The United States Senate Resolution on Arunachal Pradesh:
A Violation of the United Nations Charter
Prof. Dr. h.c Mehmet Sükrü Güzel,
President of the Center for Peace and Reconciliation Studies
Introduction
On March 15, 2023, the United States (US) violated the UN Charter by adopting a bipartisan resolution titled as “A resolution reaffirming the state of Arunachal Pradesh as Indian Territory and condemning the People's Republic of China's (PRC) provocations in South Asia” by the Senate recognizing Arunachal Pradesh as an integral part of India. In the resolution text it is stated that the Sino-Indian war of 1962, the US has recognized the McMahon Line as the international boundary between the PRC and the Indian state of Arunachal Pradesh; and the US recognizes the state of Arunachal Pradesh not as disputed territory but as an integral part of the Republic of India, and this recognition is not qualified in any way.[1]
The resolution, introduced by three powerful US Senators – Jeff Merkley, Bill Hagerty, and John Cornyn – represented a rare bipartisan signal of unequivocal support to India. Merkley is a progressive Democratic Senator from Oregon, who also serves as the co-chair of the congressional executive commission on China, while Hagerty, who is the Republican Senator from Tennessee, is a former US Ambassador to Japan. Both Merkley and Hagerty are members of the Senate Foreign Relations Committee (SFRC). Cornyn is a Republican from Texas, who is also the co-founder and co-chair of the Senate India Caucus, a former Senate majority whip, as well as a member of the Senate Select Committee on Intelligence. [2]
In the resolution text it is stated that the Sino-Indian war of 1962, the US has recognized the McMahon Line as the international boundary between the PRC and the Indian state of Arunachal Pradesh; and the US recognizes the state of Arunachal Pradesh not as disputed territory but as an integral part of the Republic of India, and this recognition is not qualified in any way.
Origin of the Violation of the UN Charter, the McMahon Line and the Simla Treaty
The McMahon Line had been written as part of the 1914 Simla Treaty and is named after Sir Henry McMahon, foreign secretary of the British-run Government of India when India was a colony and the chief negotiator for settling disputes with China. McMahon Line extended for 890 kilometers (550 miles) from Bhutan in the west to 260 km (160 miles) east of the great bend of the Brahmaputra River in the east, largely along the crest of the Himalayas. The McMahon Line had put the territory of Arunachal Pradesh inside the British-run colonial India for the first time in the history.
Historically, Arunachal Pradesh was under China administrated Tibet for centuries. In 1271, when the Yuan Dynasty (1271-1368) was founded, Tibet as well Arunachal Pradesh officially became an administrative region directly under the jurisdiction of the Central Government. In 1368 the Ming Dynasty replaced the Yuan Dynasty in China, and inherited the right to rule Tibet. When the Qing Dynasty replaced the Ming Dynasty in 1644, it further strengthened administration over Tibet. From 1727, High commissioners were stationed in Tibet to supervise local administration on behalf of the central authorities. Officials were also assigned about this time to survey and delimit the borders between Tibet (i.e. Xizang) and Sichuan, Yunnan and Qinghai. The Authorized Regulations for the Better Governing of Tibet, promulgated in 1793, had 29 articles. National boundary markers will be erected in a number of places where southwest Tibet borders on countries like India and Nepal. The high commissioners will make an annual tour in Tibet to inspect the defense arrangements of the troops stationed there and matters concerning border markers. All foreign affairs involving Tibet will be left completely in the hands of the high commissioners.
The United Kingdom (UK) official recognized Arunachal Pradesh as an integral part of China administrated Tibet first time in 5 December 1893 with the treaty of “the China-Commerce Regulations Trade in Tibet”.
In the autumn of 1911, a revolution took place in China's interior, overthrowing the 270-year-old rule of the Qing Dynasty and establishing the Republic of China (RoC).[3] In 1913, when the UK convoked a conference in Simla, India to discuss Tibet's boundaries with India and its relations with Tibet, the newly founded Republic of China (RoC) and the Tibetan government at Lhasa were invited to attend the conference. If Tibet had the treaty-making capacity, representatives of the RoC should not be invited as a rule of law at the time. Consent of China was a must at the date of the signature of the Simla Treaty with its signature whereas it was not realized.
