Beyond treaties

The 1950 Treaty of Peace and Friendship between India and Nepal has come fully into the limelight following the recent Constituent Assembly elections in the latter. Mention of the treaty had earlier featured in the 40-point list of demands by the Communist Party of Nepal (Maoist) in 1996, as well as in the party's recent election manifesto. In those instances, the emphasis had been on removing 'unequal' elements, and not on 'scrapping' the agreement outright – a term that is now occasionally in evidence, though it is difficult to segregate official policy statements from casual reporting by the media.

It also needs to be recalled that, though the CPN (Maoist) has consistently emphasised the importance it attaches to changes in (or elimination of) treaties or agreements with India that the Maoists consider to be unequal, such views have been expressed by all major political parties in Nepal over the years. For its part, India's stance has always been that it is prepared to discuss all options – namely, continuation, termination (as is provided for in the agreement itself), or the negotiation of a new treaty. Indeed, some drafts for a revised treaty were prepared by both sides a decade or more ago, but there has been no meaningful discussion to take the matter forward.

There could well be differences of perception regarding the terms of the treaty. But such perceptions may not always take into account the international, regional, national and bilateral circumstances in which the treaty was formulated and signed. At the time, it may have been useful for Nepal to have a successor treaty to the Anglo-Nepal Treaty of 1923, which, as Nepal had conveyed to the United Nations in 1949, had confirmed Nepal's sovereignty and independence.

India's concern vis-à-vis the possible regional fallout of the developments in China in the context of the time is well documented. Writing to the Prime Minister of Burma in January 1950, Jawaharlal Nehru had said, "There is not much danger of any Chinese aggression across the Indian border. But I want to make it quite clear, if occasion arises, that the slightest attempt at such aggression whether in Nepal or India would be stoutly resisted by us." Nehru had advised against the formation of anti-Chinese blocs, which could aggravate the situation. There was a similar refrain in Nehru's letter to Indian chief ministers, and his statement in the Indian parliament in March 1950.

The first Chinese occupation of Tibet was then only months away, and Kathmandu was explaining to the UN a year earlier that the 1792 Sino-Nepal Treaty (which had described Nepal and Tibet as two brothers, to whom China was the father) was now obsolete. In such an environment, it is certainly possible that Nepal too may have felt some disquiet over regional developments.

In addition, the treaty was concluded with a discredited Rana regime, then under considerable nationalist pressure and living out its last days – a memory that has since sustained considerable Nepali suspicion. Also, the fact that the Indian ambassador at the time was a signatory may be post facto hurtful to Nepali national pride. But it can also be seen in the context of the 1923 Anglo-Nepal Treaty, which was signed by a British lieutenant-colonel who had been elevated from being the British resident to envoy.

All of this is of little relevance in today's context. Three essentials do, however, need to be underlined. First, a treaty is relevant and valid as long as both parties are comfortable with it, and as long as both are in agreement to honour at least its broad parameters. Second, to a greater or lesser extent, neither India nor Nepal has abided by the letter of the treaty. Third, internal – particularly in Nepal – as well as regional and international conditions have changed so greatly over the past six decades that a fresh look at the treaty is not only inevitable, but also desirable.

Removing the cobwebs
It cannot be said that the 1950 treaty defines Indo-Nepali relations. Rather, it is the nature of this relationship that made the document both possible and necessary. As there is currently broad agreement on the need to take a new look at the agreement, it is not clear that a detailed analysis of the origins of, or intentions behind, the treaty would serve much use today. Strong feelings on the issue have long been expressed in Nepal, while India has largely maintained an aloof posture – letting the treaty continue, even as it was eroded by time. But if parsing the clauses of this treaty from another era is infructuous, a brief look at them can be important in discerning the future.

