Legal Challenges: Post-Conflict Reconstruction

Thank you for this opportunity to guest blog on Opinio Juris. I would like to start with some comments on post-conflict reconstruction – an issue that now tops the UN’s security agenda, and is one of the biggest foreign policy challenges for the US.

In less than 2 decades, multilateral intervention in post conflict zones has shifted from short term interventions with limited military mandates to long term nation building programs with broad legal objectives. Kosovo and East Timor stand out as the high water marks of multilateral post-conflict intervention, given the plenary authority granted to the interim administrations UNMIK and UNTAET as per Security Council resolutions 1244 & 1272. Today, most peace building strategies count security, the rule of law, economic development, and transitional justice amongst their core pillars. All of these objectives require some domestic legal reform by international actors, and therefore implicate both the national and international legal orders. The post 9/11 reconstruction programs in Iraq & Afghanistan however serve as daily examples of just how difficult it is to meet these objectives in practice.

There are a number of legal trends in contemporary strategies for post-conflict reconstruction: First, a developing emphasis on constitutionalism that goes beyond general strategies to promote the “rule of law”. Only 3 years ago, the UN acknowledged the role of the ‘rule of law’, in post-conflict reconstruction (UN Doc S/2004/616) and today, we can see how international actors (including the US in Iraq) are getting directly involved in constitution drafting. This legal interventionism is demonstrating how the reserve domain of the state to legislate is shrinking, as I argue here. Second, there is a growing emphasis on the management of natural resources like oil, timber and diamonds. In Iraq, oil been a key issue in the constitutional debate; in many African countries it has been the source of increasingly sophisticated Security Council sanctions regimes that have resulted in market regulation schemes (which I will discuss in a forthcoming post). This emphasis on regulation is affecting the core content the right to permanent sovereignty over natural resources, which many non-OECD countries have claimed is a jus cogens norm. Third, because economic development helps to prevent a recurrence of conflict, we are witnessing a new emphasis on economic governance in post-conflict reconstruction. The Governance Economic Management Plan in Liberia is the most innovative example: endorsed by the Security Council, the International Financial Institutions, the international donor community, and the government of Liberia, it includes the principles of accountability, transparency, and the responsible use of public funds. See a World Bank analysis of the plan here.

These examples of legal interventionism in post-conflict reconstruction highlight how critical legal tools have become to managing conflict and how norms on accountability will be the biggest challenge for international actors in these new legal roles.