Symposium | Imperialism, Sovereignty and the Making of International Law at 20
A Critique Of Postcolonial Sovereignty: Perspectives from Jammu and Kashmir
By Sahiba Maqbool
Introduction
On the 20th anniversary of the publication of Antony Anghie’s Imperialism, Sovereignty and the Making of International Law, this blog post reflects on the enduring significance of his work in the context of Jammu and Kashmir. Anghie’s critique feels even more urgent today, as the illusion of sovereign equality—the foundational promise of the liberal international order—has all but collapsed. Anghie’s insights reveal that imperialism and colonialism have not ended, but have merely transformed, now operating under the guise of sovereign equality—without postcolonial states questioning the colonial processes that shaped the very concept of sovereignty. In actuality, given Anghie’s emphasis on international law, the principle of sovereign equality entailed emphasising and expanding those doctrines of international law ‘which prevented those unequal colonial relations from being re-examined and remedied.’
Anghie’s work is reflective of the how Jammu and Kashmir became a site of conflict within the interiors of postcolonial India. By applying the international legal doctrines of state succession and self-determination in claiming its sovereignty over Jammu and Kashmir, state-making of postcolonial India failed to re-examine and remedy the colonial injustices of the British administration. In other words, while the legal and political adaptations of sovereign equality were intended to counteract the enduring effects of colonialism, they facilitated new forms of domination within the newly emerged postcolonial States as I demonstrate by examining the case of Jammu and Kashmir. While the principal site of Anghie’s critique is North-South colonialism, I turn the lens to India as a postcolonial State that reproduces colonial power. The case of Jammu and Kashmir expands Anghie’s framework in this blog by showing how the logics of North-South colonialism have persisted through the actions of postcolonial States.
Historical Background to Jammu and Kashmir Dispute
Jammu and Kashmir was one of the many hundred princely states in South Asia that were ruled indirectly by the British Government through local chieftains. The princely states were gradually incorporated into the British Empire through a series of military conquests, strategic alliances, and treaties. One of the first major princely states to fall under British influence was Hyderabad, brought within the fold of British paramountcy in 1798. The princely states were autonomous in their internal affairs while placing their external affairs largely under the British paramountcy. In the context of the Princely State of Jammu and Kashmir however, it was substantially autonomous even in its external affairs and was brought within the orbit of British administration through the 1846 Treaty of Amritsar signed between the Princely State of Jammu and Kashmir and the East India Company. With the end of British colonisation, this paramountcy lapsed in August 1947 and sovereignty returned to the princely states. Some princely states acceded to India, some to Pakistan, while many chieftains sought to remain independent in order to preserve their monarchical rule. The Princely State of Jammu and Kashmir became independent with the lapse of British paramountcy in August 1947—until it was annexed by India in October 1947. India contends that the princely ruler of Jammu and Kashmir lawfully acceded to India by signing the Instrument of Accession in 1947. However, this claim has been consistently rejected by the people of Jammu and Kashmir, who dispute both the legitimacy of the accession and the very signing of the Instrument itself. A local resistance in parts of Kashmir, coupled with India’s annexation plans, led to the Partition of Jammu and Kashmir. Some parts fell under the administration of Pakistan, while others were occupied by India. India filed a complaint at the Security Council, claiming that Pakistan usurped its territory in Jammu and Kashmir, on the grounds that Jammu and Kashmir decided to accede to India through a bilateral treaty called the 1947 Instrument of Accession. The Security Council passed a non-binding resolution under Chapter VI of the UN Charter, calling for the demilitarisation of Jammu and Kashmir on both sides and for the arrangement of a plebiscite to ascertain the wishes of the people. India rejected all Security Council resolutions that sought demilitarisation, thereby blocking the plebiscite in Jammu and Kashmir. When India failed to garner a favorable position from the Security Council on the basis of the Instrument of Accession, it relied on the doctrine of state succession to claim its sovereignty over Jammu and Kashmir.
State Succession, External Self-Determination, and the Reproduction of Colonialism
In 1962, India argued before the UN Security Council that with the lapse of British paramountcy in 1947, it inherited all British territorial possessions in South Asia, including Jammu and Kashmir by virtue of the doctrine of state succession. India likened this transition to the earlier transfer of authority from the East India Company to the British Crown through the 1858 Government of India Act. India’s position is that it was a singular colonial entity comprising of British India and the princely states under British rule that transitioned into a postcolonial state in August 1947 with the exception that some of its parts were partitioned by the British to form postcolonial Pakistan.
