Law and Negotiation: A Role for a Transformative Approach?
| Date | 01 May 2016 |
| Published date | 01 May 2016 |
| DOI | http://doi.org/10.1111/1758-5899.12277 |
Law and Negotiation: A Role for a
Transformative Approach?
Aisling Swaine
Elliott School of International Affairs, George Washington University
Abstract
Feminist critique of negotiations that aim to bring about peaceful political settlements has consistently pointed to the glaring
absence of the critical analysis of and response to gender relations as part of both the modus operandi and substantive out-
put of those processes. Just as war is a gendered phenomenon war is a gendered phenomenon (working off gender relations
that subordinate women), so too the processes that respond to it and aim to negotiate its end and create an aftermath, are
inherently gendered. Where the goal is a peace that works for ‘everyone’, then negotiation needs to respond to structural
gendered conditions that limit the potential that negotiation holds for women. The concept of transformation has been
espoused by feminists as key to altering the structural inequalities that determine a systemic gendered order that works to
de-privilege women and women’s interests. As a concept, ‘transformation’holds great potential to regenerate processes of
negotiation towards promoting women’s ability to have agency over their lives. This article begins a consideration of what
transformation might mean for the practice of negotiation and how it might be advanced to make negotiations responsive to
gender relations so that a peace that serves women as well as men is worked towards.
Through its continual questioning of where women are posi-
tioned, feminist scholarship has challenged narrow
approaches to the understanding of armed conflict as an
episodic interval in an otherwise peaceful and nonviolent
landscape. By revealing the gendered norms that inform
and are informed by conflict’s key features, feminist inquiry
has nudged the boundaries of ‘conflict’and ‘peace’to reveal
the connections between armed conflict and the pre-conflict
legal and social order. Rather than seeing what happens in
conflict as distinctive, conflict is revealed as a practice that
reflects much, and sometimes intensified versions, of the
violence, discrimination, exclusion and abuse that are ordi-
narily abundant in women’s lives.
What can this conceptual frame offer to an examination
of law’s role within political negotiation and its ensuing
transition? As multi-disciplinary feminist analysis has shown,
key issues of exclusion, discrimination and neglect arise for
women when the role of law during negotiation and in the
facilitation of postconflict transition is examined. By making
these fissures visible, feminist analysis has in turn underlined
the need to redress these biases. Such redress requires
deliberate strategies that promote women’s representation
and inclusion, that remove implicit and explicit structural
barriers to the achievement of women’s rights and that
make issues and harms specific to women’s lives critically
relevant to successful peace-making outcomes.
Feminist scholars and practitioners increasingly identify
ways that the project of peace, i.e. the processes of peace
negotiation and peace making, are opportunities to bring
about change or ‘transformation’in women’s lives. As a con-
cept that has gained increasing traction in feminist scholar-
ship and in the global policy and practice of promoting
gender equality, transformation still remains a somewhat
ambiguous concept in both normative and empirical terms.
The practical and strategic potential that ‘transformation’
may actually hold for women through negotiation and the
practice of postconflict transition remains elusive, as does
the means through which transformation might be per-
formed and achieved.
This paper will briefly discuss some of the critical gen-
dered considerations that arise in the employment of law
frames within the negotiation of political settlement and
peace. It examines the idea of law’s role in transformation,
feminist estimations of the peace project and of interna-
tional law, and the implications of law-based negotiation in
the potential for achieving transformation in women’s lives.
The paper concludes with an overview of proposed in-prac-
tice approaches to ensuring gendered concerns become
inherent to the project of peace making. The paper aims to
bring together theory and practice, highlighting where there
are tensions between law provisions and implementation
through peace negotiation.
1. Law, negotiation and transformation
A specific role is attributed to international law in peace
negotiation processes. While not solely characterized as a
legal process, mechanisms based on international law are
now predominant in constructing negotiation and postcon-
flict transition processes globally (Teitel, 1997). International
organizations that initiate and run negotiations often delin-
eate the parameters of what that negotiation entails on the
basis of their legal and political mandates (Wippman, 1977;
Barnett, 2007). International law is understood to provide a
©2016 University of Durham and John Wiley & Sons, Ltd. Global Policy (2016) 7:2 doi: 10.1111/1758-5899.12277
Global Policy Volume 7 . Issue 2 . May 2016
282
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