China and India are locked yet again in a stand-off of Himalayan proportions. Almost five weeks after Indian troops trespassed and forcibly halted the activities of a Chinese road construction crew on a narrow plateau at the China-Bhutan-India tri-junction area in the Sikkim Himalayas, the two sides appear no closer to resolving their quarrel. The area in question, Doklam, is the subject of a legal dispute between China and Bhutan, is under the effective jurisdiction of China, and holds an important security interest to India.
The restoration of the status quo ante in the Doklam area will be a protracted affair. Unlike previous impasses on their disputed Himalayan frontier earlier this decade, which coincided with a warming phase in ties and were wound down with the exhibition of good sense on both sides, bilateral ties have hit a sour patch.
China, as the aggrieved party, bears little interest in unwinding the stand-off on terms other than its own. Worse, there is no agreed definition among the parties of the object of discord at stake – to the point that China does not even view India as the appropriate interlocutor to engage with to unwind the stand-off.
China’s position on, and solution to, the stand-off is blunt and straightforward. The alignment of the China-India boundary in the Sikkim Himalayas sector is mutually defined as per Article 1 (“the line commences at Mount Gipmochi on the Bhutan frontier, and follows the … water-parting”) of the Anglo-Chinese Convention of 1890 relating to Sikkim and Tibet. On numerous occasions, Indian representatives from Prime Minister Jawaharlal Nehru down have formally accepted this.
By interfering in a Chinese road construction project roughly 3km to the north of the plain letter of Article 1, India has violated China’s territorial sovereignty. As a precondition for any dialogue, India must vacate its trespass unconditionally.
To the extent that the area in question is the subject of a dispute due to Bhutan’s belated claim to the area in the 14th round of Sino-Bhutanese boundary talks, this is wholly a matter between Beijing and Thimpu. Until such time, Bhutan – let alone India, which has no locus standi to intervene – must respect China’s effective jurisdiction over the Doklam area.
For its part, India does not deny the validity of Article 1 of the Anglo-Chinese Convention of 1890. But it says the alignment on the ground is not an established fact. The same article says the “boundary of Sikkim and Tibet [was to] be the crest of the mountain range separating the waters flowing” southwards and northwards. The “line [that] commences at Mount Gimpochi on the Bhutan frontier” violates this principle and should in fact be 6km to the north – making the area of trespass wholly Bhutanese soil. By way of its bilateral Friendship Treaty of 2007 with Bhutan, under which both sides “cooperate closely … on issues relating to their national interests”, India enjoys a basis to intervene in the dispute on Thimpu’s behalf.
According to India, China’s road construction activity in this area constitutes a “significant change of the status quo”. It disturbs India’s security interests as well as violates an “understanding” between Indian and Chinese boundary negotiators in 2012 that the final alignment of the boundary in the tri-junction area would be settled in consultations involving India. China must therefore desist from further road building in this area and India stands ready to mutually ease the stand-off on this basis.
But India’s troop intervention in Doklam is not without grave political risk. While the security logic of its actions holds merit and the provision in its Friendship Treaty with Bhutan affords a veneer of respectability, New Delhi’s diplomatic communication throughout this episode has been couched in the imprecise political language of status quos and understandings. By contrast, China’s communication has been crisply grounded in the black-and-white language of legal sovereignty.
India’s troop intervention in Doklam is also at risk of setting a slew of consequential precedents.
For the first time ever, India is militarily engaging a state actor – and one no less than China – from the soil of a third country. For a status quo-ist power, as it sees itself, this is a leap into the unknown.
Second, it is militarily intervening on behalf of a friendly partner country to uphold the latter’s claims of sovereignty to a patch of territory which the partner country does not effectively control. Not even the mighty US military extends defence obligations to disputed territories that its allies do not exercise effective control over – let alone intervene on their behalf. Third, the China-India-Bhutan is not the only unresolved tri-junction along India’s northern frontier. Payback in the same coin could be highly unpalatable for India.
Having engaged in a high-risk venture, the onus resides on India to devise the conditions of its exit. To this end, it must directly confront the tangled legalities of the situation. New Delhi does not possess legal standing to directly engage China to ease the stand-off in Doklam. That standing is held by Bhutan. Efforts to pre-empt this dilemma via talks will only add to the question of New Delhi’s motivations and purposes.
New Delhi must push Thimpu to take the lead in engaging Beijing and devise a mutually acceptable boundary protocol that acknowledges China’s effective jurisdiction of the area, pending final settlement, in exchange of the restoration of the status quo ante as of June 16, 2017. In parallel, New Delhi must commit to unilaterally vacating the Doklam area while privately holding out for Beijing’s reiteration of the 2012 understanding that the trijunction boundary points will be finalised in consultation with all three parties concerned.
By Sourabh Gupta
Source: South China Morning Post