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Nepal: Sugauli Treaty-1816 & Breach of Recognized State Obligation

Dipta Prakash Shah

It would be appropriate and justifiable to consider the East India Company’s ulterior motive beforehand in invading Nepal at various eastern, southern and western lands. They had pre-planned objectives in spreading the colonial domination throughout the Indian subcontinent. To this end they covertly prepared themselves and launched war against Nepal. They succe

eded to some extent in dominating the Gorkhali fighting patriots at great cost. Under the cloak of intimidation, threat and coercion, the Treaty of Sugauli was concluded. It would be justifiable and helpful to discuss the mode and method of British offensive aggression prior to assess the validity, legality and occupation of the Nepalese territories by the British under threat, coercion and intimidation on the pretext of the so-called dictated Treaty of Sugauli.

The Sugauli Treaty also known as the Anglo-Nepal Treaty concluded under duress, intimidation, coercion and threat from the invading Colonial Power had forced the kingdom of Nepal to cede one third of Nepal’s territory to the East India Company in 1816. The ceded territory included most of the southern belts of plain lands and that of hilly regions west of the Kali River belt. Nepal was intimidated and forced to cede some territories east of the Mechi River also. After the conclusion of this Treaty, Nepal’s international boundary was transfixed to the Mechi River in the East and Kali River to the west.

Causes and Pretext:

The Mogul Empire was waning and declining in the eighteenth century. Invasion by the rulers of Persia and Afghanistan started in weakening the very foundation of the Mogul Empire. After such invasions the previous governors or agents of the British Empire in India such as Nawabs of Bengal and Oudh in the north and the Nizam of Hyderabad in the South made their mind to assert as independent powers. As a matter of fact, the main legitimate claimants and contenders were the respective native inhabitants including the invading East India Company. European colonialists- British, French and Portuguese were already indulged themselves in colonizing some parts of the territories in the subcontinent. The East India Company was very much concerned on the extension of the Gorkhali rule over these new territories that they planned to colonize within a favorable period of time. Nepal’s conquest or takeover of these parts of regions definitely thwarted the colonial interest. On top of that, the colonial power was very much susceptible about the likely unity and reemergence of the Sikhs, Marathas and Gurkhalis to fight against the colonial invasion and occupation. Taking all these accounts into consideration, the colonial power devised a plan of conspiracy overtly and covertly to thwart the reemergence of the Hindu emerging power unity. The East India Company in its mission got success in its plan to create vacuum and enmity among the Hindu reemerging powers themselves. The Company was not in a position to land the white British contingent in India due to the Napoleonic war effect and the Bengal Army under the clutch of the Company could not match against the Gorkhalis. To this context, the Company corroborated with the Sikhs and other neighboring powers and made an unholy alliance while invading Nepal.

The extended territories of Nepal covered on the frontier of Purnea in the east, on those of the frontiers of Gorakhpur and Saran to the South of Central Nepal and on the frontiers of Bareily in the west. It was common to emerge out some disputes on the adjoining borders of the two forces. The dispute arose since 1806 between Nepal and British India and reached on the height by 1814. The border dispute to the context of Gorakhpur and saran took the serious turn after the Butwal and Syuraj scuffle The Gorkhalis were compelled to capture 22 villages in the Saran district. The Nepali Government was ready and prepared to hand over the 22 districts as to be settled by the Commission. However, the Company mainly on the supervision and dominance of the Marquess of Hasting was determined to extend the British Government’s sovereignty over the lands in India controlled by the East India Company. This mandate was conferred on the renewed Charter of the Company. Thus, the Company’s Government was the first to use force to invade and capture Butwal and Syuraj. As the Nepali forces recaptured these two villages on 29th May, the British planned overtly and covertly to invade Nepal from the west, south and east porous lands. The Government of Nepal could not reassess the mammoth military power of the invader and even ignored the strategic military advise of Bam Shah, Governor of Kumaun, Hastidal Shah, Governor of Doti and Amar Singh Thapa, Governor of the entire far west.

Invasion against Nepal:

The main strategy of the British colonialist was to subjugate whole of the Indian subcontinent. As they succeeded in their mission of subjugation in India, Nepal couldn’t have been spared. Due to the Napoleonic War, they had suspended their invasion to subjugate new territories. As the war with the French terminated by 1814, they instantly devised various pretexts in invading Nepal. To this context, according to the War History Records quoted by various historians in their valuable accounts of this particular war, they had accumulated and collected geographic and other strategic accounts of Nepal from various sources including those of Captain Kinloch in 1767, Kirkpatric in 1793 and Knox in 1804.

