Legal Institutions and Collective Memories

In recent decades the debate among scholars, lawyers, politicians and others about how societies deal with their past has been constant and intensive. 'Legal Institutions and Collective Memories' situates the processes of transitional justice at the intersection between legal procedures and the production of collective and shared meanings of the past. Building upon the work of Maurice Halbwachs, this collection of essays emphasises the extended role and active involvement of contemporary law and legal institutions in public discourse about the past, and explores their impact on the shape that collective memories take in the course of time. The authors uncover a complex pattern of searching for truth, negotiating the past and cultivating the art of forgetting. Their contributions explore the ambiguous and intricate links between the production of justice, truth and memory. The essays cover a broad range of legal institutions, countries and topics. These include transitional trials as 'monumental spectacles' as well as constitutional courts, and the restitution of property rights in Central and Eastern Europe and Australia. The authors explore the biographies of victims and how their voices were repressed, as in the case of Korean Comfort Women. They explore the role of law and legal institutions in linking individual and collective memories in the transitional period through processes of lustration, and they analyse divided memories about the past and their impact on future reconciliation in South Africa. The collection offers a genuinely comparative approach, allied to cutting-edge theory.

Exercise in obese pregnant women: The role of social factors, lifestyle and pregnancy symptoms

Background Physical activity may reduce the risk of adverse maternal outcomes, yet there are very few studies that have examined the correlates of exercise amongst obese women during pregnancy. We examined which relevant sociodemographic, obstetric, and health behaviour variables and pregnancy symptoms were associated with exercise in a small sample of obese pregnant women. Methods This was a secondary analysis using data from an exercise intervention for the prevention of gestational diabetes in obese pregnant women. Using the Pregnancy Physical Activity Questionnaire (PPAQ), 50 obese pregnant women were classified as "Exercisers" if they achieved ≥900 kcal/wk of exercise and "Non-Exercisers" if they did not meet this criterion. Analyses examined which relevant variables were associated with exercise status at 12, 20, 28 and 36 weeks gestation. Results Obese pregnant women with a history of miscarriage; who had children living at home; who had a lower pre-pregnancy weight; reported no nausea and vomiting; and who had no lower back pain, were those women who were most likely to have exercised in early pregnancy. Exercise in late pregnancy was most common among tertiary educated women. Conclusions Offering greater support to women from disadvantaged backgrounds and closely monitoring women who report persistent nausea and vomiting or lower back pain in early pregnancy may be important. The findings may be particularly useful for other interventions aimed at reducing or controlling weight gain in obese pregnant women.

Miscarriage, preterm delivery, and stillbirth: Large variations in rates within a cohort of Australian women

Objectives We aimed to use simple clinical questions to group women and provide their specific rates of miscarriage, preterm delivery, and stillbirth for reference. Further, our purpose was to describe who has experienced particularly low or high rates of each event. Methods Data were collected as part of the Australian Longitudinal Study on Women's Health, a national prospective cohort. Reproductive histories were obtained from 5806 women aged 31–36 years in 2009, who had self-reported an outcome for one or more pregnancy. Age at first birth, number of live births, smoking status, fertility problems, use of in vitro fertilisation (IVF), education and physical activity were the variables that best separated women into groups for calculating the rates of miscarriage, preterm delivery, and stillbirth. Results Women reported 10,247 live births, 2544 miscarriages, 1113 preterm deliveries, and 113 stillbirths. Miscarriage was correlated with stillbirth (r = 0.09, P<0.001). The calculable rate of miscarriage ranged from 11.3 to 86.5 miscarriages per 100 live births. Women who had high rates of miscarriage typically had fewer live births, were more likely to smoke and were more likely to have tried unsuccessfully to conceive for ≥12 months. The highest proportion of live preterm delivery (32.2%) occurred in women who had one live birth, had tried unsuccessfully to conceive for ≥12 months, had used IVF, and had 12 years education or equivalent. Women aged 14–19.99 years at their first birth and reported low physical activity had 38.9 stillbirths per 1000 live births, compared to the lowest rate at 5.5 per 1000 live births. Conclusion Different groups of women experience vastly different rates of each adverse pregnancy event. We have used simple questions and established reference data that will stratify women into low- and high-rate groups, which may be useful in counselling those who have experienced miscarriage, preterm delivery, or stillbirth, plus women with fertility intent.

