By: Mary Kavita Dominic
Since May 2020, tensions have been simmering between India and Nepal over the historically disputed territory of Kalapani. These tensions threaten to boil over with the Parliament of Nepal passing a Constitutional Amendment Bill that alters the country’s maps to include this strategically key area within its borders. This has been widely perceived as an act of cartographic aggression by Indian officials. As with any border dispute, it would be useful to unscramble this diplomatic standoff through a legal prism. Of particular import are some of the questions that this issue raises in connection with river boundaries and cartographic assertions.
Legal Staticity versus Geographic Dynamism
The Kalapani dispute is symptomatic of an egregious marriage between natural geographies and modern-day Westphalian states. The status of River Kali as a boundary river between India and Nepal lies at the heart of this dispute. The predisposition of these nation-states towards permanent sovereignty and clearly demarcated borders has been vexed by the indeterminacy and transitory nature of Kali.
In 1816, Kali was designated as the boundary river between India and Nepal in Article V of the Treaty of Sugauli. Concluded between the Kingdom of Gurkha (present-day Nepal) and the British East India Company, the treaty had identified the territory lying to the east of Kali as falling within Nepal’s sovereignty. In return, the King of Nepal had renounced all claims on the region lying to the west of the river.
What appeared to be a straightforward provision in this treaty, however, was rendered incongruous by the topography of Kali. It was asserted by Nepal that the source of Kali was located in the mountains near Limpiyadhura, which is higher in altitude than the rest of the river’s flow. In keeping with this reasoning, it laid claim to the land that stretched downwards from Limpiyadhura and extended to the East. Conversely, India contended that the source of the river was situated further east in Kalapani, a sliver of land wedged between the borders of India, Nepal, and the Tibetan Autonomous Region of China.
Intrinsic to this dispute, therefore, was the problem of identifying the main channel of Kali, which in turn had implications for delimiting the border between India and Nepal. In fact, this dilemma was not unique to the Kalapani dispute. With shifting climate patterns across the world, the dynamism of river boundaries has posed a challenge for international law.
Interpretation of River Border Treaties
International law is no stranger to the ambiguities posed by geographical features in boundary agreements. A case in point is the 2002 border dispute between Nigeria and Cameroon, where the International Court of Justice (“ICJ”) had to identify the mouth of the river Ebeji. Nigeria had claimed that the mouth of Ebeji had changed over time. Acknowledging that the river did not indeed have a single mouth, the court sought to settle this dispute by ascertaining the intention of the parties at the time of the border agreement and making use of maps to identify the location of the mouth of Ebeji (¶¶ 59–60).
Here, in a manner reminiscent of the Kalapani dispute, the parties had to grapple with the indeterminacy of river borders and the resulting ambiguities in a boundary agreement. While resolving this issue, the court found it fit to rely on the original intention of parties as well as cartographic evidence. Such an approach was typical of the “Intent School” of treaty interpretation, whereby emphasis was placed on the intention of the parties to the treaty.
In a similar vein, it might be useful to glean the original intention of the parties to the Treaty of Sugauli, since its terms are unclear as to the delineating river channel. Towards this end, examining the travaux préparatoires of this treatywould be an instructive resource. However, both India and Nepal are yet to furnish any evidence, cartographic or otherwise, that predate the treaty or qualify as its preparatory works. Instead, both states have chosen to rely on surveys and cartographic exercises undertaken after the conclusion of the Treaty.
For instance, Nepal has mostly cited topographic surveys published by the East India Company from 1820 to 1846. Additionally, its former director-general of the Department of Survey has drawn attention to maps prepared by the Survey of India from 1850 to 1856. For their part, Indian officials have also referred to a post-dated map for advancing their claims, namely an 1875 map drawn up by the British colonial government.
