Some New Haven International Law Reflections on China, India
and Their Various Territorial Disputes
95
Some New Haven International Law
Reflections on China, India and
Their Various Territorial Disputes
Anthony Carty and Fozia Nazir Lone*
Abstract
These territorial disputes illustrate that although both in India and China the
‘unequal treaties’ and ‘international law as imperialism’ debate fueled anticolonial and nationalist sentiments, yet the two persistently adopted a purely
western style territorial sovereignty claim to superior title to the territories in
question. The Indian decision making conservatism is led by an authoritarian
state culture. Whereas for China, its repeated references to historical claims
appears to be a harking back to its own imperial past, when the other states
were in a relationship of vassalage to it. The western principles with a shallow
eastern sugarcoating of non-interference, non-aggression, equality and mutual
benefit and peaceful co-existence are a form of Eastphalia. Hence, in China
and India, international law and diplomacy are guided by a formalist
dualism. This article proposes a New Haven observational perspective on India
and China which points the way to a reconfiguration of the normative issues
raised by their territorial disputes.
I. The Issues Defined by India and China in Terms of
Formalist, Western International Law Concepts
A. The McMahon Line
The continued problem of the India-Tibet/China border, along the so-called
McMahon Line is a legacy of British colonisation. The dispute is the result
*Professor Carty is Professor and Sir YK Pao Chair in Public Law at The University of
Hong Kong; Dr Lone is an Assistant Professor at the City University of Hong Kong.
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of ambitions of Britain to extend the boundary of its North Eastern Frontier
shortly after the collapse of the Qing dynasty in China, when Tibet came to
assert independence from China. The McMahon Line, a geographical boundary
which runs along the rim of the Himalayas until it reaches the great bend in
the Brahmaputra River where that river emerges from the Tibetan Plateau into
the Assam Valley, rests on the Anglo-Tibetan Agreement of March 1914 and
the Simla Agreement of 3 July 1914. China rejects the Simla Agreement on
the grounds that the Tibetan government was not a sovereign government and
was not in a position to conclude treaties. China refers to this area as South
Tibet while India calls it Arunachal Pradesh which is one of the Indian States.
The Central Tibetan Administration, the government-in-exile of the Dalai
Lama, has conceded the line as the official border, while they seek shelter in
India. Chinese forces briefly occupied this area during the Sino-Indian War of
1962 but returned most of the territory back to India. Today, China recognises
a Line of Actual Control which includes the McMahon Line, according to a
1959 diplomatic note by the then Prime Minister Zhou Enlai. Gradually, from
1951 onwards, the Chinese introduced to the Indians the need to dialogue
and negotiate about the frontier issue, until finally, by 1959, they had raised
the whole McMahon Line border as disputed.1 Over the years, Tibetan human
rights are violated persistently2 and we draw attention to a statement by Marcus
Einfeld that Tibetans had a separate civilisation with a long and distinct history,
which is presently challenged politically by CCP rule through Beijing, although
there is an Autonomous Regional Government.3
The difficulties of the Indian position on Tibet can be understood in the light
of Foreign Office minutes on the McMahon Line, which discuss its validity.4
In these minutes, Foreign Official officials sought legal advice as to how to
support the Indian position on the validity of the McMahon Line, given that
Britain was already publicly committed by ministerial statements to support it.
The documents that were under consideration in these FO minutes were the
bilateral Anglo-Tibetan Agreement of March 1914 and the Simla Agreement
1914. According to these documents Britain had, after 1911 recognised Chinese
suzerainty over Tibet ‘subject to Tibetan autonomy’. It was argued in the
documents that India is entitled to maintain her inherited frontiers from the
United Kingdom that were then agreed between the UK and Tibet, although it
1
Arthur A Stahnke, ‘The Place of International Law in Chinese Strategy and Tactics: The
Case of the Sino-Indian Boundary Dispute’ (1970) 27 The Journal of Asian Studies 95.
2
R McCorquodale and N Orosz (ed), Tibet: The Position in International Law – Report
of the Conference of International Lawyers on Issues relating to Self-determination and
Independence for Tibet, London 6-10 January 1993 (Serindia, London, 1994), p 217.
3
Ibid, Appendix D, p 233.
4
FO 371/164932, The National Archives of London.
Some New Haven International Law Reflections on China, India
and Their Various Territorial Disputes
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was recognised that the specific issue of the McMahon Line was not considered
at independence. In 1954, India recognised Chinese sovereignty over Tibet, but
maintained that the Chinese are legally committed to recognise the McMahon
Line on the basis that China is a successor State to Tibet.
