democraciaAbierta

Postconflict in Colombia (12). Public endorsement and legal certainty

A positive result in a referendum on the peace agreement between the Colombian government and the FARC can massively strengthen the agreement’s legitimacy and confer upon it an aura of untouchability. Español Português

Blanca Manresa Farreras
13 April 2016
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Women hold anti-weapon signs during a peace march in Bogotá in 2002. AP Photo/Arima cubillos/All rights reserved

The General Agreement signed on August, 26, 2012 between the government and the Revolutionary Armed Forces of Colombia (FARC) – i.e., the roadmap for the current talks in Havana - expressly provides for an unnamed procedure of public endorsement (refrendación)of the agreements reached in the peace negotiations.

Both parties have publicly expressed their views on the issue, revealing their differences. While Juan Manuel Santos’s government suggested a referendum and then a plebiscite as a possible means for the endorsement, the guerrillas have insisted on convening a constituent assembly and, more recently, making a special agreement under International Humanitarian Law with the International Committee of the Red Cross (ICRC).

Whatever formula is eventually agreed, it is essential that the agreement reached in Havana be subsequently ratified by the citizens of Colombia.

Despite the risks involved in seeking popular endorsement, there is no other democratic procedure that can produce greater benefits for the stability of a peace agreement. Not doing so would imply excluding a society that is already divided by the conflict from whatever has been agreed, thus missing the opportunity to allow it align itself in favour of conflict termination, and in so doing, lay down the first foundation stone on the path to social and national reconciliation.

The principle of transparency should be inherent to any peace process. In this sense, what is finally agreed in Havana should be subjected to public and final discussion by Colombian society as a whole, which is its alleged ultimate beneficiary. Not doing so would imply failing to counteract the normal imbalance existing in a peace negotiation in which the negotiating parties’ interests may not coincide with the general interests of society, or those of special groups within it.

Nevertheless, there are risks in carrying out a public endorsement process, the most obvious one being the risk of a 'no' vote. History offers examples of both successful citizen endorsement processes - for example, South Africa (1992) and Ireland (1998) - and unsuccessful ones - for example, Guatemala (1999) and Cyprus (2004). These experiences teach that choosing the right timing and ensuring a well-designed endorsement procedure are key to its success.

In this sense, the currently declining support for President Santos in the country is a concern, for we know that the endorsement of a peace agreement can be easily distorted and turned into a referendum on the popularity of the government. As witnessed elsewhere, however, levels of support can improve greatly when the big news of a peace announcement breaks.

All this aside, though, a public endorsement process is worth carrying out for an additional reason: namely, what it can contribute in terms of legal security (seguridad jurídica). If sufficient “yes” votes can be secured, the legal security or stability of the agreement – which is essential for a sustainable peace – can reach a point of near untouchability that would be unattainable otherwise.

In the Colombian context, two dimensions of legal certainty should be considered: first, that concerning the main parties to the agreement (i.e., what the government and the FARC commit vis-à-vis each other), and second, regarding third parties.

Legal security of the first kind has a contractual character: in the case of reaching an accord, the FARC and the government are responsible for carrying out in good faith the commitments they will have made to each other. If the parties cannot rely on each other to deliver on such promises, then mutual confidence would vanish - and with it, legal security.

At this level, a public endorsement requirement would strengthen the legal certainty of the agreement, for in  the weeks prior to the vote, both the FARC and the government would presumably strive to publicly 'defend' what has been agreed. In doing so, they would be committing themselves to its terms before a national and international audience. Such an opportunity should not be missed. It would give the government and the FARC the chance to show Colombian society and the international community the depth of their commitment to the process – while giving the latter a chance to assess it.

Legal security vis-à-vis non-signatory third parties is more difficult to control, but by no means less important for achieving peace. It has to do with the degree of deference that possible external "saboteurs" (i.e., actors other than the government and the FARC) may or may not be inclined to display regarding the final agreement. The greater the moral, legal and political legitimacy of the agreement, the more such deference will apply, and the better its implementation will turn out to be. By contrast, denying the Colombian public the opportunity to express its support for the agreement would rob the package of the additional legal security it may need when facing possible interference or attacks by parties that may feel obligated to disturb its intended implementation.

By way of example, the “yes” majority that supported the Good Friday Agreement in the referendums separately held in Northern Ireland and the Republic of Ireland significantly undermined the anti-agreement parties. In addition, the positive referendum results gave the people and institutions in charge of implementing the peace the necessary legitimacy to carry out their mission in the following years, and hold the process together against external threats. Even today, the referendum remains the motivating reason for the parties to find ways to solve and overcome any crisis between them.

Ultimately, a positive referendum result in Colombia could massively strengthen the agreement’s legitimacy and confer upon it an aura of untouchability. This would protect the agreement against any undue interference by future governments or national, international or foreign courts; in addition, it would provide a key reason for the process to keep moving forward when, inevitably, critical moments will arise between the parties during the long period of implementation.

In Colombia’s current context, the holding of some form of referendum on the eventual Havana agreement would also offer an important bonus: it could also serve as a helpful precedent for the peace talks that are just now getting underway with the National Liberation Army (ELN).

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This article has been translated by democraciaAbierta from the original Spanish-language version.

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