Legal Void Research Articles

Birthing matters in Portugal: introduction

In this introduction to the collection “Birthing matters in Portugal,” the contributions of anthropology to the understanding of childbirth as social practice are outlined. Portugal is a country with one of the highest rates of medical intervention in childbirth in Europe, and widespread and diverse opposition to current medicalised approaches to birthing care in Portugal are becoming increasingly visible, yet the “alternative” practice of homebirth exists in a legal void. The introduction provides a summary of the historical emergence of the current situation, which has scarcely been explored to date by social science scholars. This colelction of articles is an attempt to bridge the present gap in knowledge by showcasing new anthropological research from Portugal on pregnancy and childbirth, offering analyses of birth which go beyond generalising descriptions of the oppositional discourses of specific social actors (e. g. doctors, midwives, homebirthers), and instead analyse the various reflections, collaborations, contestations and contradictions, in particular situations and settings. The experiences of women are foregrounded. The contribution of each of the four papers in the collection is described.

KEDUDUKAN ANCAMAN PIDANA MINIMAL DALAM UNDANG- UNDANG NOMOR 35 TAHUN 2009 TENTANG NARKOTIKA PASCA DIKELUARKANNYA SURAT EDARAN MAHKAMAH AGUNG NOMOR 3 TAHUN 2015

The problem of narcotics abuse and illicit trafficking in Indonesia shows an increasing trend, already very alarming and endangering the lives of people, society and nations. It is necessary to prevent and eradicate the abuse and illicit trafficking of narcotics in Indonesia, which includes a comprehensive multi-dimensional synergistic effort, to achieve maximum results. This effort is carried out gradually, consistently and continuously until it reaches the condition of Indonesia which is free from abuse and illicit narcotics trafficking even though still found a challenge and many obstacles related law enforcement Indonesia. Some cases illustrate the difficulty of law enforcers / practitioner looking for ways to make laws appear in line with community norms. This is addressed by the Supreme Court as a judicial body by issuing legal products in the form of Circular Letter of the Supreme Court (SEMA) Number 3 - Year 2015, with the aim of filling a legal void. However, this step leads to confusion and legal uncertainty because the contents of the SEMA are contrary to Law No. 35 of 2009 about Narcotics.

Seeking Customary International Human Rights Law in the Cyberspace: A Critique of the Tallinn Manual 2.0

The recent Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations is a comprehensive study on the legality of states’ cyber activities under the extant international law. This paper focuses on Chapter 6 of the Tallinn Manual which deals with the legality of states’ cyber activities under international human rights law, and specifically examines the methodology used therein in identifying the customary law basis of states’ human rights obligations applicable to the cyber context. By grounding the methodological issue in the Tallinn Manual in the decades-old scholarly debates about methodologies of customary international law and customary international human rights law (CIHRL), I suggest that the difficulties that the Tallinn Manual has encountered in ascertaining CIHRL cannot be reductively attributed to the novelty of cyber technologies but should be seen as a manifestation of the inherent uncertainties in the process of law-identification. With a detailed analysis of the highly conservative and inductive approach of Chapter 6 of the Tallinn Manual, I point out a number of inconsistencies and ambiguities therein. I argue that these methodological problems have led to its two premises – the advancement of cyber technologies has posed new problems to which the legal solutions are not readily available, and cyber activities do not exist in a legal void – irreconcilable, and a confusion between description and prescription. I further argue that given the feature of the Tallinn Manual, some non-liquet conclusions regarding the legality of certain cyber activities under CIHRL could have been avoided.

