...

Referring Nepal-India border dispute to the ICJ under its Contentious Jurisdiction

By Anu Paudel on Tue Nov 03 2020

Background

Nepal and India are not just immediate neighbors. They also share close economic and diplomatic relations, a vast amount of social relations from marriage, employment and livelihood, and cultural relations through common food habits, rites and rituals. However, recently a tension has escalated between the States after India unilaterally inaugurated an 80 kilometers long link road to China which it had built through the Lipulekh area. The tension did not just grow abruptly. It had been soaring since June 2015, when Nepal downright objected to the agreement between China and India to use Lipulekh as a trade route without Nepal’s knowledge.

Nepal had sent its letters to India to propose a date for dialogues regarding the border dispute after India issued its political map in November, 2019 incorporating the disputed lands, and also after India inaugurated the road through the Lipulekh area which followed no response from India. Nepal, on May 20, 2020, issued its updated official map six months after India unveiled its new political map and later on adopted the second amendment to its constitution, thereby keeping the newly updated map, including Limpiyadhura, Lipulekh and Kalapani areas, on the coat of arms under Schedule 3 of the Constitution. A territorial wrangle can clearly be seen between the States as both constitute the same territories (Lipulekh, Limpiyadhura and Kalapani areas) under their official maps, and both Nepal and India have been objecting to each other’s maps, claiming the territories as their own.

After months of silence, the PM of Nepal, K.P Sharma Oli and the PM of India, Narendra Modi held a telephone talk showing their willingness to carry out dialogues on the border issue, but it is yet to take place. The Indian Army Chief Manoj Mukund Narvane’s visit on November 4th, 2020 is expected to be an ice breaker of the territorial wrangle.

There are various ways of settling the Nepal-India territorial dispute under International Law. The way forward to conduct peaceful dialogues between the States would be through negotiations, mediation, or conciliation. If none of these means work, Nepal and India can take the border dispute to the International Arbitration tribunal or to the International Court of Justice (hereinafter referred to as “ICJ”) under its Contentious Jurisdiction.

This blog focuses on the modus operandi of referring the Nepal-India border dispute under the Contentious Jurisdiction of the ICJ.

Jurisdiction of ICJ

The ICJ can only deal with a dispute when the States concerned have recognized its jurisdiction.[1] No State can be a party to proceedings before the Court unless it has in some manner or other consented thereto. Both Nepal and India are member States of the UN, so the provisions of the UN Charter and the decisions given by ICJ [2] in the particular case will be binding upon the parties if they refer it to the Court and the Court decides upon it.

However, the States (Nepal and India) while referring the dispute to ICJ, must expect that it can take longer than expected to solve the dispute, sometimes the cases can remain unsettled for decades. The lengthy process to settle issues is one of the cons of taking a case to ICJ.

The ICJ has two types of jurisdiction - Contentious and Advisory Jurisdiction [3]. This blog focuses on contentious jurisdiction.

Contentious Jurisdiction of ICJ

Contentious jurisdiction is the jurisdiction of ICJ which involves dispute between States that submit the dispute by their mutual consent to the Court for a binding decision. Contentious Jurisdiction is interpreted as being an essence of one of the fundamental principles of International Law that “no State can, without its consent, be compelled to submit its disputes with other States either to mediation, arbitration or any form of pacific settlement”.[4]Article 36, paragraph 1, of the ICJ Statute provides that the jurisdiction of the Court comprises all cases which the parties refer to it. The Court will avoid adjudicating over the issue as long as both or either of the party is not ready to submit the issue before the court. The court will not have contentious jurisdiction over such cases that are not referred to it by the respective parties. As of October 11, 2020, 135 contentious cases have been brought to the Court, which has given more than 119 judgments. Under Contentious Jurisdiction, parties can express their consent through various methods.

Different methods through which the consent can be conferred to refer the Nepal-India border dispute to the ICJ

Firstly, Nepal and India can opt for an ad-hoc arrangement or a special agreement i.e. a compromis where the parties agree to refer the dispute to the ICJ. The special agreements, concluded by the parties especially for the specific purpose have to be registered by notification to the Registry of the Court. The subject of the dispute and the parties must be indicated.[5] For example, a compromis was concluded between Hungary and Slovakia on 7 April 1993, by which they submitted to the Court the dispute concerning the Gabcikovo-Nagymaros Project.

Similarly, the Netherlands filed a special agreement to the Court on 29 November, 1957 by which Netherlands and Belgium submitted a dispute regarding the issues of certain frontier lands. The ICJ gave its judgment that the parties in their ‘1843 Boundary Convention’ established the border, and that the disputed plots were Belgian. The ICJ further mentioned that treaties are special contracts reflecting mutual consent and it supersedes all other possible justifications for a territorial claim, because it is the most direct expression of both parties with respect to the disputed land. Nepal and India, in the same manner, can conclude a special agreement to refer the case to ICJ, since their border dispute is also related to the interpretation of a treaty i.e. Sugauli Treaty 1816 [mainly Article 5 -the delimitation of Kali River (now Mahakali)].

