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Germany: Higher Regional Court Suspends Restrictions Placed on Facebook

23 October 2019 - 2:30pm

(Oct. 23, 2019) On August 26, 2019, the Higher Regional Court of Düsseldorf, Germany, temporarily suspended an order (English summary) of the German Federal Cartel Office (FCO), the country’s highest competition authority, which had restricted Facebook’s ability to process user data. Facebook therefore currently does not have to comply with the order. The decision in the main proceedings to determine the legitimacy of the restrictions is still pending. A date for oral arguments has yet to be set. The FCO has announced that it will appeal the temporary injunction to the Federal Court of Justice, the highest civil court.

Background

In February 2019, the FCO issued an order that restricted Facebook’s ability to combine user data collected from Facebook-owned services such as WhatsApp and Instagram and from third party websites and assign it to the user’s Facebook account. Accepting the social network’s terms and conditions, which provide for such additional processing, is a prerequisite to using the service. The FCO prohibited Facebook from processing that data without the user’s explicit consent. It stated that the processing violated section 19, paragraph 1 of the Competition Act, which prohibits the abuse of a dominant market position. In 2018, Facebook had a market share of more than 95% of daily active users in social media and more than 80% of monthly active users in Germany.

The FCO argued that Facebook’s terms and conditions and the manner and extent to which it collects and uses data are in violation of the European data protection rules, in particular the General Data Protection Regulation, to the detriment of users, and therefore constitute an exploitative practice. In the opinion of the FCO, the abuse of its dominant market position in this manner unfairly impedes competitors.

The FCO set a deadline of twelve months for Facebook to amend its terms and conditions or delete the respective provisions and to insert a provision stating that the processing of user data collected from Facebook-owned services and from third party websites requires explicit consent. In addition, it ordered Facebook to submit an implementation plan within four months.

Decision

The Higher Regional Court of Düsseldorf disagreed with the assessment of the FCO and stated that it had “serious doubts” regarding the legitimacy of the order. It held that Facebook’s data processing did not constitute a relevant competitive harm and saw no exploitative practice to the detriment of the users or an impediment to competitors. (Oberlandesgericht Düsseldorf para. 25.)

With regard to exploitative business terms, the Court opined that the standard example for exploitative practices codified in section 19, paragraph 2, number 2 of the Competition Act was not fulfilled. The provision states that “[a]n abuse exists in particular if a dominant undertaking … demands payment or other business terms which differ from those which would very likely arise if effective competition existed.” The Court criticized the FCO for not making any determinations regarding a hypothetical competitive market and what kind of terms and conditions would exist in such a market. (Para. 27.)

It also held that Facebook did not abuse its dominant market position according to the general stipulation of section 19, paragraph 1, even though it is generally possible that a violation of consumer protection rules constitutes a relevant competitive harm. The Court pointed to the desired alignment of national competition law with EU competition law, which includes consumer protection aspects, and various national competition rules that protect consumers—for example, the prohibition on abusive pricing. However, in the case at issue, Facebook’s prohibited behavior did not cause any anticompetitive effects, in the opinion of the Court. The data collected from Facebook-owned services and from third party websites are easily duplicated and do not constitute an exploitation of the user, unlike “demanding a payment” as stated in section 19, paragraph 2 of the Competition Act. Users remain free to allow other services—for example, competitors of Facebook—to use their personal data. (Paras. 28–31.)

In addition, the Court held that the FCO did not provide sufficient justification for its claim that Facebook impedes its competitors and abuses its dominant market position. Facebook did not prevent its competitors from entering the market, and the FCO did not prove how the data collection factored into acquiring a dominant market position. (Paras. 92 & 93.) According to the Court, there is no causal relationship between Facebook’s data processing as prohibited in the order and its dominant market position. (Para. 72.) Facebook users are not forced into signing up with the social network, and they provide voluntary consent to the data processing. (Paras. 77 & 83.) The Court concluded that even if Facebook had abused its dominant market position and impeded its competitors, the FCO’s order was not appropriate to rectify the situation as it did not prohibit Facebook from collecting data in general. (Para. 88.)

Egypt: Ministerial Resolution Issued to Regulate Activities of Ride-Sharing Companies

22 October 2019 - 2:30pm

(Oct. 22, 2019) On September 18, 2019, Egypt’s cabinet issued Resolution No. 2180 of 2019, which regulates ride-sharing companies operating in Egypt, such as Uber. The Resolution acts as the executive regulation of Law No. 87 of 2018 concerning land transportation services. Under the Egyptian legal system, an executive regulation is used to clarify the general provisions of a law by providing more details about them.

Resolution No. 2180 of 2019

Resolution No. 2180 of 2019 mandates that ride-sharing companies be responsible for conducting background checks on drivers before hiring them, as well as subject drivers to random drug and alcohol tests. It also compels ride-sharing companies to hire only drivers with modern air-conditioned cars that are no more than five years old. (Art. 9.)

According to the Resolution, ride-sharing companies are to submit to the Ministry of Transportation six months’ worth of “customers’ data” from all rides provided upon request by the Ministry. (Art. 10.)

The Resolution also requires that drivers hired by ride-sharing companies pay a social security insurance fee and obtain a work license from the Ministry of Transportation, the requirements for which include providing commercial records, a tax card, and a vehicle registration. (Art. 23.)

Law No. 87 of 2018

In June 2018, President Abdu Al-Fatah Al-Sisi signed Law No. 87 of 2018. The Law consists of 19 provisions that govern services offered by all kinds of land transportation companies, including ride-sharing companies. The Law bans ride-sharing companies from operating in Egypt without obtaining a permit from the cabinet, which has the authority to determine how many permits are granted to land transportation service companies to operate legally in the country. (Arts. 2 & 5.)

All vehicles used in transporting individuals must display during operating hours the logo of the transportation company with which the vehicle is affiliated. The Law also forbids any person from working in the field of land transportation services without affiliation to a transportation company licensed to operate in Egypt by the cabinet. (Arts. 7 & 8.)

All land transportation service companies are required to provide the country’s national security agencies with “all their customers’ data” and to pay taxes annually. (Arts. 9 & 11.)

Legal persons caught working in the field of land transportation services without obtaining a permit from the cabinet are fined 200,000 to 5 million Egyptian pounds (EGP) (about US$12, 300 to $306,000). The Law also imposes a fine of EGP5,000 to 20,000 (about US$306 to $1,226) on anyone driving a vehicle without obtaining a permit to use the vehicle in a land transportation service company. In addition, it imposes the same fine on drivers who do not display the logo of the transportation company that they are affiliated with during operating hours. Finally, the Law imposes a penalty of EGP500,000 to 5 million (about US$36,650 to $306,000) on transportation companies that do not provide customer data to the national security agencies. (Arts. 15–17.)

