INDO- NEPAL BORDER DISPUTE AND INTERNATIONAL LAW (Mid-term project in the

subject of Public International Law) PROJECT (Public International Law) Submitted By:
Submitted To: Mansi Jain Mr. Shashak Shakhar B.B.A. LL.B. (Hons.) (V Semester) Faculty of
Law Roll No. 1622 National Law University, Jodhpur National Law University, Jodhpur (Spring
Session) (July-November 2020) INDEX
Index ...............................................................................................................................................
2 Research
Objective ......................................................................................................................... 3
Research Question ..........................................................................................................................
4 Research
Methodology ................................................................................................................... 5
Introduction .....................................................................................................................................
6 The ICJ, Jurisdiction and Treaty
Interpretation .............................................................................. 7 Treaties Between India and
Nepal .................................................................................................. 8 India-Nepal treaty of
Peace and Friendship, 1950 ...................................................................... 8 Treaty of Sugauli,
1816............................................................................................................... 8 The Nepal-India
Joint Border Inspection Mechanism of 1981 and the Nepal-India Joint Border Management
Committee, 1997. .................................................................................................. 9 International
Law .......................................................................................................................... 10
Interpretation of River Border Treaties .........................................................................................
10 Evidentiary Value of
Maps ........................................................................................................... 11 Analysis of Nepal’s
Claims .......................................................................................................... 13 Violation of Treaty
Law............................................................................................................ 13 Effective
Control ....................................................................................................................... 13 How to
solve disputes of the Lipulek-Limpiyadhuraborder? ....................................................... 15
following international law ....................................................................................................... 15
non-state actor in international Law ......................................................................................... 16
acquire and exercise its territorial sovereignty ......................................................................... 16
Interpretation of Exsisting Treaties ........................................................................................... 17
practices in the international community .................................................................................. 17
Conclusion ....................................................................................................................................
18 RESEARCH OBJECTIVE Analyse interplay of of international law in border dispute.
Evaluate stance of of both the Nations India and Nepal. Suggest dispute resolving mechanism
by taking aid of international law. RESEARCH QUESTION 1. What is the dispute between
India and Nepal? 2. Does ICJ have jurisdiction? 3. What are the bilateral treaties signed between
the nation? 4. How river border treaties are interpreted? 5. What is Nepal’s Stance? 6. How can
the dispute be resolved? RESEARCH METHODOLOGY The methodology used in this
particular article were basically secondary data which were collected from the internet, books,
articles and blogs. These data collected was used to do a study international law on the dispute
between India and Nepal. This research paper would basically deal with the legal aspects of the
issues mentioned above. INTRODUCTION The India–Nepal border is an open international
border running between India and Nepal. The 1,770 km long border includes the Himalayan
territories as well as Indo-Gangetic Plain. India and Nepal have border disputes over Kalapani -
Limpiyadhura - Lipulekh trijunction between India-Nepal and China and Susta area (West
Champaran district, Bihar).1 Kalapani Region: Kalapani is a valley that is administered by India
as a part of the Pithoragarh district of Uttarakhand. It is situated on the Kailash Mansarovar
route. Kalapani is advantageously located at a height of over 20,000 ft and serves as an
observation post for that area. The Kali River in the Kalapani region demarcates the border
between India and Nepal. The Treaty of Sugauli signed by the Kingdom of Nepal and British
India (after Anglo-Nepalese War) in 1816 located the Kali River as Nepal's western boundary
with India. The discrepancy in locating the source of the Kali river led to boundary disputes
between India and Nepal, with each country producing maps supporting their own claims. Susta
Region: The change of course by the Gandak river is the main reason for disputes in the Susta
area. Susta is located on the bank of the Gandak river. It is called Narayani river in Nepal. It
joins Ganga near Patna, Bihar. Kali river originates from a stream at Limpiyadhura, north-west
of Lipu Lekh. Thus Kalapani, and Limpiyadhura, and Lipu Lekh, fall to the east of the river and
are part of Nepal’s Dharchula district. Lipulekh was deleted from the country’s map by the kings
to get favours from India. The territory of Kalapani was offered to India by King Mahendra after
the 1962 India-China war who wanted to help India’s security concerns due to perceived
lingering Chinese threats. Kalapani was not a part of Nepal-India dispute. It was Nepal’s territory
that the king had allowed India to use temporarily. The new map is in fact a document that was
in circulation in Nepal till the 1950s. The issue of border dispute is becoming futile day by day.
