Peace Agreements and the Law of Peace


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Peace Agreements and the Law of Peace

  2. 2. Prefatory NoteThis consultative paper commissioned by International Alert and written by Prof.Christine Bell is the product of two perspectives which combine rigorous scholarlywork focused on legal academic research on peace agreements with reflective peacepractice over several decades.I briefly cited her landmark publication, ‘On the Law of Peace: Peace Agreementsand the Lex Pacificatoria’, discussing the evolving law of peace surrounding peaceprocesses at an address entitled, “Peacemaking Requires a Marathon Mentality:Reflective Peace Practice from a Filipino Perspective,” delivered before members ofthe judiciary and legal professionals at the Chief Justice lecture series during the2009 peace month.It was in the aftermath of this dialogue between peace advocates and legalpractitioners that the idea of an exchange of insights involving Prof. Christine Bellcame up, and so we discussed what possibilities there were for her to be involved inbringing to bear her considerable experience and research on the emerging lexpacificatoria and its relevance to peace processes in the Philippines.Alert proposed the idea of a consultative paper as a first step, and dialogues with thenegotiating peace panels and members of the courts as well as peace advocates as away of encouraging processes that then were at an impasse.In collaboration with Conciliation Resources, Prof. Christine Bell is scheduled to visitthe Philippines in mid-April 2011 to engage in conversations with those involved inpeace negotiations and peace advocacy. Other dialogue partners will includemembers of the courts of law and the academe, representatives of civil societyorganisations, women and indigenous people’s groups, legislators and members ofthe international community. Roundtables with the negotiating panels of both theMoro Islamic Liberation Front and the National Democratic Front of the Philippinesare being arranged.It is our common hope that this consultative paper and ensuing conversations cancontribute to help advance peace efforts in the country that has now witnessed andlived through protracted armed conflict for nearly four decades. Though the stepstaken may be modest, it is my belief nevertheless that they can constitute significantstrides in what has become a marathon journey.Prof. Ed GarciaSenior Policy AdvisorInternational AlertLondon, UK and Manila, PhilippinesApril 2011 2
  3. 3. TABLE OF CONTENTSI. INTRODUCTION AND BACKGROUND 4II. POLITICAL AND CONSTITUTIONAL ISSUES 5 Political and Constitutional Issues and Conflict Resolution 5 Three Core Elements Found in Peace Agreements 6 State Re-definition Disaggregation of Power Dislocation of Power Political Imagination 15 Questions of Constitutional Authorship and Process 16 Challenges of Constitutional Authorship Challenges of Legitimate Constitutional ProcessIII. SOCIAL AND ECONOMIC REFORMS 21 Mechanisms for Addressing Socio-economic Exclusion 22IV. CONCLUSIONS: BUILDING NEW POSSIBILITIES FROM NEW PLATFORMS 25 The Moral and Legal Authority of Peace Agreements 26 Doing Good? Law and Peace Processes 27 Building Political Capital for a Peace Process 30 ‘Tracks in and tracks out’ 31 3
  4. 4. PEACE AGREEMENTS AND THE LAW OF PEACE A CONSULTATIVE PAPER EXPLORING ISSUES RELEVANT TO PEACE PROCESSES IN THE PHILIPPINES Professor Christine Bell BA (Cantab), LLM (Harvard) Barrister-at-law, Attorney-at-Law I. INTRODUCTION AND BACKGROUND1. While peace processes must find solutions specific to the nature of the conflict they address, they can also benefit from comparison with how other countries have attempted to resolve their conflicts in peace agreements. This paper draws on the author’s work relating to legal and human rights aspects of peace agreements spanning two decades. In particular, this work deals with the relationship between peace agreements and human rights (Peace Agreements and Human Rights, Oxford University Press, 2000 1) and the legal and constitutional dimensions of peace agreements more generally (On the Law of Peace: Peace Agreements and the Lex Pacificatoria, Oxford University Press, 2008 2; ‘Peace Agreements: Their Nature and Legal Status’, (2006) American Journal of International Law 373-4123). Additional research has explored the role assigned to civil society by peace agreements 4; how women and gender are provided for with in peace agreements with particular reference to UN SC Resolution 1325 (2000) 5; and the relationship between human rights and conflict resolution. 61 Available at Book reviewed in: American Journal ofInternational Law, 96(1), 2002, 282-87; Human Rights Law Review 1(1) 2001, 169-72; InternationalAffairs, 77(3) 2001, 689; Journal of Law and Society, 28(4) 2001, 623-7; Sunday Business Post (BrendanO’Leary)).2 Available at Winner of Hart Socio-Legal StudiesAssociation Book Prize for ‘outstanding scholarship’. Reviewed in: International Criminal Law Review,9(5) 867-871, 2009; Irish Yearbook of International Law (2010), 201-213.3 Winner of 2007 Francis Deak Prize of American Society of International Law for ‘outstanding legalscholarship’.4 (2007) ‘The People’s Peace? Peace Agreements, Civil Society, and Participatory Democracy’ 28International Political Science Review 293-324 (co-author C O’Rourke).5 (2010) ‘Peace Agreements or ‘Pieces of Paper’? The Impact of UNSC Resolution 1325 on PeaceProcesses and their Agreements’ 59 International & Comparative Law Quarterly 941-980 (co-author CO’Rourke) (versions available at Seealso, Women and the Problems of Peace Agreements in R Coomeraswamy and D Fonseka (ed) Women,Peacemaking and Constitutions (Women Unlimited, New Delhi 2005) pp 96-126 (available at; ‘Women, Equality and PoliticalParticipation’, in Anderson and Goodman (eds) “(Dis)Agreeing Ireland”, (Pluto Press, London 1999) at pp211-2316 ‘Post-conflict Accountability and the Reshaping of Human Rights and Humanitarian Law’, Orna Naftali(Ed) International Humanitarian and International Human Rights Law (Oxford, Oxford University Press,forthcoming 2010) pp 328-370; (1999) Constructive Ambiguity or Internal Self-Determination? Self-determination, Minority Rights and the Belfast Agreement 22 Fordham International Law Journal 1345-1371 (co-author K Cavanaugh); Human Rights, Peace Agreements and Conflict Resolution: NegotiatingJustice In Northern Ireland’ in J Helsing and J Mertus (eds) Human Rights and Conflict: Exploring theLink between Rights, Law, and Peacebuilding (United States Institute of Peace, Washington DC, 2006)pp 345-374; Paths to the Future: Peace Agreements and Human Rights in J Darby and R McGintyProgressing Towards Peace (Palgrave/MacMillan, Houndsmill 2008, 2nd ed) pp 161- 173; ‘Peace 4
  5. 5. 2. In particular this paper draws on an underlying database of peace agreements which has been developed over the twenty year period, documenting all peace agreements signed since 1990 ( 7). Since 1990 there have been over six hundred documents which can be called peace agreements, operating in around 90 jurisdictions. These peace agreements primarily address conflicts arising within state borders between states and their opponents (intra-state conflict), even though many of those conflicts also had regional consequences and dimensions. They address a broad variety of conflicts: secessionist disputes, transitions from authoritarian rule, left-right disputes over allocation of resources, and conflicts involving indigenous peoples, with many conflicts having several of these dimensions.3. These peace agreements can operate as a large-scale resource to those seeking their own solutions to conflict. Although the specifics of agreements vary, similar dynamics are often at play. Indeed in On the Law of Peace I have argued that peace agreements do more than evidence how widespread the commitment to negotiated solutions to conflict is, but demonstrate common elements and common approaches to conflict resolution which amount to a new form of constitutionalism, involving new interpretations of international law, and have created a lex pacificatoria or ‘law of the peacemakers’.4. The paper below draws on my work on comparative peace processes and agreements. I examine, in particular political and constitutional reform (part II) and social and economic reform (part III), pointing to the types of solution the ‘law of the peace makers’ suggests in these areas. In conclusion I examine how to build support for peace processes (part III). The paper does not aim to suggest particular solutions to conflicts in the Philippines, but rather aims to re-frame how peacemakers and advocates understand and approach legal issues relating to constitutional reform and socio-economic issues. II. POLITICAL AND CONSTITUTIONAL ISSUESPolitical and Constitutional Issues and Conflict Resolution5. Since 1990, one of the primary ways of ending internal conflict has been for the parties to the conflict to enter direct negotiations aimed at reaching a comprehensive documented (peace) agreement to end the conflict. Conflicts tend to revolve around the question of the distribution of political power and arguments as to whether the legal constitution gives effect to an inclusive and legitimate political constitution. Constitutional change accompanied by profound socio- political and economic change therefore becomes the vital focus of peace negotiations if peace is to be achieved.Agreements and the Role of Human Rights in the De-escalation of Conflict’ in C. Hauswedell,Deeskalation von Gewaltkonflikten seit 1945 (2005, Klartex, Verlag, Essen) pp 245-261;Peace Agreements and the United Nations in N White and D Klaasen (eds) Human Rights, Post-conflictPeacebuilding and the United Nations (Manchester University Press, Manchester 2005) pp 241-266.7 See also, Appendix, On the Law of Peace (2008). 5