International: World Bank Inspection Panel Registers Eight Requests for Inspection Regarding Odra-Vistula Flood Management Project

21 October 2019 - 2:30pm

(Oct. 21, 2019) In September 2019, the World Bank Inspection Panel registered eight requests for inspection, all related to the Odra-Vistula Flood Management project in Poland. The requesters, representatives of various nongovernmental organizations (NGOs) in Germany and Poland, allege that the World Bank project harms biodiversity and increases flood risks, among other allegations. In addition, and of special importance in the Inspection Panel process, a number of requesters allege that the environmental impact assessment carried out by the World Bank before the initiation of the Project was insufficient, lacking proper consideration of alternatives and adequate consultation with affected populations.

The project now under inspection was approved by the World Bank Board of Directors in 2015 and is scheduled to be completed in 2023. As stated in the Notice of Registration from the Chair of the Inspection Panel,

[t]he development objectives of the Project are to “increase access to flood protection for people living in selected areas of the Odra River and the Upper Vistula River basins and to strengthen the institutional capacity of the Borrower to mitigate the impact of floods more effectively” [according to the Project Appraisal Document]. The Project triggered the following World Bank safeguard policies: Environmental Assessment (OP/BP 4.01); Natural Habitats (OP/BP 4.04); Physical Cultural Resources (OP/BP 4.11); Involuntary Resettlement (OP/BP 4.12); Safety of Dams (OP/BP 4.37); and Projects on International Waterways (OP/BP 7.50).

Of particular importance to the Inspection Panel is the environmental impact assessment rating of “Category B” given to the project, per OP/BP 4.01. When a proposed project is determined to be Category B, it indicates that the potential adverse environmental impacts are considered to be less adverse than a “Category A” project, thus necessitating fewer mitigating measures to protect the environment.

World Bank Inspection Panel at a Glance

 The World Bank Inspection Panel’s mandate is to serve as “an independent complaints mechanism for people and communities who believe that they have been, or are likely to be, adversely affected by a World Bank-funded project.” Since the Inspection Panel’s creation as an independent investigations body in 1993, the Panel has received 150 requests for inspection. Once the Chair of the Inspection Panel registers a request, thus providing official notification of the request to the Executive Directors and the President of the World Bank, Bank Management must provide the Inspection Panel a response regarding the issues raised in the request within three weeks. Thereafter, the Panel will “determine whether the Request meets the eligibility criteria … and shall make a recommendation to the Executive Directors as to whether the matter should be investigated.” The eligibility criteria include the requirement that the requester(s) demonstrate that their “rights or interests have been or are likely to be directly affected by an action or omission of the Bank as a result of a failure of the Bank to follow its operational policies and procedures with respect to the design, appraisal and/or implementation of a project financed by the Bank.”

South Korea: Amendment Act Expands Parental Leave

18 October 2019 - 2:30pm

(Oct. 18, 2019) In an effort to boost the fertility rate by providing support to pregnant and child-rearing workers, South Korea’s National Assembly passed an act in August 2019 that amends the Equal Employment Opportunity and Work-Family Balance Assistance Act (EEO-WFBA Act) (Act No. 8781, Dec. 21, 2007) and the Employment Insurance Act (Act No. 10895, July 21, 2011). The amendment (Act No. 16557, Aug. 27, 2019) became effective on October 1, 2019.

Before it was amended by Act No. 16557, article 18-2 of the EEO-WFBA Act stated that a male worker could take paternity leave for three to five days, and the first three days could be paid leave if he fulfilled certain eligibility criteria. The male worker also had to request the leave within 30 days from the birth of the child. Under the amended Act, a male worker can take up to 10 days of paid paternity leave. The amendment also extends the period for requesting paternity leave to 90 days from the child’s birth. In addition, the new law allows a male worker to divide the leave period and take it on two separate occasions.

The amended Act also extends the period of reduced working hours for childcare. Workers who have a child under eight years of age or is in second grade or below may request their employer to reduce their working hours to between 15 and 35 hours per week, except in special cases. The period of reduced working hours can be for up to one year. However, when workers have used none or only part of their one-year parental leave, the unused portion can be added to the period of reduced working hours. (Art. 19-2, paras. 1, 3, 4.) Thus, workers may reduce their work hours for up to two years.

The amendment of the EEO-WFBA is one of various measures the South Korean government has instituted to support pregnant and child-rearing workers in order to boost the country’s fertility rate. South Korea’s fertility rate, which was already the lowest in the world in 2017 at 1.1 births per woman, fell to 0.98 births per woman in 2018.

Another measure South Korea has tried is instituting a system of long-term childcare leave for fathers, which is considered one of best among countries in the Organisation for Economic Co-operation and Development (OECD). The number of fathers who took childcare leave in the first half of 2019 jumped 30.9% from the same period in 2018 and more than doubled from 2016 to 2018, when 17,662 fathers took childcare leave. By August 2019, the number for the year had already reached 14,988. With the amendment of the Acts, the number is expected to increase even more. However, at this point the measure does not appear to have caused any increase in the fertility rate.

Turkey: AKP Submits Draft “Judicial Reform Package” to Grand National Assembly

17 October 2019 - 2:30pm

(Oct. 17, 2019) On October 7, 2019, the Justice Commission of the Grand National Assembly of Turkey (GNAT, Turkey’s parliament) accepted a draft bill constituting a “judicial reform package” that was submitted to the GNAT by Turkey’s Justice and Development Party (the AKP) on September 30, 2019. A press statement released by the AKP stated that other draft bills would follow in accordance with the Judicial Reform Strategy that the government published in May 2019. The Justice Commission’s version of the bill was placed on the GNAT’s agenda after its passage by the Commission.

Especially notable in the draft bill are four proposed changes to the Criminal Procedure Code (Law No. 5271). One of these amendments limits the allowed period for pretrial detention of a suspect during the investigation phase of the criminal process (the stage before the indictment is submitted to and approved by the court) to a maximum of two years for terrorism-related crimes; crimes against the safety of the state, the constitutional order, national defense, and state secrets; and crimes committed collectively. The amendment also limits to one year the period of pretrial detention for crimes that are within the jurisdiction of the court of assize (which has jurisdiction in crimes punishable by more than 10 years of imprisonment and certain other crimes), and limits to six months the period of pretrial detention for other crimes. (Draft bill art. 18.)

