An Analysis of the India- Nepal Border Tussle on International Law Principles

Ashika Jain and Lakshay Garg

1228px-1814_Thomson_Map_of_Northern_India_and_Nepal_-_Geographicus_-_IndiaNepal-t-1814

Introduction

International boundaries and territorial jurisdictions have been the apple of accord between neighbouring nations for a long time. Whilst the state jurisdiction is characterised by inherent legal rigidity, the boundaries demarcating them may be dynamic in nature, raising the issue of territorial sovereignty. The India-Nepal territorial dispute over the Limpiyadhura-Lipulekh and Kalapani regions has emanated from the indeterminate origin of the River Kali, which determines the Western border of Nepal. For a nation like India, which has always attached strategic, religious and trade importance to this area, this issue becomes a crucial matter of national importance. Although the genesis of the dispute is from time immemorial, this article traces the chain of events that has resulted in the feud and the international principles which will be key determinants to decide the fate of the contentious territory.

The Brewing Point

The two south-Asian neighbours are in concord with the fact that River Kali denotes the western border of Nepal as specified in the Sagauli Treaty of 1815. The disagreement lies on the origin of the River. Nepal has claimed the disputed Limpiyadhura-Lipulekh and Kalapani by contending that the Kali River originates in the higher Himalayas, thereby giving it access to this triangular-shaped region. India however, contends that the contentious area lies to the west of River Kali, making it an integral part of the Indian landmass as per the Sagauli Treaty.

This issue, that had been subdued for ages, resurfaced when Nepal stomped its foot, stirred up public sentiments and without holding talks through the diplomatic channel over an 80 km long road inaugurated by India in Lipulekh (a territory effectively under the control of India for more than 60 years), unilaterally amended its political map. After the inauguration of the road, Nepal, in a press release showcased its disapproval for the construction which was done without consulting it.

Nepal responded to this by initiating a Constitutional Amendment to change its map in order to include the disputed territories. However, India has vehemently condemned this gesture, calling it a “unilateral act not based on historical facts and evidence.”

Principles of International Law: A Critical Approach to Nepal’s Claims

The India-Nepal dispute is not the first instance wherein a natural physical feature has been used to create a boundary separating two nations.[i] Mountain ranges, rivers, oceans have been a determining factor in demarcating the territorial jurisdiction of nations. Natural boundaries, however, pose an inherent problem with respect to precise delimitation and demarcation of boundaries. This is because they may, over a period of time, move or change their course, creating problems in delineating areas. In order to settle the conflict, certain international principles are applied to determine which state has the title to territory.

Title to territory may be acquired by a variety of means which include state succession, occupation in case of terra nullius, effective control, international agreements and principle of uti possidetis juris. In order to claim the disputed territory, it is essential to determine which of the parties has produced the more convincing proof of title to one or all of these principles. Some of these principles are discussed below, that may underpin India’s claim over the territory.

Violation of Treaty Law

The purpose of any treaty can be compared with the purpose of a contract.[ii] This is due to the fact that both contain a list of “legally recognizable expectations”[iii] i.e., to say that, the way in which both agree to maintain their relationships. The nations then voluntarily rely on those expectations as they suit their interests. Nepal, by enacting a constitutional amendment which encroaches upon the disputed territories has breached its obligation under the 1950 Indo-Nepal Treaty of Peace and Friendship. This treaty was signed in the backdrop of the rise of Communist China in 1949 and subsequent invasion of Tibet that raised security concerns for both the nations and hence presents equal importance to both the nations.

The treaty enabled the two South- Asian neighbours to establish a close strategic relationship. According to the treaty, the nations are bound to acknowledge as well as maintain at all times the respect to the sovereignty as well as the territorial integrity of each other (Article 1). Furthermore, in the case of a conflict or misunderstanding, the same is required to be informed by a formal dialogue in order to keep the friendly relations between the two states intact (Article 2). Nepal however, had turned down India’s request to postpone the bilateral talks until the suppression of the coronavirus outbreak. It went on to pass the draconian amendment bill, which has scarred the amicable relations between the states.