The Simla Treaty was never registered within the UK treaty series and said to be a forgotten treaty till 1935. It was claimed by the UK that Sir Olaf Caroe, a Deputy Secretary in the Foreign Department, who had said to “ discovered” in 1935 that the McMahon Line drawn just before the World War I, was forgotten in the subsequent years because of the British Government`s pre occupation with the war efforts. To rectify this and to prevent the inclusion of what he called Indian Territory inside Tibet, he proposed that the Anglo Tibetan Agreements should be published without further delay to deny the Chinese the opportunity to claim that no ratified agreement between India and China was in existence. It was also suggested that immediate steps should be taken to show the McMahon Line was India`s boundary in official maps. Accordingly, a new edition Aitchison Treaties[4] was published in 1937 but to make the changes unobtrusive, it was passed off as the 1929 edition. This amounted to a virtual falsification of official documents. Copies of the original 1929 edition of the Aiitchison`s Treaties were withdrawn and destroyed, with the possible exception of one, kept in the Harvard Library. However, from 1937, the Survey of Indian maps started showing the McMahon Line as India`s boundary in the northeast, with the qualification that the boundary was undemarcated. [5]
In April 1938, a small British force led by Captain G. S. Lightfoot arrived in Tawang first time to Arunachal Pradesh. This is where the sixth Dalai Lama Tsangyang Gyatso was born. The British Froce informed the people in Tawang that the district was now Indian Territory. China administrated Tibet lost its effective control over Arunachal Pradesh after centuries in 1938.
International Law and Boundary Treaties
As a principal of the international law, the only states that are bound by treaties are those that have signed and ratified them (or are parties to them). For third states, they do not constitute obligations. Treaties defining boundaries are different. There may be an objective territorial regime that applies to third parties erga omnes. As the International Court of Justice (ICJ) stated in the Eritrea/Yemen case, boundary agreements (treaties) are also a legal reality that impinges upon third states because they have erga omnes effect. [6] In Nicaragua v. Colombia, the ICJ declared that: “[I]t is a principle of international law that a territorial regime established by treaty achieves a permanence which the treaty itself does not necessarily enjoy’ and the continued existence of that regime is not dependent upon the continuing life of the treaty under which the regime is agreed.[7] Boundary treaties are not subject to Article 2.7 of the UN Charter in other words, boundary treaties are not an internal matter of States` political choice between different treaties if there exists.
McMahon Line and the Simla Treaty under the League of Nations Legal System
The creation of the League of Nations (LoN) with its Covenant marked a new era of multilateral cooperation. The Covenant of the LoN bound its Member States to try to settle their disputes peacefully. By joining the LoN, Member States also renounced secret diplomacy, committed to reduce their armaments, and agreed to comply with international law.[8] To prevent secret treaties in Article 18 of the Covenant of the LoN it was written that:
“Every treaty or international engagement entered into hereafter by any Member of the League shall be forthwith registered with the Secretariat and shall as soon as possible be published by it. No such treaty or international engagement shall be binding until so registered.”
All the past international treaties as an obligation should be registered to the LoN Secretariat. China had signed multiple treaties with the UK regarding China administrated Tibet including the determination of the boundary between British ruled India. These list of these treaties were given to the Secretariat of the LoN by the UK other than China as an obligation arising from the Article 18 of the Covenant of the LoN in 1920. These treaties regarding China administrated Tibet are:
China and Tibet. Regulations. Extraterritoriality 20.04. 1908.[9]
China and Tibet. Regulations. Posts, Telegraphs, &c., in Tibet. 20.04.1908[10].
China and Tibet. Regulations. Trade, in Tibet. Amending those of 5 December 1893. Jurisdiction,.[11]
China-. Commerce. Regulations. Trade in Tibet. Amending those of 5 December 1893. 20.04.1908.[12]
The UK did not register the Simla Treaty with the Secretariat of the LoN. Due to the non-registration of the Simla Treaty with the Secretariat of the LoN, any possible assumption of validity of the Simla Treaty was nullified by the UK.
Each member state of the LoN pledged to respect the territorial integrity and political independence of all members of the LoN for the first time in the history of humanity. Conquest between member states of the LoN was forbidden. Any boundary changes were to be determined with the consent of the related LoN member states. By establishing a bond of solidarity between Member States, the LoN is considered the first attempt to build a system of collective security. This principle relied on a simple idea: an aggressor against any Member State should be considered an aggressor against all the other Member States.[13] Protecting LoN members' territorial integrity was codified in Article 10 as follows:
“The Members of the League undertake to respect and preserve as against external aggression the territorial integrity and existing political independence of all Members of the League. In case of any such aggression or in case of any threat or danger of such aggression the Council shall advise upon the means by which this obligation shall be fulfilled.”
McMahon Line and the Simla Treaty under the United Nations Legal System
All the international treaties registered with the Secretariat of the LoN, after its dissolution passed to the UN under Article 102 of the UN Charter where it is written that:
“1. Every treaty and every international agreement entered into by any Member of the United Nations after the present Charter comes into force shall as soon as possible be registered with the Secretariat and published by it.
2. No party to any such treaty or international agreement which has not been registered in accordance with the provisions of paragraph 1 of this Article may invoke that treaty or agreement before any organ of the United Nations.”
The territory integrity of regarding RoC administrated Tibet including Arunachal Pradesh was entered under the protection of Article 10 of the Covenant of the LoN. After the dissolution of the LoN and establishment of the UN, Article 10 of the Covenant of the League of Nations was replaced by the Article 2.4 of the UN Charter in which it is written that:
“All Members shall refrain in their international relations 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 United Nations.”
