The agreement of 1963 is, thus, based on a history that stretched to the 19th century. If India had consulted the records in the spirit as Pakistan did, an accord could have been reached in April 1960. For India, as it did for Pakistan in 1963, the McDonald’s Note of 14 March 1899 provides a key to the resolution of the India-China boundary dispute.
On 15 July 2009, India’s Minister of State for External Affairs, Preneet Kaur, made a statement in the Lok Sabha in reply to a question on the dimensions of India’s perceived loss of its territory. Both the question and the reply are repeated seasonally. She said India has been raising with China the issue of Pakistan’s illegal cession of part of the territory, under its occupation, in the erstwhile State of Jammu & Kashmir under the China-Pakistan Boundary Agreement of 2 March 1963.
She replied: “The Government’s position is that this so-called ‘Boundary Agreement’ is illegal and invalid. This has been reiterated to the Chinese side in the on-going discussions on the boundary question.” Under “the so-called ‘Boundary Agreement’ of 1963, Pakistan illegally ceded 5,180 km. of Indian territory in Pakistan-occupied-Kashmir to China.” Pakistan, she added, was in “illegal and forcible occupation of approximately 78,000 square kms. of Indian territory in Jammu and Kashmir since 1948 while 38,000 square kms. were under the occupation of China.”
The Press Trust of India’s report, published in The Tribune of 16 July 2009, faithfully put the words boundary agreement within quotes. One is sick of the Indo-Pak lingo about “Pak-occupied Kashmir” for Azad Kashmir and “Indian-occupied Kashmir” for the rest. The BBC and better informed print media in the West prefer the more sensible word “administered” to describe each half of what is undoubtedly a disputed territory. But one cannot expect any better of either New Delhi or Islamabad in such matters. Fifteen years ago, on 10 August 1994, the Minister’s predecessor in office, R. L. Bhatia had used identical language. Pakistan had “illegally ceded approximately 5,120 sq. kms. of Indian territory” in Kashmir to China (The Hindu; 11 August, 1994, italics mine throughout).
Cession is a legal concept with a precise connotation. One looks in vain for any mention of cession in that agreement. It defines, instead, a procedure for reconciling conflicting maps. It is, therefore, an agreement on a boundary settlement a distinction recognized by the Supreme Court of India in a case challenging the Award of the Arbitral Tribunal on the Rann of Kutch Dispute (Maganbhai J. Patel vs. Union of India (1969) 3 Supreme Court Reports, (1970) 3 Supreme Court Cases 400); AIR 1969 S.C. 783). The Court drew a clear distinction between cession of territory and the settlement of a boundary dispute. (H. M. Seervai; Constitutional Law of India; N. M. Tripathi, Bombay; 4th Edn; Vol. 1; p. 311).
More recently, on 12 July 2001 the Minister for External Affairs, Jaswant Singh, alleged that “the Shaksgam Valley of the State of Jammu and Kashmir has been illegally and wrongly ceded by Pakistan” (Dawn; 13 July 2001). This statement was made on the eve of the Agra Summit. This narrows down the issue as to whether the Shaksgam Valley was indeed part of the State of J & K. on 15 August 1947.
Involved in the controversy are two distinct issues. One concerns the law; namely, Pakistan’s legal capacity to conclude that agreement. The other concerns the history of the area. Was it comprised in the territory of undivided India of which the State was a part? If one were to go by the maps published in the West, one will find, for the most part, a legend indicating that the area was ceded to China. But almost every scholar holds that, to the contrary, it was Pakistan which acquired 750 sq. miles of administered territory. This is an issue which the facts of history alone can resolve.
The legal issue must not be evaded, however. On this the Indian stand is valid. Pakistan itself does not claim sovereignty over the area in question. The Preamble to the Agreement describes it as “the contiguous areas” – that is, contiguous to “China’s Sinkiang” – “the defence of which is under the actual control of Pakistan.” This is similar to the description and proportions in the Resolutions of the U.N. Commission for India and Pakistan of 13 August 1948 and 6 January 1949 which, both, India and Pakistan accepted.
The Resolution of 13 August 1948 mentions in Part II A para 3 that the territory “evacuated by the Pakistani troops will be administered by the local authorities under the surveillance of the Commission.” They did not withdraw because the troops withdrawals schedule provided by India did not comprise “the bulk of its forces” as Para 1 of Part B required.
However, the legal status of the two parts of the State is not identical. Josef Korbel, the UNCIP’s Chairman, assured Prime Minister Jawaharlal Nehru on 25 August 1948 that the Resolution will not be “interpreted or applied in practice, so as (a) To bring into question the sovereignty of the Jammu and Kashmir Government over the portion of their territory evacuated by Pakistan.” Korbel described the evacuated territories as those “which are at present under the effective control of the Pakistan High Command.” (UNCIP’s First Report S/1100, Para 79; The Kashmir Question edited by K. Sarwar Hasan with the cooperation of Zubeida Hasan; Pakistan Institute of International Affairs, Karachi; 1966; p. 186).
The Plebiscite Resolution of 5 January 1949 (The UNCIP’S Second Report S/1196, para 51; Hasan; p. 212) provides that the Plebiscite Administrator “will be formally appointed to office by the Government of Jammu and Kashmir” (Para 3(a) ) and shall report the result of the plebiscite to, both, the UNCIP “and to the Government of Jammu and Kashmir” (Para 9).
Article 257 of the Constitution of Pakistan (1973) says: “When the people of the State of Jammu and Kashmir decide to accede to Pakistan, the relationship between Pakistan and that State shall be determined in accordance with the wishes of the people of that State.” Article 203 of the Constitution of 1955 was identically worded. This was not an assertion of sovereignty over that State, but its disavowal.
This is Pakistan’s supreme law. Its terms cannot be overridden by an ordinary statute. On 24 August 1974, the Assembly of Azad Kashmir adopted the Azad Jammu and Kashmir Interim Constitution Act, 1974, with the concurrence of the Government of Pakistan. It establishes a Council presided over by the Prime Minister of Pakistan and comprising federal as well as Azad Kashmir’s ministers. In effect the Constitution rivets Azad Kashmir to Pakistan administratively. The issue of sovereignty remains.
International law permits a State in de facto and effective possession of an area to conclude agreements of a limited local character to maintain peace and tranquility. It has, however, no right to conclude a definitive boundary treaty. The Sino-Pak agreement is a definitive agreement though it is termed “Provisional.” It provides for the appointment of a Boundary Commission, setting up of boundary pillars and drawing up of protocols; the characteristics of a definitive boundary agreement. Article 6 of the Agreement does not alter the fact for it forecloses any significant revision of its terms or the reopening of the accord: “The two parties have agreed that after the settlement of the Kashmir dispute between Pakistan and India, the sovereign authority concerned will reopen negotiations with the Government of the People’s Republic of China on the boundary, as described in Article Two of the present agreement, so as to sign a formal boundary treaty to replace the present agreement, provided that in the event of that sovereign authority being Pakistan, the provisions of the present agreement and of the aforesaid protocol shall be maintained in the formal boundary treaty to be signed between the People’s Republic of China and Pakistan” (For the text vide China, India, Pakistan, edited by K. Sarwar Hasan; Pakistan Institute of International Affairs, Karachi, 1966; pp. 378-383).
The Agreement thus envisages that, “sovereign authority” competent to sign a boundary agreement will emerge only after the settlement of the Kashmir dispute. But that authority, if it is India, can do no more than “reopen negotiations” with China “so as to sign a formal Boundary Treaty to replace the present Agreement.” This does not bar revision of its terms explicitly, but the hint of finality is clear. The Press Note issued by the Government of Pakistan on 22 February 1963 announcing Foreign Minister Zulfikar Ali Bhutto’s visit to Peking to conclude the agreement mentioned that “on attaining a common understanding of the boundary alignment, an agreement of a provisional nature will be signed” (ibid., p. 378).
The Agreement is anything but “provisional” and was beyond the legal competence of the Government of Pakistan to conclude.
Pakistan’s retort does not help it; namely, that nor had India any right to conclude such an agreement in respect of a disputed territory. The UNCIP’s Resolutions treat both parts of the State of J & K and both Governments differently.
