Author(s): Atindra Dahal
Nepal has been having quite endless and unsolved ruffle with neighbouring nation India in light of border dispute. Since long, despite cordial and amicable nexus as well as having almost an airproof proximity in terms of culture, social values and other traits, often Nepal has to present a gesture of unceremonious unwelcome and decent denial over India’s highhanded stance on border issues, more precisely an act of an unethical encroachment. Given the situation, many scholars and analysts often urge and strongly counsel Nepal to internationalize the issue and bring it in notice of International Court of Justice, hereafter said only ICJ. This paper makes an engagement to analyse dozens of prominent bases on why not this will be a beneficial issue for Nepal; thus, Nepal has to more rationally explore other diplomatic routes to resolve it, or should forbid on internationalizing it.
Being an inductive analysis and inference, this paper adopts the methodology that blends the principle of archival and descriptive research. Only the secondary sources for required data and literature are consulted. It draws conclusion through paradigm of interpretation and researcher’s insight as well as understanding based on reviewed resources.
The paper holds huge gravity to entail people think rationally than in the direction which drags public attention and commands cheap popularity. As internationalizing the dispute further exacerbates the outcome and exasperates the next-door neighbour, Nepal should rather present an advanced alternative diplomacy. Thus, the paper may contribute the concerned advocacy take right most direction of rationality than mere purposeless popularity in intent of resolving the border ruffle.
India is the most oldest and closest too in account of Nepal’s foreign relation. To pin the point further, Dahal mentions, “Nepal established a diplomatic relation with India and China respectively in 13th June, 1947 and 1st August 1955” (Page: 47) and furtherance writes, “Nepal has multitude of relations with these two neighbouring nations- ranging from social, cultural, religious, geo-political, and economic to diplomatic relations”(47). Despite such cordial and cardinal knot from long time, there are lots of ebbs and flows on relation. Atop of it, border dispute with India, the adjacent nation, often greatly gulps the social and media space intermittently. India visibly did a cartographic assault over some places (approximately 392 square km) of the Western Nepal in 2020 and that blasted the debates and counter-debates on floor again. Succinctly highlights the India’s highhandedness and such intention of encroachment since long therefore urges to examine the conduct of foreign policy accordingly on situation of second pro-democracy movement. Caring the situation recurring time and again, there is robust rise on debate that should Nepal bring forth the agenda on desk of the UN or International Court of Justice. Most scholars regard the border dispute as a prominently profitable ground for naming and shaming India in international front [1-2].
To draw the most visible outcome of concern, write, “India and Nepal’s enduring border disputes have repeatedly provoked nationalist movements and protests in Nepal and alienated Nepal from India” (Page: 1) and even offer a finding that in most of such cases there lies an acute dearth of validated evidence as well to manage them and settle the ruffle. Furtherance, regards many external factors too do have equal interest and implications on them, thus, the dispute settlement mechanism and intention have to solicit genuine and earnest engagement of those parties as well. On ground of unresolved ruffle, worries about vital impacts from trade to civilian discord and division whereas has urged to place the national interest first though India might not have an honest effort and unbiased intention to bring it into mutual understanding alike have doubted. Often rates it as the form of various wars from physical to psychological as well, besides being a dispute and has considered it as one of most mooted contentions to be of vital importance from election to economic spectrum of the nation [3-9].
The border dispute has remained steady and slow motion though has been substantially creating stumbling setback for presenting Nepal’s confident presentation of the issues to Indian side, perceives. Bringing an opaque and wacky argument, believes that most dominating group in Nepali politics (Hill Brahmin and Chhetry Group) is intentionally side-lining the interest and concernof other marginalized groups, thus, it has resulted in densely fuelling the tension between two countries. There can be not even a distanced relation between cause and effect nexus between sides he has unscholarly presented. However, what so ever the reasons are, border dispute is the most recent manifestation of a complex and often tremendously tensed relationship between the two countries; and it even shapes Nepal’s domestic politics too as shared, so eloquently, by . Feels that such dispute going unsettled for considerably long period shall forge and plunge Nepal into closeness of China and that may be a type of loss to India as well. An independent and democratic India, in and from 1947- after 190 year-long oligarch rule of British- was expected to usher a fresh start in Nepal-India relation that was principally agreed on the maxim of equality, independence, sovereignty and mutual respect and benefit. Notwithstanding the expectation, India has seldom upheld and taken those principles on note through practice, concludes. In addition, this has been apparently and intelligibly manifested on regular casts and intermittent shows of border disputes as well. Further elaborating the need of India’s amicable and friendly proactive initiation over the debate and dispute, too softly condemns Nehru’s vision on broader issues that denied the need of Asian unity cum solidarity then writes “based on India’s internal needs and conditions, its history, traditions and way of life…to develop India economically” (Page: 95) whereas thinks Indian foreign policy is being inflexibly guided and shaped by Neharuvian idea of ‘Hard Realism’ which was further cemented by his daughter Indira Gandhi [10-16].
