The hard truth behind Kalapani
Recent developments in the Lipulekh pass of the Kalapani region give a message of intent, and not just of India. China too has shown it is not ready to compromise its multifaceted relations with India for Nepal’s benefit. Moreover, Xi Jinping has a soft spot for Tibet: His late father, Xi Zhongxun, was a great friend of the 14th Dalai Lama. Xi Jr. is thus keen on Tibet’s development, which he reckons is possible only with India’s help. This is why he has over the years quietly pushed for the opening of the ‘bilateral’ India-china trade route via Lipulekh.
And now Indian Defense Minister Rajnath Singh has seen it fit to ‘inaugurate’ the ‘shortest route to Mansarover’ in the middle of a pandemic. A seasoned Nepali foreign policy analyst who has worked extensively in both India and China speculates the inauguration is a subtle message to the Oli government. First, India brokered the unity between the two Madhesi parties against Oli’s wishes. By bringing up Lipulekh even as the Nepali government struggles with the corona crisis, India is now dialing up pressure on him: pressure to distance himself from China.
If Oli gets the message, perhaps the Indians will be amenable to a three-country solution over the Lipulekh route. If not, India will further consolidate its position in Kalapani and even seek additional leverage against Oli. But whatever happens to Nepal’s concerns over Lipulekh, the larger picture doesn’t change: Modi and Xi want to keep the two countries’ trade relations intact at any cost. They know they need each other if they are to successfully tide over the ongoing global economic crisis.
A settlement over Kalapani is not impossible. The region is not as important to India as it was, say, in 1962, when it lost the infamous border war to China. Chinese movements in the region can now be monitored remotely, via satellites or drones; India does not need troops on the ground. This is not to imply Kalapani has lost all its strategic value for India, just that its usefulness has gone down. Yet New Delhi would like Kathmandu to believe that the region is still mighty important for it and that there won’t be easy compromises.
Again, China is not ready to pick a fight with India over Lipulekh or Kalapani. As we saw in Doklam in 2017, these border disputes have many hidden subtexts. The way the Doklam crisis unfolded also showed how hard it is to change the status quo on the border. As Sam Cowen has pointed out, Nepal will struggle to establish its claim over Kalapani as successive Nepali governments ignored the issue for their vested interests, even as India progressively tightened its grip over the region.
One of two outcomes is likely. India will either continue to engage with Nepal on Lipulekh but it won’t commit to anything, further frustrating Kathmandu. Or, if PM KP Oli is ready to shed his ‘pro-China’ mien, the Indians could help him buttress his image via some concession over the disputed territory. Nepal has limited options. It could try to Internationalize Kalapani. But it is hard to see what that will achieve. Such a move is sure to further fuel India’s ire against Kathmandu. Nor will China be too pleased to be dragged into international arbitration by the government it helped shape.
Know impermanence, know the Buddha
The device in which you are reading this article will be junked in a couple years. The hand that is holding it won’t be there in the next hundred years. The eyes that are reading it will stop seeing one day.
Everything changes. The sun, earth, moon—everything. Our bodies, houses, mountains, roads, rivers, forests, they are changing. By the time you finish reading this article, millions of cells in your body will have changed.
It rarely occurs to us that our cars will stop running one day and our loved ones will either go away or die. Even if they stick around, the ‘love’ will change. We don't realize it, because it seems so solid, the whole world seems so intact.
But some people can see it.
Impermanence was the trigger that caused Prince Siddhartha to leave his illusive world one full moon night. We know the story—He saw an old man, a sick man, and a corpse on his tour to the town. He came to know about change and suffering. He realized that his own body that he held so dear, and his wife and son and father whom he loved so much, would also change. They would grow old, get ill, and die one day. That realization changed not only his life, but also those of countless more people in the past two and half millennia.
After enlightenment, Siddhartha spent his life teaching people about impermanence. He told them that failure to see impermanence caused them suffering. He said even a few seconds of meditation on impermanence would bring people infinite merits.
An inspiring story. But chances are, we simply discard it as something great happening only to great people. It cannot affect ordinary people like us. We cannot be Buddhas.
Or there may be denial altogether—Prince Siddhartha was already enlightened; he didn't need to see suffering to free himself from worldly allures. We see old and sick and dead people all the time, but nothing happens. See, we are still safe in our homes, we still have our morning coffee, and we have all the worldly duties, and friends to attend to. Come on, it must have been something deeper and bigger for him.
The mind is a magnificent trickster. Somebody saw impermanence and the whole world changed. He lived it and preached it. A great event happened in the history of mankind. But our mind doesn’t like the idea that things change, and ensures that we don’t learn it—neither from the person’s life story that signifies the realization of change, nor from his direct teachings. No wonder that we are not Buddhas.
Saving the Nepali State
Nepalis were stunned by the naked display of the battle for power between the Prime Minister and his party colleagues even as the corona crisis was unfolding.
Despite that betrayal, we must retain our faith in the institution of government. It may be the last line of defence against the socialist-communist revolution of Nepal that is marching on.
A health and economic crisis of unimaginable depth and consequence has struck. Instead of devoting every single minute to addressing it, Nepalis were deeply disillusioned to learn that the Prime Minister and party colleagues were consumed in a struggle for who will be prime minister, who will be party chairman, and who will get what other post.
