On the Law of Peace: Peace Agreements and the Lex Pacificatoria

On the Law of Peace: Peace Agreements and the Lex Pacificatoria

by Christine Bell

ISBN-10: 0199226830

ISBN-13: 9780199226832

Pub. Date: 11/30/2008

Publisher: Oxford University Press

This book describes and evaluates the development of contemporary peace processes and the peace agreements that emerge, from a legal perspective. It sets out an anatomy of peace agreement practice and interrogates its relationship to law. At its heart the book grapples with the role of law in ending violent conflict and the broader questions this raises for the

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This book describes and evaluates the development of contemporary peace processes and the peace agreements that emerge, from a legal perspective. It sets out an anatomy of peace agreement practice and interrogates its relationship to law. At its heart the book grapples with the role of law in ending violent conflict and the broader questions this raises for the relationship of law to social, change.

Law potentially plays two key roles with respect to peace agreements: first, to the extent that peace agreements themselves form legal documents, law plays an enforcement or implementation role; second, international law has a regulatory relationship to peace agreement negotiating, and content. International law regulates self-determination, transitional justice, and the role of third parties, all key elements in peace agreements.

The book documents and analyses these two roles of law to reveal a complex and dynamic relationship between the peace agreement as legal document and the regulatory role of international law. The practice of negotiating peace agreements is argued to be producing a new law of the peacemaker-or lex pacificatoria that connects developments in international law with new forms of domestic constitutional law in a set of hybrid relationships. This law of the peacemaker potentially forms part of a broader 'law of peace' that moves beyond the traditional concept of the law of peace as merely 'the rest of international law' once the laws of war are subtracted.

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Oxford University Press
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Table of Contents

