The Hindu Editorial Analysis
13 April 2021

1) A second chance for Nepal’s young democracy

An all-party consensus government seems the only way to break the deadlock and ensure stability

GS 2: International Relation


Context:

  • Supported by President Bidya Devi Bhandari, which was a surprise, Mr. Oli briskly dissolved the Lower House of the federal Parliament on December 20, 2020, which only undermined the democratic spirit and dampened the prospects of stability and equitable growth in the country even further.
  • The Nepalese PM has stated that this decision was on the backdrop of infighting within the ruling Nepalese Communist Party (NCP)

Nepal’s Constitution History:

  • It can be said that the only constant in Nepali politics is ‘unpredictability’.
  • Nepali would soon get something better than the discriminatory political culture that started way back in 2015 with the new Constitution and selective political maneuverings.
  • While it was time to deepen the footprints of the key institutions of democracy, Prime Minister K.P. Sharma Oli succeeded in making himself a bigger institution than the Constitution and Parliament.
  • Even when the Supreme Court reinstated the dissolved Parliament on February 23, 2021, and disputed the legal status of the Nepal Communist Party (a merged entity of Communist Party of Nepal-ML and Communist Party of Nepal-Maoist Centre), Mr. Oli continues to survive in the new age of Nepali politics where accountability is seldom seen as a virtue.
  • The obsession with the positioning of India and China, more so with the abolition of the monarchy, has been a survival game in Nepali politics.
  • The tendency to raise the bogey of the “hostile” neighbor has weakened politics and has failed the idea of representing constituent interests.

Constitutional provisions

  • Among the key factors of the ongoing political stalemate in Nepal are certain rigid constitutional provisions that have made it possible for Mr. Oli to take cover behind a shield and continue, as getting into election phase or looking for the possibility of a caretaker coalition government is a very difficult proposition.
  • Instead of incorporating the provision of a no-confidence motion in its true spirit as a multi-party democracy, Nepal gets an unusual clause (Article 100(4)) in its new Constitution that allows a no-confidence motion only two years after the formation of the government — and even this can happen only when one-fourth of the total number of existing members of the House of Representatives may table a motion of no-confidence in writing that the House has no confidence in the Prime Minister.
  • Article 100(5) is even more perplexing which necessitates the motion of no-confidence shall also indicate the name of a member proposed for the Prime Minister.
  • Overcoming such arduous challenges is surely very tough for the three leading parties (Nepali Congress, Maoist Centre, and Janata Samajbadi Party) seen in the race to bring the Oli government down.
  • Even to exercise the choice of a no-confidence motion, two parties of these three have to be on the same front for getting the magical number of 68 Parliamentarians.
  • However, Mr. Oli has astutely managed to outwit his political opponents both within his party and the Opposition by playing on their differences.
  • Demands of opposition parties were limited only to Mr. Oli’s resignation and were not oriented toward the building of an alternate front, which gave a much needed respite to Mr. Oli.
  • After the Supreme Court of Nepal reinstated Parliament in February this year, it came out with the next historic verdict on March 7 in which the top court had scrapped the legal status of the ruling Nepal Communist Party.

A way out

  • The political muddle apart, this is no time for elections, especially with a second wave of COVID-19 infections.
  • Nepal also stares at a lack of sufficient numbers of vaccines which have left the population vulnerable.
  • Also, good governance cannot be ensured by a government that is caught up in survivalist compulsions.
  • The best way forward would be in giving democracy a good chance. For now, this can be made possible by the political parties alone.
  • They have to aspire to ensure peace, progress, and stability; the easiest option would be to work towards a consensus government with all the major parties joining hands and running it collectively.

2) Not on the same page at sea

L’affaire Lakshadweep shows not a betrayal by the U.S. but a different understanding of navigational freedom

GS 2: International Relation


Context

  • India’s strategic community was agitated last week when the USS John Paul Jones carried out a freedom of navigation operation (FONOP) 130 nautical miles west of the Lakshadweep Islands.
  • An unusual press release by the Commander, U.S. 7th Fleet, that said the operation, which was carried out in India’s exclusive economic zone (EEZ), “asserted navigational rights and freedoms... without requesting India’s prior consent”.
  • Many saw this as political signaling by the U.S., oddly, at a time when U.S.-India relations are on a high.

