sign in sign up
<<
Home , Gorkha Kingdom, Tinkar, Treaty of Sugauli

THE KALAPANI DISPUTE: PM OLI's DANGEROUS BRINKMANSHIP By Col Sanjay Kannoth, VSM

On 08 May 2020, inaugurated a 75 km road constructed from to Gunji. This event triggered aggressive statements and actions from . The Nepalese Govt claimed that the road was constructed in Nepalese territory under dispute. PM KP Sharma Oli, a member of the Nepal Communist Party (Unified Marxist Leninist) went on to mock the national symbol of India. These events have brought the spotlight on the Kalapani Border Dispute between India and Nepal.

India-Nepal Border

India and Nepal share a 1690 km boundary. It is the fourth longest land boundary after India's borders with Bangladesh, China and Pakistan.

The Kalapani dispute needs to be viewed in the larger context of Indo- Nepal boundary negotiations. The universally accepted principles of delineating international boundaries are the Watershed Principle and the Thalweg Principle. Theoretically, the Mechi and Kali Rivers provided a clearly identifiable boundary on the Eastern and Western sections. The problematic areas were in the Southern regions where the natural alignment of rivers and streams flowing from the hills run perpendicular to 2

the boundary. Delineating boundaries in flat terrain where it splits villages, fields or water channels is always contentious.

Despite these difficulties, there has been remarkable progress in border consultations. The Nepal-India Technical Level Joint Boundary Working Group was set up in 1981 to resolve boundary issues, to demarcate the international border and to manage boundary pillars. By 2007, the group completed the preparation of 182 strip maps, signed by the surveyors of the two sides, covering almost 98% of the boundary, all except the two disputed areas. It also ascertained the position of 8,533 boundary pillars. The remaining issues concerning the boundary are not difficult to resolve unless they are caught up in domestic or international concerns. The next steps are the approval of the strip maps by the respective governments (that of the Nepalese Government is still awaited), the resolution of the differences of opinion over Kalapani and Susta, and speeding up the erection of damaged or missing border pillars.i

Thus, of the 1690 km of the Indo-Nepal border, 98% has been amicably resolved, the exceptions being Kalapani and Susta. The Susta dispute covers an area of 140 sq km in Nawalparasi district of Nepal bordering the Maharajgunj district of Uttar Pradesh. The disputed area in Susta is under Nepalese control.

History

Modern Nepal was unified under King in the 18th Century. In the late 18th and early 19th Century, the under the launched successful military campaigns to annex principalities and kingdoms upto the Sutlej River and Kangra Fort to the North-West and the Teesta River in the East.

This Gorkha expansionism eventually came in conflict with the British who - directly or indirectly - controlled the plains of India between Delhi and Calcutta. The result was the Anglo-Nepal War of 1814-15. Interestingly, an important battle in this campaign was fought at Nalapani near . 2Lt Frederick Young was captured as a prisoner of war. While in captivity, he was impressed by the military traits of the Gorkhas. A few months later, he was granted permission to recruit Gorkhas 3

as soldiers into the East India Company. Thus began the recruitment of the Gorkhas into the British Army.ii

Treaty of Sugauli

The was signed between the British East India Company and Nepal at the end of the Anglo-Nepal War on 4 March 1816. The victorious British restricted the Nepalese to the areas bounded by the Mechi River in the East and the Mahakali River in the West. Article V of the Treaty stated that "the Rajah of Nipal hereby cedes to the Honourable East India Company in perpetuity all the under-mentioned territories including the whole of the lowlands between the Rivers Kali and Rapti. The Rajah of Nipal renounces for himself, his heirs and successors all claims to or connection with the countries lying to the West of the River Kali and engages to never have any concern with those countries or the inhabitants there of."iii

An uneasy peace prevailed between the two sides for the next few decades. The 1857 War of Indian Independence proved to be a turning point in this relationship. When East India Company forces were beleaguered in Lucknow, Nepal sent troops to help the British quell the rebellion. The indebted British restituted the NayaMuluk to Nepal as a token of their gratitude in 1860. These included areas of the lowlands between the Mahakali and the Rapti rivers. Those areas today constitute the Nepal districts of Kailali, Kanchanpur, Banke and Bardiya. The lowlands between Rapti and the British district of Gorakhpur were also returned to Nepal.iv

