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70 Year Anniversary of the German Federal Constitutional Court

In Custodia Legis - 2 hours 49 min ago

On September 28, 2021, the German Federal Constitutional Court (Bundesverfassungsgericht, BVerfG) will celebrate its 70th anniversary. The Basic Law (Grundgesetz, GG)—Germany’s constitution—entered into force on May 24, 1949, and established a single federal constitutional court with constitutional review power. (Basic Law, arts. 92, 93.) The Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz, BVerfGG) entered into force two years later on April 17, 1951. The court started hearing cases on September 7, 1951, and rendered its first decision on the territorial reorganization of the historical German states Baden, Württemberg-Baden, and Württemberg-Hohenzollern on September 9, 1951. The formal inauguration ceremony was held on September 28, 1951. Its seat is in Karlsruhe; the same city that the German Federal Court of Justice (Bundesgerichtshof, BGH)—Germany’s supreme court for civil and criminal cases—is located.

Building of the Federal Constitutional Court. © Bundesverfassungsgericht. foto USW. Uwe Stohrer, Freiburg. Used with permission.

Jurisdiction

The delegates at the Constitutional Convention at Herrenchiemsee, which met from August 10 to August 23, 1948, to draft a constitution for West Germany, debated the question of whether constitutional review jurisdiction should be exercised by a supreme court, being the court of highest instance that forms part of the federal judiciary, or whether it should be exercised by a freestanding constitutional court. However, they could not reach an agreement on that question and therefore explicitly left it open to be answered by the Parliamentary Council. The Parliamentary Council, after extensive discussions that spanned several months, agreed on separating the supreme court from the constitutional court and adopted the “Austrian model.” With regard to the jurisdiction of the court, section 93 of the Basic Law states:

The Federal Constitutional Court shall rule:

1. on the interpretation of this Basic Law in the event of disputes concerning the extent of the rights and duties of a supreme federal body or of other parties vested with rights of their own by this Basic Law or by the rules of procedure of a supreme federal body;

2. in the event of disagreements or doubts concerning the formal or substantive compatibility of federal law or Land law with this Basic Law or the compatibility of Land law with other federal law on application of the Federal Government, of a Land government or of one fourth of the Members of the Bundestag;

2a. in the event of disagreements as to whether a law meets the conditions set out in paragraph (2) of Article 72, on application of the Bundesrat or of the government or legislature of a Land;

3. in the event of disagreements concerning the rights and duties of the Federation and the Länder, especially in the execution of federal law by the Länder and in the exercise of federal oversight;

4. on other disputes involving public law between the Federation and the Länder, between different Länder or within a Land, unless there is recourse to another court;

4a. on constitutional complaints, which may be filed by any person alleging that one of his basic rights or one of his rights under paragraph (4) of Article 20 or under Article 33, 38, 101, 103 or 104 [of the Basic Law] has been infringed by public authority;

4b. on constitutional complaints filed by municipalities or associations of municipalities on the ground that their right to self-government under Article 28 [of the Basic Law] has been infringed by a law; in the case of infringement by a Land law, however, only if the law cannot be challenged in the constitutional court of the Land;

4c. on constitutional complaints filed by associations concerning their non-recognition as political parties for an election to the Bundestag;

5. in the other instances provided for in this Basic Law.

Decisions are binding upon the constitutional bodies of the German Federation and of the German states, as well as upon all courts and public authorities. (Federal Constitutional Court Act, § 31, para. 1.) Certain decisions, in particular those concerning the constitutionality of legislation, have the force of law. (Id. § 31, para. 2.) Decisions that have the force of law are published in the Federal Law Gazette.

Selection of Judges

The Federal Constitutional Court is composed of two chambers, called senates. Each senate consists of eight justices. (BVerfGG, § 2.) In general, a candidate must be at least 40 years of age, be eligible for election to the German parliament (Bundestag), and must have stated in writing that he or she is willing to become a member of the Federal Constitutional Court. (BVerfGG, § 3.) Furthermore, each justice must have completed a legal education which qualifies him or her for judicial office pursuant to the German Judiciary Act (Deutsches Richtergesetz, DRiG).

The German Basic Law states that half of the members are elected by the Bundestag (parliament) and half by the Bundesrat (representation of the German states). (Basic Law, art. 94.) They may not be members of the Bundestag, the Bundesrat, the federal government, or of any of the corresponding bodies of a German state. Three positions in each senate are reserved for judges who have previously served on a German supreme federal court for at least three years.

Unlike in the United States, the nomination of a new justice does not make the news. The justices who are chosen by the Bundestag are elected without prior debate by secret ballot upon a proposal of an electoral committee which is formed specifically for this purpose. The electoral committee is composed of 12 members of the Bundestag who are chosen from a list of candidates proposed by the parliamentary groups. To be elected, a justice must obtain a two thirds majority of the votes cast and at least a majority among the members of the Bundestag. (BVerfGG, § 6.) The members of the electoral committee are sworn to confidentiality and are not allowed to reveal the candidates’ personal circumstances, which become known to them as a result of their work in the committee, or the committee’s discussions on this issue and the casting of votes. (BVerfGG, §6, para. 4.) The justices who are chosen by the Bundesrat are also elected by a two-thirds majority. Unlike the Bundestag, the Bundesrat does not form an electoral committee. (BVerfGG, § 7.)

Once a justice is elected, he or she will be appointed by the federal president for a term of 12 years. (BVerfGG, § 4, para.1; § 10.) Justices may not be reelected and retire after their term is up or when they reach retirement age (67 years), whichever is earlier. (DRiG, § 48.)

Robes worn by the justices of the German Federal Constitutional Court. © Bundesverfassungsgericht. foto USW. Uwe Stohrer, Freiburg. Used with permission.

Further Information

The Federal Constitutional Court offers a lot of English-language information on its website, including English translations of important decisions and videos detailing its work, history, and landmark decisions.

The Law Library of Congress holds numerous materials on German law in general, including commentaries on the German Basic Law and the Federal Constitutional Court Act, as well as the decisions of the Federal Constitutional Court.

Categories: Research & Litigation

Serial Set Volumes from the 69th Congress Recently Published on Law.gov

In Custodia Legis - 4 hours 35 min ago

The Law Library of Congress and the Government Publishing Office continue to collaborate on the digitization of the United States Congressional Serial Set. The Digital Resources Division is excited to share an update on the project.

This fall, the volumes of the Serial Set from the 69th Congress will be publicly accessible through both the Law Library’s digital collections and GovInfo. Out of the 15,580 volumes and approximately 12 million pages in the Serial Set, 287 volumes will be available this fall.

Screenshot of a preview of how a Serial Set PDF file will appear in the Library of Congress online catalog.

The 69th Congress spans two sessions between the years 1925 and 1927. Within these three years, congressional publications include “Art and Artists of United States Capitol,” “Declaration of Independence and Constitution of the United States,” “The World War” volumes documenting the history of World War I, and a “National Wealth and Income” report by the Federal Trade Commission. Annual reports from various agencies and organizations were also published, including from the Government Printing Office (the former name of the Government Publishing Office), Public Health Service, Boy Scouts of America, Daughters of the American Revolution, and the Smithsonian Institution. Historical events, like the enforcement of Prohibition, are also detailed in this set of volumes.

Scanned images of color maps and plates, similar to those on display in the From the Serial Set series will also be included.

The entire Serial Set digitization project is expected to last up to 10 years.

Categories: Research & Litigation

New Video – Recent Enhancements to Congress.gov

In Custodia Legis - Mon, 09/27/2021 - 12:41pm

Congress.gov is constantly improving. We do releases approximately every three weeks to enhance the website and incorporate user feedback. There is a great new video highlighting 10 recent enhancements inspired by feedback.

Watch the video below to learn what is new to the site and visit our Congress.gov Enhancement Timeline for more details.

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In addition to this video being added to the Enhancement Timeline with this release, the Congressional Record Bound edition is now available for the 63rd-65th Congresses (1913-1919).

We recently hosted a Public Forum. You still have time to submit your feedback if you were not able to attend. To keep up to date with new enhancements, subscribe to our Congress.gov Notifications email.

Categories: Research & Litigation

Celebrate the Newest Release of Herencia Documents by Participating in our Transcribe-a-thon!

In Custodia Legis - Mon, 09/27/2021 - 8:30am

In honor of National Hispanic Heritage Month, and the release of Phase 3 of our crowdsourcing campaign, Herencia: Centuries of Spanish Legal Documents, the Law Library of Congress will be hosting another entirely virtual transcribe-a-thon from today, Monday, September 27, through Friday, October 1. This event is in collaboration with By the People and the Hispanic Reading Room of the Library of Congress.

Statement concerning the services rendered by Captain Francisco Valero, from September 4, 1639 through March 17, 1671. [Ca. XVII Century].

All week, participants are encouraged to transcribe newly released documents from the collection, which contains print and manuscript documents from Spain from the 15th through the 19th centuries. Phase 3 comprises the final third of the total collection and will include four new projects for a total of over 11,000 additional unique documents in Spanish, Latin, and Catalan. Below are the four new projects representing Phase 3:

Our goal for this week’s transcribe-a-thon is to transcribe 200 pages from the newly released Miscellaneous project! “Miscellaneous” is one of the six original categories of the Spanish legal documents collection. This category was used to group a variety of subjects, which include items such as statements issued by members of the Spanish armed forces; agreements between kingdoms of Spain; records on controversies on religious ceremonial rites; statements submitted to the kings of Spain; appointments; petitions to the king; records of the inquiries; oaths of allegiance to the kings of Spain by the ambassadors of the crown; royal answers to petitions by the Catholic church; academic speeches; and letters by pretenders to the throne of Spain.

From the genealogy of noble families to declarations from the Napoleonic Wars to 17th-century documents from New Spain, there are topics to interest everyone in this varied collection. To follow some of the original research that has been conducted in the collection since the releases of Phases 1 and 2, check out some recent blog posts from our spring and summer 2021 interns.

Throughout the week, you can ask questions, learn more about this collection and past collections, and engage with us from our Twitter accounts at @LawLibCongress and @CROWD_LOC. You can also join the conversation with fellow volunteers on our History Hub page.

In the meantime, you can also learn more about transcribing this historical collection by watching our previous Herencia webinars.

Categories: Research & Litigation

Collection Highlights: Chancellor James Kent

In Custodia Legis - Fri, 09/24/2021 - 10:22am

Last September, I published a post on this blog about Joseph Story and the creation of Story’s Commentaries on the Constitution of the United States, one of the most important legal publications of Antebellum America.

