Bhagirath Basnet

Former Ambassador of Nepal to Bangladesh
and Former Acting Foreign Secretary

Time and again, political leaders and intelligentsia in Nepal are taking up the issue of Nepal-India Treaty of Peace and Friendship concluded in 1950.

It is one of the most contentious issues in Nepal-India relation. We want to revise the treaty and India is also not opposed to doing so, but states that other agreements and treaties based on the 1950 Treaty should also be updated based on the revision.

Nepal, however, remains unwilling to update other agreements and treaties.

The 1950 Treaty mostly entails security, social and economic factors in our relations which are the extension and expansion of the Treaty of Friendship of 1923.

Prime Minister Chandra Shamsher Rana had sought fresh negotiations for the replacement of the Treaty of the 1816 to establish fully and unequivocally the independence of Nepal and the Treaty of 1923 had formally recognized Nepal’s independence.

Later, both countries wanted to expand and continue those provisions.

Before signing the treaty in 1950, several factors had contributed to the signing of the Treaty.

Nepal- UK relations were governed by the Treaty of Sugauli of 1816 and its successor- the Treaty of Friendship of 1923 along with age old conventions and practices.

But after India received independence from the United Kingdom, both the countries seem to have felt for a new Treaty to continue with most of the things going on between the two countries in the new context that had brought changes in both Nepal and India.

Looking at the perspective then, many changes had taken place in both the countries and in the region which had prompted the 1950 Treaty.

For example, India was portioned into India and Pakistan.

India had to request Nepal for troops to help contain Hindu-Muslim violence occasioned by the partition.

Several battalions of the British Gurkhas had come under independent India. More importantly, the US was trying to fill the vacuum left in Nepal from the departure of UK from South Asia.

The Chinese Liberation Army had entered Tibet.

And pro-democracy protesters were threatening the oligarchic Rana regime in Nepal.

On the face of it, both countries wanted to ensure continuity and certainty and commit to standing to external threats together.

Besides, the Rana regime was also seeking reprieve from the pressure being mounted from the Indian soil by the Nepalese fighting for democracy and freedom.

Nepal and India signed the Treaty of Peace and Friendship on 31 July 1950. Inked by Nepal’s Prime Minister Mohan Shamsher JB Rana and India’s Ambassador to Nepal Chandreshwor Narayan Singh, the Treaty acknowledges and commits both sides to respects the complete sovereignty, territorial integrity and independence of each other.

It provides for the free movement of people and goods between the two countries and for maintaining close cooperation and collaboration on defense and foreign affairs.

The Treaty has been widely criticized in Nepal as unequal, though it as such has no such provision to suggest that.

Article 1 of the Treaty commits both countries to acknowledge and respect the complete sovereignty, territorial integrity and independence of each other.

Under Article 2, both governments have to inform each other of any serious friction or misunderstanding with any neighboring country that may disrupt friendly relations between the two states.

Article 3 provides for mutual diplomatic relations and representation. Both countries have pledged consular relations and privileges in Article 4.

Articles 5 grants Nepal freedom to import arms, ammunition, and warlike material and equipment, under mutually agreed arrangements.

Articles 6 and 7 deal with substantive economic and social arrangements between the two countries.

Under Article 6, both countries have committed to give national treatment to each other’s citizens in industrial and economic development and related concessions and contracts.

Article 7 ensures that the nationals of both countries will have the same privileges in the matter of residence, ownership of property, participation in trade and commerce, movement and other prerogatives of a similar nature.
Article 8-10 relate to procedural matters.

Article 8 cancels all previous treaties and agreements done between Nepal and British India.

Article 9 makes the treaty effective on the date of signature and Article 10 provides that the treaty would remain in force until it is rescinded by either party by giving a year’s notice.

As these provisions demonstrate, the treaty in letter is not unequal.

Neither is it an albatross around Nepal’s neck, because it can terminate the treaty by giving one year’s notice.

However, the following three factors turn an equal treaty in letter into an unequal agreement in spirit and enforcement.

First, the arrangements made for the implementation of Article 5.

Nepal and India exchanged a letter in 1965 to implement Article 5 of the Treaty.

The letter stipulates that India should supply all arms and ammunition needed by Nepal and should permit Nepal to procure them from the United States and the United Kingdom if it cannot supply them; and both countries should view attack on one as attack on the other as well.

These stipulations are inconsistent with the sovereign prerogatives of Nepal.

A sovereign country must be able to import weapons from whomever it wants without any other country’s approval.

But the 1965 letter ties Nepal’s hand.

Similarly, no sovereign country can be obliged to treat aggression against one country as aggression against another as well unless both countries agree to do so under a military alliance.

Nepal and India do not have a military alliance.

The letter, therefore, puts Nepal under the Indian security umbrella.

Second, an equal treaty between unequal countries produces unequal and disproportional impact for the smaller country.

Take the freedom of citizens of one country to reside in the other, for instance.

If 1 percent of India’s 1.3 billion population chooses to move to and settle in Nepal, Nepal’s present population of 29 million will reach 43 million, a rise of nearly 50 percent.

If Nepal’s 1 percent population moves to India, India’s population will increase by only 299,062, a rise of 0.02 percent.