Two amendments introduce new procedures, the first being likened by the AKP’s deputy chairman to plea bargaining in American law, whereby the prosecutor would be able to offer a 50% reduction in the punishment of certain listed crimes to obtain the accused’s consent to a summary judgment. Under the second new procedure, the criminal court could employ an expedited process conducted without hearings for crimes that are punishable by two years of imprisonment or less. The court would revert to the ordinary procedure if a party objected to the use of the expedited procedure. (Arts. 23–25.)

Another amendment enables appeals to the Court of Cassation against judgments issued by criminal divisions of regional courts (courts of second instance) with regard to certain serious crimes, which are currently not appealable due to the minimum prison-term limit provided for in article 286 of the Criminal Procedure Code. (Art. 29.)

Some of the other significant amendments proposed by the draft bill are as follows:

  • An amendment to article 19 of the Law on the Protection of Children (Law No. 5395), allowing prosecutors to postpone for a period of five years the prosecution of crimes punishable by five years of imprisonment or less for juvenile suspects younger than 15 years of age. (Art. 33.)
  • An amendment to the Law on the Regulation of Publications on the Internet and Combating Crimes Committed by Means of Such Publications (Law No. 5651), requiring the judge applying the procedure set forth in article 8 of the Law (allowing access to internet content to be blocked if its placement is suspected of constituting one of the crimes listed therein) to block access only to the offending content and not to the whole website, if possible. (Art. 36.) The article 8 procedure and other content-blocking procedures included in Law No. 5651 are controversial and were criticized by the Venice Commission.
  • An amendment to article 7(2) of the Law on Combatting Terrorism (Law No. 3713). Article 7(2) proscribes “engaging in propaganda that justifies, praises, or promotes the use of a terrorist organization’s methods of coercion, violence, or intimidation.” The amendment adds a sentence to article 7(2), clarifying that expressions made to merely convey news or offer criticism do not constitute an offense. (Art. 13.) Opposition MPs in the Justice Commission have argued in their dissents attached to the Commission report approving the draft bill that the amendment did not do enough to reform the law, whose ambiguity and overly broad language in their view enables the violation of freedom of expression. The Constitutional Court of Turkey has found such a violation in the application of article 7(2) in its recent high-profile judgment in the Sirri Süreyya Önder case.

Italy: New Provisions on National Cybersecurity Enter into Force

16 October 2019 - 2:30pm

(Oct. 16, 2019) On September 22, 2019, Decree Law No. 105 of September 21, 2019 (Decreto-Legge 21 settembre 2019, n. 105) (D.L. No. 105), containing urgent provisions on national cybersecurity, entered into force in Italy. The purpose of the new legislation is to guarantee the highest level of security for networks, information systems, and information technology (IT) services for the public administration and private entities.

National Cybersecurity Perimeter

The new Law aims to ensure the security of networks and IT systems by preventing their malfunctioning, interruption, and improper use. To that effect, the Law institutes the Interministerial Committee for the Security of the Republic (Comitato interministeriale per la sicurezza della Repubblica), and creates a “national cyber security perimeter” (the perimeter). A presidential decree to be issued within four months will identify the public agencies and private entities to be included in the perimeter—namely, those performing an essential function of the state, the interruption, malfunction, or improper use of whose networks would be detrimental to national security. New regulations to be issued by the president of the Council of Ministers must address the requirements for notifying the Italian IT Security Intervention Group (Gruppo di intervento per la sicurezza informatica in caso di incidente) of incidents impacting networks, information systems and IT services. These notifications must be also forwarded to the Security Information Department and the Cybersecurity Team. (Art. 1(1), 1(2).)

Measures for Ensuring High Levels of Security

The new measures contemplated to guarantee high levels of security for networks, information systems and IT services include (a) security policies related to organizational structures and risk management, (b) mitigation and management of accidents and their prevention, (c) physical safety and data protection, (d) integrity of networks and information systems, (e) monitoring, testing and control, and (f) training and awareness. (Art. 1(3).)

Under the new Law, the Presidency of the Council of Ministers is responsible for inspection and verification of compliance with the new legislation by public agencies and private entities in particular, with provisions related to crime prevention and suppression, protection of order and public security, and the defense and military security of the state. (Art. 1(6)(c).)

Broadband Networks

The new Law indicates that implementing regulations must provide for an assessment of vulnerability factors that could compromise the integrity and security of the networks and data of networks with 5G technology. (Art. 3.)

Cybernetic Crises

The President of the Council of Ministers is empowered to adopt urgent measures in the presence of serious and imminent risks to national security related to the vulnerability of networks, information systems, and IT services. (Art. 5(1).)

Additional Staff Resources

The new Law directs the government to hire a maximum of 77 new staff members for the administration and implementation of the newly established measures and mechanisms. (Art. 2.(1).)

Punishable Conduct

The new Law sets fines for improper conduct related to the cybersecurity of the country, including (a) the failure to comply with obligations to prepare and update lists of networks, information systems, and IT services required by the Law, and (b) noncompliance with notification requirements concerning the adoption of security measures. Additionally, certain violations disqualify the offender from assuming management, administration, and control positions at public and private entities for a determined period of time. All penalties are applied by the Presidency of the Council of Ministers, with the assistance of the Agency for Digital Italy (Agenzia per l’Italia Digitale). (Art. 1.)

Brazil: New Law Criminalizing Abuse of Authority Enacted

15 October 2019 - 2:30pm

(Oct. 15, 2019) On September 5, 2019, Brazil’s president, Jair Bolsonaro, promulgated Law No. 13,869 (Lei No. 13.869, de 5 de Setembro de 2019), which provides for crimes of abuse of authority and amends and revokes other laws. President Bolsonaro had initially issued 19 vetoes that encompassed 36 provisions of the Law, and the National Congress subsequently overruled 18 of the vetoed provisions.

Law No. 13,869 defines crimes of abuse of authority as those committed by public agents who, in the exercise of their functions or under the pretext of performing them, abuse the power that has been conferred on them. The proscribed conduct must be done with the specific purpose of harming another person or benefiting themselves or others, or by mere whim or personal satisfaction. Divergence in the interpretation of the law or in the evaluation of facts and evidence does not constitute abuse of authority. (Art. 1.)

Under the new Law, public agents are defined to include anyone who exercises, even temporarily or without remuneration—by election, appointment, hiring, or any other form of investiture—a position or function directly or indirectly administering the powers of the Union, the states, the Federal District, the municipalities, and territory of Brazil. Such agents include civil and public servants; members of the legislative, executive, and judiciary powers; members of the Public Prosecution Office; and members of the courts or boards of auditors. (Art. 2.)

The Law determines the penalties for conviction under the Law to include indemnifying the offended party for damage caused by the crime, with the judge, at the request of the offended party, setting the minimum amount to repair the damage caused by the violation; and disqualification from the exercise of office, mandate, or public function, for a period of one to five years, or the loss of office, mandate or public function. The criminal punishments must be applied regardless of the applicable civil or administrative sanctions. (Arts. 4, 6.)