  6. 6. 6. In broadest terms, peace agreements work by linking a cessation of hostilities to a new constitutional understanding which aims to address the conflict’s root causes. This new undertaking aims to institutionalize political and often constitutional reform so as to enable the cessation of hostilities to be extended indefinitely and for the conflict to be ‘decommissioned’. At its simplest, a constitution is a ‘power map’ for the legitimate exercise of political power, including control over socio- economic resources.Three Core Elements Found in Peace Agreements7. A review of peace agreements demonstrates that where they reach a framework stage, they bring together conflict resolution ambitions with political and constitutional reform most often through the use of three key devices: • state re-definition • disaggregation of power, and • dislocation of power8. These three devices operate to address secessionist claims in self-determination disputes which involve disputes over the legitimate territory of the state, but also can be used to address other challenges to the legitimacy and inclusiveness of the state in other forms of conflict.State Re-definition9. The first ingredient of peace agreement constitutional reform is re-definition of the state. Dealing with the symbolic issue of who ‘owns’ the state, and who the state serves, is often vital to reaching agreement and to grounding substantive political and constitutional change. While all states claim to exercise power on behalf of their people, the relationship between the governors and the governed comes under constant pressures to reinvent and renew itself even in the most peaceful and stable of settings. In conflict societies the project of renewing the connections between the state and those who inhabit it is even more critical. Conflict both reflects a radical break-down in these connections, while further break-down is both a symptom and a consequence of conflict. The state must respond to arguments that it does not fairly represent or distribute resources to all its citizens equally and fairly. Provisions re-defining the purpose, ethos and basis of the state are vital to grounding any change to the nature of the state and a move from an exclusive state to a more inclusive one.10. At the level of symbolism and rhetoric, peace agreements therefore provide for a fundamental redefinition of the state, aimed at radical inclusion of those who feel themselves to be outside the state’s current formation. The redefinition of the state’s nature and purpose is reflected both in constitutional language that the state is different in nature, and in the articulation of new principles to guide institutional reform and decision-making.11. Often new provisions are viewed slightly differently by different parties to the conflict. Typically the state concedes new language re-defining the social contract at the heart of the state as a project of renewing the contract that is already there. 6
  7. 7. Non-state opponents view the new language as a new start and a new state. While these positions appear to be directly contradictory, often both parties are right – in articulating a new relationship between people and the state, provisions which are often primarily symbolic, create new possibilities for inclusion by articulating a new or renewed basis for government. These provisions have a performative power in laying down a new basis for citizenship and belonging, which comes to ground and guide other reform developments.12. The issue of state unity is often an important one for the state who will view this unity in terms of a unified territory and a monopoly over government and the use of force. However, paradoxically in peace processes a new form of unity is often achieved by disaggregating power from central control to different sectors of society, and/or regions, of the country, and by dislocating power from the state institutions and strict territorial definitions of the state, to new permutations of actors including international actors and civil society. This new unity often involves newly defined understandings of ‘sovereignty’ and ‘self-determination’. Disaggregation of Power13. The second ingredient of political and constitutional reform is to put in place mechanisms that give effect to the re-definition of the state by re-distributing its power so as to address issues of marginalization, poverty and discrimination and create a more inclusive state in practice. At the level of institutional detail, peace agreements often disaggregate power by re-conceptualizing state governance and jurisdiction as being capable of being disaggregated into a wide variety of territorial, functional, and identity-based mechanisms and institutions, so as to accommodate competing group demands for effective participation.14. While state redefinition re-configures the conceptualization of the relationship between state and people, disaggregating power involves re-configuring the state’s institutional formations, so as to give effect to the redefinition. Paradoxically, the state’s future unity is secured by its ability to fragment its power so as to devolve it closer to those who it affects. The state achieves unity through diversifying the modalities of government. Rather than seeing the constitution as a once-off social contract, the constitution is seen more as a process document, reconstituting the state as a set of mechanisms and processes for on-going participation in decision- making. This is a new conceptualization of constitutionalism which moves the constitution away from being a static document agreed for all time, towards constitutionalism as contingent on inclusive processes that incorporate all groups in society and provide them with fair and effective participation in an on-going way. A number of different academics, lawyers and peacemakers from both international law and domestic constitutional law perspectives have pointed to this shift from substance to process. 8 Ian Martin, former UN Secretary General Representative for Nepal, for example, has identified the five fundamentals of the Nepal peace process as being: a commitment to power-sharing and consensus; a commitment by the Maoists to transform their movement to conform with8 See Klabbers, J ‘The Right to be Taken Seriously: Self-determination in International Law’ (2006)Hum Rgts. Q. 186 (arguing that the right to self-determination is now understood in international law tobe a principle which underwrites processes of negotiation and accommodation); Weller, M. ‘SetttlingSelf-determination Conflicts: Some Recent Developments’ (2009) Int.Comp.L.Qu. 111-165. 7
  8. 8. democratic multi-party reforms, and the rule of law; a commitment to ambitious political, economic and social transformation; and the commitment to address the needs of victims and build the rule of law through ending impunity. 9 Re-definition of the state: ideological conflicts El Salvador: The preamble of the Peace Agreement, 16 January 1992 affirms the parties’ main purpose as being ‘to end the armed conflict by political means as speedily as possible, promote the democratization of the country, guarantee unrestricted respect for human rights and reunify Salvadorian society.’ Guatemala: The preamble of the Agreement on Constitutional Reforms and the Electoral Regime 7 December 1996, notes the existence of democracy and human rights in the constitution since 1986 , but provides that, ‘Constitutional reform contained in this Agreement constitutes a substantive, fundamental basis for the reconciliation of Guatemalan society within the framework of the rule of law, democratic coexistence, full observance of and strict respect for human rights, an end to impunity and, at the national level, the institutionalization of a culture of peace based upon mutual tolerance and respect, shared interests and the broadest possible public participation in all structures of power.’ Mozambique: The General Peace Agreement for Mozambique, 4 October 1992 is fashioned around a notion of a commitment to dialogue and to multi-party democracy. The need for a clear connection between the activities of political parties and ‘the will of the people’ is emphasized. The parties ‘agree on the necessity of guaranteeing the workings of a multiparty democracy in which the parties would freely cooperate in shaping and expressing the will of the people and promoting the democratic participation by the citizens in the Government of the country.’ Nepal: The Comprehensive Peace Agreement between the Government of Nepal and the Communist Party of Nepal (Maoist), 21 November 2006 makes the connection between democracy and self-determination explicit. Self-determination is understood as ‘free control over resources’. This agreement sets out new political arrangements in terms of a project of connecting democratic structures with an exercise of the ‘will of the people’, using the language of sovereignty but placing sovereignty in the concept of ‘the people’ rather than ‘the state’. The preamble roots the agreement to end armed conflict in ‘the political understanding between the two parties, in order to accomplish through the constituent assembly, certainty of sovereignty of Nepali people, progressive political outlet, democratic restructuring of the state, and socio-economic-cultural transformation.’ Provision for elections is couched in the need for elected government to ‘practically ensure sovereignty inherent in the Nepali People’ – suggesting elections as the means to this project rather than its end. The notion of participation and ‘the people’ prompts the recognition not just of class-based divisions emblemized by the opposition of Maoists to Monarchy and ruling elite, but of the need for a much broader inclusivity which opens up the agreement to become a deep and comprehensive constitutional settlement, rather than a limited pact between rivals for power. The constitutional project is therefore: ‘[t]o carry out an inclusive, democratic and progressive restructuring of the state by ending the current centralized and unitary form of the state in order to address the problems related to women, Dalit, indigenous people, Janajatis, Madheshi, oppressed, neglected and minority communities and backward regions by ending discrimination based on class, caste, language, gender , culture, religion and region.9 See 8
  9. 9. 15. An almost infinite variety of mechanisms and modalities of disaggregating power exists – these provisions can be very creative. The most common (used separately or in different permutations) are: territorial sub-division of government, consociational government, forms of personal jurisdiction, robust human rights machinery, and power-sharing in justice and security apparatus, set out in the table and explained further below. Table showing mechanisms for disaggregating power Territorial sub-divisions of power - autonomy - uniform or differentiated regionalism - confederal arrangements - polycommunal federation or regionalism (where federal or regional boundaries correspond to ethnic-racial or political divisions) Conceptual sub-divisions of power - autonomy of decision-making over culture, religion, education - forms of personal jurisdiction Consociationalism / power-sharing government - Broad-based parliamentary coalitions and power-sharing in executive - Minority or mutual veto in areas of vital interests - Proportionality at every level: elections, and allocation of resources - Segmental group autonomy / ‘corporate federalism’ Assisting electoral support Civil society involvement in government Other provisions for under-represented groups, for example, women Disaggregation of military power: - merged armies - democratic accountability over armed forces Robust human rights protections Robust socio-economic reform a. Territorial sub-division of power. Power can be disaggregated through territorial sub-division, whereby government can take place at local levels, for example through autonomy, or regional, cantonal, or even city-wide government. In Bosnia Herzegovina, for example, the Dayton Peace Agreement devolved power to two sub-state ‘entities’ the Republika Srpska, and the Croat-Muslim Federation of Bosnia Herzegovina. 10 In the Federation where populations were divided on the basis of ethnicity, power was further devolved to regional cantons. In the two cantons with mixed Croat-Muslim populations, power was further devolved to city administrations. Territorial sub-divisions of power are often used to address territorial-based self-determination conflicts. b. Conceptual sub-division of power. It is also possible to divide power up conceptually, giving communities governmental power over particular areas, such as education or cultural development. In Northern Ireland, for example, local communities were given some power over policing, both in terms of setting policing priorities and holding police to account, with some budgetary oversight through local policing partnerships. The interim10 General Framework Agreement for Peace in Bosnia and Herzegovina, 21 November 1995 [hereafterDayton Peace Agreement]. 9
