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Research & Litigation

FALQs: The Exercise of Universal Jurisdiction in Germany

In Custodia Legis - Thu, 06/30/2022 - 9:30am

The following is a guest post by Lena Fleischmann, a foreign law intern working with Foreign Law Specialist Jenny Gesley at the Global Legal Research Directorate of the Law Library of Congress. It is part of our Frequently Asked Legal Questions series.   

This FALQ examines how Germany is fighting impunity by exercising universal jurisdiction under its Code of Crimes Against International Law, demonstrating why this principle is considered such an important and effective tool in the fight against impunity. Universal jurisdiction is a way of holding the perpetrators of human rights violations accountable irrespective of where the crime was committed and whether the act has any relation to the country in question. Germany has been in the spotlight due to its efforts to pursue accountability for crimes against international law in its national courts.

Justitia. Photo by Flickr user Tim Reckmann. July 16, 2015. Used under Attribution 2.0 Generic (CC BY 2.0).

1. What is Universal Jurisdiction?

Universal jurisdiction provides a state with the authority to prosecute individuals for atrocities, such as crimes against humanity, war crimes, genocide, and torture, based on the idea of the responsibility to protect the international community. It allows for prosecution without any reference to the place of perpetration, the nationality of the suspect or the victim, or any other basis to exercise jurisdiction – potentially opening the door to lawsuits from all over the world, which is why the exercise of universal jurisdiction has been quite controversial in some instances.

2. Where is Universal Jurisdiction Codified?

Universal jurisdiction is one of the key principles codified in the German Code of Crimes Against International Law (CCAIL) (Völkerstrafgesetzbuch, VStGB). The CCAIL regulates crimes against public international law, including the criminal offenses of genocide, crimes against humanity, war crimes, and the crime of aggression. It came into force in Germany on June 30, 2002, to bring the German criminal law into accordance with the Rome Statute of the International Criminal Court. It supplements the German Criminal Code (Strafgesetzbuch, StGB) (CCAIL, art. 2). Universal jurisdiction was broadened by the Geneva Conventions and underlies other human rights treaties, such as the 1984 Convention against Torture (CAT).

3. What Other Principles Provide a Basis to Exercise Extraterritorial Jurisdiction?

Besides the principle of universal jurisdiction, there are four more key principles that provide Germany with jurisdiction to prosecute crimes. The territoriality principle provides states with jurisdiction for crimes committed on their own soil (StGB, § 3). The active personality principle provides states with jurisdiction for crimes committed by their nationals abroad, for example when the perpetrator is a German citizen (id. § 7, para. 2). The passive personality principle provides states with jurisdiction for crimes committed against their nationals while they are abroad (id. § 7, para. 1). Lastly, the protection principle provides states with jurisdiction for crimes that involve extraterritorial activities that threaten national security, among other reasons (id. § 5).

4. What Are the Jurisdictional Requirements for Exercising Universal Jurisdiction?

Germany has genuine universal jurisdiction, meaning that its laws do not require any connection between grave international crimes committed abroad and Germany before prosecutors can investigate and prosecute (CCAIL, art. 1). However, the prosecutor has discretion whether to open a case if there is no direct connection to Germany. While prosecutorial discretion is intended to be a safeguard against overly burdensome complaints, it has led to significant criticism, because the prosecutor is part of the executive branch and there is a risk that the exercise of universal jurisdiction could be abused by the nation’s highest officials. Delegates at the UN General Assembly’s Sixth Committee meeting highlighted the potential for misuse due to the lack of a universal clear definition.

5. For What Crimes Can Universal Jurisdiction Be Invoked?

The crime of genocide is set forth in section 6 of the CCAIL and is punishable with life imprisonment. A person can be found guilty of genocide if he or she

with the intention of destroying all or part of a national, racial, religious or ethnic group as such, (1) kills a member of the group, (2) causes serious bodily or mental harm to a member of the group, […], (3) inflicts on the group conditions of life calculated to bring about their physical destruction in whole or in part, (4) imposes measures intended to prevent births within the group, or (5) forcibly transfers a child of the group to another group.

The language differs slightly from the relevant provision in the Rome Statute, because it refers to any single member of any of the relevant groups rather than to the group as such.

Crimes against humanity are set forth in section 7 of the CCAIL and punish “anyone who commits (the crimes listed in section 7) in the context of an extensive or systematic attack against a civilian population.” Crimes against humanity include crimes such as willful killing, extermination, enslavement, deportation or forced transfer of persons, torture, sexual violence, enforced disappearance, and persecution. They are punishable with a minimum sentence of three years in prison and up to life in prison.

War crimes are set forth in sections 8-12 of the CCAIL. Section 8 lists war crimes against persons. Section 9 contains war crimes against property and other rights. Section 10 lists crimes against humanitarian operations and emblems. Section 11 lists war crimes in connection with the use of prohibited methods of warfare, whereas section 12 lists war crimes with regard to using prohibited means of warfare. The crimes listed in section 8, paragraph 3, section 9, paragraph 2, and section 11, paragraph 3 only apply in the context of an international armed conflict.

The crime of aggression is set forth in section 13 of the CCAIL and punishes “anyone who wages a war of aggression or commits any other act of aggression that, by its nature, gravity, and extent, constitutes a manifest violation of the Charter of the United Nations […].” On the other hand, article 8 bis, paragraph 1 of the Rome Statute defines it as “the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State.”

6. What are Some Recent Cases in Germany?

The universal jurisdiction cases in German courts have attracted a lot of international media attention and have been well documented. I would like to highlight the following:

In 2015, two Rwandan leaders of the Hutu militia group “Forces Démocratiques de Libération du Rwanda” (FDLR) were on trial at the Higher Regional Court (OLG) in Stuttgart for committing crimes against humanity in the Eastern Democratic Republic of Congo from 2008 to 2009. The FDLR had enjoyed impunity for widespread atrocities and this trial marked the first time anyone had been held accountable. President of the FDLR Ignace Murwanashyaka was accused of being responsible for crimes against humanity, in particular for killing and sexual coercion or rape. He also faced accusations of war crimes, in particular the killing, cruel or inhumane treatment, sexual coercion, or rape of a person protected under international humanitarian law, as well as forcibly recruiting child soldiers and perpetrating war crimes against property. Even though he did not commit these acts himself, he was held liable under the principle of command responsibility for failing to take action to prevent his subordinates from carrying out the acts in question. Murwanyashaka was found guilty of leading a terrorist organization but acquitted of war crimes and crimes against humanity. Ultimately, the OLG Stuttgart sentenced Ignace Murwanyashaka to 13 years and Straton Musoni, his vice president, to eight years in prison in September 2015.

In 2020, the Higher Regional Court Frankfurt (OLG Frankfurt) started proceedings against 29-year-old ISIS fighter Taha Al-J. for crimes against humanity and war crimes for causing the death of a five-year-old girl he had bought as a slave. His wife, Jennifer W., who left Germany for Iraq and joined ISIS there, was prosecuted in Munich and was sentenced to 10 years in prison. The couple was accused of beating the child and ultimately killing her by chaining her outdoors in the backyard in the heat. This was the first genocide conviction of an ISIS soldier. Ultimately, the OLG Frankfurt sentenced Taha Al-J. to life in prison and ordered him to pay roughly $57,000 in compensation to the girl’s mother.

For almost two years, the Higher Regional Court Koblenz (OLG Koblenz) held court proceedings for two Syrians who worked for the Syrian secret service. They were on trial for committing crimes against humanity and torture on more than 4,000 counts under the Assad regime in Syria from 2011 to 2012. Anwar R. was accused of being responsible for the torture of more than 4,000 prisoners in Damascus during the civil war, having aided and abetted crimes against humanity in arresting and transporting protestors to an interrogation center known for torture. The victims were hanging from the ceiling from their hands, hit, and electrocuted when they were about to fall asleep. To prove the accusations, the court relied on the so-called “Caesar files,” which are pictures taken by a Syrian military photographer, documenting the crimes. Eyad A. arrested more than 30 people who were fleeing after a protest came to a violent end in 2011 and was accused of beating them on the way to the prison and being responsible for the torture they had to endure during their confinement. The defendants tried to raise a defense under section 35 of the German Criminal Code, arguing that they and their families would have been killed if they had not followed the orders they had been given. Ultimately, the OLG Koblenz sentenced 58-year-old Anwar R. to life in prison and 43-year-old Eyad A. to four years and six months in prison. This was a historic trial because it was the first ever criminal trial for governmental torture in Syria.

7. Why is Germany Exercising Universal Jurisdiction?

The German delegation at a meeting of the Sixth Committee of the United Nations General Assembly (Legal Committee) in October 2021 stated that “[t]he message is clear: those who commit atrocities cannot feel safe. They will eventually be held accountable. There is no safe haven for perpetrators of international crimes against criminal prosecution in Germany.” The trials in Germany have symbolic power and the “pioneering work” of the judiciary might set an example for other states all over the world. The trial at the OLG Koblenz mentioned above, for example, was the first criminal trial worldwide on state torture in Syria.

Furthermore, a new legal framework on international arrest warrants against high-ranking government officials could have a deterrent effect. The United Nations has established ad hoc international criminal tribunals for former Yugoslavia and Rwanda to prosecute those responsible for genocide, war crimes, and other atrocities and serious humanitarian violations in those particular conflicts. A mechanism for investigating and prosecuting serious crimes has been set up for Syria, but its work is being blocked over concerns regarding the basis for its creation.

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Categories: Research & Litigation

Join Us on 7/21 for Our Webinar: “Regulating Remote Work During the Pandemic and After: Global Perspectives”

In Custodia Legis - Wed, 06/29/2022 - 8:00am

Join us on July 21 at 2 p.m. EDT for a webinar titled, “Regulating Remote Work During the Pandemic and After: Global Perspectives.”

Please register here.

Our upcoming July Foreign and Comparative Law Webinar Series’ entry will provide an overview of the considerations undertaken by the U.S., the European Union (EU), and selected foreign countries in regulating offsite work. The webinar will focus on rules adopted by different jurisdictions prior to the onset of the COVID-19 pandemic for work performed outside of employers’ premises, often termed as “telework” or “remote work.”

Increased access to computer and communications technology had facilitated the growth of offsite work by enabling the use of computer and communications technologies away from a central location. The COVID-19 pandemic has accelerated global employment patterns involving offsite work and has further propelled faster adoption of automation and artificial intelligence (AI), especially in work areas with high physical proximity. These developments were necessitated by restrictions imposed on the labor force in numerous countries by closures, social distancing, and vaccination requirements. The technological ability in many parts of the world minimized the impact of state-wide closures and other measures taken by states to reduce transmission of the virus.