Maps of Kalapani

The Mahakali River – known as the in India - serves as a clearly defined boundary between India and Nepal in its lower and middle reaches. The dispute commences at the Gunji village. Here lies the confluence of the two tributaries which join to form the Kali River. The dispute is about which of the two streams constitutes the border North of Gunji. The Nepalese claim the Western tributary which would entitle them to maximum territory. The Indian claim is based on the Eastern tributary and springs near a Kali Temple. This is the essence of the dispute. 4

Map 1 : The Area Under Dispute

Nepal claims that the Western Stream (KuthiYankti) is physically the longer and larger tributary and hence qualifies as the main Kali River. Nepalese experts state that 'Ku Ti' means 'Black River' or 'Kali River' in the local language. This water channel originates at a point known as Limpiyadhura Pass on the highest ridgeline and flows in a South-Easterly direction for approximately 40 km until its confluence with the LipulekhNala (known locally as Lipu Gad) at Gunji. In support of their claim, Nepal quotes maps issued by the British in 1827, 1846 and 1856. Maps printed in the Kumaon Gazetteer around the time also suggest that the British had acknowledged that the Western stream was the main 'Kalee' (Kali) River. These maps have been traced in the British Library in London and reproduced by Nepalese historians in their books. The British deceptively changed the nomenclature of this stream in maps after 1860 by showing the Lipulekh Nala as the main Kalee River, Nepal alleges.v

All areas East of the Western tributary would be Nepalese territory as per the Treaty of Sugauli. Lipulekh and Kalapani would, thus, fall within Nepal. As per the Nepalese, India occupies approximately 335 sq km of Nepalese territory.vi

5

The root cause of the dispute today is that the British considered that the Kali River served as the border only until Gunji where a number of tributaries joined to form a river. Beyond this confluence, the stream from Lipulekh constituted the border. A map of 1849 printed by the British confirms what the British construed as the border. All maps issued after 1860 referred to the stream from Lipulekh as the Kali River.

Map 2: Map in the 'Medical Report on the Mahamurree (Great Plague) in Gurhwal in 1849-1850' dated 5 September 1850.vii

India has revenue records to prove that this area belonged to the of Kumaon since the 1830s. India's claims are based on the fact that it has always been in possession of this territory since Independence. India has bequeathed borders as they obtained in Britsh India in 1947. India has made no changes to maps issued by the Government of India in this sector since 1947. That continues to be the case till today. The Nepalese claim that India made changes to incorporate Lipulekh in the map of India issued in November 2019 - as a follow up action of the abrogation of Article 370 - is factually incorrect. The map of this sector remained unchanged.

Whatever the sequence that led to this new border being imposed or agreed, or whatever date it occurred, maps prepared in Nepal during the 6

Panchayat regime are identical to the post-1860 maps in showing the border as following the line of the river that flows down from below LipuLekh. Again, this indicated an acceptance, whether consciously or not, that the traditional trail to the fell exclusively on the Indian side and this was the logical interpretation of the border as agreed as part of the Treaty of Sugauli. Also unhelpful to Nepal’s case is that the China-Nepal Boundary Treaty, formally signed by King Mahendra in Beijing on October 5, 1961 makes no reference at all to LipuLekh. The opening lines of Article 1 state: “The Chinese-Nepalese boundary line starts from the point where the watershed between the Kali River and the River meet the watershed between the tributaries of the Mapchu (Karnali) River on the one hand and the Tinkar River on the other hand.” This roughly corresponds to the border shown on the 1879 map and the one claimed by India today. The Nepal government published a map in 1960 with a similar boundary line. Border Pillar number 1 of the Nepal China Boundary is located at Tinkar Pass.viii

Pic 1: Boundary Pillar No 1 at Tinkar Pass as seen from Nepal side.

