One of Prime Minister Pushpa Kamal Dahal’s aims during his recent visit to India was to convince his counterpart to welcome Nepal’s new constitution. The document was well received by most countries, but India only ‘noted’ its promulgation and has been applying diplomatic pressure to address the demands of the Madhesi people. They have been protesting against the federal structure, citizenship procedure and lack of inclusiveness. During Dahal’s visit, New Delhi again urged Nepal to make it inclusive by fulfilling Madhesi demands. One of their key demands is the demarcation of the federal states by ethnicity. This is difficult for two reasons. One, Nepal contains more than 123 ethnicities, and it will be absurd to have as many states. Two, even if the state boundaries were drawn up on the basis of the main ethnic groups, smaller groups will feel marginalised.

The second dissatisfaction of the Madhesi people group is the provision regarding citizenship, particularly the clause which bars naturalised citizens from holding certain high public offices. However, this practice exists even in large democracies. For instance, in the the US, naturalised citizens cannot hold certain high public posts in the White House and the Supreme Court. The third issue relates to proportional representation. Even though proportional representation can make Nepal’s constitution more inclusive, there is wide consensus among political scientists that this system will lead to further instability in countries with weak institutional capacity like Nepal.

Indian plans

It is an open secret among Kathmandu’s political elite that Indian Foreign Secretary S Jaishankar’s visit on the eve of the promulgation of the constitution was to persuade Nepal’s leadership to provide India a special place in its foreign policy-making process. When the proposal was rejected, India responded by mounting an economic embargo against Nepal which was made to look like it was part of the Madhesi protest.

The idea was that when the situation deteriorated, India would get an opportunity to intervene in Nepal’s internal issues. The Western democracies would support India’s action as they too worry about Chinese influence in Nepal. Additionally, with the ongoing tension in the South China Sea, the West would support India and its approach to foreign policy in Nepal and other small South Asian countries.

However, what Indian Prime Minister Narendra Modi’s foreign policy advisors could not understand was that after the fall of the monarchy in Nepal, the anger of the ethnic groups was directed not only against the so-called high caste hill dwellers but against the new elite having more economic and political influence too. Also, hill dwellers in the Tarai share similar regional sentiments with Madhesis, and they too are angry at the political establishment for the Kathmandu-centric development and financial access. This prevented a clash between major ethnic groups in Nepal that could have materialised Indian hopes.

Even though Nepal is a signatory to 13 out of the 18 international human rights treaties, India and the West will continue to use human rights as a political weapon to push their interests in Nepal. This is clear because India and the West raise human rights issues only when there is a pro-Chinese government in Nepal, but forget the topic when the government is friendly to them. On the other hand, Beijing will continue to ring the Prime Minister’s Office in Nepal to keep tabs on any Free Tibet Movement activities. Therefore, Nepal is trapped in the geopolitics of larger countries.

Way forward

One of the best options for Nepal is to use the current international legal framework in its favour. One of the international legal mechanisms that could work in Nepal’s favour is ratification of the Rome Statute. Currently, what foreign actors are doing is that, whenever the government does not comply with their wishes, they support one group over the other and create a situation of chaos to force the government to do its bidding. They will provide assurance to those groups saying that they will help to negotiate a political amnesty in the future. If Nepal ratifies the Rome Statute, it will put legal pressure on any future government to take action against perpetrators of future riots or else the situation could end up at the International Criminal Court (ICC) in The Hague. This will not only force protesters to protest in a peaceful manner but also discourage foreign actors from supporting one group over another to destabilise Nepal because they could also be held personally responsible at the ICC for fueling violence on Nepali soil.

Additionally, it will send a very strong message to the international community about Nepal’s promise and devotion to promoting human rights and dignity. Many skeptics, especially the leadership in the Maoist party, worry that perpetrators of crime during Nepal’s civil war will be prosecuted after Nepal ratifies the Rome Statute. However, this is not true. As per the Rome Statute, the ICC may exercise its jurisdiction only on crimes committed after the entry into force of the statute in that state, unless that state has made a declaration accepting the jurisdiction of the ICC retroactively. Thus, Nepal will have the option to choose not to have retroactive jurisdiction and only have jurisdiction over future crimes.

As far as the rights of marginalised ethnic groups are concerned, the Nepal government should bring policies that will provide privileges and representation to those who have been historically oppressed. Since blacks and Native Americans in the US and aborigines in Australia still feel marginalised, the Nepal government should make a comparative assessment of the policies that worked and did not work in other countries of the world to create

policies that can work in Nepal’s

context. Most importantly, while providing privileges to ethnic groups, the Nepal government should have strong mechanisms to exclude the wealthy and elite classes among them as Nepal is fighting a battle for not only ethnic dignity but also economic dignity.

Shiwakoty is a student of International Relations at Pitzer College, USA