Sino-Indian Border Dispute: Part III

1962 Onwards

Indo-China relations remained frozen till the 1980’s, with India refusing to negotiate a settlement until China withdrew its troops from Aksai Chin. A gradual change took place during Rajiv Gandhi’s tenure and the land swap idea was tentatively discussed again by Deng Xiaoping in 1980[1], though it was never finalised. Incursions and troop movements continued on both sides for over 30 years after the War until the 1993 Agreement on the Maintenance of Peace and Tranquility. However, the 1993 and 1996 Bilateral Agreements settled the Line of Actual Control (LAC), giving it legal and official recognition[2].

It is important to clarify that the LAC is only a rough demarcation of Indian and Chinese occupied territory, but it does not constitute the official boundary. There has been no official exchange of maps delineating the exact points of the LAC, thus ambiguity remains in several regions. Today, although tensions remain high and border patrols from both sides frequently cross the undefined border antagonising both sides, not a single shot has been fired at the LAC in 25 years; making it one of the most peaceful border disputes in the world.

Validity of the Claims

The legitimacy of India’s claim to Arunachal Pradesh ultimately rests on the Shimla Convention of 1914. There is dissenting opinion as to the validity of this agreement for several reasons. First, Britain had been precluded from entering into bilateral agreements with Tibet because of China’s alleged suzerainty. Second, China claims that the treaty is itself nullified because Tibet was not a sovereign State and did not have the power to enter into relations with other States.

Chinas allegations can be contested on the grounds that Tibet had; upon the collapse of the Manchu Dynasty and consequent regime change in China, become an independent State and thus, had absolute control over the area in question. As an independent State, Tibet had the inherent right to enter into treaties with other States as it saw fit. Tibet did not have any of the encumbrances created by the Anglo-Chinese or Anglo-Russian Conventions that precluded parties from entering into agreements with the British.  The British were also free to treatise with an independent Tibet because the aforementioned conventions only envisioned an autonomous Tibet within Chinese control. Moreover, as Nehru pointed out in a letter to the Chinese Premier, China had never objected to Tibet’s right to enter into sovereign agreements: “In fact this was not the first occasion when Tibet concluded an agreement with other countries. In 1856 Tibet concluded an agreement on its own with Nepal. The Convention signed by Britain and Tibet in1904 was negotiated by the British and Tibetan representatives with the assistance of the Chinese Amban in Tibet.”[3] Hence, although the Chinese did not accept the McMahon Line and the British were wary of publicising it, the legitimacy of the agreement itself is unquestionable.

Secondly, as pointed out directly by Nehru and various other commentators, China never raised an objection to the Mc Mahon line at Shimla, post-Shimla, or even after India took control of Tawang in 1951. They only ever objected in the late 1950s, almost four decades after the Shimla Convention. China’s lack of formal objection to India’s claims to the McMahon line is critical because international law is unequivocal on the subject: “If a state acquires knowledge of an act which it considers internationally illegal, and in violation, and nevertheless does not protest; this attitude implies a renunciation of such rights, provided that a protest would have been necessary to preserve a claim.”[4] India lost an opportunity to move out of the shadows and openly stake its claim in 1954 because of a mulish desire not to rely on the so-called ‘colonial legacy.’ However, one must remember that China itself never made a claim to Arunachal until 1959, in the aftermath of the Tibetan Rebellion. It was only when they realised that they could use Arunachal as leverage to gain access to Aksai Chin that they began to make noises about having a claim to Arunachal.

Aksai Chin is of vital importance to China, more so than Arunachal. One of Chinese Premier, Xi Jinping’s pet-projects is the construction of a land route to the oil-rich Middle East that undercuts the importance of the Indian Ocean and increases Chinese influence along the volatile northern border of India. China has spent massive amounts of money in Pakistan to ensure the development of this route including building a port at Gwadar in the Baloch Province of Pakistan. The only hurdle to their unfettered access to oil in the Middle East is Aksai Chin, hence its importance. Perhaps even more important is its strategic position. It is located at a high altitude making it resistant to infiltration or military invasion from Central Asia or India and thus, forms the perfect outpost for China.

After the 1962 war, China withdrew its troops to the boundary stipulated by the McMahon line, implicitly recognising its legitimacy even though they retained troops in Aksai Chin. They have made multiple attempts to initiate land swaps, showing that their real interest is in Aksai Chin, not Arunachal. Despite incursions, they have never pushed the issue as much as they have for Aksai Chin. Although they continue to make noises about Tawang being part of Tibet because of the 400year old Tawang monastery’s close historical and spiritual connections with Lhasa, they have never tried to take it. Thus, one may tenatively conclude that India’s claim to all 84,000sqkm of Arunachal Pradesh is valid but the Chinese will never accept it until the Aksai Chin issue is settled.

Strategic Importance of Arunachal Pradesh

The present State of Arunachal Pradesh was earlier known as the North East Frontier Agency (NEFA). It became a fully fledged state on 20th February, 1987.