The July webinar will examine legal developments propelled by the pandemic, in legislation and in case law, and other initiatives regarding the place of telework and remote work post COVID-19.

The webinar will be presented by Senior Foreign Law Specialist Ruth Levush. Ruth conducts research on Israeli domestic law, as well as comparative and international law, for the U.S. Congress, executive agencies and the U.S. judiciary. Her work has been cited by the U.S. Supreme Court, and her reports have been admitted into evidence as expert testimony by various U.S. federal courts. She has presented to academic and foreign parliamentary audiences on topics such as foreign development assistance and parliamentary oversight and her articles on a variety of comparative law issues have been published in legal periodicals in the U.S. and abroad. Ruth previously served as a special assistant to Justice Aharon Barak, former president of Israel’s Supreme Court, and practiced law in Israel as an attorney both in government and in private practice. She holds a Master of Comparative Law (American Practice) from The George Washington University Law School and a Bachelor of Laws (LL.B) from Tel Aviv University Law School. Ruth is a member of the District of Columbia Bar and was admitted to the Israeli Bar.

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Categories: Research & Litigation

What a Difference 17 Years Made

In Custodia Legis - Tue, 06/28/2022 - 9:23am

The following is a guest post by Alexander Salopek, a collection development specialist in the Collection Services Division of the Law Library of Congress. He previously wrote posts on Marriage Equality in the U.S., Miranda and the Rights of Suspects, Fred Korematsu’s Drive for Justice and Fred Korematsu Winning Justice.

Here is an accounting of two landmark Supreme Court cases that address LGBTQI rights and the rights of an individual to privacy in their home. With only 17 years between them, the court arrived at very different conclusions.

Bowers v. Hardwick

After working at a bar all night preparing for a discotheque being opened by the Cove, a gay bar in Atlanta, Georgia, Michael Hardwick threw a beer bottle into the trash (Murdoch & Price, 278). Keith Torick, an Atlanta police officer, saw Hardwick do that. Torick served Hardwick with a ticket for drinking in public, but Torick completed the ticket in a confusing way (Nussbaum, 77). Because of the confusing way Officer Torick completed the ticket, Torick came to Hardwick’s home to serve him with a warrant (Murdoch & Price, 278). Hardwick was not home however, and after he paid the fine, he believed the matter to be closed (Richards, 78). Weeks later, on August 3, 1982, Officer Torick came back to serve the warrant, but having been let in to Hardwick’s home somehow, found Hardwick in his own bedroom engaging in intimate behavior with another male adult (Richards, 78). The officer arrested Hardwick and his companion, not allowing them privacy to get dressed. Torick booked them making sure everyone at the police station knew the reason for their arrest. He charged them for violating a 1968 Georgia statute (Ga. L. 1968, p. 1249, § 1) making it a crime to engage in sodomy (Eskridge, 233). At this time, the American Civil Liberties Union (ACLU) was reviewing the arrest docket every day to find a test case for Georgia’s sodomy law, and Hardwick’s case looked like an option (Eskridge, 234). Hardwick’s employment working at gay bars wouldn’t be jeopardized by bringing such a case, and unlike most sodomy cases at the time, Michael Hardwick was arrested in the bedroom of his own home (Anderson, 84). After a hearing, Hardwick filed suit claiming the statute violated his right to privacy (Murdoch & Price, 278). The case worked its way to the Supreme Court.

The claim brought to the Supreme Court by Hardwick’s team was that the constitutional right of privacy extended to an individual’s private intimate associations in their own homes (Murdoch & Price, 287). The team defending the statute’s constitutionality focused on the fact that if this law were struck down, all criminal law that dealt with any sort of public decency would also need to be struck down, including coercive sexual behaviors (Richards, 80). Ultimately, the Court ruled against Hardwick, finding that there was no constitutional right to engage in homosexual sodomy. Justice Byron White delivered the opinion of the Court, joined with Chief Justice Burger and Justices Powell, Rehnquist, and O’Connor (Stone, 472). After losing his case, Michael Hardwick worked at creating beautiful fauna and flora decorations for different bars, and became a recluse (Eskridge, 264).

SCOTUS April 2015 LGBTQ 54663, Arguments at the United States Supreme Court for Same-Sex     Marriage on April 28, 2015. [Photo by Flickr user Ted Eytan. Used under CC 2.0 license.]

Lawrence v. Texas

On the night of September 17, 1998, Robert Eubanks placed a false report involving a crazed armed man in an apartment in Houston, Texas (Carpenter, 62). When the police arrived at the apartment, they were unable to locate said person with the gun, and while searching they found themselves intruding in John Lawrence’s bedroom (Law, 16). Accounts differ as to what was happening inside the bedroom, but afterwards John Lawrence and his companion, Tyron Garner, were arrested and charged under the Texas Penal Code Section 21.06, which outlawed sodomy between persons of the same sex (Eskridge, 264). When the charge was being processed it came to attention of the clerk, who happened to be gay. While discussing it at a bar they brought it to the attention of a bartender, who happened to recognize it as something that could be used to challenge Sec. 21.06 of the Texas Penal Code (Carpenter, 117). This bartender, Lane Lewis, was able to get John Lawrence and Tyron Garner excellent legal representation, because of the vested interest of the LGBT community in repealing sodomy laws, essentially legalizing LGBT romantic relationships (Carpenter, 130). After both Lawrence and Garner plead “no contest,” their attorneys filed an appeal that made it to the Supreme Court (Law, 178).

The claim that Lawrence and Garner’s attorneys made was that Equal Protection Clause of the Fourteenth Amendment protected homosexuals from the discriminatory “homosexuals only” sodomy law of Texas, and that the Due Process Clause of the Fourteenth Amendment protected all individuals from “unconstitutional burdens on the basic right of intimate life,” thus Bowers must be overruled and the statute should be struck down (Richards, 145). The State of Texas’s argument defending the statute was that it was passed in the state house, and such laws should be repealed by Texas legislators (Carpenter, 207). On June 26, 2003, the Supreme Court handed down a 6-3 decision written by Justice Kennedy, striking down the Texas statute and overruling Bowers, finding that the Due Process Clause protects individuals’ rights to liberty to express their intimate conduct with another person (Constitution Annotated, Amdt5.4.5.2.4.3 Private Sexual Activity, p. 9). Justice O’Connor had a concurring opinion that struck the law down using the Equal Protection Clause, since the Texas statute, unlike the one in Bowers v. Hardwick, applied only to homosexuals. After their case, John Lawrence and Tyron Garner retired to private life, having secured that “private and consensual conduct is within the liberty of all persons to choose without being branded as criminals” (Nussbaum, 87).

Resources

Anderson, Ellen Ann. (2006). Out of the Closets and into the Courts: Legal Opportunity Structure and Gay Rights Litigation.

Carpenter, Dale. (2012) Flagrant Conduct: the story of Lawrence v. Texas: how a bedroom arrest decriminalized gay Americans.

Eskridge, William N. (2008) Dishonorable Passions: Sodomy Laws in America 1861-2003.

Law, Janice. (2005) Sex Appealed: was the Supreme Court fooled?

Murdoch, Joyce and Price, Deb. (2001) Courting Justice: gay men and lesbians v. the Supreme Court.

Nussbaum, Martha C. (2010) From Disgust to Humanity: Sexual Orientation and Constitutional Law.

Richards, David A. (2009) The Sodomy Cases: Bowers v. Hardwick and Lawrence v. Texas.

Stone, Geoffrey R. (2017) Sex and the Constitution: Sex, Religion, and Law from America’s Origins to the Twenty-First Century.

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Categories: Research & Litigation

Law Library Presenting at 2022 AALL

In Custodia Legis - Mon, 06/27/2022 - 8:30am

Next month, two members of the Law Library team will present at this year’s American Association of Law Libraries annual conference in Denver, Colorado.

On Monday, July 18, Law Librarian of Congress Aslihan Bulut will participate in a discussion entitled “Leading Remote Teams.” In this program, panelists from various settings will talk about the challenges with leading remote teams and what leaders should do going forward to succeed in a remote and hybrid environment. Participants will learn the differences between remote, hybrid, and dispersed teams; the challenges of leading remote workers; and tips they can use to ensure the success of remote teams. This program will benefit all library employees across all library types and sizes, though managers and directors will see the most benefits from this session.

Library card catalog. Photo by Flickr user AKT.UZ: Axborot-kutubxona tizimlari. November 29, 2018. Used under CC0 1.0

On Tuesday, July 19, senior legal information specialist Jennifer Gonzalez will be participating in the presentation “When Two Worlds Collide: Using Catalogue Records as Metadata.” From the event registration page:

A recent project at the Library of Congress began using catalogue records as metadata for digital items, instead of the previous hand-curated metadata. With records back to the 1940s, the new results were inconsistent and inaccurate. The law cataloguing team began a project to review and update these records to increase access and functionality to the digital collections and searching. This session will review that project and look at ways the law cataloguing team was able to overcome this challenge.

This session will see the speakers describe some management challenges, as well as how ultimately updating skills and catalogue rules can lead to direct feedback in technical services, better access for users, and a more united library system. Participants will be able to define and distinguish the difference between catalogue records and metadata and understand why the differences are important, while being introduced to different solutions for looking at these types of problems and combining the physical world with the digital world. Technical services librarians, reference librarians, and supervisors will benefit from this presentation.

Subscribe to In Custodia Legis – it’s free! – to receive interesting posts drawn from the Law Library of Congress’s vast collections and our staff’s expertise in U.S., foreign, and international law.

Categories: Research & Litigation

Forgotten and Overlooked: Queer Trials of the Early Modern Period

In Custodia Legis - Fri, 06/24/2022 - 9:43am

The following is a guest post by Jeremy Gainey, Lead Library Technician in the Collection Services Division of the Law Library of Congress.   

For LGBTQI+ month, here are three forgotten and overlooked trials of queer people in early modern European and American history.

Katherina Hetzeldorfer

The case of Katherina Hetzeldorfer in 15th-century Germany illustrates what historian Helmut Puff has dubbed “female sodomy,” or same-sex eroticism between women. It also provides fascinating information about the role of court records during the early modern era. (Puff, 41.) This is because the court represented one of the few places where same-sex behavior could be described, since courts “represented verbally what was considered unspeakable.” (Puff, 42.) It is significant that Hetzeldorfer’s crime could not even be named, not because of how transgressive it was, but because there simply was no name for it. Hetzeldorfer’s case launched an era of violent persecution of “female sodomy” in Germany – even though this persecution revolved around behaviors and identities for which there was no term (Puff, 51-52.)

