International territorial dispute is one of the root causes for the States to be constantly at loggerheads. The situation gains even more importance when two Asian giants i.e. India and China continue to face off over their decades-old border dispute. This article aims to provide a legal perspective of the international territorial/boundary disputes, different modes of its settlement and bringing to the fore the much talked about Sino-Indian LAC (Line of Actual Control) dispute.
Territory
To position itself in exercising authority at the national level and effectively participating in the international realm, it is prerequisite for the State to have possession over territory and therefore, territory plays an integral role in International law. As per Article 1 of the Montevideo Convention on the Rights and Duties of States, 1933, one of the conditions for recognizing State as a person of International law is that it should have ‘a defined territory’ though not necessarily implying that its frontiers shall be precisely fixed. Accordingly, territorial sovereignty is the cornerstone of statehood.
Dispute
The territorial dispute is a legal dispute between one or more States regarding the possession, control, acquisition, or attribution of the terra i.e. territorial land. So can any distinction be carved out between territorial and boundary disputes? There are various school of thoughts upon the same and different scholars have their own set of opinions. However, this article does not go deep in distinguishing them and just depicts them in a general manner. Boundary/Delimitation disputes are the most common types of disputes involving the issues relating to precise demarcation, location, construction, or implementation of the land boundary amongst States. Despite any nomenclature used, both of these disputes revolve around the broader question with the thrust upon ‘territorial sovereignty’. Usually, these disputes are associated with the important economic, social interest of the States or are part of any strategic geographical location.
Resolving Disputes
Identifying the conditions under which territorial disputes can be peacefully resolved is of central concern to both policymakers and international scholars. This is because territorial disputes historically have been a frequent cause of international wars. Though such disputes are difficult to resolve, time and again they have been peacefully settled by the States.
There are different approaches that may be adopted by the States for resolving their undergoing territorial/boundary dispute. The competing States may bring their respective claims before the International Court of Justice, Permanent Court of Arbitration or parties may agree upon resorting to alternate resolution methods including Mediation, Conciliation and Good Offices.
International Court of Justice
Article 34 of the ICJ Statute makes it clear that only a State can be made a party to the case and accordingly can raise a dispute. Moreover, the States can also recognize the compulsory ipso facto and without special agreement, the jurisdiction of ICJ in all legal disputes[i]. A study depicts that there are broadly nine factors that are relevant in adjudicating the competing international territorial claims by the States: treaty law, geography, economy, culture, effective control, history, uti possidetis juris (‘to whom possessed by law’), elitism and ideology[ii]. Though ICJ applies international conventions, customs, general principles of law recognized by civilized nations in adjudication, it also seizes the power to decide a case ex aequo et bono (what is equitable and good), if the parties agree thereto.
Permanent Court of Arbitration
The cornerstone for the establishment of the Permanent Court of Arbitration (‘PCA’) was the immediate settlement of international disputes, which are otherwise not possible by way of diplomacy[iii]. The procedures involved therein are quite flexible and in fact, rules can be modified with the agreement between the parties. Sources of law that PCA applies in resolving any dispute are the same as that of ICJ.
Alternate Resolution Methods
These methods emphasize more on settling the dispute by taking both the parties into confidence involving active participation in the process. ‘Mediation’ is a process in which a third party acts as a mediator/intermediary with the consent of the disputing States to let the States come down to the settlement terms. ‘Conciliation’ refers to a process through which a third party, with the consent of the parties to a dispute, consults with the parties separately and may make suggestions to each of them about how they could resolve their dispute[iv]. ‘Good Offices’ involves a diplomatic means for the dispute settlement.
Sino-Indian Dispute
Six-decades long border dispute between two Asian giants had resulted in various skirmishes and a full-fledged battle. The instant dispute can be seen as a blended territorial and boundary dispute as sovereignty over a large and several small territories are claimed by both nations along with differences over the cartography of Line of Actual Control (‘LAC’). LAC is the 3,448 kilometres long de-facto boundary, which came into existence after the truce of 1962 war over the contested Himalayan region. Unfortunately, rough demarcation of this separating line does not precisely delineate the border resulting in overlapping claims, making it primarily a boundary dispute.
Bilateral Agreements between India and China
No official border has ever been negotiated, however, for the first time in 1993, countries entered into an agreement on maintenance of peace and tranquillity over LAC. Article 1 of such agreement encapsulates that the question of the boundary shall be resolved through peaceful and friendly measures sans any use of force or its threat thereof by either side[v]. Further to strengthen the confidence-building measures along the LAC another agreement was executed in 1996 disclaiming the use of military capability against each other. Article II of the 1996 agreement reiterated the position of the countries to settle the boundary dispute mutually in a fair and reasonable manner. Subsequently, the executed agreements of 2005, 2012, and 2013 were for the enhancement of cooperation, fostering long-term constructive partnership and at the same time primarily maintaining the position of mutually resolving the boundary dispute.
Limitations of International Law
International law has its own boundaries and is not a panacea for everything. States accord to international law when it best serves their interest, however when stakes are high, they strategically do forum shopping as they do not like to take the domestic/political brunt if things turn otherwise. Moreover, there is no enforcement mechanism of the judgments passed by ICJ, though the Security Council can step in, if non-compliance poses threat to international peace and security. In fact, International arbitral awards also lack self-enforcement potential and when the concerned governments fail in enforcing them, it is the national courts that can enforce the same. Moreover, States also get reluctant due to the time consuming and expensive affair involved in referring such disputes to International institutions.
LAC Impasse vis-a-vis International Law
Undoubtedly boundary disputes are hard to resolve easily especially when the dispute involves an expansive territory between India-China. It is often argued that referring the Sino-Indian dispute to the international law would bear some fruit. Both India and China have maintained the position that the boundary question would be settled through peaceful and friendly consultations and mutually acceptable settlement. Moreover, though India had acceded in recognizing the compulsory jurisdiction of the ICJ, however, it has kept the disputes regarding status of the territory or the modification/delimitation of its frontiers or any other matter concerning boundaries outside ICJ’s jurisdictional purview[vi]. Accordingly, unless both the countries agree to refer the dispute, it seems unlikely any international forum could adjudicate. Therefore, in my view, both nations should internally step up measures and coordinate with their counterparts in focusing on the practical aspects of the dispute with an equitable approach to resolve the boundary in question expeditiously. Moreover, it might also be beneficial to settle issues in a staggered manner with only a particular stretch of the boundary at a time and then gradually proceed instead of resolving it en bloc.
References
[i] Article 36.2 of the Statute of the ICJ.
[ii] Brian Brian Taylor Sumner, “Note: Territorial Disputes at the International Court of Justice,” Duke Law Journal, (2004).
[iii] https://pca-cpa.org/en/about/introduction/history/
[iv] Law Library, American Law and Legal Information: American Law Encyclopedia, Vol. 4, description of U.S. Federal Mediation and Conciliation Service.
[v] Agreement on the Maintenance of Peace and Tranquility along the Line of Actual Control in the India-China Border Areas, 1993.
[vi] https://www.icj-cij.org/en/declarations/in Indian Declaration recognizing the jurisdiction of the Court as compulsory dated 27, September 2019.
This Article is written by Siddharth Bangar, Advocate, Delhi High Court.
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