The difficulty for both the Chinese and the Indians in this dispute is how
they regard the Tibetans as participants or as objects of imperial diplomacy. The
Indians appear to adopt the British line that Tibet was competent to conclude
a boundary treaty which moved the limits of British imperial administration
much further north, but it is quite clear that, historically, China did not ratify
the boundary treaty at the time and never accepted the status of Tibet as seen
through British eyes, the so-called doctrine of Chinese suzerainty over Tibet.5
Therefore, the Indian claim that China succeeds historically to Tibet’s boundary
with India is inconsistent with India now accepting that Tibet should be
integrated into China. The reason for the inconsistency is that China’s own
reason for regarding Tibet as part of China now is that it has always regarded
Tibet as an integral part of China. The British official discussions in the internal
minutes just cited6 highlight the questionable legality of the two agreements
defining the McMahon Line. The minutes highlight that the doubtful point is
whether Tibet was legally competent to enter into these agreements in 1914, but
given the public position of Britain subsequently it was difficult to backstep on
this point. However, it was still the case that there ‘were no specific references to
agreements defining India’s frontiers in the arrangements for the independence
of India’.7
In fact, the record shows that Britain had not completed the actual
occupation of the Northern Frontier area by 1947 and this was only gradually
completed by India. Still, in August 1947, Tawang, the disputed area, was under
the de facto administration of Tibet. It was only under the pressure of the CCP
victory in the Chinese civil war and the subsequent Chinese occupation of Tibet,
that finally in 1951, under the North East Frontier Agency, an Indian official
ended the last Tibetan presence south of the McMahon Line.8 On the Chinese
side it is remarkable that it never makes use of the fact that Tibet itself regarded
the McMahon Line as part of an unequal treaty. In an exchange of letters, in
1945, Tibet drew the attention of the Government of India to the causes of the
present world war, compared Britain to a large insect eating a smaller one and
5
See, generally, Barry Sautman, ‘Tibet’s Putative Statehood and International Law’ (2010)
9 Chinese Journal of International Law 127.
6
See FO 371/164932 (note 4 above).
7
Ibid.
8
Alistair Lamb, The China-India Border, The origins of the disputed boundaries (Oxford
University Press, London, 1964), pp 166-67.
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Anthony Carty and Fozia Nazir Lone
requested the British to withdraw their troops from the disputed area.9 Tibet
further argued that whatever commitment it made in 1914 was dependent upon
Britain assuring for Tibet its recognition as an independent state by China. This
was never achieved and what interest has Britain in 1945, asks Tibet, when it is
giving Indians their liberty, to take away portions of Tibetan territory?10 These
arguments, which appear to work decisively against China being obliged to
succeed to the ‘settled’ boundaries between Tibet and British India/India, are not
used by China, either because it does not know of them or because it does not
want to become implicated in allowing Tibet to be a participant in the struggle
to resist British/Indian encroachment upon Tibet.
B. Western international law and the Paracel and Spratly
Islands
1. The Spratly Islands
A formalist approach to international law will look to clear rules of law, valid
because they have the consent of states. In the view of a significant UK FCO
Legal Minute written in the mid-1970s as a briefing paper for the UN Law of
the Sea Conference,11 the most appropriate rule for the Spratlys was laid down
in the Eastern Greenland Case. The Tribunal will be satisfied with very little in
the way of actual exercise of sovereign rights, provided the other states could not
make out a superior claim, particularly in thinly populated areas.
On this basis, the same UK FCO Legal Minute confirms in 1974 that China
has the best title to all the Spratlys. From 1891 the islands were visited annually
to collect turtles etc and Chinese maps of the region for centuries showed
the islands to be part of China. Further, China protested on all appropriate
occasions so that her claims have not lapsed. The main weakness is that there
is not much evidence that China ever exploited the resources of the islands
themselves as distinct from the resources of the surrounding seas.
The Philippines claims a right of occupation based on the fact that the islands
were res nullius when abandoned by Japan in the Peace Treaty, but Japan never
had ownership, so that The Philippines could only have title by prescription if
the Chinese protest had become acquiescence and this is not the case.
9
FO 371/46122, dated 27 April 1945 discussed by Melvyn C Goldstein, History of
Modern Tibet (Berkeley, University of California Press, 2007), Vol II, p 416.
10
FO 371, 53613, 21 December 1945, also cited in Goldstein, ibid, p 418.
11
FCO 51/411 Research Department Memorandum, The Spratly Islands, Reassertion of
Claims since 1972 South and South East Asia, Annex Legal Adviser’s re-examination of
claims to sovereignty over the Spratly Islands in a minute of 1 February 1974 from Mrs
Denza to Mr Chapman in South-East Asia Department.
Some New Haven International Law Reflections on China, India
and Their Various Territorial Disputes
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The weakness of Vietnam’s claim is that occupation during the 19th century
was not followed by effective acts of sovereignty. France occupied them in the
1930s but claimed it was acting on its own behalf and not that of Vietnam. It
ceded its rights over Paracel Islands to South Vietnam, but not the Spratlys.
France has now abandoned these rights, giving China the strongest claim.
The difficulty with this legal approach is now well described by Michael
Strupp in the Max Planck Encyclopedia of Public International Law entry on
the islands.12 They are by a majority occupied by Vietnam, with more by The
Philippines and Malaysia. China has only, though Taiwan, a minor presence on
one large island. These other occupations are vigorous, predominantly military.
Here again is where structural weaknesses of international law come into play
– the absence of compulsory adjudication and authoritative definitions of
vague, general, formal norms. A legal system like this invites pre-emptive attack,
resembling the lightening strike operations against the Spratlys. A retaliation by
China would have been allowed by classical international law, but post-Charter
1945 it is more difficult.
2. The Paracel Islands
China has ample historical documentation, especially maps identifying the
islands (both Paracel and Spratly), navigation records, discovery reports and
forms of administrative territorial activity. The book-length monograph of Greg
Austin treats China’s western style international law claim as clearly superior
to the only other competitor, Vietnam.13 From 1900 to 1932, China actually
occupied the islands with administrative activity. Until 1931, there was no
French activity. In 1946, China again occupied north eastern islands and France
ceded control over the south western islands to South Vietnam in 1950. In
1974, China used an opportune moment to seize these islands by force as well.
