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Legal Aspects of the Border Dispute

  • W. F. Van Eekelen

Abstract

Traditional international law has often been regarded as an obstacle by the newly independent states since its limited scope for peaceful change tended to retard their emergence. The present legal system, including the results of a long process of authoritative prescriptions, had emerged without the active participation of the new states. Their recent colonialist past was regarded as a dark, illegal and even immoral episode and often an attempt was made to find a new and unprejudiced basis for their statehood in their history of several centuries ago. The Chinese border disputes with India and Burma even produced arguments which went back to the second and third centuries. Actual practice in Asia showed a preference for conciliation rather than application of a legal rule, but the amazing array of doctrines advanced in the Kashmir dispute provided an example of an extensively legalistic approach. In general, recently acquired sovereignty was guarded jealously, acquiring a connotation of absolute authority independent of any control by the world community.1 This characteristic placed the Asian states halfway between the western concept that modern international law is largely made up of limitations of sovereignty and the communist emphasis on absolute sovereignty.

Keywords

Legal Aspect Indian Report Territorial Sovereignty Chinese Territory Border Dispute 
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References

  1. 1.
    Syatauw, J. J. G., Some newly established Asian states and the development of international law, p. 222–230. He analysed the Burmese-Chinese boundary dispute, the Kashmir conflict and the Indonesian position on territorial waters. In the case between India and Portugal on the right of passage India raised no less than six preliminary exceptions to contest the jurisdiction of the International Court of Justice.Google Scholar
  2. 1.
    Stuyt, A. M., Gespleten Volkenrecht, The Hague, 1962.Google Scholar
  3. 1.
    Lauterpacht, H., International Law, p. 118–119.Google Scholar
  4. 2.
    Hyde, G. C., International Law, (1922) 16–17.Google Scholar
  5. 3.
    Korowicz, M. S., Introduction to International Law, p. 71.Google Scholar
  6. 4.
    Duff Development Cy. v. Government of Kelantan (1924). A.C. 797, 814. Hackworth, Digest I, p. 51.Google Scholar
  7. 5.
    Lauterpacht, H., op. cit., p. 125.Google Scholar
  8. 6.
    Ibidem, p. 190. As a vassal of Turkey, Egypt could conclude commercial and postal treaties and, like Bulgaria, send and receive diplomatic agents and consuls. The first South African Republic could conclude treaties provided Great Britain did not interpose a veto within six months after receiving a copy of the draft treaty. In 1885 Bulgaria fought a war against Serbia independently of her suzerain and in 1898 Egypt conquered the Sudan conjointly with Great Britain and acquired condominium.Google Scholar
  9. 1.
    Sen, D. K., “La situation internationale du Thibet,” R.G.D.I.P. XXII (1951) 417–438.Google Scholar
  10. 2.
    Lauterpacht, H., op. cit., p. 258.Google Scholar
  11. 3.
    Korowicz, M. S., op. cit., “Some present aspects of sovereignty in international law,” p. 89.Google Scholar
  12. 1.
    Tibet and its history, p. 103.Google Scholar
  13. 2.
    Sen, D. K., op. cit., p. 427.Google Scholar
  14. 3.
    Li, Tieh-tseng, Tibet, today and yesterday, p. ii; “The legal position of Tibet,” p. 394–6. Shen, Tibet and the Tibetans. See also Ch. II, p. 17–19.Google Scholar
  15. 4.
    The question of Tibet and the rule of law, p. 85.Google Scholar
  16. 1.
    Richardson, H. E., Tibet and its history, p. 247.Google Scholar
  17. 2.
    Lauterpacht, H., op. cit., p. 190.Google Scholar
  18. 3.
    Fawcett, J. E. S., “Intervention in international law,” p. 413. See also Syatauw, op. cit., p. 131 concerning Sino-Burmese relations.Google Scholar
  19. 1.
