M. Sarmad
SENIOR MEMBER
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- Oct 27, 2013
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State Subject Rule and Gilgit Baltistan
India has recently revoked Article 370 and 35-A of their constitution. As far as International Law is concerned, the setting up of the J&K Constituent Assembly in Indian Occupied Kashmir itself was a violation of the UN Resolution 91 of 30, March 1951 which stated that :
"Affirming that the convening of a Constituent Assembly as recommended by the General Council of the "All Jammu and Kashmir National Conference" and any action that Assembly might attempt to take to determine the future shape and affiliation of the entire State or any part thereof would not constitute a disposition of the State in accordance with the above principle."
So, it's not the abrogation of Article 370 (which wasn't recognized by the UN and Pakistan anyway) itself that constitutes the violation of International Law but the fact that India has "unilaterally" tried to change/abrogate the (special) status of J&K that it was entitled to under the Instrument of Accession (the only document recognized by the UN as provisionally valid, subject to ratification by the people of J&K) is what constitutes the violation of International law.
Some Indians have tried to justify their actions by claiming that Pakistan also did the same in the part of Kashmir under it's control (i.e. GB). That simply isn't true:
1) In 1927, the then ruler of the princely state of J&K issued a notification granting to the state subjects the right to government office and the right to land use and ownership, which were not available to non-state subjects. It is generally referred to as the State Subject Rule (SSR)
2) Since Gilgit-Baltistan was under the rule of Maharaja of Kashmir, SSR theoretically was said to be extended to this region. However, no documents or official record related to its promulgation in Gilgit-Baltistan is available with the law department of Gilgit-Baltistan.
3) It has been claimed that Pakistan abolished SSR in GB in 1974. However, the fact remains that Pakistan has never formally abloished SSR in GB. In 1974, the government of Zulfqar Ali Bhutto announced administrative and judicial reforms by abolishing the State of Hunza, Rajgiri & Jagirdari System and Frontier Crime Regulation (FCR) only. The Rajas (rulers) of abolished States were given government jobs and maintenance allowances.
4) These changes that enabled non-state subjects to own property in GB were introduced at the structural level, and not constitutional level.
5) Pakistan maintains that as Maharaja Hari Singh never exercised sovereignty over GB, he could not have transferred GB to India under the so-called instrument of accession as one can not transfer more rights than he possesses under International Law. So, the legal status of GB is different compared to AJK where the State Subject Rule is still strictly enforced.
At the time of the alleged accession to India, Kashmir was, in effect, divided into three distinct sectors: Azad Kashmir, "Legal" Kashmir and the Gilgit region. (Now GB)
The Maharaja did NOT exercise sovereignty over Gilgit Region, which constituted one-third of Kashmir. By the 1890s, it was the British Agent at Gilgit who wielded the real authority there. In 1935, the British leased Gilgit from Kashmir for sixty years, but surrendered their lease on the eve of partition." In theory, sovereignty reverted to Kashmir, but the Maharaja was never able to make this sovereignty effective in any way. When the Maharaja sent a governor to Gilgit, the Gilgit Scouts imprisoned him and turned the territory over to Pakistan. In light of this fact, it is clear that the Maharaja did not perform the activities of a territorial sovereign in the Gilgit region.
As such, the Maharaja had never exercised sovereignty over the region, and as per international law, could not transfer more rights than he possessed. Therefore, India did not receive the Gilgit region, now possessed by Pakistan, under the Instrument of Accession
Under International Law, A state can intentionally acquire sovereignty over any such territory that is not under the sovereignty of another state. The occupied territory must have, been terra nullius, without owner, and the occupation must have been real or "effective." ... Effective occupation occurs when there is an announced intention to acquire the territory, and actual settlement or occupation with the assertion of governmental authority has taken place.
The British surrendered their lease on the eve of partition, the Gilgit region was a terra nullius. At the time of accession, under the August 1947 Standstill Agreement, Pakistan alone was responsible for administering services in Kashmir such as the post, telegraph and railways. These services were the beginning of Pakistan's establishment of government authority over the region. This process was completed after the territory was transferred to Pakistan by the Gilgit Scouts. Since this time, Pakistan has claimed the Gilgit region, formerly a terra nullius, as part of its territory, keeping it beyond the control of the Azad Kashmir authorities and making it an integral part of Pakistan. In doing so, Pakistan has established governmental control sufficient to provide security to life and property. Thus, Pakistan effectively occupies the Gilgit region to the exclusion of India.
6) The British Residency in Kashmir clarified in 1938: ‘It will be observed that the Political Department are of opinion that Hunza, Nager, Chilas, Koh Ghizar, Iskhuman and Yasin, though under Kashmir’s suzerainty, were never recognized as a part of Kashmir.
7) For the last few years, esp. since the announcement of CPEC, many voices in GB are clamouring for the restoration of State Subject Rule (SSR) in the region. What they need to understand/realize is that SSR was never properly implemented in GB, so 'restoration' is out of question.