At present, Arunachal Pradesh falls under Article 2.4 of the UN Charter as a territory of PCR administrated Tibet.
Conclusion
The legality of the so-called resolution of the Senate of the US depends on one hypothesis. The hypothesis is that the McMahon Line drawn just before World War I, was forgotten in the subsequent years because of the UK`s preoccupation with war efforts. It was discovered in 1935 by Sir Olaf Caroe, Deputy Secretary in the Foreign Department. For this assumption to be true, the UK had to register first the Treaty of Simla under Article 18 of the Covenant to the Secretariat of the LoN after its discovery in 1935 but never did so. And secondly, the consent of China was a must for the legality of the Simla Tretay and the McMahon Line. Tibet was recognized as an integral part of RoC by the LoN after its establishment. This meant that Tibet had no capacity to sign a treaty on its own without China's consent even before the establishment of the LoN. As Aruncahl Paradesh was recognized as within the territorial integrity of RoC, the Simla Treaty was never to be recognized as a legal treaty by the LoN. Changing the borders between regarding RoC administrated Tibet and colonial ruled India required China's consent before the UK could sign any treaty. Therefore, the UK never registered the Simla treaty to the LoN under Article 18 of its Covenant even though it was said to be a forgotten treaty until 1935.
The Simla Treaty was never registered to the Secretariat of the LoN nor to the UN under Article 102 of its Charter, and no State could ever mention its legality. The treaties registered within the UN legal system between China and India define Arunachal Pradesh as an integral part of PRC.
The so-called resolution of the Senate of the US recognizing the McMahon Line as the international boundary between the PRC and the Indian state of Arunachal Pradesh; and the US recognizes the state of Arunachal Pradesh not as disputed territory but as an integral part of the Republic of India is a grave violation of the Article 2.4 of the Charter and the Principles and Purposes of the UN. Due to the fundamental nature of some of its norms, the UN Charter itself has a special character. This includes its principles and purposes, as well as its universal acceptance. In accordance with Article 103 of the UN Charter, any conflict between the obligations of the UN Members is null and void by virtue of international law, recognized hierarchical relations as written:
“In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.”
The US Senate resolution on recognizing McMahon Line as the international boundary between India and PRC is null and void according to the Article 103 of the UN Charter. As of today under the UN Charter, Arunachal Pradesh is an integral part of PRC under the illegal occupation of India.
By the ICJ`s acceptance of the erga omnes character of boundary treaties , each state and its organs and members of any organs have the obligation of making due diligence regarding the validity of any boundary treaty within the UN legal system. The Senate members US Senators – Jeff Merkley, Bill Hagerty, and John Cornyn – failed to do so or acted as if a boundary treaty is governed by Article 2.7 and any state is entitled to make its own choice. The resolution of the U Senate should be understood as an international wrongful act of the US within the UN legal system.
Prof. Dr. h.c Mehmet Sükrü Güzel,
President of the Center for Peace and Reconciliation Studies
[1] S.Res.75 - A resolution reaffirming the state of Arunachal Pradesh as Indian territory and condemning the People's Republic of China's provocations in South Asia, https://www.congress.gov/bill/118th-congress/senate-resolution/75/text?s=1&r=53 (Accessed 13.05.2023)
[3] Permanent Mission of People`s Republic of China to the UN, White Paper 1992: Tibet - Its Ownership And Human Rights Situation, http://un.china-mission.gov.cn/eng/gyzg/bp/199209/t19920930_8410933.htm (Accessed 13.05.2023)
[4] Aitchison, C.U. The collection contains treaties, engagements and sanads made between the united provinces of Agra and Oudh, Bengal, Bihar, Orissa, the Central province and the government of British India. The collection is arranged according to the provinces.
[5] Aran Kumar Banerji, Borders, “Aspects of India`s International Relations 1700 to 2000: South Asia and the World”, Ed.Jayanta Kumar Ray, Pearson Education India, 2007, p.203.
[6] Report of International Arbitral Awards, Territorial Sovereignty and Scope of the Dispute (Eritrea and Yemen), Volume XXII, UN, New York, 2006, pp, 209-332, p.250.
[7] Nicaragua v. Colombia, Preliminary Objections, p.861. https://www.icj-cij.org/sites/default/files/case-related/154/18778.pdf (Accessed 13.05.2023)
[8] Archives of the League of Nations, R1227, Section 17, Doc.7126, Dos.6614, 1920, Geneva, UN Library.
[9] Treaty Series, No 4, 1907-1911, Published by His Majesty`s Stationery Office, London, 1912, p.89.
[10] Ibid, p.94.
[11] Ibid, p.99.
[12] Ibid, p.79.
[13] The League of Nations, https://www.ungeneva.org/en/library-archives/league-of-nations . (Accessed 13.05.2023)