The border between India and China is not clearly demarcated throughout. Along certain stretches of its 3,488-km length, there is no mutually agreed Line of Actual Control (LAC). India, following Independence, believed it had inherited firm boundaries from the British, but this was contrary to China’s view. China felt the British had left behind a disputed legacy on the boundary between the two newly formed republics.
The India-China border is divided into three sectors, viz. Western, Middle and Eastern. The boundary dispute in the Western Sector pertains to the Johnson Line proposed by the British in the 1860s that extended up to the Kunlun Mountains and put Aksai Chin in the then princely state of Jammu and Kashmir. Independent India used the Johnson Line and claimed Aksai Chin as its own.
China initially did not demur when India said so in the early 1950s; however, in the years that followed it reversed its position and stated that it had never acceded to the Johnson Line and therefore did not see why it should cede Aksai Chin to India. In the Middle Sector, the dispute is a minor one. It is the only one where India and China have exchanged maps on which they broadly agree. The disputed boundary in the Eastern Sector of the India-China border is over the MacMahon Line. Representatives of China, India and Tibet in 1913-14 met in Shimla, where an agreement was proposed to settle the boundary between Tibet and India, and Tibet and China. Though the Chinese representatives at the meeting initialled the agreement, they subsequently refused to accept it. The Tawang tract claimed by China was taken over by India in 1951. Till the 1960s, China controlled Aksai Chin in the West while India controlled the boundary up to the McMahon Line in the East.
Nearly six decades have passed since then, but the border issue remains unresolved. It has turned into one of the most protracted border disputes in the world. Since 1981, when the first round of border talks was held, officials from India and China have met a number of times to find a solution to the issue.
The two countries are also engaged in Confidence Building Measures (CBMs) on the border with bilateral agreements signed in 1993, 1996, 2005, 2012 and 2013. By the beginning of the 21st century, the two sides had agreed not to let the border dispute affect bilateral engagements. This was inked into the Agreement on Political Parameters and Guiding Principles for the Settlement of the India-China Boundary Question signed in 2005. During Prime Minister Atal Bihari Vajpayee’s visit to China in 2003, the two sides agreed on the appointment of special representatives for consultations aimed at arriving at a framework for a boundary settlement that would provide the basis for the delineation and demarcation of the border.
Despite two decades of CBMs and the thaw in bilateral relations, incidents on the border, known as “incursions”, “intrusions” or “violations” continue to be reported in the Indian media. The terms, “incursion”, “intrusion” and “violation” are sometimes used interchangeably in Indian English-language newspapers to refer to Chinese actions in disputed areas of the LAC. The Indian government, denying that there have been Chinese intrusions along the LAC since 2010, prefers to call them “transgressions”.
Although denial and underplaying of incidents on the Sino-Indian border was the general trend, at least on one occasion, the Indian government admitted the Chinese People’s Liberation Army’s (PLA) intrusion into Indian territory. The PLA reportedly entered 10 km inside the Indian territory in eastern Ladakh and set up a platoon-sized camp on 15 April 2013. The incident preceded Chinese Premier Li Keqiang’s state visit to India on 19 May 2013. The April 2013 episode was not an innocent transgression; it was, by the Indian government’s own definition, an intrusion—an intentional and provocative breach of the LAC.
Line of Actual Control: Legal Status
Effective diplomacy between nations is contingent upon a combination of ethical and political conduct and the tactical use of treaty laws. Often, political conduct depends upon the efficiency with which diplomats interpret and convince the opposite side on treaty matters. Over the decades since 1950, India and China have adopted divergent approaches to the boundary question. For one, China does not acknowledge the McMahon Line as the Line of Actual Control, perceiving it as a violation of the principle of “historic rights” and an injustice done by British Imperialism. Thus, since late-1950s, China has advanced its own delineation of the LAC as the de-jure legal boundary, claiming a significant portion of Aksai Chin within its territory. For its part, India does not grant legal recognition to this version of the LAC nor to China’s claims over Aksai Chin. Thus, the LAC remains a functional concept inasmuch as it serves to avoid military confrontation between patrolling forces of the two sides.
India expressly recognises the LAC for the limited purpose of maintaining peace at the border and containing the dispute from affecting other aspects of Indo-Sino bilateral relations, but not as a cessation of its sovereign claim beyond this line. It has referred to legal instruments and cartographic evidence to assert its claim, as well as a general assertion that its position has been “historically clear.”
The origin of the LAC can be traced to the letters written by then Chinese Premier Zhou Enlai to Indian Prime Minister Jawaharlal Nehru in 1959, in which he broadly defined the border between the two countries, without any proper scale. Later, China sought to legalise the LAC during Zhou’s visit to India in 1960 and again after the 1962 War. Exercising its right to rebut, India has consistently rejected this Chinese conception. It remains a matter of conjecture as to whether China intended to unilaterally give the LAC a legal status or wanted to create conditions wherein India would be compelled to accept it.