In 1956 and 1958, there were clear statements by North Vietnam recognising
China’s Territorial Sea Declaration, which included the Paracel and Spratly
Islands. As a final footnote, it might be mentioned that in his entry to the Max
Planck Encyclopaedia of Public International Law, Michael Strupp describes the
Chinese 1974 move as a kind of defensive conquest which could be applied
presumably to the whole South China Sea, if China wished.14
12
See Michael Strupp, ‘Spratly Islands’; available at: www.mpepil.com.
Greg Austin, China’s Ocean Frontier (Allen and Unwin, Sydney, 1998), chap 4,
pp98-130.
14
See Michael Strupp, ‘Paracel Archipelago’; available at: www.mpepil.com.
13
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Anthony Carty and Fozia Nazir Lone
Yet, on 4 January 2007, Vietnam declared that the PRC was infringing
Vietnamese sovereignty over the Paracel, which the PRC promptly rejected.
There are additional questions about China’s attempts to draw 28 base points
around the Paracel to include 260 nautical miles covering the entire perimeters
of the Paracel Islands. Strupp says this is impossible because these are not
islands in the sense of Art 121(1) of the 1982 UNCLOS, but fall under the
definition of rock in Art 121(3) of the same. China says that together the Paracel
constitutes an archipelago. There was no objection by North Vietnam to China
using force against South Vietnam in 1974, which suggests no international law
ambiguity about the Paracel Islands, unless one wants to try to raise the issue of
the annexation of the islands by the Kingdom of Annam in 1816, to which one
will return in a later section.
C. ‘Eastphalia’, the continuing and paradoxical adherence
of India and China to strictly western understandings
of state sovereignty, territory and legal authority in
international relations
1. The Indian approach to the McMahon Line
Critical reflection on Indian understandings of international law is much
further developed than the Chinese, although the two have been compared and
legitimately lumped together.15 The essential elements of dualism and Eastphalia,
which the authors cite are the adoption of the defensive, security oriented
sovereignty that arose in Europe in the 17th century, and which has always
been the basis of military, as well as economic, competition among the Western
powers. These state structures are what either colonised India or oppressed
China through unequal treaties, but in the fashion of, as it were ‘if you want to
beat them join them’, this model of statehood, in the views of Chimni, Kim,
Fidler and Ganguly, has now been adopted in the East. This shows itself not
only in how China and India confront their neighbours, but also, in this case,
one another. In particular, Chimni defines dualism as opposition to the policies
of imperialism at the same time as attempting to use existing international law
15
See, particularly, BS Chimni, ‘International Law Scholarship in Post-colonial India:
Coping with Dualism’ (2010) 23 Leiden Journal of International Law 23 and Sung Won
Kim, David P Fidler, and Sumit Ganguly, ‘Eastphalia Rising? Asian Influence and the
Fate of Human Security’ (2009) World Policy Journal 53.
Some New Haven International Law Reflections on China, India
and Their Various Territorial Disputes
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to bring about change in the international system to the benefit of third world
countries and particularly to their own benefit.16
What this leads to in any case for India, whether it concerns what it calls
Arunachal Pradesh, Kashmir, or the numerous autonomy movements within
India itself, is that it will adopt the same dualist strategy. With the anti-colonial
feelings and the fact international law was for the western nations, the challenge
for India was how it, as a peripheral state, should remain within the established
boundaries of international law.17 Chimni argues that the alternate language
and requisite authority precluded the option of stepping outside the precincts
of colonial international law and walking away.18 So, according to Chimni, the
periphery (including India) was thus from the very inception destined to play
the role of both an insider and outsider. The tensions between colonisation and
liberation became the birth signs of India as a post-colonial state. For India,
international law became an instrument of subjugation as well as emancipation.
This duality becomes clear as India conservatively embraced the Five Principles
of Coexistence as characteristics of its diplomatic practice. The Five Principles
of Coexistence, ie mutual respect for each other’s territorial integrity and
sovereignty, non-aggression, non-interference in each other’s internal affairs,
equality and mutual benefit, and peaceful coexistence have Westphalian
origins. These principles have now become the hallmarks of the so-called
Eastphalian system and have deep roots in the emergence of Asian societies from
imperialism.
The territorial disputes of Kashmir and Tibet illustrate that although the
‘unequal treaties’ debate fuelled the anti-colonial and nationalist sentiments in
the Indian subcontinent, India, however, persists to adopt a positivist western
style territorial sovereignty, asserting a superior title to the territory of Kashmir
and the McMahon Line (Arunachal Pradesh). In these two cases, they accepted
the colonial treaties such as Instrument of Accession 1947 and the Simla
Agreement 1914 to claim the title to these territories by stepping into the shoes
of their colonial masters. It is argued that part of the reason is that India lacks
originality in its approach to international law and chooses to stick with the
western approach and shy away from dealing with the real problems.
For India, the end of colonialism marks an end to ideas of oppression and
resistance associated with it. India does not see that colonialism was part of a
wider phenomenon of imperialism. As Said explained, imperialism marks the
16
See Chimni (note 15 above).
See, generally, ibid.
18
Ibid, p 23.
17
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dominating attitude of the metropolitan powers towards the periphery, while
colonialism is only one specific aspect of this, the implantation of the population
of the metropolis in the peripheral territory. He concludes that whilst ‘colonialism
has largely ended imperialism lingers where it has always been, in a kind of
general cultural sphere as well as in specific political, ideological, economic
and social practices’.19 So, also in India colonialism ended but not the imperial
practices. The embracing and adoption by India of what are unequal colonial
treaties shows that, for India, the dynamics of informal empire continue to exist.
