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.
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References
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.
Stuyt, A. M., Gespleten Volkenrecht, The Hague, 1962.
Lauterpacht, H., International Law, p. 118–119.
Hyde, G. C., International Law, (1922) 16–17.
Korowicz, M. S., Introduction to International Law, p. 71.
Duff Development Cy. v. Government of Kelantan (1924). A.C. 797, 814. Hackworth, Digest I, p. 51.
Lauterpacht, H., op. cit., p. 125.
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.
Sen, D. K., “La situation internationale du Thibet,” R.G.D.I.P. XXII (1951) 417–438.
Lauterpacht, H., op. cit., p. 258.
Korowicz, M. S., op. cit., “Some present aspects of sovereignty in international law,” p. 89.
Tibet and its history, p. 103.
Sen, D. K., op. cit., p. 427.
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.
The question of Tibet and the rule of law, p. 85.
Richardson, H. E., Tibet and its history, p. 247.
Lauterpacht, H., op. cit., p. 190.
Fawcett, J. E. S., “Intervention in international law,” p. 413. See also Syatauw, op. cit., p. 131 concerning Sino-Burmese relations.
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.
China Quarterly, No. 3, p. 44.
See Ch. II, p. 13–18 for the history of this period.
China Quarterly, No. 5, 150–152 by Richardson, No. 8, 202–207 by “S.G.”.
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.
The Boundary Question between China and Tibet, p. 96–98, 101–105, 122, 130–133, 140–141, 147–148.
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.”
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.
Indian Report, p. 133.
Richardson, H. E., op. cit., p. 117, 268.
Chinese report, p. 25.
“The International status of Tibet.” Address at Indian Council of World Affairs, Sept. 7, 1959.
Stamp, L. D., A glossary of geographical terms, Longmans, London, 1961, p. 75.
Boggs, S. W., International boundaries, p. 140.
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.
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.
Stamp, L. D., op. cit., p. 482. See Ch. VI p. 99, 102 for the arguments advanced by India and China in 1960.
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.
Round Table, Dec. 1962, p. 31–39.
Aitchison, Vol. XII, p. 66.
Caroe, O., “Geography and ethnies of India’s northern frontier,” p. 305.
Sir John Ardagh, Director of Military Intelligence in 1896–7, quoted by Lamb, A., R.C.A.J., XLVI (1959) Pt I.
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.
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.
White Paper III, p. 69.
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.
Kirk, W., “The Inner Asian frontier of India,” p. 153–4.
Hyde, C. C., “Maps as evidence in international boundary disputes,” A.J.I.L., 27 (1933) 311–316.
Weissberg, G., “Maps as evidence in international boundary disputes: a reappraisal,” A.J.I.L., 57 (1963) 781–803.
I.C.J. Reports, 1959.
I.C.J. Reports, 1962, 6.
Kirk, W., op. cit., p. 150.
Lamb, A., op. cit., p. 43.
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.
White Paper III, p. 94.
The Sino-Indian boundary question, Map I.
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 disdain
Op. cit., p. 126–7.
McMahon, Sir A. Henry, “International boundaries.” Journal of the Royal Society of Arts, 84 (1935) 2–16.
Rose, A., “Chinese frontiers of India.” Kirk, W., “The Inner-Asian frontier of India,” p. 147.
The Sino-Indian boundary question, Reference Map 2A.
I.C.J. Reports, 1959, p. 229–230.
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.
P.C.I.J. Series Aß, No. 71, p. 126–7.
“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.
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.
Lauterpacht, H., op. cit., p. 555.
Von der Heydte, “Discovery, symbolic annexation and virtual effectiveness in international law,” A.J.I.L., 29 (1935), 463.
Digest I, p. 405; Legal status of Eastern Greenland, P.C.I.J. Series A/B, No. 53, p. 46.
I.C.J. Reports, 1953, p. 47.
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.
Lauterpacht, H., op. cit., p. 576.
See for a full discussion of effectiveness and prescription Bouchez, L. J., The regime of bays in international law. Sijthoff, Leiden, 1963.
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.
McGibbon, I. C., “The scope of acquiescence in international law”, B. Y.I.L., 1954, p. 143.
Bouchez, L. J., op. cit., p. 277.
Webster’s collegiate dictionary gives this definition of estoppel.
Bowett, D. W., “Estoppel before international tribunals and its relation to acquiescence”, B.Y.I.L. XXXIII (1957) 176–202.
Indian Report, p. 257–258; Chinese note in White Paper IV, p. 10.
Indian report, p. 143.
Krishna Rao, K., op. cit., p. 410.
Chinese report, p. 31. For other arguments of both sides see Ch. VI, p. 105–106.
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.
See also Ch. IX, p. 194.
Grisbadarna Case. Hague Court Reports, 1916, p. 130.
The China-India border, p. 78, 79.
Memorandum by Lord Lansdowne, the Viceroy. File S.F. Oct. 1889, Nos. 182–197.
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.
Govt. of India, File S. F., Jan. 1898, No. 168. S. F. stands for Secret Frontier.
Indian Report, p. 55.
Ibidem, p. 102–105. See map 2. British note of March 14, 1899. F. 0./17/1373.
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.
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.”
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.
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.
Kirk, W., op. cit., p. 58.
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.
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?
Lamb, A., op. cit., p. 53; Aitchison (1909) II, p. 297; Indian Report, p. 215.
Lamb, A., op. cit., p. 25, 118 and 121.
Reid, Sir. R., History of the frontier areas bordering on Assam from 1883–1941, p. 221.
Tibet, secret memorandum of Jan. 27, 1913, 1472/13.
From Viceroy, Oct. 9, 1913.
From Viceroy, Nov. 21, 1913.
Chief Secretary to Foreign Secretary, Govt, of India, Sept. 17, 1913; No. 358c and Oct. 17, No. 394c.
Reid, Sir R., op. cit., p. 281.
Lamb, A., op. cit., p. 150. The new sources quoted above support his analysis.
Indian Report, p. 220.
Reid, Sir R., op. cit., p. 295. See postscript for Richardson’s comments on this point.
Ibidem, p. 297, 300.
Indian Report, p. 229, 221.
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.
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.
Krishna Rao, K., “The Sino-Indian boundary question and international law,” p. 403.
F. M. Bailey, The Times, Sept. 9, 1959. The others ibidem, Sept. 2 and 4, 1959.
Memorandum by McMahon of March 28, 1914.
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Van Eekelen, W.F. (1967). Legal Aspects of the Border Dispute. In: Indian Foreign Policy and the Border Dispute with China. Springer, Dordrecht. https://doi.org/10.1007/978-94-017-6555-8_7
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