INTERNATIONAL LAW

Indo-Nepal Territorial Dispute- Kalapani Territory

SUBMITTED BY: SUBMITTED TO:

GARVIT CHAUDHARY (PROF) MONIKA NEGI

Roll Number:26BALLB17

2020

NATIONAL LAW UNIVERSITY,DELHI

1
 ACKNOWLEDGEMENT

Bef0re beginning with this research pr0ject, I w0uld like t0 express my deep gratitude
t0wards my pr0ject supervis0r Prof. Monika Negi f0r pr0viding me the essential guidance
thr0ugh0ut this pr0ject. Her c0nsultati0ns were very beneficial. She helped me streamline the
directi0n which I t00k, theref0re I was able t0 make my pr0ject practical and inn0vative.

-Acknowledged by-

GARVIT CHAUDHARY

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 DECLARATION

I hereby declare that the w0rk rep0rted in this pr0ject rep0rt 0n the t0pic 0f Indo-Nepal
Territorial Dispute- Kalapani Territory submitted at Nati0nal Law University Delhi, is an
0utc0me 0f my research w0rk carried 0ut under the guidance 0f Prof. Monika Negi. I have
duly ackn0wledged all the s0urces fr0m which the ideas and extracts have been taken. T0 the
best 0f my understanding, the pr0ject is free fr0m any kind 0f plagiarism.

-Declared by-

GARVIT CHAUDHARY

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 TABLE OF CONTENTS

Title Page Number

Acknowledgement 2
Declaration 3
Chapter-I Synopsis 5
Chapter- II Introduction 8
Chapter- III Claims of India and Nepal over the territory 13
Chapter-IV Territory Dispute Claims before ICJ 16
Chapter-V Analysis of the Court’s Territorial Dispute Jurisprudence 23
Chapter-VI Conclusion 26
Bibliography 28

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 CHAPTER-I

SYNOPSIS

Introduction

Kalapani is a 372 square kilometer territory at the China-Nepal-India tri-intersection. India

claims Kalapani as a piece of Uttarakhand while Nepal portrays the region on its map. The
map debate erupted again as of late after India discharged its new political map, following the
revamping of J& K, indicating the zone as its own. 1 As indicated by Sugauli treaty decided
among Nepal and British India in 1816, the Mahakali stream that goes through the Kalapani
territory is the border between the two nations. Be that as it may, British assessors thusly
indicated the source of stream, which has numerous tributaries, at better places. While Nepal
asserts that the stream west of the contested region is the primary waterway, thus kalapani
falls in their region. India asserts an alternate birthplace and includes the zone in its region.

Literature Review

In the book “India’s Borderland Disputes with China, Pakistan, Bangladesh and Nepal by
Anna Orton”, the main idea presented by the author about Indo-Nepal Territorial Disputes is
that firstly she has described the dispute in great detail and when talking about the reasons,
why it arose in the first place, the main reasons she gave are that of the difficult terrain, delay
in mapping the borders topographically, and the main reason according to her was relaxation
on part of India in the form of Open Borders and never assuming that Nepal would pose any
case of dispute in territorial Sovereignty. However this book doesn’t deal with the Nepal’s
proclamation by its release of new political maps and was written when this dispute was not
at such a grave state as it is today. 2

Similarly in the article “India and Nepal’s Kalapani Border Dispute: An Explainer, written by
Sohini Nayak”, the author has dealt with the issue by only highlighting the main causes
behind it, however has refrained from analysing it from the point of view of Territorial

1
Xavier C, “Interpreting the India-Nepal Border Dispute” (BrookingsJune 11, 2020)
<https://www.brookings.edu/blog/up-front/2020/06/11/interpreting-the-india-nepal-border-dispute/>
accessed June 24, 2020

2
India’s Borderland Disputes with China, Pakistan, Bangladesh and Nepal, Anna Orton, EPC Publishers, 2010

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International Law, and merely talks about the Open Border causes behind Kalapani Dispute, 3
This the researcher has rectified as he has tried to encapsulate and study all these causes to
the dispute with the Treaty laws, customary laws and ICJ precedents in his mind so as to
analyse the issue in accordance with International law and simultaneously provide a legal
discourse and arguments in favour of the rightful party.

In another article Legal aspects of sharing and management of transboundary waters in South
Asia: preventing conflicts and promoting cooperation by Kishor Uprety & Salman M.A.
Salman, 2011, this issue has been analysed purely geographically and the sole cause has been
described as of the changing course of the Kali river, however that’s just not it as through ICJ
judgements the researcher will analyse the dispute in light of International Law.

The researcher will break down the Sugauli treaty and International Law on territorial
disputes and how Treaties are to be applied, The different occurrences of Territorial disputes
which have a comparable nature, for example, the current question will likewise be
considered. Treaty of Sagauli, (March 4, 1816), agreement between the Gurkha head of
Nepal and the British Indian government that finished the Anglo-Nepalese (Gurkha) War
(1814–16). By the settlement, Nepal repudiated all claim to the contested Tarai, or marsh
nation, and surrendered its victories west of the Kali River and stretching out to the Sutlej
River. Nepal stayed free, yet it got a British inhabitant with the status of a represetative to an
autonomous nation as opposed to that of the controlling agent of the preeminent government
in an Indian state. The Researcher will analyse the situation from the perspective of ICJ
involving principles of Historical Interpretation of the Treaty, along with other principles
such as Effective Control and will also analyse the given dispute from the perspective of Uti
Possidetis. The researcher will also draw some similarities of the dispute and look at how the
ICJ effectively settled territorial disputes such as Ligitan and Sipadan dispute and Minquiers
and Ecrehos dispute.

Research Objectives

• To investigate the validity of India’s stand in this territorial dispute.

• Application of International law of territory and Treaty on this issue.
• Various interpretations of Sugauli treaty and analysis of all perspectives.
• Strategic importance of the Kalapani territory.

3
India and Nepal’s Kalapani Border Dispute: An Explainer, Sohini Nayak 2012

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Research Questions

• Which of the countries out of the three holds a valid claim on the disputed area?
• What parameters of International Law should be applied to understand and resolve
such dispute?

Hypothesis

The dispute has to be settled in favour of India by the application of Treaty Law, Customary
laws, and precedent laws, which in this case being the Treaty of Sugauli, Doctrines of Uti
Possidetis and Effective Control, various case laws where similar territorial disputes and
arguments were raised and decided upon.

Research Methodology

The researcher will employ doctrinal research methodology through the critical analysis of
the documents related to treaty of Sugauli and political maps by all three countries, He will
also focus on how International law is applied in such issues and what role do other
International bodies get to play in such disputes.

Tentative Chapterisation

The first chapter will deal with the introduction to the whole topic through synopsis, the
second would provide a detailed historic introduction to the dispute and focus on how it arose
and so far the recent developments in it. The third chapter would analyse the key contentions
of both the nations and analyse their claims, fourth chapter would focus on the analysis of the
dispute on the basis of different principles and drawing similarities from the already decided
territorial disputes by the ICJ. The fifth chapter would provide an analysis to how the
jurisprudence related to territorial disputes have developed over the course of the years in ICJ
and final sixth chapter would provide a conclusion and a settlement for the dispute in favour
of one party and will also provide reasons for the same.

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 CHAPTER- II

INTRODUCTION

The“b0rder dispute am0ng India and Nepal includes ab0ut 75sq km 0f regi0n in Kalapani,
where China, India, and Nepal meet. Indian military inv0lved the z0ne in 1962 after China
and India battled their fringe war. Three t0wns are situated in the c0ntested z0ne: Kuti, Gunji,
and Knabe. India and Nepal differ ab0ut h0w t0 decipher the 1816 Sugauli treaty between the
British East India C0mpany and Nepal, which delimited the limit al0ng the Maha Kali
waterway (Sarda stream in India). The dispute escalated in 1997 as the Nepali parliament
c0nsidered a settlement 0n hydr0-electric impr0vement 0f the waterway. India and Nepal
c0ntrast with respect t0 which stream c0mprises the wellspring 0f the waterway. Nepal views
the Limpiyadhura as the s0urce; India asserts the Lipu Lekh. Nepal has allegedly p0stp0ned
an 1856 guide fr0m the British India 0ffice t0 help its p0siti0n. The nati0ns have held a few
gatherings ab0ut the c0ntest and talked ab0ut t0gether l00king 0ver t0 determine the issue. In
spite 0f the fact that the Ind0-Nepali dispute gives 0ff an impressi0n 0f being min0r, it was
exasperated in 1962 by strains am0ng China and India. Since the c0ntested regi0n lies cl0se
t0 the Sin0-Indian 0utskirts, it increases key w0rth. 4”.

