By Dr Abhishek Atrey
International relations and international law are complementary and corresponding to each other. Hence, a minor change in laws with respect to another country has major repercussions. Recently in an endeavor to strengthen its border control and protection, China adopted a controversial Land Border Law of the People’s Republic of China 2021 in 31st meeting dated 23rd October 2021 of the Standing Committee of 13th National People’s Congress (NPC), which is the top legislative body of China. This law has come into effect since January 1, 2022.
China shares its 22,000 km long border with more than 14 countries including India, Pakistan, Afghanistan, Russia and North Korea and it has a conflict with nearly all of them. China has a prominent position in the present global order and the neighbouring nations are bearing the brunt of its growth. Besides, the Chinese foreign policy has always been expansionist in nature and recently it came up with three contentious laws which further indicates its future aggressive approach to its future expansion. These laws are: the Land Boundary Law, Maritime Law and China Coast Guard Law. If we look in the Indian perspective, since May 2020, China has been involved in a protracted face-off with India along their disputed border. While the new law has stimulated the speculation as to whether it would be used to justify a more assertive Chinese posture, it clearly goes beyond that specific dispute and speaks to a host of problems that are camouflaged as Beijing strives to secure its land border in the midst of growing uncertainty in its neighbourhood.
Tracking the Roots
The Indo-China border dispute is not a new phenomenon rather it dates back to the 19th century. In fact, the first treaty was signed between the two nations which came into effect in 1842. Since then, several attempts have been made to demarcate the boundary between the two nations. Due to this on July 3, 1914, at Simla, Tibet and India signed the Simla Convention that gave birth to the McMahon Line which separated Tibet from India in the eastern sector. Then later in 1954, another historic agreement Panchsheel Treaty was signed between the two countries.
Despite these agreements the efforts to resolve the dispute failed and as a consequence the Indo-China war occurred in 1962. It was during this time that the People’s Liberation Army of China annexed parts of India’s Ladakh region. Still in order to establish peace and tranquility across the border, several other agreements in 1993, 1996, 2003, 2005, 2012 and 2013 have been signed. But the tension at the Line of Actual Control (LAC) remains unresolved.
The Simla Accord and the International Law
The Simla Accord of 1914 was a result of negotiation amongst the representatives of British India, the Republic of China, and Tibet to define the boundary between Tibet and British India and also between Tibet and China which is known as McMohan Line. But China despite participating in the negotiation declined to sign the convention and the British and Tibetan charge d’affaires signed it as a bilateral declaration. As a result, China was denied any privileges. Thus China’s refusal to acknowledge the Simla Accord as a legally binding treaty originates from here. Also, no Chinese Central Government ever ratified the treaty. In addition to this, China has also lamented that the Accord was a product of British policy of aggression against the Tibet Region of China and therefore an unequal treaty. But all the claims from Beijing of not ratifying and refusal to sign the declaration by the Chinese ambassadors fail on two ground: Firstly, the crumbling of talks happened on the issue of settlement of the border between Tibet and China and not Tibet and British India. Following that, a bilateral agreement between Tibet and British India came into being which duly defined the boundary between both signatories. Then the Chinese approval was not required to demarcate the boundary between Tibet and British India as Tibet had control over its foreign affairs in 1914. Secondly, as per the Article 11 of the Accord, the treaty was to take effect from the very date it was signed and no explicit provision of the treaty required ratification.
The most questionable part about the Chinese contentions even if we accept them is the subsequent action of integrating the updated map in official records and successive conduct of not raising the dispute for 45 long years i.e. until 1959 after the signing of the treaty debunks the Chinese claim. We may understand this with the help of the doctrine of acquiescence, it requires the acquiescent party to raise any objection to the infringement of its rights and failure to do so; it can be held against it the objection is raised after long-term acquiescence. For instance, in the PedraBranca islands dispute case, Singapore’s central argument was that for 130 years the Singapore’s exercise of sovereignty over the islands was not challenged by Malaysia. It was accepted by the ICJ and the sovereignty over the islands was conceded to belong to Singapore. Another contention advanced by China is that the treaty was unequal and a result of aggressive policy adopted by the British against China also seems to fail because a party cannot invoke the principle of inequality to invalidate the treaty if there is no coercion or use of force. The Simla Accord became operational after comprehensive negotiations which spanned over a period of six months and it was based on an explicit authorization from the Chinese government which proves that the Chinese government was not intimidated by the British and acted without any inhibitions.
The Panchsheel Agreement
The Panchsheel Treaty is a much revered document so far. It was signed in 1954 as a set of Five Principles of Peaceful Coexistence enshrined in the preamble to the ‘Agreement on trade and intercourse between Tibet Region of China and India’. The first principle of the treaty talks about the mutual respect for one another’s territorial integrity and sovereignty. The treaty was signed after conscientious negotiations where all aspects of Indo-China relations were talked about but the border dispute was not raised thus putting the then Prime Minister under the impression that no border dispute existed between the two countries. Concurrently, China termed the agreement more as a political document for bargaining bilaterally but at the same time not as an agreement that would be subjected to interpretations by international courts. But the Chinese government’s idea of toppling the agreement does not hold ground in International Law as the oral declarations made by government functionaries have been held to be valid and binding. For example, in the Eastern Greenland case, an oral statement given by Norway’s Foreign Minister was considered by the Permanent Court of International Justice to be binding on Norway.
