Where is the roadmap?International adjudicatory settings have traditionally been hesitant to place legal value on maps.
Nepal has officially released a new political map. Without constitutional recognition, its legal validity remains uncertain. The new map has not only reshaped our national imagination about the country's territory, but also offered Nepal a perceptual advantage to hold a dialogue with India on its recent ad-lib remarks about 'cartographical assertion'. Retiring from its earlier position of postponing talks till after the Covid-19 pandemic, India last week suggested that it was open to engagement 'in an environment of trust and confidence'.
Tensions began to simmer after India's unilateral and literal inroads into the hinterlands of Lipulekh, and they could intensify because of Nepal's new map. And to prevent disagreements from flaring further, a range of peaceful options offered by international law—from bilateral negotiations to adjudication—must be immediately considered. Whatever option is pursued, Nepal's position will be strengthened if the claims are legally and evidentially justified.
Adjudication at the World Court
Although the jurisdiction of the International Court of Justice is consensual in nature, member states can accept its jurisdiction by issuing optional unilateral declarations. Such unilateral declarations, as decided by the World Court in Spain v Canada (1998), can also define the parameters of the concerned member state's acceptance. Nepal has never issued the optional clause declaration, and hence has not committed itself to getting involved in proceedings before the World Court. On the other hand, India while accepting the court's jurisdiction by issuing its latest declaration in September 2019, has subjected its acceptance to reciprocity and excluded matters concerning territories and boundaries from the court's mandate. Hence, utilisation of the International Court of Justice's forum is not possible without a special agreement between Nepal and India.
Nepal will be relying primarily on a variety of British colonial era map evidence dating from the time of the 1816 Sugauli Treaty to prove that the river originating at Limpiyadhura is the Kali, and ultimately the natural boundary line between Nepal and India. Many British colonial maps and historical documents have been unearthed for that purpose. But how much probative significance do maps hold in international law? And what if there are contradictory maps?
International adjudicatory settings have traditionally been cautiously hesitant to place legal value on maps, and although a new emerging rule affords maps evidentiary in merit (where they reflect the meaning of the treaty terms), the International Court of Justice has not completely denunciated the traditional rule. The reluctance to consider cartographic material as primary evidence as observed in Burkina Faso v Mali (1986) is partly due to concerns about 'neutrality of [map] sources towards the dispute in question and the parties to that dispute'. Other reasons why maps are disregarded or considered auxiliary evidence at best is because of the subjectivity of cartographers, political correctness of the geography being represented, and lack of aerial and scientific survey, especially during early colonial times.
Without expressly disapproving the conventional rule, the International Court of Justice has acknowledged maps on some occasions. In deciding that the Temple of Preah Vihear is located in Cambodia in a boundary dispute between Cambodia and Thailand (1962), the World Court relied on maps drawn by Thailand to impute its subsequent acquiescence. In Peru v Chile (2014), the International Court of Justice considered cartographic evidence to determine the starting point of the disputed maritime boundary. Although the World Court is careful about openly acclaiming maps, it has shown willingness to consider a map depicting a boundary line produced after the conclusion of a treaty.
Given the International Court of Justice's disposition towards maps, some words of caution are in order before Nepal enters into bilateral dialogue. Anticipate arguments that will be presented relying on conflicting maps, maps produced by Nepal hitherto, and river sharing agreements or boundary delimitation agreements concluded with neighbouring states; and be prepared to rebut with legal authority and reasoned historical and cartographical analysis.
Maps can be used as one of the factors for legitimising or delegitimising territorial claims. However, more important than maps is the three-part rule constituting treaty law, uti possidetis and effective control which the International Court of Justice regularly employs in settling territorial claims. The court is inclined to hear arguments based on boundary agreements because Article 38 of the Statute of the International Court of Justice considers treaties primary sources of international law.
Boundary agreements are treated with greater gravity if they are undefective, clear and complete, and if they describe the frontier from point to point. Therefore, the Sugauli Treaty or other boundary treaties entered into by Nepal will continue to have some significance. Secondarily, the principle of uti possidetis can also support Nepal's territorial claims. It can be posited that India inherited the pre-independence international territory as it was defined by its former colonial power, Britain.
Finally, coming to a more controversial justification, effective control has been controversially considered the shibboleth for asserting territorial sovereignty. The meaning of effective control has not been defined unambiguously. Sometimes, it has meant uncontested administration of the land, and other times, abandonment of land or failure to maintain sovereign activity. There will always be competing claims of effective control. The International Court of Justice has also opined in some cases that effective control is lost if the state has acquiesced to the encroachment by the other state.
In Belgium v Netherlands (1959), the World Court, however, also held that a state can prove non-acquiescence if it continuously asserts its rights over the title. Kalapani appears to be less contentious because Nepal has always protested the presence of Indian Army camps on its territory; and similarly, with regard to other adjacent parts of the border area, Nepal's exchanges and documentations asserting sovereignty and disclaiming India's purported exercise of administrative control will hold substance.
Steps initiated to amend the constitution have been reportedly paused for a national consensus. Observing this latest development, India commented that the 'matter is receiving careful consideration in Nepal'. An inquisitive Nepali populace is anxious to know if the map was released because the government was vulnerable to domestic public opinion or as a genuine effort to resolve the sensitive frontier issue. Let's sincerely hope no political party or leadership is expecting to benefit by establishing an adversarial position on a bilateral plane.
India has implicitly said the environment for bilateral talks needs to be improved and has insisted again on 'constructive and positive efforts'. Perhaps Prime Minister Oli's remark about the Indian state emblem—the genesis of which is associated with the Buddha—is not helping strategically. However, there is no denying that it was Nepal which initiated the process for bilateral dialogue and this was reiterated by the foreign minister in his latest interview to Indian broadsheet daily The Hindu. Unless both Nepal and India realise that bilateral relations are important, mutual confidence and diplomatic dialogue are not possible. We have a map; now, let's draw up the roadmap.
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