India, along with other Asian nations, widely recognised the Five Principles
as they represent the emergence of Asian societies from imperialism.20 These
Five Principles of co-existence have lived on in the post-cold war era that was
first proclaimed by China and India in 1954 through the series of negotiations
that took place in Delhi from December 1953 to April 1954, with respect to
the disputed territory of Tibet and the McMahon Line. Finally, India signed
the Sino-Tibetan Agreement on Tibet with China on 29 April 1954. Later, the
Five Principles were formally written into the preface to the Agreement between
the People’s Republic of China and the Republic of India on Trade and Cooperation between the PRC and India in 1954.
So, over the years, Indian foreign policy reflected duality, on the one hand
there was opposition to the policies of imperialism and on the other, India has
used existing western international concepts to its advantage. This becomes most
clear, and relevant to the present border disputes, when one is looking at India’s
changing policies and practical approaches to international law such as selfdetermination, nuclear proliferation and security issues (terrorism).21 India links
self-determination with colonisation and non-intervention in internal affairs
and hence sovereignty. In this respect India shows formalistic characteristics by
categorically adhering to the Charter principles of non-intervention in internal
affairs.22 The Ambassador and the Permanent representative of India to the
UN Offices in Geneva – Hardeep Puri, said: ‘The right to self-determination
shall not be construed as authorizing or encouraging any action … aimed at
partial or total disruption of the national unity and territorial integrity of a
state or country or at its political independence … every State shall refrain from
19
E Said, Culture and Imperialism (Random House, London, 1993), p 8.
See Sung Won Kim (note 15 above), p 58.
21
See, generally, PS Rao, ‘The Indian Position on some General Principles of International
law’ in Bimal N Patel (ed), India and International Law, (Martinus Nijhoff Publishers,
The Netherlands, 2008), Vol 1, pp 33-65.
22
Article 2(4) of the UN Charter: ‘All Members shall refrain in their international relations
from the threat or use of force against the territorial integrity or political independence of
any state, or in any other manner inconsistent with the Purposes of the United Nations.’
20
Some New Haven International Law Reflections on China, India
and Their Various Territorial Disputes
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any action aimed at the partial or total disruption of the national unity and
territorial integrity of any other state or country.’
2. The Chinese approach to the South China Seas
It appears, at first sight, that China has only to gain from adopting a strictly
Western and legal positivist attitude to the South China Seas dispute, even if
it would also benefit from considering the anti-colonialist and anti ‘unequal
treaties’ arguments of Tibet in its dispute with India. The better view of classical
positivist international law is that China has legal title to both the Paracel and
the Spratly Islands. There are at least two difficulties with China’s approach of
which its international lawyers may not be fully aware. The most important
is the historical political context of Western imperialist international law and
the second is the significance of China’s additional introduction of obscure
arguments about historic title in the region.23
The Western international law of territory was only one part of an overall
system of law. It worked well within limited parameters, but the system of
international law as a whole did not work at all, and produced not only
colonialism and imperialism, but also two world wars. The dynamic picture of
the state in the paradigm of an actor in the Westphalia system of modern states
is to measure the concept of state power in terms of territorial acquisition –
meaning absolutely exclusive possession – primarily through the use of force
in the classical pre-1945 model of positive international law, which reflects
the continued absence of effectively coordinated central authority in the
international community. One essential dynamic of the Westphalia model is the
drive to competition among relatively equal actors which experience, at the same
time relative insecurity in relation to one another, which in turn drives to further
competition.
In this context, one might say of the substance of the positive law rule
trotted out in the SCS territorial contests, that it was devised on the basis of
agreement among the colonial powers. They accepted third party adjudication
on the basis that whoever has been most active in relation to the territory
should be allotted it. This was because the purpose of territorial sovereignty
23
See Junwu Pan, Toward a New Framework for Peaceful Settlement of China’s Territorial
and Boundary Disputes, (Martinus Nijhoff Publishers, The Netherlands, 2009). After
considering critically China’s traditionally hierarchical views of international order, Pan
recommends third party dispute resolution and says that ‘much could be gained by
China if it were to have a more positive attitude towards third party settlement’ (back
cover).
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Anthony Carty and Fozia Nazir Lone
was to assure an effective individual state administration of territories. The SCS
are now a post-colonial situation in which new Westphalia type states, driven
overwhelmingly by that paradigm, have armed themselves to the teeth across
shoals, half submerged reefs and uninhabited islets. Another comment from the
UK FCO Legal Minute has been that none of the conflicting claims made, until
the end of the 1970s, had the effect of an offer to the international community,
to administer the maritime region in a manner which was reliably useful to third
parties from outside the region.24 The UK took the legal decision that whatever
the merits of its earlier activity in the region it was withdrawing, but on a
critical note. In effect it might be said that the legal claims are more a matter of
national self-assertion than undertakings to administer the territory. They are
not functional in terms of maintaining regional order.
To return to the true geopolitical character and context of Western
international law, Westphalia is a system based upon the decapitation of
international authority. The drive to possess the SCS is pushed by a competitive,
nation-state nationalism. Yet, historically, it is arguable that China had a leading
role in the region. One of the Chinese arguments at present is historical; that
with respect to the 1816 annexation of the Paracel Islands by the King of Annam
(Vietnam), apart from China not being aware of the fact in 1816, Annam was
a vassal state to China. Its subjection to China made it impossible for Annam
to invade China’s territory. China’s historical records did not contain anything
about Annam’s annexation and at the time not international law, but the ancient
Chinese tributary system applied in the region.
