International Law and Treaties

Revision of the 1950 Treaty of Peace and Friendship with India

Introduction

The Treaty of Peace and Friendship signed between Nepal and India on 31 July 1950 in Kathmandu is the foundational document of Nepal–India relations. Along with an exchange of letters, it provides for perpetual peace, mutual friendship, free movement of people, and reciprocal treatment of citizens in matters of residence, property, trade and commerce. For decades Nepal has argued that the treaty was concluded in a particular historical context and has now become unequal, outdated and inconsistent with Nepal's sovereign equality and national interest. Hence Nepal has been consistently seeking its revision.

Why Nepal Seeks Revision

1. Unequal and one-sided character. The treaty was signed at a time when Nepal was emerging from the Rana regime and India was asserting itself as a regional power. Nepal views the treaty as a product of unequal bargaining, not a treaty between two equal sovereign states. The provision of "reciprocal treatment" has in practice favoured Indian citizens more than Nepali citizens, making the treaty asymmetrical.

2. Infringement on sovereignty. The exchange of letters accompanying the treaty requires Nepal to inform India about its relations with third countries regarding defence and foreign policy. Nepal considers this an encroachment on its independent foreign policy and a violation of the spirit of the UN Charter and the principle of sovereign equality.

3. Open border problems. The open border, though beneficial for social and economic ties, has created serious problems for Nepal — unchecked migration, demographic change in the Terai, smuggling, trafficking, and security concerns. Nepal wants the border regulated and managed through a revised treaty rather than left open-ended.

4. Unresolved boundary disputes. The treaty does not address boundary issues. Disputes over Kalapani, Limpiyadhura, Lipulekh and Susta remain unresolved. Nepal seeks revision so that boundary questions are settled on the basis of the Sugauli Treaty of 1816 and historical evidence, not on the basis of the 1950 Treaty.

5. Changed geopolitical and economic context. The world order has changed since 1950. Nepal is now a federal democratic republic and a member of the WTO, BIMSTEC and SAARC. It seeks relations based on equality, mutual respect and mutual benefit. The treaty's silence on trade, transit, water resources, investment and labour mobility makes it inadequate for present-day needs.

6. Asymmetry in economic and transit relations. Nepal depends on India for transit and trade. The 1950 Treaty does not guarantee non-discriminatory transit rights. Nepal wants a revised treaty that ensures fair transit, port access and trade facilities without political conditions.

7. Domestic political pressure. Since the 1990s, especially after the 2006 People's Movement and the promulgation of the Constitution of Nepal (2015), political parties, civil society and intellectuals have demanded revision of the treaty. The Eminent Persons' Group (EPG) report submitted in 2018 also recommended its review. Governments have raised the issue in bilateral talks, including during high-level visits.

8. Reciprocity and national treatment. Nepal wants the principle of reciprocity to be applied genuinely — Nepali citizens in India and Indian citizens in Nepal should enjoy equal rights. At present, Nepali workers in India face difficulties while Indian citizens enjoy wide privileges in Nepal.

Conclusion

Nepal's demand for revision is not anti-India; it is a demand for equality, dignity and mutual respect. A revised treaty based on the principles of sovereign equality, non-interference, mutual benefit and peaceful coexistence would strengthen, not weaken, Nepal–India relations. Nepal should pursue the matter through diplomatic dialogue, and India should respond positively to make the treaty a true reflection of the changed times.

Treaty: Introduction

A treaty is a formal, written agreement between two or more subjects of international law (primarily states, but also international organisations) that is intended to create legally binding rights and obligations. It is governed by international law, chiefly the Vienna Convention on the Law of Treaties, 1969 (VCLT), which is often called the "treaty on treaties."

Key features:

• Parties: Two states → bilateral treaty; three or more states → multilateral treaty.
• Form: Usually written, though oral agreements may also bind.
• Governing law: International law, not the domestic law of any one party.
• Binding force: Pacta sunt servanda (Article 26, VCLT) — a treaty in force binds the parties and must be performed in good faith.
• Names: Treaty, convention, covenant, protocol, charter, covenant, pact, accord, memorandum of understanding (non-binding), etc.

A multilateral treaty is one concluded among a number of states and is generally open to participation by other states. Examples: the UN Charter (1945), the Geneva Conventions (1949), the Nuclear Non-Proliferation Treaty (1968), the Convention on Biological Diversity (1992), the Paris Agreement (2015).

