Tuesday, October 27, 2020

About the Land Dispute with Nepal

Survey of India map (1943)
On May 8, 2020, an argument erupted between India and Nepal; the immediate reason which triggered the debate was an 80 km road between Darchula to Lipulekh, the border pass near the trijunction with Tibet and Nepal, inaugurated by Defence Minister Rajnath Singh.
The road is to be used by the Indian pilgrims visiting Kailash-Mansarovar, located some 90km from the pass, as well as the local traders; Lipulekh being one of the three landports between India and China. Strategically, this road is also crucial for India.
PTI then explained: “The Lipulekh pass is a far western point near Kalapani, a disputed border area between Nepal and India. Both India and Nepal claim Kalapani as an integral part of their territory.”
Kathmandu handed over a diplomatic note protesting against the construction of the road to Vinaya Mohan Kwatra, the Indian Ambassador to Nepal; Kwatra was subsequently called by Pradeep Kumar Gyawali, Nepal’s Foreign Minister, who lodged a protest.
It is only very late that the Nepali realize that there was a dispute. 

In 1998, the CPN-ML faction led by Bam Dev Gautam started claiming some Indian territory in the vicinity of Kalapani as Nepalese; one of the main actors was Buddhi Narayan Shrestha, the former Director General of the Land Survey Department. According to him, the ‘Kali River’ is in fact the Kuthi Yankti river that arises below the Limpiyadhura range and not the one earlier accepted by India, China and Nepal.
It is how Nepal began claiming an entire area of Kumaon up to the Kuthi Valley, some 400 km2 in total.
But up to 2000, the Nepalese government kept quiet and did not push for these demands.
In a statement to the Indian Parliament in 2000, the Indian foreign minister Jaswant Singh suggested that Nepal had questioned the source of the Kalapani river, while denying that it was a dispute.
Unfortunately, on May 20, 2020, Nepal for the first time released a map incorporating the Maoist claims; it showed the entire area to the east of Kuthi Yankti river as part of their territory. To make it worse, on June 13, a bill seeking to give legal status to the new map was unanimously approved by the lower house in the Nepal Parliament.

The Road to Kailash
In May 2020, India’s Ministry of External Affairs (MEA) denied that the road was crossing Nepal’s territory: “The recently inaugurated road section in Pithoragarh district in the state of Uttarakhand lies completely within the territory of India. The road follows the pre-existing route used by the pilgrims of the Kailash Mansarovar Yatra,” said South Block.
Already in November last year, Kathmandu had protested, “unilateral decisions on border issues won’t be accepted,” it was in reference to the new Political Map of India published by Delhi after two new Union Territories - Jammu & Kashmir and Ladakh - came into existence on October 31.
Kathmandu formally protested over the inclusion of the Kalapani area in the new map.
What is strange is that the new Indian map is exactly the same than the one published in 1954 in the Atlas of the Northern Frontiers of India, which is the official reference till today for India’s boundaries. Kathmandu did not protest against the old map and apart from the new UTs, there was nothing new in the 2019 maps.
The case is complicated by different factors; amongst them the political struggle within the ruling party in Nepal and also the fact that there has been no historical consistency in Kathmandu’s position.
Let us look at the history.

Tracing the History
After a War between British India and Nepal in 1814, the Nepalis were sent back across the Kali River in May 1815 and subsequently the Segowli Treaty was signed on March 4, 1816. Article 5 of the Treaty stated: “The Rajah of Nepaul renounces for himself, his heirs and successors, all claim to or connexion with the countries lying to the West of the River Kali, and engages never to have any concern with those countries or the inhabitants thereof.”
Unfortunately, there was no map attached which could have authoritatively shown the exact alignment and the source of the Kali River.
In any case, at that time, no scientific survey worth the name could be carried out; it was only by mid-19th century that the Himalayan border was first surveyed by the Great Trigonometrical Survey of India (a precursor of the Survey of India), in a more scientific manner.

