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Updated: 12 min 47 sec ago

Qatar: New Law to Create Permanent Residency System Adopted

3 hours 38 min ago

(Nov. 19, 2018) On September 4, 2018, the amir of Qatar signed Law No. 10 of 2018, creating a new residency system for foreign nationals who are interested in residing permanently in the state of Qatar. (Details of the New Permanent Residency Law, AL-SHARQ (Sept. 4, 2018) (in Arabic).)

Law No. 10 of 2018, known as the “Permanent Residency Act,” consists of 13 provisions. (Law No. 10 of 2018, AL-JARIDAH AL-RASMIYAH [OFFICIAL GAZETTE], vol. 15, 12 Oct. 2018, pp. 3–8, Ministry of Justice website (in Arabic).) Some of the main provisions of the Law are as follows:

  • Article 1 of the Law grants foreign nationals permanent residency under the following conditions:

(1)  The legal residency period inside the State of Qatar for foreign nationals must be 20 years if they were born abroad. However, if they were born in Qatar, the residency period must be 10 years.

(2)  Applicants must have enough income to cover expenditures for themselves and their families.

(3)  Applicants must be persons of good conduct and never have been charged or convicted of a crime against morality.

(4) Applicants must have adequate knowledge of the Arabic language. (Id. art. 1.)

  • Article 3 creates the Committee for Granting Permanent Residency Permits to review permanent residency applications. The Committee must refer its decisions to the Minister of Interior, who is to review the Committee’s decisions and make a final decision concerning each applicant. The Ministry of Interior is to provide approved applicants with an ID called the “Permanent Residency Permit.” (Id. art. 3.)
  • Article 4 limits the total number of permanent residency permits that can be issued to foreign nationals in the country to 100 permits annually. (Id. art. 4.)
  • In accordance with article 6, residency permit holders have the right to access health care and enroll in public schools. (Id. art. 6.)
  • Article 7, paragraph 1 allows children of residency permit holders who have not reached 18 years of age to be enrolled in public schools and have access to health care. Paragraph 2 of article 7 exempts male children who have not finished their bachelor’s degree by the age of 25 and unmarried daughters of permanent residents from the age restriction established in article 7, paragraph one, thereby allowing them access to health care and free education. (Id. art. 7, paras. 1 & 2.)
  • Article 8 gives permanent residency holders the opportunity to invest in the national economic sector by establishing commercial companies. (Id. art. 8.)
  • Article 9 gives permanent residents the right to own property and invest in the real estate sector. (Id. art. 9.)
  • Finally, article 11 authorizes the Minister of Interior to cancel the permanent residency of foreign nationals and withdraw their permanent residency permits at any time on the basis of the national public interest. (Id. art. 11.)

South Korea: Supreme Court Finds Conscientious Objection to Military Service Justifiable

Fri, 16/11/2018 - 14:30

(Nov. 16, 2018) On November 1, 2018, the Supreme Court of South Korea ruled that conscientious objection to military service is “justifiable” under article 88(1) of the Military Service Act. (Sup. Ct., No. 2016 do 10912 (Nov. 1, 2018) (in Korean), Supreme Court website; Military Service Act, Act No. 4685, Dec. 31, 1993, as amended by Act No. 14611, Mar. 21, 2017, Statutes of the Republic of Korea website). The Supreme Court stated that it is not appropriate to penalize people who have refused mandatory military service on conscientious or religious grounds. (Sup. Ct., No. 2016 do 10912.)

History

Conscientious objection has been debated in South Korea for decades, especially in cases involving Jehovah’s Witnesses, and reportedly “[s]ince the 1950s, about 19,000 conscientious objectors have been arrested and served time, mostly 18 months in jail.” (Panel Proposes Conscientious Objectors Work at Fire Stations or Prisons, YONHAP (Oct. 4, 2018).)

The Supreme Court and the Constitutional Court have affirmed the punishment of conscientious objectors until this year. The last time that the Supreme Court issued a decision on the issue was in 2004. (Sup. Ct., No. 2004 Do 2965 (July 15, 2004) (in Korean), Supreme Court website.) The Constitutional Court of Korea also upheld the constitutionality of article 88(1) of the Military Service Act in 2004 and 2011. (Const. Ct., No. 2002 Hun-Ka 1 (Aug 26, 2004); Const. Ct., No. 2008 Hun-Ka 22-7 (consolidated) (Aug 30, 2011). Constitutional Court decisions are searchable on the Constitutional Court website.)

Conscientious objectors interviewed in news reports say they want to serve their country in alternative ways, but the government has not provided such alternatives. Though conscripts can be assigned to alternative services after enlistment, a month of combat training is still mandatory for all. (Min-sik Yoon & Hyun-ju Ock, Is South Korea Thawing to Conscientious Objection?, KOREA HERALD (Dec. 19, 2016).) In 2005, the National Human Rights Council of Korea (NHRCK) recommended that the government introduce alternative service. The Ministry of National Defense had a plan to promote alternative service for conscientious objectors in 2007, but the plan did not move forward. (Press Release, NHRCK, Alternative Civilian Service Has to Be Introduced for Conscientious Objectors (June 30, 2017).)

In 2016 an appeals court for the first time in the country’s history found a conscientious objector not guilty. (Min-kyung Kim, In a First, S. Korean Appeals Court Finds Conscientious Objector Not Guilty, HANKYOREH (Oct. 19, 2016).) The lower trial courts have increasingly handed down not-guilty verdicts for conscientious objectors since the first such ruling in 2016. (Supreme Court Rules Religious Belief Valid Reason for Refusing Mandatory Military Service, YONHAP (Nov. 1, 2018).)

In June 2018, the Constitutional Court again ruled that criminally punishing conscientious objectors to military service is constitutional.  This time, however, the Court ruled that not providing alternatives to conscientious objectors was unconstitutional. The Constitutional Court ordered the government to revise the Military Service Act by the end of 2019 to have those who refuse conscription serve through noncombat duties. (Const. Ct., No. 2011 Hun-Ba 379 (June 28, 2018).)

Future Cases and Alternative Forms of Service

The Supreme Court ruling will affect “227 other similar cases pending at the top court and some 930 conscientious objectors currently on trial in Korea to avoid criminal convictions for disobeying the mandate.” (Supreme Court Rules Religious Belief Valid Reason for Refusing Mandatory Military Service, supra.)

Since the Constitutional Court’s ordered the revision of the military conscription law in 2018, the government has taken steps to comply with the Court’s decision. On October 4, 2018, a government panel proposed that conscientious objectors fulfill their mandatory military service obligation through alternative forms of service, such as work at fire stations or prisons, for a period of 27 months or 36 months. (Panel Proposes Conscientious Objectors Work at Fire Stations or Prisons, supra.) It is likely that the Military Service Act will be revised by the end of 2019 and alternative forms of military service will be implemented in the future.

Australia: Legislation to Implement Comprehensive and Progressive Agreement for Trans-Pacific Partnership Enacted; Agreement Ratified

Thu, 15/11/2018 - 14:30

(Nov. 15, 2018) On October 17 and 18, 2018, the Australian Parliament passed three bills that were required to implement and begin the ratification of the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CP-TPP or TPP-11). (Press Release, Scott Morrison & Simon Birmingham, TPP-11 to Open New Doors for Aussie Farmers and Businesses (Oct. 17, 2018), Minister for Trade, Tourism and Investment website.) The bills received Royal Assent on October 19. Subsequently, on October 31, Australia notified New Zealand, as depository of the CP-TPP, that it had “completed its applicable legal procedures necessary for entry into force of the Agreement,” becoming the sixth country to ratify the CP-TPP. (Australia Ratifies the TPP-11, DEPARTMENT OF FOREIGN AFFAIRS AND TRADE (DFAT) (Oct. 31, 2018); Press Release, Scott Morrison & Simon Birmingham, Australia Ratifies the TPP-11 (Oct. 31, 2018), Minister for Trade, Tourism and Investment website.)

As a result of Australia’s ratification, the Agreement will enter into force on December 30, 2018. The countries that had previously ratified the CP-TPP were Canada, Japan, Mexico, New Zealand, and Singapore. The remaining countries to ratify are Brunei Darussalam, Chile, Malaysia, Peru, and Vietnam. (See Press Release, David Parker, CPTPP Underway – Tariff Cuts for Our Exporters on 30 December (Oct. 31, 2018), Government of New Zealand website.)

The CP-TPP incorporates, by reference, the original Trans-Pacific Partnership Agreement (TPP), with “the exception of a limited set of provisions to be suspended.” (Comprehensive and Progressive Agreement for Trans-Pacific Partnership (TPP-11), DFAT (last visited Nov. 7, 2018). See also TPP-11 Suspensions Explained, DFAT (last visited Nov. 7, 2018).) It was signed on March 8, 2018, by eleven of the twelve original signatories to the TPP, following the withdrawal of the United States from that agreement.

