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Why India cannot disturb Manipur Boundary of 1947?

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UTI POSSIDETIS JURIS Professor (Dr.) N. Sanajaoba

Never before since India’s disputed annexation of Manipur in 1949, has the issue of balkanisation of Manipur or, alteration of her ancient historical boundary been raised as it is being done today. The annexation has let loose unimaginable events like ethnic-cleansing, highway-blockade, economic strangulation and claims to respective clan lands and many more things. Annexation is the pandora’s box. In the 19th century, rival claims over Kabo valley by two independent states in South Asia had been settled through multilateral negotiation on the production of historical boundary documents by the legitimate state authority of both the countries. Even today, an arbitration commission can easily and peacefully settle similar issues on the production of century-wise maps of the boundary by the respective legitimate state authorities, who had properly undertaken the state succession under the law.
The editorial of Assam Tribune (7 June, 1999) has captured the ongoing process. Except the realisation in the NSCN (I-M) leadership that their “Sovereignty” cannot be water-tight is undoubtedly pregnant with possibilities justifying cautious optimism about peaceful solution. Similarly the virtual pressing the demand for covering all the “areas inhabited by our forefather” will pose another hurdle as this will affect the integrity of Manipur as a State besides demands for territories from Assam’s North Cachar Hills. This hurdle will pose greater difficulty than the sovereignty demand”. The people of Manipur whose forefathers lived together for two millennia centuries before the ethnic names have been adopted or, given by the British has put up strong resistance to this sort of claims. The All Manipur Students’ Union, as for instance, lodged strong protest to Indian premier in 1960s against such moves. The Sunday Hindustan Standard (January 7, 1968) has carried the protest, “ Manipur split-up move condemned’ while stating that any “Attempt for Balkanisation of Manipur would have serious consequences”. The Indian premier, whose Government has illegally annexed the Asian state of Manipur might have understood the outer limits of his jurisdiction in this context.
The five lakh-strong Manipuri’s historic rally on 4th August, 1997 has resolved that “The people of Manipur shall resist, as one man, the sinister and diabolic designs which pose a tremendous threat to the territorial integrity of the state and ethnic symbolic harmony of its people”. Manipur legislative assembly also has adopted similar stand by its resolution, dated 24th March, 1995 to resist against all designs, mooted for disruption of Manipur’s territorial integrity. *The Burmese insurrection in Manipur for 500 years had also been repulsed by the Manipuris in similar fashion in order to preserve Manipur’s territorial integrity.
The politico-military apparatus, which has to defend Manipur has been taken over by the Government of India unlike the situation in which the Burmese disturbances for five centuries that had been decisively defeated by Manipur’s political military apparatus. In the changed scenario, we discuss issues that merit legitimate attention of the constitutional authorities and International-law-persons by citing the principles and practices.
The Constitution
Two political constitutions of the post-war period are relevant in driving home the point. Article 3 of 1947 Manipur constitution provides, “The territories for the time being and hereafter vested in the Maharajah are governed by and in the name of the Maharajah. All rights, authority and jurisdiction which appertain or are incidental to the Government of such territories are exercisable by the Maharajah subject to the provision of this Act”. Any premier of any country in the neighbourhood or, his plenipotentiary who has claims over any part of the territory of Manipur in 1947 has to satisfy any commission or mediating party with his or her constitution that lawfully operates in his or her country in 1947 and cite the precise constitution provision relating to their territory. This is the first sine qua non for both India and any other internationally recognised state for a peaceful negotiation of the claims, should there be any lawful claim as such. The second pre-condition relates to historical rights of that state. How the successive constitutional rulers of any state whatsoever (chronologically speaking) had maintained by proper documents, records and historical official records. The Burmese in 19th century produced similar materials before the boundary commission relating to Kabo valley and Manipur contradicted with her records and documents. The Government of India can initiate this process su-motto without triggering possible discomfort among the neighbouring states, presently in her union; governance function cannot abdicate this primary obligation for conflict off resolution and a ‘white paper’ could also be issued if possible mishaps have to be averted or, pre-empted in time.