Effective Control

When treaties and agreements do not display a clear picture regarding the boundaries, the verdict is delivered in favour of the nation having effective control over the disputed territory. In the past too, the Courts have favoured those nations which have exercised sovereign power over the disputed territory. One such instance is the Minquiers and Ecrehos case, wherein the court ruled that the U.K has sovereignty over the disputed islands, since it exercised jurisdiction and administrative control over the same. (on page 22) Activities such as collection of taxes, licensing commercial vessels and other administrative actions are pertinent to establish this claim over the territory.

India has reassuring proofs which affirm the exercise of her sovereignty over the disputed territories. It has records of taxation and revenue dating back to the 1830s which consolidates her claim that Kalapani has, since then been a part of Pithoragarh District in the state of Uttarakhand in India. There was an actual settlement and an announced intention to acquire. India has strived to maintain an appropriate amount of political, military and administrative control with the intention of governing the territory, which is a sine qua non for establishing a strong territorial claim.[iv] The territory has been settled throughout, and its resources have been utilised by India.

Historical Claims and importance of Maps

Historical claims are seen as the most common means to assert right over a given territory.[v] Such claims are buttressed in circumstances wherein the state whose rights are violated does not counter the actions of the other state.[vi] What substantially aids in asserting territorial claims by a nation is the effort put by it to justify the pursuit of its claims. Maps are a primary tool for the same. Maps often serve as propaganda and perceptual weapons to assert one’s claims over territories. For instance, in the tussle between Cambodia and Thailand over the Preah Vihear Temple, the courts after relying on historical maps (in the present case which favours India), which were relied upon by both the countries for some period of time, dismissed all arguments of physical, religious or archaeological nature, thus establishing the importance of the maps in the disputed area. In the present instance, U.S Army map of 1955 also recognises the disputed territory as a part of India, supporting India’s claims.

Nepal has acquiesced the right over the territories in question, assuming that it had one. It had turned a blind eye to the Kalapani issue from 1961 to 1997 and it was not until 1998 that the border issue became a convenient India- Nepal controversy. China too in its 2015 statement, recognised Indian claims over Kalapani and Lipulekh, thereby strengthening India’s stance.  Hence, Nepal should be estopped from rejecting India’s title to the territory.

Conclusion

By taking such a dismaying call of altering the territorial map, Nepal has behaved mischievously and has breached certain principles of International law. After years of equivocation maintained by Nepal on the border dispute, it has still reacted in a haphazard manner. Instead of solving the dispute through formal talks, it maintained a child-like behaviour, by including the disputed area in its map. An identical behaviour was seen when a Joint Technical Level Nepal-India Boundary Committee (JTLNIBC) was set up by both the countries in order to delineate the said border area. After rigorous surveying, deliberations and extensions, a report was submitted in 2007 by the said committee. Nepal turned a blind eye to this report. For a country, whose two-third imports are handled by India, Nepal cannot afford to disregard the relations and showcase mischievous behaviour time and again.

The importance of ties between the two states is a celebrated one on the global platform which is often romanticised as one of “roti-beti.” The present state of affairs demands exercises of political goodwill and statecraft to resolve the dispute. The resources and time spent on such issues could be used by both the nations to concentrate on trade, economy and well-being of its citizens. The problem needs to be resolved as soon as possible as both nations fear an act of aggression from China (Indian in Ladakh and Sikkim while Nepal in Rui village).

One of the prerequisites that cannot be overlooked in the current scenario is the stability of ever-growing friendly relations between India and Nepal. For the same reason, the duty lies on India to convey the message of supportiveness and congenial environment that the country has to offer to the Nepali population. A thoughtless erosion will hamper the centuries-old bond between the two

[i] Andrew Burghardt, The Bases of Territorial Claims, 63 GEOGRAPHICAL REV. 225 (1973)

[ii] Oscar Schachter, International Law in Theory and Practice 74 (1991).

[iii] Marvin A. Chirelstein, Concepts and Case Analysis in the Law of Contracts 1 (4th ed. 2001)

[iv] Yehuda Z. Blum, Historic Titles In International Law 100 (1965).

[v] Andrew Burghardt, The Bases of Territorial Claims, 63 GEOGRAPHICAL REV. 225 (1973),

[vi] D.H.N. Johnson, Acquisitive Prescription in International Law, 27 BRIT. Y.B. INT’L L. 332, 345 (1950)


The authors are students at the Gujarat National Law University, Gandhinagar, Gujarat.

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