  10. 10. peace agreements (never completed) between Israelis and Palestinians in the Middle East, were also extremely creative in the ways in which they disaggregated power. In addition to establishing autonomy and Palestinian government in urban centres, proposals for the divided city of Jerusalem, contemplated dividing jurisdiction territorially (with different populations controlling services in different areas); functionally (with some functions of government being devolved and some, such as security, remaining centralized), and personally (so that Israelis and Palestinians would only have jurisdiction over their own community, even when they were physically in an area of territorially devolved power). Perhaps an extreme example, and never implemented, the agreements at least provide an indication of just how creative attempts to resolve conflict can be. c. Power-sharing and consociational government. Arendt Lijphart has defined consociational government as (1) broad based parliamentary coalitions, which ensure that minorities are not permanently excluded from political power (2) mutual vetoes in areas of vital interests (3) proportionality representation in electoral systems and decisions over allocation of resources (4) segmental group autonomy, over specific territory, or concepts, such as ‘development’ or ‘education’. 11 These types of arrangement have been described as ‘principled realism’ – principled because they contemplate elections and a human rights framework, but realistic because they respond to the limits of majoritarian rule by giving access to government to divided groups- an important conflict resolution device in ethnically or politically divided societies. 12 In the Bosnian settlement of the Dayton Peace Agreement described above, the central state introduced power-sharing mechanisms at the state level: a three- member presidency, proportional representation of Muslims, Croats and Serbs in the legislature, and ethnically balanced composition of judiciary, and a range of other institutions. Sometimes power-sharing is viewed as temporary, 13 sometimes permanent. 14 d. Opening up of the electoral process. In Colombia, Guatemala and Mozambique, although each encountered different difficulties of implementation as well as flawed outcomes, peace settlements made detailed provision for electoral reform. In Colombia, peace agreements provided for specific rights to assistance to convert into political parties, including access to the media. 15 The 1991 Constitution, provided for political organization, new electoral laws, and new territorial entities for devolved government. 1611 Lijphart, A (1969) ‘Consociational Democracy’ World Politics 21: 207.12 McGarry, J. & B. O’Leary (2004) The Northern Ireland Conflict: Consociational Engagements(Oxford, Oxford University Press) 19-24.13 See Sections 77-86, Constitution of the Republic of South Africa 200 of 1994 [hereafter InterimConstitution].14 See Articles IV-V, Annex 4, Dayton Peace Agreement, but cf. Sedjić and Finici v Bosnia andHerzegovina (application nos. 27996/06 and 34836/06) (striking down the ethnically-tied presidency asdiscriminating against ‘others’ who were not members of the groups mentioned).15 See eg, Political Agreement between the National Government, The Political Parties, M-19 and theCatholic Church as Moral and Spiritual Guardian of the Process, 9 March 1990.16 Political Constitution of Colombia, 1991. 10
  11. 11. Guatemala, Agreement on Constitutional Reforms and the Electoral Regime, 12 December 1996 Elections are the essential instrument for the transition which Guatemala is currently making towards a functional, participatory democracy. For that purpose, Guatemala has, in the form of the Supreme Electoral Tribunal, an independent institution of recognized impartiality and prestige which is a key element in safeguarding and strengthening the electoral regime, It is necessary to increase citizens participation in the electoral process and to overcome the phenomenon of abstentionism in order to strengthen the legitimacy of public authority and consolidate a pluralistic, representative democracy in Guatemala. The level of electoral participation is the result of many different social and political factors, including the impact of civil institutions on the daily lives of Guatemalans, the capacity of political parties to fulfil peoples expectations, the degree of organized participation by citizens in social and political life and their level of civic education, all of which are elements which the package of peace agreements already signed seeks to strengthen. The electoral process is marred by specific shortcomings which impede the effective enjoyment of the right to vote. These shortcomings include citizens lack of reliable documentation, the absence of technically prepared electoral rolls, difficulty of access to registration and voting, lack of information and the need for greater transparency in election campaigns. This Agreement seeks to promote legal and institutional reforms which will remedy those shortcomings and constraints and, together with the other peace agreements, help to improve the electoral regime as an instrument of democratic transformation. In Mozambique, peace agreements provided for detailed legislative electoral reform, a new electoral commission, international monitoring. 17 In Guatemala, the relevant peace agreement stated past difficulties encountered with elections (see box below), and provided for an electoral commission, public education, voting reform, documentation reform, among other matters. e. Involvement of civil society in government. Sometimes power is disaggregated not just through tweaks to representative democracy, but through provision for a broader form of participatory democracy which even includes civil society organizations, and/or indigenous peoples. 18 Some peace agreements give civil society direct roles in transitional governance. These roles range from provision for civil society consultation, which forms a ‘selling-the-agreement’ type role, to provisions which stipulate civil society involvement in political and legal institutions. Some peace agreements provide for civil society organizations to be included in constitution- and legislative-drafting activities that are normally considered the preserve of elected political institutions. This drafting function can range from the inclusion of civil17 General Peace Agreement for Mozambique, 4 October 1992.18 See further Bell & O’Rourke The People’s Peace note 1 above. 11
  12. 12. society representatives on constitution-drafting bodies; 19 to mandating popular consultation in advance of drafting the constitution. 20 Peace agreement framers have often also sought to make use of civil society expertise in the establishment and reconfiguration of legal institutions. This involvement seems motivated by the need for such processes to have a broad communal legitimacy, but also so as to be able to access the appropriate practical expertise, often not present in political and military actors on their own. 21 Such input has been secured either through consultation with civil society groups on particular aspects of institutional reform; 22 or through reserving seats for civil society representatives in the bodies responsible for (re)forming and operating new institutions. 23 f. Disaggregating military power. A key power which was disaggregated in Mozambique, Guatemala, El Salvador and Nepal was that of the security forces – the military and the police. In the first three cases, elected representatives are given primacy over security forces with clear lines of democratic accountability and provision for sharing of power by combining state and opposition forces in the process of reform, subject to human rights standards. In Nepal, agreements aimed to confine armies to barracks, while providing for democratic restructuring for the future. 24 There can be a tension between incorporating all previous combatants in armed forces and reducing armed forces to a size appropriate for peacetime, which requires to be addressed. It can also be important to put in place assistance and measures for ex-combatants to enable them to return to civilian life, so that incentives to become involved in new forms of conflict or crime are reduced. g. Robust human rights protections and rule of law reform. While human rights protections aim to protect rights, if robustly enforced they can also operate to disaggregate power. Checks and balances on power, and mechanisms by which citizens can find redress for abuse of power, operate to limit government power. In particular, human rights measures place restraints on the use of violence. 25 It is important to recognize that in19 Agreement on Provisional Arrangements in Afghanistan Pending the Permanent Re-Establishment ofGovernment Institutions, 22 December 2001; Draft Basic Agreement Concerning the BougainvilleReconciliation Government (Transitional Provisions, Art. 33), 1998; Political Charter in Sudan 1996(which advocates constitutional reform ‘based on the values of participatory democracy’).20 As in the Bougainville Peace Agreement of 2007 (B.1.17), and the 1996 Protocol on the mainFunctions and Powers of the Commission on National Reconciliation in Tajikistan (para. 7).21 The UN Secretary-General’s report on transitional justice and the rule of law (2004: 17) recommendsthe involvement of civil society in deciding mandates and membership of truth commissions in order toavoid allegations of appointments being rushed or politicized.22 For example, Guatemala’s 1996 Agreement on the Strengthening of Civilian Power and on the Roleof the Armed Forces in Democratic Society (III.16(i) provided for the active involvement of bodiesoutside the state system of justice in the legal reform process)23 For example in the Burundian Truth and Reconciliation Commission established by the ArushaAccord 2000 (Protocol 1, Art. 8.2)).24 Article 4, Comprehensive Peace Agreement Between the Government of Nepal and the CommunistParty of Nepal (Maoist), 21 November 2006.25 See further Campbell , C. And I. Connolly, ‘Making War on Terror? Global Lessons from Northern Ireland’69(6) Modern Law Review (2006): 935-957 (noting that the ‘dampening effect’ of the rule of law onconflict, extends not just to state violence but also to non-state violence). 12
