Was the 1786 Penang lease treaty legally valid?

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The Legal Validity of the 1786 Penang Lease Treaty is Questionable

The 1786 treaty through which Francis Light leased Penang from the Sultan of Kedah is legally questionable from both historical and international law perspectives. Arguments against its validity centre on the Sultan of Kedah's alleged status as a vassal of Siam, which would have precluded him from entering into such a treaty, and the circumstances under which a subsequent, formal cession treaty was executed.
Sultan of Kedah's Sovereignty Under Scrutiny

A key point of contention regarding the 1786 lease is whether the Sultan of Kedah possessed the requisite sovereignty to enter into a treaty with the East India Company (EIC). International customary law, as reflected in the Montevideo Convention of 1933, stipulates that only sovereign states have the capacity to enter into treaties. Historical accounts indicate that by the mid-18th century, Kedah was in a precarious position, caught between Siam and Burma, and had begun sending "bunga mas" (tribute) to Siam, a practice that could be interpreted as acknowledging Siamese overlordship. If Kedah was a vassal state of Siam, then its ruler, the Sultan, would not have been considered a sovereign entity with the independent authority to lease territory, invoking the legal maxim "nemo dat quod non habet" – no one gives what they do not have.
Unhonoured Treaty and Subsequent Duress

The initial treaty of 1786, made in return for military protection for Kedah by the EIC, was never honoured by the British. The EIC refused to defend Kedah against Siamese attacks, leading the Sultan to attempt to retake Penang in 1790. This led to a subsequent treaty in 1791, which formalised the British acquisition of Penang and Prai (renamed Province Wellesley) with a nominal annual payment. However, this 1791 treaty is argued to have been executed under duress and undue influence, as the Sultan was in a "helpless condition." Treaties concluded under such circumstances are generally considered voidable under international law, as they do not uphold the principle of good faith, a cornerstone of treaty law articulated in Article 26 of the Vienna Convention on the Law of Treaties.
Historical Context and Current Payments

Despite the legal ambiguities, the British administered Penang for 171 years as part of the Straits Settlements, and it was largely recognised internationally as a former British colony. The historical context also reveals that following the 1791 lease, a nominal annual payment was established. This practice continues to this day, with the Penang state government reportedly paying an honorarium of RM18,800.00 to the Sultan of Kedah. This ongoing payment, while nominal, could be seen as a residual acknowledgement of historical ties, even as the legal basis of the original cession remains debated.

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Was the 1786 Penang lease treaty legally valid?

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