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The India-China Border Dispute: An Indian Perspective*

Published online by Cambridge University Press:  28 March 2017

Surya P. Sharma
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International law recognizes that boundaries are fundamental to the bases of national power and therefore projects various prescriptions for their protection as the demarcation lines of territorial integrity and exclusive control. By far the most important principle is that prohibiting the use of coercion in reshaping boundaries. This principle assumes, however, the effective application of other principles or norms for establishing and identifying boundaries. Fundamental general community policies require that states do not employ coercion in the settlement of boundary disputes, but rather make positive efforts to honor reasonable demands and expectations of other states concerning their political independence and territorial sovereignty. Effective implementation of these policies can be achieved only when states refrain from unilateral imposition of territorial claims upon other states and assert their freedom of decision in a way not to interfere with a comparable freedom of others.

Type
Research Article
Information
American Journal of International Law , Volume 59 , Issue 1 , January 1965 , pp. 16 - 47
Copyright
Copyright © American Society of International Law 1965 

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Footnotes

*

The author is an Associate Research Professor at the Indian Law Institute, and is lecturing at the Indian Academy of International Law and Diplomacy, New Delhi. He is indebted to Professor Myres S. McDougal of the Tale Law School for his generous assistance in the preparation of this article. The responsibility for the views expressed herein is, however, the author’s alone.

References

1 The most authoritative contemporary expression of this principle is found in the IT.N. Charter, especially under Art. 2, part. 3 and 4. The United Nations also provides “certain procedures which might be used for establishing as a legal principle the invalidity of title to territory acquired by conquest or by the threat or use of force.“ Briggs, The Law of Nations 252 (2nd ed., 1952).

2 Other principles are mostly grounded in time-honored authoritative prescriptions and policies relating to following the boundary treaties and conventions, relying upon established historical possession, conforming boundaries to the natural and geographical features, and so forth. See generally, Boggs, International Boundaries (1940); Jones, Hand Book on Boundary-Making (1945); material cited in Briggs, op. cit. note 1 above, at 239-252; Jennings, The Acquisition of Territory in International Law (1963); Adami, National Frontiers in Relation to International Law, trans. T. T. Behrens (Oxford, 1927); McMahon, “International Boundaries,” 84 Journal of Royal Society of Arts 2 (1935-36).

3 Territorial sovereignty embraces in general: “ a situation recognized anddelimited in space, either by so-called natural frontiers as recognized by international law or by outward signs of delimitation that are undisputed, or else by legal engagements entered into between interested neighbors, such as frontier conventions, or by acts of recognition of States within fixed boundaries.” The Island of Palmas (Miangas) Arbitration, 2 Int. Arb. Awards 838, 22 A.J.I.L. 815 (1928). 16

4 For facts concerning specific claims made, as well as evidence presented in support of the various claims by India and China, consult, generally, Government of India: Notes, Memoranda and Letters exchanged and Agreements signed between the Government of India and China, White Paper I, 1954-59; White Paper II, Sept.Nov. 1959; White Paper III, Nov. 1959-March 1960; White Paper IV, March 1960-Nov. 1960; White Paper V, Nov. 1960-Nov. 1961; White Paper VI, Nov. 1961-July 1962; White Paper VII, July 1962-Oct. 1962; White Paper VIII, Oct. 1962-Jan. 1963; White Paper IX, Jan. 1963-July, 1963; hereinafter cited as White Paper I, II, et seq.; also Government of India, Report of the Officials of the Government of India and the People's Republic of China on the Boundary Question, Feb. 1961, hereafter cited as Report.

5 Report at 71. The Central Sector of the boundary between Tibet and India is the frontier of Uttar Pradesh, Himachal Pradesh and the Punjab States in north India.

6 Six border passes (specified in the Agreement between China and India on Trade and Intercourse, 1954, Lok Sabha Secretariat, Foreign Policy of India, Text of Documents, 1947-58, p. 87 (1958)) are Shipki, Mana, Niti, Kungri, Bingri, Darma, and Lipu Lekh. Specific places under controversy include: Spiti area (Chuva and Chuji), Shipki Pass, Nilang-Jadhang area (Sang and Tsungsha), Barahoti (Wu-je), Sangchamalla and Lapthal. Report, at CE-39.

7 White Paper IV, at 100.

8 See Report at 1-2.

9 The Chinese claims in this area include the greater part of Aksai Chin, a part of Chang-Chenmo Valley (Pangong Area), a small part of the territory near Khurnak, the Demchok or Parigas area. White Paper III, at 66-67.