This year, I thought I would continue along the same vein and highlight the Law Library’s holdings of items related to another figure in the history of law in the United States, someone who, like Story, vastly enriched legal literature in this country and whose influence over the law endured for a long time to come. My choice was very clear. It had to be James Kent.

A portrait of James Kent from the original painting by Alonzo Chappel, reprinted by Johnson, Fry & Co., New York, 1861. Library of Congress Prints and Photographs Division.

James Kent was a prominent leader in the legal profession of the 19th century who was often called “the American Blackstone.” Kent is remembered now for his authorship of the Commentaries on American Law, a bestseller in his day, which by itself made Kent very wealthy and which expanded his influence among practitioners across the country (Langbein, p. 565). Kent was in his sixties, however, when he sat down to write that book, and his professional reputation was already very well established. His career saw early success with an appointment to a lectureship in law at Columbia College, which is now Columbia University (1793-1797), as well as his election to the positions of Master in Chancery (1796) and Recorder of the City of New York (1796). He was appointed to the Supreme Court of New York in 1798. In 1804, at the age of 41, he was made chief justice of that court, a position he held for ten years. In 1814, he accepted the post of Chancellor of New York, that is, judge in New York’s court of equity, which he held until he was forced into retirement at the age of sixty. Kent was also a member of the Council of Revision, a unique institution that existed in the State of New York from the time of its institution under the New York Constitution of 1777 until its abolition by the New York State Constitutional Convention in 1821. That body, which included the Governor, the Chancellor, and Justices of the Supreme Court, remarkably had the authority to review and strike down enactments of New York’s state legislature.

James Kent’s signature appears on a manuscript of certification containing the mortgage of Enos Thompkins of New Jersey, July 31, 1797, in the Law Library of Congress Rare Books Collection. Photo by Ellie Korres.

One of Kent’s key contributions lay in the area of court reporting. In the first decades after independence, very few American courts kept a record of judicial opinions. As a judge, Kent adopted the practice of producing written opinions that cited to and argued from recognized authorities for every case he heard. He worked closely with professional reporters, especially a reporter named William Johnson, to make sure written reports of decisions from the courts he worked on became available to the public in an accurate form (Langbein, p. 584). In 1824, Johnson published reports of the Court of Chancery for the years 1814-1824, that is, for the years of Kent’s tenure.

During his judicial career, Kent also produced or contributed to a number of important legal publications. In 1800-1801, for example, the New York legislature commissioned Kent and fellow Supreme Court judge, Jacob Radcliff, to produce a recompilation of all New York State statutes. The legislature enacted their recompilation in 1801. He also revised and digested the rules and orders of the court of Chancery that his predecessor as Chancellor, John Lansing, Jr., compiled in 1815. Kent also revised and enlarged a well-received work by English politician and Barrister of the Inner Temple Sir John Mitford entitled A Treatise on the pleadings in suits in the Court of Chancery, by English bill.

Kent began work on Commentaries on American Law by revising the lectures he delivered at Columbia College in 1794. These early lectures are published in their original form and in a more expanded form. He returned to Columbia to deliver a new set of lectures in 1824-1825, after which he turned, at the urging of his son, to developing the lectures for publication in a much more ambitious format (Langbein, p. 555).

The first volume of Commentaries was published in 1826. The subsequent three volumes came out in December 1827; October 1828; and April 1830. There was almost immediate demand for a second edition, which appeared in 1832. The third edition came out in 1836, and the fourth in 1840. The fifth edition, the last to come out in Kent’s lifetime, appeared in 1844. Kent died in 1847. The work appeared in 14 editions by 1896.  The twelfth edition was edited by Oliver Wendell Holmes. Abridgements and popularizations of the work were also published even in Kent’s lifetime. By 1836, the work was translated into German. A Spanish translation appeared in 1865.

Main Reading Room. Portrait statue of James Kent along the balustrade. Library of Congress Thomas Jefferson Building, Washington, D.C. Photo by Carol M. Highsmith. Library of Congress Prints and Photographs Division.

Some commentators have noted that Kent insisted throughout his career that the law should be a learned profession, and that precedent and the common law stand at the heart of the law. At the time of American independence, the status of the English common law was debated, with some Americans objecting to its use by courts because of its English origins (Stychin, p. 440). Americans had just fought a long war to throw off English rule. Why did the courts continue to follow the laws of another nation? Others, among them James Kent, sought to demonstrate that the common law had a place, even a crucial place, in the new American legal order. Traces of this objective can be found in the way Kent analyzes common law rules throughout his Commentaries (Stychin, p. 452). Kent argued that while liberty and property rights stood on principles of natural right, courts required clear rules to resolve conflicts and to avoid arbitrary results. The common law supplies an unequalled trove of well-developed rules. American judges ought to apply them with discrimination according to the differing situation of American society, but they should also do so with an eye toward maximizing the reception of the legal heritage that English law offers (Stychin, p. 447-448).

Kent claimed that the resources that he used to write his Commentaries came largely from his private book collection, which contained approximately 3,000 titles (Langbein, p. 555, n.41). He compiled a catalog of his books in 1842, which can now be found in the Butler Library, Rare Books and Manuscript Collections at Columbia University. Most of his collection is now divided between several libraries: The Arthur W. Diamond Law Library at Columbia University holds most of Kent’s law books. The Butler Rare Book and Manuscript Collections of Columbia University also holds several hundred volumes from his library. The New York State Library in Albany holds 200 volumes of his collection. The Harvard Law Library owns five books from Kent (Langbein, p. 555, n.41).

The Law Library of Congress has a collection of 96 titles by or related to Kent in its rare books collection.

The Library of Congress holds a collection of Kent’s papers.

Columbia University Library holds a collection of Kent Family Papers.

Kent wrote an autobiographical sketch that is worth reading.

Sources:

Craven, Avery. “James Kent: A Study in Conservatism by John Theodore Horton.” The University of Chicago Law Review. Vol. 7, No. 3 (Apr., 1940), pp. 580-581.

Langbein, John H. “Chancellor Kent and the History of Legal Literature.” Columbia Law Review, Vol. 93, No. 3 (Apr., 1993), pp. 547-594.

Stychin, Carl F. “The Commentaries of Chancellor James Kent and the Development of an American Common Law.” The American Journal of Legal History, Vol. 37, No. 4 (Oct., 1993), pp. 440-463.

 

Categories: Research & Litigation

Upcoming US Law Webinars – October 2021

In Custodia Legis - Thu, 09/23/2021 - 7:30am

Next month, the Law Library of Congress will present a webinar on researching federal case law. Attendees will have the opportunity to learn about historic American legal traditions, how to use print and online resources to find court decisions, and researching court materials, including dockets and filings, to name just a few subjects.

Also in October, Law Library staff will host a webinar discussing Congress.gov. The presentation will feature some of Congress.gov’s functions, as well as recent updates to the site. More information about the content of both webinars and registration links can be found below.

Polk County Courthouse, Fifth & Court Streets, Courthouse Square, Des Moines, Polk County, IA. Documentation compiled after 1933. Historic American Buildings Survey, creator. Library of Congress Prints and Photographs Division. http://hdl.loc.gov/loc.pnp/hhh.ia0061/photos.068720p

Orientation to Legal Research: U.S. Case Law

Date: Thursday, October 14, 11:00 AM EDT – 12:00 PM EDT

Content: An introduction to legal sources and research techniques regarding U.S. case law research, including information about the U.S. federal court system, the publication of court opinions, methods for researching case law, and information about locating records and briefs.

Instructor: Margaret 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.

Congress.gov Webinar

Date: Thursday, October 28, 2:00 PM EDT – 3:00 PM EDT

Content: This webinar provides a basic overview of Congress.gov with a demonstration of how to conduct a search and information on setting up alerts for legislation, members, and saved searches. Recent enhancements to Congress.gov will also be covered, such as the addition of historical content from the Bound Congressional Record and other updates discussed at our recent Congress.gov Virtual Public Forum.

InstructorsBarbara Bavis and Robert Brammer. Barbara is the bibliographic and research instruction librarian at the Law Library. She holds a BA in history from Duke University, a JD from the University of North Carolina School of Law, and a Master of Science in Library and Information Science with a specialization in law librarianship from Catholic University. Robert is the chief of the Law Library’s Office of External Relations. He holds a BA in political science from the University of Kentucky, a JD from Wayne State University, and a Master of Library Science from Florida State University.

Register here.

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

Categories: Research & Litigation

Lappkodicillen of 1751 – the Sami Magna Carta

In Custodia Legis - Wed, 09/22/2021 - 4:30pm

This year marks the 270th anniversary of the Lapp Codicil of 1751 (Lappkodicillen), a document equally relevant to Sami cross-border relations in Sweden and Norway today as it was in 1751. On September 21, 1751, the Strömstad Treaty between Norway (Denmark) and Sweden (including Finland) was signed. Norway was then a part of Denmark and in an addendum the Lappkodicillen regulated the Sami reindeer herders cross-border movements between Sweden and Norway.

Cropped Picture of the Lappkodicillen, 1751, original picture available at Riksarkivet, https://sok.riksarkivet.se/bildvisning/R0000016_00002.

Why is it called the Sami Magna Carta?

The Sami people are indigenous to Sápmi, an area that spreads across the northern parts of Norway, Sweden, Finland, and the Kola Peninsula in Russia. Although not all Sami herd reindeer, much of the regulations surrounding Sami pertain to the reindeer, including the establishment of Sami administrative areas where groups of Sami herd their reindeer (samebyar in Swedish).

The Lappkodicillen regulates a number of issues related to the migration of Sami across the Swedish-Norwegian border. In 1751, many Sami used areas that spanned Norwegian as well as Swedish land to feed their reindeer. The addendum has 30 articles, specifying how and when the Sami (referred to as “Lapps” in the text) may cross the border, specifically recognizing their right to do so in accordance with established custom (sedvana). (Article 10.) It also provided that Sami should always be considered neutral parties in a time of war. (Articles 10 and 11.) Thus, the Lappkodicillen included specific written rights for the Sami people, a first at the time of its adoption.

However, the Lappkodicillen also limited the Sami people’s freedom and specifies that the Sami have to choose whether to become Swedish or Norwegian citizens, i.e., Swedish or Norwegian Lapps, who may only own tax lands on one side of the border. (Articles 2, 4.) Prior to 1751, Sami individuals or families could hold “Sami tax lands” (referred to as lappskatteland in Swedish and Bøxel-Land in Norwegian) in both Norway and Sweden at the same time. Each country required that the Sami pay tax for such holdings to the crown. However, as specified in article 2 of the Lappkodicillen, following the adoption of the Lappkodicillen, a Sami could only hold land in one country.  Thus, the Sami had to, provided that their taxes were current in each country, pick which country to be a citizen of, and hold land in. (Article 4.)