China:

Arunachal Pradesh is of vital strategic importance to China because of the following reasons[5][6]:

  • If China holds Arunachal Pradesh, it will border Bhutan on both its eastern and western flanks
  • In the event of war, India will be able to launch multi-layered air-strikes from Arunachal that will pose a grave threat to the Chinese and act as a deterrent
  • It provides quick and easy access to Siliguri, the 22km corridor that connects the NER to the rest of India. If China cuts off the Siliguri Corridor, it can take the whole of the NER in one quick move
  • Arunachal is the quickest route to China and is thus useful to India
  • Arunachal is the home of clandestine pro-Tibet movements that threaten China’s rights in Tibet and provide assistance to separatists. If it has Arunachal, it can crush all pro-Tibet sentiment and drive away the remaining Tibetans in the NER
  • Arunachal will provide China will all-weather communications access to Tibet
  • It can continue to hold Arunachal hostage in order to pursue its true ambitions in Aksai Chin

India:

The importance of Arunachal Pradesh for India far exceeds the strategic value it has for China[7]. This is because:

  • Bhutan is a buffer state between India and China. Chinese presence in Arunachal will mean that Bhutan will be swallowed up by China leaving a far greater portion of India’s border vulnerable to Chinese incursions.
  • It is the quickest route to China and Tibet and also allows India to make multi-layered air deployments that act as a major deterrent to China.
  • The border at Arunachal protects access to the Siliguri Corridor. If Siliguri is lost, India will lose the NER.
  • Tawang is a strategically important location and whoever controls it holds the key to the entire NER. India cannot afford to lose this key to China.
  • Pro-Tibet presence in Arunachal is important for India because it protects it from absolute Chinese domination
  • The NER provides easy access to Southern India and is also holds a great deal of India’s Natural Resource wealth.
  • The dispute over Arunachal gives India vital bargaining chips in its negotiations with China over Aksai Chin

Thus, India not only values Arunachal Pradesh as an integral part of its territory, but it also holds vital strategic importance and helps it counter China’s influence.

Indo-China Relations

India and China are not close to resolving the border dispute. The Chinese still insist on referring to Arunachal as ‘South Tibet’ and have taken to protesting every time an Indian leader visits the region, as they did when Prime Minister Modi visited the State in February 2015[8]. The Chinese media engages in intense anti-India propaganda every time the Dalai Lama or any of India’s political leaders visit the region and has, on numerous occasions suggested military action to take over the entire NER.

Both States have been strengthening their strategic infrastructure to counter the other. China even departed from its policy of not overtly antagonising India and conducted the first pan-China exercise (Stride–2009) in the Chengdu Military Region that falls within the jurisdiction of Tibet[9], veering closer to the disputed border area.

There have been minor changes in the diplomatic field since China issued stapled visa’s to 2 Indian sports officials residing in Arunachal. This was a departure from its long standing position of not recognising the Indian passport for residents of Arunachal Pradesh and experts have suggested that this could be a sign of conciliation and must be taken seriously[10]. However, this appears to be more of a smokescreen than a significant change by virtue of the fact that it was coupled with major military exercises and there have been no high level talks about the border issue since.

Conclusion

Chinese officials and academics have often made noises about being magnanimous on the issue of Aksai Chin if India gives up Tawang. At the same time, India must not be naïve in thinking that China will allow India to take Aksai Chin which is its lifeline to Xinjiang in Tibet. India will not benefit from the loss of some its most important strategic locations, so China’s hope of acquiring ‘South Tibet’ and amalgamating it with ‘Greater Tibet’ remains a distant dream. India must build up its diplomatic and strategic arsenal until it is in a position to bring China to the negotiating table for the issue to be resolved on a mutually agreeable basis. At the same time, it must remember that the border dispute is one aspect of a much greater Indo-China relationship. Prime Minister Modi is taking the right first steps in building India’s economic ties with China and strategic ties with its neighbours but there is still a great deal more that must be done to improve its defence and economic ties such that it will become expensive for China to act against India.

[1] Ibid 27

[2] Swaran Singh – Three Agreements and Five Principles between India and China; http://ignca.nic.in/ks_41062.htm (last accessed: 18th May, 2015)

[3] Ibid 26

[4] Oppenheim. International Law: A Treatise

[5] Centre for Asian and Strategic Studies-India – Importance of Tawang;

http://www.cassindia.com/inner_page.php?id=63&&task=diplomacy (last accessed: 18th May, 2015)

[6] Dr. Subhash Kapila – Strategic Importance of Arunachal Pradesh and Tawang;

https://indiancurrentaffairs.files.wordpress.com/2011/04/strategic-importance-of-arunachal-pradesh-and-tawang.pdf (last accessed: 18th May, 2015)

[7] Ibid. 35,36

[8] Reuters Shanghai – China protests at Modi’s visit to disputed Arunachal Pradesh

[9] Dr. Subhash Kapila – Strategic Importance of Arunachal Pradesh; C3S Paper No.368 dated September 20, 2009

[10] B. Raman – China: A seemingly interesting move on Arunachal Pradesh; C3S Paper No.716 dated January 16, 2011

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The Right to Self-determination: Pro-Secession?

