Pakistan: A slice of China in Islamabad

[Zibago]

ina to phelay maslan japani cheezan boan paidar tay changia assia ........ ina ni quality ni cheez doosray mulka jani tay assi paisay dainay quality nay kinnay phuddooo 10 number shay.

Bhai sahab 1 number shay wi honi tey 3 number wi honi gal ay i key is mulk ney importers uthon 3 number shey chukeny kehn no ty Lenovo vi china na ey

 

[I.R.A]

It is never as simple as that. Remember the Lal Masjid episode, it was Chinese who were staffing Aunty Shamim's ... ahem.... massage parlours, no? That was the starting point, was it no?

No ...... Chinese weren't housed by that lady. They have their own areas and mind you some of their women are running very successful beauty parlors (for ladies). And honestly speaking nobody gives a flying duck about massages and stuff. The ones who want to have it will have it be it Chinese, Russian or Pakistani.

It always starts with houses and restaurants, but eventually the whole nation gets up in flames. You are a resolute one, I dare say, but there are many Pakistanis who are young and vulnerable. If they have been swayed by the enemy (think Bollywood), think how badly they cud be swayed by a taller than mountain, sweeter than honey friend....

If bollywood had this much influence we won't have LOC to remind us everyday. I am talking about cultural gap only. Rest any business they do would be fine.

 

[M. Sarmad]

The second comment first. My arguments were based on two things: a published court judgement from the High Court of Australia, known popularly as the Mabo judgement, that establishes the principles of terra nullius. Incidentally, this flatly contradicts your much-vaunted Mr. Howley's interpretation of the term one year earlier than the judgement. The second was an ab initio analysis of the law relating to ownership and possession, specific to the case of lease of property, and its application to the sovereignty over Gilgit.

As far as the published judgement is concerned, if you are saying that on reference, it is beyond the power and capacity of a reasonably knowledgeable person to look it up on his or her own, that will be a strange situation indeed; however, citations can and shall be provided, to obviate anyone taking refuge behind this.

As far as ab initio analysis is concerned, it is difficult to understand how plain and simple reasoning can be provided with references. It is possible to reproduce the textbook explanation of the situations to be discussed; since that seems to be your wish, so be it.

Then you mention 'biased opinions', referring to the responses I posted. This is contrasted to the well-referenced note by Mr. Howley on which you depend so heavily. It is strange that you should take this position, since Mr. Howley's note itself is an opinion. Please take a close look; it is a comment, not a learned article; in other words, it has been published by permission, and no peer review or any other assessment of its content is implied. It is, in the barest sense, an opinion. I can only point out that by selecting one opinion, and elevating it to the level of credibility of scripture, is not a new gambit; from Alastair Lamb onwards, these have been the tactics used, and we are inured to it.

At 4:39 this morning, you said,"....a properly referenced article/refutation will be much appreaciated (sic)". Fair enough. I hope you will allow me to submit this for your perusal, on a different thread; this thread was purely for the purpose of reviewing the increasing presence of China and the Chinese, and inter alia, it brought in elements of the sovereignty over Gilgit, which is how we segued into a discussion on the Kashmir issue itself. Such a discussion does not belong here; please open another thread, and I will post there.

For a start, I intend to place before you a sampling of the blatantly biased opinions held by Mr. Howley, which, while they do not affect his references, explains his careful selection of those references, and throw considerable light on the slant of his comment.

I look forward to your opening the new thread; meanwhile, I shall work on compiling the opinions expressed, distinct from the references and researched interpretations, and on the refutation that you seek.

@hellfire

1) The Australian High Court judgement you are referring to established that Australia couldn't be declared terra nullius as it was not uninhabited and the aborigines lived there before the advent of Europeans. In international law, a territory which has been uninhabited, or over which any prior sovereign has expressly or implicitly relinquished sovereignty is terra nullius. Howley has argued that after the British surrendered their lease on the eve of partition, the Gilgit region became a terra nullius. Although in theory the sovereignty was transferred back to the Maharaja but the Maharaja was never able to establish effective sovereignty over the region and as per International Law and widely accepted doctrine, claims of territorial sovereignty over a certain territory can be accepted only when the claimant had been exercising an "effective" sovereignty over the area in question. The Maharaja had never exercised sovereignty over the region, and 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. As for Pakistan's occupation of Gilgit, under international law, Sovereignty over territory which is terra nullius can be acquired through occupation provided that the occupation must be real and effective and the governmental control is sufficient to provide security to life and property. At the time of accession, under the August 1947 Standstill Agreement, Pakistan alone (to the exclusion of the Maharaja and India) was responsible for administering services in Kashmir such as the post, telegraph and railways. Howley has argued that as Pakistan fulfilled all the requirements, Pakistan's claim to Gilgit is legally valid. And Howley has cited several expert opinions and International Court judgments to backup his position.