General Conwan’s Take
General Sam Cowan, a retired British general, studied Nepal through his British Gurkha connections and his extensive trekking in the country, wrote in 2015 a well-researched article. There is no doubt that due to his long service with the Gurkhas, Conwan’s sympathies lies with Nepal; his arguments are interesting nevertheless.
Long before the issue of Kalapani erupted, he observes: “A further major complication for Nepal is that India rejects the claim that the river from Lipu Lekh is the renamed Kali River. It asserts, and claims that it has maps and diagrams to prove it, presumably based on the 1879 map, that the river Kali begins from the junction of the river that flows from Lipu Lekh and a stream that flows from springs in Kalapani. Hence, the earlier quote from the Indian pilgrim that “Kalapani …is supposed to be the origin of River Kali.”
According to Conwan: “The date on which this Kalapani stream first appeared on maps is disputed, but, whatever the maps show or do not show, the ground reality is that Indian security forces occupy the area of Kalapani to the east of the river, which traditionally has been regarded as the Nepali side.
We shall come back to this.

The 1879 Survey of India Map

The general says: “What is the value of doing so? There is evidence that the Indians first used Kalapani simply because it was the only piece of flat land in the area to establish a rudimentary camp to cover the approach to Lipu Lekh. At a later stage they must have come to realize that under the complexities of riparian water rights their claim to control the headwaters of the Mahakali River would be strengthened by their occupation of Kalapani. At the military and security level, answers can only be speculative, but presumably the thinking is that an Indian security presence there helps to balance the Chinese security force presence in Taklakot just a short distance away over Lipu Lekh. There may also be an intelligence advantage.”
The British ‘Gurkha’ general brings another issue; the realignment of the border with the watershed; he points out: “There is one other significant consequence of India’s occupation of Kalapani. As the map shows, India has used its argument on the origin of the Kali river, and its occupation of the site, to claim a frontier line which corresponds to the 1879 map, in following a ridge line (‘Kali river watershed’ on map) that runs from just south of Kalapani to a point slightly to the west of Tinker Pass, which is about 5 kilometers east, southeast of Lipu Lekh. Tinker Pass is the location of Pillar Number 1 of 79 marking the Sino-Nepal Border. Nepal maintains that the tri-junction should be at Lipu Lekh, where Pillar Number 0 should be placed. However, for the present, the reality is that the India-Nepal-China tri-junction is de facto just to the west of Border Pillar Number 1.”

The Watershed at Kalapani

He comments on a Google map: “the top red line, which follows the river up from Kalapani to Nabhidhang toward Lipu Lekh, shows the border that appeared in maps after the 1860s and in the Panchayat era. The lower red line, which follows a watershed from Kalapani to a tri-junction on the main ridge to the north, indicates India’s view of where the border runs. An 1879 map shows this border, as does a map produced by the Government of Nepal in 1960. This shows in more detail where India considers the India-Nepal-China tri-junction should be, just to the west of the Tinker Pass. Lipu Lekh is 5 kilometers further west along the ridge.”
However Conwan can only admit: “Nepal’s case for Kalapani has been badly undermined by long years of silence on the issue by the country’s leaders. Some key related questions make that clear. When did India first occupy Kalapani? Who in Kathmandu knew what, and when? What did they do about it?”
The British general also mentioned the historic trading pass of Urai Lekh “with Nepal and the Seti gorge on the right and the trail into Tibet on the left. It is the site of Border Pillar Number 2.” He said that Sydney Wignall (see my article on Sydney Wignall) used this pass when illegally entering Tibet in the late autumn of 1955. They were forced to return by the same route in winter.”

