India’s defence minister inaugurated 80 km long road in Himalaya connecting the border with China at ‘Lipulekh Pass’ on On 8 May 2020. The Darchula–Lipulekh link road,
as it is called, forms an essential route for thousands of Hindus undertaking the Kailash Mansarovar pilgrimage. Nepal immediately protested India’s move, as the road crossed its territory,and in retaliation, Nepal summoned the Indian Ambassador, deployed police in the region and amended its law to formalise and extend its territorial claims, albeit it did not go down well with India, which was still open to dialogue.
The dispute over the territorial sovereignty of Limpiyadhua, Lipulekh and Kalapani cropped up because of the indeterminate origin of the Kali River, which delineated the border between India and Nepal. The border was demarcated courtesy the Sagauli Treaty, 1816, adopted post the Anglo–Nepalese war (1814-1816). Article 5 of the Sagauli Treaty states “The Rajah of Nipal renounces for himself, his heirs, and successors, all claim to or connextion with the countries lying to the west of the River Kali and engages never to have any concern with those countries or the inhabitants thereof.” The literal interpretation of the above provision will highlight that the regions west to Kali River are an intrinsic part of British India. As per India, the three regions under contention lie west of the river, thus making it an integral part of India.
Nepal maintains that the three disputed regions by virtue of its origin from River Kali give it access to the triangular-shaped regions.
Also Read : India–Nepal Border Dispute: The Way Forward
Following the ratification of the Sagauli Treaty, the boundary has shifted considerably because of the change inthe River’s course, thereby posing an inherent challenge in determining the precise borderline. Hence to settle the dispute amicably and determine the ownership, it is pivotal to resort to international law principles.
In international law, States displaying a better ‘title’ is entitled to claim sovereign right over disputed territories. In the absence of treaty or agreement, which stipulates an explicit provision on sovereignty, sovereignty is conferred in favour of the State having ‘effective control over the territory’. In the landmark Island of Palmas case, the Permanent 
Court of Arbitration (PCA) decided in favour of ‘Netherlands’, as it was able to exhibit ‘effective control’ over the disputed Island, effective control is reflected through several positive acts such as administrative control, collecting taxes, licensing, etc. Accordingly, India possesses records of taxation and revenue dated back to the 1830s in part of Pithoragarh District in the State of Uttarakhand, (present-day disputed region). Moreover, India has displayed its political, military, administrative control, which is sine qua non for making a strong territorial claim. A historical claim is another conventional means for a State to assert its right over disputed territory. Maps are a primary tool for proving a historical claim, in the case of Preah Vihear Temple, the International Court of Justice (ICJ) relied on the historical map and absence of protest from Thailand to confer territorial sovereignty of Preah Vihear to Cambodia.
The US Army Map of 1855 recognises the disputed territory as part of Indian territory.
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Nepal for its part, acquiesce the right over the territory in question. Also, some of India’s neighbour’s like China have recognised India’s claim over the disputed territory in 2015. Assuming both India and Nepal mutually approach the ICJ or PCA, it is unlikely that the ICJ would decide in favour of Nepal as India would undoubtedly be able to prove its ‘effective control over the disputed territory’ and the absence of protest from Nepal for the past 200 years, clearly backs India.
Furthermore, Article 1 of the ‘The Indo–Nepal Treaty of Peace and Friendship, 1950’ States “There shall be everlasting peace and friendship between the Government of India and the Government of Nepal. The two Governments agree mutually to acknowledge and respect the complete sovereignty, territorial integrity and independence of each other.” Nepal by its unilaterally initiating a ‘constitutional amendment’ to change its map has abrogated the 1950 treaty. The Government of Nepal faces a severe internal political crisis. It is widely believed that it is using the border standoff as a diversionary tactic. For India,the sooner it settles the dispute with Nepal, the lesser the chances for China intervening and escalating the crisis.
Since 2003, India has completed 422 High Impact Community Development Projects (HCDPs) covering 77 districts of Nepal with financial grant 798.7 crore. Nepal would do well not to test India’s patience as it stands to benefit from a robust and meaningful bilateral cooperation.