Declaration of War was made on 1 November 1814, though invasion started from the earlier periods. In accordance with the invading plan, the Company’s forces waged a five-pronged invasion from Rupar, Saharanpur, Gorakhpur, Saran and Purnea. The first division commanded by Colonel David Ochterlony consisting of 11,500 men was to invade the westernmost part of Nepal. The second division commanded by Major-General Robert Rollo Gillespie was to invade Garhwal. This force consisted of more than 15,000 persons. The third division commanded by Major-General John Sullivan Wood’s brigade consisted of 5,000 regular soldiers and about 1,000 irregulars and was based on Gorakhpur. Major-General Bennet Marley of the fourth contingent, who took responsibility to capture Kathmandu had 8,000 soldiers at his disposal. The fifth division under Captain Barre Latter consisting of 2700 men was assigned to watch the frontier between the Kosi and Tista rivers. This division was in anticipation of order to invade eastern Nepal at the appropriate time. In total nearly 45,000 men and 85 cannons were deployed against Nepal.

Nepal’s compulsion to withdrawal:

The Company’s forces almost simultaneously made force engagement and invaded with superior arms and ammunitions at Nalapani (Kalanga), Jaithak, Jitgarh, Kumaon, Almora, Deuthal and Malaun. The Gorkhali forces fought bravely. The invading forces had to suffer vehemently and could not defeat the Gorkhali forces in accordance with their military strategy. As they had superiority to men and materials, they easily reinforced on the battlefields. Brave fighting forces of Nepal couldn’t get any reinforcement of fighting men or of fighting materials despite the request or demand. They fought to the last of their strength for a long period. At last a few remaining brave Gorkhali patriot fighters had no alternative except to withdraw from the various war fronts and forts.

Effort for Negotiation:

Nepal was bound to withdraw from the battlegrounds as there were not reinforcement of men and materials for a considerable period of time. Nepal by May 1815 started negotiation. The courtiers Gajaraj Mishra and Chandrashekhar Upadhya were sent for this purpose. The negotiation couldn’t take effect as the British wanted that Nepal should handover all lands in the plains together with the territories to the west of River Kali. The British themselves prepared the text of draft treaty with all these provisions for cessions of the Nepalese Territories and sent to the Kathmandu Court for approval. The draft treaty submitted through Gajraj Mishra to Kathmandu contained an ultimatum to Nepal of twenty-one days in accepting the British proposal or stipulation. It also included the provision for payment of cash pensions to Nepalese officials in exchange for terai territory ceded to the East India Company. The effort of negotiation by Nepal failed completely when the Company’s hidden motive and intention was highlighted in the draft treaty. Nepal out rightly rejected the British Draft Treaty. As the proposals of the Company were not approved by Nepal, General Ochterlony was vestd with full authority in initiating a renewed invasion against valleys of Rapti, Makwanpur, Bagmati including to all battle zones held and fought by the Gorkhalis. To this context, Bhimsen Thapa made an alternative proposal to Colonel Bradshaw that cash payment should be substituted for cession of the terai. Bradshaw retorted that the draft treaty should be accepted and ratified first.

Nepal and ratification of the Treaty:

The Company’s forces mounted offensive attacks all over the kingdom of Nepal. By February 1816, they had captured Makwanpur and posed a direct threat to Kathmandu, Capital of Nepal. Creation of such threat and coercion on the part of the British compelled Nepal to accept and ratify the draft proposal that was done at Sugauli on 2 December 1815 only on 4 March 1816. However, this Treaty of Sugauli was amended on the ground of Memorandum presented by Nepal to the Company’s government on 8 December 1816. The amendment arranged to claim Nepal’s sovereignty over the land on the east and cancelled the Arrangement for payment by the Company’s Government to the Nepali officials through the King of Nepal.

International Practice in treaty making:

A treaty is a basic document containing of agreed provisions between or among the sovereign states. From the time immemorial, treaty making practice could be found. This practice is binding as the tenets of International customary law and is valued as the primary source of the modern treaty law to the context of international treaty law. Vienna Convention on the Law of Treaties 1969 has accumulated and codified all customary provisions and practices in the new Treaty. Moreover, this Treaty has affirmed in its Preamble that the rules of customary international law will continue to govern questions not regulated by the provisions of present Convention. To this end, ‘treaty’ means an ‘international agreement concluded between States in written form and governed by international Law’.

It is accepted in international practice that the main purpose to conclude the treaty is to promote peace and stability between or among the sovereign States Thus; provisions contained in the treaty must represent the inner voluntary consent expressed and abided by the treaty making Actors. If the treaty is executed by force, threat and coercion, it loses its binding validity and international legitimacy. Maintaining the binding customary norms of the international law of treaties, Vienna Convention on the Law of Treaties in Articles 51, 52 and 53 has provided:-
Article 51: The expression of a State’s consent to be bounded by a treaty which has been procured by the coercion of its representative through acts or threats directed against him shall be without any legal effect.’
Article 52: ‘ A treaty is void if its conclusion has been procured by the threat or use of force on violation of the principles of international law embodied in the Charter of the United Nations.’ And
Article 53: A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.’