Articles 9 to 38 define the crimes that characterize abuse of authority and set the corresponding punishments.  Article 10, for example, provides that a public agent who, unreasonably or without prior summons, forces a witness or investigated person to appear in court may be punished with one to for years in prison and a fine.

The provisions of the Code of Criminal Procedure, and of Law No. 9,099 of September 26, 1995, which created special courts in the area of Federal Justice, apply to the prosecution of the offenses provided for in Law No. 13,869. (Art. 39.)

Law No. 13,869 is set to enter into force 120 days after its publication. (Art. 45.)

Japan: Drone Flight Guidelines Amended to Require Registered and Searchable Online Flight Plans

11 October 2019 - 2:30pm

(Oct. 11, 2019) Japan’s Guidelines for Permission/Approval Concerning Unmanned Aerial Vehicle Flight (Nov. 17, 2015) were amended on July 26, 2019. Under the amendment, all flight plans of unmanned aerial vehicles (UAVs) that are subject to permission (kyoka) or approval (shonin) must be registered in the online flight information sharing system managed by the Ministry of Land, Infrastructure, Transport and Tourism (MLIT). The website makes those registered flight plans accessible to others, thereby allowing airplanes and other UAV operators to check if their flights would encounter interference by other UAVs.

Background on the Flight Information Sharing System

The increase in the number of UAVs in Japan has seen a corresponding rise in the number of UAV accidents, with eight reported near misses between drones and helicopters or airplanes since December 2015. The MLIT established the flight information sharing system in April 2019 to decrease the number of accidents. However, because using the system was optional and not many UAV operators registered their flight plans, the MLIT made the registration mandatory on July 26, 2019.

Flight Plans Requiring Permission or Approval

Not all drone flights need permission or approval. Under the Aviation Act (Act No. 231 of 1952, amended by Act No. 38 of 2019 (Reiwa 1)), a person who operates a UAV in the airspaces designated by an MLIT ordinance must obtain prior permission from the Minister of the MLIT. The designated airspaces consist of areas in which the flight of UAVs could affect the safety of aircraft navigation and other areas that are densely populated or where buildings are built close together. (Aviation Act art. 132.)

Prior approval for a UAV flight is required if the UAV is not to be operated in conditions that are generally approved under the Aviation Act. The Act generally permits a UAV flight in the following circumstances:

  • The flight occurs between sunrise and sunset.
  • The operator monitors the UAV and its surroundings with his/her own eyes all the time during the flight.
  • The UAV keeps the specified distance from people or property on the ground or on water.
  • The UAV does not fly above a place where festivals, fairs, exhibitions, and other gatherings are held.
  • The UAV does not transport explosive, flammable, or other dangerous objects.
  • The UAV does not drop any objects other than those specified in an MLIT ordinance. (Art. 132-2.)

These conditions may not apply in emergency situations. (Art. 132-3.) A UAV that weighs less than 200 grams (7 ounces) is not subject to these rules, but is still subject to other regulations. (Art. 2, para. 22 & Aviation Act Enforcement Ordinance (Ministry of Transport Ordinance No. 56 of 1952, amended by MLIT Ordinance No. 1 of 2019 (Reiwa 1), art. 5-2).)

Turkey: Nationwide Police Operation Conducted to Enforce Ban Against Smoking While Driving

10 October 2019 - 2:30pm

(Oct. 10, 2019) As a result of a simultaneous, country-wide police operation aimed at enforcing a ban on smoking while driving in Turkey, more than 5,000 tickets were issued on September 25, 2019, to drivers smoking cigarettes in their private vehicles. The ban, which was added to the Law on the Prevention and Control of the Harmful Effects of Tobacco Products (Law No. 4207) in May 2013 (amending Law No. 6487), explicitly covers smoking while driving a private vehicle, as well as smoking in all public road, rail, sea, and air transport vehicles, including taxis. (Law No. 4207, art. 2(1)(c).)

The administrative fine for smoking while driving is 153 Turkish liras (about US$27). (Law No. 4207, art. 5 (amending Law No. 5326, Misdemeanors Law art. 39).) According to article 17 of the Misdemeanors Law, the fines prescribed therein are updated to reflect inflation every year. The revaluation rate is calculated according to the method provided in article 298(bis) of the Tax Procedure Law (Law No. 213), whereby the revaluation rate is set equal to the domestic producer price index rate of change (12-month moving average) value for the month of October (inclusive), as determined by the Turkish Statistical Institute. The revaluation rate thus calculated is published in the Official Gazette by the Ministry of Finance as a general communique. The updated administrative fines become effective on the first day of the calendar year.

The Anadolu Agency also reported that during the September 25 police operations 693 wanted criminal suspects were caught, including two who were wanted for homicide.

Japan: Diet Passes New Act Aimed at Reducing Food Loss

9 October 2019 - 8:30pm

(Oct. 9, 2019) In May 2019, the Diet, Japan’s parliament, enacted the Act on Promoting Food Loss Reduction (Food Loss Act) (Act No. 19 of 2019 (Reiwa 1).) The Food Loss Act, which took effect on October 1, 2019, was part of the government’s plans for taking measures to reduce household food waste in response to Target 12.3 of the United Nations’ 2030 Agenda for Sustainable Development Goals (SDGs). Target 12.3 calls on all nations to halve food waste and reduce food loss by 2030.

To reduce food waste, Japan previously enacted the 2001 Food Recycling Act (Act No. 116 of 2000, amended by Act No. 83 of 2007), which promotes reducing and recycling food wastes into fertilizer and feed. One of provisions of the Act obligates businesses that generate large amounts of food waste to take measures to reduce and recycle the waste and report their food waste situation to the government periodically. (Arts. 7 & 9.)

The new law focuses on food loss. The Food and Agriculture Organization of the United Nations explains food loss and food waste as follows: “Food loss refers to any food that is lost in the supply chain between the producer and the market. … Food waste, on the other hand, refers to the discarding or alternative (non-food) use of food that is safe and nutritious for human consumption.” Under the Food Loss Act, food loss is described as discarded food at each stage of production, manufacture, sales, consumption, etc., that can still be eaten. (Food Loss Act, preamble.)

The Food Loss Act obligates the national government to establish a basic policy to cut back on food waste, and local governments to devise their own action plans. (Arts. 3, 4, 11–13.) The national and local governments are to educate consumers and businesses. (Art. 14.) Moreover, the national and local governments are to take measures to facilitate activities of nongovernmental organizations to collect usable food that is going to be wasted and distribute it to people in need and to disaster victims. (Art. 19.)