Hetzeldorfer and a female companion she presented as her sister lived in the town of Speyer from approximately 1475 to 1477, at which point her true relationship to the female companion became known. The trial of Hetzeldorfer focused on the masculinity of her behavior and appearance, which included not just dressing as a man, but also her agency in finding lovers. The testimony of Else Muter is the main surviving document recording this trial. Muter stated that Hetzeldorfer came to her home, harassed her, propositioned her, and attempted to sexually assault her; on other occasions, Hetzeldorfer had sexually harassed her in public.

Hetzeldorfer’s trial document inverts the traditional presentation of women as sexually passive because of her agency, aggression, and the fluidity with which she moved between male and female identities. Yet this agency is also problematic because women’s sexual passivity (or the perception thereof) was weaponized against her: Several witnesses who had had sexual relations with Hetzeldorfer implicated her for her masculinity but seem to have escaped legal trouble for themselves by repeatedly stating that Hetzeldorfer deceived them about her true biological sex (Puff, 44-46.)

Hetzeldorfer was drowned in the Rhine as punishment for her transgressions, even though these crimes and transgressions were never named in the court documents. This gave her the inglorious distinction of being the first lesbian known to be executed in Germany. It also made her the first victim of a death sentence in German history whose crime was not even named. The court record retains continued importance because of how it circulates around the unspeakable, unnamable crime. Puff also believes that Hetzeldorfer’s exclusion from lesbian history in the modern day emphasizes the role of “legal categories” in creating lesbian history itself. (Puff, 52.)

Sarah White Norman

Early modern England had strict laws against bestiality and penetrative sodomy, but no formal means of prosecuting non-penetrative erotic conduct, which is the category that female-female sex would fall under. Sarah White Norman and Mary Vincent Hammon’s affair became “…the only known record of sexual relations between seventeenth century female English colonists in North America.” (Borris, 107.) Therefore, this case has significance for lesbian history. Compared to the case of Katherina Hetzeldorfer, which relied on descriptions of behaviors rather than a formally named charge, this case represents a change because of how the erotic relationship was categorized: as a misdemeanor, a “lewd” behavior, and with an element of speech or the spoken word involved. The case remains significant because even though little is known about either woman, it is clear that the trial had a much more severe impact on Sarah White Norman than it did on Mary Hammon.

Sarah White Norman and Mary Hammon were initially charged with “lewd behavior…upon a bed” in 1649 and again in 1650. The official charge was “misdemeanor and lewd behavior…with divers [sic] lascivious speeches by her also spoken…” (Shurtleff, 2:163).  Mary was significantly younger than Sarah White Norman, perhaps even under the age of consent as she was probably not even 16 years old. For this reason, Mary was only admonished for the transgression. However, Sarah White Norman was charged, with her trial continued to 1650. In that year, Sarah White Norman appeared twice in the Plymouth court records: once for a charge of unclean conduct that was ultimately dropped, and again in October of that year for the original charge of lewd conduct.

In 1649, Mary Hammon was “cleared with admonition.” (Shurtleff, 2:137.) Sarah White Norman was given a warning and was forced to publicly confess to the crime. Her husband deserted the family during her trial, and what became of Sarah White Norman and her children remains a historical mystery. However, her husband’s desertion and the subsequent records of his life in England suggest that his desertion impoverished the family. The trial was therefore an indirect cause of a major decline in Sarah White Norman’s standard of living.

Although the recent attention given to Mary Hammon and Sarah White Norman in pride timelines and LGBTQ historical studies is a step forward for lesbian history, the power dynamics involved in their age discrepancy may be worthy of more nuanced discussion. Mary Hammon was old enough to be married, but not considered old enough to face the charges.

 


Frontispiece from The Life and Death of John Atherton Lord Bishop of Waterford and Lysmore Within the Kingdome of Ireland, Borne Neare Bridgwater in Somersetshire. Who for Incest, Buggery, and Many Other Enormous Crimes, after Having Lived a Vicious Life, Dyed a Shamefull Death and Was on the Fifth of December Last Past, Hanged on the Gallows Greene at Dublin, and His Man Iohn Childe…was Hanged in March Following at Bandon Bridges, Condemned Thereunto at the Assises Holden at Corke. 1641. [Newberry Library, No Rights Reserved (CC0).]

John Atherton

The case of John Atherton (1598-1640) is somewhat unusual because he was a cleric and because he and his lover, John Childe, were only the second gay couple to be executed in English history. This is partly because of some legal quirks: English common law required an establishment of proof to bring this type of charge, neither party was likely to confess to the crime because both would be criminally liable, and torture was prohibited for criminal investigations. Therefore, sodomy was rarely tried in England.

However, Atherton was a “special [target] railroaded for exemplary retribution, partly on account of political motives and purposes” due to his stature in the church. (Borris, 77.) Contemporary accounts of the incident presented him as penitent, sorrowful, and at peace with his God; his persecution and death were rendered into a morality story, a ballad shaming him, and many other accounts that are indicative of how gay history has been erased and how LGBTQI+ people have been marginalized. He became a pawn in the larger game between the competing churches in Ireland and their desire for a mandate (Borris, 77).

John Atherton was an unpopular bishop in the heavily Catholic area of Waterford and Lismore, Ireland. The church expended serious efforts to cover up his apparent affair with John Childe, his steward. However, Atherton and Childe were accused of sodomy; Atherton denied this charge publicly up until the moment of his death. Perhaps because of widespread hatred of the Irish Reformed Church, the public was galvanized and excited about his conviction and execution (Aldrich, 32).

The bigger story in Atherton’s case was how this relationship between two men, which was already unlikely to be prosecuted, was rhetorically leveraged by the Irish Reformed Church. The lengthy account of the hours leading up to his execution, as well as the “large and elegant Speech” he made from the gallows, are subsumed into the author’s narrative and his voice is heavily editorialized, if not erased entirely. (Barnard, 25.) For the cleric who met with him prior to his execution, the most important information was that Atherton alluded to having committed the sexual act, not the long and apparently moving speech he gave from the gallows.

Atherton was executed on December 5, 1640. John Childe was executed the following March, 1641. The contemporaneous documentation of his trial and execution emphasizes Atherton’s life as an immoral abdication and as a distinct departure from the church, as well as his apparent last-minute confession (King, p. [i].

Resources

BX5595 .A7 B4 The penitent death of a vvoefull sinner / By Nicholas Barnard Deane of Ardagh in Ireland.

F68 .N55 Records of the colony of New Plymouth, in New England / Printed by order of the legislature of the commonwealth of Massachusetts; edited by Nathaniel B Shurtleff. 

HQ75.7 .W488 2002 Who’s who in gay and lesbian history : from antiquity to World War II / edited by Robert Aldrich and Garry Wotherspoon.

HQ76 .H652 1985 Historical perspectives on homosexuality.

HQ76.3.G4 P84 2003 Sodomy in Reformation Germany and Switzerland, 1400-1600 / Helmut Puff.

KD371.S48 S63 1986 Sodomy trials: seven documents.

PR428.H66 S36 2004 Same-sex desire in the English Renaissance: a sourcebook of texts, 1470-1650 / edited by Kenneth Borris

PS508.W7 S54 Sinister wisdom

King, John.  1710. The Case of John Atherton, Bishop of Waterford in Ireland: Fairly Represented.  Eighteenth Century Collections Online (ECCO), Gale.  

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Categories: Research & Litigation

Research Guides in Focus: Title IX of the Education Amendments of 1972

In Custodia Legis - Thu, 06/23/2022 - 7:00am

To commemorate the 50th anniversary of Title IX, the Law Library is pleased to announce a new research guide on the topic.

Introduction page of Title IX of the Education Amendments of 1972: Resources from the Law Library, //guides.loc.gov/title-IX-law-library-resources

Title IX (pronounced “title nine”) is the popular name for a particular section of the Education Amendments of 1972. Specifically, Title IX provides: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance[.]” While Title IX is frequently associated with sex equity in school sports, the law applies to all educational opportunities at public and private schools that receive federal funding, ranging from pre-school to graduate programs.

If you would like to learn more about this law on its anniversary, we recommend visiting the guide, which includes pages on the legislation’s path through Congress, primary sources of law from all branches of the federal government, and secondary and online sources.

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Categories: Research & Litigation

The Hans Island “Peace” Agreement between Canada, Denmark, and Greenland

In Custodia Legis - Wed, 06/22/2022 - 9:00am

The following is a guest post by Michael Chalupovitsch, a foreign law specialist with the Law Library’s Global Legal Research Directorate covering Canada.

On June 14, 2022, peace was brokered between two longstanding NATO allies, Canada and Denmark. A ceremonial exchange of liquor bottles signaled the end of the long running “Whisky War” between the two nations. Canadian Foreign Minister Mélanie Joly, Danish Foreign Minister Jeppe Kofod, and Greenlandic Prime Minister Múte B. Egede exchanged bottles of Canadian maple whiskey Sortilège and Danish bitter Gammel Dansk to celebrate the agreement to divide Hans Island between the two countries, leading to the establishment of the first land border between Canada and Denmark, much to the delight of trivia enthusiasts everywhere.

Oh, Canada! [Canadian flag] by Flickr user Gavin St. Ours (Sept. 19, 2008) used under Attribution 2.0 Generic (CC BY 2.0).

[Greenlandic] Flag by Flickr user STML (Sept. 9, 2008). Used under Attribution-NonCommercial-NoDerivs 2.0 Generic (CC BY-NC-ND 2.0).

Dannebrog [Danish flag] by Flickr user
Jacob Bøtter, used under Attribution 2.0 Generic (CC BY 2.0).

The dispute began nearly 50 years ago when Canada and Denmark signed a treaty to demarcate the maritime border between Ellesmere Island in what is now the Canadian territory of Nunavut, and the Danish semi-autonomous country of Greenland (Kalaalit Nunaat).

The 1973 treaty deliberately left the border undefined through tiny, uninhabited Hans Island (Tartupaluk), which lies midway between the two countries.

Both countries claimed Hans Island for themselves. Canada claimed that the island was part of the 1880 transfer of Hudson Bay Company lands to Canadian sovereignty. Denmark claimed that the island is an integral part of Greenland and was used by Greenlandic Inuit for hunting purposes. Danish sovereignty over northern Greenland was recognized when the United States abandoned all claims to the region as part of purchase of the U.S. Virgin Islands from Denmark in 1917. Interestingly, the island lies along the route taken by Commander Robert E. Peary and Matthew Henson on their 1902 expedition in the High Arctic.

