Mohit Kumar,
IV Year, BA LLB. (Hons.)
National Law School of India University, Bangalore.
The prevailing tensions on the loosely-demarcated India-China border has once again brought into sharp focus the historical distrust that underpins the Sino-Indian relationship, and the ever-present threat of escalation that portends serious repercussions for the entire region. The volatility of the situation on ground largely derives from the fluid understanding of the Line of Actual Control (LAC), which serves as the provisional border between the two nations until a permanent international border is demarcated at the conclusion of bilateral boundary negotiations. In fact, so stark is the divergence of both sides on the very conception of LAC that even after twenty-rounds of Special Representatives Talks, the two Asian powers have still not arrived at its common definition.[1]
The idea of LAC can be traced back to Premier Zhou’s suggestion to Nehru in a later date 7th November, 1959 which had proposed a mutual withdrawal of their respective forces to a distance of twenty kilometres from the “Line of Actual Control”.[2] Zhou’s idea of LAC was “the so-called (emphasis added) McMahon Line in the east, and the line up to which each side exercises actual control in the west.”[3] At this point it must be noted that the Zhou had moved this proposal to his counterpart, solely as a confidence-building measure and not to validate India’s reliance on McMahon Line for its’ boundary claims. This therefore should not be construed as an intention on the part of the Chinese to forego their consistent claim that the McMahon Line was illegitimate[4], a prime example of “unequal treaties”[5], and nothing but a vile product of their “century of humiliation”.[6]
Since McMahon Line sought to demarcate the boundary of North East Frontier Tracts of the Raj with Tibet[7], any academic study would be rendered nugatory if it does not address the implications Tibet’s status as a signatory has for the legitimacy of the Simla Accord of 1914, which is the source text for the boundary-in-dispute. In this context, it is the purport of this paper to restrict the scope of analysis to McMahon Line, and forensically study the Chinese contentions for the rejection of the Simla Convention, in order to systematically repudiate those arguments within the framework of International Law.
The Simla Conference was convened in 1913-14 at the behest of the British rulers of Colonial India, and was primarily aimed at resolving outstanding border issues by delineating the boundaries of India with Tibet in order secure India’s north-eastern flank. The plenipotentiaries of the governments of India, China and Tibet were invited to participate in this conference which was also to decide the status of Tibet.[8] Tibet technically had a subordinate status within the Qing Empire since its assimilation by the Qing Dynasty in 1720 AD[9], and the British had even formally recognized China’s “suzerainty” over Tibet as a part of the Anglo-Russian Convention of 1907, which had brought the Great Game in Asia to a close.[10] It must be noted that the traditional concept of suzerainty in the historical Chinese polity differed from that of the West (for instance, the protectorates of the Raj), as the subordinate political entity enjoyed substantial internal autonomy (with no analogous functional position as that of a British Resident), and only its foreign policy rested with the suzerain.[11] At this point, it must be remembered that suzerainty cannot be equated with sovereignty under International Law, as the former is usually de facto rather than de jure.[12]
By 1911 however, the Chinese could hardly exert any significance on Tibet as they were plagued by their own internal problems and consequently in 1912, with the collapse of the Qing Dynasty, and the transfer of power to the Republic of China, Tibetans under the 13th Dalai Lama shook off the yoke of nominal subservience to the Chinese, and declared independence.[13] Thus, from a period from 1912-1950, Tibet was de-facto independent, although the successive Chinese governments continued to claim it as an inviolable part of their territory on the ground that the last Emperor had abdicated in favour of a great Republic of China which was to be his temporal successor and would be constituted of the lands of the five great races of Manchu, Han, Mongol, Hui and Tibet along with “continued territorial integrity”.[14] At this point, it must be noted that during this period, Tibet was not recognised as a sovereign entity by any nation including the British[15].