The international community has started showing concern in the dispute. It will be
internationalized in due course of time. Nepal is also looking for a possible avenue to approach
international forums for the resolution ofthe dispute in case all peaceful measures are
exhausted.The next chapter will explain the best practices for the interpretation of the treaty by
the world court in boundary disputes and the possibilities of Nepal to approach the International
Court of Justice (ICJ).2 In this project, I will try to analyse the border dispute between India and
Nepal and play of International Law in it. 1 Nidhi Jamwal, As a river changed its course, a
village on the India-Nepal border became disputed territory, Scroll.in, 19 March 2017 2 Sugam
Pokharel, Nepal issues a new map claiming contested territories with India as its own, CNN, 21
May 2020. THE ICJ, JURISDICTION AND TREATY INTERPRETATION3 The ICJ is defined
as the ‘principal judicial organ’ of the United Nations by Article 92 of the UN Charter and by
Article 1 of its Statute. A way whereby the ICJ may have jurisdiction is through the declarations
recognizing as compulsory the jurisdiction of the Court (optional clause), which takes the form
of a declaration of its acceptance, deposited by the State concerned with the United Nations
Secretary-General. These declarations are provided for in Article 36, paragraph 2, of the Statute.
The ICJ provides two forms ofjurisdiction in case of a dispute involving the state and state.The
jurisdiction of the Court is based on the consent of the States to which it is open. In a specific
case, the Court has jurisdiction if the Parties have consented to the Court settling their dispute.
This consent may be expressed using unilateral declarations (also referred to as ’optional
clause’), in treaties,or through special agreements. It can also be expressed after the Court has
been seized (forum prorogatum). 4 The ICJ only provides a forum for disputes among the state
and is also based on various factors. The compulsory and advisory jurisdictions are reflected in
the ICJ statutes and so far case practices at the ICJ are relied on these two forms of jurisdictions.
As the ICJ lacks (automatic) compulsory jurisdiction, its Statute provides for the optional clause
(Article 36(2)) of acceptance of the Court’s jurisdiction, as well as for compromissory clauses
(Article 36(1)). As to the latter, Article 36, paragraph 1, provides the basis for the Court’s
contentious jurisdiction in “all cases which the parties refer to it and all matters specially
provided for in the Charter of the United Nations or treaties and conventions in force”.The
foundation of compulsory jurisdiction lies, ultimately, in the confidence in the rule of law at the
international level, amidst the awareness that we face a jus necessarium, and no longer an
unsatisfactory jus voluntarium. The TravauxPreparatoiresof Article 36 of ICJ must be studied to
build comprehensive ideas on the jurisdiction of the court. The treaty interpretation between
Nepal and India or the treaty of 1816 defining the border between these two nations must apply
to establish the notion of treaty interpretation at the international law. Most of the boundary
treaties are subject to international law and when the disputes are raised at the world court, the
established principles are needed to be upheld. These are four schools applicable for the
interpretation of any treaties which will be also relevant to interpret the provision related to the
boundary between Nepal and India.5 3 STATUTE OF THE INTERNATIONAL COURT OF
JUSTICE, 1945. 4 Marshall, Julie G., Britain and Tibet 1765–1947: A Select Annotated
Bibliography of British Relations with Tibet and the Himalayan States Including Nepal, Sikkim
and Bhutan, ISBN 9780415336475. (2005). 5 D.H.N. Johnson, Acquisitive Prescription in
International Law, 27 BRIT. Y.B. INT’L L. 332, 345 (1950). TREATIES BETWEEN INDIA
AND NEPAL INDIA-NEPAL TREATY OF PEACE AND FRIENDSHIP, 1950 In the year
1950, “Government of India” and “Government of Nepal”, acknowledging their past ties and to
perpetuate peace between the two nations, had entered into a “Treaty of Peace and Friendship”.