The second instrument is the republican constitution of India which provides in article 3, parliamentary power to alter areas, boundaries of existing states after hearing ‘views’ of the state legislature concerned which will not bind the President at all. This article applies to India’s existing states and not to Manipur, which has been ‘a pre-existing state’ before the adoption of India’s Constitution. Rather, it has been an illegally annexed state to which article 3 has no contextual bearing at all.
The first schedule of the constitution defines territory of Manipur thus, “The territory which immediately before the commencement of this constitution was being administered as if it were a Chief commissioner’s province under the name of Manipur.” The first schedule of the Constitution serial No. 19 on Manipur categorically established the fact that the territorial integrity of Manipur preceded the Indian Constitution. This status quo ante of the pre-existing state can not be disturbed by a subsequent provision of the Constitution like the article 3 or 4 of the Constitution.
The Constitution defines the matters specified in the Instrument of Accession for legislative purposes. For Jammu and Kashmir, which like Manipur had entered into the Instrument of Accession, article 370 of the Constitution provides that the power of the parliament shall be limited to ‘matters specified the Instrument of Accession governing the accession’ of Jammu and Kashmir state to the Dominion of India. Like the British, the Indian rulers played divide-and-rule policy by denying the same privilege, enjoyed by Kashmir to Manipur.
As per the Constitution (Application to Jammu and Kashmir) order, 1954, C.O. 48, the President of India made the order:
To article 3, there shall be added the following further proviso, namely :-
“Provided further that no bill providing for increasing or diminishing the area of the State of Jammu and Kashmir or altering the name or boundary of that State shall be introduced in parliament without the consent of the Legislature of that state”.
A re-statement has also been subsequently issued by the union government of India. The Government of India was expected to issue a similar order in 1954 or thereafter, in regard to the boundary of Manipur, but it failed her constitutional responsibility to treat two annexed states on equal terms. Even to-day, the Government has the responsibility to issue a similar order in regard to Manipur. Claims and counter claims to balkanise Manipur would not have gathered so much attention as of now but for the unfairness of the Government and its deliberate abdication of constitutional obligations.
UTI Possidetis Juris
Fratricidal wars and never-ending-political instability ensured in some parts of the world, where similar ethnic groups settle in contiguous areas of a state or country; but baseless claims to territory of other state have never materialised in the recent state practices in the last two centuries, despite world-wide conflagrations, which every sensible student of history knows. Somalia claimed contiguous areas where Somalian tribes settled in both Kenya and Ethiopia; but her claims have been rendered absurd and futile by the international communities. Hardly any country in the world can afford to similar claims, as every contiguous country has definitely a considerable population of common ethnicity of the neighbourhood. Palestinian people are spread over in almost all the neighbouring Arab states. Yet baseless claims had never been made by the responsible leadership of PLO, who are conversant with the basic international law. Baseless claims, made by irresponsible non-state bodies would impede even the exercise of legitimate rights of people, as the comity of nations would disregard them.
The international obligation of the state of India towards Manipur has been clearly stipulated article 2(4) of the UN Charter, which India has subscribed to, two years before her official independence. The Manipur state had existed for two millennia and her independent status has been given international recognition since 1726 A.D. and 1826 A.D. onwards with the emergence of the modern state systems in the world. She had her defined territory, population, successive governments for two millennia, external relations with neighbours, economic centralisation, common official language, common ancestry for two millennia even before the colonial British had recently coined terms like Kuki, Naga and others and above all, a full-fledged constitutional system, equipped with judicial mechanisms. Any claimant to territory should have these parameters.