It is in this backdrop that the Indo-Tibetan border was sought to be fleshed out cartographically in the Simla Conference, along with the proposed division of Tibet into- Outer Tibet, where Tibetan Government would rule under nominal “suzerainty” of the Chinese without any interference, and the Inner Tibet, which was to be placed in the hands of the Chinese Government.[16] The draft Convention was initialled by all the 3 parties on 27th July, 1914, but subsequently, the Chinese plenipotentiary, Ivan Chen refused to participate, consequent to which the part pertaining to India-Tibetan boundary was negotiated by the representatives of Britain and Tibet alone, and signed on 3rd July, 1914 with the bilateral understanding that the Convention would be binding on them, and that China would be denied any privileges under it as long as it withheld its signature.[17] At this point, it must be clarified that although the notes appended to the Schedule of the Convention did mention that “It is understood by the High Contracting Parties that Tibet forms part of Chinese territory”, however since it forms a part of the Accord only initialled by the Chinese, and not signed as such, it does not have any significant relevance as under International Law, initialling does not amount to a formal signature, and does not imply consent to signature (which legally indicates the acceptance of stipulated terms).[18]
Another sticking point which later emerged was that the British records show that the Tibetan acceptance of the treaty was conditioned on British obtaining Chinese consent, which they were unable to obtain, prompting the Tibetan government to reject the Accord as invalid.[19] This Tibetan condition could be considered to be in the nature of a reservation[20] and if formulated in the present circumstances, it would have required an express objection by the British under VCLT for it to not enter in force. However, since this treaty was entered into in a pre-VCLT regime, Section 4 of which prevents a retroactive application, therefore the validity of this reservation should be judged on the basis of its consistency with the customary international law prevalent at that point in time.[21] Prior to the formation of the League of Nations, the general State Practice according to Malkin[22] had let to the crystallisation of the Unanimity Rule, which required that for a reservation to be accepted, it should be legally permissible and accepted by all the parties to the Convention.[23] The question of permissibility of the reservation is usually discerned by the means of statutory interpretation so as to see if it the reservation is consistent with the objects and purpose of the treaty (as laid down in the Genocide Convention case[24]). On careful perusal of the provisions of the Accord, it emerges that if such a reservation was permissible in the first place, it would not have needed an explicit joint Anglo-Tibetan Declaration to specifically treat this Convention as binding on the British and Tibetan to the exclusion of the Chinese as long as they withheld consent. This provision itself shows the importance the purpose of the treaty viz. demarcation of the Indo-Tibetan border held in the eyes of both, the Tibetans and the British. Hence, this Tibetan statement seems to be in the nature an off-hand remark based on political motivations, rather than a reservation per se.
Another traditional Chinese criticism is that since Simla Accord is violative of the 1907 Anglo-Russian Convention which forbade either of the parties from directly treating with Tibet without including China[25], the Accord is rendered illegal by British lack of competency to contract. To a certain extent this was the prevalent view in British policy circles too[26] after the conclusion of the treaty, which prompted the treaty to be published in C.U. Aitchison’s A Collecion of Treaties (an officially recognised authoritative compilation of all the treaties entered into by the British Raj) only in 1938, after years of ambivalence.[27] However, this contention is on rather shaky grounds as China was a third party in the Anglo-Russian Convention, who while deriving important benefits from the treaty, was not in a position to enforce it under customary International Law, and such a right was vested with the Russians alone, who preferred turning a blind eye as both the European nations were a part of the Allied Powers, confronting the Axis at that time. Besides, since the Anglo-Russian Convention does not supersede the Simla Accord, minor derogations, if implicitly accepted by the contracting power, does not weaken the legitimacy of either of these agreements. Moreover, the Anglo-Russian Convention hasn’t been mentioned in the Schedule of the Simla Agreement, which in accordance with Article 1 lists out all the relevant Conventions with which any inconsistencies may render the provisions repugnant to that extent.[28]
Now, as was to be expected, the Chinese Government had promptly denounced the Convention, claiming that Tibet was a subordinate unit within the Chinese political entity, and hence had no right to treat as such with foreign powers, much less to settle an international boundary, which is the sole prerogative of a sovereign nation.[29] To tackle this contention, we must examine the question of whether federated/subordinate units can contract treaties under international law or not. We must firstly understand that International Law is not just Inter-“sovereign” State Law. Building on this clarity of thought, let us proceed to rebut two common misperceptions[30] that are prevalent with respect to treaty-making powers of federated units.
