Building a sustainable peace: How peace processes shape and are shaped by the international legal framework for the governance of natural resources

Natural resources are strongly connected to the onset, duration and recurrence of armed conflicts. However, even after an armed conflict has formally ended, natural resources can be an important trigger for a relapse into armed conflict. For these reasons, it is of the utmost importance, both from a security and a development perspective, to address natural resources as an integral part of the peace process. This article aims to assess how provisions in peace agreements addressing natural resource governance are embedded in the international legal framework. It inquires into the particularities and legal nature of peace agreements and examines the various functions of natural resource arrangements as part of peace agreements. Finally, as each category of natural resources comes with distinct legal questions and peacebuilding challenges, the article zooms in on water governance as a case study to explore the different ways in which natural resource arrangements in peace agreements and international law interact. The analysis is based on a study of 40 intra‐State agreements, including the 2015 South Sudan agreement, the 2015 Mali agreement and the 2016 Colombian agreement.

by international legal obligations entered into by States, either through their participation in treaty regimes or by way of customary international law. 7 Natural resource arrangements in peace agreements are therefore increasingly governed by international law. This is all the more true for water resources, as these often fall within the jurisdiction of more than one State, requiring cooperation or, as a minimum, taking into account the interests of these other States. As a consequence, international law plays an important role in their management. Conversely, natural resource arrangements have the potential to contribute to shaping the international legal framework for the governance of natural resources as part of post-conflict peacebuilding, for example by reinterpreting existing international legal norms for the purpose of addressing the specific needs and challenges of post-conflict societies.
The article assesses these forms of interaction between international law and peace agreements for the purpose of clarifying the overall international legal framework that applies to natural resource governance in post-conflict situations. The term 'governance' is understood to denote the broader framework for the exercise of political authority -either on the global, regional, domestic or local level -with respect to the management of natural resources within States. 8 The focus of the analysis is on peace agreements that have been concluded to end internal armed conflicts. The reasons for confining the analysis to this type of agreement are twofold. First, internal armed conflicts are the most prevalent type of armed conflict today. Resolving these armed conflicts does not only pose specific challenges to the domestic order of States, but also raises distinct questions about the role of the international community, in light of the principles of non-intervention and sovereign equality enshrined in the UN Charter. Second, the legal nature of peace agreements that end internal armed conflicts is subject to a long-standing doctrinal debate. 9 This makes it all the more relevant to assess how this type of agreement interacts with international law.
For this purpose, the article first inquires into the particularities and legal nature of peace agreements to determine the framework for interaction with the international legal order (Section 2).
Subsequently, it examines the various functions of natural resource arrangements as part of peace agreements for the purpose of identifying relevant international legal norms (Section 3). Lastly, the article zooms in on water governance and explores the different ways in which water arrangements in selected peace agreements, including the 2015 agreements on Mali and South Sudan and the 2016 agreement on Colombia, interact with international law (Section 4).

| CON CEP TUALIZING INTR A-S TATE PE ACE AG REEMENTS
This section discusses the particularities of peace agreements, explores their legal status and examines their relationship with international law. The purpose of this section is to clarify the phenomenon of peace agreements as well as the framework for their interaction with the international legal order. In line with the general objectives of this article, the focus of the discussion is on intra-State peace agreements.