10 Fuller development is given by the author elsewhere. Sharma, ‘ ‘ The Chinese Recourse to Force Against India: A Case Study in Peaceful Coexistence,” 2 Philippine International Law Journal 107-115 (1963).

11 See White Paper I, at 49-51; White Paper II, at 30.

12 See Statement of the Chinese Government, Nov. 21, 1962, White Paper VIII, at 17. For discussion on the issue of lawfulness of the Chinese resort to force, see note 10 above, at 115 ff.

13 Rubin, in “The Sino-Indian Border Disputes” (9 Int. and Comp. L.Q. 96 (I960)), assumes that “ i t would seem unwise to rely … on the relations apparently set up by the relevant treaties between the British and the border polities… . “ (Ibid. at 105.) His treatment of the subject (ibid, at 104-105) not only underestimates the functional value of international agreements which are the most persuasive source for proving rights concerning existing boundaries, but also comes perilously close to emasculating the basic community policy of achieving stability in the shared expectations of the parties to those relevant agreements. Fundamental policies concerning the honoring of agreements have been recently reiterated in the decision of the International Court of Justice in the Case Concerning the Temple of Preah Vihear (Cambodia v. Thailand), Merits, [1962] I.C.J. Rep. 34, 42; 56 A.J.I.L. 1033 (1962). How rights derived from treaties prevail over acts of sovereignty is well established in the Case Concerning Sovereignty over Certain Frontier Land (Belgium v. Netherlands), [1959] I.C.J. Rep. 227-229; 53 A.J.I.L. 937 (1959).

14 White Paper I, at 49-50.

15 Full texts are given in The Sino-Indian Boundary—Texts of Treaties, Agreements and Certain Exchange of Notes Relating to the Sino-Indian Boundary 1-3 (The Indian Society of International Law, 1962).

16 White Paper III, at 86.

17 White Paper IV, at 11.

18 For general discussion, see Bell, Tibet: Past and Present 154 et seq. (1924).

19 The boundary was described by Art. 9 of the Convention: ” For the purpose of the present Convention the borders of Tibet, and the boundary between Outer and Inner Tibet, shall be as shown in red and blue respectively on the map attached hereto.” Op. cit. note 15 above, at 38.

20 For an elaborate account, consult White Paper II, at 37-41; White Paper III , at 94-97; Report at 110-115.

21 See generally, White Paper II , at 29-31; White Paper III , at 63-66;- White Paper IV, at 9, 12-14; Report at CR-19-CR-28

22 Lacking a definitive set of criteria for membership in the community of nations, the Harvard Research (Research in International Law, Draft Convention on the Law of Treaties—Comment, Art. 2 ( a ) , 29 A.J.I.L. Supp. 703 (1935)) lays down that the precise application of the term “ state “ (meaning a member of the community of nations) can be decided upon only with reference to a particular set of facts. Lissitzyn's formulation may also be noted: ” It may, indeed, be doubted that international law contains any objective criteria of international personality or treaty-making capacity. The very act or practice of entering into international agreements is sometimes the only test that can be applied to determine whether an entity has such personality or capacity, or, indeed, ‘statehood.’ “ Lissitzyn, ‘ ‘ Efforts to Codify or Restate the Law of Treaties,'’ 62 Columbia Law Review 1183 (1962).

23 Tibet was an independent state under the rule of the Dalai Lama before it became a vassal of China. In the autumn of 1911 Chinese power in Tibet came to an end. With the breakdown of the Manchu Dynasty, Chinese troops in Tibet revolted and, by 1912, had been ousted in toto. The results are correctly stated by the International Commission of Jurists: ’ ‘ Tibet's position on the expulsion of the Chinese in 1912 can fairly be described as one of de facto independence and there are … strong legal grounds for thinking that any form of legal subservience to China had vanished. It is therefore submitted that the events of 1911-1912 mark the re-emergence of Tibet as a fully sovereign state, independent in fact and in law of Chinese control.” The Question of Tibet and the Rule of Law 85 (1959). Appadorai et al. consider Tibet's declaration of its independence in 1912 as having “legal validity in international law similar to that of the declaration of Bulgaria of 1908 terminating Turkish suzerainty over it . “ “Bases of India's Title on the North- East Frontier,” 1 International Studies 362-363 (April, 1960). See also the opinion of Alexandrowicz that, in view of the developments of 1911, the Suzerain-Vassal relationship between the Dalai Lama and the Chinese Emperors must have come to an end. “Comment on the Legal Position of Tibet,” 5 Indian Year Book of International Affairs 172-173 (1956); idem, “ The Legal Position of Tibet,” 48 A.J.I.L. 270 (1954). In contrast, see Tieh-Tseng Li, 50 A.J.I.L. 394-404 (1956).

