Analysis
It has been argued that Sughauli Treaty of 1815-16 between East India Company and Nepal can be challenged and Nepal has a strong legal case to reclaim the territories that British obtained from Nepal and never returned after they left Indian sub-continent. Evidence seem to suggest that Nepal can legally claim such territories because a) British obtained those lands in a method denounced by the International Law of Treaties (Versailles) and b) Peace and Friendship Treaty of 1950 between India and Nepal nullifies all the previous treaties signed between British and India and c) the Treaty signed by Britain and Nepal in 1950 also nullifies all the previous treaties between India and Britain and d) India has weak historical case to make for ownership of these lands. However, the questions remain:
- When Nepal is unable to control and fully govern the land it currently owns, what is the benefit of adding extra lands? Is it a question of benefit or of right? Is it for mere nationalism?
- Would the people living in such areas desire to be part of Nepal or India?
- Supreme Court of Nepal rejected the writ petitions filed by advocates for reviewing Sughauli Treaty document. How well can the reasons offered by the SC be substantiated?
Selected Articles
What is Sughauli Treaty? By Buddhi Narayan Shrestha
Copy-pasted Source
1. Background:
The border treaty signed between the then government of East India Company and Nepal on March 4, 1816 is known as the Sugauli Treaty. The result of the treaty was that Nepal lost almost one-third of its territory on the east, south and west. Students of history know it well why and how the treaty took place. But it would be beneficial for others as well to know the historical background of the country. Late King Prithvi Narayan Shah unified the small fiefdoms / principalities and created a big and powerful Nepal. His descendents continued with the unification and expansion of the country. The East India Company government could not bear Nepal spreading out and becoming stronger. So, they resorted to trickery and deceit in the battles of Nalapani, Jaithak and Makawanpur to defeat the Gorkhalis and forced Nepal to counter-sign in the Sugauli Treaty.
2. Unequal Treaty:
Sugauli Treaty is known as an unequal treaty. Because any treaty is meant to give both the sides more or less equal or equitable benefits even if one side get a little more benefit and the other a little less. But Nepal suffered only losses because of the treaty while the British India gained a huge territorial advantage. The British got the facilities of corridor in the east and in the west, also it got all the facilities and benefits. No provision of facility and concession was made for Nepal. The territory of Nepal that had been unified and expanded to Teesta in the east, Kangara Fort in the West and nearly to the confluence of Ganga and Jamuna in the south, was curbed on all the three sides. So far as the international treaty is concerned, any treaty should be done on the basis of equality, mutual goodwill and understanding, but the British forced Nepal into the treaty under compulsion and duress. Therefore, experts on international treaty view that Nepal may not be forced to recognize the Sugauli treaty as a sound treaty.
3. Sugauli Treaty was not signed willingly by Nepal:
1. The British East India Company prepared the draft of the treaty with the signature of Lieutenant Colonel Paris Bradshaw on December 2, 1815. It was sent to Nepal with a 15-day ultimatum for counter-signature and asked to return it to them. Nepal did not like the terms and conditions of the treaty, so it did not sign within that period. The British then spread rumour that they were launching attack on the capital, Kathmandu, and even carried out troop movement to show Nepal that it was serious. When Nepal thought that the attack on the capital was inevitable, it was forced to accept the treaty.
2. As it was a treaty imposed on Nepal, the King and high ranking officials did not want to sign it. But as Nepal was under duress to accept its terms, Chandrashekhar Upadhyaya, who had accompanied Pandit Gajaraj Mishra to the British camp at Sugauli, put his signature on March 4, 1816 and gave it to them.
3. As Nepal had signed the treaty under coercion after 93 days against the 15-day ultimatum, the treaty came into effect from that day.
4. Validity of the treaty:
1. Article 9 of the treaty says that the treaty shall be approved by the King of Nepal, but there is no record of the treaty being approved by King Girwana Yuddha Bikram Shah.
2. The British had feared that Nepal might not implement the treaty signed on March 4, 1816 by Chandrashekhar Upadhyaya. Therefore, Governor General David Octerloni, on behalf of the British Government, ratified the treaty the same day and the counterpart treaty was handed over to Upadhyaya.
In this way, the treaty, which was signed by Chandrashekhar Upadhyaya for Nepal and by Parish Bradshaw for the Company Government, was approved only by Governor General Octerloni. As the treaty was not approved by the King of Nepal, there can be question and curiosity on the legality of the treaty.