Under Article 1 of the above-mentioned treaty both the nations had agreed to ensure peace and
friendship between the two nations and also agreed to acknowledge and respect “sovereignty”,
“territorial integrity” and “independence” of each other. The Nepal government had time and
again contended that the 1950 Treaty is obsolete and outmoded and there is a need to revise the
treaty. Several arguments are raised to strengthen this claim. Professor Lok Raj Baral, the former
ambassador of Nepal to India had “treaty was concluded on a different setting and with a
different objective. The 1950 context is no longer relevant.” Also, professor Kamal Prakash
Malla had stated that (page number 178) “in practice, the treaty has been modified to a
considerable extent.” Though the arguments and the strife of opinion raised by the Nepal
government do not hold water, the Nepal government under Article 10 can terminate the said
treaty by providing a one year of prior notice. However, a mere “change of government” or a
“change of circumstances” does not invalidate it. The rule of “rebus sic stantibus” which means
“fundamental change of circumstances” mentioned in the “Article 62” of the “Vienna
Convention” states the same. In the International arena, the circumstance keeps on changing and
a mere expression of a change in the bilateral relations is not a ground for termination of a treaty
under the said article. Even if there exists a substantial shift in Indo-Nepal relations to demand a
change in the Treaty, the changes had not resulted in a radical transformation which prevents
Nepal to fulfil its obligations mentioned in the agreement. Hence, until Nepal’s government
releases notice for the termination of the treaty, both the nations are obliged to follow the rules
and obligations mentioned in it.6 TREATY OF SUGAULI, 1816 The treaty of Sugauli, 1816
was signed between the East India Company and king of the Nepal, Bikram Shah to maintain
peace and friendship with each other. Under Article 5 of the mentioned treaty, the king and his
successor were renounced from the land present to the west of the river Kali. The present dispute
between the two nations is over the sources of this river and the bone of contention lies between
the historical accuracy of a tri-junction land of KalapaniLimpiadhura-Lipulekh which fall
between these two sources. The Nepal government claims that as per Sugauli treaty, the tri-
junction belongs to Nepal and the construction of the road connecting the “Mansarovar route” to
“Lipulekh pass” is in violation of the mentioned treaty. However, the maps released after the
year 1880 depicts the tri-junction as a part of British India and the government of India in the
past had established effective control over this region. The road was not built overnight and the
authorities in Nepal were aware of the changes across the 6 Dhungel, Dwarika Nath; Pun, Santa
Bahadur, "Nepal-India Relations: Territorial/Border Issue with Specific Reference to Mahakali
River", FPRC Journal, New Delhi: Foreign Policy Research Centre – via academia.edu(2014).
region for years but it is for the first time since 1860, the government had released a new map
with the “cartographic accretion” of the tri-junction. 7 THE NEPAL-INDIA JOINT BORDER
INSPECTION MECHANISM OF 1981 AND THE NEPAL-INDIA JOINT BORDER
MANAGEMENT COMMITTEE, 1997. The Joint Technical committee worked for around 26
years and completed 97 percent of the boundary problems which may be categorised as relatively
minor in nature. The remaining three percent was claimed to be beyond their capacity to resolve.
This area includes the KalapaniLimpiyadhura—the largest encroachment of 370 square
kilometers, Susta of 24 kilometers and various other spots occupying around 15 kilometers.
