In international law, de jure describes practices that are legally recognised, regardless of whether the practice exists in reality. De facto, on the other hand, describes situations that exist in reality, even if not legally recognised.
Ideally “what is legal out to be practiced” and “what is practiced ought be legal”, but in the face of reality conditioned on various circumstances, “practices and reality” oftentimes become two independent aspects lacking any overlapping character.
The Kalapani region embroiled in the geopolitics of the South Asia continues to oscillate between de jure and de facto.
Kalapani, a trijunction of Nepal-India and China (Tibet), holds immense geostrategic and geopolitical value, and thus, has been a disputed land since the 1990s. The concluding remarks of Indo–Nepal joint committee on border management in 2007 clearly stated that the dispute can only be solved politically. However, political efforts to settle the dispute failed to reach any consensus when faced with the reality of big nation-vs-small nation power struggle.
Kalapani’s strategic value encouraged India to retain its stance, while Nepal’s meek political leadership, morally corrupt and incapacitated to safeguard the nation’s interests, allowed for the status quo to continue.
Currently, the status quo of Kalapani has taken a new shape. Geography and politics are two crucial aspects of international relations. The underlying reality of Indo-Nepal relations is their geographical proximity, paired with a starkly unequal power dynamic. The Kalapani dispute intertwines these realities at trilateral level, intrinsically linking it with the changing dynamics of Indo-China relations in their struggle for dominance over South Asia.
Realities and legalities Kalapani dispute
An age-old dispute gained a new profile under the Narendra Modi government. Unlike the prior establishment in New Delhi that opted for subtle diplomacy, Prime Minister Modi has endorsed a confrontational approach, triggering widespread response from both sides.
Amidst the chaos one can’t help but question how and why a dispute that existed for so long remained unsettled. How can two nations that practically bonded in every way claim to be unaware of each other’s map? If either nation was so certain about its claim, why did the matter linger for so long? And if at all either state had actually been the victim, why did it remain silent?
Territory claims laid by both nations on Kalapani broadly fall under three categories – treaty, geography (natural boundary) and history. The dispute has witnessed various turning points over the years. Examining these claims within the geopolitical context becomes vital to fully comprehend the issue.
Article 38 of the International Court of Justice (ICJ) statute obligates the court to consider treaties as the determining factor to asses territorial claims.
The two important treaties concerning Kalapani are – Seugauli Treaty signed by Nepal and the British in 1816, and the Indo-Nepal Treaty of Peace and Friendship 1950.
The Seugauli Treaty clearly establishes Kalapani to be Nepalese territory. But since the treaty was made redundant by the 1950 treaty, it holds no legal character. Article 8 of the 1950 treaty cancels all previous treaties, agreements, and engagements entered on behalf of India between the British and Nepalese governments.
Interestingly, although the 1950 treaty canceled the Seugauli Treaty, there was a provision in the latter in relation to the British India’s occupation of the Nepalese territories, which clearly nullifies the retention and occupation of the Nepalese territories by the Republic of India. This grants Nepal the legal right to claim its territories, including Kalapani.
However, Nepal never claimed its lost territories. How can Nepal regain its land when there is no claim at all? This then leads us to the question – why didn’t Nepal, in the period after 1950 under various political leaderships, ever claim its territory? This is where the reality of geopolitics and power struggles come in to play.
After South Asia was decolonised in the 1940s, India became the dominant player in the region. Further, the complete inward turn of China made South Asia largely unipolar. India, like with many small South Asian nations, exerted its influence in Nepal. It was an integral part of Nepal’s struggle for democracy in 1951. The final and crucial stages of the struggle were largely executed by India.
Nepal – a relatively smaller, socioeconomically and internationally unrecognised state – was compelled to depend on India to protect its sovereign integrity.
As for India, besides the fact it aspired to exert influence in the region, the immediate reason for its direct involvement in Nepal’s struggle for democracy in 1950 was its security concern over China, which was inching towards Tibet. Indo-Nepal bilateral relations later culminated into the 1950 treaty.
On the basis of this “special relation”, India landed its military boots along its northern borders, including Kalapani, during Matrika Koirala’s tenure to carry out its war with China in 1952. Realising that the souring of Nepal-China relations would not favour of either country, King Mahendra, after much diplomatic sparring, reached an agreement in September 1969 to withdraw the check posts by August 1970.
