Narrative Injustice and the Legal Erasure of Indigeneity: A TWAIL Reframing of the Kashmiri Pandit Case in Postcolonial International Law

Round 1

Reviewer 1 Report

Comments and Suggestions for Authors

 

The paper contains a number of interesting elements. It includes considerable reference to a range of different critical, postcolonial and other theoretical scholars and these insights are valuable. It also explains some details about Kashmiri Pandits and this is useful in so far as it goes; there is value in highlighting an overlooked case study. There are also some interesting comments on the role of silence in international law.

 

However I think there are some important flaws.

 

First, I would have expected much more detail earlier on the Pandits, their history and the harms they have experienced. These details are somewhat scattered through the paper and I do not feel I have a good grasp on the Pandits themselves or their circumstances having read the paper.

 

Second, and more importantly, I do not get a sense of the agency involved in the case study. The paper uses the passive voice a lot and so it leaves somewhat obscure who did what. Specifically, it is very unclear what agency the Pandit people themselves have exercised and what agency (and this includes inaction) Indian state institutions have exercised. Have the Pandits claimed the status of indigenous people, or internally displaced people? Have Indian institutions rejected these claims or ignored these claims or censored these claims? Similarly, have international institutions discussed these claims and if not, why not – have the claims been brought before them?

 

Relatedly, the paper needs to be more explicit and convincing in explaining why recognising the Pandits’ claims would be so disruptive -  does India generally recognise indigenous claims in other contexts for instance? Does India recognise claims by Muslim or other minorities to indigenous status? In other words is India generally hostile to such claims or is it specific to the Pandits?

 

Third, the paper has a tendency to discuss different legal frameworks – indigenous peoples and internal displacement but also to a lesser extent international criminal law, the law on self-determination and the rights of minorities. Of these only the framework on indigenous peoples is discussed in any detail.  I am not suggesting the others should be discussed more; if anything I think some of them are somewhat distracting from the development of a central argument about indigeneity.

 

Fourth, the paper needs to provide more evidence for its legal assessments. In particular, strong claims are made about genocide and crimes against humanity. The paper does not provide convincing details on these charges. It also does not discuss some legal basics – has India for instance ratified the Genocide Convention and the Rome Statute? Has India condoned or objected to the developments of international customary law on indigenous peoples? There is a reference to article 1 ICCPR but no mention of India’s reservation to that article.

 

Having been told several times that the paper would rely on three theoretical frameworks it was disconcerting to see that these were covered in a page on page 5;  there is more discussion of these later but the initial impression at this point is that the analysis is very brief.

 

My recommendation is to revise and resubmit. The revised paper should:

 

Include a clearer detailed description of the Pandits and their expulsion and the treatment by the Indian state post-expulsion.

Include a clearer discussion of agency. Did the Pandits agitate for any of these statuses? What was the Indian state response? What was the response of international actors?

Be more specific about why recognition of the Pandits would be so threatening, and consider whether this is specific to this group  or reflects a wider imperative of the Indian state.

Be clearer on the legal frameworks that are involved and their application to the case study.

Author Response

I am grateful for the reviewers’ constructive and detailed feedback, which has greatly strengthened this manuscript. In revising the article, I have substantially enhanced the empirical, doctrinal, and comparative dimensions while clarifying the theoretical framework and methodology.

The revised version now includes verified institutional evidence from the National Human Rights Commission (1999–2000), Internal Displacement Monitoring Centre (2012), and Praxis (2023) to substantiate the discussion of displacement and state response. It further elaborates India’s treaty obligations under the Genocide Convention, ICCPR (including its interpretative declaration on Article 1), and its 2007 UNDRIP statement. Theoretical coherence has been improved through a clearer integration of TWAIL, constructivist norm diffusion, and critical legal realism.

Section 5 now offers an expanded comparative analysis drawing on Neogi (2020) and Native-American recognition frameworks, while the conclusion provides concrete recommendations for domestic and international policy actors. I believe these revisions fully address the reviewers’ comments and significantly strengthen the paper’s scholarly and practical contribution.