24 The earliest relevant agreement concluded by Tibet was in 1684 (note 15 above). A tripartite treaty was signed in 1842 between the Raja of Jammu, the Government of China and the Government of Tibet, all acting as sovereign, independent states (ibid.). This shows that some seventy-two years before the Simla Conference Tibet signed a treaty as an independent Power on the traditional boundaries between Ladakh and Tibet, the very matters at issue at the Simla Conference. In 1856, Nepal concluded a bilateral treaty with Tibet, Tibet again acting as an independent sovereign Power. (See International Commission of Jurists, op. ait. note 23 above, at 76.) Tibet signed a separate treaty with Britain in 1904. Indeed, the year 1904 saw Tibet passing to very real and independent participation in foreign affairs. Only after this bilateral Tibetan- British Agreement of 1904 did Tibet undertake to honor the terms of treaties which China made in 1890 and 1893 with Britain concerning Tibet. (See the Preamble, Arts. I and II of the 1904 Convention, text ibid, at 110; 1 A.J.I.L. Supp. 80 (1907).) In fact, the Convention of 1906 concluded between Great Britain and China referred to the refusal of Tibet to recognize the validity of the Anglo-Chinese Convention of March 17, 1890, and Regulations of Dec. 5, 1893, and affirmed the initial and continuing validity of the 1904 Convention. (Commission of Jurists, op. cit. at 113; 1 A.J.I.L. Supp. 78 (1907).) Commenting on the Agreement of 1904, the International Commision of Jurists states that it leaves small room for doubt that “the Tibetan Government could in fact at this time act independently of China without let or hindrance“ (op. cit. at 79). In 1908 a new agreement to settle the trade matters undecided by the Conventions of 1893 and 1904 was concluded between China, Britain and Tibet. It is significant to notice that Tibet was a party to this agreement and that in Arts. 4 and 8 emphasis was made upon “Tibetan subjects” as distinguished from the “Chinese subjects.” This shows that Tibet played a decisive r61e in making the agreement (see ibid, at 82-83). Drawing on the treaty practice of Tibet with India, Krishna Rao (in “The Sino-Indian Boundary Question and International Law,” 11 Int. and Comp. L.Q. 395 (1962)) makes a point that there does not appear to be any treaty between Tibet and China prohibiting the former from “entering into any treaty relations with other entities.“

25 See, for instance, Art. 3, par. 1, of the Draft Articles on the Law of Treaties prepared by the International Law Commission, which states that “capacity to conclude treaties under international law is possessed by states and by other subjects of international law.” 57 A.J.I.L. 203-204 (1963). See also Art. 2(a) and 3, Harvard Research, loc. cit. note 22 above, at 703 and 705. A large number of cases, illustrating competence of entities not having all ingredients of statehood to enter into treaty relations, are reported in current literature. See especially ibid, at 699, 700, 706; Lissitzyn, loc. cit. note 22 above, at 1183.

26 See International Commission of Jurists, op. cit. note 23 above, at 79 and 80. See also, for related discussion, ibid., Tibet and the Chinese People's Republic 149-161 (1960). A Convention between Great Britain and Russia in 1907 (1 A.J.I.L. Supp. 398 at 403 (1907)), which contained an undertaking of the signatories to negotiate with Tibet through the intermediary of China only, has been invoked to provide legal evidence of Chinese suzerainty over Tibet (White Paper III, at 64). This contention lacks persuasiveness because neither Tibet nor China were parties to this Convention. Cf. Green, “Legal Aspects of the Sino-Indian Border Dispute,” The China Quarterly 43 (July-Sept. 1960, No. 3).

27 Even an impressionistic recall of some of the facts and their contexts would confirm this. On June 4, 1913, the President of China expressed acceptance of the tripartite Simla Conference. The Foreign Minister of China wrote to the British representative on Aug. 7, 1913, that the Chinese plenipotentiary would proceed to India ” t o open negotiations for a treaty jointly” with the Tibetan and British plenipotentiaries (Report, at 114). The credentials of the three plenipotentiaries stated that the Conference was to discuss all matters regarding Tibet. Moreover, at the 7th meeting on April 22, 1914, the British representative clarified that the draft convention referred both to the Sino-Tibetan frontier in the east and the Indo-Tibetan frontier on the south (ibid, at 112).

