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SOURCE: SUNDAY GUARDIAN LIVE

The UN, and every state ‘contracting’ with India (including Pakistan) are held in international law to have had the knowledge that the then GoI exceeded its powers under the said constitutional law by introducing wishes of the people to settle the question of accession of J&K to India, and, that too, in the absence of its sovereign ruler.

Forgotten in the clamour in India for restoration of status quo in Ladakh in the Western Sector along the Line of Actual Control (LAC) is a curious fact—that despite having attained Independence in 1947, India has till date not managed to pin down China to delineate the boundary between India and China. China, firmly in occupation of substantial territory claimed by both countries, is in no hurry to settle the boundary. After all, China stands to gain by having the boundary remain undemarcated at least till it is in a position to hammer India into a hard bargain that coincides with Chinese territorial, political and economic interests. That takes us to the question as to what should New Delhi do about it.

New Delhi claims Aksai Chin in terms of the British drawn “Johnson Line” of 1897, which placed Aksai Chin in the erstwhile princely state of Jammu & Kashmir (J&K). J&K, upon accession to India on 26 October 1947, became Indian territory. China acquiesced to Johnson Line by not raising any objection at the time of accession of J&K in 1947 or even at the time of commencement of the Indian Constitution in 1950.

Akshay Chavan recounts how China was nowhere in the picture for most of the history of Ladakh, Xinjiang and Tibet, and that it was the Communist Party of China that conquered Xinjiang from local warlords in 1949, annexed Tibet in 1950-51 and converted the ancient caravan route between Xinjiang and Tibet, passing through Aksai Chin, into a modern motorable road in 1956—a road of which New Delhi learnt only in 1958 through Chinese maps. China then quietly occupied Aksai Chin in 1959 and retained it post the 1962 India-China war. China now asserts that Aksai Chin region forms part of its Xinjiang province, and further claims that it is India that is illegally in possession of its territory in Arunachal Pradesh and Sikkim on the Eastern Sector of the LAC.

Much has been written about China’s global effort to emerge as a superpower. China’s Belt and Road Initiative (BRI) is the cornerstone of its foreign policy today which has already lulled more than 100 countries into its sphere of influence. While China has been visibly asserting itself, for instance, in the South China Sea, it is, however, the geo-strategic encirclement of India over the decades that is far more marked.

Let us start with Pakistan. Pakistan’s former Foreign Minister, Khurshid Mahmud Kasuri concedes in his book that since “both Pakistan and China continue to have unsettled borders with India”, the “respective relationships of Pakistan and China towards India provided the strategic underpinnings to their relationships with one another.” He describes this relationship as “higher than the Himalayas, deeper than the oceans, sweeter than honey, and stronger than steel”.

This relationship has translated into Chinese support for Pakistan on the Kashmir issue (within the UN and outside) and in extensive military, trade, commercial and barter ties. China negotiated the Sino-Pakistan Boundary Agreement of 2 March 1963 with Pakistan in terms of which it cheekily took from Pakistan a part of the northern frontier of the Pakistan Occupied J&K (PoJK). Further, Pakistan handed over de facto control of the Gilgit-Baltistan region of the PoJK to China, which in turn gave it strategic, logistical, diplomatic and political depth to vie for power in Central Asia. Beijing has made huge investments over the years to expand the Karakoram corridor as a strategic pathway. The now China-Pakistan Economic Corridor (CPEC) which, according to Kasuri, “envisages a road, railway, fibre-optic communication, and pipeline linkages between Gwadar in Pakistan and Xinjiang in Western China” will link “China directly to the Persian Gulf and the Arabian Sea”. The CPEC is a vital part of China’s BRI.

Beijing has been persuading India’s other neighbours to become a part of its BRI. The common pattern is that Chinese companies offer huge infrastructure development contracts (often with inflated rates), while China assures generous loans (with high interest) to the fund-starved countries to finance these projects. Should a country be unable to repay the loan, it falls in the BRI debt trap and is at times forced to compromise its sovereignty by handing over the project itself to China. A good example is Sri Lanka, which joined the BRI, having enjoyed heavy investments since at least the 2000s. China extended loans for building the geostrategic Hambantota port by Chinese contractors. When Colombo could not repay the loan, it was compelled in December 2017 to hand over the port to China on a 99-year lease in lieu of its BRI debt.

