West Bengal National University of Juridical Sciences
B.A. LL.B. (Hons.) candidate
Synopsis: Maps and their significance have been reduced to mere pieces of paper in the current technological era. This blog post demonstrates the enduring significance of maps by analysing the India-China border dispute, and elaborates on the general usage of maps in international law.
Keywords: maps, India, China, border disputes, International Court of Justice (ICJ)
Usage of maps in international law
Historical maps are most commonly used as evidence in legal proceedings. Nevertheless, the relevance of maps is not restricted to use as evidence in court as a question of law or question of fact, but maps can also be used as a legal fact and a legal act. A map can be adduced in the International Court of Justice (ICJ) during the oral proceedings relying on the expert opinion of a cartographer. It is governed by Article 50 and 51 of the ICJ Statute. The expert opinions are imperative since it is not practical to expect ICJ judges to learn cartography. A map is used to strengthen the legal conclusions to determine the intention of the legal obligations, which answers the question of law. Moreover, a map may become a legal fact when an obligation arises for drawing a map using a particular technique. Lastly, a map may become a legal act when it is an integral part of a treaty that is voluntarily entered into between two or more States.
The aforesaid examples are not exhaustive, and each of them has specific unresolved questions. This blog post only addresses maps as a question of fact. Maps have been part and parcel of boundary disputes in the ICJ interminably, but their significance has been underrated. In the landmark case concerning the Frontier Dispute, the judges opined that maps are a corroborative piece of evidence. By holding this, the chamber drifted from the principle that they are merely informative, and not constitutive of conferring title. The chamber held that maps could be used to corroborate the conclusion of the bench reached by using other means. In short, maps are considered as a piece of secondary evidence. Additionally, the method of taking maps as evidence is elaborated in the Libya v. Chad Territorial Dispute case.
Maps, as a question of fact, are used to provide the bench with a general idea of the boundary, which familiarises judges with the dispute. Many boundaries comprise of natural frontiers like mountains or rivers or oceans. In such cases, the usage of maps become essential to demarcate where precisely in the mountains does the boundary of a State begin/end. A similar issue exists in the border issue between India and China, where the usage of maps may be of noteworthy help.
Significance of maps in international law
Primarily, maps help in determining the exact boundary of a territory. The competency and neutrality of the cartographer are vital for ascertaining the authenticity of a map. The authenticity of a map may be determined by putting questions to the cartographer under Article 51 of the ICJ Statute. Competency may be discerned by evaluating the cartographer’s past commissioned or non-commissioned works. Neutrality may be determined by assessing the cartographer’s familial ties, acquaintances, and any scope of bribery. Considering that the map is authentic, it facilitates in the demarcation of the exact boundary of a State. In cases of natural frontiers like mountains, the tectonic plates may move the boundary to a certain extent. In such situations, maps can highlight the old boundary, which could be evaluated by a geologist or other experts to verify whether the argued displacement of the boundary was possible in the first place.
Secondarily, maps can be used to verify the claims of a State. Upon a boundary dispute, a State may claim an exaggerated territorial boundary, which can be refuted with an authentic map. In such cases, the sole existence of a map may not be sufficient to decide the dispute as per the Frontier Dispute case, but it would corroborate other pieces of evidence. The probative value of the maps may be high if the court is convinced of the map’s authenticity. As opined in the Maritime Delimitation (Eritrea and Yemen) Phase I Award, maps have some probative value even in cases where the map is considered as biased or unauthentic.
Thirdly, maps drawn after entering into a treaty by a State may be regarded as sufficient state practice. Opinio juris may not always arise from a map unless they are an integral part of the treaty. Hypothetically, if a boundary is drawn between two States through a treaty, ‘map A’ in the treaty is an integral part of it. Thereafter, one State draws ‘map B’ which includes inconsistent boundaries. In such a case, the drawing of a subsequent ‘map B’ may be considered as state practice, and ‘map A’ in the treaty may be regarded as opinio juris is interpreted liberally. ‘Map A’, which constitutes state practice, is the question of fact, and ‘map B’, which constitutes opinio juris, is the question of law. A combined reading of both maps becomes significant in regarding them as customary international law.
India-China boundary dispute
The India-China border dispute has lasted for more than fifty years. There is a dispute regarding the Line of Actual Control (LAC) in the region of Ladakh about the territory of Aksai Chin (see below). The precise position of the LAC is conflicting for both the states. This dispute witnessed a war in 1962, along with enduring tensions. China administers the disputed territory of Aksai Chin, but India claims it to be a part of their territory. Hence, in such situations, maps may be efficacious in supplementing one’s claims to the disputed territory.
Prospective outcomes on usage of maps in the India-China boundary dispute
The map of India includes the Aksai Chin region in its territory. If this dispute goes to ICJ, then this map of India can supplement its claims about this disputed territory. However, the case can go to the ICJ only through an Advisory Opinion under Article 65 of the ICJ Statute because China has never consented to the ICJ’s jurisdiction. As per the Interpretation of Peace Treaties case, consent is not needed for Advisory Opinions.
India has been drawing such a map including the Aksai Chin persistently since 1947. China captured the territory in 1950s and is administering it since 1962 (after the Indo-China war), but this act of India underlines its retaliation. Unlike the Temple Preah Vihear case, India has explicitly manifested its retaliation through its map. Moreover, the territory of Aksai Chin was not a part of the Chinese maps till 1920s.
Moreover, a map may help India strengthen its claims by acting as corroborative evidence in the dispute. The maps that have a bias or loss of authenticity still have some probative value as per the Maritime Delimitation (Eritrea and Yemen) Phase I Award.
Lastly, the map of India has been recognised by many States. It adds to the authenticity and the probative value of the map. The genuineness of the map of India and the claims of India may be inferred from such recognition. Therefore, a map becomes cardinal in cases of boundary disputes for retaliating another State’s claims, and not just for establishing its own boundary. The map of India may be used as one of the critical pieces of evidence in such a border dispute.
Maps are not just a piece of paper in this technological era but are salient pieces of evidence. The significance of maps cannot be dispensed with, since they underline the gradual intention of the States. The motivation of a State can be interpreted from a map. Maps may even simplify the complicated intentions of a State. The attachment of maps in legal proceedings adds a touch of genuineness in its claims (it is subject to the authenticity of the map). Further, maps can discern any inconsistencies with a State’s claims. For a map to be recognised as authentic, along with the cartographer’s efficiency, the maps of previous and subsequent years should not be ostensibly disparate with the current map. If the maps of the past, present and future periods are not consistent, then suspicion may arise, which may lead to the inconsistencies of the State’s claims. It is subject to a couple of exceptional situations; when the boundary changes due to movement of tectonic plates, or lawful acquisition of another territory. Therefore, maps were, are, and will be innately pivotal in international law and politics.