28 Art. 11; see note 15 above, at 38.

29 For a more complete general inquiry, see Lissitzyn, loc. cit. note 22 above, at 1166 et seq.

30 See note 14 above. See also discussion in Sec. V below.

31 See note 18 above, at 156. In its memoranda of April 25, May 1, and June 13, 1914, and May 30, 1919, the Chinese Government noted that it did not accept the delimited Tibetan-Chinese border, but made no mention of the Tibetan-Indian border on the McMahon Line. Report, at 135.

32 Bell, op. cit. note 18 above, at 156.

33 The Tibetans reaffirmed the McMahon Line in 1936 and 1938, and respected it during all these years. See White Paper III, at 96.

34 Report, at CR-20 and CR-24,

35 Op. cit. note 15 above, at 34.

36 See 1 Oppenheim, International Law 802-803 (7th ed., Lauterpacht, 1948).

37 Harvard Research, loc. cit. note 22 above, at 1159-1161.

38 White Paper I, at 49-50. To be sure, this statement referred to the line between China and Burma, as well as between India and China.

39 ‘ ‘ There may be an international agreement, but there may be no instrument embodying it—i.e., it is an oral agreement, made for example, between heads of States or Governments … “ 1959 I.L.C. Yr.Bk. (“Vol. II) 94. See also Judge Jessup, in South West Africa Cases, [1962] I.C.J.Rep. 402-405.

40 P.C.I.J., Ser. A/B, No. 53, at 71 (1933). The declaration of the Norwegian Foreign Minister stated that the plans of the Danish Government respecting Danish dissovereignty over Eastern Greenland would meet with no difficulties on the part of Norway. A Minute of the declaration had been prepared and initialed by the Norwegian Government, but the Court treated this as being of no greater significance than a mere verbal declaration. See McDougal and Lans, “Treaties and Executive Agreements,“ 54 Yale Law Journal 322, note 78 (1945). Thus, the fact that a Minute is not initialed does not affect the binding nature of the oral declaration.

41 See note 6 above. India also rests its claims as to the boundary between Tibet and India in the Spiti area on the agreements of 1684 and 1842, which are discussed in connection with the Western Sector, note 15 above. The boundary in the Barahoti area is supported by diplomatic correspondence and exchanges in 1889-1890, and in 1914. Report, at 84.

42 White Paper III, at 74.

43 Lok Sabha Secretariat, Foreign Policy of India, op. cit. note 6 above, at 87.

44 White Paper II, at 37.

45 See note 124 below.

46 Although this treaty has expired (on June 2, 1962) for the purpose of trade and intercourse, its terms exhibited very clearly the understanding of the Chinese as to the location of the boundary.

47 Government of India, Ministry of External Affairs, Summary of the Report of the Officials of the Government of India and the People's Republic of China, at 7-8.

48 For an extended discussion, see Alexandrowicz, ‘ ‘ India's Himalyan Dependencies,'' 10 YearBook of “World Affairs 128 (1960).

49 The text of the treaty is given in Bell, op. cit. note 18 above, at 280.

50 Art. 1 laid down that: ‘ ‘ The boundary of Sikkim and Tibet shall be the crest of the mountain range separating the waters flowing into the Sikkim Teesta and its affluents from the waters flowing into the Tibetan Mochu and northwards into other rivers of Tibet… . “ Ibid. The Chinese Government, in its note of Dec. 26, 1959, accepted this identification of the boundary and stated that “there is neither any discrepancy between the maps nor any dispute in practice.” White Paper III, at 79.

51 White Paper I, at 55.

52 See International Commission of Jurists, op. cit. note 23 above, at 110; 1 A.J.I.L. Supp. 80 (1907). It was again confirmed by the Anglo-Chinese Convention of 1906 (1 A.J.I.L. Supp. 78 (1907)), and the Simla Convention of 1914. International Commission of Jurists, op. cit. 113, 124-127.

53 For the text of the treaty, see Lok Sabha Secretariat, Foreign Policy of India, op. cit. note 6 above, at 25-30,

54 For a detailed discussion of the Agreement, see Bell, op. cit. note 18 above, at 99- 106. References to earlier treaties are found in Aitchison, A Collection of Treaties, Engagements and Sanads Relating to India and Neighboring Countries, Vol. XIV, p. 81 et seq. (1929).

55 For text, see 2 Indian Year Book of International Affairs 295-298 (1952).

56 Additional evidence of China's acceptance of India's responsibilities towards Bhutan can be afforded by the fact that the Indian Government has taken up a number of matters with the Chinese Government on behalf of Bhutan, including the delineation of Bhutan's external boundaries. Report, at 199.

