Treaty Of Sugauli - Assessing Its Validity Under International Law

Author: LawSphereX

Category: International Law

Published: 2026-08-23T21:37:11.619+00:00

Updated: 2026-08-30T07:06:50.879Z

TREATY OF SUGAULI: ASSESSING ITS VALIDITY

UNDER INTERNATIONAL LAW Sahil Bhachawat, OP Jindal Global University Page No: 417 to 423 The Treaty of Sugauli was a treaty of peace that was signed between the East India Company and the Kingdom of Nepal on March 4, 1816, following Nepal’s defeat in the Anglo – Nepalese war of 1814-1816. In essence, the treaty stipulated the following1: a) Nepal would have to cede almost 1/3d of its territories in favour of the East India Company; b) it would also seat a British representative in Nepal; and c) the British would be allowed to enlist Nepali Gurkhas in. Against these major concessions given by the Nepalese Kingdom, the East India Company only promised an annual sum of Rs. 2,00,000 as indemnification for the ceded territories.

It is pertinent to note that when the British left India, the territories that were received by the East India Company were transferred to Independent India and not returned to Nepal. It has been argued by many international law scholars that the terms of treaty were patently unjust and unfair to the Nepalese people, and it was signed under coercion and therefore, it must be treated as void ab initio. This research paper endeavours to analyse the validity of the Treaty of Sugauli from an international law viewpoint in the context of the background in which it was signed and other subsequent events that took place after its signing. The paper also attempts to understand the effect of the original text of the treaty being lost in case Nepal were to ever challenge the validity of the treaty.

1. Background

Around 1743 AD, when the formation of the Kingdom of Nepal was in its nascent stage, it was nothing more than a collection of small and fractured kingdoms with their own individual administrations. 2 The unification of these smaller constituents, which would later on go to comprise the Nepalese Kingdom, was initiated by Prithvi Narayan Shah, the first ruler of the Nepalese Kingdom. 3 Once the Kingdom of Nepal was unified, in a bid to expand its reach further, it went beyond its frontiers and occupied the territory of Sikkim in an attack that was launched in 1788.

4 This expansionist policy of Nepal did not sit well with the East India Company, who had acquired a strong control over the northern plains of India by the time Sikkim was acquired , and it was this friction between Nepal’s expansion and East India Company’s need to maintain its stronghold in the northern peninsula of India that led to the Anglo-Nepalese War of 1814–1816. 5 The Kingdom of Nepal was defeated in the Anglo-Nepalese War and the Treaty of Sugauli was the peace treaty that ended the war. The draft of the Treaty of Sugauli was prepared on 2nd December 1815 and signed by lieutenant Colonel Paris Bradshaw. 6 The treaty was then sent to Nepal for a counter signature and 15-day deadline was given to Nepal to counter-sign the treaty.

7 However, upon receipt of the treaty, Nepal protested against its provisions as they were patently unequal and did not sign the treaty within the stipulated deadline. Subsequently, the East India Company realised that the nature of the treaty is such that it would never be signed willingly by Nepal and therefore, they threatened Nepal that they would attack the capital city of Kathmandu if they do not sign the treaty. In order to showcase the seriousness of their threat, General David Ochterloney, a British military officer, occupied the Makwanpur Valley, which was at a distance of merely thirty miles from the capital city and that is what finally led to the treaty being signed and ratified by the Kingdom of Nepal. 8

2 Validity of the Sugauli Treaty

From the circumstances under which the treaty was signed, it is evidently clear that it was signed and ratified under an imminent danger of a military threat, and the Kingdom of Nepal was essentially coerced into entering the Sugauli Treaty. However, what might be coercion in fact might not be coercion in law. Therefore, this part of the research paper seeks to analyse whether the coercion involved in the Sugaui Treaty can lead to its invalidation under the field of ‘international law’. A. Coercion under the Vienna Convention on the Law of Treaties?