Implementing Legislation

The government introduced two of the bills required to implement the CP-TPP into the Parliament on August 23, 2018, these being the Customs Amendment (Comprehensive and Progressive Agreement for Trans-Pacific Partnership Implementation) Bill 2018 and the Customs Tariff Amendment (Comprehensive and Progressive Agreement for Trans-Pacific Implementation) Bill 2018 (Parliament of Australia website). Additional relevant provisions were covered by a third bill, the Government Procurement (Judicial Review) Bill 2018, which had previously been introduced in May 2018. (Government Procurement (Judicial Review) Bill 2018, Parliament of Australia website; see Juli Tomaras, Government Procurement (Judicial Review) Bill 2018, at 7 (Parliamentary Library, Bills Digest No. 26, 2018–19, Sept. 17, 2018).)

The introduction of the two CP-TPP implementation bills followed the completion, on August 22, 2018, of the Joint Standing Committee on Treaties (JSCOT) report of its inquiry into the Agreement. JSCOT recommended that Australia take binding treaty action to ratify the CP-TPP. (JSCOT, Report 181 – Comprehensive and Progressive Agreement for Trans-Pacific Partnership (Aug. 2018), Parliament of Australia website.)

Anticipated Benefits for Australia

According to the Australian government, “[i]ndependent modelling shows Australia is forecast to see $15.6 billion [about US$11.4 billion] in net annual benefits to national income by 2030 from the TPP-11.” (TPP-11 to Open New Doors for Aussie Farmers and Business, supra.) The Department of Foreign Affairs and Trade states that

[t]he Agreement will eliminate more than 98 percent of tariffs in the free trade area. Highlights include:

  • new reductions in Japan’s tariffs on beef, (Australian exports worth $2.0 billion in 2017);
  • new access for dairy products into Japan, Canada and Mexico, including the elimination of a range of cheese tariffs into Japan covering over $100 million of trade;
  • new sugar access into the Japanese, Canadian and Mexican markets;
  • tariff reductions, and new access for our cereals and grains exporters into Japan, including, for the first time in 20 years, new access for rice products into Japan;
  • elimination of all tariffs on sheepmeat, cotton and wool;
  • elimination of tariffs on seafood, horticulture and wine; and
  • elimination of all tariffs on industrial products (manufactured goods). (TPP-11 Outcomes at a Glance, DFAT (last updated Sept. 2018).)

The Agreement will also “enhance the level of transparency and predictability for Australian services exporters across the board, reducing some regulatory risks these firms confront internationally”; “provide new opportunities for Australian businesses to bid for government procurement services contracts” in the other countries; and include “important elements which will deliver a more liberalised and predictable regime for the regulation of foreign investment, including in key sectors such as mining and resources, telecommunications and financial services.”  (Id.)

Estonia: Government Boosts Defense Spending in 2019 Budget Bill

Wed, 14/11/2018 - 14:30

(Nov. 14, 2018) The government of Estonia approved the 2019 Budget Bill on September 26, 2018. (Press Release, Government of Estonia, Government Approves Budget for 2019 (Sept. 26, 2018), Government of Estonia website (in Russian).) The 2019 Budget Bill envisages total expenditures of 11.31 billion euros (€) (about US$12.8 billion). Owing to a positive economic outlook, the government is not planning to increase the tax burden in its 2019 Budget Bill. (Id.) Under Estonia’s Constitution, the Bill must be approved by Parliament in order to become law. (EESTI VABARIIGI PÕHISEADUS [CONSTITUTION OF THE REPUBLIC OF ESTONIA] art. 115, President of Estonia website.)

Several sectors (Health and Unemployment Funds, Public Transport Subsidies, Investments, and Defense) will see increase in expenditures. Under the 2019 Budget Bill defense expenditures will total €594 million (about US$677 million), which is more than 2.1% of the GDP. The government aims to increase the salaries of military personnel and boost military procurement, with the latter category making up as much as 40% of defense expenditures, according to the 2019 Budget Bill. (Government Approves Budget for 2019, supra.)

Estonia, as a NATO member country, committed itself to increasing its military spending at the 2014 NATO Summit in Bucharest to at least 2% of its GDP. In 2019, Estonia will become one of six NATO member countries to reach the 2% target. The other countries are the United States, Greece, the United Kingdom, Romania, and Poland. (Niall McCarthy, Defense Expenditures of NATO Countries, STATISTA (July 11, 2018).)

The increase in defense spending in the 2019 Budget Bill is also in line with the 2019–2022 State Budget Strategy approved by the government of Estonia on April 27, 2018. (Ministry of Finance, Riigi Eelarvestrateegia 2019–2022 [State Budget Strategy 2019–2022], Apr. 27, 2018, Government of Estonia website (in Estonian); Press Release, Government of Estonia, Government Approved the State Budget Strategy for 2019–2022 (Apr. 27, 2018), Government of Estonia website) (contains summary of State Budget Strategy).)

China: New Regulation on Police Cybersecurity Supervision and Inspection Powers Issued

Tue, 13/11/2018 - 14:30

(Nov. 13, 2018) On September 15, 2018, the Ministry of Public Security (MPS) of the People’s Republic of China (PRC or China) issued a new regulation on cybersecurity supervision and inspections by the police. (Gong’an Jiguan Hulianwang Anquan Jiandu Jiancha Guiding  [Measures of Internet Security Supervision and Inspection by the Public Security Organs] (Sept. 15, 2018, effective Nov. 1, 2018) (Regulation), MPS website; Nectar Gan, Chinese Police Get Power to Inspect Internet Service Providers, South China Morning Post (Oct. 5, 2018).)

The Regulation was released on the MPS website on September 30, 2018, and took effect on Nov. 1, 2018. (Regulation.) It was formulated in accordance with the PRC Law on the People’s Police and the PRC Cybersecurity Law. (Id. art. 1.) The PRC Cybersecurity Law (also translated as the PRC Network Security Law), which was enacted on June 1, 2017, requires network operators in China to provide technical support and assistance to public security organs (the police) and national security organs that are safeguarding national security and investigating criminal activities in accordance with the Law. (Zhonghua Renmin Gongheguo Guojia Anquan Fa [PRC Cybersecurity Law] (adopted by the Standing Committee of the National People’s Congress (NPC) on Nov. 7, 2016, effective June 1, 2017) art. 28, NPC website.)

According to the Regulation, police may inspect internet service providers, including internet information providers, internet cafes, and data centers. (Regulation art. 9; Gan, supra.) It lists the general content the police are to look for, as well as specific content related to different types of internet services. (Regulation arts. 10 & 11.) In addition, it prescribes the performance of special inspections during “periods of major national network protective tasks.” (Id. article 12.)

The Regulation contains specific measures the police may take in the network security inspections, including physically entering the business sites, machine rooms, and offices; requiring managers or network safety personnel to explain items that are under inspection; reviewing and copying relevant information; and checking how technical measures to safeguard network and information security are running. (Regulation art. 14; Gan, supra.)

According to a Chinese lawyer, while the Regulation might add to concerns among foreign internet service businesses in China, there was actually “not much new in the regulation,” since the police in China have long conducted similar cybersecurity inspections in accordance with a provision in the Police Law that says police have the duty to supervise and manage security and protection work on computer information systems. (Gan, supra.; Zhonghua Renmin Gongheguo Renmin Jingcha Fa [PRC People’s Police Law] (adopted by the NPC Standing Committee on Feb. 28, 1995, amended Dec. 26, 2012) art. 6, NPC website.)

Germany: Federal Court of Justice Rules Same-Sex Marriage Does Not Make Wife of Child’s Mother Co-parent by Law

Fri, 09/11/2018 - 17:30

(Nov. 9, 2018) On October 10, 2018, the German Federal Court of Justice (Bundesgerichtshof, BGH), Germany’s supreme court for civil and criminal cases, held that being in a same-sex marriage does not automatically make the wife of the mother of a child co-parent by law. The Court stated that there is no legal presumption for same-sex couples similar to the one for opposite-sex couples that presumes that the husband is the baby’s father. (BGH, Oct. 10, 2018, Docket No. XII ZB 231/18, ECLI:DE:BGH:2018:101018BXIIZB231.18.0, BGH website; BÜRGERLICHES GESETZBUCH [BGB] [CIVIL CODE], Jan. 2, 2002, BUNDESGESETZBLATT [BGBl.] [FEDERAL LAW GAZETTE] I at 42, 2909; corrected in 2003 BGBl. I at 738, as amended, §§ 1592, 1741, German Laws Online website.)

Facts of the Case

The plaintiffs entered into a same-sex registered partnership in May 2014. On October 12, 2017, they converted their partnership into a same-sex marriage after Germany changed the law to allow same-sex marriages. On November 3, 2017, one of the plaintiffs gave birth to a baby that was conceived via artificial insemination with semen from a sperm bank. She was recorded as the mother of the child in the register of births. No other parent was listed. (BGH at 2.)

