{"id":9602,"date":"2022-02-26T14:25:41","date_gmt":"2022-02-26T19:25:41","guid":{"rendered":"https:\/\/journals.law.harvard.edu\/ilj\/?p=9602"},"modified":"2023-09-29T19:06:07","modified_gmt":"2023-09-29T23:06:07","slug":"falling-through-the-cracks-kashmirs-resistance-against-settler-colonialism-and-the-limits-of-international-law","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/ilj\/2022\/02\/falling-through-the-cracks-kashmirs-resistance-against-settler-colonialism-and-the-limits-of-international-law\/","title":{"rendered":"Falling Through the Cracks: Kashmir\u2019s Resistance Against Settler Colonialism and the Limits of International Law"},"content":{"rendered":"
Shaiba Rather*<\/strong><\/a><\/h6>\n

[Click here for PDF]<\/strong><\/a><\/p>\n

This Note centers Kashmir as a case study to illuminate the ways in which the law can and cannot offer respite for those in settler colonial regimes. In particular, it highlights how the international community has failed to accept Kashmir as under occupation and thus refused to extend the protections of jus in bello to its civilians.\u00a0 While Kashmiris have been pushed out of the protections from international law in the past, this Note presents settler colonialism as an analytical lens that can potentially offer respite. It acknowledges that international law does not explicitly prohibit settler colonial conduct but highlights how advocates can couple their \u201clegal work\u201d with the rights that are established in international law to build their own opportunities for relief outside of the law. This piece provides two contributions to existing literature: it advances the very limited discussion of the international law of settler colonialism and strengthens the current understanding of the modes of oppression that exist in Kashmir.<\/p>\n

Introduction<\/strong><\/h1>\n

On December 14, 1960, the U.N. General Assembly issued a solemn proclamation in Resolution 1514: that the \u201cspeedy and unconditional end [to] colonialism in all its forms and manifestations\u201d was a \u201cnecessity.\u201d[1]<\/sup><\/strong><\/a> For the \u201csubjection of peoples to alien subjugation, domination and exploitation constitutes a denial of fundamental human rights, [was and is] contrary to the Charter of the United Nations and [was and is] an impediment to the promotion of world peace and co-operation.\u201d[2]<\/sup><\/strong><\/a> It was this proclamation that the global community fondly remembers as the start of the decolonization era. Despite the moment\u2019s grandeur, the modern global political climate suggests that this declaration from 1960 was far too ambitious and perhaps altogether deceptive. Traditional colonial empires superficially collapsed. But their undercurrents\u2014the need to dominate the \u201cother\u201d\u2014lingered. The result was that colonialism of the past did not crumble but instead persisted, evolved, and re-clothed itself in nations both new and old.<\/p>\n

Settler colonialism is the General Assembly Resolution 1514\u2019s modern enemy. Settler colonialism is premised on the state\u2019s recruitment of a class of settlers whose goal is to not only occupy the land of the Indigenous but also to eliminate the Indigenous who stand in their way.[3]<\/sup><\/strong><\/a> Settler colonialism and colonialism are distinct, yet intertwined, modes of oppression. While colonizers say, \u201cyou, work for me,\u201d settler colonizers say, \u201cyou, go away.\u201d[4]<\/sup><\/strong><\/a> Still, at the core of both projects are migration and a relationship of ascendency.[5]<\/sup><\/strong><\/a><\/p>\n

Since 1960, settler colonialism has wreaked havoc on a number of global communities: from Indigenous people across the Americas, New Zealand, and Australia,[6]<\/sup><\/strong><\/a> to the Palestinians.[7]<\/sup><\/strong><\/a> And unfortunately, the global expanse of settler colonial forces has not slowed down. With the 2019 abrogation of Jammu and Kashmir\u2019s semi-autonomous status in India, some scholars now fear that India\u2019s relationship with the region has transitioned into a fully settler colonial one. Some, as I have previously argued,[8]<\/sup><\/strong><\/a> contend that settler colonialism narratives in Kashmir have persisted since well before the abrogation.\u00a0 Regardless of the starting point of India\u2019s settler colonial project in Kashmir, the fears for the future are the same: that India will recruit a class of non-Kashmiri settlers to change the predominantly Muslim demographic of the region.<\/p>\n

This Note centers Kashmir as a case study to illuminate the ways in which the law can and cannot offer respite for those in settler colonial regimes. Given a settler state\u2019s interest in preserving itself, domestic law\u2019s use as a shield appears unlikely.[9]<\/sup><\/strong><\/a> This piece thus asks: What, if anything, can we make of international law?<\/p>\n

After presenting context on the situation in Jammu and Kashmir in Part I, Part II discusses the ways international law has failed the region in the past. In particular, it highlights how the international community has failed to accept Kashmir as under occupation and has thus failed to extend the protections of jus in bello to its civilians. This Note then proceeds in Part III to present the settler colonialism framework as one that can potentially offer respite for Kashmiris outside of the traditional jus in bello framework. \u00a0Although literature on the subject remains limited, the approach offered by Professor Natsu Taylor Saito is a helpful starting point for understanding what tools currently exist in international law. In the final Part, this Note examines the strengths and weaknesses of the existing international legal framework on settler colonialism. While it acknowledges that international law does not explicitly prohibit settler colonial conduct, it recognizes that advocates can couple their \u201clegal work\u201d with the rights established in international law to build their own opportunities for relief outside of the law.<\/p>\n

I. The Legacy of Partition<\/strong><\/h1>\n

In August 1947, the Indian subcontinent comprised not only the familiar nations of India and Pakistan but also more than 500 \u201cprincely states\u201d foreign to modern maps.[10]<\/sup><\/strong><\/a> The princely system relied on nested sovereignty, where princes exercised near-autonomy while still heeding the title of the British monarchy.[11]<\/sup><\/strong><\/a> Each chiefdom confronted a challenging question with the onset of 1947: How would, and should, their future manifest in a free Indian subcontinent?<\/p>\n

For the majority of the princely states, the answer to this question was bifurcated: join Pakistan or India.[12]<\/sup><\/strong><\/a> Although the Viceroy of India Lord Mountbatten successfully persuaded nearly all of the princely states to align based on geography or religious demography, three states remained unfettered. Of these three, the snow-capped, Himalayan-crested state of Kashmir stood tall.<\/p>\n

At the time, the state of Jammu and Kashmir neared the physical size of the United Kingdom and had a population of just over four million people.[13]<\/sup><\/strong><\/a> The region was culturally and topographically heterogenous, including what is now the predominantly Hindu low-hilled region of Jammu, the majority Muslim Valley of Kashmir, and the Buddhist dominated high-peaked Ladakh.[14]<\/sup><\/strong><\/a> What could have been three distinct states in and of themselves were unified under the regime of Dogra Rajput, a clan who stretched the state\u2019s borders from Afghanistan to Tibet.[15]<\/sup><\/strong><\/a> Together, the heterogenous region was a notable powerhouse in the subcontinent. Prized for its naturally rich land and strategic geographic location,[16]<\/sup><\/strong><\/a> Kashmir captured the interest of both the infantile India and Pakistan.<\/p>\n