The Lappkodicillen also set out special rules for cross-border marriages between Swedish and Norwegian Sami individuals, allowing men to change their nationality when their foreign wife had more reindeer or a tax land of her own in the other country. Otherwise, as a general rule, the wife would take the husband’s nationality. (Article 8.) This rule also prevented the Sami from, through marriage, acquiring larger tax areas that would span both countries. At the time, the Sami themselves allowed for gender-neutral inheritance rules, whereas the Swedish crown had different inheritance rules for cities and for rural communities.

Below are a number of select English translations from articles of the Lappkodicillen. (All translations by author.)

2 § No Sami person may henceforth hold [Swedish Sami tax lands or Norwegian tax lands] in more than one Kingdom, in order that all reason for commonality in subjects and land henceforth may be avoided.

4 § In case that any Sami currently hold, on both sides of the border, an old Swedish or Norwegian summer tax land, for which prior to 1742 tax has been paid to Sweden or Norway, he may have the freedom to choose which side’s subject he may henceforth want to be, provided he no winter tax land in either side holds. If he holds a winter tax land in either side, the Swedish or the Norwegian, he will belong to the side on which territory he such winter tax land holds.

8 § If a Swedish Sami marries a Norwegian Sami wife, who holds her own tax land in Norway, or has more reindeers than him, he has the freedom to, without obstacle or fee of the property, become a Norwegian Sami, provided that he report this to the Swedish [authorities] and proves such circumstances. The [Swedish authorities] must then provide him with a written permission to move and in the collection book note and from the Swedish tax him exclude. The same applies to a Norwegian Sami in similar circumstances. In other cases, the wife follows the husband.

10 § In case the Sami need access to both Kingdom’s lands, it shall in accordance with old custom be allowed to, in fall and spring, move their herds of Reindeer across the Border in to the other Kingdom, and henceforth in the same manner as the Country’s subjects, exempted at such places as below is specified, may use Land and beaches to support for their animals and themselves, where they shall be friendly welcomed, protected and aided, also during times of War, which onto the Sami regulation no changes should cause, [nor shall] the foreign Sami be exposed to plundering or any form of coercion or excessive force that the times of war bring, but always be as their own subjects considered and handled regardless of on which side they then appear as foreign.

11 § No Sami person who needs to move his animals over the border, may during times of war, any hostile action take. If he is found to have so done, he shall not be punished for acts of war, but be punished as if the action had been taken during times of peace.

Interpreting the Lappkodicillen

Whether the word “äga” (own or hold) means “to own” or “use” has been subject to interpretation over the years. While there is general agreement that during the 1800s the Swedish and Norwegian governments sought to limit the cross-border rights of the Sami, it has not been established conclusively whether at the time of signing in 1751 the Swedish and Norwegian crowns meant to recognize the use of the land as ownership similar to that of certain farmers or as simply a right to use the land (to fish, hunt, graze reindeer, set up tent etc.). Two approaches have been brought forth. Either that the tax lands were similar to certain farm land that was owned and inherited and taxed (see Kaisa Korpijaako-Labbas, Om samernas rättsliga ställning I Sverige-Finland), whereas the other view adopted by the government is that the tax was paid for the use of the land.(see e.g. SOU 2006:1 Samernas sedvanemarker..

Swedish courts have so far not recognized historic holdings of Sami tax lands as proof of ownership. However, the Swedish Supreme Court has held that in theory land used by Sami groups may create, through prolonged use, an ownership right to the land used. (Skattefjällsmålet (NJA 1981 s. 1).)

Importance of the Lappkodicillen today

The Lappkodicillen has never been repealed, and as specified in article 30, continues to be in force, as is the Strömstad Border Convention of 1751. However, several conventions between Sweden and Norway have been entered into over the years to further define the cross-border rules for the Sami reindeer herders, most recently in the Convention of 1972 between Sweden and Noway on reindeer grazing (Konventionen den 9 februari 1972 mellan Sverige och Norge om renbetning). When the 1972 Swedish-Norwegian Convention expired in 2005, the Lappkodicillen again became the main legal document to define the Sami reindeer herders’ rights to cross the Swedish-Norwegian border. A new convention was negotiated in 2009, but was never ratified by the Swedish Parliament. Reportedly, the negotiations for a new cross-border reindeer herding treaty between Norway and Sweden are ongoing.

The Norwegian Supreme Court as recently as this summer held that the Lappkodicillen governs the relationship between Norway and Swedish reindeer herders in the Saarivuoma sameby case, and that the rights established therein cannot be limited by the adoption of domestic Norwegian laws.

Where can I find the original text of the Lappkodicillen?

The Lappkodicillen is part of Sveriges Traktater med Främmande Magter, VIII, 2, pages 586ff.

The original Strömstad Treaty can also be found in digital form at the Swedish National Archives (Riksarkivet), as can the Lappkodicillen.

A print version of the text, which may be easier to read, can be found at the Sami Information Center website in Swedish and at Lovdata in Norwegian.

Categories: Research & Litigation

Can you Legally Import a Toucan? No, you Probably Cannot

In Custodia Legis - Mon, 09/20/2021 - 9:00am

This is a guest post by Elizabeth Boomer, an international law consultant in the Global Legal Research Directorate. Elizabeth has previously written for In Custodia Legis on numerous topics, including Technology & the Law of Corporate Responsibility – The Impact of Blockchain30th Anniversary of the United Nations Convention on the Rights of the ChildUnited Nations Day – A Time to Reflect on the Potential Role of the International Court of JusticeFacebook’s New “Supreme Court” – The Oversight Board and International Human Rights Law, and Reflecting on 10 Years of the United Nations Guiding Principles on Business and Human Rights

Recently, two individuals were charged by U.S. federal prosecutors with several years in prison for their roles in the illegal smuggling of protected reptiles and birds from Mexico to the United States. As reported by the Washington Post, they were apprehended where nearly a third of all wildlife seizures in the United States between 2007 and 2017 were made: El Paso, Texas, right across the border from the Mexican city of Ciudad Juárez. They had, among other attempts to try to evade authorities, taped the beaks of six adult toucans shut, as toucans are notorious for their loud squawk.

Toucan. Photo by Flickruser Mathias Appel. Jan. 24, 2016. Used under creative commons license https://creativecommons.org/licenses/by-nc/2.0/.

Generally, cooperation between Mexican law enforcement agents and the United States federal agents in seizing illegally smuggled protected species is enabled by the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES). CITES has 183 contracting parties and provides varying degrees of protection to more than 37,000 species of animals and plants, as listed in its three appendices:

  • Appendix I lists the most endangered species among CITES-listed animals and plants, per article II, paragraph 1 of the Convention. CITES prohibits international trade in species threatened with extinction for commercial purposes. International trade in these specimens may be exceptionally authorized, however, through the provision of both an import and export permit, generally for scientific research.
  • Appendix II lists species that are not currently threatened with extinction but may become so if trade is not closely controlled. International trade in Appendix-II species may be authorized by the granting of an export permit if the relevant authorities of the exporting state are satisfied that export will not be detrimental to the survival of the species in the wild, per article IV of the Convention.
  • Appendix III lists species that are requested for inclusion by a party to CITES because the party already regulates trade in the species, and needs the cooperation of other countries to prevent unsustainable or illegal exploitation of the species, per article II, paragraph 3 of the Convention. International trade in Appendix-III species is only allowed with proper permits or certificates from relevant authorities, per article V of the Convention.

CITES is a framework convention, whereby contracting parties are bound to implement the convention through domestic legislation. For example, in the United States, the U.S. Fish & Wildlife Service may issue permits to allow imports of birds protected by the U.S. Wild Bird Conservation Act, when applicants meet certain criteria. In addition, the USDA’s Animal and Plant Health Safety Inspection Service (APHIS) works closely with other federal agencies, states, foreign governments, industry, professional and other groups to ensure that imports and exports of animals and animal products comply with federal regulations, including imports of birds. However, the Wild Bird Conservation Act also provides civil and criminal penalties for the importation of birds protected by the Act, which for its part prohibits the importation of birds protected by CITES.

Internationally, many organizations are engaged in the prevention of illegal and illicit smuggling of endangered species.

United Nations Office on Drugs and Crime

The United Nations Office on Drugs and Crime (UNODC) began producing the World Wildlife Crime Report in 2016, following the UN General Assembly’s unanimous adoption of resolution A/RES/69/314 “Tackling Illicit Trafficking in Wildlife” in 2015. Resolution 69/314 calls on member states to make illicit trafficking of protected species of wild fauna and flora involving organized criminal groups a serious crime under national legislation and in accordance with article 2 (b) of the United Nations Convention against Transnational Organized Crime (190 parties), adopted in 2000.

In its 2020 World Wildlife Crime Report, the UNODC was able to identify important trends in illegal and illicit smuggling of endangered species. However, the UNODC notes that estimates of the monetary value of global wildlife crime – which the United Nations Environment Programme (UNEP) estimates is $23 billion annually – suffer from a lack of understanding of the financial flows behind wildlife crime. Further, data on illegal and illicit smuggling of endangered species is difficult to track due to a lack of an internationally recognized definition of the crime (there are species illegally traded that are not regulated by CITES).

UNODC also works closely with the CITES Secretariat, the International Criminal Police Organization (INTERPOL), the World Bank, and the World Customs Organization (WCO) through the International Consortium on Combating Wildlife Crime (ICCWC) to design coordinated strategies to prevent and combat illegal trade in wild animals and plants.

The International Trade in Endangered Species and Other International Fora

In addition to the international criminal law initiatives undertaken by the UNODC, INTERPOL, and through their collaboration at the ICCWC, the United Nations Conference on Trade and Development (UNCTAD) and the Organisation for Economic Cooperation and Development (OECD) have also developed fora for member states and stakeholders to engage in dialogue regarding illicit trade in wildlife. UNCTAD held the first-ever Illicit Trade Forum in 2020 to, among other things, address the impacts of illicit trade on achieving the Sustainable Development Goals (SDGs). The OECD launched its Task Force on Countering Illicit Trade (TF-CIT) in 2013, to increase understanding of the ways trade routes of wildlife trafficking are shaped, and on the related governance gaps that enable them, including corruption.