In summary, all British maps from 1850s to 1947 and all Indian maps after that have shown Lipulekhand Kalapani within Indian territory. All Nepalese maps issued up to 1980s have also shown the same. The issue of Kalapani 7

and claim to Limpiyadhura was not laid by the Nepalese until 1998. The case for Kalapani is a clear case of irredentism on the part of Nepalese politicians.

In the 1950s, Nepal permitted Indian Army to establish 17 posts on the Sino-Nepal border as part of India's forward policy. One of these posts was in the Tinkar Valley, South of Kalapani. These 17 posts were vacated after the 1962 War. Troops stationed in the Tinkar Valley relocated to Kalapani and have remained there ever since.ix The Nepalese never objected to the stationing of Indian troops in Kalapani because it was in territory unambiguously Indian.

India believes that the origin of the Kali River is at a spring. A temple in this location is venerated by locals and has been in existence for many decades. India, therefore, considers all areas East of this Temple as Nepalese and that towards the West as Indian. The area lying between this definition of the border and the Lipulekh stream is 35 sq km which may be considered as unresolved.x

Importance of Lipulekh

The Lipulekh pass is located close to Taklakot and the Kailash Mansarovar area of Ngari Prefecture of . Nepalese citizens travelling to Kailash utilise two routes. The preferred route is the road route from . This 14-day trip is convenient and is largely subscribed by Indian pilgrims. The second option is to travel by domestic flights to Simikot and then board a helicopter service to Hilsa, short of the Tibetan border. The trip further is carried out by a mix of trek and road journey. Inclement weather along this route makes it unreliable.xi

There are no separate valleys that lead to the Lipulekh Pass from the Nepalese side. The trade route passing through the Lipulekh has always been used by the Indian side. Lipulekh, therefore, has no importance to the Nepalese. This is the reason why Nepalese infrastructure or government presence in this region is conspicuous by its absence. The name 'Shoodra- Paschimanchal' is indicative of the attitude of the elites of Kathmandu towards this border region. Raising nationalistic fervour for a remote and 8

unpopulated corner of the country in hindsight cannot get more ironic for the .

On the contrary, Lipulekh's importance to India is an established fact. It is one of the six passes named in the 1954 Panchsheel Agreement between India and China. The two countries recognized that these six passes were border passes and traders and pilgrims from both sides could use them.xii The importance of the Pass was further reinforced when it was named in a Joint Statement by both sides during Indian PM's visit to China on 15 May 2015. India and China have repeatedly reaffirmed that Lipulekh lies on the border of India and China in agreements between the two nations in 1954, 1991, 1992 and 2015.xiii As already mentioned, the 1961 Border Agreement between China and Nepal does not recognize Lipulekh as a border pass between the two countries. The Sino-Nepal border commences at the Tinkar Pass, a few km South East of Lipulekh.

The Kailash-MansarovarYatra is a major pilgrimage for Indians. The Yatra was stopped in 1956 and resumed in 1981 after a 25 year interval. This Yatra passes through Lipulekh. The Yatra through Leh-Demchok is not possible due to legalities of the Boundary Problem. The other alternative route through Nathu La is long, arduous and financially unviable.

The Nepalese claim to Kalapani would effectively grant Nepal control over the only route to one of the holiest pilgrimages for from India - without any use of the claimed areas to the Nepalese themselves.

Politics of the Dispute

Nepal is sandwiched between India and China and has traditionally hedged its bets on playing its larger neighbours against each other to serve its own interests.

Nepal's strong relations with India are a consequence of geographical, demographic, religious, cultural and historic factors. People in the border regions are of the same ethnicity and share a 'roti-beti' relationship. The open border results in free movement of people and goods between the two sides. Nepalese citizens can apply and serve in India with the same privileges as those enjoyed by Indian citizens. These provisions are 9

contained in the Indo-Nepal Treaty of Peace and Friendship of 1950. In all parts of India, Nepalese are treated with respect and friendship. Remittances, salaries and pensions paid to Nepalese employed in India in the formal and informal sector contribute significantly to the GDP of Nepal.

