India-Pakistan relations: legalization and agreement design.

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. 


II. 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) 

The argument that domestic political pressures have a role to play in the choice between pledges and contracts is not new. (20) This is certainly true in areas that are hotly contested in the political space. Liberal theorists also argue that credibility is factored into the choice of soft law versus hard law. (21) Otherwise, when credibility is dependant on legislative approval, states are more likely to prefer hard law, unless those states possess other mechanisms to ensure and enhance credibility. (22) Raustiala claims that there is a prevalence of shallowness in hard law and that there is a negative correlation between legality and depth. (23) He argues that pledges are deeper than contracts because they do not raise compliance worries. (24) Hence, states are likely to prefer pledges if they want to make deep commitments rather than shallow ones. Conversely, states will prefer hard law when they are making shallow commitments; for this reason, hard law is likely to exhibit higher levels of compliance. Raustiala then advances the other, seemingly contradictory, functionalist argument that there is a positive correlation between legality and depth--meaning that states embody their agreements in hard law when they are making deep commitments. (25) He writes that both explanations are possible and can be understood by addressing the risk of compliance--there is a negative correlation when a state may not want to comply, and there is a positive correlation when a state wants other states to comply. (26) He proffers a liberal explanation for these correlations, arguing that the correlation between legality and depth will be positive when the domestic constituencies that are pushing for the agreement have political power (which explains hard law in deep commitments such as the WTO) and will be negative when the domestic constituencies demanding agreement do not possess much political power. (27) 

A. Functionalist Perspective 

Functionalist theorists argue that states should adopt legalization when the issue is one of commitment or coordination, with the objective of benefiting from cooperative action. (28) According to this view, there is a cost benefit analysis that states engage in when deciding whether to legalize, with the choice depending on legalization's ability to deliver outcomes that are more beneficial than non-legalization. (29) Some of these benefits include the ability of legalization to supply credibility to commitments, lower ex post transaction costs, and supply monitoring mechanisms. Abbott and others posit that harder legalization makes state commitments more credible by creating precise agreements that contain obligations of a higher order. (30) They argue that transaction costs ex ante are higher with hard legalization because of the difficulty of negotiation and obtaining concord on these sorts of agreements. (31) It is likely that as the levels of obligation and precision increase, it will be more difficult for states to bind themselves because of the fear of breaching these obligations and the minimization of wiggle room to make excuses. (32) This initial increased cost may be offset by lower costs after an agreement has been reached because the existence of precise obligations makes enforcement easier and because many hard legalized agreements create tribunals for interpretation and enforcement. (33) Monitoring costs are thus reduced and may justify the expenditure of upfront resources. Abbott and Snidal also point to sovereignty costs (by which they mean incursions on state sovereignty in the subject area) as being a factor that can militate against hard legalization. (34) 

The relative power relationship between states is also a factor in determining the extent to which legalization occurs. (35) More powerful states have little or no incentive to legalize when dealing with less powerful states, as they may be able to obtain outcomes that they want without resort to legalization. Kahler argues that the power asymmetry argument is "heavily qualified" by the fact that the strongest advocates for legalization are the United States and Europe, both major players in the legalization game despite being more powerful than other parties to the various international legal instruments. (36) Abbott and Snidal suggest that there is a preference for softer forms of legalization when powerful states are involved, upon the understanding that there will be long term advantages in the form of lowered transaction costs. (37) Kahler suggests that asymmetries may extend beyond those involving mere power--there may be asymmetries in terms of legal skills--that explain the unwillingness of some states, particularly developing ones, to legalize agreements. (38) 

B. Realist and Rational Choice Perspectives 

Realists believe that international law only has effect to the extent that it is the product of a relationship of dominance between nations and is a reflection of this power dynamic. (39) Broadly speaking, the realist perspective denies that international law has any constraining power and claims that if any such power does exist, it is extremely weak. (40) The international legal system is effective only to the extent that the dominant states are willing to shoulder the burdens of being the policemen. Realism is state-centric, focusing on state preferences that are assumed to be, largely, fixed. Rational choice theory has recently been at the forefront of scholarly discussion due to an influential book by Posner and Goldsmith, which argues that "international law emerges from states' pursuit of self-interested policies on the international stage." (41) The conduct of India and Pakistan presents a curious situation for Posner and Goldsmith's thesis, for the two states seem to be in a position where rational self-interest would dictate that they resolve their differences using the law to "clarify[] what counts as cooperation or coordination," unless one takes the position that these two states are acting irrationally. (42) A fuller examination of rational choice using India-Pakistan interactions as a proxy for demonstrating irrationality in high conflict scenarios is the subject of another article and is not addressed here. 

C. Liberal Perspective 

The chief contribution of the liberal view is the centrality that it confers on non-state actors and the relationship between domestic politics and international law. (43) These non-state actors (whom Moravcsik calls "societal actors") "are on the average rational and risk-averse and who organize exchange and collective action to promote differentiated interests under constraints...." (44) It is premised on a "bottom-up" approach, whereby the preferences of non-state actors "are treated as exogenous causes of the interests underlying state behavior." (45) States are liable to be captured by one or another interest group and act to express those preferences, which are now the state's preferences in international politics. (46) Under this framework, the main battleground for international legalization is the domestic political arena, and "international legal norms are most effectively enforced when they are embedded in autonomous domestic 'rule of law' legal systems through legal incorporation, judicial acceptance, or acceptance by lawyers and litigants." (47) This perspective can make important contributions to understanding the formation of preferences in the India-Pakistan context, because of the diversity of non-state actor political preferences and their possible mediation through legal institutions. Given the possible differences in India's preferences depending on whether it is the Bharatiya Janata Party that is in power rather than the Janata Dal, and the potential implications that such different preferences can have for peaceful relations, it is important to determine what role, if any, a greater use of the law can play in minimizing radical adverse shifts in preferences. (48) 

D. Consequences of Legalizing Agreements 

Is there a correlation between legalization and compliance with international agreements? Realist scholars deny any such correlation unless the legalization is the product of a power dynamic whereby a powerful state uses legalization on a less powerful state. Functionalist scholars such as Abbott, on the other hand, believe that there is a correlation between legalization and norms. They believe that legalization comes with the promise of greater cooperative anddistributive gains. (49) Abbott and Snidal suggest that legalization confers benefits such as enhanced credibility and lower transaction costs, with the caveat that these benefits may be outweighed by other costs that are inherent in legalization such as negotiation costs and sovereignty costs. (50) The relationship between legalization and liberal theory will be in evidence in Part IV of this Article, where it is argued that legalization offers superior advantages over non-legalized agreements because of its ability to engage societal actors that have been marginalized in the India-Pakistan context.