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Major Steps in Making a Multilateral Treaty

1. Initiation and Proposal

A state, group of states, or an international organisation (e.g., the UN, its specialised agencies) proposes the negotiation of a treaty on a subject of common concern. The proposal is usually placed before a competent body (UN General Assembly, a diplomatic conference, or an international organisation's plenary).

2. Preparation of a Draft

A draft text is prepared, often by:

• an expert body or subsidiary organ,
• the secretariat of the sponsoring organisation,
• a specially constituted drafting committee.

This stage identifies the object, purpose, and scope of the treaty.

3. Convening of a Diplomatic Conference / Negotiation

The participating states meet, usually at a diplomatic conference or through an intergovernmental body, to negotiate the text. Each state sends plenipotentiaries (representatives with full powers). Negotiation proceeds article by article, resolving differences through consensus or voting.

4. Adoption of the Text

The text is adopted by the participating states. Under Article 9 of the VCLT, adoption takes place:

• by the consent of all states participating in the drafting, or
• by a two-thirds majority (or such other majority as agreed) at an international conference.

Adoption signifies that the text is final and authentic, but it does not yet bind any state.

5. Authentication of the Text

The adopted text is authenticated as the correct and final version — by signature, initialling, or a final act of the conference. Authentication establishes the definitive text and prevents further unilateral alteration.

6. Signature

States sign the treaty. Signature may mean:

• Definitive signature — the state is immediately bound, or
• Simple signature — subject to ratification, acceptance, or approval.

Signature generally obliges a state, under Article 18, to refrain from acts that would defeat the object and purpose of the treaty pending its entry into force.

7. Ratification / Acceptance / Approval / Accession

The state completes its internal constitutional process (in Nepal, parliamentary approval under Article 279 of the Constitution for certain treaties) and formally expresses consent to be bound. Accession or adhesion allows a non-signatory state to become a party later.

8. Entry into Force

The treaty comes into force as provided in its own text — usually after a specified number of ratifications or accessions, or after a fixed period. Only from this date does it become binding on the parties.

9. Registration and Publication

Under Article 102 of the UN Charter, treaties must be registered with the UN Secretariat and published in the United Nations Treaty Series. An unregistered treaty cannot be invoked before any UN organ.

10. Implementation, Interpretation, and Amendment

Parties bring domestic law into conformity, implement obligations in good faith, settle disputes by peaceful means, and may amend or modify the treaty through the procedure laid down in it. A treaty may also be terminated, suspended, or reserved in accordance with the VCLT.

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Conclusion

A multilateral treaty is thus the product of a continuous process — initiation → drafting → negotiation → adoption → authentication → signature → ratification → entry into force → registration → implementation. Each step is governed by the VCLT and by the constitutional requirements of the participating states, and only after entry into force does the treaty create enforceable legal obligations.

Challenges faced by Nepal as a land-locked country

1. Transit dependency: Nepal depends entirely on India (and partly China) for access to the sea. All third-country trade must pass through foreign territory, so Nepal has no direct control over the routes it uses.

2. High transport and transit costs: Goods must be carried over long distances by road/rail through India, making freight charges high. Nepal's trade-related transaction costs are among the highest in South Asia, reducing export competitiveness.

3. Delay and procedural hassles: Customs clearance, transhipment, quarantine, parking and multiple documentation at Indian ports and border points cause long delays. Congestion at Kolkata/Haldia and at Birgunj and other border points adds to uncertainty.

4. Dependence on a single transit country: About 90 per cent of Nepal's third-country trade moves through India. This concentration gives the transit state strong leverage and makes Nepal vulnerable to unilateral restrictions, strikes, blockades (as in 1989 and 2015) and policy changes.

5. Inadequate transit infrastructure and facilities: Limited railway links, insufficient warehousing, container yards, bonded warehouses and lack of direct port access restrict smooth movement of cargo.

6. Balance of payments and trade deficit pressure: High freight and insurance costs inflate import bills and worsen the trade deficit; exports become costlier and less competitive in world markets.

7. Limited market access and investment: Foreign investors hesitate due to distance from the sea, weak connectivity and uncertainty of transit, which discourages export-oriented and transit-trade industries.