The Act also urges businesses and consumers to be proactive about reducing food loss. (Arts. 5 & 6.) Restaurant patrons taking leftover food when they leave a restaurant would be one such proactive measure. “Doggy bags” are not common in Japan, so a private group, the Doggy Bags Dissemination Committee, is disseminating the idea to the public. The Consumer Affairs Agency also publicizes the activities of anti-food loss groups on its food loss education web page. Businesses are now also utilizing artificial intelligence to manage food better.

Sudan: Interim Constitutional Declaration Signed

9 October 2019 - 5:30pm

(Oct. 9, 2019) On August 4, 2019, Sudanese media announced that the Transitional Military Council and an opposition movement known as the Coalition of Forces for Freedom and Change (FFC) would officially sign an interim constitutional declaration. The 2019 Interim Constitutional Declaration, consisting of 15 chapters and 70 provisions, provides that a governing council will be established to rule the country during a three-year transitional period to appoint a new prime minister and cabinet. Additonally, the Declaration repeals the Transitional Constitution of 2005 and the constitutions of all Sudanese provinces.

Background on the Transitional Period

In April 2019, popular protests followed by a military coup ousted Sudanese President Omar Al-Bashir. In July 2019, the military generals and civilian opposition leaders reached a power-sharing deal mediated by the African Union. The deal allows the establishment of a governing body, called the Sovereignty Council, to rule Sudan for the three-year transitional period.

Key Provisions of the Interim Constitutional Declaration

The 2019 Interim Constitutional Declaration  proclaims the principle of justice and equality for all Sudanese citizens, and states that all people, bodies, and associations, whether official or unofficial, are subject to the rule of law. The Declaration further stipulates that any war crimes, crimes against humanity, and crimes of extrajudicial killing committed since June 1989 do not have a statute of limitation. (§§ 3, 5.)

Regarding the structure of the new government, the Declaration provides for three levels of government during the transitional period: the federal level, provincial level, and local level. It also establishes the three bodies of the transitional government, consisting of the Sovereignty Council, which replaces the position of the president; the cabinet; and the Legislative Council (the parliament), which has the power to pass legislation and engage in legislative oversight. (§§ 8, 9.)

According to the Declaration, the Sovereignty Council is to consist of 11 members, of whom five are civilians and five are members of the military. The civilian members of the Council are to be selected by the FFC, while the military members of the Council will be selected by the military. The 11th member of the Sovereignty Council is to be a civilian, selected by agreement between the Transitional Military Council and the FFC. (§ 10.)

The Declaration states that the cabinet is to be composed of the prime minister and 20 ministers. Members of the cabinet are to be appointed by the prime minister, except the ministers of defense and interior, who are to be nominated by the military. The prime minister is to be appointed by the Sovereignty Council and selected by the FFC. (§ 14.)

The cabinet has the right to ask the Sovereignty Council to declare a state of emergency. The declaration of a state of emergency is to be presented to the Transitional Legislative Council for approval within 15 days from the date of its declaration. (§ 39.)

The Transitional Legislative Council, as provided for in the Declaration, is an independent, legislative authority consisting of 300 members, 40% of whom must be female. The FFC will select 67% of the Legislative Council’s members, while the rest will come from other civilian political movements that are not associated with former President Al-Bashir. The Declaration stipulates that the Legislative Council has the right to enact laws, oversee the performance of the cabinet, approve the general budget, and ratify treaties. The Council must begin to exercise its responsibilities 90 days after the Interim Constitutional Declaration is signed. (§§ 23, 24.)

Regarding the judiciary, the Supreme Judicial Council selects the chief justice and justices of the Constitutional Court, which oversees the constitutionality of laws and regulations, protects rights and freedoms, and adjudicates constitutional disputes. (§§ 28, 30.)

The 2019 Interim Constitutional Declaration promotes an array of human rights principles. Under the Declaration, no one may be arrested, detained, or deprived of freedom without legal procedures defined by law, and all forms of torture and inhumane treatment are banned. Accused persons are guaranteed the right to a fair trial and to legal representation before the courts. Slavery and human trafficking are prohibited, and the state must guarantee the protection of women’s rights and gender equality. Other rights enshrined in the Declaration are the right to privacy, freedom of belief and worship, freedom of expression, freedom of the press, freedom of assembly and association, political participation, freedom of travel and residence, ownership, education, and good health care services, as well as the right of handicapped individuals to work and live with dignity, and the right of ethnic and cultural communities to practice their own traditions and exercise their beliefs and customs. (§§ 45–46, 48, 50–52, 54–66.)

Finally, the Declaration mandates that the Transitional Military Council must dissolve once the members of the Sovereignty Council have taken their constitutional oath, and that only the Sovereignty Council and the cabinet are authorized to represent the Republic of Sudan abroad. (§ 70.)

Australia: New South Wales Bill Decriminalizing Abortion Passed

9 October 2019 - 2:30pm

(Oct. 9, 2019) On September 26, 2019, the New South Wales (NSW) Parliament passed the Reproductive Health Care Reform Bill 2019. The Bill, which will become the Abortion Law Reform Act 2019 (NSW), amends the Crimes Act 1900 (NSW) in order to decriminalize abortion, and sets out new provisions to regulate the conduct of practitioners with respect to terminating pregnancies.

Under section 83 of the Crimes Act, included when the Act was passed in 1900, it has been an offense to unlawfully administer a drug or “unlawfully use any instrument or other means” with the intent of procuring a miscarriage. The penalty for this offense was imprisonment for up to 10 years. The same penalty applied, under section 82 of the Act, to a pregnant woman who unlawfully used a drug, instrument, or other means with the intent to procure her miscarriage. In 1971, the District Court of NSW held that abortion is lawful when a medical practitioner holds the “honest belief on reasonable grounds that [the abortion] was necessary to preserve the women involved from serious danger to their life, or physical or mental health.” (R v Wald (1971) 3 DCR (NSW).) Further case law expanded on this, allowing for abortions to be performed if a pregnant woman’s mental health would face serious danger after the birth of a child.

A previous bill aimed at decriminalizing abortion in NSW was defeated in the Parliament in 2017.

According to some specialists, while doctors have been able to lawfully undertake abortions in NSW since the early 1970s, the potential for criminal liability meant many doctors have been reluctant to provide abortions, leading to a lack of accessible services in the state.