In addition, the French presence in Vietnam from the late 1880s confuses
issues of authority. The French occupations of the Spratlys or Paracel Islands
were alleged by them to be on behalf of their Cochin colony and later so-called
French Province. The UK FCO Legal Minute also comments that there were
no Vietnamese effective occupations after 1816 and the acts relied upon now by
Vietnam were carried out by France with respect to the Spratlys. It ceded rights
to Vietnam on the Paracel Islands, but not to the Spratlys. France claimed those
on its own behalf and now the French have informed the British through the
Paris Embassy (1974) that their claims have lapsed.25 That leaves the Chinese
as having the strongest claim on the Spratlys. How does the Westphalia system
of international law cope with these colonial and wartime and, in the case of
China, civil war injuries to the respect for and internal coherence of authoritative
decision makers, so shaken and disturbed by the international history of East
24
See FCO 51/411 (note 11 above).
Ibid.
25
Some New Haven International Law Reflections on China, India
and Their Various Territorial Disputes
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Asia in the last 200 years?
The Westphalia system taken globally seems to react with predictable anxiety
towards China possibly raising the spectrum of restoring the status quo ante
in the SCS to what it was before the arrival of the British Empire and its navy
in the 1830s. What else can China’s talk of historic rights to the South China
Sea do than to give rise to increasing alarm? The claim most recently goes back
to the so-called U-shaped line officially drawn on the Chinese map in 1947,
referring to nine segments off the Chinese coast, called a traditional maritime
line, claiming all islands, atolls and submerged banks, but ambiguous about
whether the waters within the line are historic waters.26 China is also ambiguous
about what is the legal foundation for this overall claim which it does not offer
to withdraw. Hence, a legal commentator concludes, after speculating that the
most likely Chinese meaning behind the claim would be to ‘fishing rights, from
ancient times … As for other rights, it is up to China to make clearer statements
to the public’.27
The outcome for China of combining a Westphalia system of international
law with a traditional Sinocentric perspective appears to be causing unrest
in the region, threatening international legal order in the fashion in which it
has usually been threatened in the past – ie concern about balance of power
between small, large and hegemonic states. The question of the United States
then arises. A key issue is whether the United States has a legitimate part to play
in the region. George Torode, the Chief East Asia correspondent of the South
China Morning Post,28 wrote on 16 November 2010, an article entitled ‘Lines of
Control’. It is about the ASEAN Countries trying to devise international norms
that Beijing has to learn. President Barack Obama, at the recent APEC summit
in Yokohama, said that ‘the US will work with its allies and partners to shape the
context in which China’s rise is occurring. This is the pillar of my approach to
China’. ASEAN’s approach to the SCS is for a multilateral negotiation, a total
settlement and the US Secretary of State, Hilary Clinton, says America offers to
mediate.
What are the goals to be achieved through such communication? President
Obama says clearly: ‘The US and our regional allies and partners share a
fundamental interest in ensuring security, stability and prosperity in Asia. The
peaceful resolution of outstanding differences and respect for international
norms are central to these latter goals.’ Torode goes on to ask what interest
26
Zhou Keyuan, ‘Historic Rights in International Law and in China’s Practice’ (2001) 32
Ocean Development and International Law 149 at 161-63.
27
Ibid, p 162.
28
See: www.scmp.com.
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Anthony Carty and Fozia Nazir Lone
China has in being ‘shaped’, to repeat Obama’s language. Surely, what is really
happening is a struggle between one super power and another rising super power
for hegemony in the region. He says that China has shown double standards in
its treatment of the sinking of the South Korean battleship, compared to the fuss
it made over the arrest of a Chinese fishing vessel off the Senkaku Islands, and
compared to its own sinking of Vietnamese vessels, the killing of Vietnamese
sailors and the detention of hundreds. There is the recent warning of the Chinese
Foreign Minister, Yang Jiechi, in a Forum in July: ‘There are big countries and
there are small countries, and that is just a fact.’ China appears to be doing what
it thinks it can, while small East Asian nations, including Japan with respect to
its dispute in the East China Sea, are seeking strength in numbers (particularly
Vietnam and Japan), coming towards a United States which is actively nurturing
its security relations in East Asia.
3. New Haven approaches to international law and Eastphalia
The jurisprudence Lasswell and McDougal developed starts with the
delimitation of a problem as characterised by a discrepancy between predicted
and desired future decisions regarding conflicting claims on any issue in society.29
This jurisprudence which is a choice-making apparatus enables the decision
makers (participants) to grasp the content of all possible, authoritative and
controlling responses to conflicting claims before making a decision. Law or a
state policy decision in itself is a human construct that is recognised, upheld and
altered by the choices made by the governmentally or diplomatically significant
actor/s, hence is a ‘property of interaction’30 or communication. One must also
come to terms with all the other processes within the culture of the society if
one is to truly understand law in context.31 It is interesting to note that this
approach does not see decisions (communication) that are not taken from
community-wide perspectives of authority and not backed up by control intent
as law. Hence, such decisions may be seen as choices and may be implemented,
but from the New Haven jurisprudence perspective are not authoritative.
Nonetheless state authorities have to embrace transnational, community-wide
29
S Wiessner and AR Willard, Policy-oriented Jurisprudence (2001) 44 German Y B Int’L 96
at 97.
