The curious case of Gilgit-Baltistan and how it was illegally occupied by Pakistan

Gilgit-Baltistan (GB) is again in the news. In November 2019, when a new map of India showed the area as part of the newly-created Union territory of Ladakh, it triggered objections by Pakistan and China. More recently, on 21 July, after the third meeting of the China-Pakistan Economic Corridor (CPEC) Joint Working Group on International Cooperation and Coordination (JWG-ICC), the Pakistan foreign ministry invited ‘third parties’ to participate in the project: “As an open and inclusive platform, both sides welcomed interested third parties to benefit from avenues for mutually beneficial cooperation opened up by CPEC.”

Pakistan and China would like Afghanistan to be part of the CPEC, a key component of Chinese President Xi Jinping’s massive infrastructure and connectivity project, known as the Belt and Road Initiative. But the project passes through illegally occupied Indian territory and this would be utterly unacceptable for Delhi.

The Ministry of External Affairs (MEA) spokesperson, Arindam Bagchi, asserted that “India firmly and consistently opposes projects in the so-called CPEC, which are in Indian territory that has been illegally occupied by Pakistan”. He added that any third party entering the CPEC “infringed on India's sovereignty and territorial integrity”.

The scrapping of Article 370

In 2019, at the time of the abrogation of Article 370 of the Indian Constitution, the Indian and foreign media showed how ill-informed they were about the legality of the issue. The Government of India is definitively to be blamed for this lapse; the MEA should have ‘educated’ the press and the public by giving a full historical briefing on all facets of the issue.

One problem is that today the MEA functions without a Historical Division (in the 1990s, some smart mandarins thought they knew everything and that this division was no longer required). South Block should have prepared a “background note on the Kashmir issue and the history of the temporary Article 370 of Indian Constitution”, but probably nobody had time for such niceties. The same applies to GB today.

What are the facts?

Several years ago, I came across a ‘Top Secret’ note written by Sir Girja Shankar Bajpai, the secretary-general of the MEA and Commonwealth in the early 1950s. Titles “Background to the Kashmir Issue: Facts of the case”, it makes fascinating reading.

It starts by a historical dateline: “Invasion of the State by tribesmen and Pakistan nationals through or from Pakistan territory on October 20, 1947; ruler’s offer of accession of the State to India supported by the National Conference, a predominantly Muslim though non-communal political organisation, on October 26, 1947; acceptance of accession by the British Governor-General of India on October 27, 1947, under this accession, the State became an integral part of India.”

In a second stage, in a separate letter was sent by the Governor General Lord Mountbatten to Hari Singh, mentioning a plebiscite, “the fulfillment of which was to take place at a future date when law and order had been restored and the soil of the State cleared of the invader. …The people of the State would then be given the right to decide whether they should remain in India or not.”

But it was a legal fact accepted by all parties (including Pakistan) that GB and the so-called Azad Kashmir were an integral part of Indian territory.

Then Bajpai’s note mentioned the invasion of the State by Pakistan Regular Forces on 8 May 1948. As J&K was part of India, the note said that it was “in contravention of international law. One of the grounds for this military operation, as disclosed by Pakistan’s Foreign Minister himself, was a recommendation of the Commander-in-Chief of Pakistan...”

It was clear that Pakistan was not interested in the plebiscite, but wanted to grab Buddhist Ladakh for the wealth of its monasteries. The note observed: “Pakistan, not content with assisting the invader, has itself become an invader and its army is still occupying a large part of the soil of Kashmir, thus committing a continuing breach of international law.”

The UN Resolutions, particularly of August 1948, acknowledge this and though Pakistani and Chinese diplomats often quote them, very few must have actually read them.

