Peace Agreements and Constitutional Reform

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

PAPER COMMISSIONED BY THE PHILIPPINE PROGRAMME OF
INTERNATIONAL ALERT

Prefatory Note

This consultative paper commissioned by International Alert and written by Prof.
Christine Bell is the product of two perspectives which combine rigorous scholarly
work focused on legal academic research on peace agreements with reflective peace
practice over several decades.

I briefly cited her landmark publication, ‘On the Law of Peace: Peace Agreements
and the Lex Pacificatoria’, discussing the evolving law of peace surrounding peace
processes at an address entitled, “Peacemaking Requires a Marathon Mentality:
Reflective Peace Practice from a Filipino Perspective,” delivered before members of
the judiciary and legal professionals at the Chief Justice lecture series during the
2009 peace month.

It was in the aftermath of this dialogue between peace advocates and legal
practitioners that the idea of an exchange of insights involving Prof. Christine Bell
came up, and so we discussed what possibilities there were for her to be involved in
bringing to bear her considerable experience and research on the emerging lex
pacificatoria and its relevance to peace processes in the Philippines.

Alert proposed the idea of a consultative paper as a first step, and dialogues with the
negotiating peace panels and members of the courts as well as peace advocates as a
way of encouraging processes that then were at an impasse.

In collaboration with Conciliation Resources, Prof. Christine Bell is scheduled to visit
the Philippines in mid-April 2011 to engage in conversations with those involved in
peace negotiations and peace advocacy. Other dialogue partners will include
members of the courts of law and the academe, representatives of civil society
organisations, women and indigenous people’s groups, legislators and members of
the international community. Roundtables with the negotiating panels of both the
Moro Islamic Liberation Front and the National Democratic Front of the Philippines
are being arranged.

It is our common hope that this consultative paper and ensuing conversations can
contribute to help advance peace efforts in the country that has now witnessed and
lived through protracted armed conflict for nearly four decades. Though the steps
taken may be modest, it is my belief nevertheless that they can constitute significant
strides in what has become a marathon journey.

Prof. Ed Garcia
Senior Policy Advisor
International Alert
London, UK and Manila, Philippines
April 2011

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TABLE OF CONTENTS

I. INTRODUCTION AND BACKGROUND 4

II. 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 Process

III. SOCIAL AND ECONOMIC REFORMS 21

Mechanisms for Addressing Socio-economic Exclusion 22

IV. 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

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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 BACKGROUND

1. 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. 6

1
Available at http://www.oup.co.uk/isbn/0-19-927096-1. Book reviewed in: American Journal of
International Law, 96(1), 2002, 282-87; Human Rights Law Review 1(1) 2001, 169-72; International
Affairs, 77(3) 2001, 689; Journal of Law and Society, 28(4) 2001, 623-7; Sunday Business Post (Brendan
O’Leary)).
2
Available at http://www.oup.com/uk/catalogue/?ci=9780199226849 Winner of Hart Socio-Legal Studies
Association 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 legal
scholarship’.
4
(2007) ‘The People’s Peace? Peace Agreements, Civil Society, and Participatory Democracy’ 28
International 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 Peace
Processes and their Agreements’ 59 International & Comparative Law Quarterly 941-980 (co-author C
O’Rourke) (versions available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1781990). See
also, '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
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1782006); ‘Women, Equality and Political
Participation’, in Anderson and Goodman (eds) “(Dis)Agreeing Ireland”, (Pluto Press, London 1999) at pp
211-231
6
‘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: Negotiating
Justice In Northern Ireland’ in J Helsing and J Mertus (eds) Human Rights and Conflict: Exploring the
Link 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 McGinty
Progressing Towards Peace (Palgrave/MacMillan, Houndsmill 2008, 2nd ed) pp 161- 173; ‘Peace

4

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 (http://www.peaceagreements.ulster.ac.uk/ 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 ISSUES

Political and Constitutional Issues and Conflict Resolution

5. 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-conflict
Peacebuilding and the United Nations (Manchester University Press, Manchester 2005) pp 241-266.
7
See also, Appendix, On the Law of Peace (2008).

5

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 Agreements

7. 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 power

8. 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-definition

9. 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.