Sugauli Treaty and inconsistency:

It is crystal clear that the East India Company threatened intimidated and even coerced the king of Nepal which is transparent from the above mentioned facts and particulars. The British main intention to conclude and make ratification of this Treaty was to legitimize the illegal aggression and belligerent occupation of the Nepalese territories. Nevertheless, this Treaty falls under the category of Treaty of Cession. Various instances are to be found to the context of cession of territories. Legitimate cessions of the territories of another sovereign States are taken places only through voluntary consent and friendly behavior. In the context of Sugauli Treaty all the recognized norms propounded by the civilized community of nations have been disregarded. As the valid process in transferring the territory is made by the Treaty of Cession in good faith and voluntary intention, the Anglo-Nepal Treaty of Sugauli being the coerced and intimidated document cannot be considered as the valid and acceptable legal document to the context of internationally recognized norms, therefore, it is void ab initio. It is already stated that this treaty was forced on Nepal even by attacking the nearest Makawanpur valley when Nepal hesitated or disagreed in ratifying the Draft of Sugauly Treaty prepared by the Company on 2 December 1815. It is clear from the date of ratification on 4 March 1916, approximately after three months. How much coercion threat and intimidation would have weighed down on Nepal.

Transfer of sovereign territories is executed through the mutual agreements by the sovereign entities in the form Treaty of the Cession. International lawyers agree that a cession of territory following the defeat in war is more usual than annexation. They also hold the principle that a cession by treaty is void where the conclusion of the treaty has been procured by the threat or use of force. Examples of voluntary cession may be cited the sale of Alaska by Russia to the United States in 1867, and the exchange of Heligoland for Zanzibar by Germany and Great Britain in 1890. Compulsory cession is illustrated by the cession to Germany by France in 1871 of Alsace-Lorraine subsequently returned to France at the end of the First World War.

Right to claim over illegally occupied territory:

International community of nations started derecognizing such occupation by the invaders especially after the First World War. The Treaty of Versailles that produced the 1919 Covenant of The League of Nations also made provisions in restricting the right to resort war. The Briand-Kellog Pact also known as The Paris General Treaty for the Renunciation of War categorically prohibited recourse to war as an instrument of national policy. The UN Charter went much further and urged all member states to refrain from the use of force except in self-defense. In other words, direct use of force is strictly prohibited without the permission of the Security Council. Taking all these customary and treaty provisions of the International law norms, NEPAL has a right to get back the ceded territories.

Colonial Power, the British left India setting up new sovereign states that claimed sovereign statehood. Pakistan was one of them. Nepal didn’t bother to claim the illegally occupied territories and the government of Nepal is still not interested to raise the issue in international forum. How can Nepal regain its land when there is no claim at all? As it is seen that the vestige of colonial empire is duly transferred to the Republic of India, the sovereign people have every right to claim the lost territory of former Nepal. The outcome could be accepted as decided by the norms of State Practice and that of International Law.

Nepal and India have concluded Treaty of Peace and Friendship on the 31 July, 1950. Article 8 of this Treaty provides: ‘so far as matters dealt with herein are concerned, this Treaty cancels all previous treaties, agreements, and engagements entered into on behalf of India between the British Government and the Government of Nepal’. It is evident that the British invaded and occupied the territories of Nepal to extend the Indian colonial Empire. In relation to the British India occupation of the Nepalese territories, this quoted Article also has nullified the retention and occupation of the Nepalese territories by the Republic of India.

Rights to Self-determination:
Such rights are ensured by the provisions of the UN Charter. The UN Charter is a multilateral treaty and can lead to the formation of customary law. Resolution 1514 (XV), the Declaration on the Granting of Independence to Colonial Countries and Peoples, adopted in 1960 states: ‘all people have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.’ If this Resolution is strictly observed former subjects of the Nepalese Territories now the subjects of the new sovereign State must be permitted to choose the sovereign status. Again in 1966, the General Assembly adopted the International Covenants on Human Rights. Both these Covenants declared: ‘peoples have the right to self-determination. Thus, the UN has based its policy on the proposition that ‘the territory of a colony has under the Charter a status separate and distinct from the territory of the State administering it.’

Conclusion:

It is evident from the above mentioned contention and argument that Nepal has the right to claim its lost territories as it was illegally occupied by the threat and use of Force. The elite and conscious Nepalese are confounded why the state machinery doesn’t venture to raise this issue formally. Since 1990, the Nepalese people have been designed as sovereign subjects of the country. Therefore, the sovereign craving of the people in restoring the illegally occupied territories to Nepal by the Colonial Power must be supplemented.
References: – Various International Law Books and Scholarly written and recorded Nepal’s history accounts.

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