China’s land law: Ominous signs

Beijing passed a new Land Boundary Law last month. This Boundary Law notes that China abides by “treaties” concluded with foreign countries on “land boundary affairs” additionally containing “provisions to carry out the reorganisation of the districts in the border areas.” The passing of the October 2021 Land Law is meant for “the protection and exploitation of the country’s land border areas,” the Xinhua News Agency noted. The law deals with both land and boundary that touches India and Bhutan.

The law is notably preceded by Bhutan and China signing an MoU on “Expediting the Bhutan-China Boundary Negotiations” on October 14, 2021. Nehru had under Article 4 of the 1949 “Treaty of Perpetual Peace” returned to Bhutan “about 32 square miles of territory”. The “updated” India-Bhutan Treaty, 2007, however, rejected the older treaty term of the settlement of disputes by arbitration in favour of negotiations.

Today, India and Bhutan have unresolved land border disputes with China, even as China has disputes in the South China Sea (SCS). The land law casts a shadow of sea on the mountains. Does China fish out legal normativity from the sea to cook it for the land?

The Chinese approach stands on three prongs. First, the land law says China’s sovereignty and territorial integrity is “sacred”. China has since December 2014 begun to tactically invoke her “ancient” geographies. It issued a position paper in December 2014 on the Philippines taking the SCS dispute for international arbitration. The 'position paper’ said the “Chinese activities in the SCS date back to over 2,000 years ago.” This paper was very notably preceded by the International Tribunal of the Law of the Sea Judge Zhiguo Gao and professor Bing Bing Jia, both Chinese nationals, saying in January 2013 that the SCS has been a calm area since “ancient times”.

For Gao and Jia, the SCS’s “strategic and economic significance” was traceable back “two millennia”. The international judge, the law professor, and the Chinese state all write in exactly the same ink. In the Germany-Denmark North Sea Continental Shelf case, the International Court of Justice had established the “land dominates the sea” principle. This position was subsequently settled in a treaty in the UN Convention on the Law of the Sea, 1982, where Beijing sat negotiating for nine years.

Second, China since 2013 appears to reverse the United Nations Convention on the Law of the Sea (UNCLOS) wisdom. China’s approach in the South “sea” is now being brought to the southern “land”. The key to understanding China’s “sea dominates land” is to be found in unpacking the use of “sacred” in Beijing’s land law.

Third, China has increasingly couched her territorial claims on land as well as the sea in terms of “economic and social development”. The law seeks to “support economic and social development as well as opening-up in border areas, improve public services and infrastructure in such areas” to “promote coordination between border defence and social, economic development in border areas”. The text of the law reads like directive principles of China’s state policies.

In 2020, China used a large number of troops trying to unilaterally redraw the Line of Actual Control with India. This included the June 2020 Galwan Valley clash that marked the worst violence since 1967, Pangong Lake, Demchok, Depsang, and other areas. Eighteen months into the tensions in Eastern Ladakh, military talks are still ongoing. Meanwhile, Bhutan and China have been negotiating their boundary since 1984. The 1988 Joint Communique on the “Guiding Principles for Boundary Settlement” and the 1998 Bhutan-China Border Areas “Agreement on the Maintenance of Peace, Tranquility and status quo”, as Thimphu noted in October 2021, have been the “guiding forces” behind the negotiations.

India’s response

“India and China have still not resolved the boundary question,” the Indian Ministry of External Affairs responded to China’s October 2021 Law. Instead, India and China have so far “agreed to seek a fair, reasonable and mutually acceptable resolution to the boundary question through consultations on an equal footing.” In the interim, India and China have concluded “bilateral agreements, protocols and arrangements to maintain peace” along the LAC.

The land law, New Delhi said, does not in India’s view “confer any legitimacy to the so-called China Pakistan Boundary Agreement” of 1963. India has consistently maintained the China-Pakistan Boundary Agreement is “illegal and invalid”. New Delhi expects China to avoid undertaking action that “unilaterally alter the situation in the India-China border areas” under the pretext of this law. India’s lawfare, if any, so far appears diminutive.

Given China’s preference for bilateral settlement to the territorial disputes on land and in the sea, the passing of unilateral domestic laws in disputed areas may not augur well for Asian peace.

(The writer is a Professor at Jindal Global Law School)