COVID-19 and Illicit/Illegal Trafficking in Birds

While toucans may (to some) be a highly sought after pet, and certainly a profitable enterprise for the smugglers (if they are not caught), the COVID-19 pandemic, and the avian flus that preceded it (e.g. H5N1 and SARS), should be a cautionary tale regarding the global trade in wildlife, and birds in particular. While the intrinsic value of international treaties and cooperation agreements to protect wildlife and their well-being may be the primary purpose of these international instruments, there is a powerful argument that seriously combating illicit and illegal trafficking in birds could prevent the outbreak of yet another global pandemic – and global shutdown.

Categories: Research & Litigation

The Arctic Council at 25: Creating Connections in a Polarized World

In Custodia Legis - Fri, 09/17/2021 - 9:15am

The following is a guest post by David Revzin, an intern with the Digital Resources Division of the Law Library of Congress. He is a current graduate student of Library and Information Science at Simmons University in Boston, MA.

September 19, 2021, marks the 25th anniversary of the creation of the Arctic Council, an intergovernmental forum comprised of the eight countries with territories within the Arctic Circle, as well as representatives of Arctic Indigenous peoples. The country member states are Canada, the Kingdom of Denmark (Denmark, Greenland, Faroe Islands), Finland, Iceland, Norway, Russia, Sweden, and the United States. Formally founded in 1996 by the Ottawa Declaration, the Arctic Council serves the region by seeking solutions to shared concerns pertaining to the northernmost parts of the planet through “cooperation, coordination, and interaction.” To carry out these objectives, the council maintains an active dialogue among public and private sector entities, including working groups engaged in ongoing monitoring and research projects.

This blog post provides an overview of Arctic governance and the council’s work in environmental and geopolitical contexts defined by large-scale challenges and rapid changes in a globalized, interconnected world.

Arctic Administrative Areas map. Map: Arctic Centre, University of Lapland. Credit for the border data: Runfola D, Anderson A, Baier H, Crittenden M, Dowker E, Fuhrig S, et al. (2020) geoBoundaries: A global database of political administrative boundaries. PLoS ONE 15(4): e0231866. https://doi.org/10.1371/journal.pone.0231866

The Arctic Region

The Arctic Circle, located at approximately 66°33′ North Latitude, is an “imaginary boundary” in the northernmost part of the planet. The area above this boundary is commonly called the Arctic. Within this region, there is at least one day a year in which the sun is visible above the horizon for a full 24-hour period, resulting in daylight at midnight, and at least one day a year in which the sun is below the horizon for a full 24-hour period, resulting in darkness at noon.

Although geographically isolated, the Arctic stands at the center of myriad universal concerns for the present and future of the planet. As governments, institutions, and individuals feel forces of globalization and climate change with greater intensity, this northernmost region of Earth represents an interconnectedness of the natural, social, and political dynamics which define and anticipate many coming obstacles and opportunities in a shared global future.

Glacier. [between ca. 1900 and ca. 1930] Library of Congress Prints and Photographs Division. http://hdl.loc.gov/loc.pnp/ppmsc.01850

The idea of the Arctic can conjure images seemingly at the boundary between fact and fiction: ethereal northern lights and striking glacial landscapes; polar bears and reindeer; a never-setting summertime sun and unending wintertime darkness. Despite occupying somewhat of a mythical place in our minds (its most famous fictional residents are a certain gift-giving old man and his team of flying reindeer, after all), the Arctic is not an abstraction, instead representing many concrete common global concerns.

The Arctic has a population of approximately four million people, including Indigenous peoples and those living in areas under the jurisdiction of one of the eight nations whose territories reach into the northernmost parts of the planet.

As is the case elsewhere on Earth, changing climate and shifting geopolitical dynamics combine to create an uncertain future for the high north. Long marked by a generally cooperative international governance, the region occupies an increasingly prominent position in the global consciousness, creating unique challenges which call on countries to reassess and reaffirm approaches to regional governance. Growing recognition of the need to work together to tackle regional challenges has brought renewed focus to the unique structure of shared governance in the region.

A Unique Geopolitical Project

The countries with jurisdiction over territories within the Arctic Circle have individual webpages that detail their arctic population, involvement, and accomplishments on the Council: Canada, the Kingdom of Denmark, Finland, Iceland, Norway, Russia, Sweden, and the United States. Each of these eight Arctic countries has laws and policies regarding the portion of the region under its authority, while international agreements, laws, and treaties comprise a collaborative, cooperative governance of the area around the North Pole and the surrounding Arctic Ocean.

Additionally, Arctic Indigenous peoples’ organizations have status as Permanent Participants, holding “full consultation rights in connection with the council’s negotiations and decisions.” Together, the six Permanent Participants form the Arctic Council Indigenous Peoples’ Secretariat, a forum for “creating opportunities for the Permanent Participants to present their causes, support the provision of necessary information and materials, and communicate information about their work in the Arctic Council and beyond.”

All eight of the Arctic countries have official, published policies outlining their foreign relations objectives in the region. In addition to these eight countries, Indigenous peoples of the Arctic have official political standing as members of the council. Several non-Arctic countries have also expressed interest in the region in recent years, leading to an increasing number of observer states on the Arctic Council. Non-governmental actors serve the Arctic policy process primarily through three specific roles: agenda-setter, implementer, and watchdog.

An Innovative Approach

Chairing of the Arctic Council is cyclical, rotating among the Arctic countries who then set the agenda and tone while retaining the chair position for a period of two years. The cycle began with Canada from 1996-1998 and is now in its second rotation, as all Arctic countries have held the position at least once. Most recently, Iceland passed the gavel to Russia, which assumed the chairmanship in May 2021.

Arctic governance is a complex arrangement of international, regional, and local institutions, agreements, and regulations either specific or relevant to the Arctic. Arctic-specific agreements refer to those explicitly pertaining to part or all of the Arctic region, while Arctic-relevant agreements and regulations are those not aimed at the area but impacting the Arctic due to regulatory content. Additionally, the United Nations Convention on the Law of the Sea (UNCLOS), the international regulations governing the rights of coastal countries, and the various achievements of the Arctic Council, are critical components of Arctic governance and cornerstones of the mutual agreements central to the overall project of maintaining peace and prosperity in the region and beyond.

As a forum intended to foster ongoing dialogue among Arctic countries, the Arctic Council does not possess its own budget for projects and programs. This means that any initiatives of the council are funded by one or more of the Arctic countries, or by other national or international partners and sponsors. As outlined in the Ottawa Declaration, the mandate of the Arctic Council explicitly excludes topics relating to national defense and military security.

Additionally, the Arctic Council does not have jurisdictional authority and therefore cannot implement or enforce any guidelines or recommendations of other governing bodies. Regulatory responsibility remains solely with the individual Arctic countries, when applicable, or other international governing bodies.

Various institutions such as the International Maritime Organization and regional fisheries management organizations comprise the Arctic governance structure today. Rapid environmental and social changes in the high northern latitudes (as elsewhere in the world) put pressure on all Arctic institutions to adapt and innovate to meet the challenges of globalization and geopolitical uncertainty.

Arctic Council Accomplishments

For 25 years the Arctic Council has promoted collaborative partnerships and the creation of various working groups to conduct ecological, environmental, and social scientific research, resulting in many comprehensive assessments on an array of topics. To organize and share these reports, the Arctic Council maintains and updates an online repository of key documents relevant to the council and the region. Additionally, the council is the central place for Arctic countries to discuss ideas, issues, and legal arrangements. Some noteworthy accomplishments since the Arctic Council’s creation in 1996 include the 2011 Agreement on Cooperation on Aeronautical and Maritime Search and Rescue in the Arctic; the 2013 Agreement on Cooperation on Marine Oil Pollution Preparedness and Response in the Arctic; and the 2017 Agreement on Enhancing International Arctic Scientific Cooperation.

Twenty-five years since the founding of the Arctic Council, the council’s continued dedication to “cooperation, coordination, and interaction” serves as the foundation for big-picture goals of global governance and stands as a testament to the growing recognition of the universal impacts of environmental change across national, political, and regional borders.

Categories: Research & Litigation

Smuggling French Hats into 17th Century Spain: Worth a Fight?

In Custodia Legis - Thu, 09/16/2021 - 8:50am

The following is a guest post by Samantha Mendoza, who served as a summer 2021 remote intern transcribing and researching documents in the Herencia: Centuries of Spanish Legal Documents crowdsourcing campaign at the Law Library of Congress.

Brief on behalf Captain José Figueres versus Captain Julio Grondona, concerning the seizure of Grondona’s vessel due to the alleged smuggling of certain goods by said Captain Grondona. [Ca. 1690].

In present day, it is not uncommon to hear news of attempts to smuggle items across national borders. This can be something as serious as drugs or even people, or could include invasive plants species, foods, etc. But one item that usually does not cross the mind is clothing. The Brief on behalf Captain José Figueres versus Captain Julio Grondona, concerning the seizure of Grondona’s vessel due to the alleged smuggling of certain goods by said Captain Grondona [Ca. 1690] from the Herencia collection details an attempt to smuggle French hats into Spain. Though to someone in the 21st century these might just be an article of clothing, in 17th century Spain, this was contraband worth fighting for.

A ship captained by Julio Grondona that had left from “Marcella,” likely Marseille, France, was nearing a Spanish port when Captain Joseph Figueres learned that it may have contraband. On the ship were drugs and hats made in France (p. 2). The contraband in question was not the drugs, but the French hats that were being brought to Spain without permission. The Spanish authorities decided that they were going to approach without intending to take possession of the ship because “Si en todo caso, siendo los sombreros de poco valor, y la pena de la perdida del Navio con todos sus ornamentos de tan grande estimacion padeceria, ò no, el vicio de nullidad,” which roughly translates to: “being the hats of little value, and the penalty of the loss of the Ship with all its ornaments of such great esteem, suffer, or not, the vice of nullity” (p. 2).

When the ship was approached, the Spanish authorities were met with hostility. They attempted to allow the ship’s captain and crew to declare themselves as friendly or enemies but were instead met with shooting of a cannon (p. 4). A battle ensued, with those firing from Grondona’s ship killing one person: Alferes Muñoz (p. 5). There were many attempts to negotiate a ceasefire, but intermissions ended quickly with more gunfire followed. Many different types of weapons were used, including pistols, muskets, and even stones (p. 6). Finally, the authorities were able to climb onto the ship, gain control, and detain the men with their variety of weapons. The men on this ship were prepared for combat, even if it is just over hats, something that we just see as a fashion accessory in today’s world.