[CB comment: This section of the article uses incorrect information. The original translation of the treaty and follow-up memorandum indicate that Raja of Nipal DID approve the treaty on Dec 11, 1816 with his Red Seal. Please see the original treaty document here.]
5. Effect of the treaty on Nepal:
There are both direct and indirect consequences of the treaty on Nepal
1. Direct consequences:
- Before the treaty, the border of Nepal was extended from Teesta in the east to Kangara Fort in the west. The east-west length of Nepal was 1,415 kilometres and the total area was 267,575 square kilometers. Similarly, the distance from Teesta to Sutlej was 1,373 and the area was 204,917 square kilometers.
- But the treaty reduced the average east-west length to 885 kilometres and the total area of Nepal is confined to 147,181 square kilometers between the Mechi and the Mahakali Rivers.
- This way the treaty cut-off the wings on the east and west and receded its area on the south, losing almost one-third of its total area.
- Nepal was forced to give up not only its western front but also the Mechi to Teesta area on the east, where there was no war. In the treaty, it was mentioned that the aforesaid territory shall be evacuated by the Gorkha troops within 40 days from this date.
- What was more spiteful of the British was that it entered into Titaliya Treaty with Sikkim on February 10, 1817 (11 months after Sugauli Treaty), and gave the land it had snatched away from Nepal to Sikkim
2. Indirect Effects:
- The treaty had critical effect on Nepal’s sovereignty. For example, the British would take the final decision, if there were any conflict between Sikkim and Nepal.
- It brought dishonour to the sacrifices made by Bir Balabhadra and Bhakti Thapa, bravery of Bahadur Shah and Amar Singh Thapa, and the diplomacy of Bhimsen Thapa for the campaign of unification of Nepal.
- It sowed the seed of discord between the senior officials and rulers in Nepal. There was one group, which still favoured war with British to take back the territories as Nepal was forced to cede. While another group did not want the war to continue. This conflict averted another war against the British.
- Amar Singh Thapa, who had vehemently opposed the Sugauli Treaty that cost Nepal one-third of its territory, sought recluse to Gosainkunda away from the battlefield and he breathed last there.
6. The treaty has laden responsibilities only on Nepal:
The articles, which are burdened on Nepal, are as follows:
1. Article 2: The Rajah of Nipal renounces all claims to the lands which were the subject of discussion between the two states before the war; and acknowledges the right of the Honourable Company to the sovereignty of those lands.
2. Article 3: The Rajah of Nipal hereby cedes to the Honourable the East India Company in perpetuity , viz- The whole of the low lands between the Rivers Kali to Mitchee including the fort and lands of Nagree and the Pass of Nagarcote leading from Morung into the hills, together with the territory lying between that Pass and Nagree. The aforesaid territory shall be evacuated by the Gurkha troops within forty days from this date.
3. Article 5: The Rajah of Nipal renounces for himself, his heirs, and successors, all claim to or connexion with the countries lying to the west of the River Kali and engages never to have any concern with those countries or the inhabitants thereof.
4. Article 6: The Rajah of Nipal engages never to molest or disturb the Rahah of Sikkim in the possession of his territories; but agrees, if any differences shall arise between the State of Nipal and the Rajah of Sikkim, or the subjects of either, that such differences shall be referred to the arbitration of the British Government by whose award the Rajah of Nipal engages to abide.
5. Article 7: The Rajah of Nipal hereby engages never to take or retain in his service any British subject, nor the subject of any European and American State, without the consent of the British Government.
This way, the treaty has virtually no liability on the British side. Any treaty normally demands more or less equal liability and accountability on both sides.
[CB Comment: But this treaty was signed with the pretext that Nepal will not be attacked, which is the liability for British. So it was obviously unfair but Nepal in theory was saved from British attack. It wasn't a treaty between two countries at peace.]
7. The British had doubts that the treaty would be implemented fully:
1. Under Article 4 of the Treaty the British would provide Rs. 200,000 every year to Nepal to please Nepalese officials and to calm down the Gorkha forces from waging another war.
2. Being skeptic that the Gorkhali might not give up the Mechi-Teesta area, which was out of bound of the war, Article 3(5) of the Treaty provisioned that the Gorkhali forces shall vacate from the area within 40 days. To prevent the Gorkhali forces from making claims for the hill area east of Mechi, the British started erecting border pillars just five months after the Sugauli Treaty.