One of prominent scholars from India itself, names India on exorcising colonial legacy and behaviours with paradoxes as like explores the under-covered paradox between closeness and detachment. Ceding over the perception, unanimously, in their different studies, have sufficiently highlighted that India’s relentless reluctance to resolve the case has been quite problematic and there are such disputes over approximately 65 places from tiny to tremendous scale of territorial areas. Have believed that the land about of 500 km area is under dispute since long whereas regard border issues between these two countries as the arch indicator of problem that has even turned these countries come into a hostile posture at many forums. Giving a delightful drive around, regard that resolving border issues between countries substantially sets the relation into new height in various fronts from internal harmony to regional solidarity to India’s understandably fair aggrandizement in international power equation as well. Nonetheless, a fact ought not to be gainsaid that resolving the issue undergoes rigorous round of challenges if referred. Therefore, reaching on an agreeable resolution over the ruffle through any means and at any cost is one of pressing obligations for both the nations [16-33].
One of prominent scholars from India itself, names India on exorcising colonial legacy and behaviours with paradoxes as like explores the under-covered paradox between closeness and detachment. Ceding over the perception, unanimously, in their different studies, have sufficiently highlighted that India’s relentless reluctance to resolve the case has been quite problematic and there are such disputes over approximately 65 places from tiny to tremendous scale of territorial areas. Have believed that the land about of 500 km area is under dispute since long whereas regard border issues between these two countries as the arch indicator of problem that has even turned these countries come into a hostile posture at many forums. Giving a delightful drive around, regard that resolving border issues between countries substantially sets the relation into new height in various fronts from internal harmony to regional solidarity to India’s understandably fair aggrandizement in international power equation as well. Nonetheless, a fact ought not to be gainsaid that resolving the issue undergoes rigorous round of challenges if referred. Therefore, reaching on an agreeable resolution over the ruffle through any means and at any cost is one of pressing obligations for both the nations [16-33].
In the same front, notes India’s big-brother attitude even at the time of promulgation of constitution 2015 as well and too admonishes then condemns India on not being parentalistic rather being hegemonic over Nepal even by pressuring into law making process.also align with the ideas by some scholars who have been advising Nepal to get out from buffer zone mindset at least to ensure a clear alignment. Too notes India’s foreign policy as of intention with making Nepal its backyard. Write, “Kalapani was regarded as a ‘safe zone’ for Indian troops to be stationed, as its high altitude of 20, 276 feet was ‘effective defence point against the Chinese’” (Page: 45). Believes that India has misinterpreted Kali River converting it into a small rivulet. Because of same dispute, worries that Indo-Nepal relation- well bounded by various ties- has started germinating and grooming anti-sentiment tune, especially after blockade of 2015. Believes that India’s such move has even seemingly violated the faith enshrined on UN charter that obligates principle of mutual respect of territorial integrity and sovereignty of each other nations. Therefore, resolving it is a demanding demeanour for both the nations [36-40].
Archive expediently evinces that some cases regarding border disputes have been prosecuted for ICJ’s jurisdiction. Kenya Vs Somalia (2012), Libya Vs Chad (1990), Belize and Guatemala (2008), Nicaragua Vs Republic of Honduras (1999), Niger Vs Burkina Faso (2013) are some to worrisomely catch wider attention. Ergo, following the same track over the recently tailored dispute may have been assumed as an obsessed priority among many of cited scholars and analysts.
Nonetheless, every popular idea won’t be always rational too. Famous scholar alarms people to muse many times before speaking or taking any action [41]. The advice elegantly fits here as worthy reference for umpteen reasons as following the suit in ICJ might misfit us on different grounds.