8) However, there is no denying that the people of GB have been marginalized and wronged by the center for the last 70 years. GoP should address their genuine grievances.
India has recently revoked Article 370 and 35-A of their constitution. As far as International Law is concerned, the setting up of the J&K Constituent Assembly in Indian Occupied Kashmir itself was a violation of the UN Resolution 91 of 30, March 1951 which stated that :
"Affirming that the convening of a Constituent Assembly as recommended by the General Council of the "All Jammu and Kashmir National Conference" and any action that Assembly might attempt to take to determine the future shape and affiliation of the entire State or any part thereof would not constitute a disposition of the State in accordance with the above principle."
So, it's not the abrogation of Article 370 (which wasn't recognized by the UN and Pakistan anyway) itself that constitutes the violation of International Law but the fact that India has "unilaterally" tried to change/abrogate the (special) status of J&K that it was entitled to under the Instrument of Accession (the only document recognized by the UN as provisionally valid, subject to ratification by the people of J&K) is what constitutes the violation of International law.
Some Indians have tried to justify their actions by claiming that Pakistan also did the same in the part of Kashmir under it's control (i.e. GB). That simply isn't true:
1) In 1927, the then ruler of the princely state of J&K issued a notification granting to the state subjects the right to government office and the right to land use and ownership, which were not available to non-state subjects. It is generally referred to as the State Subject Rule (SSR)
2) Since Gilgit-Baltistan was under the rule of Maharaja of Kashmir, SSR theoretically was said to be extended to this region. However, no documents or official record related to its promulgation in Gilgit-Baltistan is available with the law department of Gilgit-Baltistan.
3) It has been claimed that Pakistan abolished SSR in GB in 1974. However, the fact remains that Pakistan has never formally abloished SSR in GB. In 1974, the government of Zulfqar Ali Bhutto announced administrative and judicial reforms by abolishing the State of Hunza, Rajgiri & Jagirdari System and Frontier Crime Regulation (FCR) only. The Rajas (rulers) of abolished States were given government jobs and maintenance allowances.
4) These changes that enabled non-state subjects to own property in GB were introduced at the structural level, and not constitutional level.
5) Pakistan maintains that as Maharaja Hari Singh never exercised sovereignty over GB, he could not have transferred GB to India under the so-called instrument of accession as one can not transfer more rights than he possesses under International Law. So, the legal status of GB is different compared to AJK where the State Subject Rule is still strictly enforced.
At the time of the alleged accession to India, Kashmir was, in effect, divided into three distinct sectors: Azad Kashmir, "Legal" Kashmir and the Gilgit region. (Now GB)
The Maharaja did NOT exercise sovereignty over Gilgit Region, which constituted one-third of Kashmir. By the 1890s, it was the British Agent at Gilgit who wielded the real authority there. In 1935, the British leased Gilgit from Kashmir for sixty years, but surrendered their lease on the eve of partition." In theory, sovereignty reverted to Kashmir, but the Maharaja was never able to make this sovereignty effective in any way. When the Maharaja sent a governor to Gilgit, the Gilgit Scouts imprisoned him and turned the territory over to Pakistan. In light of this fact, it is clear that the Maharaja did not perform the activities of a territorial sovereign in the Gilgit region.
As such, the Maharaja had never exercised sovereignty over the region, and as per international law, could not transfer more rights than he possessed. Therefore, India did not receive the Gilgit region, now possessed by Pakistan, under the Instrument of Accession
Under International Law, A state can intentionally acquire sovereignty over any such territory that is not under the sovereignty of another state. The occupied territory must have, been terra nullius, without owner, and the occupation must have been real or "effective." ... Effective occupation occurs when there is an announced intention to acquire the territory, and actual settlement or occupation with the assertion of governmental authority has taken place.
The British surrendered their lease on the eve of partition, the Gilgit region was a terra nullius. At the time of accession, under the August 1947 Standstill Agreement, Pakistan alone was responsible for administering services in Kashmir such as the post, telegraph and railways. These services were the beginning of Pakistan's establishment of government authority over the region. This process was completed after the territory was transferred to Pakistan by the Gilgit Scouts. Since this time, Pakistan has claimed the Gilgit region, formerly a terra nullius, as part of its territory, keeping it beyond the control of the Azad Kashmir authorities and making it an integral part of Pakistan. In doing so, Pakistan has established governmental control sufficient to provide security to life and property. Thus, Pakistan effectively occupies the Gilgit region to the exclusion of India.
6) The British Residency in Kashmir clarified in 1938: ‘It will be observed that the Political Department are of opinion that Hunza, Nager, Chilas, Koh Ghizar, Iskhuman and Yasin, though under Kashmir’s suzerainty, were never recognized as a part of Kashmir.
7) For the last few years, esp. since the announcement of CPEC, many voices in GB are clamouring for the restoration of State Subject Rule (SSR) in the region. What they need to understand/realize is that SSR was never properly implemented in GB, so 'restoration' is out of question.
8) However, there is no denying that the people of GB have been marginalized and wronged by the center for the last 70 years. GoP should address their genuine grievances.
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