From Belfast to Bougainville: The Constitutional Embedding of Self-Determination Provisions in Post-Cold War Intrastate Peace Agreements

• Date: 01 January 2024

1

From Belfast to Bougainville: e Constitutional

Embedding of Self-Determination Provisions in

Post-Cold War Intrastate Peace Agreements

CORMAC BERGIN*

Introduction

Since the end of the Cold War, armed conict globally has been characterised by

one principal form: intrastate armed conict.1 While the Russia-Ukraine interstate

conict is a striking recent exception to this pattern, the Uppsala Data Programme

shows that since 1990, only 42 interstate armed conicts have broken out globally,

compared with 1,058 intrastate armed conicts and 319 intrastate armed conicts

involving foreign troops.2 is trend is reected equally in data concerning peace

agreements which attempt to de-escalate or end armed conicts,3 with 1368

intrastate peace agreements having been concluded since 1990,4 compared to only

82 interstate peace agreements.5

Intrastate armed conicts have complex, multifaceted roots. While some are

motivated by ideology6 or greed for lootable natural resources,7 recent intrastate

armed conicts have also been driven signicantly by ethnic grievances. In light of

these perceived ethnic grievances, self-determination is frequently central both to

ethnic armed groups’ objectives in intrastate conicts and, consequently, to peace

agreements to resolve such intrastate conicts.

* LL.B (Pol Sci.) (Dub.), LL.M (Public International Law) (Universiteit Leiden); associate at McCann

FitzGerald LLP. e author would like to thank the editorial board members of the Hibernian Law

Journal, particularly Róisín Rainey, Eoin Doyle and MJ Gillen, for their contributions to this article.

1Daragh Murray, ‘Non-state Armed Groups and Peace Agreements: Examining Legal Capacity and

the Emergence of Customary Rules’ in Marc Weller (ed), International Law and Peace Agreements

(CUP 2021).

 Shawn Davies, erese Pettersson and Magnus Öberg, ‘Organized violence 1989–2022 and the

return of conicts between states?’ (2023) 60(4) Journal of Peace Research 691. As cited in World

101, ‘Understanding Intrastate Conict’ tanding-international-

system/conflict/understanding-intrastate-conflict#:~:text=When%20conflict%20breaks%20

out%20inside,borders%20of%20a%20single%20country> accessed 11 January 2024.

3 Christine Bell and others, ‘PA-X Codebook, Version 8. Peace and Conict Resolution Evidence

Platform (PeaceRep)’ (University of Edinburgh 2024).

4ibid. Criteria: ‘Intrastate/intrastate conict’.

5ibid. Criteria: ‘Interstate/interstate conict.’

6Christine Bell, On the Law of Peace: Peace Agreements and Lex Pacicatoria (OUP 2008) 118. See

examples of Mozambique, Guatemala, El Salvador and Nepal.

7Paul Collier and Anke Hoeer, ‘Greed and Grievance in Civil War’ (2000) 56(4) Oxford Economic

Papers 563.

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Self-determination compromises have been a key feature of recent peace

agreements aimed at resolving ethnic conicts. Agreements conceding external self-

determination through secession have been rare, featuring only in the Bougainville

peace process in Papua New Guinea8 and the Comprehensive Peace Agreement in

South Sudan.9 However, concessions granting greater internal self-determination

within the borders of the existing state have been far more prevalent, featuring at

the core, for example, of the Northern Ireland peace process.10 Some of these peace

agreements have been less successful than others, as is visible in the collapse of the

northeastern Sri Lankan peace process11 and the Chechen peace agreements,12

where parent states ultimately resorted to military oensives aer abandoning

peace processes. However, as will be discussed in this article, state practice has

shown the increasingly important role of self-determination in forging lasting

peace agreements.

A key recent feature of post-1990 peace-making is the constitutional embedding

of negotiated self-determination provisions. Constitutional embedding involves a

peace agreement becoming the new basic law of a state, such as in Sudan,13 or the

basic laws of a state being amended to incorporate the peace agreement’s provisions,

such as Papua New Guinea.14 is article explores whether the widespread practice

of constitutionally embedding self-determination provisions in intrastate peace

agreements has ‘shaped a new law of self-determination’15 between the extremes

of secession and states’ complete domestic jurisdiction. It also will draw on data

from the Peace Agreements Database16 to demonstrate a qualitative foundation

to this trend in state practice. Finally, it will use the case study of the Good

Friday Agreement and subsequent cases in Bougainville, South Sudan and Sri

Lanka to illustrate the advantages and perils of constitutionally embedding self-

determination provisions in the transition from intrastate armed conict.

8Pillar 2 of the Bougainville Peace Agreement peaceagreements.org/viewmaster

document/312> accessed 21 January 2024.

9Comprehensive Peace Agreement between the Government of Sudan and the SPLM/SPLA

(9January 2005) ch I, ss 1.3 and 2.5. n.org/sites/peacemaker.un.org/les/

SD_060000_e%20Comprehensive%20Peace%20Agreement.pdf> accessed 21 January 2024.

10Agreement Reached in the Multi-Party Negotiations (signed 10 April 1985, entered into force

2December 1999) (1998) 37 ILM 751.

11e G overnment of Sri Lanka and the Liberation Tigers of Tamil Eelam, ‘Sri Lanka Peace Talks –

Agreed Statement on Behalf of the Parties’ (21 March 2003)

viewmasterdocument/1278> accessed 21 January 2024.

12Peace Treaty and Principles of Interrelation between the Russian Federation and the Chechen

Republic Ichkeria (12 May 1997) .peaceagreements.org/viewmasterdocument/481>

accessed 21 January 2024.

13Interim National Constitution of the Republic of the Sudan, 2005 .peaceagreements.

org/viewmasterdocument/1800> accessed 21 January 2024.

14 See, inter alia, ss 186, 276, 309 and 325 of the Bougainville Peace Agreement (n 8).

15Christine Bell, ‘Of Jus Post Bellum and Lex Pacicatoria: What’s in a Name?’ in Carsten Stahn,

Jennifer Easterday and Jens Iverson (eds), Jus Post Bellum: Mapping the Normative Foundations

(OUP 2014) 185.

16Bel l (n 3).

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e Constitutional Embedding of Self-Determination Provisions 3

Part I: e Position Towards Self-Determination in

InternationalLaw

For a right as important and as widely propounded as the right to self-

determination, international law has been highly ‘ambiguous’17 about its contours.

e United Nations (‘UN’) Charter refers to self-determination in Articles 1(2)

and 55, but these references are ‘rather cryptic’,18 alluding to the ‘principle …

of self-determination of peoples’ but without elaborating on the scope of self-

determination. Furthermore, the common Article 1(1) of the International

Covenant on Civil and Political Rights (‘ICCPR’) and of the International

Covenant on Economic, Social and Cultural Rights (‘ICESCR’) declares that self-

determination is a right for peoples to ‘freely determine their political status and

freely pursue their economic, social and cultural development’19 but does not dene

the ‘notion’ of a ‘people’.20 is denitional ambiguity has made self-determination

a powerful rhetorical weapon in intrastate conicts across the globe.

An International Legal Right to External and Internal Self-Determination?

While not fully delimiting its extent, international legal jurisprudence has

developed two strands towards the right to self-determination.

Strand One: Self-Determination in Colonies and Non-Self-Governing Territories

Under the rst strand of self-determination, colonies and non-self-governing

territories have a positive international legal right to external self-determination.

is was recognised in United Nations General Assembly (‘UNGA’) Resolution

1514 (XV), which declared that all powers were to be transferred to the peoples of

‘Trust and Non-Self-Governing Territories or all other territories that have not yet

attained independence’.21 Nevertheless, it ‘mitigated’22 this by proclaiming that the

disruption of states’ territorial integrity would be contrary to the UN Charter. In

UNGA Resolution 2625 (XXV), the UNG A rearmed the right to external self-

determination for peoples of ‘colon[ies]’ and ‘Non-Self-Governing Territor[ies]’.23

UNGA Resolution 1541 (XV), furthermore, outlined three possible modalities for

17Antonio Cassese, Self-Determination of Peoples: A Legal Appraisal (CUP 1995) 1.

18James Crawford, e Creation of States in International Law (OUP 2006) 112.