The second plaintiff applied to the civil registry office to correct the birth entry to reflect that she is the co-mother of the child, as the child was born within marriage. The civil registry office denied her request. The court of first instance ruled in her favor, but the court of appeals reversed that decision upon appeal from the civil registry office. (Id. at 4.)

Ruling

The Federal Court of Justice upheld the decision of the court of appeals to deny the claim of the applicant. It ruled that the register of births was not incorrect, because the applicant was not a co-parent of the child. (Id. at 9.) It stated that, according to German law, the mother of the child is only the woman who gave birth to the child. (Id. at 10; CIVIL CODE § 1591.) German law does not have an  acknowledgement of maternity similar to the acknowledgement of paternity, and the law does not provide for co-motherhood for consensual artificial insemination in a same-sex relationship. (BGH at 10.)

The Court declared that the provision in the Civil Code that contains rules on paternity could not be applied in this case, either directly or by analogy. (Id. at 11; CIVIL CODE § 1592.) The rules on filiation assume that the child has a male and a female parent and do not regulate same-sex parenthood. The Court stated that neither the Act to Allow Persons of the Same Sex to Marry nor the explanatory memorandum for that Act amended section 1592 of the Civil Code or touched upon questions of filiation in general. (BGH at 13.) According to the Court, the provision cannot be applied by analogy, because there is no unintended lacuna. (Id. at 17.) It stated that even though the legislature introduced same-sex marriage to abolish discrimination of same-sex couples, one cannot assume that the legislature forgot to change the rules on filiation. (Id. at 18.) Rules on filiation are regulated separately from the effects of a marriage. (Id. at 19.)

The Federal Court of Justice noted that the German Federal Ministry of Justice and Consumer Protection has a working group that prepared a report on how to reform the rules on filiation, including questions of same-sex parenthood. The report was published several days before the Act to Allow Persons of the Same Sex to Marry was passed. It can therefore be concluded, in the opinion of the Court, that the legislature did not simply forget to address the issue of parenthood in a same-sex marriage. (Id. at 20.) In addition, the recently introduced Draft Act to Adapt the Rules on Filiation to the Act to Allow Persons of the Same Sex to Marry explicitly states that the current paternity presumption has not been extended to the wife of the mother of the child and that there is no possibility for a lesbian couple to acknowledge maternity analogous to the option for men. (Id. at 20; DEUTSCHER BUNDESTAG: DRUCKSACHEN UND PROTOKOLLE 19/2665, at 1.)

The Court added that the situation of two married women was not similar to that of a married different-sex couple in which the wife had given birth to a child. (BGH at 21.) The legal presumption of paternity is based on the idea that it generally reflects the biological reality. This principle is not called into question by the fact that it might not always reflect the true descent. However, this is not true for the woman who is married to the mother of the child. She is—with the rare exception of the non-comparable cases of man-to-woman transsexuals—never identical with the biological father of the child. (Id. at 22.)

The Court held that the fact that the wife did not automatically become co-parent of the child due to her marriage to the mother of the child does not violate the German Basic Law—the country’s Constitution—or the European Convention on Human Rights (ECHR). (Id. at 24; GRUNDGESETZ [GG] [BASIC LAW], May 23, 1949, BGBl. I at 1, as amended, arts. 3, 6, German Laws Online website; Convention for the Protection of Human Rights and Fundamental Freedoms [European Convention on Human Rights] [ECHR], Nov. 4, 1950, 213 U.N.T.S. 221, art. 8, ECtHR website.) In particular, it does not constitute discrimination according to article 3 of the Basic Law. As already pointed out by the Court, the situations are not comparable and the wife cannot be the biological parent of the child. This fact justifies the different treatment of same-sex married couples according to the Court. (Id. at 28.) The Court pointed out that same-sex partners have the option of adopting the child until the law is eventually amended. (Id. at 29.)

The Court ruled that due to the aforementioned reasons, there is also no violation of article 8 of the ECHR, which regulates the right to respect for private and family life, or of the prohibition on discrimination of article 14. There is no factual foundation for a legal presumption that the child descended from the second partner. The Court concluded that the applicants were therefore not in a comparable situation to a married husband and wife in respect of the entries made in the birth certificate at the time of birth. (Id. at 30.)

Russia: Employers Could Face Criminal Prosecution for Hiring and Firing Preretirement-Aged Persons

Fri, 09/11/2018 - 14:30

(Nov. 9, 2018) On September 25, 2018, the State Duma of the Russian Federation (the Russian legislature) in its third and final reading adopted a bill criminalizing groundlessly terminating or refusing to hire persons of preretirement age. The bill is incorporated into the current Criminal Code of the Russian Federation as article 114, “Groundless Denial of Hiring and Firing of Persons of Preretirement Age.” (Federaljnij Zakon Rossijskoj Federatsii N  352-FZ O Vnesenii Izmeneniya v Ugolovnij Kodeks Rossiskoj Federatsii [Federal Law of the Russian Federation No. 352-FZ on Amending the Criminal Code of the Russian Federation], Oct. 3, 2018, official version on ConsultantPlus website; UGOLOVNIJ KODEKS ROSSISJSKOI FEDERATSII [CRIMINAL CODE OF THE RUSSIAN FEDERATION] art. 114, as amended through Oct. 23, 2018, ConsultantPlus website.)

Current legislation defines the preretirement age as five years before the statutory retirement age (60 for women and 65 for men).

Persons convicted of the offense (e.g., the head of an organization) are punishable by fines of up to 200,000 rubles (RUB) (about US$3,000) or a sum equal to their salary or other income for a period of up to 18 months. They may also be required to perform compulsory work for up to 360 hours.

The current legislation is part of a controversial pension reform enacted by the government. (Federaljnij Zakon ot 03.10.2018 No.350-FZ o Vnesenii Izmenenij v Otdeljnie Zakonodateljnie Akti Rossiskoj Federatsii po Voprosam Naznachenia i Viplati Pensiij [Federal Law No. 350 of 10-03-2018 on Amending Selected Legislative Acts of the Russian Federation Concerning Assigning and Paying Pensions], Pravo official legal information website.) The purpose of the act is to provide labor security safeguards for persons of preretirement age and protect employees from age-based discrimination. Additionally, President Putin proposed doubling the amount of unemployment insurance for persons of preretirement age beginning in 2019. (Gosduma Prinjala v Tretjem Chtenii Putinskij Zakonoproekt ob Ugolovnom Presledovanii za Uvoljnenie “Predpensionerov” [State Duma Adopts Putin’s Bill on Criminal Liability for Firing of Persons of Preretirement Age in Third Reading], NEWSRU (Sept. 25, 2018).)

The legislation was met with criticism from the unions and representatives of the business community, who claim that it introduces additional roadblocks and limits their freedoms. However, the government maintains that the legislation will deter employers from discriminating against employees and potential new hires of preretirement age.

Critics are also of the opinion that this legislation could have a discriminatory effect on the hiring and firing of people who are close to the cut-off date for preretirement age. This would allow the employers to technically comply with the requirements of the legislation while still engaging in discrimination.

Qatar: Amir Ratifies Country’s First Asylum Law

Thu, 08/11/2018 - 17:30

(Nov. 8, 2018) On September 4, 2018, the amir of Qatar ratified Law No. 11 of 2018 Regulating Political Asylum. (His Highness Issues Law Regulating Political Asylum, AL-SHARQ (Sept. 4, 2018); Law No. 11 of 2018 Regulating Political Asylum, AL-JARIDAH AL-RASMIYAH [OFFICIAL GAZETTE], vol. 15, 12 Oct. 2018, pp. 9–16, Ministry of Justice’s Al-Meezan legal portal.) This Law is the first in the nation’s history governing political asylum (despite the fact that Qatar is not a state party to the UN’s 1951 refugee convention and its 1967 protocol.) (Status As At: 07-11-2018,Convention Relating to the Status of Refugees, UN Treaty Collection (UNTC); Status as at 07-11-2018, Protocol Relating to the Status of Refugees, UNTC.)

Law No. 11 of 2018 consists of 18 articles, most of which are described below.

  • Article 1 defines “political asylees” as any persons outside their country of nationality or habitual residency if they not citizens who are unable or unwilling to return to that country due to a justified fear of execution or bodily punishment, torture, inhumane or degrading treatment, or persecution on account of their ethnicity, religion, or affiliation with a specific social group, or due to their political beliefs. (Law No. 11 of 2018, art. 1.)
  • Article 3 of the Law prohibits the government of Qatar from providing the following types of individuals with an asylum status:

(1)  Individuals who commit serious nonpolitical crimes outside the state of Qatar

(2)  Individuals who commit war crimes or crimes against humanity

(3)  Individuals who commit crimes or acts against the objectives of the United Nations

(4)  Individuals who are dual citizens (Id. art. 3.)

