The Village Nobody Talked About: An International Law Analysis of Chinese Hamlet in Arunachal through the Prism of India

September 6, 2021/ Law Review and Blog Committee/International Law

By Rakshit Sehrawat, a student of Gujarat National Law University, Gandhinagar, and Shreya Tripathi, a student of Maharashtra National Law University, Nagpur ‘Territorial Integrity’ is one of the most invoked phrases in the International Legal System. It is recognized as one of the linchpins of the International legal world, grounded on the fundamental concepts of ‘Non-Intervention’ principle. Since the end of the World War II, the international legal community has often been confronted with the thorniest question of protecting and preserving the State’s Territorial Integrity. The expression territorial integrity is of wide amplitude encompassing within its ambit, both territorial sovereignty and territorial preservation. The genesis of the principle can be traced back to the Treaty of Westphalia, 1648 which talked about the territorial integrity and non-intervention principle as a pivotal concept in International Law. The principle of territorial integrity is enshrined in the first chapter of the UN Charter which is evident from the explicit mention of the termAll members shall refrain from threat or use of force against the territorial integrity of any state ….”. Many International instruments such as Organization of Arab states (1948), the African Union (2000), Helsinki Final Act (1975), also mention the paramount significance of protecting territorial integrity. In his magnum opus titled Just and Unjust Wars, Michael Walzer, while underscoring the importance of territorial integrity of the nation observed that it is grounded upon the premise of non-interventionist approach by the states to maintain the internal as well as external sovereignty of any nation. It ensures the sanctity of a nation’s border and signifies the autonomy of a nation within its own territory. Unfortunately, multiple countries often become victims to the violation of their territorial integrity, and this time it is India. The recent construction of a village in Arunachal Pradesh by China, as confirmed by the satellite images, is a worrisome issue concerning India’s territorial integrity. According to the media reports, “Chinese foreign ministry has justified this construction on the grounds of construction in its own territory and has called it a matter of China’s sovereign rights”. Undoubtedly, China has always claimed Arunachal Pradesh as a part of Chinese territory, however, India has consistently refuted this stand by exercising sovereignty over the north eastern state of Arunachal Pradesh. In the backdrop of this illegal construction, the authors attempt to argue that China’s action amounts to the breach of the established principle of non-intervention, violation of Article 2(4) of the UN Charter and breach of Treaty obligations. The Violation of Principle of Non-Intervention China’s construction of a village in Arunachal Pradesh, a state within the territorial sovereignty of India, amounts to violation of the principle of non-intervention. The principle simply states that no nation can interfere or intervene, directly or indirectly, in the domestic affairs of any other nation. It stands on the premise of respecting the territorial boundary of each nation by maintaining peace and order in the international domain. In the case of Nicaragua v. United States, the ICJ observed that “the principle of non-intervention is a corollary of the principle of sovereign equality of States as it forbids the States or groups of States to intervene directly or indirectly in internal or external affairs of other States.” In a similar vein, the PCIJ in the Lotus Case (France v. Turkey) has observed that “the first and foremost restriction imposed by international law upon a state is that a state may not exercise its power in any form in another state’s territory.” Thus, it is required that every State rightfully conduct its affairs without any outside interference. The principle is so important that it has acquired a status of jus cogens prohibitionin the International law, evident from the UN Charter and the rulings in Nicaragua Case and Lotus Case. Thus, in other words, the principle has acquired the status of customary international law, non-compliance of which is not permissible, subject to certain exceptions. Scholars have often used terminologies like “sovereignty”, “the dignity of states”, “the inviolability of state territory,” and “jus cogens”, to highlight the enormous importance of the principle in ensuring the territorial integrity of a nation. It also finds its recognition in the ‘Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of their Independence and Sovereignty 1965, G.A. Res. 2131 (XX)’ and by the ICJ in the case concerning Armed Activities on the Territory of Congo (DRC v. Uganda). Despite its enormous significance, China’s non-interventionist policy is widely