Though this document does not specifically say why the hats were considered contraband, there is a lot of emphasis on the fact that they were manufactured in France, and that he did not gain permission to bring them into Spain. While there was not a complete ban on French goods, they were strictly controlled. There was even a reference to another smuggling case where someone had French books confiscated, but that occurred peacefully as the ship’s captain obeyed orders. He also claimed that he did not know how to read and write and, therefore, did not know that they books were printed in French (p. 23). The authorities were able to compromise with him and bring about a peaceful resolution, even though he did not have permission to bring in these goods. It makes one wonder if perhaps Captain Grondona could have received similar treatment and been able to keep his ship had he not gone straight into combat mode. Nevertheless, reading this story in 2021, where someone’s ship was seized, and a life was lost — all for hats — was quite surprising, yet provides a thrilling story from the rich history of Spain.

Categories: Research & Litigation

The Legal History of Pigeons

In Custodia Legis - Wed, 09/15/2021 - 9:34am

The following is a guest post by Annie Ross, an intern with the Digital Resources Division of the Law Library of Congress. She is a current student of political science and international studies at Northwestern University.

The pigeon is often thought of as nothing more than a city pest. Given their penchant for carrying germs and disease, harassing people for crumbs, and covering statues with their droppings, pigeons may very well earn this reputation.

You may be surprised to learn, then, that the pigeon has also been an invaluable resource for the U.S. and many other countries. This blog post is dedicated to highlighting the ways in which two breeds of this unassuming bird, specifically, the homing pigeon and the passenger pigeon, have affected and been affected by legislation ranging from military policy to federal conservation laws.

Sen. Royal S. Copeland, left, and Rep. Anning S. Prall of N.Y. releasing 2 of the fastest homing pigeons in the world from the plaza in front of the U.S. Capitol. Harris & Ewing, photographer, 1924. Library of Congress Prints and Photographs Division. //hdl.loc.gov/loc.pnp/hec.43954

The Homing Pigeon
The homing pigeon, popularly known as the messenger pigeon, has been used for centuries across the world for a variety of messaging purposes, perhaps the most notable being war communication. This breed of pigeon is domesticated and evolutionarily programmed to fly back “home” (hence the name “homing pigeon”), allowing them to serve as effective messengers. For expansive kingdoms, such as that of the ancient Egyptians, pigeon post was especially handy.

While pigeons were used in warfare prior to the 20th century, it was World War I and World War II that sparked worldwide legislation to protect homing pigeons in relation to their use as wartime communicators. Passed in 1918, a U.S. federal law (40 Stat. 533) prohibited entrapping and killing any homing pigeon owned by the U.S. This policy remained on the books in a few different forms until it was finally repealed in 1990.

Pigeons for McMillan Expedition at Naval Air Station. May 22, 1925. Library of Congress Prints and Photographs Division. //hdl.loc.gov/loc.pnp/npcc.27066

The U.S. was not the only country to protect homing pigeons by law during the 2oth century. From Great Britain to New Zealand to Portugal, laws aimed at protecting carrier pigeons were passed as the world became ravaged by war. While many of these acts have been repealed in the years since the second world war, a few, such as one in South Australia, still remain in force.

In 1917, a unit of the military under the U.S. Signal Corps was officially authorized to train and manage homing pigeons for wartime purposes, wielding over 50,000 pigeons for WWII alone. While homing pigeons were typically used to transport short dispatches to troops behind enemy lines, they were also later equipped with small cameras to capture key images of enemy positions.

Showing how the pigeons are part of the U.S. Army. They too have to have their identification tag with them and at their death they must be accounted for and reported with the probable cause. Fort Lucy, France. United States Army, Signal Corps, photographer, 1918. Library of Congress Prints and Photographs Division. //hdl.loc.gov/loc.pnp/ds.09801

Some pigeons even received special recognition for their work. Cher Ami, a U.S. Signal Corps homing pigeon, was awarded a French military honor, the Croix de Guerre with Palm, for her heroic flight in France during WWI. Cher delivered a crucial message despite being shot in the chest and leg, flying 25 miles in 25 minutes and relieving an Allied unit of nearly 200 men in doing so.

The Passenger Pigeon
While 1914 brought about the increased employment of homing pigeons to save human lives in warfare, the year also spelled doom for the passenger pigeon, whose human-led extinction was formalized when the last known member of the species, Martha, died at the Cincinnati Zoo.

Unlike the homing pigeon, passenger pigeons were utilized for their meat in the U.S. The lack of federal legislation and absence of any substantial state laws that regulated hunting meant that passenger pigeons could be hunted with little restraint up until the 20th century, an activity that was only encouraged by their ample numbers in the U.S. It is estimated that passenger pigeons once made up anywhere from 25-40% of the entire bird population in the U.S., causing onlookers to remark how the migratory birds would “darken the sun with their flights,” and state legislatures to dismiss the need to protect the passenger pigeon until it was far too late.

Animal locomotion. Electro-photograph investigation showing a series of consecutive images of a pigeon in flight. Eadweard Muybridge, photographer, 1887. Library of Congress Prints and Photographs Division. //hdl.loc.gov/loc.pnp/cph.3c07240

Pennsylvania became one of the first and only states to pass laws in a delayed attempt to protect the passenger pigeon. In 1875, Pennsylvania’s General Assembly announced that non-residents would be required to purchase a license to trap passenger pigeons on their nesting grounds. Michigan followed suit by banning the hunting of passenger pigeons altogether in 1898, and several large organizations, such as the Cincinnati Zoo, promised monetary rewards for anyone who could find and offer up a live passenger pigeon.

On the federal level, the impending extinction of the passenger pigeon inspired the passage of conservation legislation to prevent similar future occurrences with other species.

The Lacey Act of 1900 (31 Stat. 187) was the first federal wildlife conservation law to be passed in the U.S., focusing primarily on protecting wild birds from poaching and later expanding to include a wide variety of animals and plants under its protective jurisdiction. The Weeks-McLean Law (37 Stat. 847) was passed in 1913 as a stronger version of the Lacey Act, meant to prevent the hunting and interstate marketing of migratory birds. This was replaced in 1918 by the Migratory Bird Treaty Act (40 Stat. 755), which establishes bolstered protections for birds that migrate between the U.S. and various other countries to this day.

Dozens of blackbirds take flight at the approach of a human in a field full of seed following fall harvest near the town of Gillett in southeast Arkansas. Carol M. Highsmith, photographer, 2020. Library of Congress Prints and Photographs Division. //hdl.loc.gov/loc.pnp/highsm.65082

Three years after the passage of the Lacey Act, President Theodore Roosevelt established the first federal bird reservation, aimed at protecting the brown pelican from a similar fate of overhunting. The brown pelican, along with thousands of other endangered species, was further protected by the passage of the Endangered Species Act in 1973, statute that establishes guidelines for the creation of endangered species lists and decrees the protection of those included on the lists.

The extinction of the passenger pigeon is certainly not the sole motivator for the appearance of federal wildlife conservation legislation in the 20th century, but it is widely acknowledged that its visible decline played a large role in motivating the federal government to act.

Hopefully, this blog post has given you a new sense of appreciation for the bird family Columbidae and the significant role it played in military and conservation policies. The Library of Congress has helpful research guides both for pigeons in war and passenger pigeons composed of historic newspaper articles that cover the topic.

Categories: Research & Litigation

Thank You for Attending the 2021 Congress.gov Virtual Public Forum!

In Custodia Legis - Tue, 09/14/2021 - 1:38pm

On September 2, 2021, the Library of Congress, in collaboration with our data partners, held a Congress.gov Virtual Public Forum to provide updates on the enhancements made to Congress.gov over the past year and provide a forum to learn more about how we can better serve your legislative information needs.

The Library’s Digital Strategy Director Kate Zwaard served as moderator. Chief Information Officer Bud Barton kicked things off by providing a welcome and highlighted the importance of access to legislative information for the process of self governance. Congress.gov Product Owner Andrew Weber provided an overview of the Congress.gov enhancements from the past year, followed by a question and answer period.

After Andrew’s presentation, I provided information on the addition of historical content to the site in the form of the Bound Congressional Record and the United States Statutes at Large. The Library’s Chief of Design Natalie Buda Smith and Fred Simonton, the senior user experience designer, then discussed recent accessibility improvements that have been made to Congress.gov. Web Archiving Lead Abbie Grotke discussed the process of nominating and archiving legislative branch websites and providing access to those archived sites from Congress.gov. After this, Margaret Wood, a senior legal reference librarian in the Law Library, highlighted plans to migrate the Library’s Century of Lawmaking site, which had commenced in July with the migration of over 30,000 historical bills and resolutions, dating from 1799-1873, to Congress.gov.

Jay Sweany, the chief of the Law Library’s Digital Resources Division, and Suzanne Ebanues, a supervisory management analyst at the Government Publishing Office (GPO), discussed the Law Library’s collaboration with the Government Publishing Office to digitize, catalog, and provide metadata for 16,000 volumes of the United States Serial Set and make them accessible through the Library of Congress website, Congress.gov, and GovInfo.

Jay also revealed the first release of this project will be available through the Library of Congress website on September 28th, and we will highlight this release on In Custodia Legis. Lisa LaPlant, a GPO program manager, covered how GPO will provide access to the Serial Set through their GovInfo site. Lisa also discussed their work with XPub, an XML based composition system, and USLM, the U.S. Legislative Markup XML schema.

Finally, Congress.gov Subject Matter Expert Kimberly Ferguson highlighted the Congress.gov Legislative Process Videos and Glossary as a tool for learning about the legislative process and provided a guided tour of the Congress.gov’s new searchable Help Center.

After the presentations, we held an hour-long listening session to hear your feedback about how we can continue to improve Congress.gov. Library of Congress Director of IT Design and Development Jim Karamanis closed out the Forum by emphasizing how vital your feedback is to the development of Congress.gov and thanked Chief Information Officer Bud Barton, who was retiring the week after the Forum was held, for his dedication and years of service to the Library. If you did not get a chance to attend the Public Forum, you can submit your feedback here.

You can watch a recording of the Public Forum here:

Categories: Research & Litigation

From the Serial Set: Birds and the Law

In Custodia Legis - Mon, 09/13/2021 - 8:00am

“The general barrenness of the country lying along our route proved a considerable obstacle to the pursuit of my favorite branch, Ornithology; though among the few species obtained some are new, and most of them rare, and concerning whose habits little was previously known.” ) – Lieutenant John G. Parke (H. Exec. Doc. 91 pt. 10, 33d Cong., 2d Sess. at 7 (1854) reprinted in Serial Set vol. 800.)