  • Article 4 establishes a Committee for Political Asylees affiliated with the Ministry of Interior (homeland security). (Id. art. 4.)
  • Article 6 provides that the minister of interior has the legal right to grant a person applying for asylum three months of temporary residency, subject to renewal, until a final decision is made. (Id. art. 6.)
  • Article 7 stipulates that the Committee for Asylum Seekers at the Ministry of Interior is to refer the asylum petition to the minister with its recommendation. The interior minister must decide on an asylum petition within three months of receiving a recommendation from the Committee. However, if the petitioner does not receive a response from the Ministry within one month, this constitutes a rejection of the petition. (Id. art. 7.)
  • Article 8 allows rejected asylum petitioners to appeal to the prime minister within 30 days from the day they were notified of the rejection of the asylum application. The prime minister must respond to the appeal within 30 days. (Id. art. 8.)
  • Article 9 grants asylum seekers the following benefits:

(1) The right to obtain a travel document

(2) The right to employment

(3) The right to be granted monthly cash assistance

(4) Health care

(5) The opportunity to enroll in the public schools and universities of Qatar

(6) Freedom of worship and transportation

(7) The right to bring their spouses and children into Qatar (Id. art. 9.)

  • Article 10 requires refugees and asylum seekers to obtain the approval of the Qatari authorities if they want to move from their place of residence. The authorities also have the right to limit the movement of the asylum seekers. (Id. art. 10.)
  • Article 11 prohibits asylum seekers and recognized refugees from engaging in political activities while residing in Qatar. (Id. art. 11.)
  • Article 12 repeals the asylum status of foreign nationals if they acquire Qatari citizenship. However, the Law does not specify the process of applying for Qatari citizenship. (Id. art. 12(4).)
  • Article 15 prohibits returning refugees or asylum seekers to their countries of origin or to another country in which they will be in danger or subject to persecution. (Id. art. 15.)

Iran: Space Agency Aims to Train Specialists in Space Law

Wed, 07/11/2018 - 14:30

(Nov. 7, 2018) The Iranian Space Agency (ISA) and the University of Tehran’s Institute for Studies in Public Law signed a memorandum of understanding in late-August 2018 providing for the University to train specialists in space law “to increase Iran’s role in international assemblies and secure national interests.” (Iran Expanding Space Law Studies, EGHTESAD ONLINE (Aug. 27, 2018).) ISA chief Morteza Barari stated that it is imperative for Iran to be adequately represented at international space-law gatherings and make its influence felt, as well as “develop infrastructures in the [space-law] sector.” (Id.)

Specifics of the Agreement

The agreement aims to promote interest among students in majors related to international space law, offering scholarships to those who choose to work in this field, and to stimulate scientific research in the sector. Abbasali Kadkhodaei, head of the University of Tehran’s Institute for Studies in Public Law, believes that Iran’s progress in the field has been impeded by a dearth of specialists who can “uphold the country’s national interests” and by US scientific sanctions blocking Iranian students from studying not only nuclear power but space-related disciplines outside Iran. (Id.)

Other Means to Promote Space-Law Expertise

Beyond the agreement, the ISA has held space-law workshops, whose enthusiastic reception by students and specialists has led the University to take initial steps to establish a major in space law. In addition, the Agency has held moot courts with cases involving space law to prepare students for related court cases in the future.

India: Tripura State Hopes to Follow Assam in Establishing National Register of Citizens

Mon, 05/11/2018 - 17:30

(Nov. 5, 2018) The working president of the Congress Party in the Indian state of Tripura, Pradyot Debbarman, filed a petition before India’s Supreme Court on October 24, 2018, requesting that a National Register of Citizens be compiled for his state. Debbarman’s petition is the second one filed on this issue with the Supreme Court, the first being a petition by the regional Tripura People’s Front political party heard by the Court on October 8. (Seema Guha, National Register of Citizens: Foreign Hand, INDIA LEGAL (Oct. 28, 2018).)

Background

Tripura is an impoverished former princely state in Northeast India that, until it joined India in October 1949, was dominated by 19 major, culturally similar tribal groups. (Biswajit Ghosh, Ethnicity and Insurgency in Tripura, 52(2) SOC. BULL. 221, 226 (Sept. 2003), JSTOR website (by subscription).) Even before it joined India, the state received many migrants from Bengal, but relative unity between the tribal and nontribal peoples was maintained. However, since the mid-1960s an anti-Bengali tribal insurgency has evolved aimed at the retribalization of Tripura through, among other things, stemming the influx of migrants and the influence of their Bengali language and culture, and restoring tribal lands that had been illegally transferred to or settled by Bengali refugees. (Id. at 229.) This insurgency has undergone various phases, from tribalism and cultural protest to ethnic violence and terrorism to attempts to unite the tribals as a political force. (Id. at 230, 233, 239–40.)  Ultimately, however, “the unchecked influx of migrants has completely changed the demographic pattern. The original inhabitants of Tripura have long been reduced to a minority by Bengali Hindus from both West Bengal and Bangladesh.” (Guha, supra.) According to scholar Biswajit Ghosh,

[a]lthough these refugees have contributed to the economic development of Tripura in many ways, the marginalization of the tribal peasants and elite has created a psychological trauma of being reduced to a minority in [a] ‘tribal state’. Due to such a demographic imbalance, the density of the population in the state has increased . . . [and t]he numerical domination of the Bengalis in Tripura has gradually translated into their cultural, economic and political domination with a corresponding pressure on the tribes for survival. (Ghosh, supra, at 230.)

National Register of Citizens in Assam

The Tripura People’s Front and Debbarman’s move to establish a National Register of Citizens (NRC) in Tripura parallels developments in Assam—which shares a border with Tripura and is currently the only state in the Indian union to maintain an NRC—to update its citizens’ register. The compilation of Assam’s first NRC in 1951 was driven by Assamese leaders’ fears that Pakistan was planning a demographic change in the state after India’s preindependence Muslim League party failed in its efforts to have Assam included in East Pakistan. (Anupam Bordoloi & Abdul Gani, NRC Update: Assam Grapples with Fear, Confusion and Hope, OUTLOOK INDIA (July 26, 2018).) The purpose of the NRC was to distinguish Indian citizens from undocumented immigrants from East Pakistan, which ultimately became the independent state of Bangladesh on March 25, 1971, during its civil war with West Pakistan. The eligibility cutoff date for Indian citizenship for the NRC update is March 24, 1971, in accordance with the 1985 Assam Accord signed by the Indian government and Assam Movement. (Abdul Gani, Assam: Some Four Million Left Out of Final India NRC Draft List, AL JAZEERA (July 30, 2018).)

During the past year, Assam’s update of the NRC has been called

[a]n exercise massive in scale, controversial in methodology and debatable on potential outcomes . . . [that] has divided Assam on religious and linguistic lines, sparked concerns over human rights and prompted a United Nations body to seek clarifications from the Centre [federal government]. Monitored by the Supreme Court, many consider the NRC as the holy grail of all efforts to resolve an issue that has brutalized Assam and structured its polity for years—starting with a six-year-long agitation against illegal immigration between 1979 and 1985. Assamese people have grown up with primordial fears of their land being grabbed, their jobs taken and their culture and language wiped out by Bangladeshi immigrants. For many people in Assam, this constitutes the core issue in politics. (Bordoloi & Gani, supra.)

The rationale behind the update is that those who are unable to present acceptable documents dated up to March 24, 1971, such as land/tenancy records, passports, government licenses/certificates, and documents showing employment by the federal or territorial governments or the companies owned by them (Public Sector Undertakings, PSUs), will be easily detected as illegal immigrants. (Id.) On November 1, 2018, the Supreme Court extended the deadline for filing claims and objections to the list of legitimate citizens drafted for the update, moving it from November 25 to December 15, and also allowed the use of five previously excluded documents to be used as proof of citizenship: the 1951 NRC, citizenship certificates issued till 1966, ration cards, refugee registrations certificates, and voters lists issued till March 24, 1971. (Assam NRC: SC Extends Deadline for Filing Objection to Dec 15, Allows 5 More Documents for Claim, DNA INDIA (Nov. 1, 2018).)

The actual process of the update, however, is reportedly “a logistical tangle as much as a social nightmare” with widespread allegations of  “procedural flaws and a systematic attempt to leave out Muslims and Bengali-speaking Hindus” that has resulted in the exclusion of four million people (12% of Assam’s population) from the draft NRC and, in numerous instances, seen some members of the same immediate family included on the list while others are excluded, and some people who present the proper documents to prove their citizenship still left off the list. (Id.; Gani, supra; Satya Prakash, Indians Who Moved to Assam from Other States to Be Included in NRC: Centre to SC, TRIBUNE (Aug. 14, 2018).) Reportedly, the Congress Party in Assam is raising its voice in support of the thousands of genuine citizens excluded from the draft NRC and “questioning the process by which citizenship is being determined[,] as the poor and illiterate possess no documentation.” (Guha, supra.) Congress Party leader and former Chief Minister of Assam Tarun Gogoi, during whose tenure the NRC updating process started, himself condemned the practice of using the 2016 voters list only for excluding individuals from the NRC but not for including them in the list. In his words, “[a] large number of Indian citizens have been left out (in the first draft), so there’s apprehension.” (Bordoloi & Gani, supra.)