19International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966,

entered into force 3 January 1976); International Covenant on Civil and Political Rights (adopted

16 December 1966, entered into force 23 March 1976).

20Anna Meijknecht, Towards International Legal Personality: e Position of Minorities and

Indigenous Peoples in International Law (Intersentia 2001).

21U NGA Res 1514 (XV) (14 December 1960) [5].

22Simone van den Driest, Remedial Secession: A Right to External Self-Determination as a Remedy to

Serious Injustice (Intersentia 2013) 30.

23A/R ES/2625 (XXV) (24 October 1970).

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the exercise of external self-determination: (i) voting for ‘emergence as a sovereign

independent state’, (ii) ‘free association’ with an existing independent state or

(iii) ‘integration’ with an existing independent state.24 While UNGA resolutions

are not binding on states, subsequent state practice as well as opinio juris, as

reected by states’ voting patterns, were held by the International Court of Justice

(‘ICJ’) in 2019 in Legal Consequences of the Separation of the Chagos Archipelago

om Mauritius in 196525to conrm that UNGA Resolution 2625 and UNGA

Resolution 1541 (XV) form binding customary international law.

However, international law has taken a restrictive view of what constitutes a

‘colony or non-self-governing territory.’ In practice, ‘only territories that were,

during the age of imperialism, forcibly acquired by a racially distinct metropolitan

power, divided by an ocean and governed in a discriminatory way for the purposes

of economic exploitation’26 encompass a ‘colony’. is ‘salt water thesis’27 of

colonialism excludes territories such as Northern Ireland, South Sudan and Eritrea

from being considered colonies or Non-Self-Governing Territories. e decline of

colonialism has resulted in only seventeen territories currently being listed by the

UN as Non-Self-Governing Territories28 and, therefore, legally entitled to external

self-determination.

Strand Two: Self-Determination Outside of the Colonial Context

Under the second strand of traditional jurisprudence, outside of the colonial

context, self-determination has been held to be a right exercisable internally

within the borders of the existing state rather than any positive right to external

self-determination in the form of secession. Indeed, minority ethnic groups within

states only have negative rights to minority protections in international law29 and

lack any positive rights to internal self-determination mechanisms,30 like territorial

or political power-sharing, forcing them to rely instead on achieving political

24A/R ES/1541(XV) (15 December 1960), Principle VI.

25Advisor y Opinion ICGJ 534 (ICJ 2019).

26Marc Weller, ‘Self-Determination and Peace-Making’ in Marc Weller (ed), International Law and

Peace Agreements (CUP 2021) 403.

27Andrés Rigo Sureda, e Evolution of the Right of Self-Determination: A Study of United Nations

Practice (AW Sijthoff, 1973).

28 United Nations, ‘Non-Self-Governing Territories’ n.org/dppa/decolonization/

en/nsgt> accessed 21 January 2024. Namely: American Samoa, Anguilla, Bermuda, British

Virgin Islands, Cayman Islands, Falkland Islands/Malvinas, French Polynesia, Gibraltar, Guam,

Montserrat, New Caledonia, Pitcairn, Saint Helena, Tokelau, Turks and Caicos Islands, United

States Virgin Islands and Western Sahara.

29S ee ICCPR, art 27.

30 Marc Weller, ‘Towards a General Comment on Self-determination and Autonomy: working

paper’, (UN Commission on Human Rights, Sub-Commission on the Promotion and Protection

of Human Rights, Working Group on Minorities, 11th Session, 25 May 2005).

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e Constitutional Embedding of Self-Determination Provisions 5

solutions within their states’ constitutional processes.31 e internal nature of self-

determination and the preservation of existing states’ territorial integrity aims to

prevent a ‘Pandora’s box’ from being opened, which would result in the widespread

redrawing of territorial borders. is is especially so in Africa, where modern state

borders were drawn arbitrarily by European colonisers without any consideration

of ethnic demographics.32

State Practice towards External Self-Determination

With the decline of colonialism, the international legal rightto external self-

determination has been rendered largely obsolete. However, external self-

determination has not been extinguished as an objective pursued by certain

ethnic groups. With little guidance provided by international law as to whether

external self-determination can be recognised outside of the colonial context,33

notwithstanding the absence of a rightto external self-determination, recognition

has occurred on an ad hoc ‘case-by-case’34 basis. As Weller contends, ‘an absence of

a positive entitlement to self-determination does not mean that secession is legally

excluded. e absence of privilege (a legally protected and privileged way towards

secession) is not the same as a prohibition.’35

e achievability of ad hoc international recognition is clearly illustrated by the

case of Kosovo, which unilaterally declared its independence from its nominal

parent state of Serbia in 2008. In 2010, the International Court of Justice in

Accordance with International Law of the Unilateral Declaration of Independence

in Respect of Kosovo,36ruled that Kosovo’s unilateral declaration of independence

was not illegal under international law, implying equally that other states were not

prohibited from recognising Kosovo as an independent state. While Kosovo’s ‘nal

31e Scottish independence referendum in 2014 is an example of an attempt to achieve external

self-determination within the United Kingdom’s domestic constitutional process. See Reference

by the Lord Advocate of devolution issues under paragraph 34 of Schedule 6 to the Scotland Act 1998

[2022] UKSC 31.

32Redie Bereketeab, ‘Self-Determination and Secession: African Challenges’ in Redie Bereketeab

(ed), Self-Determination and Secession in Aica: e Post-Colonial State (Routledge 2015) 3.

33e Montevideo Convention on the Rights and Duties of States 1933, which is considered to

be customary international law, enumerates four criteria required by entities to be considered as

states: (a) a permanent population; (b) a dened territory; (c) a government; and (d) capacity to

enter into legal relations with other states. Some academic support exists for the view that there

is a positive obligation of recognition on the part of other states if entities full these criteria. See

Hersch Lauterpacht, ‘Recognition of States in International Law’ (1944) 53 Yale Law Journal 385.

However, the strongly prevailing view is that no positive ‘duty to recognise’ exists in international

law. See Crawford (n 18) 22.

34Gleider Hernández, International Law (OUP 2019) 107.

35Marc Weller, ‘Conclusion: Developments in Peace Settlement Practice and International Law’ in

Marc Weller (ed), International Law and Peace Agreements (CUP 2021) 406.

36Advisor y Opinion, ICGJ 423 (ICJ 2010).

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status’37 remains uncertain and it has gained full UN membership, it now has been

recognised by 104 of the UN’s 193 member states, indicating substantial fullment

of external self-determination and inspiring other secessionist movements, like in

South Ossetia.38

Part II: e Interaction Between Self-Determination Demands

and Peace Agreements

Ethnic conict remains rare overall; dierent ethnic groups living alongside each

other are not inherently conict-prone.39 Moreover, ethnic conict is oen sparked

not by immutable dierences but by political elites instrumentally manipulating

identities to build ethnic coalitions in order to win electoral power.40 However,

where armed conict takes on an ethnic character, demands for greater internal

self-determination or external self-determination are frequently a major cause.41

While a multiplicity of reasons can spark intrastate armed ethnic conict and self-

determination demands, which in turn generate peace agreements to address self-

determination demands, four principal conict causes have emerged.

Intrastate Conict Causes

‘e Resource Curse’

Firstly, instead of a blessing, natural resource endowment oen is a geographical

‘curse’.42 e ‘resource curse’ can give rise to self-determination conicts if particular

ethnic groups live in discrete regions with high levels of lucrative natural resources

but whose economic benets, they perceive, are disproportionately distributed

across other state regions. is is especially likely when majoritarian electoral

systems exclude such ethnic groups from government decisions about economic

distribution. By gaining greater control over resource distribution in a region,

either through greater internal self-determination or external self-determination

through secession, these ethnic groups can ensure that they become wealthier by

retaining greater economic benets from such resources.43

37Marc Weller, Negotiating the Final Status of Kosovo (EU Institute for Security Studies 2008) 1.

38Rein Müllerson, ‘Precedents in the Mountains: On the Parallels and Uniqueness of the Cases of

Kosovo, South Ossetia and Abkhazia’ (2009) 8(1) Chinese Journal of International Law 2.

39 James Fearon and David Laitin, ‘Explaining Interethnic Cooperation’ (1996) 90(4) American

Political ScienceReview715.