Enabling access to and re-use of publicly funded research data as Open Educational Resources : a strategy for overcoming the legal barriers to data access and re-use

Open Educational Resources (OER) are teaching, learning and research materials that have been released under an open licence that permits online access and re-use by others. The 2012 Paris OER Declaration encourages the open licensing of educational materials produced with public funds. Digital data and data sets produced as a result of scientific and non-scientific research are an increasingly important category of educational materials. This paper discusses the legal challenges presented when publicly funded research data is made available as OER, arising from intellectual property rights, confidentiality and information privacy laws, and the lack of a legal duty to ensure data quality. If these legal challenges are not understood, addressed and effectively managed, they may impede and restrict access to and re-use of research data. This paper identifies some of the legal challenges that need to be addressed and describes 10 proposed best practices which are recommended for adoption to so that publicly funded research data can be made available for access and re-use as OER.

The Authority of Influence : Women and Power in Burmese History

This book explores the relationship between gender and power in Burmese history from pre-colonial times to the present day and aims to identify the sources, nature and limitations of women’s power. The study takes as its starting point the apparent contradiction that, though Burmese women historically enjoyed relatively high social status and economic influence, for the most part they remained conspicuously absent from positions of authority in formal religious, social and political institutions. The book thus examines the concept of ‘family’ in Burmese political culture, and reveals how some women were able to gain political influence through their familial connections with powerful men, even while cultural models of ‘correct’ female behaviour prevented most women from attaining official positions of political authority. The study also considers how various influences – Buddhism, colonialism, nationalism, modernisation and militarism – shaped Burmese concepts of gender and power, with important implications for how women were able to exercise social, economic and political influence. The book explores how the effects of prolonged armed conflict, economic isolation and political oppression have constrained opportunities for women to attain power in contemporary Burma, and examines opportunities opened up by the pro-democracy movement and recent focus on women's issues and rights for women to exercise influence both inside Burma and in exile. Using an interdisciplinary approach that draws on feminist, anthropological and social science discourses, placing them within an historical framework, the author offers a broad understanding of how power is obtained and exercised in Burma in order to reassess historical representations of Burmese women and so provide a more comprehensive and inclusive understanding of power relations in historical and contemporary Burma.

Cross-border insolvency and legal transnationalisation

The last twenty years have seen an explosion of approaches for dealing with an inevitable consequence of globalised markets, that of cross-border insolvencies. This article places phenomena such as the United Nations Commission on International Trade Law (UNCITRAL) Model Law on Cross-border Insolvency and Cross-border Insolvency Agreements (also known as Protocols) within the context of developing laws on international commercial transactions. First it briefly describes the evolution of the international commercial law (sometimes known as the law merchant) to provide a context to understanding the international commercial responses to the problems created by cross-border insolvencies. Next, it outlines the range of approaches being adopted by States and multilateral bodies in recent decades to resolve cross-border insolvency issues. Finally it draws some preliminary conclusions on the potential implication of this transnationalisation process and broader international commercial law perspective, in particular on the capacity of Cross-Border Insolvency Agreements to address cross-border insolvency issues.

Legal, cultural and practical developments in responding to female genital mutilation : can an absolute human right emerge?

Female genital mutilation (FGM) is a cultural practice involving the deliberate, non-therapeutic physical modification of young girls’ genitalia. FGM can take several forms, ranging from smaller incisions, to removal of the clitoris and labia, and narrowing or even closing of the vagina. FGM predates and has no basis in the Koran, or any other religious text. Rather, it is a cultural tradition, particularly common in Islamic societies in regions of Africa, motivated by a patriarchal society’s desire to control female bodies and lives. The primary reason for this desire for control is to ensure virginity at marriage, thereby preserving family honour, within a patriarchal social structure where females’ value as persons is intrinsically connected to, and limited to, their worth as virgin brides. Recent efforts at legal prohibition and practical eradication in a growing number of African nations mark a significant turning point in how societies treat females. This shift in cultural power has been catalysed by a concern for female health, but it has also been motivated by an impulse to promote the human rights of girls and women. Although FGM remains widely practiced and there is much progress yet to be made before its eradication, the rights-based approach which has grown in strength embodies a marked shift in cultural power which reflects progress in women’s and children’s rights in the Western world, but which is now being applied in a different cultural context. This chapter reviews the nature of FGM, its prevalence, and health consequences. It discusses recent legal, cultural and practical developments, especially in African nations. Finally, this chapter raises the possibility that an absolute human right against FGM may emerge.