Acknowledgements vii

Contents-Summary ix

Table of Cases xix

Table of Treaties, Conventions, and Other International Instruments xxiii

Prologue 1


1 An Overture 5

Background 5

The book I wanted to write 5

The book I found I could not write 7

War and peace: my personal story 9

War and peace: the ubiquitous story 11

Marrying the two stories 13

The particular or the general? 15

International or domestic law? 15

Process or substance? 17

How I wrote the same book anyway 19

The book's story 21

Conclusion 22

I Understanding Peace Agreements

2 The Rise in Peace Agreements and International Law 27

The rise in peace agreements 28

The role of international law 31

Human rights law 31

Self-determination law 35

Peacekeeping and the use of force 39

International law and the transnational exchange 42

Coclusion 44

3 Peace Agreement Patterns 46

Definitions of peace agreements 47

Is there a requirement of a link to 'peace'? 48

Is there a requirement of time? 51

Is there a requirement of 'agreement'? 52

A working definition 53

Sources of peace agreements 54

Classification of peace agreements 55

Stage-function classification 56

Pre-negotiation agreements 56

Substantive/ framework agreements 60

Implementation agreements 62

Difficulties with classification 64

Mediation of peace agreements 66

UN Secretary-General Representatives 67

Other United Nations roles 68

Regional organizations 69

Groupings of 'neighbours' or 'friends' 72

'Neutral' countries acting in the 'common good' 73

Individuals 74

Non-governmental organizations (NGOs) 74

Civil society 75

Conclusion 76

4 The Peace Agreement inHistorical Context 77

The story of international law 78

The story of peace agreements 79

Pre-classical period 80

Archaic peace treaties 80

Peace treaties and early Roman law 82

Peace treaties in the early Middle Ages 84

Peace treaties in the latter Middle Ages 86

Classical period 87

Interwar years 90

Modern period: 1945-1989 93

UN Security Council Resolution 95

Domestic peace processes 96

Decolonization agreements 97

Peculiar peace treaties 99

Pre-contemporary peace agreements 101

Contemporary peace agreements: convergence and divergence 102

Convergence 102

Divergence 103

Conclusion 104

5 The Contemporary Peace Agreement 105

Conceptualizing peace agreement solutions 105

State redefinition 106

Disaggregation of power 106

Dislocation of power 106

Hybrid self-determination 108

Settling secessionist conflicts 108

State redefinition 109

Disaggregation of power 110

Dislocation of power 111

Beyond irredentism: settling other ethnic conflicts 115

State redefinition 115

Disaggregation of power 115

Dislocation of power 116

Beyond identity: settling authoritarian conflicts 118

State redefinition 119

Disaggregation of power 120

Dislocation of power 121

Conclusion 122

II Peace Agreements as Legal Documents: Towards A Lex Pacificatorial

6 The Difficulties of Legal Classification 127

Peace agreements as international agreements 128

Armed opposition groups 130

Indigenous peoples 132

Sub-state regions and minorities 134

Legal status and international law 135

How and why do we classify? 136

From legal form to legal effects 136

The inescapable importance of positive law 138

Conclusion 142

7 Peace Agreement Legal Form 144

Contrived treaty form 145

Contrived constitutional form 149

No legal form? 153

Domestic legislation 154

Contrived 'agreement' and UN SC resolutions 155

The alternative challenge of legal form 157

Conclusion 160

8 Peace Agreement Obligations 162

Precision for short-term goals 163

Precision and ceasefires 163

Precision and transitional institutions 164

Precision and permanent institutions 164

Constructive ambiguity 166

The alternative compliance challenge: legalization in transition 169

The political bargain v constitutional framework dilemma 171

The normalization v rule of law dilemma 171

The alternative drafting challenge 172

Conclusion 173

9 Peace Agreement Third Party Enforcement 175

Third parties signing peace agreements 176

Third parties as external guarantors 177

Third parties as self-guarantors: second parties? 178

Third parties as norm promoters: fourth parties? 179

Delegation of authority to interpret and enforce peace agreements 181

An alternative conceptualization: hybrid legal pluralism 187

Legal pluralism 187

Hybridity 190

A distinctive rationale 191

Conclusion 193

III Peace Agreements And The Revision Of International Law: The Force Of The Lex

10 Constitutionalizing Conflict 199

The constitutionalization of conflict: 'Clausewitz in reverse' 200

The role of hybridity 204

Internal and external self-determination 205

Process and substance 207

Representative and participatory democracy 209

Hybridity in action 213

Conclusion 216

11 The New Law of Hybrid Self-determination 218

The 'new law' of hybrid self-determination: a statement 219

Narrative, norm and nomos 220

Hybrid self-determination as developing law 221

Norm-creep and legal standards 221

Elections 221

Minority rights 222

Participation 223

Norm-creep and the narration of law 225

Badinter Commission, Former Yugoslavia 225

Places that do not exist 226

Kosovo 227

Israel-Palestine 229

Two readings of the new law 231

A transition to a post-sovereign order? 231

A creative and progressive transition? 232

A transition to liberal democracy? 233

A conservative and duplicitous transition? 234

Conclusion 236

12 TheNew Law of Transitional Justice 239

The 'new law' of transitional justice: a statement 240

Narrative, norm and nomos 240

Transitional law as developing law 241

Peace agreement practice 241

The narration of normative compliance 242

The process of norm-creep 243

Human rights law 243

Humanitarian law 244

The United Nations and norm-creep 246

International criminal justice 248

New law as 'regime merge' 249

Restorative justice approach 250

The bifurcated approach 251

The combined approach 252

Voiding amnesty in the event of a return to violence? 253

Two readings of the new law 255

Transitional justice as creative, progressive and justice-promoting? 255

Transitional justice as exceptional and manipulated? 256

Conclusion 257

13 The New Law of Third Party Enforcement 259

The 'new law' of third party enforcement: a statement 260

Narrative, norm and nomos 260

The legal framework 260

Not an academic matter 262

Authorization of third party roles 264

Fluctuating consent 264

Fluctuating statehood 265

Developing law 265

Third party accountability 268

Humanitarian law 269

Human rights law 271

Developing new law and regime merge 272

Domestic constitutional law 275

'Complex accountability' 277

Two readings of the new law 278

Third parties as enablers of positive social change? 278

Third party involvement as imperialist and neo-colonial? 279

Conclusion 280


14 Lex Pacificatoria: Marriage of Heaven and Hell 285

The story so far 285

The peace agreement as lex 286

A theory of peace agreement constitutionalism 287

Development of the lex through the dynamic of regulation 287

The nature of the lex pacificatoria 287

Persuasive authority 288

Common principles of law 288

Ius gentium 289

Transnational contract 289

The peacemakers 290

Marriage of heaven and hell 291

Metaconstitutional discourse 291

Implementing peace agreeements 293

Re-interpreting the last battle 294

'Doing good' 295

Commitment to legal pluralism 295

Commitment to constitutional pluralism 296

Commitment to recognizing law's performative dimension 297

Commitment to negotiated justice 298

Commitment to 'complex accountability' 299

Commitment to enabling moral and political imagination 299

Conclusion: 'Epilogues' 301

Appendices (with Catherine O'Rourke)

Appendix 1 Peace Agreement Collection: Description of Content, Sources and Format 305

Appendix 2 Intrastate Peace Agreements 310

Appendix 3 Interstate Peace Agreements addressing Intrastate Conflict 338

Appendix 4 Interstate Peace Agreements 341

Bibliography 345

Index 371

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