There are around 71 spots covering a total of 39 606 square kilometers. One of the most
important reasons behind the continuation of such a status is the unavailability of old maps and
documents for demarcation. There are also ‘crossoccupations’ that require major identification
here.8 7Karki, Rohit & Paudel, Lekhnath, Challenges to the Revision of the Nepal–India 1950
Peace and Friendship Treaty. Strategic Analysis, 39. 402-416. 10.1080/09700161.2015.1047220
(2015). 8 Chatterjee, Bishwa B., The Bhotias of Uttarakhand, India International Centre
Quarterly, 3 (1): 3– 16, JSTOR 23001864. (1976). INTERNATIONAL LAW In International
law, “ownership” of land is important since it is “sovereignty” over a territory which defines a
state. The tri-junction falls under the territory of India based on two principles, First, “Uti
possidetis juris” which means that the independent states will acquire the boundary imprinted by
the colonial government and second “colonial effectivités”, which is, understood as the actions
of the state which depict effective control over a particular region during the colonial period. The
presence of maps of the colonial era clearly depicts that the tri-junction was administered by the
colonial government and hence now it belongs to the territory of India.9 INTERPRETATION
OF RIVER BORDER TREATIES International law is no stranger to the ambiguities posed by
geographical features in boundary agreements. A case in point is the 2002 border dispute
between Nigeria and Cameroon, where the International Court of Justice (“ICJ”) had to identify
the mouth of the river Ebeji. Nigeria had claimed that the mouth of Ebeji had changed over time.
Acknowledging that the river did not indeed have a single mouth, the court sought to settle this
dispute by ascertaining the intention of the parties at the time of the border agreement and
making use of maps to identify the location of the mouth of Ebeji.10 Here, in a manner
reminiscent of the Kalapani dispute, the parties had to grapple with the indeterminacy of river
borders and the resulting ambiguities in a boundary agreement. While resolving this issue, the
court found it fit to rely on the original intention of parties as well as cartographic evidence. Such
an approach was typical of the “Intent School” of treaty interpretation, whereby emphasis was
placed on the intention of the parties to the treaty. In a similar vein, it might be useful to glean
the original intention of the parties to the Treaty of Sugauli, since its terms are unclear as to the
delineating river channel. Towards this end, examining the travaux préparatoires of this
treatywould be an instructive resource. However, both India and Nepal are yet to furnish any
evidence, cartographic or otherwise, that predate the treaty or qualify as its preparatory works.
Instead, both states have chosen to rely on surveys and cartographic exercises undertaken after
the conclusion of the Treaty.11 For instance, Nepal has mostly cited topographic surveys
published by the East India Company from 1820 to 1846. Additionally, its former director-
general of the Department of Survey has drawn attention to maps prepared by the Survey of
India from 1850 to 1856. For their part, Indian officials have also referred to a post-dated map
for advancing their claims, namely an 1875 map drawn up by the British colonial government.
The logic behind this approach can be attributed to the teleological school of treaty
interpretation. Arguably, under customary international law, subsequent practice of parties is
prioritised as a primary source of treaty interpretation, over and above secondary sources such as
travaux préparatoires. This position is also reflected in the Vienna Convention on the Law of
Treaties (“VCLT”; see articles 31 and 32). Although India and Nepal have not yet ratified the
VCLT, it would be in their interest to 9 Stephen Groves, India and Nepal Tackle Border
Disputes, The Diplomat. (22 September 2014). 10 Oscar Schachter, International Law in Theory
and Practice, 74 (1991). 11 Sookyeon Huh, Title to Territory in the Post-Colonial Era: Original
Title and Terra Nullius in the ICJ Judgments on Cases Concerning Ligitan/Sipadan, European
Journal of International Law, Volume 26. (2008). demonstrate that subsequent surveys and
cartographic exercises in the Kalapani-Limpiyadhura region have shown the river boundary to be
coextensive with their respective interpretations. Indeed, Nepal, which is a signatory to the
VCLTand India, whose Supreme Court has affirmed the customary status of the VCLT, would
have much to gain from citing maps as subsequent conduct that affirms their position in relation