Multidisciplinary units, a key element in the study and prevention of sudden cardiac death caused by inherited cardiac conditions

Cardiac diseases often underlie sudden deaths. Sudden death has a great social and economic impact and generates loads of media attention. When it occurs in young people, it is usually due to genetic causes (inherited heart diseases). This group includes cardiomyopathies, channelopathies, and familial thoracic aortic aneurysm/dissection. Inherited heart conditions are rare diseases in terms of prevalence and little knowledge is still available from most of them, so their management requires specialised and multidisciplinary training. Sudden death usually occurs in the out-of-hospital setting, and there has to be a forensic autopsy. These autopsies should be performed according to the minimum quality standards of the European guidelines. The clear genetic background justifies the need for a family screening to enable early diagnosis and also to rule it out in other family members at risk using a multidisciplinary approach offering personalised medicine to the affected families. In addition to medical issues, this scheme enables the provision of early psychological support and genetic counselling to plan new gestations. In Spain there is a great legal void in the approach to sudden death and its prevention, with a lack of homogenisation among the different counties, both at the judicial and healthcare levels due to the variable recognition of acquired skills and to the differences in the judicial and territorial forensic organisation throughout the country. It would be desirable that the consultative panels of both Ministries (Health and Justice) developed a comprehensive plan to ensure the quality in post-mortem studies and a proper subsequent clinical and genetic family study in public health services. Thus, the clinical-preventive potential of the autopsies would take shape and become a clear benefit for the affected families and for the society in general. This measure would also favour the teaching and the research of inherited cardiac diseases, which is of paramount importance to improve the current knowledge in this field, so unknown and so devastating.

Filling the legal void? Impacts of a community-based legal aid program on women’s land-related knowledge, attitudes, and practices

Securing women’s property rights improves overall welfare. While governments in Africa often make provisions for gender-equal legal rights, the dichotomy between de jure and customary practices remains. Community-based legal aid (CBLA) has been promoted to address this chasm through provision of free legal aid and education. We evaluate a one-year CBLA program in Tanzania using a randomized controlled trial. Results show women in treatment communities had higher exposure to legal services and increased their legal knowledge. Women who had access to a trained voluntary paralegal experienced a 0.31 standard deviation increase in a legal service index, and a 0.20 standard deviation increase in an index documenting their knowledge of land-related regulations. These changes were, however, insufficient to shift women’s attitudes or result in more favorable gendered land practices. Estimates by village size and progressiveness reveal that transaction costs and social context influence program success.

A participatory approach to elucidate the consequences of land invasions on REDD+ initiatives: A case study with Indigenous communities in Panama.

Land tenure and tenure security are among the most important factors determining the viability and success of Reducing Emissions from Deforestation and Forest Degradation (REDD+) initiatives. The premise of the present paper is that territorial conflicts lead to forest loss and compromise the successful implementation of REDD+. Within this context, the main objectives of this paper are to (i) document, relying on participatory methods, the extent to which land conflicts drive deforestation and (ii) reflect on the legal context of REDD+ examining if, from an Indigenous perspective, it offers tools to resolve such conflicts. We used the Upper Bayano Watershed in eastern Panama as a case study of complex land tenure dynamics, and their effects on forest conservation in the context of REDD+. Combining a range of participatory methods including participatory mapping and forest carbon stock assessment, we estimated the consequences of land invasions on forest carbon stocks. Our analysis shows that invasions of Indigenous territories amounted to 27.6% of the total deforestation for the period of 2001–2014. The situation is of paramount concern in the Embera territory of Majé where 95.4% of total deforestation was caused by colonist invaders. Using and validating the maps made freely available by the Global Forest Change initiative of the University of Maryland, we then developed a reference level for the watershed and carried out a back of the envelop estimation of likely REDD+ revenue, showing its potential to bring much needed income to Indigenous communities striving to protect their forest estate. Our analysis of current legislation in Panama highlights confusion and important legal voids and emphasizes the strong links between land tenure, carbon ownership, and territorial invasions. The options and shortcoming of implementing REDD+ in Indigenous territories is discussed in the conclusion taking our legal review into account.