40Daniel Posner, ‘e Political Salience of Cultural Dierences: Why Chewas and Tumbukas are

Allies in Zambia and Adversaries in Malawi’ (2004) 98(4) American Political Science Review529.

41James Fearon, ‘Separatist Wars, Partition, and World Order’ (2003) 13 Security Studies394.

42Richard Auty, Sustaining Development in Mineral Economies: e Resource Curse esis (Routledge

1993).

43Michael Ross, e Oil Curse: How Petroleum Wealth Shapes the Development of Nations (Princeton

University Press 2012).

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e Constitutional Embedding of Self-Determination Provisions 7

Ethnic Exclusion

Secondly, in post-colonial states, former colonisers customarily failed to build strong

state institutions to equitably supply public goods, instead co-opting a limited

number of ethnic leaders to act as enforcers. is was a particular feature of the

British and Belgian colonial administrations, which implemented a ‘divide and rule’44

strategy of selecting smaller ethnic groups that were less resource-intensive to co-

opt and privileging such groups with access to education and state positions.45 Aer

the decolonisation of states with less developed economies, this pattern continued,

with limited legitimate economic opportunities in the private sector outside of the

state structure, wealth, as well as access to markets, high-paying state jobs and public

goods, frequently become conned to the ethnic groups of political oce holders.46

is phenomenon is particularly likely where majoritarian electoral systems result

in ‘winner takes all’ outcomes, increasing the value of ethnic capture of state power

and the costs to other ethnic groups excluded from power.47 e damage of ‘winner

takes all’ outcomes is observable in Northern Ireland, where the replacement of a

proportional representation electoral system with a majoritarian electoral system,

combined with electoral system manipulation, all ensured the entrenchment of a

unionist ‘one-party state with no rotation of government.’48 Ethnic exclusion from

the state may cause ethnic groups either to seek secession or more entrenched internal

self-determination protections, like reserved positions in government.

Parent State Violence

irdly, ethnic groups suering from atrocities committed by a parent state may

perceive secession as the only way in which they can protect themselves, especially

if it allows them to organise militarily into a defensible enclave in which the armed

forces and authorities of the parent state can be excluded.49 In such cases, the trust

between internal ethnic groups and the parent state may have degraded to such

an extent that internal self-determination is perceived as unviable and external

44 Christopher Clapham, ird World Politics: An Introduction (University of Wisconsin Press

1985).

45 Robert Blanton, David Mason and Brian Athow, ‘Colonial Style and Post-Colonial Ethnic

Conict in Africa’ (2001) 38(4) Journal of Peace Research473.

46Lars-Erik Cederman, Andreas Wimmer and Brian Min, ‘Why Do Ethnic Groups Rebel? New

Data and Analysis.’ (2010) 62(1) World Politics87; Joel Migdal, Strong Societies and Weak States:

State-Society Relations and State Capabilities in the ird World (Princeton University Press 1988).

47 Christine Bell, ‘Political Power-Sharing and Inclusion: Peace and Transition Processes’ (2018)

PA-X Report: Power Sharing Series 4 accessed

21 January 2024.

48 Paul Cochrane, ‘e Past in the Present’ in Paul Mitchell and Rick Wolford (eds), Politics in

Northern Ireland (Westview Press 1999) 9.

49 Charlie Kaufmann, ‘Possible and Impossible Solutions to Ethnic Civil Wars’ (1996) 20(4)

International Securit y136.

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self-determination is viewed as the only potential solution. is phenomenon was

visible in the demands by the Liberation Tigers of Tamil Eelam for an independent

state in north and northeast Sri Lanka, as will be discussed in Part IV.

History and e Special Quality of Independent Statehood

Fourthly, ethnic groups living in territories that were colonised and subsumed into

parent states may have historical and cultural claims to independent statehood,

such as in the case of Chechnya.50 For such groups, achieving separate statehood

through external self-determination oers the apex of self-determination, with a

‘special’51 quality ‘not approximated by self-government alone’.52 Alternatively,

such ethnic groups may seek a merger with states from which they previously were

territorially severed, such as in the case of nationalists in Northern Ireland.

Part III: Recent State Practice on the Constitutional Embedding of

Self-Determination Provisions

Unlike states, which are subjects of international law and imbued with the capacity

to sign legally binding treaties with other states through the Vienna Convention

on the Law of Treaties 196953 and customary international law, most non-state

actors (‘NSAs’) and non-state armed groups (‘NSAGs’) lack status as subjects of

international law.54 is creates a credible commitment problem because, without

a legal foundation and a legal enforcement mechanism, NSAs and NSAGs cannot

trust that states will follow through with their self-determination commitments in

peace agreements or that the existing political system will treat them equitably.

e Lex Pacicatoria

e ‘lex pacicatoria’, or ‘law of the peace-makers’,55 is a term coined by Professor

Christine Bell to describe the ‘set of practices’56 which support the aim of achieving

lasting solutions to conict and which increasingly are becoming features of

worldwide state practice. While codied mostly in ‘so law standards’ rather

50James Hughes, Chechnya: From Nationalism to Jihad (University of Pennsylvania Press 2007).

51Bridget Coggins, Power Politics and State Formation in the Twentieth Century: e Dynamics of

Recognition (CUP 2014) 215.

52 ibid.

53 Vienna Convention on the Law of Treaties 1969 (signed 23 May 1969, entered into force 27

January 1980).

54Bel l (n 6).

55 Christine Bell, ‘Peace Settlements and International Law: From Lex Pacicatoria to Jus Post

Bellum’ (2012) Edinburgh School of Law Research Paper No 2012/16, 6 n.

com/sol3/papers.cfm?abstract_id=2061706> accessed 22 January 2024.

56 ibid.

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e Constitutional Embedding of Self-Determination Provisions 9

than binding legal instruments,57 Bell argues that the lex pacicatoria creates an

‘on-going normative expectation’58 as to how peace-building challenges are to be

confronted, which can shape hard law. ese normative expectations include the

growing obligation for states in conict with ethnically excluded minority groups

to provide such groups with eective participation in government through internal

self-determination.59 As will be discussed in Part IV, this is reected in the Good

Friday Agreement’s design to provide eective participation in government to the

formerly excluded nationalist minority group.

Furthermore, to overcome the legally ambiguous capacity of NSAs and NSAGs to

enter into binding commitments, Bell argues that state practice on legalising peace

agreements aimed at ending intrastate conicts has taken four major forms under

the lex pacicatoria: ‘contrived constitutional form’,60 ‘contrived treaty form’,61

‘domestic legislation’62 and ‘contrived ‘agreement’’ and ‘UN Security Council

resolutions’.63 Part IV will demonstrate that ‘contrived constitutional form’ is

becoming a dominant modality for legalising peace agreements and can be mapped

to the legal implementation of the Good Friday Agreement as well as the conict

resolution mechanisms in Bougainville and South Sudan.

e Logic of Constitutional Embedding and Overcoming Ethnic Outbidding

Ethnic Outbidding and the Credible Commitment Problem

e seismic nature of self-determination questions compared to ordinary legal or

political issues makes self-determination agreements particularly vulnerable to

the phenomenon of ethnic outbidding. Ethnic outbidding is a form of ‘strategic

behaviour’64 in which political entrepreneurs within majority ethnic groups iname

‘ethnic … passions’,65 take increasingly extreme political positions and attempt to

renege on concessions to minority groups as a strategy to win political and electoral

capital. As will be shown in Part IV, the northeastern Sri Lanka peace process oers

a vivid insight into the mechanism of ethnic outbidding and its potential to harden

state positions towards granting self-determination concessions to minority groups.

e likelihood of ethnic outbidding eroding self-determination compromises

reduces the ability of states to credibly commit to the later implementation of such

57 ibid.

58 ibid.

59Christine Bell, Peace Agreements and Human Rights (OUP 2003) 167.

60Bel l (n 6) 149.

61ibid 145.

62ibid 154.

63ibid 155.

64Cass Sunstein, ‘Constitutionalism and Secession’ (1991) 58(2) University of Chicago Law Review

654.

65 ibid.