to the Treaty of Sugauli. Against this backdrop, it must be pointed out that the 1875 map cited as
evidence by the Indian authorities does not carry a Nepali certification. On the other hand, Nepal
claims that the maps prepared between 1850 and 1856 were issued by the Survey of India with
the participation of Nepali authorities. While this has been consistently denied by India, if it were
to be proven otherwise, it might prima facieweaken India’s position. After all, a cooperative
cartographic exercise would be better indicative of subsequent practice, as compared to the
unilateral drafting of a map. This brings us to the next bone of contention, i.e., the evidentiary
value of maps under international law. EVIDENTIARY VALUE OF MAPS Maps have always
figured prominently in territorial disputes. In the past, courts and tribunals were loath to place
excessive reliance on them, particularly when they described territory of which the creators had
little knowledge or when they were sketched in order to promote a country’s claims. In fact,
maps were mostly treated as secondary or hearsay evidence with little or no value.12 With the
establishment of the ICJ, however, there arose cases where this question had to be settled more
conclusively. In a 1953 case between the United Kingdom (“UK”) and France, where both states
asserted sovereign claims over a group of islets and rocks, Judge Carneiro observed that the
evidence supplied by maps was not always decisive in the settlement of legal questions relating
to territorial sovereignty. Although it could constitute proof of the exercise of sovereignty, he
opined that a more searching and specialized study would be required in order to decide which of
the contending maps prevailed. This principle, however, appears to have undergone some
dilution in two subsequent cases. In the Frontier Land case decided in 1959, the ICJ had to
decide between contradictory documents that attributed two plots of land in the Belgo-Dutch
Frontier to the states of Belgium and the Netherlands, respectively. The court held that the map
of a Delimitation Commission which was incorporated by reference in a treaty, but was
inconsistent with the text of the instrument, would prevail over the written provision (pp. 220,
225-226). This was taken a step further in the Temple of Preah Vihear case, where the ICJ had to
decide if the territory surrounding the ruins of the Temple of Preah Vihear fell within the
sovereignty of Cambodia or Thailand. In this case, the relationship between the map and the
treaty was far less direct than the Frontier Land Case. Nevertheless, the Court treated a map, not
formally approved by a Delimitation Commission, as if it were part of the treaty. In the eyes of
the majority, 12 Marvin A. Chirelstein, Concepts and Case Analysis in the Law of Contracts 1,
Edition 4. (2001). Thailand had, by her conduct or lack thereof, acquiesced in the map as
representing the outcome of the delimitation.13 Thus clearly, there has been a shift in the
evidentiary value attributed to maps, particularly when delimitation disputes are involved. In the
present case, there does not appear to be a map attached to the Treaty of Sugauli. Although there
exists a Nepal-India Joint Technical Level Boundary Committee (“JTBC”) that issues boundary
base maps, it has declared the Kalapani-Limpiyadhura region as beyond its capacity to resolve. It
is in this context, where there is no consensus about the accurate map, that previously mentioned
factors of treaty interpretation including intention, subsequent conduct, etc., become relevant in
the political dialogue between India and Nepal. 13 Upadhya, Sanjay, Nepal and the Geo-
Strategic Rivalry between China and India, Routledge, ISBN 978-1-136- 33550-1.(2012).
ANALYSIS OF NEPAL’S CLAIMS Title to territory may be acquired by a variety of means
which include state succession, occupation in case of terra nullius, effective control, international
agreements and principle of uti possidetis juris. In order to claim the disputed territory, it is
essential to determine which of the parties has produced the more convincing proof of title to one
or all of these principles. Some of these principles are discussed below, that may underpin
India’s claim over the territory.14 VIOLATION OF TREATY LAW The purpose of any treaty
can be compared with the purpose of a contract. This is due to the fact that both contain a list of
“legally recognizable expectations” i.e., to say that, the way in which both agree to maintain their
relationships. The nations then voluntarily rely on those expectations as they suit their interests.
