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Introduction: Bargaining on constitutions – Political settlements and constitutional state-building

  • CHRISTINE BELL (a1)
Abstract:

This article considers the relationship between constitutions and political settlements and locates the special issue articles within this wider discussion. The article points to the apparently paradoxical connection between disillusionment with internationalised state-building techniques on one hand, and increased international faith in constitution-making as a state-building tool on the other. Using understandings of the relationship of the constitution to political settlement which draws on conventional constitutional theory, it argues that the current context of negotiated transitions requires constitution-making to be approached with an eye to the distinctive dilemmas of statecraft that pertain in contemporary transitions. The most central dilemma concerns how power-balances between political/military elites can be broadened to ensure the constitution’s capacity to fulfil its normative role in restraining power and delivering broader social inclusion. The pieces which make up this special issue draw together development and legal discourses. This article suggests how constitutional theory provides a resource for those seeking to promote constitutionalism as a tool for reaching political settlements capable of resolving conflict. It also argues that those who seek to rely on constitutions for conflict resolution need to understand this enterprise as just as political and fraught as all other institution-building efforts.

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Corresponding author
*Email: christine.bell@ed.ac.uk
Footnotes
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1

Christine Bell is Assistant Principal (Global Justice) and Professor of Constitutional Law (University of Edinburgh), and Director of the Political Settlements Research Programme. All articles in this special issue, including this one, are an output of the Political Settlements Research Programme (www.politicalsettlements.org), supported by funding from the Department of International Development, United Kingdom, although nothing herein constitutes the views of the Department, or has been subject to input by the Department.

Footnotes
References
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2 See generally, Huntington, SP, The Third Wave: Democratization in the Late Twentieth Century (Oklahoma University Press, Norman, OK, 1991) (whose original thesis was much more critical and anticipating of failure than is often given credit to); and more recently, T Carrothers, ‘End of Transition Paradigm’ (2005) 13(1) Journal of Democracy 5.

3 Cilliers, J and Sisk, TD, Assessing long-term state fragility in Africa: Prospects for 26 ‘more fragile’ countries (Institute for Security Studies Monograph, Number 188, Pretoria, South Africa, 2013).

4 A de Waal, The Real Politics of the Horn of Africa: Money, War and the Business of Power (Polity Press, Cambridge, 2015) 17.

5 See further C Arnson (ed), El Salvador’s Democratic Transition Ten Years After the Peace Accord (Woodrow Wilson Reports on the Americas, Washington DC, 2003) at <https://www.wilsoncenter.org/sites/default/files/elsalvador.pdf>.

6 See in particular: Word Development Report 2011 (World Bank, Conflict, Security, and Development, Washington DC, 2011) available at <http://siteresources.worldbank.org/INTWDRS/Resources/WDR2011_Full_Text.pdf>; Brown, S and Grävingholt, J, From Power Struggles to Sustainable Peace: Understanding Political Settlements (Conflict and Fragility, Paris: OECD, 2011); W Evans, A Review of the Evidence informing DFID’s ‘Building Peaceful States and Societies’ Practice Paper (DFID Research and Evidence Division Evidence Products, Paper 1: Political Settlements, Peace Settlements, and Inclusion, London, January 2012); A Whaites, States in Development: Understanding State-Building (DFID, London, 2008); AusAID, Framework for Working in Fragile and Conflict-Affected States: Guidance for Staff (Australian AID, Canberra, 2011).

7 Mac Ginty, R, International Peacebuilding and Local Resistance: Hybrid Forms of Peace (Palgrave Macmillan, Basingstoke, 2011); R Mac Ginty, ‘Hybrid Peace: The Interaction between Top-Down and Bottom-Up Peace’ (2010) 41(4) Security Dialogue 391; V Boege, A Brown, K Clements and A Nolan, ‘On Hybrid Political Orders and Emerging States: State Formation in the Context of “Fragility”’, Berghof Handbook (Berghof Foundation, Berlin, 2008) available at <http://www.berghof-handbook.net/documents/publications/boege_etal_handbook.pdf>. See further M Barnett and C Zürcher, ‘The Peacebuilder’s Contract: How External Statebuilding Reinforces Weak Statehood’ in R Paris and TD Sisk (eds), The Dilemmas of Statebuilding: Confronting the Contradictions of Postwar Peace Operations (Routledge, New York, NY, 2009) 23.

8 S Unsworth, ‘What’s Politics got to do with it? Why donors find it so hard to come to terms with politics, and why this matters’ (2009) 21(6) Journal of International Development 883.