However, Kashmir did not fit neatly into the framework for alignment.[17]<\/sup><\/strong><\/a> The state was not only predominantly Muslim yet ruled by a Hindu king, Maharaja Hari Singh, but also uniquely abutted both Indian and Pakistani frontiers.[18]<\/sup><\/strong><\/a> The King\u2019s own preference for an independent Kashmir only further muddled the region\u2019s future.[19]<\/sup><\/strong><\/a> Thus, when confronted with the question of accession, the Maharaja opted instead for a \u201cstandstill agreement,\u201d leaving Kashmir with free movement and transport across both India and Pakistan without ceding any sovereignty.[20]<\/sup><\/strong><\/a><\/p>\n

What comes next remains as disputed as Kashmir\u2019s present-day story. What is clear however is that the so-called standstill did not last very long. The agreed upon facts are the following: in October 1947, a mass of armed men invaded the region from the north, made their way to the capital, and launched an invasion of an ill-defended Kashmir.[21]<\/sup><\/strong><\/a> Unsettled still, and hotly debated, is why and how these raiders came to Kashmir.[22]<\/sup><\/strong><\/a> Some accounts characterize the invasion as Pakistani-orchestrated to secure Kashmir; others present an independent group rushing to save subjugated Muslims suffering under an oppressive Hindu rule in Kashmir.[23]<\/sup><\/strong><\/a> Regardless, the invasion forced Maharaja Singh\u2019s hand\u2014fearing for his ill-equipped state army, he turned to India for defensive support. India conditioned its support on Kashmir signing the Instrument of Accession, and the Maharaja agreed.[24]<\/sup><\/strong><\/a> Critical to that signing, however, was an agreement between Lord Mountbatten and Maharaja Singh that although India would provide Kashmir with military aid given the invasion, \u201cas soon as law and order have been restored in Kashmir and her soil cleared of the invader, the question of the State\u2019s accession should be settled by a reference to the people.\u201d[25]<\/sup><\/strong><\/a><\/p>\n

Despite assurances for a plebiscite from the Viceroy and later, the United Nations,[26]<\/sup><\/strong><\/a> such an inquiry never took place. Instead, select Kashmiri political leaders continued their negotiations with the Indian national government, eventually crafting Article 370 of the Indian Constitution in 1950.<\/p>\n

Article 370 crystallized Kashmir\u2019s uniquely semi-autonomous status. Notably, Article 370 curtailed the application of the Indian Constitution and the national government\u2019s powers to the domains specified in the Instrument of Accession: defense, external affairs, and communication.[27]<\/sup><\/strong><\/a> While it allowed for other constitutional provisions to discretionarily apply to Kashmir, it required not just the President\u2019s notification but critically the approval from the \u201cConstituent Assembly of the State.\u201d[28]<\/sup><\/strong><\/a> Similarly, Article 370 could only be deemed inoperative with the state assembly\u2019s recommendation.[29]<\/sup><\/strong><\/a> It was with the powers vested in Article 370 that Kashmir adopted Article 35A to the Indian Constitution,[30]<\/sup><\/strong><\/a> which empowered the state legislature to both define the \u201cpermanent residents\u201d of the state and attach specific privileges, like the ownership of land, to such residency.[31]<\/sup><\/strong><\/a><\/p>\n

The region\u2019s autonomy grew beyond Article 370, manifesting in the terms of its own state Constitution as well.[32]<\/sup><\/strong><\/a> These terms included the creation of Kashmir\u2019s own Prime Minister-ship and a unique state flag.[33]<\/sup><\/strong><\/a> Ultimately, Kashmir\u2019s legal regime empowered it to block the application of federal legislation in its own boundaries, limit the ownership of land to Kashmiri natives, and safeguard its Muslim majority demographic.[34]<\/sup><\/strong><\/a><\/p>\n

However, Kashmir\u2019s promised autonomy was whittled to a legal fiction. From the reduction of Kashmir\u2019s Prime Minister to a Chief Minister to the extension of a majority of the articles of the Indian Constitution to the state,[35]<\/sup><\/strong><\/a> Article 370 was more a symbol of Kashmir\u2019s desired sovereignty than the sword championing it. This whittled autonomy, apexed by the Indian-rigged state elections in 1989,[36]<\/sup><\/strong><\/a> amplified a Kashmiri freedom struggle that had existed even before Partition.[37]<\/sup><\/strong><\/a> However, it also launched an intense counter-insurgency strategy from the Indian state, one which was facilitated by the deployment of hundreds of thousands of troops that secured Kashmir\u2019s title as one of the most densely militarized zones in the world.[38]<\/sup><\/strong><\/a><\/p>\n

Almost two years ago, the Indian government delivered its final blow to Kashmir\u2019s autonomy. On August 5th, 2019, the Indian government\u2014under the leadership of the Bharatiya Janata Party (BJP)\u2014abrogated Articles 370 and 35A of the Indian Constitution.[39]<\/sup><\/strong><\/a> This legal strike was not without an Indian-orchestrated brutal crackdown in Kashmir, including but not limited to: enforcing a curfew, blockading communications arbitrarily detaining civilians, limiting civilian access to basic necessities like medical care, disappearing civilians, and conducting torture and extrajudicial killings.[40]<\/sup><\/strong><\/a> The move both eliminated the region\u2019s status as a state and overturned provisions that shielded Kashmir from land purchases made by non-Kashmiris. Post August 5th, Jammu and Kashmir was officially \u201cfor sale\u00a0.\u00a0.\u00a0.\u00a0.\u201d[41]<\/sup><\/strong><\/a><\/p>\n

II. Kashimir\u2019s History with International Law<\/strong><\/h1>\n

The Third World Approaches to International Law (TWAIL) have highlighted international law\u2019s impotence writ large. In particular, the school has critiqued the regime for its dubious origins: colonialism.[42]<\/sup><\/strong><\/a> Core to states\u2019 imperial project and thus the creation of international law was a \u201ccivilizing mission,\u201d where states justified their casting aside of \u201cthe other.\u201d[43]<\/sup><\/strong><\/a> This dynamic has only been reproduced in a \u201csupposedly non-imperial world\u201d and its international order.[44]<\/sup><\/strong><\/a> The result\u2014as seen by TWAIL scholars\u2014is that international law is strapped by the sovereignty doctrine, where \u201cstates are the principal actors . . . bound only by that to which they have consented.\u201d[45]<\/sup><\/strong><\/a><\/p>\n

The primacy of state sovereignty has been at the root of Kashmir\u2019s tortured history with international law. Following the 1947 invasion, Kashmir was the first inter-state conflict discussed at the United Nations Security Council (UNSC).[46]<\/sup><\/strong><\/a> Brought through Article 35 of the UN Charter, India sought the aid of the UNSC in enforcing the withdrawal of Pakistani troops from \u201ca State which acceded to the Dominion of India.\u201d[47]<\/sup><\/strong><\/a> Pakistan responded with its own counter-claims, accusing India of waging a genocide against Muslims in parts of India and forcing Kashmir\u2019s accession by fraud and violence.[48]<\/sup><\/strong><\/a> Pakistan made a number of requests of the UNSC, but of note, it asked that the UNSC coordinate a cessation of fighting, ordering the withdrawal of outsiders in Kashmir, and hold a plebiscite in Kashmir \u201cas to whether the State shall accede to Pakistan or to India.\u201d[49]<\/sup><\/strong><\/a> Thus, in the aftermath of decolonization, Kashmir was not its own sovereign but rather the home to a \u201cdispute\u201d[50]<\/sup><\/strong><\/a> between warring India and Pakistan.<\/p>\n

