The Law of the Sea is vital for Nepal as a country land-locked, because it enshrines the right of transit, as well as confirms rights over the resources and possibilities of the high seas. And yet, the Law of the Sea does not receive due attention in Kathmandu, even though Nepal suffered the Great Blockade of 2015 and earlier in 1989-90, and even though a Nepali diplomat-politician played a key role in getting the Law of the Sea off the ground in the mid-to-late 1970s at the United Nations.
He was Shailendra Kumar Upadhyay, and while Nepal’s Permanent Representative to the United Nations at a time when the country had a far higher international profile that it has now, he was involved as key negotiator in the talks that evolved into the UN Convention on the Law of the Sea (UNCLOS). Besides Nepal, the flamboyant Upadhyay represented the land-locked and least developed countries at the negotiations, which led to the Convention being ultimately signed in 1982, coming into force in 1994.
Nepal’s right to transit gained sudden prominence when the KP Oli government inked agreements in Beijing for third country access via China in March 2016, and there may come a time when this route becomes viable. However, for now, and given the proximity to the Bay of Bengal, the transit right is important for the passage it allows to Calcutta, Haldia, Vishakapatnam, or traversing India to the Bangladesh ports of Mongla and Chittagong.
However, Nepal’s interest in the Law of the Sea should go far beyond transit rights. Yes, access to ports allows Nepal to import and export goods, but the Law of the Sea means so much more that. By now, there should have been vibrant Nepali scholarship on how Nepal as a country can take advantage of the high seas and deep oceans as the common heritage of humankind.
But we remain locked in ‘landlocked mindset’, acting as if discussion and decisions on the high seas, including those relating to ‘our’ Indian Ocean, are reserved for the littoral states. At the very least, Nepal should be facilitating discussion among the landlocked countries of South Asia, convening meetings with Afghanistan and Bhutan to develop a joint position.
UNCLOS, which represents a largely successful effort to codify as well as evolve customary law regarding the oceans, provides a graded level of rights and obligations to the littoral states, through territorial waters of 12 nautical miles off the coast, to the Contiguous Zone of 24 nm, and the Exclusive Economic Zone (EEZ) of 200 nm, including the Continental Shelf. However, says the Convention, in terms of passage, resources and environment, ‘the high seas are open to all states, whether coastal or landlocked’.