Best Regards,

 

Reviewer 2 Report

Comments and Suggestions for Authors

Comments and Suggestions for Authors

This paper addresses an important gap in international legal scholarship by examining the exclusion of Kashmiri Pandits from frameworks of indigenous rights and internal displacement. The theoretical contribution combining TWAIL, constructivism, and decolonial critique is original and the central argument about "geopolitical selectivity" versus legal ambiguity is compelling.

Strengths: The paper makes a valuable contribution by challenging the selective application of international legal norms and highlighting an under-researched community. The integration of multiple theoretical frameworks demonstrates scholarly sophistication, and the extensive referencing shows thorough engagement with relevant literature.

Areas for Improvement:

Theoretical Framework Integration: While the combination of TWAIL, constructivism, and critical legal realism is innovative, the connections between these approaches could be more explicitly developed. Consider dedicating more space to explaining how these frameworks complement rather than simply overlap, particularly in Section 2.4.

Empirical Substantiation: The core argument about "epistemic suppression" and "narrative exclusion" would benefit from more concrete evidence. The paper relies heavily on theoretical assertions without sufficient empirical demonstration of how these mechanisms operate in practice. Consider incorporating more specific examples of how international bodies have responded (or failed to respond) to Kashmiri Pandit claims.

Comparative Analysis: Section 5's comparative discussion with Native American and other indigenous communities feels underdeveloped. Either expand this analysis to demonstrate more clearly when and why recognition occurs, or streamline it to focus on the most relevant comparisons that illuminate the Kashmiri Pandit case.

Argument Moderation: Some claims appear overstated, particularly regarding the deliberate nature of exclusion. Consider qualifying statements about intentional "epistemic erasure" versus acknowledging that bureaucratic inertia and institutional limitations may also contribute to non-recognition.

Structural Clarity: The paper's structure could be improved by clearer signposting between sections and more explicit connections between theoretical discussions and the specific case study. The transition from theoretical framing (Sections 2-3) to case analysis (Sections 4-5) needs strengthening.

Methodological Transparency: While this appears to be a doctrinal and theoretical analysis, greater clarity about methodology would strengthen the paper. How were sources selected? What criteria were used to evaluate "epistemic erasure"?

Solutions and Recommendations: The concluding sections could offer more concrete, actionable recommendations for legal practitioners and international bodies rather than focusing primarily on theoretical reframing.

The paper's core insights are valuable and warrant publication, but addressing these structural and evidentiary concerns would significantly strengthen its impact and accessibility to both legal scholars and practitioners working in indigenous rights and displacement law.

Author Response

I am grateful for the reviewers’ constructive and detailed feedback, which has greatly strengthened this manuscript. In revising the article, I have substantially enhanced the empirical, doctrinal, and comparative dimensions while clarifying the theoretical framework and methodology.

The revised version now includes verified institutional evidence from the National Human Rights Commission (1999–2000), Internal Displacement Monitoring Centre (2012), and Praxis (2023) to substantiate the discussion of displacement and state response. It further elaborates India’s treaty obligations under the Genocide Convention, ICCPR (including its interpretative declaration on Article 1), and its 2007 UNDRIP statement. Theoretical coherence has been improved through a clearer integration of TWAIL, constructivist norm diffusion, and critical legal realism.

Section 5 now offers an expanded comparative analysis drawing on Neogi (2020) and Native-American recognition frameworks, while the conclusion provides concrete recommendations for domestic and international policy actors. I believe these revisions fully address the reviewers’ comments and significantly strengthen the paper’s scholarly and practical contribution.

Best Regards,

 

Round 2

Reviewer 1 Report

Comments and Suggestions for Authors

The amendments address the feedback given in the earlier review and provide important details especially on the position of the Pandit community but also issues around their agency and more legal details. The article provides a helpful analysis of an overlooked case study. 

Reviewer 2 Report

Comments and Suggestions for Authors

The author has revised the paper. I suggest it is published. It does not require any significant changes.