North America Polar Regions, Baffin Bay to Lincoln Sea. United States Department of the Navy, Bureau of Equipment, 1903. Library of Congress, https://hdl.loc.gov/loc.wdl/wdl.5668.

In testimony before the Canadian Senate, Professor Michael Byers of the University of British Columbia noted that:

There’s only one dispute over land in the entire Arctic, and that is a small island between Canada and Greenland named Hans Island. It is 1.3 square kilometers. It is a dispute that only involves the island and not the water or the seabed around it because those issues were resolved in a boundary treaty between Canada and Denmark in 1973. So it is a small dispute with a very close military and trading partner. Therefore, in my view, it’s almost insignificant.

We have two maritime boundary disputes, one of them to the north of Hans Island in the Lincoln Sea, which is so small as to also be nearly irrelevant.

Nevertheless, the two countries routinely sparred over Hans Island. Both the Danish and Canadian militaries occasionally sent troops to the island, raised the Maple Leaf or the Dannebrog flag, and left a bottle of Canadian Club whiskey or aquavit. There is no known reason for leaving a bottle of alcohol alongside the flag. It appears it evolved into a tradition after Denmark’s minister for Greenland, Tom Høyem, first left a bottle of cognac in 1984, welcoming visitors to the Danish Island. After a 2004 visit by Danish troops, the then-Conservative opposition accused the Liberal government of Prime Minister Paul Martin, of being so distracted by scandal that:

Denmark’s soldiers land on Canadian Arctic territory, hoist their flag, claim the island as their own, and Canada does nothing. As a matter of fact, yesterday it was the Danes who had to summon a Canadian official forward to creep forward and peep up on the Prime Minister’s position on this expropriation of our property. Incredibly, yesterday his response was simply this, and I quote, “it is not Canada’s intention to stir up a tempest…”. That summed up the Prime Minister’s shot across the bow of the Danish ship of state.

In 2005, Canadian Defense Minister Bill Graham took a helicopter to the island and visited an inuksuk that the Canadian Armed Forces erected. This visit was part of a broader effort on the part of the Canadian government to assert its sovereignty in the sparsely populated but, increasingly strategically important Canadian Arctic. This led to official protests from the Government of Denmark who summoned the Canadian ambassador, and the eventual release of a joint statement on the sidelines of the United Nations General Assembly stating:

We acknowledge that we hold very different views on the question of the sovereignty of Hans Island. This is a territorial dispute which has persisted since the early 1970s, when agreement was reached on the maritime boundary between Canada and Greenland. We underscore that this issue relates only to the island as such, and has no impact on that agreement. Firmly committed as we are to the peaceful resolution of disputes, including territorial disputes, we consistently support this principle here at the United Nations, and around the world. To this end, we will continue our efforts to reach a long-term solution to the Hans Island dispute. Our officials will meet again in the near future to discuss ways to resolve the matter, and will report back to Ministers on their progress.

The 2011-2020 Danish Arctic Strategy noted that “the disagreement is handled professionally, as it should happen between two neighboring countries and close allies.” It should be noted that while Canada and Denmark sparred over Hans Island, they continued to be close allies and conducted joint missions and exercises elsewhere, including in Afghanistan, Iraq, and Ukraine.

The dispute also led to some lighthearted jabs in the Canadian House of Commons in 2011, when the opposition to the then-Conservative government of Prime Minister Stephen Harper suggested sending a cabinet minister to be the “ambassador” to Hans Island as a form of political exile, and the minister of foreign affairs gave a tongue-in-cheek response declaring:

I will not cede sovereignty over Hans Island. We will not send an ambassador to Hans Island because Hans Island is part of this great country. We will not allow the [New Democratic Party] to sellout our sovereignty and give away an island. Shame on this member.

In May 2018, the two countries agreed to establish a joint task force to resolve the issue. As part of the negotiation process, the Inuit of the Nunavut territory had a treaty right to be included in the negotiations in accordance with the Nunavut Land Claims Agreement which states:

The Government of Canada shall include Inuit representation in discussions leading to the formulation of government positions in relation to an international agreement relating to Inuit wildlife harvesting rights in the Nunavut Settlement Area, which discussions shall extend beyond those discussions generally available to non-governmental organizations.

The June 14, 2022 agreement ultimately resolved the dispute in a rather equitable manner. Per the agreement, Hans Island will be divided along a natural ridge with roughly 60% of the area being allocated to Denmark and the remainder to Canada. The agreement also led to a delimitation of the remaining maritime border in the Lincoln and Labrador seas, leading to the establishment of what Canada and Denmark call the world’s longest maritime border. The parties hailed the agreement as a victory for the rules-based international order.

Canada-Denmark boundary agreed to on June 14, 2022, Map from Global Affairs Canada, https://www.canada.ca/en/global-affairs/news/2022/06/boundary-dispute.html. Used under Crown copyright rules, Her Majesty the Queen in Right of Canada, as represented by the Minister of Foreign Affairs, 2022.

The rights of the Inuit of both Nunavut and Greenland to freedom of movement throughout the island for “hunting, fishing and other related cultural, traditional, historic and future activities, were maintained.” Alu Kotierk, president of Nunavut Tungavik Incorporated, the representative organization of Nunavut Inuit, noted:

Canada’s sovereignty in the Arctic is only possible because of Inuit use and occupancy. The dispute between Canada and Denmark over Tartupaluk or Hans Island has never caused issues for Inuit. Regardless, it is great to see Canada and Denmark taking measures to resolve this boundary dispute.

The parties agreed to come to a “practical and workable border-implementation regime” to manage the flow of tourism and trade across Canada and Denmark’s newest land border. Perhaps a duty free liquor store will be established.

Library Collection Resources on the Arctic

Law Library of Congress Online Resources:

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Categories: Research & Litigation

Upcoming US Law Webinars – July 2022

In Custodia Legis - Tue, 06/21/2022 - 9:30am

Next month, the Law Library will present a webinar on federal legislative history that will offer a deeper dive into a bill’s lifecycle, discuss the types of documents that are considered “legislative history” resources, and then explore methods of identifying and locating these items. Our second webinar is an orientation to the collections of the Law Library, with a focus on its online resources.

More information about the Law Library’s upcoming U.S. law webinars and registration links can be found below.

July 4th fireworks, Washington, D.C. (July 4, 2008). Highsmith, Carol M., 1946-, photographer. Library of Congress Prints and Photographs Division, http://hdl.loc.gov/loc.pnp/highsm.04694.

Orientation to Legal Research: Federal Legislative History

Date: Thursday, July 14, 2022, 11:00 a.m. EDT – 12:00 p.m. EDT

Content: This webinar will discuss how to find debates, hearings, reports, and other documents that may reflect a bill’s legislative intent as it moves through Congress. The presentation will focus largely on how to find these documents through online government resources, including Congress.govgovinfo.gov, and Law.gov.

Instructor: Ann Hemmens – senior legal reference librarian. Ann holds an undergraduate degree from the University of Illinois and earned both her JD and Master of Science in Library Science from the University of North Carolina at Chapel Hill.

Register here.

Orientation to Law Library Collections

Date: Tuesday, July 19, 2022, 1:00 p.m. EDT – 2:00 p.m. EDT

Content: This webinar provides information about the Law Library’s wide range of online resources, as well as our print collections. Some of the resources attendees will learn about include the Law Library’s research guidesdigital collections, and the Guide to Law Online, among others.

InstructorMargaret M. Wood – senior legal reference librarian. Margaret holds a BA in history from Oberlin College and a Master of Science in Library Science from Catholic University.

Register here.

To learn about other upcoming classes on domestic and foreign law topics, visit the Legal Research Institute.

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Categories: Research & Litigation

Lessons Learned from the Life of Constance Baker Motley: A Conversation with Dean Tomiko Brown-Nagin to Celebrate The Law Library of Congress’ 190th Anniversary

In Custodia Legis - Mon, 06/20/2022 - 8:30am

To celebrate the Law Library of Congress’ 190th anniversary, we hope you can join us on July 14 at 3 p.m. EDT for a special webinar titled, Lessons Learned from the Life of Constance Baker Motley: A Conversation with Dean Tomiko Brown-Nagin.
Please register here.

Law Librarian of Congress Aslihan Bulut will interview Dean Tomiko Brown-Nagin about her book, “Civil Rights Queen: Constance Baker Motley And The Struggle For Equality”, and the lessons learned from Constance Baker Motley’s life and work as a civil rights attorney; the first African American, female federal district court judge; and the first African American, female New York state senator. 

Dean Tomiko Brown-Nagin. Image courtesy of Dean Brown-Nagin.

About Dean Tomiko Brown-Nagin
Tomiko Brown-Nagin is dean of Harvard Radcliffe Institute, Daniel P.S. Paul Professor of Constitutional Law at Harvard Law School, and a member of the history department. In 2019, she was appointed chair of the Presidential Committee on Harvard and the Legacy of Slavery. She is a member of the American Academy of Arts and Sciences, the American Law Institute, and the American Philosophical Society, a fellow of the American Bar Foundation, and a distinguished lecturer for the Organization of American Historians. Brown-Nagin frequently appears as a commentator in media. Her previous book, “Courage to Dissent: Atlanta and the Long History of the Civil Rights Movement” (Oxford, 2011) won the Bancroft Prize. In her latest book, “Civil Rights Queen: Constance Baker Motley and the Struggle for Equality” (Pantheon, 2022), Brown-Nagin explores the life and times of Constance Baker Motley, the pathbreaking lawyer, politician, and judge.

About the Law Library of Congress
The Law Library of Congress, established on July 14, 1832, has the primary mission to provide Congress with authoritative legal research, reference, and instruction services and access to an unrivaled collection of U.S., foreign, comparative, and international law. The Law Library of Congress also offers many services for the public, including monthly webinars concerning domestic and foreign law, an Ask A Librarian Service, and many digital collections that are accessible online, including foreign, international, and comparative law reports

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Categories: Research & Litigation

Happy Sustainable Gastronomy Day – Why “Dumpster Diving” is a Criminal Offense in Germany

In Custodia Legis - Sat, 06/18/2022 - 9:00am

The following is a guest post by Karen Ungerer, a foreign law intern working with Foreign Law Specialist Jenny Gesley in the Global Legal Research Directorate of the Law Library of Congress.

On June 18, 2022, the world will celebrate Sustainable Gastronomy Day for the fifth time. The United Nations (UN) General Assembly designated June 18 as Sustainable Gastronomy Day on December 21, 2016, in its resolution A/RES/71/246. The idea behind establishing Sustainable Gastronomy Day was to “acknowledg[e] that gastronomy is a cultural expression related to the natural and cultural diversity of the world, and reaffirm[] that all cultures can contribute to […] sustainable development,” such as by promoting local agriculture, knowledge of the origin of food, food security, nutrition, sustainable food production and food processing, and the conservation of biodiversity.