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10  

compromises. A credible commitment problem arises when one or more parties

to an agreement are unable to verify that the other party or parties will carry out

their side of the agreement. is creates a ‘prisoners’ d ilemma’ situation66 where one

party fears naïvely cooperating in case the other party defects. is phenomenon is

particularly likely to occur in armed intrastate self-determination conicts where

political or territorial power-sharing have been proposed as solutions. In these cases,

the ethnic group set to lose its grip on power, and associated resources, has a strong

incentive to defect from the agreement and to exploit any steps towards peace,

like the decommissioning of weapons, taken by ethnic NSAGs.67 is engenders

suspicion within NSAGs that peace agreements will be reneged upon and parent

states will use the lull in violence created by the peace agreement to enhance their

capabilities to militarily defeat the NSAGs.68

e Potential Solution of Constitutional Embedding to the Credible Commitment

Problem in Peace-Making

Adding a constitutional or ‘contrived constitutional form’69 to self-determination

provisions serves to ‘ignore the majority’s inclinations in the name of a higher

source of law’70 and ‘remove certain decisions from the democratic process’.71 is

aspires to provide greater certainty of the implementation of self-determination

arrangements by placing them ‘beyond the reach of ordinary politics’72 and, by

oering ‘institutionalised protection’,73 committing that they will not be eroded

by the dynamics of ethnic political competition and majority rule, which are

vulnerable to ethnic outbidding. ‘Formal constitutional entrenchment’74 oers

even greater assurances by providing that power-sharing guarantees for minority

ethnic groups cannot be unilaterally altered by a parent state’s government without

the minority groups’ consent. is theory will be linked to practice through the

four case studies analysed in Part IV.

e constitutional embedding of self-determination provisions is not a panacea

to the challenge of preserving peace in fragile post-conict states riven by ethnic

66Barbara Walter, ‘e Critical Barrier to Civil War Settlement’ (1997) 51(3) International

Organization337.

67 ibid.

68Caroline Hartzell and Matthew Hoddie, ‘Institutionalizing Peace: Power Sharing and Post-Civil

War Conict Management’ (2003) 47(2) American Journal of Political Science318.

69Bel l (n 6).

70Laurence Tribe, American Constitutional Law (3rd edn, Foundation Press 2000) 18.

71 Stephen Holmes, ‘Precommitment and the Paradox of Democracy’ in John Elster and Rune

Slagstad (eds), Constitutionalism and Democracy (CUP 2012) 196.

72Sunstein (n 64) 637.

73Jane Wright, ‘Minority Groups, Autonomy, and Self-Determination’ (1999) 19 Oxford Journal of

Legal Studies621.

74Marc Weller, ‘Introduction’ in Marc Weller and Katherine Nobbs (eds), Asymmetric Autonomy and

the Settlement of Ethnic Conicts (University of Pennsylvania Press 2010) 4.

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e Constitutional Embedding of Self-Determination Provisions 11

divisions. Its eectiveness depends on the existence of the rule of law and an

independent judiciary that can exercise judicial review without political interference.

However, World Bank data shows that, in the year of the signing of the 70 peace

agreements analysed in Part III, the signatory states’ mean percentile score for the

rule of law was 27.8.75 is indicates that states, on average, rank just above the lowest

quarter in the world for the rule of law at the time of the peace agreements’ signing.

To overcome the weakness of the rule of law in post-conict states, constitutional

embedding must be accompanied by a ‘fundamental redenition of the state’76 and

oer prospective reassurances that parent states will be bound to the constitutionally

embedded self-determination provisions. Without this fundamental redenition,

constitutions will be perceived as mere ‘pieces of paper’,77 lacking the requisite

reassurance to ethnic NSAGs that states’ commitments to self-determination

provisions in peace agreements will be enforced and endure.

Data from the Peace Agreements Database

Self-determination in peace agreements has occurred through two principal

modalities. e rst and ‘classical’78 modality is territorial power-sharing through

federalism, regional autonomy or consensual secession. is is a potential solution

for self-determination conicts involving ‘geographically concentrated ethnic

minorities’79 such as in Bosnia and Herzegovina80 or in the Bangsamoro in the

Philippines.81 e second modality is politicalpower-sharing, which ensures that

minority ethnic groups are not excluded from access to the central government and

‘have a say’82 in national political decisions which aect them. is is relevant in

plural states with unconcentrated ethnically diverse populations, such as Burundi83

or Northern Ireland.84

75World Bank Group, ‘Worldwide Governance Indicators’

source/worldwide-governance-indicators# > accessed 13 July 2024.

76Bel l (n 6) 106.

77Christine Bell and Catherine O’Rourke, ‘Peace Agreements or ‘Pieces of Paper’? e Impact of

UNSC Resolution 1325 on Peace Processes and their Agreements’ (2010) 59(4) Comparative

Law uarterly 941.

78Marc Weller, ‘Settling Self-Determination Conicts: Recent Developments’ (2009) 20(1)

European Journal of International Law 115.

79David Wippman, ‘Constraints on Internal Power-Sharing’ in David Wippman (ed), International

Law and Ethnic Conict (Cornell University Press 1998) 212.

80S ee Republic of Bosnia and Herzegovina and others, ‘General Framework Agreement for Peace in

Bosnia and Herzegovina’ (21 November 1995) (‘e Dayton Agreement’) art 3

peaceagreements.org/viewmasterdocument/389> accessed 21 January 2024.

81See Philippine Government and Moro Islamic Liberation Front, ‘Framework Agreement on the

Bangsamoro’ (15 October 2012) art 1 rdocument/

867> accessed 12 June 2024.

82David Raič , Statehood and the Law of Self-Determination (Kluwer Law International 2002) 237.

83Burundi’s Constitution of 2005, art 129

/1421> accessed 21 January 2024.

84G FA (n 93) strand one.

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12  

e Peace Agreements Database reveals that 459 of the 1624 intrastate/intrastate

and interstate/intrastate peace agreements concluded since 1990 relate to ‘territorial

self-determination’, ‘political self-determination’ or ‘self-determination’ generally.85

However, a signicant proportion of this dataset consists of hortatory statements

or nascent proposals not agreed on by the combatant parties or not containing any

concessions by combatant parties.86 Furthermore, another signicant proportion

of political self-determination agreements relate to ideological, rather than ethnic,

power-sharing,87 while others relate to occupied territories rather than intrastate

ethnic conict.88 With these excluded, 70 of the 459 agreements contain explicit

descriptions of substantive territorial or political self-determination provisions

based on ethnic considerations and agreed on by the combatant parties or oering

concessions by combatant parties.

An analysis of these 70 peace agreements shows that constitutional form,89 either

through embedding in constitutional amendments or embedding in territories’

foundational laws, was used in 34 of these peace agreements,90 while 19 recall

85Bel l and others (n 3).

86For example, the Ecowas Peace Plan for Liberia was not included as it is a nascent proposal for the

ECOWAS Standing Mediation Committee to facilitate the formation of an interim government

of Liberian citizens without any consent or concession by the combatants. To avoid double

counting, agreements that recall or relate substantively to previous breakthrough agreements were

also excluded.

87Bell (n 6) 117 observes that, particularly in African conicts, the ‘very nature of the conict and

whether ethnic or other, is contested’. is creates a diculty in categorising conicts as being

based on ethnic or other motivations, such as ideology or greed. e approach taken in this article

has been to only code conicts as ‘ethnic’ where peace agreements specically refer to intrastate

ethnic minorities or to political parties representing intrastate ethnic minorities. For example, the

Peace Agreement between the Government of Sierra Leone and the Revolutionary United Front

of Sierra Leone was excluded from analysis as the Revolutionary United Front did make any ethnic

self-determination demands nor did the Agreement reference power-sharing for any ethnic groups

in Sierra Leone.

88ese cases relate to conicts originating as interstate conicts but which may evolve over a long

occupation duration to resemble intrastate conicts. Under international humanitarian law, it is

presumed that the occupation of such territory is temporary and that the population of the occupied

territory will eventually be enabled to exercise an unconditional right to external self-determination

over the entirety of the occupied territory. erefore, these cases are distinct from the intrastate

conicts which form the subject of this article. For example, the peace agreements in the Israel-

Palestine peace process relating to the Occupied Palestinian Territory were excluded. See the recent

case of Legal Consequences Arising om the Policies and Practices of Israel in the Occupied Palestinian

Territory, including East Jerusalem Opinion (Advisory Opinion) 2024

sites/default/les/case-related/186/186-20240719-adv-01-00-en.pdf> accessed 22 July 2024.