| The particularities of intra-State peace agreements
Peace agreements can be defined as agreements concluded between parties to an armed conflict for the purpose of ending the armed conflict. Of course, this basic definition does not do justice to the great variety of peace agreements, both in terms of form and substance. From a substantive perspective, the scope of the agreement may range from merely establishing the conditions for a ceasefire between the parties to the conflict to creating the framework for a new State order. In their most developed form, peace agreements do not only regulate the conditions for ending the armed violence; they recreate the very fabric of the political, social and economic structures of the State. 10 These framework agreements can best be described as interim constitutions. 11 In some instances, these agreements even temporarily displace the State's constitution pending legislative proposals for permanent constitutional amendments. However, it should be kept in mind that, in many instances, peace agreements are developed over time as part of a broader peace process. Many peace agreements are 'partial', in the | 3 DAM-De JONG sense that they address distinct issues that are negotiated separately between the parties as part of a series of sequenced negotiations. 12 Ideally, these agreements build towards a final agreement, but this is not necessarily so. The broader setting of the peace process in which the particular agreement has been negotiated should therefore always be taken into account when analysing its arrangements.
Furthermore, to fully appreciate the arrangements set out in the agreements for the post-conflict governance of natural resources, it is important to keep in mind two other particularities of peace agreements. First, the issues that are addressed within a peace agreement are very context-specific and also depend to a great extent on the parties negotiating the agreement. It is not necessarily so that all the parties to the conflict are represented at the negotiation table. A persistent problem is, for example, the underrepresentation of women in the negotiation of peace agreements. 13 In other instances there may be good reasons to exclude parties from the peace process, for example because the beliefs or methods of these parties are incompatible with core values shared by the international community. 14 However, it is clear that these decisions impact upon the terms and modalities of the negotiated settlement. For this reason, it is essential to appraise for each single agreement which of the parties to the armed conflict were represented and, more importantly, what were their stakes at the negotiation table and their political sensitivities. Second, to understand the framework in which a peace agreement operates, it should be noted that, once an agreement has been reached, it is not always implemented. Peace agreements are often fragile, especially when it concerns internal armed conflicts. More precisely, more than a third of these agreements break down within five years. 15 Implementation of the arrangements in peace agreements therefore is often faulty. This however does not necessarily undermine their normative value, since the arrangements do represent the solution that has been agreed upon by the parties to the agreement. As such, they represent benchmarks for the parties to fall back on. 16 This is why this article focuses primarily on the arrangements themselves, notwithstanding their implementation record.

| The legal nature of intra-State peace agreements
In legal terms, a primary distinction can be made between peace agreements concluded between States and peace agreements concluded between States and armed groups. The former could be classified as 'treaties' within the meaning of Article 2 of the 1969 Vienna Convention on the Law of Treaties, which defines a 'treaty' as 'an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation '. 17 Therefore, as long as the agreement satisfies these conditions, it is governed by the rules on inter alia the conclusion, interpretation, suspension and termination of treaties as set out in the Vienna Convention, no matter its form or whether it is a single agreement or rather a package of agreements. However, it rarely happens that an internal armed conflict is terminated by a peace agreement between States. One of the exceptions is the 1991 Paris Agreement to settle the armed conflict in from the ILC reports that the term 'insurgent communities' refers only to opposition groups 'to which a measure of recognition has been ac- people, represented by the SPLM, to external self-determination. As such, it would be valid to conclude that the SPLM enjoyed a large measure of recognition, including by the government of Sudan, and that for this reason the CPA would qualify as a treaty. Nevertheless, the arbitral tribunal which was called upon by the parties to the agreement to settle a dispute regarding its implementation concluded that the CPA was not a treaty. It qualified the CPA instead as an 'agreement … between the government of a sovereign state, on the one hand, and, on the other, a political party/movement, albeit one which th [is] agreement … recognize[s] may -or may not -govern over a sovereign state in the near future'. 23 Given the controversies regarding the circumstances in which armed opposition groups are considered to enjoy a sufficient measure of recognition to be deemed capable to conclude treaties, it may be argued that the implementation of the majority of peace agreements concluded between States and armed groups is primarily governed by domestic law.
The principal difference between the two types of peace agreements is therefore that peace agreements concluded between States are an integral part of the international legal order, while peace agreements concluded between States and armed groups are primarily part of the domestic legal order. This difference has implications for the way in which these agreements interact with international law: this interaction is primarily horizontal for inter-State peace agreements and primarily vertical for intra-State peace agreements.