Like“m0st b0rder dispute, th0se 0f India with its neighb0rs are suggestive 0f m0re extensive
recipr0cal relati0ns. B0rders are signs 0f nati0nal pers0nality. They can be trip-wires 0f war.
Late impr0vements in S0uth Asia pr0p0se that peaceful g0als 0f these disputes is receding
fr0m reach.”

This fight 0ver the hist0ry precisi0n 0f a t0p0graphical regi0n is 0ne that has been g0ing 0n
between the tw0 neighb0ring nati0ns f0r as far back as quite a few years n0w.“The b0ne 0f
c0nflict is the Kalapani-Limpiadhura-Lipulekh trijuncti0n between Nepal-India and China
(Tibet). Situated 0n the banks 0f the stream Kali at an elevati0n 0f 3600m, the Kalapani
regi0n lies at the eastern fringe 0f Uttarakhand in India and Nepal's Sudurpashchim Pradesh
in the West. 5”.

4
Roychowdhury A, “Mapping the History of Kalapani Dispute between India and Nepal” (The Indian
ExpressJune 13, 2020) <https://indianexpress.com/article/research/mapping-the-history-of-kalapani-dispute-
between-india-and-nepal-6423687/> accessed June 24, 2020

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Whelpton J, A History of Nepal (Cambridge University Press 2007)

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India“asserts the territ0ry is a piece 0f Uttarakhand's Pith0ragarh area, while Nepal trusts it t0
be a piece 0f its Dharchula regi0n. Matters reached b0iling p0int n0t l0ng ag0, when India
0pened a 80-km r0ad c0nnecting Uttarakhand with Lipulekh, 0ver the c0ntested territ0ry.
While the regi0n is 0f key significance t0 India and Nepal, the issue is entangled by the
challenge 0ver the trustw0rthiness 0f cart0graphic pr00f that the tw0 sides guarantee t0 be
generally precise. The issue in itself returns t0 the mid nineteenth century, when the British
administered India and Nepal was a c0mbinati0n 0f little realms under the rule 0f King
Prithvi Narayan Shah. 6”.

S0“by the 2nd decade 0f the eighteenth century, the English East India C0mpany (EIC) t00
had 0btained a c0nsiderable presence in the subc0ntinent, and had reinf0rced its fundamental
bases in Madras, Calcutta and B0mbay. By the mid nineteenth century, as the EIC started
gr0wing its d0mains n0rthwards in Awadh, it came int0 pr0ximity with Palpa, a free t0wn
inside the Nepalese heartlands. Bef0re l0ng, a b0rder dispute emerged between the tw0
f0rces. The Nepalese were additi0nally ending up being a deterrent in permitting the British
t0 achieve their trade desire with Tibet. 7”.

At last,“0n N0vember 1, 1814, the British ann0unced war 0n Nepal. The war c0ntinued f0r
the f0ll0wing tw0 years, including a pr0gressi0n 0f battles. In 1815, the British general, Sir
David 0chterl0ny, figured 0ut h0w t0 rem0ve the Nepalese fr0m Garhwal and Kuma0n.
After a year, the war reached a c0nclusi0n with the marking 0f the Sugauli treaty. The
bargain delimited the b0rders 0f Nepal, as it stands t0day. 8”.

The fifth article 0f the treaty expressed: "The Rajah 0f Nepal disav0ws f0r himself, his
beneficiaries, and replacements all case t0 0r ass0ciati0n with the nati0ns lying t0 the west 0f
the waterway Kali and any engagement never t0 have any c0ncern with th0se nati0ns 0r
0ccupants there0f."

6
Manandhar, M., & Koirala, H. (1). Nepal-India Boundary Issue: River Kali as International Boundary. Tribhuvan
University Journal, 23(1), 1-21. https://doi.org/10.3126/tuj.v23i1.4550

7
Dixit KM, “Territoriality amidst Covid-19: A Primer to the Lipu Lek Conflict between India and Nepal”
(Scroll.inMay 19, 2020) <https://scroll.in/article/962226/territoriality-amidst-covid-19-a-primer-to-the-lipu-
lek-conflict-between-india-and-nepal> accessed June 24, 2020

8
Rose LE, “Nepal and Bhutan in 1998: Two Himalayan Kingdoms” (1999) 39 Asian Survey 155

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Theref0re, the waterway Kali den0ted the western b0rder 0f Nepal. Be that as it may, there is
n0 reas0nable agreement 0n what is the exact area 0f the waterway Kali, 0ffering ascend t0
the disagreement ab0ut whether the land c0mprising Kalapani-Limpiadhura-Lipulekh is a
piece 0f present day India 0r Nepal. 9

While a few researchers pr0p0se that the absence 0f agreement is because 0f the m0ve
thr0ugh0ut the waterway after s0me time, there are 0ther pe0ple wh0 state that the British
cart0graphers in the subsequent years c0ntinued m0ving the line separating the stream
eastwards f0r vital reas0ns.

Nepalese“ge0graphers Mangal Siddhi Manandhar and Hriday Lal K0irala 10 in their w0rk,
‘Nepal-India b0undary issue: River kali as internati0nal b0undary’, claim that “since n0 map
attached with the Sugauli Treaty c0unter signed by b0th the agreeing parties has c0me t0
light, the 0nly way t0 ascertain the c0rrect l0cati0n 0f Kali is t0 examine the existing maps 0f
the peri0d.” 11”.

As per“them, as 0f recently 1857, all maps delivered by British cart0graphers pr0p0se that
the causes 0f the Kali waterway lies in the Limpiadhura pass. "Yet, in the peri0d s0mewhere
in the range 0f 1857 and 1881, an un0btrusive yet purp0seful endeav0r t0 inc0rrectly name
the waterway Kali g0t g0ing," c0mp0se Manandhar and K0irala. B0th the ge0graphers keep
up that the cart0graphic pr0ceed 0nward the piece 0f the British was 'unappr0ved', '0ne-
sided', and 'with n0 c0ncurrence with the administrati0n 0f Nepal'. 12”.

9
“Kalapani: A Bone of Contention Between India and Nepal” (IPCS
)<http://www.ipcs.org/comm_select.php?articleNo=422> accessed June 24, 2020

10
Manandhar, M., & Koirala, H. (1). Nepal-India Boundary Issue: River Kali as International
Boundary. Tribhuvan University Journal, 23(1), 1-21. https://doi.org/10.3126/tuj.v23i1.4550

11
Mulmi AR, “What Is the Way Forward in India-Nepal Border Dispute?” (Nepal News | Al JazeeraMay 29,
2020) <https://www.aljazeera.com/news/2020/05/india-nepal-border-dispute-200528085916240.html>
accessed June 24, 2020

12
BG Verghese, RR Iyer, “Harnessing The Eastern Himalyan Rivers: Regional Cooperation in South Asia” (South
Asia Books, 1993)
<https://scholar.google.com/scholar_lookup?hl=en&publication_year=1994&author=B.+G.+Verghese&author
=R.+R.+Iyer&title=+Harnessing+the+Eastern+Himalayan+rivers.+regional+cooperation+in+South+Asia+>access
ed June 24, 2020

10
The argument ab0ut the area 0f the stream, and subsequently that 0f the territ0riality 0f
Kalapani, was first raised by the Nepalese g0vernment just in 1998. In any event, when
Indian military units inv0lved the Kalapani z0ne during the Sin0-Indian war 0f 1962, Nepal
didn't bring up a criticism. "Nepal f0r all intents and purp0ses disregarded the Kalapani issue
fr0m 1961 t0 1997, yet f0r residential p0litical reas0ns it turned int0 a helpful India-Nepal
debate in 1998," said p0litical specialist, Le0 E. R0se, in his article, 'Nepal and Bhutan in
1998: Tw0 Himalayan kingd0ms'. 13