89 Peace agreements were coded as having an intended constitutionally embedded form if their

text explicitly refers to incorporation into a new constitution, constitutional amendments to

incorporate their provisions into an existing constitution or the self-determination provisions

contained in an existing constitution which are agreed to full self-determination demands.

90Bosnia-Herzegovina (3), Burundi (3), Central African Republic (1), Colombia (1), Comoros (1),

Iraq (1), Myanmar (2), Mexico (2), North Macedonia (1), Papua New Guinea (3), Philippines (3),

Rwanda (1), Solomon Islands (1), Somalia (3), Sudan (4), Sri Lanka (1), United Kingdom (1),

Yemen (2).

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e Constitutional Embedding of Self-Determination Provisions 13

existing constitutional provisions relating to self-determination.91 e remaining

17 use other methods to implement the self-determination measures, such as

legislative provisions.92 is qualitative data is limited by a relatively small sample

size and by certain peace processes focusing early on constitutional amendments,

such as in South Sudan, skewing the data. However, with 53 of the identied 70

peace agreements being resolved by reference to constitutional amendments or

to existing constitutions, it appears that constitutional embedding has become a

key tool in intrastate conict settlement and peace-building. It also shows the

increasing crystallisation of the practice of constitutional embedding in the lex

pacicatoria.

Part IV: Case Studies on the Constitutional Embedding of

Self-Determination Provisions in Peace Agreements

Four case studies will be used in this Part IV to illustrate the application of

constitutional embedding, linking the theory supporting the benets of

constitutionalising self-determination in peace agreements with implementation

realities in fragile post-conict regions. e four case studies all have similar roots

of conict arising from long-standing discrimination against internal ethnic groups

and a loss of trust in state institutions, combined with the hardening of ethnic

boundaries and the perpetuation of violence.

Case Study 1: e Northern Irish Peace Process and the Good Friday Agreement

Background

e Agreement Reached in the Multi-Party Negotiations on 10 April 1998, known

commonly as the ‘Belfast Agreement’ or ‘Good Friday Agreement’ (‘GFA’),93 was

the culmination of a decades-long peace process designed to end ‘the Troubles’

in Northern Ireland. Central to the Troubles was the political and constitutional

status of Northern Ireland. However, the conict took an ethnic, rather than

ideological, guise as Catholic and Protestant religious aliation was used as an

‘identity-marker’94 for nationalist or unionist political allegiance respectively.

91Bosnia-Herzegovina (2), Colombia (1), Ethiopia (2), India (3), Myanmar (1), Niger (2), Papua

New Guinea (4), Somalia (1), Sudan (3).

92Angola (1), Bosnia-Herzegovina (5), Croatia (1), Djibouti (1), Indonesia (1), Kosovo (1), Mali

(1), Sri Lanka (2), Russia (2), Rwanda (1), Ukraine (1).

93Agreement Reached in the Multi-Party Negotiations (signed 10 April 1985, entered into force 2

December 1999) (1998) 37 ILM 751.

94 Isak Svensson, ‘Resolving Religious Conict through Peace Agreements’ in Marc Weller (ed),

International Law and Peace Agreements (CUP 2021) 392.

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14  

Aside from the fundamental external self-determination question, nationalists at

the outbreak of the Troubles were aggrieved by the internal functioning of Northern

Ireland, where the majoritarian electoral system ensured Unionist Party ‘one-party’

rule95 and excluded nationalists from any meaningful political participation.

is was assisted by electoral manipulation, most notably gerrymandering.96

Nationalists consequently were excluded from public goods while also enduring

‘abnormally high levels of unemployment.’97 e formation of the Northern

Ireland Civil Rights Association to protest against these grievances yielded some

government concessions. However, these concessions were insucient for many

nationalists but a ‘bridge too far’ for much of the unionist community, sparking

inter-communal violence and the revitalisation of paramilitary groups in both

communities.98 Nationalists irrevocably lost trust in the existing state institutions

as ‘impartial arbiters of the law’99 aer police failed to protect nationalist protesters

at Burntollet,100 a disproportionate number of nationalists were subject to

internment101 and British soldiers killed fourteen unarmed protesters on ‘Bloody

S u n da y’, 102 perpetuating a cycle of violence. While other peace agreements were

negotiated, most notably the Sunningdale Agreement, none succeeded until the

GFA.103

Self-Determination Provisions in the GFA

e GFA contains both internal self-determination and external self-determination

components. Strand One oers internal self-determination provisions to

nationalists through political power-sharing by mandating a proportional

representation (single transferable vote) electoral system instead of a majoritarian

system,104 mitigating the potential for ethnic state capture ‘at the exclusion of the

other’ community.105 Additionally, executive positions are allocated on the basis

of party strength,106 meaning that both communities are guaranteed executive

representation rather than only the majority party or parties with sucient seats

95Fergal Cochrane, ‘e Past in the Present’ in Paul Mitchell and Rick Wilford (eds) Politics in

Northern Ireland (West view Press 1999) 9.

96Robert Nielsen, ‘How to Steal an Election – A Guide to Gerrymandering’ (Whistling In e

Wind, 2 June 2015) w-to-steal-an-election-a-

guide-to-gerrymandering/> accessed 21 January 2024.

97Cochrane (n 95) 20.

98Bell (n 6) 54.

99 Hurst Hannum, Autonomy, Sovereignty and Self-Determination (2nd edn, University of

Pennsylvania Press 1996) 463.

100Paul Bew, Ireland: e Politics of Enmity 1789–2006 (OUP 2007).

101 See Ireland v United Kingdom,App no. 5310/71 (ECHR, 18 January 1978).

102Bew (n 100).

103Bell (n 6).

104GFA (n 93) Strand One, s 2.

105 Robinson v Secretary of State for Northern Ireland [2002] UKHL 32 [3].

106GFA (n 93) Strand One, s 16.

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e Constitutional Embedding of Self-Determination Provisions 15

to form coalitions. Certain key decisions also require at least 40% assent from

the nationalist and unionist delegations present and voting.107 ese provisions

all ensure that nationalists can have meaningful participation in government and

exercise internal self-determination within Northern Ireland, a key part of the lex

pacicatoria.

e GFA also has external self-determination provisions. It acknowledges that

the ‘present wish of the majority of the people of Northern Ireland’ is to remain

within the United Kingdom (‘UK’) but that the people have the right to exercise

external self-determination through merging with Ireland if a majority of voters in

Northern Ireland and in Ireland choose this constitutional arrangement at a future

date.108

e Constitutional Embedding of the GFA

e GFA was given legal eect through the domestic legislative process in the

UK in the form of the Northern Ireland Act 1998 (the ‘1998 Act’). However, as

the UK does not have a written constitution, in Robinson v Secretary of State for

Northern Ireland, Homan J in the House of Lords concluded that ‘[t]he 1998

Act is 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 Belfast.’109 is indicates that the GFA fal ls under the category

of ‘contrived constitutional form’110 rather than ‘domestic legalisation’.111

e use of constitutional form to add a foundational legal basis to the GFA in

Northern Ireland, as well as in the UK and Ireland,112 signicantly contributed

to the success of the GFA113 in overcoming the ‘credible commitment problem’114

that undermines political power-sharing agreements.115 In Northern Ireland,

the constitutional form of the Northern Ireland Act 1998 assured nationalists

of the credibility of the Westminster government’s commitment to internal self-

determination and possible eventual external self-determination. In Ireland, the

amendment of Articles 2 and 3 of the Irish Constitution credibly committed

that the Irish government, on behalf of nationalists, would only pursue external

107ibid, Strand One, s 5(d)(ii).

108 ibid, ‘Constitutional Issues’, s 1.

109Robinson (n 105) [25].

110Bell (n 6) 149.

111Bell (n 6) 154.

112‘Ireland’ will be used to refer to the Irish State.

113e Kroc Institute for International Peace Studies gives it a 95.24 implementation score aer 10

years, narrowly short of the maximum 100 implementation score available. See GFA (n 93).

114Marie-Joёlle Zahar, ‘Power Sharing and Peace Settlements’ in Marc Weller (ed), International

Law and Peace Agreements (CUP 2021) 358.

115Anna Jarstad and Desirée Nilsson, ‘From Words to Dee ds: e Implementation of Power-Sharing

Pacts in Peace Accords’ (2008) 25 Conict Management and Peace Science 206.