Those excluded from the list must prove their citizenship before Foreigners Tribunals (FTs), quasi-judicial courts that critics maintain have been filled by the ruling Hindu-nationalist Bharatiya Janata Party government with its anti-Muslim volunteer paramilitary affiliates from the Rashtriya Swayamsevak Sangh (RSS). (Id.) According to one Assamese Muslim villager who is a past supporter of the BJP and whose family of Muslim converts have lived in the same village for five generations, “[t]he FTs sometimes identify as foreigners even those who can prove their citizenship. . . . The village head and witnesses are made to sign documents in English, which they cannot read. The very people who vouch for someone’s citizenship are shown as witnesses against them.” (Id.) However, in spite of the alleged anti-Muslim bias in the NRC process and FT’s decisions, Bengali-speaking Hindus have also been classified as illegal immigrants and sent to one of Assam’s six overcrowded detention camps, which are located in prison compounds. (India Assam: ‘I Won’t Die Before I Prove My Indian Citizenship,’ BBC NEWS (Sept. 3, 2018).)

Even if those tagged as illegal citizens by the FTs lose their appeals, it is unclear as to what will happen to them, as Bangladesh denies the illegal presence of its citizens in India and has no official treaty with India with regard to cross-border illegal immigration, thus making deportations impossible. (Bordoloi & Gani, supra; India Assam, supra.) The federal government is reportedly considering several possible solutions, including classifying the illegals as “stateless” and settling them in other states “in a phased manner, but without the right to vote or buy property”; granting them citizenship after several decades; and issuing “long-term working visas” to them, all of which leaves open the questions of whether those declared to be immigrants could access government healthcare and send their children to public schools, and whether the more outspoken Assamese organizations would accept such solutions. (Bordoloi & Gani, supra.)

Tripura’s Future

Because of the startling demographic changes in Tripura, every regional party there is now demanding that a separate state for the indigenous people be formed from the tribal districts. Pradyot Debbarman evidently does not support this move, believing that “[i]mplementing the NRC in Tripura will immediately dilute the demand for a separate state” and be a means of redressing the loss of indigenous land and rights and countering the threat to the tribals’ culture and very existence. (Guha, supra.) So, Debbarman has filed his Supreme Court petition, challenging the government to “tell us clearly if there are two sets of laws. One for the rest of the country and one for us.” (Id.)

Israel: Legislation Exempting Food Donors from Liability Adopted

Thu, 01/11/2018 - 19:30

(Nov. 1, 2018) On October 22, 2018, the Knesset (Israel’s Parliament) passed the Encouragement of Food Donations Law, 5779-2018 (SEFER HAHUKIM [SH] [BOOK OF LAWS] (official gazette) 5778 No. 2752 p. 10, Ministry of Justice website (in Hebrew; click on issue No. 2752)).

The Law exempts donors to food distribution organizations from civil and criminal liability for any harm caused by food donations except in cases of negligence. (Id. § 2(a).) Organizations that distribute food, as well as their employees and volunteers, are similarly exempt from civil or criminal liability, except in cases involving negligence, for harm caused by the transport, possession, or distribution of food donations. (Id. § 2(b).)

The Law authorizes the Minister of Health (MOH) to grant special recognition awards to food distribution organizations. The awards are to be granted annually in accordance with standards to be determined by the Minister and published in the official gazette and on the MOH website. (Id. § 3.)

Explanatory notes of the Law’s draft bill suggest that the population of those suffering from lack of food security, including children, has increased over the years. Food industry businesses, including restaurants, event establishments, and hotels, refrain from donating leftover food out of concern they may be held responsible for any harm caused by donating food. The Law is intended to encourage such businesses, as well as food distribution organizations, to donate their extra food to persons in need. (Encouragement of Food Donations Draft Bill, 5779-2018, Knesset Hatsaot Hok (Bills) No. 795 p. 220, available on the Knesset website.)

Uruguay: Congress Adopts New Law on Transgender Rights

Wed, 31/10/2018 - 19:40

(Oct. 31, 2018) On October 19, 2018, the Uruguayan Congress adopted the new Comprehensive Law for Transgender Persons, aimed at reversing discrimination and advancing the rights of this population, including the right to work, to housing, and to surgical interventions. (Uruguay Aprueba la Ley Integral para Personas Trans [Uruguay Approves Comprehensive Law for Transgender Persons], AGENCIA EFE (Oct. 19, 2018).)

The bill, which had been pending for a year and a half, was finally approved with broad congressional support and is now ready for final promulgation by the President. (Id.)

The Law eases the process necessary for transgender persons to change their names in the Civil Registry and requires the legislative, executive, and judicial powers; departmental governments; autonomous entities; and other public offices to allocate 1% of their vacant jobs to the group. (Id.)

In addition, the National Institute of Employment and Vocational Training must establish a minimum of 1% of its training programs for transgender people. (Id.)

Regarding health matters, the goal of the Law is to increase the life expectancy of transgender people, which currently stands between 35 and 40 years of age, providing specific services for the transgender population on a nondiscriminatory basis. (Id.)

One of the most controversial provisions of the Law states that children under 18 do not need authorization from their parents to change their names or receive hormonal treatment. (Id.).

According to the Law, those under 18 years of age must submit a registration request to change their names and sex accompanied by their legal representatives, or provide evidence that their legal representatives acknowledge the procedure or render their express consent by either providing evidence of their knowledge of the procedure or giving their express consent thereto. (Id.)

In the case of a minor whose legal representatives do not render their authorization, the minor may seek a judicial authorization if the court considers that granting the petition is in the best interests of the child. (Id.)

Another widely criticized measure of the Law provides that transgender people born before December 31, 1975, who prove to have been victims of institutional violence or deprived of their freedom by security forces during the 1973–85 dictatorship have the right to monetary compensation. (Id.; Pension para Personas Trans: a Cuantos Beneficia y que Monto Supone [Pension for Transgender Persons: How Many Benefit and How Much Is Due] EL OBSERVADOR (Oct. 19, 2018).)

France: Government Adopts Law Banning Cell Phone Use at School

Tue, 30/10/2018 - 13:30

(Oct. 30, 2018) On August 5, 2018, the French government promulgated a law banning “cell phones and other electronic communication devices” from kindergartens, elementary schools, and middle schools. (Loi n° 2018-698 du 3 août 2018 relative à l’encadrement de l’utilisation du téléphone portable dans les établissements d’enseignement scolaire [Law No. 2018-698 of August 3, 2018, Regarding the Use of Cell Phones in Schools] (Loi No. 2018-698) art. 1, Legifrance website.)

Background

Since 2010, the French Code de l’éducation (Education Code) has prohibited the use of cell phones “during class hours.” (Loi n° 2010-788 du 12 juillet 2010 portant engagement national pour l’environnement [Law No. 2010-788 of July 12, 2010, on the Nation’s Commitment Toward the Environment] art. 183, Legifrance website.) The new legislation would now extend the ban to breaks and meal times, thus effectively banning smartphones from schools for students under the age of 15. (Loi No. 2018-698, art. 1.) The Law provides for exceptions for students with disabilities or if cell phones are needed for “extracurricular activities” as defined by the school’s internal regulations. (Id.)

The ban was proposed as a way to “provide students with an environment that fosters attention, concentration and reflection necessary for [educational] activities, comprehension, and memorization.” (Proposition de loi relative à l’interdiction de l’usage du téléphone portable dans les écoles et les collèges [Bill on the Use of Cell Phones in Schools], No. 941, submitted on May 14, 2018, National Assembly website.)

Reactions

Critics from both sides of the political spectrum in France are saying the ban will not accomplish much and presents logistical problems. (La France interdit les cellulaires dans les écoles et collèges [France Prohibits Cell Phones in Elementary and Middle Schools], LE DEVOIR (July 31, 2018).)

France’s approach to this issue has also been regarded as “unusual,” as the decision on whether to ban cell phones is usually left to the specific school in other parts of the world. (Sean Wolfe, France Just Banned Smartphones in Schools During All Hours of the Day, BUSINESS INSIDER (Aug. 1, 2018).) In 2015, New York City lifted a cell phone ban for students as it was found that it was being disproportionately enforced at schools in low-income areas. (Id.)

Prepared by Sarah Ettedgui, Law Library intern, under the supervision of Nicolas Boring, Foreign Law Specialist.