9 Di John, J and Putzel, J, Political Settlements: Issues Paper (DFID, Governance and Social Development Resource Centre, London, June 2009).

10 United Nations, Uniting Our Strengths for Peace – Politics, Partnership and People (Report of the High-Level Panel on United Nations Peace Operations, United Nations, New York, NY, 16 June 2015); United Nations, The Challenge of Sustaining Peace (Report of the Advisory Group of Experts for the 2015 Review of the United Nations Peacebuilding Architecture, United Nations, New York, NY, 2015); United Nations, The Global Study on Women, Peace and Security (United Nations, New York, NY, 2015).

11 International Center for Transitional Justice and Kofi Annan Foundation, Challenging the Conventional: Can Truth Commissions Strengthen Peace Processes? (International Center for Transitional Justice, New York, NY, 2014) vii, available at <https://www.ictj.org/sites/default/files/ICTJ-Report-KAF-TruthCommPeace-2014.pdf>.

12 See e.g. Framework Convention for the Protection of National Minorities and Explanatory Report (1 February 1995) <http://conventions.coe.int/Treaty/en/Treaties/Html/157.htm>; and United Nations Declaration on the Rights of Indigenous Peoples 2007 at <http://www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf>.

13 See art 9, Charter of the Organization of American States (OAS) (30 April 1948) <http://www.oas.org/en/sla/dil/inter_american_treaties_A-41_charter_OAS.asp>. Arts 19–22, Inter-American Democratic Charter (11 September 2001) <www.oas.org/charter/docs/resolution1_en_p4.htm>; Art 30, The Constitutive Act of African Union (AU) (11 July 2000) <http://www.au.int/en/sites/default/files/ConstitutiveAct_EN.pdf>; Declaration on the Framework for an OAU Response to Unconstitutional Changes of Government (hereinafter – Lomé Declaration) of Organisation of African Unity (later AU) No. AHG/Decl.5 (10 July 2000) < http://www.peaceau.org/uploads/ahg-decl-5-xxxvi-e.pdf>; AU African Charter on Democracy, Elections and Governance (hereinafter – African Charter) (2007) <http://www.ipu.org/idd-E/afr_charter.pdf >.

14 Ibid, see also Council of Europe, European Commission for Democracy through Law (Venice Commission) (hereinafter – Venice Commission) <http://www.venice.coe.int/WebForms/pages/?p=01_Presentation>.

15 M Loughlin, Foundations of Public Law (Oxford University Press, Oxford, 2011).

16 For core literature see Elster, J, (ed) ‘Forces and Mechanisms in the Constitution-making Process’ (1995) 45 Duke Law Journal 364; Ghai, Y (ed), Autonomy and Ethnicity: Negotiating Competing Claims in Multi-ethnic States (Cambridge University Press, Cambridge, 2000); Choudhry, S (ed), Constitutional Design for Divided Societies: Integration or Accommodation? (Oxford University Press, Oxford, 2008); Samuels, K, Constitution building processes and democratization: A discussion of twelve case studies (International IDEA, Stockholm, 2007).

17 Ibid 288 and 310.

18 T Ginsberg, Z Elkins and J Blount, ‘Does the Process of Constitution-Making Matter?’ (2009) 5 Annual Review of Law and Social Science 201.

19 See further C Bell and K Zulueta-Fülscher, ‘Sequencing peace agreements and constitutions in the political settlement process’ (International IDEA Policy Paper, Stockholm, 2016).

20 M Kaldor, ‘How Peace Agreements Undermine the Rule of Law in New War Settings’ (2016) 7(2) Global Policy 146.

21 There are, of course, some exceptions, notably S Choudhry (ed), Constitutional Design for Divided Societies: Integration or Accommodation? (Oxford University Press, Oxford, 2008).

22 For an interesting discussion of this dynamic see C McCrudden and B O’Leary, Courts and Consociations: Human Rights versus Power-Sharing (Oxford University Press, Oxford, 2013), discussing the European Court of Human Rights’ approach to power-sharing in Bosnia-Herzegovina.

1 Christine Bell is Assistant Principal (Global Justice) and Professor of Constitutional Law (University of Edinburgh), and Director of the Political Settlements Research Programme. All articles in this special issue, including this one, are an output of the Political Settlements Research Programme (www.politicalsettlements.org), supported by funding from the Department of International Development, United Kingdom, although nothing herein constitutes the views of the Department, or has been subject to input by the Department.

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Global Constitutionalism
  • ISSN: 2045-3817
  • EISSN: 2045-3825
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