(As Indian government dilly dallies in accepting the much-talked report of a joint Eminent Persons Group, below is the piece I wrote some two years ago exploring the details of controversial bilateral treaty of 1950.)
Abstract:
After much wrangling for decades, Nepal and India have finally spearheaded in the direction to revise officially perhaps the most controversial treaty between them. Kathmandu and New Delhi have constituted a joint Eminent Persons Group (EPG) in early 2016 to review the past treaties and agreements and submit recommendations to the respective governments so that they befit the current realities. The Indo-Nepalese Treaty of Peace and Friendship signed in 1950 which has been a perennial irritant from the early years of its inception, is undoubtedly the major agenda on the table. There would be hardly disagreement that it could be a good starting point in the direction to quell the deeply ingrained mutual distrust but much will depend on the political will of both the capitals as the recommendations of EPG will not be obligatory. The paper will examine the different facets of the Treaty which both the parties see the need to review, and explore the reasons which held New Delhi and Kathmandu back for whopping sixty seven years to traverse the road to the review.
Key words: 1950 Treaty, Nepal, India, friendship, peace, EPG
INTRODUCTION
Nepal and India, both were in extremely difficult situation when the idea for a crucial treaty that would define the bilateral relationship to suit the new realities, was being floated. In the north, Communist China was tightening its grip over Tibet close to the borders with both countries. India which had just gained independence from its British colonial masters, was trying to set its own course in newly chartered waters of diplomacy and foreign affairs. But much to the chagrin of the smaller neighbors, independent India too sustained the British Raj legacy as the provider of security in its neighborhood (Raja Mohan, 2013). Nepal ruled by the Rana oligarchs for over a century, did not have military capability to avert any foreign invasion, be it from the north or south. The democratic movement to overthrow Ranas was also gaining momentum. The aforementioned developments seemed to have given impetus to formalize a treaty of friendship and peace at the earliest possible time.
However, there are different interpretations on how the treaty came into existence. The fear emanating from the north was palpable in Indian establishment. On 1 March 1950, in his letter to the Chief Ministers of the Indian States, the first Prime Minister of independent India Jawaharlal Nehru had explained India’s view while the discussions for the treaty were approaching the final stages. Nehru said, “We have no formal military commitments in regard to Nepal nor do we desire any. But it is perfectly clear that in the event of any aggressor attacking Nepal, we cannot remain indifferent. From that point of view, defense of Nepal becomes defense of India.” (Bhasin, 2005, p. 83)
It was not difficult to understand Nehru’s indication towards China as possible ‘aggressor’. The Treaty of Peace and Friendship was signed on 31 July 1950. India’s foremost analyst C Raja Mohan has argued in his book ‘Modi’s World: Expanding India’s Sphere of Influence’ that the treaty was signed at the request of Nepal, ‘whose rulers were frightened by communist China’s advance into Tibet’ (Raja Mohan, 2015).
But did Nepal really propose first or it was the other way round? This question still seems to create divergent views. Some in Nepal argue that ‘India pressurized Nepal though it was not willing to sign the treaty’ (Pant, 2006). Some are of the opinions that India took advantage of the weak position of Rana rulers who were on the verge of downfall. Former Nepalese Foreign Minister Ramesh Nath Pandey, in his autobiography ‘Kutniti ra Rajniti’, quoting a report he submitted to the erstwhile government in 1987 has mentioned, “The provisions in the agreement were agreed by Ranas with the intention to take their property to India and live there, rather than serving the national interest” (Pandey, 2015).
Despite these kinds of differing views, the treaty continued to be the bedrock of Indo-Nepalese relationship for many years to come. There are ten articles in the treaty. Article I talks about the peace and friendship between the two countries and the recognition as well as respect of each other’s sovereignty, territorial integrity and independence. Article II envisages that the two governments inform each other in case of any serious friction or misunderstanding with any neighboring state that could probably be detrimental to Indo-Nepalese friendship. Article III is about the continuation of diplomatic relations while Article IV mentions about the appointment of consul officials. Article V is about the import of arms. Article VI has the provision of national treatment to be bestowed upon each others’ citizens who participate in industrial and economic development. In the similar tone, Article VII calls for the reciprocity in the privileges to each others’ citizens in movement, residence and ownership of property among others. Article VIII annuls all the past agreements entered by the British India with Nepal. Article IX says the treaty becomes effective from date of signature by both the parties. Article X has the provision of termination and it says that if either side wants to get rid of the treaty, other party should be given a year’s prior-notice.
