Article by Aakarsh Banyal,
Across the 3,400 kilometers of the Sino-Indian border, mountainous terrain and water bodies have rendered delimitation an uphill task. The complex topographical features of the border leave the Line of Actual Control (“LAC”) vaguely-defined and disputed by both parties, with India and China maintaining different perceptions of the definition of the territory. Physical indeterminacy forms the basis of recurring disputes between the bordering nations as both seek to exercise their sovereign rights over the disputed territory. Since the terrain offers substantial strategic advantages, both States have been carrying out various construction activities in the area to establish a connection with their respective mainland and a speedy mobilization of their military.
The dispute came to a head in June, when troops from both States clashed in the Galwan Valley region. India attributed the deaths of its soldiers to Chinese brute force, but China dismissed all accusations leveled against it. Amidst such rising tensions, the recent deployment of the Chinese military in disputed areas along Pangong Tso Lake has rendered the situation extremely volatile. Most importantly, the 1996 Indo-China Border Agreement, (“1996 Agreement”) dissuades both parties from utilizing its military capabilities in and around the LAC.
China’s conduct could entail consequences for the state under international law. However, despite widespread political and diplomatic discourse on the topic, the position of the international legal community on actions resorting to such armed force remains vague. This blog provides an analysis of whether China’s actions in the present border skirmish could constitute an act of aggression under international law.
Acts of Aggression and the General Prohibition on the Use of Force
The United Nations General Assembly (UNGA) Resolution 3314 defines “act of aggression” as the use of “armed” force by one State that violates the territorial integrity or sovereignty of another State, “or in any other manner inconsistent with the UN Charter.” After the crime was incorporated into the Rome Statute, discussions surrounding the definitional requirements largely subsided. The application of the UNGA definition, however, is still unclear due, in part, to the uncertainty surrounding the required threshold needed to hold a State responsible for an act of aggression.
Evident in the UNGA definition is the twofold-requirement for an “act of aggression:” a) use of armed force and b) violation of territorial integrity or sovereignty.
Use of (Armed) Force: Nebulous Standards
With respect to the first requirement, it is notable that the word “armed” precedes “force.” This inclusion signifies subtle, yet portentous distinctions between prohibition on the use of force in general under Art. 2(4) of the UN Charter and the use of armed force under UNGA Resolution 3314.
The first point of distinction concerns the means employed to exert force. A restrictionist interpretation would claim that the phrase refers to the use of conventional or traditional means of weaponry. This interpretation is supported by the travaux since the Brazilian delegation’s proposition to add economic coercion within the folds of ‘use of force’ via Article 2(4) of the UN Charter was set aside, indicating the drafting committee’s intention to restrict the ambit solely to traditional means of warfare. Furthermore, the specific acts laid down in the definition render conventional weaponry or instruments intended to utilize weaponry such as tanks, aircrafts, among others, part of the prima facie case.
On the other hand, an expansionist interpretation endorses an effects-based approach, which accounts for the effects of some act rather than the means used to achieve some result. This approach is also in consonance with the Nuclear Advisory Opinion, which stated that prohibition on the use of force “applies to any use of force, regardless of the weapons employed.” However, the International Court of Justice’s (ICJ) opinion notably was restricted to Art. 2(4) of the UN Charter and does not necessarily extend to the definition of aggression.
The second point of distinction pertains to the threshold required for an act to qualify as a use of “armed” force. To that end, the Preamble to Resolution 3314 states that the threshold for an act of aggression is higher than use of force under 2(4) of the UN Charter. In addition, the Assembly of States Parties to the International Criminal Court (ICC) recognized the narrow import of aggression as opposed to a general prohibition on the use of force. This implies that even if an act were to qualify as a use of force under 2(4), it still might not meet the de minimis threshold of a use of “armed” force. In addition, in Nicaragua v. United States of America, the ICJ specifically stated that minor frontier incidents do not qualify as uses of force. In the context of military incursions, however, UNGA Resolutions have treated non-forcible incursions and encroachment of territory as “aggressions” or acts of aggression” [Carrie McDougall, The Crime of Aggression under the Rome Statute of the International Criminal Court, p. 88 (2015)]. Furthermore, in the Costa Rica v. Nicaragua case, the ICJ opined that dredging a river in a disputed territory could amount to a potential illegal use of force.