Belgium: Report Reveals Euthanasia Commission Authorized Euthanasia of Three Minors in 2016–17

Mon, 29/10/2018 - 16:30

(Oct. 29, 2018) Belgium has the world’s only law allowing terminally ill minors in “unbearable suffering” to choose to die. (Henry Samuel, Belgium Authorized Euthanasia of a Terminally Ill Nine and 11-Year-Old in Youngest Cases Worldwide, TELEGRAPH (Aug. 7, 2018).) According to a report published on July 17, 2018, by the Commission fédérale de Contrôle et d’Évaluation de l’Euthanasie (Federal Commission for the Control and Evaluation of Euthanasia) (CFCEE), Belgium physicians administered lethal injections to three minors between January 1, 2016, and December 31, 2017. (CFCEE, Huitième rapport aux Chambres législatives années 2016–2017 [Eighth Report to the Legislative Chambers for the Years 2016–2017] (CFCEE 2018 Report) (July 17, 2018).)

Background

In 2014, Belgium amended its law on euthanasia to authorize doctors to terminate the life of a minor “capable of discernment and who is conscious at the time the request is made.” (Loi modifiant la loi du 28 mai 2002 relative à l’euthanasie, en vue d’étendre l’euthanasie aux mineurs [Law Amending the Law of May 28, 2002, Regarding Euthanasia to Extend It to Minors] art. 2 (all translations by author).)

The minors must have the mental capacity to make the decision and receive parental consent. (Id.) Doctors must first verify that a child is “in a hopeless medical situation of constant and unbearable physical suffering that cannot be eased and will cause death in the short term resulting from a serious and incurable accidental or pathological condition.” (Id.)

Once a minor has expressed his or her wish for euthanasia in writing, psychiatrists conduct examinations and tests to determine the level of discernment and ensure that the minor was “not influenced by a third party.” (Id. art. 2(7°).) However, parents can prevent the request from being carried out. (Id.)

CFCEE Report

For a year following the enactment of the law, no euthanasia was carried out in accordance with it. That said, the CFCEE’s report, published on July 17, 2018, noted that three unnamed minors, aged 9, 11, and 17, had been administered lethal injections between January 1, 2016, and December 31, 2017. (CFCEE 2018 Report, supra.) The children were suffering from a brain tumor, cystic fibrosis, and muscular dystrophy, respectively. (Id. at 12.) According to the report, the Commission “approved these three cases unanimously,” and the Commission believes that “extending the scope of the law to include minors capable of discernment makes sense, because its aim is to give minors the freedom to choose when to end their life.” (Id.)

Reactions and Criticism

Belgium’s decision to extend its euthanasia law to cover minors has proved extremely controversial, both nationally and internationally. Those who support the law believe children should not be made to suffer against their will, but opponents say they are too young to make the decision to die. (Samuel, supra.) Luc Proot, a member of the CFCEE, defended the decision to authorize the euthanasia cases, saying, “I saw mental and physical suffering so overwhelming that I thought we did a good thing.” (Id.)

Belgium’s bishops called the law “a step too far,” while a group of 162 Belgian pediatricians wrote: “We are today able to perfectly control physical pain, choking or anxiety at the approach of death.” (Id.)

In addition to the three minors in question, 4,334 adults chose to be euthanized in Belgium between 2016 and 2017, approximately 64% of whom were cancer patients. (CFCEE 2018 Report, supra, at 3.)

Prepared by Sarah Ettedgui, Law Library intern, under the supervision of Nicolas Boring, Foreign Law Specialist.

China: International Commercial Courts and International Commercial Expert Committee Established

Fri, 26/10/2018 - 14:30

(Oct. 26, 2018) On June 25, 2018, China’s highest court, the Supreme People’s Court (SPC), issued a judicial interpretation on the establishment of the China International Commercial Courts (CICCs). (Provisions of the Supreme People’s Court on Several Issues Regarding the Establishment of the International Commercial Court (Fa Shi [2018] No. 11, June 25, 2018, effective July 1, 2018) (Provisions), CICC website.) Taking effect on July 1, 2018, the Provisions prescribe jurisdiction and operation of the newly created international commercial courts.

The CICCs are created as tribunals of the SPC dedicated to handling prominent international commercial cases, particularly those with an amount in dispute of at least 300 million Chinese yuan (about US$43 million) when the parties have chosen the jurisdiction of the SPC in accordance with the Civil Procedure Law. (Id. arts 1 & 2.) CICC judgments are final and binding. (Id. art. 15.)

While the new courts are being created, the SPC is establishing an International Commercial Expert Committee (ICEC). (Id. art. 11.) The ICEC is tasked with providing foreign law texts and expert opinions on foreign laws to the CICCs. (Id. art. 8.) The Committee members may also mediate cases authorized by the CICCs if the litigant parties have agreed to this. (Id. art. 12.) A notable feature of such mediation is that, upon request of the parties, the CICCs may issue judgments in accordance with the mediation agreements. (Id. art. 13.)

Although judges on the CICCs are restricted to current SPC judges, who are all Chinese nationals, the ICEC is composed of experts who may not be judges or Chinese nationals. (SPC, The Decision on the Establishment of the International Commercial Expert Committee of the Supreme People’s Court (Aug. 24, 2018), CICC website.)

On June 29, 2018, the First and Second CICCs officially began operating in Shenzhen, Guangdong Province and in Xi’an, Shaanxi Province, respectively. (Luo Sha, Zhou Ke, Zuigao Renmin Fayuan Diyi, Di’er Guoji Shangshi Fating Zhengshi Kaishi Bangong [SPC First and Second International Commercial Courts Officially Begin Operating], XINHUA (June 29, 2018).)

On August 26, 2018, the ICEC was officially established, and the first group of 32 Chinese and foreign experts were appointed to the Committee. (CICC, Supreme People’s Court Establishes International Commercial Expert Committee, CICC website (Oct. 19, 2018).)

New Zealand: Education Bill Removes National Standards and Charter School Model from Law

Thu, 25/10/2018 - 14:30

(Oct. 25, 2018) On October 18, 2018, the New Zealand Parliament passed the Education Amendment Bill 2018, which makes substantial amendments to the Education Act 1989 and the Education (Update) Amendment Act 2017. (Education Amendment Act 2018, New Zealand Legislation website; Education Amendment Bill 2018, MINISTRY OF EDUCATION (last updated Oct. 19, 2018).) The Bill received royal assent on October 23, 2018. (Education Amendment Bill, NEW ZEALAND PARLIAMENT (last visited Oct. 23, 2018).) Among the key changes are the removal of provisions related to National Standards and the “partnership school model” (i.e., charter school model) from the legislation.

The government’s explanatory note that accompanied the Bill upon its introduction in February 2018 states that

[t]he Education Act 1989 allows the Minister to set national standards for student achievement through a Gazette notice. Schools have been required to report against these to parents and the Secretary for Education. Reporting beyond a focus on literacy and numeracy would include student progress and development of competencies and provide a richer and more accurate picture of a student’s education. Although the relevant Gazette notices have been revoked, the Bill amends the Education Act 1989 so that national standards cannot be reinstated in future. This amendment paves the way for work with experts and stakeholders to develop a new system.

The Bill removes the ability for the Minister and sponsors to contract to establish partnership schools kura hourua (also known as charter schools). This is in line with the Government’s pre-election commitments. The New Zealand State school system, especially the curriculum, already has the flexibility to allow the creativity and innovation that were part of the rationale for allowing the establishment of partnership schools kura hourua.

The Bill provides transitional arrangements to allow time for negotiations about the future of those schools that are already operating. (Education Amendment Bill, Government Bill 15-1, Explanatory Note, New Zealand Legislation website.)

National Standards

The previous government, led by the National Party, ”introduced a policy of National Standards in reading, writing and mathematics for primary-aged [i.e., elementary-aged] students when it became the government in 2008. Draft standards were released for consultation in May 2009 and the standards introduced at the beginning of the 2010 school year.” (National Standards, NZCER (last visited Oct. 23, 2018). See also Press Release, Anne Tolley, National Standards Introduced (Feb. 3, 2010).) In December 2017, the new Labour Party-led government announced that National Standards would be removed from 2018, stating that

[t]his change will better acknowledge the different ways and pace at which children learn, and support teachers to provide more learning opportunities based on what children already know and can do. . . .

Schools and kura will still be required to report to parents, at least twice a year, on their child’s progress and achievement, especially in the foundational learning areas of maths, reading, and writing. But schools and kura will no longer be required to use National Standards and Ngā Whanaketanga Rumaki Māori for this reporting.

. . . .

Information on the how children, or groups of children, are progressing and achieving nationally, will come from the National Monitoring of Student Achievement (NMSA). These studies test several thousand children each year on different areas of the curriculum. International studies will also help provide parents, whānau as well as schools, kura, and the Ministry, with valuable information on student progress and achievement. (National Standards Removed, MINISTRY OF EDUCATION (last reviewed Mar. 13, 2018).)

The move was supported by New Zealand’s largest teacher union, NZEI, and by the Principals’ Federation. (Jo Moir, National Standards Have Officially Ended in Primary Schools Across the Country, STUFF.CO.NZ (Dec. 12, 2017).) Shortly before the government’s announcement, an international study was released that ranked New Zealand thirty-third out of fifty countries in reading and literacy, eight places lower than in 2011. (Id.)