As needs be, the Nepalese g0vernment f0ught that the western fringe 0f the nati0n be m0ved
5.5 km westb0und t0 c0rresp0nd with the b0rders as ch0sen in the treaty 0f Sugauli.
Auth0rities in India, then again, guarantee inc0me rec0rds g0ing back t0 the 1830s sh0w that
Kalapani regi0n has cust0marily been c0ntr0lled as a c0mp0nent 0f the Pith0ragarh area. 14

Researcher Al0k Kumar Gupta in his article f0r the Institute 0f Pace and C0nflict Studies,
'Kalapani: A b0ne 0f c0ntenti0n between India and Nepal' clarifies that "English India led the
principal n0rmal reviews 0f the upper c0mpasses 0f the stream Kali, during the 1870s."
Acc0rdingly, a vintage map 0f the 1879 sh0ws Kalapani as a maj0r aspect 0f India. The
Indian g0vernment has held that the 1879 guide is the thing that 0ught t0 be c0nsidered in
ch00sing the b0rders between the tw0 nati0ns as 0pp0sed t0 the maps bef0re the peri0d
which are held up by Nepal. "These distincti0ns truly c0ntrasts with the maps that every
nati0n has, which is additi0nally exacerbated by the m0ving c0urse 0f the Mahakali
waterway in the z0ne that was bef0re ackn0wledged as the b0undary," said Gupta. 15

In N0vember 2019, the H0me Ministry 0f India released an0ther versi0n 0f the Indian
p0litical map, dem0nstrating Jammu and Kashmir al0ngside Ladakh as the new ass0ciati0n
regi0ns 0f India. 16This f0ll0wed the 0ccasi0ns 0f August 2019, when the Indian g0vernment
annulled Articles 370 and 35A 0f the Indian C0nstituti0n which had given a unique status t0
the State 0f Jammu and Kashmir; the legislature bifurcated the state, thusly requiring the
quick arrival 0f an0ther map. 17 a similar map additi0nally indicated the c0ntested 'Kalapani'

13
Rose LE, “Nepal and Bhutan in 1998: Two Himalayan Kingdoms” (1999) 39 Asian Survey 155
14
AB Thapa, “The Gandak River Treaty”(21,Spotlight,2002)<
https://scholar.google.com/scholar_lookup?hl=en&publication_year=2002&pages=9-
10&author=A.+B.+Thapa&title=The+Gandak+river+treaty>accessed June 24, 2020
15
Kalapani: A Bone of Contention Between India and Nepal” (IPCS
)<http://www.ipcs.org/comm_select.php?articleNo=422> accessed June 24, 2020
16
Maps of newly formed Union Territories of Jammu, Kashmir and Ladakh, with the map of India,
Press Information Bureau, Ministry of Home Affairs, Government of India, 2 November 2019.
17
Faizan Mustafa, ‘On dilution, bifurcation and special status’, The Hindu, 30 August 2019.

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l0cale in the Greater Himalayas as inside India's b0rders. 18 The map depicted the regi0n as a
feature 0f the Pith0ragarh regi0n in the pr0vince 0f Uttarakhand. Nepal pr0mptly gave an
issue with the map, as it rec0gnizes the area as a disrupted d0main 0f the Darchula l0cale in
the nati0n's Sudurpashchim pr0vince. 19 In N0vember 2019 the Ministry 0f External Affairs,
Nepal, under the initiative 0f F0reign Minister Pradeep Kumar Gyawali additi0nally gave an
ann0uncement f0r the media expressing that, "The Nepal g0vernment is f0cused 0n securing
the nati0n's 0utside b0rders and it is res0lved 0n its principled p0siti0n that such b0rder
debates with the neighb0ring nati0ns 0ught t0 be settled thr0ugh c0nciliat0ry channels in the
wake 0f surveying the chr0nicled rec0rds, realities, and evidence." 20

Acc0rdingly, India has kept up that the map is "accurate". 21 The new map—and the ensuing
c0mplaint fr0m Nepal—delivered the uncertain b0rder questi0ns between the tw0 nati0ns.
These c0ntradicti0ns include Kalapani as well as territ0ries can imagine Lipulekh,
Limpiyadhura, and Susta.

18
‘India has encroached upon two percent Nepali territory, says government
spokesperson’, Republica, 7 November 2019.
19
Amit Ranjan, “India-Nepal Row over the Updated Map of India”, ISAS Working Paper, No. 321,
Institute of South Asian Studies, National University of Singapore, 7 December 2019.
20
Geeta Mohan, ‘Kalapani an integral part: Nepal objects inclusion of unresolved territory as part of
India in new maps’, India Today, 7 November 2019.
21
Amit Ranjan, “India-Nepal Row over the Updated Map of India”, ISAS Working Paper, No. 321,
Institute of South Asian Studies, National University of Singapore, 7 December 2019.

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 CHAPTER-III

CLAIMS OF INDIA AND NEPAL OVER THE TERRITORY

As“0f late, Anti-India pr0tests were seen in the city 0f Nepal 0ver the arrival 0f an0ther
p0litical map 0f India, made after the bifurcati0n 0f the territ0ry 0f Jammu and Kashmir
(J&K) int0 the Uni0n Territ0ries 0f J&K and Ladakh. The maps dem0nstrated Kalapani (at
the India-Nepal-China trijuncti0n) t0ward the n0rth and Susta (flanking Bihar) t0ward the
s0uth as Indian d0main. Presently what we have t0 examine is what is the purp0se f0r this
abrupt fl00d 0f Anti-India Sentiments, Nepal and India have been b0und t0gether since ages
thr0ugh ages, religi0us, cultural, s0cial, financial and p0litical relati0ns. The relati0nship is
0ne 0f a kind it might be said that neither 0ne 0f the c0untries has permitted a p0litical limit
t0 intrude 0n the free travel 0f individuals. 22”.

Nepal“is currently administered by the Nepal C0munist Party (NCP) which has p0litical
leanings t0wards China. China is additi0nally effectively seeking after its f0riegn strategy t0
diminish India's impact 0ver Nepal and imprint its impressi0ns in the regi0n 0f Nepal. A
significant break in relati0ns between the tw0 nati0ns happened in 2015 at the h0ur 0f the
creati0n 0f the current c0nstituti0n 0f Nepal (which supplanted the 2007 Interim
C0nstituti0n).”.

India“fruitlessly attempted t0 seek after Nepal t0 agreeably address the c0mplaints 0f the
Madheshi, Janajati and 0ther distraught gr0ups wh0 c0mprise the heft 0f the Nepalese
p0pulace. Fr0m that p0int f0rward, false impressi0ns, genuine 0r fanciful, perseveres
between the tw0 nati0ns which have bec0me a fav0rable p0siti0n t0 s0me 0utsider players in
Nepal like China. Additi0nally, activating Anti-India slants by s0cialists 0r the pr0-China
p0litical initiative has g0tten the new n0rmalcy in Nepal's l0cal g0vernmental issues. The
patri0t sentiment has n0w bec0me a str0ng instrument f0r p0litical preparati0n. 23”.

The“Kalapani regi0n has turned 0ut as a b0ne 0f c0nflict am0ng India and Nepal, Kalapani is
a valley that is managed by India as a part 0f the Pith0ragarh l0cale 0f Uttarakhand. It is

22
BG Verghese, RR Iyer, “Harnessing The Eastern Himalyan Rivers: Regional Cooperation in South Asia” (South
Asia Books, 1993)
<https://scholar.google.com/scholar_lookup?hl=en&publication_year=1994&author=B.+G.+Verghese&author
=R.+R.+Iyer&title=+Harnessing+the+Eastern+Himalayan+rivers.+regional+cooperation+in+South+Asia+>access
ed June 24, 2020
23
Buddhi Narayan Shrestha, ‘Border Management of Nepal’, 2003, Bhumichitra Co. P. Ltd,
Kathmandu, Nepal, p. 126

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arranged 0n the Kailash Mansar0var c0urse. Kalapani is fav0rably situated at an elevati0n 0f
m0re than 20,000 ft and fills in as an 0bservati0n p0st f0r that z0ne. The Kali River in the
Kalapani district divides the b0undary between India and Nepal. 24”.

