Anupam Paudel (KATHMANDU, 22 Nov) – Currently, the talk of the town has been the blockade India has enforced along its border with Nepal. Though undeclared, as some say, (there is a famous Nepalese saying, “A thief never confesses burglary at first place”); the blockade has violated many International laws, treaties, convention. Among them is the United Nation Convention on the Law of the Sea to which Nepal and India, both are The States Parties.
This Convention includes some rights for landlocked country like Nepal regarding access to and from sea and freedom of transit. It is the freedom of transit part of this Convention which we will be talking about. In accordance to this convention, India for us is a transit state which mean exercising the rights provided in this Convention, land-locked States(Nepal) shall enjoy freedom of transit through the territory of transit States(India) by all means of transport.
But the terms and modalities for exercising freedom of transit shall be agreed between the land-locked States(Nepal) and transit States(India) concerned through agreements between them. For Nepal and India’s case, such bilateral agreement came in name of, treaty of trade between Nepal and India which has a provision for free and unhampered flow of goods to and from one’s territory. The transit state (India) though can exercise its sovereignty over its territory as mentioned in this Convention.
But the transit state(India) can only exercise sovereignty over its territory as a transit state if and only if the rights and facilities provided to Nepal as a landlocked state by this Convention infringe their(India) legitimate interests. Remember, it has to be the right provided to Nepal as a landlocked state in accordance to this convention which if infringe their(India) legitimate interest they can then exercise sovereignty over their territory.
But, Nepal drafting its own constitution through democratic norms by no way relates to the rights it gets to exercise as a landlocked state in accordance to this convention. It is Nepal’s sovereign right it gets to exercise as an independent country.
So, a question.
The grounds upon which they are exercising sovereignty over their territory, blockading all traffic in route to Nepal along its border, does it have any legitimacy? Can India say to the world that it denounces itself of UN Charter, NAM principles(to which it is a founding member), to which it(India) is a party state, and proclaim interfering in Nepal’s internal affairs is its legitimate interest.
Can they explain how Nepal denying their unwanted intervention at the 11th hour of constitution drafting procedure infringes their legitimate interest? Yes, there are problems in some parts along the border but not in all parts. Why then stop the traffic in transit where there is no situation at all.
There is a clear violation of this UN convention on their part.
Coming back to the convention, it states, if any delays or difficulties of technical nature in transit occur, the competent authorities of both concerned states shall cooperate towards their expeditious elimination.
Transit state (India) is not supposed to create unnecessary lengthy delays or obstruct the traffic in transit in name of lengthy security checks and administrative procedures.
Though present scenario is more political than technical, but the obstruction of traffic in transit still is a violation of our right to transit as a landlocked state. It is an open a message to UN and international community that UN Conventions can be violated at will, without any consequences.
It is now clear our rights are hijacked.
What can we do then?
We can turn to Part XV, settlement of disputes, of this very Convention. To seek solution.
The first option for the settlement of disputes as provisioned by this convention is peaceful agreement between concerned states in accordance with Article 2 paragraph 3, of the Charter of United Nation. But in a scenario where a transit state is pretending deaf disputes cannot be settled even through provision of conciliation as mentioned in this Convention on Law of Sea. As both parties have to agree into conciliation procedure (which at the moment is very unlikely) and even if one of the two parties in disputes fails to agree upon the conciliation procedure, conciliation procedure ends.
So, when means of settlement of disputes through agreement slams its door shut. The only remaining way to settle the dispute is through, COMPULSORY PROCEDURES ENTAILING BINDING DECISIONS.
Which has a provision for the dispute to be submitted at the request of any party to the dispute, to the court or tribunal having a jurisdiction under this Convention.
So, if we were to exercise our right provided as a state party to this convention, we could request to submit our dispute concerning interpretation or application of this Convention to: (any one of them):
- the International Tribunal for the Law of the Sea established in accordance with Annex VI;
- the International Court of Justice;
- an arbitral tribunal constituted in accordance with Annex VII;
- a special arbitral tribunal constituted in accordance with Annex VIII for one or more of the categories of disputes specified therein.
So, are we prepared to go International or not regarding our rights that are hijacked is another aspect altogether. Government has to decide on that. Moral of the story is if government does choose to formally go international it has plenty of legal grounds.
Paudel is associated with Local Governance and Community Development Program – II (LGCDP-II) MoFALD.NSP unit,Local Development Training Academy.
Email: [email protected]