8. The Sugauli Treaty is not for ever:
1. Although Article 3 of the treaty states that the King of Nepal shall relinquish the Terai region from Kali to Koshi in perpetuity. But it is interesting to note that this did not happen everlastingly.
2. Because Nepal restored the plains from Koshi to Rapti after nine months of the treaty. After returning the area, the British stopped paying an amount of Rupees Two Lakhs as mentioned in the treaty. May be, the British thought that the money was worth more than the area which was malaria-infested and covered with forests. Another point, the land was returned so as not to pay the money anymore after becoming sure and certain that Nepal will not wage another war. [CB Comment: British did so because they wrote a second memorandum to the Raja of Nipal after latter was distressed by the conditions in first draft of the treaty. Hence, the lands were returned but the provision of paying 2 lakhs was revoked, and the Raja accepted the renewed terms with his red seal approval. See the original memorandum]
3. Additionally, Nepal got back the Terai area from Rapti to Kali after 44 years of the Sugauli Treaty. The British gave back this area (Banke, Bardia, Kailali and Kanchanpur districts) and it is known as new territory. It was regained as Jung Bahadur went to India and quelled the Sepoy Mutiny, as requested by East India Company.
4. Had the Sugauli Treaty was done on a permanent basis, Nepal would not have received back those lands at different times. This proves that Sugauli Treaty was not done to last forever.
9. British had felt that they had done injustice to Nepal by forcing the Sugauli Treaty:
1. East India Company was aware that Gorkhalis are not satisfied with the treaty. They have something in their heart that they have done some kind of injustice to the Gorkha army. To console the Gorkha army, they provided two Lakhs of rupees annually as compensation. It could be grasped a sense as the Article 4 of the Treaty says “With a view to indemnify the Chiefs and Bharadars of the State of Nipal, whose interest will suffer by the alienation of the lands ceded, the British Government agrees to settle pensions to the aggregate mount of two Lakhs of rupees per annum on such Chiefs as may be selected by the Rajah of Nipal.”
2. Secondly, the British returned the Tarai land from River Koshi to Rapti on 11 December 1816 at first and second time from Rapti to Kali on 1 November 1860, realizing that Nepal had suffered and was not pleased with the treaty. But they stopped to provide the money after they returned back the east Tarai plain land.
10. There were territorial disputes immediately after the treaty was signed, as it was because Nepal was not happy with the Sugauli treaty :
1. After Nepal lost the plains from Koshi to Kali, there were immediate disputes regarding the northern boundary line of the plains. For example, whether the top Range or the southern foot or northern foot-hill of the Chure Range would be taken as boundary line. In this regard, disputes had erupted in the area from Dunduwa Range of Dang to Arra Nala and Taal Bagoda in 1817, within one year of the signing of the treaty.
2. Similarly, there was dispute in ownership of Antu Danda of Ilam in 1825
3. There was also dispute on the origin of the Mechi River. There was dispute till 1838 whether the river originated from north-east or the one coming from north-west was the source of the Mechi River
4. In 1840, there were claims and counterclaims on the ownership of several villages and settlements of the Ramnagar area
5. There was also ‘mine-and-yours’ controversy regarding the border areas adjoining with Tirhut and Sarun districts of India.
11. As the treaty was not clear about the boundary delimitation, its effects have persisted even to the present time:
1. Actually the treaty failed to mention clearly in so many sections where the borderline would actually pass through. There have been problems in demarcating the boundary line and in erecting border pillars at several places. Now the area of such disputed places has been estimated at around 60,000 hectares. In many of these areas, there are still claims, counter-claims, discussions, controversies and arguments from both sides.
2. The result is that even today there are accusations of encroachment and disputes at 54 places of the Nepal-India borderline. The prominent areas have been identified as Kalapani- Limpiyadhura, Susta, Mechi area, Tanakpur, Sandakpur, Pashupatinagar, Hile Thori etc.
12. Nepal had to bear losses because of its weakness of administration and management:
1. Nepal’s biggest weaknesses was its failure to discuss and deliberate in detail the terms and conditions of the treaty before counter-signing it
2. Nepal had to loose the hill area of Mechi-Teesta portion, which was out of bound of the war. It is because of its administrative weaknesses in putting forth its case and argument to the East India Company, before it was taken away and given to Sikkim.
