Post the Sino-Indian war of 1962, it is well known that the Line of Actual Control (“LAC”) demarcating the two regions contains many disputed areas, including the Galwan Valley region. The Indian Ministry of External Affairs (“MEA”) has challenged all recent Chinese claims of sovereignty over the Galwan Valley region, insofar as India regards this as a breach of the LAC. Following the killings of several Indian troops by China this week, the MEA released a notification stating these actions were premeditated to further attempts of incursions — including the planned erection of a “structure” on Indian territory. Pertinently, it remains unclear whether these killings occurred beyond the LAC on China’s side or India’s side. However, the MEA’s notifications point towards a greater likelihood of the latter.
In contrast, Prime Minister Modi made a statement on 19.6.2020 at an all-party meeting stating that there had been no intrusions by China beyond the LAC into Indian territory. There are two ways this could be true. First, the Indian troops were martyred on indisputably Chinese territory beyond the LAC; or based on Modi’s statement, as concerns by commentators and journalistic claims suggest, India has tacitly ceded to a change in the LAC — to the extent that the Indian territory into which China had launched incursions is now officially recognized as China’s.
Under international law, this refers to the doctrine of acquiescence, which is to the effect that the inaction of a state against another state’s wrongful action might sanction it. This would effectuate Modi’s assertion that China did not launch incursions into Indian territory implying that India recognises its former territory as henceforth China’s. In these facts, acquiescence would mean that China’s activities were not incursions – because India recognized its former territory (beyond the LAC) as henceforth belonging to China. Recognition, here, would be tacit from Modi’s statement This is supposing that China’s aforesaid activities did indeed occur beyond the LAC on Indian soil.
To address this question, and with the assumption that China’s military activities were undertaken on Indian soil, this post considers whether Prime Minister Modi’s recent statement can be validly claimed as constituting acquiescence. The post also notes the impact of the MEA’s (seemingly) contrary notifications on such a claim.
Can Prime Minister Modi’s Statement Amount to Acquiescence?
At the outset, statements made by Prime Minister Modi can indeed have a legal impact concerning India’s position in relation to a change in the LAC’s delineation. The International Court of Justice (“ICJ”) has considered statements made by heads of states as representative of legal positions concerning a state’s consent to another state’s wrongful actions [for instance, in Armed Activities (2005)].
In general, international law accords significant value to a state’s failure to protest another state’s actions where this has direct and negative impacts on the former state’s interests. This naturally includes disputes related to borders and territories. In this context, the ICJ in Temple of Preah Vihear (1962) (“Preah Vihear”) heard a dispute between Thailand and Cambodia regarding certain frontier lines of vital cultural significance. Holding for Cambodia, the Court acknowledged the conduct of the Siamese government (former name of Thailand) in tacitly consenting to the demarcation of the contentious territory on a map sent to them by Cambodia. With reference to the reception of this map, the court observed, “it is clear that the circumstances were such as called for some reaction, within a reasonable period” by Siam/Thailand. For the reason of their failure to react, the Court observed that the Siamese authorities “thereby must be held to have acquiesced”.
Owing to this backdrop, a case can possibly be made that Prime Minister Modi’s statement resulted in acquiescence. If China’s military activities occurred in what India regards as its own territory, then these acts called for some protest/reaction in his statement, which seems to be absent. Rather, it suggests the opposite — that China has not breached the LAC at all. To reiterate, this claim of acquiescence (i) is tenable only if the assumption that China’s military activities occurred on Indian soil is true (at the time these activities were organized); and (ii) it is based on the logic that India recognizes its territory (in which China conducted these activities) to henceforth belong to China. The latter is an implication of Modi’s statement, insofar as he asserts that there were no Chinese incursions into Indian territory.
However, even if the first assumption is true, attempting to establish acquiescence this way has inherent problems. One cannot accept one-half of the MEA’s notifications (i.e., detailing China’s activities) and reject another (i.e., hinting these activities to be incursions). To do so would require partial erasure of history, which is the only way for this claim of acquiescence to succeed. The acts of MEA officials in unambiguously opposing China’s claims over the Galwan Valley suffice the Preah Vihear metric of a “reaction” within a “reasonable” period. There appears to be a contradiction then — India has opposed China’s acts as incursions through the MEA, whereas it has claimed there are no incursions through the Prime Minister.
This inconsistency cannot possibly be reconciled. In its Gulf of Maine (1984) holding concerning the delimitation of a maritime boundary between the USA and Canada, the ICJ held that the USA’s conduct was not “sufficiently clear, sustained and consistent” to constitute acquiescence. Indeed, even in Preah Vihear, Thailand’s consistent silence had lasted for decades, leading to little doubt of acquiescence. That is far from the case of this episode, especially since another similar MEA notification was released two days before the Prime Minister’s statement. Consequently, in consideration of India’s unclear, unsustained, and inconsistent stances in these statements, the concern that India has acquiesced to a change in the LAC is unfounded and misleading.
Some might find relief that a claim of acquiescence in the preceding facts, even with its assumptions is mostly just a matter of rhetoric. However, one cannot help but find the lack of clarity in the Prime Minister’s statement as potentially dangerous.
State officials, including the Prime Minister, must understand that their statements do not exist in a legal vacuum, and may have significant effects, whether intended or unintended. Therefore, caution must be exercised to ensure that there are no contradictions between the stances of different representatives of the same state, the failure to ensure which carries tremendous risks for India’s interests.
Abhijeet Shrivastava is a B.A., LL.B. (Hons.) student at Jindal Global Law School.
Image: South China Morning Post