The strategically located Maldives, with its proximity to the major shipping routes, is also part of the BRI. The Chinese investments in infrastructure, construction and tourism are symbolized by the China-Maldives Friendship Bridge connecting Male with its international airport and the artificial island, Hulhumale. The BRI has already saddled Maldives with huge debts owed to China through inflated government contracts with Chinese entities backed by sovereign guarantees.

China has been steadily investing in Myanmar, with focus on infrastructure, power, oil, gas and mining and tourism sectors. China has emerged as Myanmar’s largest trading partner. China used its UNSC seat to protect Myanmar from international rebuke over the Rohingya issue. Myanmar eventually joined the BRI and signed on deals for the “China-Myanmar Economic Corridor” and rail and deep-sea port projects, which would, amongst other benefits, provide Beijing greater access to the Indian Ocean and an alternative route for energy imports.

China improved its relations with Bangladesh after having sided with Pakistan in the 1971 Bangladesh War and having even vetoed Bangladesh’s membership of the UN. China has become Bangladesh’s single largest investor and trading partner as also supplier of weapons. Bangladesh joined the BRI in 2016. Chinese investments in Bangladesh are in infrastructure, power, finance, culture, tourism, and technology. Significantly, China upgraded the Chittagong port and has been building an industrial park there, along with road and railway lines linking the port to Kunming in China’s Yunnan province.

China has reached out to Nepal, leading to the two countries agreeing to hasten the building of the Trans-Himalayan Multi-Dimensional Connectivity Network. Such Network would include highways, railways, aviation, and communications. Kathmandu has introduced Mandarin in its schools and taken pains to reassure Beijing that it views Tibet as part of China. Consistent with its known propensity for nibbling away territory of its neighbours, China has annexed the Rui village in the Gorkha district of Nepal. Such is the dominance of China that Kathmandu did not even whimper at such annexation while belligerently accusing India of occupying three areas which it has now mapped as Nepalese territory.

China is persuading Bhutan to join the BRI by highlighting religious, cultural and sports ties and dangling numerous scholarships before Bhutanese students. Over the years, China has become the third biggest exporter to Bhutan, not only of items like machinery, cement and toys but also tourists. It remains to be seen whether, or rather, when Bhutan will succumb to such friendly persuasion.

New Delhi must surely be aware of such encirclement, which would render India extremely vulnerable. More so, with the buffer offered by Indo-Tibetan border gone long back. The hit that the BRI projects have taken due to the Covid-19 pandemic might have slowed such encirclement. But Beijing is bound to move in for the kill at a time and place of its choosing. And when it does, it is certainly not likely to settle the boundary between India and China on Indian terms.

HOW INDIA CAN COUNTER CHINA

Let us now examine whether New Delhi can counter China. It is true that New Delhi has kept the Tibet issue somewhat alive by extending its hospitality to the Dalai Lama, the spiritual Tibetan leader, and the Tibetan government-in-exile. New Delhi has denounced the CPEC and boycotted the BRI. New Delhi’s recent flirtation with the US and its new found affection for Taiwan are surely messages that Beijing would rather not receive. Again, the new map of J&K published by New Delhi, which shows Ladakh as a Union Territory complete with Aksai Chin, would not have gone down well with Beijing.

However, none of these measures will compel China to sit with India to demarcate the Indo-China boundary. Nor would they persuade China to refrain from making the innumerable intrusions it has made for decades to gobble up, by perfecting the salami slicing technique, more and more Indian held territory along the LAC. It is, indeed, painful to witness the audacious build-up of PLA troops in Indian territory, including Aksai Chin; the barbaric assaults on our brave soldiers by PLA troops from within such Indian territory and the fresh Chinese claims now being raised on more Indian territory, which are evidently calculated to build territorial “credits” to be used at the time of negotiations. We are left with depressing visuals of New Delhi cautiously asking Beijing to respect status quo, impotent protests calling for the boycott of Chinese goods, Chinese food and Chinese guests in hotels, and incessant media debates by hysterical anchors and newly minted defence experts on how to handle China.