There is, however, something rather unreal and arid about this undoubted legality. In law the British Parliament could have replaced the Indian Independence Act, 1947, but it could not have regained its sovereignty over the subcontinent. The Privy Council considered precisely such a denouement in respect of the Dominions and gave a sensible answer; “The Imperial Parliament could as a matter of abstract law repeal or disregard the Statute (of Westminster). But that is theory and has no relation to realities” (British Coal Corporation & Ors. vs. The King (1935) Appeal Cases 500). Courts prefer to reckon with “realities” when the “abstract” law runs counter to them.
India’s private offers of settlement of Kashmir on the basis of the status quo (1948 – 1955) were followed by Nehru’s offer at a public meeting in New Delhi on 13 April 1956, “I am willing to accept that the question of the part of Kashmir which is under you should be settled by demarcating the border on the basis of the cease-fire line. We have no desire to take it by fighting.” The Simla Agreement of 2 July 1972 replaced the cease-fire line with the line of actual control. Indeed the Agreement itself was preceded by the Swaran Singh-Bhutto talks from 26 December 1962 onwards in which India reiterated its proposal offering some 3,000 square miles more in the bargain (Vide the writer’s article Bilateral Negotiations on Kashmir, Criterion, Vol. 1 Vol Oct-Dec. 2006, pp 26-52).
The law, however relevant once, is relevant no longer, nearly half a century since the Agreement was signed and confronts us with the issue of its soundness. History alone can answer the question and it does so decisively.
It all began when the British created the State of Jammu and Kashmir by the Treaty of Amritsar. In a Collection of Treaties, Engagements and Sanads relating to India and Neighbouring Countries compiled by C.U. Aitchison, Under-Secretary to the Government of India in the Foreign Department, Volume XI of the 1909 edition. He wrote: “The present State of Jammu and Kashmir was created by the British government when Gulab Singh was established as Maharaja under the Treaty of Amritsar.” The British first signed the Treaty of Lahore with the Lahore State on 9 March 1846 after the First Anglo-Sikh war, and acquired “in perpetual sovereignty” inter alia the province of Kashmir. This was in part-payment of the equivalent of “one crore of rupees” which the British demanded as “indemnification for the war expenses.”
A week later, on 16 March 1846, the British ceded to Maharaja Gulab Singh the lands it had thus acquired – the territories of Jammu, Kashmir and Ladakh “for the sum of seventy-five lakhs of rupees.”He “acknowledged the supremacy of the British government.” Article 4 said: “The limits of the territories of Maharaja Gulab Singh shall not be at any time changed without concurrence of the British government.” There was reason for this.
The Treaty of 16-17 September 1842, between Ladakh and Tibet, one of non-aggression rather than boundary treaty, marked the collapse of Zorawar Singh’s ambitious Dogra venture with Tibet and an equally unsuccessful retaliation that brought the Tibetans to Leh. It is in three separate, but essentially identical, versions. One each between Tibet and Ladakh, and another between their principals: the Sikh Darbar and China. The Persian text in Tibet’s possessions reads: “We shall remain in possession of the limits of boundaries of Ladakh and the neighbours subordinate to it, in accordance with the old customs, and there shall be no transgression and no interference in the country beyond the old- established frontiers” (emphasis added, throughout). The Tibetan text in Kashmir’s possession was of the same tenor.
On 17 October 1842, the Sikhs and the Chinese concluded a treaty which said (Article 1): “That the boundaries of Ladakh and Lhassa shall be constituted as formerly, the contracting parties engaging to confine themselves within their respective boundaries, the one to refrain from any act of aggression on the other” (An ‘Agreed’ Frontier: Ladakh and India’s Northernmost Borders 1846-1947) by Parashotam Mehra: Oxford University Press, 1991; pp. 167-170). The British did not want to be saddled with a war by Gulab Singh’s ambitions.
They made earnest efforts to seek a boundary accord with China, five months after the Treaty of Amritsar; they failed. China was weak and suspicious. Two Boundary Commissions were set up. The first comprised R.A. Vans Agnew and Alexander Cunningham. Its task was to determine a boundary between British territory (the districts of Lahoul and Spiti in Himachal Pradesh) and Ladakh. The second, set up in 1847, comprising Cunningham, Henry Strachey and Dr. Thomas Thomson, was to define the boundary between Ladakh and Tibet on the east. The northern boundary divided Kashmir and East Turkestan (now Xinjiang). The first task was accomplished; not so, the second. However, Vans Agnew wrote a memorandum dated 13 May1847, defining a boundary which he thought was clear with the exception of its extremities.
Aitchison wrote: “On the appointment of the second commission steps were taken to secure the cooperation of Chinese and Kashmir officials; but no Chinese delegate appeared and the demarcation had to be abandoned. The northern as well as the eastern boundary of the
Kashmir State is still undefined.” (Aitchison, Vol. 12, 1929; p. 5).
Nothing happened thereafter to alter this position till India became independent on 15 August 1947. The Governor-General of India, Henry Hardinge’s letter to China and to the authorities in Tibet, dated 4 August 1846, sought their cooperation “to lay down the boundary” between the two countries. China did not respond.
Surveys of the frontier regions proceeded apace. The first was by Henry Strachey of the 1847 Commission. W. H. Johnson of the Trignometrical Survey of India came next (1865), followed by G. W. Hayward (1868) and T.D. Forsyth (1874). A century later, India relied on Johnson’s map since its alignment for the Aksai Chin supported its claim. He was, however, censured by the British; resigned and was made Governor of Ladakh by the Maharaja who was pleased with the map. Col. Walker, Surveyor-General in 1867, ridiculed Johnson’s map as published. It differed from the original.
Since official maps had to be printed the question continued to nag as to how the boundary in this sector was to be depicted. Nor could the boundary be left undefined. Russia had begun to expand in Asia. The British were anxious lest its influence reached India’s frontiers. They were careful to have the Wakhan corridor extended to touch China’s territory to avoid a gap there but were anxious also that no gap should exist between the frontiers of India and China in the no-man’s land that existed. China’s passivity did not inhibit cartographic exercises in Calcutta, Simla and London. The details are not relevant. Suffice it to say that two schools of thought emerged. One favoured the Mustagh – Karakoram range, the other the Kuen Lun range further to the north. A large majority favoured the former. The problem was complicated by the ambiguous status of Hunza (or Kanjut as it was also called) as a vassal of China, since at least 1847, if not earlier, and also of Kashmir. The Mir of Hunza concluded a treaty with Kashmir before his death in 1864. In 1891-92 British and Kashmiri forces occupied Hunza.
Sir John Ardagh, Directory of Military Intelligence in the War Office in India and formerly Military Secretary to the Viceroy (1888- alarm bells ringing in Calcutta, then capital of the British Raj in India. It was on “The Northern Frontier of India from the Pamirs to Tibet” and it advocated the Kuen Lan line, for strategic reasons, not on the merits, as a desirable boundary (For the text vide Dorothy Woodman; Himalayan Frontiers; Barrie and Rockliff, 1969; pp. 360-363).
It was “denounced” by one and all in Calcutta who studied it. The Viceroy Lord Elgin wrote to the Secretary of State for India Lord George F. Hamilton on 23 December 1897 setting out the objections (ibid. pp 364-365).
Captain A. H. McMahon, then Political Agent in Gilgit, wrote an elaborate Report, dated 10 May 1898, on the claims of the Kanjut tribe (the people of Hunza) to territory beyond the Hindu Kush in the Tagdumbash Pamir and the Raskam valley. Chinese officials had begun to obstruct the cultivation of the Raskam valley by the Kanjutis.
McMahon’s Report, running into 32 paras covering 11 closely printed pages, is a locus classicus on the Hunza boundary. “The first point to be noticed in the history of the Kanjut tribe is its dual vassalage to both China and Kashmir. Both states consider it to be their vassal state. China claims that Hunza has paid tribute to her since the time of the emperor Chien-lung (1736-1796), while the vassalage to Kashmir is first proved by a treaty made by Shah Ghazanfar, Raja of Hunza, at sometime prior to his death in 1864. In Central Asia it is not an uncommon thing for one state to pay tribute to two or more other States.” (Foreign Department Secret Frontier; July 1898, Proceedings 327 Nos. 306-47; National Archives of India, for the text, vide Mehra pp. 94-97).