The logic behind this approach can be attributed to the teleological school of treaty interpretation. Arguably, under customary international law, subsequent practice of parties is prioritised as a primary source of treaty interpretation, over and above secondary sources such as travaux préparatoires. This position is also reflected in the Vienna Convention on the Law of Treaties (“VCLT”; see articles 31 and 32). Although India and Nepal have not yet ratified the VCLT, it would be in their interest to demonstrate that subsequent surveys and cartographic exercises in the Kalapani-Limpiyadhura region have shown the river boundary to be coextensive with their respective interpretations. Indeed, Nepal, which is a signatory to the VCLT and India, whose Supreme Court has affirmed the customary status of the VCLT, would have much to gain from citing maps as subsequent conduct that affirms their position in relation to the Treaty of Sugauli.
Against this backdrop, it must be pointed out that the 1875 map cited as evidence by the Indian authorities does not carry a Nepali certification. On the other hand, Nepal claims that the maps prepared between 1850 and 1856 were issued by the Survey of India with the participation of Nepali authorities. While this has been consistently denied by India, if it were to be proven otherwise, it might prima facie weaken India’s position. After all, a cooperative cartographic exercise would be better indicative of subsequent practice, as compared to the unilateral drafting of a map. This brings us to the next bone of contention, i.e., the evidentiary value of maps under international law.
Evidentiary Value of Maps
Maps have always figured prominently in territorial disputes. In the past, courts and tribunals were loath to place excessive reliance on them, particularly when they described territory of which the creators had little knowledge or when they were sketched in order to promote a country’s claims. In fact, maps were mostly treated as secondary or hearsay evidence with little or no value.
With the establishment of the ICJ, however, there arose cases where this question had to be settled more conclusively. In a 1953 case between the United Kingdom (“UK”) and France, where both states asserted sovereign claims over a group of islets and rocks, Judge Carneiro observed that the evidence supplied by maps was not always decisive in the settlement of legal questions relating to territorial sovereignty. Although it could constitute proof of the exercise of sovereignty, he opined that a more searching and specialized study would be required in order to decide which of the contending maps prevailed (Individual Opinion, ¶ 20).
This principle, however, appears to have undergone some dilution in two subsequent cases. In the Frontier Land case decided in 1959, the ICJ had to decide between contradictory documents that attributed two plots of land in the Belgo-Dutch Frontier to the states of Belgium and the Netherlands, respectively. The court held that the map of a Delimitation Commission which was incorporated by reference in a treaty, but was inconsistent with the text of the instrument, would prevail over the written provision (pp. 220, 225-226).
This was taken a step further in the Temple of Preah Vihear case, where the ICJ had to decide if the territory surrounding the ruins of the Temple of Preah Vihear fell within the sovereignty of Cambodia or Thailand. In this case, the relationship between the map and the treaty was far less direct than the Frontier Land Case. Nevertheless, the Court treated a map, not formally approved by a Delimitation Commission, as if it were part of the treaty. In the eyes of the majority, Thailand had, by her conduct or lack thereof, acquiesced in the map as representing the outcome of the delimitation (pp. 21-24).
Thus clearly, there has been a shift in the evidentiary value attributed to maps, particularly when delimitation disputes are involved. In the present case, there does not appear to be a map attached to the Treaty of Sugauli. Although there exists a Nepal-India Joint Technical Level Boundary Committee (“JTBC”) that issues boundary base maps, it has declared the Kalapani-Limpiyadhura region as beyond its capacity to resolve. It is in this context, where there is no consensus about the accurate map, that previously mentioned factors of treaty interpretation including intention, subsequent conduct, etc., become relevant in the political dialogue between India and Nepal.
At the end of the day, this cartographic tussle over the source of a river exposes the land bias inherent in international law. As much as interstate disputes appear to concern the position of a river boundary, the true subject of the dispute is often land territory. Staying true to this principle, the differences over the origin of Kali is nothing but a territorial dispute over strategically important land, located at the trijunction of India, Nepal, and China.
In such a high-stakes territorial dispute, it is important that both India and Nepal resolve this amicably without falling foul of international law. With both sides accusing each other of unilateral or exclusionary acts, including the passing of a map in the Parliament of Nepal or India’s construction of a road on disputed territory, this objective stands frustrated. More regrettably, it undermines the spirit of the long-standing Treaty of Peace and Friendship between the two countries.