Government of India’s Charter obligations towards respecting territorial integrity of Manipur emanates from article 2(4) of the Charter, “All members (sic. India) shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state (sic. Manipur), or in any manner inconsistent with the purposes of the United Nations”. The same article is equally applicable to Indian as well. Even the great super powers can not pose a threat to India. The state practices in the matter of freezing colonial boundaries or borders at the moment of independence of colonial countries are very clear for anybody not to misread the consistent practices, that ultimately led to the framing of the ‘Uti Possidetis Juris’. The borders and boundary of Manipur that existed at the lapse of British paramountcy is fully protected by this principle even for the sake of triggering off counter productive, wanton fratricidal wars. Government of India in particular has the international obligation not to violate the “Uti Possidetis” under all circumstance without risking hostile responses for her irresponsible behaviour. Brownlie and Shaw’s latest edition of International law, among other, demonstrate the details.
The International Court of Justice has laid down the principle in a series of disputes bearing the similar context. The ICJ in Libya-Chad Case announced that, “once agreed, the boundary stands, for any other approach would vitiate the fundamental principle of the stability of boundaries, the importance of which has been repeatedly emphasised by the Court”. (ICJ reports, 1994, Shaw p. 685; hereafter references are made to Shaw).
The ICJ Reports, 1992 in ‘Land’ Island and Maritime Frontier Dispute (El Salvador Honduras) case proclaims that the administrate limits are invested as international boundaries and the Uti Possidetis is a retrospective principle. The ICJ in Burkina Faso, Republic of Mali (ICJ reports, 1986) laid down the norm- ‘Intangibility of frontiers inherited from colonisation for settlement of disputes. The Uti Possidetis principle laid down by ICJ is (excerpt):
“The essence of the principle lies in its primary aim of securing for the territorial boundaries at the moment when independence is achieved. Such territorial boundaries might be no more than delimitations between different administrative divisions or colonies all subject to the same sovereign. In that case, the application of the principle Uti Possidetis resulted in administrative boundaries being transformed into international frontiers in the full sense of the term”. (op. cit. p. 357).
The ICJ reports relating to Latin America (Reports, 1959, 1960) has framed the Principle in early 1960; “When the common sovereign power was withdrawn, it became indispensably necessary to agree on a general principal of demarcation, since there was a universal desire to avoid to resort to force, and the principle adopted was colonial Uti possidetis; that is, the principle involving the preservation of the demarcation under the colonial regimes corresponding to each of the colonial entitles that was constituted as a State.” (Bronlie, p. 137 ). The Asian Governments including Government of India and tribunal for cases like Rann of Kutch (Award, 1968) have adopted the principle in order to preserve pre-independence boundaries, established by law.
In the significant western Sahara Case, the ICJ in 1975 while admitting that historical ties exited between tribes of Morocco and Mauritania, rendered the extensive Moroccan claims over Mauritania, Western Sahara and parts of Algeria as irrelevant and of political nature.
Application of Uti Possidetis
In the event of boundaries among the break-up independent states, the Minsk Agreement of 8 December, 1991 (see author’s Oppressed Nations, p. 325) followed by Alma Ata Declaration of 21 December, 1991 clearly stipulates, “The high contracting parties recognise and respect one another’s territorial integrity and the inviolability of existing borders within the common wealth” (article 5 of Minsk).
Even in the context of the most mind-boggling, blood-letting Balkan crisis the like of which the history has not witnessed before, similar territorial issues or claims have been easily settled without any noise-pollution in the neighbourhood- environment. The arbitration commission, installed by the European Conference on Yugoslavia in its option 2 solemnly proclaimed that “Whatever the circumstances the right to self-determination must not involve changes to existing frontiers at the same time of independence (Uti Possidetis Juris) except were states concerned agree otherwise”. In option 3, the existing boundaries became international boundaries after the independence of several states from the republic of Yugoslavia in 1991-1992. But for the universal states that emerged from Yugoslavia would never rid themselves of permanent, fratricidal wars and their independence might have been postponed for several decades.
