India's Transit warfare against Nepal

The world congratulated Nepal for her success of implementing new constitution but Nepal’s so called roti-beti closest neighbor sent a cold note and a mild warning. India has unofficially closed all the trade routes and tries to interfere with landlocked Nepal’s sovereignty and internal affairs. According to public International law, it is illegal for one state to impose an economic blockade on another. There are couple of international instruments which argues that land locked countries should be given transit access as international customary law. This is not the first time India blockade to Nepal. Nepal frequently mistreated by the closest neighbor India’s transit warfare.

Nepal had got the nearest transit point through India since the British regime as per the Friendship

treaty of 1923.Modern Nepal-India relationship has been guided by Peace and Friendship Treaty 1950 which allowed nationals of both countries to visit each nation without visas or passport and followed open border policy. National of both countries may work and pursue occupation in respective countries. This treaty also highlights on security, trade and transit between Nepal and India. The Trade and Transit treaty was renewed in the year 1960 and 1971.

The trade and transit treaty was bifurcated and separate transit treaty was signed in year 1978. The new transit treaty recognized the transit right of landlocked country which was separate and permanent in nature than bilateral trade. In the year 1989, the transit treaty of 1978 was unilaterally abrogated by India refusing to sign separate transit treaty. However, in 1991 Nepal and India continued separate transit treaty with the major provisions of renewal. In 1999 the transit treaty was signed with the provision of automatic renewal after every seven years.

However, Nepal has secured 15 transit routes for traffic in transit though Nepal has exercised only 7 routes presently. And, also India somehow has shown its liberalism by providing transit facilities through Radhikapur to Nepal by which Nepal has access to International Trade with Bangladesh and other countries. Moreover, separate transit treaty from other bilateral issues is one of the important achievements of Nepal with the provision of automatic renewal provision in every 7 years as mentioned.

Under Juristic approach, Hugo Grotius (Father of International Law) advocated the rights of landlocked states based on these major principles of Freedom of sea: Res communis (Property of the community), Res nullius (Property of none), Res publica (Public property),Mare Liberum (Free sea / High sea / Open sea). Though these principles have not guaranteed the freedom of transit or freedom of access to sea, it refers the conception of freedom of transit and access  to sea that is of landlocked states.

Likewise, Charles Cheny Hyde defended the right of landlocked country through the conception of inoffensive passage based on principle of equity and justice. George Scale is of view that under public law landlocked states are provided “with an unquestionable right of passage over territories separating them from the sea without need of any treaty or in theory even of an international agreement. Ulpian says," The Sea is open to everybody by nature."Clesus says," Sea like the air is common for all mankind. "Marcel Sibert says," High Sea is a common property for all to use.”E. Lauterpacht has focused the free transit right of the landlocked states with two prospective, which are The state claiming the right must be able to justify it under considerations of necessity or convenience. The exercise of the right must cause 'no harm 'or 'prejudice' to the transit state.

Customary International law is one of the important aspect in light of which the legal status of the land-locked states in exercising the right to access to sea and right of freedom of transit can be observed. Freedom of transit right of land-locked country is now a part of customary international law, binding on all states. This was the view advanced by several landlocked states including Nepal, during UNCLOS III. Supporting the view, Lauterpacht says, the right of transit exists in international law provided that the state claiming the right is able to justify it by reference to considerations of necessity or convenience and exercise of the right does not cause harm or prejudice to the transit state. Further he states, 'when circumstances warranting a claim to transit exist, the legal right to freedom of transit then arises. It exists independently of treaty.

Furthermore, art 125(1) of UNCLOS, 1982 having the provision of freedom of transit through the territory of transit States by all means of transport and reason of the world implementation of the Convention as till the date ratified by 160 states and has been enforced through the bilateral, regional agreements and state practice, can now be said unquestionably as a part of Customary International Law. UN Convention on the Law of the Sea (UNCLOS), 1982 has guaranteed the rights and responsibilities of landlocked countries in its Articles from 124 to 132. There is no doubt that while enjoying transit freedom no nation and the parties can go against national integrity and sovereignty and violate local laws and regulations. They may conclude transit agreement to determine their status of transit to and from. Some of the provisions of the conventions are as below.

Right of access to and from the sea and freedom of transit: As high sea is the common heritage of mankind, every landlocked country has the right of access to and from the sea to exercise the freedom as designated. Land-locked States can enjoy freedom of transit by all means of transport in transit countries.

Exclusion of application of the most-favored-nation clause: Each and every landlocked country does not have same level of geographical structures. While establishing rights and facilities on land-locked countries with special geographical position, the application of the most-favored-nation clause can be excluded.

Customs duties, taxes and other charges: As landlocked countries are geographically disadvantaged, traffic in transits is not subject to any customs duties, taxes and other charges. In case of the specific services reasonable charge may be levied. Similarly, means of transport in transit shouldn’t be levied higher than transit countries.

Free zones and other customs facilities: Transit State may provide free zones and other custom facilities for the convenience of traffic in transit for free entry and exit. Such arrangement can be concluded by both authorities.

Cooperation in the construction and improvement of means of transport: There may not be means of transport to exercise the freedom of transit or there is a necessity of the port installations and equipment. In such cases concerned transit State and land-locked State has to cooperate for construction and improvements.

Measures to avoid or eliminate delays or other difficulties of a technical nature in traffic in transit: Transit State has to apply reasonable measures to avoid delays or other difficulty in transit if so is technical nature. In case of difficulties arises in transit, both the authorities from transit State and landlocked state have to cooperate each other to eliminate a problem expeditiously.

Equal treatment in maritime ports: Ships flying the flag of land-locked States enjoys treatment equal as of other foreign ships in maritime ports.