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16  

self-determination through reunication within the established constitutional

process under the GFA, allaying unionist fears of irredentism. is encouraged

paramilitaries from both communities that a permanent political solution was

viable, convincing them of the worthiness of weapons decommissioning.

e Lex Pacicatoria and Judicial Scrutiny of the GFA

e eective participation in the government of Nor thern Ireland that Strand One

of the GFA attempts to deliver to the formerly excluded nationalist group as part

of internal self-determination is one noticeable example of the impact of the lex

pacicatoria in the GFA.

Additionally, judicial scrutiny of the GFA confronted another element of the

lex pacicatoria: ‘constructive ambiguity’.116 Bell and Cavanaugh argue that

‘constructive ambiguity’117 encourages multiparty commitment to agreements by

allowing multiple parties to ‘claim that their view has prevailed’.118 InRobinson,119

decided barely four years aer the GFA was signed, the House of Lords was faced

with that very type of ambiguity in the Northern Ireland Act 1998: whether the

failure of the Stormont Assembly to elect a First Minister and a Deputy First

Minister within the six week period stipulated under section 16(8) of the Northern

Ireland Act 1998 requiredthe Secretary of State for Northern Ireland to call a new

election or merely provided the Secretary with the discretion to do so. In a majority

decision, the House of Lords took an explicitly ‘purposive’ interpretation of the

Good Friday Agreement, with Bingham LJ recalling that the background to the

1998 Act was the ‘political situation in Northern Ireland’120 and that the 1998

Act’s key purpose was to create a stable local government underpinned by ‘cross-

community support’.121 e House of Lords held that the Secretary possessing a

discretionary power, rather than a mandatory power, to call a new election in

such circumstances was a consistent interpretation with the purpose of the Act

to achieve a functioning devolved government in Northern Ireland, evincing a

willingness of the British judiciary to engage in the transition to constitutional

internal self-determination in Northern Ireland. By contrast, rigid, rather than

more purposive, legal interpretations of peace agreements may exacerbate, rather

than assist in resolving, self-determination conicts.122

116Christine Bell and Kathleen Cavanaugh, ‘‘Constructive Ambiguity’ or Internal Self-Determination?

Self-Determination, Group Accommodation, and the Belfast Agreement’ (1998) 22 Fordham

International Law Journal 1345.

117 ibid.

118Marc Weller, ‘Settling Self-Determination Conicts: Recent Developments’ (2009) 20(1)

European Journal of InternationalLaw115.

119Robinson (n 105).

120ibid [33].

121ibid [25].

122is was visible in Judgment No. 31/2010 of June 28, in which the Spanish Constitutional Court

adopted an inexible constitutional interpretation and invalidated 41 power-sharing provisions

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e Constitutional Embedding of Self-Determination Provisions 17

Conclusion on Case Study 1

e political power-sharing provisions of the GFA have not always been eective or

operational, most notably from 2002 to 2007, from 2017 to 2020 and from 2022

to 2024 when the Stormont assembly was suspended. However, the constitutional

embeddedness of the GFA maintained a framework under which political disputes

remained in the constitutional realm and institutions existed to manage political

conict, resulting in the eventual restoration of power-sharing in 2024. Equally,

while some paramilitary groups remain operational, the constitutionally embedded

status of the GFA has helped to ensure that self-determination is now largely

pursued constitutionally rather than through political violence.

Case Study 2: e Bougainville Peace Process in Papua New Guinea

Background

e Bougainville conict began in 1988 when the incipient Bougainville

Revolutionary Army (‘BRA’), aggrieved by the environmental damage and income

inequality created by the operation of lucrative mines in Bougainville, and possibly

also motivated by the economic opportunities oered by taking control of mines,123

attacked the Panguna mine, which held one of the largest copper reserves in the

world.124 is provoked a violent response from the Papua New Guinea Defence

Forces (‘PNGDF’), which attempted to suppress mine attacks through extra-

judicial killings and the burning of villages.125 ese atrocities betrayed the partisan

nature of the PNGDF, hardening ethnic boundaries between Bougainvilleans and

the parent state of Papua New Guinea (‘PNG’). Disaected Bougainvilleans then

joined the BRA, resulting in an increase in violence and demands for secession

rather than any more limited self-determination compromises.

of the newly negotiated Catalan Statute of Autonomy as unconstitutional, causing formerly

moderate Catalan self-determination supporters to ‘cross the Rubicon and embrace separatism’.

See Eugenia López-Jacoiste, ‘Autonomy and Self-Determination in Spain: Catalonia’s Claims for

Independence from the Perspective of International Law’ in Peter Hilpold (ed), Autonomy and

Self-Determination: Between Legal Assertions and Utopian Aspirations (Elgar 2018) 93; see Xavier

Vilà Carrera, ‘e Domain of Spain: How Likely is Catalan Independence?’ (2014) 176(5)

World Aairs80.

123John Braithwaite and others, Reconciliation and Architectures of Commitment: Sequencing Peace in

Bougainville (Australian National University Press 2010).

124Anthony Regan, ‘Causes and Course of the Bougainville Conict’ (1988) 33(3) Journal of Pacic

History 269.

125 ibid.

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18  

Self-Determination Provisions in the Bougainville Peace Agreement and the Lex

Pacicatoria

Peace was eventually restored through the 2000 Loloata Understanding126 and

the 2001 Bougainville Peace Agreement (‘BPA’).127 Just like the GFA, these peace

agreements contained both internal and external elements to self-determination.

e rst pillar of the BPA provides for autonomous Bougainville governance and

institutions, underpinned by an independent Bougainville constitution, ensuring

that Bougainvilleans could not be excluded from participation in government.

is includes scal powers to allow Bougainville to claim corporation tax from

mining companies128 and to decide on foreign investment applications.129 e

second pillar mandates that Bougainville would have the option to vote on external

self-determination, via referendum, within een years of the establishment of

Bougainville’s independent institutions.130 is was realised in 2019 when almost

98% of Bougainville voters supported independence.131 However, the referendum

was not binding and was subject to ratication by the PNG National Parliament.132

e granting of the right to vote for external self-determination under the BPA,

but the outcome of this vote remaining subject to ratication by the PNG National

Parliament, represents the use of constructive ambiguity to help to secure agreement

by allowing dierent protagonists to claim that their interests have prevailed, a key

lex pacicatoria feature also observed in the GFA.133

e Constitutional Embedding of the BPA

e BPA also was implemented using constitutional embedding. Section 309 of

the Agreement mandates the National Government to move amendments to the

National Constitution to constitutionally embed the right of Bougainville to

hold a referendum on external self-determination. is was achieved when the

National Constitution was amended to insert, inter alia, Article 279, entrenching

autonomy for Bougainville, and Articles 338 to 343, detailing the procedures for

the referendum on external self-determination.134 e Era Kone Covenant,135

126 Bougainville leaders and the National Committee on Bougainville, ‘Loloata Understanding’

(23 March 2000) asterdocument/438> accessed 21

January 2024.

127Bougainville Peace Agreement (n 8).

128ibid s 138.

129ibid s 53.

130ibid ‘Introduction and Outline. Section 2: Referendum’.

131 Kate Lyons, ‘Bougainville referendum: region votes overwhelmingly for independence from

Papua New Guinea’ e Guardian (London, 11 December 2019).

132BPA (n 8) s 311.

133Bell and Cavanaugh (n 116).

134 Constitution of the Independent State of Papua New Guinea liament.gov.pg/

images/misc/PNG-CONSTI TUTION.pdf> accessed 21 January 2024.

135e Government of the Independent State of Papua New Guinea and Autonomous Bougainville

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e Constitutional Embedding of Self-Determination Provisions 19

signed between the president of PNG and the president of Bougainville’s

autonomous government in April 2022, is the most recent development in

Bougainville’s independence process. e Era Kone Covenant explicitly links to

the constitutional framework implemented under the BPA by reiterating the role

of the PNG National Parliament under Sections 342 and 349 in giving eect to the

referendum’s outcome.