Similar differential impact applies to trade, commerce, and contracts in which the citizens of both countries are promised equal opportunity and privileges under the Treaty.

Third, the unequal power to enforce the provisions makes the treaty unequal in substance.

If India breaches any provision of the 1950 Treaty, Nepal does not have the capacity to compel India to stick to it.

In sharp contrast, India can impose the treaty provision on Nepal by using its diplomatic, economic, geographical and political pressure.

It can even blockade the border or prevent Nepali goods transiting to and from the nearest Indian ports, as happened during the impasse of 1988-89.

This differential power to enforce makes the treaty unequal for Nepal in substance.

Need for Revision:

As stated above, the 1950 Treaty is unequal in its arrangements, in spirit and in enforcement.

Therefore, it should be revised.

Besides, dramatic changes in national, regional and global contexts also make it imperative to amend the Treaty.

Nepal has therefore proposed for amending the Treaty consistently after the restoration of multiparty democracy.

Furthermore, several contexts have changed enormously since the days the treaty was first signed.

The Cold War has ended and globalization has taken hold.

Most of the global political and economic barriers have considerably subsided, if not vanished altogether.

Mobility of people across the world has increased.

Although their strategic rivalry and conflicting territorial claims remain, China and India have put the war of 1962 behind, improved their relations, and become friendly economic and trading powers.

Nepal too has changed a lot since 1950.

The Ranas who signed the 1950 Treaty are gone from the power scene.

The Panchayat system has been removed and multiparty democracy has been reinstated in 1990.

The monarchy too has been abolished in 2008.

Nepal has been trying to pursue balanced relations with both India and China, the second largest economic and military power in the world.

In addition, neither Nepal nor India has implemented the 1950 Treaty in its letter and spirit.

For instance, Nepal does not allow Indian citizens to buy land in the country or participate in local small business deals and contracts.

India does not give the same treatment to the Nepali citizens as it does to Indians in jobs in the public sector or in other respects.

It is therefore imperative for both countries to replace the outdated and irrelevant 1950 Treaty with one that reflects the reality of today.

The need for revising the Treaty is being increasingly acknowledged in India as well.

Former Indian Foreign Secretary J.N Dixit thinks that, though the Treaty has been beneficial to the people of Nepal, it has to be acknowledged that it vitiates Nepal’s national identity and freedom of action.

After fifty years of the signing of the agreement, he suggests, India should be sensitive to Nepal’s demand and have no objection to renegotiating the Treaty.

In mostly all prime ministerial visits, the joint communiqués have reiterated the need for treaty revision.

Two countries have created a joint mechanism at the level of foreign secretaries.

The foreign secretaries have had several consultations on this issue.

Although reluctant, Indian officials are ready to revise or cancel the treaty by giving one year’s notice, they are also quick to mention the caveat that all other treaties and agreements made on the foundation of the 1950 Treaty would also have to be revisited and revised.

Implications of Revision/Cancellation:

The 1950 Treaty is foundational accord on which so many other treaties, agreements and understandings have been signed subsequently.

Its unilateral cancellation is an option but it may lead to unintended and undesirable consequences for Nepal and, to some extent, even for India.

It is, therefore, infinitely more desirable to revise the treaty through consultation, understanding and agreement.

Unilateral cancellation of the Treaty will give Nepal greater independence in strategic and defense matters.

It will also give a clean slate for the two countries to negotiate a new comprehensive treaty if both sides so desire.

However, before a decision to annul the treaty is taken, a comprehensive study will have to be undertaken to identify, understand and assess the positive and negative consequences of such an action.

Actually, a study to assess the impact of scrapping the 1950 Treaty unilaterally has been done.

It has been found that, if India dumps all the subsequent treaties and agreements based on the 1950 Treaty, Nepal and Nepalese would lose the preferential treatment in residence, trade, commerce, tariffs, education, health, etc.

The revision through mutual consultations will give room for negotiation, bargain, understanding and agreement along the way that would prevent unknown or unintended consequences and outcome.

It is, therefore, infinitely more desirable to revise the Treaty through understanding and agreement than to cancel it unilaterally.
In this context, it would be pertinent to state here that the report prepared by the Eminent Persons Group (EPG) of Nepal and India has also agreed to replace the Nepal India Peace and Friendship Treaty of 1950 and regulate the Nepal- India border. But more than three years now the report has yet to be submitted.

Giving due regard to the report prepared by the EPG will also address to some extent the issues of 1950 Treaty.

In other words, there is no doubt that the 1950 Treaty is outdated and needs revision.

Both countries have flouted treaty provisions.

The regional security situation has also changed. India and China both have become nuclear powers having mutually assured destructive deterrence.

It would be a good idea to update the Treaty to current realities, remove the outdated provisions and include new provisions to address mutual concerns.

Unilateral cancellation is an option but must be taken or discarded based on sound analysis rather than on raw sentiment.
End text.
#Text courtesy AFCAN Review Volume 2, 2021.
Thanks AFCAN and the distinguished author: Ed. Upadhyaya.
Our contact address: editor.telegraphnepal@gmail.com