Self-determination refers to the right of a ‘people’ possessing unique cultural and ethnic traits to freely determine their social, economic and political status to protect their unique ethno-religious and linguistic identity.[1] The United Nations has, in several declarations and resolutions promoted the right to Self-determination as a basic human right. In doing so, it has inadvertently bolstered several secessionist movements and encouraged them to claim a separate territory for their people in order to exercise their right to Self-determination.

Thus, the question arises: Is the Right to Secede a natural consequence of the right to Self-determination?

 The concept of Self-determination arose in the French Revolution, when the people demanded a government that represented the people and protected their interests. They believed that if the prevailing system did not represent the people’s will, the people had the right to overthrow the government in order to protect their rights. The American Declaration of Independence in 1776 showed the world that a population did not have to submit to the authority of an alien government and could secede to protect its freedoms.[2] The United Nations through its Charter and several international conventions such as the International Covenant on Civil and Political Rights, the International Covenant on Economic Social and Cultural Rights, the Friendly Relations Declaration, the Universal Declaration of Human Rights etc., has expressly or implicitly recognised the right to Self-determination and this has taken the form of an erga omnes norm.[3]

 However, even as per discussions preceding the inclusion of Article 1.2 in the UN Charter,[4] the Right to Self-determination was limited to just that and secession was never a part of the scheme Self-determination, even in the pre-decolonisation context, was taken to mean merely self government and independence was, by extension, and not an automatic right. The principle was upheld in cases where it did not bring about or authorise secession.[5] This scenario was modified to include independence for colonised countries and peoples as per the 1960 Declaration on the Granting of Independence to Colonial Countries and Peoples,[6] permitting them to declare independence if they were being subjected to alien subjugation, domination and exploitation. It was still believed that the principle could not apply to the population of a sovereign State, irrespective of the nature of human rights abuse that may be prevalent, so long as the State did not systematically practice discrimination on racial or religious grounds. This restriction was based on the natural instinct of sovereign States to protect their territorial integrity, and avoid the inadvertent authorisation of secession. Thus came the distinction between internal and external self-determination.

At this juncture, the principle of self determination had a bearing on the rights of peoples within a sovereign territory to elect and keep a government of their choice, or internal self-determination; and on the rights of peoples under colonial, racist or alien rule to freely choose their government in the realm of international relations, or external self-determination. Under the latter, people were given the freedom to either form a sovereign and independent State, to freely associate and integrate with an independent State or to emerge into any other form of political status freely determined by the people.[7]

In recent years, jurisprudence has developed with regard to the right to external self-determination and some scholars believe that secession, based on the right to external self-determination can be legally granted only in extremely limited circumstances and only if the following conditions are fulfilled: (1) it shall concern people in territories that are subject to decolonization; (2) it shall be envisaged by the national legislation of the parent state concerned; (3) the territory inhabited by a certain people should be occupied or annexed after 1945; (4) the secessionists shall be “a people”; (5) their parent state shall flagrantly violate their human rights and (6) no other effective remedies under national or international law may exist, if any of these conditions are met.[8] The International Court of Justice, in its deliberations during the Kosovo Advisory Opinion, has come to the same conclusion.[9]

Hence, Self-determination has not been accepted as a postulate for defying seemingly autocratic regimes as the principle of Territorial Integrity takes precedence over it. It has been established that the need for external Self-determination may arise only in highly specific conditions and even this limited interpretation has not been generally accepted by the international community. The principle of Self-determination is meant to promote peace and freedom for all within sovereign territories, and is not, except in extremely rare circumstances, a justification for secession.

Despite the above mentioned position, Self-determination will still be looked to as a libertarian principle, and will continue to support the call of oppressed peoples for freedom.

Previously published at: https://pilsociety.wordpress.com/2015/09/08/52/

[1] Alina Kaczorowska and P. Thornberry.

[2] Lea Brilmayer, Secession and Self Determinations: A Territorial Interpretation.

[3] Anna Stepanowa, International Law and the Legality of Secession in Crimea, CJIL, http://cjicl.org.uk/2014/04/20/international-law-legality-secession-crimea/.

[4] Article 1.2: Purposes and Principles – ‘to develop friendly relations among nations based on respect for the principle of equal rights and self determination of peoples.

[5] Antonio Cassese, International Law in a Divided World. pg. 133, para 80.

[6] http://legal.un.org/avl/ha/dicc/dicc.html.

[7] 1970 Declaration on Principles of International Law Concerning Friendly Relations and Co-Operation among States in Accordance with the Charter of the United Nations (GAR 2625) – Principle V, Para 6.

[8] Quebec case, 2 S.C.R. 217, para.123 (1998); Aaland Islands case, L.N.O.J. Spec. Supp. No.3 (1920); Pellet A., Ellet A., The Opinions of the Badinter Arbitration Committee: A Second Breath for the Self-Determination of Peoples, 3 EJIL 178 (http://cjicl.org.uk/2014/04/20/international-law-legality-secession-crimea/).

[9] http://www.icj-cij.org/docket/files/141/16010.pdf.