A Scholar’s Response to a Former Diplomat

Published On: June 30, 2022 07:00 AM NPT By: Surya P Subedi

I did not say or suggest in any way that Kathmandu could be replacing London in any respect.

I was pleasantly surprised by the article “A Review of Scholar's Perspective on Nepal's Foreign Policy” published in My Republica of 21 June 2022 and written by Dr Madan Kumar Bhattarai, a former foreign secretary, ambassador, and adviser on foreign affairs to the President of Nepal. His article is a welcome critique of the inaugural lecture of the “Professor Yadu Nath Khanal Lecture Series” that I delivered on 7 June 2022 at an event organized by the Ministry of Foreign Affairs in Kathmandu. I appreciate Dr Madan Kumar Bhattarai’s opinion on my lecture and his assessment of it as expressed in his review.

As Dr Bhattarai points out from the start, “The topic of the lecture was all-encompassing, ‘Foreign Policy of Nepal: Past, Present and Future’”. This grand overarching topic presented me with the liberty to focus my lecture on - from my perspective - the most pertinent historical developments, key issues in the present, and a spirited outlook for the future. The lecture’s time limit of 50 min of course limited the amount of detail that could be presented while maintaining the scope of the topic. I could have chosen to cover more past milestones of Nepal’s foreign policy, as suggested by Dr Bhattarai, however, instead I chose to expand on my thoughts on potential strategies for a greater, impactful future foreign policy. Esteemed historians have comprehensively analyzed Nepal’s past foreign policy and the dynamics of Nepal’s international relations in the past.

As an international lawyer, I aimed to chart a path for the future of Nepal’s foreign policy, a path emerging from the past and present. I received abundant praise from the attendees of the event who found my lecture to be inspirational. I also spotted very positive reviews of my lecture in a number of media outlets, and I accept all these compliments just as humbly as the criticism in Dr Bhattarai’s article. I am an optimist at heart, I cherish a positive, and constructive outlook to life which is reflected in my lecture.

I proposed a number of ambitious visions of Nepal’s future within the international community, visions that see Nepal’s foreign policy effectively promoting and establishing the country internationally as a leader in the areas in which it has a comparative advantage. These are genuine opportunities for Nepal. While Dr Bhattarai comments on them as “fake dreams to be sold”, I stand firm in my conviction that Nepal is able to work toward and achieve such aspiring goals, as other nations have, which I outlined in the lecture. What I did not say, however, yet Dr Bhattarai claims otherwise, is that “Kathmandu [could be] taking the place of London as the center of international arbitration and other legal counseling.” I did not say or suggest in any way that Kathmandu could be replacing London in any respect.

Rather, I put forward that Kathmandu or Pokhara could be developed as a regional hub for international arbitration. I outlined the reasons why London had become a sought-after venue for international legal business, so that Nepal may try to fashion itself in a manner that could enable it to develop itself as a regional hub in Asia for international legal business. Given Nepal’s traditional reputation as a non-aligned country with temperate weather and a tourist destination, Nepal is better placed to serve as an attractive venue for resolutions of international commercial disputes, including international arbitration, than many other Asian countries, including Singapore. In my view, Nepal often suffers from a lack of vision, ambition and will power. At the same time, if Nepal’s outlook and actions could be energized by a well-designed, bold plan of action for a chosen future vision of the country, Nepal will find the resources and determination to realize ambitious goals.

Dr Bhattarai also criticizes my lecture for not discussing two major events in Nepal’s foreign policy: the ratification of the Millennium Challenge Compact (MCC) with the US Government and the report of the Eminent Persons Group (EPG) on Indo-Nepal relations. When the ratification of the MCC hung in the balance, I laid out in detail the reasons why Nepal could ratify the MCC in my confidential opinion that I provided to Nepal, which has since been made public and is available in the public domain. I therefore decided to devote the limited time available for the lecture to the overall direction that Nepal could take in its foreign policy, rather than rehashing the recent topic of the MCC which is still fresh on people’s minds, or rather than examining Nepal’s bilateral relations with India or China or any other countries.

