Contrary to popular perception, international law is at the core of China-India recent standoff. The claim of China rests on the primacy of customary international law as against the claim of India, which is based on succeeding rights from British India. The poverty of India’s legal case is that it was not privy to the agreements from which it derives succeeding claims.
The Chinese had a consistent view in which they categorized treaties tied up by colonial powers as exploitative and sans requisite voluntariness that forms the basis of any agreement, even by the standards of the modern West driven international law scholarship. It may be noted that Chinese tend to categorize the customary international law as ‘historical’ reasons in their pleadings. For example, in the South China Arbitration case, they used ‘historical’ reasoning as a proxy term for customary international law.
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This approach by China is very plausible. The present order of sources of international law stated in Article 38 of the Statute of the International Court of Justice (which is essentially an Annex to the United Nations Charter) is based on legal drafting undertaken by Western countries that had emerged victorious after the Second World War. The Statute shows ‘international treaties’ above ‘international customary law’ in sequence, which is academically not viable as ‘customary international law’ has had its primacy in international legal order.
What’s the legal status of McMahon line?
The present standoff and its earlier major and minor versions of 1962, 2003, 2009, 2013 and 2017 were all product of the question: the legal status of McMahon Line that runs south of China and affects its relations with its southern neighbours. The McMahon Line and its extended derivates have resulted in the concept of Line of Actual Control (LAC).
The concept of LAC is not a legal construct but has been acknowledged in written agreements between India and China. The two countries went as far as using it in a 1993 agreement, which was titled as ‘Agreement on the Maintenance of Peace and Tranquillity along the Line of Actual Control in the India China Border Areas’ (Agreement).
India factually faltered on all the legal obligations agreed. It tampered with the map of Ladakh and declared it a union under legal machinations introduced on 5th August 2019
The Agreement was signed between the two countries in Beijing. India’s side was represented by R. L. Bhatia, State Minister for External Affairs, Republic of India and the Chinese side was represented by Tang Jiaxuan, Vice Foreign Minister, People’s Republic of China.
Principles of mutual respect for sovereignty and territorial integrity
The Agreement prefaced that it was aimed at implementing five principles of mutual respect for sovereignty and territorial integrity, mutual non-aggression, non-interference in each other’s internal affairs, equality and mutual benefit and peaceful co-existence for peace and tranquillity. Clause 1 provided for two legal obligations for India and China.
First, it was agreed that ‘boundary question’ will be decided ‘bilaterally’. Second, it was provided that ‘neither side would use force or threaten to use force’. The prohibition of the use of force was provided in the Agreement, which was aimed to forbid any aggression by the parties. Also, Clause 5 of the Agreement unequivocally stated that no air intrusions were to take place there, and in case of an air exercise near the LAC, bilateral consultations had to take place.
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China adheres, India falters
India factually faltered on all the legal obligations agreed. It tampered with the map of Ladakh and declared it a union under legal machinations introduced on 5th August 2019. The redrawing of maps and subsequent actions were a clear cut violation of the first obligation undertaken under Clause 1 of the Agreement as unilateral action was taken. Likewise, India in cahoots with the US was building up for air exercise near LAC. India reneged on both ‘bilateralism’ and ‘non-aggression’.
Conversely, the Chinese spirit was different. Since 1949, it resolved seventeen of its twenty-three territorial disputes receiving less than 50% of the contested land as noted by Professor Taylor Fravel of Massachusetts Institute of Technology (MIT) in his published article on compromises made by the political leadership of China in its boundary disputes.
India, on its part, has used ‘bilateralism’ as a tool to hoodwink internationalism and to circumvent international legal order. For India, ‘bilateralism’ is not a freezing mechanism; it uses localizing border disputes to alter ‘ground realities’ by aggression. Indian aggression takes many forms. Sometimes, it challenges the regional settings; at others, it maps the boundaries and limits expansively to upend claims of other parties.
The United Nations Security Council once again failed to take action on Indian aggression. The whole matter of McMahon Line is not separate from Kashmir dispute, which is tripartite as China is as much a stakeholder in it as Pakistan
Pakistan and China’s responses to Indian aggression, in self-defence?
The redrawing of maps and aggressive overtures test the patience of peaceful nations like Pakistan and China. The responses of Pakistan and China to such aggressive adventurism are entirely legal. Both countries resorted to individual self-defence and reprisals against military objectives proportionately and necessarily as ordained by public international law and international humanitarian law.
China was fully justified in retorting to aggression shown by India after locking it into ‘bilateralism’. The Galwan Valley and Pangong Lake skirmishes were reflections of nationalist spirit of Modi’s Government. The plan and timing were both bungled as Chinese held that area conventionally and did not allow any aggression to take place.
The United Nations Security Council once again failed to take action on Indian aggression. The whole matter of McMahon Line is not separate from Kashmir dispute, which is tripartite as China is as much a stakeholder in it as Pakistan. Claims of Pakistan and China are pegged into international law and must be respected.
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India must be entreated to revise its deceitful bilateralism policy that is used to gain time to advocate and practice aggression by it. The clock is ticking, and global leadership must step forward to resolve it before Pakistan and China assert them in an irredentist manner.
Kamran Adil is BCL from Oxford University and writes on international law. He currently serves as the Additional Inspector General (Establishment) for the Islamabad Capital Territory Police. The views expressed in this article are the author’s own and do not necessarily reflect the editorial policy of Global Village Space.