Secondly, the States can refer to a previously concluded in-force treaty’s provision, by the virtue of which they can confer jurisdiction upon ICJ i.e. through the inclusion of a jurisdictional clause in a treaty.[6] States in their treaties generally include agreed compromissory clause in advance, to submit to the Court any dispute concerning the implementation and interpretation of the treaty. For example, the member countries on Genocide Convention (Article IX),  The Refugee Convention (Preamble), Treaty of Peace with Japan (Article 22), Single Convention on Narcotic drugs [Article 48(2)]can refer cases in relation to these treaties interpretation to the ICJ, since the treaties include the jurisdictional compromissory clauses.

However, the Sugauli Treaty of 1816 or the Treaty of Friendship 1950 concluded between Nepal and India does not contain any such clause to refer cases concerning its interpretation to the ICJ. So, it would be impossible to refer the case to ICJ through these Treaties. Nonetheless, Nepal and India can conclude a new special agreement or become a member to an already existing or about to be concluded bilateral or multilateral treaty that confers jurisdiction to the ICJ, in matters relating to border disputes. For example, the European Convention for the Peaceful Settlement of Disputes (Article 38), The Revised General Act for the Pacific Settlement of International Disputes ( Article 17) confer the jurisdiction to ICJ in case of any disputes between the members.

Thirdly, the States can refer disputes through compulsory jurisdiction. Compulsory jurisdiction is one of the forms of Contentious jurisdiction which is given in Article 36(2) of the ICJ Statute. States can unilaterally opt for a compulsory jurisdiction, where States approve the Court’s jurisdiction conditionally or unconditionally, in relation to any other State accepting the same obligation. States usually declare compulsory jurisdiction with numerous conditions. Nepal has not yet declared to accept the Compulsory Jurisdiction of the ICJ. Whereas, India revised its Declaration accepting the compulsory jurisdiction of ICJ on 27th September 2019, a month before it issued its map incorporating Limpiyadhura, Lipulekh and Kalapani areas. The declaration made by India consists of many conditions and amongst them is that India will not accept the jurisdiction of the Court in disputes relating to the status of its territory or the modification of its frontiers or any other matter concerning boundaries. [Condition No. 10(a)].

Nepal cannot opt for compulsory jurisdiction because it has not made any declaration for recognizing the compulsory jurisdiction of ICJ and, even if it did, ICJ may decline adjudicating over a border issue with India, because of the condition reserved by India.

However, there is an exception to such reservations. The ICJ in Nicaragua Case, despite the ‘multilateral treaty reservations’ of the USA, adjudicated over the case and decided against the illegal intervention of the USA in Nicaragua’s sovereignty and State affairs. The ICJ observed that the principle of non-intervention is a “part and parcel of customary international law”.[7] The Court further held that multilateral treaty reservations cannot preclude the Court from relying on customary international law, because customary law exists independently of treaty law.

Among other things, unlawful Intervention concerns the direct or indirect dictatorship against the external independence or territorial supremacy of the intervened State. Such action is against article 2, para 4 of the UN Charter. The three disputed areas fall under the official maps of both the States and they have been rejecting each other’s claim over such territories. Either way, there has been an illegal intervention over territorial integrity. Nepal has to prove that it is the intervened one, if it refers the dispute under Compulsory Jurisdiction, on the counts of violation against customary international law of non-intervention. However, it will be under the discretion of ICJ to either accept or decline to adjudicate the issue.

Conclusion

Overall, it is a difficult process to take a case to ICJ, mainly when both or either of the parties do not consent on taking it. Nepal should look towards solving the ongoing border issue through high-level diplomatic dialogues with India as long as it is possible and feasible, and should opt for the amicable means of dispute settlement such as Negotiation, Mediation, Conciliation, Good offices, and Regional Settlement. However, if these means do not work, then there will always be a choice of taking it to the International Court of Justice, through an ad-hoc arrangement between the States or by becoming a member to a treaty that confers jurisdiction to ICJ in terms of border dispute. Since a Court is supposed to be independent of any influences, and as mentioned by Judge Lachs in his separate opinion in the Lockerbie Case, the ICJ is ‘the guardian of legality for the international community as a whole’, it is best to hope that referring the case to ICJ would help justice and friendly relations prevail between these disputing neighborly States.

(Author is a B.A.LL.B. final year student at Nepal Law Campus.)

All posts in Paluwa Blog are solely the opinion of their authors and do not, in any way, represent the viewpoint of Paluwa Pleaders.

 


[1] United Nations Statute of the International Court of Justice, April 18, 1946, Art. 36(1)(b) [hereinafter ICJ Statute].

[2] Ibid at. Art 59.

[3] ICJ Statute, supra note 1 at. Art. 65(1).

[4] Status of Eastern Carelia, Advisory Opinion, 1923 P.C.I.J. (ser. B) No. 5 at. 27 (July 23).

[5] ICJ Statute, supra note 1 at. Art. 40(1).

[6] ICJ Statute, supra note 1 at. art 37.

[7] Military and Paramilitary Activities in and Against Nicaragua (Nicaragua. v. U.S.), Judgment, 1986 I.C.J. Rep.14 at. 107 & 8 (June 27).