The Border in the 1950s
Interestingly, in the early 1950s, the Indian police already manned a check-post at Kalapani. In his diary, Lakshman Singh Jangpangi, the Indian Trade Agent in Gartok wrote: “July 10, 1955. I could not start on 9th, as my clerk suddenly ran a very high temperature and was unable to leave his bed. I called local Ayurvedic doctor who gave him some medicine. The Compounder was sent with the advance party on 6th. This clerk was today better and fit to travel, I started and camped at Kalapani near Police Post. A section of P.A.C. [Provincial Armed Constabulary] under Subedar Sher Singh has been stationed here since 28th June 1955. This post is about 8 miles below the pass and a patrol party occasionally goes up to the pass. There is plentiful supply of firewood and water here. They are living in two single-fly tents and Subdear has constructed a small mud but for himself which leaks very badly in rainy weather. The Garbyang villagers have cultivated land close to the post. Besides passing caravans they have no other company or activities. I saw them keeping busy in collecting firewood and making Subedar’s hut livable.”
Due to heavy rainfall “which continued more than 14 hours starting from 2 am to 5 pm,” Jangpangi stayed one more day at the check-post.
The police post had probably been set in 1952 by the Uttar Pradesh’s government.
There was then no question of dispute, especially after the "Agreement on trade and intercourse between Tibet Region of China and India", was signed on April 28, 1954 in Beijing: “Pilgrims customarily visiting Lhasa may continue to do so in accordance with custom. Article IV Traders and Pilgrims of both countries may travel by the following passes and route : (1) Shipki La pass, (2) Mana pass, (3) Niti pass, (4) Kungri Bingri pass, (5) Darma pass and (6) Lipu Lekh pass.”
There was no doubt about it.

Pillar No 1 corresponds to the India stand

The 1961 Sino-Nepal Treaty
Interestingly, the “Boundary Treaty between the People's Republic of China and the Kingdom of Nepal” signed by President Liu Shaoqi of China and King Mahendra of Nepal on October 5, 1961 shows the Kali river as per the Indian stand: “The Chairman of the People's Republic of China and His Majesty the King of Nepal, being of the agreed opinion that a formal settlement of the question of the boundary between China and Nepal is of fundamental interest to the peoples of the two countries,” said the preamble.
Article I (1) defined the China-Nepal boundary line which “starts from the point where the watershed between the Kali River and the Tinkar River meets the watershed between the tributaries of the Mapchu (Karnali) River on the one hand and the Tinkar River on the other hand…”
Even more telling are the precise maps attached to the Treaty and signed by both parties; Kathmandu seems to have forgotten that the location of river on the maps of the Sino-Nepali treaty matches with the Indian one, which implies that the road is on Indian territory.
What is however disputed and needs to be negotiated is the area south of the river, where the British (and later Indian) cartographers have taken into account, like everywhere else on the frontiers, the watershed principle as well as the land revenues of Gunji village on the Indian side.
More of such examples of Kathmandu’s inconstancy could be cited.
What presently compounds the issue is the rift within the ruling party’s leadership in Nepal and the role played by China through Hou Yanqi, Beijing’s Ambassador to Kathmandu, the new ‘Queen’ of Nepal, who is credited to have arranged a rapprochement at the top level of the ruling Nepal Communist Party.

The Sino-Nepal Treaty reinforcing India's Stand

Mao’s Blessings
A Nepali author, Birat Anupam cites historical documents in an article entitled “Nepal-China Boundary Treaty: An example of peaceful Himalayan frontiers;” he quotes a discussion between Mao Zedong and King Mahendra of Nepal. Here is the exchange:
The author notes that it was “a snippet of the candid conversation between founding father of People’s Republic of China and Nepal’s the then king Mahendra on the historic Nepal-China Border Treaty day of 5 October 1961.”
The conversation on the Treaty goes like this:

Mao and King Mahendra in 1961

Chairman Mao: How is everything with Your Excellency? Have all the problems been solved?
King Mahendra: Everything is settled.
Chairman Mao: Fair and reasonable?
King Mahendra: Yes. We all agree.
Chairman Mao: It is good that we agree. There is goodwill on both sides. We hope that will get along well, and you hope we shall get along well too. We do not want to harm you, nor do you want to harm us.
King Mahendra: We fully understand.
Chairman Mao: We are equals; we cannot say one country is superior or inferior to the other.
King Mahendra: We very much appreciate the way of speaking.
This conversation was published in a book titled ‘Mao Zedung On Diplomacy’.
It was a propaganda work compiled by The Ministry of Foreign Affairs of China and published by Foreign Languages Press in Beijing in 1998; it however shows that the 1961 Treaty had the blessings of the Great Helmsman.
The Nepali author, forgetting that the 1961 Treaty coincides with India’s stand on the dispute, writes: “This conversation, from the verbatim records, speaks volumes about the level of trust and the height of friendship between two neighbors Nepal and China.”