| Relationship with the international legal order
Considering intra-State peace agreements as part of domestic law does not imply that they are necessarily subjected to international law. To the contrary, in recent years, international courts and tribunals have accepted that peace agreements -because of their specific nature and the interests at stake -may sometimes even temporarily override relevant norms of international law. A specific example concerns the 1995 Dayton Agreement for Bosnia and In addition, intra-State peace agreements contain and build upon international norms, for example with respect to human rights protection and good governance. It is exactly this interplay between peace agreements and international law that is central to this article and which is further explored in Section 4 with respect to natural resource governance. More generally, references to international legal norms in a peace agreement may serve several interrelated objectives. First, such references may be specifically intended to internationalize the agreement, in the sense that its implementation becomes subject to an international institutional machinery.
References to specific human rights in an agreement, for example, may trigger the engagement of human rights treaty monitoring bodies with respect to the interpretation and implementation of the agreement's provisions. 26 Second and related to this, references to international legal norms may provide a universal framework for interpreting the commitments set out in the peace agreement. In this sense, international law functions both as a normative framework and as a shared discourse for the parties to the agreement, providing 'impartial definitions of acceptable behavior that are universally Logically, the use of international legal notions in a peace agreement may also have a catalysing effect on norm creation related to peace processes. This is the type of interaction Christine Bell refers to when she employs the notion of lex pacificatoria, that is, 'the law of the peacemakers'. 28 In her work, she has convincingly demonstrated how peace settlement practice has developed innovative concepts which have had an impact on the interpretation of, inter alia, the right to self-determination and international refugee law. 29 Section 4 below addresses this type of normative interaction with respect to natural resource governance.
Furthermore, intra-State peace agreements result on a regular basis of international efforts of mediation and consultation, while often international monitoring and review are part and parcel of these agreements. These forms of international involvement in the negotiation and implementation of intra-State peace agreements have two notable effects. First, the agreement itself becomes internationalized due to the involvement of international organizations and third States. The role of these actors can be confined to political support for the peace agreement, through notions such as 'witnesses' or 'guarantors' to the agreement, but it can also take the form of direct international involvement in the monitoring of the agreement. Examples of the latter include the deployment of a verification or peacekeeping mission to actively support implementation of the agreement. 30 In many instances, arrangements for the deployment of these missions are part and parcel of the peace agreement and only need subsequent authorization by the respective international organization. 31 Another effect of the involvement of international actors can be seen in the substance of the agreement.
International actors bring with them their own sets of norms, which are based on international legal norms and principles. 32 For example, the official policy of the UN precludes it from co-signing an agreement which includes full amnesties for the commission of international crimes. 33 UN involvement in the negotiation of a peace agreement may therefore, inter alia, impact upon the transitional justice arrangements of the agreement.
In sum, this article posits that the interaction between peace agreements and international law goes two ways. First, international law provides a normative and interpretative framework for the design and implementation of the arrangements set out in peace agreements. Second, peace agreements can also shape and further develop international law, most notably by providing novel interpretations to existing norms and principles in international law. This interplay is further explored in Section 4, focusing specifically on water governance.

| P OS ITI ONING NATUR AL RE SOURCE ARR ANG EMENTS WITHIN PE ACE AG REEMENTS
While the previous section addressed intra-State peace agreements in a more general fashion, the current section focuses on the position of natural resource arrangements within these agreements. As indicated in the introduction, all major peace agreements concluded in recent years include provisions on natural resources. More specifically, one can discern three categories of natural resources addressed in these agreements, namely renewable natural resources, such as water, fisheries, wildlife and forests; non-renewable or extractive natural resources, such as oil, gas and minerals; and land. 34 The purpose of this section is to clarify the underlying factors which explain how natural resources are addressed in peace agreements. For this purpose, Section 3.1 addresses these underlying factors, while Section 3.2 delves into the various categorizations used in peace agreements with respect to natural resource arrangements.

