Gopalan, Sandeep (2007) From Darfur to Sinai to Kashmir: The Case for Legalization. Buffalo Law Review, 55. pp. 403-455. ISSN 0023-9356

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Abstract

This Article analyzes peace agreements in regions with a history of ethno-religious conflicts to determine if there are correlations between the form and substance of the agreements and their successful implementation. For purposes of comparison, I examine several agreements between India and Pakistan, the historic agreement between Israel and Egypt, and the Darfur Peace Agreement, as exemplars of similar conflict situations where a study of agreement design has salience. I endeavour to apply the legalization theory articulated by Kenneth Abbott, et al., to test the explanatory power of the obligation-precision-delegation matrix. [FN1] The Kashmir dispute has raged on for over five decades and has consumed thousands of lives making the region one of the most dangerous conflict zones in the modern world. [FN2] The terrible price, both in terms of human lives and defense expenditures, has not made much of an impact in pushing the parties towards finding a peaceful solution. [FN3] This *404 indifference to cost is not unique--several other dyads that are deeply sundered by ethnic and religious divisions share the same disregard for human suffering with the same devastating consequences. [FN4] The fragility of peace in these conflict zones and the fluctuation of rhetoric depending on the regime in power have meant that hope for a peaceful settlement is slim, [FN5] which might explain the shortage of significant attention to the analysis of such peace negotiations and agreements by legal scholars. The closed and secret nature of the negotiations and the low involvement of the legal community in them have contributed to this state of affairs. One consequence of such indifference has been the repetition of the same features in agreements despite evidence of failure. The scholarly community has to analyze the agreements to unearth avenues that can maximize the probability of better outcomes if the situation is to improve. [FN6] Scholarly attention to the design and structure of agreements between these parties can help us to understand whether there is a correlation between the choice of form and substance and their successful implementation. [FN7] Legal scholars have deferred for too long to the view that politics, rather than *405 law, is the answer to these disputes. This deference is fundamentally flawed and an examination of the agreements using legalization theory may help to bridge the gap between law and politics. It will cast light on the role of law in solving disputes characterized by ethno-religious hatreds, and will demonstrate that contract-like forms are preferable for agreement design. I analyze agreements between India and Pakistan, Israel and Egypt, and the Darfur Peace Agreement, to demonstrate that agreements that are high on the precision-obligation-delegation matrix enjoy higher degrees of success than those that are low on this matrix when concluded in dispute scenarios involving ethno-religious conflicts. I conclude by arguing that India and Pakistan should aim for hard legalization to solve the Kashmir dispute, and that they must learn from the painful experience of the Darfur Peace Agreement and include non-state actors as signatories to any agreement.

Item Type:	Article
Keywords:	Darfur; Sinai; Kashmir;
Academic Unit:	Faculty of Social Sciences > Law
Item ID:	1928
Depositing User:	Prof. Sandeep Gopalan
Date Deposited:	13 May 2010 15:42
Journal or Publication Title:	Buffalo Law Review
Refereed:	Yes
URI:	http://www.buffalolawreview.org/index.ph...
Use Licence:	This item is available under a Creative Commons Attribution Non Commercial Share Alike Licence (CC BY-NC-SA). Details of this licence are available here

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