How International Law Can Help Solve Ongoing Conflicts
There are dozens of ongoing conflicts, which affect the lives of hundreds of thousands of individuals daily. Some of them are moving towards a negotiated peace settlement, and others continue without much hope for a positive solution in the near future. Often there are external actors involved in such negotiations, such as the UN, EU, states or NGOs. On the one hand, such mediators try to facilitate reaching a compromise between the parties, but, on the other hand, they often come with agendas of their own and may be under an obligation to promote certain international legal rules.
International law, if used appropriately, can facilitate negotiations. First of all, international law can assist in determining the scope of the parties’ claims. Parties can identify the outer limits of reasonable claims on both sides by looking at existing international legal rules in relation to the disputed issues. International law provides a reference point to the parties to assess the strength of their claims, and it can provide the contours of a fair solution.
Secondly, international law has a legitimising effect. Unlike just political, moral, or other similar arguments, international legal arguments carry particular weight because they imply obligation and legitimacy. One example of this is the role of the right to self-determination in a conflict with secessionist claims. What international law says about the self-determination positions of both parties during a conflict is fundamentally relevant to the course of the conflict, and to the outcome with regard to self-determination. If a party has a strong claim to self-determination, it will find it a lot easier to muster up international support.
Third, the externality of international law, in relation to the parties to the conflict, supports its role. It can be easier for the parties to agree on a solution to an issue, if they know that it is required by international law, and not demanded by the opposing side. International law can offer an increasing variety of tools, such as institutional blueprints, capable of assisting the negotiation of conflict endings. Often it is the mediators that will be bringing international law into the equation, by providing an initial roadmap, based on the main international legal rules that are most pressing in the given conflict.
However, the international law can also hinder peace negotiations. This usually happens due to the very strict insistence by the international actors involved in negotiations on incorporating specific rules. The prime example is the previously considered case of transitional justice. If mediators insist that a comprehensive amnesty provision cannot be included in the peace agreement, the end to the conflict can be pushed further to the future. International law can abolish flexibility in negotiations and lead to negotiations falling apart. Demanding the incorporation of a provision that is culturally unacceptable and has the potential to lead to further conflict should always be considered carefully.
International law can also play a part in determining the content of peace agreements. The mediators involved in peace processes, often insist that certain legal principles are incorporated into the peace settlement. If the agenda of the mediators includes, for example, human rights, good governance, and rule of law, the resulting post-conflict society can be substantially more just that the system that was in place before the conflict started. Including provisions about gender equality, minority protection, non-discrimination, and such like, can help progress the protection of rights in the post-conflict situation.
Of course, it is not only the mediators that advocate for the inclusion of certain rights and principles into the negotiated agreement. One of the sides to the conflict has often suffered widespread and systematic oppression and is therefore fundamentally desirous to include legal guarantees for an improved system into the agreement.
While the provisions of a peace agreement do not come with a guarantee of implementation, and the omission of an issue does not imply that it could not be addressed later on, issues that are not specifically mentioned in an agreement can be difficult to prioritise subsequently.
Summing up, international law can play a substantial role in relation to the need for peace. Accordingly, international law is being invoked more often by mediators, admittedly with mixed results. The parties, too, can use the legitimising effect of international law to advance their claims. And international law can restrain extreme claims and views from the parties’.
Text author is Tiina Pajuste, Lecturer of International and European law at Tallinn University School of Governance, Law and Society.