Besides, the unacceptable ‘doctrine of contiguity’, doctrine of forefathers has been invoked in the case of Iraqi invasion and annexation of Kuwait in 1990. The United Nations rejected the mistaken historical argument of Iraq and throttled her till the Iraqis eject out Kuwait from gobbling up. (see author’s, Oppressed Nations p. 115-117, Security Council Resolutions). The USA since 1856 had adopted the elementary norm of UTI POSSIDETIS, when the Secretary of state proclaimed that with the termination of European colony in Americas, the independent states succeed to the territorial limits of the colonial period.
The Organisation of American Unity also has adopted in 1964 the principle that the emerging states would follow the colonially defined territory. The principle has been so firmly established in all the continents that even rogue states of Idi Amin dare not violate the universal principle. However, among the African tribes, fratricidal and internecine wars led to near-total decimation of rival tribal populations. When these futile, mutual genocides have concluded, they are back to square one only to belatedly comply with the Uti Possidetis spectacular in 1990s and commands utmost respect and compliance by existing as well as emerging sovereign states, which would have a political and economic space in the comity of nations by dint of their strict adherence to this Uti Possidetis rule.
Self-Determining Units
Colonial declaration 1960, Declaration relating Friendly relation 1970 stipulate the exercise of the right to self-determination by legitimate people; but it cannot be put into improper use territorial aggrandizement of the self-determination unit. The Uti Possidetis principle has been used in the context of de-colonisation of colony and non self-governing territory subject to the pre-independence colonial administrative boundaries. The reason is simple political instability and fratricidal wars will often ensue in the event of dilution of the principle. It could also be possible that the world community can hold up recognition of emerging states, which fail to comply with this norm and create threat to peace and security in parts of the world. The non-self-governing people in the region cannot but honour this rule to their advantage.
The territorial integrity of Manipur has been fairly established for half a millennium, as one can verify easily it from Henry Yule’s Map of Manipur in 1500 A.D., down to James Johnstone’s Map in 19th century (p. 34 of his Manipur and the Naga Hills) and to Surveyor General of India’s map of Manipur, 1984 AD (see p. 542, Manipur Past and Present Vol. III). They have been corroborated and recognised by other countries in their official maps and records. The boundary had so firmly established as to reduce any baseless claim to a heap of mockery and puerile absurdity.
What is more significant that the corroboration, and recognition of the Manipur* territorial areas for half a millennium is the moment at which the British paramountcy lapsed in regard to Manipur, for the application of the universal rule of Uti POSSIDETIS JURIS to Manipur and the neighbouring areas or states. (see details in the author’s book Manipur Puwaari, 1997 and his other volumes). The pre-independence territorial integrity of Manipur has been exactly sustained on the 14th and 15th August, 1947 _ which is material for the purpose of the universal principle, as cited. No ambiguity whatsoever remains about Manipur in all the British, K.W., Indian, Burmese and Manipur State official records. The room for comparing any adverse document records or official maps could be given only when the contrary could be proved with sufficient historical and official records, issued by independent states, governments and their plenipotentiary.
The government of India and for that matter, any other member state of the UN or international protectorate within the UN system and recognised states in the comity of nations are under Charter and international obligations to literally comply with the UTI POSSIDETIS rule. This universal rule after having been fully assimilated into the uninterrupted state practices for such a long time in all the continents has transformed into customary international law with profound implications for municipal law jurisdictions in equal terms. The self-determining units can not claim exception to this rule after considering the 1960 Colonial declaration and 1970 Friendly Relations declaration. The Vienna Convention on the Law of Treaties, 1969 affirms the concept of established boundary, which cannot be altered except by mutual consent.

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1 comment

sanjoy khumancha December 24, 2016 - 4:58 pm

Respected sir, I was heard about a case filed by you at ICJ against forceful annexation of manipur a few years ago. Is it true? If true then may I know what is stage of the case. Will it be successful?


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