I have written a book on the dynamics of law and policy on Indo-Nepal relations, which was published by Oxford University Press in 2005. With my focus in the lecture on the discussion on potential future trajectories of Nepal’s foreign policy, I selected those events from the past most pertinent to the ideas I put forward. I thank Dr Bhattarai for his critique. I have taken on board his valuable insights and will consider them when revising the lecture for publication.

I do rebut, however, Dr Bhattarai’s claim that I have “no practical experience in diplomacy” as untrue. While I never held a full-time position as a diplomat within the Ministry of Foreign Affairs, I held a series of appointments within the government of Nepal that involved dealing with sensitive, significant, high-level diplomatic cum international legal work. Early on in my career, I served as a legal officer in the international law office of the Ministry of Law and Justice during which I participated in, among others, bilateral investment treaty negotiations with other countries. Later, while working in the Supreme Court, I was deputized for nine months to work in a task force on Indo-Nepal relations led by the then Minister of Foreign Affairs Shailendra Kumar Upadhyay during the Indian blockade of Nepal in 1989.

I also was a member of the Nepali delegation led by King Birendra to the 9th Non-Aligned Summit Conference and led the debate within a committee of the summit conference on the trade and transit rights of land-locked states in international law. It was in recognition of my services of this kind to the nation, including many other advisory services rendered on high state matters, that I was awarded a high-level state honor, Suprabal Gorkha Daxinbahu, by His late Majesty King Birendra in 1998. I also served as a delegate of Nepal to the 56th session of the UN General Assembly in 2001 and to the UN Sixth Committee.

Two years ago, the Government of Nepal appointed me a member of an Expert Group on Boundary Issues operating under the auspices of the Ministry of Foreign Affairs, after the Constitution was amended to incorporate the revised political map of Nepal. I prepared a comprehensive report for the government examining international legal, political, and diplomatic options available to Nepal to resolve boundary disputes.

My work as the UN Special Rapporteur for Human Rights in Cambodia for six years, as well as legal procedural adviser to the World Conservation Congress of the International Union for Conservation of Nature, and as a member of the high-level advisory group on human rights to the British Foreign Secretary for five years were diplomatic in nature. I have provided a detailed account of the complex diplomatic maneuvering that I carried out to achieve the political results in Cambodia in Chapter 6 of my book ‘Human Rights in Eastern Civilisations’ published by a major British publishing house in 2021.

In short, I was able to bring about tangible change in Cambodia by breaking a protracted, violent political deadlock between the government and the opposition party and by convincing them to work together toward electoral and judicial reform. This contribution of mine together with several other practical and scholarly works in international law and international relations was acknowledged by the judges of the Oxford panel when deciding to award me the degree of Doctor of Civil Law, the highest accolade of the University of Oxford.

There is a thin line between international law and international relations. It is international law that governs diplomacy. My theoretical and practical work in international law, diplomacy and human rights has also been formally recognized through various awards and honors that have been bestowed on me and one of them was my appointment as Honorary Queen's Counsel (QC) by Her Majesty the Queen of the UK in 2017. A press release by the British government announcing this appointment stated that I had made an “exceptional contribution over a sustained period at the international level to develop international law and to advance human rights.” The press release stated that my human rights reports to the UN “provided an analytical point of reference for democracy, human rights and the rule of law in the country and became a primary source of reference for human rights defenders, UN agencies, and donor agencies that continue to be drawn on today.”

Previously, I had received an OBE from Her Majesty the Queen of the UK for services to international law and Britain-Nepal relations. Speaking at the investiture held for me at the Foreign & Commonwealth Office in London in 2004, the then British Foreign Secretary praised my “distinguished contribution to our understanding of international law, and to its evolution”, adding that my leading work “spanned almost every aspect of international law – with a special focus on issues such as trade, investment, development and the environment, which make a real difference to people’s lives.”

All in all, I am grateful to Dr Bhattarai for his review of my lecture.

(Professor Surya P Subedi, is Professor of International Law at the University of Leeds and a Barrister at Three Stone Chambers, Lincoln’s Inn, London).


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