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A Perpetual Legal Analysis on Relation between India and China

Historical background of India and China is very much familiar; India and China are two very populous countries with ancient civilizations, friendship between the two countries has a time-honored history, which can be dated back 2,000 years, and since the establishment of diplomatic ties between two countries, particular in the last ten years, friendship and cooperation has made significant progress.

The 1962 Sino-Indian conflict was not only limited to one specific issue such as territory but also included interpreting nature of global system. Main cause of war is believed to be a dispute over the sovereignty of the widely separated Aksai Chin and Arunachal Pradesh border regions. Aksai Chin, claimed by India to belong to Kashmir and by China to be part of Xinjiang, contains an important road link that connects the Chinese regions of Tibet and Xinjiang. China's construction of this road was one of the triggers of the conflict. There is also dispute between McMahon line drawn at a time of British rule in India.

Up until World War II Tibetan officials were allowed to administer Twang with complete authority. Due to the increased threat of Japanese and Chinese expansion during this period, British Indian troops secured the town as part of the defense of India's eastern border.

The conflict between two countries was aroused again in the middle of pandemic, on 5th may 2020 when china took over aggressive move towards Indian Territory at Galwan valley(15th june), pangong tso lake and line of actual control.

Many experts said that the skirmishes were a response from China to the development of Indian infrastructure in Ladakh, particularly along the Darbuk–Shyok–DBO Road. Wang Shida of China Institutes of Contemporary International Relations linked the current border tensions to India's decision to abrogate Article 370 and change the status of Jammu and Kashmir in 2019. The diplomatic talks led to complete disengagement on 25th July from all the borders, stated official report from both the countries.

Before the dispute, on 21st December 2019, 22nd Meeting of the Special Representatives for Settlement of the India China Boundary Question was held and lead by Shri Ajit Doval national security advisor while Chinese side was led by Mr Wang Yi, State Councillor and Foreign Minister of People’s Republic of China.[1]

In 2012, Agreement between The Government of the Republic of lndia and the Government of the people,s Republic of China on the Established a Working Mechanism for Consultation and Coordination on lndia-China Border Affairs.

The article 1 of the agreements states; The two sides agree to establish a Working Mechanism for Consultation and Coordination on lndia-China Border Affairs (hereinafter referred to as "the Working Mechanism") to deal with important border affairs related to maintaining peace and tranquility in the lndia-China border areas.[2]
From the on- going dispute, Indian government banned 59 Chinese app or china origin app which raises to questions

The first, by Chinese tech giants who are already raising concerns of dissimilar treatment with apps developed in other jurisdictions which could potentially also be similarly inconsistent with inter alia privacy concerns in fact, the Calcutta High Court has recently held that a foreign entity can file a writ petition in an Indian Court in the context of Article 226 of the Constitution.

The second, by Indian users who feel that the decision to ban TikTok restricts their access to the internet and the ability to express themselves in a manner that is unreasonable. Both this question comes under ambit of Article 14 which requires that all persons are treated equally before the law.

Article 14, however, does allow dissimilar treatment between two different classes provided that the classification made between them is reasonable. The statement ‘dissimilar treatment between two different classes’ means where Chinese app developers are deprived from all the technological operation in Indian territory while app developers from other countries like U.S.A are allowed to operate there apps in Indian territory.

Moreover this predictable digital or a modern answer to China’s aggressive behavior also leads to two agreements made under World Trade Organization (WTO) those are General Agreement on Tariffs and Trade (GATT) or General Agreement on Trade in Services (GATS)

In its response to the ban, Beijing has made veiled threats of taking the matter to the World Trade Organization. Both India and China are members of the WTO and governed by its rules which limit territorial restrictions to cross border trade. [3] If GATS is taken into consideration, India has to justify its move also to show that ban operates in non-discriminatory factor.

Whereas, if GATT is taken into consideration as governing framework; the landmark ruling of dispute between Russia and Ukraine where the Panel clearly noted that:
political or economic differences between Members are not sufficient, of themselves, to constitute an emergency in international relations for purposes of subparagraph (iii) of Art XXI of GATT. [4]

Even though the doctrine of stare decisis does not apply here, but the decision of panel is considered persuasive in nature and gives glimpse of how the dispute between India and China will be handled. An analysis on this needed to vigilant as it is far beyond what was originally agreed upon.


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