Contrary to popular perception, international law is at the core of China-India recent standoff. China’s claim rests on the primacy of customary international law compared to the claim of India, which is based on succeeding rights from British India. Interestingly, India was not even privy to the agreements from which it derives succeeding claims. The Chinese meanwhile have had a consistent view in which they categorized treaties tied up by colonial powers as exploitative and without the requisite voluntariness that forms the basis of any agreement.
The present standoff and its earlier major and minor versions of 1962, 2003, 2009 and 2013 were all due to the issue of the legal status of the McMahon Line that runs south of China and affects its relations with its southern neighbours. The McMahon Line and its extended derivatives have resulted in the concept of Line of Actual Control (LAC). The LAC 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 Tranquility along the Line of Actual Control in the India China Border Areas’ (Agreement). 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. 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 tranquility. Its 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 use of force was clearly provided in the Agreement, which was aimed at forbidding any aggression by the parties.
In addition, Clause 5 of the Agreement unequivocally stated that no air intrusions were to take place near the LAC, and in case of an air exercise, bilateral consultations had to take place. India seems to have circumvented bilateralism by amending its map of Ladakh and declaring it a union territory on 5th August, 2019. The redrawing of maps and subsequent actions were a violation of the first obligation under Clause 1 of the Agreement as unilateral action was taken. Similarly forgoing the obligation to consult with China, India with the support of the US was preparing for air exercises near the LAC.
China’s approach to disputes such as this has been different and has focused on compromise. 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 article on the compromises made by the political leadership of China in its boundary disputes. India’s focus on bilateralism as a dispute resolution mechanism serves its own interests by attempting to localize issues and bypass the international legal order.
Moreover, the entire matter of McMahon Line is not separate from the Kashmir dispute, which is tripartite with China as much a stakeholder in the issue as Pakistan. The claims of Pakistan and China are pegged to international law and must be respected. Therefore, despite the existence of a bilateral agreement which has been violated, the dispute must be internationalized and resolved by global leadership in international fora. This will allow the claims of each party to be assessed on their merits and prevent the localizing of disputes which could potentially pose a threat to regional and international peace and security.