Some of the provisions opened doors of opportunities for the citizens of both countries while some created controversy from the early years since the treaty came into existence. Kathmandu continued to portray the treaty as unequal while Indian side, though, showed readiness to review and update the treaty on papers, seemed to see any step to do so as the effort of Nepal to go away from the Indian embrace. The letters which were exchanged along with the Treaty, but was revealed almost a decade later, would become the major bone of contention between Kathmandu and New Delhi in coming years. The controversy about the treaty and the letter of exchange will be discussed at length in the next section.
DISSONANCE
The letters of exchange consist of five clauses which basically further explain the provisions of the Treaty. Clause 1 explicitly states that ‘neither government shall tolerate any threat to the security of the other by a foreign aggressor’. It further mentions about the need of consultation with each other and come up with counter measures to tackle with such threat. This clause is clearly linked with the Article 2 of the main treaty which envisages each side to inform one another in case of serious friction with the third neighboring state. Many in Nepal object to this provision in the letters of exchange as they think it intends to bring Kathmandu under Delhi’s defense perimeter. Professor Surya Subedi, expert on International Law who shares that opinion has even argued that the Article 2 of the main treaty should be amended and the letters of exchange should be annulled (Acharya, 2014). Some in Nepal even accuse India of acting unilaterally and that it breached, time and again, the Clause 1 of letters of exchange and Article 2 of the Treaty. They argued that as India did not inform Nepal when it had wars with China (1962) and with Pakistan (1965, 1971, 1999), ‘the treaty has been made invalid according to the international theory’ (Hamal, 2002, p. 51). A section even accuses Delhi to the extent that they see some sinister intention of India behind the Treaty. Let’s look at one of the instances. Veteran journalist Sanjay Upadhya in his book ‘The Raj Lives: India in Nepal’ observes: ‘Nepalis have perceived this treaty as a symbol of New Delhi’s definition of South Asia as an integral unit of its security umbrella. Most Nepalis resent this interpretation and accuse India of being insensitive to their independence’ (Upadhya, 2008, p. 5).
Indian side is however been seen trying time and again to allay these fears. Be it the first Indian Prime Minister Nehru who is much credited to set the foreign policy of independent India or the incumbent Narendra Modi, they had not shied away from assuaging Nepali side about Delhi’s intentions. During his visit to Kathmandu on 14 June 1951, Nehru while addressing a public meeting said:
‘Nepal has been a free nation since a very long time, and it has been our desire that the country should continue to exist as an independent nation. The disturbed conditions in the world have strengthened our resolve to help you maintain your freedom, because you have our traditional friend. If some of you feel that India wishes to interfere in your affairs, then that would be a wrong notion. Firstly, because this would be contrary to the fundamentals of our national policy, and secondly, because it is in our own interest to honor your independent status’. (Bhasin, 2005, p. 172)
Different context and different tone, but Indian current Prime Minister Narendra Modi while addressing the Nepalese Constituent Assembly in 2014 also reiterated the Delhi’s similar message. But many in Nepal think that oft-stated message as something only on papers, but never realized in practice. Lately, in 2015 when Nepal was about to promulgate the constitution Indian Foreign Secretary and Modi’s special envoy ‘pressurized the Nepalese side to address the concerns of the parties which had base on the southern plains bordering India and postpone the promulgation date’ (Acharya, 2015). The major parties in Nepal did not accept the Indian suggestion and promulgated the constitution with the approval of over 90 percentage of the assembly but India explicitly expressed its displeasure just ‘noting’ the passage of constitution (Ministry of External Affairs, Sept. 20, 2015). Later, the India Express published a story in which Delhi reportedly asked Nepal to amend constitution in seven different fronts (Roy, Sept. 24, 2015). There is a long list of such incidents but even a few are enough to show the deep distrust still prevailing between Delhi and Kathmandu.