  13. 13. one sense often the whole peace agreement attempts to address human rights and the rule of law. The purpose of a peace agreement is to restore some type of social contract between citizens and their government, so that the rule of law can be re-established. Political institutions and constitutional reform itself forms part of an equality agenda. However, peace agreements must also address the specific difficulties of human rights violations. Human rights violations, both civil and political and social and economic are often both a root cause of conflict, and a symptom of conflict. The rule of law is often degraded during conflict because counter-terrorist strategies often remove some of the traditional human rights protections, for example through emergency legislation or by increasing administrative discretion. Post-conflict, the rule of law must be rehabilitated. The structure of the Comprehensive Agreement on Respect for Human Rights and International Humanitarian Law between the Government of the Republic of the Philippines and the National Democratic Front of the Philippines, 16 March 1998 (CARHRIHL), itself demonstrates the close connection between human rights and the broad structural issues at the heart of the conflict. h. Robust socio-economic reform (addressed further in Part II below). Peace agreements often aim to open up the key decisions of the state, such as those relating to the allocation of socio-economic rights, to the participation of a broader range of actors than electoral democracy alone guarantees.Dislocation of Power16. Peace agreements often also dislocate power from the state as traditionally understood. There are two ways in which power can be dislocated from the traditional state making its sovereignty less unitary and absolute. Settlement terms can operate to dislocate power from the pre-existing demos of the territorially-defined state by making concepts of sovereignty a little less absolute and more of a relative or ‘relational’ concept. 26 Dislocated power addresses the state’s external sovereignty by attenuating it. Again, dislocating power can paradoxically assist the state to stabilize to a new form of unity, because it assists in underwriting and guaranteeing the disaggregation of power internally.17. In practice dislocating power involves building the relational dimension of sovereignty through two devices used separately or together: • bi or multi-nationalism – typically used in cases of ethnic conflict with secessionist demand, and • international supervision – used in a range of conflicts18. Bi or pluri-nationalism can be used both to ensure an agreement’s commitments are honoured, and to reassure groups that their national identity will be recognized and respected. A bi or pluri-nationalist approach acknowledges competing26 See M Loughlin, The Idea of Public Law (2003, Oxford, Oxford University Press) Chapter 5, fordiscussion of the ‘relational’ dimension to sovereignty historically. 13
  14. 14. nationalisms as equally legitimate and creates institutional vehicles for governance that move beyond a traditional understanding of the state’s territorial limits. Mechanisms for achieving pluri-nationalism include: • cross border governance and forms of shared authority • devolution of all powers and trappings of statehood to a sub-state entity • dual citizenship • provisions providing for ‘parity of esteem’ of different national groupings or for those who aspire to different constitutional outcomes • postponed referenda on secession which reconstitute the state as requiring on- going consent in the interimThese mechanisms can be combined in various matrices to produce arrangements thatunravel the conventional link of sovereignty to territory and to national citizenry, soas to produce a new set of relationships capable of accommodating national identitiesnot just within, but also across, borders. Table showing mechanisms for dislocating power Bi- or pluri-nationalism • Cross-border governance • Devolution of powers and trappings of statehood to sub-state entity • Dual citizenship and provision for ‘parity of esteem’ • Postponed referenda on secession International supervision • International peacekeepers or administrators • ‘Hybrid’ institutions (courts, public bodies, national human rights institutions • International actors involved in implementation tasks (policing reform commissions, prisoner release bodies, etc)19. A second way to dislocate power is through the concept of international involvement in the new ‘domestic’ arrangements. International involvement can play three roles: first, use of international actors can help guarantee to distrustful parties that the agreement’s provisions will be implemented; second, international actors can play roles in on-going mediation of difficult issues, for example, by sitting on a range of commissions established by the agreement; thirdly international actors can be involved directly in ‘hybrid’ versions of what are normally national institutions, such as judiciary, or public corporations, both to stabilize them in the face of group competition, and to ensure that good practices are instituted from an early stage.20. Dislocating power assists the disaggregation of power by introducing an international element into domestic governance. This can be as radical as full international administration of states (Bosnia Herzegovina) or as limited as some international personnel having peace agreement implementation functions (see South African Brian Currin’s role in prisoner release in Northern Ireland).21. International involvement is rarely contemplated to be permanent rather it is often viewed as enabling a transition to a future domestic sovereignty rooted in the political and legal institutions that will disaggregate power, to ensure that all 14
  15. 15. groups are accommodated. In the interim period (often left indefinite) international actors are given extensive roles in domestic political and legal institutions, with a view to enforcing and developing these institutions.Political Imagination22. The peace agreement exists as a practical exercise in conflict resolution, but also as an attempt to move towards a better political constitution that aims to found and enable community as an alternative to violence. The search for a new political constitution – as in a new understanding of the ties that bind the community together in a common political project - may or may not involve changing the legal constitution. However, using this deeper sense of the word ‘constitution’ peace agreements should be understood as attempting conflict resolution and constitutionalism simultaneously. The technical conflict resolution exercise often involves trying to get those at the heart of the conflict to engage in a joint process. Some need guarantees of the process to be persuaded to enter it; others will need some guarantee that constitutional substance is on offer; some need to be told that the unitary state will not change in the peace process; others need to feel that an alternative to the old state is possible an on the agenda. Some need to be assured of international guarantees; others need assurance of the existing state’s undiminished sovereign independence. Often peace agreements try to move beyond these irreconcilable demands by addressing them all in the peace agreement in creative ways. The peace agreement attempts to create a new platform for a new political future by incorporating elements of all the demands into its text (see example below). Belfast Agreement language on Self-determination: ‘constructive ambiguity’ [The parties] recognise that it is for the people of the island of Ireland alone, by agreement between the two parts respectively and without external impediment, to exercise their right of self-determination on the basis of consent, freely and concurrently given, North and South, to bring about a united Ireland, if that is their wish, accepting that this right must be achieved and exercised with and subject to the agreement and consent of a majority of the people of Northern Ireland; This provision aimed to incorporate and thereby transcend competing visions of what the appropriate territorial self-determination ‘unit’ was.23. On a literal reading such peace agreement provisions can appear to be ambiguous and even dishonest in promising all things to all people. However, the attempt to incorporate disagreement into a novel language translated into a new set of commitments and institutions can also be viewed as creating a new way of doing business. It is possible to view peace agreement constructive ambiguity as articulating a new more fluid concept of constitutionalism-as-process. This new constitutionalism tries to build common community on an agreement to disagree, while working to build a set of commitments and institutions which enable that disagreement to be transcended because they enable on-going negotiation and participation in governmental decision-making.24. Interestingly, established western democracies not experiencing violent conflict are also moving to this more fluid type of constitutionalism. Peace agreement ‘exceptionalism’ and innovation can be viewed as a heightened and self-conscious 15