From 1948 to 1971, the UNSC issued a series of increasingly watered-down resolutions on Kashmir.[51]<\/sup><\/strong><\/a> What began as a firm call for a \u201cfree and impartial plebiscite\u201d[52]<\/sup><\/strong><\/a> ended with a jockey game between India and Pakistan over who erred first.[53]<\/sup><\/strong><\/a> Although the \u201cIndia-Pakistan Question\u201d remains on the UNSC agenda as a matter of which the \u201cSecurity Council [is] currently seized,\u201d[54]<\/sup><\/strong><\/a> it functions as nothing more than a placeholder. The \u201cKashmir dispute\u201d is at best a bilateral issue and at worst, an internal one.[55]<\/sup><\/strong><\/a> To this day, no plebiscite has taken place.<\/p>\n

Kashmir\u2019s frayed relationship with international law does not stop with hollowed UNSC resolutions. Despite scholars robustly arguing for the application of the law of occupation to Kashmir,[56]<\/sup><\/strong><\/a> the international community has resisted such a classification. As Critical Kashmir Studies scholar Haley Duschinski explains, the stopping block is typically Kashmir\u2019s partition history.[57]<\/sup><\/strong><\/a> Those unwilling to apply the occupation law reason that Kashmir, by way of signing the Instrument of Accession, is integral to the territory of the Indian state.[58]<\/sup><\/strong><\/a><\/p>\n

The denial of the application of international humanitarian law to Kashmir has been a large blow to its freedom struggle generally. The benefits of this regime are clear: unlike other areas of international law, the rules are bright lined and concretized.[59]<\/sup><\/strong><\/a> Without the recognition of the unlawful occupation of Kashmiri soil, India has been able to portray a different narrative on the ground. The intense military presence in Kashmir does not represent occupying powers but rather components of a necessary counter-insurgency strategy. Likewise, the use of force to suppress unrest is, once again, an internal matter rather than one of international import.\u00a0 India, like other states, has resisted any classification as an occupying force and instead, has promoted what some scholars call a de facto occupational constitutionalism<\/em>, where foreign dominance and control are legalized through domestic mechanisms.[60]<\/sup><\/strong><\/a> As a result, international law has largely left Kashmiris to fend for themselves within the bounds of the Indian state.<\/p>\n

III. International Law\u2019s Existing Tools Against Settler Colonialism<\/strong><\/h1>\n

The lens of settler colonialism can shift the focus from Kashmir\u2019s debated accession history to the less disputed threat to their land and people. Thus, where occupation law falters, the lens of settler colonialism can supplant. The question then arises\u2014where are such protections in international law?<\/p>\n

Unfortunately, articles discussing the protective value of international law in settler colonial regimes are limited. However, Professor Natsu Taylor Saito has discussed the application of international law as it relates to the settler colonial projects waged against Indigenous persons and people of color in the United States.[61]<\/sup><\/strong><\/a> This part builds on her analysis in the context of the Kashmiri struggle in India. Ultimately, international law, as it currently exists, does not prohibit \u201csettler colonialism\u201d by name. Yet, it does supply key legal principles that offer protections more expansive than those that typically exist within a nation. This part turns to a number of different areas of international law\u2014first, key framing principles; then, the rights of the Indigenous; and finally, the right to self-determination\u2014to present the existing tools available to those colonized in settler regimes today.<\/p>\n

A. Framing principles<\/em><\/strong><\/h2>\n

Human rights law operates with two key principles in the background: the preservation of human dignity and the prohibition on discrimination. Human dignity is often recognized as a precursor to the realization of other rights.[62]<\/sup><\/strong><\/a> This principle strikes at the core of the settler regime: \u201cthe coercive rule of one or the few over the many is incompatible with a due respect for the dignity of the person.\u201d[63]<\/sup><\/strong><\/a><\/p>\n

International law explicitly creates a prohibition on discrimination and reaffirms that prohibition across conventions.[64]<\/sup><\/strong><\/a> In particular, the two core human rights treaties, the International Covenant on Civil and Political Rights (ICCPR)[65]<\/sup><\/strong><\/a> and the International Covenant on Economic, Social and Cultural Rights (ICESCR)[66]<\/sup><\/strong><\/a> bind India on this front by way of ratification.[67]<\/sup><\/strong><\/a> The anti-discrimination right extends to a broad category of persons.[68]<\/sup><\/strong><\/a> The ICCPR even goes so far as to enshrine rights protecting against the forced assimilation of minorities,[69]<\/sup><\/strong><\/a> reflecting concerns over erasure. More simply, the principle of anti-discrimination fights the creation of the Indigenous other.[70]<\/sup><\/strong><\/a><\/p>\n

B. Rights of Indigenous Peoples<\/em><\/strong><\/h2>\n

Following several decades of robust advocacy, the UN passed the Declaration on the Rights of Indigenous Peoples (UNDRIP),[71]<\/sup><\/strong><\/a> which received India\u2019s vote.[72]<\/sup><\/strong><\/a> While there is no authoritative definition of Indigenous populations in international law, the Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minorities proposed the following indicators for indigeneity: historical continuity; distinctiveness; non-dominance; and a determination to pass their ancestral territories and culture to future generations.[73]<\/sup><\/strong><\/a> But above all, \u201cself-identification as Indigenous or tribal\u201d is the fundamental criterion.[74]<\/sup><\/strong><\/a> Kashmiris have not only consistently self-identified as a distinct political entity,[75]<\/sup><\/strong><\/a> but they have also organized around Kashmiriyat<\/em>, a culture which is comprised of a \u201clove of the homeland (kashir<\/em>) and common speech (koshur<\/em>).\u201d[76]<\/sup><\/strong><\/a><\/p>\n

UNDRIP,[77]<\/sup><\/strong><\/a> although a non-binding declaration,[78]<\/sup><\/strong><\/a> rhetorically combats the logic of elimination driving settler colonial projects. It reinforces the right of Indigenous communities to maintain their cultures and prohibits forced assimilation and displacement,[79]<\/sup><\/strong><\/a> both of which, as Saito notes, are powerful for ensuring the protection of Indigenous resources and lands.[80]<\/sup><\/strong><\/a> However, the Declaration is most dilute as it relates to recognizing Indigenous sovereignty\u2014recognizing the explicit right of self-determination for Indigenous people but failing to require the realization of such a right by states.[81]<\/sup><\/strong><\/a><\/p>\n

Although the Indigenous rights framework may not be as comprehensive as the laws of war governing occupation, they are \u201carguably more comprehensive than international legal instruments associated with minorities\u201d[82]<\/sup><\/strong><\/a> and can therefore be an important resource for Kashmiri advocates. However, UNDRIP, notably, is a declaration and not a treaty, thus giving it no binding power under international law. While some persuasive arguments have been made to UNDRIP\u2019s customary, and thus binding status, they are not widely accepted.[83]<\/sup><\/strong><\/a><\/p>\n

C. Right to Self-Determination<\/em><\/strong><\/h2>\n

The right to self-determination\u2014that is the peoples\u2019 right to its own sovereignty\u2014is arguably the most crucial element for release from a settler colonial regime. In some ways, international law has glorified this right the most, with its cardinal articulation as one of the \u201cpurposes\u201d of the UN Charter itself.[84]<\/sup><\/strong><\/a> This purpose was given muster with the passage of the Declaration on the Granting of Independence to Colonial Countries and Peoples, which called for the \u201cthe speedy end [of] colonialism in all<\/em> its forms and manifestations [to be a] necessity.\u201d[85]<\/sup><\/strong><\/a><\/p>\n