This line of reasoning captures Anghie’s critique of postcolonial sovereignty, showing how postcolonial states—such as India—invoke the doctrine of state succession to assert legal continuity, while ignoring the colonial injustices that shaped the very foundations of their sovereignty. India’s position rested (still does) on the claim that the 1947 Indian Independence Act passed by the British Parliament, made postcolonial India the legal successor to the British Government and, by extension, entitled it to ‘inherit’ all princely states. India’s argument also rests heavily on colonial legal frameworks—such as the 1858 Government of India Act, the 1947 Indian Independence Act, and the 1935 Government of India Act—without acknowledging that these very laws were instruments of British imperial control. By invoking these colonial provisions to justify its claim over Jammu and Kashmir, India reproduced the legal architecture that once entrenched its own colonisation. A careful reading of these colonial frameworks, and an examination of the broader political developments surrounding the Partition of British India along communal lines and the events transpiring in the Princely State of Jammu and Kashmir suggests that India’s legal claim based on state succession operated to preclude any re-examination of the unequal colonial relations that had defined colonial boundaries. By relying on the doctrine of state succession, India effectively forecloses the possibility of a legal and political reckoning with colonial injustices. In doing so, India not only ignored the existing historical and political realities of the British colonial encounter with the Princely State of Jammu and Kashmir but, also reproduced the same power differential between itself and Jammu and Kashmir that once existed between colonial India and Britain.
In addition, India mobilised Eurocentric conceptions of sovereignty to negate the cultural distinctness of Jammu and Kashmir to homogenise the region within the broader postcolonial Indian identity based on imaginary pre-colonial cultural and religious ties. This gave rise to the re-emergence of the problem of cultural difference—no longer between coloniser and colonised, but, as Anghie observes, between the postcolonial state (India) and the entity that sought to secede from it (Jammu and Kashmir). This reflects what Anghie calls the ‘dynamic of difference’, where the postcolonial state reproduces the logic of colonialism by defining itself in opposition to those it seeks to dominate—transforming cultural difference into a basis for exclusion and domination, rather than a site for negotiation or autonomy. In the case of Jammu and Kashmir, India advanced territorial claims by invoking a historical and cultural narrative that predates British colonisation, arguing that Jammu and Kashmir’s cultural and religious ties with the Indian subcontinent justifies its integration into the postcolonial India despite the opposition by its people. This narrative supports a broader project of cultural and political assimilation, where military occupation is used by India not only to assert sovereign authority but to remake Kashmir as a Hindu-majority space. In this vision, the Muslim population of Jammu and Kashmir is rendered foreign to the postcolonial India which purports to include Indian Occupied Kashmir—portrayed as outsiders within territorial spaces which they inhabited for generations. The prehistoric sovereign ties between Jammu and Kashmir and India are not used to dismantle colonial structures, but to reinforce them. By applying Eurocentric frameworks of sovereignty to pre-colonial relationships, India reproduces the problem of cultural difference, entrenching the very structures it claims to have overcome. India, as a postcolonial state, positions itself against Jammu and Kashmir in much the same way that colonial powers once positioned themselves against their subjects.
Later on, India also invoked self-determination to legitimise its sovereignty over Jammu and Kashmir. In 1977, India attached a reservation to Article 1 of the International Covenant on Civil and Political Rights and International Covenant on Economic, Social and Cultural Rights, which recognise the right to self-determination. India’s reservation states that ‘self-determination applies only to the peoples under foreign domination and that they do not apply to sovereign independent States or to a section of a people or nation—which is the essence of national integrity.’ India made this reservation after it supported Bangladesh’s secession from Pakistan, which prompted debates about the scope of the self-determination, particularly whether it could be extended to national minorities within postcolonial states. The secession of Bangladesh triggered renewed attention to the rights of ethnic minorities subjected to human rights violations or the denial of equal rights by dominant groups. India feared that its role in the secession of Bangladesh could be used—particularly by Pakistan—at the Security Council, which remained actively seized of the Kashmir matter, to justify Jammu and Kashmir’s right to secede. By entering this reservation, India attempted to narrow the scope of self-determination and to clarify that its support for Bangladesh’s secession did not reflect a broader position on internal self-determination. Instead, it justified its intervention in Bangladesh on the grounds of self-defense in response to the refugee influx caused by the conflict between Pakistan and Bangladesh. The growing consensus within the international circles on applying self-determination in cases involving oppressed ethnic minorities prompted India to pre-emptively exclude such possibilities in its own context. By distinguishing external from internal self-determination, India maintains that Jammu and Kashmir is its integral part and that it inherited the borders drawn by the British. But this is a claim that has neither been accepted by the people of Jammu and Kashmir nor by the Security Council.
Conclusion
In this short contribution, I have drawn on Anghie’s critique of postcolonial sovereignty to examine how India’s claims over Jammu and Kashmir are sustained through legal doctrines shaped by European colonialism. Doctrines of sovereignty, state succession, and self-determination—once central to Third World struggles against colonial domination—have been deployed by postcolonial states like India to entrench authority over regions that resist assimilation. In the case of Jammu and Kashmir, these doctrines have not enabled decolonisation; and instead, have entrenched colonisation and occupation. This raises deeper questions about the capacity of international law to mediate between competing postcolonial sovereignties without reproducing the very hierarchies it claims to dismantle or redress. Although Anghie’s work primarily examines Western colonialism, it is crucial for understanding how the modalities of that colonialism have been reproduced by postcolonial states to sustain forms of South–South colonialism, as seen in the case of Jammu and Kashmir. His analysis reveals how postcolonial states can reproduce imperial forms of domination under the guise of liberation.