  16. 16. form of what is a normal constitutional development. Spain, the United Kingdom and Canada, for example, have all moved to embrace their ‘pluri-national’ nature, by devolving power to sub-state entities in which sub-state nationalities predominate. 27 Moreover, sovereignty is now a much more attenuated concept generally. States are in all sorts of supra-national relationships to which they have conceded some power, for example through regional and international organizations such as the European Union, or the International Monetary Fund. Peace agreements can build on the post-state dimensions of our contemporary legal landscape to fashion creative solutions, with creative approaches to sovereignty.Questions of Constitutional Authorship and ProcessChallenges of Constitutional authorship25. Aside from reaching agreement, there are several difficulties with constitutional and political reform as a process of conflict resolution. The first is that while peace negotiations often require secrecy and diplomacy in order to keep those responsible for waging the war on board, constitution-making is usually understood to be a ‘by the people, for the people’ project.26. Often peace negotiations see a tension between a project of conflict resolution which must involve the main protagonists of conflict and give them concrete reassurances as to their political future, and a project of political constitution- building which must involve as wide and deep consultation and dialogue as possible. This tension creates a process and a sequencing difficulty which must be acknowledged and managed. This issue came to the fore in the Supreme Court decision in the case relating to the Memorandum on Ancestral Domain where the decision in part focused on whether there had been sufficient consultation on the Memorandum on Ancestral Domain. 2827. The tensions can perhaps be understood as questions around who are the legitimate authors of any constitutional settlement. In fact, questions over constitutional authorship are inherent to the project of constitutionalism even in the most settled of contexts: are the framers the on-going and only authors?; when are judges interpreting and when are they taking over the job of authorship?; does contemporary society and its values have a role in mediating constitutional interpretation inserting its ‘authorship’?28. On a practical level, the peace process must decide who should sit at the negotiating table to draft the agreement, and what the criteria of legitimacy are for who is invited to the table. Secondly, the peace process must address how the voices of all relevant parties should be heard by the negotiations process whether they are directly at the table or not.27 See further S. Tierney (2004) Constitutional Law and National Pluralism (Oxford, OxfordUniversity Press).28 The Province of North Cortabato, v The Government of the Republic of the Philippines Peace Panelon Ancestral Domain, Philippines Supreme Court, G.R. No. 183591, October 14, 2008. 16
  17. 17. 29. Peace processes and agreements have often found creative ways to reconcile tensions between conflict resolution and constitutionalism. They often do this by attempting to create a complex multiple authorship for any settlement terms. a. For example, in South Africa the ANC disputed the legitimacy of the former South African Government to design the constitution which they wished to be drafted after elections by a fully representative body. However, the former South African Government wished to secure constitutional guarantees for the white population before agreeing to a transition of power. The parties finally reached a solution by agreeing to draft an interim constitution which included provisions for elections and a final constitution to be drafted. The interim constitution set out a number of constitutional principles with which the final constitution had to comply and gave the new Supreme Court the task of adjudicating whether the final constitution lay within the parameters of the negotiated constitutional principles. Through this process device, a way to reconcile the competing interests of the past and the future government was found which left constitutional drafting to the new elected government, but within the negotiated constraints of the constitutional principles. b. In Colombia a process of negotiation between left wing guerrilla groups and the government in the early 1990s led to a wider process of constitutional reform in which civil society played a key role, and the drafting of the 1991 constitution as a peace document. It must be noted though that despite this initiative other revolutionary forces such as the FARC and the ELN continued their armed struggle. c. In Guatemala while negotiations were between the government and the URNG, a parallel civic assembly was set up which officially ratified on behalf of civil society agreement reached in the negotiation process. Even though this ratification was a matter of form it provided a mechanism for civil society input to the peace process, and legitimized the pacts reached by polito-military groups involved in the formal negotiations. d. In Northern Ireland, the conflict resolution dynamics of the peace process led to governing phrases such as ‘nothing is agreed until everything is agreed’, and ‘sufficient consensus’ (the idea, borrowed from South Africa, that any proposal needed to have ‘sufficient consensus’ from the main opposing nationalist/catholic and unionist/protestant groups to enter the peace agreement, rather than unanimity). These approaches could have squeezed out broader input into the peace agreement, but ongoing processes such as public surveys on peace process proposals based on a ‘preferenda’ rather than a ‘yes/no’ question – that is these surveys asked people to rank proposals from their ‘most favoured’ to ‘least favoured’ and could therefore identify consensus ‘least bad’ positions across Catholic and Protestant populations, 29 - served to garner support, debate and ideas which then entered the talks process.29 See further, C Irwin, The People’s Peace Process in Northern Ireland (2002, Palgrave MacMillan). 17
  18. 18. 30. Gender and ‘non-conflict’ minorities. A particular issue can arise with regard to the inclusion of women and minorities who have not been centrally involved in violent conflict, who can find themselves sidelined in negotiations. There are now imperatives in international law to include women in peace negotiations. UNSC Resolution 1325 and its successors, 30 provides for the representation of women in peace negotiations and women mediators. Countries (including the Philippines), have published national action plans detailing how they intend to implement Resolution 1325. 31 Peace processes have again found innovative ways to ensure that gender issues are dealt with. Some processes have appointed gender advisors (see for example the Ugandan Peace process), or have established a gender sub- committee involving women from the relevant parties and from civil society. In Northern Ireland, a novel form of election to the negotiating table was designed, intended to provide a mandate for parties associated with paramilitary groups who had very low electoral support. 32 The low threshold of votes required to field a negotiating team enabled other small parties to be represented and a Women’s Coalition was born and successfully contested the elections winning a place at the negotiating table.Challenges of Legitimate Constitutional Process31.A second tension between conflict resolution and constitutional reform lies in the question of whether peace agreement provisions for constitutional reform must take place within the framework of the existing constitution or not. This dilemma is not merely a process dilemma but cuts to the heart of the conflict. The government will see the constitution as legitimate and its own commitments to justice, fairness and the rule of law, as requiring it to act within the framework of the constitution. However, non-state opposition groups in violent conflicts often reject the constitution as legitimate, and are seeking a radical new dispensation and so reject the need to work for change within the constitutional framework.32. Again it is worth noting that this type of debate is characteristic of the dilemmas of constitutionalism generally, although in the non-peace agreement context these dilemmas play out more subtly. Constitutions try to balance the need for lasting stability and renewal and revision, through a series of mechanisms such as weighted majorities for constitutional reform. However, countries with established constitutions often also face ‘constitutional moments’ when judicial decisions essentially change the foundation of the constitution in ways that can be argued to fundamentally alter the foundations of the constitutional settlement but also to comply with it. 33 The story of the Gordian Knot, tells how the legitimacy of a ruler was based on an elaborate knot, with rulership secession only passing on his death to the person who could untie the knot. Eventually a man rode into town and in one swoop cut the knot, and became the new ruler. From one point of view, the new ruler violated the implicit constitution heralding rupture and a new beginning; from another perspective, he had in fact provided a creative30 UNSC Res 1325 (2000), UNSC Res 1820 (2008), UNSC Res 1888 (2009).31 See for country actionsplans.32 K Fearon, Women’s Work: the Story of the Northern Ireland Women’s Coalition(Blackstaff, Belfast, 1999).33 See B Ackerman We the People: Foundations I (1991, Harvard University Press). 18
  19. 19. interpretation of the implicit constitution by resolving the riddle of the knot in an unexpected way. The Gordian knot captures the ways in which constitutional foundations are often changed by actions which can claim to be simultaneously novel applications of a deep constitutional heritage, and an abrupt rupture with past constitutional settlements.33. Peace agreements aim for an end to violence and a new beginning. In reaching out for a new beginning a dilemma exists as to how to find a way to ‘cut the Gordian knot’ and create a new constitutional dispensation, while acknowledging the existence and parameters of the existing constitution. States have taken quite different approaches as the following discussion indicates.34. Often where there has been widespread and very violent conflict, and even the formation of new states, societies have essentially jettisoned existing constitutional structures creating new constitutions which do not acknowledge or refer to past constitutional orders, for example in Bosnia. Others, for example, Colombia in 1991 and Burundi 2000, saw the peace process establish a new process of constitution-making aimed to produce a new constitutional consensus embodied in a new constitution (all with only partial success).35. Many peace processes, however, find a means of achieving radical constitutional revision which live with the tensions of reform through the frame of the existing constitution, see for example, the implementation of agreements in Northern Ireland/Ireland, and in Macedonia. However, sometimes there is a need to interpret the constitutional frame flexibly. As part of the Belfast Agreement, for example, the Irish government committed to amending the constitution to remove articles 2 and 3, in which it claimed jurisdiction over Northern Ireland. 34 This provision was vital to obtaining the agreement of Protestant Unionists in Northern Ireland who objected to these articles. In fact, the Irish constitution could only be amended by public referendum, and so in a technical sense constitutional amendment was not in the gift of the government. Therefore the government made a direct commitment to change the constitution, even though all parties were aware that this would have to be implemented through the normal processes of constitutional reform, including a referendum of all the people of Ireland whose result was not entirely predictable.36. A particular difficulty arises with regard to judicial review of the constitutionality of attempts to develop, amend or even replace the constitutional framework as part of peace negotiations. Courts must sometimes find new approaches to their jurisprudence if they are to enable a peace process and some examples of a new jurisprudential approach to peace agreements are beginning to emerge, as the box above indicates.34 The Agreement Reached in Multiparty Negotiations 10 April 1998 [hereafter Belfast Agreement],incorporating the Annex: Agreement between the Government of the United Kingdom of Great Britainand Northern Ireland and the Government of Ireland. 19
