Monday, December 28, 2015

Singh: Sino–Indian Attitudes to International Law: of Nations, States and Colonial Hangovers

Prabhakar Singh (Jindal Global Law School) has published Sino–Indian Attitudes to International Law: of Nations, States and Colonial Hangovers (Chinese Journal of Comparative Law, Vol. 3, no. 2, pp. 348-374, 2015). Here's the abstract:
Behind China’s and India’s different attitudes to international law lie China’s semi-colonial and India’s colonial past. Indeed, Asia’s colonial past is central to the many cartographic hangovers that have remained between China and India and China and its neighbours in the South China Sea. While India has adhered to the British colonial position since 1947, China has denounced colonial treaties since 1920. However, China and its publicists’ acceptance of even post-colonial treaties, such as the Vienna Convention on the Law of Treaties (VCLT) and the UN Convention on the Law of the Sea (UNCLOS), is selective and political.1 Such an attitude strategically suspends international law’s primary sources. Contrarily, India and its courts have not just adhered to these colonial treaties, but the Indian courts have also upheld customary laws as common law. The 1954 Agreement on Trade and Intercourse between the Tibet Region of China and India (Panchsheel Treaty) is often said to embody the Sino–Indian post-colonial engagement.2 The functional role of this 1954 Sino–Indian treaty, however, remains overstated, although, recently, a Sino–Indian joint statement acknowledged the positive role of bilateral agreements since 1954. This article compares the attitudes to international law in China and India based on (i) their construction of sovereignty since 1947–9; (ii) their mutual engagement via the 1954 Panchsheel Treaty’s bilateralism and the politics of colonial maps; and (iii) Sino–Indian approaches to the sources of international law.