Dhruba Hari Adhikary

While a bilateral dialogue with New Delhi is considered the best option for Nepal, it would be absurd to think Kathmandu has no other means to establish its legitimate claim over Kalapani area (about 395 square kilometres) under Indian military occupation since early 1960s - in the aftermath of the defeat it suffered during the war with China.
Eschewing their familiar rivalries, Nepal’s political parties represented in the parliament have shown a rare solidarity with Prime Minister Khadga Prasad Sharma Oli through consensus at an all-party meeting - to vote for a constitutional amendment for inserting the recently re-drawn map in the statute. And the support is not confined to the premises of the parliament. People on the street have expressed their determination to defend the territories Nepal historically inherited. That Nepalis are fiercely patriotic people, and therefore are openly resenting the hegemonic policies resorted to by the rulers in New Delhi. The Oli government’s stand on Kalapani issue has received overwhelming popular support which analysts say is “unprecedented”. Domestic disgruntlement has been side-lined.

Provocation
What provoked Nepal to raise the alarm in the midst of a global pandemic caused by COVID-19? The first provocative action surfaced on November 2, 2019 when the Indian authorities issued their ‘political map’ incorporating the territories belonging to Nepal. Nepal reacted promptly asserting its right over the Kalapani area. But the other side chose to ignore it. Nepal’s proposition for resumption of foreign secretary level dialogue aimed at resolving “outstanding boundary issues” could not elicit reciprocity. After all, Kathmandu’s overture was based on a joint pledge made during Prime Minister Narendra Modi’s first visit to Nepal in August 2014.
Suddenly, on May 8, Indian media reported that an 80-km track road to link Kailash Mansarovar in China’s Tibet was inaugurated by Indian defence minister on that day, clearly violating Nepal’s territorial integrity. Nepal was bound to react --- and react strongly---recording its objection to that “unilateral action”. There was an expectation that New Delhi would show readiness for urgent talks before situation became tense. But New Delhi’s interest in talks visibly lacked earnestness. New Delhi’s spokesman said dates for the secretary level talks would be finalised “after the two societies and governments have successfully dealt with the challenge of COVID-19 emergency”! When will that be? And why couldn’t the inauguration also wait till the disappearance of COVID-19?
Clearly, New Delhi intended to delay the talks further. This creates a basis for conjectures. For instance, had New Delhi had conclusive evidences to prove that Kalapani area indeed belonged to India why would the Indian authorities resort to these dilatory tactics?
To make the matter worse, Indian leaders designated their army chief, General MM Naravane, to say that Nepal was raising the border issue at someone else’s behest, not naming China specifically though. This is a ridiculous statement in the context of India’s own consistent admission over the years that there are “outstanding boundary issues” between the two countries in places including Kalapani. By directing the army general to issue a threat to Nepal, New Delhi forced Kathmandu to offer its reaction in a more vigorous manner. Besides, the bilateral matters handled previously by civil authorities were being taken up by the army, indicating that established institutions of the world’s largest democracy are now finding it expedient to cede even decisive diplomatic responsibilities to the military establishment.
Obviously, no one in Nepal is saying that it can take on India military. Nor can it confront with China. Both are nuclear powers. So is Pakistan which is located at Nepal’s extended neighbourhood. Conversely, can New Delhi’s rulers literally walk into Nepal with its military might (excluding Gorkhas) and occupy it permanently? Is it feasible—even if possible--- in the year 2020? This is inconceivable because military capabilities alone are not sufficient to destroy the existence of a country. In such a situation the United Nations would not have members now numbering over 190. The Indian army chief, who used threatening language to Nepal, is aware of the existing global order and its picture thereof.
In fact, the UN Charter prohibits one member-state to launch aggression and occupy another member-state’s territory. As a member-state like Nepal, India knows it well. There are numerous legal instruments endorsed by contemporary international laws which reject forcible occupation of territory. Says Professor Katak Malla, currently a Fellow at Stockholm Centre for International Law and Justice: “An occupying power cannot, under any circumstances, gain sovereign title over any part of the territory under its occupation.” Illegal occupation can’t be legal merely on the basis of occupation for a long time.
The UN also offers an option through several platforms, including General Assembly, the Security Council and the International Court of Justice. Had the Security Council not been a powerful UN body, India would not have lobbied for a permanent seat there. In Malla’s opinion, Nepal can also approach the secretary general to seek legal opinion through his Office of Legal Affairs. The OLA’s unit on treaties is relevant to Nepal’s requirements, including matters pertaining to legal status of the bilateral pact that India and China concluded in May 2015. Nepal’s protest notes, sent forthwith to New Delhi and Beijing, carry significant weight in the emerging situation.

Assertion
Knowledgeable people in Kathmandu contend that publication of a new map by India last November was tantamount to a “cartographic aggression”. On the other hand, by issuing a ‘political map’ covering the land it owns on the western front, Nepal government’s measure has essentially been a counter move. Even New Delhi conceded, on May 20, that what Nepal did amounted to a “cartographic assertion.” Understandably, there is a difference between being aggressive and being assertive.
Since other available options appear cumbersome and time-consuming, Nepal’s priority is to sit for a dialogue. And it coincides with India’s “Neighbourhood First” policy. All that is needed now is New Delhi’s sincere effort to implement its own declared policy. If India can amicably resolve its border disputes with Bangladesh, it can easily do so with Nepal.

(Adhikary is a journalist active since 1978 and writes on regional issues. He can be reached at dhrubahari@gmail.com)