Thus, the defining moments of Indo-Nepal bilateral ties, which culminated in the 1950 treaty, is linked with China. The current flare-up carries the same rhetoric, although in an aggravate context of heightened India-China competition.
Nepal has raised its concern on the need of updating the 1950 treaty, claiming it is unfair. But India never paid heed. The Eminent Persons’ Group (EPG), jointly formed by Nepal and India to settle border issues, finalised its report in 2018 in which it recommended updating bilateral treaties and agreements. But bypassing these recommendations, the Modi government has adopted a different route.
Geography or natural boundary
In the absence of a clear bilateral treaty on Kalapani, the two countries have resorted to geography to form their claim. Natural boundaries lack precision and thus, become subject to disputes. But since they carry strategic importance, states are encouraged to occupy such borders. Claims over Kalapani portray a similar story.
The major point of divide of the Kalapani boundary dispute lies in locating the source of the river by the same name. Both sides claim that the origin of the river lies on their side.
The Modi government in early November 2019 issued a new official map, which showed Kalapani as Indian territory. This gave the old dispute a sensational turn. The matter was further aggravated when on 8 May, Indian Defence Minister, Rajnath Singh, virtually inaugurated the 80 km long Lipulekh road. Indian officials said that the construction of the Lipulekh road commenced in 2008 and that inauguration was a routine part of the projects.
Nepal responded by unveiling a “new” map, which showed the disputed region as its own territory – something that was missing in its previous maps. The most unsettling part of Nepal’s response was it claimed being unaware about the construction of Lipulekh road pass, which had commenced in 2008. India rejected Kathmandu’s new map, calling the “artificial enlargement of territorial claims unacceptable”.
Further, the sudden appearance of “missing” territories on its map, which had been the official map of the country for the longest time, raises grave questions about the credibility of the government.
Tracing back the history of maps causes further confusion as they are inconsistent. Maps published by the British in 1827 and 1856 depict Kalapani as Nepalese territory. But the map of 1879 shows it as part of British India. Further, discrepancies with maps produced by Nepal have created more confusion. Till 1816, Kalapani was clearly carved in Nepal’s territory, but the period of 1856-1881 saw a change in names of the river in the maps.
Surveys conducted in 1865-69 and 1871-77 named the river Kali as Kuti Yangti for the first time and a small stream coming from Lipulekh, nameless in the previous map, was named Kali. Also, the map produced by Nepal in 1976 doesn’t include Lipiyadhura. As per Article 4 of Part 1 of Nepal’s Constitution, the territory of Nepal shall comprise the territory existing at the time of commencement of this constitution. This puts Nepal under further scrutiny.
Maps are codified documents and thus, become crucial to justify claims. But the inconsistency of these maps has compounded the matter.
The third category of justifying the territorial claim is the historical claim that is largely based on “who possessed it first and for how long”.
This category also overlaps the aforementioned categories of treaty and geography, as the crucial aspect about historical claim is time. A claim of historic right is bolstered by the passage of time. When the encroached state does not act to counter the claimant’s right, it is deemed to have acquiesced in that right and is estopped from rejecting the title for lack of consent.
Nepal’s silence over the years, topped by the discrepancies and inconsistency of its map, makes its historical claim on Kalapani rather weak.
Dispute only an irritant
At its core, the Kalapani dispute depicts the reality of the Nepal-India “special relation”. Absence of clear demarcation of borders has paved way for periodic tensions among the two.
As argued by Brian Taylor Sumner, the benefits of having territory “are only as great as a state’s borders are clear, because a state’s boundaries must be well defined for the modern state to function.”
Widening of the rift between India and Nepal over Kalapani will not favour either, especially in a globalised world. It will also disturb whatever harmony is left in the South Asian region, causing immense damage to the region’s prosperity and stability.
The dispute has risen in magnitude in the light of growing India-China power struggle in the region. It is vital that Kathmandu, through concerted efforts, succeeds to manage this reality while also safeguarding Nepalese interests.
There is a certain principle in international law called ex aequo et bono. It means “according to what is equitable and good”. Such a norm can push disputing parties to go beyond legal structures and amicably settle territorial disputes. India and Nepal should hold bilateral dialogues based on this principle and bring a swift end to the Kalapani dispute.
Views expressed are the author’s own.
Sweta Khadka holds a Masters in International Relations from the Department of International Relations and Diplomacy, Tribhuvan University, Kathmandu.
Featured image: Red pin showing the disputed Kalapani trijunction between India, Nepal and Tibet | Google Maps