Is India a Dysfunctional State According to International Law?
A recent debate by Nepal’s Parliament concerning 1,000 metric tons of the Kantipur Publication’s printing materials, imported from Canada and South Korea, were held by Indian authorities at Kolkata port is noteworthy. Although India’s client politicians of Nepal may ultimately accept what India decides over the imported goods, I am inclined to join with the leaders within and outside the Parliament, demanding the immediate release of the goods. This is an abuse of right by the Indian regime and it must be condemned, demanding the due respect for international law of transit and trade, including the right of land-locked states’ access to and from the sea.
As a private enterprise of the land-locked Nepal, the Kantipur Publication had to import the said materials via India. According to international transit rules, public or private entities of Nepal have right to import goods, using Nepal’s right of access to and from the sea, via Kolkata port of India. Such a right is well established by international legal norms, the Law of the Sea Convention and Nepal-India Treaty of Transit and Trade.
As a transit state for Nepal, India has right to security but it is not entitled to abuse such right as it pleases. As a report suggests, India is currently investigating the containers carrying the Kantipur news printing related goods. Is Nepal a belligerent party to India? Or is this retaliation by India against the Kantipur Publication which published reports about the machine readable passport deal between the governments of Nepal and India, but which was dismissed by the Parliament of Nepal? The bottom line is that one cannot in any way argue everything as security, and it is absurd to consider newspaper printing material as a security matter, denying the innocent passage for non-military goods in violation of international norms and customary as well as treaty practices. This is clearly an illegal act committed by the government of India.
Right to security is not a one sided right; if India has the right to its security so has Nepal and when and if such right is to be interpreted the same rule must be applied equally. Some facts speak for itself on how India is misinterpreting the security abusing its right, as well as using its dominant military, economic and geographic position against Nepal.
Some months ago the Head of the Space Time Network, Jamim Shah was killed in day light in Kathmandu, at the order of an Indian criminal, jailed in Lucknow, in India; recently the Executive Director of BP Koirala Memorial Cancer Hospital, Dr. Bhaktaman Shrestha was kidnapped and later released in exchange of 3.5 kg gold to the abductors, also in Lucknow, in India.
The two mentioned criminal activities, planned in and executed from India, are directly related to the security of Nepali citizens. Has the government of India taken any actions against the two very recent criminal activities committed from its territory against Nepal? More important questions are what kind of check India has over the activities that their prisoners can undertake? Arguably, the answer to these questions challenges the capacity of intelligence agencies (or lack thereof), including military, police and civil, both in Nepal and in India. The reality suggests that even if Nepal’s regime failed to give security to its own citizens, India does not seem to be successful in controlling pure criminal activities within its own territory. Therefore, it must be realised that one’s own success cannot be accounted for the failure of the other.
While India is hailed by some as a sinning state, Nepal is being described as a failed state in line with a number of the weak states labeled as failed states. Many writers use the term failed states without critically analysing the vested interest of the powerful states interested in controlling the life of other people and domination in others’ territory, in the name of such a failed state. Some of the so-called failed states have already been the targets of intervention by powerful states.
With or without the regular criteria failed states, it can be argued that if Nepal is a failed state, India would be a dysfunctional state (or it is in a state of perversion of the initial idea of the state). However, I insist to make a distinction between the people and governments; a distinction between the interests of the people, whom the government claims to represent and the policy of the government, which contradicts these said interests, more often than not.
The fact that sub-state institutions including civil society organizations, media and individuals of India have condemned the action of their government holding the goods at Kolkata port, suggests that there is no contradiction between the interests of the people in the two countries. This also means that the failed political regimes of the two countries are problems themselves, which effects all spheres of the life of the people, but sub-state institutions can function and make their point of view known to the outside world, nonetheless.
While there are fixed criteria of a failed state— notable of them is the fundamental failure of law and order— a definition of a dysfunctional (perverted state) is perhaps needed in the lexicon of political science. Under international law, government, people, territory and sovereign control are integral, but separate, criteria of statehood. Therefore, a failed government must not be known as a failed state. The notion must not be confused in the situation where people rises up against their own corrupt regime, or foreign domination, whereby the foreign powers wish to control the local people to maintain their interest together with the interest of their local client politicians or military junta.
The Kantipur Publication news printing materials held by Indian authorities at Kolkata port is a jingoistic policy of the government of India acting in a dysfunctional way rather than protecting the security of the state according to international law. There are other dysfunctional examples of India, where security is misjudged; notable among them is the nuclear technology deal with the United States, resulting into the rearming of Pakistan by China with more nuclear technology. Currently, India is seeking help from Canada and G20 to deal with this situation. However, the Indian regime always enjoys playing big brother against Nepal—a play of a dysfunctional state— distinct from people-to-people sound relations between the two countries.
