As a result of recent disputes and confrontations between their armed forces along established and disputed areas of their shared border in the preceding two years, China and India’s diplomatic relationship has worsened. The 1962 Sino-Indian War was the cause of the two countries’ enmity. The primary instrument that governs all treaties between nations, as well as their controversies, is the Vienna Convention on Law of Treaties of 1969. (VCLT). To resolve crises brought on by conflicts between two nations’ interests, the treaty discusses various state practices, historical perspectives, and generally accepted behaviour of states. However, it has repeatedly either facilitated or failed to contain disagreements, which is detrimental to bilateral and diplomatic ties. Territorial claim disputes are commonly raised in discussions about treaty law criticism. One essential feature is that the treaty law employs multiple portions to handle the same issue. To fill gaps in international law that the codified treaties have not adequately addressed, or to provide advice to nations where a treaty is completely lacking, the principles of “utipossidetis,” effective control, customary law, and historic rights are a “sine qua non”. Therefore, the subjective interpretation and execution of a state’s principles may be at odds with generally acknowledged norms.
Issues between China and India
The following list of legal problems that have long harmed India and China’s relationship. Border disputes between China and India have persisted for a long time and are arguably the major source of friction in their relationship. Despite the fact that various territorial land pockets (14 divisions) along the 3488-kilometre-long boundary (Line of Actual Control) have been contested, the two primary unresolved issues are Aksai Chin and Arunachal Pradesh. The Chinese People’s Liberation Army effectively beat the Indian Army in a brief confrontation between the two countries in 1962 that was fought in Aksai Chin and Arunachal Pradesh.
According to India’s official position, even though China manages Aksai Chin, India still owns the region because it is a part of Jammu and Kashmir (Ladakh). The other border dispute between the two countries involves the northeastern Indian state of Arunachal Pradesh.Although China refers to Arunachal Pradesh as South Tibet principally because of its connections to the Tibetan Buddhist religion, the Indian government views it as a geographically integrated part of India.
The “Tibet Issue” was when things went wrong. Despite Tibet’s declaration of independence from China in 1913, China’s military invaded the territory in 1950 to retake and assert control. After all, the parties signed the Seventeen Point Agreement, and this was confirmed.The 14th Dalai Lama founded the Central Tibetan Administration after fleeing a rebellion in Tibet with some of his adherents. Atal Bihari Vajpayee, a former Indian prime minister, recognized Tibet Autonomous Region as a natural part of Chinese territory during his 2003 visit to Beijing. China, on the other hand, recognized Sikkim as a member of the Indian Union. China attacked India for allegedly giving the Dalai Lama a forum for his anti-Chinese actions concerning his exile. However, the Dalai Lama is still revered in India as a wise man and a revered figure.
The next issue is one that still is a bone contention between China and India (i.e) China’s String of Pearls. India has been concerned about geopolitical theory and its steadily expanding influence in the Indian Ocean for the past ten years. As a component of China’s new “Silk Route,” it entails the development of commercial ports in other nations. It has constructed ports in Africa, Sri Lanka, Bangladesh, Maldives, and other locations near the Indian Ocean. The disagreement over water between China and India is another significant issue. A source of disagreement between India and China is the Brahmaputra River, which originates as Tsangpo in Tibet and provides a substantial amount of water for northeast India’s industry and agriculture. The Chinese government’s ambitions to build numerous dams on the higher reaches of the Tsangpo, China’s name for the Brahmaputra, infuriated the Indian government.
Unbalanced trade is yet another urgent problem. In 1978, Sino-Indian trade relations were formally resumed, and six years later, the two countries signed the MFN pact. China continues to benefit slightly more from the adversely lopsided trade between the two countries. However, although some traders are making significant gains, several industries are being forced to shut down as a result of China’s import crisis. Pakistan’s CPEC, commonly known as several infrastructure projects being funded by China, is now under construction. Much to India’s dismay, it entails upgrading the Karakoram Highway in Pakistan-occupied Kashmir (POK). Along with these problems, China is building roads and railroads along the border at a rapid pace.
India and China have faced off many times in the last 50-60 years. These are-
On October 20, 1975, Chinese invading forces entered South Tulung-La in Arunachal Pradesh and opened fire, killing 4 Assam Riffle soldiers (jawans). The next significant battle after the war of 1962 was the Sumdorong Chu incident in 1987. In this instance, a war between the two countries was dangerously close to breaking out. As part of “Operation Falcon,” Army Chief General K. Sundarji sent a major force deployment to the China-India border to counteract Chinese aggression. Hathung La, which is located across the Namka Chu from Thag La, was occupied by these troops. A 21-day struggle erupted after the PLA intruded into Indian territory by 19 kilometres in the Depsang Bulge region of the DBO sector in Ladakh. During this time, soldiers camped out Province and practised flag drills. On April 15, 2013, a unit of 50 Chinese soldiers established a four-tent camp in the RakiNala valley, 30 kilometres southeast of Daulat Beg Oldi, at an elevation of 16,300 feet.
The Tibetan Chumbi Valley, Bhutan’s Ha Valley, and Sikkim all encircle Doklam. A 73-day conflict in the Bhutanese territory of Doklam near the trijunction of Sikkim, Bhutan, and Tibet started after Indian troops prevented Chinese soldiers from extending a road. The most recent confrontation however is in the Galwan Valley in 2020 where A Colonel and 20 different Indian army personnel were killed in a clash in Galwan Valley, which occurred in June 2020 along the contentious Ladakh border.
Sino-Indian Bilateral Agreements
Both of these nations have entered into several bilateral agreements, including the following, to repair their frayed diplomatic ties following the Sino-Indian War of 1962.1993 saw the signing of the Agreement on the Maintenance of Peace and Quiet. The governments of India and the People’s Republic of China signed an agreement on confidence-building measures in the military field along the line of actual control along the Sino-Indian border in 1996. As a result, during friendly border exercises, certain ammunition types are now subject to restrictions and military disclosure. The 2005 “Agreement about Political Parameters and Guiding Principles for the Settlement of the China-India Boundary Question” was passed by the governments of the two countries. 2012 saw the “adoption of the Establishment of a Working Mechanism for Consultation and Coordination on China-India Border Affairs”. China and India signed a “Border Defense Cooperation Agreement in 2013” to boost border interactions and lessen misunderstandings.
The 2020 stalemate has significantly altered the diplomatic ties between China and India. India responded by enforcing “Section 69A of the Information Technology Act”, of 2000, which resulted in the banning of 59 Chinese apps and apps of Chinese origin. There was a conscious response after the ban, with individuals claiming that the government had violated their right to access the internet and so violated Article 14. In the “Measures Affecting Cross Border Supply of Gambling and Betting Services” case, the appellate authority determined that international internet-based services also have the right to request entrance into a foreign market. Political or economic disputes between Members do not, by themselves, suffice to establish an emergency in international relations, it was determined in the landmark case concerning Ukraine and Russia. Even if “stare decisis” is not relevant, this ruling will be persuasive in resolving the disputes between India and China.
In addition to being a member of the UN Security Council, China occupies a dominant and strong position in the global economy. When it comes to its behaviour abroad, such as complying with treaty laws by filing petitions or dossiers, India has always taken a formal approach. This strategy is ineffective against China’s assertive approach, which is either conservative or in defiance of accepted customs and conventions. A treaty agreement is successful when the interpretations are favorable, and a successful foreign policy must first carry a conflict.
Author(s) Name: Saptarshi Deb (University of Burdwan, George school of Law Konnagar)
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