57 See Report, at 51.

58 See notes 70 and 71 below.

59 Op. cit. note 15 above, at 1.

60 Indeed, treaties may be concluded in any form which serves to express the intentions of the negotiating parties. See Pradier-Fodéré, TraitS de Droit International, Secs 1071 and 1084 (1885), cited in Harvard Research, loc. cit. note 22 above, at 722-723. As to location of the boundary, see note 96 below.

61 Minsar, the sovereignty of which under the provisions of the agreement was retained by Ladakh, was at first administered by the latter and, since 1841, when Gulab Singh annexed Ladakh, has been under the jurisdiction of the Kashmir Government. Similarly, other provisions of the treaty, particularly those relating to trade and the exchange of the Lapchak and Chaba Missions, have remained operative. Report, at 52.

62 “White Paper II, at 35-36; White Paper III, at 86-89.

63 White Paper II, at 28.

64 The names of the signatories representing the Emperor of China and Lama Guru Sahab of Lhassa were, respectively, Kalon Sakon and Depon Shabeho Bakshi.

65 White Paper II, at 35.

66 Op. cit. note 23 above, at 76.

67 White Paper II, at 36.

68 Ibid.

69 Report, at 54. A translation of the treaty is provided in Panikkar, The Founding of the Kashmir State 146-148 (1953).

70 See note 59 above.

71 Cunningham, Ladakh 261 (1854). See note 96 below. Prime Minister Chou En-lai cited Cunningham with approval, though in a different context. See White Paper II, at 29.

72 See note 96 below.

73 For a survey of these requirements, see generally, Schwarzenberger, “Title to Territory: Response to a Challenge,” 51 A.J.I.L. 308 (1957); MacGibbon, “ The Scope of Acquiescence in International Law,” 31 Brit. Tr. Bk. Int. Law 152-167 (1954).

74 See note 3 above, 2 Int. Arb. Awards 839.

75 Ibid . at 840.

76 Briggs , op. cit. note 1 above, at 247, 249-250; 26 A.J.I.L. 390 (1932).

77 Ser. A/B, No. 53, p. 46 (1933).

78 [1953] I.C.J. Rep. 53, 78, 98-99; 48 A.J.I.L. 316 (1954).

79 [1959] I.C.J. Rep. 229; 53 A.J.I.L. 937 (1959).

80 See The Island of Palmas Arbitration, note 3 above, 2 Int. Arb. Awards 840. See also [1959] I.C.J. Rep. 229.

81 A comprehensive itemization of the evidence presented by India is documented in White Paper II, at 19-24, 36-46, 125-132; White Paper III , at 85-98; Report, at 4 1 - 50, 71-83, 101-109, 137-287, 302-309, 318-328, 332-338.

82 See generally, Report, at CE-33-CB-154, CR-198-CE-213. For references to the inconsistencies in, and inadequacy of, the Chinese evidence, see Summary of the Report, op. cit., note 47 above, at 4-7.

83 The Mahabharata and Ramayana, both probably dating to 400 B.C., speak of the activities of tribes that are Indians to this day. After the period of the Epics, we have firmer historical evidence to prove the consolidation of Indian rule in Northern India. At times, the consolidation stretched even beyond the Himalayas, variously including certain Central Asian provinces as Kashgar, Yarkand and Khotan, and extending as far as the borders of Parthia and Persia, e.g., during the Khusan Empire in the first century A.D. For centuries, the Hindu dynasties held sway over Eastern India. In the thirteenth century it passed to the Ahom rulers who controlled the entire area (Assam) until the emergence of the Britishers. See White Paper II , at 125-130. For a useful list of authorities supporting the proposition that the limits of Tibet have lain along the high Himalayan range, see Report, at 104-107.

84 British India entered into many agreements with the Indian tribes of Assam, involving peace, economic aid and administrative matters. These undertakings by tribes confirmed their acceptance of the authority of the Indian Government. An agreement with the leaders of the Aka Tribe was concluded in 1888; with the Abors three treaties were signed between November, 1862, and January, 1863, and the fourth in 1866. Further evidence of the establishment and consolidation of British control in the Eastern Sector can be provided by the fact that during the period 1912-1932 two frontier tracts, Sadiya Frontier Tract, nearly 10,000 square miles in area, and the Balipura Frontier Tract of the same size, were formed before the Simla Conference in 1914. Later, in 1942, a new Tirap Frontier Tract was carved out of the Sadiya Frontier Tract and the Balipura Frontier Tract was divided into two divisions, the Abor Hills and Mishmi Hills. In 1954 the frontier divisions were identified as Kameng, Subansiri, Siang, Lohit, Tirap and Tuensang. In 1957 Tuensang was united with the Naga Hills District; both are now parts of the new Naga State.