30
WM Reisman, Law In Brief Encounters (Yale University Press, New Haven, 1999), p 2.
31
JH Merryman, ‘The Convergence (and Divergence) of the Civil Law and the Common
Law’ in Mauro Cappelletti (ed), New Perspectives for A Common Law of Europe (Sijthoff,
Leiden-London-Boston, 1978), pp 222-27.
Some New Haven International Law Reflections on China, India
and Their Various Territorial Disputes
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perspectives to be open to them and understand them as much as possible.32
As already briefly mentioned, the formalist approach to international law,
in contrast, starts with the basic concept of validity, law coming from the
concurring wills of states. Formalism supposes that there are no substantive
decisions to be made about such law. Already perfectly conceived rules have
merely to be applied to the ‘facts of the case’. This legal positivism has an
unelaborated theory of ‘facts’ that could probably best be described as follows.
Facts are events which have happened. They are now inert. The positivist lawyer
– judge – legislator or academic commentator approaches the legal task as one of
external judgment in which there is no element of dialectic or dialogue between
the supposed international judge and the events he or she is pronouncing upon.
We think it is the case that the positivist paradigm will not work easily in
the McMahon Line and the SCS. The authority relationship, which it appears
to suppose, does not exist and, without such a relationship, the facts become
as if they were alive as a series of acts of uncoordinated concentrations of state
powers, which are impenetrable precisely because they follow the Eastphalia
paradigm of absolute external sovereignty and exclusive domestic jurisdiction.
These monadic entities have not so much completed actions, but rather they
have deliberately undertaken courses of action with a view to defying particular
and opposing state interpretations of supposedly legally valid norms.
The approaches of the NHS are – in contrast to the Eastphalia model – that
some effort should be made to see the so-called impenetrable state powers as
decision makers, as territorial communities among other like entities. Their
decision making processes should be constantly responding to continually
evolving concrete circumstances, to reach decisions which balance out multiple
and potentially conflicting goals. Therefore, the NHS might imagine that there
are at least two intellectual tasks in the McMahon and SCS context. The first is
to challenge the norms which are at play and reformulate them as values or goals
which are actually moving decision makers in the community. These goals-values
should, therefore, receive some kind of ongoing narrative description, which has
to include a dialectic of empathy between the narrator and the acting subjects
which he or she is purporting to describe.
The second task is to identify the authoritative decision makers who are key
to the possibility of legally conclusive events occurring in either case. The most
32
Myres S McDougal, W Michael Reisman and Andrew Willard, ‘The World Community:
A Planetary Social Process’ (1987-88) 21 University of California at Davis Law Review
807 at 807-972.
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obvious candidates are the states in the region directly involved. Two further
candidates are Taiwan and the US. As soon as these are mentioned, one might
see the fragile and complex nature of the concept of authoritative decision
maker. Does the NHS have a criterion for identifying relevant decision makers?
We think the paradigm of decision maker as embedded in a social process means
that any and all actors who are contributing to a social process cannot logically
be excluded, since they will, in any event, come back to haunt the process. The
NHS goes to the other extreme from formalism in encompassing rather than
distinguishing and excluding.
a. The Indian view: the Indian state caste, the Hindu religion and caste
system
As has already been seen, severe critique of Indian international law and lawyers,
influenced by the so-called Third World Approaches to International Law, has
already put in place a clear analysis of the failure of the Indian state to engage
with its own population in any form of democratic dialectic. Chimni, who has
devoted his life to a study of the place of international law in Indian culture,
draws specifically on the work of Khilnani, to argue that the true success
of Nehru’s rule was far from the dissemination of democratic idealism, but
instead the establishment of the authority of the state in Indian eyes. It became
so etched in the minds of the Indian intelligentsia that it has become deeply
unsympathetic to oppositional stances and movements.33 Chimni argues that,
therefore, ‘the international scholar … did not come to align the language of
international law with the destiny of the Indian people as opposed to the Indian
state’.
He connects this authoritarianism with an aspect of the Hindu religion, the
language and idiom of dharma, in his words ‘now understood as the policies of
a state that could do little wrong’. He quotes Santos as saying that the notion
of dharma revealed a ‘strong undialectical bias in favour of harmony neglecting
the value of conflict as a way towards a richer harmony’.34 While India is a
truly multicultural and multilingual federal state, the main religion remains
Hinduism. Hinduism is a 4000 year old religion that originated on the Indian
subcontinent, and the priests (Brahmans) used to teach Hinduism’s most ancient
33
See Chimni (note 15 above) at 32, drawing upon Sunil Khilnani, The Idea of India
(Penguin, New Delhi, 1998), p 41.
34
Ibid, quoting B Santos, ‘Human Rights as Emancipatory Scripts? Cultural and
Political Conditions’ in B Santos (ed), Another Knowledge is Possible: Beyond Northern
Epistemologies (Lexington Books, Lanham, 2007).
Some New Haven International Law Reflections on China, India
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texts, the Vedas, only to the sons of privileged families.35 The caste system of
India is invested with the mighty sanctions of the ancient Hindu religion. The
dharma covers religio-social righteousness, obligations and customs.