Vassalage to China survived British invasion in 1891. “The boundaries of Tagdumbash, Khunjerab and Raskam, as claimed by the Kanjuts, are the following: The northern watershed of the Tagdumbash Pamir from the Wakhirjrui pass through the Bayik peak to Ilijilga, about a mile above Dafdar, thence across the river to the Zankan nullah, thence through Mazar and over the range to Urok a point on the Yarkand river between Sibjaida and Itakturuk. Thence it runs along the northern watershed of the Raskam valley to the junction of the Bazar Darya river and the Yarkand river. From thence southwards over the mountains to the Mustagh river leaving Aghil Dewan Aghil pass within Hunza limits.
… On no less than three occasions the Mirs of Wakhan have asked the Mirs of Hunza to allow them to occupy Raskam, and were refused. …
“Hunza claims, as stated above, the territory beyond the Hindu Kush. … China has definitely recognized their right to the portion of this tract, including the Taghdumbash Pamir, and the Khunjerab and Oprang Valleys, by acknowledging their right to revenue in those tracts. It matters little what reason or reasons they may assign for this admission – the fact remains, the Hunza rights are acknowledged and recognized with regard to the remaining portion of the above territory, i.e., Raskam, the Chinese have, while verbally denying that it belongs to Hunza, practically admitted their right to it by giving them permission to re-occupy it. The question now about to be settled is that of the terms on which are to occupy it. …
“The necessity for contending for a sphere of influence, however limited in area, beyond the Hindu Kush and Mustagh ranges, will, perhaps, not be readily conceded ; but, however strong the arguments may appear at first sight for restricting ourselves to a definite frontier like the Hindu Kush and Mustagh ranges on strategic grounds, it would be wide, I venture to think, before irrevocably committing ourselves to such a frontier, to carefully consider the wisdom of gratuitously surrendering, in doing so, territory which belongs to the people on whom we will have to depend for active assistance in defending that frontier. … I earnestly trust that what I have written above will suffice to show how matters now stand. If our present position on this side of our so-called strategic frontier of the Hindu Kush and Mustagh ranges is to be maintained, it is absolutely necessary to take timely action regarding territory claimed by Hunza beyond those regions.”
British concern on the Taghdumbash Pamir was confined to China’s possible cession of the tract to Russia. Raskam was a different preposition. Hunza needed its grazing pastures for its livestock to feed a growing population.
27 October 1898 defining the line to be offered to China. “The following is a description of this line: beginning at the north end at the peak Povalo Schveikovski, the line takes a south-easterly direction, crossing the Karachikar stream at Mintaka aghazi, thence proceeding in the same direction till it joins, at the Karachanai Pass, the crest of the main ridge of the Mustagh range which it then follows passing by the Kunjurab Pass and continuing southwards to the peak just north of the Shimshal Pass. At this point the boundary leaves the crest and follows a spur running east approximately parallel to the road from the Shimshal to the Hunza post at Darwaza. The line, turning south through the Darwaza post, crosses the road from the Shimshal Pass at that point and then ascends the nearest high spur and regains the main crests, which the boundary will again follow, passing the Mustagh, Gusherbrum, and the Saltoro Passes to the Karakoram. From the Karakoram Pass the crest of the range runs nearly east for about half a degree and then turn south to a little below the 35th parallel of North Latitude. Rounding then what in our maps is shown as the source of the Karakash, the line of hills to be followed runs north-east to a point – east of Kizil Jilga and from there, in a south-easterly direction follows the Lak Tsung Range until that meets the spur running south from the Kuen Lun Range which has hitherto been shown on our maps as the eastern boundary of Ladakh. This is a little east of 800 east Longitude. …” (Alastair Lamb; The Sino-Indian Border in Ladakh; Australian University Press; 1973; p. 45-46).
The line included two tracts beyond the watershed. One was the western end of Taghdumbash, the other was a “small deviation from the main crest of the Mustagh near the Shimshal Pass to Darwaza. This is in accordance with actual possession.” A Kanjuti post at Darwaza existed as late as in 1899.
On 14 March 1899 Britain’s Ambassador Sir Claude MacDonald gave a Note to China’s Foreign Office. It was the first time that India offered a precise boundary line to China as a basis for a settlement. It said “It is now proposed by the Indian Government that, for the sake of avoiding any dispute or uncertainty in the future, a clear understanding should be come to with the Chinese Government as to the frontier between the two States. To obtain this clear understanding, it is necessary that China should relinquish her shadowy claim to suzerainty over the State of Kanjut. The India Government, on the other hand, will on behalf of Kanjut, relinquish her claims to most of the Taghdumbash and Raskam districts.”
He defined the proposed boundary: “Commencing on the little Pamir from the Peak of which the Anglo-Russian Boundary Commission of 1895 ended their work, it runs south-east, crossing the Karachikar stream at Mintaka Aghazi; thence proceeding in the same direction it joins at the Karchenai Pass the crest of the main ridge of the Mustagh range. It follows this to the South, passing by the Kunjerab Pass, and continuing southwards to the peak just north of the Shimsahl Pass. At this point the boundary leaves the crest and follows a spur running east approximately parallel to the road from the Shimshal to the Hunza post at Darwaza. The line turning south through the Darwaza post crosses the road from the Shimshal Pass at that point, and then ascends the nearest high spur, and regains the main crests which the boundary will again follow, passing the Mustagh, Gusherbrun, and Saltoro Passes by the Karakoram. From the Karakoram Pass the crests of the range run east for about half a degree (1001i), and then turn south to a little below the thirty-fifth parallel of north latitude. Rounding then what in our maps is shown as the source of the Karakash, the line of hills to be followed runs north-east to a point east of Kizil Gilga, and from there in a south- easterly direction follows the Lak Tsung range until that meets the spur running south from the K’un-lun range, which has hitherto been shown or maps as the eastern boundary of Ladakh. This is a little east of 800 east longitude.” (ibid.; p. 49).
Once again, as in 1846-47, China ignored the offer. In Calcutta the Note’s phrasing was criticized. Britain did not possess sovereignty over the Raskam lands which it could relinquish; only the grazing rights. Matters were brought to a head by a far-sighted Viceroy, Lord Curzon, in a despatch to the Secretary of State for India John Brodrick on 24
March 1904. Curzon reminded Brodrick that the 14 March 1899 Note on the boundary proposal had not been answered by China. He proposed “it would be well to sever the connection between Hunza and China without further delay. We should hardly be likely to make anything out of the presence of a few Kanjuti cultivators along the Raskam Daria – even if we did succeed in reinstating them …
“We accordingly recommend that a formal notification be made to China that since the Chinese Government have been unable to fulfill their promises to the Mir of Hunza, that State, under the advice of the British Government withdraws from all relations with China, and henceforth will own suzerainty to the Kashmir State and the British Government alone. As regards the boundary between Kashmir and the New Dominion, we strongly recommend that the Chinese Government should be informed that, as they have not shown any reasons for disagreeing with the proposals placed before them in Sir Claude MacDonald’s despatch of the 14th March, 1899, we shall henceforward assume Chinese concurrence and act accordingly.” (ibid.; p. 61).
A despatch was prepared and sent by Curzon to Brodrick on 26 January 1905. It responded to his query on effective control of the lands by sending him the correspondence with the Resident in Kashmir. Control over the Taghdumbash was impossible. “The circumstances in regard to the tract about Darwaza are different. Though this lies beyond the watershed, and would probably be claimed by the Chinese, the Mir of Hunza has for many years past maintained there a regular post of four men without, as far as we are aware, any objection being raised by the Chinese. According to information now furnished by the Resident in Kashmir, the people of Shingshal depend for their grazing almost entirely on the valley between the Shingshal Pass and Darwaza. They are in the habit of going twenty miles beyond Darwaza for grazing, and there is a place about five miles beyond Darwaza from which they fetch salt. The inclusion of the Ghorzerab valley, which lies eight miles below the junction of the Shingshal stream with the Mustagh River, and four miles above the point where the Oprang joins the Mustagh, is a matter of considerable importance to the Shingshalis, who mainly depend on their flocks for their livelihood. The Mir of Hunza states that the grazing in the Ghorzerab has been enjoyed since time immemorial by the Shingshalis, and he doubts whether the Kirghiz or Sarikolis even know of the existence of the valley. We consider it very desirable to retain this tract on the British side of the boundary line, and we trust that it will be possible to do so, when a settlement is come to with China.” Such an opportunity was not arise till 1963.
