Academic journal article Asia Pacific Law Review

Some New Haven International Law Reflections on China, India and Their Various Territorial Disputes

Academic journal article Asia Pacific Law Review

Some New Haven International Law Reflections on China, India and Their Various Territorial Disputes

Article excerpt

I. The Issues Defined by India and China in Terms of Formalist, Western International Law Concepts

A. The McMahon Line

The continued problem of the India-Tibet/China border, along the so-called McMahon Line is a legacy of British colonisation. The dispute is the result of ambitions of Britain to extend the boundary of its North Eastern Frontier shortly after the collapse of the Qing dynasty in China, when Tibet came to assert independence from China. The McMahon Line, a geographical boundary which runs along the rim of the Himalayas until it reaches the great bend in the Brahmaputra River where that river emerges from the Tibetan Plateau into the Assam Valley, rests on the Anglo-Tibetan Agreement of March 1914 and the Simla Agreement of 3 July 1914. China rejects the Simla Agreement on the grounds that the Tibetan government was not a sovereign government and was not in a position to conclude treaties. China refers to this area as South Tibet while India calls it Arunachal Pradesh which is one of the Indian States. The Central Tibetan Administration, the government-in-exile of the Dalai Lama, has conceded the line as the official border, while they seek shelter in India. Chinese forces briefly occupied this area during the Sino-Indian War of 1962 but returned most of the territory back to India. Today, China recognises a Line of Actual Control which includes the McMahon Line, according to a 1959 diplomatic note by the then Prime Minister Zhou Enlai. Gradually, from 1951 onwards, the Chinese introduced to the Indians the need to dialogue and negotiate about the frontier issue, until finally, by 1959, they had raised the whole McMahon Line border as disputed.1 Over the years, Tibetan human rights are violated persistently2 and we draw attention to a statement by Marcus Einfeld that Tibetans had a separate civilisation with a long and distinct history, which is presently challenged politically by CCP rule through Beijing, although there is an Autonomous Regional Government.3

The difficulties of the Indian position on Tibet can be understood in the light of Foreign Office minutes on the McMahon Line, which discuss its validity.4 In these minutes, Foreign Official officials sought legal advice as to how to support the Indian position on the validity of the McMahon Line, given that Britain was already publicly committed by ministerial statements to support it. The documents that were under consideration in these FO minutes were the bilateral Anglo-Tibetan Agreement of March 1914 and the Simla Agreement 1914. According to these documents Britain had, after 1911 recognised Chinese suzerainty over Tibet 'subject to Tibetan autonomy'. It was argued in the documents that India is entitled to maintain her inherited frontiers from the United Kingdom that were then agreed between the UK and Tibet, although it was recognised that the specific issue of the McMahon Line was not considered at independence. In 1954, India recognised Chinese sovereignty over Tibet, but maintained that the Chinese are legally committed to recognise the McMahon Line on the basis that China is a successor State to Tibet.

The difficulty for both the Chinese and the Indians in this dispute is how they regard the Tibetans as participants or as objects of imperial diplomacy. The Indians appear to adopt the British line that Tibet was competent to conclude a boundary treaty which moved the limits of British imperial administration much further north, but it is quite clear that, historically, China did not ratify the boundary treaty at the time and never accepted the status of Tibet as seen through British eyes, the so-called doctrine of Chinese suzerainty over Tibet.5 Therefore, the Indian claim that China succeeds historically to Tibet's boundary with India is inconsistent with India now accepting that Tibet should be integrated into China. The reason for the inconsistency is that China's own reason for regarding Tibet as part of China now is that it has always regarded Tibet as an integral part of China. …

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