Editorial Comment: Law and Negotiation in Conflict: Theory, Policy and Practice
| DOI | http://doi.org/10.1111/1758-5899.12336 |
| Author | Catherine Turner |
| Date | 01 May 2016 |
| Published date | 01 May 2016 |
Editorial Comment: Law and Negotiation in
Conflict: Theory, Policy and Practice
1
Catherine Turner
Durham Law School
Abstract
The relationship between law and negotiation is increasingly at the forefront of the international agenda. International organi-
sations whose role includes the mediation of peace, such as the Mediation Support Unit of the United Nations, and the Euro-
pean Union, are seeking to understand the relationship between mediation, law and justice in conflict and post conflict
societies. While such organisations acknowledge that international law places normative constraints on the practice of peace
making, they also recognise that key principles of mediation, such as consent, inclusivity and local ownership, are crucial to
the success of negotiated peace processes (United Nations, 2012). These questions have risen to the top of international policy
agendas, but there is little academic scrutiny of how the relationship between law and negotiation itself it to be negotiated
(Kastner, 2015). Research to date has focused on discrete aspects of the relationship between law and negotiation, such as
the role of human rights in peace agreements (Bell, 2000), or in setting transitional justice priorities (Bell 2008; Wierda, 2010).
It has not addressed the overarching question of the relationship between law and negotiation that underpins these divisive
issues. Binding norms as well as normative expectations serve to shape the mediation process. Yet while law can play a key
role in providing guidance for peacemakers, and in providing legitimacy for peace agreements, it can also come into conflict
with the political task of negotiation.
Core research themes
The papers presented in this issue were initially presented
at a symposium on the subject of law and negotiation in
conflict, held at Durham University in March 2014. ‘Conflict’
in this context refers both to the physical existence of vio-
lence or war in which questions of law and justice must be
negotiated, but also to the tension between the normative
demands of international law and the pragmatic require-
ments of peacemakers, whether mediators or negotiators.
International lawyers may demand compliance with interna-
tional standards in terms of justice and accountability, and
indeed it has been suggested that a ‘law of the peace-
maker’, has emerged in recent years (Bell, 2008). On the
other hand, mediators and negotiators must be able to
deliver an agreement that brings violent conflict to an end
and secures the support of their own constituency. In these
contexts it has been argued that international law stan-
dards can create additional stumbling blocks for a peace
process (Anonymous, 1996). Recent reports have high-
lighted the continued existence of this tension, and the
lack of strategic thinking on how to reconcile the practice
of conflict mediation with the normative requirements of
law (Davis, 2010; Von Burg, 2015). In the context of EU
mediation activities, one report highlighted how EU media-
tors are expected to address human rights violations, but
have no guidelines that explain how they should do so
(Davis, 2010). Similarly while funding is available from the
EU to support transitional justice processes, there is insuffi-
cient clarity among mediators on how best to support such
processes (Davis, 2010). This highlights the absence of
joined up thinking between academics, policy makers and
practitioners in the context of setting policies that would
help mediators to engage with the normative requirements
of international law in conflict and post conflict
environments.
Yet law and negotiation need not be mutually exclusive
approaches to conflict. They must be used in a way that is
complementary to ensure the greatest possible chance of
securing a just and lasting peace. In this way balancing the
requirements of law and politics is a process of negotiation
in itself. International law creates a normative framework
within which mediators and negotiators work. Four pillars of
international human rights law, international humanitarian
law, international criminal law and refugee law combine to
create a framework of values within which United Nations
must be conducted (United Nations, 2004; Wierda, 2010).
Each of these regimes also contains binding legal obliga-
tions that will form the backdrop against which peace is
negotiated. Conversely, however, the success or failure of a
peace agreement will depend on the extent to which it is
accepted by a local population. In this regard externally
imposed norms are unlikely to create genuine change in
conflicted societies (Deng, 2009). Therefore what remains
absent is any sustained analysis of how and why these nor-
mative frameworks should be applied, what contribution
they will make to the negotiation process, and where the
boundary between law and politics lies. It is possible to
identify a number of claims both for and against the
increasing application of law to negotiation.
©2016 University of Durham and John Wiley & Sons, Ltd. Global Policy (2016) 7:2 doi: 10.1111/1758-5899.12336
Global Policy Volume 7 . Issue 2 . May 2016
256
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