India and Nepal, neighbors who share an open border have a long-standing border dispute over the areas covering Lipulekh, Limpiyadhura, and Kalapani. This discord has soured over the past years and could potentially damage economical and cross-border security ties between the two countries, and might give other parties, like China, an opportunity to intervene. The inclusion of the disputed Kalapani territory by the Government of India, in its revised official map, released on November 2, 2019, and the inauguration of a new 80 km-long road that passes through the Lipulekh pass by India’s defence minister is what triggered countrywide protests and extensive backlash from Nepal’s government which maintains that the road passes through the territory that it claims. In response, the Nepali Government has updated its map which includes the disputed territory and has ratified the same its the parliament.
The India-Nepal Treaty of Peace and Friendship of 1950 forms the bedrock of the special relations that exist between India and Nepal. The treaty aims to promote peace and brotherhood between the two nations. Since then they have maintained excellent bilateral ties, with each assisting the other during times of need. India is Nepal’s largest trade partner besides providing transit for trade to the landlocked country. Nepal is also India’s third-largest trading partner. During the devastating earthquake that had struck Nepal in 2015, the Indian Government provided Nepal with relief assistance that amounted to over US$ 67 million. A total of Rs. 730 crore was allocated under the ‘Aid to Nepal’ budget head for FY 2018-19 under India’s Development Assistance to Nepal. Around 6,00,000 Indians are living in Nepal today.
Nepal’s territory was delimited by the Sugauli Treaty of 1816, entered between the Rajah of Nepal and British East India Company, after the Anglo-Nepal war of 1814. The fifth article of the treaty required Nepal to surrender the territory lying to the west of river Kali, which now marks the country’s western border. Central to this disagreement over the border is the origin of river kali. One of the two dominant views believes that the river originates from either Limpiyadhura or the nearby Lipulekh pass, which would justify Nepal’s claim over the disputed area. The other view argues that River Kali originates from the southern portion of Kalapani and the subsequent ridge on the eastern part of this area is the true border, therefore, making both the lipulekh and the kalapani region a part of India.
British India’s maps post the treaty show the kalapani region as a part of Nepal’s territory. However, the British East India Company shifted the border to the east of Kalapani, to which the then Rajah of Nepal did not object. This demarcation became the unofficial border between India and Nepal. Debates around the region flared up in the 1990s after Nepal became a democracy.
The International Court of Justice has shown reluctance in placing legal value on cartographic evidence. This is evident in the case of Burkina Faso v. the Republic of Mali (1986), where the court reiterated its concerns about the neutrality of map sources. But it has not completely disposed of the traditional rule of looking at maps as evidence. In the case of Temple of Preah Vihear (Cambodia v. Thailand, 1962), in which Cambodia had claimed that Thailand had occupied the territory surrounding the ruins of Temple Vihear, the International Court of Justice held that although neither France (Cambodia was a French colony up until 1953) nor Thailand had adopted official maps, each country had given their implicit acceptance to showing the Temple in what became Cambodia. This substantiated Cambodia’s claim against Thailand. Since no map has been attached to the Treaty of Sugauli, the only way to ascertain the correct location of Kali is to examine the existing maps of the period. The East India Company started publishing maps that began to identify river Kali’s origin as Lipulekh making the entire trijunction fall under British India’s territory, post-1850. They had realised the value of Lipulekh for trade with Tibet. Nepal’s autocracy did not object to this for various reasons and continued to use maps that reflected the same alignment. India has shown surveys, conducted by the British, of the upper reaches of the Mahakali, and presented a map of from 1879 which shows kalapani as a part of British India’s territory. Nepal has presented similar maps from 1850 and 1856, showing that the river begins in Kalapani. Only after the advent of democracy, various Nepali scholars argue that that the change in the boundary line was done unilaterally without Nepal’s consent.