Conclusion on Case Study 2

e ‘constitutionalisation of autonomy and a referendum provided a unique

panoply of assurances’136 to overcome the credible commitment problem which,

thus far, has assisted in sustaining peace in Bougainville. e guaranteeing of

eective participation in government to Bougainvilleans and the constitutional

embedding of the BPA are further elements illustrating the global emergence of

the lex pacicatoria. Peace in Bougainville has even been sustained to the extent

that the re-opening of the Panguna Mine has been mooted for 2024.137 is peace

has lasted despite delays and uncertainty in resolving the fundamental external self-

determination question since the 2019 referendum, as negotiations on the extent

of Bougainville’s ambiguous future autonomy and status remain ongoing.

Case Study 3: e South Sudan Peace Process

Background

e Second Sudanese Civil War was a conict fought over both ethnoreligious

expansion and the economic marginalisation of South Sudan.138 Under the

British colonial ‘Southern Policy’,139 South Sudan, with its majority Christian

and animist population, was administered separately from Sudan, which had a

majority Muslim, Arab population. However, this polic y was reversed in 1946 and

North and South Sudan became administratively united.140 Both entities remained

merged aer Sudan’s independence in 1956, with the government based in the

North in Khartoum. Attempts by the Khartoum government ‘to establish a nation-

Government ‘e Govern‘Era Kone Covenant on the Finalisation of the Bougainville

Referendum on Independence’ (April 2022)

Kone_Covenant_050422.pdf > accessed 11 January 2024.

136Braithwaite (n 123) 63.

137 Nic Fildes, ‘Bougainville looks to reopen mine that sparked Pacic island civil war’ Financial

Times (London, 28 December 2023).

138Ali Abdel Gadir Ali, Ibrahim Elbadawi and Atta El-Batahani, ‘Sudan’s Civil War: Why has it

Prevailed for so Long?’ in Paul Collier and Nicholas Sambanis (eds), Understanding Civil War:

Evidence and Analysis. Volume 1: Aica (World Bank 2005).

139Mohamed Beshir, e Southern Sudan: Background to Conict (Khartoum University Press 1968)

37.

140Gadir Ali, Elbadawi and El-Batahani (n 138).

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20  

state of cultural and religious homogeneity’141 through expanding the use of Arabic

and the practice of Islam, led to the outbreak of the First Sudanese Civil War,

lasting from 1955 until the Addis Ababa Agreement of 1972 (‘AAA’),142 which

granted South Sudan internal self-determination through regional autonomy and

was given constitutional form through an amendment to the Sudanese national

constitutional in 1973.143

Despite its constitutional embedding, the AAA broke down 10 years later in 1983.

Notably, however, the AAA sustained relative peace for a signicant period of time

and disputes over its self-determination provisions were not the cause of the later

conict. Instead, a variety of factors, many unforeseen at the time of its signing, led

to its failure. Among these factors were the failure to cohesively integrate Southern

rebels with the national armed forces, under-funding by the Khartoum government

and, crucially, the discovery of oil in the South, leading to disputes over a formula

for sharing oil revenue and attempts by the North to redraw the agreed border.144

e failure of the AAA precipitated the Second Sudanese Civil War, fought

between the Government of Sudan, the Sudan People’s Liberation Movement

(‘SPLM’) and the Sudan People’s Liberation Army (‘SPLA’), from 1983 to 2005,

centring around the same two issues of ethnoreligious expansion and economic

distribution that had earlier fuelled the First Sudanese Civil War.

e Constitutional Embedding of Self-Determination Provisions in the South Sudan

Peace Process

Constitutional external self-determination ultimately became the central tenet

in the peace agreements designed to end the Second Sudanese Civil War. Under

the terms of the Inter-Governmental Authority on Development Declaration of

Principles,145 the territorial integrity of Sudan was emphasised and the right of self-

determination for South Sudan was agreed to be exercised internally. However,

Principle 4 contained a remedial secession clause allowing South Sudan to exercise

external self-determination if the internal self-determination principles could not

be agreed upon. e demand for South Sudan’s self-determination to be primarily

141Bona Malwal ‘e Roots of Current Contention’ in Francis Deng and Prosser Giord (eds), e

Search for Peace and Unity in the Sudan (Wilson Center Press 1987) 12.

142Government of Democratic Republic of the Sudan and Southern Sudan Liberation Movement,

‘e Addis Ababa Agreement on the Problem of South Sudan’ r.un.org/

sites/default/les/document/les/2024/05/sd720312addis20ababa20agreement20on20the20

problem20of20south20sudan.pdf> accessed 21 January 2024.

143David Shinn, ‘Addis Ababa Agreement: Was it Destined to Fail and Are ere Lessons for the

Current Sudan Peace Process?’ (2004) 20 Annales d’Ethiopie239.

144 ibid.

145Government of the Republic of Sudan, SPLM/SPLA and SPLM/SPLA-United, ‘e IGAD

Declaration of Principles’ (20 May 1994) tps://www.peaceagreements.org/viewmaster

document/918> accessed 21 January 2024.

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e Constitutional Embedding of Self-Determination Provisions 21

exercised internally was removed in the later 1997 Sudan Peace Agreement,146 the

Machakos Protocol147 and the eventual 2005 Comprehensive Peace Agreement

(‘CPA’),148 all of which agreed that South Sudan could exercise external self-

determination through secession aer a referendum.

Part C, section 3.1.2 of the Machakos Protocol, which was incorporated into the

CPA, envisaged that the right to external self-determination for South Sudan would

be constitutionally embedded with ‘the draing of a Legal and Constitutional

Framework to govern the Interim Period and which incorporates the Peace

Agreement’.149 Section 3.1.5 also stated that ‘[t]he Constitution shall not be

amended or repealed except by way of special procedures and qualied majorities

in order that the provisions of the Peace Agreement are protected’,150 providing a

credible commitment that neither party would unilaterally abrogate their obligations

under the CPA. is ultimately was enshrined in Article 222 of the 2005 Interim

National Constitution of Sudan, which committed the governments of Sudan and

South Sudan to hold a referendum in which the people of South Sudan could

vote between unity with Sudan or secession.151 e grant of eective participation

rights in government to the people of South Sudan as well as the constitutional

embedding of the self-determination provisions contained in the CPA further

show the convergence of these lex pacicatoria norms in intrastate conicts.

Conclusion on Case Study 3

In 2011, 98.83% South Sudanese voters overwhelmingly chose to exercise their

constitutional right to external self-determination under the Interim National

Constitutional of Sudan through secession.152 e constitutionalised nature of the

CPA assisted in South Sudan undergoing a peaceful transition to independence,

with former parent state Sudan becoming the rst state in the world to recognise

South Sudan’s independence. However, the post-independence experiences of

South Sudan illustrate that it is oen ‘wishful thinking’153 to believe that external

self-determination will be a panacea to deeply rooted economic and social problems.

In 2013, a conict broke out along ethnic lines between the incumbent president

146 e Government of Sudan and others, ‘1997 Peace Agreement’ (21 April 1997) 1

peaceagreements.org/viewmasterdocument/550> accessed 21 January 2024.

147Government of the Republic of Sudan and SPLM/SPLA, ‘Machakos Protocol’ (20 July 2002)

nt/440> accessed 21 January 2024.

148CPA (n 9).

149ibid 6.

150 ibid.

151 Sudan’s Constitution of 2005 stituteproject.org/constitution/Sudan_2005.

pdf> accessed 21 January 2024.

152United Nations Mission in the Sudan, ‘Independence of South Sudan’

un.org/sites/default/les/past/unmis/referendum.shtml> accessed 21 January 2024.

153Rein Müllerson, ‘Self-Determination and Secession: Similarities and Dierences’ in Peter Hilpold

(n 122) 93.

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22  

Salva Kiir’s Dinka ethnic group and former deputy president Riek Machar’s Nuer

ethnic group. e ongoing post-secession intrastate conict in South Sudan has

resulted in a peace process of its own, consisting of 32 peace agreements to address

the outstanding root causes of conict, like oil revenue sharing and the integration

of armed groups into the new state.