    Resolution 1353 (XIV) of Oct. 21, 1959. G.A.O.R., 14th Session, Verbatim records of 831st–834th meetings. See Ch. II, p. 32, for the debate of 1950.Google Scholar
  20. 2.
    China Quarterly, No. 3, p. 44.Google Scholar
  21. 3.
    See Ch. II, p. 13–18 for the history of this period.Google Scholar
  22. 4.
    China Quarterly, No. 5, 150–152 by Richardson, No. 8, 202–207 by “S.G.”.Google Scholar
  23. 1.
    Alston to Grey, Aug. 10, 1913, No. 185. Viscount Morley referred to China raising a point as to the status of the delegates; House of Lords, July 28, 1913.Google Scholar
  24. 2.
    The Boundary Question between China and Tibet, p. 96–98, 101–105, 122, 130–133, 140–141, 147–148.Google Scholar
  25. 1.
    The India Office Library possesses a Revised draft of Sino-British agreement of March 1913 and Article I of this text commenced “The two governments, recognising that Tibet is under the suzereignty, but not the sovereignty of China, mutually engage to respect the territorial integrity of the Country and to abstain from interference in its internal administration, which shall remain in the hands of the Tibetan Government at Lhasa.”Google Scholar
  26. 1.
    International Commission of Jurists, op. cit., p. 125. The reference to the Lhasa Convention of 1904 presumably regarded the subjects Tibet would not act on without previous consent, as the engagement to negotiate new trade regulations was separately mentioned in Art. 7(b) of the Simla Convention. See also chapter II, p. 10.Google Scholar
  27. 2.
    Indian Report, p. 133.Google Scholar
  28. 1.
    Richardson, H. E., op. cit., p. 117, 268.Google Scholar
  29. 1.
    Chinese report, p. 25.Google Scholar
  30. 2.
    “The International status of Tibet.” Address at Indian Council of World Affairs, Sept. 7, 1959.Google Scholar
  31. 3.
    Stamp, L. D., A glossary of geographical terms, Longmans, London, 1961, p. 75.Google Scholar
  32. 4.
    Boggs, S. W., International boundaries, p. 140.Google Scholar
  33. 1.
    Report of minutes of evidence of a sub-committee of the Committee of Imperial Defence appointed by the Prime Minister to consider the military requirements of the Empire as affected by the defence of India, 1907, p. 148.Google Scholar
  34. 1.
    Lauterpacht, H., op. cit., p. 534. The Boundary Question between China and Tibet, p. 108 – 109. Krishna Rao, K., op. cit., p. 404–406. We only take issue with the latter’s contention that it was adopted in the boundary settlement between Guatemala and Honduras, when in fact the tribunal concluded “that the mere physical fact of the existence of a watershed cannot be regarded as fixing the line of uti possidetis” (i.e. the divisions existing under the colonial regime) ; priority in settlement in good faith would appropriately establish priority of right. Award of Jan. 23, 1933, as far as it relates to the Motagua sector. Hackworth, Digest I, p. 742–744.Google Scholar
  35. 2.
    Stamp, L. D., op. cit., p. 482. See Ch. VI p. 99, 102 for the arguments advanced by India and China in 1960.Google Scholar
  36. 3.
    A wider definition would have been inconsistent with international legal opinion. Only the Labrador Boundary Case resulted in adoption by the Privy Council of a whole territory drained by the rivers which empty into a certain coastal area. Hackworth, Digest I, p. 720.Google Scholar
  37. 1.
    Round Table, Dec. 1962, p. 31–39.Google Scholar
  38. 2.
    Aitchison, Vol. XII, p. 66.Google Scholar
  39. 3.
    Caroe, O., “Geography and ethnies of India’s northern frontier,” p. 305.Google Scholar
  40. 4.
    Sir John Ardagh, Director of Military Intelligence in 1896–7, quoted by Lamb, A., R.C.A.J., XLVI (1959) Pt I.Google Scholar
  41. 5.