85 For a full documentation, see Report, at 202-206.

86 A good account of the immense constructive work leading to a rise in the level of living standards of the NEFA people, which is seeping up in all tribal areas, can be found in Verrier Elwin, A Philosophy for NEFA (1959). For a review of welfare activities in this area during the British period, see Report, at 208-209.

87 Christopher von Furer-Haimendorf, “Primitive Peoples of the McMahon Line Country: Tribal Life in a Territory Now Claimed by China,” 236 The Illustrated London News 94 ( J a n . 16, 1950).

88 Peking Review, Sept. 15, 1959, p. 18.

89 White Paper III, at 72.

90 See note 6 above. Evidence presented by India with respect to these specific places can be found in Report, at 71-83 and 165-198. For the Chinese evidence, see Report, at CB-39-CE-43 and CE-83-CE-90.

91 Ibid. at 199.

92 Ibid.

93 Ladakh was part of the Harsha Empire in the seventh century A.D. The account of the noted Chinese pilgrim Hieun Tsang about his extensive travels in Northern India at that time included a spirited reference to the State of Kashmir and Ladakh. For a brief description of the subsequent history, see White Paper II, at 128-130.

94 The Tibetan influence during this time was devoid of any authority and control. In fact after the tenth century, Tibetan influence sharply declined, never to return, and Kashmiri influences assumed the responsibility for control and authority. A Tibetan chronicle of the 17th century (La Dvags Rgyal JSahs) establishes that in the tenth century the boundary between Ladakh and Tibet was identified as shown by the current Indian maps. See Report, at 41-42.

95 See note 15 above.

96 Cunningham, op. cit. note 71 above, at 328-329. For accounts of other travelers, see Report, at 43-44.

97 See ibid., at 44-45.

98 A detailed account of these activities appears ibid., at 47-50.

99 For an informative description of facts about India's administrative jurisdiction comprising collection of revenue, maintenance of trade routes, control of expenditures, maintenance of law and order, conduct of surveys, etc., see ibid, at 137-151.

100 See notes 74-80 above.

101 [1959] I.C.J. Rep. at 227-229.

102 In the face of such a rationality and clarity in community expectations, one can only marvel at Bains’ suggestion (in India's International Disputes at 162 et seq. (1962)) that China's occupation by force of the Aksai area has given it a prescriptive title. His speculations have been appropriately answered by Krishna Rao, “Title to Territory,” 2 Indian Journal of International Law 200-210 (1962). See also note 108 below.

103 6 More, International Adjudications (Modern Series) 95 (1933). See also the dissents in the Anglo-Norwegian Fisheries Case, [1951] I.C.J. Rep. 180, 201, 204.

104 Proceedings of the Alaskan Boundary Tribunal, Vol. VII, pp. 531and 533.

105 Island of Palmas Arbitration; Memorandum of the United States of America, p. 94.

106 3 int. Arb. Awards 1567 (U.N. Series).

107 Briggs, op. cit. note 1 above, at 250.

108 The fact that India has repeatedly protested would appear to rebut any presumption of acquiescence and prevent China from acquiring “prescriptive” title in Aksai Chin. For general inquiry, see MacGibbon, “Protest in International Law,“ 30 Brit. Yr. Bk. Int. Law 306 ff. (1953).

109 The policies underlying the notions of “acquiescence,” “estoppel,” and “prescription“ are of course much the same, but while “acquiescence” and “estoppel“ build largely from agreement or implied agreement, “prescription” builds upon inferences from the lapse of time. For general discussion, see McDougal, Lasswell and Vlasic, Law and Public Order in Space (1963), especially Ch. 7.

110 MacGibbon, loc. cit. note 73 above, at 145. A brilliant exposition of the doctrine of acquiescence is also found in the separate opinions of Judges Alfaro and Fitzmaurice in Temple of Preah Vihear (Merits), [1962] I.C.J. Rep. 39-66.

111 See MacGibbon, “Estoppel in International Law,” 7 Int. and Comp. L.Q. 468 (1958).

112 E.g.,,see Schwarzenberger, “The Fundamental Principles of International Law,“ 87 Hague Academy Recueil des Cours 256 (1955).

113 Schwarzenberger, loc. cit. note 73 above, at 323.

114 There is no general agreement in international law about the time requirement for “prescription” or “acquiescence,” which seems to depend upon many varying circumstances. See generally, Johnson, “Acquisitive Prescription in International Law,“ 27 Brit. Yr. Bk. Int. Law 334 (1950); Jennings, op. cit. note 2 above, at 21. See also Judge de Visscher, in Norwegian Fisheries Case, [1950] I.C.J. Rep. 130; Italy (Gentini) v. Venezuela, cited in Bishop, International Law, Cases and Materials 44 (2nd ed., 1962).