Nepal, by enacting a constitutional amendment which encroaches upon the disputed territories
has breached its obligation under the 1950 Indo-Nepal Treaty of Peace and Friendship. This
treaty was signed in the backdrop of the rise of Communist China in 1949 and subsequent
invasion of Tibet that raised security concerns for both the nations and hence presents equal
importance to both the nations.15 The treaty enabled the two South- Asian neighbours to
establish a close strategic relationship. According to the treaty, the nations are bound to
acknowledge as well as maintain at all times the respect to the sovereignty as well as the
territorial integrity of each other (Article 1). Furthermore, in the case of a conflict or
misunderstanding, the same is required to be informed by a formal dialogue in order to keep the
friendly relations between the two states intact (Article 2). Nepal however, had turned down
India’s request to postpone the bilateral talks until the suppression of the coronavirus outbreak. It
went on to pass the draconian amendment bill, which has scarred the amicable relations between
the states.16 EFFECTIVE CONTROL When treaties and agreements do not display a clear
picture regarding the boundaries, the verdict is delivered in favour of the nation having effective
control over the disputed territory. In the past too, the Courts have favoured those nations which
have exercised sovereign power over the disputed territory. One such instance is the Minquiers
and Ecrehos case, wherein the court ruled that the U.K has sovereignty over the disputed islands,
since it exercised jurisdiction and administrative control over the same. Activities such as
collection of taxes, licensing commercial vessels and other administrative actions are pertinent to
establish this claim over the territory. India has reassuring proofs which affirm the exercise of
her sovereignty over the disputed territories. It has records of taxation and revenue dating back to
the 1830s which consolidates her claim that Kalapani has, since then been a part of Pithoragarh
District in the state of Uttarakhand in India. There was an actual settlement and an announced
intention to acquire. India has strived to 14 India has encroached upon two percent Nepali
territory, says government spokesperson, Republica,
,https://myrepublica.nagariknetwork.com/news/india-hasencroached-upon-two-percent-nepali-
territory-saysgovernment-spokesperson/ (7 November 2019). 15 Rose, Leo E., Nepal – Strategy
for Survival, University of California Press, ISBN 978-0-520-01643-9( 1971). 16 Sugam
Pokharel, Nepal issues a new map claiming contested territories with India as its own, CNN, (21
May 2020). maintain an appropriate amount of political, military and administrative control with
the intention of governing the territory, which is a sine qua non for establishing a strong
territorial claim.The territory has been settled throughout, and its resources have been utilised by
India. Historical Claims and importance of Maps Historical claims are seen as the most common
means to assert right over a given territory. Such claims are buttressed in circumstances wherein
the state whose rights are violated does not counter the actions of the other state. What
substantially aids in asserting territorial claims by a nation is the effort put by it to justify the
pursuit of its claims. Maps are a primary tool for the same. Maps often serve as propaganda and
perceptual weapons to assert one’s claims over territories. For instance, in the tussle between
Cambodia and Thailand over the Preah Vihear Temple, the courts after relying on historical
maps (in the present case which favours India), which were relied upon by both the countries for
some period of time, dismissed all arguments of physical, religious or archaeological nature, thus
establishing the importance of the maps in the disputed area.17 In the present instance, U.S
Army map of 1955 also recognises the disputed territory as a part of India, supporting India’s
claims. Nepal has acquiesced the right over the territories in question, assuming that it had one. It
had turned a blind eye to the Kalapani issue from 1961 to 1997 and it was not until 1998 that the
border issue became a convenient India- Nepal controversy. China too in its 2015 statement,
recognised Indian claims over Kalapani and Lipulekh, thereby strengthening India’s stance.
Hence, Nepal should be estopped from rejecting India’s title to the territory. 17 Cowan, Sam,
The Indian checkposts, Lipu Lekh, and Kalapani, School of Oriental and African Studies. (2015).
