7th India-Nepal Coordination Meeting, November 2023. | The New Indian Express.
Certainly, there are reservations of the Indian Government on some provisions of the Treaty, most prominently Articles 2 and 5, but it is not possible to change the Treaty without addressing them. No treaty succeeds through a zero-sum but a win-win situation. It would not be practical for Nepal to remove those articles from the Treaty which it has problems with and keep those articles that benefit it.
Historical Context
The India-Nepal Treaty of Peace and Friendship of 1950 will complete 75 years in 2025. This Treaty has guided the Indian and Nepalese Governments and has been a foundation for strong cultural and economic ties between the two countries, commonly referred to as the Roti-Beti Ka Rishta. However, just as ideas, laws and regulations are bound to change with time, the Treaty also needs to be updated according to the times.
After the end of the British Empire in South Asia, new geopolitical equations emerged rapidly. The Indian Government established formal diplomatic relations with South Asian nations through various treaties. But the Treaty of Peace and Friendship with Nepal was special in many ways. Some of its main provisions are respect for each other's territorial sovereignty (Article 1), mutual consultation in adverse circumstances (Article 2), assistance to each other's citizens in trade and development activities and special treatment (Article 6) , reciprocal treatment for residence, acquisition of property and freedom of movement of each other's citizens (Article 7).
The Treaty was signed at a time when the world was divided by the Cold War and both India and Nepal were uncomfortable with the rise of Communist China in 1948 and its forceful invasion of Tibet soon after. Mao Zedong, the founder of the People's Republic of China (PRC), had several times in the 1940s described Tibet as the palm of China and Ladakh, Nepal, Bhutan, Sikkim and Arunachal Pradesh (then NEFA) as its five fingers which had been separated from China by imperialist forces. Clearly, India and Nepal wanted to secure their northern borders through the Treaty of Peace and Friendship. The then Indian Prime Minister Jawaharlal Nehru had said, "We cannot allow anything to go wrong in Nepal, nor can we allow that barrier to be crossed or weakened, as it would also be a risk to our security."
Differences over the Treaty
The Treaty proved to be a milestone in India-Nepal relations for a long time. During the four decades from 1950 to 1990, relations between the two countries soured many times, during which this Treaty provided direction and regularity to the relations. However, the rise of Maoist power in Nepal in 1990 questioned the relevance of the India-Nepal Peace and Friendship Treaty. Terminating this Treaty was a major point in the manifesto of the Nepali Communist Party in the 1994 General Elections.
In 1996, the first point of the 40-point demand letter of the United People's Front of Nepal directed the Government of Nepal to end this Treaty with India and warned it of an armed rebellion if it failed. The following year, in 1997, former Nepalese Foreign Minister Kamal Thapa, who was on an official visit, put forward the demand for changes in this Treaty before the Indian Government through a non-paper, specifically calling for amendments to the Treaty's provisions on trade and security.
This was the first instance when Nepal officially discussed with the Indian Government for changes in the Treaty. However, no progress could be made due to political instability and civil war in Nepal. However, this issue, which was raised in 1997, is still a thorn in India-Nepal relations. The situation is such that day by day, policymakers, bureaucrats, leaders and even the general public in Nepal favour ending this Treaty. According to Nepal, the India-Nepal Treaty of Peace and Friendship of 1950 is unequal on three grounds.
Firstly, this Treaty was signed on behalf of Nepal by the then King, Prime Minister and Supreme Commander-in-Chief of Nepal, Mohan Shamsher Jung Bahadur Rana. As an unelected representative, he did not represent the Nepalese people in real terms and the Rana Prime Minister's rule ended only six months after the signing of the Treaty. Thus, people believe that the Rana Prime Minister signed this treaty only to save his government and to gain legitimacy for his government from India. It is clearly inappropriate to question the validity of the Treaty on the basis of who signed it. Governments keep changing, and it is normal for the system of governance to change as well. After the end of the Rana Prime Minister's rule in 1950, various governments came to power who represent the people in real terms, including Nepal's first democratically elected government in 1959, which supported the treaty of 1950.
Secondly, Nepal believes that Articles 2 and 5 of this Treaty violate its sovereignty, thereby restricting Nepal's ability to adopt an independent foreign policy, form bilateral relations with other countries, and take foreign policy decisions. According to Article 2, in order to avoid any irregularity in friendly relations between India and Nepal, both countries will consult and inform each other of any confusion or serious situation. According to Nepal, this article provides that if Nepal has to have any relationship or talks with any other country, it will be mandatory to inform India before that. It is inappropriate to interpret Article 2 in this way. Over time, Nepal has established bilateral relations with various nations of the world, including China, Pakistan, Turkey, the United States of America and Japan.
On the other hand, Article 5 says that Nepal is free to import arms, ammunition and war material from India or any other country through Indian territory as per its security needs. To implement such an arrangement, both countries will consult each other. The word 'consultation' of the Indo-Nepal Peace and Friendship Treaty 1950 is the most controversial. It comes from the Letter of Exchange, a crucial part of this Treaty that outlines the conditions and procedures for various aspects of the relationship between the two countries, including arms imports. The Letter of Exchange states that it will be mandatory for Nepal to first obtain India's consent to import arms, ammunition and war material. In this Treaty, Nepal’s first demand for changes is to Article 5
According to Nepal, in 1988, when they imported arms from China, India considered this process a violation of the 1950 Treaty and unilaterally restricted the India-Nepal transit point. This restriction had significant implications for Nepal, as it effectively closed its supply line, causing economic and security concerns to the country. Nepal asserts that its import of arms from China did not violate Article 5, which specifically pertains to arms imports from India or through Indian territory. The arms imported in 1988 were from China, not India; thus, Nepal was not obligated to inform or consult India. Despite this, India closed Nepal's transit point for seventeen months.