This unabashed right to self-determination has narrowed in its scope since the \u201cDecolonization Era.\u201d Today, the right to self-determination is divided into internal and external forms. The more widely applicable form is the internal one, which entails guaranteeing socio-political rights to ensure autonomy for peoples within a state.[86]<\/sup><\/strong><\/a> External self-determination, where the result is the drawing of new international boundaries,[87]<\/sup><\/strong><\/a> has been limited to the extreme cases of \u201calien subjugation\u201d and traditional colonial regimes as they existed in the past.[88]<\/sup><\/strong><\/a> Although some jurists suggest that the right may exist where self-determination is blocked internally,[89]<\/sup><\/strong><\/a> there has been no authoritative interpretation on this matter.<\/p>\n

As a threshold matter, both internal and external rights to self-determination are limited to \u201cpeoples.\u201d Similar to the definition of Indigenous peoples, \u201cpeoples\u201d in the context of self-determination is not defined by an international treaty. It is generally accepted that the \u201cpeoples\u201d determination is both subjective and objective, often including a shared belief in being a unit as well as actually sharing things like race, culture, and ethnicity.[90]<\/sup><\/strong><\/a> In defending themselves from claims to self-determination, settler states typically argue that the population is not a \u201cpeople,\u201d that only geographically distinct territories warrant decolonization, and that, regardless, these matters are internal affairs.[91]<\/sup><\/strong><\/a>\u00a0 However, Saito, by looking at self-determination from the bottom-up, debunks these defenses.[92]<\/sup><\/strong><\/a><\/p>\n

Self-determination is arguably the most crucial element for release from a settler colonial regime. However, its dilution in the law is the product of the tension it straddles. The right to self-determination toes the line between respecting the rights of subjugated people and upsetting uti possidetis juris<\/em>, the preference for the territorial status quo in the name of stability.[93]<\/sup><\/strong><\/a> Notably, and despite this friction, international law still emphasizes that it is only \u201cby virtue of that right [to self-determination]\u201d that other widely accepted human rights can have meaning.[94]<\/sup><\/strong><\/a><\/p>\n

IV. Working for Remedies<\/strong><\/h1>\n

Given international law\u2019s colonial origins,[95]<\/sup><\/strong><\/a> how can we expect the principles laid out above to protect against settler colonial projects? The answer is not an easy one, and it might in fact be we cannot.<\/p>\n

Kashmiris, like many in settler colonial states, are trapped in oppressive domestic regimes. Their oppressor states spin narratives of \u201cinternal affairs,\u201d escaping the protections and limitations of the law of occupation and jus in bello more generally. International legal principles, like the ones above, may dismiss settler conduct as normatively wrong but fail to provide any remedial bite. The result? Kashmiris and those similarly colonized by settler states have fallen through the cracks of international legal regime.<\/p>\n

However, dismissing international law entirely may not be the answer either. While it may be limited due to its origins, the current international legal regime at least evinces this: native peoples combatting settler colonial states are empowered with rights recognized by the international framework. It is a framework that calls for decolonization and recognizes the right to self-determination of peoples. It is one that lifts up the shared culture, identity, and collectively-owned land and calls for their preservation. It is the vesting of these rights that shifts our original question to a more appropriate one\u2014how can Kashmiris use<\/em> these rights to not just resist but launch their decolonization? And perhaps, how can they reimagine<\/em> a new regime altogether?<\/p>\n

Decolonization of settler colonial states requires, then, what Professor Duncan Kennedy initially coined[96]<\/sup><\/strong><\/a> and Professor Noura Erakat later deploys in the context of Palestine,[97]<\/sup><\/strong><\/a> engaging in \u201clegal work.\u201d \u201cLegal work,\u201d at its core, entails an effort on the part of the worker to mold a legal regime to their benefit.[98]<\/sup><\/strong><\/a> At this stage, the existing international principles described above are embedded in a weak enforcement regime with little binding power.[99]<\/sup><\/strong><\/a> But with \u201clegal work,\u201d as Kennedy explains, the worker can \u201ctransform an initial apprehension of what the system of norms requires . . . so that a new apprehension of the system . . . will correspond to the extra-juristic preferences of the interpretive worker.\u201d[100]<\/sup><\/strong><\/a><\/p>\n

While there is no \u201cblueprint\u201d for the decolonization of a settler regime, one thing is clear: it must be crafted from the hands of the oppressed.[101]<\/sup><\/strong><\/a> Kashmiris, by engaging in \u201clegal work\u201d with the principles laid out above, can reinvigorate their struggle at the international stage. For example, by organizing around these rights\u2014of indigeneity and more generally peoplehood\u2014 advocates can better illuminate the parallels between the Kashmiri pro-freedom movement and that of the Palestinians or the Indigenous communities in Australia and New Zealand.[102]<\/sup><\/strong><\/a> Both of the movements have received more concretized legal support in the international order, like large recognition for their independent statehood[103]<\/sup><\/strong><\/a> and the benefits of the passage of UNDRIP respectively. Working within the settler colonialism framework can also shift conversations away from the law of occupation, which the international community has resisted.[104]<\/sup><\/strong><\/a> Principles of indigeneity can instead focus the discussion on the less disputed threat to Kashmiri land and people.<\/p>\n

Activist can utilize these principles to imbue their work with a newfound sense of urgency. Taken to its end, the settler logic warns of a full, physical and violent elimination of the native. It is this elimination that UNDRIP itself explicitly warns and protects against.[105]<\/sup><\/strong><\/a> As a result, the question of genocide\u2014prohibited by international law[106]<\/sup><\/strong><\/a>\u2014lurks behind any discussion of settler colonialism.[107]<\/sup><\/strong><\/a> Kashmir itself is no stranger to these concerns, particularly in the aftermath of the abrogation.[108]<\/sup><\/strong><\/a><\/p>\n

By repositioning itself in the settler colonial narrative, the Kashmiri freedom movement can use the concerns articulated in UNDRIP to illuminate India\u2019s seemingly normal actions as insidious. These principles provide the language for why emerging \u201cneighborhoods\u201d or changes in title may be problematic.[109]<\/sup><\/strong><\/a> Having this language can also illuminate new acts of resistance that may be necessary, like discouraging Indians from buying land in the region[110]<\/sup><\/strong><\/a> or larger Boycott, Divestment and Sanctions movements like in Palestine. Moreover, exposing this urgency\u2014stopping the settler colonial project before it is too late\u2014can itself \u201ccreate[] the imperatives of decolonization.\u201d[111]<\/sup><\/strong><\/a><\/p>\n

Conclusion<\/strong><\/h1>\n

The fight against settler colonialism has been no stranger to the benefits of the \u201clegal work\u201d of the colonized. Indigenous movements have made great strides in decolonizing domestic legal spaces like those in Canada,[112]<\/sup><\/strong><\/a> and pushed international courts, like the Inter-American Court of Human Rights, to recognizing the principality of land to Indigenous communities as a \u201cmaterial and spiritual element.\u201d[113]<\/sup><\/strong><\/a> In fact, it was only from several decades of intense advocacy that UNDRIP was even born.<\/p>\n