If the nations decide to bilaterally seek the International Court of Justice’s intervention, then the rules of treaty law, uti possidetis, and effective control which have been regularly applied in settling territorial disputes become extremely important. Article 38 of the Statute of the International Court of Justice lays down that treaties are the primary sources of international law. The court in Nigeria v. Cameroon (1994) had held that effective control through effectivities is subsidiary to and unable to supersede a conventional title.
Unambiguous and clear treaties are significant and hence The Sugauli Treaty will have a notable relevance in resolving this dispute.
The legal principle of uti possidetis, which essentially means ‘what you possess, you continue to possess’, and had come into the picture to preserve boundaries of colonies emerging as States, can support India’s territorial claims. It can be advanced that India inherited the pre-independence territorial boundaries as it was defined by its former coloniser, Britain, and by application of the principle, India’s claim is justified.
Coming to effective control, whose definition is not set in stone, the ICJ in Pulau Ligitan and Pulau Sipadan case (Indonesia v. Malaysia, 2002) held that it is of “administrative, legislative or regulatory character.” Effective control can also be claimed after what constitutes an abandonment of the land by the last governing entity. India could argue that the Indo-Tibetan Border Police Force has been controlling Kalapani and the nearby areas since 1962. Indian officials have claimed that there are revenue records dating as far back as the 1830s from the Kalapani area which has traditionally been administered as a part of the Pithoragarh district. India had set up military units in the early 1950s along the Nepal-China border, with Nepal’s consent, when China had occupied Tibet. At that time, too, China recognised Kalapani as India’s. In the year 1969, Kirti Nidhi Bisht, the then Nepali Prime Minister, on the instructions of King Mahendra, had asked Indira Gandhi to withdraw all these posts from Nepali territory. This was done but the Indian post at Kalapani was not in the Nepali list. In 1954, Nepal had not protested when Lipulekh along with 5 other border passes were included in an agreement for trade and transit with Tibet, between India and China. Professor Leo. S Rose writes, “Nepal virtually ignored the Kalapani issue from 1961 to 1997, but for domestic political reasons it became a convenient India-Nepal controversy in 1998”.
When the rightful sovereign acquiesces or abandons, which could be defined as “failure to maintain a minimum degree of sovereign activity”, then effective control is said to be lost. But claims of effective control will always be challenged. In Belgium v. Netherlands (1959), The Court held that a state can prove non-acquiescence by showing that it had no intention of abandoning its rights in the area. Continued protests make an important shielding factor to prove such non-acquiescence. Nepal had first formally protested against an MoU between India and China which allowed them to conduct border trade through the Lipulekh Pass. It has time and again protested against the presence of Indian troops in the Kalapani area. It also asserts administrative control by maintaining that it had conducted elections in the area in 1959 and collected land revenue from its residents, until 1961.
As shown above, each nation validly asserts and possesses evidence to justify its claim over the Kalapani area. Positions have hardened on both sides after an escalation of the dispute. A plausible solution could be adopting a condominium, which in international law is a territory over which multiple sovereign powers exercise joint sovereignty. This comes at the cost of the traditional notions of sovereignty. A similar arrangement was bought up when the idea of a ‘soft border’ in Kashmir was proposed by Manmohan Singh during his Prime Ministership. He believed that this would help in promoting peace between India and Pakistan. The condominium could bolster collaboration, maintain stability in the long run, and also reduce the chances of third party interventions. Both countries could also consider establishing a special economic zone. It would benefit both Indian and Nepali pilgrims, who could use improved infrastructure to reach Mount Kailash. Territorial disputes are difficult to resolve and given the importance of its ties with Nepal, India must not brush the issue under the carpet and should initiate and positively respond to Nepal’s attempts to convene diplomatic dialogue. The talks must also be approached through an ecological perspective, where the shifting course of the river, which has aggravated the confusion, must be kept in mind. The growing presence of China in the north makes it all the more important for both the countries to abandon their expansionist moves. The nations must not disregard the BWG’s efforts to reach a favourable conclusion and maintain the special and the decades’ long friendship that they had pledged to promote in the 1950 Treaty of Peace and Friendship.
Tarusi Jain is a law student at Jindal Global Law School, Sonipat.