| The relationship between natural resources and the conflict dynamics
The way in which natural resources are addressed in peace agreements depends on several factors, which are closely related to the dynamics of the armed conflict for which a settlement is negotiated.
These factors are related to the nature of the underlying armed conflict, the role that natural resources played within this conflict and the type of natural resources involved. These factors are discussed in turn.
Every armed conflict has its own dynamics, which frames the resulting peace process. Nevertheless, on a more abstract level, one can distinguish between various categories of armed conflict, which partly determine how questions relating to natural resource governance could be addressed. Addressing intra-State armed conflicts exclusively, a distinction should be made between armed conflicts in which opposition movements contest the authority of the 28      financing for armed groups undermining the peace process (through institution building).
Of course, even if natural resources did not play a role in the conflict, it may still be important to include specific provisions in the agreement. This is especially so when natural resources are damaged as a result of the hostilities. Collateral damage to the environment is a common feature of armed conflicts. Arrangements with respect to restoring the degraded environment are regularly included in peace agreements. 45 A last factor impacting the way natural resources are addressed in peace agreements stems from the type of natural resource in-

| Categorization of natural resource arrangements in peace agreements
As a result of the factors examined in the previous section, natural resource arrangements in peace agreements can be categorized in the following ways. First, natural resources are often addressed from a developmental or humanitarian perspective. Relevant provisions relate to the task of the government to provide basic services to the population or concern arrangements regarding access for communities to natural resources. A human rights-based approach is particularly apt for the implementation of this type of provisions. Second, natural resource arrangements often call for environmental protection measures. These arrangements relate to the restoration and/or conservation of (degraded) natural resources. International environmental law as well as human rights law are relevant for the implementation of these arrangements. Third, natural resources can be addressed from a security perspective. Relevant arrangements approach natural resources as tools to build confidence between former belligerents. These arrangements are often connected to DDR programmes and include projects aimed at restoring vital infrastructure, such as water systems, as a means to reintegrate former combatants. As such, international law on peace and security and, more specifically, peacekeeping operations may play an important role in their implementation. Finally, also relating to security, one can discern arrangements that establish structures for the governance of natural resources and their revenues. These include power-sharing, wealth-sharing and/or autonomy arrangements. These types of arrangements are primarily addressed through the constitutional order of the respective State. However, international law does play a role in their implementation. Where it concerns autonomy arrangements, international legal norms relating to the right to self-determination, such as the requirement that any choice for a particular political and economic system has to be based on 'a free and genuine expression of the will of the peoples concerned', 48 provide the parameters for the design and implementation of these arrangements.
Likewise, power-sharing arrangements need to respect obligations arising from the right to self-determination, including most importantly that natural resources exploitation must benefit the people of the State. 49 From this categorization 50 it is clear that natural resource arrangements in peace agreements interact with several branches of international law, including international human rights law, international environmental law and international law relating to the maintenance of international peace and security. These connections are further explored in the following section, which aims to situate peace agreements within the international regulatory environment for the management of natural resources within States.

| INTERPL AY B E T WEEN PE ACE AG REEMENTS AND INTERNATI ONAL L AW
The natural resource arrangements in peace agreements do not operate in a legal vacuum. On the contrary, these arrangements are part of a broader international regulatory framework which delineates the governance of natural resources at the domestic level.
In addition, as set out in Section 2, peace agreements themselves often contain and build upon international norms. This section explores these forms of interplay in more detail. Section 4.1 sets out the general framework for interplay between natural resource arrangements in peace agreements and the international legal frame-  4.2 subsequently explores how these forms of interplay take shape in selected peace agreements. The focus of this section is on water governance, in line with the general theme of this special issue.