International relations are conventionally best left in the hands of the political establishment and foreign service. While the government gives the political direction, the diplomats work behind the scenes to adeptly exploit the opponent’s fault lines and create circumstances to bring the opponent in line. We have obviously failed to do so for decades now, thereby ruling out a political or diplomatic solution to the issue at hand. Given China’s economic clout and defence capabilities, New Delhi does not really have an economic or military solution either. In this scenario, what really are the options for New Delhi to protect India’s interests?

I believe that one way to restrain the Chinese effectively is by taking control of the CPEC running through the Gilgit-Baltistan region of Pakistan occupied Jammu &Kashmir (PoJK) so as to undermine their BRI. After all, CPEC is the single largest piece of the various international routes envisaged by the BRI. The only chink in China’s armour is the crucial fact that the Gilgit-Baltistan region of PoJK, through which the CPEC is conceived, is Indian territory.

China is asserting its claim, whether rightly or wrongly, to Aksai Chin. China admittedly has no claim to the Gilgit-Baltistan region of PoJK. In fact, even the taking of territory of PoJK by China under the Sino-Pakistan Boundary Agreement in 1963 has been made subject by Article 6 thereof to the settlement of the Kashmir issue between India and Pakistan. If India recovers the PoJK, including the Gilgit-Baltistan region, from Pakistan, it will be in a position to control the CPEC and use it to its advantage.

Now, how does India recover the PoJK? My book, Unravelling the Kashmir Knot, details New Delhi’s unbelievable approach since 1948 of not recovering PoJK.

The book documents from authoritative sources how the UNSC, seized with the Kashmir issue, had been subverted in 1948 at the instance of the British and its allies to ensure that Pakistan retained de facto control of PoJK, so that such territory could be made available to the British for its then ongoing Great Game with Soviet Russia. Scarred by such international politics, the then Government of India (GoI) took the easy way out—it decided that the UNSC had nothing to do with the Kashmir issue and that India would keep what it had and Pakistan could keep what it had. In other words, New Delhi simply disowned the PoJK and its unfortunate people, who remain citizens of India under the Indian Constitution but live under foreign rule till date. This unofficial policy of maintaining territorial status quo, which has been detailed in the book, was followed by New Delhi emphasizing the inviolability of the Line of Control (LoC) in the Simla Agreement of 1972 and reiterating the same in the Lahore Declaration of 1999. New Delhi has given mere lip service to Parliament’s resolution of 22 February 1994 requiring Pakistan to vacate PoJK. Instead, New Delhi has unofficially striven for the conversion of the LoC into the international border, as is clear from the low key protests at the formal annexation by Pakistan of the Gilgit-Baltistan region or for the use of such Indian territory for the CPEC. It is another matter altogether that the policy of maintaining territorial status quo, or of the conversion of the LoC into the international border, is constitutionally impermissible, for reasons given in the book.

One fallout of such policy has been to simply ignore Chinese presence in PoJK. By emphasizing that the Kashmir issue is a bilateral one, New Delhi has not only been giving Pakistan a standing other than as an aggressor but has also been blanking out China—the 1994 Parliamentary resolution incomprehensibly makes no reference to China at all. It is one thing for New Delhi to seek to put a wedge between Pakistan and China and to deal with them separately or to deny China any standing on the Kashmir issue. It is another matter to adopt an ostrich like approach in refusing to even see Chinese presence in PoJK.

New Delhi’s misdirected approach of simply giving up the endeavour to recover PoJK was perhaps dictated by the realization that it did not have any military, political, diplomatic or economic option to do so. The book suggests an entirely different approach to recover PoJK, namely, the use of international law by New Delhi to vindicate its claim to the entire territory of J&K.

In this regard, the book relies on declassified British archives to narrate the British colonial politics that led to the British scripting the Partition of the Indian sub-continent. The purpose was to create a pliable “Pakistan” to serve British geo-strategic and defence purposes for the Great Game. The political Partition agreement was crystallized in British statutes—the Indian Independence Act of 1947, and the modified Government of India Act of 1935—statutes that created modern day India and Pakistan. These British statutes were accepted by both India and Pakistan. Indeed, there is no doubt about the legitimacy of the states of India and Pakistan created by such statutes, and that such statutes comprised the constitutional law governing both India and Pakistan.