The Treaty 0f Sugauli cl0sed between British India and the Kingd0m 0f Nepal in the year
1816, maps the Makhali waterway as the western limit with India h0wever s0me British
maps indicated the wellspring 0f the tributary at different places which was essentially
because 0f immature and less-characterized reviewing strategies utilized ar0und then.

The inc0nsistency in finding the wellspring 0f the waterway pr0mpted b0rder disputes
am0ng India and Nepal, with every nati0n creating maps supp0rting their 0wn cases.

Nepal's“case principally dwells 0n their ge0l0gical maps guaranteeing that Kali waterway
begins fr0m a stream at Limpiyadhura, n0rth-west 0f Lipu Lekh. In this manner Kalapani,
and Limpiyadhura, and Lipu Lekh, are t0ward the east 0f the stream and are a part 0f Nepal's
Dharchula regi0n. Als0, what they guarantee is that Lipulekh was erased fr0m the nati0n's
map by the Kings t0 get fav0rs fr0m India. Anyway The regi0n 0f Kalapani was 0ffered t0
India by King Mahendra after the 1962 India-China war wh0 needed t0 help India's security
issues because 0f perceived Chinese danger. Kalapani was n0t a piece 0f Nepal-India c0ntest.
It was Nepal's d0main that the King had permitted India t0 utilize briefly. The new map is in
truth a rec0rd that was available f0r use in Nepal till the 1950s.”.

India's“case is chiefly f0unded 0n that Kali waterway starts in springs well underneath the
Lipu-lekh pass, and the Sugauli Treaty d0esn't differentiate the z0ne n0rth 0f these streams.
The auth0ritative and inc0me rec0rds 0f the nineteenth century additi0nally sh0w that
Kalapani was 0n the Indian side, and c0nsidered a piece 0f Pith0ragarh regi0n 0f
Uttarakhand.”.

Endeav0rs have been made in the past t0 understand this questi0n, In the 1980s, the different
sides set up the J0int Technical Level B0undary W0rking Gr0up t0 0utline the b0rder.

The“gr0up delineated everything aside fr0m Kalapani and Susta z0ne. Auth0ritatively, Nepal
br0ught the issue 0f Kalapani bef0re India in 1998. The tw0 sides c0nsented t0 separate the
excepti0nal regi0ns (c0unting Kalpani) by 2002 at the prime ministerial level talk held in

24
Toya Nath Baral, ‘Border Disputes and Its Impact on Bilateral Relation: A Case of Nepal India
International Border Management’, file:///E:/S%20Nayak/Downloads/26710-Article%20Text-79858-
1-10-20191214%20(1).pdf p.32

14
2000.But that has n0t 0ccurred till this p0int. Nepal's c0nsci0us exerti0n t0 make the Lipu-
Lekh Pass a c0ntested tri-intersecti0n (between India-China and Nepal) in which Nepal has
an equivalent 0ffer.”.

India sees Nepal t0 tilt t0wards China under the administrati0n 0f Prime Minister K P 0li and
his Nepal C0mmunist Party. In spite 0f the 0pen b0rder between the tw0 nati0ns and the
individuals t0 individuals c0ntact, the degrees 0f d0ubt in Nepal ab0ut India have just
expanded. 25

If“we talk ab0ut this issue fr0m the lawful viewp0ints, at that p0int, Acc0rding t0
Internati0nal Laws, the principles 0f Avulsi0n and Accreti0n are pertinent in deciding the
b0rders when a limit stream changes c0urse.”.

Avulsi0n: It is the pushing back 0f the sh0reline by unexpected, fierce activity 0f the
c0mp0nents, distinguishable while in pr0gress. Additi0nally it very well may be
characterized as the abrupt and rec0gnizable change in the land achieved by water, which
may bring ab0ut the 0pti0n 0r expulsi0n 0f land fr0m a bank 0r sh0reline.

Accreti0n: It is the pr0cedure 0f devel0pment 0r amplificati0n by a c0ntinu0us devel0pment.

It is the regular, sl0w and pr0gressive st0re 0f s0il by the water.

0n“the 0ff chance that the difference in the waterway c0urse is fast – by separati0n – the limit
d0esn't change. H0wever, 0n the 0ff chance that the stream changes c0urse c0ntinu0usly –
that is, by gradual additi0n – the limit changes in like manner. Since, the Gandak change
0bvi0usly has been steady, India asserted Susta as a feature 0f their d0main acc0rding t0
gl0bal laws. 0n a few events, India has attempted t0 determine the issue thr0ugh amicable
and tranquil arrangements, yet the Nepali initiative has c0nsistently dem0nstrated faltering in
settling the issue. In Nepal, the issue has bec0me an instrument f0r stimulating b0ld public
feelings against India. Al0ng these lines, settling the issue may n0t be t0 the greatest
advantage 0f Nepal's h0useh0ld legislative issues. 26”.

25
Hari Bansh Jha, ‘Addressing the Kalapani Issue between Nepal and India’, Expert Speak, Observer
Research Foundation, New Delhi, 20 December 2019.
26
Nepal-India Relations, Ministry of Foreign Affairs, Government of Nepal, Singha Durbar,
Kathmandu, Nepal.

15
 CHAPTER-IV

TERRITORY DISPUTE CLAIMS BEFORE ICJ IN THE PAST

Cases“may precede the ICJ, an aut0n0m0us auxiliary 0rgan 0f the United Nati0ns, 27 by
referral thr0ugh a c0mpr0mise (excepti0nal agreement) between at least tw0 states, 28 by a
treaty submitting disputes emerging under the treaty t0 the c0urt, 29 0r by the State's
ann0uncements 0f c0mpuls0ry jurisdicti0n. 30 Under Article 38 0f the Statute 0f the
Internati0nal C0urt 0f Justice (Statute), when ch00sing cases "as per Internati0nal law," the
c0urt applies the acc0mpanying s0urces 0f law: Internati0nal c0nventi0ns, regardless 0f
whether general 0r specific, setting up rules explicitly perceived by the challenging states;
Internati0nal cust0m, as pr00f 0f a general practice ackn0wledged as law; the general
standards 0f law perceived by 0ther c0untries; subject t0 the pr0visi0ns 0f Article 59, judicial
decisi0ns and the less0ns 0f the m0st excepti0nally qualified publicists 0f the different
c0untries, as auxiliary meth0ds f0r the assurance 0f rules 0f law. 31 Furtherm0re, if the States
c0ncur, the c0urt may decide a case under equity principles, ex aequ0 et b0n0. 32”.

Territ0rial“cases bef0re the ICJ n0rmally can be categ0rized as 0ne 0f the 0ver f0ur classes.
Treaty claims are the m0st eff0rtless t0 claim, 0n the gr0unds that the presence 0f a treaty is
simpler t0 dem0nstrate than the presence 0f cust0mary Internati0nal law, which requires
pr00f 0f state practice and 0pini0 juris, 33 0r the presence 0f the excepti0nally perplexing
general principles 0f law "f0ll0wed by States." 34 H0wever, with0ut treaties, disputants must
avail t0 claims dependent 0n the 0ther three internati0nal law classificati0ns, and t0 n0n-
legal 0r p0litical cases. Am0ng the few classificati0ns int0 which researchers arrange these
legitimizati0ns, the m0st well-kn0wn nine are treaties, ge0l0gy, ec0n0my, culture, c0ntr0l,

27
Statute of the International Court of Justice, June 26, 1945, arts. 1–2, 16–20, 59 Stat. 1055, 1055, 1057,
http://www.icj-cij.org/icjwww/ibasicdocuments/ibasictext/ibasicstatute.htm [hereinafter ICJ Statute]
(providing for the independence of the court and its judges).
28
art. 36, para. 1, 59 Stat. at 1060. Jonathan I. Charney, Compromissory Clauses and the Jurisdiction of the
International Court of Justice, 81 AM. J. INT’L L. 855 (1987) (reviewing the scope of the ICJ’s compromissory
jurisdiction).
29
ICJ Statute, supra note 25, art. 36, para. 1, 59 Stat. at 1060 ICJ Statute, supra note 8, art. 36, para. 1, 59 Stat.
at 1060
30
Ibid art. 36, para. 2, 59 Stat. at 1060.
31
Ibid art. 38, para. 1, 59 Stat. at 1060
32
Ibid art. 38, para. 2, 59 Stat. at 1060;
33
Bin Cheng, General Principles Of Law As Applied By International Courts And Tribunals 23–24 (1953)
34
ICJ Statute, supra note 25, art. 38, para. 1, 59 Stat. at 1060.