The families of a caste often have a common name and occupation. To be
a good Hindu, a man may believe anything or nothing but he must fulfil his
caste obligations.36 In the authoritative Bhagavadgita, when Arjuna hesitates to
slay his distant relatives, his divine charioteer Lord Krishna reminds him that he
is a Kshatriya (warrior) and that he must never swerve from his caste dharma:
‘Better to do the duty of one’s caste, though bad and ill-performed and fraught
with evil, than undertake the business of another, however good it be. For better
abandon life at once than not fulfil One’s own appointed work.’37
While under the Constitution, India is a secular and democratic state, in the
post-1947 era, democracy is practised in a relative Indian way in which religion,
caste and community differences have assumed a political function. Indian elites
see democracy as a ‘family business’ whereas for the common poor masses, votes
are coupons, which they exchange for some money. The ‘Nehru-Gandhi dynasty’
has been a force in Indian politics since independence and members of this
dynasty have ruled the central government.38 This has led to the development
of yet another political caste. The purpose of Indian democracy is, therefore,
not a way to empower people but only elite families, which has made India a
static society, with a gap between the rich and the poor that is ever widening.
The notion of accountability to the public is culturally alien to the Indian
Administrative Service and its various dependent branches such as the police.
Protected by the law, and often possessing a significant advantage in education
and social status over those they administer, India’s bureaucrats continue to
enjoy many of the anti-liberal and anti-democratic prerogatives possessed by
their colonial predecessors.39 Today, India is, quite undeniably, one of the most
35
Joseph W Elder, ‘Hinduism, Modernity and Knowledge: India’ in R Cowen and AM
Kazamias (eds), International Handbook of Comparative Education (Springer, The
Netherlands, 2009), p 873.
36
Mason Olcott, ‘The Caste System of India’ (Dec 1944) 9(6) American Sociological Review
648 at 648.
37
Gita, chap 3, verse 35. See the International Gita Society; available at: http://www.gitasociety.com/content2011/gitainenglish.html#tabs-8.
38
Sanjoy Majumder, ‘India’s politicians keep it in the family’ BBC News (10 June 2009);
available at: http://news.bbc.co.uk/2/hi/south_asia/8089734.stm.
39
Leonid Peisakhin and Paul Pinto, ‘Is transparency an effective anti-corruption strategy?
Evidence from a field experiment in India’ (2010) 4 Regulation & Governance 261 at 263.
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hierarchical societies in the world. Over and above huge income disparities,
there are caste, religious and community differences that are deeply engraved
into everyday social and political relations. No doubt, the nature of caste and
community interactions has changed over time, but these considerations remain
the guiding signposts both in the public and private domains.
Indian diplomacy and negotiation are based on naked power. They are
restrictive and inflexible and can be best described by applying an analogy and
negotiation strategy of the Kathakali dance. 40 Kathakali is a highly stylised
classical Indian dance-drama that originated in Kerala about 400 years ago. In
this dance, dancers role play on themes from the Hindu religious epic of the
Ramayana and the Mahabharata.41 This dance is noted for the attractive makeup of characters, elaborate costumes, detailed gestures and well-defined body
movements which are highly mechanical.42 Applying the rationality of this dance
to Indian negotiation, negotiators are bound by bureaucratic procedures and
dictated by rigid rules just like the dance itself. The negotiation is conducted to
achieve predestined outcomes and hence the process is purely mechanical, and
the negotiator is merely performing his religious duty (dharma) just like Arjuna,
the master archer in the Bhagavadgita, did.43 The logic of this negotiation is that
you quietly listen to the opposite party, nod your head and show attention. The
psychological edge of this tactic is that your opposite party will end up thinking
that you are his or her friend and will give you a better deal.
The inter-elite communication that India had with China on the territorial
disputes of Tibet were guided by the Kathakali negotiation as the negotiators
were only implementing the predestined goal of the status quo. The Indian
Diplomatic Services, which was established in 1947, is not grounded in public
legislation.44 Yet, decisions both national and international should meet the
aspirations of a society. For international decision making, it is significant that it
should reflect the aspirations of international society’s members, both states and
nations. However, in India, major foreign policy decisions are the prerogative
of the political leadership. The External Affairs Ministry usually provides the
inputs but the Indian leadership prefers to act through a small insider adviser
40
PKC Low, Successfully Negotiating in Asia (Springer, Berlin, 2010), p 133.
Ibid, p 136.
42
Ibid, p 133.
43
Ibid, p 134.
44
KS Rana, Asian Diplomacy (Woodrow Wilson Center Press, Washington DC, 2009), p
50.
41
Some New Haven International Law Reflections on China, India
and Their Various Territorial Disputes
111
group, with the cabinet and its committees providing formal clearance. A
culture of examining alternatives is written off and does not exist. Decision
making tends to be intuitive, within closed circles of high personalities.45 The
idiosyncratic nature of decision making comes from a mixture of religion,
caste and community differences. For its territorial disputes, India adopted
the formal bilateral interactions and the process of diplomacy was not to work
out any authoritative decision but merely to make sure colonial decisions were
maintained. In other words, the diplomatic process was conducted with Indian
perspectives and base values with predetermined outcomes of the status quo and
a focus on territorial gains rather than human dignity. India does not see groups
that claim self-determination as participants but merely as objects of disputes,
who cannot claim such a right in the post-colonial era.