Case Study 4: e Sri Lanka – Liberation Tigers of Tamil Eelam Peace Process

Background

e intrastate conict between the state of Sri Lanka and the Liberation Tigers

of Tamil Eelam (‘LTTE’) illustrates the risk of defection if self-determination

provisions in peace agreements are not constitutionally embedded.

e origins of the conict lie in the British favouring, under colonial rule, of the

Tamil ethnic group,154 concentrated in the north and north-east of Sri Lanka, and

the post-independence attempts by the majority Sinhalese ethnic group to retaliate

by monopolising political power. In 1956, the Sinhalese-dominated parliament

passed the Sinhala-Only Act, which reserved state jobs to Sinhala speakers,

eectively excluding Tamil speakers from the largest source of employment at

the time.155 Like in Northern Ireland and Bougainville, the actions and failures

of state security forces led to a loss of trust in state institutions. is state failure

motivated many Tamils to support the co-ethnic LTTE, a rebel group designated a

terrorist organisation by the European Union,156 and which fought against the Sri

Lankan state to establish an independent Tamil state of Tamil Eelam in north and

northeastern Sri Lanka, as a security mechanism, resulting in the severing of any

‘stake’ held by the Tamils in a ‘united Sri Lanka.’157

Ethnic Outbidding, the Failure of Constitutional Embedding and the Collapse of the

Peace Process

Any attempts to provide assurances to Tamils that their minority rights would

be protected and any peace processes with the LTTE all fell victim to the

phenomenon of ethnic outbidding, ‘the auction-like process whereby Sinhalese

politicians strive to outdo one another by playing on their majority community’s

154Neil DeVotta, ‘Control Democracy, Institutional Decay and the uest for Eelam: Explaining

Ethnic Conict in Sri Lanka’ (2000) 73(1) Pacic Aa irs55.

155 ibid.

156Council Implementing Regulation (EU) 2022/147 of 3 February 2022 implementing Article

2(3) of Regulation (EC) No 2580/2001 on specic restrictive measures directed against certain

persons and entities with a view to combating terrorism, and repealing Implementing Regulation

(EU) 2021/1188 [2022] OJ L25/1.

157DeVotta (n 155) 89.

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e Constitutional Embedding of Self-Determination Provisions 23

fears and ambitions,’158 resulting in more extreme positions constantly being taken

by Sinhalese political groups towards Tamils. In 2003, notably, the Sri Lankan

government proposed an ‘apex body’ that would grant internal self-determination

to Tamils in the north-east in the areas of ‘relief, rehabilitation and development’.159

However, the Sri Lankan government was ‘sharply constrained in what it could

oer … in the form of constitutional changes’160 to credibly commit to self-

determination concessions due to the likelihood of ethnic outbidding by other

Sinhalese parties. is transpired when the President responded to the apex body

proposal by ‘ring three government ministers who had been involved in the peace

agreement, proroguing parliament, and declaring a state of emergency.’161 e same

fate earlier befell a 2000 bill to amend the Constitution, Chapter XV of which

would have devolved powers to the regions and, at least partially, fullled the

Tamil demand of a certain degree of territorial autonomy over Tamil-dominated

regions.162

Despite an autonomy settlement appearing ‘within grasp’,163 the lack of credible

commitment to constitutional embedding by the government of Sri Lanka,

combined with ‘recalcitrance’164 by the LTTE to meaningfully negotiate for

any settlements short of external self-determination, led to the collapse of peace

negotiations and a return to civil war. e conict ultimately ended aer a

ferocious military oensive by the Sri Lankan Army destroyed the LTTE, causing

over 70,000 civilian deaths in the nal months of the conict between the end of

2008 and May 2009 alone.165

Conclusion on Case Study 4

While the success of the combatant parties in constitutionalising self-

determination provisions in Sri Lanka-LTTE peace agreements alone may not have

prevented the harrowing end to the conict, it may have dulled the forces of ethnic

158ibid 84.

159‘Government of Sri Lanka’s Proposal to the LTTE Regarding Creation of an Apex Body (2003)’

nt/1009> accessed 21 January 2024.

160Amita Shastri, ‘Ending Ethnic Civil War: e Peace Process in Sri Lanka’ (2009) 47(1)

Commonwealth & Comparative Politics77.

161Bell (n 6) 154.

162Parliament of the Democratic Socialist Republic of Sri Lanka, A Bill to Repeal and Replace the

Constitution of Democratic Socialist Republic of Sri Lanka (Government Publications Bureau, 3

August 2000) ment/1007> accessed 21

January 2024.

163Marc Weller, ‘Conclusion: Developments in Peace Settlement Practice and International Law’ in

Marc Weller (ed), International Law and Peace Agreements (CUP 2021) 406.

164Shastri (n 161) 95.

165 European Center for Constitutional and Human Rights. ‘Sri Lankan civil war: Government

ocialsstill unpunished’ n/case/sri-lankan-civil-war-government-ocials-

still-unpunished/> accessed 21 January 2024.

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24  

outbidding which fuelled hyper-Sinhalese nationalism and ultimately made the

bloody denouement to the conict almost inevitable. is contrasts with Northern

Ireland, Bougainville and South Sudan, where constitutional embedding and the

more vivid impact of the lex pacicatoria provided a pathway for peace that the

actors could accept and by which they could be constrained.

Conclusion

In General Comment No. 12, the Human Rights Committee, citing Article 1

of the ICCPR, proclaimed that ‘[t]he right of self-determination is of particular

importance because its realisation is an essential condition for the eective

guarantee and observance of individual human rights and for the promotion

and strengthening of those rights.’166 States’ parties consequently were held to be

positively obliged to put in place, and describe, ‘the constitutional and political

processes which in practice allow the exercise of this right.’167 As this article has

shown, when ethnic exclusion within the parent state or fundamental human rights

violations committed by the parent state entrains self-determination conicts,

internal self-determination in the form of eective political participation in

government for excluded or discriminated groups has become a key peace-building

tool. is has added a new dimension and meaning to self-determination. Although

external self-determination is obsolescing as an international legal right, even if

it has appeared in constitutional processes in the case studies of Bougainville and

South Sudan, internal self-determination is increasingly emerging internationally

as a remedy for ethnic exclusion and as a means to strengthen minority protections,

as exemplied in the GFA.

Furthermore, this article has illustrated that domestic constitutional embedding has

become a dominant modality in the post-Cold War world in which these internal

self-determination provisions have been given binding legal eect. In order to oer

eective guarantees that self-determination provisions will be given ‘permanence’168

and will not be eroded by ethnic political competition and outbidding, the lex

pacicatoria has begun to demand that the ‘right of participation’ of excluded

ethnic groups is secured with constitutional embedding.169 e movement towards

constitutionally embedding self-determination provisions in peace agreements,

as demonstrated by the Peace Agreements Database data, is also consistent with

peacemakers’ objective of securing lasting solutions to conict. Peace-making

166 UN Human Rights Committee, CCPR General Comment No. 12: Article 1 (Right to Self-

determination), e Right to Self-determination of Peoples (Oce for the Commission of Human

Rights, 13 March 1984) para 1.

167ibid [4].

168Marc Weller, ‘Settling Self-Determination Conicts: Recent Developments’ (2009) 20(1)

European Journal of InternationalLaw115.

169Raič (n 82) 238.

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e Constitutional Embedding of Self-Determination Provisions 25

remains an extremely fragile process. Peace agreements are merely steps on the

journey to lasting peace and oen rst create a ‘‘no-war, no-peace’ landscape’170

rather than an immediate transition to post-conict. Additionally, constitutional

embedding is not without diculty, requiring the existence of the rule of law, an

independent judiciary and the overcoming of the political incentive to outbid, such

as in the case study of the Sri Lanka-LTTE conict. Nevertheless, constitutional

embedding is likely, in both theory and in practice, as illustrated in the case

studies of Northern Ireland, Bougainville and South Sudan, to oer sucient

credible commitments to ethnic NSAs and NSAGs in conict with parent states

to transition from violence towards constitutional processes in the pursuit of their

self-determination objectives.

Both from an Irish and international perspective, the GFA stands out as a post-

1990 paragon of the constitutional embedding of peace agreements, reecting the

movement towards providing eective participation in government to a formerly

excluded group and the success of credibly convincing protagonists to move away

from violence towards a legal-political framework, with key themes from the GFA

also being visible in the Bougainville Peace Process. It additionally reveals the

subsequent turbulence of interpreting constructed ambiguities as well as peace

agreements not being a panacea for deep-rooted societal divisions. However,

the GFA demonstrates the eectiveness of this peace-building mechanism in

fundamentally changing the means by which self-determination demands are

contested and rmly consolidating them into the constitutional arena of a redened

state.

170Bell (n 6) 184.

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