16
hist0ry, uti p0ssidetis, elitism, and ide0l0gy. 35 But we will keep 0ur research thin and will
just talk ab0ut th0se viewp0ints which can help in settling this issue bef0re us.”.

What kinds of claims can be raised in Kalapani issue?

Treaty Law

When“c0ntrasted with different bases f0r territ0rial dispute cases, the treaty av0cati0n is
pr0gressively lawful in nature, that is, it is less em0ti0nally influential than a hist0rical case
may be. All things c0nsidered, claims dependent 0n treaty law are especially p0werful at the
ICJ 0n the gr0unds that Article 38 0f the ICJ Statute c0mmits the c0urt t0 think ab0ut
treaties. Als0, thr0ugh treaties parties c0nsent t0 give up their hist0rical 0r different claims t0
the territ0ry subject t0 the treaty. In this manner, it is n0thing unexpected that treaties (except
if flawed) are 0fficial 0n the states that have end0rsed them. The m0tivati0n behind
numer0us treaties is a l0t 0f like that 0f private c0ntracts. 36 F0r b0th, the central 0bjective 0f
the relati0nship is "t0 make lawfully c0nspicu0us desires" in the 0ther c0ntracting party. 37
The states in a treaty, c0ncerning an agreement, at that p0int depend 0n th0se desires in
d0ing their 0wn j0bs, since they went int0 the agreement deliberately and with the end g0al
0f "0rganizing their relati0nship in the way that best suits their interests." 38 Alth0ugh the
enf0rcement 0f c0ntracts is fairly clear (0ne can quite 0ften turn t0 pr0secuti0n), the
implementati0n 0f treaties is increasingly vague. Numer0us treaties c0ntain their 0wn
implementati0n arrangements all0wing States t0 take certain measures because 0f the breach
0r t0 refer cases t0 the ICJ; hist0rically, numer0us treaty disputes have been settled f0rcibly.
In spite 0f the intrigue 0f treaties as c0ntractual understandings between states t0 a territ0rial
c0ntest, specific tr0uble with the ICJ's utilizati0n 0f treaty law is the use 0f a specific treaty
t0 states n0t party t0 the agreement. 39 In a large p0rti0n 0f these cases, the treaties are
utilized t0 sh0w the assent 0f different states (c0nceivably pi0neer p0wers) as f0r b0rders
later acquired by the pr0secut0rs bef0re the ICJ. In 0thers, the c0urt may utilize treaties as
genuine pr00f 0f h0w the b0rders remained at a specific time. 40”.

35
Andrew Burghardt, The Bases of Territorial Claims, 63 GEOGRAPHICAL REV. 225 (1973)
36
Oscar Schachter, International Law In Theory And Practice 74 (1991).
37
MARVIN A. CHIRELSTEIN, CONCEPTS AND CASE ANALYSIS IN THE LAW OF CONTRACTS 1 (4th ed. 2001)
38
Ibid
39
Oscar Schachter, International Law In Theory And Practice 74 (1991).
40
Ibid

17
N0w if we refer t0 the Kalapani issue then the treaty which is inv0lved is the Treaty 0f
Sugauli which was signed in 1815, and it represented a Nepali surrender t0 the British and
c0ntained the cessati0n 0f Nepal’s western territ0ry t0 the British East India C0mpany.
Which means that the Kalapani territ0ry was handed 0ver t0 the British East India C0mpany
by this treaty.

Effective Control

A case“dependent 0n effective c0ntr0l is 0ne in which a State claims certain land in light 0f
the fact that the State has "unc0ntested administrati0n 0f the land and its inhabitant
p0pulati0n." 41 Many researchers accept that under Internati0nal law, viable c0ntr0l is the
shibb0leth with0ut a d0ubt, the sine qua n0n 0f a s0lid territ0rial claim. 42 Under pr0perty law
by and large, 0wnership is a huge fact0r in the assurance 0f a pr0perty right. 43 Pr0fess0r
Andrew Burghardt rec0gnizes that the chief inquiries enc0mpassing any such case are
tw0f0ld: (1) what establishes a relinquishment 0f the land by the last 0verseeing element, and
(2) what c0mprises administrati0n 0f the land. 44 The status 0f surrender as a prec0nditi0n t0
effective c0ntr0l is pr0f0undly easy t0 refute. 0ne researcher w0uld necessitate that the land
be terra nullius a "regi0n n0t having a place with any specific c0untry." 45 Previ0usly, just
disc0vered land was terra nullius; presently, the term includes land 0ver which n0 state
practices s0vereign c0ntr0l. An0ther researcher characterizes relinquishment as an "inability
t0 keep up a base level 0f s0vereign activity." When the legitimate s0vereign submits in the
c0ntr0l 0f an area by the encr0aching s0vereign, the prerequisite 0f surrender is inapplicable
alt0gether. This is the lawful d0ctrine 0f securing by quiet submissi0n, f0r the m0st part
ackn0wledged by c0mm0n legal advis0rs and dismissed by civil lawyers. In numer0us
manners, it is c0mparable t0 the c0mm0n law standard 0f title by adverse p0ssessi0n.”.

The“effective c0ntr0l teaching isn't with0ut issues, h0wever. Specifically, the absence 0f
acc0rd 0n the relevant principles has br0ught ab0ut many c0ntending claims. Specifically,
these cases have scrutinized the quantum 0f c0ntr0l required, just as its quality in particular,
regardless 0f whether private entities can add t0 a state's successful c0ntr0l 0f a d0main. As
t0 administrati0n 0f the land, definiti0ns shift, yet the f0cal issue is characterizing "the
degree and s0rt 0f 0wnership" fr0m which title will issue. Pr0fess0r Hill c0ntends that, at its
41
Andrew Burghardt, The Bases of Territorial Claims, 63 GEOGRAPHICAL REV. 225 (1973)
42
YEHUDA Z. BLUM, HISTORIC TITLES IN INTERNATIONAL LAW 100 (1965)
43
JOSEPH WILLIAM SINGER, INTRODUCTION TO PROPERTY § 1.4.2.1 (2001)
44
Supra 39
45
BLACK’S LAW DICTIONARY 1483 (7th ed. 1999).

18
apex, effective c0ntr0l is "the f0undati0n 0f legislative c0ntr0l adequate t0 give security t0
life and pr0perty;" at the very least, the "0ccupati0n m0re likely t0 be genuine 0r 'effective.'
This c0nditi0n is fulfilled when there is a declared g0al t0 0btain, and real settlement 0r
0ccupati0n with the affirmati0n 0f legislative auth0rity has taken place." Pr0fess0r Burghardt
states that 0rganizati0n must be c0nsistent and 0ccupati0n successful: "In a perfect w0rld, the
territ0ry 0ught t0 be settled all thr0ugh and the natural assets 0f the z0ne 0ught t0 be created
and used." Pr0fess0r Yehuda Blum depicts 0rganizati0n as the activity 0f the fitting measure
0f p0litical, military, 0r regulat0ry c0ntr0l c0nsidering the present situati0n and with the g0al
t0 0versee the territ0ry. S0me 0bservers rec0mmend that the m0re drawn 0ut the span 0f the
administrati0n, the m0re gener0us the defense f0r a territ0rial case dependent 0n effective
c0ntr0l. 46”.

In the event that we allude the equivalent t0 the c0ntested kalapani regi0n, at that p0int since
the kalapani regi0n has been kept under c0ntr0l and manned by Ind0-Tibetan B0rder P0lice,
we can derive that it surmises that India has successful military p0wer 0ver the regi0n. Nepal
and India went int0 a Treaty 0f Peace and Friendship in 1950, which had a s0lid c0mp0nent
0f shared security uni0n, reflecting the previ0us bargains with British India.

N0 adjustments in India's B0rder with Nepal are rec0gnizable fr0m the maps 0f the peri0d.
The Kalapani regi0n kept 0n being appeared as a feature 0f India. F0ll0wing the Chinese
take-0ver 0f Tibet in 1951, India expanded its security nearness al0ng the n0rthern b0rders t0
repress pr0spects 0f infringement and infiltrati0n. The Kalapani area is pr0bably g0ing t0
have been inc0rp0rated am0ng such areas.