Under the 2019 Bill, sections 82 and 83 of the Crimes Act are repealed and a new provision is added making termination by an unqualified person an offense. (Sched. 2.) The Bill establishes new rules, in separate legislation, allowing a woman to choose to have an abortion without any approval or determination from a medical practitioner with respect to whether continuing with the pregnancy would be harmful to her health, as long as the pregnancy is under 22 weeks in duration and she gives informed consent. (Clause 5.) After 22 weeks, two specialists must determine that there are “sufficient grounds” for a termination, although the two-doctor requirement will not apply in an emergency. (Clause 6.) Under the policy framework for abortions previously established by NSW Health, the sufficient grounds requirement applied after 20 weeks and approval was needed only from one specialist.

The new legislation also provides that a medical specialist may consult a “multi-disciplinary team or hospital advisory committee” regarding a termination after 22 weeks (clause 6(4)), which reflects the existing guidelines from NSW Health.

The Bill was the subject of heated and lengthy debate in the Parliament, with changes being added during the final parliamentary stages in order to address the concerns of some opponents. According to the Australian Medical Association (AMA), many of the changes sought to codify existing medical policy, such as the consultation provision above. A further change allows doctors who have a conscientious objection to abortion to provide a person seeking a termination with approved information from the health department (clause 9(3)(a)), rather than allowing them only to refer the person directly to another doctor or health service who can provide the service, as had originally been proposed (clause 9(3)(b)). Other changes included “further defining informed consent; requiring that doctors provide ‘all necessary information’ about access to counselling; and requiring doctors to provide data on terminations to the health department within 28 days.” (Sched. 1 & clauses 7, 15.)

The late-stage changes to the Bill also included references to sex-selection abortions, requiring the health department to conduct a review after 12 months to determine whether any terminations on this basis had been conducted. (Clause 16.) Another change inserts a new section related to the “care of a person after a termination,” which states that if a termination results in a person being born, doctors are required to care for the baby. (Clause 11.)

Both the AMA and Family Planning NSW stated that the changes were unnecessary, but manageable.

The Bill was originally based on similar legislation enacted in Queensland and Victoria in 2018 and 2008, respectively. All other states and territories except South Australia have also removed abortion offenses from their criminal statutes.

Italy: New Legislation Guaranteeing Inclusive Education to Students with Disabilities Takes Effect

8 October 2019 - 8:30pm

(Oct. 8, 2019) On September 12, 2019, Legislative Decree No. 96 of August 7, 2019, Provisions Integrating and Correcting Legislative Decree No. 66 of April 13, 2017 on the Promotion of School Inclusion for Students with Disabilities (L.D. No. 96), entered into effect in Italy.

The amendments under the new Decree add the United Nations principle of reasonable accommodation to the obligation of the state, regions, and local entities to guarantee services for the school inclusion of disabled students. In schools offering inclusive education, students with disabilities are full and accepted members of their school community who learn in the same educational setting as their non-disabled peers whenever appropriate. The requirement of the previous Decree that the disability be “certified” has been changed to state that the disability must be “ascertained,” thus lowering the threshold for potential student beneficiaries, who no longer will require a declaration of disability to enjoy the benefits of the legislation. (L.D. No. 96, art. 3(1)(a), 3(1)(b)(1) & (2).)

The request for ascertaining the disability condition of a student must be submitted to the National Social Assistance Institute, accompanied by a medical certificate issued by the respective local hospital containing a clinical diagnosis of the concerned student. The legislation added that when the ascertainment request concerns children who are in infancy or adolescence (eta’ evolutive—developmental age), the final decision on the disability is made by a medical board composed of specialists in children’s conditions and diseases, psychologists, and social workers. (Art. 4(1)(a) & (b).)

The new law also provides that the Group for Territorial Inclusion (Gruppo per l’Inclusione Territoriale, GIT) existing in each provincial territorial area or at the level of metropolitan cities is to be composed of educational staff experts on the topic of inclusion, reinforcing the GIT’s role in strengthening inclusion programs. The law also creates at each school institution a Work Group for Inclusion (Gruppo di lavoro per l’inclusione, GLI) to be composed of teachers, support staff, children’s mental health specialists, and other children’s specialists. The role of the GLIs is to design inclusion plans that consider broad participation by the school community. The law also promotes the active participation in the GLIs by the students themselves. (Art. 8(1)(a)(4),(8)–(10).)

L.D. No. 96 mandates the issuing of a government decree within 120 days listing additional measures for schools to take in implementing the new inclusion provisions, particularly regarding the training of school staff and creation of specific inclusion plans. (Art. 14(1).)

International: World Trade Organization Authorizes United States Countermeasures Against the European Union

8 October 2019 - 5:30pm

(Oct. 8, 2019) On October 2, 2019, the World Trade Organization (WTO) authorized the United States to apply countermeasures of nearly $7.5 billion annually against the European Union (EU) in a long-running dispute regarding subsidies given by the EU to the aircraft manufacturer Airbus. Airbus and the United States manufacturer Boeing dominate the worldwide commercial aviation industry, and Airbus is Boeing’s biggest competitor.

Background to the “Airbus Dispute” at the WTO 

The dispute began in 2004 when the United States requested consultations with the EU member states regarding subsidies to Airbus companies that the United States complained were inconsistent with WTO obligations. The WTO Panel noted in a report issued in 2010 that, among other inconsistencies with WTO obligations, “the effect of the subsidies is significant lost sales in the same market within the meaning of Article 6.3(c) of the SCM Agreement, constituting serious prejudice to the interests of the United States within the meaning of Article 5(c) of the SCM Agreement.” (WTO Panel Report at 1048.)

After the EU appealed the Panel report, the Appellate Body issued its report, which was adopted by the WTO Dispute Settlement Body (DSB) in 2011. The EU subsequently informed the DSB that it had taken appropriate steps to bring its measures into conformity with WTO obligations. The United States, however, disagreed with this claim and requested a compliance panel in 2012. The Compliance Panel report was published in 2016, which the EU appealed and the United States cross-appealed. Thereafter, the Compliance Appellate Body report was published in May 2018.

Throughout this legal process, the United States maintained that the EU was not complying with the DSB’s recommendations and rulings, and requested the right to take countermeasures in accordance with WTO rules. Similarly, since 2011, the EU has objected to the trade actions undertaken by the United States, and requested the matter to be referred to arbitration. While the arbitration was suspended from 2012 to 2018 at the request of both the United States and the EU, the United States requested in July 2018 that the arbitrator resume its work.

