Publications of Hamilton, M.
Gender and the Rule of Law in Transitional Societies
This article examines a unique relationship—specifically, the connection between the rule of law, as it is imported and experienced in post-conflict/post-repression societies, and gender. We assert that some of the most gendered and problematic dimensions of rule of law discourse and practice can arise with intensity in post-conflict or post-repressive societies. In particular, we explore a fundamental contradiction. Transitional societies bring powerful and transformative moments to global attention.
Protecting Peaceful Protest: The OSCE/ODIHR and Freedom of Peaceful Assembly
This article reviews ongoing work to increase awareness of, and raise standards in relation to, freedom of peaceful assembly across Europe, the South Caucasus, and Central Asia. The work is led by the Office of Democratic Institutions and Human Rights (ODIHR) at the Organisation of Security and Co-operation in Europe (OCSE). The article begins by highlighting the importance of freedom of peaceful assembly within democratic societies, and then describes the development of the ODIHR Guidelines on Peaceful Assembly. The article outlines some of the key issues of contention relating to the regulation of freedom of assembly, and discusses the process of reviewing the existing and draft legislation against the standards articulated in the Guidelines. In this context, the article also explores the potential for constructive engagement between government, civil society, and the OSCE to facilitate legislative amendments that respect key human rights norms and principles. Finally, the article reviews recent developments in training monitors of public assemblies with the aim of building local monitoring capacity and thus developing an evidence base of the practical implementation of laws relating to freedom of peaceful assembly.
Operationalising the Law on Freedom of Assembly in Azerbaijan
These Guidelines are primarily based on the OSCE/ODIHR Guidelines on Freedom of Peaceful Assembly (March 2007) which have since been endorsed by the Venice Commission (June 2008). However, they also draw upon recent case law of the European Court of Human Rights in relation to cases under both Article 11 and Article 10 of the European Convention on Human Rights; on examples of good pactice in relation to the regulation and policing of assemblies in a variety of countries; and on a number of reports that have been published in response to outbreaks of violence inrelation to public assemblies.
Freedom of Assembly, Consequential Harms and the Rule of Law: Liberty-limiting Principles in the Context of Transition
The consequences of restricting or not restricting the right to freedom of assembly are potentially magnified in transitional societies. Yet determining whether such consequences are indeed harmful', and whether their cost should be borne despite the harms caused, requires the elaboration of criteria which define what are valid and relevant harms. While a human rights framework can perform this task, open-textured rights standards prescribe neither the threshold of legal intervention nor the goals of transition. By extension, the rule of law--underpinned by this rights discourse--is silent about whether liberal or communitarian ideals should inform the reconstruction of public space in conflicted or nascent democracies. Illustrated by analysis of legal interventions in parade disputes in Northern Ireland, this article argues that the rule of law is necessarily orientated by ethical consensus about its scope. Furthermore, this consensus operates as a restraint upon the degree of normative discontinuity permitted during transitional compromises. The article frames the ethical options in terms of three liberty-limiting principles--the argument from democracy, the argument for toleration, and the argument for recognition. Each suggests different parameters for the transitional project and for the role of law within it.
Deepening Democracy – Dispute System Design and the Mediation of Contested Parades in Northern Ireland
The design of democratic institutions is a critical factor in determining their capacity to forestall, or limit the escalation of, identity-based conflict. In particular, the incorporation of dispute resolution mechanisms in institutional structures can create new spaces that facilitate dialogue and, potentially, greater recognition between disputants. Institutions, though, do more than merely provide alternative or new fora for dialogue: they can also serve to frame the terms of such interaction and, in so doing, funnel and re-articulate conceptions of justice and the public interest. Furthermore, they can enable the "bottom-up" negotiation of "satisfiers"-those measures capable of meeting or accommodating the multiple interests at stake. In this way, institutional design can bear directly upon the quality of democratic dialogue, serving either to expand or diminish the reserves of political opportunity. We argue that focusing greater attention on the design of dispute resolution mechanisms can help counteract the polarizing tendencies of elite mobilization.