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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 Power

13. 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 with

8
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 to
be a principle which underwrites processes of negotiation and accommodation); Weller, M. ‘Setttling
Self-determination Conflicts: Some Recent Developments’ (2009) Int.Comp.L.Qu. 111-165.

7

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 http://blog.com.np/2009/11/10/ian-martin-asks-is-peace-process-in-nepal-failing/.

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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 interim

10
General Framework Agreement for Peace in Bosnia and Herzegovina, 21 November 1995 [hereafter
Dayton Peace Agreement].

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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. 16

11
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 Interim
Constitution].
14
See Articles IV-V, Annex 4, Dayton Peace Agreement, but cf. Sedjić and Finici v Bosnia and
Herzegovina (application nos. 27996/06 and 34836/06) (striking down the ethnically-tied presidency as
discriminating 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 the
Catholic Church as Moral and Spiritual Guardian of the Process, 9 March 1990.
16
Political Constitution of Colombia, 1991.

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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 people's 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 civil

17
General Peace Agreement for Mozambique, 4 October 1992.
18
See further Bell & O’Rourke The People’s Peace note 1 above.

11

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 in

19
Agreement on Provisional Arrangements in Afghanistan Pending the Permanent Re-Establishment of
Government Institutions, 22 December 2001; Draft Basic Agreement Concerning the Bougainville
Reconciliation 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 main
Functions 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) recommends
the involvement of civil society in deciding mandates and membership of truth commissions in order to
avoid allegations of appointments being rushed or politicized.
22
For example, Guatemala’s 1996 Agreement on the Strengthening of Civilian Power and on the Role
of the Armed Forces in Democratic Society (III.16(i) provided for the active involvement of bodies
outside the state system of justice in the legal reform process)
23
For example in the Burundian Truth and Reconciliation Commission established by the Arusha
Accord 2000 (Protocol 1, Art. 8.2)).
24
Article 4, Comprehensive Peace Agreement Between the Government of Nepal and the Communist
Party 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 on
conflict, extends not just to state violence but also to non-state violence).

12

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 Power

16. 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 conflicts

18. 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 competing

26
See M Loughlin, The Idea of Public Law (2003, Oxford, Oxford University Press) Chapter 5, for
discussion of the ‘relational’ dimension to sovereignty historically.

13

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 interim

These mechanisms can be combined in various matrices to produce arrangements that
unravel the conventional link of sovereignty to territory and to national citizenry, so
as to produce a new set of relationships capable of accommodating national identities
not 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

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 Imagination

22. 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

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 Process

Challenges of Constitutional authorship

25. 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. 28

27. 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, Oxford
University Press).
28
The Province of North Cortabato, v The Government of the Republic of the Philippines Peace Panel
on Ancestral Domain, Philippines Supreme Court, G.R. No. 183591, October 14, 2008.

16

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

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 Process

31.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 creative

30
UNSC Res 1325 (2000), UNSC Res 1820 (2008), UNSC Res 1888 (2009).
31
See http://www.peacewomen.org/pages/about-1325/national-action-plans-naps for country actions
plans.
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

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 Britain
and Northern Ireland and the Government of Ireland.

19

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),
http://www.tribunalconstitucional.es/en/jurisprudencia/Pages/Sentencia.aspx?cod=9873.
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

II. SOCIAL AND ECONOMIC REFORMS

38. 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 participation

35
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 session
1992), and Article 5(2) Framework Convention for the Protection of National Minorities, 1995; The
International Labour Organisation’s Convention on Indigenous and Tribal Peoples in Independent
Countries – 169/1989 refers to the principle of free and informed consent in the context of relocation of
indigenous peoples from their land in its article 6. In articles 6, 7 and 15, the convention aims at
ensuring 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 the
right to self-determination for indigenous peoples as requiring ‘free and prior informed consent’, and
highlights specific instances where it applies in articles 10, 11, 19, 28, 29 and 32.

21

• 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 Exclusion

42. 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. 37

43. 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 it

36
These mechanisms draw heavily from the Advisory Committee on the Framework Convention for
the Protection of National Minorities, Commentary on the Effective Participation of Persons Belonging
to 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, UN
Independent 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

• 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 participation

44. 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

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

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 PLATFORMS

52. 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 Agreements

54. 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.

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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 Processes

59. 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

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.

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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

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 Process

66. 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

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