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India China Land Dispute

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INDIA CHINA LAND DISPUTE
Fundamental legal concepts such as sovereignty and jurisdiction can only be comprehended in relation to territory, it follows, that the legal nature of territory becomes a vital part in any study of International law.Sovereignty, with its retinue of legal rights and duties, is founded upon the fact of territory. Without territory a legal person cannot be a state. It is undoubtedly the basic characteristic of a state and the one most widely accepted and understood. A number of legal interests are capable of existing over land and the possibility exists of dividing ownership into different segments. Disputes as to territory in international law may be divided into different categories. Therefore, claims to territory may be based on a number of different grounds, ranging from the traditional method of occupation or prescription to the newer concepts such as self-determination, with various political and legal factors, for example, geographical contiguity, historical demands and economic elements, possibly being relevant.
The continuing border-dispute between China and India is a puzzle for many. Arunachal Pradesh, in the Northeast area of India, is territory that is disputed by the two countries. The area around this state is extremely diverse, with many different ethnic groups and identities. It is an extremely strategic area for India. Despite six decades of attempts at resolution, the dispute persists in the face of official booming trade relations between the two rising giants.
The paper tries to find out different grounds on which the respective states claim the territory and the relevance of such grounds in the International community. The author also discusses the scope of ICJ in this matter.

Under Article 38 of the Statute of the International Court of Justice (Statute), when deciding cases “in accordance with international law,” the court applies the following sources of law: * international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; * international custom, as evidence of a general practice accepted as law; * the general principles of law recognized by civilized nations; * subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.
The McMahon line, which India regards as the official border, was the result of a legal treaty between colonial India under British rule and Tibet. It is also based on a particular cartographic understanding of the region and as such, the Indians believe that this line should be the final settlement of the border. As compared to the other bases for territorial claims, the treaty justification is more legal in nature, that is, it is less emotionally persuasive than an historical claim might be. Treaty claims are the easiest to assert, because the existence of a treaty is easier to prove than the existence of customary international law, which requires evidence of state practice and opinio juris. In addition, India argues that China has already used the McMahon line as the basis for a border with Burma, therefore creating the perception of a double-standard on China’s part.
Arunachal Pradesh, "the land of the dawn-lit-mountains", is one of the last unspoilt wildernesses now under Indian colonial occupation. It is situated north of Assam extending eastwards from the high Himalaya near Bhutan towards Burma, with the mountains of Tibet away to the north. Scarcely any roads penetrate this vast state, formerly known as the North-East Frontier Agency (NEFA), whose new capital, Itanagar, is just across the border from Assam. Entering Arunachal, the road to Tawang runs through rugged hills, engulfed by virgin forests, with silver ribbons of rivers far below. Geographical justifications for territorial boundaries are neither novel nor uncommon. Mountain ranges, rivers, oceans, and other bodies of water and physical formations have perennially separated political entities.
China, however, views the McMahon line as a colonially imposed boundary since India was under British rule at the time. The Chinese wish to resolve the dispute based on the “traditional line” which falls further south of the McMahon line.Uti possidetis, a principle used to define postcolonial boundaries in Latin America, Asia, and Africa, is a doctrine under which newly independent states inherit the pre-independence administrative boundaries set by the former colonial power. The doctrine posits that title to the colonial territory devolves to the local authorities and prevails over any competing claim based on occupation. Thus, uti possidetis is predicated on a rejection of self-determination and assumes that internal, administrative boundaries are functionally equivalent to international boundaries. Commentators criticize uti possidetis because administrative colonial borders were almost always vaguely drawn and did not correspond to the inhabitant populations. Consequently, these commentators argue, reliance on uti possidetishas led to many border disputes.
In addition, regarding Arunachal Pradesh, the Chinese claim that from a historical perspective, Tibet has held administrative control over the territory, and Tibet is part of China. There are also strategic reasons that factor into concerns over the location of the border. Historical claims to territory are based on historical priority or duration. Although effective control (possession) presents the strongest claim under property law, historical claims create an underlying entitlement to territory, regardless of whether a state has actual or constructive possession of the land at the time of the claim. Thus, historical claims tend to be most common, compared to the other claims discussed here.
Historical claims often relate to cultural claims, because the greater the cultural importance of the territory, the stronger the historical claim to it. The history of the people and their land “fleshes out the identity of the nation, reveals it as a community, and gives it genetic legitimacy. It can be based on events that have actually taken place or on myths that were purposely constructed.” The land and its inhabitants’ identities reinforce each other.
All of the border areas of Arunachal Pradesh are deeply connected to Tibetan Buddhism in one way or another. The “Free Tibet” movement is quite strong in the border areas such as Tawang. This contributes to an aggressive and defensive negotiating posture on the part of China, which only complicates any resolution of the border and territorial dispute. Most local academics and policy makers argue that Chinese aggressiveness is increasing vis-à-vis Arunachal Pradesh due to Beijing’s growing insecurity over Tibet. Indeed, the existing strong Tibetan culture in Arunachal Pradesh especially in Tawang and the Upper Siang districts provokes Chinese fears of a covert pan-Tibetan movement for independence from across the India-China border.
Cultural justifications are based on the “ethnic nation” argument, which underlies any justification for drawing a border in a specific place because of a common language, religion, kinship, or other cultural characteristic that defines the group of people living in a particular territory.At the core of a cultural claim is a sense of belonging but the characteristic creating this belonging varies. The local discourses identify the Tawang monastery and its linkage to Tibet as predominantin Tibetan Buddhist discourses in the Eastern Himalayan belt. After China occupied Tibet in 1949, the Chinese government viewed the occupation of Tawang as an important source of legitimacy for its own hold over Tibet in the long term. While China did occupy Tawang, in 1962, the lack of supply lines from Tibet into Tawang, absence of roads within Tibet to the India-China border, and a hostile Tibetan and Aruanchali population would have made the occupation an extremely costly venture over time. Hence, the Chinese troops retreated. Therefore, the Chinese failed to exercise control of the disputed area.