3. The Rana rulers could not taken initiative on returning the land taken away from Nepal when India gained independence from Britain in 1947. If the Ranas had asked, the British might have returned those lands of Greater Nepal in a single word. There was every possibility of the British rulers in returning Nepal its legacy. One example could be cited that the British divided a single country and created India and Pakistan, including East and West Pakistans, which do not have a common border.
4. But the Ranas might have their own interests. That time the Ranas were already facing difficulties in ruling the country. There were oppositions to their regime. The wave of India’s independence movement had also started blowing towards Nepal. The Ranas thought when they were facing difficulty in managing the territory of their country they already had, adding up new areas would further shorten their regime.
5. Even after the Treaty of Peace and Friendship was signed between Nepal and India on July 31, 1950, the Ranas did not dare to take initiative to restore the areas of Greater Nepal that was lost to the British. Article 8 of the Treaty has clearly mentioned that “So far as matters dealt with herein are concerned, the Treaty cancels all previous treaties, agreements, and engagements entered into on behalf of India between the British Government and the Government of Nepal.” Still Nepalese rulers that time could not raise voices that Sugauli Treaty was thus annulled and Nepal should get back its lost territories.
6. Similarly, Article 8 of a separate treaty signed between Nepal and Britain on October 30, 1950 states that “All treaties, engagements and agreements between the Government of the United Kingdom and the Government of Nepal concluded prior to 21st December 1923 and the Treaty signed at Kathmandu on that date shall cease to have effect from the date on which the present Treaty comes into force in so far as their application between the United Kingdom and Nepal is concerned.” Nepalese administrators then could not show the courage to claim the territories seized from Nepal, with the argument that the new treaty had annulled the Sugauli Treaty. The 104-year Rana oligarchy must have come to an end because history had cursed them. Although the Ranas did not want to get back the lost territories to continue remaining in power, their regime ended on February 18, 1951, after three-and-a-half months of the signing of 1950 Treaty. If they had really been tried and had succeeded in getting back the lost territory, they would have remained illustrious in the history of Nepal even if their rule ended. The other side of the coin is that their regime might have been extended, if they had succeeded in getting back the lost territories from East India Company.
7. Even when no treaty or agreement has been signed between Nepal and Republic of India that would establish present India’s dominion on the Nepalese territories ceded to the British government under Sugauli Treaty, Nepal has not been able to show the courage in claiming its rights on those areas of Greater Nepal because of weaknesses in its administration.
8. The Sugauli Treaty was being partially amended and corrected two times since it was signed in 1816. Besides, Nepal had even got the chance to completely annul the treaty in 1950. But the Rana rulers could not take advantage of the situation. It may because of the fact that they are not dedicated further for the nation.
13. Writ petitions at the Supreme Court to establish Nepal’s territorial rights on the territories lost in the Sugauli Treaty:
1. Section 8 of the Nepal-India Peace and Friendship Treaty-1950 between Nepal and India has annulled the Sugauli Treaty. People like advocate Ramji Bista and nationalists like Yogi Narahari Nath and Phanindra Nepal, who are deeply concerned about the prosperity of the country filed writ petitions on November 4, 1996 and April 21, 1999 respectively at the Supreme Court and pleaded in favour of reinstating Nepal’s rights, thus to reestablish the rights by examining the legality of the Sugauli Treaty and to quash it to the limit that are contrary to the constitution: At the same time they advocated to maintain the territorial integrity of the Kingdom of Nepal and to establish the right of use and possession of the Nepalese people by declaring Sugauli Treaty as invalidated. They pleaded further for the resolution of the constitutional question on the issue of public concern and the right of the Nepalese people; and to attain complete justice. The Rajdhani Daily on June 27, 2003 reported that the Supreme Court on June 26, 2003 quashed the writ saying there was no enough evidence to substantiate the claims for Greater Nepal.
2. In a similar reporting on the same date, Nepal Samacharpatra, another Daily, reported that the Supreme Court had quashed the writs reasoning that the writs on Greater Nepal had failed to clarify what kind of right of information was infringed. But the Supreme Court ordered the government to take seriously the issues of the alterations of the borders between Nepal and India by causing deficits to Nepal and to manage the border issue without causing any harm to the territorial integrity of the country. The Supreme Court in its decision had maintained that the government, under Article 4 and Article 126 (2) Clause C must remain aware and vigilant on the country’s territorial integrity.
