May 8, 2021

The Legal Aspect to The India-Nepal Border Dispute

Abstract:

Borders that were meant to bring peace, today stand as the major reason of contention between the nations. This led to the international community realize the importance of boundary treaties that provided for a legal and juridical framework to manage and account for the cross border flow, trade of goods and services and to protect their own. The demarcations were decided at a time when there existed no reliable instrument to provide for a definite demarcation especially when it states for the dynamic demarcations made using geographical features. This invoked the usage of international law as it had a direct affect on the sovereignty of the nation.

This article tries to analyse the possible solutions for dynamic boundaries in the light of India-Nepal border dispute as an ironical case of alleged sovereign infringement by nations while they maintain an open border agreement.

Introduction:

The arrival of British in the sub – continent served with itself the Euclidean concept of static, two dimensional border while the Asians believed boundaries to be a fluid construction by the geographical features of earth. This disagreement led to the inevitable Anglo – Nepalese war of 1814[1] that constricted the territory of Nepal with British India troops on the three sides. The defeat was officiated by signing and ratifying the Sugauli Treaty of 1816 which endowed a third of the Nepal territory including the essential lands of Kamaon and Sikkim to British India. Though it was officiated with the motive to resolve the differences between their political thoughts regarding boundaries; the British India was even favoured by the geographical advantage of the confiscation. The no firangi policy of Kathmandu had always been a barrier to British India trade with Tibet where Sikkim was seen as an option. The treaty saw peace without cordiality between the nations but Bhimsen Thapa subdued the uproar fearing the British aggression might put the freedom of Nepal at stake. He even provided British with military assistance during the 1857 war which the British saw as an act of loyalty and awarded Nepal with another treaty of 1857 that freed the confiscated lands of Nepalgunj and Kapilvastu[2]. With time, the dependency of Nepal on the Government of British India escalated[3] and became deep rooted for generations untill the rise of independence movement in India. The loyal of British India; the Ranas failed to cease the affect of the same in Nepal and by 1945, both the Indians and Gorkhas participated for total independence. Hence, the end of British colony in India saw Nepal as a quasi – constitutional State under the monarch. But the changed political scenarios weakened the deep rooted dependency of both the nations on each other.

Background of The Dispute:

The departure of British colony had left Indian governance in shatters while Nepal suffered the same fate with their people protesting against the autocratic Ranas. It was evident of India having a considerable influence on Nepal and in 1950, India renewed the Treaty of Sugauli as Peace and Friendship Treaty of 1950 with the Government of Nepal under the monarch. Within three months of ratification, India suspended its support to the monarch which led to the return of Shah family as monarch and since then the dependency turned into a state of territorial disputes with Nepal questioning the authority of India in 1969 regarding its mutual security management and dispute over the kingdom of Sikkim in 1975. It was in 1990 that the disputes were formally addressed by the Nations but with the restoration of democracy in Nepal, the relation became sourer and hit its peak when the controversial Nepalese citizenship bill was passed and had infuriated its citizens on the grounds of their culture and sovereignty being at threat as it allowed Nepalese citizenship to the stateless immigrants.[4] Finally in 2005 the Treaty of 1950 was renewed and in 2007 the first meeting of the Joint Technical Level Nepal-India Boundary Committee ( Henceforth referred to as JTLNIBC) was held since its establishment in 1981[5] after the Maoist Youth Communist League protested for Greater Nepal.

Issue:

The JTLNIBC had settled 97% of the border disputes between India and Nepal excluding the territory of Kalapani and Susta[6] but neither India nor Nepal have ratified the maps provided for the same. It is the stand of Nepal to not ratify it untill the committee resolves all the existing border disputes while India states to ratify the map if only Nepal endorses the map first as a sign of confidence building measure in resolving the left out disputes.

In November 2019 India had published a new map providing for which Nepal saw an outrage that alleged inclusion of Kalapani in the Indian map while claiming the territory under Nepal sovereignty. Nepal reverted India by publishing a new map that included Kalapani as its own and even commenced the process of amending its Constitution. Hence, it is evident that the issue revolves around the territory of Kalapani where the dispute is both the territory per se and also the definiteness of the demarcation that decides the authority over the land of Kalapani I.e. the origin of the river Kali.

Hypothesis:

The borders are the protective measure of a State’s sovereignty because it imposes certain limitations on the arrival and departure of both humans and goods. The India Nepal treaty of 1950 provides the two countries to share an open border I.e. free movement of humans and goods during cross borders and having a minimal Border Security force and management. This system per se negates the concept of boundary. Hence, the border dispute in the name of sovereignty seems irrelevant as long as the open border system is acknowledged.

Present Scenario:

Nepal claims the river Kali originates from a stream at Limpiyadhura, north west of Lipu Lekha. Thus, claiming Kalapani to fall at the east side of the river as a part of the Dharchula district of Nepal.

In case of India, it claims that river Kali originates in the springs located below the Lipu Lekha and there lies demarcation only in respect of east and west of the river and not in the north of the same.

Argument:

The State is a form of human association distinguished from other social groups by its purpose, the establishment of order and security; its methods, the laws and their enforcement; its territory, the area of jurisdiction or geographic boundaries; and finally by its sovereignty[7]. It is nothing more than an agent of its citizens. Thus, the sovereignty of a State indirectly is read with the understanding of the freedom of humans or their fundamental rights whose adherence forms jus cogens[8] within the international community. This is where the concept of border is realized as it provides for the commencement and end of a Nation. The concept of border has existed since time immemorial where countries have demarcated their sovereignty in the name of land by a static line using pillars or a dynamic line using the natural demarcations of the earth.