Under the general principles of International Law, unilateral declarations have a legal character and the Law of Treaties has dealt at length with questions on such declaration by states. However, unilateral declarations that affect the rights of other states must follow a two-stage test to be legally accepted: first, there must be a unilateral statement by a state actor that affects an international character of a subject matter; second, such declaration must be either accepted by a party interested in it or should go unchallenged. Thus, the Chinese conception of the LAC does not have a strong basis under International Law, since India has expressly rejected it.
The nomenclature, too, challenges the legal validity of this LAC. While both sides claim Aksai Chin as part of their sovereign territory, the term “Actual Control” can be interpreted to mean that China accepts two boundaries with India: One, within which it exercises actual sovereignty, which extends up to the traditionally believed western boundary of Xinjiang Province; and another that goes beyond it and covers the Aksai Chin region. Based on this duality, the literal interpretation of the term, “Actual Control” would suggest that Aksai Chin only serves the purpose of supporting logistical and military activities in the region. Thus, Chinese intentions in this regard seem to be motivated not by the fundamental traits of sovereignty in the demarcated region (since it does not exercise effective control over it), but to serve its interests in traditional Chinese territories.
The International Court of Justice (ICJ), in the case concerning the Temple of Preah Vihear, rejected Thailand’s arguments on its effective control over the disputed territory, where it had argued that its acts on the ground were “evidence of conduct as a sovereign.” According to the ICJ, the acts concerned were exclusively those of local provincial authorities, which were “very few [and] routine,” and therefore “difficult to regard … as overriding and negativing the consistent and undeviating attitude” of the opposite party (Cambodia). Extrapolating from this judgement, China’s “conditional sovereignty,” too, has limited legal consequence under International Law without substantiation that it exercises effective sovereignty over the region and that all constitutive elements of the state apply to it as elsewhere in China.
China’s conduct relating to the LAC presents two additional issues. First, China has never been consistent with its own perception of the LAC. Analysts have argued that its conception of the LAC has shifted over the years, which makes it fail the internationally accepted standards for a claim of sovereignty and invalidates China’s claims of continuity and historical right. Second, through official statements and bilateral agreements, China has often accepted the LAC as a tool to determine the point up to which forces of the two sides can conduct patrolling activities. In a letter to leaders of Asian–African countries explaining his reasons for declaring war with India, Zhou Enlai notes, “The line of actual control is not equivalent to the boundary between the two countries. Acknowledging and respecting the line of actual control would not prejudice each side’s adherence to its claims on the boundary.” Military conduct—such as frequent face-offs between patrolling parties, attempts to change the status quo, and setting-up of temporary military build-ups—has further contributed to the differences in perceptions and the eventual disregard for the LAC. Indeed, there is a visible departure from what the Chinese leadership had initially proposed in the way its military has carried out activities in the bordering areas. In 1959, the Chinese government suggested that “the armed forces of both sides withdraw 20 kilometres from LAC along the entire Sino-Indian border and halt patrols.” However, by the mid-1970s, the People’s Liberation Army (PLA) “no longer stayed 20 kilometres behind the Chinese version of the LAC in all places,” with physical scuffles becoming more frequent in the last few years.
The 1993 Tranquility Agreement shows that in bilateral matters, the LAC is merely a limit on border patrolling, and not a validation of border claim. Article 1 of the Agreement categorically states, “Pending an ultimate solution to the boundary question” the two sides shall “strictly observe … the LAC.” According to Article 4, “References to LAC in this Agreement do not prejudice their respective positions on the boundary question.” These Articles, together with Zhou Enlai’s statement, suggest that China acknowledges the duality in their border approach. Thus, in the absence of any mutually agreeable instrument conferring sovereign rights to China, the LAC can legally be considered a line meant only to avoid face-offs.
Conclusion
The resolution of the Indo–China border dispute will be a complex process, especially considering the Chinese position and approach. This paper has attempted to understand China’s behaviour in the context of International Law and examine how India should mould its approach in response. Being a member of the UN Security Council and a dominant global economy, China’s power-based approach poses a challenge to a rules-based global order; International Law alone, particularly treaties, cannot defend against this.
India’s international conduct has always been dominated by formal approaches, such as making petitions, dossier submission, and fulfilling treaty laws. However, this has not served it well, since China’s approach is either conservative or in defiance of established traditions and norms. It is pertinent for India to explore alternative avenues to more effectively address the boundary problem. The success of any treaty arrangement is contingent upon its favourable interpretations, and a successful foreign policy must first and foremost contain a conflict. India must shed its idealistic approach and re-evaluate its foreign policy towards China to align it with the ground realities.
*Source: Aljazeera; BBC; The Wire; ORF; South China Morning Post
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