Brooke Davies introduces a new report, Implementing Peace Agreements through Domestic Law, which examines how domestic law can be used to grant legal status to intrastate peace agreements.
Parties to an intrastate peace agreement are stuck between a rock and a hard place with regard to their agreement’s legal status. On the one hand, they often care greatly that the agreement has a legal status; that it is something more than a simple—and shreddable—piece of paper. On the other, it is well-settled that purely intrastate agreements are not considered treaties and therefore cannot gain legal status under international law. While some parties have devised creative ways to attach international obligations to all or part of their agreement, by and large the traditional means of granting legal status are unavailable to parties concluding intrastate agreements.
If parties care about the legal status of their peace agreement, and yet cannot easily grant it one through the prevailing mechanisms, what are they to do? As the title suggests, my new report, “Implementing Peace Agreements through Domestic Law,” offers an alternative path. Drawing on nineteen intrastate peace agreements, it puts forward a typology of how parties to these agreements can and have used domestic law to implement their terms.
The report argues that, to resolve this dilemma, parties have designed and included their own ad hoc “legalization provision” in the agreement. These provisions serve several purposes. They answer the crucial question of where exactly the peace agreement falls in the hierarchy of the state’s constitutional and statutory law (often: at the top). They help lay the legal foundation upon which the parties derive their legitimacy to act in the post-conflict period, binding them in turn not just to an agreement, but to law. And perhaps most importantly, they serve as the bridge between the legal order as it is to the legal order as the parties now wish it to become: they prescribe how the parties should bring their domestic law in line with potentially conflicting terms in the peace agreement. As such, these legalization provisions are vital to the agreement’s implementation, and by extension to the cessation or resumption of war.
Aware of their importance, and the relatively little attention paid to them, this report provides an in-depth analysis of how they have been designed in the past, the benefits and risks of each design route, and how might parties proceed with designing their own provisions in the future. The report argues that, when designing a legalization provision, parties must make two sets of choices. First, they must choose whether to give legal status to their agreement through legislation/executive decree, constitutional amendment, and/or constitutional replacement. Secondly, they must choose whether to pass this legislation/executive decree, amendment, or replacement in line with procedures that comply (‘continuity’) or break with (‘rupture’) the procedures prescribed by the existing constitution. These two choices serve as the axes that constitute the report’s typology.
Due to the various purposes they serve, and the case-by-case nature of their design, these legalization provisions also take a variety of forms. Some merely state a need for the terms of the agreement to be integrated into the domestic order. Others might outline broad principles by which any future domestic law must abide. And others still might dictate word-for-word the legislation/executive decree, amendment, and/or replacement that must be passed as part of the agreement’s implementation. Cambodia’s Paris Agreement did all three. These provisions may also be expressly transitional, as with Liberia’s Accra Agreement, or they may lay down the permanent law of the land, as with Bosnia’s Dayton Agreement. Or, like Lebanon’s Taif Accord, they may be conditional on some future occurence. And they may be placed throughout the peace agreement or gathered into one annex at the end. No matter their style or structure, though, they will never stray from the two dimensions mentioned above.
Choice One: Legislation/Executive Decree, Amendment, and/or Replacement
Whether parties choose to design a provision that prescribes legalization through legislation/executive decree, constitutional amendment, and/or constitutional replacement will depend largely on the parties’ wishes and the context’s realities.
Legislation/executive decree provisions can be used to give the entire agreement a constitutional status (see Northern Ireland’s Good Friday Agreement), but they most often appear when the parties wish to implement programmatic packages or discrete logistical tasks included in the peace agreement. Côte d’Ivoire’s Ouagadougou Agreement primarily concerned regulatory and logistical concerns like the reconstruction of lost records and the redeployment of administrative courts. As such, its peace agreement relied heavily on legislation and executive decree provisions.
Amendment provisions, meanwhile, appear more often in agreements where the parties care greatly about constitutional continuity yet wish to reorganize fundamental state structures or political, economic and social rights. Guatemala’s Agreement on a Firm and Lasting Peace stands as one particularly salient example. A mammoth set of ten agreements spanning 175 pages, the agreement prescribed changes to almost every institution in Guatemalan life, from reforms to its tax law to a constitutional redesign of the three branches of government. Yet despite what amounted to an ad hoc replacement, the agreement prescribed strict adherence to the constitution’s amendment procedures. Even when the peace agreement prescribes an amendment procedure that ruptures with the constitution, as with Liberia’s Accra Agreement, the provision is still in essence tying the parties to the existing constitutional order.
Constitutional replacement, by contrast, will by necessity constitute a substantive rupture with the existing constitutional order. However, parties still seem to care greatly about how they should come into being. Some, like Sudan’s 2005 CPA and South Africa’s Interim Constitution, will prescribe continuity with the old constitution’s amendment procedures. Others, like Sudan’s 2019 Constitutional Declaration, will outright “repeal” the old constitution and then outline a complex series of procedures for bringing a new one into being. As such, even with the substantive rupture of replacement provisions, they can vary greatly in both form and the symbolic and political value they carry.
Choice Two: Rupture or Continuity with the Existing Order
On this dimension, the report offers a five-prong evaluative tool that parties and advisers should consider when weighing the relative risks of continuity or rupture, and how to mitigate them. They include: (1) the practicability of engaging in continuity or rupture; (2) perceptions of the old order’s legitimacy; (3) the parties’ positions on this question and their relative strength; (4) the degree of threat that spoilers may seek to undermine the implementation by capitalizing on a ruptured legalizaton process; and (5) the international community’s preferences toward rupture or continuity.
To be sure, one factor may carry more weight than others in a given context. Parties are dealt different cards, and as such they must play their hand in the way that is the most appropriate for their situation. However, together these five considerations can help parties identify the biggest risks to choosing rupture or continuity, and how might those risks be minimized. Each of them are defined and discussed in depth in the report.
At their core, these legalization provisions are creatures of necessity. They are designed to help parties stitch together their political desires, expressed in the terms of the peace agreement, with the legal order they have been handed. Moreover, they attempt to implement an agreement often concluded under profound time pressure, resource strain, and institutional disruption. As such, they vary greatly in form, style, and structure. However, this report provides a typology and analysis that may help guide parties and advisers through their own design process, so that they come out on the other side confident in the future of their institutions and the new order they have established.
Read the full report: Implementing Peace Agreements through Domestic Law
About the Author
Brooke Davies is a Satter Human Rights Fellow with the International Institute for Democracy & Electoral Assistance (IDEA), focusing on conflict resolution and constitution-building in the Middle East and Africa. Brooke holds a JD from Harvard Law School, and she previously worked as a clinical researcher with the Harvard Negotiation and Mediation Clinical Program. Her research interests include constitutional design, post-conflict implementation, and international conflict mediation.