    The Boundary Question between China and Tibet, p. 108. Bell noted that the Tibetans often had a different concept of a boundary, which did not necessarily follow mountain ranges or rivers. At the trijunction of Tibet, Bhutan and Sikkim he had encountered an “upland-tree, lowland-tree boundary,” i.e. the pine forests belonged to Tibet and the bamboo forests to Bhutan. Tibet Past and Present, p. 5.Google Scholar
  42. 6.
    Sino-Russian treaty of Aug. 27, 1689; Sino-French Convention of June 20, 1895, relating to the boundary between Tonkin and China; Sino-British Convention of 1894 and 1897 concerning the Sino-Burmese border.Google Scholar
  43. 1.
    White Paper III, p. 69.Google Scholar
  44. 2.
    In the middle sector China did not dispute that the Indian alignment followed the watershed between Sutlej and Ganges, but rejected it on other grounds.Google Scholar
  45. 3.
    Kirk, W., “The Inner Asian frontier of India,” p. 153–4.Google Scholar
  46. 1.
    Hyde, C. C., “Maps as evidence in international boundary disputes,” A.J.I.L., 27 (1933) 311–316.CrossRefGoogle Scholar
  47. 2.
    Weissberg, G., “Maps as evidence in international boundary disputes: a reappraisal,” A.J.I.L., 57 (1963) 781–803.CrossRefGoogle Scholar
  48. 3.
    I.C.J. Reports, 1959.Google Scholar
  49. 4.
    I.C.J. Reports, 1962, 6.Google Scholar
  50. 5.
    Kirk, W., op. cit., p. 150.Google Scholar
  51. 1.
    Lamb, A., op. cit., p. 43.Google Scholar
  52. 2.
    Chinese report, p. 9; Indian report, p. 150, 162 ; India has also stated “formal definition or demarcation is not necessary for recognition of a boundary so long as it is fixed by custom and tradition and is well-known,” White Paper III, p. 87.Google Scholar
  53. 3.
    White Paper III, p. 94.Google Scholar
  54. 4.
    The Sino-Indian boundary question, Map I.Google Scholar
  55. 1.
    Lamb, A., op. cit., p. 46. The Chinese report, p. 58, stated that the Chinese people attached no importance to maps drawn up by westerners and looked upon them with disdainGoogle Scholar
  56. 2.
    Op. cit., p. 126–7.Google Scholar
  57. 3.
    McMahon, Sir A. Henry, “International boundaries.” Journal of the Royal Society of Arts, 84 (1935) 2–16.Google Scholar
  58. 1.
    Rose, A., “Chinese frontiers of India.” Kirk, W., “The Inner-Asian frontier of India,” p. 147.Google Scholar
  59. 2.
    The Sino-Indian boundary question, Reference Map 2A.Google Scholar
  60. 3.
    I.C.J. Reports, 1959, p. 229–230.Google Scholar
  61. 4.
    P.C.I.J. Series A/B, 1933, No. 53; Krishna Rao, K., op. cit., p. 410. In the Minquiers and Ecrehos case the International Court was prepared to consider acts subsequent to the critical date, unless the measure in question was taken with a view to improving the legal position of the party concerned. I.C.J. Reports, 1953, p. 47–109.Google Scholar
  62. 1.
    P.C.I.J. Series Aß, No. 71, p. 126–7.Google Scholar
  63. 2.
    “Title to territory: response to a challenge,” A.J.I.L. 51 (1957) 312. He also attached more importance to the display of sovereignty, if only in isolated cases, than to contiguity of territory or the existence of natural boundaries. International Law, p. 314.Google Scholar
  64. 3.
    Bains, J. S., India’s international disputes, p. 160–162 ; Krishna Rao, K., “Title to territory”; Bains partially retracted his opinion in National Herald, Lucknow, Oct. 17, 1962.Google Scholar
  65. 4.
    Lauterpacht, H., op. cit., p. 555.Google Scholar
  66. 5.