History

Hist0rical“cases t0 an area depend 0n Hist0rical need (first bel0nging) 0r term (length 0f

p0ssessi0n). Alth0ugh effective c0ntr0l (0wnership) presents the m0st str0ng guarantee
under pr0perty law, hist0rical cases make a hidden privilege t0 an area, whether 0r n0t a state
has real 0r pr0ductive 0wnership 0f the land at the h0ur 0f the claim. Thus, hist0rical claims
will in general be c0mm0n, c0ntrasted with different cases examined here. A case 0f
hist0rical right is reinf0rced by the pr0gressi0n 0f time; when the infringed state d0esn't act
t0 c0unter the petiti0ner's right, it is c0nsidered t0 have assented in that privilege and is
est0pped fr0m dismissing the title f0r absence 0f c0nsent. Claims dependent 0n Hist0ric

46
YEHUDA Z. BLUM, HISTORIC TITLES IN INTERNATIONAL LAW 100 (1965)

19
pri0rity are m0st firmly identified with claims dependent 0n hist0ric title in light 0f the fact
that such titles are c0mm0nly g0tten fr0m first-in-time claims t0 land. Hist0rical cases
regularly identify with s0cial claims, 0n the gr0unds that the m0re pr0minent the s0cial
significance 0f the regi0n, the m0re gr0unded the hist0rical claim t0 it. Hist0ric cases are
s0lid when the d0main being referred t0 is the petiti0ner's c0untry since that "inc0rp0rates
b0th need and length and c0mmunicates a definitive instance 0f manland symbi0sis." The
hist0rical backdr0p 0f the individuals and their territ0ry "fleshes 0ut the character 0f the
c0untry, unc0vers it as a netw0rk 0f destiny, and gives it hereditary authenticity. It very well
may be f0unded 0n 0ccasi0ns that have really 0ccurred 0r 0n legends that were intenti0nally
c0nstructed." The land and its 0ccupants' characters strengthen 0ne an0ther. 47”.

Presently since the treaty 0f Sugauli g0es as back as t0 nineteenth century, hist0rical
deducti0n can be drawn and it tends t0 be c0ntended that this specific d0main has been in
charge 0f India since 1815.

Uti Possidetis

Uti“p0ssidetis, a principle used t0 characterize p0stc0l0nial b0rders in Latin America, Asia,

and Africa, 48 is a regulati0n under which recently free states acquire the pre independence
administrative b0undaaries set by the previ0us pi0neer p0wer. 49 The c0nventi0n sets that title
t0 the c0l0nial d0main lapses t0 the l0cal auth0rities and beats any c0ntending guarantee
dependent 0n 0ccupati0n. Thus, uti p0ssidetis is predicated 0n a dismissal 0f self-assurance
and accept that inner, managerial b0undaries are practically pr0p0rti0nal t0 Internati0nal
b0undaries. C0mmentat0rs c0ndemn uti p0ssidetis in light 0f the fact that auth0ritative
pr0vincial 0utskirts were quite 0ften dubi0usly drawn and didn't c0mpare t0 the 0ccupant
p0pulaces. Thusly, these rep0rters c0ntend, dependence 0n uti p0ssidetis has pr0mpted many
b0rder disputes.”.

Drawing a comparison to the settled territorial disputes

If we take a look at how the earlier territorial disputes are settled then we can identify the
similarities between the path taken by the ICJ in settling these disputes and can draw a same
course for the Kalapani dispute also.
47
Andrew Burghardt, The Bases of Territorial Claims, 63 GEOGRAPHICAL REV. 225 (1973)
48
P. Mweti Munya, The International Court of Justice and Peaceful Settlement of African Disputes: Problems,
Challenges and Prospects, 7 J. INT’L L. & PRAC. 159, 215 (1998)
49
Steven R. Ratner, Drawing a Better Line: Uti Possidetis and the Borders of New States, 90 AM. J. INT’L L. 590
(1996).

20
Minquiers and Ecrehos

(France/United Kingd0m) By“special agreement, France and the United Kingd0m (U.K.)
submitted t0 the ICJ their disagreement ab0ut the s0vereignty 0f the Minquiers and Ecreh0s
island gatherings, situated in the English Channel between Jersey (U.K.) and the French
mainland. 50 The gatherings made c0ntenti0ns dependent 0n Treaty law, hist0ry, and p0werful
c0ntr0l. The c0urt dismissed all c0ntenti0ns dependent 0n medieval land awards and
fisheries understandings, all 0f which predated 1648, in light 0f the fact that n0ne determined
an 0utskirt 0r "which islands were held by the Kings 0f England and France respectively." 51
Judge Basdevant, c0mp0sing a different sentiment, agreed: "Suzerainty isn't s0vereignty,"
taking n0te 0f the significant qualificati0n that the c0urt certainly made in excusing claims
dependent 0n primitive titles. with0ut a substantial treaty claim, the c0urt th0ught ab0ut the
c0mpelling c0ntr0l c0ntenti0ns and f0und that the British g0vernment practiced s0vereign
purview and neighb0rh00d 0rganizati0n 0ver Minquiers and Ecreh0s thr0ugh such g0es
ab0ut as legal pr0cedures, nearby laws in regards t0 the treatment 0f carcasses, requiring
charges, permitting business vessels, enlisting deeds t0 genuine pr0perty, and directing
registrati0n specificati0ns and cust0ms affairs. Thus, the c0urt granted the regi0n t0 the
United Kingd0m.”.

If we take a l00k at the Kalapani territ0ry then Kalapani and Lipulekh in Uttarakhand sh0wn
as Nepalese territ0ry in a new map ad0pted by the neighb0uring c0untry figure in land
rec0rds as part 0f villages 0n the Indian side 0f the b0rder, 0fficials here said.“All the land in
Lipulekh, Kalapani and Nabhidhang 0n the b0rder traditi0nally bel0ngs t0 the residents 0f
Garbiyang and Gunji villages 0f Dharchula sub-divisi0n in Pith0ragarh district, Dharchula
sub-divisi0nal magistrate A K Shukla said, citing rec0rds. 52”.

"While 0ver 190 acres 0f land in Kalapani and Nabhidhang are registered in the names 0f
villagers 0f Garbiyang, the land at Lipulekh pass is menti0ned in the land rec0rds as c0mm0n
land 0f Gunji villagers in the same sub-divisi0n," the SDM said.

Fr0m this we can infer that effectively military c0ntr0l 0f Kalapani territ0ry is with India,
and administrati0n 0f the said territ0ry is being d0ne by Indian g0vernment 0fficials 0nly.

50
Minquiers and Ecrehos (Fr./U.K.), 1953 I.C.J. 47 (Nov. 17).
51
Minquiers and Ecrehos, 1953 I.C.J. at 54.
52
Roychowdhury A, “Mapping the History of Kalapani Dispute between India and Nepal” (The Indian
ExpressJune 13, 2020) <https://indianexpress.com/article/research/mapping-the-history-of-kalapani-dispute-
between-india-and-nepal-6423687/> accessed June 24, 2020

21
Sovereignty over Pulau Ligitan and Pulau Sipadan

(Ind0nesia/Malaysia) In 1998“Ind0nesia and Malaysia, by special agreements, asked the ICJ

"t0 decide based 0n the treaties, agreements and s0me 0ther pr00f 0utfitted by the Parties"
p0wer 0ver the islands 0f Ligitan and Sipadan, 0ff the bank 0f B0rne0. 53 The states
intr0duced c0ntenti0ns dependent 0n treaty law, uti p0ssidetis, effective c0ntr0l, and hist0ry.
The c0urt started its examinati0n with the 1891 British-Dutch C0nventi0n and f0und that it
didn't address the b0rder in questi0n. 54 Lacking a treaty law reas0n f0r its decisi0n, the c0urt
went first t0 ensuing agreements between Great Britain and the Netherlands, and afterward t0
the states resulting practice, in an ineffective endeav0r t0 c0mprehend the states c0mm0n
intent. The c0urt at that p0int analyzed the c0ntending cases 0f effectivités as a free reas0n
f0r the judgment and held that Ind0nesia's claimed effectivités were n0t 0f an "auth0ritative
0r administrative character," rendering them unpersuasive. The c0urt c0nsidered, in any case,
that Malaysia's guideline 0f the business ass0rtment 0f turtle eggs and f0undati0n 0f a
feathered creature haven 0n the islands were adequately managerial t0 sh0w successful
c0ntr0l. The c0urt c0nsequently f0und the effectivités c0ntenti0ns an adequate reas0n f0r its
decisi0n. 55”.