King Birendra’s visit to China in 1978
King Birendra, Mahendra’s son visited China in 1978.
On May 14, 1978, at the State banquet, the King asserted: “I recall with particular satisfaction, Your Excellency, the wide and cordial exchange of views with you at Chengtu in 1976 and the recent discussions and exchanges with His Excellency Vice-Premier Teng Hsiao-ping [Deng Xiaoping] when he paid a visit to Nepal, earlier this year: I believe these exchanges have gone a long way to deepen friendship between our two countries, a friendship which has its roots in history as well as-in the great efforts that the late Chairman Mao, the late Premier Chou En-lai and, my august father, the late King Mahendra made with far-sighted statesmanship…”
At that time, both countries were working to demarcate the border with 76 pillars.
On September 27, 1978, Vice-Premier Deng Xiaoping gave a speech in honour of the vaster Nepalese Prime Minister KN Bista. His words were probably directed at the US: “Anybody who attempts to disrupt the peace and stability of this region will only end up by crushing his own toes with the rock he picks up to throw at others. So long as the people of all countries heighten their vigilance, strengthen their unity and persevere in struggle, they will certainly frustrate the aggressive and expansionist schemes of the superpowers.”
Nepal was then trying to promote the Zone of Peace, dear to the Nepalese King; Bista answered Deng: “His Majesty King Birendra who is firmly committed to development has realised the vital connection between development and peace for a small country like Nepal. For this reason, we have supported the idea of peace zones in critical areas and have ourselves suggested that Nepal be declared a zone of peace. We appreciate your understanding and support of this basic policy of ours.”
There was no question about the border.
In August 1979, King Birendra visited again China. A People's Daily editorial said: “China and Nepal have long been good friends and neighbours. The friendly and good neighbourly relations between China and Nepal set an example for what may be achieved in the relations between countries. His Majesty King Birendra himself has visited China on many occasions…”
The editorial praised the government and people of Nepal for their adherence to the principle of maintaining independence and state sovereignty and for the successes they have achieved under the leadership of King Birendra in developing agriculture and small and medium scale industry.
During the same visit, the border agreed and demarcated in 1961 was ratified and therefore the Indian stand was confirmed.
At the banquet given in honour of King Birendra on August 27, the Chinese Premier Hua Guofeng praised Nepal “for the positive contribution she had made to the non-aligned movement as a founding member of the movement. He said: "We are happy to note that persisting in opposing imperialism, colonialism, racism and all forms of foreign domination and hegemony and supporting the efforts of the small and weak nations to take their destiny into their own hands, the non-aligned movement has played an important role in international affairs and its ranks have kept expanding.”
Hua added: “Sino-Nepalese friendly relations and cooperation have become a model of good-neighbourly relations based on the five .principles of peaceful coexistence.
He then mentioned the border: "We are most appreciative to His Majesty King Birendra for the important contributions he has made to promote Sino-Nepalese friendship. Over the past year or so, our two countries have completed the joint inspection and have thus further consolidated our common boundary of peace and friendship. The border inhabitants on both sides of the boundary line have lived in amity for generations with frequent contacts between them. We are sure that through the joint efforts of our two sides, Sino-Nepalese friendship will grow stronger and develop steadily…”
The 1961 Line agreed by China and Nepal
The border as shown in 1961 map was officially confirmed.
On November 21, 1979, the China-Nepal border protocol was signed.
In reply to a question whether the Nepal-China boundary had been settled finally, Huang Hua said that "in fact the boundary question was settled long ago. But now the joint boundary inspection committee had perfected the understanding of the line so that it is the more accurate basis."
The signing of the boundary protocol further proves that there existed peace on the boundary and friendship and cooperation between the two countries.
Hua described the border protocol as "adding something new to the annals of Sino-Nepalese friendship and setting once again a good example of how bilateral ties could be developed through friendly consultations on the basis of equality and cooperation. Protocol is a significant document achieving accurate demarcation of the boundary line between Nepal and China."
He said China would support just causes of the people of all countries in safeguarding their national independence and sovereignty, in opposing foreign interference, domination and hegemonism and in defending world peace. China appreciated and supported all efforts of the government of Nepal in up-holding the cause of peace."
Does China deny today that these exchanges took place?
The border has been the traditional frontier for decades and it has never been objected by China or Nepal.