Therefore, the nebulous threshold of “armed” force makes achieving a precise standard for acts of aggression difficult to reach a definite conclusion with respect to a precise standard that ought to be satisfied for an act to qualify as an aggression. However, it is reasonable to conclude that acts falling outside the purview of Art. 2(4) of the UN Charter do not amount to acts of aggression. Lastly, the aforementioned decisions and resolutions indicate that military presence or involvement in a disputed territory may be an important factor while considering a perceived violation of the use of the “armed” force standard.
Violation of Territorial Integrity and Sovereignty
The requirement of violation of territorial integrity and sovereignty takes on a different meaning in the case of disputed territories. As stated in a report by the British Institute of International and Comparative Law, the criteria for determining whether a violation of territorial integrity and sovereignty has occurred in a disputed territory is the alteration of the existing status quo (protected by law) through “forcible” measures. Hence, even if the title has not been determined, a State can still commit aggression if it attempts to alter the status quo.
In the Context of the Sino-Indian Dispute
In light of the above standards, this part analyzes whether a claim by India of an act of aggression by China can be sustained. The LAC qualifies as disputed territory since both States have competing claims regarding the title to this territory. Therefore, any activity in the territory by either State could be alleged as a violation of territorial integrity and sovereignty. Furthermore, the status quo denouncing military activities in this region has been established in the 1996 Agreement. Whether China disrupted the status quo through its use of armed force remains in question. Two activities are relevant to an inquiry into whether China has disrupted the status quo, and thus, violated the territorial integrity and sovereignty in LAC: first, the death of 20 Indian soldiers during the Galwan clash; and second, the Chinese establishment of military presence in the Tso lake and Chushul region.
With respect to the former, these acts may not reach the threshold of “armed” force as they did not result in widespread violence. Minor frontier incidents and border skirmishes, as stated supra, do not reach the de minimis threshold of the use of armed force. Even so, India may argue that the death of the 20 Indian soldiers constitutes use of armed force because the ICC has previously admitted cases concerning the ‘Crime of Aggression’ where fewer casualties (10 killings and 12 killings) than the present border crisis occurred. However, the fallibility of this argument lies in factual dissimilarities between the present border crisis and the cases ICC admitted. The Sino-Indian crisis relates to military casualties at the border (‘frontier incidents’) as opposed to civilian and peacekeeping personnel casualties that took place in cases at the ICC, implying that the two cases are distinguishable. Further, the threshold in cases of frontier attacks is seemingly higher, as evidenced by the ICJ’s observations in Nicaragua.
Regarding the latter, the establishment of a military presence could lead to a tussle between the nebulous standards to establish violation of the prohibition on the use of force because of varied interpretative routes as shown earlier. China could argue that the carrying out of economic activities (here, for the purpose of increasing connectivity and transportation facilities) would not make it responsible insofar as there is no infliction of direct physical harm. An effects-based analysis would render the link between the challenged activities and damage to life or property even more tenuous, precluding State responsibility. However, India could respond by relying on the lower standard in UN General Assembly Resolutions where mere military presence amounted to aggression. Furthermore, the presence of Chinese bombers, armored vehicles, special forces, and infantry units at the LAC, combined with the use of weapons by Chinese troops in inflicting damage to the Indian side are relevant.
Concluding Remarks
All things considered, it is possible to demonstrate disruption of the status quo by the Chinese military through forcible means owing to the casualties and China’s expanding military presence across the LAC. However, the burden of showing that these forcible measures amount to use of ‘armed’ force: a sine qua non to establish an act of aggression remains a strenuous one. The jurisprudence of the ICJ sets a high threshold, although the same could be parried by the ICC’s softer approach coupled with a reading of earlier UNGA Resolutions.
Ultimately, the present Sino-Indian military dispute is a clash of opposing approaches on the act of aggression as defined by UNGA Resolution 3314. Should the matter be escalated, the wide margin of appreciation would reduce the predictability of the outcome of the dispute–a potential reason why both parties have not seriously relied on international law to counter each other’s claims, despite the possibility of developing the jurisprudence in this regard. Although the Sino-Indian border dispute makes for an interesting academic exercise, the question remains whether diplomatic means can diffuse the situation in practice.
Author
Aakarsh Banyal is a published author and is currently reading law at Symbiosis Law School, Pune, India. His research interests include Public International Law and Security Studies.