DYNAMICS OF FOREIGN POLICY AND LAW

Vol. 17 No.2 (February, 2007) pp.101-103

DYNAMICS OF FOREIGN POLICY AND LAW: A STUDY OF INDO-NEPAL RELATIONS: by Surya P. Subedi. New Delhi and Oxford: Oxford University Press, 2005. 290pp. Rs.595/£29.99/$35.00. ISBN: 0195672011.

Reviewed by Alison Greenwald, LLM. Washington, DC, USA. Email: greenwld [at] gmail.com.

Sources of International Law include legal texts (treaties, conventions and judgments), custom and general principles of law, according to RESTATEMENT (THIRD) §102. In DYNAMICS OF FOREIGN POLICY AND LAW: A STUDY OF INDO-NEPAL RELATIONS, Surya P. Subedi attempts to determine the legitimacy of current legal obligations between the nations of India and Nepal. Subedi provides a comprehensive overview of the legal relations between the two States, as well as any applicable international legal obligations, however she fails to further her claims of legality by omitting the necessary theoretical background necessary for such an investigation.

Subedi opens the discourse with an historical perspective analysis on the diplomatic relations between India and Nepal. Fundamentally, Subedi’s underlying assumption regarding the topic is that India has always pursued an expansionist policy towards its geographically-disadvantaged neighbor. However, an important point to note is that unlike India, Nepal was never under British control; thus it has a long history of independence, despite its geographic shortcomings. Using this historical narrative, Subedi explains the political developments surrounding the conclusion of various treaties between India and Nepal. By using this historical overview, she aims to show that the treaties were concluded mostly under political duress and to the detriment of Nepal. One of these examples involves the 1950 Treaty of Peace and Friendship, which was concluded by Prime Minister Mohan Shumsher, shortly before the end of his oligarchical regime. By showing that these treaties were concluded under undesirable terms, Subedi argues that this should be reason for an inquiry as to the validity of the treaties for being ‘unfairly’ wrought.

Putting aside any political bias the author may have, DYNAMICS OF FOREIGN POLICY AND LAW is an excellent resource for purposes of a practical overview of the international legal regime regarding landlocked States. The plight that many landlocked States face (42 out of 187 countries) go beyond that of mere access to water, but affect factors such as national security, economic health and national sovereignty. Subedi provides an explanation as to difficulties landlocked States confront, in addition to the international legal regime leading to the United Nations Treaty on the Law of the Sea. The Third United Nations Conference on the Law of the Sea (UNCLOS III) was particularly generous to landlocked States with regard to freedom of the high seas and the common heritage through the territory of transit of States by all means of transport [*102] (1982 UN Convention on the Law of the Sea Article 125). Subedi notes the importance of this development from the 1921 Barcelona Statute on Freedom of Transit as omitting the previous requirement under the Barcelona Statute of reciprocity.

On the whole, UNCLOS III was a success for landlocked States. Although much was gained on the side of landlocked States by this convention, many issues remained unresolved. One important issue is the use of the coastal state’s 200-mile exclusive economic zone (EEZ). UNCLOS III Article 69(1) provides for the landlocked State’s “exploitation of an appropriate part of the surplus of the living resources of the exclusive economic zones of coastal States of the same sub-region or region.” Clearly, this ambiguous language could pose problems for landlocked States which may have difficult relations with neighboring transit States on deciphering the definition of an ‘appropriate part of the surplus.’ With so much ambiguity on the part of the treaty on this matter, much room is left to interpretation.

Although landlocked States may not have experienced a diplomatic victory in terms of fishing rights in UNCLOS III, they did gain unfettered access to mineral resources of the deep sea bed (open to all States) through the International Seabed Authority. While UNCLOS III does legitimately attempt to alleviate the geographical disadvantage of landlocked States, it remains as merely a starting point for further development.

Subedi also explores the role of other UN bodies in their attempt to assist landlocked States, focusing on efforts made by UNCTAD (United Nations Committee on Trade and Development) and the UN General Assembly. Despite the altruistic aims of these international bodies, the fact remains that landlocked States are mainly left to the mercy of their sea-blocking neighbors for such access.

Using the international legal framework explained by Subedi concerning landlocked States, she provides a practical explanation for the issues surrounding Nepal and its neighbor India. By using the issues surrounding landlocked States in this convention, Subedi assesses how Nepal fares with regard to the EEZ of India, as well as the issue of transit agreements. These explanations and examples provide an excellent practical understanding of the implementation of the treaty as well as where the treaty does not fully protect the rights and interests of landlocked States. All in all, this explanation is an important tool for any international law student aiming to further study maritime law and its practical application.

While the merits of the book regarding its use for students concerning the international legal regime surrounding the issue of landlocked states is not to be undermined, one must return to the original question on the sources of international law. As a professor in International Law, Subedi should consider the sources of International Law, which have been listed in various cases as well as being enshrined in Article 38 of the Statute of the International Court of Justice. Namely, what seems to be lacking in the analysis [*103] of law and practice is an explanation and examination of custom and the role of opinio juris. While this legal concept is not omitted from the book, its application in the practical explanation is. Thus, in support of the historical overview in bilateral treaties between Nepal and India, it would have been more efficacious (from an international legal perspective) to examine the custom and opinio juris of the States instead of merely describing the relations and environments in which the treaties were concluded. Such an analysis would be useful and add texture to Subedi’s conclusion that there is a lack in legitimacy in the bilateral treaties because they are thought to be ‘unfair.’

The Law of the Sea is an instrumental part of the international legal scholar’s syllabus. By focusing on the practical example of foreign relations between India and Nepal, Subedi has taken a somewhat confusing treaty regime and elucidated certain aspects of the regime in a highly effective manner. Thus, the explanation, review and practical application of law concerning landlocked states stands as this book’s main strength. However, as regards the merit of analysis of the relations between India and Nepal, the potential efficaciousness of her concluding list of steps necessary to balance the relations between the two States is clouded by her underlying bias. In essence, had Subedi left the political dogma aside, the value of the exposition would have been much more level and successful.

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