Other proofs in favour of India’s Stand
Shyam Saran, who was the Indian Ambassador to Nepal from 2000 to 2004, cited the case of the then Prime Minister of Nepal Kirti Nidhi Bisht, who in 1969, demanded that India military personnel manning 17 villages along the Nepal-Tibet border since the early 1950s should be withdrawn. According to the National Panchayat record, Bisht said: “The Minister informed that the check posts manned by the Indian nationals exist in seventeen villages — Gumsha, Mustang, Namche Bazar, Lamabagar, Kodari, Thula, Thumshe, Thulo, Olanchung Dola, Mugu,Simikot, Tin Kar, Chepuwa, Jhumshung, Pushu, Basuwa and Selubash.” Saran rightly pointed out: “If Lipu Lekh and Kalapani were on Nepali territory then why were they omitted from the list?”
The former Foreign Secretary added: “I have pointed out earlier that the argument that the omission was due to Nepali ‘magnanimity’ taking into account India’s security concerns vis-à-vis China is laughable. The withdrawal of Indian military personnel from the Nepal-Tibet border was precisely to win brownie points with China.”
The Memorandum between the Government of the Republic of India and the Government of the People's Republic of China on the Resumption of Border Trade signed on 13 December 1991, and Protocol on Entry and Exit Procedures for Border Trade, signed on July 1, 1992 are other example; it confirms that China agreed to the border in this area.
The Trade Protocol between the two countries provided for expansion and diversification of trade between the two countries. “...Both sides have agreed to encourage direct trade between the two countries. They have also agreed to promote the exchange of delegations in specific areas and to encourage their respective trade organisations and traders to explore possibilities of promoting bilateral trade through various forms of trade and cooperation.” It was the first time that a pass reopened after the 1962 Indo-China war and the subsequent shutting down of the Himalayan borders.
For China, the border pass was (and still is today) Lipulekh.

New Map of Nepal rejected by India
Some other evidences
Why was the 'dispute' not solved earlier with India and Nepal having a joint commission to sort out the issue?
Many feel that Nepal is not confident enough about the veracity of its claim. Shyam Saran noted: “While I was in Nepal as ambassador, a request was made to put the issue on the agenda of the foreign secretary level talks held in 2003 but without any expectation of actual discussion. When we conveyed our readiness to have a substantive discussion on the treaty revision, the agenda item was dropped by the Nepali side. The purpose was to merely show that the Nepali side was taking up the issue seriously with India.”
Maj Gen Vinaya Chandran, who is doing a PhD on Nepal and earlier served in Military Operation Directorate, further commented for stratnewsglobal: “Historical and geographical facts are inconclusive, as is the case in many international boundaries, that are colonial legacies. Only way out appears to be an adjudication by the ICJ [International Court of Justice] and that can happen only if both India and Nepal agree to take the matter to the ICJ and also accept the verdict even if it doesn’t conform to their respective claims. An analysis of legal standing of the issue, puts the Indian claim on a stronger ground.”
Some of India’s strong arguments have been listed.

What is the Issue?

The river Kali does not seem the real issue, but the area south of the river. General Chandran wrote: “Even if both sides accepts Lipulekh as the origin of Kali River, they need to resolve the issue of the start point of the boundary, which now is on the highest point of the Eastern shoulder of Lipulekh Pass. This is also the point from where the China – Nepal boundary starts. The India – Nepal boundary marked on Indian maps, run South from this point along the watershed and Joins the Kali River, South of Kalapani. The boundary in effect is running along the watershed and not along Kali River. This is an issue that need to be resolved bilaterally by India and Nepal.”
There is no doubt about the location of the river and the fact that the new road is inside Indian territory; it is however in Delhi’s interests to find an amicable solution with Nepal for the areas for which there is no agreement; it could avoid China poking its nose into the bilateral affairs between Delhi and Kathmandu in the future.
CIA Map of 1965

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