Charter Schools

The previous government also announced a framework for “partnership” or charter schools in 2012 and subsequently amended the Education Act 1989 in 2013 to make provision for such schools. (Press Release, Hekia Parata & John Banks, Ministers Announce Framework for Partnership Schools/Kura Hourua (Aug. 12, 2012); Press Release, Hekia Parata, Education Amendment Bill Provides Further Opportunities for the New Zealand Education System (May 15, 2013); Education Amendment Act 2013, New Zealand Legislation website. See also Charter Schools Policy Development, MINISTRY OF EDUCATION (last reviewed July 5, 2018).)

Upon the passage of the 2018 Bill, the Education Minister, Chris Hipkins, said that

[c]harter schools were a deregulated, privatised form of schooling that we simply don’t need in New Zealand. They didn’t have to employ qualified and registered teachers, didn’t have to teach to the New Zealand Curriculum and could operate as profit-making businesses. That’s why the Bill ends the charter school model and supports the transition of the existing schools into the state system. (Press Release, Chris Hipkins, Bill Makes for a Stronger Public Education System (Oct. 18, 2018).)

There are currently twelve charter schools throughout the country, all of which applied to become part of the wider state school system following the announcement of the government’s policy to abolish the model. (Approved Charter Schools, MINISTRY OF EDUCATION (last reviewed July 31, 2018).) In September 2018, Hipkins said that all of the schools had now been approved to become “designated character schools” or state integrated schools under the Education Act 1989. (Press Release, Chris Hipkins, All Charter Schools Now Approved (Sept. 17, 2018).)

Germany: Court Holds That Bitcoin Trading Does Not Require a Banking License

Fri, 19/10/2018 - 14:30

(Oct. 19, 2018) On September 29, 2018, the Higher Regional Court of Berlin (Kammergericht Berlin, KG Berlin) held that trading in Bitcoin does not require a banking license because Bitcoin is not a financial instrument, in particular, not a unit of account, within the meaning of the German Banking Act. The defendant was therefore not conducting an illegal banking business punishable by imprisonment or a fine. The decision is directly at odds with the regulatory practice of the German Financial Supervisory Authority (BaFin), which classifies Bitcoin as a financial instrument and therefore makes commercial trading subject to authorization. (KG Berlin, Sept. 25, 2018, Docket No. (4) 161 Ss 28/18 (35/18), ECLI:DE:KG:2018:0925.4.35.18.00, Court Decisions of Berlin-Brandenburg website; Gesetz über das Kreditwesen [Kreditwesengesetz] [KWG] [Banking Act], Sept. 9, 1998, BUNDESGESETZBLATT [BGBl.] [FEDERAL LAW GAZETTE] I at 2776, as amended, German Laws Online website.)

Facts of the Case

The defendant operated an internet trading platform for Bitcoin and carried out principal brokerage services for sellers and buyers. Buyers had to register and put money in their accounts, with which they were able to purchase Bitcoin. Sellers offered their produced Bitcoin on the website. Payments of customers were made to an account of the C.bank B. and to a Polish account. In March 2013, a “Bitcoin hype” started and the defendant’s account balance increased from €209,832.16 (about US$242,089.36) to €2.45 million (about US$2.83 million) within a few days. On April 9, 2013, the Polish authorities froze his account because they suspected money laundering. The defendant hired an attorney who advised him to close the trading platform, which he did on April 11 and 12, 2013. (KG Berlin para. 3.)

He was subsequently criminally charged with negligently conducting a banking business without authorization, which is punishable by a term of imprisonment of up to three years or a fine, and sentenced to pay a fine. (Id. at 1; Banking Act § 54, para. 2.) He appealed the decision, and the Regional Court of Berlin (Landgericht Berlin) subsequently reversed the lower court’s decision, holding that Bitcoin trading was not subject to authorization and the defendant was therefore not criminally liable. The prosecution appealed the decision to the Higher Regional Court of Berlin. (KG Berlin para. 1.)

Legal Framework

Conducting banking business or providing financial services on a commercial basis or on a scale that requires commercially organized business operations in Germany requires authorization from BaFin. (Banking Act § 32, para. 1.) According to section 1 of the Banking Act, “conducting banking business” comprises, among other things, “the purchase and sale of financial instruments in the credit institution’s own name for the account of others (principal broking services).” (Id. § 1, para. 1, sentence 2, no. 4.) Section 1, paragraph 11 of the Banking Act contains an exhaustive list of financial instruments within the meaning of paragraph 1. Conducting banking business without authorization is punishable by a term of imprisonment of up to five years or a fine. (Id. § 54, para. 1.) If done negligently, the punishment is up to three years in prison or a fine. (Id. § 54, para. 2.)

Ruling

The Higher Regional Court confirmed the decision of the Regional Court of Berlin. It held that the virtual currency Bitcoin is not a financial instrument within the meaning of the Banking Act, in particular, not a unit of account according to section 1, para. 11, no. 7, and therefore does not require authorization from BaFin. (KG Berlin, paras. 6 & 8.)

According to the Court, the explanatory memorandum to the amendment of the Banking Act, which added “unit of accounts” to the list of financial instruments in 1997, does not contain any hints that the legislature meant to include cryptocurrencies as units of account. On the one hand, Bitcoin was first mentioned on the Internet in 2008/2009 and therefore could not have been part of the considerations at the time. Secondly, the Court held that the wording is also not open to an interpretation that would allow including Bitcoin. (Id. at 12.)

The Court stated that Bitcoin is issued neither by a central bank nor by a public body, and there is no universal issuer. In addition there is no central and definable authority that can regulate Bitcoin. The Court added that Bitcoin is neither a currency nor a classical means of payment, although it is accepted as a means of payment by certain economic actors, and it is highly volatile. (Id. at 13.) The Court concluded that Bitcoin is therefore missing a continuing value and general recognition that units of account generally have. (Id. at 14.)

Furthermore, the Court ruled that BaFin overstepped their competency when it classified Bitcoin as “units of account” and therefore made them subject to authorization. (Id. at 15 & 17.) It stated that an administrative agency may not encroach upon the competencies of the legislature to amend criminal norms. (Id. at 16.)

Finally, the Court declared that Bitcoin is not e-money as defined in the Second European Union E-Money Directive as implemented into the German Payment Services Supervision Act. (Id. at 20; Zahlungsdiensteaufsichtsgesetz [ZAG] [Payment Services Supervision Act] July 17, 2017, BGBl. I at 2446, German Laws Online website.) It explained that Bitcoin was already known when the Second E-Money Directive was implemented into German law, but the legislature did not explicitly include it in the Banking Act or the Payment Services Supervision Act, and did not make commercial trading subject to authorization by the BaFin. (KG Berlin, para. 28.)

Togo: Parliament Adopts Bill to Promote Power Generation from Clean Sources

Mon, 15/10/2018 - 14:30

(Oct. 15, 2018) On July 24, 2018, Togo’s Parliament adopted a bill to promote power generation from clean sources. (Ouverture de la deuxième session extraordinaire de l’année 2018 [2018’s Second Extraordinary Assembly], Assemblée Nationale Togolais [Togolese National Assembly] website (all translations by author).)

The bill was approved unanimously and includes 59 articles organized in seven titles aimed at “establishing a legal framework to promote the realization and operation of electrical installations for the production of renewable energy.” (Id.)

The adoption of this bill is in line with Togo’s plan to provide access to reliable, modern energy for all its citizens. Indeed, at the end of June 2018, Togo’s government launched a new national electrification strategy for the next 12 years, backed by major lenders, under which authorities plan to provide power to all Togolese by 2030. (Fiacre E. Kakpo, Marc Ably-Bidamon: “Togo’s Ambition Is to Provide Electricity to Its Whole Population by 2030,” TOGO FIRST (Aug. 8, 2018).)

Under Togo’s plan, 300 minisolar plants are to be established via private-public partnerships, and 550,000 households are to be provided with solar kits. (Énergie: le Togo a besoin de 180 milliards [Energy: Togo Needs 180 Billion Dollars], REPUBLIQUE TOGOLAISE (June 27, 2018).) The new bill, Togolese authorities believe, will greatly contribute to the concretization of these goals. (Fiacre E. Kakpo, Parliament Adopts Bill to Boost Clean Energy Production, TOGO FIRST (July 26, 2018).)

André Johnson, Togo’s Minister of Environment and Forest Resources, stated after the bill’s adoption that [t]oday’s vote will support the implementation of our energy strategy which is based, among others, on clean energy development, namely solar and hydropower, as well as on environmental protection, in line with the sustainable development goal 7 (SDG7). (Id.) The Sustainable Development Goals (SDGs) are a set of goals created by the United Nations for sustainable development and have been publicized as international goals. (G.A. Res. A/Res/70/1, Transforming Our World: the 2030 Agenda for Sustainable Development (Sept. 25, 2015), U.N. General Assembly website.) SDG7 aims at “ensuring access to affordable, reliable, sustainable and modern energy for all.” (Id. at 14.)

