Decoding China’s occupation at Pangong Tso

In Context

China’s new bridge on Pangong Tso forces India to rethink posture in Ladakh

About Locations of bridges 

• China started constructing a broader bridge next to its previous construction.
  • It built the first bridge – about 400 metres long and 8 metres wide – on the Pangong Tso close to the friction areas on the north bank of the lake and the Chushul sub-sector on the south bank.

• The site of the bridge is around 20 km east of Finger 8 on the lake’s north bank – which is where the Line of Actual Control (LAC) passes. 

• The construction site is just east of an old ruin called Khurnak Fort, where China has major frontier defence bases.

Illegality in international law

• China’s belligerent action and military strategy to acquire territory place Pangong Tso in the category of occupied and disputed territory.
  •  In the eyes of international law, occupation is a temporary phenomenon. 
• The Permanent Court of Arbitration’s Award in the Island of Palmas case noted that only the continuous and peaceful display of territorial sovereignty (peaceful in relation to other States) is as good as a title; the title based on contiguity has no standing in international law. 
• The best provisions in contemporary international law for understanding territorial questions are Article 2(3) and Article 2(4) of the UN Charter. 
  • All the members are required under Article 2(4) to refrain in their relations with one another 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 UN. 
  • All the members have to settle their disputes by peaceful means.

ICJ judgments

• China could take the plea that it is building a bridge peacefully; that it is not causing damage to human beings or property. 
  • There are several judgments by the International Court of Justice (ICJ) relating to a state’s non-violent construction of activities in disputed and occupied territory to clarify the situation in Pangong Tso. 
• In ‘Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory’, the ICJ examined the inadmissibility of acquisition of territory by force. 
  • The court took the position that the construction of a wall in the Occupied Palestinian Territory case strongly indicated a breach of Article 2(4).
  •  The court observed that the construction of the wall created a “fait accompli” on the ground that could well become permanent, and hence tantamount to a de facto annexation.
  •  Therefore, the ICJ seems to have decided in the case that the construction of the wall amounted to the acquisition of territory by force.
• The ICJ judgement in ‘Certain Activities Carried out by Nicaragua in the Border Area’ is also important in understanding China’s moves. 
  • The court described the construction of caños (pipeline) and deployment of troops in Costa Rica by Nicaragua as a violation of the territorial sovereignty of Costa Rica.
  •  It added that Nicaragua’s consideration that its activities are within its own territory does not exclude the possibility of characterising the activities as unlawful.
• The message from these ICJ judgments is that if a state with the help of its military presence tries to change the status quo peacefully in a disputed and occupied territory, such a move stands to be unlawful.

Why India should be particularly concerned about China’s construction activities on Pangong Tso. ?

•  India’s war with China in 1962 revealed its diplomatic miscalculations and inadequacies in defence preparedness.
  • China surprised India with an announcement in 1957 that it had built a road through Aksai Chin linking Tibet and Xinjiang. 
    • India protested this move formally in 1958.

• China does not seem to favour the idea of entering into treaties for resolving territorial disputes and maritime disputes with its neighbours. 
  • Recently, China began constructing a bridge on a portion of Pangong Tso which India claims is its international boundary and is within its territory. 

• China does not adhere to the general rules of international law; rather, it tries to derive its claims on the basis of historic rights to the detriment of the rights of its neighbours, as is the case with its claims in the South China Sea.

India’s response

• Both bridges are in areas that have continued to be under the illegal occupation of China since the 1960s.
• Officially, India has said that the site of the bridge is under illegal occupation of China, and that it is monitoring all Chinese activity closely.
• India is in no way “lagging behind as far as infra is concerned”.
  • In 2021, over 100 projects were completed by the Border Roads Organisation (BRO) in the border areas, most of which were close to the China border.
  •  India is also improving surveillance along the LAC, apart from building new airstrips and landing areas.
• India has made it clear on several occasions that the union territories of Jammu & Kashmir and Ladakh are an integral part of India and it expects other countries to respect India’s sovereignty and territorial integrity.
•  The government keeps a constant watch on all developments that have a bearing on India’s security and takes all necessary measures to safeguard its sovereignty and territorial integrity.

Conclusion 

• India has neither accepted China’s unjustified claims on that portion nor its construction activities. 
• Therefore, China cannot take the plea that India has acquiesced; that there is an expression of consent by conduct or inaction by India.
•  In contemporary international law, the most realistic approach to settling a border agreement is to create in each other shared expectations of mutual obligation.