Bilateral Experts Report on New India-Nepal Treaty Likely to Face Roadblocks

While formal talks are yet to take place since the report hasn't been submitted, the two sides have differences on whether all recommendations can be implemented.

New Delhi: A new treaty allowing Nepal transit for arms and ammunition from third countries (but only after assuring Indian interests will be protected), and a hi-tech monitoring system for the border that will not diminish its open character is the most significant recommendation that an officially-mandated bilateral expert group is expected to propose to the Indian and Nepali prime ministers – that is, once they can formally submit it.

The report of the eight-member Eminent Persons’ Group on Nepal-India relations (EPG-NIR) was finalised in mid-2018 at the end of its two-year term in June. Six months later, the members are still waiting to officially submit the report to the two prime ministers, as Modi has not been able to find a slot in his schedule.

The final draft of the report was circulated among the members last week.

Most probably, [the delay was] because the Indian prime minister is too busy for preparation of the elections and other issues,” Nepali foreign minister Pradeep K. Gyawali told The Wire on the sidelines of the Raisina Dialogue. The report will be made public only after it is submitted to the two prime ministers.

Pradeep K. Gyawali. Credit: Reuters

The decision to set up the EPG was announced in August 2014, when Modi charmed the Nepali political establishment during his first visit to Kathmandu as India’s prime minister. However, it was not populated until the period of post-‘blockade’ rapprochement between India and Nepal in 2016.

The group was co-chaired by former Nepali foreign minister Bhekh Bahadur Thapa and former Uttarakhand chief minister Bhagat Singh Koshyari The other members nominated by Nepal were former chief commissioner of the Commission for the Investigation of Abuse of Authority Surya Nath Upadhyay, former law minister Nilambar Acharya and foreign relations advisor to Prime Minister K.P. Oli, Rajan Bhattarai.

The Indian members included former ambassador to Nepal, Jayant Prasad, professor Mahendra Lama and professor B.C. Upreti. Unfortunately, Upreti passed away last month.

The report has called for widening the scope of a replacement treaty, so there are likely many suggestions that will be acceptable to both sides. However, government sources noted that the EPG comprised independent members and therefore, there was no automatic acceptance of the recommendations. India will take a call on which ones are implementable once the report is submitted, they said.

New Delhi views the current trajectory in relations with a degree of optimism. Therefore, there is no appetite for creating a situation for a potential wrinkle in ties.

Also watch: Has China Weaned Nepal Away From India?

There could be a potential shadow if Nepal insists on the full implementation of the report. None of the joint statements or Indian pronouncements have mentioned a full implementation of the report, but Kathmandu has clear expectations.

“….as there is a firm commitment from both sides, I do believe that they will receive (the EPG-NIR report). Not only receive, but they will implement and after implementation of the report, a new beginning of our relationship will be defined,” Gyawali said.

What the report means for Nepal

The report, he added is“very, very important” for Nepal. “It not only reviews the previous status of our relations, some misunderstanding, some legacy of history but also perceive the new dynamics of the future. It explores the new areas of cooperation. It is the real foundation of the real neighbourhood,” said the Nepali foreign minister.

According to sources who have knowledge of the recommendations, the eight members have called for substituting the 1950 India-Nepal Treaty of Peace and Friendship and its seven clauses, with a treaty which will more than double its scope.

The EPG members have evidently skipped over Article 2 of the current treaty that calls for both countries to inform each other of “friction” with third countries that could impact bilateral relations.

Article 5, which the Nepalis have long contended is a violation of their sovereignty, is flipped over.

This could be contentious for New Delhi as the recommendation is that India should enable transit of arms and ammunition for the country from third countries to Nepal. The qualification put in the proposed modified clause is that Nepal has to provide reassurance that the import wouldn’t impact Indian interests or export those arms into India.

India’s concerns

India’s concerns with Article 5 were borne out during the Maoist insurgency when arms were being supplied by a certain Western country to one of the sides. It was stopped after an official caution. However, New Delhi remains deeply worried that the porous border could lead to Nepal’s imported weapons reaching into the hands of criminal gangs and insurgent groups in India.

Incidentally, the 2007 India-Bhutan friendship treaty had also changed a similar clause in the 1949 version. The new treaty says that Bhutan can import arms as long as Indian interests are not harmed and there is no re-export of the weapons, either by the government or individuals.

Article 6 and 7 in the current treaty encompass the issue of ‘national treatment’ and equal privileges for citizens on each other’s soil. While the spirit has been preserved to an extent, the EPG members have apparently backed Nepal’s position that the Himalayan republic should be able to institute more protection for its own citizens due to the asymmetry in size and economy between the two neighbours.

Open border

The 1880-km-long open border between Nepal and India that has fostered close kinship among the two populations is viewed as a symbol of their special relationship.

The border was, therefore, the focus for substantial part of the proceedings for the nine meetings. It is learnt that the Nepalese members pushed for a robust border mechanism, while the Indian side underlined that the open border concept has to be preserved.

In August 2018, Nepali newspaper Kathmandu Post reported that the EPG members have proposed identity cards for cross-border movement.

According to sources, the EPG has suggested that a technology-driven structure should be put in place for monitoring the movement along the international boundary, with identity cards as the mode of registration. There is, however, phrasing in the recommendation which reportedly asserts that any monitoring system has to maintain the concept of open border.

Also read: Redefining India-Nepal Engagement Is Easier Said Than Done

They have also called for having an ample number of authorised crossings points, which should also include the traditional means of entry-exit on the open border.

Speaking to The Wire, retired Indian foreign service officer, Ranjit Rae, who was India’s ambassador to Nepal from 2013 to 2017, noted that open border “underpins” the India-Nepal relationship.

“I strongly feel that whatever measures are taken should not diminish the open border and the close and intimate people-to-people relationship across the border,” he said.

He pointed out that it would be “impractical” to introduce identity cards or any other documents to regulate the movement at the border – and could lead to chaos. During the NDA-I government, both countries had started a pilot project for monitoring cross-border movement, but it failed to take off.

Based on the keenness from the Nepali side, a specific reference to restoring the no-man’s land zone on the border was inserted.

According to sources, along with maintaining the open border, Indian members also argued for more varied exchanges between the two countries.

In other areas, the members have suggested new connectivity corridors, called for reviewing the trade treaty and evolving a new umbrella transit agreement.

Incidentally, the EPG members have suggested that a new friendship treaty should have a clause on respecting the right and freedom of transit for land-locked Nepal. Transit rights have always been a critical issue for Nepal, which expedited negotiations for a transit agreement with China after the ‘blockade’.