Finally Curzon sent to Brodrick, on 10 August 1905, a map indicating both the 1899 and the 1905 lines and explained the difference between the two. “The proposals of 1899 contemplated that the line after leaving the crest of the Mustagh range in the vicinity of the Shingshal Pass, should run in an easterly direction, and then turn southwards so as just to include the part of Darwaza within the Hunza frontier. Thereafter it was to continue its southward trend until it regained the main crests. We now recommend that the boundary should run from the Khunjerab Pass south along the main watershed, as far as a point about six miles south-west of the Oprang Pass. At this point the line should leave the main watershed, run due east for about five miles, and then continue in a south-easterly direction until it strikes the Mustagh River at Kuramjilga. The Mustagh River would then form the boundary up to a point about four miles above the junction of the stream from the Shingshal Pass; from this point it would ascend the nearest high spur to the west and regain the main crest, which it would then follow on the lines indicated in Sir Claude Macdonald’s dispatch to the Tsungli Yamen of the 14th March 1899.” (ibid., p. 62).
In 1907 when the question of which line to show on the map arose, the Secretary of State for India’s cable of 1 August 1907 to the Viceroy gave clear orders. The map “should indicate the frontier as following the line described in Notification of 1899 to China with addition of the deviation in neighbourhood of Shimshal which was proposed in your secret Despatch No. 153 of August 10th, 1905.” (Mehra; p. 130).
Foreign Secretary Denys Bray’s letter of 7 September 1917 to J. E. Shuckburgh, Secretary Political Department, India Office discussed the boundary at length and constitutes an authoritative statement of perceptions of the border in 1917.
“These limits however exist only on paper and have been indicated by us not as the result of any treaty or engagement with China nor as finally and definitely marking the bounds of our sphere of influence, nor altogether as forming a scientific or strategic border, but partly because they follow a lofty and well-defined watershed and partly in order to assign some limit to China’s indefinite political relations in that neighbourhood. The Chinese Government were invited to accept the line in Sir Claude MacDonald’s dispatch dated the 14 March, 1899, but as nothing resulted, it was proposed in Lord Curzon’s dispatch, No. 70 (Secret-Frontier), dated the 24th March 1904, to inform the Chinese Government that we assumed their concurrence. His Majesty’s Government however demurred in their telegram dated the 10th August 1904. The line was slightly modified in Lord Curzon’s despatches Nos. 20 and 153 (Secret – Frontier), dated 26th January and 10th August 1905. We cannot therefore regard ourselves as absolutely bound by a border line which we have ourselves laid down without the concurrence of the other party concerned, which we have already more than once altered without reference to this other party, and the substantial pushing forward of which we have already advocated should a certain chain of circumstances render this desirable.
“Hunza’s claims to Raskam by right of conquest were never questioned and were frequently recognized by China up to 1897, when, for political reasons, we advised Hunza to make terms with China for the occupancy of the tract. Since then the Chinese twice cancelled the agreements which gave these lands to Hunza under certain conditions (Lord Curzon’s dispatches Nos. 158 and 21 (Secret-Frontier dated the 17th August, 1899 and 8th February, 1900) and the Mir at the request of the Chinese withdrew from Raskam. The lands remained uncultivated till 1911, when some Kirghiz started cultivation – a step which the Mir regarded as a breach of faith on the part of China, there having been a tacit understanding that if the Karjutis were prevented from cultivating Raskam no one else would be allowed to cultivate there. With our approval the Mir resumed cultivation in 1914 and was advised to hold the lands unless forced by superior numbers to vacate (weekly letter No. 21-M, dated the 27th May 1915). The Chinese Government did not interfere and the Mir’s men have occupied Raskam and cultivated the valley ever since. … The position then would appear to be that though the Chinese have deliberately cancelled the agreements which gave the land to Hunza conditionally, their responsible officials have on two occasions acquiesced in Hunza occupying the land unconditionally and that till China definitely asserts the Mir’s actual status with respect to Hunza there is justification for recognizing his de facto possession. “ (Mehra, PP. 225-227).”
In 1936, on British advice, the Mir of Hunza stopped sending the annual tribute to China and abandoned his rights beyond the border in Raskam as well as the Taghdumbash Pamir. China retaliated by expelling the Kanjutis from the Shimshal Valley near Darwaza. In the controversy that ensued it was pointed out that the legendary Francis Young Husband’s book The Heart of A Continent published in 1896 supported Hunza’s case. At p. 259 he referred to “a Kanjuti outpost called Darwaza or ‘the gate.’” The Kanjutis continued to enjoy grazing rights across the Shimshal Pass.
After independence the Government of India published two White Papers on Indian States in July 1948 and February 1950. Both showed the entire northern boundary from the India-China-Afghan trijunction, the subject of the Sino-Pakistan agreement to the India-China-Nepal trijunction as “undefined,” in contrast to a clear depiction of the McMahon Line in the east.
This was the position when India and China signed the Panchsheel Agreement on Tibet on 29 April 1954. In June that year Zhou Enlai came to Delhi. Nehru paid a return visit to China in October. Between the two visits Nehru wrote a fateful document. He first wrote to the Secretary-General of the Ministry of External Affairs on 12 May 1954: “We should establish checkpoints at all disputed points wherever they might be, and our administration should be right up to these borders” (Selected works of Jawaharlal Nehru, Volume 25; page 470).
The details of why, how and when the Sino-Indian boundary dispute arose need not detain us. We are concerned with its eruption in the open in 1959, its impact on relations between Pakistan and China, culminating in 1963 in the boundary agreement.
On 1 July Nehru wrote a 17-para Memorandum in which he gave a fatefully explicit directive. Paras 7 to 10 read thus: “7. All our old maps dealing with this frontier should be carefully examined and, where necessary, withdrawn. New maps should be printed showing our Northern and North Eastern frontier without any reference to any ‘line.’ These new maps should also not state there is any un-demarcated territory. … this frontier should be considered a firm and definite one which is not open to discussion with anybody. There may be very minor points of discussion. Even these should not be raised by us. It is necessary that the system of check-posts should be spread along this entire frontier. More especially, we should have check-posts in such places as might be considered disputed areas. ….” (SW JN. Vol. 26 p. 481).
He shut the door to negotiations on the boundary – “not open to discussion with anybody.” India unilaterally revised its official map. The legend “boundary undefined” in the Western (Kashmir) and middle sectors (Uttar Pradesh) in the official maps of 1948 and 1950 were dropped in the new map of 1954. A firm clear line was shown, instead. Accordingly, when, in response to Nehru’s demarche on the maps on 14 December 1958, Zhou Enlai squarely raised the border issue on 23 January1959, Nehru’s letter of 22 March 1959 cited the Treaty of 1842 to assert that the boundary was a settled issue.
Zhou’s letter of 23 January 1959 offered “to take a more or less realistic attitude towards the McMahon Line.” He offered an overall settlement and was concerned with the boundary “particularly its western section.”
Fundamentally, Zhou said “All this shows that border disputes do exist between China and India.” Nehru’s reference to the Treaty of 1842 was historically incorrect. That was a treaty of non-aggression after a war; it did not define a boundary. If it had, the British would not have proposed negotiations in 1846-47, made the offer of 14 March 1899 and racked their brains on where the line should be drawn. Nehru’s reply of 22 March 1959 was sent, two months after Zhou’s letter of 23 January 1959, evidently after full deliberation in which the Historical Division of the Ministry of External Affairs was also involved. Beneath the historical error lay his riposte to Zhou “there is no room for doubt about our frontiers as shown in the published maps.” This reply based on his decision in 1954, foreclosed compromise. (Notes, Memoranda and Letters exchanged and Agreements signed between the Government of India and China 1954-1959, White Paper I, Ministry of External Affairs Government of India; 1959; pp. 52-57 for both letters).
Nehru’s initial demarche of 14 December 1958 centred on the McMahon Line in the eastern sector, which was drawn up in 1914. Zhou’s reply of 23 January 1959 raised the issue of the western sector in the Ladakh province of Jammu and Kashmir; precisely it was Aksai Chin. “The Sinkiang – Tibet highway built by our country in 1956 runs through that area.” (ibid. p. 53).
Contrary to the stand he took in his letter of 22 March 1959, on as many as six occasions later in the year Jawaharlal Nehru admitted that Aksai China was very much a territory in dispute.
28 August 1959: “The Aksai Chin area, that is an area about parts of which, if I may say so, it is not quite clear what the position is.”
