India-Pakistan relations: legalization and agreement design.

• Author: Gopalan, Sandeep

ABSTRACT

This Article examines agreements between India and Pakistan to determine if there are design features that played a part in their success or failure. The analysis draws on insights from scholarship at the intersection of international relations theory and international law. The Article attempts to show that India and Pakistan share attributes that are particularly well suited for a positive correlation between increased legalization and compliance, that the law plays a role in norm strengthening, and that legalizing agreements between the two states can create compliance constituencies that act as constraining influences on governments.

TABLE OF CONTENTS I. INTRODUCTION II. THEORETICAL APPROACHES A. Functionalist Perspective B. Realist and Rational Choice Perspectives C. Liberal Perspective D. Consequences of Legalizing Agreements III. THE DISPUTE A. Birth of the Nations and Dispute B. Agreements Between the Parties IV. EVALUATION AND ANALYSIS A. Narrowing the Trust Deficit B. Centralization C. Norms Cascade--Terrorism D. Regime Change and Rule of Law Societies E. Domestic Politics and Legalization F. Compliance Constituencies V. CONCLUSIONS I. INTRODUCTION

This Article examines India-Pakistan relations from a theoretical perspective, in an attempt to determine whether there is a correlation between the commitments embodied in agreements between them, their successful implementation, and the form and structure of those agreements. The Author draws on recent scholarship at the intersection of international relations theory and international law on the design and structuring of agreements to explore pathways to increasing the role of the law in positively impacting the relationship between the two states. Despite the fact that India and Pakistan are nuclear-weapons states with a history of engaging in military confrontations, the international law community has not focused much attention on the design and structure of agreements between them to determine whether there is a correlation between the choice of design, structure, and compliance. International lawyers have been peripheral to the discussion, and there is inadequate attention to the positive contribution that the law can play in finding solutions to the differences between the parties. This Article hypothesizes that these two states share attributes that are particularly suited for a positive correlation between increased legalization and compliance, that legalization plays a role in norm strengthening, and that legalizing agreements between the two states can create compliance constituencies that act as constraining influences on governments.

A review of agreements struck by states shows that they employ a variety of structures to arrive at accord, ranging from official communiques to treaties. While these agreements exhibit some commonalities in their underlying substance and structure, there is lack of clarity on what motivates states to choose between a communique and a treaty, with the result that predictions on what form an agreement might take are fraught with risk. Even after a particular form has been chosen, there is imprecision in terms of differentiating attributes between the various forms. In terms of language, many communiques contain language that might be readily transposed onto a treaty and vice versa. All of this is rather confusing and makes the task of reform difficult. There have been recent scholarly analyses of agreement design in the multilateral context, but these provide incomplete explanations when applied to dyads like India-Pakistan. (1) Agreement design scholarship has also largely been institutionalist and has not provided much clarity on what sorts of agreements have the potential from their inception to succeed when the signatories are states with a history of armed conflict.

The Kashmir dispute is one of the bloodiest in contemporary history. (2) The terrible price that India and Pakistan continue to pay for a territory with little economic significance has not brought the parties to the negotiating table in any meaningful way. (3) This is owed to the visceral nature of the dispute as well as the sharp communal and religious divides that characterize Indian and Pakistani societies. (4) The fragility of peace between the countries and the fluctuation of rhetoric depending on the regime in power have meant that most observers have very little hope for a harmonious relationship, (5) which is perhaps one reason for the absence of significant attention by legal scholars to the analysis of the agreements that have been concluded thus far. This hopelessness seems to have become self-fulfilling. (6) There are signs of activity, mainly at the prompting of the US, and the time may be ripe for examining the process of agreement design to maximize the potential for favorable outcomes.

Part II of this Article will examine the relevant theoretical approaches that can be brought to bear in understanding the design and structuring of agreements between India and Pakistan. Part III will provide a historical background to the dispute and will analyze the resulting peace process and agreements, with a view to identifying the degree of legalization and the efficacy of the various agreements that the parties have concluded. Part IV presents an evaluation of the peace process, employing the lenses of the theoretical approaches examined in Part II, and demonstrates that legalization has a positive correlation with compliance in the case of these two high conflict states, with probable applications to other high conflict situations. This Article argues that legalization, apart from the obvious informational, precision, and enforcement advantages, helps solidify the norms cascades that are taking place, and creates and empowers compliance constituencies (developing support for the liberal theory posited by Moravcsik, et al. that places non-state actors at the center of international law). The Article also argues that in the case of politically tumultuous dyads, the dissonance in political choices between competing political actors can only be mediated by hard legalization that has the ability to bind successor governments.

2. THEORETICAL APPROACHES

   Public international law scholars tend to argue that in structuring international agreements, states are motivated by the objective to enhance the credibility and enforceability of their agreements. (7) These scholars analogize states to private contracting parties and seek to argue that all else being equal, states will act in the manner of private individuals and structure their agreements as contracts. (8) They will do this because they are motivated by the need to make their promises binding, and in order to do that, they must comply with the obligations undertaken. (9) This compliance, in turn, is ensured by providing mechanisms that measure adherence and deviation. The conventional view argues that, unlike private parties in the contractual context, states are not required to pay damages for breaches of contractually assumed obligations but may have to suffer reputational sanctions (although private parties are susceptible to reputational sanctions in addition too). (10) In contract law, when there is breach, the court or other tribunal attempts to craft a remedy that bears some correlation between the nonbreaching party's loss and the breaching party's gain. In international law, the nonbreaching state suffers a loss that is not compensated for by the breaching state's loss of reputation, if any. Despite this problem, the concept of "compliance" has influenced scholars examining agreement design in the area of public international law. (11) Thus, they have focused extensively on monitoring mechanisms and the existence of sanctions and sanction-awarding bodies. Scholars also assume that the dominant players are rational states--acting to maximize contractual surplus. (12) Accordingly, in structuring international agreements, states are most concerned about the "impact" that the agreement will have in changing state conduct. It is this concern about impact that will animate states in choosing between "hard" and "soft" law. If states desire to have low impact they are more likely to choose soft law; conversely, high impact will result in a hard law choice.

   Abbott and Snidal, the most important functionalist scholars, argue that states choose soft law as a "way station" to hard law, and that it is the preferred option when the subject is one that challenges state sovereignty. (13) They also argue that legalization is a means to increase the credibility of their commitments and that states are motivated by factors such as domestic political costs, the desire to bind successive governments, and the need to motivate citizens to modify their practices when they choose hard law as a means of assuring credibility. (14) According to Abbot and Snidal, credibility is enhanced by the ability of legalization to limit "self-serving auto-interpretation." (15) This is extended when one considers the whole international system, in which the consequences of bad conduct within a particular regime can extend to other aspects of the international law system. (16) They argue that auto-interpretation is limited by arbitral tribunals interpreting and applying hard legal commitments. (17) Abbott and Snidal seem to be expressly limiting the ability of tribunals to apply and interpret hard law. They hypothesize that hard law would result where: "the benefits of cooperation are great but the potential for opportunism and its costs are high," noncompliance is not easy to detect, states want to form clubs of very committed states, and executive agencies within a state want to commit other domestic actors such as the legislature. (18) They argue that hard law is more costly because states are more careful in "negotiating and drafting legal agreements, since the costs of violation are higher." (19)

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