The movement towards making gastronomy sustainable is growing fast. In 2017, the year Sustainable Gastronomy Day was celebrated for the first time, there were only 169 vegan restaurants in Germany. In 2022, the number of vegan restaurants has almost doubled to 316. The focus of the movement is on the appreciation of food, regional and seasonal cuisine, processing food in a way that is not wasteful of natural resources, food waste reduction, climate protection, shortening ways of food delivery to local markets and restaurants, and social commitment.

An important aspect of sustainable gastronomy is the reduction of food waste. Food contains and uses resources such as agricultural land, water, energy, human labor, and raw materials. If food is thrown away, natural resources are wasted. Not only do estimates suggest that 8 to 10% of global greenhouse gas emissions are associated with food that is not consumed, but also that between one third to one half of the produced food worldwide is not consumed. Therefore, avoiding and reducing the wasting of food is considered necessary for ecological, ethical, and economic reasons.

Veggies at Corvallis Farmers Market. Photo by Flickr user Friends of Family Farmers. Oct. 13, 2008. Used under CC BY-ND 2.0.

Overview of the Legal Situation in the European Union

The European Commission takes this problem very seriously and seeks ways to avoid and reduce food waste. While there are no binding European Union (EU) regulations to combat food waste in place, some member states have enacted national rules on food waste. For example, since 2016, France requires retail establishments over 400 square meters to donate unsold food. However, the law does not obligate businesses to actually give it away but to offer it to charitable organizations. Recently, the Spanish government announced that it intends to pass a law that will criminalize food waste by fining grocery stores for throwing away food and obligating restaurants to offer doggy bags for customers so that they can take home leftovers.

Overview of the Legal Situation in Germany

In Germany, such a law does not exist. For many years, it has been common practice in Germany for grocery stores to voluntarily give away unsold and still edible food to food banks or other social institutions such as “Die Tafel.” Although a great number of grocery stores and restaurants donate unused food to charities, others continue to throw the food in the trash. As the food is still good to eat, many people eat out of dumpsters. It is not only people in need who take expired or damaged products from waste containers but also young people who thereby want to set an example for sustainability and against food waste. In 2005, a study found that in urban areas in the U.S., 19% of those surveyed said they had eaten food they retrieved from a dumpster at least once. The activity of searching in garbage containers at grocery stores or restaurants for edible but expired food is called “dumpster diving.

In Germany, dumpster diving is punishable as theft under section 242 of the German Criminal Code. According to this provision, “[w]hoever takes movable property belonging to another away from another with the intention of unlawfully appropriating it for themselves or a third party incurs a penalty of imprisonment for a term not exceeding five years or a fine.”

The problematic and debated question is whether movable property which is thrown away is still “foreign-owned” (Fremdbesitz), meaning whether it belongs to another person. The term “foreign-owned” is an undetermined legal term, meaning the wording in the statute is deliberately open and allows different interpretations. The intention behind undetermined legal terms is to give the judge a certain degree of discretion. In order to interpret an undetermined legal term in a statute, the judge may refer to case law on other areas of law, if necessary.

Movable property belongs to another person if it is owned by any other person according to civil law. By contrast, movable property does not belong to another person within the meaning of section 242 of the German Criminal Code if ownership never existed or if, according to section 959 of the German Civil Code, the owner gives up possession of the movable property with the intention of waiving ownership (dereliction). The will to waive ownership does not have to be expressly declared but can also be inferred from the behavior of the owner, for example by throwing away an object. Whether ownership was waived depends on the circumstances of the individual case.

According to the Superior Court of Bavaria (Bayerisches Oberstes Landesgericht, BayObLG), the worthlessness of movable property as such does not grant third parties the right to take it. Furthermore, the fact that the food was thrown into a waste container does not indicate that the owner had the intention of waiving ownership, in the opinion of the court. Rather, ownership is only waived if there is a deliberate abandonment of movable property in favor of an unspecified group. However, this is not the case when food is thrown away. The BayObLG explained that when food is thrown into a waste container that is collected by a waste disposal company, the owner only wants to relinquish ownership in favor of one other person, the waste disposal company, and not in favor of everyone. Furthermore, grocery stores or restaurants must ensure that their waste is properly disposed of, so an obvious abandonment of property cannot be presumed. The decision of the BayObLG was upheld by the German Federal Constitutional Court.

If a container is not publicly accessible or is locked and opened with force to retrieve the food, other criminal offenses might be relevant, such as aggravated theft punishable under section 243, paragraph 1, sentence 1 of the German Criminal Code if the value of the food is more than 25-50 euros (about US$26-52); trespassing punishable under section 123 of the German Criminal Code; or damage of property punishable under section 303 of the German Criminal Code.

The act of dumpster diving can be justified only if the offense was committed in a state of emergency according to section 34 of the German Criminal Code. According to that provision, “[w]hoever, when faced with a present danger to life, limb, liberty, honor, property or another legal interest which cannot otherwise be averted, commits an act to avert the danger from themselves or another person is not deemed to act unlawfully if, upon weighing the conflicting interests, in particular the affected legal interests and the degree of the danger facing them, the protected interest substantially outweighs the one interfered with.” This is the case only if the person who is dumpster diving depends on the food to survive.

After two students were convicted for dumpster diving, a new debate on decriminalizing dumpster diving in Germany was started. So far, the German Bundestag (parliament) does not seem inclined to decriminalize dumpster diving.

Dumpster Diving. Photo by Flickr user Sue Thompson. Nov. 8, 2014. Used under CC BY-ND 2.0.

Additional Resources

If you would like to know more about dumpster diving or food sustainability in general, you may wish to consult these selected resources:

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Categories: Research & Litigation

Pride Month Bibliography

In Custodia Legis - Fri, 06/17/2022 - 2:36pm

June is Lesbian, Gay, Bisexual, Transgender, Queer, and Intersex (LGBTQI+) Pride Month. It was chosen as the month we observe this celebration because of the Stonewall Uprising on June 28, 1969. Stonewall was a watershed for gay rights activism and recognition of the way people live their lives. Since then, there have been improvements in LGBTQI civil rights in the United States, such as in relation to marriage, adoption, federal employment, military service, employment, and more. However, there is always room for advancement in equal rights for all. We hope that readers and law researchers find this list of newer acquisitions (last five years) useful as they study, write, and advocate on this issue.

   Pride Parade 2019, August 5, 2019. [Photo by Flickr user GoToVan. Used under CC 2.0 license.]

Happy Pride Month!

LGBTQI Law Resources

KNS2108.M88 2021 Mutinies for equality: contemporary developments in law and gender in India / edited by Tanja Herklotz, Siddharth Peter De Souza.

KF8776.R33 2018   Race, gender, sexuality, and the politics of the American judiciary / edited by Samantha L. Hernandez and Sharon A. Navarro.

K3230.R45 W469 2021  Wessels, Janna. The concealment controversy: sexual orientation, discretion reasoning and the scope of refugee protection.

KF3467.5.P54 2022  Pierceson, Jason. Before Bostock: the accidental LGBTQ precedent of Price Waterhouse v. Hopkins.

HQ73.3.U6 N38 2021  Naylor, Lorenda A.  LGBTQ rights and social equity: dismantling discrimination and expanding civil rights

KF9325 .V64 2021 Vogler, Stefan. Sorting sexualities : expertise and the politics of legal classification.

K5194 .R47 2020 Research handbook on gender, sexuality and the law / edited by Chris Ashford, Alexander Maine.

KF4755 .M37 2020 McClain, Linda C. Who’s the bigot? learning from conflicts over marriage and civil rights law.

K670 .R69 2019 The Routledge handbook of international family law / edited by Barbara Stark and Jacqueline Heaton.

KDK170 .L39 2021 Law, responsibility, and vulnerability :  state accountability and responsiveness /  edited by James Gallen and Tanya Ni Mhuirthile.  (has chapters devoted to LGBTQ law)

K3242.3 .T46 2021 Temperman, Jeroen. Religious speech, hatred and LGBT rights: an international human rights analysis.

K3242.3 .R35 2020 Raj, Senthorun Sunil. Feeling queer jurisprudence: injury, intimacy, identity.

KHD3009.G38 P437 2020 Pedra, Caio Benevides. Direitos LGBT: a LGBTfobia estrutural e a diversidade sexual e de gênero no direito brasileiro.

K5194 .R47 2020 Research handbook on gender, sexuality and the law / edited by Chris Ashford, Alexander Maine.

KNX2467.G39 L44 2019 LGBT o meguru hō to shakai / Taniguchi Hiroyuki.

KNX1326 .F87 2019 Fuse, Naoharu. Kaisei Josei katsuyaku suishinhō tō to kakushu harasumento taiō: 2019-nen hōkaisei taiō pawahara, sekuhara, matahara, patahara, LGBT jitsumu taiō.

KF380 .D74 2019  Drenner, Karla. Social jurisprudence in the changing of social norms: emerging research and opportunities.

KJC5144.W65 S86 2019 Sundstrom, Lisa McIntosh. Courting gender justice: Russia, Turkey, and the European Court of Human Rights.

KD8075 .S358 2019 Scott, Catherine. To deprave and corrupt: obscenity battles in British law and culture.

KHD5586 .S268 2019 Santana, Leonardo. O Estado laico no confessionário: o debate sobre a criminalização da homofobia e da transfobia.

KF4754.5 .L495 2018 LGBTQ+ (1923-2017) / editor, Michael Shally-Jensen, PhD.

KF4754.5 .A93 2018 Adler, Libby S. Gay priori: a queer critical legal studies approach to law reform.

KSS210.7.G38 I83 2018 Isaack, Wendy. “Let posterity judge”: violence and discrimination against LGBT people in Malawi.

KHD2009.G38 C37 2018 Cardinali, Daniel Carvalho. A judicialização dos direitos LGBT no STF: limites, possibilidades e consequências.

LC212.92 .B52 2018 Biegel, Stuart. The right to be out: sexual orientation and gender identity in America’s public schools.

KTW420.6 .K56 2018  Kintu, Deborah. The Ugandan morality crusade: the brutal campaign against homosexuality and pornography under Yoweri Museveni.

Subscribe to In Custodia Legis – it’s free! – to receive interesting posts drawn from the Law Library of Congress’s vast collections and our staff’s expertise in U.S., foreign, and international law.