Grant of greater transit facilities: Transit State may grant more facilities to the landlocked countries with or without agreement. However, they should not reduce the facilities lower than minimum standard. Such greater facilities can be granted in future as well.

Article 125 of UNCLOS does four key effects. First, it guarantees the right of free access to and from the sea to land -locked states. Second, it also guarantees to them freedom of transit without any prerequisites if this freedom is to be exercised in relation to the right of free access to and from the sea. Third, it does not require a bilateral treaty with the transit state to be able to exercise the right of free access and freedom of transit. Only the derailed provisos of the technical character regarding the terms and modalities for exercising freedom of transit have to be agreed upon with the transit state. However, actual right to exercise this freedom is itself no longer dependent on a bilateral agreement with the transit state, forth, breaking from the Barcelona tradition, it eliminates the requirement of reciprocity.

Nepal as being the landlocked country and also the signatory country to the UNCLOS and has ratified the same convention 2nd November, 1998. As mentioned earlier that right of free access to and from the sea has already been recognized as the right provided without any prerequisites by the Convention itself, there is no need of any India recognizing Nepal as a land-locked state in one hand and in other hand it is not to be based on principle of reciprocity since India is not a landlocked country and it is has not to be dependent upon Nepal for its international trade of for access to sea. The provisions of the treaty seem to be based on the same principle which is not justifiable for India that Nepal's right of free access to and from the sea or in fact transit right to be dependent on Nepal's granting parallel facilities to India which is not landlocked.

Although Nepal-India relation is combined with social, cultural, religious, political matters from very beginning of Indus valley civilization, a kind of bitter and cold relationship has been faced by both countries in regular interval of time. There is also coincidence that India has imposed economic embargo against Nepal at the time of big earthquake hit and political transition both in 1989 and 2015. Many Nepali people believed that India has created problem against Nepal without caring sovereignty issues of Nepal. However, India has been rejecting it taking it as elderly care.

India imposed an unofficial blockade, cutting supplies of fuel and other essential commodities to Nepal. Blockade has violated at least eight international laws and conventions, The Vienna Convention, Law of the Seas, WTO laws, Transit Treaty, Bilateral Trade Treaty, Asian Highway Agreement, SAFTA agreement, Member countries of SAARC, BIMSTEC, ASEAN etc. and this is tantamount to aggression.

Under the Article 42 of UN Charter, Security Council can impose blockade as a tools to force the country to comply international peace and order. Security Council only exercises such rights under Charter. Article 1 of UN Charter supports peaceful settlement of disputes in which countries are liable to solve issues by pacific means so that it may not hamper international peace and order. Article 2 recommends principles, which prohibit country to make interference in sovereignty and political independence of the country. Under Article 33 of Charter, Security Council tries to settle the problem as peaceful way. If peaceful means cannot solve problem, the Security Council may invite member country for forceful means. Article 41 provides power to Security Council to call for any economical disturbances to the particular country. The right to self-defense goes to country entitled but it does not allow country to interfere in internal affairs of country.

Sam Remo Manual on International law, 1994 has accepted a blockade a legal method of warfare at sea but it is also guided by rules and procedures. Blockaded area is entitled to search and seizure but is not applicable to the area of neutral sea and other. For a petty issue, one country shouldn't have to impose such stringent measures as the world has followed free trade system across the globe. However, while imposing blockade against another country, the status of civilian people, their basic needs should be respected. If it causes humanitarian and other crisis, such method can no longer be used.

Under the Article 42 of UN Charter, Security Council can impose blockade as a tools to force the country to comply international peace and order. Security Council only exercises such rights under Charter. Article 1 of UN Charter supports peaceful settlement of disputes in which countries are liable to solve issues by pacific means so that it may not hamper international peace and order. Article 2 recommends principles, which prohibit country to make interference in sovereignty and political independence of the country.

It can be said that the transit right of the landlocked state in relation to the right of free access to and from the sea has been guaranteed. Under International Law, where the sea and its resources are recognized as the common heritage of all humankind. For the propose of air and equal access to such resources and for the maintenance of international trade and other relations among the nations irrespective of geographical location whether costal state or landlocked one, the UNCLOS seems to be more comprehensive however, the principle of reciprocity is still shortcoming aspect within it to secure the transit rights of the landlocked state. Nepal, one of the landlocked states has to be fully dependent on India's sea ports for the convenience of its enjoyment of the transit facilities because of its geographical location. Nepal, in lesser or greater extend enjoying the transit right through the Indian sea port and territories based on Transit Agreement however it is in the form of reciprocity principle which seems unjustifiable that India providing transit facilities to Nepal with the same condition Nepal also provide the same though practically India is not doing so.
Thus, it seems challenge to Nepal to secure the full-fledged transit right in relation to right of free access to and from the sea that is to be based on negotiation in international forum but maintaining the friendly relationship with India at the same time.

To restore normal trade relations, Nepal may asserts its right to conduct international commerce by invoking the United Nations Convention on Law of sea (UNCLOS), call for the freedom of transit across the Nepali border under the “Freedom of transit” provisions of the GATT Article V. As both the countries are parties to the 1982 convention, India is obligated to fulfill the treaty provision. So, irrespective of India’s stance, Nepal can take the case to the International Court of Justice(ICJ).

But as it is not so easy to implement decision of the ICJ as it is to implement a domestic court verdict, Nepal needs to use its diplomatic channels effectively and efficiently. ICJ should be last resort.

It has to keep in mind that the survival of the state is not only dependent on international law but also on effective diplomacy. As Nepalese are having hard time due to the blockade, they have been behaving a reactive manner. Hence legal justice based on international law must be underpinned by efficient and effective diplomacy.

Source : Different author's study reports and Newspapers articles