Unidades multidisciplinares en el estudio y prevención de la muerte súbita por cardiopatías familiares

Cardiac diseases often underlie sudden deaths. Sudden death has a great social and economic impact and generates loads of media attention. When it occurs in young people, it is usually due to genetic causes (inherited heart diseases). This group includes cardiomyopathies, channelopathies, and familial thoracic aortic aneurysm/dissection. Inherited heart conditions are rare diseases in terms of prevalence and little knowledge is still available from most of them, so their management requires specialised and multidisciplinary training. Sudden death usually occurs in the out-of-hospital setting, and there has to be a forensic autopsy. These autopsies should be performed according to the minimum quality standards of the European guidelines. The clear genetic background justifies the need for a family screening to enable early diagnosis and also to rule it out in other family members at risk using a multidisciplinary approach offering personalised medicine to the affected families. In addition to medical issues, this scheme enables the provision of early psychological support and genetic counseling to plan new gestations. In Spain there is a great legal void in the approach to sudden death and its prevention, with a lack of homogenisation among the different counties, both at the judicial and healthcare levels due to the variable recognition of acquired skills and to the differences in the judicial and territorial forensic organisation throughout the country. It would be desirable that the consultative panels of both Ministries (Health and Justice) developed a comprehensive plan to ensure the quality in post-mortem studies and a proper subsequent clinical and genetic family study in public health services. Thus, the clinical-preventive potential of the autopsies would take shape and become a clear benefit for the affected families and for the society in general. This measure would also favour the teaching and the research of inherited cardiac diseases, which is of paramount importance to improve the current knowledge in this field, so unknown and so devastating.

Click, print, fire: 3D printing and the Arms Trade Treaty

On 3 June 2013, countries united to sign the Arms Trade Treaty (ATT) in an effort to combat illegal arms transfers and regulate legal arms transfers between countries. The ATT provides an unprecedented regulatory framework that encompasses previously unregulated military materiel such as combat aircraft and battle tanks. However, exactly one month earlier, a new threat emerged when shots were fired from the world’s first entirely 3D-printed plastic polymer firearm—the Liberator. On 12 May, two Daily Mail journalists printed a copy of the Liberator and smuggled it past airport-style security. Despite this threat, 3D-printed firearms are not mentioned in either the treaty negotiations or the final treaty text. This article analyses whether the legal architecture provided by the ATT can address the three main challenges posed by 3D printing: firearms, components and digital design files. This article reviews the ATT through the lens of international disarmament law and international institutional law, analysing commentary from superior international courts and eminent legal scholars. Ultimately, this article posits that while the ATT adequately addresses 3D-printed firearms, it creates a legal void in the space of 3D-printed components and digital design files, meaning that weapons can still be transferred by sending them component by component or by sharing the original design file online. A solution is possible within the current parameters of international law, but this will depend on states’ willingness to give proactive legal powers to the ATT’s primary organ—the Conference of States Parties.

PERLINDUNGAN HUKUM TERHADAP PENGETAHUAN OBAT-OBATAN TRADISIONAL DALAM REZIM HAK KEKAYAAN INTELEKTUAL (HKI) INDONESIA (Studi Pada Masyarakat Tradisional Sasak)

In the modern context, the Traditional Medicine Knowledge (TMK) of Sasak community is a valuable economic asset considering its usage as a basic knowledge (milestone) in the modern medicine discovery. As a form of human intellectual ability, TMK is regulated under the IPRs-TRIPs regime, whereas TMK have prominent opposite characters with IPRs. This fact raises particular issues in terms of: the form of Sasak community’s TMK, regulation of its protection under the IPRs regime and the ideal legal institution to realize the protection. The majority of Sasak’s TMK are transmitted verbally, a fraction of it was written in babon (book of) tetamba/oat and lontar Usada. The IPRs-TRIPs regime only provides indirect regulation toward TMK, as contained in Patent and Plant Variety Protection Law. Ideally, there should be a local Law that particularly regulates protection on Sasak’s TMK in order to prevent misappropriation. Thus, there is a void of Law since there is no Sui Generis Law on the protection of TMK.Keywords: legal protection, traditional medicine knowledge, legal void