  20. 20. Robinson v Secretary of State for Northern Ireland and Others, [2002] UKHL 32, 230, the House of Lords majority judgment held that the Northern Ireland Act should be interpreted purposively, in the light of the unique circumstances underlying it. They described the Act as ‘a constitution for Northern Ireland, framed to create a continuing form of government against the background of the history of the territory and the principles agreed in the Belfast Agreement.’ The court used this interpretation to interpret a specified timescale in which elections were to be held as flexible rather than absolute. The Court stated in justification of its purposive approach: “It would no doubt be possible, in theory at least, to devise a constitution in which all political contingencies would be the subject of predetermined mechanistic rules to be applied as and when the particular contingency arose. But such an approach would not be consistent with ordinary constitutional practice in Britain. There are of course certain fixed rules, such as those governing the maximum duration of parliaments or the period for which the House of Lords may delay the passage of legislation. But matters of potentially great importance are left to the judgment either of political leaders (whether and when to seek a dissolution, for instance) or, even if to a diminished extent, of the crown (whether to grant a dissolution). Where constitutional arrangements retain scope for the exercise of political judgment they permit a flexible response to differing and unpredictable events in a way which the application of strict rules would preclude.” Advisory Opinion on the Accordance with International Law of the Unilateral Declaration of Independence in Kosovo, International Court of Justice, 22 July 2010. The Court re- framed the advisory opinion question and found that General International Law provided no prohibition of declarations of independence, and that the declaration did not contravene international law. However, to reach this decision the Court had to find that the declaration had not been made by the Assembly of Kosovo, but by the authors of the declaration ‘in their capacity as representatives of the people of Kosovo outside the framework of the interim administration’. The ambiguities of the decision are controversial, but can be viewed as operating to enable a political future. Pleno. Sentencia 31/2010, de 28 de junio de 2010 (BOE núm. 172, de 16 de julio de 2010), The Spanish Constitutional Tribunal had to decide, inter alia, whether a Catalan Autonomy Estatut which described Catalonia as a ‘nation’ contravened the Spanish Constitution’s provision which established Spain as a ‘unified nation’. Although a relatively conservative judgment, the Court showed signs of a more flexible interpretation, in the idea that it could distinguish between a legal statement of Catalonia as a nation which might have contravened the Spanish Constitution, and a more political concept of Catalonia as a nation which could be interpreted not to violate it.37. The challenge over when and how to reconcile peace agreements with pre-existing constitutions can be viewed as related to a meta-constitutional dispute – a dispute over what the appropriate constitutional frame is or should be. It can be useful to think of negotiation over constitutional reform in conflict resolution processes as involving meta-bargaining as between different constitutional frames of vision, and the process of agreement as requiring some type of constitutional language which incorporates radically different constitutional ambitions. This matter is returned to in Part III below. 20
  21. 21. II. SOCIAL AND ECONOMIC REFORMS38. Socio-economic issues have a central relevance to conflict and to constitutional and political reform. Ensuring a fair allocation of resources is one of the central roles of the state. Struggles over political and constitutional reform are connected to contests over decision-making, use of natural resources, fair distribution of socio-economic goods, and the meeting of basic human needs such as access to food, health care, and social security.39. Interestingly, the concept of self-determination in international human rights law connects the right to determine one’s political status, to pursuing economic, social and cultural development and control over natural resources. Common Article 1(2) and (2) of the International Covenant on Civil and Political Rights, and the International Covenant on Social, Economic and Cultural Rights, provides that 1(1) All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development. 1(2) All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence.40. While political and constitutional reform in peace negotiations aims for a new social contract that will ensure effective participation of all in public life, these measures, without more, may not ensure effective participation in social, economic and cultural life. Provisions directly addressing effective participation in economic and social life are of equal importance. Minority rights standards and women’s rights standards talk of ‘effective participation’ in economic and social life, while indigenous peoples rights standards talk of ‘free and prior informed consent’ of such peoples to social and economic decisions affecting them or their lands. 35 These concepts can inform peace negotiations and attempts to address socio-economic participation more generally.41. Addressing socio-economic participation requires addressing different levels of exclusion. • Removing effective barriers to participation35 See eg, Article 1(1) Declaration on the Rights of Persons Belonging to National or Ethnic, Religious,and Linguistic Minorities (as approved by the Commission on Human Rights at the forty-eighth session1992), and Article 5(2) Framework Convention for the Protection of National Minorities, 1995; TheInternational Labour Organisation’s Convention on Indigenous and Tribal Peoples in IndependentCountries – 169/1989 refers to the principle of free and informed consent in the context of relocation ofindigenous peoples from their land in its article 6. In articles 6, 7 and 15, the convention aims atensuring that every effort is made by the States to fully consult with IPs in the context of development,land and resources; The UN Declaration on the Rights of Indigenous Peoples, 2007, contextualises theright to self-determination for indigenous peoples as requiring ‘free and prior informed consent’, andhighlights specific instances where it applies in articles 10, 11, 19, 28, 29 and 32. 21
  22. 22. • Creating new structures aimed at encouraging and facilitating ‘effective participation’ • Ensuring effective participation in the benefits and outcomes in social and economic spheres, including the right to benefit from economic development, health services, social security and other forms of benefits, and by monitoring and evaluating programmes There are a number of ways to address these levels of exclusion. 36 Mechanisms for Addressing Socio-economic Exclusion42. Prohibition of discrimination and provision for equality in socio-political life. All barriers to socio-economic participation should be lifted, and anti- discrimination provisions put in place. At a minimum the state should clearly prohibit discrimination with respect to socio-economic participation. However, at a positive level, the state should commit to equality and to enabling socio- economic participation of all sections of the community. In Northern Ireland, for example, a new equality duty required all public bodies to proof all its decisions in terms of how they impacted on equality, and to engage in consultation with affected communities. 3743. Instituting social protection programmes and making them available to all sections of the population. Social protection programmes are ‘tools that can assist States in fulfilling their obligations under human rights law, such as rights to social welfare, an adequate standard of living, and to social security.’ 38 Reviews of public services and welfare institutions should focus on whether obstacles to participation exist, and whether these services are equally available across the country. With regard to minorities, women, or indigenous peoples, states should take measures to prepare the staff of public services and welfare institutions to provide adequate responses to the needs of persons. In such measures should be taken with a view to • Ensuring an adequate legal and institutional framework for social protection • Adopting comprehensive, coherent and coordinated polices for social protection • Ensuring that nobody is unfairly excluded, by targeted programmes by (a) screening policies, (b) taking steps to minimize exclusion errors (c) undertake analysis of the programme’s capacity to properly monitor compliance and respond to extreme poverty before funding it36 These mechanisms draw heavily from the Advisory Committee on the Framework Convention forthe Protection of National Minorities, Commentary on the Effective Participation of Persons Belongingto National Minorities in Cultural, Social and Economic Life and in Public Affairs, 27 February 2008;and from Commission for Social Development, 49th Session, Geneva, 11 February 2011, UNIndependent Expert on the question of human rights and extreme poverty.37 See Section 75, Northern Ireland Act.38 See Commission for Social Development, note 31 above. 22
