Agreement on Boundary Management System

Nepal, China to hand over nationals illegally crossing mutual border

Published On: January 23, 2020 07:52 AM NPT By: Kosh Raj Koirala  | @KoshRKoirala

KATHMANDU, Jan 23: Nepal and China have agreed to hand over each other’s citizens illegally crossing the international border to the authorities concerned in their respective countries within seven days of being detained. 

An agreement on the Boundary Management System reached between the two countries during the state visit of Chinese President Xi Jinping to Nepal in October last year incorporates a provision to hand over each other’s nationals crossing the border illegally to their respective countries. 

“The boundary representatives or competent authorities of both sides shall investigate cases of persons found while crossing the border illegally, ascertain their identities, cross-border facts and reasons as soon as possible and hand them over to the side where they stayed before crossing the border, within 7 days from the day they are detained,” states Article 26 (2) of the agreement. 

Senior officials at the Ministry of Foreign Affairs (MoFA) said the agreement shall come into effect ‘soon’, as the relevant authorities on both sides are currently in the process of completing the internal procedures necessary for the entry into force of this agreement. “It may still take at least one month to bring this into implementation,” said an official, asking not to be named. 

Experts say that although such a provision may be relevant in other cases as well with the opening of additional border points and increased cross-border mobility of people in future, there are fears that the provision could have been immediately targeted against ‘refugees’ from Tibet who sneak across the border to Nepal to make a safe passage to India and elsewhere with the help of the UN refugee agency in Nepal.

As per the so-called ‘gentleman’s agreement’ reached purportedly with the US since early 1980s, Nepal until recently provided ‘safe passage’ to those fleeing Tibet, adhering to a ‘non-refoulement policy’ on humanitarian grounds even though it is not a state party to any refugee conventions. This agreement between Nepal and China will now effectively curb the possibility to anyone illegally entering Nepal from the Chinese side of the border.

Foreign affairs experts have cautioned against the possible repercussions of such an agreement as it does not take into consideration the safety of the persons in question once they are handed over to their respective country. “As a country upholding a democratic system and values, it is important to ensure the safety of the persons in question once they are handed over to the authorities concerned of their home country. Not taking into consideration the human rights of those being handed over to the country where they belong is against our principled position,” said former ambassador and career diplomat Dinesh Bhattarai. 

Although Nepal has been unequivocally saying that it won’t allow any anti-China activities to take place in Nepal, the desire of China to incorporate such a provision into the agreement also shows that China is still wary of possible anti-China activities in Nepali soil, Bhattarai further said. 

The agreement also includes a controversial provision to hand over nationals crossing the border illegally to their respective country even if they have committed crimes in the country where they are detained. “If the persons crossing the border illegally are also found to have committed other crimes within the boundaries of the detaining side besides crossing the border, the competent authorities of the side which detained them may detain them for the period of time needed to investigate their criminal offense according to its internal laws,” reads Article 26 (4). The article is silent on whether such persons will serve sentences in the country where the other crimes have been committed.

This comes in the wake of immigration authorities in Nepal earlier this month handing over a total 122 Chinese nationals arrested in Kathmandu for their involvement in ‘suspicious activities’. Senior police officials said the arrests were made at the request of the Chinese side even as Nepali security agencies did not have any credible evidence of their involvement in criminal activities in question. 

Few details of the Agreement on the Boundary Management System had become public so far although it was officially announced during the visit of Chinese President Xi that a number of agreements including this one was reached. In a note sent to the House of Representatives (HoR) along with copies of the agreement for its notification, MoFA has said that the Agreement on Boundary Management System is expected to help ensure effective management of the boundary and contribute toward further strengthening and promoting friendly relations between Nepal and China.

The agreement proposes to establish a Nepal-China Joint Commission led by a senior official of the MoFA to bring it into implementation. The meeting of the Commission that will also consist of experts and technical persons shall be held each year alternatively in each other’s country.

The Agreement shall remain valid for a period of 10 years and extended automatically for another 10 years unless either side requests in writing for termination before six months of its expiration.

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