The suspicions with the Treaty and the related letters of exchange seemed to have grown when the latter, assumed secret, were revealed after almost 10 years the agreement came into existence. There are historical evidences of interesting exchange of words between the then towering personalities of India and Nepal regarding the interpretation of the Treaty. In November 1959, Indian Prime Minister while giving speech in context of India-China hostilities in the parliament argued that any aggression on Nepal or Bhutan would tantamount to the aggression on India. Two days later, Nepalese Prime Minister BP Koirala in his statement, said that even if there was aggression, India could not take action until and unless Nepal request for help. A few days later on 3 December 1959 during a press conference Nehru accepted Koirala’s interpretation but revealed that secret letters had been exchanged (Bhasin, 2005, pp. 398-399).
Time and again, another bone of contention has been the interpretation of Clause 2 of the letters of exchange. It further explains about the provision of arms import mentioned in Article V of the Treaty. Clause 2 mentions that “any arms, ammunition or warlike material and equipment necessary for the security of Nepal that the Government of Nepal may import through the territory of India shall be so imported with the assistance and agreement of the Government of India. The Government of India will take steps for the smooth and the expeditious transport of such arms and ammunition through India”(Ibid, pp. 96-97). Though this clause explicitly mentions about the need of Indian involvement in case of arms imported via Indian route only, Delhi seemed to have been concerned even when such materials are imported from other routes.
The year 1988 was one of such instances when Indian government expressed its displeasure with Nepal for reportedly buying arms from China and the dispute was later seen as one of the reasons behind the 1989 blockade by India. In an article titled ‘Nepal: India objects to Arms Purchases’ and published in ‘Economic and Political Weekly’ the writer D.N. had observed: “While the unequal 1950 Indo-Nepal (Nepalese) Treaty gives India a veto over Nepal’s purchases of arms through India, the Indian government has tried to broaden the veto to include any purchases of arms by Nepal. By its recent purchase of arms from China, the Nepali government has signified its rejection of this attempt” (D.N., 1988).
At that point, many including the people in Indian side, thought India raised the issue of arms import rather to serve another purpose. In an article titled ‘India-Nepal Discord’ which was published in ‘Economic and Political Weekly,’ writer Anirudha Gupta mentioned, “…Nepal’s purchase of a few assault rifles, missiles and anti-aircraft guns from China is highlighted to create an acute phobia about Indian security. It is not clear which of the items cited above has any bearing on the issues pertaining to the two treaties on trade and transit which lapsed on March 23. If security is the upper-most concern then why has it not come out with an authoritative statement on this particular purchase of a few arms from China?” (Gupta, 1989).
So has been the deep resentment and suspicion among Nepali populace with the provision incorporated in Article VI and Article VII of the treaty, which envisage the national treatment be given to each others’ citizens. Nepal is a very small and weak country in comparison to India, be it the population, size, strength (military capability, human resources, etc) or other resources. An influx from Nepal to India may not have much impact but if that happens the other way around, it would have bigger impact in Nepal. Many in Nepal think these provisions in the Treaty could ‘eventually result in more influence of Indian population or Indian origin Nepalis that could have repercussions for Nepal’s national interests’ (Acharya, 2016).
There is also a section in India which thinks that these provisions favor India more than Nepal. In the aforementioned article written by D.N. for ‘Economic and Political Weekly’ it was observed that:
“The granting of formally equal rights only legitimizes inequality, as the Indian migrants to Nepal are essentially businessmen of various hues, while the Nepali migrants to India are Gorkha soldiers and low-paid labourers working in hotels, restaurants, as domestic help, watchmen, etc. Indian businessmen in Nepal are there to monopolise its trade and industry and, through that, to subvert Nepal’s independent existence. Nepali migrants in India are here as cheap labour and cannon-fodder for the same expansionism that threatens their nation’s existence”. (D.N., 1988)
However, low-paid workers from Indian side, especially from the border areas, also come to Nepal in large number. There are many Indians who are working as vegetable and fruit vendors, as masons and labourers in construction, as barbers and electricians in different areas of Nepal. They can work freely in Nepal. They send money back home for their families whatever they are able to save from their earnings.
But a larger section in India feels that Nepal has not been implementing the provisions pertaining national treatment. Former Indian ambassador to Nepal KV Rajan, in his article titled ‘Should the 1950 Treaty be Scrapped?’ and published in the Hindu, wrote, “The treaty is already respected more in the breach than observance. Indian nationals in Nepal had long ago lost any entitlement under the “national treatment” clause; they can still travel to Nepal without a visa, and the Indian rupee is legal in Nepal, but permission to work, purchase property, and engage in activities on a par with the Nepalese is usually not available” (Rajan, 2008).