The first argument against treaty-making powers of a federated entity mischaracterises “legal personality” under International Law with “sovereignty”, and is typical of the sovereignty-bias prevalent in the International Law jurisprudence[31]. It essentially states that sovereign states can be composed of federated entities, all of whose legal personality is exclusively subsumed within a single, indivisible legal personality for International Law purpose. However, the phenomena of entities with varying degree of power, roles and landscapes collectively constituting the landscape of the international legal order has been explicitly recognised by the International Court of Justice back in 1948 when it expounded:
“The subjects of law in any legal system are not necessarily identical in their nature or in the extent of their rights, and their nature depends upon the needs of the community. Throughout its history, the development of international law has been influenced by the requirements of international life, and the progressive increase in the collective activities of States has already given rise to instances of action upon the international plane by certain entities which are not State.”[32]
Thus, International Law does not preclude a federation to have overlapping personalities. Even if the federated entity is constitutionally bound to respect international law, this in no way can be read to mean that it does not have a separate legal personality as such.[33] Oppenheimer’s International Law explicitly states that “there is no justification for the view that member states of federations are necessarily deprived of any status whatsoever within the international community: while they are not full subjects of international law, they may be international persons for some purposes.”[34] For instance, Ukraine and Byelorussia were made a part of the United Nations even though they were technically still members of the USSR[35].
The second argument against treaty-making powers of a federated entity proceeds on the ground that even if assumed that federated entities have international legal personality, they cannot be said to possess treaty powers. This can be summarily rebutted by relying on Vienna Convention on the Law of Treaty, 1969 (which crystallises the customary law to that point), S. 3(a) of which provides that the Convention does not affect the legal validity of any other international agreement concluded between a state and any other subject of international law. In fact, the International Law Commission, commenting on the Draft Articles on the Law of Treaties, declared:
“It was desirable to underline the capacity possessed by every State to conclude treaties; and that, having regard to the examples which occur in practice (emphasis added) of treaties concluded by member States of certain federal unions with foreign States in virtue of powers given to them by the constitution of the particular federal union, a general provision covering such cases should be included.”[36]
Therefore in short, whether a federated unit has the power to enter into treaties or not depends on the domestic position[37] on whether these sub-units have such competency, and the same can be brought forth by referring to the State practice on whether such treaty-making is allowed in the absence of a written constitution. Therefore, in Tibet’s case, it would be instructive to refer to three specific historic treaties- the Treaty of Betrawati signed in 1789 between Nepal and China at the end of Sino-Gorkha War, the Treaty of Sagauli signed in 1816 at the conclusion of Anglo-Gorkha War and the Treaty of Thapathali between Nepal and Tibet in 1856 on the culmination of Nepal-Tibet War.
In the Treaty of Betrawati, Nepal agreed to pay tribute to the Qing Emperor and accept his suzerainty, similar to Tibet.[38] However, after the British forces emerged victorious over the Gorkhas in the Anglo-Gorkha War, Nepal unilaterally ceded Sikkim, Terai and some other territories to the British by signing the Treaty of Sagauli, without any consultations with the Qing Emperor who was noticeably absent throughout the conflict.[39] This was despite the fact that Nepal continued to pay tribute to the Chinese Emperor till at least as late as 1842.[40] Thus, if the Chinese argument that Tibet being a sub-ordinate entity of the Qing Empire, could not have unilaterally contracted the Simla Accord is taken as an analogy, then the Treaty of Sagauli contracted unilaterally by the Gorkhas which effectively modified the boundaries of the sovereign Chinese territory should be void, which incidentally and historically was never the Chinese position. Thus, the Chinese position on Simla Accords is one based on convenience, rather than being a principled stance.