Island of Palmas or Miangas Case

In 1925, the USA and the Netherlands, referred their dispute regarding the s0vereignty 0f the
disputed territ0ry 0f Island 0f Palmas t0 an arbitrat0r. The Arbitrat0r was given the
resp0nsibility 0f deciding the issue 0f Islands 0f Palmas in their entirety.

The claim 0f USA t0 the islands was based 0n their argument that the Islands were ceded t0
them by Spain thr0ugh the Treaty 0f Paris in 1898, and hence since USA has bec0me the
success0r 0f the rights t0 the Islands after Spain, they can assert their right by h0lding the
title by first disc0very.

Whereas Netherlands had a claim that they have exercised their rights 0f s0vereignty and
p0ssessi0n 0n the islands since 1677 0r even bef0re that.

And hence the issue at hand ar0se that can a title which is inch0ate prevail 0ver a definite
title f0und 0n the c0ntinu0us and peaceful display 0f s0vereignty. H0wever the rule 0f law

53
Sovereignty Over Pulau Ligitan and Pulau Sipadan (Indon./Malay.), 2002 I.C.J. 625, 630 (Dec. 17).
54
Ibid
55
Ibid

22
was that any title that is inch0ate cann0t prevail 0ver a definite title f0und 0n the c0ntinu0us
and peaceful display 0f s0vereignty.

The Arbitrat0r gave the judgement after hearing the discussi0ns 0n c0ntracts made by East
India C0mpany and the Netherlands, the claims which were made by Netherlands were f0und
t0 be based 0n the premise 0f c0nventi0ns which existed with the princes and chieftains 0f
the islands. Hence it was c0ncluded that at the time 0f the Treaty 0f Paris in 1898, Spain was
f0und t0 be n0t having any d0mini0n 0n the land.

S0 it was held that any title that is inch0ate cann0t prevail 0ver a definite title which is f0und
0n the basis 0f c0ntinu0us and peaceful display 0f S0vereignty. The peaceful and
C0ntinu0us Display 0f S0vereignty is as g00d as the title. The title 0n the basis 0f disc0very
hence cann0t prevail 0n Netherlands.

Eastern Greenland Case (Norway v. Denmark)

This was a case 0f Denmark claiming that a statement made by the N0rwegian Minister t0 be
binding 0n the C0untry 0f N0rway. There was an agreement between Denmark, the plaintiff
and N0rway, the defendant. The agreement laid 0ut that N0rway will n0t 0bstruct any Danish
plans with regard t0 Greenland and Denmark wanted t0 0btain this fr0m N0rway. In reply t0
this a declarati0n 0n behalf 0f the G0vernment 0f N0rway was made by the Minister 0f
F0reign Affairs 0f N0rway, that N0rway will n0t p0se any difficulty in the settlement 0f this
questi0n. N0w the general rule is that a c0untry is b0und by the statement given by its
Minister 0f F0reign Affairs. Hence the issue ar0se that can N0rway be b0und by its
minister’s statement.

Since the main s0urce 0f Internati0nal Law is the Vienna C0nventi0n as it lays d0wn the law
0n treaties, which h0lds that Unilateral Statements may als0 be binding 0n the states.

S0 it was held in this case that N0rway is b0und by the reply given by its Minister, since he is
the Dipl0matic Representative 0f a f0reign p0wer and hence his w0rds are binding up0n the
c0untry the Minister represents.

23
Temple of Preach Vihear (Cambodia v. Thailand)

Camb0dia filed a case against Thailand claiming that Thailand was breaching Camb0dia’s
territ0rial s0vereignty 0ver the temple 0f Preach Vihear. Thailand h0wever denied this by
claiming that the temple was 0n its side 0f the b0rder. The claims raised in this case were
based 0n the Treaties, Hist0ry, Effective C0ntr0l, Ge0graphy and culture.

The treaty inv0lved in this case was 1904 b0undary treaty in which Thailand and France
demarcated the b0rder which is n0w in the middle 0f this dispute between Thailand and
Camb0dia. Thailand based its claim 0n the the0ry that Camb0dia held n0 territ0rial
S0vereignty 0ver the temple, but this was rejected by the c0urt as the maps which were
drawn while the treaty was signed indicated the entire Preach Vihear regi0n t0 be l0cated in
Camb0dia. Hence Camb0dia claim was backed by the treaty law. Alth0ugh the c0untries 0f
France and Siam never 0fficially ad0pted these maps but their existed an implicit acceptance
f0r them. Acc0rding t0 the d0ctrine 0f Uti P0ssedetis the area dev0lved t0 Camb0dia since
was the area 0f Siam acc0rding t0 the treaty 0f 1904 and hence Camb0dia had territ0rial
S0vereignty.

Hence the c0urt rejected the Thailand’s effective c0ntr0l claims.

24
 CHAPTER-V

ANALYSIS OF THE COURT’s TERRITORIAL DISPUTE

JURISPRUDENCE

The“presence 0f an earlier b0rder treaty 0r 0ther d0cumentati0n reflecting interstate

agreement as t0 b0rders (0r arrangements f0r their delimitati0n) is c0mm0nly disp0sitive f0r
the c0urt. This standard regularly h0lds in any event, when an agreement is indistinct 0r
inadequate. In situati0ns when state assent is apparent, the c0urt has begun and finished its
legal investigati0n with the agreement. F0r example, in Territ0rial Dispute (Libya/Chad), 56
the c0urt decided the case exclusively based 0n treaty law, limiting every 0ther c0ntenti0n
c0mpletely. Furtherm0re, the c0urt was reluctant t0 scrutinize the merits 0f the 1955 Treaty,
which was n0t as clear as the c0urt depicted it.”.

The“c0urt defended its decisi0n, t0 s0me extent, by Libya's being inv0lved with the treaty
(rather than the replacement in interest t0 a c0l0nial p0wer). 57 T0 scrutinize the substance 0f
the treaty w0uld be equivalent t0 scrutinizing the state's c0mmunicated inclinati0ns and
frustrating the 0ther states dependence 0n the c0ncurred terms 0f the treaty. At the p0int
when n0 internati0nal agreement exists, in any case, the f0ll0wing m0st disp0sitive reas0n
f0r a judgment is uti p0ssidetis, if applicable. It is imp0ssible that a ch0ice w0uld lay 0n uti
p0ssidetis al0ne, in light 0f the fact that practically all c0l0nial b0rders were arranged in an
instrument.”.

In“instances 0f interi0r b0rders, be that as it may, there may just be internal understandings,
ackn0wledged practices, 0r d0cumentati0n 0n the l0cal level. F0r example, in Fr0ntier
Dispute (Burkina Fas0/Mali), the c0urt relied up0n the b0undaries as they existed under
French c0l0nial law. In cases that d0n't c0ncern p0stc0l0nial b0undaries and that need sh0w
agree as t0 b0rders, the c0urt is well 0n the way t0 put t0gether its decisi0n with respect t0
effective c0ntr0l. In such cases, the term and level 0f the c0ntr0l are the m0st significant
c0ntemplati0ns since they make public the inquirer state's implementati0n 0f the right. In
Minquiers and Ecreh0s, f0r instance, the c0urt's h0lding relied up0n the implementati0n 0f
l0cal administrati0n.”.

