Dr Pramod Kattel
Nepal is in state of lockdown since last 50 days due to COVID-19 pandemic but the lock down does not seems to be effective in the Kathmandu Valley. This ineffectiveness has been added by the border issues ongoing at Nepal-India border at Darchula District of Nepal. The issue to state specifically is the land-encroachment of Limpiyadhura, Kalapani and Lipulekh of Nepal by India. As a reaction of encroachment young bloods are seen revolting by chanting against the encroachment at Maitighar Mandala in Kathmandu, the common platform for expressing dissatisfaction. Different activists are also playing their part just by shouting on the street regarding the encroachment of Nepalese land at border area. Certainly this event has increased anti-India sentiment among the youths. It is also seen that this sentiment is tried to be grabbed by some political parties or groups of different names.
This issue of border encroachment came into lime-light when the Indian Defence Minister Rajnath Singh inaugurated the Link Road to Mansarovar on 8th May 2020. The Link road is made via no man’s land of Nepal at Darchula District. India has set military post at Kalapani region of Nepal and increasing its activities in the borders keeping para-military force named Armed Border Force (Sasastra Seem Bal-SSB) to take care of border areas. Nepal’s presence at border area is minimal since past. Taking this minimal Nepalese presence at the border as an advantage along with time of COVID-19 Crisis, India has encroached many border areas of Nepal. Nepal and India shares a border area of 1808 km and has border disputes at more than seventy places like Limpiyadhura, Kalapani, Lipulekh, Susta, Tanakpur, Mechi region etc.
The dialogues to settle the border disputes and delineate the border was ongoing between two countries and as a part of it, a meeting of ‘India-Nepal Joint Technical Level Boundary Committee’ was also supposed to take place at February which could not happen due to ongoing COVID-19 Crisis. Taking this vulnerable period as an advantage and disobeying the international norms and practice that no activities should be done at disputed areas unless settled, India’s inauguration of Link Road to Kailash-Mansarovar, again brought the border dispute at peak.
At the time when Nepal was suffering from scratches of the devastating Earthquake of 25th April 2015, a joint statement was made between India and China to make Trade Route via Lupulekh Pass, Nepal’s area, for enhancing trade between the two countries in 15th May 2015. At the same time Nepal had put dissatisfaction regarding joint statement released because of the involvement of Nepalese area, Lipulekh without Nepal’s consensus. Nepal also had sent diplomatic note regarding the dissatisfaction on the issue to both countries involved. Again at the time of COVID-19 crisis, India inaugurated the Link Road to Kailash-Mansarovar in 8th May 2020 which clearly depicts its mala fide intention.
In the region, the dispute between two countries basically lies regarding the Kali River. Nepal’s territory lies east of Kali River and India’s to the west of it. Both the countries are affirmed of Kali River as the border between the two countries. The problem is that Nepal is claiming Mahakali River as Kali whereas India is advocating a small stream that lies east of Kalapani in the region of Nepal as Kali. One can easily speculate that the boundary between two States can only be made by larger landmark which implies Mahakali River.
For the solution of the ongoing dispute, one has to go back to the Sugauli Treaty of March 4, 1816 concluded between British India and State of Nepal and the maps being publicized during the time. Since then, time and again India has been changing its maps unilaterally encroaching areas of Nepal and showing the disputed are on its own territory. On paper India states that it is ready to settle the dispute via dialogues but does not seem so practically. To fulfill its interest of encroaching land of Nepal and developing its own physical structures like road showing the outer world that the area has been under its effective control, it has been delaying the dialogue between the two countries. India is never ready for effective dialogue and always is lingering the situation and is misusing the time to built physical structures like road. The problem is not just the Indian side but our own government is also not actively being involved in making India sit for dialogue. When any news regarding the encroachment is flashed out, then for few days Government of Nepal acts as if it is acting vigorously to solve the issue and again goes into coma thereafter till next issue is aroused.
This time, Government of Nepal should actively involve and solve the issues as early as possible as it is one of the strongest government in the history of Nepal with nearly two-third majority. All the opponent political parties are also giving support to the government in the national issue at present. Previously, Government of Nepal could not take active stand as there was always fear of losing government as it is well known that external politics plays major role in forming and causing fall of the Government of Nepal. This chance at present is less due to near two-third majority of a single party, The Nepal Communist Party.