| The international legal framework for the governance of natural resources within States
The governance of natural resources is primarily regulated by the principle of permanent sovereignty over natural resources. This principle has been set out in several UN General Assembly resolutions and treaties and is considered to be part of customary international law. 51 It provides States considerable freedom to freely dispose of their natural resources, as long as they respect the limitations that international law has set for the purpose of inter alia protecting human rights, the environment and foreign investors. 52 Some of   the UNECE Convention, customary norms as well as regional agreements still form the backbone of international freshwater law. This is partially because relatively few States have thus far ratified the conventions, but also because the UN Watercourses Convention itself encourages the conclusion of regional agreements.
Nevertheless, considering the body of international freshwater law as a whole, it may be argued that it contains principles and rules that are crucial for the interpretation and implementation of arrangements with respect to water management in intra-State peace agreements. Examples are discussed in the following section.

| A closer look at forms of interplay between natural resource arrangements and the international legal framework
Natural resource arrangements in peace agreements operate within the regulatory framework that was set out in the previous section.
The international legal framework therefore directly impacts upon the implementation of these arrangements. More specifically, it is posited that international law provides a normative framework for the design and implementation of natural resource arrangements within the peace agreement. This relates to the first type of interplay between international law and peace agreements, as examined in for Mali, which contains as a priority issue the rehabilitation of wells and sinks. 65 International law is directly relevant for the implementation of these provisions, as it sets standards for the right to access to water. As a minimum, identical Article 1(2) of the ICCPR and the ICESCR on the right of peoples to economic determination determines that 'in no case may a people be deprived of its own means of subsistence'. In addition, pursuant to Articles 11 (adequate standard of living) and 12 (right to health) of the ICESCR, everyone is entitled to 'sufficient, safe, acceptable, physically accessible and affordable water for personal and domestic uses'. 66 This implies, for example, that a State recovering from armed conflict should make careful choices on the arrangements to be made in implementing these provisions. The right to affordable water can be seriously impeded if a State, for example, fails to make adequate contractual arrangements with private water providers.
Furthermore, international human rights law stipulates that access to water should be provided on a non-discriminatory basis. This can be derived first of all from Article 2(2) of the ICESCR, which stipulates an obligation for the State parties 'to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or