Categories: Research & Litigation

An Interview with Lena Fleischmann, Foreign Law Intern

In Custodia Legis - Thu, 06/16/2022 - 9:00am

Today’s interview is with Lena Fleischmann, a foreign law intern working with Foreign Law Specialist Jenny Gesley in the Global Legal Research Directorate of the Law Library of Congress.

Lena Fleischmann, foreign law intern. Photo by Lena Fleischmann.

Describe your background.

I grew up in a small town in northern Bavaria and moved to Munich, Germany, when I was 12 years old. After finishing high school, I moved to Augsburg to study law. For the past year, I have been living in Washington, D.C., pursuing my master’s degree (LL.M.) in international and comparative law at The George Washington University Law School and Georgetown Law. After graduation in May 2022, I moved back to Germany to finish my education.

What is your academic/professional history?

I recently graduated from The George Washington University Law School with an LL.M. in international and comparative law. I also took an international law course at Georgetown Law. I started studying law at the University of Augsburg in 2017 and am now planning to take the German bar exam in 2023. I have completed several internships so far, mostly in the criminal law sector. During my internship at a law firm in New York City, I got to write several blog posts for their Fashion Industry Law Blog.

How would you describe your job to other people?

I am doing my internship remotely from my home office in Germany. I assist my supervisor, Jenny Gesley, with delivering high level expertise on the law of German-speaking jurisdictions and the European Union. For that purpose, I write Global Legal Monitor articles and blog posts about recent, interesting topics for In Custodia Legis.

Why did you want to work at the Law Library of Congress?

I was (and still am) impressed by the Law Library’s wide range of areas of responsibility and wanted to gain a better insight and understanding. I like writing about what is happening in the world or discussing important matters that have been going on for a while to raise awareness – not only for people in the field of law but everybody. It is very exciting to be a part of a federal government agency that belongs to the legislative branch of the U.S. government.

What is the most interesting fact you have learned about the Law Library of Congress?

The fact that someone must always be available in the Law Library reading room while Congress is in session in case they need assistance or a specific book, no matter how late it gets.

What’s something most of your co-workers do not know about you?

Before I decided to study law, I wanted to become a police officer. I think I always wanted to contribute and to make a change in the world, but ultimately I decided to do it by being an attorney and helping my clients instead of patrolling the streets and investigating crimes – and I am happy I did so.

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Categories: Research & Litigation

When a Bee Is a Fish in the Eyes of the Law

In Custodia Legis - Wed, 06/15/2022 - 7:00am

Last month, a California court held that for the purpose of receiving legal protection under the California Endangered Species Act (CESA), the act’s definition of “fish” is broad enough to include bees. At first blush, this decision may cause some head-scratching, so let’s begin with a brief background of the laws at play in this case.

bumble bee, my favourites of the pollinators. Photo by Flickr user
Deborah Freeman (July 19, 2020). Used under Attribution-ShareAlike 2.0 Generic (CC BY-SA 2.0).

CESA’s Procedures and Trial Court’s Decision

CESA is the California state equivalent to federal legislation known as the Endangered Species Act (ESA). According to the California Department of Fish and Wildlife (Department), “[p]lant and animal species may be designated threatened or endangered under CESA after a formal listing process by the California Fish and Game Commission.” A private party, such as an individual or organization, may initiate the listing process by submitting a petition to the Commission.

In 2018, conservation organizations petitioned the Commission to list four subspecies of bumble bees as endangered under CESA. The matter was then forwarded to the Department, which issued a report in support of listing these bees as endangered and referred the issue back to the Commission. The Commission subsequently found that these four bumble bee subspecies qualified as candidate species under CESA. In this case, the term “candidate species” refers to a species that the Commission is reviewing “for addition to either the list of endangered species or the list of threatened species[.]” In its findings, the Commission further directed the Department to submit a report outlining whether these species should be formally listed as endangered or threatened.

After the bumble bees were listed as candidate species, several agricultural industry organizations sued the Commission and the Department to set aside the listing decision. This matter was heard by a trial court, which granted the industry groups’ request and entered an order to that effect on November 13, 2020.

Appellate Court’s Analysis

The appellate court’s decision focused on statutory definitions under California’s Fish and Game Code, and the legislative history of amendments to those laws over the past several decades. In particular, the court reviewed the definitions of endangered species (section 2062), threatened species (section 2067), and candidate species (section 2068).

Each of these statutes provides that covered species include “native species or subspecies of a bird, mammal, fish, amphibian, reptile, or plant[.]” This portion of the code, however, does not elaborate on what qualifies as a bird, mammal, fish, and so forth. Based only on the qualified species listed above, bees and other land-dwelling invertebrates would not receive protection under the law. The court looked elsewhere in the Fish and Game Code for definitions to help clarify whether bees may qualify for protection under CESA. Importantly, the section 45 of the code defines “fish” as “a wild fish, mollusk, crustacean, invertebrate, amphibian, or part, spawn, or ovum of any of those animals.” (Emphasis added). According to the court, the term “invertebrate” under the definition of fish includes both aquatic and terrestrial invertebrates, such as bees. The court ultimately held as follows:

[W]e agree with the Department and the Commission that the Commission may list any invertebrate as an endangered or threatened species under 2062 and 2067, if the invertebrate meets the requirements of those statutes, and thus may also designate any invertebrate as a candidate species under section 2068, if the species or subspecies may otherwise qualify as an endangered or threatened species.

According to the case’s docket, as of the date of this posting, no party has submitted filings to appeal the court’s decision.

For more information about CESA’s listing process, helpful step-by-step guides and articles are available online.

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Categories: Research & Litigation

Happy Birthday, U.S. Army!

In Custodia Legis - Tue, 06/14/2022 - 2:22pm

Today is the 247th birthday of the U.S. Army and Flag Day in the United States. We have covered the development of the U.S. Army and the history of Flag Day and the Flag Code in previous years. This year, we decided to celebrate with an update to our Military Legal Resources collection.

Screenshot of link to Military Legal Resources digital collection

 

This collection comes from the digitization of some of the U.S. Army Judge Advocate General’s Legal Center and School’s physical collection from the William Winthrop Memorial Library. The Library of Congress has made it available for many years, but the collection found its new home this past February. We have created several finding and navigation aids, along with including the contextual information from the previous website, to make finding the information and collection items easier.

Screenshot of the Articles & Essays section that contains the finding aids.

These finding aids mirror the organization of the collection before its move to the new site, and contain contextual information for the collections and items. The Index to Collections contains links to many of the popular collections within. We have also updated the collection with a few new items, particularly from the Civil War and will continue to add to the collection as we digitize more items.

Happy birthday, U.S. Army!

 

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Categories: Research & Litigation

Fred Korematsu Winning Justice

In Custodia Legis - Mon, 06/13/2022 - 2:37pm

The following is part 2 of a guest post by Alexander Salopek, a collection development specialist in the Collection Services Division of the Law Library of Congress. He previously wrote posts on Marriage Equality in the U.S. and Miranda and the Rights of Suspects.  

This post is a continuation of Fred Korematsu’s Drive for Justice.

After Fred Korematsu lost his case, the war soon ended, and with it the internment camps. Fred slowly rebuilt his life, marrying Kathryn Pearson, and having two children, Karen and Ken. His family settled in San Lorenzo, California. Fred spoke rarely of his court case; both of his children found out about it at school before they had discussed it with their father (Banni, 127). In 1969, Korematsu spoke about his experience to a class on Berkley’s campus. Ultimately, he did not enjoy that experience, possibly from remembering unpleasant moments from his life, and didn’t speak publicly about it again for 13 years (Banni, 130).

It is important to state that during his case, Fred Korematsu did not receive support from the Japanese American Citizens League (JACL) because they did not want to be seen as “hostile to the war effort” (Cole, 167). Later they advocated for internees to receive compensation for lost property, which Congress passed in 1948. By 1969, many Japanese Americans who were coerced to renounce their citizenship had it reinstated, following advocacy by the ACLU (Cole, 1968). By 1980, as a result of a bi-partisan vote, the Commission on Wartime Relocation and Internment of Civilians was formed. The commission was charged with reviewing the effects of Executive Order 9066 and the remedies to these effects (Personal Justice Denied, 1). This was the culmination of activism from Japanese Americans fighting for justice.

Fred Korematsu, Feb. 26, 2015 [Photo by Flickr user VCU News Service. Used under CC 2.0 license.]

With all these actions taking place, something fascinating happened when Peter Irons, a professor, was researching government documents to write a book about the Japanese internments. He found evidence of the government having presented false information to the Supreme Court over the necessity of the internments (Yamamoto, 138). Essentially, the War Department issued a report in which it used a ship-to-shore communication to justify the mass internment of people of Japanese descent, and upon review by the FBI and FCC, these claims were found to have no evidence to back them up (Irons, 280-281). Thus, through the revision of a footnote that seemingly relied on said War Department report, the government lawyers didn’t make clear that they were aware there were other reports that disagreed with the War Department report (Banni, 141-145). With this decision, the Court then ruled against Korematsu because the justices believed there was a military necessity.

When Fred Korematsu was presented with this information, he asked Peter Irons to be his lawyer, which ultimately lead to a coram nobis proceeding (Banni, 149). Coram nobis relief, “is available to correct errors in a complete miscarriage of justice and where there are exceptional circumstances” (Yamamoto et. Al., 275). This time Fred Korematsu was supported. When presented with the information and after testimony, the court vocally granted the verdict-the relief was granted, and Fred Korematsu’s conviction was vacated (Yamamoto et. al., 267). In 1988, the Civil Liberties Act (Public Law 100-383) was enacted. This law granted $20,000 in compensation for the actions the U.S. government took against people of Japanese ancestry during WWII. After his conviction was vacated, Fred Korematsu talked more openly about his case and his experiences. In 1998, Fred Korematsu was awarded the Presidential Medal of Freedom, the highest civilian honor. In 2004, Korematsu filed an amicus brief with the Supreme Court on Rasul v. Bush 542 U.S. 466 (2004), about the detainees in Guantánamo. In his brief, he reflected on his own experiences and implored the court to critically examine the claims of national security interest (Cole, 170).

Bibliography

KF228.K59 B36 2015 Bannai, Lorraine K. Enduring Conviction: Fred Korematsu and his quest for justice.

[Japanese American] Case Files.” National Archives and Records Administration, National Archives and Records Administration, 15 Aug. 2016. Accessed June 8, 2022.

D769.8.A6 A5 1946c United States. War Relocation Authority. Wartime exile: the exclusion of the Japanese Americans from the West coast, United States Department of the Interior, J. A. Krug, Secretary, War Relocation Authority, D. S. Myer, Director.