56
Territorial Dispute (Libya/Chad), 1994 I.C.J. 6 (Feb. 3).
57
Territorial Dispute, 1994 I.C.J. at 38.

25
In“this regard, a decisi0n dependent 0n str0ng effective c0ntr0l is c0mparable t0 a cust0m-
based law pr0perty grant dependent 0n adverse p0ssessi0n, whereby the inquirer's 0wnership
must be real, 0pen and infam0us, elite, c0nstant, unfav0rable 0r unfriendly, and surviving f0r
a specific time 0f time. Alth0ugh the internati0nal definiti0n is t0 s0me degree unique,
effective c0ntr0l claims are likewise situated in law. When the state wh0se area is infringed
thusly submits in the infringement, the case is supp0rted, as in a cust0mary law adverse
p0ssessi0n claim. In Minquiers and Ecreh0s, the c0urt c0ncentrated 0n dem0nstrati0ns 0f
s0vereignty and jurisdicti0n, while in S0vereignty 0ver Certain Fr0ntier Land
(Belgium/Netherlands) and Land and Maritime B0undary (Camer00n v. Nigeria), the c0urt
entirely excused such acts, depending rather 0n treaties and agreements.”.

This decisi0n was particularly critical in the last case in light 0f the fact that the treaty, as the
c0urt rec0gnized, was defective and didn't res0lve all b0rder issues. 58 N0netheless, the
flawed agreement superseded an abundance 0f Nigerian f0rtuit0us pr00f 0n effective c0ntr0l
0f the c0ntested territ0ry.

The“differentiati0n am0ng Minquiers and Ecreh0s fr0m 0ne perspective, and S0vereignty
0ver Certain Fr0ntier Land and Land and Maritime B0undary 0n the 0ther, is a significant
0ne. A great part 0f the legal writing 0n territ0rial disputes centers ar0und title by
dem0nstrati0ns 0f s0vereignty and quiet submissi0n by the 0pp0sing party. Be that as it may,
in S0vereignty 0ver Certain Fr0ntier Land, 59 and Land and Maritime B0undary, in any case,
the c0urt put t0gether its decisi0ns unequiv0cally with respect t0 treaty law, n0t 0n effective
c0ntr0l. 60 In S0vereignty 0ver Certain Fr0ntier Land, Belgium had the reas0nable treaty
right, while the Netherlands had effective c0ntr0l 0f the c0ntested territ0ry. 61”.

In“settling this dispute, the c0urt made a chain 0f justificati0ns in instances 0f this nature.
Land and Maritime B0undary further f0rtifies this pecking 0rder, in light 0f the fact that the
c0urt based the center 0f its decisi0n 0n a internati0nal agreement fixing the b0rder and held
that effective c0ntr0l thr0ugh effectivités was auxiliary t0 any such agreement. 62 The c0urt
has likewise exhibited an inclinati0n f0r effective c0ntr0l legitimizati0n 0ver equity infra
legem. In S0vereignty 0ver Pulau Ligitan and Pulau Sipadan (Ind0nesia/Malaysia), the c0urt
put it all 0n the line t0 decide the case 0n the activity 0f effectivités 0n the c0ntested islands.
58
Land and Maritime Boundary (Cameroon v. Nig.: Eq. Guinea intervening), 2002 I.C.J. 303, 340–41 (Oct. 10).
59
Sovereignty over Certain Frontier Land (Belg./Neth.), 1959 I.C.J. 209, 222 (June 20).
60
Land and Maritime Boundary, 2002 I.C.J. at 399.
61
Sovereignty over Certain Frontier Land, 1959 I.C.J. at 227.
62
Land and Maritime Boundary, 2002 I.C.J. at 353.

26
At l0ng last it put t0gether its decisi0n with respect t0 the way that Malaysia c0ntr0lled the
ass0rtment 0f turtle eggs and set up a bird sanctuary 63—barely c0mparable t0 the degree 0f
l0cal administrati0n in Minquiers and Ecreh0s.”.

The“c0urt was all the m0re ready t0 put t0gether its decisi0n with respect t0 pr00f 0f
effective c0ntr0l, h0wever, than t0 depend 0n equity infra legem 0r s0me 0ther decisi0n rule.
When the c0urt needs directi0n fr0m treaties, uti p0ssidetis, 0r effective c0ntr0l, it is destined
t0 c0ntinue in equity infra legem and divide the c0ntrast between the defendants' p0siti0ns.
The c0urt—fairly unexpectedly—lean t0wards rec0mmending an evenhanded arrangement
dependent 0n ge0graphy, ec0n0mics, culture, hist0ry, elitism, 0r ide0l0gy. That these
classificati0ns d0n't frame s0me p0rti0n 0f the c0urt's tripartite chain 0f c0mmand justifies
s0me further discussi0n. In spite 0f the fact that petiti0ners at times raise t0p0graphy, this
issue is 0bvi0usly missing fr0m the c0urt's decisi0ns.”.

63
Sovereignty Over Pulau Ligitan and Pulau Sipadan (Indon./Malay.), 2002 I.C.J. 625, 684–86 (Dec. 17).

27
 CHAPTER-VI

CONCLUSION

If India and Nepal decide t0 take this issue t0 be res0lved by the ICJ, as that will happen
when p0litical dial0gues and peace talks w0uld yield n0 result then b0th the c0untries must
have this in mind, that ICJ can 0nly intervene when it has the c0nsent 0f b0th the states t0
decide the dispute. And if there is s0me decisi0n laid 0ut and if supp0se 0ne 0f the nati0ns
d0 n0t abide by it, then there is n0 way t0 enf0rce the said decisi0n, 0fc0urse the nati0n wh0
wants t0 enf0rce the ICJ judgement can appr0ach the UN Security C0uncil and ask t0 imp0se
restricti0ns 0n the faulty party, but then als0 Let us supp0se if India l0ses the case in ICJ,
then the P0werful nati0ns at ICJ w0uld be biased t0wards India, and w0n’t help Nepal 0ut.

ICJ h0wever w0uld analyse the case 0n the basis 0f its Trilateral jurisprudence which is
discussed ab0ve, the first step is t0 analyse the treaty 0f Sugauli, and the sec0nd w0uld be t0
analyse the d0ctrine 0f Uti P0ssidetis, and then thirdly and finally which nati0n has effective
c0ntr0l. As ab0ve discussed in all the three parameters since India has str0ng claims t0 make
and stand f0r, I believe the decisi0n w0uld be in its fav0ur.

India-Nepal“b0rder issues appear m0re easily s0lvable, s0 l0ng as there is p0litical g00dwill
and statecraft exercised 0n b0th sides. The way t0 m0ve f0rward is t0 f0rmally appr0ve the
strip maps, res0lve the tw0 remaining disputes, demarcate the entire India-Nepal b0undary,
and speedily execute the w0rk 0f b0undary maintenance. There are new c0mplicati0ns
because p0siti0ns have hardened 0n b0th sides. Further, m0re than India, it may n0t be as
easy f0r the Nepali side t0 c0me t0 a p0litical s0luti0n because 0f the d0mestic backlash any
leadership that neg0tiates 0n Kalapani will face.”.

Given“the imp0rtance 0f ties with Nepal, 0ften r0manticised as 0ne 0f “r0ti-beti” (f00d and
marriage), India must n0t delay dealing with the matter, and at a time when it already has a
face0ff with China in Ladakh and Sikkim. India sh0uld maintain a p0licy 0f keeping away
fr0m the internal affairs 0f Nepal, while at the same time, in the spirit 0f friendship, India
sh0uld guide the nati0n t0wards a m0re inclusive dem0cracy.”.

Since“the free m0vement 0f pe0ple is permitted acr0ss the b0rder, Nepal enj0ys immense
strategic relevance fr0m India’s nati0nal security p0int 0f view, as terr0rists 0ften use Nepal
t0 enter India. Theref0re, stable and friendly relati0ns with Nepal is 0ne 0f pre-requisites

28
which India can’t aff0rd t0 0verl00k. India sh0uld als0 try t0 c0nvey t0 Nepal’s leadership
ab0ut the c0ngenial and friendly envir0nment that 6 t0 8 milli0n Nepali citizens living in
India enj0ys. Theref0re, any th0ughtless er0si0n 0f this centuries 0ld t0getherness may pr0ve
difficult f0r b0th c0untries.”.

The“existing bilateral treaties between India and Nepal have n0t taken the shifting 0f
Himalayan rivers int0 c0nsiderati0n. A primary reas0n f0r this is the lack 0f an appr0ach
where ec0l0gical c0ncerns and needs 0f rivers are 0ften dismissed. Theref0re, India and
Nepal sh0uld try t0 res0lve the b0undary dispute by taking int0 acc0unt all shared
envir0nmental characteristics.”.

29
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32