  23. 23. • Complying with standards of accessibility and availability of the programme • Providing cultural accessibility by culturally appropriate outreach relating to the programmes • Ensuring transparency and access to information • Ensuring access to complaint mechanisms and to effective remedies • Ensuring strategies of ongoing meaningful and effective participation44. Identifying and redressing depressed regions and areas: ‘targeting social need’. Where there have been historically disadvantaged areas, or uneven development or even de-development, government policies should be skewed to address these areas. Targeted development commitments can also be aimed at dealing with legacies of poverty. A large number of peace agreements deal with the socio-economic legacy of conflict by establishing special development programmes targeted at conflict-affected or historically deprived areas. This approach has some history in peace process efforts in the Philippines both with the Moro National Liberation Front (MNLF) and the NDFP. There are two different types of development priority that can be set. The first focuses on immediate relief and short-term emergency reconstruction for conflict-affected areas, so that they can see some type of ‘peace dividend. These provisions can include targeted relief, perhaps with specific assistance for disarming combatants or returning refugees. The modalities of delivering immediate relief can be used to create new cooperative processes, between estranged groups, and between public servants, politicians and business leaders. In addition to these short-term measures, a longer-term setting of development priorities must be developed, and appropriate processes of inclusion established.45. Particular measures aimed at including particular populations wherever they are situated. Often disadvantaged groups such as women or indigenous peoples have been particularly excluded from participation in social and economic life and require particular assistance to overcome ‘spirals of exclusion’. This assistance requires strategies specific to the difficulties faced by those populations to be designed, and to be effectively implemented and coordinated.46. Access to land and property as a condition for participation in socio- economic life. • Wealth-sharing agreements. New territorial divisions of power must address how territorial sub-units will be financed, and what level of control they will have over their natural resources and from the revenue raised from them. Inadequate resourcing of sub-units will undermine the political participation that these units aim to bring, while lack of transparency or clarity in funding arrangements will fuel conflict between the sub-unit and the central state. • Land or agrarian reform. Unequal access to property, including land, is often a source of conflict while legacies of conflict and discrimination can 23
  24. 24. often also create disparities in land ownership which require to be addressed in any peace settlement. Violations of land rights or limitations imposed on the use of land by certain groups, such as indigenous peoples, whose economic situation is closely connected to land usage, can significantly undermine participation in socio-economic life. Peace agreements often address these matters, but must balance the need to set a framework for dealing with these issues, with the need for consultation with affected communities and sectors who may not be directly represented at the negotiating table. • Privatization processes. Unequal access to property, including land, can be connected to privatization processes and processes of property restitution. States should ensure access to such processes, that they are transparent, with mechanisms to monitor and evaluate their impact. Indigenous people’s standards talk of ‘free and prior informed consent’, and this principle can inform state’s use of its resources more generally. 39 Those who are affected by policies such as privatization or change of land usage should be involved in processes of free and prior informed consent, with a requirement of ‘good faith’.47. Housing standards and participation in socio-economic life. Sub-standard housing conditions, often coupled with forms of housing segregation, can affect the ability of groups of people to participate in socio-economic life. It can result in their further poverty, marginalisation and social exclusion. This exclusion can be made more acute where there are no legal provisions protecting against forced evictions. Discriminatory practices should be ended and effective measures put in place to address problems of substandard housing and lack of access to basic infrastructure. In doing so, authorities should provide for adequate participation of persons affected by decision-making on housing and related programmes designed to improve their socio-economic situation, in order to ensure that the needs of these persons are adequately catered for.48. Health care and participation in socio-economic life. Discrimination, poverty, geographical isolation, cultural differences or language obstacles can result in difficulties in accessing health care. This can have a negative impact on the participation of persons in socio-economic life.49. Decentralization and participation in cultural life. Processes of decentralisation can play an important role in creating the conditions necessary for persons belonging to national minorities to participate effectively in cultural life. In particular, cultural autonomy arrangements, whose aim is to delegate competences to persons from different backgrounds in the sphere of culture and education can increase participation.50. Mechanisms of good governance and financial accountability. Instituting processes and mechanisms of good governance, anti-corruption and financial accountability, is important to ensuring fair and equitable division of socio- economic resources.39 See note 35 above. 24
  25. 25. 51. Statistical data and monitoring of programmes. The state should collect data and gather up-to-date information on the socio-economic and educational situation of its citizens, with a particular focus on minority populations. This data should be reliable and able to be disaggregated by age, sex and geographical distribution. Such statistics are an important condition for the development of well-targeted and sustainable measures, which meet the needs of people. It is also crucial for formulating policies and measures to tackle discrimination in areas such as access to employment and hosing. As the UN Special Rapporteur on Human Rights and Extreme Poverty notes: ‘[d]ata collected as a result of population census are, in general, insufficient to serve as a sound basis for these policies and measures. Affected populations, and in particular minorities, should be involved in the process of data collection and methods of collection designed in close cooperation with them.’ 40 III. CONCLUSIONS: BUILDING NEW POSSIBILITIES FROM NEW PLATFORMS52. Peace Agreements by themselves do not change anything. They often arrive into a situation of great distrust and scepticism – of the parties of each other, and of other citizens of the parties and even of the peace process itself. In the early 1990s peace agreements were often seen as the end point of a process instituting ‘peace’ as a permanent cessation of hostilities. That view has given way to a view of the peace agreement as a beginning of a long and difficult process of implementation and reconstruction both of a political space, and of the country’s economic, social and cultural basis. Often three transitions must take place simultaneously – a transition from war to peace, a transition from exclusive, contested or authoritarian government to inclusive and participative government, and an economic transition from poverty and inequality to development. The peace agreement can provide an opportunity to enlarge the space for political debate, greater political participation, for greater socio-economic participation, and for more effective and representative governance.53. The peace agreement provides an agenda or road map setting out a new set of priorities and processes with regard to (a) routes out of conflict (b) new constitutional and political development and (c) social and economic priorities, and (d) restorative justice, and (e) participation of society in the on-going outworking of the peace process itself.The Moral and Legal Authority of Peace Agreements54. While each peace agreement is specific to the particular conflict it addresses, the ways in which peace agreements marry conflict resolution ambitions with the language and dilemmas of constitution-making can be argued to be developing a new lex pacificatoria or ‘law of the peacemakers’. This law of the peacemakers can be understood as a common way of doing business as parties deal with similar dilemmas within the same international legal framework. This common practice with its legal dimensions finds its legal roots in a number of different sources.40 Para 30-31, Advisory Committee Report note 36 above. 25
  26. 26. 55. Persuasive authority. There are only so many ways to broker agreement between contenders to power. At its most basic, the law of the peacemakers is propelled through the concept of shared common sense. Processes of sharing and diffusion take place across processes. However, even if they did not, solutions such as powersharing, territorial autonomy, robust human rights protections, and past-focused accountability mechanisms would persist, as a necessary way of negotiating an end to conflict. Peace agreement constitutionalism as ‘power-map’ finds a persuasive authority to the extent that it can pull parties from conflict to peace.56. Common principles of law. The lex pacificatoria finds a root in the general concepts of law drawn from across legal regimes. Most obviously, international human rights and humanitarian law and comparative constitutional law provide potentially applicable common principles. For example, the concept of ‘effective participation’ now finds support in minority rights standards, indigenous people’s standards, reports addressing poverty, women’s rights standards, and interpretations of human rights law. These principles inform and support parties in finding creative solutions to conflict.57. Ius gentium. The idea of common principles of law, links to a third site of the lex pacificatoria, perhaps best labelled ius gentium or cosmopolitan or natural law. Behind the application of international law is the idea that it forms an embodiment of cosmopolitan values which are being implemented and refined even as they are being negotiated into local contexts. Peace agreements have added to accepted and codified norms such as those of human rights law, new concepts articulated with language that has a natural law ‘feel’. These include ‘effective participation’, ‘good faith’, ‘truth’ and ‘reconciliation’. The natural law currency of these terms assists borrowing of language and mechanisms across processes and the persuasive authority of the lex as a new language for new problems.58. Transnational contract. Finally the lex pacificatoria finds a legal root in the concept of the peace agreement as contract. Peace agreements are, at one level, contracts. From this dimension the new lex draws its legal force from the idea that law is made consensually between parties who contract into a new regime. The peace agreement forms a direct contract between warring factions with the partial beginnings of a social contract. This accounts for the curious feel of peace agreements as simultaneously ‘a bit constitutional’ and ‘a bit contractual’. Peace agreement drafting must strive for a balance between precise language and lots of detail for short-term commitments such as provision to cease hostilities and demobilize, and language which might enable a deeper constitutional consensus to emerge, which might rely more on symbolism and rhetoric, than on precision in its attempt to capture and articulate a new political imaginary.Doing Good? Law and Peace Processes59. In negotiating, implementing and adjudicating on peace agreements it is important to recognize the ways in which they operate as a new form of transnational public law that require new approaches. I suggest that a full understanding of the relationship between conflict resolution and the project of political, economic and 26