31 August 1959: “It is Indian territory and we claim it so because we think that the weight of evidence is in our favour, maps, etc., but the Chinese produce their own maps, equally old, which are in their favour.”
4 September 1959: “So far as the corner of the Aksai Chin area is concerned, that has been claimed by the Chinese as their territory and I believe in their maps too, not the new maps, but the old maps, that is shown as their territory. That is disputed and there are two viewpoints about that…”
4 September 1959: “The actual boundary of Ladakh with Tibet was not very carefully defined. It was defined to some extent by British officers who went there, but I rather doubt if they did any careful survey.”
10 September 1959: “We have always looked upon the Ladakh area as a different area, if I may say so, some vaguer area so far as the frontier is concerned because the exact line of the frontier is not at all clear as in the case of the McMahon Line … Nothing can be a more amazing folly than for two great countries like India and China to go into a major conflict and war for the possession of a few mountain peaks, however beautiful the mountain peaks might be, or some area which is more or less uninhabited.”
12 September 1959: “This place Aksai China area is in our maps undoubtedly. But I distinguish it completely from other areas. It is a matter for argument as to what part of it belongs to us and what part of it belongs to somebody else. It is not at all a dead clear matter … I cannot go about doing these things in a manner which has been challenged not today but for a hundred years. It has been challenged to (sic) the ownership of this strip of territory. That particular area stands by itself. It has been in challenge all the time…. I cannot say what parts of it may not belong to us, and what parts may. The point is there has never been any delimitation there in that area and it has been a challenged area.” (Prime Minister on Sino-Indian Relations VOl. I, Part I, MEA; 1961; pp. 84, 99, 105, 119-120, 134-135, 148-149, respectively).
When Zhou met Nehru in New Delhi in April 1960, he was prepared to yield on the McMahon Line if Nehru conceded the Aksai Chin. Nehru refused. Already by then China had recognized the Line, in so far as it extended to Burma in the boundary agreement with Burma on 25 January 1960.
At the first meeting of the summit on 20 April, Zhou told Nehru: “The one common feature in the boundary between China and Burma and India is the presence of the McMahon Line. We stated that we do not recognize the McMahon Line but that we were willing to take a realistic view with Burma and India.”
At the press conference in New Delhi on 25 April, Zhou defined the boundary in the west as “the line which runs from the Karakoram Pass south eastward roughly along the watershed of the Karakoram Mountains to the Kongka Pass.” He also said: “China has no boundary dispute with Sikkim and Bhutan.”
Zhou formulated these six points at the press conference: “(I) There exist disputes with regard to the boundary between the two sides. (II) There exists between the two countries a line of actual control up to which each side exercise administrative jurisdiction. (III) In determining the boundary between the two countries certain geographical principles such as watersheds, river valley and mountain passes, should be equally applicable to all sectors of the two sides. (IV) A settlement of the boundary question between the two countries should take into account the national feelings of the two peoples towards the Himalayas and the Karakoram Mountains. (V) Pending a settlement of the boundary question between the two countries through discussions, both sides should keep to the line of actual control and should not put forward territorial claims as pre- conditions, but individual adjustments may be made. (VI) In order to ensure tranquility on the border so as to facilitate the discussions, both sides should continue to refrain from patrolling along all sectors of the boundary.”
These were, in fact, an elaboration of five points he had put forth to Nehru on 22 April in private after two days of sterile debate on the rights and the wrongs. The six points were in fact an elaboration of four because a crucial point was omitted. “(IV) Since we are going to have friendly negotiations, neither side should put forward claims to an area which is no longer under its administrative control. For example, we made no claim in the eastern sector to areas south of the McMahon Line, but India made such claims in the western sector. It is difficult to accept such claims and the best thing is that both sides do not make such territorial claims. Of course, there are individual places which need to be re-adjusted individually; but that is not a territorial claim.”
He repeated them in crisp formulations in a meeting with Nehru the next day as forming “a common ground.” They were: “(i) our boundaries are not delimited and, therefore, there is a dispute about those; (ii) however, this [sic. there?] is a line of actual control both in the eastern sector as well as the western sector and also in the middle sector; (iii) geographical features should be taken into account in settling the border. One of the principles would be watershed and there would be also other features, like valleys and mountain passes, etc. These principles should be applicable to all sectors, eastern, western and middle; (iv) each side should keep to this line and make no territorial claims. This does not discount individual adjustments along the border later; (v) national sentiments should be respected. For both countries a lot of sentiment is tied around the Himalayas and the Karakoram.”
Nehru’s approach was radically different. “We should take each sector of the border and convince the other side of what it believes to be right” – an impossible exercise in international politics. It is unreal even in domestic politics. On the fourth point, renunciation of territorial claims by both, Nehru responded on 24 April: “Our accepting things as they are would mean that basically there is no dispute and the question ends there; that we are unable to do.” Nehru’s stand was unsupported by the facts of history; was politically unwise and diplomatically disastrous.
Two Chinese pronouncements should have alerted India to the course events later took. One was a Statement by Ambassador Pan Tsu-li to the Foreign Secretary Subimal Dutt on 16 May 1959 couched in language so unusual, with proverbs and all, as to suggest Mao Tse- tung’s draftsmanship: “We cannot have two centres of attention, nor can we take friend for foe … Friends! It seems to us that you too cannot have two fronts. Is it not so? If it is, here then lies the meeting part of our two sides.”
He ended with his “best regards” to Nehru who replied in a manner appropriate to his Headmaster at Harrow. On 23 May, Dutt read out a statement, drafted by Nehru, upbraiding the Ambassador for breach of “diplomatic usage and the countries due to friendly countries.” He sharply attacked China (White Paper I; pp. 73-78 for both statements).
The other pronouncement was direct. Zhou’s delineation of China’s boundary began from the Karakoram Pass eastwards. He pointedly omitted the boundary to the west of the Pass. In 1960 Chinese officials refused to discuss this sector with their Indian counterparts at Peking on 27 June 1960.
Chang Wen-Chin, Director First Asian Department in China’s Foreign Ministry interrupted, a junior colleague to make his stand clear; “It is necessary for both sides to adopt a matter of fact attitude and avoid serious political questions unrelated to our work.” (Parshotam Mehra; Negotiating With the Chinese 1846-1987; Reliance Publishing House, New Delhi, 1989; p. 222) A Sino-Pak settlement was very much on the cards.
It was not China which pressed Pakistan for a settlement. On the contrary it dragged its feet. It obviously preferred to settle with India first. It was Pakistan who pressed for an accord, not to forge an alliance with China – and thus wreck its alliance with the United States – but to profit by India’s experience and secure peace and tranquility in the area. It had been disturbed by China’s patrols.
On 23 October 1959, President Ayub Khan disclosed at a press conference that Pakistan’s Foreign Office had received a map showing certain areas of Pakistan as part of China. Pakistan would therefore, in due course, approach China “for a peaceful settlement of the border question by demarcating the northern frontiers.” (Dawn, 24 October 1959, Vide S.M. Burke; Pakistan’s Foreign Policy; Oxford University press, 1973; p. 290 and Altaf Gauhar; Ayub Khan, Sang-e-Meel Publications, Lahore; 1993; pp. 234-5).
Ayub Khan’s memoirs record how and why he went about this task in some detail. In August and October 1959 there were armed clashes between the troops of India and China in Longju, in the east, and at the Kongka Pass in Ladakh, respectively. Ayub Khan was concerned at the risks of patrolling. “A similar situation could arise on our own un- demarcated borders in the Sinkiang and Baltistan areas. We had been receiving reports from time to time that Chinese patrols were coming up to Shamshal. There had been no shooting incident, but the Chinese had driven away some cattle in certain areas. I thought it might be a good idea to approach the Chinese and suggest to them that the border be demarcated. After all, neither side had anything to gain by leaving the border undefined. I inquired whether any attempt had been made in the past to demarcate this border and I was shown the relevant maps and papers. Some attempts had been made by the British. I asked our experts to mark what from our point of view constituted the actual line of control on the map, and this was done. We also found that we could legitimately claim control up to a point opposite the Shamshal Pass. The people of Shamshal village could, according to custom, take their cattle for grazing in a fertile valley on the other side of the Pass where the Chinese had established a couple of posts. They also used to get salt, a rare and valuable commodity, from the soil in that area. I mentioned this matter at a Cabinet meeting, but the feeling was that the Chinese were unlikely to respond to any suggestion for the demarcation of the border. I felt that there would be no harm in preparing a memorandum and getting in touch with the Chinese authorities. This happened towards the end of 1959.
