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In this photograph taken on July 10, 2008, a Chinese soldier stands guard on the Chinese side of the ancient Nathu La border crossing between India and China. When the two Asian giants opened the 4,500-metre-high (15,000 feet) pass in 2006 to improve ties dogged by a bitter war in 1962 that saw the route closed for 44 years, many on both sides hoped it would boost trade. Two years on, optimism has given way to despair as the flow of traders has shrunk to a trickle because of red tape, poor facilities and sub-standard roads in India's remote northeastern mountainous state of Sikkim. AFP PHOTO/Diptendu DUTTA
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Historic claims have been one of the most fascinating mechanisms used by the People’s Republic of China, hereinafter referred to as China, to claim territories around its officially recognized territory. This is precisely the reason as to why China has been indulged into several territorial disputes like the South China Sea Dispute, the Sino-India Border dispute, etc. The present article has been written keeping in mind the several developments that have taken place with respect to the Sino-India Border Dispute in Arunachal Pradesh.

The state of Arunachal Pradesh is officially one of the 29 states in the Republic of India, hereinafter referred to as India. The dispute has been going on in Arunachal Pradesh since decades and both the nations have even fought a war in Arunachal Pradesh in 1962. As mentioned above as well, China is relying upon certain historic claims to assert sovereignty over the Indian state. It states that there are strong historical ties that are existent between the Lhasa Monastery in Tibet and the Tawang Monastery which is situated in Arunachal Pradesh, and the fact that according to them, Tibet is a part of China, Arunachal Pradesh, which is also known as Southern Tibet, is also a part of China.

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There are very prominent factors which have led to this aggressive approach from the side of China with respect to Arunachal Pradesh. The most important one of them is in clear retaliation to India’s Tibet card. As per China, the Tawang Monastery in Arunachal Pradesh is the birthplace of the 6th Dalai Lama, and it is also believed that the present Dalai Lama, i.e., the 14th Dalai Lama might choose his successor from the 400 year old monastery in the Indian state itself.

There has been a long ongoing tussle between India and China with respect to Dalai Lama’s stay in India, Tibet’s freedom struggle, and India’s involvement in elevating the Tibetan struggle. Dalai Lama has been allowed to stay in Dharamshala and has also been allowed to travel abroad by India. This action by India, in addition to powerful and impactful speeches by Dalai Lama all across the globe, has led to a massive increase in Chinese insecurities as the people are influenced to think & talk about the Tibetan issue while questioning the credibility of Chinese claims at the same time.

Recently, on 14th April, 2017, the Ministry of Civil Affairs of the People’s Republic of China publicly announced that they have named 6 districts in Arunachal Pradesh in their own standardized Chinese characters, Roman and Tibetan alphabets, thus again reinforcing its territorial claims against the Indian state. The new names are: Mainquka, Namkapub Ri, Mila Ri, Bumo La, Qoidengarbo Ri and Wo’gyainling.

As per Chinese governments, this action is completely legitimate in nature and is in consonance with their regulations. They also expressed that the said action is in retaliation to the Indian inclination towards Dalai Lama with respect to the Tibetan struggle, which in their eyes, is in direct contravention to the Indian commitments to the People’s Republic of China. In response to the action, the Ministry of External Affairs of India has clearly condemned the action and has stated that there is no change at all with respect to India’s policy towards the Autonomous Region of Tibet.

The present action by the Chinese government has actually raised a lot of questions with respect to the legality of its territorial claims. In this regard, emphasis must be laid down on how the International Court of Justice would view the whole dispute. Although, it is quite sceptical that the Chinese will submit their jurisdiction to the International Court of Justice (ICJ), but still, in international law, the fact that the ICJ is being considered as the epitome of justice between states, it is imperative that a more rational view is being considered.

As per Art. 38 (1) of the Rome Statute of the International Court of Justice, the following are the sources of law:

  1. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;
  2. international custom, as evidence of a general practice accepted as law;
  3. the general principles of law recognized by civilized nations;
  4. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.

Also, as per the Art. 38 (2) of the same Statute, the parties have the power to get the dispute decided by the means of ex aequo et bono.

The treaty-based claims are less emotionally persuasive than the historic claims with respect to the claim over territory. The Chinese claims do not arise from any treaty signed in the past, and it is very much believed that China is simply going to take the help of old maps to substantively back up its claims. Nor do they arise from any sort of existing customary international law which talks about the claim over territory on the basis of historic claims.

Although, historic claims do hold a lot of relevance and they do develop an underlying entitlement to property, still, the effective possession or control over the territory is the strongest claim as per the rules and principles of property law. The only manner in which China can actually build its case is when it is successfully able to prove as to how culturally important the territory is to their own culture, because at this point in time, even the status of the Autonomous Region of Tibet is in question. Hence, it will definitely be scrutinized and questioned if China relies upon Tibetan culture to support its claims.

This brings me to my conclusion wherein I would just like to mention that it is the Republic of India which has been asserting sovereign and an effective control over Arunachal Pradesh. The whole situation results into the invocation of the principle of acquiescence even though the Chinese have shown protest in the past, as all those protests were done to retaliate against Dalai Lama’s actions in pursuance of the Tibetan struggle. China has very strong reasons to believe as to why the mere presence of Dalai Lama in Arunachal Pradesh can be construed against Chinese interests, and hence, it is well within its sovereign rights to protest against such actions. But the real question that needs an answer at this point of time is who is going to get favoured in the long run-India or China.

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