115 Details are offered in White Paper II, at 40; Report, at 207.

116 These and several other Chinese maps since 1711, showing the boundary alignment in the Eastern Sector more or less identical to the ones shown on Indian maps, are listed in Report, at 107-108.

117 A catalogue of these maps is given ibid., at 109. While India has relied on such maps as evidence of tradition, China maintains that they “cannot serve as valid evidence.“ Ibid,., at CB-61. In the Minquiers and Ecrehos Case, [1953] I.C.J. Rep. 47 at 105, Judge Levi Carneiro attached “slight value” to unofficial neutral maps. Weissberg, “Maps as Evidence in International Boundary Disputes: A Reappraisal,“ 57 A.J.I.L. 787 and 803 (1963).

118 [1959] I.C.J. Rep. 227; see also [1962] I.C.J. Rep. 23.

119 Hyde, “Maps as Evidence in International Law,” 27 A.J.I.L. 315-316 (1933); see also The Canada-Newfoundland Boundary Dispute, 137 L.T.R. 187, 199.

120 Weissberg, loc. cit. note 117 above, at 803; see also MacGibbon, loc. cit. note 73 above, at 180-181.

121 white Paper III, at 72. As for Bhutan and Sikkim, see ibid, at 79.

122 A list of these maps appears in Report at 149-150. For an elaborate account of surveys carried out by the Government of India since 1862, see ibid, at 143-147.

123 E.g., several editions of Postal Atlas of China published between 1917 and 1933.

124 An inquiry into all the relevant comprehensive features of this agreement shows that there was no reference, explicit or implied, by China to its claims over the large Indian territory as it is now asserted. Throughout the negotiations the Indian Delegation took the line that all questions at issue between the two countries were being considered and, as a settlement was made, there was no room for any dispute—a dispute which China now asserts remained unsettled. After signing the agreement, the leader of the Indian Delegation, in his speech on April 29, 1954, declared: “we have gone through fully questions at issue between the two countries in this (Tibetan) region.“ This indicated that in India's view no dispute remained. Since the Indian viewpoint about the boundary was known to China, and since no objection of any sort was raised by it, it could be inferred that China had no disagreement therewith. The Chinese assertion that the boundary question could not have been discussed in 1954 because at that time “the question which the two countries were most concerned about and which called for urgent solution was the establishment of normal relations between India and the Tibet region of China on a new basis” (White Paper III, at 74), is hardly tenable. Could the Chinese establish normal relations, if the border claims of about 50,000 square miles, as they are asserted today, were unresolved and unexplored? This indicates that China did not think then, as it asserts now, that there was any border problem.

125 Report, at 97.

126 See White Paper I, at 49.

127 See note 38 above.

128 Witenberg, 60 Journal du Droit International 529, 531, 537-538 (1933).

129 La Prescription en droit international 26 (1934).

130 Anzilotti, Cours de droit international 344 (French trans, by Gidel, 1929).

131 Ibid.

132 56 A.J.I.L. 1033 (1962); [1962] I.C.J. Rep. 6.

133 Ibid. at 27-31.

134 Ibid, at 31 and 32; also at 23.

135 The Alaskan Boundary Tribunal: Award of 20 October 1903, Cmd. 1877 (1904), p. 79. See also Cmd. 2166 (1904), p. 4; Grisbadarna Arbitration, 4 A.J.I.L. 226 ff. (1910); Island of Palmas Arbitration, note 3 above, 2 Int. Arb. Awards 843.

136 2 Int. Arb. Awards 1309, 1327 (U.N. Series).

137 [1951] I.C.J. Sep. 116, 144, 154, 188, 194-195, 197 et seq. The fact that for a period of” more than sixty years there was no protest from the United Kingdom weighed heavily with the Court.

138 [1959] I.C.J. Rep. 230; see also the Case Concerning the Arbitral Award Made by the King of Spain on 23 December 1906 (Honduras v. Nicaragua), [1960] I.C.J. Rep. 192, 207, 213; 55 A.J.I.L. 478 (1961). In the face of such a wide consensus, the Chinese contention that silence does not mean acquiescence, and that the rule of estoppel is “absurd “ (Report, at CE-31 and 99) appears at least idiosyncratic; moreover, the attempted justification: “Can it be said that a sovereign state has no right to reserve its proposition concerning questions of its own sovereignty and to raise it on suitable occasions?” ﹛ibid, at CE-31), appears to be destructive of the basic policy of “certainty, stability, and finality of frontiers.“

139 Peking Review, Sept. 15, 1959, at 11; see also White Paper III, at 69.

140 For a brief description of the Indian claim, see White Paper III, at 89; Report at 38-39.

141 Thomas Holdich, Political Frontiers and Boundary Making 147 (1916).

142 1 Moore, Digest of International Law 616 (1906).