Thus, the fact that international law does not itself carry explicit legal remedies may be secondary to the fact that it does<\/em> vest Kashmiris with rights relevant to settler colonial realities. Indigenous communities do in fact have rights recognized by the law. \u201c[T]aking up the struggle for freedom,\u201d particularly around the framework of settler colonialism, is a fundamental way for Kashmiris to \u201cassert [their] international personality,\u201d and more fundamentally, their identity as people protected by international law.[114]<\/sup><\/strong><\/a> Whether India or other settler colonial states heed activism, their sovereignty, \u201cinherent in every people,\u201d will continue to exist regardless of whether India or the international order is willing to recognize them at this moment.[115]<\/sup><\/strong><\/a> Thus, although creating an international legal order that penalizes settler colonial states may require radical reimagination, creating an international legal order that acknowledges the wrongs of a settler regime and vests rights within the wronged requires much less.<\/p>\n

However, as the settler colonized engage in \u201clegal work\u201d to reimagine their own relief, we should ask whether this is how we want our international legal system to operate. Without explicit remedies for settler colonial conduct in existing international law, those suffering under oppressive regimes now have the additional labor of crafting their own relief. They must engage in the legal work while also protecting their culture, their land, and their people. Are these cracks in the international legal system by design? Or the mere reality of true decolonization?<\/p>\n

[1]<\/a> \u00a0\u00a0\u00a0\u00a0 G.A. Res. 1514 (XV) (Dec. 14, 1960).<\/p>\n

[2]<\/a> \u00a0\u00a0\u00a0\u00a0 Id.<\/em><\/p>\n

[3]<\/a>\u00a0\u00a0\u00a0\u00a0\u00a0 See<\/em> Patrick Wolfe, Settler Colonialism and the Elimination of the Native<\/em>, 8 J. Genocide Rsch.<\/span> 387, 388 (2006).<\/p>\n

[4]<\/a> \u00a0\u00a0\u00a0\u00a0 Lorenzo Veracini, Introducing: Settler Colonial Studies<\/em>, 1 Settler Colonial Stud.<\/span> 1, 1 (2011).<\/p>\n

[5]<\/a> \u00a0\u00a0\u00a0\u00a0 Id.<\/em><\/p>\n

[6]<\/a> \u00a0\u00a0\u00a0\u00a0 See generally<\/em> A. Grenfell Price,\u00a0White Settlers and Native Peoples<\/span> (1950) (comparing the effects of white settler colonialism on Indigenous populations of North America, New Zealand, and Australia).<\/p>\n

[7]<\/a>\u00a0\u00a0\u00a0\u00a0\u00a0 See generally<\/em>, e.g.<\/em>, Maxime Rodinson, Israel: A Colonial-Settler State?<\/span> (1973); Nadim N. Rouhana & Areej Sabbagh-Khoury, Settler-Colonial Citizenship: Conceptualizing the Relationship Between Israel and Its Palestinian Citizens<\/em>, 5 Settler Colonial Stud.<\/span> 205 (2015).<\/p>\n

[8]<\/a>\u00a0\u00a0\u00a0\u00a0\u00a0 See <\/em>Note, From Domicile to Dominion: India\u2019s Settler Colonial Agenda in Kashmir<\/em>, 134 Harv. L. Rev.<\/span> 2530 (2021).<\/p>\n

[9]<\/a>\u00a0\u00a0\u00a0\u00a0\u00a0 See<\/em> Natsu Taylor Saito, Settler Colonialism, Race, and the Law<\/span> 167 (Ediberto Roman ed., 2020) (\u201cStates, as political constructs, have little if any incentive to recognize the rights of minority groups or peoples who are colonized, internally or externally.\u201d).<\/p>\n

[10]<\/a>\u00a0\u00a0\u00a0 Ramachandra Guha, India After Gandhi: The History of the World\u2019s Largest Democracy<\/span> 36\u201337 (2008).<\/p>\n

[11]<\/a> \u00a0\u00a0\u00a0 Id.<\/em><\/p>\n

[12]<\/a> \u00a0\u00a0\u00a0 See<\/em> Neera Chandhoke, Contested Secessions: Rights, Self-determination, Democracy, and Kashmir<\/span> 19 (2012).<\/p>\n

[13]<\/a> \u00a0\u00a0\u00a0 See<\/em> Guha<\/span>, supra<\/em> note 10, at 59.<\/p>\n

[14]<\/a> \u00a0\u00a0 See<\/em> id.<\/em> at 37.<\/p>\n

[15]<\/a> \u00a0\u00a0\u00a0 Id.<\/em><\/p>\n

[16]<\/a> \u00a0\u00a0 See<\/em> Chandhoke<\/span>, supra<\/em> note 12.<\/p>\n

[17]<\/a> \u00a0\u00a0\u00a0 See Matthew J. Webb, Escaping History or Merely Rewriting It? The Significance of Kashmir\u2019s Accession to Its Political Future<\/em>, 20 Contemp. S. Asia<\/span> 471, 477 (2012).<\/p>\n

[18]<\/a> \u00a0\u00a0 Guha<\/span>, supra<\/em> note 10, at 60.<\/p>\n

[19]<\/a> \u00a0\u00a0 Id. <\/em>at 64.<\/p>\n

[20]<\/a> \u00a0\u00a0 See<\/em> Webb, supra<\/em> note 17.<\/p>\n

[21]<\/a>\u00a0\u00a0\u00a0\u00a0 The Maharaja\u2019s Letter to the Governor-General of India, Lord Mountbatten (Oct. 26, 1947), reprinted in<\/em> A.G. Noorani, Article 370: A Constitutional History of Jammu and Kashmir<\/span> 41\u201342 (2011).<\/p>\n

[22]<\/a> \u00a0\u00a0 Guha<\/span>, supra<\/em> note 10, at 64\u201365.<\/p>\n

[23]<\/a> \u00a0\u00a0 Id.<\/em><\/p>\n

[24]<\/a> \u00a0\u00a0 Note that the Maharaja\u2019s signing of the Instrument of Accession is also contested, with scholars arguing that the accession was induced through false promises. See, e.g.<\/em>, Chandhoke<\/span>, supra<\/em> note 12, at 101.<\/p>\n

[25]<\/a>\u00a0\u00a0\u00a0 Letters between Lord Mountbatten and Maharaja Singh suggest that although India would aid in Kashmir\u2019s military aid given the invasion, \u201cas soon as law and order have been restored in Kashmir and her soil cleared of the invader, the question of the State\u2019s accession should be settled by a reference to the people.\u201d Letter from Governor-General, India, Delhi, to Maharaja Sahib (Oct. 27, 1947), reprinted in<\/em> Noorani<\/span>, supra<\/em> note 21, at 43 [hereinafter Letter from Governor-General].<\/p>\n

[26]<\/a> \u00a0\u00a0 Infra<\/em> Part II.<\/p>\n

[27]<\/a> \u00a0\u00a0\u00a0 Constitution of India<\/span> art. 370, cl. 1(a)\u2013(b).<\/p>\n

[28]<\/a> \u00a0\u00a0 Id.<\/em> cl. 3.<\/p>\n

[29]<\/a> \u00a0\u00a0 Id<\/em>.<\/p>\n

[30]<\/a> \u00a0\u00a0 Ministry of Law, Constitution (Application to Jammu and Kashmir) Order, 1954, C.O. 48 (Issued on May 14, 1954).<\/p>\n