2) The argument is purely a legal one and if presented properly in the International Court of justice, is not easy to refute.

3) However, Pakistan and India by accepting the UN Resolutions gave up their original claims and agreed to resolve the dispute through a UN supervised plebiscite that was to be held in entire erstwhile princely state of Jammu and Kashmir, including Gilgit. Pakistan had agreed to give up its claim and include Gilgit on the condition that India too agreed to give up its claim on Jammu and Ladakh and agreed to hold a plebiscite in the region to decide the accession of the state to India or Pakistan in accordance with the will of the people living there. But as no such plebiscite has taken place because of Indian refusal and backtracking, Pakistan has every right to "remind" the Indians (and the world) that India didn't receive Gilgit under the so called instrument of accession and even if the UN Security Council declares that the UN Resolutions on Kashmir are no longer valid (not happening anytime soon though), Gilgit is and will remain an integral part of Pakistan.

 

[Joe Shearer]

I have already invited you to open another thread, to which I can address my considered and referenced refutation that you had sought, apparently on the grounds that my responses lacked citations and references, and that they were opinions only. Presumably these below are by way of interim remarks, since your interpretations and references to Howley are similarly only your personal opinion; no new matter has been added, and matter cited by me has been interpreted in a personal way, without any authority in support.

My brief responses, without prejudice to a future, detailed and referenced refutation, as was agreed between us, follow below.

1) The Australian High Court judgement you are referring to established that Australia couldn't be declared terra nullius as it was not uninhabited and the aborigines lived there before the advent of Europeans. In international law, a territory which has been uninhabited, or over which any prior sovereign has expressly or implicitly relinquished sovereignty is terra nullius.

You are aware that this judgement was made AFTER Howley's sadly defective Comment? There was a year's gap, and Howley certainly could not have made his points with such confidence in the face of this judgement. The judgement showed that the British system of laws could not have been introduced as in a vacuum, as in terra nullius, because the territory in question was not, in fact, terra nullius; it was not uninhabited.

The judgement did not expand the definition of terra nullius to include territory that had been expressly or implicitly relinquished by an existing sovereign. That is presumably your own interpolation, in support of the case of Pakistan to be awarded legal sovereignty over Gilgit.

You will also note that these observations, either of Howley, or of the Australian High Court, or those interpolated and suggested, apply only to Gilgit; Baltistan is another matter, and that is not satisfied or even addressed by these observations. I am not addressing the question of Baltistan, but may do so in my future detailed refutation, meaning my future referenced refutation.

You have argued that another possible definition of terra nullius is a territory over which any prior sovereign has expressly or implicitly relinquished sovereignty, and that the Maharaja was such a sovereign.

This does not hold true in the case of alienation through act of war, which is what was the case in Gilgit. A territory conquered and held through act of war does not pass from one sovereignty to another; it remains in the forcible possession of the occupier until the situation is restored or until through a treaty or through legislation on either part or through both parts, the sovereignty is alienated in form. The Maharaja's position was, and the position of his legal heirs is that this territory remains under forcible occupation, and no unilateral legislation can effectively alter the sovereignty. Pakistan's extreme circumspection in assigning electoral representation to this territory, and in carefully segregating it from Azad Kashmir, another component of the Maharaja's sovereign holding that was held in occupation through acts of war, displays clearly that your country's legislative and administrative sections are painfully aware of this situation and have taken whatever steps they have taken, in terms of incorporating the so-called Northern Territories within the Islamic Republic of Pakistan, keeping the possible flaws in title in mind.

Please do read on.

Howley has argued that after the British surrendered their lease on the eve of partition, the Gilgit region became a terra nullius. Although in theory the sovereignty was transferred back to the Maharaja but the Maharaja was never able to establish effective sovereignty over the region and as per International Law and widely accepted doctrine, claims of territorial sovereignty over a certain territory can be accepted only when the claimant had been exercising an "effective" sovereignty over the area in question. The Maharaja had never exercised sovereignty over the region, and 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.

Howley is wrong on several counts.

The British themselves came into possession of the Gilgit Lease only through an act of lease, that is, not a permanent alienation of sovereignty, but a contractual alienation for a defined period and on defined terms, in circumstances that in law amount to permitting a lessee to enjoy restricted ownership of a property and to administer to it and keep it in good condition on behalf of the lessor. In this case, too, the earlier administration before the Lease and after the conquest of the territories by the Dogras was in the hands of the Dogras. It is Howley's ignorance of the history of these territories, or of his wilful oversight, that has led to the curious conclusion that no court of law will sustain that a territory on lease is therefore no longer in the administration or in the ownership, or in the sovereignty of the lessor.