Report of the Commission on Wartime Relocation and Internment of Civilians. “Personal Justice Denied.” June 1983. Accessed June 9, 2022.

KF384 .C65 2017  Cole, David. Engines of liberty: the power of citizen activists to make constitutional law.

KF7224.5 .C64 1985 Collins, Donald E. Native American aliens: disloyalty and the renunciation of citizenship by Japanese Americans during World War II. 

KF7224.5 .I76 1993 Irons, Peter. (1983) Justice at War: the story of the Japanese American internment cases.

KF7224.5 .Y36 2018 Yamamoto, Eric K. (2018). In the shadow of Korematsu: democratic liberties and national security.

KF7224.5 .R33 2013 Yamamoto, Eric K. Chon, Margaret, Izumi. Carol L., Kang, Jerry, and Wu, Frank, H. Race, rights, and reparation: law and the Japanese internment. Second edition.

Young Adult Resources

D769.8.A6 K67 1998 Alonso, Karen. Korematsu v. United States : Japanese-American internment camps.

KF228.K59 A87 2017 Atkins, Laura & Yogi, Stan. Fred Korematsu speaks up.

D769.8.A6 C4 1993 Chin. Steven A. When justice failed : the Fred Korematsu story.

KF228.K59 G65 2006 Gold, Susan Dudley. Korematsu v. United States : Japanese-American internment.

KF228.K59 K46 2013 Kenney, Karen Latchana. Korematsu v. the United States :  World War II Japanese-American internment camps.

Subscribe to In Custodia Legis – it’s free! – to receive interesting posts drawn from the Law Library of Congress’s vast collections and our staff’s expertise in U.S., foreign, and international law.

Categories: Research & Litigation

Congress.gov – More on Staff Work and the June 2022 Release

In Custodia Legis - Mon, 06/13/2022 - 12:39pm

In March, I devoted a post to information about the work various staff members at the Library of Congress do for Congress.gov. The post included contributions from Office of the Chief Information Officer (OCIO) and Law Library staff and, at the time, I promised we would have a second post with information about the work our colleagues in the Congressional Research Service (CRS) do for Congress.gov. Here is that post.

Brandon Toth came to CRS in 2019 after several years working on public policy and issue advocacy in the nonprofit sector, he provides bill analysis for the Legislative Analysis Services Section:

As a CRS legislative analyst I interpret and summarize legislation at various stages of the legislative process. The bill summaries I write within my areas of expertise must be guided by the bill’s text but also readily understood by a wide public audience. Our team of analysts also enhance the legislative data available on Congress.gov by determining relationships between measures and classifying measures by policy area.

Jennifer Manning has been a CRS librarian for 31 years and teaches congressional staff about congressional documents. I have always enjoyed my interactions with her and very much appreciate her insights at our meetings on Congress.gov:

Working with the Congress.gov team has given me great insight into the complexity of our legislative process. There are a lot of expert, dedicated people across the Hill working with a lot of moving parts, all trying to meet the needs of different users with tight deadlines, without eroding the authenticity of the data.

Kimberly Ferguson has been part of the Library’s Congress.gov project for 12 years, and has provided training and help desk support for predecessor systems since the early 1990s:

My role is to lead a team of CRS legislative process and congressional data SMEs (subject matter experts) to serve our House, Senate, GPO, and CBO data partners. Our Congress.gov team is responsible for managing the exchange of data among legislative branch agencies. We are extremely interested in widespread adoption of legislative data standards because our workflows have lots of data dependencies. The advancements in access to data since my first librarian job for Congress, in the early 1990s, is astounding. Being a part of the team responsible for making Congress.gov available to Congress is on par with winning the lottery. Great partnerships with legislative clerks, parliamentarians, and technology experts in the House, Senate, GPO, and CBO enable our team to deliver more-and-more accurate and transparent congressional data.

Elizabeth is relatively new to CRS, having just finished her first year. She is a data analyst, working on the Congress.gov website:

My role as a data analyst on Congress.gov allows me to work with a team of amazingly talented people who maintain and enhance the country’s repository of congressional data, and work behind the scenes to help the librarians and researchers on the front lines serving Congress directly. Our work seeks to ensure the Congress.gov website both functions as expected and provides the information needed in a way users can understand. Any given day presents a variety of tasks: data analysis, quality control and troubleshooting, workflow development, and customer service, and contributing to special projects.

The June 2022 Congress.gov release is a behind-the-scenes improvement of infrastructure that helps the site’s functionality.

Subscribe to In Custodia Legis – it’s free! – to receive interesting posts drawn from the Law Library of Congress’s vast collections and our staff’s expertise in U.S., foreign, and international law.

The United States Capitol on a June morning taken from the Library of Congress Thomas Jefferson Building / photograph by Andrew Weber.

Categories: Research & Litigation

Law Library of Congress Studies on Firearms, Weapons, and Gun Control

In Custodia Legis - Fri, 06/10/2022 - 8:00am

A search of legal reports produced by the Law Library of Congress has identified multiple reports on gun laws around the world. The reports date back to the early 1960s, reflecting the interest in the topics of “firearms” OR “weapons” OR “gun control” OR “weapons industry” by Law Library of Congress patrons over the years. As stated on our website,

The Law Library of Congress produces reports on foreign, comparative, and international law in response to requests from Members of Congress, Congressional staff and committees, the federal courts, executive branch agencies, and others… These include multinational reports, providing individual country surveys and comparative analysis, as well as reports dealing with the laws of particular countries.

Multinational Reports on Regulation of Firearms

Reports Covering Multiple Aspects Related to Firearms

Reports prepared by the Law Library of Congress staff over the years address a variety of issues in relation to gun rights and regulations in countries of varying constitutional frameworks, cultures and traditions, forms of government, as well as law enforcement powers and health care systems.

The most recent Law Library of Congress multinational report discussing Firearms-Control Legislation and Policy was published in February 2013. The report examines the different legal approaches taken by 18 countries and the European Union with regard to various activities involving firearms.

The 2013 report contains a comparative analysis and individual country surveys for Australia, Brazil, Canada, China, Egypt, Germany, Great Britain, Israel, Japan, Lebanon, Mexico, New Zealand, Norway, Russia, SingaporeSouth Africa, Spain, and Switzerland.

The individual surveys contained in the 2013 report cover relevant constitutional provisions, laws, regulations, and directives in addition to statistical and other information on gun control and licensing requirements. Many describe legislative history and trends, which in some cases were influenced by rising crime levels or incidents of mass shootings. The report further contains a bibliography of selected English-language materials.

A previous multinational report, Firearms Regulation: A Comparative Study of Selected Foreign Nations, was published in 1994. In addition to individual jurisdictional surveys, a summary is provided that includes data on rates of homicides with firearms, types of firearms prohibited for the general public, restrictions on granting permits for possession of firearms (commonly age, former criminal offenses, mental problems, alcohol, drug use, and safety tests), and maximum penalties for firearm offenses in the countries surveyed. The jurisdictions covered by the 1994 report are Australia, Canada, China, the Czech Republic, European Union, Germany, Great Britain, Greece, India, Israel, Italy, Japan, Malaysia, Mexico, the Netherlands, Poland, South Africa, Sweden, and Switzerland.

A 1981 Law Library of Congress report, Gun Control Laws in Foreign Countries, updates information on countries included in a similarly-titled report published in 1976, with additional countries, some of which no longer exist, together covering: Argentina, Australia, Austria, Belgium, Bulgaria, Burma, Canada, Chile, Czechoslovakia (which ceased to exist on December 31, 1992, and was succeeded by two new states: the Czech Republic and Slovakia), Egypt, France, Germany, Great Britain, Greece, Hong Kong (which returned to China on July 1, 1997, and currently constitutes a special administrative region of China), India, Israel, Italy, Japan, Mexico, Netherlands, Norway ,Poland, Romania, Singapore, Sweden, Switzerland and the USSR (which ceased to exist by December 1991 and was succeeded by the Russian Federation).

The earliest published multinational report on gun control legislation currently available on the Law Library of Congress website appears to be Handgun Laws in Foreign Countries, published in 1973. This report, which includes surveys of some of the countries reviewed in the later 1981 and 1976 publications, addresses relevant legislation that applied in 1973.

Reports on Specific Aspects of Firearms Regulation

The following multinational reports included in our collections may also be relevant in reviewing foreign countries’ laws related to firearms:

Mental Health Regulations and Licensing Restrictions (2013), surveys the mental health care systems in 14 jurisdictions, with special attention to mental health background check requirements for licenses for specific activities, including driving and owning firearms. The report includes individual jurisdictional surveys for: Argentina, Canada, China, England, European Union, France, Germany, Israel, Japan, Mexico, New Zealand, Norway, Russian Federation, and South Africa.

Regulation of Ammunition (1992), addresses access to ammunition under laws that applied in 1992 in China, Egypt, Germany, Iran, Japan, Thailand, and Turkey.

Government Inspection of Firearms to Assure Safety Features: Countries of the Far East (1965), provides information on the extent, if any, of the authority of government officials to inspect firearms under the laws governing in Japan, Korea, and Thailand in 1965.

Individual Country Reports on Regulation of Firearms

The Law Library of Congress’s collection of legal reports also contains multiple single-country reports on issues related to firearms. The following list is arranged by country and publication dates:

Australia: Storage of Assault Weapons And Ammunition (2013)

Brazil: Gun Control Under the Laws of Brazil (1968)

Canada: Gun Control in Canada (1994)

China: Possession of Fire Arms in Communist China (1962); Registration of Firearms in Communist Countries (1963); Gun Control Legislation of the People’s Republic of China (1971; 1973; 1981)

Colombia: Proposed Amnesty Program for Members of Illegal Armed Groups (2003)

Israel: Registration And Taxation of Guns Owned by U.S. Citizens in Israel (2007); Israel: Gun Control Legislation and Policy: a Synopsis (2012)

Japan: Law Controlling Firearms in Japan (1965; 1968); Japan: Gun Control Law and Statistics on Deaths by Firearms (1981)

Lebanon: Gun Laws of Lebanon (1976)

Malaysia: Gun Control (1971; 1973; 1976; 1980)

Mexico: Right to Bear Arms by Foreigners (2011)

North Korea: The Registration of Firearms in North Korea (1962, 1963)

Republic of KoreaRepublic of Korea Gun Control Laws (1997)

Singapore: Gun Control (1971; 1976);

Thailand: Gun Control (1971)

United States: Gun Ownership and the Supreme Court (2008)

Global Legal Monitor Articles

For updates on legislation and legal reforms in the area of firearms and gun control, you can read and subscribe to receive new articles on the topic of “firearms” in the Law Library’s Global Legal Monitor .