The Migratory Bird Treaty Act of 1918 implemented the terms agreed upon in the convention signed by the United States and Great Britain (on behalf of Canada) in 1916. The treaty established “close seasons,” or terms during which it was prohibited to “hunt, take, capture, kill…, possess, sell, purchase, [etc.]” certain migratory bird species. (40 Stat. 755) The U.S. Fish and Wildlife Service maintains a page where links to the lists of protected bird species are available.

An important exception made to this law is that First Peoples “may take at any season auks, auklets, guillemots, murres and puffins, and their eggs, for food and their skins for clothing.” (Protection of Migratory Birds, 1916, 39 Stat. 1702; T.S. 628, at 377.)

An earlier law, passed May 7, 1894, was “An Act to protect the birds and animals in Yellowstone National Park, and to punish crimes in said park, and for other purposes.” The only exception to this law was the necessity to intervene “to prevent [animals] from destroying human life or inflicting an injury.” (28 Stat. 73.)

Reports of explorations and surveys published in the United States Congressional Serial Set contain colorful illustrations of birds across the world. The Digital Resources team especially enjoyed discovering color illustrations of birds while preparing these volumes for digitization. Here are some of my favorites:

The U.S. Naval Astronomical Expedition reports are the key source of these illustrations. Lieutenant James Melville Gilliss, founder of the United States Naval Observatory, is the author of the report, “The U.S. Naval Astronomical Expedition to the Southern Hemisphere during the Years 1849-50-51-52,” which was published in six volumes.

Title page of Volume I of U.S. Naval Astronomical Expedition to the Southern Hemisphere – Chile. (H. Exec. Doc. 91 pt. 10, 33d Cong., 2d Sess. at 1 (1854) vol. 800)

In the years 1853-1856, the Secretary of War directed surveys of the area now known as the western United States, from the “Mississippi River to the Pacific Ocean,” in preparation for designing the railway infrastructure. Many of the documents included in this report recorded the wildlife encountered along the way – along with lithographs and descriptions. The following are two examples:

We’re delighted to continue sharing the visual value of the Serial Set reports, giving our readers a glimpse of different aspects of the United States over time. We look forward to sharing more illustrations as the digitization process continues!

Categories: Research & Litigation

Limpieza de Sangre: Legal Applications of the Spanish Doctrine of “Blood Purity”

In Custodia Legis - Fri, 09/10/2021 - 8:40am

The following is a guest post by Meghan Berry, who served as a summer 2021 remote intern transcribing and researching documents in the Herencia: Centuries of Spanish Legal Documents crowdsourcing campaign at the Law Library of Congress.

Brief on behalf Pedro Francisco Molines of Mallorca, in the case versus María Aguiló concerning the fact that he should neither marry nor endow her. [Ca.XVII Century].

One of the thrills of working on the Herencia document collection is the possibility of stumbling across an especially dramatic human story amidst the more standard pages of statute and precedent. One of the most fascinating items that I came across over the course of my summer internship is the 17th century Brief on behalf Pedro Francisco Molines of Mallorca, in the case versus María Aguiló. I am not the first reader to find this document compelling: the first page has a pencil note scrawled in the margin reading “¡Muy curioso!” [Very curious!]

The brief opens with a history of the romantic involvement between Pedro Francisco Molines and María Aguiló before arguing, in seven separate points, that the defendant has no legal obligation to marry María and can in fact be prevented from doing so.

From the statement of facts in this case it appears that María and Pedro were carrying on a secret relationship, with an enslaved person acting as a go-between, delivering gifts and tossing rocks at Pedro’s window during the night. María and her family believe that she was given several verbal promises of marriage during this relationship, and they now want Pedro to honor the engagement. The most intriguing element of this document is how many of the arguments on Pedro’s behalf are based in the Spanish concept of limpieza de sangre, or “cleanliness of blood.” Regardless of whether the existence of an engagement can be confirmed, the brief’s authors use the doctrine of blood purity to discount María from any alliance with the Molines family.

The legal concept of limpieza de sangre developed in Spain around the 15th century as a way to differentiate between “Old Christians” of Catholic heritage, and conversos, the newer Christian converts of known or suspected Jewish or Muslim heritage (Kaplan, at 19). This idea was used to develop statutes preventing those of Jewish heritage from participating in many areas of civic life. Obsession with limpieza de sangre led to social strife as the Inquisition led to the punishment of conversos suspected of backsliding into Judaism. Families and church authorities watched marriages closely to ensure that Old Christian bloodlines did not become entangled with families of impure status.

In the case of Pedro and María, the author of the brief writes again and again that the Jewish people are considered to be “infamous in the eyes of the public” and that the rights of anyone of Jewish ancestry can be more or less discounted. Several Church authorities are cited to support this conclusion (Brief, pp. 6-7):

…siendo como queda provado la referida Aguiló descendiente de Judios, y estos ser infames, por dicha infamia, aunque huviera Esponsales, no deveria casarse dicho Molines con ella; por ser de limpia sangre…

…being that the aforementioned Aguiló has proven to be the descendant of Jews, and these being disgraced, by said infamy, even if they had been engaged, said Molines should not marry her; because he is of clean blood…

Such a firm and repeated invocation of limpieza de sangre indicates that the concept was relied upon to resolve similar cases of dispute over marriageability. Additionally, the citation of church scholars on this issue gives us insight into the context of the 17th century Spanish legal system, where both civil and canon laws were applied as needed. State authority was mixed with that of the Catholic Church to legally enforce religious discrimination, especially through the acts of the Inquisition.

The last page of the brief explains that a judge has the power to jail Pedro until he finds a more suitable woman of “pure blood” to marry. The document is then signed by about 15 men proclaiming their agreement with the case against María due to her blood status. Most of the signatories are friars and other scholars of canon law, further demonstrating the power of religion in this case to explain and support the enforcement of anti-Semitic limpieza de sangre laws. A couple of centuries later, Pedro would have needed a new reason to escape from his promises to María. A law was eventually passed in 1865 that ended the use of blood purity as a qualification for marriage (Kamen, at 254).

Sources
Brief on behalf Pedro Francisco Molines of Mallorca, in the case versus María Aguiló concerning the fact that he should neither marry nor endow her. [Ca.XVII Century].

Kamen, Henry. The Spanish Inquisition: A Historical Revision. New Haven: Yale University Press, 1998.

Kaplan, Gregory B. “The Inception of Limpieza de Sangre (Purity of Blood) and its Impact in Medieval and Golden Age Spain.” In Marginal Voices: Studies in Converso Literature of Medieval and Golden Age Spain, 19-41. Leiden: Brill, 2012.

Categories: Research & Litigation

An Impassé at the Musée – The American Battle Monuments Commission and the French Health Pass

In Custodia Legis - Thu, 09/09/2021 - 10:30am

This is a guest post by Elizabeth Boomer, an international law consultant in the Global Legal Research Directorate. Elizabeth has previously written for In Custodia Legis on Technology & the Law of Corporate Responsibility – The Impact of Blockchain30th Anniversary of the United Nations Convention on the Rights of the ChildUnited Nations Day – A Time to Reflect on the Potential Role of the International Court of Justice, and Informality Beyond COVID-Casual – IMF and ILO Report on the Global Informal Workforce.

Arriving at the pristine American Cemetery in Normandy, a visitor’s first stop before touring the burial grounds is the visitor center, where one can learn all about the D-Day beaches and talk to experts about the site and its history. You can imagine our surprise when my husband and I arrived at the visitor center in August, only to discover that it was completely closed to the public – until further notice. Upon further inspection, we found this sign:

Sign outside of the visitor center announcing that it is closed until further notice. Photo courtesy of Elizabeth Boomer.

While disappointed to not be able to visit the visitor center, we were equally intrigued as to why there would be a conflict between the new French health pass, required to enter all museums and restaurants in France, including the Louvre, the Musée d’Orsay, and even the Rodin Gardens, and the authority of American Battle Monuments Commission (ABMC) staff to control it? Unfortunately, my research did not shed any light on the reason why they could not control the French health pass. However, the impassé brought up some interesting questions about the United States’ physical presence outside its territory, and the applicable law.

The American Battle Monuments Commission

Established by Congress in 1923, the ABMC is an agency of the United States executive branch that commemorates the service, achievements, and sacrifice of U.S. armed forces. The ABMC administers, operates, and maintains 26 permanent American military cemeteries and 31 monuments, located in 17 countries across Europe, Asia, Central America, and the Middle East. ABMC cemeteries commemorate nearly 35,000 interments and memorializations for World War I, and close to 200,000 interments and memorializations for World War II. The ABMC also administers cemeteries and memorials for U.S. service members from the Korean War and the Vietnam War.

The Law at the American Cemetery

The treaty governing the American Cemetery in Normandy is the Agreement relating to the grant of plots of land located in France for the creation of permanent military cemeteries or the construction of war memorials, with annexes (275 UNTS 37) (Cemetery Agreement), signed by the United States and France in 1956, and registered with the United Nations in 1957. The treaty granted designated plots of land, as enumerated in the maps in the annexes, to the United States for exclusive use to create permanent military cemeteries and the construction of war memorials, without limitation of duration. While the agreement provides that the United States administers the cemeteries and war memorials, it stipulates in article 4 that “It is understood that the Government of the United States will submit and conform to the French laws and regulations on the policing of burial grounds…” Reflecting on this agreement, the ABMC notes that the cemetery grounds are not American territory, and that host nation law applies.

Land Grants vs. Lease Agreements

The legal situation in most instances where the United States is physically present in another country is substantially different. While the law applicable at the American Cemetery in Normandy is clearly French law, per the land grant conveyed by the Cemetery Agreement, the United States most commonly uses lease agreements when it has a physical location in a foreign country. Lease agreements, such as the 1901 lease agreement (7 Bevans 1113) between the United States and Cuba for Guantánamo Bay, which are commonly used to establish U.S. military bases around the world, provide that while the lessor state continues to have ultimate sovereignty over the area, the lessee state exercises complete jurisdiction and control.

In the case of embassies, the legal situation is also different – in this case, the sending country, say the United States, is accorded certain immunities from the host country’s laws, through various treaties. The Vienna Convention on Diplomatic Relations (596 UNTS 261) a widely ratified treaty with 193 parties, provides that the premises of the mission shall be inviolable (article 22) and exempt from taxes (article 23). However, whether leased or purchased, the physical presence of the embassy in the host country would not be “U.S. territory,” as is commonly assumed.

