Constitutional Implementation for Sustainable Peace

48 Pages Posted: 29 Aug 2019 Last revised: 14 Oct 2019

See all articles by Anna Dziedzic

Anna Dziedzic

The University of Hong Kong - Faculty of Law; University of Melbourne - Melbourne Law School

Cheryl Saunders

University of Melbourne - Law School

Date Written: August 26, 2019

Abstract

Peace agreements made in conflict-affected settings sometimes call for constitutional change. It is obvious enough, in these circumstances, that the establishment and maintenance of peace requires these undertakings to be implemented in the constitutional settlement. The focus of this study is what ‘implementation’ means in this context. In particular, it explores the hypothesis that textual implementation alone is unlikely to be sufficient for sustainable peace and that substantive implementation also is required.

The study brings together several bodies of research, dealing with the implementation of Peace Agreements and the implementation of Constitutions. It develops an analytical framework for understanding the connections between Peace Agreements and Constitutions, where the former have implications for the latter, in the interests of sustainable peace. The framework distinguishes between textual and substantive constitutional implementation and identifies three aspects of substantive implementation that require attention: technical implementation, the interpretation of constitutional provisions and cultural adaptation to change. It argues that both the process and the outcomes of constitutional implementation, thus understood, are potentially relevant to sustainable peace.

This study represents the first phase of a longer project. For the purposes of this phase, the study tests the analytical framework through a case-study of the implementation to date of the Bougainville Peace Agreement (BPA). The Autonomous Region of Bougainville (ARoB) is a region within the state of Papua New Guinea. It experienced civil conflict from 1988 until the signing of a peace agreement in 2001, which gave the ARoB a high degree of autonomy and guaranteed a deferred referendum on its future political status. The referendum is scheduled for 23 November 2019 and offers a choice between ‘greater autonomy’ and ‘independence’. An addendum to this study will be conducted and published after the referendum, when its outcome is known.

In the case of Bougainville, there was successful textual implementation: the BPA specifically required changes to the Constitution of Papua New Guinea and these were readily made. The case study therefore offers particularly fruitful ground to examine substantive constitutional implementation. The issues of substantive implementation identified in the case study show challenging substantive implementation is likely to be. Taken individually, none of the issues for implementation identified in the study are likely to affect sustainable peace. Cumulatively, however, they may have indirect relevance: affecting the perceptions of the options at referendum and, potentially, levels of mutual understanding between key stakeholders.

Research for this report was conducted by the Constitution Transformation at Melbourne Law School and funded by the Folke Bernadotte Academy.

Keywords: peace agreements, constitutions, constitutional implementation, Bougainville

JEL Classification: K19, K39

Suggested Citation

Dziedzic, Anna and Saunders, Cheryl Anne, Constitutional Implementation for Sustainable Peace (August 26, 2019). U of Melbourne Legal Studies Research Paper No. 836; University of Hong Kong Faculty of Law Research Paper No. 043. Available at SSRN: https://ssrn.com/abstract=3442666 or http://dx.doi.org/10.2139/ssrn.3442666

Anna Dziedzic

The University of Hong Kong - Faculty of Law ( email )

Pokfulam Road
Hong Kong, Hong Kong
China

University of Melbourne - Melbourne Law School ( email )

185 Pelham Street
Melbourne, VIC 3010
Australia

Cheryl Anne Saunders (Contact Author)

University of Melbourne - Law School ( email )

Centre for Comparative Constitutional Studies 723 Swanston Street (2nd Floor)
Parkville, Victoria 3010
Australia
61 3 8344 0753 (Phone)
61 3 8344 9374 (Fax)

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