    Von der Heydte, “Discovery, symbolic annexation and virtual effectiveness in international law,” A.J.I.L., 29 (1935), 463.Google Scholar
  67. 6.
    Digest I, p. 405; Legal status of Eastern Greenland, P.C.I.J. Series A/B, No. 53, p. 46.Google Scholar
  68. 1.
    I.C.J. Reports, 1953, p. 47.Google Scholar
  69. 2.
    At the Simla conference China included evidence of “effective occupation” in her statement on the limits of Tibet. The Boundary Question between China and Tibet, op. cit., p. 15.Google Scholar
  70. 3.
    Lauterpacht, H., op. cit., p. 576.Google Scholar
  71. 1.
    See for a full discussion of effectiveness and prescription Bouchez, L. J., The regime of bays in international law. Sijthoff, Leiden, 1963.Google Scholar
  72. 2.
    MacGibbon, I. C., “Some observations on the part of protest in International Law”, B.T.I.L., 1953, p. 306–315. Bouchez, L. J., op. cit., p. 268–273.Google Scholar
  73. 3.
    McGibbon, I. C., “The scope of acquiescence in international law”, B. Y.I.L., 1954, p. 143.Google Scholar
  74. 4.
    Bouchez, L. J., op. cit., p. 277.Google Scholar
  75. 1.
    Webster’s collegiate dictionary gives this definition of estoppel.Google Scholar
  76. 2.
    Bowett, D. W., “Estoppel before international tribunals and its relation to acquiescence”, B.Y.I.L. XXXIII (1957) 176–202.Google Scholar
  77. 3.
    Indian Report, p. 257–258; Chinese note in White Paper IV, p. 10.Google Scholar
  78. 1.
    Indian report, p. 143.Google Scholar
  79. 2.
    Krishna Rao, K., op. cit., p. 410.Google Scholar
  80. 3.
    Chinese report, p. 31. For other arguments of both sides see Ch. VI, p. 105–106.Google Scholar
  81. 4.
    Panikkar told the Rajya Sabha that as Ambassador to Peking he had brought Nehru’s parliamentary statement of 1951 confirming the McMahon Line to the attention of the Chinese authorities, but that he had never received a reaction. Oßcial Report, Vol. XXVII, No. 12, Dec. 8, 1959, col. 1811.Google Scholar
  82. 1.
    See also Ch. IX, p. 194.Google Scholar
  83. 2.
    Grisbadarna Case. Hague Court Reports, 1916, p. 130.Google Scholar
  84. 1.
    The China-India border, p. 78, 79.Google Scholar
  85. 1.
    Memorandum by Lord Lansdowne, the Viceroy. File S.F. Oct. 1889, Nos. 182–197.Google Scholar
  86. 2.
    Lamb, A., The China-India border, p. 101 ; Times Litt. Supply “Peking and Delhi,” Jan. 2, 1964. Both sources point at the confusion created by the term “64 miles south of Suket,” which led G. F. Hudson to believe that Chinese administration had not yet crossed the Kuenlun; “The Aksai Chin” p. 15. Lamb identified the location of the pillar as the Karakoram Pass. It is, however, unfair to the Indian case to imply that it disguised the Chinese advance up to the Karakoram Pass. The Indian Report, p. 155–156, only states “but it was only towards the end of the 19th century that Chinese authority reached up even to the traditional northern alignment of Kashmir,” i.e. the Karakoram Pass. It went on to say that if no earlier administration could be proven by China this would also signify that she could not possibly have had checkposts south of the Kuenlun mountains for the last 200 years, as claimed by her officials.Google Scholar
  87. 3.
    Govt. of India, File S. F., Jan. 1898, No. 168. S. F. stands for Secret Frontier.Google Scholar
  88. 1.
    Indian Report, p. 55.Google Scholar
  89. 2.
    Ibidem, p. 102–105. See map 2. British note of March 14, 1899. F. 0./17/1373.Google Scholar
  90. 3.