What have been the Results of These Factors?

For one, there has been an increase in military installations on the border and upgrading of airfields by India. China has constructed missile sites near Tibet with missiles that can reach Delhi, and they are planning to deploy even longer range missiles in the future. Military exercises have also escalated on both sides, particularly in Northeast India, where little to no such exercises occurred in the past. Each side’s recognition of the other as a nuclear state will almost certainly avoid an escalation to all-out war. At the same time, it remains to be seen if the border and territorial issue will result in small-scale conflict or increased deterioration in diplomatic relations in the future.
China has also vastly improved its road connectivity in the provinces bordering India.
Road linkages are seen as enabling troop movements and keeping supply lines open during times of conflict. The lack of road infrastructure on the Indian side of the border is a perennial source of concern for Arunachalis. The fear expressed is that if a Chinese land attack were to occur, it would take Indian army convoys at least a couple of days to reach the border given the terrible road conditions.

.

CONCLUSION

Ultimately, factors such as Tibet, military exercises, the warming of the U.S.-India relationship, local perceptions and the complexity of negotiations when explaining the long-standing and recently increased India-China tensions. Each side’s recognition of the other as a nuclear state will almost certainly avoid an escalation to all-out war. At the same time, it remains to be seen if the border and territorial issue will result in small-scale conflict or increased deterioration in diplomatic relations in the future.
Although territorial disputants perennially make arguments based on all these justifications, only three of these justifications have operated consistently as the ICJ’s decision rule: treaty law, utipossidetis, and effective control. Only when a decision on any of these three grounds is impossible will the court resort to equity in deciding a case. The hierarchy among treaties, uti possidetis, and effective control has the effect of giving a broad scope to treaty law and possibly imputing more meaning to the principle of uti possidetis than it merits at this stage in the evolution of public international law. This Note outlines only a few of several possible rationales for the ICJ’s hierarchy of justifications for territorial claims. Whether a causal mechanism exists to explain the hierarchy discussed in this Note remains an open question and is ripe for additional research.

A peaceful resolution to the boundary question cannot emerge without conscious effort by both states. Neither is an amicable settlement easily attainable if there is a lack of clear directions. In today's academic literature there is no shortage of general theories and specific suggestions on how the border issue between India and China could be resolved; but how do we know which solutions are more feasible and what should be the appropriate course of action?

--------------------------------------------
[ 1 ]. International Law- Malcolm N. Shaw
[ 2 ]. Oppenheim’s International Law, p. 563.
[ 3 ]. International Law- Malcolm N. Shaw
[ 4 ]. R. Megarry and H.W. R.Wade, The Law of Real Property, 5th edn, London, 1984.
[ 5 ]. Id. art. 38, para. 1, 59 Stat. at 1060
[ 6 ]. BIN CHENG, GENERAL PRINCIPLES OF LAW AS APPLIED BY INTERNATIONAL
COURTS AND TRIBUNALS
[ 7 ]. www.globalsecurity.org
[ 8 ]. Asia Report, 2013. Issue No.21
[ 9 ]. See supra note 5 and accompanying text. Uti possidetis originated in Roman law as a procedural rule that shifted the burden of proof to the party not holding the land.
[ 10 ]. Ratner, supra note 72, at 591
[ 11 ]. Alexander B. Murphy, Historical Justifications for Territorial Claims.
[ 12 ]. China's Territorial Claim on India's Eastern Sector: Tibet as Core, Namrata Goswami.
[ 13 ]. DONALD L. HOROWITZ, ETHNIC GROUPS IN CONFLICT.
[ 14 ]. China's Territorial Claim on India's Eastern Sector: Tibet as Core, Namrata Goswami.
[ 15 ]. China's Territorial Claim on India's Eastern Sector: Tibet as Core, Namrata Goswami

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