criticised. Doubtless to say, China has firmly affirmed the non-interventionist approach at the Bandung Conference and on numerous other occasions, however, its interventionist activities have shown that there is a paradox apparent between China’s actions and words. China, being the economic and military giant in the global world, has transcended across frontiers to further its domestic interests. In other words, China has made ‘silent intervention’ by constructing Hamlets in the Indian territory thereby interfering in the domestic affairs of India. China silently engages in some interventions but rejects the term “intervention” to justify its encroaching conduct. In the name of constructive intervention, China is projecting itself as a “New Assertive China”. Hence, it would not be wrong to say that ambiguous nature of Chinese foreign policy is a double edged sword. On one hand, it can produce optimal benefits. On the other hand, it incurs reprobation. The Violation of Article 2(4) of the UN Charter Article 2(4) of the UN Charter reflects two cornerstone principles of international law, firstly, the principle of non-intervention and secondly, the sovereign equality of all nations. The employment of the expression ‘refrain from use of force against territorial integrity’ under Article 2(4) of the UN Charter includes within its sweep, illegal encroachment into the frontiers of other nations or cross border events which impinge upon the territorial sovereignty of the nation. Applying this to China, it being a member of UN Charter, its construction of a village in the Indian territory of Arunachal Pradesh is tantamount to cross border illegal activity, thus, violating the territorial sovereignty of India and the purposes of the United Nations within the meaning of Article 2(4) of the UN Charter. Also, China cannot take recourse to the right of self-defence mechanism within the meaning of Article 51 of the UN Charter because the requirement of ‘armed attack by another nation’ is clearly absent in the instant case as India has not launched any sort of armed attack on China’s conduct of construction of village. The Violation of Treaty Obligations Time and again, various international instruments, General Assembly Resolutions, ICJ judgments and International treaties have outlined the fundamental importance of territorial sovereignty in the International Legal system. In the General Assembly Resolution 2625 (XXV), titled ‘Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations’, the General Assembly stressed upon the territorial sovereignty of nations enshrined under Article 2, Para 4 of UN Charter, and mandated the states to abstain from any such activity which may disrupt the territorial integrity of some other country. In a similar vein, the Declaration on the Right to Development adopted by the UNGA in Resolution 41/128 emphasised upon the value of territorial integrity of a nation. In light of this, needless to say, China’s construction of a village on the sovereign territory of India is a blatant violation of India’s territorial sovereignty. Furthermore, according to the Manila Declaration, states shall refrain from the threat or use of force against territorial integrity of each other. From this discussion, it is clear that China’s activity of constructing a village in Arunachal Pradesh is a serious and flagrant violation of the fundamental norm of territorial sovereignty, territorial integrity, international customary law and the purpose of the UN Charter. Concluding Remarks On the basis of analysis of an internationally recognized legal framework to secure the Territorial Integrity of a country, China has put a question mark on the application of such principles as it set up an evident Hamlet within the territorial boundary of India. The said Sino activity has not only defied the Sovereignty of India over the region, but has also violated the established principle of Non-Intervention, Article 2(4) of the UN Charter and the Treaty obligations. As the name suggests, the well-established principle of Non-Intervention requires a State, not to interfere, either directly or indirectly, in the domestic affairs of some other State. China, being a member of the UN Charter, is bound by its provisions which under Article 2 itself state that the principle of non-intervention and the sovereign equality of all nations are the pivotal principles of International law. However, China has failed to comply with both. In furtherance to it, China has even violated various Treaty obligations, as specifically required by the Declaration on Friendly Relations, Declaration on Right to Development and the Manila Declaration that the states should respect the territorial integrity of each other. Though the Indo-China Border Dispute dates back to ages, but the continuous violation of the principles of International law from the Sino side shows that the diplomatic talks have not been much effective, and there is a harbinger of a devastating encounter to come.