HOW TO SOLVE DISPUTES OF THE LIPULEKLIMPIYADHURABORDER? Given the
importance of ties with Nepal, often romanticised as one of “roti-beti” (food and marriage), India
must not delay dealing with the matter, and at a time when it already has a faceoff with China in
Ladakh and Sikkim. Since the free movement of people is permitted across the border, Nepal
enjoys immense strategic relevance from India’s national security point of view, as terrorists
often use Nepal to enter India. Therefore, stable and friendly relations with Nepal is one of
prerequisites which India can’t afford to overlook. India should also try to convey to Nepal’s
leadership about the congenial and friendly environment that 6 to 8 million Nepali citizens living
in India enjoy. Therefore, Any thoughtless erosion of this centuries old togetherness may prove
difficult for both countries.18 The border is defined as a valuable premise for any nation to stand
as in the international forum. It is not merely a geographical division rather contains whole
political, economic, social dimensions. The dispute at the border or due to the border may cause
serious harm to both the nations. The mode to solve border disputes differed based on nature,
parties to it. These are some of the commonly applied methods for resolving border disputes at
different times around the world. Nepal and India can apply for solving prolonging tensions in
the Lipulek region. FOLLOWING INTERNATIONAL LAW First, the most fundamental rule of
settling territorial disputes is that they should be done following international law. Even though,
the border relations are based on bilateral relations among nations. Most of the country do have
bilateral agreements with each other to observe, protect the border issues. The non-observance of
bilateral terms and conditions and injustices to other states would invite the applicability of
international law. The border issues are also observed by the international community. Hence, it
is a public law debate, and issues are under the domain of public international law. International
law regulates relations between states in classical doctrine, and any dispute between states should
in principle be solved according to international law. The problems of enforcement of
international law may be an issue both still exists and makes sense to a larger number of the
dispute at the international level or the bilateral level. Today the use of force or the threat of use
of force to solve international disputes is outlawed except in cases where UN Security Council
resolutions so authorize. Hence, the territorial disputes must be resolved peacefully. Nepal and
India must seek 18 Amit Ranjan, “India-Nepal Row over the Updated Map of India”, ISAS
Working Paper, No. 321, Institute of South Asian Studies, National University of Singapore,
(2019). peaceful means for solving the dispute of Lipulek. If we are not in a position to hear each
other at each other premises, then let’s ask for the UN to provide good offices for talks.19 NON-
STATE ACTOR IN INTERNATIONAL LAW Second,the UN is considered supranational
entities and active known as a non-state actor in international relations and law. The role of the
UN is increasing day by day due to the rise of globalization, industrialization, and dependent on
nations on each other. Article 33 of the UN Charter provides that, “the parties to any dispute, the
continuance of which is likely to endanger the maintenance of international peace and security,
shall, first of all, seek a solution by negotiation, inquiry, mediation, conciliation, arbitration,
judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their
own choice.” A state party needs to present legal arguments that are more easily justified and
convincing than the other state party in light of international law. The international law in
regards to boundary disputes have settled some of the fundamental questions and also has laid
down rules for it. The claiming state must be in a position to defend or establish their claim at the
international court in light of international law. Nepal must look for the customary nature of
boundary law in regards to establish a claim with supportive evidence in Lipulek. The
observance of our Map including the Lipulek areas by the international community at a different
time maybe one point to consider to establish the claim. The deposition at the UN may be
considered as a ground to proceed claim at the court of law in light of international law. India
must look for possibilities to bring and use international law in case if we succeed to establish
the issues of jurisdiction required by Statues of ICJ. ACQUIRE AND EXERCISE ITS
TERRITORIAL SOVEREIGNTY Third,for a state to acquire and exercise its territorial
sovereignty over a piece of land, the state must have occupied it and effectively control it. This is
one of the most applicable principles in our dispute. As the author said in the beginning, there are
different four modes to acquire land in international law.20 There is no doubt based on
documents produced by the different offices, individuals, scholars, researchers about the land of
Lipulek belongs to Nepal. Even the Treaty of 1816 provides the first ground. Nepal must be able
to establish the second ground that is effective control over land. The principle of effective
control in boundary law says that 'an intentional display of power and authority over the
territory, by the exercise of jurisdiction and State functions, on a continuous and peaceful basis'.