The treaty itself, and the side-letters (agreements that supplement the treaty) exchanged at the time, deal with the following issues. There is agreement to grant equal treatment to the nationals of each other's country with regard to business activities, residence, movement and the like. However, the admission of Nepali citizens in Indian government jobs possibly follows from a separate administrative decision by the government of India that predates the treaty. With regard to this so-called national treatment, the side-letters acknowledged that it may be necessary to protect Nepal from unrestricted competition for some time to come. The treaty also stipulated that India would be afforded first choice in the development of Nepal's natural resources. In addition, arms and military equipment imported by Nepal through Indian territory would take place with the agreement and assistance of the Indian government, which in turn would facilitate such transport. Finally, bilateral consultations were required if "there is any serious friction or misunderstanding with any neighbouring state" (emphasis added), and the side-letters went further to assert that "neither government shall tolerate any threat to the security of the other."

With the passage of time, several of the treaty's clauses have simply been overtaken by ground realities. Over the past four decades, Nepal's relations with China have proceeded on a trajectory that does not provide room for Nepali apprehensions about possible Chinese aggression, as implied in the treaty. Nepali citizens may continue to broadly receive national treatment in India, but the same cannot be said of Indian citizens in Nepal. The development of Nepal's natural resources is carried out according to the decisions of the Nepali government. Nepal has been freely importing arms with no reference to India, as notably seen in the import of Chinese arms in November 2005, following an international embargo after the royal takeover in February of that year.

But even while discussing a decent burial for the 1950 treaty, or its renewal in some other form, it is important to note that the sum of agreements between India and Nepal go well beyond the treaty. For instance, there is the agreement on the recruitment of Nepali nationals into the Indian Army, which predates Indian Independence. There is also the open border between the two countries; while the number of Nepali nationals working in India, or Indians in Nepal, is not known precisely, they are both believed to be substantial.

Other notable agreements include the Nepali rupee being tied to the value of the Indian rupee, as well as the interchangeability of the respective currencies. Even if not always implemented, there are also agreements on water and hydroelectric resources, as also agreements on trade and transit. Further, Indian development assistance to Nepal is still substantial, even if it is not proportionately as large as it was a few decades ago. Nepal's trade with India, Indian investments in Nepal and tourists from India are each of considerable substance, and indeed constitute the single largest volume in each category.

Current opportunities
Several of these arrangements have traditionally been the focus of criticism in Nepal, as being unequal in nature or in some way impinging on the country's sovereignty. The merits of such views deserve to be taken seriously. Seen from this perspective, though, it is both necessary and desirable to look at the future dimensions of the 1950 treaty; focusing on the treaty alone is clearly not nearly enough. For Indo-Nepali relations to be on a stable footing, and to achieve the kind of economic and developmental cooperation that the people deserve, it will be essential to go through the range of bilateral arrangements that have from time to time been described as 'detrimental' to Nepal's interests. And if such an exercise proves beneficial to Nepal, it will be no less so for India, which has at times been forced to face expressions of xenophobia from within Nepal (even if manipulated), such as during the anti-India riots of December 2000.

Such an exercise is easier said than done. When raised at the political level, any adjustment of a stated position becomes difficult, for it is all too easy for interested parties to claim national humiliation. What is now needed is an open, transparent, national debate on all issues involved, before the dialogue moves to the level of the state. While there are voices in India that would prefer a closed border, a visa regime, an end to national treatment and other such changes, their numbers are not yet significant. But in Nepal, many aspects of the relationship with India have long been contentious.

The current situation offers significant opportunity. Now is a time of change in Nepal, and thus could be the most appropriate chance to brush away cobwebs and pursue policies consistent with both national honour and the welfare of the people. The Nepali civil society has played a remarkable and courageous role over the past few years of the country's transition. The most effective course could now be for the civil society to initiate a dialogue, while also associating political parties, experts and various stakeholders, to focus on the totality of Indo-Nepali relations, in particular those elements that are seen as having rough edges. Any consensus arrived at through such a process, removed from the high decibels of political compulsion, would offer invaluable input for any inter-state dialogue that could follow.

Nepal's relationship with India should not be seen as a Gordian knot requiring surgery. Rather, it is an intricate skein in which some repairs are necessary. The challenge for Nepal and India now lies in undertaking the exercise with a sense of sovereign responsibility, sensitivity and mutual accommodation.