Pursue diplomacy or go to courtThe rule of capture has been replaced by modern international law regulating relations between civilised states.
Nepal acted well diplomatically, asking for the withdrawal of several Indian check posts from Nepal in 1969. Yet, there remains an Indian army barrack inside Nepali territory at Kalapani, a leftover from the 1962 Indo-China War. As a small power, Nepal cannot achieve its objective to evacuate the Indian military presence in Kalapani through the use of force. Given the existing power asymmetry between the two countries, the military option is logically unthinkable.
The rising criticism against India among the people of Nepal in recent times is understandable. But a small section of Nepal’s population seems to be intentionally engaged in whipping up jingoism against India, which may cause more harm than good. Creating international public opinion in favour of Nepal’s territorial sovereignty and political independence is crucial as India’s current ruling leadership class is increasingly becoming chauvinistic. The option available to Nepal under modern international law is a diplomatic settlement of the issue.
Regional geopolitics is detrimental to Nepal's interest. Its far north-western region, including Kalapani, Lipulekh and Limpiyadhura, is a vital strategic area where three Asian nuclear powers have competing political, military and economic interests. China and India have direct geopolitical interests in the area while Pakistan has an indirect and peripheral interest because of the Indo-Pak rivalry. The Sino-Indian War of 1962 and the Indo-Pak Wars of 1965 and 1971 have left scars still painful in regional geopolitics.
Although Nepali troops have for a long time been working in peacekeeping missions and operations in different parts of the world under the command of the Military Staff Committee of the UN Security Council, Nepal has seemingly failed to conduct diplomacy with the UN. The Security Council is one of such venues which can pass binding political as well as legal decisions (for example, relating to Iraq’s invasion of Kuwait in 1990). The issue of encroachment has neither been officially submitted by Nepal nor has the Security Council acted upon it. It may be a distant dream to expect it to raise Nepal’s concerns with India. It is nonetheless reasonable to assume that the Security Council is well aware of its duty to prevent conflict in the far north-western area of Nepal.
Interestingly, India and Nepal officially say the same thing through press releases—that they are willing to settle the issue diplomatically. But we have to wait and see if diplomacy succeeds. If the ongoing tit-for-tat press quarrel is not resolved through diplomacy, a judicial settlement of the dispute through the International Court of Justice is the most civilised alternative for a solution.
If indeed India accepts adjudication of the border and military issues through the World Court, the most potent argument the southern neighbour may use for entitlement over Kalapani, Lipulekh and Limpiyadhura is likely to be based on its long effective control over the territory since 1962. This argument, however, will not help India’s case from the jurisprudential point of view. This is because the origin of the argument of control over another’s territory, acquiring a right over the property or land and controlling other people, points to the ancient rule of capture, meaning the powerful setting the rules.
The rule of capture has been replaced by modern international law regulating relations between civilised states. The modern rule is the observation of treaties in good faith and respect for conventions and norms; for example, mutual respect for each other's political independence and territorial sovereignty, non-aggression in each other's territories and peaceful coexistence. Contrary to these modern rules and principles of international law, the rule of capture is from a barbaric colonial past.
In addition to India’s military presence at Kalapani since 1962, the Indian government published a political map last month showing Nepali territory in the far northwest—including Kalapani, Lipulekh and Limpiyadhura—as being within its borders. Nepal’s claim over Limpiyadhura as the source of the (Maha) Kali River is mainly based on the 1816 Sugauli Treaty, and by implication, the 1992 Mahakali Treaty.
Nepal was forced to sign the Sugauli Treaty by the British East India Company in the aftermath of the Anglo-Nepal War (1814-16) which reduced the country's area to its present borders. According to Article 5, the entire Mahakali River (referred to as the Kali in the treaty) including both its banks belong to Nepal. In 1992, Nepal and India recognised the Mahakali River as a ‘common river’ under the Mahakali agreement, giving the western bank to India.
The practice of the International Court of Justice suggests that valid boundary treaties are the basis for the settlement of disputes. A valid boundary treaty already exists, and it is acknowledged by both India and Nepal. Should Nepal consider referring the border case to the International Court of Justice, it will be necessary to identify and use critical evidence of boundary demarcation at Limpiyadhura. Theoretically, the equidistance principle may be a reference for rivers and mountain-based boundaries based on Article 15 of the 1982 UN Convention of the Law of the Sea that prescribes the use of the median line.
To pinpoint the source of the Mahakali River in the Limpiyadhura watershed line, Nepal needs to work prudently to present a genuine geographical map predating the Sugauli Treaty, and a neutral technical experts' report on the geographic and hydrographic situation of the area that should meet World Court standards. Knowledge of international law and evidence collection will be the key for Nepal to argue for and win the case, either through adjunction or arbitration.
The Nepali people should be aware that it will be an uphill battle for their government to succeed in dealing with border and military issues with India. The background work for the 1969 India-Nepal agreement and the withdrawing of Indian check posts from Nepal may provide some lessons for the current government. There may be some records with the Foreign Ministry which may be reviewed—like who were involved behind the scenes in 1969 and how they made use of various diplomatic channels. Draw lessons from the past and find out what is useful now for successful diplomatic manoeuvring.
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