USA History of Violating India’s Sovereignty and Asia as a whole

  • Needless to say, U.S. FONOPs in Indian EEZs have been relatively low-key, serving mainly to check a box on the U.S. Navy’s record of activity in Asia.
  • Since 2016, the U.S. Navy has carried out three forays through Indian EEZs keeping well outside Indian territorial waters.
  • In contrast, U.S. warships challenged excessive Chinese claims thrice in 2016, four times in 2017, six in 2018, eight in 2019, and nine in 2020.
  • Most patrols are said to have come within 12 nautical miles of the territorial sea limit around China’s islands.

USA interpretations

  • In the aftermath of the incident, the U.S. Pentagon defended the military operation off India’s waters terming it “consistent with international law”.
  • For the U.S. Navy, FONOPs are a way of showing that the maritime claims of certain states are incompatible with international law.
  • India’s requirement of prior consent for the passage of foreign warships through Indian EEZs, U.S. officials believe, is a violation of the United Nations Convention on the Law of the Sea (UNCLOS).
  • Articles 56 and 58, Part V of the Law of the Sea, they point out; entitle U.S. warships to high-seas freedoms in the 200-nautical mile EEZs of another coastal state.

 

Indian Interpretation:

  • India interprets the maritime convention differently.
    • Indian experts note that the UNCLOS does not explicitly permit the passage of military vessels in another state’s EEZ.
    • When it ratified the convention in 1995, New Delhi stated, “India understands that the provisions of the Convention do not authorize other States to carry out in the exclusive economic zone and on the continental shelf military exercises or maneuvers, in particular those involving the use of weapons or explosives without the consent of the coastal State.”
    • This position is consistent with India’s domestic law — the Territorial Waters, Continental Shelf, Exclusive Economic Zone and Other Maritime Zones of India Act of 1976 — and remains unchanged.

India’s Concern

  • Despite disagreements over navigational freedoms, however, India and the U.S. have refrained from a public airing of differences.
  • Indian observers have come to accept U.S. FONOPs as an instrument in Washington’s military and diplomatic toolkit that gives the U.S. Navy leverage in the contest with China in the South China Sea. U.S. officials, too, have learnt to take Indian posturing in their stride.
  • Washington knows New Delhi’s real concern is the possibility of greater Chinese naval presence in Indian waters, in particular the threat of People’s Liberation Army Navy submarines near Indian islands.
  • Delhi’s pronouncements on foreign military activity in Indian EEZs, they know, don’t need to be taken literally.

Lakshadweep: A smart choice

  • The choice of Lakshadweep for the FONOP doesn’t seem incidental.
  • U.S. planners are likely to have known that a U.S. naval foray close to the ‘strategic’ Andaman and Nicobar Islands would be controversial.
  • Besides necessitating a response from New Delhi, it could have exposed a wrinkle in the relationship that both sides have so far been discreet about:
    • The disagreement over interpretation of the UNCLOS. U.S. planners are likely to have calculated that a naval operation in the waters off Lakshadweep would be unremarkable.
  • With maritime boundaries around the Lakshadweep more settled than the Andaman and Nicobar Islands (where straight baselines on the Western edge of the islands have in the past raised uncomfortable questions), Indian officials could even afford to ignore the operation.
  • The idea, ostensibly, was to signal to China that the U.S. Navy is committed to uphold the rules-based order in the waters of opponents and partners alike.

 

Bridging the divide

  • There are lessons for both India and the U.S. from l’affaire Lakshadweep.
  • The U.S. must recognize that FONOPs have implications for New Delhi that go beyond the infringement of Indian jurisdiction in the near seas.
  • Such operations normalize military activism close to India’s island territories that remain vulnerable to incursions by foreign warships.
  • The U.S. Navy’s emphasis on navigational freedoms in the EEZs encourages other regional navies to violate India’s domestic regulations in the waters surrounding the Andaman and Nicobar Islands.
  • But New Delhi, too, must rethink its stand on freedom of navigation in the EEZs.
  • It isn’t enough for Indian officials and commentators to say U.S. FONOPs are an act of impropriety.
  • The reality is that India’s domestic regulation is worryingly out of sync with international law.
  • India’s declaration of straight baselines delineating zones around the Andaman and Nicobar Islands (on the Western edge), in particular, is a discrepancy that cannot be explained as a minor departure from the provisions of the UNCLOS.
  • The U.S. Navy sail through the waters off Lakshadweep highlights a gap in the Indian and American perception of navigational freedoms, complicating an already complex domain of international maritime law.
  • Yet it is not the betrayal of a friend that many have sought to portray the FONOP to be.