WTO Dispute Settlement Rules and Noncompliance

Despite being touted as an extremely efficient and effective international law dispute settlement mechanism, some critics have argued that the issue of noncompliance is a persistent problem in the WTO dispute settlement system. There have been 23 situations where one WTO member has failed to comply with a WTO ruling and another complaining WTO member has been legally justified to retaliate. One of the earliest legal battles over trade retaliation was also between the United States and Europe. In 1999, the WTO arbitrators decided that the United States could take countermeasures of nearly $200 million per year against the European Communities in retaliation for a dispute regarding the importation, sale, and distribution of bananas. The EU and United States came to a compromise in 2001 to reform the EU banana regulations and lift U.S. retaliatory measures. In this current case of noncompliance, The Economist predicts that the WTO will also authorize the EU to apply its own countermeasures on goods from the United States later this year, for subsidies that the United States provides to Boeing.

Morocco: Draft Law Introduced to Protect Whistle-Blowers in Corruption Cases

8 October 2019 - 2:30pm

(Oct. 8, 2019) On February 15, 2019, the Moroccan Minister of Administration and Public Service announced the introduction of a new draft law to protect whistle-blowers. The draft law is intended to fulfill Morocco’s commitment as a signatory to the United Nations Convention against Corruption to enact relevant domestic laws, in this case by protecting public officials who act to uncover corruption in government agencies.

The government of Morocco has initiated an ambitious program of public service reform to increase accountability and transparency in the public sector. As a result, collective efforts have been made to reinforce existing anti-corruption laws with legislation to protect public officials who report corruption from any adverse actions that threaten their employment.

Anti-Corruption Provisions in Morocco’s Criminal Code

The Moroccan Criminal Code, issued in 1963, dedicates section IV to addressing corruption-related crimes. For example, article 248 establishes the punishments for corruption offenses committed by public officials, penalizing the seeking or receiving of bribes by imprisonment from two to five years and up to 50,000 dirhams (about US$5,145) in fines. Notably, article 253 stipulates that when the corruption of a judge results in his/her imposing a criminal sentence on an accused individual, the same sentence must be applied to the corrupt judge.

Notable Past Measures to Combat Corruption in Morocco

Corruption is widespread in Morocco, in both the private sector and in government agencies. High-ranking military officers and wealthy businessmen profit from pervasive public acceptance of corrupt conduct. Therefore, the Moroccan government has accelerated its anti-corruption efforts by instituting several steps to establish a national anti-corruption program.

On May 3, 2016, the government launched a national anti-corruption strategy. The strategy incorporated an anti-corruption awareness campaign to educate the public about anti-bribery and corruption legislation.

Additionally, in an effort to spread a culture of transparency, the government has implemented measures to improve the electronic conversion of public records, aspiring to digitize all printed materials to enhance public access and oversight.

In December 2018, the Moroccan government appointed a new president for the national anti-corruption authority. This government body is tasked by Morocco’s constitution with drafting anti-corruption polices, raising awareness of high ethical standards among the citizens of Morocco, and reinforcing the values of the rule of law.

This article was written by John Al Saddy, Foreign Law Consultant, under the supervision of Foreign Law Specialist George Sadek.

Brazil: Insurance on Demand Authorized by Federal Agency Responsible for Control of Insurance Market

7 October 2019 - 5:30pm

(Oct. 7, 2019) On August 26, 2019, Brazil’s Superintendence of Private Insurance (Superintendência de Seguro Privado, SUSEP), issued Act (Circular) No. 592 (Circular SUSEP No. 592, de 26 de Agosto de 2019), which authorizes “on demand” insurance policies.  Such policies may have terms of months, days, hours, minutes, or may even lack a defined deadline, instead of one-year terms.

SUSEP is an independent agency under the Ministry of Economy that is responsible for the control and supervision of the insurance, open private pension, capitalization, and reinsurance markets.

The president of SUSEP was quoted as saying that “the market demanded this flexibility of time and, therefore, SUSEP updated the regulation to make it as flexible as possible to encourage more affordable products and to attract more Brazilian consumers to the market.”

As a result of the new regulation, it is expected that insurance companies will launch new products covering bicycles, cell phones, scooters, cars, and motorcycles.

Russian Federation: Government Shortens List of Professions in Which Women’s Employment Is Restricted

7 October 2019 - 2:30pm

(Oct. 7, 2019) On July 18, 2019, the Ministry of Labor and Social Protection of the Russian Federation issued an order shortening the list of professions in which women’s employment is restricted. (Order of the Ministry of Labor and Social Protection of the Russian Federation No. 512, On Approval of the List of Industries, Jobs and Positions with Harmful and (or) Dangerous Working Conditions, in Which the Use of Women’s Labor Is Restricted, July 18, 2019.) The ministerial order, which will take effect on January 1, 2021, lists 21 industries and 100 occupations in which women’s participation is restricted. The categorization of these occupations as dangerous for women and their inclusion on the list are based on a special assessment of employment conditions conducted in accordance with a methodology prescribed by the Ministry of Labor and Social Protection. Women are restricted from employment in certain occupations in the chemical industry, metallurgy, oil production, coal mining, manufacturing of insulation, and some others owing to the harmful effects of certain compounds on women’s reproductive health.

Currently, women’s employment is restricted in 456 occupations in 38 industries. These occupations are listed in Government of the Russian Federation Resolution No. 162, Feb. 25, 2000, which the newly issued ministerial order will replace. The need for reducing the number of occupations in which women’s employment is restricted was expressed in the National Strategy of Actions for the Advancement of Women’s Interests for 2017–2022. The Strategy states that technological advancements have allowed women to work in the professions previously deemed dangerous and have made some of the previously restricted occupations redundant.

The ministerial order is an implementing regulation for article 253 of the Labor Code of 2001, which prescribes restrictions on women’s employment in certain hazardous professions. Article 253 establishes two types of restrictions on women’s employment in dangerous occupations: prohibition and limitation. Commentators on article 253 of the Labor Code have stated that the limitation on women’s labor in the professions listed in the Resolution does not mean that women cannot work in these occupations. Rather, it means that as long as an employer creates safe working conditions for women employees that are verified and certified by the state expert commission on employment conditions and the state sanitary and epidemiological surveillance body (Rossanepidnadzor), women can be employed in those occupations.

The Labor Code also prohibits women from working in certain professions in which they are required to lift heavy weights manually. According to a 1993 government resolution, the maximum weight permissible for women to limit routinely is 10 kg. (22 pounds).

While legislators were positive in their assessment of the shortened list of restricted occupations for women, Oksana Pushkina, deputy chair of the State Duma (lower legislative chamber) Committee on Family, Women and Children, called for the abolition of the list of prohibited professions for women, stating that the list “ignores scientific and technological progress and rather protects well-paid jobs for men.”

