The concept of statehood has raised the importance of border system. The idea of statehood provides an exclusivity and a sense of ownership. Nepal is surrounded by two countries, China on the north and India on the south. Countries with the economic magnitude such as India and China are going to dominant their neighbors under such circumstances. While Nepal has been considered as a yam between two boulders, China and India. We require negotiators like Ajit Doval to resolve border issue who was successful to resolve the issue between two tigers during the Doklam Crisis. But these border issue and national security has also been used as mode used by the governments around the world to distract their citizens from national events.

Chinese President Xi Jinping statedfriendship between China and Nepal is ‘close as lips and teeth’. ‘Our is a Rote-Betika ka sambandh’, meaning a bound of family and kinship was reiterated by Sushma Swaraj, Former Foreign Minister of India. These sweet words have always been reiterated both by the government of India and China about their relationships with Nepal. Both countries claim that they are respecting Nepal’s sovereignty and territorial integrity.

Despite all those confrontations we are a part of eastern civilization and both the leaders understand the importance of Nepalese Civilization which is a source of both Hinduism and Buddhism. Xi Jin Ping and Narendra Das Modi bit have been advocating for cultural revolution in their respective ways. We cannot afford to play the blame game with our neighbors, there is a need for a strong leadership to negotiate with these countries Nepal has signed a boundary treaty with China, the northern counterpart, on 5th October 1961. Similarly, Nepal and India have been trying to resolve the boundary demarcation and management issue through Joint Technical Boundary Committee since 1981.

But the consistent encroachment and Lipulekh treaty reveals that the two giants are ready to sabotage Nepal’s sovereignty and integrity for their national interest. The northern sleeping lion which had until been succeeded in showing international community that it never intervenes in other issues, but as the signatories of agreement it shattered it’s claims. After the rise of Modi-led government in India we had hoped a change in Indian policy stance on Nepal. Unfortunately, the Lipulekh controversy showed that it has a similar policy stance as congress(I). The rhetoric and action of both our brothers do not match.

Lipulekh is a Himalayan pass between Nepal, India and China connecting the North Western cornered Byash valley of Nepal and the Indian state of Uttarkhand with the old trading town of Taklakot(Purana) in Tibet. It has been used since ancient times by traders, mendicants and pilgrims transisting between Nepal and Tibet. The issue that we dealing with has a repercussion with our national sovereignty and territorial integrity. Point number 28 of the 41 point commniques between the India and china states that two sides India and China,”agreed to hold negotiation on augmenting the list of traded commodities and expand border trade at Lipulekh pass.The Indo-China hegemonic intend may lead a way for ‘Bhutanization’ and ‘Sikkimization’. Encroachment is against the Customary International Laws, norms and values. Therefore, there is a danger of international recognition if the Nepal does not take immediate initiatives.

Historical facts that shows its ownership to Nepal.

The areas located between Limpiyadhura, Lipulek and Bhanjyang are ownership of Nepal. Historical documents and achieves demonstrate that it falls on Byas V.D.C of Darchula district. The census carried out at the villages of Kutni, Nabi and Ganji by Nepal Government in the year 2018 B.S. reaffirm our claim on areas located between Limpiyadhura, Lipulek and Bhanjyang. Yet the government of India has constantly refused to accept the maps drafted by the British India Company. Post Sino- Indo War 1962, India seems to understand the geo-strategic importance of the area, that had led to Indian Army setting up a camp on Kalapani area. Although the Indian government had termed it as a temporary step, the Chinese Ambassador to Nepal at Reporters Club condemned the Indian move and strongly advocated for Nepal’s ownership and sovereignty.

Unsuccessful Chain of Events

There have been numerous attempts made by Nepal and its representatives to prevent encroachment. When Ram Chandra Poudel, the speaker of the parliament, tried to enter Kalapani he was stopped by Indian paramilitary force; SSB(Special Security Bureau). Kathmandu Metropolitan Municipality had also raised the issue to the then President of India, K.R Narayan, during his official visit in 2055 B.S. In the same year ANISU (All Nepal Independent Student Union) launched a long march from Kathmandu to Kalapani compromising 60 members and 8 Reporters. Unfortunately, the Indian para military force stopped them at 600m from the military camp. Followed by a press release in same year on Jestha 24 organized by Indian embassy claiming Kalapani as an old and complicated historical issue. Likewise, on Jestha 27 Indian Ambassador to Nepal in public program said that Kalapani is Indian territory. In response, foreign secretary at that time had called on Indian ambassador and strongly criticized the act.