The concept has been developed through some significant international cases such as the Island
of Palmas case (1928),Legal Status of Eastern Greenland (1933), Minquiers and Ecrehos case
(1953), Burkina Faso/Mali case (1986) and Nicaragua/Colombia case (2012).In the Lipulek
dispute, Nepal must produce evidence such as direct control, the availability of police posts, the
land tax, the revenue generation, the census, the mobility of representative of those regions in
governance etc., to establish the issues of 19 Geeta Mohan, Kalapani an integral part: Nepal
objects inclusion of unresolved territory as part of India in new maps, India Today,
https://www.indiatoday.in/india/story/ nepal-objects-kalapani-inclusion-new-india-map-
jammuand-kashmir-article-370-1616458- 2019-11-07, (2019). 20 Andreas Zimmermann, Karin
Oellers-Frahm, Christian Tomuschat and Christian J. Tams, The Statute of the International
Court of Justice: A Commentary, (2012). effective control. Some of the evidences like of census
of 2018 B.S., in the region and also land tax paid by citizens of those areas can establish the
intention of effective control in the region.21 INTERPRETATION OF EXSISTING
TREATIES22 Fourth, the territorial disputes arise when sovereignty claims over land by more
than one state overlap. If there exist treaties or other legal documents concerning the territory in
question, their interpretation will be a key issue. Nepal and India don’t have boundary
agreements as such practices around the world. The 1816 Treaty with East India Company has
specifically mentioned about the origin of river Kali as known disputed.Article – III of the Treaty
says that The Rajah of Nipal hereby cedes to the Honourable the East India Company in
perpetuity all the under-mentioned territories, viz, first: The whole of the lowlands between the
Rivers Kali and Rapti. And similarly, Article – Vsays that, The Rajah of Nipal renounces for
himself, his heirs, and successors, all claim or connextion with the countries lying to the west of
the River Kali and engages never to have any concern with those countries or the inhabitants
there of. Similarly, the boundary agreement with China stipulated that the "traditional customary
line" would serve as the basis for a boundary treaty between China and Nepal. The boundary was
to be determined and demarcated 1) where maps of both sides agree, and 2) according to local
jurisdiction or administration where they did not. A Joint China - Nepal Boundary Commission
was created to examine the evidence and to delimit the entire boundary. PRACTICES IN THE
INTERNATIONAL COMMUNITY Fifth, this is also seen as practices in the international
community where none of the states has a treaty-based title to the disputed area. Then the
international law of effective control comes into the picture. In this context, international
tribunals/courts will be keen on what is known as “relative title” － which of the competing claims
is stronger － rather than some absolute standard of title. This is not the case in Nepal and India
Lipulek dispute. Nepal and India must be able to seek a possible solution for the dispute.23 21
Jack L. Goldsmith, Eric A.Posner, The Limits of International Law, (2005). 22 Sadat-Akhavi,
Seyed-Ali, Methods of Resolving Conflicts between Treaties, Graduate Institute of International
Studies (Series), Vol. 3. Leiden: Brill Academic Publishers, (2003). 23 M.F. Lindley, The
Acquisition and government of backward territory in international law; being a treaties on the
law and practice relating to colonial expansion, European Journal of International Law, (1969).
CONCLUSION The importance of ties between the two states is a celebrated one on the global
platform which is often romanticised as one of “roti-beti.” The present state of affairs demands
exercises of political goodwill and statecraft to resolve the dispute. The resources and time spent
on such issues could be used by both the nations to concentrate on trade, economy and well-
being of its citizens. The problem needs to be resolved as soon as possible as both nations fear an
act of aggression from China (Indian in Ladakh and Sikkim while Nepal in Rui village). Nepal
has behaved mischievously and has breached certain principles of International law. After years
of equivocation maintained by Nepal on the border dispute, it has still reacted in a haphazard
manner. Instead of solving the dispute through formal talks, it maintained a child-like behaviour,
by including the disputed area in its map. An identical behaviour was seen when a Joint
Technical Level Nepal-India Boundary Committee (JTLNIBC) was set up by both the countries
in order to delineate the said border area. After rigorous surveying, deliberations and extensions,
a report was submitted in 2007 by the said committee. Nepal turned a blind eye to this report. For
a country, whose two-third imports are handled by India, Nepal cannot afford to disregard the
relations and showcase mischievous behaviour time and again. One of the prerequisites that
cannot be overlooked in the current scenario is the stability of ever-growing friendly relations
between India and Nepal. For the same reason, the duty lies on India to convey the message of
supportiveness and congenial environment that the country has to offer to the Nepali population.
A thoughtless erosion will hamper the centuries-old bond between the two.