The Maharaja had not only exercised an original sovereignty acquired through act of war and through settled treaties with the former owners in some parts, including specifically the rulers of Hunza and Nagar, who were suffered to continue to rule as vassal rulers subject to the sovereignty of the Jammu Durbar, they had merely transferred the responsibility for administration to the lessee, without giving up their sovereignty. To say as Howley does that the Maharaja, therefore, did not exercise 'effective' sovereignty over the area is ridiculous; the very act of lease is a devolution of the responsibility onto a lessee for a consideration, and with no effect on the sovereignty. The lessee's administration and exercise of sovereignty is only on behalf of the lessor, and in place of the lessor; there is never any vacuum.

The mere act of a collusive mutiny by an officer in the sworn service of the Maharaja, and the imprisonment of his designated Governor/Wazir, does not in any way vitiate his sovereignty; at most, it is indicative that the territory is in a disturbed condition, and that the neighbouring sovereign states are normally expected to come to the aid of the sovereign in possession of that territory. Neither Chitral nor Pakistan came to the aid of the Maharaja, although at that date, the Standstill Agreement was in force. Rather, in contradiction of the Agreement and in violation of it, Pakistan took possession of the territory, while Chitral State Forces joined the Gilgit Guides and attacked OTHER sovereign territories of the Maharaja, including Baltistan and Ladakh.

As you yourself know very well, at that date, both Baltistan and Ladakh were firmly in the control of the Maharaja, and that is why there is such a loud silence on the part of Howley regarding the terra nullius status not being applicable to these territories. Let us complete the analysis: parts of Baltistan - Kargil - and the whole of Ladakh, whose original subsidiary state Baltistan was, were recovered through defensive military action by the Maharaja and his heirs and successors, and passed back into the control of the Maharaja and his heirs and successors, where they rest to date.

As for Pakistan's occupation of Gilgit, under international law, Sovereignty over territory which is terra nullius can be acquired through occupation provided that the occupation must be real and effective and the governmental control is sufficient to provide security to life and property.

This is an argument flawed at the root since the terra nullius status was non-existent, and was imposed by Howley in his comment to put a fairer complexion to the mutinous state and the subsequent military occupation of the territory.

At the time of accession, under the August 1947 Standstill Agreement, Pakistan alone (to the exclusion of the Maharaja and India) was responsible for administering services in Kashmir such as the post, telegraph and railways. Howley has argued that as Pakistan fulfilled all the requirements, Pakistan's claim to Gilgit is legally valid. And Howley has cited several expert opinions and International Court judgments to backup his position.

It is my contention that Howley's exposition of events, his Comment, is so clearly arguing to a brief that the entire exercise is not to be taken as a considered analysis of the lawful situation. It is an interested party's argument, but at least presented not with any pretence of neutrality, but as a Comment.

If it had been an honest examination of the legal and juridical situation, Howley would have examined the Standstill Agreement in rather more detail, and made the perhaps not very pleasing discovery that the Agreement was an administrative arrangement and had no element of sovereignty in it.

You will recall that the Suez Canal has been administered in the past, as has the Panama Canal, by specially constituted bodies expressly formed for the purposes of administration and management. The treaties under which this was done in no way offered to the administrators even a shadow of transfer of sovereignty. Sovereignty remained firmly situated where it was, in the original treating states with which the administrative bodies entered into covenants.

Incidentally, it is tempting to ask if the railway network administered by Pakistan is after all such a strong claim to occupation, or if the posts and telegraph services in Gilgit and Baltistan offer such a claim.

2)

The argument is purely a legal one and if presented properly in the International Court of justice, is not easy to refute.

Your personal opinion, which deserves respect but is not equivalent to a legal opinion by a practitioner, far less having the authority of a judgement. As the argument is deeply flawed at the core, both as regards the definition of terra nullius, and as regards the authority accruing to Pakistan due to the Standstill Agreement, it would have to be a combination of a forensic presentation of exceptional brilliance, and a counter of exceptional lack of merit, for any court to come to a judgement in favour of Pakistan (my opinion, as far from a legal opinion or from the authority of a judgement, as yours).

3)

However, Pakistan and India by accepting the UN Resolutions gave up their original claims and agreed to resolve the dispute through a UN supervised plebiscite that was to be held in entire erstwhile princely state of Jammu and Kashmir, including Gilgit. Pakistan had agreed to give up its claim and include Gilgit on the condition that India too agreed to give up its claim on Jammu and Ladakh and agreed to hold a plebiscite in the region to decide the accession of the state to India or Pakistan in accordance with the will of the people living there. But as no such plebiscite has taken place because of Indian refusal and backtracking, Pakistan has every right to "remind" the Indians (and the world) that India didn't receive Gilgit under the so called instrument of accession.

