IN the context of the recent face-off between China and India, it is imperative to understand the difference and legal distinction between the Line of Control (LoC) of Pakistan and India and the Line of Actual Control (LAC) of China and India. Without appreciating this difference, the developments under international law on both the lines and their disputes cannot be contextualised.
The LAC is a line that serves as an international border between India and China. It is delimited through certain legal instruments, including old border treaties, but largely represents the positions of both sides on ground that is a consequence of state practice between the two neighbours.
The international law applied to LAC-related disputes between China and India is the ‘law of territory’ and applicable principles of demarcation and delimitation. These laws and principles have been broadly laid down by academics and the International Court of Justice in cases including the Frontier Dispute (Burkina Faso/ Niger), 2013, Cameroon vs Nigeria, 2002, Frontier Dispute (Burkina Faso/ Republic of Mali), 1986, and Sovereignty over Certain Frontier Land (Belgium/ Netherlands), 1959, which primarily provide that there must be a display of sovereignty and authority over the territory on a continuing and peaceful basis.
Greater awareness of the legal distinctions is essential.
The LAC is a lengthy international frontier with three main sectors — eastern (Sikkim), western (Ladakh) and central (Nepal) — each having peculiar legal features. The Indian position on border disputes is surprisingly contradictory in all three sectors whereas China has implemented a consistent policy to assert the executive authority of its government over the chunks of land it claims all along the length of the LAC.
On the other side, the LoC dividing India and Pakistan is set up in a completely different legal context and is not an issue merely of a bilateral nature. The LoC is the eventual legal outcome of the chapters 6 and 7 framework under the UN Charter. Given the presence of the UNMOGIP, the legal basis and environment of the LoC are totally distinguishable from the LAC.
Contrary to the 1993 self-restraining agreement between China and India on the LAC, there is no such restraint between India and Pakistan over the LoC where fighting, shooting and shelling leading to military and civilian loss of life continues. The situation at the LoC can be better described as that of armed conflict under international law as opposed to occasional scuffles at the LAC.
The LoC divides the erstwhile state of Jammu & Kashmir between India and Pakistan. However, India-held Kashmir is largely viewed as occupied territory not only under international law but also under the constitution of India itself as evident from Articles 370 and 35A. On the other hand, Azad Jammu & Kashmir and Gilgit-Baltistan are viewed as territories that Pakistan administers with a far greater degree of legitimacy under local and international law. The scrutiny of these arguments was done several times by the supreme courts of both Pakistan and India and they repeatedly affirm the conclusion stated herein.
In an attempt to firm up the legal title to occupied Kashmir, India undertook a lawfare offensive on Aug 5, 2019, to hollow out Article 370 and nullify article 35A by issuing an excessively detailed, complex legislative instrument called the Jammu & Kashmir Reorganisation Act, 2019, followed by an order in 2020. It, however, went for legal overkill by claiming territories on Pakistan’s side of the LoC. Pakistan, obviously, rejected the move. It is evident that Pakistan’s sovereign acts of administering AJK and GB through legal instruments and other acts have not been contested by the international community except by India and that too only recently.
The Reorganisation Act had another side that not many in Pakistan focused on — legal pronouncement to reclaim Ladakh including the territory under Chinese sovereignty. India, through legal pronouncements, sought to acquire what it lost to China on the battlefield. India appointed a ‘governor’ of Ladakh and issued a map. China felt offended by this unilateral move and protested against it as an illegal action which could not in any way affect China’s position on Ladakh. India’s exaggerated lawfare moves are resulting in a stand-off between China and India in all LAC sectors.
Pakistani policymakers must understand openings that legal distinctions between the LoC and LAC offer. This also creates room for the possibility of coordination between Pakistan and China as both, at a narrow level, face a unilateral challenge from the same controversial legal instrument issued by India, albeit from different legal positions. At a wider level, detailed appreciation of the law of territory needs to be undertaken including examination of specific instances of overlapping claims throughout the LAC.
The writer is a former caretaker federal law minister.
Published in Dawn, June 7th, 2020