Prepared by Sarah Ettedgui, Law Library intern, under the supervision of Nicolas Boring, Foreign Law Specialist.

 

Kenya: Parliament Considering Amendment to the Country’s 2001 Children Act

Fri, 05/10/2018 - 19:25

(Oct. 5, 2018) Kenya’s Parliament is currently reviewing a new bill—the Statute Law (Miscellaneous Amendments) Bill, 2018—which seeks to introduce key amendments to the 2001 Children Act. The Bill has recently gone through its first reading in the National Assembly, one of the two houses of the Kenyan Parliament. (Statute Law (Miscellaneous Amendments) Bill, 2018, KENYA GAZETTE SUPPLEMENT, NATIONAL ASSEMBLY BILLS, 2018 (Apr. 10, 2018), Kenya Law website; Children Act No. 8 of 2001 (commencement Mar. 1, 2002), Kenya Law website.)

One of the proposed changes under the Bill authorizes the Cabinet Secretary in charge of implementing the Children Act to deregister existing charitable children’s institutions or refuse to register new ones that fail to adhere to certain standards. (Statute Law (Miscellaneous Amendments) Bill, at 298–300.) Under the current Children Act, a charitable children’s institution is “a home or institution which has been established by a person, corporate or unincorporate, a religious organisation or a non-governmental organisation and has been granted approval by the [National Council for Children Services] to manage a programme for the care, protection, rehabilitation or control of children.” (Children Act §§ 2 & 58.)  Under this Act, it appears that the harshest restriction that can be placed on a charitable children institution is the cancellation of its program by the Council upon the recommendation of the Director of Children Services. (Children Act § 71.)  This may occur if

(a)  the institution is unfit for the care, protection and control of children; or

(b) the children admitted into the institution are suffering or are likely to suffer harm; or

(c) the manager of the institution has contravened any of the regulations made under [the law]. (Id.)

If the Bill is enacted, the Cabinet secretary will have the power to shut down an existing charitable children’s institution or deny registration to a new one if

(a) the lives of children in such institution are in danger or where their continued stay therein is likely to endanger their well being;

(b) the institution or a person involved in the management of such institution in unfit to provide care or protection to the children;

(c) it has been established that the institution does not serve the best interest of the
children therein; or

(d) such institution is in contravention of the Constitution, the Convention on Rights of the Child, the African Charter on the Rights and Welfare of the Child or any other law or international treaties or conventions to which Kenya is a party. (Statute Law (Miscellaneous Amendments) Bill, at 298–300.)

The Bill would also place similar restrictions on adoption institutions. It authorizes the Secretary to “decline to register or cancel the registration” of an adoption society, an institution that facilitates adoptions, under certain circumstances. This would occur if it is established that

(a) the operations of such adoption society are against the best interests of the child;

(b) such adoption society is no longer necessary; or

(c) the operations of such adoption society are in contravention of the Constitution or any other law or any international treaty or convention to which Kenya is a party. (Statute Law (Miscellaneous Amendments) Bill, at 302.)

In addition, the Bill would give the Child Welfare Society of Kenya, a state corporation, a great deal of power over the process of arranging adoptions. It states that “[n]o body of persons shall make any arrangements for the adoption of a child … unless such body is the national adoption society [the Child Welfare Society of Kenya] or any other body registered as an adoption society.” (Id. at 301; State Corporations Act (Child Welfare Society of Kenya) Order, 2014, § 4 (May 21, 2014), Kenya Law website.)

Significantly, the Bill seeks to eliminate payments to an adoption society or anyone else involved in facilitating an adoption. The current Act prohibits adopters, parents, or guardians of a child from receiving any payment in consideration of adopting the child. (Children Act § 179.) However, it permits adoption societies and advocates to receive payment or voluntary donations, stating that the above ban does not apply

(b) to any payment made by or on behalf of an adoption society in respect of the maintenance of a child who has been placed at the disposition of the society; or

(c) to any payment made to an adoption society by the parent or guardian of a child or by any other person in respect of the maintenance of the child, so long as the child is not in care and possession of a person who has adopted or proposes to adopt him, whether under an adoption order or some other order; or

(d) to any payment made to an advocate who acts for any party in or in connection with an application for an adoption order, being payments made in respect of such application; or

(e) to any voluntary contribution made by any adopter or any parent or guardian to an adoption society. (Id.)

The Bill would repeal all these exceptions that permit the making of payments and/or donations.

Children’s rights groups have expressed opposition to the Bill, arguing, among other things, that the central role in matters affecting children that it envisages for the Child Welfare Society of Kenya would essentially “make other institutions irrelevant and could kill them.” (Rhoda Odhiambo, Child Welfare Groups Oppose Law Changes, STAR (May 10, 2018).)

Egypt: President Ratifies Anti-Cybercrime Law

Fri, 05/10/2018 - 14:30

(Oct. 5, 2018) In August 2018, Egyptian President Abdel Fattah al-Sisi ratified Law No. 175 of 2018, the “Anti-Cyber and Information Technology Crimes” law. (Law No. 175 of 2018, AL-JARIDAH AL- RASMIYAH [OFFICIAL GAZETTE], vol. 32 (bis) (c), 14 Aug. 2018 (in Arabic).) The newly enacted law, published in the Official Gazette on August 19, 2018, aims at fighting extremist and terrorist organizations that use the internet to promote their ideas among youth. The Law also bans the online dissemination of information on army and police movement and criminalizes hacking into information systems. (Mariana Barsoum, Egypt’s Sisi Ratifies New Cyber-crime Law, AHRAM ONLINE (Aug. 18, 2018).)

Law No. 175 consists of 45 provisions. Among them, article 2 requires telecommunications companies to retain and store users’ data for 180 days in order to assist the authorities in identifying users, metadata, and computer IP addresses. Article 4 of the Law obliges the Ministries of Foreign Affairs and International Cooperation to reach bilateral agreements covering Internet Technology (IT) and cybercrime with as many foreign governments as possible to block some websites in foreign countries. Article 7 grants the investigative authorities the power to block any website whenever they deem that the website’s content promotes extremist ideas that violate national security or damages the Egyptian economy. (Wafa Ben-Hassine, Egyptian Parliament Approves Cybercrime Law Legalizing Blocking of Websites and Full Surveillance of Egyptians, ACCESS NOW (June 20, 2018).)

Article 8 gives customers and internet service providers (ISPs) the right to appeal censorship decisions before the criminal court within seven days of the censoring of a website. (Law No. 175, art. 8.)

Article 13 provides that using wireless networks with or without the owner’s permission, or using broadcasting channels without a communications permit or broadcasting license is punishable by imprisonment for no less than three months and a fine of 10,000–50,000 Egyptian pounds (EGP) (about US$557–2,786). (How You Will be Affected by the New Cybercrime Law: A Guide, MADA MASR (Aug. 21, 2018).)

According to article 14, individuals who gain access to or hack a website, private account, or prohibited information system, whether intentionally or unintentionally, may be penalized with imprisonment of no less than a year and/or a fine of EGP50,000–100,000 (about US$2,786–5,573). If the hacking leads to the damage, erasure, altering, copying, or redistribution of data or information, the term of imprisonment would be for no less than two years. (Law No. 175, art. 14.)

Article 15 states that anyone who obtains access to a website, an account, or an information system using inappropriate privileges or timing is punishable by no less than six months of imprisonment and/or a fine of EGP30,000–50,000 (about US$1,672–2,786). (Id. art. 15.)

Under article 20, individuals convicted of hacking state information systems can be fined EGP50,000–200,000 (about US$2,786–11,145) and/or sentenced to imprisonment for two years. (Barsoum, supra.)

Creating fake accounts using the names of public figures or organizations is also punishable under the new law. Article 24 stipulates that anyone who creates a fake email address, website, or personal account in the name of actual individuals or organizations is punishable by a term of imprisonment of no less than three months and/or a fine of EGP10,000–30,000. Moreover, creating an account to insult a public figure may be punished by imprisonment and a fine of EGP100,000–300,000 (about US$5,573–16,718). (How You Will Be Affected by the New Cybercrime Law: A Guide, supra.)

In accordance with article 25, individuals who post on websites or social media platforms videos, photos, or texts of others without their consent and in violation of their privacy are punishable by no less than six months in prison and/or a fine of EGP50,000–100,000. Posting content that “violates the family principles and values upheld by Egyptian society” may be punished by a minimum of six-months’ imprisonment and/or a fine of EGP50,000–100,000. (Id.)

Finally, a service provider who fails to carry out a censorship order or directive issued by the competent authority against a specific website or online blog account is punishable under article 30 by no less than a year in prison and/or a fine of EGP500,000–1 million (around US$27,864–55,727). (Law No. 157, art. 30.)

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