JURIDICAL IMPLICATIONS OF THE LEGAL NORM VOID OF INTERFAITH MARRIAGES IN INDONESIA

Legal void of interfaith marriages in Indonesia to date has not offered legal certainty and sense of fairness to couples of differing religions. Particularly, their rights to form a family and to freedom of religion are unprotected; whereas those rights are guaranteed by the 1945 Constitution of the Republic of Indonesia. Furthermore, the Constitutional Court’s ruling had rejected Judicial Review on Article 2 section 1 of Law No. 1 of 1974 against the 1945 Constitution of the Republic of Indonesia. The consideration provided by the Bogor District Court regarding the rejection was that the judge’s interpretation of article 2 section 1, yielded the assertion that marrying couples should have been of the same faith. The judge also took into consideration the religious values embraced by the prospective applicant who happened to be a Catholic widow while the prospective groom was a Muslim. A similar consideration was made by the Constitutional Court where in, among others, it was stated that the constitutional rights of marriage entailed the obligation to respect the constitutional rights of other people. Therefore, to avoid any conflicts in the implementation of those constitutional rights, it is necessary to have a regulation on the implementation of constitutional rights conducted by the state. Consequently, the juridical implications of interfaith marriage legal norm void give rise to the judges’ differing interpretations which are unfavorable to interfaith couples. The validity of these marriages cannot be accomplished, resulting in the marriages to be deemed invalid, implicating the status and position of women and children as well as heritance issues.

Trajectories of illegality and informality in conflict protraction: the Abkhaz-Georgian case

ABSTRACTThis article explores how the protraction of conflict shapes the management of economic activities and, more specifically, the illegality/informality divide. Its main argument is that, in contexts of conflict protraction, informal activities are managed and criminalized by a range of actors in function of their capacity and their strategies to project their authority and sovereignty. It identifies an “informality/illegality divide” that runs largely parallel to the gap between de jure and de facto regulation of activities in areas affected by conflict protraction. This relationship between regulation and conflict protraction is then triangulated with the issues of disputed sovereignty and legal voids. These topics are explored against the backdrop of the Abkhaz-Georgian protracted conflict, analysing Georgian and Abkhaz (de facto) authorities’ stakes in processes of informality, illegality, regulation, and criminalization of a variety of economic activities.

Public‐Private Arbitration and the Public Interest under English Law

Together with the increase in the number of public‐private contracts, recent years have seen a marked proliferation in public‐private arbitrations. This article explores the public interest implications which may arise in such arbitrations and examines how public‐private arbitration is treated under English law. We argue that, due to the lack of a developed administrative law sphere in England and the historical development of arbitration as an exclusively private mode of dispute resolution, the current legal framework of arbitration in England has developed around the private law paradigm of a commercial dispute involving private actors. This private law paradigm results in a conceptual and legal void in respect of how public interest is accounted for, and protected, in arbitrations involving public bodies under English law. Therefore, we suggest that English arbitration law needs to be amended to adequately protect the private interest in public‐private arbitration.

Permission to Torture

9/11 introduced a new phase in us foreign policy launching the war on terror. Integral to this new us global counterinsurgency was the use of torture as technique deployed to save us lives threatened by international terrorism. President George Bush’s declaration in 2001, ‘Either you are with us, or you are with the terrorists’ expresses the logic of counterinsurgency strategy to divide the world into friends and enemies. The division of the world into friends and enemies is based on asymmetrical counterconcepts based on the negation of the ‘Other’. This article argues that the legitimation of torture in the Cold War and Post 9/11 eras arises from imperial/global politics based on a counterinsurgency, terror and torture nexus. Through an analysis of the role of torture in Cold War us counterinsurgency policy in Latin America it argues that torture was a technique of governance to produce victims and forge new political subjectivities. In the Latin American dictatorships abduction, detention and secrecy created legal voids that allowed torture. Post 9/11 global counterinsurgency practices are differentiated between geographical zones identified as the zone of integration and zone of intervention. It is in the zone of intervention that torture has been deployed as a technique in which the distinction between civilian and terrorist has become blurred. It argues that Obama’s failure to close Guantánamo Bay prison as promised reveals that global counterinsurgency continues and that the issue of the us military or intelligence resort to torture remains live despite legal and political attempts to stop it.

