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202 / International Watercourses Law and Its Application in South Asia Prospects and Problems of Nepalese Water Resources / 203a multi-party democracy was restored in Nepal, followed by theinstallation of a new government, the two governments agreedto restore the status quo ante of April 1987 in matters of tradeand transit. 67To analyse and evaluate Indo-Nepal relations, a study ofseveral treaty arrangements is essential, enabling anunderstanding of the reality on the ground. There are threemajor bilateral instruments concluded by India and Nepal,supposedly to protect the former’s security concerns: the 1950Peace and Friendship Treaty, the 1965 Arms AssistanceAgreement, and the 1990 Joint Communiqué. The backgroundto the timing of the conclusion of each of these treaties isinteresting; on each occasion the Nepalese Government waseither in crisis or about to fall, or there was merely a caretakerGovernment in place. In principle and practice, suchgovernments do not normally have the right to conclude atreaty of this kind, that is to say one which is vital and has farreachingimplications. 68 It is considered that the conclusion ofeach of these treaties was carried out despite the fact that therewas no authority within the existing government, because inpractice such agreements had been concluded in the hope ofsecuring foreign support, either to remain in power or to winthe forthcoming election. However, the 1950 Treaty of Peaceand Friendship, and the Exchange of Letters (on the same day),undermined Nepal's sovereignty and territorial integrity, statingthat the defence and security of Nepal would be dealt withjointly, and that arms and ammunitions should only be obtainedafter giving prior notice to India. 69 In regard to the economyand to commerce, each government was to treat citizens of theother country as their own nationals, allowing them toparticipate in the industrial and economic development of thecountry, by granting them, on a reciprocal basis, rights to67 Supra note 63, p. 221.68 Ibid. p. 222.69 Ibid. Article I of the treaty and paragraph 1 of the letter.property ownership and participation in trade and commerce,free movement, and other privileges of a similar nature. 70From several perspectives the treaty is defunct and outmoded,and Nepal has repeatedly requested its repeal and formulationof a new one. It is understood that both governments agreed todevise the new treaty, and the work is proceeding at foreignsecretary level; however, expected progress has not beenachieved and it is alleged that this is due to India. 71 The Indianposition about the 1950 treaty is that she insists on acontinuation of it, albeit with some modifications, if necessary,to accommodate Nepalese concerns. India claims that it wouldbe detrimental to Nepal if the special relationship with her wereto be abandoned, as economic, trade and transit relations couldthereby be devastated. 72With regard to the 1990 Joint Communiqué, which restored thestatus quo ante of the earlier trade and transit arrangement,India succeeded in getting more concessions from a painstrickenNepalese government, such as the removal of the workpermit arrangements for Indian nationals working in Nepal,trade favours, the introduction of the concept of common riversapplying to water resources that belong to Nepal, theaccommodation of India’s security concerns, and so on. 73 Nepalwas equally responsible for agreeing to these provisions despitethe fact that restoration of the facility of access to and from thesea is a right under customary international law and no70 Articles VI and VII of the treaty.71 A. Mukariji, “Nepal is Destablization the Name of the Game?”,Ayanjit Sen (ed), India’s Neighbour: Problems and Prospects ,NewDelhi: Her-Anand Pub., 2001, p. 116.72 K. Natawar Singh, “An Agenda for Talks with K. P Bhattarai” TheTimes of India, 7 June 1990.73 Supra note 63, pp. 230-232; also see S. P. Subedi, “The United Nationsand the Trade Transit Problems of Land-Locked States” in M. IGlassener (ed), The United Nations at Work, Westport, CT: Praeger,1998, pp. 134-160.
204 / International Watercourses Law and Its Application in South Asia Prospects and Problems of Nepalese Water Resources / 205concession at all. 74 However, the new transit treaty of 1991endorsed the provisions of the1978 treaty, which dilutedNepal’s right of access to and from the sea on the principle ofreciprocity, creating more trouble for Nepal in the need forfurther bargaining, a point which Subedi addresses as follows:“But if a bilateral transit treaty concluded nearlyten years after the conclusion of LOSC stillembodies the principle of reciprocity it could beregarded, from international legal point of view, asdisastrous. 75Whilst other landlocked nations have been able to enjoy suchrights for a long time, Nepal is still being asked for reciprocity,which is just a bargaining ploy with a view to accruing Nepal’simmense water resources. For instance Switzerland has accessto the sea via four countries, while Austria, Czechoslovakia,and Hungary each enjoy transit through two neighbouringstates and Luxemburg enjoys transit facilities through Belgium.Furthermore, Switzerland has direct access from Basel to theNorth sea via the Rhine, while the Danube is an importantmeans of transit for Austria and Hungary. Similarly, Paraguayis especially favoured, in that Asuncion is linked by the Parana-Paraguay river system to major ports at Buenos Aires andMontevideo. 76 Moreover, several instances of breaches of the1950 treaty by the Indian side have occurred, such as India’sfailure to consult Nepal about the war with China in 1962, andwith Pakistan in 1965 and 1971. India deported some of theNepalese permanently living in Assam and Meghalaya, and74 Ibid. The Barcelona Convention and Statute on Freedom of Transit(1921), the High Convention (1958), The Convention on the Law ofSea (1982) are the main instruments concerning Land-locked states.75 Supra note 65, p. 190; also see A. Sarup, “Transit Trade of Land-Locked Nepal” (1972), in 2 ICLQ, pp 277-306.76 S. C. Vascianne, Land Locked and Geographically DisadvantagedStates in International Law, Oxford: Oxford University, 1990, pp. 6-7.introduced a permit system for Nepalese to enter Sikkim andother parts of India. Hence the treaty has become defunct. 77Some of these charges have been denied by India.On the positive side, M. Dubey, an eminent scholar and formerforeign secretary of the Government of India has recommendedthat regarding the sharing of the benefits of natural resourceswith Nepal, he saw no problem; he argued that India alonecould provide funding for these water projects. He articulatedan idea concerning downstream benefit, using as an examplethe Dhiang Dam, which India claimed would bring down theflood level in India and Bangladesh by one metre, which leadsone to question how India can deny that dams in Nepal willalso provide flood relief to her own territory. However, Dubeydebated concerning the demand for abrogation of the 1950treaty and maintained it would mean devastating consequencesfor Nepal. 78The situation prevailing on the ground in Nepal must beunderstood at this juncture. The Nepalese leaders should not beforever seeking India’s blessing, which seems to be a basicfeature of Nepalese politicians, intent on protecting their owninterests. They should rather formulate national consensus onmajor issues and the principle of non-reciprocity as embodiedin the Gujral Doctrine, which advocated good neighbourlyrelations with no reciprocal advantage from small neighbours,77 His Majesty's Government, Nepal, Department of Printing andCommunication 1989: India-Nepal facts and chronology of theproblem, p. 78; also see the then Nepalese Prime Minister K.N. Bista'sinterview in The Rising Nepal, 25 June (1969).78 M. Dubey, "Some Reflection on Indo-Nepal Relations" in L. R. Baral(ed), Looking to the Future: Indo-Nepal Relations in Perspective, NewDelhi: Anmol Pub., 1996, pp. 47-58.
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International WatercoursesLaw and I
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PrefaceIn this book, the author has
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International Treaties and other Do
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ADBAJILAus.JILAYBLADPILALCCASEANAGO
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GlossaryMap of the Ganges BasinThe
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Chapter- ThreeEquitable Utilisation
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Introduction / 1 2 / International
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