[31]<\/a>\u00a0\u00a0\u00a0\u00a0 Id.<\/em> pt. 4, cl. (j). Other states in India have similar restrictions on land ownership as described in Vakasha Sachdev, Despite J&K Changes, You Still Can\u2019t Buy Land in These States<\/em>, The Quint<\/span> (Oct. 29, 2020), https:\/\/www.thequint.com\/news\/india\/jammu-kashmir-land-laws-amended-other-states-where-outsiders-cant-purchase-property-himachal-sikkim-arunachal-tribal-areas [https:\/\/perma.cc\/N3ES-U6N9].<\/p>\n

[32]<\/a> \u00a0\u00a0 Constitution of Jammu and Kashmir<\/span> Nov. 17, 1956, arts. 3\u20135.<\/p>\n

[33]<\/a> \u00a0\u00a0 Id. <\/em>arts. 36, 144.<\/p>\n

[34]<\/a> \u00a0\u00a0 Haseeb A. Drabu, Modi\u2019s Majoritarian March to Kashmir<\/em>,\u00a0N.Y. Times<\/span>\u00a0(Aug. 8, 2019), https:\/\/www.nytimes.com\/2019\/08\/08\/opinion\/modis-majoritarian-march-to-kashmir.html [https:\/\/perma.cc\/U9W5-W3ZM].<\/p>\n

[35]<\/a> \u00a0\u00a0 See<\/em> Angana P. Chatterji, Kashmir: A Place Without Rights<\/em>, Just Sec.<\/span> (Aug. 5, 2020), https:\/\/www.justsecurity.org\/71840\/kashmir-a-place-without-rights [https:\/\/perma.cc\/G4EB-8695].<\/p>\n

[36]<\/a> \u00a0\u00a0 See generally<\/em> Sten Widmalm, The Rise and Fall of Democracy in Jammu and Kashmir<\/em>, 37 Asian Surv.<\/span> 1005 (1997) (detailing notable and perceived-as-rigged elections in Kashmir).<\/p>\n

[37]<\/a> \u00a0\u00a0 See generally<\/em> Mridu Rai, Hindu Rulers, Muslim Subjects<\/span> 224\u201387 (2019) (discussing Kashmiri political mobilization against the \u201cHindu State\u201d under the ruling dynasty).<\/p>\n

[38]<\/a> \u00a0\u00a0 See<\/em> Jammu Kashmir Coal. of Civ. Soc\u2019y, Structures of Violence: The Indian State in Jammu and Kashmir<\/span> 36\u201337, 75 (2015).<\/p>\n

[39]<\/a> \u00a0\u00a0 India<\/em> Revokes<\/em> Kashmir\u2019s<\/em> Special<\/em> Status<\/em>, Al Jazeera<\/span> (Sept. 4, 2019), https:\/\/www.aljazeera.com\/news\/2019\/09\/india-revokes-kashmir-special-status-190904143838166.html [https:\/\/perma.cc\/DN2H-FELR].<\/p>\n

[40]<\/a>\u00a0\u00a0\u00a0 See<\/em> Kashmir: Curfew-Like Restrictions Imposed on Movement of People<\/em>, India Today<\/span> (Aug. 5, 2019), https:\/\/www.indiatoday.in\/india\/story\/jammu-and-kashmir-curfew-section-144-imposed-1577218-2019-08-05 [https:\/\/perma.cc\/8LMP-2KAB].<\/p>\n

[41]<\/a> \u00a0\u00a0\u00a0 Omar Abdullah (@OmarAbdullah), Twitter<\/span> (Oct. 27, 2020, 4:06 AM), https:\/\/twitter.com\/OmarAbdullah\/status\/1321015482544054273 [https:\/\/perma.cc\/TSN7-994N].<\/p>\n

[42]<\/a> \u00a0\u00a0 See<\/em> Antony Anghie, Core Imperialism, Sovereignty and the Making of International Law<\/span> 3 (2005).<\/p>\n

[43]<\/a>\u00a0\u00a0\u00a0 Id.<\/em> at 311\u201312.<\/p>\n

[44]<\/a>\u00a0\u00a0\u00a0 Id.<\/em> at 310\u201311.<\/p>\n

[45]<\/a>\u00a0\u00a0\u00a0 Id.<\/em> at 33.<\/p>\n

[46]<\/a>\u00a0\u00a0\u00a0 Rakesh Ankit, Britain and Kashmir, 1948: \u201cThe Arena of the UN\u201d<\/em>, 24 Dipl. & Statecraft<\/span> 273, 273 (2013).<\/p>\n

[47]<\/a>\u00a0\u00a0\u00a0 Stephen P. Westcott, The Case of UN Involvement in Jammu and Kashmir<\/em>, E-Int\u2019l Rels.<\/span> 1, 4 (2020), https:\/\/www.e-ir.info\/pdf\/81046 [https:\/\/perma.cc\/F2SC-DS2S].<\/p>\n

[48]<\/a>\u00a0\u00a0\u00a0 Brian R. Farrell, The Security Council and Kashmir<\/em>, 22 Transnat\u2019l L. & Contemp. Probs.<\/span> 343, 346 (2014).<\/p>\n

[49]<\/a>\u00a0\u00a0\u00a0 Minister of Foreign Affs. of Pakistan, Letter dated Jan. 15, 1948 from the Minister of Foreign Affairs of Pakistan to the Secretary-General, U.N. Doc. S\/646 (Jan. 15, 1948).<\/p>\n

[50]<\/a>\u00a0\u00a0\u00a0 S.C. Res. 39 (Jan. 20, 1948).<\/p>\n

[51]<\/a>\u00a0\u00a0\u00a0\u00a0 See generally<\/em> Farrell,\u00a0supra <\/em>note 48 (for a detailed history of Security Council action on Kashmir).<\/p>\n

[52]<\/a>\u00a0\u00a0\u00a0 S.C. Res. 47 (Apr. 21, 1948).<\/p>\n

[53]<\/a>\u00a0\u00a0\u00a0 See <\/em>Farrell,\u00a0supra <\/em>note 48, at 354\u201355.<\/p>\n

[54]<\/a>\u00a0\u00a0\u00a0 Ghulam Nabi Fai, Kashmir and the UN Security Council<\/em>, Anadolu Agency<\/span> (Sept. 12, 2020), https:\/\/www.aa.com.tr\/en\/analysis\/kashmir-and-the-un-security-council\/1971039 [https:\/\/perma.cc\/N4BJ-3L29].<\/p>\n

[55]<\/a>\u00a0\u00a0\u00a0 Geeta Mohan, Kashmir a bilateral issue, India tells US after Trump offers help<\/em>, India Today<\/span> (Jan. 22, 2020), https:\/\/www.indiatoday.in\/india\/story\/kashmir-a-bilateral-issue-india-tells-us-after-trump-offers-help-1639126-2020-01-22 [https:\/\/perma.cc\/YC3P-6SXU].<\/p>\n

