To be honest, a very bad and ill-thought through article. I could go into detail on other points as well, but restrict myself only to consideration of the status of Gilgit (and incidentally, Baltistan). The points for those who would read the article are listed below, in bullet points:
- Status of Gilgit (not Gilgit-Baltistan)
- Question of sovereignty and the different rights of the lessor and the lessee: are the lessor's rights extinguished by the existence of a lessee and the administration of a property by a lessee?
- Can the Maharaja be deemed to have never exercised sovereignty, when in fact his lessee was in full control, and reverted the control to the lessor on premature termination of the Lease?
- Definition of Terra Nullius
- No Man's Land - does it mean not administered, or not occupied and not administered?
- Australian court judgement in the aborigine case - terra nullius necessarily requires an absence of a population
- Gilgit was well-populated
- Application of terra nullius to Gilgit is wholly mistaken
- Transmission of sovereignty over Gilgit
- Did the Maharaja have the right to transmit sovereignty to India?
- Did the Maharaja have the sovereignty?
- Did the Maharaja obtain the sovereignty without any gaps from his lessee?
- If the Maharaja's lessee exercised administrative control over the territory, is it different from the Maharaja exercising administrative control?
- Status of Baltistan
- None of the arguments affect Baltistan
- Present occupation is a forcible occupation
- Considerations of effective sovereignty and possible terra nullius status do not apply to Baltistan
- On what grounds is this still held?
On the contrary, the Maharaja and the British jointly conquered the territories involved; it was only later, upon the increase in insecurity of the British during the farcical period of the Great Game, that the territory was leased by the British.
Please consider the nature of a lease. During this period, the occupation and enjoyment of the property in question is with the lessee, in this case, the British; it is the lessee's administration that is exactly and precisely the administration of the lessor. At no time is the lessor's right of ownership vitiated by the presence of a lessee. The lessee 'effectively' controlled Gilgit; that is precisely and exactly the same as the lessor controlling Gilgit.
In addition to this, the author of the article you have cited, Howley, has claimed the status of terra nullius for Gilgit; this is an obvious and glaring error. A terra nullius refers to a patch of land which is not administered by anyone. Such terra nullius may be occupied by an individual, a corporation or a state, and no one can object to it, as the land effectively had not been in anybody's possession.
That was NOT the case in the case of Gilgit. The land was populated; populated land cannot be terra nullius, according to the Australian court judgement that I have cited several times now. The land was administered on the lessor's behalf, by the lessee; where is the question then of a terra nullius?
Not so, according to the Howley article that you have yourself cited. Pakistan flat out refused, when there was a UNCIP team trying to bring about a settlement, and refused to take even the first step required. So where then is the question of allowing a plebiscite?