“There was no response from the Chinese government for a long time.
…. On my return from the United States in December 1961, the Chinese Ambassador came to see me. He asked for our support for the proposition that the Chinese entry into the United Nations should be decided on the basis of a simple majority rather than a two-thirds majority. I asked him about our suggestion of demarcating the undefined border between China and Pakistan. He said that that was a very complicated matter. I told him that if border demarcation was a very complicated matter, China’s admission to the United Nations was even more complicated. I suggested to him that we should look at the two problems on merit regardless of whether they were simple or complicated. We should be prepared to do what was right and sensible. …
“Our Foreign Minister, Mr. Manzur Qadir, later took up the matter with the Chinese Ambassador and asked him pointedly whether they were refusing to discuss the demarcation of the border because of the disputed nature of the Kashmir territory. The Foreign Minister got the impression that that was the real reason, and that China at that time did not want to get involved in another argument with India. We were able to explain to the Chinese government that all we were asking for was the identification of the line between two stated points. The area to the north of the line would constitute Chinese territory; the status of the area to the south of the line did not have to be determined. China would be responsible for the defence of the area north of the line and the defence of the area south of the line would be Pakistan’s responsibility. Soon after this the Chinese told us that they were prepared to discuss the problem of demarcation of the border with us. The two sides nominated their teams of experts to examine the problem. …
“Formal discussion with the Chinese started soon after. The Chinese were very difficult in the beginning, but once they realized that we were there not to outwit them but to seek an honourable solution their attitude changed. They produced a map on the basis of which they claimed certain areas on our side of the actual line of control, the valley of Khanjarab and some areas near K-2. Eventually they agreed to the actual line of control as shown on our map and it was adopted as the demarcation line with certain marginal adjustments. The watershed of the Indus Basin rivers was shown on our side and the watershed of the rivers of Yakang and certain adjoining areas on their side. There was some argument about K-2 and it was agreed that the line of control should be put right on top of K-2, thus letting the mountain peak belong to both sides as had been done for Mount Everest with Nepal. Once we had agreed on the demarcation line, aerial surveys were undertaken and the whole matter was settled amicably and without any difficulty.
“We raised the question of the grazing ground which covered several hundred square miles on the other side of the Shamshal Pass. We proved to the Chinese representative that this area had been traditionally under the use of the people of Shamshal and that if they were denied access to the area it would cause them great hardship. The Chinese said they would check with the people of Sinkiang but agreed, in principle, that the matter be resolved on merit. They finally agreed to let us have the area.” (Friends not Masters; Oxford University Press; 1967; pp. 161-164).
Pakistan proposed border talks on 23 October 1959, Foreign Minister principle to the demarcation of its border with Pakistan.” This was over a year after Pakistan had approached China for talks on the matter. It took another year and more for China to agree to conduct formal negotiations. On 28 March 1961 Pakistan sent a Note formally proposing talks. China replied only on 27 February 1962. An announcement was made by both sides on 3 May 1962 apparently as a result of Ayub Khan’s talk with China’s Ambassador in December 1961. The two sides affirmed that “the boundary between China’s Sinkiang and the contiguous areas, the defence of which is under the actual control of Pakistan, has never been formally delimited and demarcated in history. With a view to ensuring tranquility along the border and the growth of good-neighbourly relations between the two countries, they have agreed to conduct negotiations so as to attain an agreed understanding of the location and alignment of this boundary and to sign on this basis an agreement of a provisional nature.” Maps were exchanged in July 1962.
Talks were started in Peking on 12 October 1962, “Upon reaching agreed views on the procedural matters concerning the talks, the representatives of the two parties exchanged plain topographical maps, which were checked technically by map experts of both parties and on which an agreed understanding was attained. Following that, the two parties exchanged maps depicting the boundary line and held formal meetings as well as friendly consultations in a spirit of equality, co- operation, mutual understanding and mutual agreement. And now an agreement in principle has been reached on the location and alignment of the boundary actually existing between the two countries.” (China, India, Pakistan; edited by K. Sarwar Haroon, Pakistan Institute of International Relations, Karachi; 1966; pp 366-367). The de facto boundary was legitimized but with significant changes.
China treaded the path cautiously after its experience with India’s stand on boundary talks. It indicated on 27 February 1962 its readiness to conclude with the Government of Pakistan “an agreed comprehension of the location and alignment of this boundary so as to prevent the tranquility on the border from being adversely affected on account of misunderstanding.” The note made it clear that any agreement that might be reached between China and Pakistan would be of a provisional nature on the location and alignment “actually existing between the two countries” pending the settlement of the Kashmir dispute.
In his report to Ayub (24 October, 1962), the Pakistan Ambassador gave his evaluation of the position China was likely to adopt during the boundary talks. The Chinese, he indicated, would treat the traditional customary boundary as the de facto boundary line.” (Altaf Gauhar; pp. 236-238).
A former Foreign Secretary of Pakistan, who had also served as Ambassador to China disclosed to this writer that China sought to know the basis on which Pakistan proposed to determine the boundary. Pakistan’s response clinched matters. The basis would be the facts of history and existing realities.
If India had adopted such a stand the boundary dispute would have been settled in April 1960. It is hard to think of any other boundary dispute which is as easily susceptible to a fair compromise with each having its vital, non-negotiable interest securely under its own control
– India has the McMahon Line and China the road through the Aksai Chin.
Nehru’s reaction to these developments was inconsistent and short- sighted. He expected Pakistan to adopt India’s stand that the boundary was defined; ergo, no dispute existed. He came to Pakistan to sign the Indus Waters Treaty and had extended discussions with Ayub Khan at Murree on 21 September 1960 after their talks in Karachi.
Ayub Khan records: “He asked me whether we had approached the Chinese to demarcate the border and I informed him of the position. He wanted me to show him the map on which we were basing our claim and wanted to know exactly the area to which our claim extended. I told him quite frankly that we had no intention of claiming any area which we did not honestly believe to be covered by the actual line of control as determined by our experts. We might ask for certain areas beyond the line of control to provide facilities for the local population.
“Mr. Nehru asked me to let him have a copy of the map and I agreed to this in principle. As soon as he went back to India, he started criticizing us for having approached the Chinese to demarcate the border. He mentioned the map I had shown him and said that we did not even know where the border was and that we were acting in a childish manner” (Ayub Khan; p. 163).
Nehru’s version corroborates this, though not quite the language Nehru was said to have used. Shortly after his return to Delhi, Nehru said at his press conference on 18 January 1961 “The fact of the matter is, so far as I know, Pakistan does not know very much about that border to which you refer. It is a remote border for them on the west of the Karakoram and their knowledge of that is extremely limited.” He said also, “In our opinion, we have nothing to negotiate, our minds are quite clear.” (PMSIR; Vol. II, Press Conferences; pp. 100-101).
In a speech in the Rajya Sabha on 3 May 1962, Nehru elaborated on the theme “In Murree and Pindi I thought that I might discuss this Chinese question with President Ayub Khan and let him know – I did not want to discuss so much on our border – what the position was on that part of the Kashmir border on which they were at the present moment; having occupied a part of Kashmir, they have to face the Chinese. So I told them of our maps, I showed them our confidential maps as to where we thought the Chinese were and where we were, and asked them what the position of the Chinese was on their side of the border.
“Well, I did not get much help from them because I found they knew less than I did even on that side of border. But we did discuss it, and it is most surprising that the Foreign Secretary who, I think, was present at that time, said that he knew nothing about those matters at all.” (PMSIR, Vol. 1 Indian Parliament, Part II; p. 87).