A void and a challenge: Rules of engagement at sea in a low-intensity conflict environment

ABSTRACTThe armed forces are usually conversant with the rules on the use of force against the enemy in the traditional battle space. However, military forces are usually ill-equipped for this when the opponent is not a regular combatant but an un-uniformed person – a militant or even a criminal – operating in seemingly benign environs. This constitutes a serious legal void, particularly given the emerging environment wherein navies would be increasingly tasked to perform non-traditional constabulary functions. The trend is best exemplified by the case of the Indian Navy that was entrusted with the responsibility for the nation's overall maritime security, including coastal and offshore security. This paper examines the concept and the salient issues relating to rules of engagement (RoE) for maritime forces operating in the low-intensity conflict environment.

The Effects of Formal Legal Pluralism on Indigenous Authorities in the Ecuadorian Highlands

This article analyzes the different ways that formal legal pluralism is perceived and utilized in Ecuador, where a legal void has resulted from a combination of the constitutional recognition of customary law in 1998 and the subsequent failure to develop coordinating rules that would define the relationship between customary law and national law. Adopting a legal anthropological perspective on the cabildo (village council), this article describes variations in the treatment of different types of internal conflict, depending on both the seriousness of the case and the parties involved. I argue that constitutional recognition of legal pluralism can work either in favor of or against the legal and political empowerment of indigenous local authorities. While it has encouraged local authorities to extend their jurisdiction, formalized legal pluralism has also led to national political tensions over the exact interpretation of relevant articles in the constitution and attempts to limit indigenous jurisdiction.

Comparison of Arrangements Manually Operated Health Records California and the Republic of Slovenia

<p><em>Theoretical<strong> </strong>background</em><em>:</em><em> </em><em>h</em><em>ealth documentation has since its beginnings in ancient Egypt, that 3000 years BC, a very varied. Even the ancient Greeks were writing the symptoms and treatments. After the year 1750 were in European hospitals to develop a systematic and objective records of diseases. The expansion of science is meant better value accurate medical records that are already in the sixteenth century as a result of the book cases, called Casebook, following the example of the legal profession. Methods</em><em>:</em><em> </em><em>b</em><em>ased on the analysis of foreign and domestic law have devised a comparison of Slovenian legal system for health records and the California legal act and seek deficiencies in domestic legislation in the field of management of health records. Results</em><em>:</em><em> </em><em>c</em><em>omparison of domestic laws and foreign legal act, says the legal void in domestic law and hence disorderly conduct medical documentation. Discussion</em><em>:</em><em> keeping health records throughout history, with the development of science and research is changing. For the exercise of patients’ rights and their security, based on the health resords, managers need accurate guidance.</em><em> </em><em>Conclusion</em><em>:</em><em> </em><em>t</em><em>o realization the patient’s rights and the rights of the operator documentation is very important. Important is also a record and storage of documents, which allows you to search documents</em>.</p>

Towards Corporate Equity in Sovereign Debt Finance

Sovereigns are unique market participants in the global financial system, and sovereign debt markets largely operate in a legal and regulatory void. As a result, sovereign finance is a laboratory for contractual and institutional design, which raises unique challenges and opportunities. This Article adds an important and timely perspective by examining the concept of equity in sovereign debt finance. Governments, unlike corporations, rely almost exclusively on debt to finance their investments and operations. GDP-linked securities, which provide interest payments indexed to the sovereign issuer’s rate of growth, are sovereign debt instruments with certain equity-like characteristics. This Article considers whether innovation towards sovereign equity can help mitigate problems associated with sovereign debt crises. To address this question, we analyze the use of GDP-linked securities in recent sovereign debt restructurings by Argentina and Greece. Drawing on this analysis, we explore more broadly the legal implications of sovereign equity, and conclude that these applications offer opportunities to help manage sovereign finance in the absence of international financial regulation.