[56]<\/a>\u00a0\u00a0\u00a0 See generally <\/em>Nosheen Ali et al., Geographies of Occupation in South Asia<\/em>, 45 Feminist Stud.<\/span> 574 (2019); Mona Bhan et al., \u201cRebels of the Streets\u201d: Violence, Protest, and Freedom in Kashmir<\/em>, in<\/em> Resisting Occupation in Kashmir<\/span> 1, 5 (Haley Duschinski et al. eds., 2019); Haley Duschinski & Shrimoyee Nandini Ghosh, Constituting the Occupation: Preventive Detention and Permanent Emergency in Kashmir<\/em>, 49 J. Legal Pluralism & Unofficial L.<\/span> 314 (2017).<\/p>\n

[57]<\/a>\u00a0\u00a0\u00a0 Duschinski & Ghosh, supra <\/em>note 56, at 315\u201316.<\/p>\n

[58]<\/a>\u00a0\u00a0\u00a0 Id.<\/em><\/p>\n

[59]<\/a>\u00a0\u00a0\u00a0 See<\/em> Breven C. Parsons, Moving the Law of Occupation into the Twenty-First Century<\/em>, 57 Naval L. Rev.<\/span> 1, 5\u20138 (2009) (discussing the law of occupation\u2019s robust treaty framework but noting how it\u2019s been practically undermined).<\/p>\n

[60]<\/a>\u00a0\u00a0\u00a0 Duschinski & Ghosh, supra <\/em>note 56, at 318.<\/p>\n

[61]<\/a>\u00a0\u00a0\u00a0 See generally<\/em> Saito<\/span>, supra<\/em> note 9.<\/p>\n

[62]<\/a> \u00a0\u00a0 See<\/em> International Covenant on Civil and Political Rights, preamble, Dec. 16, 1966, 999 U.N.T.S. 171 [hereinafter ICCPR]; International Covenant on Economic, Social, and Cultural Rights, preamble, Dec. 16, 1966, 993 U.N.T.S. 3 [hereinafter ICESCR] (\u201c[R]ecognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.\u201d).<\/p>\n

[63]<\/a> \u00a0\u00a0 Oscar Schachter, Human Dignity as A Normative Concept<\/em>, 77 Am. J. Int\u2019l L.<\/span> 848, 850 (1983).<\/p>\n

[64]<\/a> \u00a0\u00a0 See <\/em>U.N. Charter art. 1(3); ICCPR, arts. 2, 7; ICESCR, art. 2(2).<\/p>\n

[65]<\/a> \u00a0\u00a0 ICCPR, arts. 2(1), 26.<\/p>\n

[66]<\/a> \u00a0\u00a0 ICESCR, art. 2(2).<\/p>\n

[67]<\/a> \u00a0\u00a0 Ratification Status for India<\/span>, https:\/\/tbinternet.ohchr.org\/_layouts\/15\/TreatyBodyExternal\/Treaty.aspx?CountryID=79&Lang=EN [https:\/\/perma.cc\/9BZZ-M8VW] (last visited May 2, 2021).<\/p>\n

[68]<\/a> \u00a0\u00a0 ICCPR, art. 26 (protecting \u201cdiscrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.\u201d)<\/p>\n

[69]<\/a> \u00a0\u00a0 ICCPR, art. 27 (\u201cIn those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.\u201d)<\/p>\n

[70]<\/a> \u00a0\u00a0 See<\/em> Veracini, supra <\/em>note 4, at 2.<\/p>\n

[71]<\/a> \u00a0\u00a0\u00a0 G.A. Res. 61\/295, United Nations Declaration on the Rights of Indigenous Peoples (Sep. 13, 2007) [hereinafter UNDRIP].<\/p>\n

[72]<\/a> \u00a0\u00a0 Ratification Status for India<\/span>, supra<\/em> note 67.<\/p>\n

[73]<\/a> \u00a0\u00a0 Jos\u00e9 R. Martinez Cobo (Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Prot. of Minorities), Study of the Problem of Discrimination Against Indigenous Populations<\/em>, U.N. Doc. E\/CN.4\/Sub.2\/1986\/7 and Adds. 1\u20134 (1987).<\/p>\n

[74]<\/a> \u00a0\u00a0 ILO Convention (No. 169) concerning Indigenous and Tribal Peoples Convention in Independent Countries, art. 1(2), June 27, 1989, 1650 U.N.T.S. 383.<\/p>\n

[75]<\/a> \u00a0\u00a0 Rattan Lal Hangloo, Kashmiriyat: The voice of the past misconstrued<\/em>, in<\/em> The Parchment of Kashmir<\/span> 28 (N. Khan ed., 2012) (citing the use of revolutionary phrases \u2014 \u201cchoun desh meun desh, Koshur Desh! Koshur Desh! (Your country, my country, Kashmir! Our country, Kashmir!)\u201d \u2014 well before 1975).<\/p>\n

[76]<\/a> \u00a0\u00a0 Id.<\/em> at 38.<\/p>\n

[77]<\/a> \u00a0\u00a0 UNDRIP, arts. 5, 8\u201315.<\/p>\n

[78]<\/a> \u00a0\u00a0 While some persuasive arguments have been made to UNDRIP\u2019s customary, and thus binding status, they are not yet widely accepted. See<\/em> Office of the High Commissioner, Indigenous Peoples and the United Nations Human Rights System<\/span> 8 (2013), https:\/\/www.ohchr.org\/documents\/publications\/fs9rev.2.pdf [https:\/\/perma.cc\/JLK8-3WGF].<\/p>\n

[79]<\/a>\u00a0\u00a0\u00a0 UNDRIP, arts. 5, 8\u201315.<\/p>\n

[80]<\/a>\u00a0\u00a0\u00a0 See<\/em> Saito<\/span>, supra<\/em> note 9, at 173. The Inter-American Court of Human Rights has also stressed the importance of protecting Indigenous land in particular, noting that: \u201crelations to the land are not merely a matter of possession and production but a material and spiritual element.\u201d Mayagna (Sumo) Awas Tingni Community v. Nicaragua, Merits, Reparations, and Costs, Judgement, Inter-Am. Ct. H.R. (ser. C) No. 79, \u00b6 149 (Aug. 31, 2001).<\/p>\n

[81]<\/a>\u00a0\u00a0\u00a0 UNDRIP, arts. 3\u20134.<\/p>\n

[82]<\/a> \u00a0\u00a0 See<\/em> Office of the High Commissioner<\/span>, supra<\/em> note 78, at 3.<\/p>\n

[83]<\/a> \u00a0\u00a0 Id.<\/em> at 8.<\/p>\n

[84]<\/a> \u00a0\u00a0 U.N. Charter art. 1(2).<\/p>\n

[85]<\/a>\u00a0\u00a0\u00a0 The UN Charter includes guaranteeing respect for the \u201cself-determination of peoples\u201d as one of the UN\u2019s core \u201cpurposes.\u201d G.A. Res. 1514 (XV), supra<\/em> note 1, preamble (emphasis added).<\/p>\n

[86]<\/a> \u00a0\u00a0 Reference re Secession of Quebec, [1998] 2 S.C.R. 217, \u00b6\u00b6 130\u2013135 (Can.).<\/p>\n

[87]<\/a> \u00a0\u00a0 G.A. Res. 2625 (XXV) (Oct. 24, 1970).<\/p>\n

[88]<\/a> \u00a0\u00a0 Reference re Secession of Quebec, [1998] 2 S.C.R. 217, \u00b6 136.<\/p>\n

[89]<\/a> \u00a0\u00a0 Id<\/em>. at \u00b6 134; Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, 2010 I.C.J. 403, 618, \u00b6 16 (July 22) (separate opinion of Yusuf, J.).<\/p>\n