143 Le droit international coding (Paris, 1874), cited by Adami, op. cit. note 2 above, at 8.

144 Ibid.

145 Taylor, A Treatise on Public International Law 298-299 (1901).

146 l Oppenheim, International Law 534 (1955).

147 See Adami, op. cit. note 2 above at 9, note 1.

148 Boggs, op. cit. note 2 above, at 75; Ireland, Boundaries, Possessions and Conflicts in South America 138 (1938).

149 Boggs, op. cit.; Ireland, op. cit. 144, 152.

150 Boggs, op. cit.; Ireland, op. cit. 17, 20.

151 See Adami, op. cit. note 2 above at 9, note 2.

152 Ibid. at 9.

153 Document of delimitation signed at Bayonne on July 11, 1868. Ibid., note 1.

154 Art. 1. See Bell, op. cit. note 18 above, at 280-281. Krishna Rao, loc. cit. note 24 above, at 407, lists a few more such agreements.

155 Boundary Treaty Between the People's Republic of China and the Kingdom of Nepal, 1960. Text in 1 Indian Journal of Int. Law 704 (1961).

156 Boundary Treaty Between the People's Republic of China and the Union of Burma, 1960 (text ioia. at 695).

157 McNair, Law of Treaties 538 (1st ed., 1938); see also idem, 256, 655-658 (2nd ed., 1961). And see Art. 44, par. 3(a), of the Draft Articles on the Law of Treaties prepared by the International Law Commission, which excepts treaties fixing a boundary from the operation of the rule of refus sic stantibus. The Commentary states that in the Free Zones case both states appear to have recognized this, as do most writers. 58 A.J.I.L. 283, 290 (1964).

158 For instance, Chesney Hill, The Doctrine of “Rebus Sic Stantibus” in International Law, 9 University of Missouri Studies 78 (1934).

159 Art. 28(a), Harvard Research, loc. cit. note 22 above, at 1096. A Swiss Federal Court decision demanding that a party invoking clausula rebus sic stantibus must invoke it within a certain established time from the change being perceived, adds one more limitation. Annual Digest, 1927-28, Case No. 289.

160 McDougal and Associates, Studies in World Public Order 1014 (1960).

161 Starke, Introduction to International Law 240-241 (ed. 1958). See also Wright, “Some Legal Aspects of the Berlin Crisis,” 55 A.J.I.L. 963 (1961).

162 This communication was made on March 24, 1914. See India-Tibetan Frontier (1914), Exchange of notes between British and Tibetan plenipotentiaries, note 15 above, at 33.

163 Ibid. at 34.

164 McDougal and Associates, op. cit. note 160 above, at 1014.

165 Second Report on Law of Treaties to the General Assembly, 1957 I.L.C. Year P.ook (Vol. 2) 57.

166 Foramplification, see White Paper II , at 27; White Paper III , at 63.

167 2 Hyde, International Law Chiefly as Interpreted and Applied by the United States 1523-1524 (2nd ed., 1945).

168 Op. cit. note 142 above, at 249.

169 Art. 24. Loc. cit. note 22 above, at 1044

170 22 A.J.I.L. 763 (1928). Reference may also be made to the action of the Second all-Russian Congress of Soviets on Oct. 25, 1917, which annulled certain treaties “ in so far as they tend to the augmentation of the profits and the privileges of the Russian capitalists.” The Soviet memorial at the Genoa Conference on April 20, 1922, spoke of the break of succession of only those civil obligations “which were component elements of the economic relations of the social order now extinct.” See Harvard Research, loc. cit. note 22 above, at 1052.

171 Some of these agreements are listed ibid, at 1053.

172 1 Moore, op. cit. note 142 above, at 303-304. See also U.S. v. Texas, 173 U.S.621.

173 See Indian Independence (International Arrangements) Order of 1947; text in U.N. Doc. A/C.6/161, Oct. 6, 1947. See also legal opinion of Dr. Ivan Kerno, Assistant Secretary General of the United Nations, stating that Pakistan, as a new state, will not have the treaty rights and obligations of the old state. Briggs, op. cit. note 1 above, at 924-925.

174 White Paper II, at 39