India; a State of territories has always had the concept of borders both internally and externally since its first civilization[9]. The invasion of British demarcated the sub-continent in a a legal and juridical framework to have border management. The same need was realized in relation with Nepal which is today’s international mayhem.

Applicability of International Law:

International law is an amalgamation of various sources that lays down the obligations of international community in order to protect the fundamental interest of every State and any suppression even of the slightest nature, contrary to the same shall be considered a crime against the whole community. This upholds the sovereignty of a State at its highest priority. Thus, border disputes find its relevance as it questions the sovereignty of a State which as per the law shall be resolved by peaceful means and respect to other sovereign States[10]. The jurisprudence behind international law provides for collective security and the lack of universal law or opinio juris on border disputes does not negate the delivery of justice as it also inculcates the concept of posteriori. The precedents provided by the International Court of Justice might not be the law but it definitely provides the practice that shall be inclusive of becoming an international law.

Applicability of a colonial treaty after independence:

The jurisprudence established by international law that the treaty lies unaffected even after succession by any State[11]. Moreover, there lies no other law of demarcation between the nations and the fact that the same treaty was renewed in 1950 endows an obligation of adherence on both the nations[12] and on India as it enshrines the fulfillment of the same[13].

Legal analysis of the possibilities:

The territorial dispute arises on the foremost due to the demarcation being dynamic in nature which is called as the shifting border. These kind of borders create problem in defining the law as well as managing the usage of it as a resource. The International Court of Justice provides for the application of avulsion if the river changes its course rapidly and application of accretion if the river changes its course gradually with time that is negligible to human eyes[14]. In the case at hand, river kali has gradually changed its course due to the environmental factors that has dissolved lands or created new ones. Thus, the concept of avulsion could resolve the new lands that are in contention but not that of the origin of the river or the territory as a whole.

The traditional international law provides for border dispute resolution on the following basis of treaties and the existing practice of the nations regarding the same. The originally drafted and renewed treaties between the nations neither have exclusive maps nor have any evidence regarding Kalapani being returned to Nepal[15]. These dispositive[16] treaties provide with certain rights that are not invalidated with the in-applicability of the treaty. It is even seen that the Constitution of India till today inculcates Kalapani as its territory unlike Nepal[17].

A territory claimed as per practices shall have sufficient evidence of occupational existence and local authority presence. The existing practices in regard to the territory of Kalapani has been backed by both the nations under the administrative control with the help of population census reports and tax return filings. The claim that India has military hold over the area does not stand as a relevant consideration but recognizing the welfare activities by the administrative bodies in Kalapani gives India an extra edge over Nepal. Above all, the jurisprudence considers the welfare capability of the nations to decide on territorial disputes because nothing stands over the need of human rights which includes a dignified standard of living.

Conclusion:

Nepal shares border with five States of India that creates cultural and economic exchanges for both the nations while creating strategic benefits and role perception on an international platform. India is Nepal’s largest trade partner and the largest source of foreign investments. The open border provides 10 million Nepalese citizens residence and livelihood in India along with citizenship availability. There are 7 Gorkha regiments in the Indian army with almost 40 battalions. Most of the soldiers are recruited from Nepal as of today and at least 25,000 Nepalese soldiers are on active duty in the Indian army. Apart from all these, Nepal is the highest receiver of humanitarian assistance from India. The importance of Kalapani for India is its geographical essence that prevents Chinese infiltration. Thus, being an actual threat to the sovereignty of India.

The border dispute does arise on the note of sovereignty being affected but the larger story hides behind the political will of the States. The countries have lived as one irrespective of the borders which in here is nothing more than an imaginary demarcation for the people around the boundary. The disputes could always be solved through the doctrine of self-determination[18] which in reality is the meaning of democracy.


[1] Amish Raj Mulmi, Why did the British not colonize Nepal, The Record, (June. 5, 2020, 1:26AM), https://www.recordnepal.com/wire/features/why-did-the-british-not-colonize-nepal/.

[2] Dr. Satyabhavan Saurabh, The Nepal uneasiness over Kalapani, TheHills Times, (June. 20, 3:07 PM), https://www.thehillstimes.in/featured/nepals-uneasiness-over-kalapani/#:~:text=As%20a%20reward%20for%20the,Nepal%2C%20including%20the%20Kalapani%20region.

[3] Treaty of Perpetual Peace and Friendship (1923).

[4] The Nepal Citizenship Act, 2006, Act of Parliament, 1948 (Nepal).

[5] Annual Report 2007 – 2008, Ministry of External Affairs, GOI, pg. 204.

[6] Supra. note. 6.

[7] Sovereign political entity, Encyclopedia Britannica, (June. 5, 2020, 9:35PM) https://www.britannica.com/topic/sovereignty

[8] Vienna Convention on the law of treaties, 1969, art. 53, (1969).

[9] Artha philosophy, Shodhganga, (June. 5, 2020, 9:45PM) https://shodhganga.inflibnet.ac.in/bitstream/10603/67077/8/08_chapter%201.pdf

[10] UN Charter, art. 2, cl. 3, (1945).

[11] Wadlock, Report on Succession of States and Governments in Respect of Treaties, 1968, pg. 112, (1968).

[12] Supra. note. 11.

[13] INDIA CONST, art. 51

[14] Arkansas v. Tennessee, 246. U.S. 158, (1948).

[15] Supra. note. 4.

[16] McNair, Exception to Doctrine of Clean Slate, pg. 93.

[17] NEPAL CONST, art. 2, cl. A.

[18] Maganbhai Ishwarbhai Patel vs Union Of India, (1969) 254 S.C.R. 3 (India).

Author Details: Neha Mishra & Vibhu Raj Gupta is a student at Amity University, Kolkata.

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