[90]<\/a> \u00a0\u00a0 Michael P. Scharf, Earned Sovereignty: Judicial Underpinnings<\/em>, 31 Denv. J. Int\u2019l L. & Pol\u2019y<\/span> 373, 373\u201379 (2003).<\/p>\n

[91]<\/a> \u00a0\u00a0 See<\/em> Saito<\/span>, supra<\/em> note 9, at 192\u201393.<\/p>\n

[92]<\/a> \u00a0\u00a0 See id<\/em>. at 193 (highlighting five principles: \u201cTerritorial integrity is a legal fiction;\u201d \u201cPeoplehood is constructed and defined by the people, not the state;\u201d \u201cSelf-determination cannot be constrained by a paradigm of \u201cuniversal\u201d rights;\u201d \u201cStates are not the only viable forms of political organization;\u201d \u201cSelf-determination is a process and a continuing right.\u201d).<\/p>\n

[93]<\/a> \u00a0\u00a0 Frontier Dispute (Burk. Faso\/Mali), 1986 I.C.J. 554, \u00b6\u00a020 (Dec. 22); see also id.<\/em> \u00b6\u00b6\u00a025\u201326 (\u201cAt first sight [uti possidetis juris] conflicts outright with another one, the right of peoples to self-determination.\u201d).<\/p>\n

[94]<\/a>\u00a0\u00a0\u00a0 ICCPR, art. 1; ICESCR, art. 1.<\/p>\n

[95]<\/a> \u00a0\u00a0 See<\/em> Anghie<\/span>, supra<\/em> note 42, at 5\u20136.<\/p>\n

[96]<\/a> \u00a0\u00a0 Duncan Kennedy, A Left Phenomenological Alternative to the Hart\/Kelsen Theory of Legal Interpretation<\/em>, in<\/em> Legal Reasoning, Collected Essays<\/span> 158 (2008).<\/p>\n

[97]<\/a> \u00a0\u00a0 See <\/em>Noura Erakat, Justice for Some<\/span> 7 (2019).<\/p>\n

[98]<\/a> \u00a0\u00a0 See <\/em>Kennedy, supra <\/em>note 96.<\/p>\n

[99]<\/a> \u00a0\u00a0 See<\/em> Daryl J. Levinson & Jack L. Goldsmith, Law for States: International Law, Constitutional Law, Public Law<\/em>, 122 Harv. L. Rev.<\/span> 1791, 1822\u201323 (2009).<\/p>\n

[100]<\/a> \u00a0 Kennedy, supra <\/em>note 96.<\/p>\n

[101]<\/a> \u00a0 See<\/em> Saito<\/span>, supra<\/em> note 9, at 202.<\/p>\n

[102]<\/a> \u00a0 Stand with Kashmir, a prominent group of Kashmiri activists, protested with the First Nations peoples of Australia to \u201cstand against the devastation and lasting impact of settler colonialism on Indigenous communities.\u201d Stand with Kashmir, Facebook<\/span> (Jan. 28, 2021, 11:27 AM), https:\/\/www.facebook.com\/StandWithKashmir\/posts\/2183498138449673 [https:\/\/perma.cc\/GJE9-EKSF]. While they mention settler colonialism, concretizing that framework through the law, as this Note attempts, can embolden their case and highlight the parallels for the international community.<\/p>\n

[103]<\/a> \u00a0 139 UN members recognize Palestine as an independent state. See<\/em> Permanent Observer Mission of The State of Palestine to the United Nations New York<\/span>, https:\/\/palestineun.org\/about-palestine\/diplomatic-relations\/<\/u> [https:\/\/perma.cc\/R84M-MU9D] (last visited Jan. 15, 2021).<\/p>\n

[104]<\/a> \u00a0 Those unwilling to apply the occupation law reason that Kashmir, by way of signing the Instrument of Accession, is integral to the territory of the Indian state. See<\/em> Bhan et al., supra<\/em> note 56 at 315\u201316.<\/p>\n

[105]<\/a> \u00a0 UNDRIP, art. 7.<\/p>\n

[106]<\/a> \u00a0 Convention on the Prevention and Punishment of the Crime of Genocide, art. 2, Dec. 9, 1948, 78 U.N.T.S. 277.<\/p>\n

[107]<\/a> \u00a0 See<\/em> Wolfe, supra<\/em> note 3, at 387.<\/p>\n

[108]<\/a> \u00a0 See<\/em> Gregory Stanton, Genocide Alert for Kashmir, India<\/em>, Genocide Watch<\/span> (Aug. 15, 2019), https:\/\/www.genocidewatch.com\/single-post\/2019\/08\/15\/genocide-alert-for-kashmir-india [https:\/\/perma.cc\/9M89-JUGK].<\/p>\n

[109]<\/a> \u00a0 See<\/em> Veracini, supra<\/em> note 4, at 31 (\u201cThis is why merely calling settlements \u2018neighborhoods\u2019 or \u2018communities\u2019 and ensuring that settlements look like neighborhoods can never be enough. The necessary normalization cannot proceed unless these \u2018neighborhoods\u2019 become fully integrated in their surroundings and the relationship of opposition between settler and Indigenous collectives is erased or superseded, which for the reasons noted above is not possible.\u201d)<\/p>\n

[110]<\/a> \u00a0 Kashmir for Kashmiris<\/em>, Stand with Kashmir<\/span>, https:\/\/www.standwithkashmir.org\/kashmir-for-kashmiris [https:\/\/perma.cc\/45AR-UHZR] (last visited Apr. 30, 2021).<\/p>\n

[111]<\/a> \u00a0\u00a0 See<\/em> Saito<\/span>, supra<\/em> note 9, at 175.<\/p>\n

[112]<\/a> \u00a0 Kristy Gover, The Potential Impact of Indigenous Rights on the International Law of Nationality<\/em>, 115 AJIL Unbound<\/span> 135, 135 (2021) (\u201cLove-Thomas<\/em> and Desautel<\/em> extend this idea by establishing that the relevant connection can endure across state boundaries irrespective of state law and international law on nationality, as a constitutional right vested in Indigenous non-citizens.\u201d).<\/p>\n

[113]<\/a> \u00a0 Mayagna (Sumo) Awas Tingni Community v. Nicaragua, Merits, Reparations, and Costs, Judgement, Inter-Am. Ct. H.R. (ser. C) No. 79, \u00b6 149 (Aug. 31, 2001).<\/p>\n

[114]<\/a> \u00a0 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion ,1971 I.C.J. 16, \u00b6 2 (June 21) (separate opinion of Ammoun, J.).<\/p>\n

[115]<\/a> \u00a0 See<\/em> id.<\/em> (\u201cSovereignty, which is inherent in every people, just as liberty is inherent in every human being, therefore did not cease to belong to the people subject to mandate. It had simply, for a time, been rendered inarticulate and deprived of freedom of expression.\u201d)<\/p>\n

[hr gap=”30″]<\/p>\n

\"\"<\/p>\n

*<\/a> \u00a0\u00a0\u00a0\u00a0\u00a0 Shaiba graduated from Harvard Law School in 2021 and is now clerking in the Central District of California. She has precious experience working in India and Myanmar and hopes to continue her work in international law going forward.<\/p>\n","protected":false},"excerpt":{"rendered":"

Shaiba 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