International Law and Gravesites

Beyond the specific question regarding which law applies at the American Cemetery in Normandy (French, per the Cemetery Agreement), it can also be interesting to inquire whether other sources of international law have anything to say about cemeteries and gravesites for military personnel. In fact, articles 225 and 226 of the 1919 Treaty of Versailles (2 Bevans 43) provide that the signatories to the treaty commit to respect and maintain the graves of the soldiers and sailors buried in their respective territories. In addition, the various instruments regulating international humanitarian law provide a series of provisions on war dead and their gravesites, including respecting religious beliefs when possible. Closely related to this issue, international human rights law can also be an important source of law in governing and protecting cemeteries and gravesites, including by recognizing freedom of religion and the right to privacy, as provided in the International Covenant on Civil and Political Rights (TIAS 92-908) (ICCPR), as well as various regional treaties and legal instruments.

While unable to explore the visitor center at the American Cemetery in Normandy, all was not lost. We were able to access the cemetery grounds, where we were privileged to witness the evening lowering of the American flag.

Lowering of the American flag at the American Cemetery in Normandy. Photo courtesy of Elizabeth Boomer.

 

 

Categories: Research & Litigation

The Congressional Cemetery: A Stop on the Underground Railroad Network to Freedom

In Custodia Legis - Wed, 09/08/2021 - 7:30am

Washington, D.C., and its surrounding areas are known for countless historical monuments and markers. Today’s post highlights some less well-known memorials, focusing on individuals buried at the Congressional Cemetery who have been recognized by the National Underground Railroad Network to Freedom.

Created by an act of Congress in 1998, the Network to Freedom program unites government entities with individuals and organizations to “honor, preserve and promote the history of resistance to enslavement through escape and flight, which continues to inspire people worldwide.” Researchers who are interested in learning more about the hundreds of locations that have been designated under this program can explore its sites, programs, and facilities using an interactive map created by the National Park Service.

Screen capture of the National Park Service’s interactive map with sites on the Underground Railroad Network to Freedom.

Below you will find information about individuals whose gravesites are listed under the Network to Freedom, as well as their connections to the Underground Railroad (UGRR). The information in the parentheticals indicates where each person’s tombstone can be found in the Congressional Cemetery.

William Boyd, 1820-1884 (R5 S222)

Gravesite of William Boyd, 1820-1884. Photo taken by Anna Price.

William Boyd was known as a “conductor” on the UGRR. According to a February 14, 1854 (col. 7) obituary notice from the Evening Star, Boyd was “determined to engage in the work himself, and when a runaway arrived he generally was secreted by Boyd till he got his wagon – one with a false bottom, in which the runaway could hide . . . and would make his way to the Pennsylvania line.” In November 1858, he was caught near Pennsylvania with two enslaved persons in the back of his wagon, for which he was tried and sentenced to 14 years of hard labor in February 1860 (col. 2). In 1863, President Lincoln pardoned Boyd, who continued advocating against slavery while residing in Washington, D.C. During a riot in southwest D.C. in 1865, Boyd was seriously injured when he was struck in the face with a brick, which broke his jaw and blinded him in one eye (col. 5). Boyd passed away in his home on February 13, 1884.

John Dean, 1813-1863 (R83 S181)

Gravesite of John Dean, 1813-1863. Photo taken by Anna Price.

Shortly after the Emancipation Proclamation was published, John Dean, an attorney, originally moved to Washington, D.C., from New York to work for the Treasury Department (col. 2). Soon after his arrival, he began taking on cases to challenge the application of “fugitive slave laws,” particularly the Fugitive Slave Act of 1850. Between 1862 and 1863, Dean represented clients in approximately seven cases to “test certain points of law” (col. 2) but seldom prevailed. According to various accounts, four of his clients were returned to people who claimed ownership over them, outside D.C.; one person joined the military (col. 5) to avoid recapture. Dean died of pneumonia in his home on October 16, 1863 (col. 5).

David A. Hall, 1795-1870 (R34 S63)

Gravesite of David Hall, 1795-1870. Photo taken by Anna Price.

David Hall moved to D.C. around 1820 to study law. As a lawyer, Hall represented freedom-seekers in courts across the District and Maryland. He is known for representing William Jones, a free Black man who had been falsely arrested and confined in a D.C. jail. According to a petition by Jones and Hall, which was presented to Congress by Rep. Joshua Giddings, Jones was notified that he would be “sold as a slave by the marshal of the United States to pay the expenses of his imprisonment . . .” Additionally, Hall defended individuals who were criminally charged for the Pearl incident. He later gained a reputation for representing abolitionists who were accused of “abducting” enslaved persons, including William Chaplin (col. 3), who was arrested for transporting two enslaved persons from D.C. to Pennsylvania.

Hannibal Hamlin, 1809-1862 (R64 S75)

Gravesite of Hannibal Hamlin, 1809-1862. Photo taken by Anna Price.

Born in 1809, Hamlin moved to D.C. in 1861 to work for the Treasury Department. At this time, many freedom-seekers from Maryland and Virginia were moving to the area based on rumors that President Lincoln was planning to sign a bill emancipating enslaved persons in D.C. In response to this influx, Hamlin co-founded the National Freedman’s Relief Association of Washington, D.C. (col. 2). According to a posting about the organization in the Evening Star, the purpose of this group was “to furnish assistance and protection to the large number of ‘contrabands’ who [were] flying to Washington as a city of refuge.” In 1862, Hamlin traveled to Fort Monroe in Virginia to review the living conditions of self-emancipated individuals who were seeking refuge there. After his trip, he fell ill and died on November 14, 1862 (col. 2).

To learn more about the Congressional Cemetery, you can read some of our blog posts, such as Congressional Cemetery Series: Celebrating Pride Month, Which Signatory of the Declaration of Independence is Buried in Washington, DC?, and “Would You Be Interested in Getting (Attorney General) William Wirt’s Head Back?” Rebecca Roberts Brings Us a Tale From the Congressional Cemetery.

Categories: Research & Litigation

Congress.gov September 2021 New, Tip and Top, Part 1

In Custodia Legis - Tue, 09/07/2021 - 11:05am

We celebrated the beginning of meteorological fall with our Congress.gov Public Forum on September 2, 2021. The forum opened with a recap by Andrew of the enhancements to Congress.gov since last fall. We will be posting a recording of this forum in the near future.

In the meantime, our release today includes historical content in the form of the Bound Congressional Record, which now goes back to 1919. We are also bringing you new, two-minute tip videos that will help you learn how to find and explore a bill on Congress.gov. In addition, this release adds enhancements to make our new, searchable help center more accessible. Please see the full list of enhancements below.

Congressional Record (bound edition) 1919-1921, 66th Congress

Enhancements

New – Two-Minute Tips – Videos

  • Find a Bill and Explore a Bill videos feature narration and closed captioning to help you learn more about using Congress.gov to locate bills, resolutions and amendments.

Enhancement – Congressional Record – Bound Edition

Enhancement – Congressional Record – PDF File Size

  • Congressional Record search results (expanded view) and section pages display the file size for each PDF to help you understand why a file may be slow to load in your browser.

Enhancement – Legislation – Search

  • Use the cosponsorWithdrawnDateStr: field label to find bills, resolutions and amendments with cosponsors who withdrew on a specific date or within a range of dates.

Enhancement – Help Center – Improved Accessibility

Help Center pages with expand and collapse accordions, such as the Enhancement Timeline and Search Tools, have been redesigned to be more accessible for screen readers.

Search Tip

Refining Search Results with Filters.

Filters are a convenient way to refine your search results by selecting additional search criteria from among those available in your initial result set. A filter represents a particular data field and displays all the values contained in that field.

Most-Viewed Bills

These were the most-viewed bills for the week of August 29, 2021.

1. H.R.4980 [117th] To direct the Secretary of Homeland Security to ensure that any individual traveling on a flight that departs from or arrives to an airport inside the United States or a territory of the United States is fully vaccinated against COVID-19, and for other purposes. 2. H.Res.57 [117th] Impeaching Joseph R. Biden, President of the United States, for abuse of power by enabling bribery and other high crimes and misdemeanors. 3. H.R.3684 [117th] Infrastructure Investment and Jobs Act 4. S.Con.Res.14 [117th] A concurrent resolution setting forth the congressional budget for the United States Government for fiscal year 2022 and setting forth the appropriate budgetary levels for fiscal years 2023 through 2031. 5. H.R.1319 [117th] American Rescue Plan Act of 2021 6. H.R.4 [117th] John R. Lewis Voting Rights Advancement Act of 2021 7. H.R.4 [116th] Voting Rights Advancement Act of 2019 8. H.R.6666 [116th] COVID-19 Testing, Reaching, And Contacting Everyone (TRACE) Act 9. H.R.3648 [117th] EAGLE Act of 2021 10. H.R.1996 [117th] SAFE Banking Act of 2021
Categories: Research & Litigation

The Royal Order of October 1749 and the Historic Consequences of the Great Roma Round-up

In Custodia Legis - Fri, 09/03/2021 - 8:11am

The following is a guest post by Jacklyn van der Colff, who served as a summer 2021 remote intern transcribing and researching documents in the Herencia: Centuries of Spanish Legal Documents crowdsourcing campaign at the Law Library of Congress.

Note: this post uses a racial pejorative as it originally appears in the collection item record as well as in the common English title of the historic event that it describes.

Royal Order of October 1749 establishing the instructions to be followed by the Commanders, Governors and other officials of the Kingdom with regard to the capture of gypsies [i.e. “gitanos”].

The Herencia campaign contains a plethora of 17th-18th century Spanish legal documents that are divided by subject into unique sections. Within these sections, subjects range from financial regulations to property rights, and even criminal cases. However, while the diversity of documents within the Herencia collection serve as an extraordinary tool for scholars to discover more about Spain’s complex sociopolitical and cultural history, the Royal Order of October 1749 tells a part of the painful, yet important story of the Roma people of Spain during the Enlightenment period. Unfortunately, in many parts of contemporary Europe, the consequences of the historic marginalization and persecution of the Roma can still be felt today.

The Royal Order of October 1749 was issued under the reign of King Ferdinand VI three months after the Marquis of Ensenada’s secretive commands to capture and incarcerate Roma people, who were pejoratively referred to as gitanos or “gypsies.” This had led to the arrest of what is estimated to be between 9,000 to 12,000 people on July 30, 1749. This event is known as the Gran Redada de Gitanos or the Great “Gypsy” Round-up. During the roundup, Roma from over 50 towns were separated from their family members based on gender and age and had all of their property confiscated. Women and young children were moved to multiple facilities, typically factories, while men and teenage boys were forced into grueling labor. Elderly people and those unfit to work were sent to hospitals and homes to live out their final days.