The ceasefire: A telling event

Following the ceasefire of 1 January 1949, the military representatives of India and Pakistan met in Karachi between 18 and 27 July 1949, under the auspices of the United Nations Commission for India and Pakistan. Before leaving for Karachi, the delegates had a briefing from Bajpai who explained the legal position in detail to the delegates. He told them that the UN resolution of 13 August 1948 “had conceded the legality of Kashmir's accession to India and as such no man's land, if any, should be controlled by India during the period of ceasefire and truce.” Thus, the Line of Cease Fire (now LOC) was drawn and accepted by Pakistan on this very principle. Islamabad has today conveniently forgotten this fact.

The case of Gilgit

A few years ago, I found on the Internet an interesting copy of the 1948 London Gazette which mentioned that the King “has been graciously pleased… to give orders for… appointments to the Most Exalted Order of the British Empire…” The list included “Brown, Major (acting) William Alexander, Special List (ex-Indian Army)”.

Who was this officer?

Brown is infamous for illegally 'offering' Gilgit to Pakistan in 1947.

The British Paramountcy had lapsed on 1 August 1947, and Gilgit reverted to the Maharaja's control. Lt Col Roger Bacon, the British political agent, handed his charge to Brig Ghansara Singh, the new governor appointed by the Maharaja. Maj Brown remained in-charge of the Gilgit Scouts.

Despite Hari Singh having signed the Instrument of Accession and joined India, Maj Brown refused to acknowledge the orders of the Maharaja, under the pretext that some leaders of the Frontier Districts Province (Gilgit-Baltistan) wanted to join Pakistan. On 1 November 1947, most certainly under order from London, he handed over the entire area to Pakistan.

Some may ask: Was the British Army Headquarter in Pakistan informed?

At the time, the entire Pakistani Army hierarchy was British. So, the answer can only be that Maj Brown's British bosses were aware of his 'gift' to Pakistan. The fact that he was appointed to the OBE is further proof. The King does not usually appoint 'deserters' or 'rebels' to the august Order.

Even today, this has serious implications for India. The UN resolutions of 17 January 1948, and 13 August 1948, and 5 January 1949, (UNCIP Resolutions) make it clear that "Pakistan cannot claim to exercise sovereignty in respect of J&K”.

It also means that the agreement signed on 2 March 1963, between Pakistan and China about the Shaksgam Valley of the Gilgit Agency being transferred to China is legally invalid. In 1963, a secret note prepared by the MEA’s Historical Division mentioned that “any such agreement will be ab initio illegal and invalid and will not bind India in any respect.”

The note observed that the preamble states that the parties have agreed to formally delimit and demarcate the boundary between Xinjiang and the contiguous areas of Pakistan; the latter based her right on the fact that these areas were under her ‘actual control’.

However, as the Indian note explained: “Under international law, the right of entering into treaties and agreements is an attribute of sovereignty. Furthermore, a sovereign cannot presume to exercise sovereign functions in respect of territory other than its own. Having regard to the UN resolutions of 17 January 1948 and 13 August 1948 and 5 January 1949 (UNCIP Resolutions) it is clear that Pakistan cannot (and does not) claim to exercise sovereignty in respect of J&K.”

The Historical Division commented further on Pakistan’s mala fide intent: “The conclusion of this ‘Agreement’ amounts to compromising the sovereignty of the state of J&K, which Pakistan has no business to do; even though Article 6 of the agreement includes provision for its renegotiation after the final settlement of the Kashmir question.”

Amazingly, in 2017, the British Parliament passed a resolution confirming that Gilgit-Baltistan was a part of Jammu and Kashmir. The motion was tabled on 23 March 2017, by Bob Blackman of the Conservative Party. It reads: "Gilgit-Baltistan is a legal and constitutional part of the state of Jammu and Kashmir, India, which is illegally occupied by Pakistan since 1947, and where people are denied their fundamental rights including the right of freedom of expression."

It is time for the MEA to publish a White Paper on the background of GB’s accession to India and make it widely known, including in Beijing.

The writer is a noted author, journalist, historian, Tibetologist and China expert. The views expressed are personal.

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