In the larger context of promoting anti-India rhetoric, the Kalapani dispute is a matter of political expediency for the Communists in Nepal's political landscape. Raising the ante on the border issue and making intemperate utterances against the national symbol of India helps PM Oli to distract domestic attention from his political feuds with Prachanda, the Covid-19 crisis or the poor state of the national economy - while at the same time shoring up popularity as an ultra-nationalist. Eventually, it only serves to push the Nepali Prime Minister and his country into a position from which it will become difficult to climb down.

The NCP has also been riding on the popular sentiment against India that was generated by the alleged 2015 Blockade when he was Prime Minister. The event was related to a proposed New Constitution that would marginalise Madhesis from the national mainstream. Coming as it did in the aftermath of the devastation caused by the 2014 Earthquake, the blockade inadvertently served Nepali Communist causes by consolidating anti-India sentiment and driving the Nepalese polity into the arms of the waiting Chinese.xiv

The Way Ahead

The demand for issue of a new map of Nepal was first raised by Civil Society members in November 2019.xv The Nepalese Govt had chosen not to escalate matters then. But a publicised inauguration of the new road was viewed by Nepal as highly provocative. Under the circumstances, silence would have been construed as acquiescing to Indian 'aggression'. It is also opined in certain quarters that if India had opened the road sans the fanfare, the Nepalese may not have had the grounds to react as they did.

The issue can get complicated if both sides undertake actions that are considered provocative and escalatory by the other side. In a worst case scenario, Nepal may seek to withdraw from the 1950 Friendship Agreement, 10

as threatened by Prachanda in 2009. India has often offered to revise the Treaty as it did with a similar treaty with Bhutan in 2007. Some of the original provisions of the 1950 Treaty are already being dishonoured by Nepal - of not granting reciprocal rights to Indians in Nepal and by conducting defence relations with China.xvi However, Nepal has never followed up on its request for revision, because if the treaty were to be revised, the loss would be entirely Nepal's.

But there is no predicting the extent to which the ruling party can flagellate Nepal for improving their prospects at the hustings. The opposition in Nepal have traditionally accused the sitting Govt for 'pilgrimages' to New Delhi and for permitting Indian interference in Nepal's domestic affairs. In such a prevailing environment, PM Oli has emerged as the first Nepalese PM to face-off with the Indians. He would have now gauged the political dividend of this step.

In the vitiated atmosphere that has been created, the scope of dialogue appears remote unless both sides perceive a climb-down by the other. Nepalese leaders are already seeking the involvement of China in the dispute.xvii India will most certainly not involve China on the issue, considering the current trust deficit between India and China on almost every aspect of foreign policy. China also has a stake in the dispute, because the area is close to the Tri-Junction of the three countries. China, therefore, cannot serve as a neutral arbiter.

There is also a possibility of arbitration at The International Court of Justice. The preconditions for arbitration are that both parties need to be willing to participate in the judicial process. A precedent exists in the Indo- Bangladesh Maritime dispute. The International Court of Arbitration awarded 76% of the disputed area to Bangladesh. India accepted and implemented the award, setting a fine standard for the future of bilateral relations between the two countries.

In the event of arbitration, Nepal's case would be a weak one when weighed on the aspects of treaties, history, economy and culture. The Nepalese would, however, be most vulnerable in the category of effective control and utipossidetis.xviii The Nepalese case would hinge on a British 11

action more than 150 years ago which has emerged in the 1990s after elected governments started getting access to authoritative records.

Further, in the likely event that arbitration adjudicates against them, the Nepalese would go to town stating that India has hatched another conspiracy. Nepal's polity is unlikely to possess the maturity to accept an adverse verdict.

For this reason alone, it may be prudent to wait for the rhetoric to calm down and seek a bilateral solution to the problem. Being the much larger neighbour, India has to be sensitive to the apprehensions and misgivings of Nepal.