However, due to numerous complaints and administrative issues, The Royal Order of October 1749 was issued. It called for the release of those people who were mistakenly incarcerated or deemed “good” gitanos. The distinction between a “good” or “bad” gitano came down to several contingencies: the “good” must be legitimately married and their children “legitimately procreated,” follow the laws, and have official documentation proving they are not gitano. While those released were allowed to return home, in many cases much or all of their property had already been auctioned off by the Spanish government. According to the second page of the Royal Order, those who did not meet these requirements were defined as members of “la mala casta de Gitanos,” or the “bad caste of Gypsies,” and derogatorily referred to as an “antiguo contagio,” or ancient contagion, of the land. Although some Roma did manage to escape, section VI of the order warns the remaining unpardoned gitanos that:

[…] baxo las ordenes, y providencias, que se tuvieren por convenientes a estos fines, y à su seguridad; y que al que se huyere, sin mas justificacion, se le ahorque irremissiblemente.

[…] under the orders, and provisions, that were deemed convenient with these aims, and for their security; and so that whoever escapes, without further justification, be hanged irremissibly.

It was not until 1765, 16 years later, under the command of the new Bourbon king Charles III, that the arrested Roma people were released. The effects of this attempted extermination were devastating. Survivors’ families and communities were forever changed as many Roma were forced into hiding, faced deportation, and were left permanently scarred. After nearly two decades of persecution, even the distinctive Roma language, Caló, became practically extinct. Today, Roma are the biggest minority population in Spain and, although the government has put in place various initiatives to address certain issues, many Roma continue to face discrimination in education, employment, and other social and public areas. The implications of this prejudice are seen in the low literacy rates and high rates of unemployment and food insecurity in Roma communities.

Additional Sources & Readings

Drummond, Susan G. “Culture: Wanderings and Dwellings” in Mapping Marriage Law in Spanish Gitano Communities. Vancouver: UBC Press, 2005.

Education: the situation of Roma in 11 EU Member States. European Union Agency for Fundamental Rights, 2014.

Pym, Richard J. “The Bourbon Period” in The Gypsies of Early Modern Spain, 1425-1783. Basingstoke : Palgrave Macmillan, 2007

Taylor, Becky. Another darkness, another dawn: a history of Gypsies, Roma and Travellers. London: Reaktion Books 2014.

Categories: Research & Litigation

Join Us on 9/23 for a Webinar on Free Speech & the Regulation of Social Media in Egypt and Pakistan

In Custodia Legis - Thu, 09/02/2021 - 10:30am

On September 23, 2021, at 2pm EDT, Foreign Law Specialists Tariq Ahmad and George Sadek will present our next Foreign and Comparative Law webinar, “Free Speech & the Regulation of Social Media in Egypt and Pakistan.” Please click here to register.

In recent years, there has been increased global focus on the governmental responses to the dissemination of hate speech and false information online. This webinar will focus on current and proposed legal frameworks for regulating unlawful/harmful speech on social media platforms in Egypt and Pakistan. The presenters will address the obligations (e.g. content removal) and liabilities of social media companies, the criminalization of certain online content, and the free speech implications for these limitations on online platforms. The presentation will include a discussion of the controversy surrounding recently issued and revised social media rules in Pakistan as well as types of criminal acts on social media and their penalties under Egyptian law.

Flyer announcing upcoming foreign law webinar on “Free Speech and the Regulation of Social Media in Egypt and Pakistan.” Created by Kelly Goles.

About the presenters:
Tariq Ahmad and George Sadek are foreign law specialists at the Law Library of Congress.

Tariq’s research work at the Law Library covers mostly South Asian common law jurisdictions, particularly India and Pakistan. He also covers Canada and certain Caribbean countries. He takes a particular research interest in religion and law issues in the South Asia region. Tariq holds an LL.M. degree in international law from American University Washington College of Law and an LL.B. from University College London. He also holds a BA in political science from Ohio State University.

George conducts research on the laws of Arabic-speaking countries and Islamic law. Prior to joining the Law Library of Congress, he worked as a Middle East specialist in academic institutions and government agencies, such as the School of Advanced International Studies (SAIS) at Johns Hopkins University and U.S. Army Special Operations Command (USASOC). In 1999, he earned an LL.B. from Cairo University Law School in comparative international law. During his years at Cairo University, he studied three types of legal systems: Islamic Shari’a (law), common law, and civil law. In 2004, George earned a J.D. (equivalency) from George Mason University and an LL.M. (Masters in Comparative Law) from American University Washington College of Law.

Categories: Research & Litigation

FALQs: Impeachment Rules in Denmark

In Custodia Legis - Tue, 08/31/2021 - 1:00pm

This blog post is part of our Frequently Asked Legal Questions series.

Later this week, Denmark will hold its first impeachment proceeding (Rigsrett) in 26 years. The main proceedings (hovedforhandlingen) start on September 2. In this blog post, I will describe the process of impeachment in Denmark.

Picture shows Eigtveds Pakhus at Asiatisk Plads, Copenhagen, Denmark, which will house the Rigsrett proceedings against Inger Støjberg. Aug. 22, 2010. Photo by FlickrUser Felissy, used under Attribution-NonCommercial-NoDerivs 2.0 Generic (CC BY-NC-ND 2.0), https://creativecommons.org/licenses/by-nc-nd/2.0/.


Background

On February 2, 2021, the Danish Parliament voted to start impeachment proceedings against former Minister for Immigration and Integration Inger Støjberg. In 2016, Støjberg issued an instruction requiring the immigration authority to separate married asylum seekers when one or both of the spouses were younger than 18 years old. Since then, that instruction has been deemed illegal by the Danish Parliamentary. Ombudsman (Folketingets Ombudsman). The Ombudsman found that the instruction exceeded the powers of the ministry and that the instruction did not sufficiently address cases on an individual basis. The instruction was issued in order to prevent underage girls from being sexually assaulted by their husbands. According to the Ombudsman, a total of 23 couples were separated because of the instruction, of which two couples continue to live separately today, following requests from the under-age person.

1. What is a Rigsrett?

As specified in article 16 of the Danish Constitution (Grundloven) there is a special court for the impeachment of current and former members of the Danish government: Rigsretten, which is governed by the Act on Impeachment Court (Lov om Rigsrett).

The Rigsrett is made up of the 15 most senior justices of the Danish Supreme Court and an equal number of members chosen by the Danish Parliament. (§ 59 Grundloven.) The members appointed by Parliament to sit on the impeachment panel are elected in advance for six-year terms. Members of Parliament cannot serve or be chosen to serve on the panel. (§ 2 Lov om Rigsrett.)

Justices who are unable to serve in a particular case or at a particular time may be excused. In such a case, the number of members appointed by Parliament on the panel must also be reduced by a corresponding number. Under no circumstances may the Court of Impeachment proceed with less than 18 members, i.e. nine supreme court justices and nine members appointed by Parliament. (§ 6 Lov om Rigsrett.) 

The panel serving on the court against Inger Støjberg is made up of 13 justices of the Danish Supreme Court and 13 members previously appointed by the Danish Parliament.

As the court only meets on the rare occasion when Parliament has voted to impeach a minister, the Impeachment Court has no set building, and during the impeachment proceedings against Støjberg will meet at the Eigtveds Pakhus in Copenhagen.

There are no specific rules requiring a time schedule for the Rigsrett, but the Court is nevertheless bound by the general requirement that a court proceeding be conducted expeditiously.

2. Who can be brought before a Rigsrett?

The Danish Constitution (Grundloven) provides that sitting or former ministers can be impeached. (§ 16 Grundloven.)

3. Who determines who can be brought before a Rigsrett?

For an impeachment process to be initiated at least a simple majority of members of parliament must vote in favor of starting the process. (§ 16, Grundloven.) Before a vote on impeachment proceedings can be voted on, a parliamentary committee must make an inquiry into the actions of the minister and recommend that the minister be impeached. (18 ch. Forretningsorden for Folketinget.)

A clear majority of parliament (139 in favor and 30 against with 10 abstaining) voted to start impeachment proceedings against Støjberg earlier this year. A special commission has also reviewed the legality of the instruction (Instrukskommissionens Beretning 2020).

4. What are the conditions for finding a person guilty?

In accordance with section 5 of the Act on the Responsibility of Ministers (Lov om ministres ansvarlighed):

“A minister is convicted, if he,  intentionally or as a result of gross negligence, neglects those duties which are incumbent on him under the Danish constitution or other legislation or as a result of the nature of his position.

The provision in paragraph 1 applies when a Minister provides Parliament with false or misleading information or during parliamentary considerations of a matter conceals information that is significant for Parliament’s assessment of the matter.“

Thus, conviction requires that the minister acted either with intent or was grossly negligent in his or her actions.

5. What happens if the impeached is found guilty?

In accordance with section 6 of the Act on Responsibility of Ministers, upon conviction in the Rigsrett, a minister may be fined or imprisoned for no more than two years, depending on the severity of his or her violation. Fines are calculated as day-fines, i.e., fines based on the daily income of the convicted. Sitting ministers may also be removed from office.

Moreover, in this particular case, if convicted, Inger Støjberg may not be able to run for re-election to the Danish Parliament. Article 30 of the Danish Constitution provides that every person who has a right to vote in the parliamentary elections is also eligible to stand for election “unless the relevant person is convicted of an act, that in the eyes of the public makes him unfit to serve as a member of Parliament.”

6. Can a person convicted by a Rigsrett be pardoned?

Article 24 of the Danish Constitution provides that the Danish Parliament can pardon a person who has previously been convicted by a Rigsrett.

7. What prior impeachments have been made and what was the outcome?

There have been five impeachment trials prior to the impeachment of Inger Stjøjberg. The most recent trial was in 1995 against Erik Ninn-Hansen, who was sentenced to four months of imprisonment for having prevented the family reunification of Tamil refugees from Sri Lanka. (Rigsretten, Dom af 22. juni 1995 (U 1995.672).) Ninn-Hansen later brought a case against Denmark at the European Court of Human Rights (ECHR) based on the impartiality of the judges in his impeachment case but the ECHR unanimously found it inadmissible.

Several Danish ministers have also resigned under the threat of impeachment, including most recently Morgens Jensen, the former minister for food, fisheries, and equal opportunities, over a government instruction to kill all Danish minks in response to the COVID-19 pandemic.

On June 3, 2021, the Danish Parliament rejected a citizens’ impeachment proposal (a petition signed by more than 50,000 Danes) to impeach sitting Prime Minister Mette Frederiksen over her handling of the killing of Danish minks during the COVID-19 pandemic.

 

Categories: Research & Litigation
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