Breastfeeding beliefs and practices of African women living in Brisbane and Perth, Australia

The purpose of this study was to explore the experience of breastfeeding among refugee women from Liberia, Sierra Leone, Burundi and the Democratic Republic of Congo living in two major capital cities in Australia. Participants were recruited from their relevant community associations and via a snowballing technique. Thirty-one women took part in either individual interviews or facilitated group discussions to explore their experiences of breastfeeding in their home country and in Australia. Thematic analysis revealed four main themes: cultural breastfeeding beliefs and practices; stigma and shame around breastfeeding in public; ambivalence towards breastfeeding and breastfeeding support. Women who originated from these four African countries highlighted a significant desire for breastfeeding and an understanding that it was the best method for feeding their infants. Their breastfeeding practices in Australia were a combination of practices maintained from their countries of origin and those adopted according to Australian cultural norms. They exemplified the complexity of breastfeeding behaviour and the relationship between infant feeding with economic status and the perceived social norms of the host country. The results illustrate the need for policy makers and health professionals to take into consideration the environmental, social and cultural contexts of the women who are purportedly targeted for the promotion of breastfeeding.

In defence of Victoria's Children's Court : its value and role in the child protection system

Australian child protection systems have been subject to sustained and significant criticism for many decades. As a central part of that system Children’s Courts have been implicated: three recent inquiries into the child protection system in Victoria all criticised the Family Division of the Children’s Court.1 In the resulting debate two diametrically opposed points of view surfaced about the Children’s Court and the role that legal procedures and professionals should play in child protection matters. On one side bodies like the Children’s Court of Victoria, Victoria Legal Aid (‘VLA’), the Law Institute of Victoria (‘LIV’), and the Federation of Community Legal Centres (‘FCLC’) argued that the Children’s Court plays a vital role in child protection and should continue to play that role.2 On the other side a coalition of human service and child protection agencies called for major change including the removal of the Children’s Court from the child protection system. Victoria’s Department of Human Services (‘DHS’) has been critical of the Court3 as have community sector organisations like Anglicare, Berry Street, MacKillop Family Services and the Salvation Army — all agencies the DHS funds to deliver child protection services.4 Victoria’s Child Safety Commissioner has also called for major reform, publicly labelling the Court a ‘lawyers’ playground’ and recommending abolishing the Court’s involvement in child protection completely.

The exemplification of governance principles within state asset management laws and policies : the case of Indonesia

Efficient state asset management is crucial for governments as they facilitate the fulfillment of their public functions, which include the provision of essential services and other public administration support. In recent times economies internationally and particularly in South east Asia, have displayed increased recognition of the importance of efficiencies across state asset management law, policies and practice. This has been exemplified by a surge in notable instances of reform in state asset management. A prominent theme in this phenomenon is the consideration of governance principles within the re-conceptualization of state asset management law and related policy, with many countries recognizing variability in the quality of asset governance and opportunities for profit as being critical factors. This issue is very current in Indonesia where a major reform process in this area has been confirmed by the establishment of a new Directorate of State Asset Management. The incumbent Director-General of State Asset Management has confirmed a re-emphasis on adherence to governance principles within applicable state asset management law and policy reform. This paper reviews aspects of the challenge of reviewing and reforming Indonesian practice within state asset management law and policy specifically related to public housing, public buildings, parklands, and vacant land. A critical issue in beginning this review is how Indonesia currently conceptualizes the notion of asset governance and how this meaning is embodied in recent changes in law and policy and importantly in options for future change. This paper discusses the potential complexities uniquely Indonesian characteristics such as decentralisation and regional autonomy regime, political history, and bureaucratic culture.

