Legally, treaty-wise, and under international law, the entire Limpiyadhura basin at the source of the Mahakali River is Nepali territory.
But, as we are all painfully aware, international law does not apply in geopolitics. If it did, colonialism would be a crime against humanity. The firebombing of Dresden, and the atomic bombs in Hiroshima and Nagasaki would have also been declared war crimes. China would have to give up its claim over the Spratly Atolls. Instead, it is Slobodan Milosevic’s or Bosco Ntaganda’s of the world who get hauled over the coals at The Hague.
Might is right. Laws are laid down by the victors.
So, it does not seem to matter that more than 200 years ago, the Sugauli Treaty of 1816 between the East India Company and the defeated Gorkhalis agreed to the main channel of the Mahakali River as Nepal’s western border.
After the Mutiny of 1857, the Survey of India maps cunningly moved the border to Lipu Khola, a tributary of the Mahakali that flows down from Lipu Lekh pass. That was the original sin.
After 1816, the Shah dynasty was in decline, palace intrigue led to the downfall of Bhimsen Thapa and later to the rise of the Ranas in 1847. The distracted rulers in Kathmandu, then as now, had no idea what was going on in that far-flung edge of Nepal.
After independence, India inherited the British survey. So, when the Ministry of External Affairs in New Delhi says, like it did this week, that the new road to the Chinese border ‘lies completely within the territory of India’ it is an understanding based on those maps.