Many very important Indian scholars such as PS Rao, RP Anand, BS
Murty, VP Nanda, KM Venkatraman and SP Sharma went to the Yale Law
School. According to Chimni, despite this, there was limited influence of
the NHS. It was attractive because it rejected colonial formalism. However,
its interdisciplinary character did not receive attention. For example, Murty
saw the policy-oriented approach as a neutral frame that could be used for
clarifying and articulating national interests.46 Hence, it was easy for China in
the 1950s to provoke India into an over-extended and inflexible stance on the
McMahon Line, without China itself having to appear that it was not willing
to compromise for the sake of good relations with India.47 Further studies have
evidenced India’s inability to perceive when China is offering to compromise
with her on the frontier dispute.48
The view expressed by Lamb in 1964 continues to be widely held: ‘… in
any genuine boundary discussions with India the present Chinese Government
would be willing to abide by a freshly negotiated boundary of more or less the
McMahon type so long as such a boundary did not carry with it the implications
of the March 1914 notes’.49
b. China and the doubtful pleasures of ambivalence
45
Ibid, p 72.
BS Murty, Propaganda and World Public Order – The Legal Regulations of the Ideological
Instrument of Coercion (Yale University Press, New Haven, 1968).
47
See Stahnke (note 1 above).
48
Claudia Astarita, China-India Interactions: Implication on Borders (PhD, The University
of Hong Kong, 2010).
49
See Lamb (note 8 above), p 169.
46
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Anthony Carty and Fozia Nazir Lone
There appears, therefore, to be what the philosopher Alistair McIntyre calls
incommensurables in the SCS conflict. China has every interest in adhering to
the positivist model and inclining not at all towards the NHS. However, it is
probably not adequate for Chinese scholars simply to sit back and allow the SCS
situation to be increasingly configured as a security situation in which a ‘China
threat’ argument colours and distorts classical international law arguments.
There are maybe some relevant ideas of the Chinese philosopher Zhao Tingyang
at the CASS, in Beijing, which may allow one to take a more proactive initiative
in redefining the framework within which the SCS conflict may be seen.
In numerous essays in English – available openly on the web – including
‘Rethinking Empire’,50 Zhao highlights a basic weakness of the Western idea
of law and the State; that nation states in the liberal, democratic West see
only chaos beyond boundaries. One needs a whole worldwide vision of the
world which takes a worldwide measure and viewpoint. The idea that beyond
one’s own state the ‘other’ is the enemy needs to be replaced by a proactive
strategy which turns the enemy into a friend. There is need to conceive of the
world as a single political system that is greater and higher than all individual
countries. The key philosophical element of Zhao’s thinking that is relevant to a
reconfiguration of the concept of authoritative decision maker is the following.
The decision maker has to cease to start from the self and ask how others
threaten and impinge upon the self. Order (public, internal or international) is
not about the rights of individuals but about the ontology of relations among
various peoples, focusing on the world and not the nation-state perspective. The
primary task is to focus instead concretely on the perspective of the ‘other’, to
learn values from others, rather than to impose one’s own values on them. The
western system is to impose or project internationally one’s own domestic values
rather than to engage in inter-civilizational dialogue.
Our conclusion from what Zhao is saying is the following. One has to avoid
a dualistic positioning between the self and the other. Hence, there is no place
to take as governing concepts in international relations, territorial integrity and
sovereignty. China has to realise that the configuration of disputes in the SCS are
50
Tingyang Zhao, ‘Rethinking Empire from a Chinese Concept “All-under-heaven”’ (2006)
12 Social Identities 29; Tingyang Zhao, A Philosophical Analysis of World in terms of Allunder-heaven (open access on the web); for a view that Zhao is weaving a Sino-centric
conspiracy – presumably because the ideas are Chinese – see William A Callaghan,
‘Chinese Visions of World Order: Post-hegemonic or a New Hegemony’ (2008) 10
International Studies Review 749.
Some New Haven International Law Reflections on China, India
and Their Various Territorial Disputes
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a legacy of colonial Western relations interrupting a long East Asian history, and
that its – China’s – concept of historical rights in the region has to take account
of new relationships of post-colonial states in the region. The big question for
China is not whether it should own particular, uninhabitable reefs, but what
place the US should have in its – China’s – own reconfiguration of its relations
with its post-colonial Southern neighbours.
If these relationships are based upon Chinese claims rooted in classical
western international law, they can only be conflictual and they can only be
resolved through superior military strength. If they are to be resolved through
recourse to ancient Chinese historic right, then this is to ignore the emergence
of the nation states of the region out of, in some cases, extremely troubled
colonial interludes. Some other way has to be found which can be based upon
a true rethinking of the original historical relationship of Chinese relations with
its neighbours, which takes, as Zhao would say, full ontological account of the
effects of the colonial interlude in battering these neighbours into combative,
competitive nation states.
China retains a legal stance that the SCS belong to her, while at the same
time she is willing to negotiate the issue of development of resources. The
Chinese submission of its maritime claim to the East and South China Seas
(Beijing, 13 May 2009) has the China Daily quoting the Foreign Ministry
spokesman Ma Zhaoxu as stating again what is ‘indisputable … jurisdiction over
South China Sea islands and their adjacent waters’. Ma then also assures that
the Chinese government will resolve maritime disputes through peaceful means.
One proposal, which appears to be on the table is that, if China’s neighbours will
recognise its rights in the SCS it will be willing to share the resources.51 These
proposals leave China’s neighbours with the feeling that accommodating China’s
insistence on legal status may have unwelcome consequences. Hence, there is
an attractiveness for them to appeal to the ballast of the traditional Westphalian
paradigm of international law, the balance of power.
51
Wu Shicun and Ren Huaifeng, ‘More Than a Declaration: A Commentary on the
Background and the Significance of the Declaration on the Conduct of the Parties in the
South China Sea’ (2003) Chinese Journal of International Law 311.