In the crudest of terms, a treaty can be defined as a contract which is entered into between two countries instead of individuals, and the Vienna Convention on the Law of Treaties9 (VCLT) is the one of the primary sources of international law that governs international treaties. According to article 5210 of VCLT, any treaty that is accepted by a country due to coercion by the threat or use of force will be void ab-initio. Therefore, it can be argued by Nepal that the Sugauli Treaty was void from its very inception as they were coerced into the treaty by the use of military force. However, this argument suffers from a fundamental flaw insofar as it assumes that the Sugauli Treaty would be governed by the VCLT. Article

411 of the VCLT clearly states that it does not have a retroactive application, meaning

thereby, it is only applicable to treaties which were concluded after it came into effect i.e. on or after January 27, 1980. Since the Sugauli Treaty was concluded in 1816, which is more than a decade after the VCLT came into force, it is not possible to get the treaty declared invalid on the grounds of coercion under the VCLT. B. Coercion under Customary International Law?

Article 38 of the International Court of Justice enumerates the different sources of international law, and in addition to conventions or treaties, also includes customary international law (CIL) as one such source. In light of this, regardless of the fact that Nepal might not have a valid claim under the VCLT for invalidating the Sugauli Treaty, it can still argue for the invalidation of the treaty if it can show that when it was signed, there existed a CIL that rendered a treaty void ab intio if the state was coerced into it through the threat or use of force. Therefore, it becomes imperative to undertake an enquiry into what was the position of CIL at the beginning of the nineteenth century on coerced treaties which involved threat or use of force.

In the classic international law paradigm, the use of force was not prohibited, and it was rather seen as an instrument of furthering national policies and imposing legal obligations. 12 Therefore, by extension, any treaty that was entered into because of coercion on the threat or use of force would not have been invalid. The time period of this classic international law paradigm was clarified in the International Law Commission’s13 commentary on the VCLT draft article, wherein it opined that the traditional doctrine prior to the Covenant of the League of Nations14, which entered into force in 1920, was that coercion of a state by use or threat of force did not invalidate a treaty.

It was only with the coming in of the Pact of Paris15 and the Covenant of the League of Nations, which denounced resort to force and violence, that there developed a wide consensus that treaties by coercion through force should not be considered valid. Therefore, it is quite clear that there did not exist even any CIL at the time of conclusion of the Sugauli Treaty that invalidated treaties obtained through coercion of the state and since every ‘juridical fact should be appreciated in light of the law contempory with it’16, the Sugauli Treaty cannot be invalidated on the ground of coercion. C. Coercion under a Peace Agreement?

Additionally, Nepal’s argument of invalidating the treaty based on inducement by coercion will become weaker in light of the fact that the Sugauli Treaty was a peace treaty. There seems to be unanimity amongst international law scholars that peace treaties imposed upon the defeated state by the victorious state is an exception to the rule that consent to enter into a treaty must be free, primarily due to the fact that every peace treaty will entail at least some sort of coercion and to have them invalidated on that ground would mean creating disorder in international relations of countries. 17 A case in point would be the Treaty of Versailles of 1919.

The Permanent Court of International Justice rendered various decisions that were based on the Treaty of Versailles and the defeated nations did not in any case allege that the Treaty was void as it was obtained by threat or use of force, namely the renewal or continuance of war. 18 At this stage, it becomes pertinent to note how the development of principle of non-use of force in the modern international regime changed the status of peace treaties. Before development stared happening on the prohibition of the use of force with the conclusion of Covenant of the League of Nations, the Kellogg-Briand Pact and the UN Charter, peace treaties signed under threat or use of force, whether lawful or unlawful, were deemed to be valid because there was no prohibition on the use of force as such.

However, in the present regime of international law, due to the establishment of the UN Charter, only those peace treaties are deemed to be held valid which are obtained by ‘lawful’ use or threat of force. As per article 7519 of the VCLT, peace treaties which are obtained by threat or use of force which is in line with Charter of the UN will not be invalidated. For e. g. A peace treaty imposed on a country under the use of force that is applied in self-defense under article 5120 of the UN Charter will be valid even though it is induced by coercion.