Clause 4 of the letters of exchange has been another reason of resentment among Nepali populace. It envisages to accord preference to the government of India and its nationals in case Nepal plans to develop its natural resources and, industrial projects. This provision is nowhere in the main treaty. Many Nepalis share the argument that this provision should be either scrapped or revised as they think that the preference could lead to India’s monopoly in Nepal and especially, in the sector of natural resources like the development of hydropower (Acharya, 2016).
The aforementioned clauses of letters of exchange and articles of the Treaty are seen as major reasons behind the Nepalese demand to review and many a time, demand to scrap the Treaty. The level at which the Treaty was signed also seems to have triggered discontent in Nepalese side. The treaty was signed between the then Indian ambassador to Nepal Chandreshwar Prasad Narain Singh and the erstwhile Prime Minister of Nepal Mohun Shamsher Jang Bahadur Rana. This was completely a mismatch of protocol. The reasons behind the mismatch were not clear, but it seems to have strengthened Nepal’s perception of this treaty being ‘unequal’ (Hamal, 2002, p. 51).
India however has been maintaining that the treaty has benefitted Nepal more than India. Indian Ministry of External Affairs has mentioned that ‘Under the provisions of this Treaty, the Nepalese citizens have enjoyed unparalleled advantages in India, availing facilities and opportunities at par with the Indian citizens’ (Indian Ministry of External Affairs, 2015). Opinion that the treaty is ‘unequal for India’ seems to have been deeply ingrained in larger section of India. (Prasad, 2014)
These views clearly signal the serious differences prevalent between Nepal and India apropos the Indo-Nepalese Treaty of Peace and Friendship. And, probably due to these kinds of differing views between Nepal and India, it took whopping sixty seven years before the official efforts to review bilateral treaties began until recently.
ROAD TO REVIEW
Though there have been demands for the review of the treaty time and again, there is no provision for that purpose. Article 10 of the treaty only says that if either party wishes to terminate it can do so by giving a year’s prior-notice. Hence, it could be concluded that even if the treaty is reviewed, a new treaty should be brought altogether. However the elements of the old treaty which both parties agree to continue and the name could come de novo. Nepalese side has already ‘agreed to keep the title of the treaty intact’ as it thinks ‘the tone of the title very positive’ (Pandey L. , 2016).
There is no much evidence when the issue of reviewing or scrapping the treaty began to emerge officially. But many believe Nepal expressed its resentment from the ‘very outset’ the Treaty came into existence (Thapa, 2016). The country saw four kings after the Treaty but King Mahendra who ruled from 1955 to 1972 was the ‘only monarch to raise the issue of 1950 treaty with India’ (Nayak, 2014). However Kirti Nidhi Bista was ‘the first prime minister who questioned the validity of the treaty in 1969’ and he ‘called the Treaty to be outdated and non-operative and did not consider it essential to inform each other while developing relations with any third country’ (Thapaliyal, 2012). Different political parties, especially the communists continued to demand the abrogation of the Treaty during the Panchayat or after the restoration of democracy in 1990. But it was 1995 when the issue of review of the Treaty was raised officially with India for the first time. During the official visit to the southern neighbor by the first communist Prime Minister of the country and the leader of CPN (UML) Manmohan Adhikari, the matter of review of the Treaty found place in the joint statement. Upon his return to Nepal, Adhikari even told the media that ‘India had agreed to review the existing 1950 India-Nepal Treaty…’(Bhasin, 2005, p. 892).
Then it became a kind of routine topic during the high level visits but to the chagrin, only on papers. It was 1997 when Nepal, for the first time, officially gave a proposal of a new treaty that it sought to replace 1950 Treaty with. The details of the proposal were not officially made public but according to the press reports, in the proposal given by Foreign Minister Kamal Thapa, ‘Nepal showed its keenness to accommodate in the new treaty what she described as the legitimate security concerns of her neighbor, while expecting that current status of non-reciprocity in offering national treatment to each others’ citizens continued.’ (Ibid, p. 982).
