India-Pakistan Relations: Legalization and Agreement Design
Gopalan, Sandeep, Vanderbilt Journal of Transnational Law
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
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. …