Kathmandu Post, Nepal
India’s act ‘breaches’ int’l conventions, agreements
Unofficial trade blockade
By Prithvi Man Shrestha, Kathmandu
28 September 2015
Experts have termed India’s unofficial trade blockade on Nepal as a breach of international conventions and multilateral agreements that both Nepal and India have signed.’
Although the southern neighbour has not officially declared a trade embargo on Nepal, it has been creating unnecessary hassles such as delaying clearance of Nepal-bound cargo trucks carrying goods from third countries, and halting the supplies of essentials and petroleum products. As a result, thousands of Nepal-bound cargos have been stranded on Indian roads along the border.
Amid a shortage of petroleum products, the government has imposed quota system on fuel purchases and odd-and even number plate system, under which vehicles are allowed to ply only on alternate days, depending on whether their licence plate numbers end in odd or even numbers.
The experts said India’s action violates the United Nations Convention on the Law of the Sea 1982, Provisions of World Trade Organization, Nepal-India Transit Treaty and Agreement on South Asia Free Trade Area Agreement (Safta).
Former Attorney General Yubaraj Sangraula said as per the UN Convention on the Law of the Sea 1982, a land-locked country gets an unrestricted right of access to and from the sea of the nearby coastal state.
“A transit country also should provide good infrastructure to enable the landlocked country to get access to the sea,” he said.
Section 10, article 125 of the convention states: Land-locked states shall have the right of access to and from the sea for the purpose of exercising the rights provided for in this convention including those relating to the freedom of the high seas and the common heritage of mankind. “To this end, land-locked States shall enjoy freedom of transit through the territory of transit States by all means of transport,” the convention states.
Article 130 of the same section has made a provision on measures to avoid or eliminate delays or other difficulties of a technical nature in traffic in transit. Clause 1 of the article says the transit states shall take all appropriate measures to avoid delays or other difficulties of a technical nature in traffic in transit. “Should such delays or difficulties occur, the competent authorities of the transit States and land-locked States concerned shall cooperate towards their expeditious elimination,” the clause 2 of the same article states.
While the convention has sought the transit country’s cooperation in avoiding delays, experts say there have been “deliberate obstructions” from the Indian side, which is the breach of the convention.
In line with the convention that gives authority to the two parties to conclude modality of transit facility, Nepal and India have signed a transit treaty which has also ensured unrestricted rights of access to the sea as long one contracting party does not infringe legitimate interest of another country. “Except in case of failure to comply with the procedure prescribed, such traffic in transit shall not be subject to avoidable delays or restrictions,” the bilateral Transit Treaty States.
Similarly, Safta has also made a provision of providing transit facilities for efficient intra Saarc trade, especially for the land-locked contracting states. However, India has been blocking Nepal-bound cargos on the pretext that Indian transporters delivering the goods could be at risk if they were allowed to go to Nepal, although the Nepal government has assured security.
The government has said the cadres of agitating Madhesi parties are using the Indian soil to attack Nepali security forces and block Nepal-bound goods. “India has done nothing to stop the attacks on Nepali security forces by the agitators, while the Nepali security personal cannot go to the Indian side without India’s approval,” said Sangraula.
“The blockade looks to be an act of aggression and the government should decide whether the Indian action is an act of aggression or blockade only.”
He said if the government thinks it is the Act of aggression, the issue can be raised in the UN Security Council.
Trade expert Posh Raj Pandey termed the Indian action is against the WTO rules which has provisioned that the country of transit should provide route to the land-locked country. “There are certain rules even to ban exports. Only when domestic markets are disturbed greatly due to the exports and domestic industries don’t get enough raw materials, exports can be banned which must be done globally not for a specific country,” he said.
India has, however, has refused to refill the Nepali tankers reaching to depots of Indian Oil Corporation, according to the Nepal Oil Corporation.
Despite the “breach” of international conventions and laws by the southern neighbour, experts suggested solving the problem through the diplomatic channel as far as possible.
Pandey said as challenging India legally over the breach of the international convention is difficult as the southern neighbour has not used the word “embargo” to block Nepal-bound goods, diplomatic solution will be the best idea for now. “We have to lobby hard with all the stakeholders of the Indian state, including state level politicians, while building moral pressure on India through international institutions like the United Nations,” he said.
Former Commerce Secretary Pursusottam Ojha also said the best way to solve the problem would be making diplomatic efforts instead of dragging India to the international court.
“On the other hand, we have to take measures to reduce trade dependency on India,” he said.
Nepal does two-third of its international trade with India.