The Global Legal Monitor contains numerous articles on issues such as a Mexican amendment to let certain foreign government agents possess firearms while on duty (2015); Thai amendments designed to keep pace with developments in weapons technology and changes (2017); new criteria for possession and carrying of firearms in Israel (2017); national firearms amnesty in Australia (2017); and firearms buyback program in New Zealand (2019).

Subscribe to In Custodia Legis – it’s free! – to receive interesting posts drawn from the Law Library of Congress’s vast collections and our staff’s expertise in U.S., foreign, and international law.

Categories: Research & Litigation

Ålandic Regional Citizenship or the Right of Ålandic Domicile

In Custodia Legis - Thu, 06/09/2022 - 9:00am

Today, June 9th, marks the Åland National Day, självstyrelsedagen, celebrated in honor of the law that made it independent in 1921: the Autonomy Act of 1920. Today, celebrations of this event includes eating Ålandic pancake (Ålandspannkaka).

Åland, Photo by Flickr user Susanne Nilsson. (Aug. 2, 2012), used under Attribution-ShareAlike 2.0 Generic (CC BY-SA 2.0).

Åland is made up of more than 6,700 islands that form an archipelago in the Baltic Sea between Sweden and Finland. Its inhabitants speak Swedish but are Finnish citizens known as Ålänningar. There are approximately 30,000 residents of Åland.

While it may be a great destination for a summer celebration of a traditional Scandinavian midsummer, there are laws that limit how and when you can move there. Specifically, to own land in Åland you need the right of domicile, the topic of this blog post.

The Right of Domicile

The right of domicile (Åländsk hembygdsrätt), also known as Ålandic regional citizenship, is part of the Ålandic Autonomy Act (Självstyrelselag (1991:71)) and is further regulated in law (Landskapslagen (2015:99) om åländsk hembygdsrätt and Landskapslagen (2015:100) om hembygdsrättsförfaranden; with its legal history available here).

The right of domicile is central to the Ålandic identity and provides Ålanders (Ålänningar) a right to vote, stand for election, and own land in Åland. Ålandic citizens who have lived in Åland as children before the age of 12 are exempt from the otherwise mandatory conscription with the Finnish Defence Forces, as Åland is demilitarized and neutral. (Åland Convention.)

Background -The Åland Question

The right of domicile is a part of the minority protection that Ålänningar have as a result of Åland historically being populated by a Swedish-speaking population that sought to be returned to Sweden in 1917-1919. This led to the “Åland Question” after Ålandic representatives petitioned the Swedish king to become part of Sweden, and the Ålandic Parliament refused to accept the Finnish Act of Independence. As a result, the contentious issue came before the League of Nations, which determined that Åland belonged to Finland,  and declaring it demilitarized and neutral. (Convention Relating to the Non-Fortification and Neutralisation of  the AAland Islands.)

Requirements for Ålandic Citizenship

As prescribed in the Act on Ålandic Right to Domicile (Landskapslagen (2015:99) om åländsk hembygdsrätt), to receive Ålandic citizenship a person must:

  • hold Finnish citizenship,
  • have sufficient proficiency in the Swedish language, and
  • reside in Åland for a minimum of three consecutive years if the person has previous held Ålandic citizenship, has previously resided in Åland for five years, or their parents have held Ålandic citizenship, or
  • reside in Åland for a minimum of five consecutive years.

Proposals to remove Finnish citizenship as a pre-requirement for Ålandic citizenship are brought forth from time to time. However, such a change is viewed as problematic as this was a specific condition in the 1921 League of Nation decision.

Requirements for Finnish Citizenship

To acquire Finnish citizenship , a precondition for Ålandic regional citizenship, a person must be born to Finnish parents. (9 § Kansalaisuuslaki.) If born outside of Finland either their mother has to be Finnish or their Finnish father must be married to the non-Finnish mother. (Id.)

A foreigner may be granted Finnish citizenship through an application for naturalization if she or he meets the following requirements specified in 13 § Kansalaisuuslaki:

 1) has turned 18 or prior to 18 entered into marriage,

2) has or has had his or her actual residence and domicile in Finland (residence requirement),

  1. a) for the last five years without interruption (uninterrupted residency), or
  2. b) seven years after that he or she has turned 15 year old, of which the last two years without interruption (acquired residency),

3) has not committed a criminal act other than such that is punishable with a fine and also has not been issued a restraining order (inviolability requirement),

4) has not materially neglected child support or alimony obligations or its payments obligations under public law,

5) can reliably account for his or her livelihood,

6) has a satisfactory proficiency in spoken and written Finnish or Swedish or instead has equivalent knowledge of Finnish or Finnish-Swedish sign language (language skill requirement).

Deviations from the general conditions for naturalization can only be made on the grounds specified below.

A person is not naturalized even though he or she fulfills the conditions for naturalization, if there is reason to suspect that naturalization endangers the security or public order of the state or if the main purpose of acquiring citizenship is to use benefits relating to Finnish citizenship without intent to settle in Finland or if naturalization for some other compelling reason, on the basis of an overall assessment of the applicant’s situation, is contrary to the interest of the State.

Loss of Ålandic Citizenship

A person who permanently moves from Åland for a minimum of five years loses his or her right of domicile and cannot stand for election, vote, or buy land in Åland. (8 § Landskapslagen (2015:99) om åländsk hembygdsrätt.) Upon return to Åland, the person would be eligible for Ålandic citizenship anew if the conditions mentioned above are met. A person also loses Ålandic citizenship status if he or she loses Finnish citizenship.

Not having a right to domicile does not mean a Finn or Swede could not move to Åland or live there. Foreigners and non-Ålandic Finns can rent property or own land in designated areas.

According to reports, even Russia holds land in Åland, being a piece of beach property that the Soviet government acquired in 1947 when it acquired all property held by Germans in Finland, per conditions specified in the Paris Peace Treaty. At that time the beach property was owned by a German citizen. According to reports, the property has most recently been managed by the Finnish Ministry of Foreign Affairs

Legal Resources Online Pertaining to Åland:

Law Library of Congress Online Resources:

Law Library Resources from the Law Collection:

Library of Congress Collection Items:

Happy Åland Day!

Subscribe to In Custodia Legis – it’s free! – to receive interesting posts drawn from the Law Library of Congress’s vast collections and our staff’s expertise in U.S., foreign, and international law.

 

Categories: Research & Litigation

Join Us on 6/28 for a Lunch and Learn Webinar: “An Overview of Public International Law”

In Custodia Legis - Wed, 06/08/2022 - 9:30am

On Tuesday, June 28, 2022, at 1 p.m. EDT, legal reference librarian Louis Myers will present our next Lunch and Learn Webinar, “An Overview of Public International Law.”

Please register here.

Flyer announcing upcoming Lunch and Learn Webinar, An Overview of Public International Law, created by Kelly Goles.

This webinar will provide an introduction to the five sources of international law, as defined by article 38 of the Statute of the International Court of Justice and the Restatement 3d: Foreign Relations Law of the United States. Both of these are considered prominent authorities on the creation and evolution of public international law.

The presentation will provide an introduction to treaty practice and international conventions, international customary law and its relationship to international law, general principles of law as they relate to international law, and a final category covering other evidence for international law. The presentation will also briefly discuss the inclusion of international governmental organizations, such as the United Nations, within the framework of international law.

Louis Myers holds a BA in history from Kent State University, a JD from the University of Idaho College of Law, and an MLIS from Kent State University.

Categories: Research & Litigation

An Interview with Katie Colson, Junior Fellow

In Custodia Legis - Tue, 06/07/2022 - 10:00am

Today’s interview is with Katie Colson, a Junior Fellow working on metadata remediation for the Law Library of Congress blog, In Custodia Legis.

Katie Colson. Photo by Katie Colson.

Describe your background.

I am originally from a small town in northern Idaho called Bonners Ferry. I am currently living in Urbana, Illinois, while I am a graduate student. My journey into the world of libraries began with a part-time job at the public library in Bonners Ferry during high school. I decided on a career in libraries while I was pursuing a bachelor’s degree in English literature at the University of Idaho, and working at the university’s library. Since then, I have been delving further into the depths of the library field and finding my niche in knowledge organization work.

What is your academic/professional history?

I am a graduate student at the University of Illinois at Urbana-Champaign (UIUC) and I have just completed the first year of my Master’s of Science in Library and Information Science degree. I decided to come to UIUC and start my degree to move up in the library world, and learn the skills I would need to help keep libraries moving into the future. Here at UIUC, I have been working on cataloging books for the rare book and manuscript library, and managing data for preservation services. I am also a part of projects looking into managing metadata for unique spaces, like Fab Labs. At the Library of Congress, I am excited to build my experience in managing and organizing resources and apply my current skills to a new area.

How would you describe your job to other people?

I ensure the resources of the In Custodia Legis blog are findable. I think of it as forming a web that creates connections and will lead people to new ideas and resources. Metadata, or data about data, is simple data describing a resource using a set of terms and properties that help translate the content and details of a resource. This means the resources can be searched easily and quickly assessed and found by the end user, and my job is to ensure the blog’s metadata works toward that goal.

Why did you want to work at the Law Library of Congress?

I have wanted to work at the Library of Congress since I became serious about having a career in the library field. The Library has a large presence in the library professionals community, and I wanted to experience working there, and be a part of working for an institution with such influence. I jumped at the chance to work specifically on the blog of the Law Library of Congress, because the role of the blog is to share information from a prestigious platform and raise awareness of legal issues, topics, and histories. The work the blog is doing is something common to all libraries. Sharing information is something libraries are positioned to do well, and I want to help make that sharing happen!

What is the most interesting fact you have learned about the Law Library of Congress?

I had not expected the Law Library’s blog to be as global as it is. I assumed it would solely focus on U.S. government law and topics, and it does include this, but the blog also deals with a wide variety of global topics. I am excited by the wider range, and I look forward to seeing how my work this summer can be beneficial to a global community.

What’s something most of your co-workers do not know about you?

I have been Smokey the Bear in a parade. I believe it was the 4th of July, and my father worked for the Forest Service and was part of organizing Smokey’s appearance, so when they needed someone to fill in, I volunteered! It was a lot of fun and I was proud to be a part of the campaign to prevent wildfires!

Subscribe to In Custodia Legis – it’s free! – to receive interesting posts drawn from the Law Library of Congress’s vast collections and our staff’s expertise in U.S., foreign, and international law.

Categories: Research & Litigation
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