Therefore, in light of the aforementioned position of international law, it can be concluded that Sugauli Treaty’s status as that of a peace treaty would tip the balance of scales against it with respect to invalidating the treaty as coercion is not a vitiating factor for peace treaties and since the treaty was concluded way before the principles of the UN Charter started emerging, it would not even matter if the coercion was unlawful. D. Annulment by the Treaty of Peace and Friendship, 1950?

In addition to the ‘coercion’ argument, it has been argued by many scholars that the Sugauli Treaty stood annulled after the conclusion of the Treaty of Peace and Friendship signed between the Governments of Nepal and India in 1950. These scholars have placed their reliance on article 821 of the treaty for the ‘annulment’ argument. Article 8 of the treaty reads as follows: “So far as matters dealt with herein are concerned, this Treat: cancels all previous Treaties, agreements, and engagements entered into on behalf of India between the British Government and the Government of Nepal. ” It is submitted that Article 8 does not in any manner lead to the annulment of the Sugauli Treaty of 1816. A plain reading of the article shows that only those treaties would be liable to annulment that are concerned with the same subject matter as that of the 1950 treaty.

However, the 1950 treaty does not even contain a whisper regarding the territorial boundaries of the two countries and hence would in no way affect the validity of the Sugauli Treaty, which primarily demarcated the border territories of British India and Nepal.

3 Effect of the original text of the Sugauli Treaty being lost

Unfortunately, the original text of the Sugauli Treaty has been lost and is neither available in the national repository nor the national archives of the concerned countries. In view of this development , this part of the paper seeks to analyse the impact of the lost documents on Nepal’s claim on the territories that it lost in the Sugauli Treaty. It is very easy to assert and prove territorial claims when there is a treaty available on the point; however, this might not always be the case and in such cases, the opposing countries can resort to other justifications like ‘effective control’ to stake their claim over contested territory. A state can claim to be the rightful owner of the land under the plea of ‘effective control’ if it enjoys ‘uncontested administration of the land and its administrative population’.

22 Therefore, if the county from the whom the land is taken fails to maintain a minimum degree of sovereign activity23 and the country who takes it exercises real and proper occupation and administration of the contested land24, then the plea of effective control becomes valid. In light of the above-mentioned proposition of international law, it is submitted that Nepal’s claim over the territories lost in the Sugauli Treaty will become weaker as India could show ‘effective control’ over the lands that were ceded pursuant to the Sugauli Treaty which are now located in present day Sikkim and Uttarakhand (Kumaon and Gharwal).

In the case of Minquiers and Ecrehos25 (France/United Kingdom), the ICJ held in favour of UK as it could show local administration and sovereign jurisdiction over Minquiers and Ecrehos by virtue of the facts that they were levying taxes there, registering property deeds, issuing ordinances etc. Similarly, for Uttarakhand and Sikkim, the state legislatures exercise sovereign authority and administration over them and are empowered to all acts which are mentioned in the State List26 of the constitution.

4. Conclusion

This paper has attempted to determine the validity of the Sugauli Treaty from a wide variety of dimensions: the positive law, as laid in the Vienna Convention on the Law of Treaties; the uncodified Customary International Law prevalent at the time of the conclusion of the treaty; the impact of the Treaty of Peace and Friendship on the Sugauli Treaty. There was also an attempt to gauge the robustness of Nepal’s claim of reclaiming the territories ceded under the Sugauli Treaty in light of the fact that the original text of the treaty is nowhere to be found.

The research conducted for the purposes of this paper indicates that though the Sugauli Treaty was signed under coercion, it will still not be invalid as the prevalent principles of international law during that period did not render treaties void on grounds of coercion by threat or use of force, especially peace treaties, because there was no prohibition as such on the use of force by nation states. Furthermore, it was also found that the Treaty of Peace and Friendship will not annul the Sugauli Treaty since its scope did not extend to the ascertaining of territorial boundaries. Lastly, the loss of the text of the Sugauli treaty would surely complicate matters for both the countries but would also lend a stronger claim to India over the territories which were the subject matter of the Sugauli Treaty due to the plea of ‘effective control’.