    File S. F. Feb., 1913, 0. 5/n. The revival of the Ardagh line was caused by expectations of a Russian advance into Kashgaria. On Sept. 12, 1912 the Viceroy cabled to London that in dealing with the Russians the “first essential is to demand as a preliminary to negotiations, recognition of a line which will place Tagdumbash, Raskam, Shahidullah and Aksai Chin outside Russia and within our territory... A good line would be one commencing from Baiyik Peak running eastwards to Chan Pass, leaving Tagdumbash and Dehda on British side, thence along crest of a range through Sargon Pass and crossing Yarkand river to crest of Kuenlun range, north of Raskam, and along crest of that range (through passes named in map of Indian Survey Department, 1891)..., thence, crossing Karakash river along Kuenlun watershed to Tibetan frontier, including Aksai Chin plain in our territory.” Lamb, A., op. cit., p. 108–109.Google Scholar
  91. 1.
    File S. F. Jan. 1898, No. 162. In 1895 Macartney had proposed the creation of a neutral state in the no-man’s land between India and China, but this had no connection with the Aksai Chin boundary. Moreover, a distinction between the two plateaux had already been made. Edward Balfour’s Cyclopedia of India (1885) Vol 2, p. 651, included in Ladakh “the bleak and almost uninhabited plateaux of the Kouen Lun and Linzhithang plains.”Google Scholar
  92. 2.
    File S. F. Nov. 1898, No. 110–114/notes. Lamb advocated the alignment as an obvious compromise for the present dispute and compatible with Indian principles as it followed the watershed between the Indus and Tarim basins. It is necessary, however, to point out that the description of this line was far from accurate. The Indian survey map of 1875 showed a gap of more than 20 miles between the southeastern end of the Lokzhung range and the spur constituting the boundary. The edition of 1938 showed a connection between the two ridges by a semi-circle of various and often parallel ranges. All these mountains are situated west of 80° east longitude, while the British proposal mentioned a meeting point east of this meridian. The contention that late nineteenth century maps showed an eastward displacement of the watershed by some twenty miles is not born out by the Survey of India maps and in any case would make the argument too involved. It is also highly improbable that adoption of the Macartney alignment would leave the entire Sinkiang-Tibet road in Chinese territory. See Lamb, A., op. cit., p. 103–104, 173–174; Times Litt. Suppl. Feb. 6, 1964. India appears to take the view that modern surveys show the absence of any Lokzhung range. The U.S. Army Map Service series U 502, NI 44–1 printed the “Western Loqzung Mountains” with summits around 20.000 feet. It did, however, make no use of Indian Survey Maps, No. 52 M (Aksai Chin) and 52 N (Lanak La) of 1939, which reduced the mountains to a maximum of 16340 feet and split up the ranges.Google Scholar
  93. 3.
    Hudson, O. F., “The Aksai Chin,” p. 20, concluded from the list of Indian reconnaissance parties since 1951 (Indian report, p. 143) that “for seven years Indian military patrols were crossing the tracks of the Chinese in West Aksai Chin.” He assumed that there was Indian collusion in what the Chinese were doing and that news of the Chinese road was deliberately kept from the Prime Minister. The names of places visited by the patrols did not bear out his conclusion. Only the expedition of 1951, which was loosely described as going “from Leh to Lingzi Tang and Aksai Chin” was relevant to the eastern corner of Ladakh. In 1958 patrols went to Haji Langar, east of the Amtogor salt lake and to the southern extremity of the Chinese motorroad, but those parties were sent out for the purpose of locating this road. Earlier patrols did not go beyond Lanak La (1952, 1954 and 1956) or the Qara Tagh pass (1957) and provided no evidence of effective Indian jursidiction over Aksai Chin. It seems likely that construction of the Chinese road went unnoticed partly because the work involved in improving an old caravan route across the plateau was minimal and partly because the closing of Sinkiang to Indian traders and the reduction of the period of operations of the Indian agency at Gartok prevented news of the road from reaching India earlier, See also Fisher, M. W., Himalayan Battleground, p. 8.Google Scholar
  94. 1.