Saudi Arabia: New Resolution Regulating the Use of Information and Communication Technology in Government Agencies

4 October 2019 - 2:30pm

(Oct. 4, 2019) On May 28, 2019, Saudi Arabia’s Council of Ministers issued a new resolution on the use of information and communication technology in government agencies. (Resolution No. 555 of 2019.) Specifically, the new Resolution regulates the sending of electronic documents and the use of government email accounts, cloud computing, government personal computers and laptops, and social media accounts by government officials. The Resolution also sets forth an array of requirements that government agency websites must follow. This Resolution replaces Resolution No. 81 of 2009 on the use of computers and information networks in government agencies.

Under section 2 of the Resolution, government agencies are required to prominently display their names and logos on their websites and adopt an Arabic version for the main interface of their website. Also, they must include their contact information, usage agreement, protection notice of intellectual property, and social media accounts on the main page. Section 3 mandates that each agency provide a minimum of one general e-mail for the agency on its website. Furthermore, section 3 stipulates that all official e-mail correspondence by government employees must be conducted via their government email accounts. Government employees are permitted to use government e-mail only for work-related matters and must include a disclaimer in email contents. In accordance with section 4, agencies must include cloud computing and innovative emerging technologies as part of their strategic plans.

Section 5 requires that government agencies comply with relevant regulations to protect the use of official electronic documents. Section 6 regulates the use of personal devices (laptops and phones). It allows government employees to perform their assigned work through their personal devices and stipulates that the use of those devices must be in conformity with restrictions set by the government agencies where the employees work. According to section 7, government employees must use electronic signature and electronic certification features in all official correspondence. Moreover, the cybersecurity they employ to protect their work must not violate National Cybersecurity regulations. Section 8 requires that government agencies follow all regulations set by competent authorities regarding the use of social media by government employees.

Finally, paragraphs 1 and 3 of section 9 dictate that government agencies must train authorized personnel on the use of information technology resources and urge government agencies to recruit qualified Saudi citizens in the field of information technology. Paragraph 2 of section 9 encourages agencies to make more use of the joint government IT network provided by the competent authorities, such as an e-government program known as “Yasser” (Facilitation). Yasser works as a link between government agency networks. Furthermore, paragraphs 5 and 6 of section 9 require that government employees follow the provisions of the new Resolution and violators be held legally accountable. Finally, paragraph 7 of section 9 stipulates that the Ministry of Communications and Information Technology must review the Resolution regulating the use of information and communication technology in government agencies every three years.

Prepared by Abdulhadi Zafar, Law Library intern, under the supervision of George Sadek, Foreign Law Specialist

Finland: Citizens’ Initiative to Expel Persons Sentenced for Sexual Crimes Delivered to Finnish Parliament

3 October 2019 - 5:20pm

(Oct. 3, 2019) On September 3, 2019, a citizens’ initiative (proposal for legislative action) to expel non-citizens who have committed sexual crimese was delivered to the Finnish parliament. The initiative was signed by 118,375 individuals (including the initiative taker, Saila Al-Jewari).

The proposal asks the Finnish Parliament to discuss and pass legislation to allow for the expulsion of any foreigner who is convicted of a sexual crime in Finland. The initiative further proposes that foreigners who are convicted of a sexual crime automatically lose any residence permit they possess, and that the Finnish Immigration Service should have the right to immediately deport the convicted person. In addition, persons who have been convicted of a sexual crime would be barred from applying for citizenship.

In accordance with the Finnish Constitution, citizens may join forces and suggest legislation, commonly referred to as a citizens’ initiative, provided that the legislative proposal is supported and signed by a minimum of 50,000 individuals who have the right to vote. (53 § 3 stk. Finnish Constitution.) The Act on Citizens’ Initiatives further specifies that the signatures must be obtained within six months of the date of the original initiative. Once the signatures are collected, the responsible initiative representative must within one year present them to the Population Register Center, which then validates the signatures and determines the eligibility of the initiative. Thereafter the responsible initiative representative must deliver the initiative to the Finnish Parliament within one year. (3, 5, 9, 11 §§ Act on Citizen’s Initiatives.)

The proposal was discussed in a preliminary debate in the Finnish Parliament on September 25, 2019, and referred to the Administration Committee for further review. A date for the presentation of a final Committee report has not been set.

International: International Law Commission Adopts ‘Sea-Level Rise in Relation to International Law’ as Topic for Long-Term Work Program

2 October 2019 - 2:30pm

(Oct. 2, 2019) In the summer of 2019, the United Nations International Law Commission (ILC) adopted the topic of “Sea-Level Rise in Relation to International Law” for its program of work.

The ILC noted that the real and potential legal implications of sea-level rise are numerous: What happens to existing low-lying coastal areas and islands that disappear or become salinated and thus uninhabitable? Would the impact of such events necessarily touch upon maritime rights? What would happen if the territory or population of a state disappeared? The ILC’s approach to the topic will be based on three papers related to (a) the law of the sea, (b) statehood, and (c) protection of persons affected by sea-level rise.

The ILC also recognized in its adoption of the topic that more than 70 states are or are likely to be directly affected by sea-level rise—and a large number of states are likely to be indirectly affected, either by displacement of peoples or a lack of resources. The International Law Association (ILA) has also recently expressed its concerns about the impacts of sea-level rise and the human rights implications. The ILA thus recently developed the Sydney Declaration of Principles on the Protection of Persons Displaced in the Context of Sea Level Rise (Sydney Declaration), which is designed to “provide guidance to States in averting, mitigating, and addressing displacement of persons occurring in the context of sea level rise, based on and derived from relevant legal provisions, principles, and frameworks.”

Background on Rising Sea Levels

The United States National Oceanic Atmospheric Administration (NOAA) reported in 2018 that “[s]ea level has been rising over the past century, and the rate has increased in recent decades. In 2017, global mean sea level was 3 inches (77 millimeters) above the 1993 average—the highest annual average in the satellite record (1993–present).”

Island nations like Kiribati, Fiji, and the Solomon Islands are especially endangered by rising sea levels, sometimes necessitating their residents to relocate to higher ground. When such relocations occur, the resulting problems inevitably require solutions to help and protect people and resolve conflicts through action under numerous areas of international law, such as those concerned with state sovereignty, migration, cultural survival, refugees, human rights, and even statehood.

Background on Selection of New Topics at ILC

The ILC is the United Nations body mandated to “initiate studies and make recommendations for the purpose of … encouraging the progressive development of international law and its codification.” The ILC selects a new topic for its program of work on the basis of criteria developed in 1998:

[T]he topic should reflect the needs of the States in respect of the progressive development and codification of international law; the topic should be sufficiently advanced in stage in terms of State practice to permit progressive development and codification; that the topic is concrete and feasible for progressive development and codification. The Commission further agreed that it should not restrict itself to traditional topics, but could also consider those that reflect new developments in international law and pressing concerns of the international community as a whole.

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