UN Engagement and Constitutional Governance in Contested Territories: A Comparative Study of Palestine and Kashmir

Abstract

Contested territories in the post-colonial international order present a fundamental challenge to international law, particularly in reconciling state sovereignty with the right of peoples to self-determination. Palestine and Jammu and Kashmir exemplify this tension, as both remain protracted disputes shaped by decolonization processes, competing sovereignty claims, and prolonged United Nations (UN) engagement. Despite extensive international involvement, these cases reveal a critical gap between the normative commitments of international law and the practical realities of governance under conditions of contested sovereignty. This study investigates how UN engagement and domestic constitutional frameworks have interacted to structure governance in Palestine and Kashmir, with particular focus on the concepts of “international legal subalternity” and “occupational constitutionalism”. The research adopts a qualitative, doctrinal, and comparative case study methodology, drawing on primary legal instruments including UN General Assembly Resolution 181 (1947) and UN Security Council Resolution 47 (1948) as well as domestic legal frameworks such as the Palestinian Basic Law (2003/2005) and the Jammu and Kashmir Reorganisation Act (2019). The analysis demonstrates that UN engagement has evolved from early mediation and plebiscite-oriented mandates toward a model of humanitarian management, reflecting structural constraints imposed by great-power politics within the Security Council. Simultaneously, domestic constitutional mechanisms in both contexts have facilitated the gradual erosion of autonomy and the consolidation of external control under a veneer of legality. The findings indicate that international legal processes often function within a “rule by law” paradigm, privileging geopolitical stability over substantive justice and thereby perpetuating conditions of legal subalternity. The study concludes that the persistence of these conflicts is not merely a failure of implementation but reflects structural limitations within the international legal order itself. It recommends a recalibration of UN institutional practices, including enhanced accountability mechanisms and a renewed emphasis on self-determination as a primary legal obligation, in order to move beyond the current state of institutional stasis.