The dispute, on many grounds, should not be swiftly and suddenly internationalized. No heavy dosage of heartlessness and scratchy highhandedness ought to be forged. It always becomes rational enough to wait on attempting with alternatively modest and meaningful methods of newer version of negotiation and cordial conversation on decent cause of resolving the ruffle with consent, confidence and complacency of each other. Laying stress on the need of it, writes, “I hope that these two countries solve this issue through discussions [42]. This is very important because the connection or relation between India and Nepal is very strong and deep” (P: 180). Even, at least more than a dozen of reasonable bases understandably tender the floor to assimilate better necessity that Nepal should forestall to be excessively hyped and awkwardly much mired at raising it on the global front, thus, should prioritize diplomatic dialogue.
First, this casts Nepal a golden opportunity to present adequate prudence and profound prowess of resolving the issue herself. Doing so makes her prestige high in international level as well as ensures an accruing psychological satisfaction among citizen as well. Book titled Border and Territorial recommends self-served approach as the best and beautiful method to heal such a deal [43]. Draws that dialogue may eventually reap better result at the end of both conflicting nations [44]. However, pushing it on court of International Court proves Nepal incapable and having no calibre to address the ruffle self. This move unfolds her incapacity and inaction needed for the moot.
Second, the maps presented from her side are so controversial that not any standard and uniformed evidence is ready. From 1816 to 2016, much asymmetric maps are sketched and published regarding borders. Since the situation perfectly matches with the phrase ‘Map Row’ by, on which basis shall Nepal file a petition and solicit jurisdiction? briefs that India has expropriated more than 60,000 hectares of land in 21 districts of Nepal and talks about 71 places of disputes, has said neither does Nepal have record for all. Her claims themselves are with baggage of controversies and disparities. It may enervate her legal ground [45-47].
Third, India has clearly expressed repudiation and extended statement of denial to face ICJ on border dispute for which terms ‘Noncompliance of ICJ judgment in India’ [48]. So, no any border confrontation of India with other nations shall be subject of hearing in ICJ as India has yet not been signatory for such provision.
Forth, there shall be easy access to the third party to have overarching presence and manipulation over Nepal. It avails ground for many international agencies, panels, forces and forums come to Nepal, take space and make stronghold on Nepal and its land to use her for their purpose. Then, Nepal ought to cost to negotiate and face their micro-management at every deal. Nepal may be a fertile fort for foreigners to cause fight (which is futile for Nepal) for their status and in intent of containing China as prognosticates then alarms leaders to remain highly alert for it [34].
Fifth, it debunks highly touted over-rated advanced legal system. Oriental civilization and resolution methods noticeably rely on modus operandi of arbitration, one of the key judicial systems of eastern civilization as rightly elaborates, in lieu of the litigation system of justice as given heightened priority these days. Internationalizing it makes a side winner thus places countries in endless rivalry and hostility. Believes that arbitration always cultivates and promotes relation whereas litigation converts into life-long foe; and even draws an identical inference. In litigation, lifelong angularities and enmity will be cultivated, feeling of revenges arises. Century long harmony and pact are destroyed over the night [49-51].
Sixth, it is foundational necessity that both countries should have negotiated often and have failed to reach to an undeniably agreeable resolution in order to internationalize any issue. The condition is never so and India has expressed repeated readiness to sit for dialogue. Even the recent response from India over Nepal government’s note reconfirms the counter-side’s willingness. Presents two of three arch reasons of brining Qatar-Bahrain dispute over Hawar Islands to ICJ as: “1) the inability of Arab states and the Gulf Cooperation Council (GCC) to mediate the dispute and 2) incentives for bilateral and regional cooperation on salient issues between the two states” (79). Nepal has never gone through any of phases. The case of Iraq and Kuwait, discussed by , is also resolved sans involvement of UN or ICJ. Such situation should be considered as an imitable reference for further course [52-53].
Seventh, there has been nil work to raise Nepalese sentiment among the residents of said encroached zone. How does their emotion count once resolution takes on? Provided the body to settle the ruffle decides to care and count the views of denizens on the disputed land, will that make any weight on her side? Will people there exhibit the readiness to be in Nepal? Definitely sure is that Nepal won’t get response at that path. Referendum,often calls ‘death sentence’, for such type of dispute resolution method never reaps positive outcome at her side. As Nepal has not cultivated Nepali feelings and belongingness to nation among residents there- the arch indication of nation’s path to failure as indicate and for same name ‘Civic Culture’- Nepal can never have verdict on her side [54-56].