On 7 May 1962 Nehru spoke at length, after the announcement of boundary talks between Pakistan and China on 3 May “the acceptance by the Government of Pakistan of the Chinese Government’s view that this boundary has never been delimited and demarcated in history and their willingness to demarcate it now is – I do not know – sounds rather an opportunist attempt to take advantage of a particular position, even though this might involve changes in the well-known boundary which has been known to exist for a long time. Obviously in these high mountain ranges boundaries are not demarcated on the ground. There are some places which have not been reached by the human beings, some mountain peaks, and others have been reached occasionally. Therefore, they are not demarcated. They are divided by various features and various understandings like watershed, etc. We have made it perfectly clear even in the past both to the Pakistan Government and the Chinese Government about those parts of the frontier now in possession of Pakistan that we would not recognize any arrangements arrived at between them and Pakistan. I have stated the other day in the other House that a little more than a year and a half ago when I was in Pakistan I discussed this question or I raised this question with President Ayub Khan with his Foreign Minister and others present in a friendly way, because China was encroaching upon us and part of that boundary was at present under occupation of Pakistan. I wanted to know exactly where the Chinese were on that part of the boundary, and if they had given any trouble to Pakistan, what steps Pakistan had taken to meet the situation. There was an area – Hunza area – and the Mir of Hunza claimed it: he had called upon the Pakistan Government – and protested to the Pakistan Government that the Chinese had occupied some grazing areas there belonging to his original State, Hunza, which is part of Kashmir territory.
“This matter had come up before us too before, and we had examined all the old papers and we had found that this was an old dispute between the then Tibet Government and the Government of India through the Kashmir Government. The British Government, after due enquiry, had not accepted the Mir of Hunza’s claim to that particular grazing area, and therefore had refused to intervene in this matter. That refers to a particular spot, the grazing area, and not to the whole frontier…
“I wanted to know what Pakistan’s attitude was in this matter. Therefore, I raised it with President Ayub Khan and told him of the old papers we had. He agreed with that – that particular area – the grazing area of Hunza. He said we cannot lay claim to that in the circumstances when the British Government had given it up.
“Nevertheless, the major question remained about the border there, – what the Chinese authorities were doing to it. It seemed to me that both sides were not fully cognizant of the facts of the situation. Such facts as we knew were a little more than they knew. We knew that area. We discussed it. I showed them our maps and later they sent their maps which slightly, not much…
“Anyhow, I have given this past history just to keep the House informed, that we treated the Pakistan Government in a friendly way in this matter because we thought that any action which they might take should be in line with the action we were taking in regard to this border, and should not conflict. Unfortunately for various reasons they have come to this agreement with the Chinese which is an interference on both sides with India’s legal rights in the matter.” (ibid. pp. 89-91). Nehru clearly wanted Pakistan to emulate India – and refuse to negotiate.
In a statement in Parliament on the agreement on 5 March 1963
Nehru cited the very maps on which he had poured scorn to say “If one goes by these maps, Pakistan has obviously surrendered over 13,000 square miles of territory” – which, never belonged to it or to undivided India at all. He added “Running south of the traditional alignment the Pakistan line of actual control surrendered about 1,600 square miles to China” – surrendered is fundamentally is different from “ceded.” Waived is a more appropriate word as we shall see. (Sino Pakistan “Agreement” March 2, 1963; Some Facts; External Publicity Division, MEA 1963; pp. 32-34).
This excellent brochure contains the texts of the protest notes exchanged between India and Pakistan and between India and China. It is unnecessary to study the polemics especially since they are conducted in execrable English. However, a Note on the “Historical basis for traditional frontiers of north Kashmir with Sinkiang (West of the Karakoram Pass)” is noteworthy for its inconsistencies and inaccuracies. “Both the upper valley of the Khunjerab river and the upper valley of the Shaksgam river, lying south of the Aghil mountains, have always been parts of Hunza.
The people of Hunza exercised various rights including cultivation and pasturage and grazing in this area. The Shimshalis of the Darwaza area in particular used the entire area up to the Shaksgam for grazing and extracted salt at various places in the valley. On the other hand, no one from China had ever used this area. The Mir of Hunza exercised authority in this region, maintained posts and collected revenue. … The Mir of Hunza, who became the feudatory of the Maharaja of Kashmir in about 1864, had been utilising regions north of the traditional boundary for grazing and cultivation. In some British maps a colour wash had been used reaching further north into Sinkiang and covering this area north of the traditional frontier where such grazing and cultivation took place. The British Government, however, recognized the correct traditional frontier in this area and in 1899 authorised Sir Claude McDonald, their Minister in Peking, to make proposals to the Chinese Government for a realignment. These compromise proposals envisaged the inclusion within Hunza of the Taghdumbash region, north of both Hunza and the traditional alignment, where the Mir had exercised grazing rights, in return for concessions south of the alignment between the Aghil and the Karakoram ranges. The Chinese Government refused to enter into such an agreement and preferred to abide by the traditional alignment.
“In 1927 as a result of an examination on the ground by officials of the Government of India, it was reaffirmed that administration only extended up to the traditional boundary, and consequently in 1936 the Government of India asked the Mir to abandon his grazing rights in the Taghdumbash area.” The rectification of the alignment was duly carried out in all maps published by the Government of India after 1947.
At the talks of the Officials of China and India in 1960 the Chinese side presented a map which showed their claim line as running well to the south of the traditional alignment and including an area of about 3,700 square miles of Kashmir. The Chinese, however, refused to discuss this matter on the plea that this area was not under India’s control.
It was pointed out to the Pakistan Government that India had no claims to territories north of the traditional frontier in Sinkiang, but the Government of Pakistan continued thereafter to show an alignment far north into Sinkiang, including about 11,000 square miles of territory. This alignment admitted that the frontier was “Undefined.” (ibid. pp. 1- 2). The record shows that the Mir had grazing rights while Curzon unilaterally created a loop over the Shimshal Pass.
The New Delhi correspondent of the Times (London) then was Neville Maxwell. In two despatches he threw much light on why Pakistan revised its out-dated maps. Since they are hard to come by, they are quoted here in extenso: “Analysis of the terms of the border treaty shows, however, that in fact both sides have made concessions. The area in dispute from the overlapping borders shown on Pakistan’s and China’s maps was about 3,400 square miles. The compromise border now agreed upon leaves about two-thirds of it (2,050 square miles) on China’s side; but while Pakistan has given up only claims on maps. China will be withdrawing her frontier forces and administration from about 750 square miles.
“The Chinese and Pakistan claims diverged from a point just south of the Khunjerab pass. According to China’s maps, the border there should run almost due south to the Karakoram mountains before turning eastward; Pakistan’s maps showed the border running roughly south-east from that point to the sharp bend in Mustagh (or Shaksgam) river. The agreed border will follow Pakistan’s claim, thus including in Pakistan territory to the west of the Mustagh river, where it bends sharply around the town of Sokh Bulaq.
“In order to accommodate Pakistan in her desire for that pocket. China has diverged from the principle of the watershed on which she has based her claim in this area. For a stretch west of the Sokh Bulaq bend the compromise border will be the Muztagh river which runs into Yarkand river in Sinkiang. Then from the point at which the first significant tributary joins the Muztagh river the compromise border drops abruptly south to rejoin the Karakoram watershed.
“It is at the point here the compromise border meets the Muztagh river where Pakistan begins to give up the claimed territory in her part of the compromise. Pakistan’s maps (which were given to her by India another crest line and running through Aghil Pass.
“Unless the borders not yet formally delimited in these remote and desolate marches are to be considered precise and absolute, the settlement now reached between Pakistan and China would seem to be an equitable compromise. Pakistan was able to enter into these negotiations free of passionate rhetorical commitments to which the Indian Government has been tied since 1959.
“Indian criticism today of Pakistan’s “surrender” of territory ironically and even tragically underlines the fact that just such a settlement as this would have been fully acceptable to India before the news of China’s furtive and deceitful occupation of territory which Peking knew that India claimed aroused a cry of “aggressive” here.” (The Times, 4 March 1963). In his book India’s China War published in 1970 Maxwell abandoned his assessment “of China’s furtive and deceitful occupation of territory which Peking knew that India claimed.”
Two days later he explained why Nehru alleged that Pakistan surrendered more than 13,000 sq. miles of territory to China. “This suggestion is based on the fact that Pakistan was slower than India in correcting the official maps. In 1927 the British Government of India decided that a claim of the Maharaja of Kashmir that his domains were bounded to the north by the northern watershed of the Kuen Lun ranges was insupportable, but did not correct the survey of India maps accordingly. Finding that decision in the files after independence, the Indian Government acted upon it and corrected their maps.
“As late as 1962, it appears from Mr. Nehru’s statement, Pakistan continued to use the maps showing the Maharaja’s old claim as the international frontier. According to these maps, as the Prime Minister pointed out, Pakistan would have surrendered about 13,000 square miles; but, in fact, Pakistan began negotiations on the border with China from the basis of corrected maps.” (The Times 6 March, 1963). Every reputable work on the subject relies on this report which was published much before the MEA’s brochure on the agreement which also referred to the revision of the maps in 1927.