71
The regional framework governing the Nile river may also be relevant for the implementation of this provision, but this framework is highly fragmented. The upper riparian States (Ethiopia, Rwanda, Tanzania, Uganda, Kenya and Burundi) have adopted the 2010 Nile Basin Cooperative Framework Agreement, which is inspired on the UN Watercourses Convention. The two downstream States, Sudan and Egypt, in contrast hold on to a bilateral agreement concluded between both States in 1959 and which regulates water allocation between these two States only. This is why the current analysis is confined to customary international law. the riparian States. The relevance of this principle for the management of shared watercourses has been confirmed by the International Court of Justice in its judgment concerning the Gabčíkovo-Nagymaros project between Hungary and Slovakia. In this judgment, the Court recognized a 'basic right to an equitable and reasonable sharing of the resources of an international watercourse' for all riparian States sharing a watercourse. 72 The UN Watercourses Convention, although strictly speaking not binding on South Sudan or the other States sharing the Nile, provides a relevant framework for interpreting the principle of equitable use. In addition to defining the principle in Article 5, the Convention also formulates several factors in Article 6 that need to be taken into account for the purpose International water law therefore provides a normative, institutional and interpretative framework for the implementation of the commitments set out in both agreements. One could even argue that the commitments set out in the peace agreements restate existing obligations under international law. In this sense, international law could be considered the primary framework of reference for the interpretation and implementation of these provisions.
In addition to instances where water arrangements in peace agreements are shaped by international law, these arrangements can also shape and further develop international law. A word of caution is appropriate in this respect. The legal status of intra-State peace agreements is unclear and it cannot be assumed that these agreements are part of international law, as set out in Section 2. Peace agreements should therefore be approached primarily as instances of State practice, one of the constitutive elements of the process of customary international law formation. To assess whether natural resource arrangements have developed the international legal regime for the governance of natural resources in post-conflict settings, it must therefore be determined that these arrangements have merged into a consistent practice and that this practice reflects the opinio juris of these States. 76 Such an assessment exceeds the limits of this article, which therefore confines itself to some preliminary observations.
The 2013 agreement between the government of the DR Congo the same extent as the local civilian population, be provided with food and drinking water'. 79 This provision therefore formulates an obligation for a party to an armed conflict to provide drinking water to persons deprived of their liberty in relation to the armed conflict, but qualifies the contents of the obligation on the local circumstances. 80 This is a notable difference with the provisions included in the two peace agreements, which precondition the location and size of the camps on the availability of water in the region. As such, these arrangements expand the protection of detainees in non-international armed conflicts.
Furthermore, the 2016 peace agreement between the government of Colombia and the FARC explicitly recognizes that protection and promotion of access to water is an integral part of sustainable development. This is apparent from the agreement's definition of sustainable development, as one of the principles that will guide the implementation of the package for comprehensive rural reform in Colombia. Sustainable development is defined here as 'development that is environmentally and socially sustainable, requiring protection and promotion of access to water, as part of an ordered concept of territory'. 81 The agreement furthermore contains an explicit reference to the right to water. Article 1.1.10 on 'closure of the agricultural frontier and protection of reserve areas' determines that the government, pursuant to 'the principles of rural community participation and sustainable development', will 'implement an environmental zoning plan to define the agricultural frontier … with a view to safeguarding biodiversity and the population's progressive right to water, and the promotion of its rational use'. 82 In this way, the agreement, as an example of State practice, may play a role in crystallizing the legal status of the human right to water. This right has been recognized as inherent to other human rights (such as the rights to life, enshrined into Article 6 of the ICCPR, and to an adequate standard of living, included in Article 11 of the ICESCR), but its status as an autonomous human right is still debated. 83 The explicit reference to the right to water in the agreement may be taken as evidence of State support for the existence of the right.
These are only some examples in which water arrangements in peace agreements provisions have the potential to shape the international legal regime on water governance. Of course, the conclusions that have been reached are tentative and require further study. Nevertheless, the examples clearly show that peace settlement practice may play a role in reinterpreting, expanding and confirming international legal norms related to the management of water in post-conflict settings. In these ways, the examples underline the relevance of peace settlement practice for international law.

| CON CLUS IONS
This article sought to assess how natural resource provisions in peace agreements are embedded in the international legal framework. While it is most appropriate to approach intra-State peace agreements as belonging primarily to the domestic order of States, it is clear that these agreements interact in several ways with the international legal order. Similar conclusions can be drawn for natural resource management. While the management of natural resources is entrenched in State sovereignty, States have also increasingly accepted international obligations that qualify their rights regarding the use of their natural resources. States must therefore take into account these obligations when designing and implementing natural resource arrangements in peace agreements.
In addition, international legal frameworks increasingly provide opportunities for cooperation and assistance to States in the implementation of their commitments under peace agreements. In these ways, international legal norms and institutions shape natural resource management as part of peace processes. Conversely, peace agreements aim to address specific challenges, such as the reintegration of former combatants, restoring livelihoods and remedying past wrongs. These challenges require tailor-made solutions, which have the potential to bring important innovations to the international legal framework for the governance of natural resources. In this way, peace settlement practice also shapes international law. This article assessed relevant examples of this interplay with respect to water governance. It showed the relevance of international human rights law, international freshwater law and international environmental law in a broader sense for the implementation of the agreements. It furthermore revealed how peace agreements can reinterpret, confirm and build upon relevant norms of international law.
This article constitutes only a first attempt to clarify the processes of interplay between natural resource arrangements in peace agreements and the international legal order. The conclusions reached are tentative and a more in-depth study needs to be conducted to fully understand these processes. However, it is evident that their implications for the implementation of natural resource arrangements and the international legal framework for the governance of natural resources are potentially significant.