Eighth, decision of ICJ will be advisory, not obligatory and binding. The procedure is so lengthy, complex and technically uphill task that Nepal can hardly afford financially, administratively and legally while mooting. Perceiving it as the capacity of a sovereign nation, writes “final and absolute political authority rests in the political community, and no final and absolute authority exists elsewhere” (Page: 19). Thus soliciting solution from beyond political leadership of two nations shall be best hollow attempt. Based on various past precedents and record of verdict over disputes, infer a fact that judgement from ICJ will be neither productive and positive often. Therefore, on the basis of procedure and product, approaching to ICJ will not be any way helpful [57-62].
Ninth, taking the ruffle on global front lets Nepal have promotion, but not necessarily the desired result. Does Nepal look for upshot or mere a promotion? Let’s not overlook the reality.
Tenth, big-power nation will have big-power alliance. Goat hordes for goat, and so does a sheep. Believes that disproportionate development status and standard may cause nations to have deep disparity in course of gaining international attention. Most of ICJ members and bench fellow may support to and incline at side of super power. There may be many other points of power to manipulate the decision. Observation by on dispute over Persian Gulf concludes similarly whereas presents the views that Qatar -Bahrain and Hawer Island case has cemented much distrust and cake of criticism against ICJ. Thus, Nepal is less likely to have favour from the members there [63-65].
Eleventh, it hampers the harmony, foils the fabric of society, trade and vector of life for mass. Nepal does have a unique relation with India; further stressing on it, write, “Many aspects of the NepalIndia relations are indeed unique, and these relations are not just confined to state-to-state relationship. These are connections that cut across the grassroots people” (Page: 17). Nepal is heavily relying on India on every micro to macro level need i.e. 90 percent of international trade and 80 plus percent import is from her and rest comes through her. About 2 million Nepalese are in short-term seasonal employment in India. Rates India as one of potential plots for Nepalese for easy foreign employments in both the short terms and long term modes. Calls it unique friendship and cooperation between people to people. Any irrational and hasty step may annoy a lot tending to cause larger harms. Besides, government to government or state to state relation, Nepal and India has more strong people to people relation; and, internationalizing the dispute might create rupture and disharmony at that level [66-68].
Twelfth, being hurried to internationalize it, India will seldom have moral pressure and ethical obligation to proactively resolve issue in amicable manner. Rather, it may try to lobby and manipulate international community thus may earn relatively larger leverage and stronghold to granulate Nepal. Therefore, Nepal should not wage suicidal scandal but wisely act ahead! As has rightfully remarked that every popular idea won’t always be a rational too, Nepal should stick at rational ways [69].
Nepal should try to sit on dialogue, appeal through every means. write “to resolve the dispute, Nepal and India formed a Joint
Technical Committee (JTC) in 1981, which was successful in resolving 97 percent of the border issues [8]. The remaining three percent, approximately 606 square kilometres of disputed area, is the crux of the protracted border disputes (Page: 1)”. Records reveal that Nepal has succeeded to resolve disputes to some extent; additional effort shouldn’t be undermined.
Nepal should take Indian apparatus like university people, students, entrepreneurs and lawyers to request and pressure their government to not harm, hurt and hegemonize over Nepal. Besides G2G, other channels like E2E and P2P may pivotally work. ‘Track Two Diplomacy’, a key tool of resolving national level ruffle as heavily focused by, can be enormously instrumental. Owing to the one of the appealing outcomes of COVID-19 crisis, the virtual conversation, which is one of key lessons for post pandemic world, as suggests, should be extremely utilized for intensive engagements of multiple sides to generate such discussions into various levels [70-71].
India being global power should take neighbours in confidence and company. This step might sufficiently discourage neighbouring nations to endorse the motion positively when India tailors its candidacy in the UN Security Council. Owing to these facts, if Nepal raises the issue confidently and soberly, India may present lenient enough readiness to resolve the ruffle through gentlemen assembly and efforts.
Many such disputes are resolved through diplomatic dialogues. And still, being passionate enough to engage into very method shall credit Nepal with output as needed. Various researches chart a data that among approximately 150 such disputes, more than 95 percent are bilaterally settled. Therefore, lays stress on amicable and mutual resolution of the ruffle. Nepal should mainstream herself as well in the very rhythm [72].
Better and beneficial negotiation, as soft power trick in line with scholar, awards Nepal capaciously. Riding through any other ways may turn to be harsh and harmful as well [73].
Therefore, on gravity of above elaborated more than dozen of reasons, Nepal should refrain from hastily brining the moot into Court of International Justice. She should try honest and humble bi-lateral means [74-75].
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