On Jestha 25,2055 then incumbent P.M Grija P. Koirala said Kalapani belongs to Nepal. However, Atal Bihari Vajpayee, then P.M of India did not give a clear answer when a Koirala raised on issue during a meeting at Colombo on Shrawan 12 ,2055. The Joint Technical Level Boundary Committee (JTC) was set up on Ashar 12,2055 to resolve the border dispute and complete the demarcation of the Indo-Nepal border including the Kalapani issue, and if necessary, suggest measures to resolve the problem.
While there has been several exchange visits on diplomatic and bureaucratic level as a Joint Statement released on 22 August 2009 at the end of the four-day state visit of Nepalese Prime Minister, Madhav Nepal, to India, which stated that the two countries have agreed to “consider steps to further facilitate cross-border arrangements in order to resolve border related issues.”

The then external affair minister Pranab Mukharjee visited Nepal in 2065 BS Mangsir 10. During that visit, he told that Kalapani and Susta border dispute should be solved through dialogue. At several meetings of the Nepal-India Joint Technical Boundary Committee, the Nepalese side tried to put the Kalapani dispute on the agenda. But nothing significant seem to happen. Similarly, the current Prime Minister of India, P.M Narendra Modi, representing the state has also made an agreement with Nepal to settle the boarder issues including the Kalapani forming a joint team of secretaries of the countries.

Steps to taken into to prevent further damage

Indo-China cordiality with Nepal would be further expanded and broadened if this issue is solved. The settlement should be done on the basis of Principle of Equality, Friendship and Mutual co-existence. For a long-term solution of the border dispute, proper and early demarcation of the Indo-Nepal border is a must. We should immediately mobilize our diplomatic channels for negotiation with India and China.

Nepal should show courage to send diplomatic protest letter to both the giants and conduct border administration of the both sides within 3 months. As part of the border administration the origin of river should be identified as per as Watershed Principle as practiced by most of the countries. Besides this, the border ordinance should be renewed between 10 to 20 years period which is regarded as important work of the border administrators.

The immediate action should be to declare state of emergency in Darchula district where encroached territory falls to gain international attention. Article 273 of Constitution of Nepal states that the emergency power shall be used if a grave emergency arises in regard to the sovereignty and integrity of Nepal or security of any part.

Recommendations
Nepal should not hesitate to review its one-china policy until the treaty is withdrawn. Also, Nepal should clearly state to India that it will not support for India membership in permanent member of security council. This will give a huge pressure to India at a time when India is claiming itself as representative of South Asia. As a result, questions will be raised would India’s hegemonic nature towards smaller countries in the region qualify it to achieve the permanent seat in security council? The government should raise this question while dealing with India which needs smaller countries vote in U.N. election. Similarly, legally Nepal can raise concerns on the encroachment by India pursuant to Article 2(4) of U.N. Charter states that all members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations. By standing on this article the issue should be raised on the United Nations. Nepal should call an emergency meeting of SARRC leaders pursuant to SARRC charter in regards of this issue and amend the SARRC charter to laid issue of bilateral importance on this forum which will also pave the way to bring Kashmir issue. According to the existing SAARC charter, merely issue of multilateral importance can be presented. It is better to present the issue to an independent international body like International Court of Justice in the Hague similar to the case that was brought by Thailand for the return of Preah vihear temple from Cambodia. Basically, there are two reasons to continue encroachment: one reason is political instability in Nepal and another is political parties have been busy appeasing neighbors for government formation. The absence of a specialized border guarding force on the Nepalese side also makes it difficult to establish an institutional mechanism for the protection of our territory. If the small chunk of land continues to encroach, at last, large chunk of land can be encroached and then there can be danger of existence of the country itself. Open border system seems to be the major problem behind border encroachment.

Sampurna Basnet & Sagar Baral
(Students of Kathmandu School of Law)