Introduction
The India-Nepal territorial dispute over the Kalapani region has been brewing over the past several decades and due to the recent steps taken by the two South-Asian neighbouring countries, the disputed territory has become an issue of concern again. Following the abrogation of Articles 35A and 370 of the Constitution of India, the Indian Government released a new map which also included Kalapani as a part of the Indian territory. Moreover, in May 2020, India inaugurated a road in Lipulekh across the Kalapani region. These actions of the Indian Government received scathing criticism from Nepal and subsequently, Nepal passed a Constitutional Amendment and published a new political map which included Lipulekh, Kalapani and Limpiyadhura within Nepal’s borders. The inclusion of these territories in the updated map of Nepal was condemned by the Indian government by critiquing it to be a “unilateral act not based on historical facts and evidence.”
The dispute stems from the origin of the Kali river, which according to the Sugauli Treaty of 1815, denotes the western border of Nepal. India claims that Kalapani is located in the Pithoragarh district of Uttarakhand and on the other hand, Nepal claims that the disputed territory is a part of its Darchula district. Over the years, both the nations have strived to settle this territorial dispute by entering into bilateral treaties, however, the issue pertaining to the Kalapani region remains unresolved and the recent events have caused tensions between the two neighbouring countries.
Effective Control
A claim based on effective control is one in which a state claims a region on the grounds that it has exercised administrative control over the particular disputed region. A state is said to exercise administrative control over a region if it exercises political, military or administrative control over the land.
According to the Indian Government, the Kalapani region has been a part of the Pithoragarh District in the state of Uttarakhand and to support this claim, India has produced evidence of tax and revenue records of the 1830s. Since 1979, the Kalapani region has been under surveillance by the Indo-Tibetan Border Police, however, prior to 1979, the Indian government had established a police post which carried out its functions in this region from 1956 to 1979. It is pertinent to note that other than exercising administrative control and deploying military forces and police personnel, the Indian government has built infrastructure in this region and also used it as a route to expand trade with China. In fact, in 2015, China acknowledged India’s sovereignty over this region by agreeing to expand trade through the Lipulekh Pass.
In a plethora of cases such as the Pulau Ligitan and Pulau Sipadan case (pp. 674-678), Minquiers and Ecrehos case (pp. 65-69), etc., the International Court of Justice has decided in favour of the state that has shown that it has exercised administrative control and sovereignty over the disputed region. For instance, in the Minquiers and Ecrehos case, the International Court of Justice considered the effective control arguments observed that the British government exercised sovereign jurisdiction and local administration over the disputed territories and in light of this, the Court awarded the territory to the United Kingdom (p.72). Moreover, it has been observed elsewhere that the “possession of territory and the exercise of dominion and sovereignty over it, is conclusive of the nation’s title and rightful authority.”
On this basis, it is quite plausible for India to make a claim on the basis of effective possession and exercise of sovereignty over the Kalapani region.
The Relevance of Maps in Territorial Disputes
While India has exercised administrative control over the Kalapani region, Nepal has produced maps dating back to the 1800s as evidence to claim sovereignty over this disputed territory. However, maps published by British India in 1879 depict Kalapani as a part of the Indian territory and therefore, the historical maps produced by India and Nepal have caused confusion because of the inconsistency. Due to this reason, international courts do not place much evidentiary value on maps, irrespective of their number.
For instance, in the Minquiers and Ecrehos case, it was held that maps cannot be regarded as conclusive proof in determining which state has the title of a disputed territory. Consequently, the ICJ rejected to take the evidence of maps into consideration as both France and the United Kingdom had presented maps to support their respective claims over the group of islets. Similarly, in the present dispute between India and Nepal, the historical maps shall not be taken into consideration to determine territorial sovereignty.
Moreover, in the Palmas Island case, Netherlands claimed sovereignty over the disputed territory on the basis of the exercise of state authority and it also presented three maps to show that the disputed territory lies within the boundaries of Netherlands. On the other hand, the United States claimed sovereignty by presenting over a thousand maps dating from 1599 to 1898. In this dispute, the Permanent Court of Arbitration, awarded the territory to the Netherlands and held that no weight can be attached to the maps if there are relevant facts which contradict such maps (pp. 853-862).
In light of this, it may be argued that the maps presented by Nepal have no evidentiary value as it is contradicted by the maps of 1879 and also by the prolonged exercise of sovereignty by India.
Principle of Estoppel
The principle of estoppel is frequently applied by the international courts to preclude a state from claiming sovereignty over the disputed territory. When a state remains silent and does not raise any objection for a significant period of time, the courts and tribunals adopt this principle to estop such state from claiming sovereignty over the territory on the basis that such conduct of the state amounts to acquiescence. For instance, in the Territorial and Maritime Dispute between Nicaragua and Colombia, the court applied the principle of estoppel and awarded the disputed territory to Columbia as it was observed that Nicaragua did not oppose to the effective possession by Columbia for a significant period of time. This approach has been adopted by courts and arbitral tribunals in a plethora of other disputes such as in Temple of Preah Vihear (p. 39), and in Legal Status of Eastern Greenland (p. 69), etc.
It is pertinent to note that the territorial dispute over the Kalapani region was ignored by Nepal from 1961 to 1997. Further, with India’s effective possession of Kalapani and the exercise of sovereignty over the territory continuously and consistently alongside the deployment of military forces since 1962, highlight the potential application of this principle. Nepal did not raise any objection for more than three decades and due to the domestic issues in Nepal, it started to claim sovereignty over this region in 1998. This conduct of Nepal amounts to acquiescence and therefore, Nepal would most likely be estopped from claiming sovereignty over the Kalapani region.
Conclusion
Despite the long-standing nature of the dispute, it can be reasonably concluded that Nepal’s claim to the territory is not based on historical facts and evidence. In fact, by updating the political map and including Kalapani within the borders of Nepal, it can possibly be argued that Government of Nepal has violated Article 1 of the 1950 Indo-Nepal Treaty of Peace and Friendship, which stipulates that the Governments of India and Nepal shall “acknowledge and respect the complete sovereignty, territorial integrity and independence of each other.”
However, it remains that the issue is one of contested territory and it is important for an amicable resolution of the matter. Particularly given that India remains as of the largest bilateral trading partner of Nepal (see here), along with significant approved foreign direct investment (which entails over 150 Indian ventures) in the region.
Hitesh Nagpal is a third-year law student at the Maharashtra National Law University, Mumbai.
Image: Ministry of External Affairs (Flickr).
The JFIEL Conference 