The legal nature of justice in REDD+

Formation of Reduced Emissions from Deforestation and Degradation (REDD+) policy within the international climate regime has raised a number of discussions about ‘justice’. REDD+ aims to provide an incentive for developing countries to preserve or increase the amount of carbon stored in their forested areas. Governance of REDD+ is multi-layered: at the international level, a guiding framework must be determined; at the national level, strong legal frameworks are a pre-requisite to ensure both public and private investor confidence and at the sub-national level, forest-dependent peoples need to agree to participate as stewards of forest carbon project areas. At the international level the overall objective of REDD+ is yet to be determined, with competing mitigation, biological and justice agendas. Existing international law pertaining to the environment (international environmental principles and law, IEL) and human rights (international human rights law, IHRL) should inform the development of international and national REDD+ policy especially in relation to ensuring the environmental integrity of projects and participation and benefit-sharing rights for forest dependent communities. National laws applicable to REDD+ must accommodate the needs of all stakeholders and articulate boundaries which define their interactions, paying particular attention to ensuring that vulnerable groups are protected. This paper i) examines justice theories and IEL and IHRL to inform our understanding of what ‘justice’ means in the context of REDD+, and ii) applies international law to create a reference tool for policy-makers dealing with the complex sub-debates within this emerging climate policy. We achieve this by: 1) Briefly outlining theories of justice (for example – perspectives offered by anthropogenic and ecocentric approaches, and views from ‘green economics’). 2) Commenting on what ‘climate justice’ means in the context of REDD+. 3) Outlining a selection of IEL and IHRL principles and laws to inform our understanding of ‘justice’ in this policy realm (for example – common but differentiated responsibilities, the precautionary principle, sovereignty and prevention drawn from the principles of IEL, the UNFCCC and CBD as relevant conventions of international environmental law; and UNDRIP and the Declaration on the Right to Development as applicable international human rights instruments) 4) Noting how this informs what ‘justice’ is for different REDD+ stakeholders 5) Considering how current law-making (at both the international and national levels) reflects these principles and rules drawn from international law 6) Presenting how international law can inform policy-making by providing a reference tool of applicable international law and how it could be applied to different issues linked to REDD+. As such, this paper will help scholars and policy-makers to understand how international law can assist us to both conceptualise and embody ‘justice’ within frameworks for REDD+ at both the international and national levels.

The doctrine of command responsibility in the midst of war : legal fallacy or reflection of reality

The history of war is blighted with astonishing reminders of man’s ability to cast his sense of humanity aside and inflict unspeakable harm upon one another. The ruthless bombing of Dresden, the callousness of the Nazi concentration camps and the massacre of the Tutsis are but a few of the atrocities that have haunted our past. In response to these atrocities, society has imposed an ever-increasing number of laws and rules to regulate warfare. Amongst these is the doctrine of command responsibility. The doctrine of command responsibility states that a commander is criminally liable for the crimes of his subordinates if he knew or should have known of their crimes. This paper will examine whether the doctrine is an appropriate and realistic legal standard to hold commanders accountable to or whether the doctrine is more a reflection of social sentiment and legal rhetoric. If the doctrine, and indeed the law of war in general, is unrealistic then the law cannot fulfil its purpose - that is, the prevention of atrocities. Instead of being solely a reflection of moral authority and social sentiments the law must also be a tool that guides and shapes the decisions and actions of the military through the chaotic and brutal nature of war...

Meta-regulation approach of law : a potential legal strategy to develop socially responsible business self-regulation in least developed common law countries

In the corporate regulation landscape, 'meta-regulation' is a comparatively new legal approach. The sketchy role of state promulgated authoritative laws in pluralized society and scepticism in corporate self-regulation's role have resulted in the development of this legal approach. It has opened up possibilities to synthesize corporate governance to add social values in corporate self-regulation. The core of this approach is the fusion of responsive and reflexive legal strategies to combine regulators and regulatees for reaching a particular goal. This paper argues that it is a potential strategy that can be successfully deployed to develop a socially responsible corporate culture for the business enterprises, so that they will be able to acquire social, environmental and ethical values in their self-regulation sustainably. Taking Bangladeshi corporate laws as an instance, this paper also evaluates the scope of incorporating this approach in laws of the least developed common law countries in general.

Prediction of age at menopause from assessment of ovarian reserve may be improved by using body mass index and smoking status

Objective: Menopause is the consequence of exhaustion of the ovarian follicular pool. AMH, an indirect hormonal marker of ovarian reserve, has been recently proposed as a predictor for age at menopause. Since BMI and smoking status are relevant independent factors associated with age at menopause we evaluated whether a model including all three of these variables could improve AMH-based prediction of age at menopause. Methods: In the present cohort study, participants were 375 eumenorrheic women aged 19–44 years and a sample of 2,635 Italian menopausal women. AMH values were obtained from the eumenorrheic women. Results: Regression analysis of the AMH data showed that a quadratic function of age provided a good description of these data plotted on a logarithmic scale, with a distribution of residual deviates that was not normal but showed significant leftskewness. Under the hypothesis that menopause can be predicted by AMH dropping below a critical threshold, a model predicting menopausal age was constructed from the AMH regression model and applied to the data on menopause. With the AMH threshold dependent on the covariates BMI and smoking status, the effects of these covariates were shown to be highly significant. Conclusions: In the present study we confirmed the good level of conformity between the distributions of observed and AMH-predicted ages at menopause, and showed that using BMI and smoking status as additional variables improves AMH-based prediction of age at menopause.