Mapping a Norm of Inclusion in the Jus Post Bellum

Abstract

In recent years much greater attention has been paid not only to the substantive outcome of peace negotiations but also to the process by which agreement is reached. While international law provides general guidance on the content of peace agreements and post conflict constitutions, it cannot fully address the specificity of individual conflicts. Indeed too great an emphasis on international norms in such processes can undermine local ownership and provoke political backlash against international actors. The normativity of international law must be balanced against the political process of negotiation in these contexts. While international law may not necessarily dictate the outcome of the process, what it does provide is a normative basis for inclusion. It is increasingly recognised that sustainable peace requires the inclusion of a much broader range of actors than had traditionally been the case. By requiring the inclusion of a wide range of civil society actors in negotiations international law acts as a normative framework for participation, helping to bridge the divide between international law and the political process of negotiation. This paper maps the existence in international law of provisions requiring the inclusion of traditionally excluded groups in peace negotiations. It argues that international law now requires inclusion not only as an aspiration of thematic regimes or an optional political gesture, but as a fundamental general principle of the jus post bellum. It proposes that understanding inclusion as an underpinning norm of jus post bellum ensures the sustainability of peace by ensuring that those most affected by peace agreements and post conflict constitutions have a role in shaping them.

Keywords: international law; inclusion; peace processes; negotiation