Trade and Transit Issues
In 1988, a dispute arose between India and Nepal over the trade and transit treaty of 1978.
Rather than two separate treaties, the Indian Government proposed a single treaty for trade and transit with Nepal. India made it clear to Nepal that if it seeks special economic relations with India, it must also address India's security concerns.
The Ministry of External Affairs diplomatically stated, “India has always cherished the special relationship with Nepal, as outlined in the 1950 Treaty of Peace and Friendship… Over the past four decades, India has strived to uphold the Treaty in both spirit and letter. Good neighbourly relations necessitate a level of mutual sensitivity and consideration for the interests of both countries. This is particularly crucial for the preservation of the special relationship between India and Nepal.”
Nepal’s view is that being a landlocked country, the use of transit points is its fundamental and permanent right. On the other hand, the issue of trade with India is a bilateral matter that keeps changing over time. Thus, two separate treaties are necessary for trade and transit points. Due to this disagreement, the ten-year-old trade and transit treaty of 1978 could not be renewed, and expired on 23 March 1989. India said that after the expiry of the Treaty, there is no legal basis left to regulate trade and transit relations with Nepal. As a result, India closed 13 out of 15 transit points.
It is necessary to pay attention here that the International Convention on Transit Trade of Landlocked Countries, 1966 and the United Nations Convention of the Law of the Sea (UNCLOS), 1982 says that it is mandatory to provide at least one transit route to a landlocked country to access the sea. Despite India not being a party to either of these agreements, it provided Nepal with two main transit points at Raxaul and Jogbani to ensure that essential goods and services reach Nepal. Therefore, the claim that India's closure of Nepal's transit points violated Article 5 is seen as exaggerated and prejudiced.
Movement of Citizens
Nepal considers Articles 6 and 7 of the India-Nepal Treaty of Peace and Friendship, 1950, as unequal. Both these articles talk about providing reciprocal treatment to each other's citizens. Article 6 states that India and Nepal will provide special treatment and concessions to each other's citizens for participation in industrial and economic development while awarding contracts for development works. Article 7 states that India and Nepal will grant reciprocal treatment to each other's citizens with respect to rights of residence, ownership of property, participation in trade and commerce and free movement of people.
Nepal believes that these articles blur its national identity. For example, the movement of Indian citizens in Nepal, their purchase of land and their participation in economic activities have not only changed the demographics of Nepal but also led to informal Indian dominance over the Nepalese economy and politics.
A hypothetical example used to illustrate the free movement of citizens is that if one percent of the Nepalese population starts living in India, there will be almost no change in the Indian population, whereas if one percent of the Indian population starts living in Nepal, there could be a 50 percent change in the Nepalese population. But apart from hypotheticals, if seen in reality, these are the two provisions of the 1950 Treaty that benefit Nepal most and are the main promoters of the India-Nepal Roti-Beti Ka Rishta.
At present, approximately 80 lakh Nepalese citizens live and are engaged in various economic activities in India. More than 13,000 Nepalese students are studying in various Indian educational institutions. Importantly, any Nepali citizen can take up almost any job in India, including the Indian Army. Currently, about 32,000 Nepali Gurkhas are serving in various regiments of the Indian Army. Additionally, the Indian Government sends Rs. 2,800 crores every year to Nepal as pension for former Gurkha soldiers. In comparison, only 7 lakh Indian expatriates live in Nepal.
3rd Battalion Gurkha Regiment performing at the Indira Gandhi Athletic Stadium in Guwahati, September 2023. | ANI Photo / Pitamber Newar
In 2008, the interim government's Prime Minister Pushpa Kamal Dahal Prachanda came on an official visit to India, and proposed to the Indian Government to change the Treaty. The Indian Government assured him that both governments would mutually review, adjust or change the Treaty. The same was reiterated again during Prime Minister Modi's visit to Nepal in 2014.
In 2016, the Eminent Persons Group (EPG), a high-level bilateral body, was tasked with exploring the possibility of changes to the Treaty. However, no progress has been made so far despite the EPG submitting its final report in 2018.
Ambassador Deb Mukherjee says of the changes to the Treaty, "This demand has been raised many times before, and we have said okay, we are willing to renegotiate or restructure it. In fact, Clause 10 of the Treaty clearly states that it can be revoked by either side on a year's notice. And I remember during the Foreign Secretary-level talks in 2001, we reminded the Nepalese delegation of the clause and said, why don't you use it? We should be willing to discuss all options." Ambassador KV Rajan adds, "The treaty basically provided economic opportunities to Nepalese citizens in India, and Nepal gave assurances that India's security concerns would be respected."
Conclusion
Certainly, there are reservations of the Indian Government on some provisions of the Treaty, most prominently Articles 2 and 5, but it is not possible to change the Treaty without addressing them. No treaty succeeds through a zero-sum but a win-win situation. It would not be practical for Nepal to remove those articles from the Treaty which it has problems with and keep those articles that benefit it.
Indeed, both governments should follow a middle path with regard to Articles 2, 5, 6 and 7. We need to understand that through this Treaty, both countries have shared a special relationship with each other for a long time. India-Nepal relations can be secured for a long time by amending the Treaty as per the times.
(Exclusive to NatStrat)
Era of Ideological Wars, Strategic Ambiguity, and Trust Deficit: Can India Salvage It?