According to these British statutes, the British paramountcy over the 560 odd princely states, including J&K, was to lapse on 15 August 1947. The sovereign rulers of these states, including J&K, alone could decide to accede to India, Pakistan or remain independent.

The sovereign ruler of J&K unconditionally acceded to India on 26 October 1947 in the manner prescribed under this constitutional law. The then GoI was led by the British, for reasons elaborated in the book, to view the accession as being provisional and subject to the wishes of the people. By doing so, the then GoI overlooked that once a political decision (the Partition agreement) had been crystallized into law (i.e., the British statutes), the government created by that law cannot act contrary to the terms of that very law. It is well settled that an executive cannot, by making promises, clothe itself with authority which is inconsistent with the Constitution that gave it birth. The constitutional law creating modern day India mandated that it was only the sovereign ruler who could decide on the accession of his state to India. The then GoI had no power to lay down a contrary policy that the accession would be decided by the wishes of the people. Further, Pakistan is not in a position to deny such constitutional law as then there would be no “Pakistan”. Since the accession of J&K to India was in terms of the same constitutional law that also created Pakistan, it would be fair to say that the law that gave birth to Pakistan itself made J&K a part of India.

The UN, and every state “contracting” with India (including Pakistan) are held in international law to have had the knowledge that the then GoI exceeded its powers under the said constitutional law by introducing wishes of the people to settle the question of accession of J&K to India, and, that too, in the absence of its sovereign ruler. As a result, not only was pledge of the then GoI to hold the plebiscite in J&K unconstitutional and not binding on India, the UNSC resolutions for holding the plebiscite were themselves without jurisdiction and in violation of the UN Charter.

Be that as it may, it was the then GoI that had, in the first place, created doubts about the unconditional nature of the accession of J&K to India, taken the Kashmir issue outside India’s domestic jurisdiction by going to the UN, and conferred a disputed territory status on J&K. Therefore, it is New Delhi that needs, as a first step, to confirm, as it were, its title deeds to J&K so as to remove the disputed territory tag on J&K. The only body in existence whose pronouncement will be considered as being authoritative and having legal effect on the international community is the principal judicial organ of the UN, namely, the ICJ. Since India is entitled in law to the entire territory of J&K, it lies in India’s interest to have the ICJ examine the Kashmir issue, though of course confined to the eight legal propositions formulated in the book. Such examination is not precluded by the Simla Agreement or any other bilateral agreement between India and Pakistan.

Should the ICJ give a verdict in India’s favour, and it is likely to do so in view of the legal principles formulated in the book, the very presence of Pakistan (and China) in the territory of J&K would constitute “aggression” under international law, and the international community would be under an obligation to put an end to that illegal situation as illustrated by the 1971 ICJ decision in Namibia. The enforceability of such ICJ verdict and the spectre of international politics are matters that have also been considered in the book.

In the unlikely event that the ICJ decides against India by opining that the future of J&K will be decided by the wishes of the people, New Delhi can always fall back on its official stand that the people of J&K have endorsed the accession, as is evident from the resolution of 15 February 1954, of the elected Constituent Assembly of J&K.

The consequence flowing from a favourable ICJ decision is that New Delhi stands to regain the PoJK, including Gilgit-Baltistan, and the parts occupied by China under the 1963 Boundary Agreement. The current anti-China sentiment has provided an opportune setting for India to move the ICJ, and to recover physical possession of the entire J&K. This is perhaps the only way by which New Delhi can control the CPEC. New Delhi’s grip on the CPEC could well lead to China becoming more flexible on Aksai Chin and, for that matter, the Eastern Sector of the LAC. New Delhi can then at least hope for a just and timely demarcation of the boundary between India and China, complete with the benefit of saving the huge human, developmental and financial costs that go in mindlessly maintaining status quo along the LAC, and for that matter, the LoC.