The horse trading, the power struggle, and the shifting alliances were all conducted in full public view, while a lockdown was in force. There was complete disregard for public sentiment and national interest.
Naturally, Nepalis lost faith, not just in the political leadership but also in the institution of government.
When you see a fight in full public display, the display is often far more significant than the fight itself.
That is exactly what the leadership tussle within the ruling communist party was all about. As the leaders traded, negotiated, cajoled and threatened, the outcome in terms of who would be prime minister, party chairman, or get this or that post wasn’t important.
The fact that the power struggle was played out publicly for everyone to see was extremely important.
In good and bad times, politicians all over the world battle one another for power. In that regard, there is nothing unusual about the power struggle between Prime Minister Oli and his colleagues.
The latest power struggle involved some 10 key leaders, all seasoned politicians with decades of experience managing their supporters, media, and the public. The entire thing could easily have been kept under wraps, away from public view.
Why fight in front of everyone, that too in the middle of an unprecedented crisis? Because this was about a fight that was meant to be seen; not a fight about who would win or lose.
Whether the players in the power struggle were aware of their larger role, or whether they were thrust into the cage to fight for the spectators to see, only they and history can know.
The power struggle in the middle of an unprecedented crisis was intended to erode our confidence in the government. We didn’t just lose faith in individual leaders. It did more: it eroded the political legitimacy of the government to lead and the moral authority of the State to govern.
It isn’t just with the executive branch of government. Institutions across the State are failing. Political interference within the judiciary, constitutional bodies, the Presidency, and the police have eroded public confidence in these institutions.
The army has now become the government’s civilian contractor and importer of choice for medical supplies. Its untarnished public image as the institution of last resort is being sullied. Many of its key leaders are under investigation. Several companies, including international firms, have filed suits challenging the army’s decision-making process in the selection of contractors in infrastructure projects.
These moments of failures add up, eroding inch by inch the moral authority of the State to govern.
Recognizing that the socialist-communist takeover of Nepal would not be possible through force, the strategy now seems to be to erode the political legitimacy of the government and the moral authority of the State.
The socialist-communist revolution of Nepal marches on.
We have an opportunity to push back. A fight displayed for public view has no meaning if you don’t look at it.
We must turn away. As political leaders fail us and institutions crumble, we must reduce our reliance on government and draw more from the underlying fabric—us, ordinary citizens.
The only antidote against the government’s eroding political legitimacy and the State’s crumbling moral authority are stronger civil society institutions. We must push back against political encroachment in civil society; we must build and strengthen civil society institutions.
As we emerge from the lockdown, I hope we will return to meaningfully consider and reclaim our space as citizens of the Federal Democratic Republic of Nepal.
Is Covid-19 ‘Act of God’ legally?
The novel coronavirus pandemic is causing unprecedented damage to human health as well as business operations around the world. As the impact continues and economic fallout mounts, more industries will be impacted; the lockdowns and restricted movements are likely to continue in the foreseeable future.
Consequently, companies need to assess not only their own, but also their counter-parties’ contractual rights, obligations and remedies in case of delayed performance, or when it becomes difficult or impossible to carry out contractual obligations. A careful analysis of the rarely invoked “force majeure” clause is critical in these uncertain times.
As per the Black Law Dictionary, the term “force majeure” is “an event or effect that can neither be anticipated nor controlled. It is a contractual provision allocating the risk of loss if performance becomes impossible or impracticable, especially as a result of an event that the parties could not have anticipated or controlled.” These may include events such as acts of God, war, terrorism, earthquakes, hurricane, as well as acts of Government, fire, plague, or epidemic. Where the term epidemic or pandemic has been used, that will clearly cover Covid-19.
In line with the laws of many states, the clause of “force majeure” will be triggered only where the clause explicitly includes contingent event. Where a force majeure clause clearly uses terms such as “diseases”, “epidemic”, “pandemic”, “act of government” or “state of emergency”, depending on the enlisted circumstances, parties will assert force majeure as a defense to non-performance or anticipatory breach in cases related to the Covid-19 pandemic.
Act of God?
The burden of proving an event was beyond their control and did not happen because their fault or negligence lies solely with the parties seeking to assert the clause of force majeure. The burden of proof will not be difficult in the contracts that list out specific events like viruses, epidemics, or pandemics. But implementation may get complicated when the force majeure clause is not explicit and simply uses the term “Act of God” which can act as a boilerplate for many force majeure clauses.
Nearly all attempts to define the phrase “Act of God” use words such as “extraordinary,” “unusual,” “sudden,” “unexpected,” “anticipated,” or “grave.” The appearance of one or more of these adjectives in almost every definition reflects the requirement that for a casualty or phenomenon to qualify as an “Act of God”, it must have been so unusual or abnormal that it could not have been predicted or anticipated.
It will be interesting to see how courts will ultimately determine that Covid-19 is an “Act of God”. Expect many court filings in the months and years ahead to echo the sentiments of the World Health Organization Director-General Tedros Adhanom, who recently said: “We are in unchartered territory. We have never before seen a respiratory pathogen that is capable of community transmission, but which can also be contained with the right measures.”
As the coronavirus pandemic brings unprecedented challenges, it’s also sure to disrupt countless contractual relationships. Parties should therefore be ready to invoke and defend against force majeure clauses and related doctrines that may arise to excuse performance.
The author is an advocate