Conclusion

The way forward from this point is fraught with challenges. Nepalese social media is already abuzz with videos containing anti-India sentiments.xix In the crescendo that has been raised, Nepalese social media warriors are paying little attention to the legal and historical positions of the two countries or to the facts on ground. The Indian Govt on its part could be more forthcoming by furnishing documents in its possession or bringing forward experts to debunk the myths being propagated by the Nepalese. The proliferation of social media in these times can result in polarising opinions far more efficiently than hitherto fore. The present crisis has the potential to dangerously undermine India-Nepal relations at its strongest link - people to people relations.

The one-way road being charted by the NCP is fraught with numerous potholes. Nepal's attempts to bring in China as a party to the dispute will only add further stress to the bilateral relation. This will make a negotiated settlement of the issue more complex than it already is. In its relationship with Bangladesh, India has resolved far more contentious issues such as transfer of populations and territories involving 51,549 people in 198 enclaves.xx The protracted issue was resolved due to political will exhibited by both sides. The disputed Kalapani and Susta issues can be similarly resolved by political statesmanship in the larger interest of the bilateral relation.

12

Disclaimer: Views expressed are of the author and do not necessarily reflect the views of CENJOWS.

i Jayant Prasad, "Lower the Temperature, Defuse the Issue", The Hindu, 23 May 2020. ii Virgil Miedema& Stephanie SpaidMiedema, " and Landour - Footprints of the Past", Rupa Publications, 2014. iii https://en.wikipedia.org/wiki/Treaty_of_Sugauli iv Amish Raj Mulmi, "Why Did the British not Colonize Nepal", The Record, 1 October 2017, https://www.recordnepal.com/wire/features/why-did-the-british-not-colonize-nepal/, accessed on 24 May 2020. v A video by Prof Ramesh Kumar Dhungel, a historian at Centre for Nepal and Asian Studies, Tribhuvan University explains Nepal's stance on the issue. Available online at https://www.youtube.com/watch?v=Q9KOjWy1V8U&t=9s. Accessed on 24 May 2020. vi Anil Giri, "With Release of New Map, India and Nepal enter a State of Cartographic War", Kathmandu Post, 21 May 2021. Nepal's total area is now 147,516 sq km, up from 147181 sq km, a difference of 335 sq km. vii JH Batten, Commissioner of Kumaon, "Official Reports on the Province of Kumaon with a Medical Report on the Mahamurree in Gurhwal in 1849-1850", 05 Sep 1850. Available online at https://archive.org/stream/officialreportso00batt#page/n5/mode/2up. Accessed on 24 May 2020. viii Sam Cowan, "The Indian Checkposts, Lipulekh and Kalapani", www.recordnepal.com, 14 December 2015. ix Ibid. x Shekhar Gupta, "New Road to Kailash Mansarovar via Lipulekh Pass and Why Nepal is Objecting to it", The Print, 11 May 2020. xi https://www.chinatibettrain.com/mount-kailash-travel-guide/kailash-manasarovar- yatra-from-kathmandu.htm xii The Times, e-paper, "Panchsheel Principles", 18 June 2003. Accessed on 24 May 2020. xiii Nihar R Nayak, "Controversy over Lipulekh Pass: Is Nepal's Stance Politically Motivated?", IDSA Comment, 09 June 2015. xiv Hemant Ojha, "The India-Nepal Crisis", The Diplomat, 27 November 2015. xv My Republica, "Civil Society Members Unveil New Political Map comprising Limpiadhura, Lipulekh and Kalapani", 24 Nov 2019. xvi IndraniBagchi, "India Ready to Revise 1950 Friendship Treaty with Nepal", Times of India, 4 Aug 2014. xvii Kathmandu Post, "Kalapani Issue is Between Nepal and India, says Chinese Foreign Ministry", 24 May 2020. xviii Utipossidetis is the doctrine under which “old administrative boundaries will become international boundaries when a political subdivision achieves independence.” Brian Taylor Sumner, "Territorial Disputes at the International Court of Justice", Duke Law Journal, 2004. xix Speech by Ramesh Prasai, a Nepalese motivational speaker. https://www.youtube.com/watch?v=ypsY6_AGU8w xx https://en.wikipedia.org/wiki/India%E2%80%93Bangladesh_enclaves