The New Law on Land Borders
The land border law that came into effect on January 1, 2022 has 62 Articles and Seven Chapters. The law aims at the protection and utilization of China’s land border territories. It was passed by the Standing Committee of the National People’s Congress. It declares that the People’s Republic of China’s sovereignty and territorial integrity are sanctified. The law requires the state to take steps to strengthen border defence and support economic and social development in border areas and also improve public services and infrastructure, encourage and support people’s lives and work, promote coordination between border defence and social and economic development. Thus, Beijing appears to be emphasizing its determination to resolve border conflicts on its own terms by enacting this new law. The law declares that China will uncompromisingly protect territorial sovereignty and land border security while continuing to seek a peaceful resolution to issues through discussions.
The law specifies that the People’s Liberation Army (PLA) and the paramilitary People’s Armed Police (PAP), both under the command of the Central Military Commission, will bear the major responsibility for safeguarding the land border, resisting armed invasion, and responding to major contingencies, thereby streamlining the division of labour among various bureaucracies including the foreign ministry, the public security ministry, and the customs and immigration administrations. Also, it allows police officers to use police tools and firearms against intruders who use violence to resist imprisonment and endanger other people’s lives and property. It also allows agencies to work with neighbouring countries to confront terrorism, separatism, and religious extremism. As per the newly inserted condition, the local governments in border areas must now contribute resources to strengthen the formation of mass defence units to support border defence tasks. According to the Chinese security analysts, the concept of ‘mass defence’ for borders refers to enlisting local inhabitants to help with missions such as data collecting, order maintenance, sovereignty, and territory defence.
The law lays forth four scenarios that could result in border closures, port closures or other emergency measures which include the following:
• At the time of war or armed conflict on China’s periphery thereby endangering the security and stability of its borders; or
• When an incident poses a serious threat to national security or the lives and property of border people; or
• At the time of natural calamity, public health incident, or nuclear, biological, or chemical contamination which may put the border area in jeopardy; or
• Any other situation which may have a significant impact on the land border and the security and stability of border regions.
Why China came up with this Law
From the view of different scholars, it emerges that there are several factors which led to China’s move. Firstly, this law reflects Beijing’s renewed concerns over the security of its land border while it squares up to a good deal of unsettled disputes on the maritime front. The confrontations on Sino-Indian borders in recent years may have reminded Beijing that as a classic land-sea power China must always ready itself to cope with threats in both the continental and maritime domains. Also, the Covid-19 pandemic has underlined the fact for Beijing to exert greater control over its penetrable land border. The law also reflects Beijing’s thinly-veiled worries about the stability of its hinterland bordering Central Asia as the withdrawal of the US forces and the Taliban takeover aggravated Beijing’s concerns that Afghanistan may become a hotbed for terrorism and extremism that could spread to Xinjiang.
How does it concern India
The law is not made primarily for India but at the same time, the implications cannot be overlooked. China and India share a disputed border which covers 3,488 km along the LAC, which happens to be the third longest among China’s 22,457 km land boundaries with 14 countries after the borders with Mongolia and Russia. Besides India, Bhutan (477km) is the only other country with which China has a disputed land border. This new Land Border Law has given a reason for doubt and skepticism that China may have been thwarting further negotiations on the standoff in eastern Ladakh for this new law to come into force. India hoped that China would agree to disengage from Patrolling Point 15 in Hot Springs which it did not. The meeting did not even result in a joint statement as had been happening for most earlier meetings. The date for the round meeting is still awaited amid concerns that the Chinese delegation can use the new law to try to boost their existing positions. Apart from PP15, China is blocking Indian troops from accessing its traditional patrolling limits-PP10, PP11, PP11A, PP12 and PP13in Depsang Plains. Also, certain ‘so called civilians’ have pitched tents on the Indian side of the Line of Actual Control in Demchok and are refusing to vacate it. Another sticking point could be that the new law prohibits construction of permanent infrastructure close to the border without China’s permission. Both, India and China have been building new roads, bridges and other facilities faster since the standoff began; in fact, China had objected to India’s workers even before.
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There is a divided opinion on the new law that China has come up with. Some experts believe that the new law will make China stand by on the ongoing stand-off as well as for resolution of the larger boundary issue. Others feel the new law is only a tool the Chinese government will use if it wants as its actions have been aggressive even before this law. China has been building well-off border defence villages across the LAC in all sectors and the new law encourages this move which may be an issue of serious concern for us in future.
The Indo-China border dispute has now turned at least 65 years old with no significant headway in defining the border. Even the most rudimentary task of exchanging maps to understand the differing perception of the two nations with respect to the LAC has not been concluded. However, India’s policy has always remained not to get intervention of any third country in its bilateral disputes with neighbouring nations but the prospects of a resolution secured through bilateral arrangements look improbable. Other mechanisms to resolve the dispute need to be considered. One such recourse could be to make use of a third-party dispute settlement mechanism. The third-party dispute settlement mechanism allows a party that is external to the dispute to help the disputants reach a settlement. A combined reading of Article 33(1) and 33(2) of the UN Charter authorizes the UN Security Council to call upon the parties to a dispute to resolve their differences through means stated in Article 33(1) which includes third-party means. In the past, third-party interventions in dispute settlement have given positive results. The Rio Protocol of 1942 was signed by the governments of Peru and Ecuador on which Brazil, Argentina, Chile and the United States signed as guarantors. This agreement led to the successful demarcation of 95% of the disputed border by 1946. Similar instances include the role of the Pope and Algeria in successfully adjudicating the Argentina-Chile Beagle Channel Dispute and the Iran hostage’s crisis, respectively.
The author is an Advocate-on-Record, Supreme Court of India.