W.F. Van Eekelen, a Dutch diplomat who served in New Delhi and London, delved into the archives in both places to write an excellent study Indian Foreign Policy and the Border Dispute With China (Martinus Nijhoff; The Hague, 1966) concurs with the view that while Pakistan waived claims on maps, China withdrew from 750 square miles (p. 131); (Vide also R.R.V. Prescott; Map of Mainland Asia by Treaty; Melbourne University Press, 1975; p. 230-237).
Dr. B. N. Goswami of the Universities of Calcutta and North Burdwan opined, against the “patriotic” consensus that “to a limited but knowledgeable section of people, the agreement appears to be just and fair to both sides. … Neutral observers do not find much substance in the Indian allegations of Pakistani concessions to China” (B. N. Goswami, Pakistan and China; Allied Publishers; 1971; pp. 89-90).
Significantly a few weeks after the announcement on 3 May 1962 of an agreement to commence negotiations, Major-General N.A.M. Raza was appointed Ambassador to China with full powers to negotiate a boundary agreement (Pakistan-China boundary agreement; Department of Films and Publications, Government of Pakistan, Karachi; August 1963; p. 5).
In an interview in Peking on 8 April 1963 Raza made an authoritative exposition rich in details (Pakistani’s News Digest; Karachi, 15 April 1963, Vol. II No. 8). He rejected India’s charge that Pakistan ceded about 2,000 square miles Shaksgam Valley in the Tarim River Drainage System across the Karakorum Range in deciding the boundary question with China.
The line, which Sir Claude McDonald suggested, followed the main watershed of the Karakorum Range dividing the Indus River System on the south from the Tarim River system in the north, except that it included 455 square miles of the western portion of the Taghdumbash Pamir and 470 sq. miles of Shimshal Valley, also in the Tarim River Drainage System, in the British India territory. miles of Shaksgam Valley, defined by India as lying between the Agil Range and the Karakorum Ranger in the Tarim River Drainage System. In any case the Chinese Government did not accept the proposal and never replied to the British communication.
If the British proposal were examined, it would be very clear that the British made absolutely no mention of the Shaksgam valley while pitching their claim on the Tagdambash Pamir. Besides, the portion of Tagdambash claimed by the British was 455 square miles, while the area of the Shaksgam Valley is about 2,000 square miles. Following, however, of the non-acceptance of the McDonald proposal by China, the British Government continued correspondence with British India concerning the boundary which it would be best to propose to China.
Subsequently, another proposal was made by the Political Agent of Gilgit, Maj. Galbraith, in 1939, which could not be presented to the Government of China due to the outbreak of World War-II. According to this proposal, Gujrab Valley and the Kutchin Salt Mines were added to the British claim of 1899 and the claim to the Tagdambash Pamir was again left out, as already suggested by the Viceroy in 1905.
From these facts, he was clear, Gen. Raza said that: “Firstly, the original claim, which the British made on a portion of the Tagdambash Pamir in 1899, had definitely been dropped. Secondly Shaksgam Valley was never included in various British claims and on the contrary when the British wanted to go to the Shaksgam Valley for survey, they asked for a visa from the Chinese Government; and consequently there was never any idea of exchanging the Shaksgam Valley for Tagdambash Pamir. India did not claim the Tagdsambash Pamir in the line it gave to China during their talks in 1960.
Raza asserted that the boundary now agreed upon between China and Pakistan coincided exactly with the line which covered the maximum territory which the British were to claim as late as 1939.
On 28 November 1998 Agha Shahi, former Foreign Minister said, as one involved in the negotiations, that a study of the archives failed to reveal credible evidence of any plausible claim to territory beyond the watershed of the Karakoram mountain range (News; 29 November 1998).
The scholar Alastair Lamb subjected the Agreement to a rigorous analysis based on historical records. (The Sino-Pakistani Boundary Agreement of 2 March 1963; Australian Outlook; Vol. 18, No. 3; December 1964; pp. 299-312).
The Agreement reconciles conflicting maps. Article 2 defined “the alignment of the entire boundary line” between the two in detail noting the discrepancies between the two maps. Para III of Article 2 read: “In view of the fact that the maps of the two sides are not fully identical in their representation of topographical features, the two parties have agreed that the actual features on the ground shall prevail, so far as the location and alignment of the boundary described in Section I is concerned; and that they will be determined as far as possible by joint survey on the ground.”
A Joint Boundary Demarcation Commission was to be set up to conduct surveys and delineate the boundary line on jointly preferred maps. A protocol would be drawn up to define the agreed boundary with agreed maps attached to it (Art. 4).
Lamb drew up a sketch map on which he plotted the 1963 boundary, based on the definition in Article 2, as well as the line offered to China in 1899 and opined that “the 1899 line coincided for much of its length with the 1963 alignment…. the 1963 line concedes to Pakistan some territory north of the Shimshal Pass which would have been excluded from British India by the 1899 line; but the tract in question was brought on to the British side by the modification of 1905. .. Thus by 1905 the British had accepted a boundary with Sinkiang which coincided almost exactly … with the alignment negotiated in 1963. … The 1899 line, by definition, began at the point on the Russo-Afghan border where the Anglo-Russian Boundary Commission left off in 1895. Its starting point, in fact, marked a meeting place of British, Chinese, Russian and Afghan territory. To connect the terminal point of the 1895 Boundary Commission with the main Karakoram watershed, however, involved running the line north of the watershed and including within British India territory which the Indian Government had no intention of ever administering. By the end of the First World War the western end of the border had been pulled back on maps, as it always had been in fact, to the main watershed crossed by the Kilik and Mintaka Pasases. … therefore, the 1963 boundary coincides with the alignment in practice and in theory of the British Indian border from at least 1918 until 1947 and the transfer of power.”
In 1937 or 1938 the Chinese authorities in Kashgar went so far as to send a patrol right up to Shimshal to expel cultivators who were subjects of the Mir of Hunza. During the Second World War the Indian Government evidently concluded that it was pointless to maintain the fiction of Hunza rights beyond the watershed, except for the Shimshal tract; and the Mir was persuaded to abandon his rights in the Taghdumbash Pamir and Raskam in exchange for a Knighthood. “By the time of the transfer of power in 1947, therefore, the Indian Government had abandoned any claims north of the Karakoram watershed, except in Shimshal; and had it been necessary in 1947 to draw a line which represented the real limit of the British Indian Empire here, that line would certainly have followed exactly the same alignment as did the line of the 1963 Sino-Pakistani boundary agreement.”
Lamb wrote a further study on a wider canvas in 1973 entitled The Sino-Indian Border in Ladakh (Australian National University Press, Canberra). He held that in the agreement of 1963 “the area of Pakistani occupation has been increased considerably when compared to the 1898 proposals” (p. 47). The agreement “was little more than a confirmation of the western part of the 1899 line as it was unilaterally modified by Lord Curzon’s government in 1905” (p. 74).
Curzon’s modification was based on Hunza’s needs. This fact prompted Pakistan’s negotiators, evidently in response to disquiet in Hunza, to seek a meeting with Prime Minister Zhou Enlai though the alignment had been agreed and finalised. The meeting was held well past midnight. Zhou’s first question was whether the visitors were otherwise satisfied with the deal. They replied that they were but sought a concession on humanitarian grounds. Zhou readily agreed.
The veteran diplomat Abdul Sattar, who served as Foreign Minister records : “Pakistan remembers with gratitude an extraordinary gesture by Premier Zhou Enlai: after the alignment was agreed, the Pakistan government belatedly realized that some grazing lands along the Mustagh River in the Shimshal Pass on the other side of the watershed were historically used by inhabitants of Hunza. It then appealed for an exception to the watershed principle to save hardship to the poor people. Zhou generously agreed to the amendment of the boundary so that an area of 750 square miles remained on the Pakistan side. (Pakistan’s Foreign Policy 1947-2005: A Concise History, Oxford University press, Karachi, 2007; p. 71).
The agreement of 1963 is, thus, based on a history that stretched to the 19th century. If India had consulted the records in the spirit as Pakistan did, an accord could have been reached in April 1960. For India, as it did for Pakistan in 1963, the McDonald’s Note of 14 March 1899 provides a key to the resolution of the India-China boundary dispute.