Filling the Legal Void? Experimental Evidence from a Community-Based Legal Aid Program for Gender-Equal Land Rights in Tanzania

Gender disparities continue to exist in women’s control, inheritance, and ownership of land in spite of legislation directing improvements in women’s land access. Women are often excluded from traditional patrilineal inheritance systems, often lack the legal know-how or enforcement mechanisms to ensure their property rights are maintained, and often lack initial capital or asset bases to purchase land through market mechanisms. Community-based legal aid programs have been promoted as one way to expand access to justice for marginalized populations, through provision of free legal aid and education. Despite promising programmatic experiences, few rigorous evaluations have studied their impacts in developing countries. We evaluate the effect of a one-year community-based legal aid program in the Kagera Region of northwestern Tanzania using a randomized controlled trial design with specific attention to gender. We measure impacts of access to legal aid on a range of land-related knowledge, attitude, and practice outcomes using individual questionnaires administered to male and female household members separately. Effects were limited in the short term to settings with minimal transaction costs to the paralegal. Treatment women in smaller villages attend legal seminars and are more knowledgeable and positive regarding their legal access to land. Cost-effectiveness analysis shows that the costs of bringing about these changes are moderate. The difference between the impact of the intervention on men and on women is narrowed when taking into account the gender-differentiated paralegal effort, and thus costs, allocated to women and men.

La reforma constitucional de 2012 y 2014 en materia de sustitución del presidente de la república es inconsistente

El Poder Constituyente Permanente de México aprobó en 2012 varias alteraciones al sistema de sustitución por faltas temporales y absolutas del Ejecutivo de la Unión, introduciendo preceptos nuevos que vienen a llenar vacíos legales constitucionales que tuvimos desde 1917, como el caso de que el secretario de Gobernación se convierta en presidente provisional hasta por sesenta días en caso de faltas temporales o absolutas del presidente en turno; o que si el presidente electo no se presentara de manera definitiva a protestar el cargo se erija como encargado del Ejecutivo federal al presidente del Senado de la República y, finalmente, que si el presidente electo no pudiera rendir protesta ante el Congreso General lo pueda hacer ante las mesas directivas de cada una de las cámaras, juntas, o en su defecto ante el presidente de la Suprema Corte de Justicia de la Nación.Todo eso está bien, pero en su afán reformador —al igual que en las reformas más recientes del 2 de febrero de 2014—, no dejaron claros varios puntos importantes que definitivamente no contestan a la letra varias interrogantes que dejan vulnerable a la ingeniería constitucional mexicana.

A Brief Assessment of the 25-Year Effect of the Convention on the Rights of the Child

Designed to protect the best interests of children, the primary instrument known for securing human rights for children internationally is the Convention on the Rights of the Child (CRC), established in 1989. Upon this document, it seemed, rested the hope of children around the world for their provision, protection and participation. The Convention has enjoyed a significant role globally and across particular continental regions, becoming the gold standard for the treatment of children in nations where there was previously a legal void for their protection. It has advanced new research to benefit children, fostering a great deal of good will among professionals working with children toward these objectives, and it has provided for a strong foundation of scholarly dialogue on the participation of children in their individual lives and affairs. With early notice of practical problems with the Convention, however, the lack of scholarly debate about the actual merits of the CRC has been troubling, with little discussion of whether the Convention has actually worked to protect children. But, has the CRC improved the day-to-day lives of children? Has it worked to protect them from basic harms perpetrated against them by adults, such as forced combat, or genital mutilation, or sexual prostitution? Has the CRC been a triumph for children or a victory for international convention law? These questions are challenging to answer. What evidence that does exist regarding children in signatory nations reveals that the CRC has not achieved the desired objective set out 25 years ago – to improve the lives of children around the world. Rather, child victims are increasing. This report first provides a small window of insight regarding the continuation and growth of atrocities experienced by children in numbers large enough to demand attention: child sex trafficking, child slavery, child soldiering, child marriage, and female genital mutilation (FGM). These areas formed the basic core of atrocities which I focused on in a previous publication, yet here at the 25th Anniversary of the CRC current facts and circumstances require now adding child sacrifice to that parade of horribles that march against children regularly within signatory nations. In discussing these issues, the second part of this report challenges not only whether the CRC has been a success for children, but why it has not protected them from such heinous atrocities. The third part of this report discusses what, if anything, can legitimately be done to improve the lives of children in signatory nations away from these atrocities by offering an interdisciplinary approach of legal, governmental, and social professionals toward more than simply CRC implementation, but actual child protection. Creating these connections can work to provide protection to children suffering under such conditions, with the goal of improving the protection of children in their everyday lives.