On this, the plebiscite did not take place because of Pakistan's intransigence and refusal to cooperate with the withdrawal of troops according to the sequence proposed by the Security Council. Beyond this, I have nothing to add, as it has no bearing on Howley's fundamental arguments.

As for Pakistan's 'right' to mention anything related to the matter, there is no question of forcible suppression of speech of any party at any time, except under conditions of coercion. Such coercion and the suppression of free speech has been alleged so frequently by one side against the other that it is sometimes forgotten that the accusing side has itself been guilty of barbaric suppression and coercion itself, in precisely those territories that it seeks to represent as lawful sovereign.

Therefore these 'reminders' are double-edged swords and to be used with great caution.

 

[M. Sarmad]

The judgement did not expand the definition of terra nullius to include territory that had been expressly or implicitly relinquished by an existing sovereign. That is presumably your own interpolation, in support of the case of Pakistan to be awarded legal sovereignty over Gilgit.

No, Not my own, from The USLegal Dictionary:

In international law, a territory which has never been subject to the sovereignty of any state, or over which any prior sovereign has expressly or implicitly relinquished sovereignty is terra nullius.

https://definitions.uslegal.com/t/terra-nullius/


As for rest of your post, you of course are entitled to your opinion. But there is nothing in your post that even comes close to refuting Howley's position.

 

[Joe Shearer]

No, Not my own, from The USLegal Dictionary:

In international law, a territory which has never been subject to the sovereignty of any state, or over which any prior sovereign has expressly or implicitly relinquished sovereignty is terra nullius.

https://definitions.uslegal.com/t/terra-nullius/


As for rest of your post, you of course are entitled to your opinion. But there is nothing in your post that even comes close to refuting Howley's position.

That, too, is your opinion. I am frankly not sure that you have ready my post in full.

I have already submitted my notes for moderation and comment by a professor specialised in International Law, and hope to have his comments within a week or two.

 

[M. Sarmad]

On this, the plebiscite did not take place because of Pakistan's intransigence and refusal to cooperate with the withdrawal of troops according to the sequence proposed by the Security Council. Beyond this, I have nothing to add, as it has no bearing on Howley's fundamental arguments.

.

Says who ? the Indians ? Please quote a single UN official mediator blaming Pakistan for halting the process. I have already quoted the UN appointed official mediator and the English press squarely blaming India.

That, too, is your opinion. I am frankly not sure that you have ready my post in full.

I have already submitted my notes for moderation and comment by a professor specialised in International Law, and hope to have his comments within a week or two.

I have read it through .... And I don't know how the definition provided by the USLegal dictionary is "my" opinion ....

 

[Joe Shearer]

Says who ? the Indians ? Please quote a single UN official mediator blaming Pakistan for halting the process. I have already quoted the UN appointed official mediator and the English press squarely blaming India.



I have read it through .... And I don't know how the definition provided by the USLegal dictionary is "my" opinion ....

There is a little more to it than that. Preliminary responses to my arguments from legally knowledgeable people have been encouraging.

 

[M. Sarmad]

I have already submitted my notes for moderation and comment by a professor specialised in International Law, and hope to have his comments within a week or two.

looking forward to it

There is a little more to it than that. Preliminary responses to my arguments from legally knowledgeable people have been encouraging.

Legally knowledgeable "INDIANS" you mean ??

 

[Joe Shearer]

IRA bhai,

they can do whatever they want in their houses and restaurants .......... my problem is with their general attitude towards local laws and regulations. I hope they would soon realise they are the guests.

It is never as simple as that. Remember the Lal Masjid episode, it was Chinese who were staffing Aunty Shamim's ... ahem.... massage parlours, no? That was the starting point, was it no? It always starts with houses and restaurants, but eventually the whole nation gets up in flames. You are a resolute one, I dare say, but there are many Pakistanis who are young and vulnerable. If they have been swayed by the enemy (think Bollywood), think how badly they cud be swayed by a taller than mountain, sweeter than honey friend....

Regards

Ultimately it is their problem. Friends can only utter discreet words of caution.

looking forward to it



Legally knowledgeable "INDIANS" you mean ??

Yes, but as it happens, I have sent it overseas as well. You will be surprised to know - in due course, and subject to permission to reprint private correspondence - where. A preliminary response was to ask for a glossary of tilted expressions and opinions from Howley's note, and my comments on why I thought those were tilted, and what, in my view, the balanced comment should have been.

 

[M. Sarmad]

Yes, but as it happens, I have sent it overseas as well. You will be surprised to know - in due course, and subject to permission to reprint private correspondence - where.

I hope you won't disappoint me this time .... Keenly Looking forward to it

 

[Joe Shearer]

I hope you won't disappoint me this time .... Keenly Looking forward to it

I hope not; I believe that with appropriate citations and authorities incorporated, it will be a fairly well-argued note.