020, December 06). NDTV. Retrieved December 06, 2020, from Exclusive: China Sets Up 3 Villages Near Arunachal, Relocates Villagers: https://www.ndtv.com/india-news/exclusive-china-sets-up-3-villages-near-arunachal-pradesh-relocates-villagers-2334869

Southerland, M. (2016, April 12). USCC. Retrieved from China’s Island Building in the South China Sea: Damage to the Marine Environment, Implications, and International Law: https://www.uscc.gov/sites/default/files/Research/China’s%20Island%20Building%20in%20the%20South%20China%20Sea_0.pdf

Stashwick, S. (2017, February 06). Perpetual Stalemate: China Can Neither Be Dislodged From the South China Sea Nor Control It. The Diplomat. Retrieved December 01, 2020, from https://thediplomat.com/2017/02/perpetual-stalemate-china-can-neither-be-dislodged-from-the-south-china-sea-nor-control-it/

UiO. (n.d). UiO: The Faculty of Law. Retrieved December 06, 2020, from Montevideo Convention on the Rights and Duties of States: https://www.jus.uio.no/english/services/library/treaties/01/1-02/rights-duties-states.xml

UNGA. (n.d). UNGA. Retrieved December 01, 2020, from Resolution 181 (II). Future government of Palestine 29 Nov 1947: https://unispal.un.org/DPA/DPR/unispal.nsf/0/7F0AF2BD897689B785256C330061D253

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