There are different ways to solve the international dispute regarding the border issues and its delineation. Not only when the land is encroached but also time and again Nepal has to demand for dialogues. Nepal should request to halt any ongoing activities till the issues are settled at the disputed sites enlisting those areas. There should be dialogue between China, Nepal and India to settle the two Tri-points i.e. junction point between the three countries. There should be dialogues via diplomatic and political channels to settle the border disputes at different levels like Foreign Secretary to Foreign Minister to Prime Minister Level with back up of experts and concrete proofs on each level. Nepal then should make a permanent team of experts to deal on border issues along with seeking help of other experts out of the team and gather strong proofs regarding the border landmarks. After that separate dialogue may be set between the Nepal-India and Nepal-China. Since major dispute is with India and it is encroaching the Nepalese land at multiple places, issues with India should be settled first. From the dialogue till date, what is and might be the claim of India is also known so to strengthen our own and to weaken or diffuse their claim, the proofs should be made ready taking help of historical documents of Sugauli Treaty, maps of those treaty times, payment slips of land revenues of the areas, registration of land in land revenue office, documents of national census, making presence of persons doing Nepalese Census (if needed), historical writings from independent international experts and collected other relevant documents. After settling issues with India or concurrently, dialogue with China can also be done as above. This method of conducting political and diplomatic dialogue between the two countries is better to solve the disputes.
On the road and even at Parliament, we often hear the path to go to International Court of Justice (ICJ) to settle the dispute. The path is not as easy as said. It may be comfortable to say for gaining public sentiment and for gathering votes but is not easy practically. Political parties of almost every Members of Parliament or cadres telling so have been in the government but none of them have solved the issue till date though it is not a newly emerged problem. This clarifies that it is easy task to advocate but difficult to solve. Anyone can firmly say that these are words to boil young blood and gather public sentiment. Those who chant loud slogans on roads are carrying the flags of political parties or groups in which they belong to which makes their motive crystal clear. If they were serious regarding the issue and the issue had come out of national feeling, they would have brought the national flag and provide useful suggestions to solve the issue via creative ideas in descent way. One who is serious regarding the issue does not shout loud only when the issue of encroachment comes on media but would have acted tactfully throughout. They would have pressurized the government continuously to solve the problem. Everybody is aware that it is a problem that existed since long and equally serious too so it needs serious mechanism to solve but diverting the true picture just for personal or political gain does not make sense in such matter of national issue. National interest should overcome party politics.
Based on UN Charter also, countries can settle international dispute in peaceful manner with the help of UN General Assembly or UN Security Council via diplomatic methods of negotiation, mediation, conciliation, good offices or inquiry. This is also similar to above that if two countries agree there is a problem and becomes serious regarding the issues; they may or may not take help of third party to solve the problem. For accepting that problem exists and for formulating ways to solve the problems, honesty matters the most.
Every countries accepts the principle of sovereign equality whether the country is big or small as said in Latin legal maxim “par in parem non habet imperium” i.e. all sovereign states are considered equal and independent or equals do not rule over equals. It is fancy to hear but all countries do not follow this. It is like tusks of elephant which is nice just to show. In real sense, International law is power politics or power game. There is more chance of weaker countries to suffer more. The problem is that there are limited international laws to settle disputes. Treaty laws, historical markings and effective control are the major factors that are taken care off to settle the disputes. There are limited examples of settlement of territorial disputes by ICJ. Though the debate of international law as soft law or strong law is ongoing but it is observed as weak law especially for developing nations. States are subject matters of International law so can file the case. The contentious jurisdiction of ICJ is that it may examine and decide any case submitted to it by the states. The limitation is that it cannot decide a case without the consent of the parties to the dispute. Even if by chance this case of border issue between Nepal and India is taken to ICJ and decisions are made. There is a risk that if India loses may not accept the decision or may not fulfill the obligations stated and for this, there is no strong mechanism to make the implementation of the judgment provided. UN Security Council which may have role in implementing the decision may not do so interfering into the matter of states as it is not free of bias based on power factor. This will again prolong the disputes and make the situation or relation between the neighbouring states more complicated. This may instead divert the condition to settle the disputes or implement the decisions via forceful means. To settle dispute by forceful measures, we are not self sustained economically and are not strong enough militarily and technically so this option does not seems good one for us.
We have been on the border disputes for more than 200 years and lingering the issue more just makes it complicated so needs to settle this time when our Government is also more powerful with nearly two-third majority. We should be aware of issues but should not make the environment worse speaking whatever we think is correct without knowing the facts and figures in serious issues like the national territory and border. Let us be more serious in national issue and do not play blame game but instead co-ordinate to solve the ongoing problem tactfully gathering evidences and helping the Government of Nepal for the same. If we lose our motherland, winning other thing is of no use. So it’s time to play fair game and prove wrong to those who says politics is a dirty game.
(Dr Kattel is Obstetrician and Gynaecologist at B. P. SMRITI Hospital, Basundhara, Kathmandu)