The Indian analysts and retired diplomats however described Thapa’s proposal as a ‘non-paper’ which ‘for the first time set out Nepalese ideas for a revision of the treaty’ (Rajan, 2008). During that period, Inder Kumar Gujral was the prime minister of India who was famous for his ‘Gujral doctrine’ which advocated the non-reciprocity in favor of smaller neighbors like Nepal. Though India expressed its readiness to review the Treaty during his tenure, things could not move ahead in reality. Some argue that it was not the first time India expressed its explicit readiness to review the Treaty upon Nepal’s request. Such views are in Nepal too. Nepalese former foreign minister Ramesh Nath Pandey in his autobiography ‘Kutniti ra Rajniti’ had written the following:
“According to the record, during a meeting with erstwhile Nepalese Foreign Minister Dili Raman Regmi on May 6, 1954, the then Indian Prime Minister said that Ranas raised the issue to make changes in 1950 Treaty. Along with this, the note sent to foreign ministry by the erstwhile Nepalese ambassador to India on November 17, 1954, showed that Nehru had given written directive to his foreign secretary to update the Treaty” (Pandey R. N., 2015).
It was 2008 when two countries agreed to form a high level committee at foreign secretary level to ‘review, adjust and update the 1950 Treaty of Peace and Friendship and other agreements’ during Prime Minister Pushpa Kamal Dahal’s official visit to India ( Indian Ministry of External Affairs, 2008). It was perhaps not much an achievement for Dahal who led the armed struggle that had the abrogation of 1950 treaty as its one of the major demands. But there was something to show in hands of Dahal to the Nepalese public that at least a high level committee would be formed to review, adjust and update the Treaty. But nothing much moved ahead later on. However in 2011, during Prime Minister’s Baburam Bhattarai’s visit to India, both sides agreed to form Eminent Persons Group (EPG) to ‘look into totality of India-Nepal relations and suggest measures to further expand and consolidate the close, multi-faceted relations between the two countries’ (Indian Ministry of External Affairs, 2011).
But it took almost three years for the Terms of Reference of EPG to be finalized during the third Joint Commission meeting at the level of Foreign Ministers in 2014. And, it took two more years to finally constitute the EPG which consists of prominent personalities from Nepal and India having extensive diplomatic, academic and political experience. In the first meeting held in July 2016 in Kathmandu, the EPG figured out the bilateral agendas to be discussed. EPG categorized the agendas in five different areas—‘political issues, government to government relation, social and cultural relation, economic exchange and developmental cooperation’ (The Himalayan Times, 2016). Its second meeting was held in Delhi in October 2016. In its tenure of two years, EPG will come up with recommendations in whole gamut of bilateral relations– the 1950 Treaty being the prominent one.
CONCLUSION
There is a sense of optimism in both the capitals that EPG could be an important step in sorting out deep-rooted misgivings and misunderstandings. However, the future of trust and strength in bilateral relations will squarely depend on the political will of Delhi and Kathmandu as the recommendations of this committee are not obligatory. There is glimmer of hope though, that the governments will be morally bound by the recommendations of the committee they formed themselves. The hope looks further strengthened as the voices to review the treaty are becoming louder even in India. Former Indian ambassador to Nepal Rakesh Sood observed that ‘Modi government should declare its readiness to have open and transparent discussions with Nepal on this (Treaty) so that (Nepali) political leaders stop using it as a stick to beat India with’ (Sood, 2014). In the similar tone, Indian foremost analyst C Raja Mohan had put forth the view that ‘Whether Kathmandu wants it or not, it is in Delhi’s interest to revise the treaty with Nepal. Delhi certainly needs a new compact with Kathmandu that has strong political support in Nepal and provides a sensible basis for mutually beneficial engagement in the new 21st century’(Raja Mohan, 2015, p. 58).
India recently updated its treaty with Bhutan and it seemed to have had positive impact on bilateral relations. Indian writer Shashi Tharoor observed : ‘The previous client-state relationship reflected in India-Bhutan friendship treaty of 1950 was altered when the treaty was updated in 2007; it now not only reflects the contemporary nature of the two countries’ bilateral relationship but also lays the foundation for their future development in the twenty-first century’ (Tharoor, 2012). Nepal, is of course, a totally different country than Bhutan, in terms of its nature and perspective towards India, however the review of the Treaty could glean the similar positivity in bilateral relationship. But for that, some argue, the most essential precondition would be ‘India’s magnanimity as a bigger neighbor to allow non-reciprocity in favor of Nepal’ (Karki R., 2016). The big question is—Will that happen? We should wait at least for about two years till the EPG come up with its recommendations for the clear-cut answers.
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