The Galwan River and Valley are in the news for all the wrong reasons. The claims of its de-jure standing and its de-facto status are riveted in bloody confrontation.
Besides, geography, Galwan as a word has roots in Kashmir with the taxonomy common proverbial language. Galwanpore in Pulwama district is still famous for the tribe of experts who initiate riding horses and offer remedial advice if a horse misbehaves.
The tale runs with Ghulam Rasool Galwan, “Lassa Galwan”, a tour guy who worked for British explorers of the Northern areas. This is around the time, when the Pamirs and Karakorum passes provided access to Russia, the White Bear feared for his greedy predatory eyes on Kashmir and British India.
Lassa Galwan was known as the man of horses and his exploits; if you want your horse secure from theft, then Galwan was your answer. In the matter of horses, Galwan is ultimate security.
Lassa Galwan traveled to Ladakh as a guide for travelers and made Leh his home. He spent time to find passes and reaching new territory became his vocation.
As a guide to British explorers, he discovered the valley in a place that was terra nullius. Legendary travelers like Francis Young Husband were impressed and registered his navigational skills and knowledge in 1892 and 1893. In 1899 Lassa Galwan brought to the notice of British the 80 km long river that spans from Aksai Chin into Ladakh to join Shyok River. These make tributaries to Indus River. This is but so long ago. In fact, Lassa Galwan’s grandson Amin Galwan is around and offers knowledge of resident history.
The geography of the region that Lassa Galwan trekked has changed quite a bit. From where the Dogra regime left it in 1947, China altered the layout in 1962 after building G 219 highway from Xinjang to Tibet.
There are now contesting claims over the sovereign status of this part of the Northern areas. One way to find which paradigm fits in is a critical legal analysis will unravel it. How can ownership in any given circumstance be ascertained? There are scenarios in the political history of the physical map of the world. In Galwan there are discrepant parties that may lay claims to the title.
Let us find where international law may fit in.
- People who live in and around Galwan valley can claim popular sovereignty
- Inchoate title cannot prevail A definite title is founded by evidence of governance on continuous, effective and peaceful display of sovereignty.
- Accretion, physical expansion of an existing territory by geological intervention like Alluvion or deposit of sediment or Volcanism. Land is added on the existing territory.
- Cession, a legal mechanism by which sovereignty can be transferred from one State to another by a treaty in agreement. Kashmir was sold by British to the Dogra by Treaty of Amritsar in 1846. Louisiana was purchased from France by America for 3 million dollars in 1803. Similarly in 1807 Alaska was purchased from Russia in 1807.
- Conquest was Proscribed post WW11, method of acquisition of territory by force of arms. This criminalization process was termed as War of Aggression, codified in Nuremberg Principles in accordance with UN Resolution 3314 (xxix) Dec. 14, 1974. Such cases end with Pease Treaty.
- New Discoveries. Galwan in most part was a desolate Rez Nullius part of Northern Areas. Sovereignty resides in effective, lasting, and peaceful control of the territory. It will be assumed that Galwan associated himself with the British travelers, therefore would they have claimed sovereignty?
- Prescription. It is a form of occupation or acquisition of sovereignty by way of active exercise of sovereignty maintained over time. This method is open encroachment by an adjacent county. The encroachment needs to be for a long period of time to claim sovereign rights. The sovereignty will only be valid if there is no protest by people or other states or contested by the original sovereign. This process of transfer is analogous to Common Law doctrine of ‘Easement by prescription in real estate’. If Galwan valley was used as an access road over a long period of time that State would claim easement right or the Right of Passage. This doctrine legalizes a dejure status of a defacto transfer of sovereignty.
- Prerogative sovereignty. People that inhabit a territory on a permanent basis have exclusive right to sovereignty. Prerogative is common facet of feudal law that affords them prior right. The local dimension has the support of culture, history, anthropology and human geography.
Transfer and acquisition of territory can also be affected by the extended negligence by the original sovereign opening doors for reconciliation and debate. The disputed regions in the world that come in this category are Island of Palmas, Minquiers and Ecrehos, cases taken up by International Court of Justice (ICJ) who appointed experienced judges to settle the disputes.
Galwan valley in sub-altern atmosphere is contested. In accordance with A-42 of 1907 Hague Regulations, this piece of land is considered occupied when it is placed under the authority of any hostile army. It extends to territory where such authority can be exercised. In order to finally ascertain the status of the valley it is important to know the findings of the Indo-Chinese deliberations and findings.
Based on humanitarian consideration and peace, Common Article A-2 of the 4 Geneva Convention of 1949 can be used as a guide to find a final solution. In the domain of political moralism, the aim is to achieve substantial goals and protect values like justice, equality as neighbors, liberty, happiness, fraternity, national self-determination.
In ideal circumstances there are grounds to resurrect validity for right to re-unification as per international order of Irredentism. This directive law lucidly puts direct responsibility on all countries involved to take positive action to identify severed sections of a sovereign nation.
In political philosophy if the end justifies the means, what justifies the end?