14. Conclusion:
The following conclusions could be drawn from the above fact:
1. As Nepalese people have been taking from its onset that Sugauli Treaty was an unequal treaty and, thus, there is no need to let such an unequal treaty to remain in existence any longer
2. As the Treaty of Peace and Friendship between Nepal and India signed on July 31, 1950 and the Treaty between Nepal and the United Kingdom on October 30, 1950 had annulled and invalidated all previous treaties and agreements, thus Nepal should have territorial rights over the areas of Greater Nepal, lost in the Sugauli Treaty,
3. After India gained independence from the British rule, there is no treaty, agreement and understanding regarding domination of the territory of Greater Nepal by the Republic of India. Thus the land captured by British from Nepal should no longer remain under present India’s dominion.
4. India has only been using the territory, which was cut-off from Greater Nepal, but it has no substantive proof of ownership.
5. All nationalist citizens and the Nepalese people firmly believe that the Supreme Court will leave no stone unturned to reestablish the right and dominion of Nepal and the Nepalese on the territories which were cut-off from the Greater Nepal during the Sugauli Treaty, if the writ petitioners submit historical documents and maps that are available in the Library of Congress- USA, British Library- London, National Library of Beijing- China and some other leading libraries of the world.
6. It has been proved by the activities of the British during the British India period that Sugauli Treaty was not everlasting. If the treaty was unchangeable the provisions in Articles like: the Nepalese monarch hereby cedes in perpetuity the whole of the low lands between the Rivers Kali and Tista, would have remained unchanged. But as the British themselves retracted from these Articles and returned the Nepalese land at more than one time. This shows that other Articles of the treaty and the treaty as a whole could be annulled one day, if Nepal is powerful and strong enough..
7. Nepalese must realize that Sugauli Treaty is there until Nepal boosts its self-confidence and act accordingly in this regard. For this, we must be able to stand firmly on our feet. We must improve our social status and economic condition to stand on our own feet. Our per capita GDP must increase with our own effort. The Nepalese society can progress, if its economic condition improves. When there is economic and social progress Nepalese could increase their capacity to think logically and rationally. If there is social awareness in the Nepalese society, it will naturally increase the feeling of love for one’s country and patriotism. After fulfilling as these items, one day Nepal will be able to annul the Sugauli Treaty of 1816 which was signed under duress.
15. Remarks:
1. Now, the question is when will Nepal be able to stand on firm legs? The answer would be: Nepalese will become self-reliant, if there are enough employment opportunities inside the country, if there is industrial development and if there is maximum utilization of the natural resources. But the development of industries, development of infrastructure and production of the necessary goods within the country depend on politics and political activities. Therefore, political stability is imperative for the development of the country. If everything within the country is favourable and the Nepalese society becomes fully self-reliant, we can cremate the Sugauli Treaty by restoring the remaining territory of the Greater Nepal that was earned by our ancestors. In this context it could be cited an example: Britain had taken over Hong Kong Kowloon in 1842 under a treaty saying it would be forever. But it was forced to return back the territory to China after 155 years. Similarly, Macao, which was captured 400 years ago by Portugal, was returned to China on December 20, 1999. Now the dialogue is going on for the unification of Taiwan to China. The dialogue has progressed ahead because of its possibility. This is due to the fact that China is becoming a prosperous country. It is going to capture most of the goods and merchandise market of the world. At the same time, it is marching ahead in the political field as well.
2. In such a situation, who can say that the remaining part of Greater Nepal, which was split away only 189 years ago (on March 4, 1816) could not be returned! Who can disagree that the Sugauli Treaty cannot be nullified? But for that, the only thing that remains is that Nepal should be economically and socially developed and the Nepalese should be prosperous. If China had not progressed and prospered economically, socially and politically, it might not have gotten Hong Kong and Macao back. Therefore, if Nepal and the Nepalese also become strong enough economically and socially, no one can say that the remaining Articles of the Sugauli Treaty cannot be revoked. In history, a decade or two is a short period of time. If the present generation cannot do it, the next generation will come forward. The prosperous new generation will retrieve and establish the rights and claims of their fathers and forefathers. Those rights and claims will nullify the remaining Articles and clauses of the Sugauli Treaty.
NEPAL: Sugauli Treaty-1816 & Breach of Recognized State Obligation By Dipta Prakash Shah
Telegraph Nepal
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 succeeded 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 KaliRiver 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 handover 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 withdrawl
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 Courtfor 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 byNepal, 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 looses 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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