Moreover, in the 1856 treaty between Nepal and Tibet, any mention of the Qing Emperor is conspicuously absent.[41] This was in spite of the then very public indications by British officials about the de facto protectorate status of Nepal within the British Raj. A British diplomat Lee Warner had gone so far as to remark, “I have never regarded Nepal as ‘independent’ except in certain attributes of sovereignty. Its internal sovereignty is more complete than that of any other protected state of India. But it has no real international life. It is, therefore, in my opinion a glorified member of the protectorate.”[42] In this backdrop, the exclusion of the Qing Emperor from the treaty of 1856 assumes heightened significance as it was not merely a treaty between two feudatories of the empire, but rather between Tibet and a foreign power. Thus, this is a strong indication of the fact that Tibet did enjoy treaty-making powers under the Qing dynasty’s suzerainty, and regardless of the status of international recognition of its de-facto independent status as a claimed sovereign state in the period of 1912-1950, it was a competent party to participate and sign the Simla Accords in 1914, without needing to consult the Chinese government, as illustrated by the aforementioned precedents.
To conclude, the polemic approach adopted throughout this paper is geared towards countering the hereto commonly expressed Chinese contentions, in order to establish the legitimacy of the Simla Convention of 1914, as this would not only lend credence to the reliance of India’s claim on the McMahon Line in the Eastern Sector of the boundary with China, but also bolster India’s legal position in the border dispute and give it an upper hand in the negotiations. So far whenever India has contended that China’s claims are baseless as they have no written basis or documentation of acceptance in the past, and are merely reliant on Chinese imperial control centuries ago, China responds by decrying India in turn for claiming the disputed territories on the basis of imperial British control and the legally specious agreements and treaties they concluded.[43] By shifting to the jurisprudential approach highlighted throughout the paper, India can now counter Chinese talking points through a legal framework rooted in history of the region, and compel China to engage on our terms of debate in the boundary negotiations.
This approach holds immense promise for the Tibetan self-determination movement too as any implicit recognition by India of any of the rebuttals mentioned above will not only strengthen the acceptability of Tibet’s de facto independence during 1912-1950, but could also portend a major shift in both, academia and public perceptions globally about Tibet’s history as an independent nation in the aforementioned period. This would hopefully inspire other nations to belatedly follow suit, and settle for good the fatal criticism against Tibet’s statehood that its brief-lived period of self-rule was unrecognised internationally. Although the aforementioned period represents only thirty-eight years of independence in the modern era, younger countries have been reinstated as nations after being annexed by an expansionist powers, as the case study of Balkans and Eastern Europe very well demonstrates. Therefore, the adoption of this proposed narrative and justification would not only amount to India tacitly supporting Tibet’s case without incurring the risk of significant Chinese retaliation, but would also serve as a low-cost move to strengthen the Tibetan movement as the incidental result of pursuing our own uncompromisable national security interests.
[1] PJS Sindhu, “It is time to accept how badly India misread Chinese intentions in 1962-and 2020” (The Wire, 21st July, 2020) < https://thewire.in/security/india-china-xi-jinping-lac-border-modi-1962-war> last accessed 8th August, 2020.
[2] MEA, Government of India, Notes, Memoranda and letters Exchanged and Agreements signed between The Governments of India and China: White Paper III < http://www.archieve.claudearpi.net/maintenance/uploaded_pics/Corres_Nov59_Mar60.pdf> last accessed 8th August 2020.
[3] AG Noorani, “Perseverence in Peace Process” (Frontline, 29th August, 2003).
[4] Goldstein, A History of Modern Tibet, 1913 to 1951: Demise of the Lamaist State, (University of California Press, 1991).
[5] Wang Dong, China’s Unequal Treaties: Narrating National History (Lexington Books, 2005).
[6] Alison Kauffman, “The “Century of Humiliation: Then and Now: Chinese Perceptions of the International Order” (2010) 25 Pacific Focus 1.
[7] Alstair Lamb, The China-India Border (Oxford University Press, 1964).
[8] Nirmal Sinha, “The Simla Convention 1914: A Chinese Puzzle” (Presidency College Magazine-Jubilee Edition, 1974) 12.
[9] Hsiao-ting, Tibet and Nationalist China’s Frontier: Intrigues and Ethnopolitics,1928-49 (2011) 7.
[10] Convention Between Great Britain and Russia, signed at St. Petersburg, 1907 < http://www.tibetjustice.org/materials/treaties/treaties12.html> last accessed 8th August, 2020.
[11] Samuel Chu, Liu Hung-Chang and China’s Early Modernization (Routledge, 1994).
