Lines on the Border, Lines in our Mind: Nepal II

Treaty Obligations

Team Law Community
July 5, 2020

The previous post “Nepal, the sidelines and a way forward” was an outline of the political tug of war between the global powers with Nepal; the current post will highlight the disputes in particular with India and the current standing.

The Border Dispute

Nepal and India have a long border dispute concerning a 400 km square trail of Kalapani which is located at the tri-juncture of India-China and Nepal, in West of Nepal. The second disputed border is of the Tarai region in southern Nepal. It all began after the inauguration of a road by India to Lipulekh. The Nepalese police force was deployed in the area and the citizens came on roads to protest the roadways claiming India has without diplomatic consultation changed the status quo of the said territory. As addressed in the previous post, the region of Lipulekh is currently drawn on the map of Nepal as under its sovereignty.

The dispute is not new and dates back to the 1950s.

Inside the Treaty of Sugauli, 1816 and 1925

Treaty of Sugauli,1816 was a result of the Anglo-Gorkha War and it defined the borders of British India and Gorkhaland i.e., present-day Nepal.

The treaty is named after the place where it was signed in 1816 Sugauli, which is situated in modern-day Bihar. A second treaty was signed in 1925 and even after the Independence of India, the treaty was a basis for relations between the two nations.According to the treaty, the division of border is to the west and east of a river named Mahakali (Sharda). Nepal contends that the area east to the river Mahakali is of Nepal and this includes, Kalapani, Lipulekh, and Lipyadhura today. However, it is a geographical fact that the Mahakali river has changed its coarse many times in history leading to several requests from Nepal to modify the actual boundary. Both the countries have also covered with their respective maps the regions on the banks of Mahakali.

Ever since, India is trying to fit in Om Parvat as the border guide, but Nepal is yet to ratify the call.

The evidence on the face of it, seems to be justified from both sides. India has deployed its armed forces in the disputed region and directly possesses the territory; on the other hand, Nepal has conducted a census in the region in the 1950s. After analyzing the situation, I think that the logic persists in favor of India as Nepal has no proof of a continuous census, also India can still prove possession, though there have been instances when Nepal has asked India to move back; thus, blocking the way for adverse possession claim.

Nepal swaying the Bilateral dispute obligations

In July 2014, India and Nepal agreed to solve all the border disputes through a bilateral mechanism. For this purpose, they decided to constitute a Boundary Working Group (BWG) which would devise technical frameworks for resolving the contentious boundary issues including disputes over Kalapani and Susta. However, Nepal swayed the agreement by bringing a Constitutional amendment and drawing a new map.

Does this constitutional amendment make the territories claimed to be that of Nepal?

Do India's reaction towards the Nepalese move, qualifies the friendly obligation?

What can be the reason for Nepal's unilateral decision?

All these questions will be answered in our next blog. Keep reading for more information.

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