  27. 27. social change point to six commitments as important to embracing this new public law and to ‘doing good’ in peace processes.60. Commitment to legal pluralism. The first commitment is to a pluralist conception of law capable of recognizing multiple legal and quasi-legal orders all with a claim to autonomy, and none acknowledging the higher authority, or sometimes even the existence, of the other. Acknowledging legal pluralisms enables the recognition of claims to international law, the prior domestic constitutional order, alternative constitutional orders, and the peace agreement constitutional order, as all having a legal validity and purchase. It also involves recognizing the difficulty of any of these legal orders in asserting superior authority over the others, or accepting the superiority of another order over the existing order. All legal claims can be recognized as contingent on one’s views of the nature of the state and the conflict.61. Commitment to constitutional pluralism. A commitment to ‘constitutional pluralism’ means working towards a constitutional framework that serves as a holding device, holding together competing constitutional visions, rather than a final settlement of them. This commitment recognizes that there is no constitutional default position, that is: there is no one constitutional framework that claims the prior allegiance of all those in the state. Commitments to the prior constitutional order and to radical constitutional revision all must be reconciled. Building a constitutional future requires winning allegiance and winning consent to a way forward on an incremental basis. Recognition of constitutional pluralism requires those implementing peace agreements, whoever they may be, to re- envisage their task as one of ongoing inter-constitutional dialogue rather than constitutional consolidation. The implementation task must be one of avoiding the old constitutional default positions in favour of a vision of constitutionalism as on-going process. For courts, the commitment to legal pluralism can involve finding creative approaches to interpretation, such as: moving from literal interpretations of what constitutional provisions require that leave space for a new constitutional dispensation; or finding constitutionally legitimate ways of ‘avoiding’ decisions that would seek to impose a static vision of ‘the constitution’ that cannot accommodate attempts at negotiated revision; or finding a new language in which to talk about sovereignty, consent, and constitutional revision. This approach can be signalled in the peace agreement itself, as the example of Bougainville in the box below illustrates. Bougainville Peace Agreement, 30 August 2001 A. ROLE AND STATUS OF THIS AGREEMENT 1. This Agreement is the basis for drafting the constitutional amendments and other laws, which the National Government will move to provide for implementation. 2. The implementing Constitutional and other laws will state that they are intended to give legal effect to this Agreement. 3. This Agreement: (a) will be used as a guide for implementation and to assist the Courts in interpreting the Constitutional and other laws, which give legal effect to this agreement; (b) is intended to be interpreted liberally, by reference to its intentions, and without undue reference to technical rules of construction. 27
  28. 28. 62. Commitment to recognizing law’s performative dimension. The third commitment is to recognition of the performative power of legal claim and counter claim in both conflict and peace process. Legal claims always have a performative power – once something is claimed through law, the nature of the claim changes – it must be dealt with legally as well as politically. Peace agreements are startling for the ways in which the rhetoric and substance of the agreement go hand in hand. State re-definition, for example, happens through the constitutional articulation that the state is re-defined as much as through actual change. The performative nature of constitutional recognition of the state’s opponents, for example, can deliver change in and of itself. Textual recognition is not merely a tool to other forms of institutional reform, but often constitutes a key end in itself. We never imagine that people kill and die for textual recognition, but often they do and so it is important to take law’s performative potential seriously. However, there is a dark side to law’s performative power. Parties to the conflict and the peace process will often use technical legal argument to re- shape peace agreements in their own image, making ‘strategically instrumentalist’ claims. Performative legal claims will be used by all those involved in implementing peace agreements, and addressing these claims must involve naming and addressing the performative dimension of the claim as well as its legal technicalities.63. Commitment to negotiated justice. The difficulty with commitments to pluralism and performativism is that these commitments seem to imply that both peace process and conceptions of law must float free from overarching norms. The commitment to negotiated justice involves a commitment both to adhere to normative standards while recognizing that justice must be negotiated – between the parties to the conflict, and between the conflict resolution imperatives of the conflict and international legal standards. In one sense all legal norms are negotiated into application, with human rights norms having limitation clauses, such as proportionality. However the concept of negotiated justice in the peace agreement context goes beyond this dynamic. Negotiated justice understands the negotiation of international legal standards into the domestic conflict resolution sphere to comprise an attempt to develop both domestic constitutionalism and international standards as having a common cosmopolitan ambition, rooted in an ethic of accommodation of diversity.64. Commitment to complex accountability. A key issue arises as to who will implement the peace agreement. Who will ensure that the commitments will be honoured in a situation that is in one sense ‘anarchic’ between the state and its opponents? Often the answer is that a mix of internal and international actors, elected representatives and others are given implementation tasks; however, this mix raises questions of who is accountable to whom. The commitment to complex accountability involves a commitment to forms of coordination that can operate even in the absence of a single fully effective or accepted coordinator. This ‘complex accountability’ re-conceives the task of peace agreement implementation as one of ‘reciprocal monitoring and mutual constraint’, of the parties to the conflict, of international actors charged with implementation tasks.65. Commitment to enabling moral, legal and political imagination. The five commitments: to legal and constitutional pluralism, to law as peformative, to 28
  29. 29. negotiated justice, and to complex accountability – are bundled up in a sixth overarching commitment: the commitment to view legal intervention as capable of enabling or disabling political and moral imagination as regards how best to exit from violent conflict. This commitment may require curtailing legal instincts for coherence, clear hierarchies, and literal interpretations of clauses intended to be constructively ambiguous in an attempt to build consent, confidence and bridges to a new future. Rather, peacemaking must involve moral, legal and political imagination. New standard setting and international intervention and the advice of lawyers should be made with an eye to their effect on this imagination. As a rule of thumb, where these shut down local dialogue, enable the suppression of marginalized voices, or place the letter of the text above its core intent, they should be treated with suspicion. This fifth commitment tries to incorporate two realities. First, that peacemaking is a strategic and technical project of inducing parties towards incremental and difficult partial agreement, which can only be done by avoiding that one give way on its vision of the state. This observation drives the idea that a concept of law is needed which can take account of clashing constitutional visions and competing accounts of the source or legal or constitutional legitimacy. The second reality is that we live in a normative world where law has a legal, political and moral power. Not everything is freely negotiable, as agreements that do not address core issues such as injustice and exclusion will not sustain peace in any meaningful sense of the word. Justice and inclusion are normative and practical requirements of lasting peace. International Law is one of the few instruments capable of standing as a lode-star of fairness, with some claim to objectivity as between the parties to the conflict. Somewhere in the middle, these two realities must be married, and the six commitments are offered to support a spirit of legal imagination aimed at maximizing the radical progressive potential of peace processes. This potential lies in connecting the appeal of law and constitutional reform to the vulnerable who view it as a means for achieving justice and accountability, while remaining alert to the need for continual reinvention of law and constitution as an ongoing process of dialogue between institution and need.Building Political Capital for a Peace Process66. Given the subtleties of peace negotiations, the constitutional ambitions that lie behind seemingly technical conflict resolution approaches, and the legal and political difficulties that implementation can present, it is important that there is a constituency who can articulate a transformative vision for the peace process. This constituency can come up with experimental thinking, and articulate a middle way that is not a space of crude unprincipled compromise but a space of imagination.67. A crucial dimension of a peace process is to take steps to build peace constituencies both nation-wide and among particular communities and political groupings. In Northern Ireland there were many diverse and overlapping initiatives, all of which were important. Churches established ‘peace advocates’ within congregations. Political parties and armed groups set up their own (initially secret) partnerships to engage in cross-community dialogue at an inter- personal level which informed them as to how ‘the other side’ viewed them and their actions. Women’s groups set up conferences and initiatives, sometimes 29