India-China border standoff in Sikkim has its roots in differences over Calcutta Convention of 1890

Maps are ubiquitous things to us these days. We pull out our phones and we neatly see not just the political boundaries of the world but also its geographical demarcations. We have information about roads, waterways, mountains, plains and other features that exist in the map in order to guide us. Today's maps are very accurate thanks to satellites and complex mathematics that are used to project the map onto a two-dimensional plane.

But this wasn't the case in history. Historically, maps were vague and couldn't be completely relied upon. The Survey of India established in 1767 was a leader in the development of effective topographical data-gathering in Asia and produced some of the most effective and usable maps for the region. It still continues to do so today. But maps will always have a margin of error, which happens because of the projection of 3D data on a-two dimensional scale. So topographic indicators are often used to make maps more specific. But this can also be tricky. For example, parts of the US-Mexico border were delineated by the river Rio Grande. This river changed its course and that caused distortions in the map.

 India-China border standoff in Sikkim has its roots in differences over Calcutta Convention of 1890

Representational image. AFP

India right now is in the midst of a similar dispute with the Chinese over how the Calcutta Convention of 1890 is to be interpreted. The Convention was a tripartite one entered into by India, Sikkim and China. British India had won many battles and wars against the Chinese, finally getting the closed nation to open up to imperial trade and commerce. In fact, even till this date, there is a cannon at the Raj Bhavan in Calcutta that was taken from the Siege of Nanking in 1842. The cannon has a plaque under it which reads: "The peace dictated to the Emperor of China under the walls of Nanking by the military force of England and of India". Because of various treaty arrangements, the Chinese would end up negotiating with Calcutta and later Delhi when it came to questions concerning Sikkim and Bhutan as well, as the British exercised foreign policy control over those states.

For the Chinese, conventions concluded with the British imperial government are a touchy point. They show that their country was often the weaker party in these treaties due to the might of the British Empire. Which is why when India succeeded to the treaties negotiated by the British Empire with respect to boundary questions, it laid the foundations for numerous border disputes that were going to arise. But the key here is that without these treaties, India would look very different. For example, almost all of Uttarakhand is now a part of India because of a treaty between the East India Company and the Nepalese Monarchy. Other parts of India have also been incorporated by virtue of these agreements, the key being Arunachal Pradesh.

But the current dispute is more tricky. It relates to a tri-junction point in Sikkim and it hinges on an integration of Article 1 of the Calcutta Convention of 1890 concerning the boundary of the erstwhile state of Sikkim.

Article 1 of the Calcutta Convention states:

"The boundary of Sikkim and Tibet shall be the crest of the mountain range separating the waters flowing into the Sikkim Teesta and its affluents from the waters flowing into the Tibetan Mochu and northwards into other rivers of Tibet. The line commences at Mount Gipmochi on the Bhutan frontier, and follows the above-mentioned water-parting to the point where it meets Nepal territory."

The problem here is that due to errors by the cartographers, Mount Gipmochi was the incorrect starting point. The boundary may have been delineated as the crest of the mountain rage separating the Teesta from the Mochu. The line actually commences at Batang La and not Mount Gipmochi. Mount Gipmochi is about 84 km south of Batang La, which is the topographical tri-junction point.

So, how does the treaty have to be interpreted? The Vienna Convention on the Law of Treaties doesn't apply as the Calcutta Convention was concluded prior to the Vienna Convention. But the Vienna Convention is an effective restatement of customary international law. So, we can use it as a guide to mould how this is to be interpreted.

Article 31 of the Vienna Convention states:

"1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.

2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes:

(a) any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty; (b) any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty.

3. There shall be taken into account, together with the context:

(a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions; (b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation; (c) any relevant rules of international law applicable in the relations between the parties.

4. A special meaning shall be given to a term if it is established that the parties so intended."

At the outset, it is important to look at the intent of the Calcutta Convention. The preamble of the treaty says:

"Whereas Her Majesty the Queen of the United Kingdom of Great Britain and Ireland, Empress of India, and His Majesty the Emperor of China, are sincerely desirous to maintain and perpetuate the relations of friendship and good understanding which now exist between their respective Empires; and whereas recent occurrences have tended towards a disturbance of the said relations, and it is desirable to clearly define and permanently settle certain matters connected with the boundary between Sikkim and Tibet, Her Britannic Majesty and His Majesty the Emperor of China have resolved to conclude a Convention on this subject, and have, for this purpose, named Plenipotentiaries, that is to say:"

The key part here is "clearly define and permanently settle certain matters connected with the boundary between Sikkim and Tibet". So if the boundary was to be clearly defined, why would Article 1 include the bit about the place where the river split and then make specific reference to a line? Shouldn't the treaty have at least included a map?

But the treaty did, in fact, clearly demarcate the border. It chose a permanent topographical feature, ie the mountain range that separated the Teesta from the Mochu. It then proceeded to indicate a boundary line. The actual border, from the intent of the parties, is not the line referenced in the treaty but the permanent topographical feature incorporated by reference. In effect, the treaty provides for there to be a principle on the basis of which the border is demarcated and indicates how the principle is to apply. If topographical corrections result in the crest of the mountain range being Batang La, the point in the treaty will be Batang La instead of Mount Gipmochi.

The Chinese hold on to the idea that the Calcutta Convention defined a boundary line. In fact, it defined a boundary that has to be drawn across a geographical feature.

This is why India continues to (rightly assert) that the Indian-Chinese border needs to be drawn from Batang La and not Mount Gipmochi. However, the treaty doesn't talk of the tri-junction point between India, Bhutan and China. In fact, the Bhutanese border is not one that is even talked about in the Calcutta Convention.

What makes the tri-junction dispute more complex is that Bhutan and China have a dispute about who controls the Doklam plateau, an area that is claimed by both Bhutan and China. There is unfortunately no treaty demarking this area, making this a bone of contention. However, China objects to India even meeting at the tri-junction point because of how it interprets the Calcutta Convention. As per the Chinese, the Indians have no business in a matter that solely concerns Bhutan and China.

But Bhutan is also a close ally of India and closely cooperates with its foreign policy. India recognises the Bhutanese claim to the area and refuses the Chinese claim. This has resulted in India intervening on the Bhutanese side, as it is duty-bound to do whenever Bhutan faces external aggression. Further, there is also an overriding obligation on Bhutan under the 2007 Friendship Treaty to ensure no part of its territory is used for activities that are harmful to Indian security interests in the region.

This close cooperation between India and Bhutan has resulted in a joint defence against Chinese aggression in the area. Whatever may be the status of the dispute between Bhutan and China, the Chinese cannot under international law unilaterally occupy disputed territory. Which is what they are proposing to do. India's foreign policy is one that is guided by a respect for a rules-based international order. The Chinese seem to have unilaterally violated this principle in the recent standoff.

The Chinese anxiety may be blamed on the historical parallel when British India used to intervene on behalf of Bhutan and Sikkim when it came to the Qing Court. This memory of past humiliation may be driving the Chinese actions this time. But this time, it is not an imperial government that's exercising territorial ambitions. It is a democratic India intervening on behalf of a democratic Bhutan. The game has changed and the Chinese need to recognise that if they have to preserve their place in global affairs.

Updated Date: Jul 19, 2017 07:35:22 IST

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