Constitutional Implementation for Sustainable Peace

Peace agreements made in conflict-affected settings often call for constitutional change. As such, it is recognised that constitutions can play an important part in sustaining peace. However, the inclusion, in a constitution, of commitments made in the course of a peace agreement is only one step towards achieving sustainable peace. While it is important for some kinds of commitments made in peace agreements to be reflected in the text of the constitution through a process of ‘textual implementation’, these constitutional provisions must themselves be given practical effect, through ‘substantive implementation’. Sustainable peace requires that constitutional inclusion mechanisms not only are legally enshrined, but that they also are given effect in practice.

This project, funded by the Folke Bernadotte Academy, explores whether, and if so how, the implementation of constitutional inclusion mechanisms (broadly understood) is significant to sustainable peace. Through the Project, ConTransNet developed an analytical framework for understanding the connections between Peace Agreements and Constitutions. The framework distinguishes between textual and substantive constitutional implementation. In relation to the latter, it 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.

The first phase of the Project in 2019 tested the analytical framework through a case study of the implementation to date of the Bougainville Peace Agreement. Bougainville 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 Bougainville a high degree of autonomy and guaranteed a deferred referendum on its future political status. A first report on this case-study, ‘Constitutional Implementation for Sustainable Peace’ (SSRN id 3442666) examined the textual and substantive constitutional implementation of the Bougainville Peace Agreement until mid-2019.

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Bougainville held a referendum to choose between "greater autonomy" and "independence" from November to December 2019. Voters overwhelmingly voted in favour of independence. ConTransNet has now provided an Addendum to the first report which updates the case study and findings to take into account events to the end of 2020, including the referendum on independence as well as the Bougainville elections that followed. It foreshadows the inter-governmental consultations on the outcome of the referendum which will get underway in 2021. It also makes some observations on the role of the judiciary in interpreting and applying the constitutional provisions that can be traced to the Bougainville Peace Agreement.

The paper revisits the conceptual problem of the relationship between peace agreements and constitutions. We regard the two sets of instruments as distinct, but accept the need to resolve the challenges that arise when the resolution of conflict requires constitutional change. Our study suggests that one reason for the relative success of constitutional implementation in Bougainville, at least to this point, lay in carefully and explicitly managing the links between the Peace Agreement and the Constitutions of both PNG and Bougainville at the points of peace making and constitution making. Others may be able to learn from this experience.

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