[12] Andrew Mwaniki, ‘What is Suzerainty’ (WorldAtlas, November 24, 2017) < https://www.worldatlas.com/what-is-suzerainty.html> last accessed 8th August, 2020.
[13] Melvyn Goldstein, The Snow Lion and the Dragon: China, Tibet, and the Dalai Lama (University of California Press, 2007) 31. Proclamation available at < http://www.tibetjustice.org/materials/tibet/tibet1.html> last accessed 8th August, 2020.
[14] Joseph Esherick et al, Empire to Nation: Historical Perspectives on the Making of the Modern World (2006) 245.
[15] Goldstein & Cynthia, Nomads of Western Tibet — The Survival of a Way of Life (University of California Press, 1990) 50.
[16] Nirmal (n. 8).
[17] Goldstein (n. 4) 75.
[18] Claude Schenker, Practical Guide to International Treaties (Federal Department of Foreign Affairs, Government of Switzerland, 2015 edn.)
[19] Tsering Shakya, The Dragon in the Land of Snows: A History of Modern Tibet Since 1947 (Columbia University Press, 1999).
[20] Article 2(d), Vienna Convention on the Law of Treaties, 1969.
[21] Edward T Swaine, “Reserving” 31 Yale Journal of International Law 307, (206)
[22] Clark, “The Vienna Convention Reservations Regime and the Convention on Discrimination Against Women” (1991) 85 AJIL289.
[23] Niina Anderson, “Reservations and Objections to Multilateral Treaties on Human Rights Violation” (Master’s Thesis, Lund University, 2001).
[24] Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, 1951 I.C.J. 15 (Advisory Opinion, May 28, 1951).
[25] Convention Between Great Britain and Russia, signed at St. Petersburg, 1907 < http://www.tibetjustice.org/materials/treaties/treaties12.html> last accessed 8th August, 2020.
[26] Hsiao-Ting, “Boundary, sovereignty, and imagination: Reconsidering the frontier disputes between British India and Republican China, 1914–47” (2004), 32 The Journal of Imperial and Commonwealth History 3.
[27] Ibid.
[28] Article 1, Simla Accord <https://www.tibetjustice.org/materials/treaties/treaties16.html> last accessed 8th August, 2020.
[29] Kaikobad, Interpretation and Revision of International Boundary (Cambridge University Press, 2007).
[30] Hugo Cyr, “Chapter II: Treaty Powers of Federated States and International Law” in Canadian Federalism and Treaty Powers: Organic Constitutionalism at Work, (Brussels, 2009).
[31] T.D. Grant, “Defining Statehood: The Montevideo Convention and Its Discontents” (1999) 37 Columbia Journal of Transnational Law 2, 405.
[32] Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, 1949 I.C.J. Rep. 174, p. 178.
[33] Hugo (n. 10).
[34] Jennings and Watt, Oppenheim’s International Law, (Longman, Vol. 1, 1992).
[35] M.N. Shaw, International Law, Cambridge, Cambridge University Press, (1997) 196.
[36] Report of the International Law Commission on the Second Part of its Seventeenth Session and on its Eighteenth Session, U.N. Doc. A/6309/Rev.l.
[37] W. Ferdinandusse, “Out of the Black-Box? The International Obligations of State Organs” (2003) 29 Brooklyn Journal of International, 80.
[38] Mahesh Regmi, “An Official Nepali Account of the Nepal-China War” (1970) 2 Regmi Research Series 8.
[39] Amish Raj, “Why the British Did not Colonise Nepal” (The Record, 2017) < https://www.recordnepal.com/wire/features/why-did-the-british-not-colonize-nepal/> last accessed 8th August 2020.
[40] WH Allen, “China and Her Tributaries” in The National Review (Vol.3, 1884) 609.
[41] Treaty between Nepal and Tibet, 1856 <https://www.tibetjustice.org/materials/treaties/treaties6.html> last accessed 8th August 2020. Reproduced from M. C. van Walt van Praag’s Status of Tibet: History, Rights and Prospects in International Law (1987).
[42] Amish (n. 39).
[43] VK Singh, ‘Resolving the Boundary Dispute’ (2006) <http://www.india-seminar.com/2006/562/562-vk-singh.htm> last accessed 8th August 2020.