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

Published online by Cambridge University Press:  25 April 2017

CHRISTINE BELL Open the ORCID record for CHRISTINE BELL [Opens in a new window]
CHRISTINE BELL*
Affiliation:
School of Law, University of Edinburgh, Old College, South Bridge, Edinburgh EH8 9YL
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*Email: [email protected]
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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.

Keywords

constitution-makingdemocratisationpolitical settlementpost-conflicttransition
Type
Special Issue: Constitution-making and political settlements in times of transition
Information
Global Constitutionalism , Volume 6 , Issue 1 , March 2017 , pp. 13 - 32
Copyright
Copyright © Cambridge University Press 2017 

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Footnotes

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.

References

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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);Google Scholar 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); Whaites, A, States in Development: Understanding State-Building (DFID, London, 2008)Google Scholar; AusAID, Framework for Working in Fragile and Conflict-Affected States: Guidance for Staff (Australian AID, Canberra, 2011)Google Scholar.

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

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

17 Ibid 288 and 310.

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

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

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

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