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Legal Aspects of the Sino-Indian Border Dispute

Published online by Cambridge University Press:  17 February 2009

L. C. Green
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Extract

The present dispute between India and the People's Republic of China concerning the frontier between those two countries was, to a great extent, touched off by the developments in relations between Tibet and China, although there had been certain recriminations concerning alleged frontier crossings as early as 1954. Furthermore, a large part of the dispute relates to the boundary as established in accordance with the so-called McMahon Line, resulting from the alleged “treaty” of Simla between the United Kingdom and Tibet of 1904. It is therefore advisable to examine the legal status of Tibet itself.

Type
On the Frontiers
Information
The China Quarterly , Volume 3 , September 1960 , pp. 42 - 58
Copyright
Copyright © The China Quarterly 1960

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References

1 SirBell, Charles, Tibet Past and Present (Oxford University Press, 1924), p. 69.Google Scholar Bell was for many years a confidant and adviser of the Dalai Lama.

2 See Oppenheim, , International Law, Vol. 1, 1920, s. 496aGoogle Scholar, on treaty-making by the British dominions. This is the first edition of Oppenheim to discuss the matter and points out that treaty-making powers may be delegated to self-governing portions of the state concerned. “Thus, the British self-governing Dominions negotiate and conclude tariff arrangements with foreign states, and the Imperial Government is not in the habit of interfering, unless general imperial interests, or treaty obligations undertaken by Great Britain towards foreign states are involved.” This was precisely China's position under the treaties considered here.

3 Italics added.

4 It is therefore irrelevant that the Dalai Lama may not have ratified this agreement, Li, T.-T., “The Legal Position of Tibet,” Vol. 50 American Journal of International Law, 1956, p. 400.CrossRefGoogle Scholar This article was intended as a reply to Alexandrowicz, C. H., “The Legal Position of Tibet,” 48Google ScholarIbid., 1954, p. 265. Maps attached to the Simla Convention will be found in Government of India, Atlas of the Northern Frontier of India, 1960, maps 21–24.Google Scholar

5 Li, loc. cit.

6 The texts of the Tibet treaties are reproduced in International Commission of Jurists, The Question of Tibet and the Rule of Law, 1959, pp. 105Google Scholaret seq. For the reason mentioned in the text, it is submitted that Li, loc. cit., note 4 above, exaggerates the significance of the 1907 agreement. The significance of Tibet, the McMahon Line, Sikkim, Bhutan, Nepal, Ari, Ladakh, and the like, from the point of view of the border problem, is discussed by Rubin, A. P., “The Sino-Indian Border Disputes,” 9 International and Comparative Law Quarterly, 1960, p. 96.CrossRefGoogle Scholar

7 The Times, 09 8, 1959.Google Scholar

8 The Grisbadarna Case (Norway and Sweden), 1909Google Scholar, Scott, , Hague Court Reports, 1916 p. 130.Google Scholar See also Schwarzenberger, G., International Law, Vol. 1, 1957, p. 318.Google Scholar

9 Government of India, Notes, Memoranda and Letters Exchanged and Agreements Signed between India and China, White Papers, I, 1954–1959Google Scholar; II, September to November. 1959; III, November, 1959 to March, 1960. I, p. 98. (Hereafter cited as I, II, and III.)

10 Letter from Nehru to Chou, December 14, 1958, I, p. 48.

11 Ibid. I, p. 56.

12 “The Use of Practical Geography Illustrated by Recent Frontier Operations,” 13 Geographical Journal, 1899, p. 469Google Scholar (cited by Jones, S. B., Boundary-Making, 1945, p. 103).Google Scholar

13 B.B.C. Monitoring Service, Summary of World Broadcasts, Part III, The Far East, 2nd Series, No. 248, February 2, 1960 (FE/248/A3/1).

14 The Times, 02 2, 1960.Google Scholar

15 Ibid.

16 I, p. 35.

17 Loc. cit., note 10 above, which also reproduces the minute made by Nehru “so that we might have a record of this talk for our personal and confidential use.”

18 Legal Status of Eastern Greenland, Series A/B 53 (1933)Google Scholar, Green, L. C., International Law Through The Cases, 1959, p. 139.Google Scholar

19 Reply from Chou to Nehru, January 23, 1959, I, p. 53.

20 Ibid. See also Chinese Note, September 1, 1959, II, p. 4.

21 See, e.g., letter from Nehru to Chou, March 23, 1959, I, p. 57, and Chinese Note, May 16, 1959: “In its relations with India, China has consistently adhered to the Five Principles of Peaceful Co-existence and worked for the development of friendly co-operation between the two countries,” I, p. 75.

22 Letter from Chou to Nehru, September 8, 1959, II, p. 27.

23 Ibid. p. 30.

24 For a discussion of some of the legal problems arising from the existence of enclaves, see World Court judgments on Sovereignty over Certain Frontier Land (Belgium and Netherlands), I.C.J. Reports, 1959, p. 209Google Scholar, and Right of Passage over Indian Territory (India and Portugal), I.C.J. Reports, 1960, p. 6.Google Scholar

25 Indian Note, August 19, 1959, I, p. 96.

26 Letter from Nehru to Chou, September 26, 1959, paras. 12 and 17, II, pp. 37 and 40.

27 Loc. cit., n. 22 above, II, pp. 29–30.

28 New Delhi, 1960, maps 3 and 6. For variations in Chinese maps since 1928, see maps 28–39.

29 Loc. cit., n. 26 above, para. 15, II, pp. 39–40.

30 Chinese Note, December 26, 1959, III, p. 72.

31 Indian Note, February 12, 1960, III, p. 94.

32 Indian Note, October 18, 1958, I, p. 26.

33 Chinese Note, October 25, 1959, II, p. 16: Letter from Nehru to Chou, November 16, 1959, III, p. 50.

34 Indian Note, February 12, 1960, III, p. 86.

35 Chinese Note, December 26, 1959, III, p. 66.

36 Indian Note, November 4, 1959, II, p. 20.

37 Letter from Nehru to Chou, November 16, 1959, III, p. 50.

38 Ibid. September 26, 1959, II, p. 45.

39 Basu, D. D., Commentary on the Constitution of India, 1956, Vol. 2, pp. 593Google Scholaret seq. See, also, The Times, 04 19, 05 15, 1954.Google Scholar

40 See text to n. 8 above.

41 The Times, 05 28, 1956 (italics added).Google Scholar

42 I.C.J. Reports, 1951, p. 116, at p. 142Google Scholar; Green, , op. cit., n. 18 above, at pp. 389–390.Google Scholar

43 Cmnd. 584 (1958), p. 20.

44 Permanent Court of Arbitration, 2 United Nations, Reports of International Arbitral Awards, at pp. 852–854, 859–862Google Scholar; Green, , op. cit., p. 356.Google Scholar

45 2 Ibid. p. 1325; Green, , op. cit., p. 367.Google Scholar

46 Loc. cit., n. 18 above, Green, , op. cit., p. 131.Google Scholar

47 See Jones, , op. cit., n. 12 above, pp. 7–8.Google Scholar

48 (1927) 43 T.L.R. 289; Green, , op. cit., p. 373, at p. 374.Google Scholar

49 Cf. Jones, , op. cit., p. 101.Google Scholar

50 Indian Note, February 12, 1960, III, p. 89.

51 I.C.J. Reports, 1953, p. 47Google Scholar; Green, , op. cit., p. 8.Google Scholar

52 Indian Note, February 12, 1960, III, p. 93.

53 See text to n. 37 above.

54 Chinese Note, December 26, 1959, III, p. 73.