8. Security and strategic vulnerability: Being sandwiched between two large neighbours, Nepal's transit routes are exposed to political and strategic pressures, and emergency supplies (fuel, food, medicine) can be cut off.

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Rights of a land-locked country under the UN Convention on the Law of the Sea (UNCLOS), 1982

UNCLOS, 1982 recognises the special position of land-locked states, mainly in Part X (Articles 124-132) and in several other provisions:

1. Right of access to and from the sea (Art. 125(1)): Land-locked states have the right of access to and from the sea to exercise the rights given by the Convention, including freedom of the high seas and the common heritage of mankind. For this they enjoy freedom of transit through the territory of transit states by all means of transport.

2. Terms of transit by agreement (Art. 125(2)-(3)): The terms and modalities of transit are to be settled by bilateral, sub-regional or regional agreements between the land-locked and transit states. Transit states keep full sovereignty over their territory and may take measures to protect their legitimate interests, but these must not infringe the land-locked state's rights.

3. No customs duties on transit (Art. 127): Traffic in transit is not subject to customs duties, taxes or other charges, except charges for specific services rendered in connection with the transit.

4. Cooperation on transport and avoiding delay (Arts. 129-130): Where means of transport are inadequate, transit and land-locked states may cooperate to build or improve them. Transit states must take all appropriate measures to avoid delays and technical difficulties in transit.

5. Free zones (Art. 128): For the convenience of traffic in transit, free zones or other customs facilities may be provided at the ports of entry and exit by agreement.

6. Equal treatment in maritime ports (Art. 131): Ships flying the flag of a land-locked state enjoy treatment equal to that given to other foreign ships in maritime ports.

7. Greater transit facilities (Art. 132): The Convention does not withdraw any greater transit facilities already agreed or granted between states.

8. Right of navigation and flag (Arts. 90 and 125): Every state, coastal or land-locked, has the right to sail ships flying its flag on the high seas.

9. Participation in living resources of the EEZ (Art. 69): Land-locked states may participate, on an equitable basis, in exploiting an appropriate part of the surplus living resources of the exclusive economic zones of coastal states in the same sub-region or region.

10. Share in the international seabed Area (Arts. 136-140): The seabed beyond national jurisdiction is the common heritage of mankind, and benefits from its exploitation are shared equitably, with particular consideration for land-locked developing states.

Conclusion: UNCLOS, 1982 turns the geographical handicap of land-locked states into legal entitlements: access to the sea, freedom of transit, equal treatment in ports and a share in marine resources. Nepal can invoke these in its transit negotiations with India and China, although the actual terms still depend on bilateral agreements, since the transit state keeps its sovereignty.

1. 'Innocent' and 'Guiltless' in International Law

Innocent and guiltless are not identical ideas in international law, though they overlap. Both are rooted in the idea that a person's legal status must be determined by law, not by suspicion or by the mere assertion of a State.

(a) Innocent (presumption of innocence). In international law the principle of presumption of innocence means that every person charged with a criminal offence is presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence. It is guaranteed by:

• Article 11(1), Universal Declaration of Human Rights (UDHR), 1948 — "Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial…"
• Article 14(2), International Covenant on Civil and Political Rights (ICCPR), 1966 — "Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law."
• Article 14(3)(g), ICCPR — no one shall be compelled to confess guilt; the burden of proof lies on the prosecution.
• Article 8(2), American Convention on Human Rights and Article 6(2), European Convention on Human Rights contain the same guarantee.
• Rome Statute of the ICC, 1998, Article 66 — the accused is presumed innocent until proved guilty beyond reasonable doubt; the burden is on the Prosecutor.

So "innocent" in international law is a procedural and evidentiary status: the accused is treated as not guilty until the prosecution discharges the burden of proof. It also carries the corollary that any doubt goes in favour of the accused (in dubio pro reo).

(b) Guiltless (absence of guilt / non-liability). "Guiltless" is the substantive counterpart. It denotes a person who has not in fact committed the wrongful act, or who, though he committed the act, is not legally blameworthy because of a ground excluding responsibility. International law recognises several such grounds:

• Mistake of fact (Article 32, Rome Statute) — a defence only if it negates the mental element.
• Insanity, intoxication, duress, necessity, self-defence (Articles 31–33, Rome Statute).
• Superior orders — not a defence before the ICC for genocide, crimes against humanity and war crimes (Article 33), following the Nuremberg principle that "obeying orders" is no excuse.
• Immunity — Heads of State and diplomats are not "guiltless" but are procedurally immune from certain proceedings (Vienna Convention on Diplomatic Relations, 1961, Article 31; ICC Statute, Article 27 removes immunity before the ICC).
• Non-combatant immunity — civilians and prisoners of war are "innocent" in the sense of being protected persons under Geneva Conventions I–IV (1949) and Additional Protocol I (1977); they must not be made the object of attack. The Nuremberg Principles (1950) and Genocide Convention (1948) likewise protect "innocent" populations.