    Kirk, W., op. cit., p. 58.Google Scholar
  95. 1.
    The very fact that a dispute had arisen with regard to a point on the frontier indicated recognition of its general alignment. See Advisory Opinion regarding delimitation of the Polish-Czechoslovak frontier, P.C.I.J., Series B, No. 8, p. 20–21. See also p. 81.Google Scholar
  96. 2.
    White Paper II, p. 36, III, p. 86; Indian report p. 54; Chinese report p. 15–16. The Chinese officials dismissed the significance of the 1842 treaty with three arguments: in their view the treaty did not define any specific location of the boundary and, in fact, was not a boundary agreement at all; it only meant that each side should administer the territory under its jurisdiction and commit no aggression on the other; even if the boundary was actually confirmed at that time, how could India maintain that it was the line now claimed by her and not the Chinese alignment?Google Scholar
  97. 1.
    Lamb, A., op. cit., p. 53; Aitchison (1909) II, p. 297; Indian Report, p. 215.Google Scholar
  98. 2.
    Lamb, A., op. cit., p. 25, 118 and 121.Google Scholar
  99. 1.
    Reid, Sir. R., History of the frontier areas bordering on Assam from 1883–1941, p. 221.Google Scholar
  100. 2.
    Tibet, secret memorandum of Jan. 27, 1913, 1472/13.Google Scholar
  101. 3.
    From Viceroy, Oct. 9, 1913.Google Scholar
  102. 1.
    From Viceroy, Nov. 21, 1913.Google Scholar
  103. 2.
    Chief Secretary to Foreign Secretary, Govt, of India, Sept. 17, 1913; No. 358c and Oct. 17, No. 394c.Google Scholar
  104. 3.
    Reid, Sir R., op. cit., p. 281.Google Scholar
  105. 4.
    Lamb, A., op. cit., p. 150. The new sources quoted above support his analysis.Google Scholar
  106. 5.
    Indian Report, p. 220.Google Scholar
  107. 6.
    Reid, Sir R., op. cit., p. 295. See postscript for Richardson’s comments on this point.Google Scholar
  108. 1.
    Ibidem, p. 297, 300.Google Scholar
  109. 2.
    Indian Report, p. 229, 221.Google Scholar
  110. 3.
    Indian spokesmen quote a letter from the Chinese Minister for Foreign Affairs to the British Minister in Peking on June 13, 1914, stating that “the Lamas might have ecclesiastical authority, but this does not mean that these places belong to Tibet.” This source is not yet available to the public. The Chinese report (p. 71) limited its significance to places which were administratively under the jurisdiction of other Chinese provinces and maintained that Tibet practised a system of combining political and religious authority.Google Scholar
  111. 4.
    Mills, J. P., “Problems of the Assam-Tibet Frontier” R.C.A.F. XXXVII (1950) 154. He “was allotted the task of making the Convention boundary good” and added (p. 158) that this line “is not in fact the natural boundary, whereas the frontier along the base of the plains is the natural one.” Hopkinson, A. J., “The position of Tibet,” ibidem, p. 232, “owing to other preoccupations, we forgot, or omitted to vindicate the boundary allotted to us.” See also Lamb, A., op. cit., p. 148–167; Patterson, G. N., Peking versus Delhi, p. 173–174.Google Scholar
  112. 5.
    Krishna Rao, K., “The Sino-Indian boundary question and international law,” p. 403.Google Scholar
  113. 1.
    F. M. Bailey, The Times, Sept. 9, 1959. The others ibidem, Sept. 2 and 4, 1959.Google Scholar
  114. 2.
    Memorandum by McMahon of March 28, 1914.Google Scholar

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  • W. F. Van Eekelen

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