Women, Peace and Security – Negotiating in Women's Best Interests
| DOI | http://doi.org/10.1111/1758-5899.12313 |
| Date | 01 May 2016 |
| Author | Rashida Manjoo |
| Published date | 01 May 2016 |
Women, Peace and Security –Negotiating in
Women’s Best Interests
Rashida Manjoo
University of Cape Town
Negotiation process and claims –an opportunity
for change
It has been argued that postconflict and transitional settings
provide real opportunities to renegotiate women’s political
power and advance gender equality goals (Domingo et al.,
2014). The increased focus of the international community
in recent years on women, peace and security –through
both a protection and a participation lens –provides an
opportunity to reinforce normative obligations and commit-
ments undertaken by the state, as well as an opportunity to
address structural factors that serve as a barrier to effective
protection and participation in peace and security negotia-
tions. Meaningful participation requires adherence to exist-
ing norms and obligations emanating from the Charter of
the United Nations (UN Charter, 1945), including those
regarding process and means, but also an adherence to
norms and standards emanating from relevant international
and regional treaties, resolutions and declarations. Strategic
and practical interests of women need to be factored into
the process and content of negotiations, to ensure that indi-
vidual, institutional and structural issues are raised during
negotiations, that they are factored into claims made, and
are monitored postnegotiations. A commitment to transfor-
mative equality, nondiscrimination, dignity and bodily
autonomy, among others, is crucial to address the politics of
exclusion, oppression, discrimination and violence, which
form the reality of women’s lives in many contexts.
Negotiation is an important aspect of conflict resolution. It
is recognised by the Charter of the UN, in the settlement of
inter-state and intra-state conflicts that threaten the mainte-
nance of international peace and security. Peaceful dispute
resolution is mandated by Article 2(3) of the UN Charter and
has been recognized as a principle of customary international
law, and, in the context of negotiation, it has been described
as a principle that underlies all international relations (Evans,
1969). Article 33 of the UN Charter sets out various means,
including negotiations, to facilitate the peaceful settlement of
disputes. States are required to resolve disputes through
peaceful means and must discharge this obligation in good
faith, as per Article 2(2) of the UN Charter.Also, negotiations
require the full and free participation of all concerned and
interested parties (UN General Assembly resolution, 1975),
within the fundamentals of preparedness, consent of the par-
ties, impartiality, inclusivity and national ownership of the
process (UN Guidance for Effective Mediation, 2012).
The parameters of existing normative and legal frame-
works in international law provide the basis of established
legal rules that can provide protection in the negotiation
process, as well as in the articulation of claims; as both the
claim and the process is based on ‘a standard external to
the parties of the conflict’and thus ‘carries a legitimacy
rooted in its objectiveness’(Bell, 2008). Legal norms may be
influential in providing a ‘crude map that identifies the con-
tours of a fair solution’, thereby providing a starting point
and also placing an outer limit on negotiation parameters
(Kittrie, 2003). The normative constraint of international law
on negotiations can be seen in several areas including in
respect of peace, justice and the prosecution of those
responsible for international crimes. For example, interna-
tional law generally outlaws the granting of amnesties to
individuals accused of committing serious violations of inter-
national law, including genocide, war crimes and crimes
against humanity (Bell, 2008). The UN Secretary-General has
stated that peace agreements and Security Council resolu-
tions should ‘reject any endorsement of amnesty for geno-
cide, war crimes, or crimes against humanity, including
those relating to ethnic, gender and sexually based interna-
tional crimes, and also to ensure that no such amnesty pre-
viously granted is a bar to prosecution before any United
Nations-created or assisted court’(UN Secretary-General
Report, 2004). Such clear and unambiguous articulations
serve to provide the necessary normative constraint during
negotiations on peace and security, within a justice frame-
work.
Negotiating in the area of women, peace and security
A law-informed approach to negotiation can be useful in
dispute resolution, more especially when no normative con-
straints exist, in respect of clarity and certainty of interna-
tional law, and, where norms are sufficiently determinate to
allow states to understand what is expected of them
(Franck, 1990). An important principle of international law is
pacta sunt servanda: ‘agreements shall be observed’(Henkin,
1979). Legally binding instruments such as the Convention
on the Elimination of All Forms of Discrimination Against
Women (CEDAW, 1979) give rise to state obligations to act
with due diligence to respect, protect and fulfil women’s
human rights. Unfortunately the adherence to norms on
equality, nondiscrimination, bodily integrity and so on, is
not always a reality when the human rights of women are
Global Policy (2016) 7:2 doi: 10.1111/1758-5899.12313 ©2016 University of Durham and John Wiley & Sons, Ltd.
Global Policy Volume 7 . Issue 2 . May 2016 267
Special Section Article
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