Thus "innocent" is mainly a procedural shield (presumption, burden of proof, fair trial), while "guiltless" is a substantive finding (no act, or no blameworthiness). In practice the two work together: a person is presumed innocent, and if the prosecution fails to prove guilt beyond reasonable doubt, he stands guiltless.

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2. Nepal's Practice

Nepal has progressively internalised these principles through its constitution, statute, and international commitments.

(a) Constitutional guarantee. The Constitution of Nepal, 2072 (2015), in Part 3 on fundamental rights:

• Article 20 (right relating to justice) — no person may be detained without being informed of the grounds of arrest; the arrested person has the right to consult a lawyer and must be produced before a judicial authority within 24 hours (excluding travel time). Article 20 also guarantees a fair trial by an independent, impartial court, the presumption of innocence until proved guilty, protection from being compelled to testify against oneself, and no retroactive punishment or double jeopardy.
• Article 21 — rights of victims of crime, including information about the investigation and proceedings, and justice and compensation.
• Article 22 — right against torture, and cruel, inhuman or degrading treatment; torture is punishable by law and the victim is entitled to compensation.
• Article 23 — right against preventive detention, which is permitted only in narrow cases of threat to sovereignty, integrity or public peace, and for a limited time.
• Article 46 — right to constitutional remedy by writ (habeas corpus) in the Supreme Court or High Court.

(b) Statutory framework.

• Muluki Criminal Code, 2074 (2017) and Muluki Criminal Procedure Code, 2074 — prosecution bears the burden of proof, the accused must be told the grounds of arrest, produced before court within 24 hours and allowed counsel, and statements must be recorded lawfully.
• Evidence Act, 2031 (1974) — a confession obtained by threat, inducement or coercion is not admissible.
• Torture Compensation Act, 2053 (1996) — provides compensation to victims of torture; the new Criminal Code also criminalises torture.
• Legal Aid Act, 2054 — free legal aid to those who cannot afford a lawyer.

(c) International commitments.

• Nepal has acceded to the ICCPR (1991) and its First Optional Protocol, the Convention against Torture (1991), the Convention on the Rights of the Child (1990), and the Geneva Conventions of 1949 (1964).
• Under the Nepal Treaty Act, 2047, a ratified treaty prevails over inconsistent national law. Article 51 of the Constitution also directs the State to follow international law and honour treaties.
• Nepal has not ratified the Rome Statute of the ICC.

(d) Judicial practice.

• The Supreme Court has through habeas corpus writs and criminal appeals repeatedly applied the presumption of innocence, the 24-hour rule and the "beyond reasonable doubt" standard.
• It has ruled confessions obtained by torture or without a lawyer inadmissible, ordered compensation for custodial abuses, and set aside convictions based on weak circumstantial evidence.

(e) Gaps and challenges.

• Despite legal guarantees, reports of torture in custody, forced confessions, and prolonged detention persist (NHRC annual reports).
• Implementation of the 24-hour rule is weak in remote districts; lack of legal aid and poor investigation capacity lead to reliance on confessions.
• The Torture Compensation Act has been criticised for low compensation and rare convictions.
• Nepal has not yet fully aligned its domestic law with international criminal law (no ratification of the Rome Statute, and gaps on crimes against humanity and enforced disappearance).

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Conclusion

In international law, "innocent" denotes the procedural presumption of innocence and the right to a fair trial, while "guiltless" denotes the substantive absence of guilt or blameworthiness. Nepal has adopted both principles in its Constitution (Articles 20-23), the Muluki Criminal Code and Procedure Code, the Evidence Act and the Torture Compensation Act, and has acceded to the ICCPR and the Convention against Torture. The challenge lies not in the law but in its enforcement — strengthening investigation, legal aid, and judicial oversight is essential to translate these principles into practice.