China's claim on Arunachal not supported by international law

The Hindu

3 days ago

China has once again renamed places in Arunachal Pradesh, this time as many as 27 of them, to reinforce its claim over the Indian State which it calls Zangnan. China claims that its effort to 'standardise' the names is fully within its sovereignty. It maintains that Arunachal Pradesh is in South Tibet, and cites the presence of the second-most important Tibetan Buddhism monastery in Tawang and the birth of the sixth Dalai Lama in Arunachal to support its claim.
China's territorial claims in Arunachal Pradesh and its maritime claims covering most of the islands of the South China Sea are grounded in its perspective of international law, which is heavily based on sovereignty. Though the Five Principles of Peaceful Coexistence figure in China's vision of international law, the most elemental in China's view is the principle of sovereignty.
China mixes its content of sovereignty with abundance of historical evidence to support its territorial and maritime claims which are at odds with the established principles of international law and are in contravention of the decisions of international courts and tribunals. The International Court of Justice (ICJ) has expressly rejected on several occasions the mode of acquiring territory grounded in the reasoning of consolidation by historical title.
In Land and Maritime Boundary between Cameroon and Nigeria, the ICJ noted that 'the notion of historical consolidation has never been used as a basis of title in other territorial disputes, whether in its own or in other case law', and that 'the theory of historical consolidation is highly controversial and cannot replace the established modes of acquisition of title under international law, which takes into account many other important variables of fact and law' (ICJ Judgment 2002, Rep. 303, para. 65). Jianming Shen, Chinese scholar, defends consolidation by historical title in light of inter-temporal and international law. He argues that 'the evaluation and determination of historic titles should be made in light of the rules of international law which were in force at the time when such title was allegedly acquired, not in accordance with the rules of law at the time of subsequent disputes'.
The first territorial dispute that went before the ICJ was relating to deciding the title of the Minquiers and Ecrehos (two groups of islets situated between the British island of Jersey and the coast of France). In the case, the court was asked to determine which of the parties had produced the more convincing proof of title to these group of islands. The ICJ did not consider indirect presumption from events in history, but evidence which relates directly to the possession of the Minquiers and Ecrehos group or in other words direct evidence of possession and the actual exercise of sovereignty (Minquiers and Ecrehos (Fr./UK), 1953 ICJ Rep. 47). After considering this evidence, the court arrived at the conclusion that the sovereignty over the Minquiers and Ecrehos belonged to the U.K.
'Uti Possidetis Juris'
China's renaming exercise goes against another established principle of title to a territory, the principle of uti possidetis juris (Roman law rule translated as 'as you possess, so may you possess) that is the principle that the boundaries of newly independent states should follow those of the previous colonies. China does not recognise the McMahon line, drawn by the British colonial authorities in 1914 at the Anglo-Tibetan Shimla Conference, which established the boundary between British India and Tibet. Though Chinese representatives were present at Shimla, they refused to sign or recognise the accords on the basis that Tibet was under Chinese jurisdiction and therefore did not have the power to conclude treaties.
The Frontier Dispute (Burkina Faso and Mali) judgment by the ICJ in 1986 is illustrative of the principle of uti possidetis juris. The ICJ gave priority to the principle which accords preeminence to legal title over effective possession as a basis of sovereignty, and whose primary aim is to secure respect for the territorial boundaries which existed at the time when independence was achieved. The ICJ emphasised both its general applicability and the function of the principle in preventing 'the independence and stability of new states being endangered by fratricidal struggles provoked by the challenging of frontiers following the withdrawal of the administering power' (1986 ICJ Rep. 554, para.20).
Maps and international law
China tries to buttress its territorial and maritime claims with the support of map. In its maritime claim in the South China Sea, China uses the nine-dash-line map to support its claim. Generally, there is a lack of clarity whether the map has any legal relevance to the delimitation of China's boundaries in the South China Sea. The question is does the map make the claim more persuasive from the perspective of an international court or tribunal? The principle that emanates from international jurisprudence and doctrinal discussions is that cartographic materials do not by themselves have any legal value. In the Frontier Dispute, the ICJ stated that in frontier delimitations, 'maps merely constitute information' and that 'of themselves, and by virtue solely of their existence, they cannot constitute a territorial title' (1986 ICJ Rep. 554 para.54). They constitute extraneous evidence of varying reliability that might, depending on the circumstances, be used together with other evidence to establish a fact.
In light of the above, it can be concluded that China's assertive stance in Arunachal and the far-reaching pretensions in the South China Sea do not meet the standards of international law.
(The author is a Senior Assistant Professor in international law at the Indian Society of International Law, New Delhi. Views are personal)