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The Global Legal Monitor is an online publication from the Law Library of Congress covering legal news and developments worldwide. It is updated frequently and draws on information from official national legal publications and reliable press sources. You can find previous news by searching the Global Legal Monitor.

Sweden: Government Moves to Adopt More Restrictive Rules for Asylum Seekers

(Nov. 30, 2015) On November 24, 2015, the Swedish government announced that it would bring changes to Swedish asylum rules to a vote in Parliament, following reports from the Swedish Civil Contingencies Agency that the current refugee situation now is a risk to the life and health of people in Sweden because important forces of societal control (such as health providers and the police) cannot cope with the influx. Under the new rules, Sweden will adopt minimum rules that better correspond to those of other European Union (EU) countries.  This includes the granting of temporary residency permits to all asylum seekers except for quota refugees (refugees received under the United Nations High Commissioner for Refugees quota system).  (Press Release (with video), Regeringen föreslår åtgärder för att skapa andrum for svenskt flyktingmottagande, REGERINGEN (Nov. 24 2015); for information on Sweden’s UNHCR quota system, see SWEDEN, COUNTRY CHAPTERS – UNHCR RESETTLEMENT HANDBOOK (revised Sept. 2014).)

Under the new rules, families who applied for asylum prior to November 24, 2015, and whose children are younger than 18 years of age when their application is processed will continue to receive permanent residence. The government will also investigate the possibility of allowing private persons to house asylum seekers in their homes and to receive compensation for it.  (Id.)

Effective immediately, the police will adopt ID requirements for persons who travel to Sweden via public transportation from both Denmark and Germany. This is a move designed to reduce the number of asylum seekers who reach Sweden.  The borders will remain open for asylum seekers who have the requisite identification information.  (Id.)

The Moderate Party leader Anna Kinberg Batra has previously proposed that Sweden both close its borders to all asylum seekers who arrive from another EU country, i.e., apply the EU’s Dublin III Regulation strictly, and make a reduction in the Swedish annual monetary contribution to the EU budget as a response to what she describes as the disproportional burden on Sweden created by asylum seekers. (M: “Stoppa flyktingar som kommer via EU,” SVD (Nov. 9, 2015).) The Dublin III Regulation provides that asylum seekers should apply for asylum in the first EU country they enter. Applying the Dublin Regulation strictly would mean that any asylum seeker arriving via an EU country will be refused entry into Sweden because that the person should have sought asylum in the first safe EU country he or she entered on the journey to Sweden. The asylum seeker would thus have to remain in Denmark or Germany, which might not apply the Regulation as strictly. (Regulation (EU) No. 604/2013 of the European Parliament and of the Council of 26 June 2013 Establishing the Criteria and Mechanisms for Determining the Member State responsible for Examining an Application for International Protection Lodged in one of the Member States by a Third-Country National or a Stateless Person (Recast), EUR-LEX.)

In its announcement, which is expected to gain broad support in the Parliament, the government welcomed further talks with the four other political parties (the Alliance) that had worked with the government in October to adopt new rules on asylum. (Id.; Johan Wicklén & Kerstin Holm, Regeringen och Alliansen överens om flyktingmottagandet, SVT (Oct. 23, 2015); Luis Acosta, Sweden: Limit on Asylum Seekers Reached, Measures to Cope with Influx, GLOBAL LEGAL MONITOR (Nov. 12, 2015).)  Those rules have been deemed insufficient to stem the number of asylum seekers who continue to reach Sweden despite the Migration Authority’s announcement that it cannot provide housing to asylum seekers who arrive.  (Regeringen föreslår åtgärder för att skapa andrum for svenskt flyktingmottagande, supra.)

Although the new asylum measures will pass in parliament the government has received criticism from the Left Party that the restrictions go too far, stating “Sweden was the beacon of light [for asylum seekers]. That light has now been extinguished.” (Martin Nilsson, Flera kritiska röster efter regeringens migrationsbesked, SVERIGESRADIO (Nov. 24, 2015).)

Representatives of member parties of the Alliance, on the other hand, have criticized the government, claiming that the measures will not be successful in diverting asylum seekers to other EU countries. (Id.)

Prepared by Elin Hofverberg, Foreign Law Research Consultant, under the supervision of Luis Acosta, Chief, Foreign, Comparative, and International Law Division II.

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Taiwan: Law on Protection of Underwater Cultural Heritage Adopted

(Nov. 30, 2015) The main legislative body of the Republic of China (on Taiwan), the Legislative Yuan, adopted a new Law on Underwater Cultural Heritage Preservation on November 24, 2015. (Draft Law on Preservation of Underwater Cultural Heritage (Nov. 24, 2015), Legislative Yuan website (in Chinese) (scroll down to item 6 and click on hyperlink to access text of law).)  According to the Minister of Culture, Hung Meng-chi, the legislation is the first of its kind directed at safeguarding Taiwan’s submerged archaeological assets. (ROC Passes Underwater Cultural Heritage Bill, TAIWAN TODAY (Nov. 25, 2015).)

The Law was drafted in conformity with the United Nations Convention on the Protection of the Underwater Cultural Heritage and was developed due to the fact that Taiwan’s current Cultural Heritage Preservation Law lacks the concept of protection of the cultural heritage of the sea. (Legislative Yuan Passes the Law on Preservation of Underwater Cultural Heritage, Draft Fulfills Legalization of Our Nation’s Underwater Cultural Heritage Preservation Work, Ministry of Culture website (Nov. 24, 2015) (in Chinese); Convention on the Protection of the Underwater Cultural Heritage 2001 (Nov. 2, 2001, entered into force on Jan. 2, 2009), United Nations Education, Scientific and Cultural Organization (UNESCO) website; Cultural Heritage Preservation Act (May 26, 1982, as last amended Nov. 9, 2011), Laws & Regulations Database of the Republic of China website.)

In Hung’s view, the new law will not only “help advance local research in maritime history” but also further “the increasingly important field of undersea archaeology.” He added, “[g]iven Taiwan’s prime location in some of the world’s most important waterways, the nation requires a comprehensive legal framework to ensure the preservation, protection and management of its rich undersea cultural heritage resources.”  (ROC Passes Underwater Cultural Heritage Bill, supra.)

The Law is in seven chapters with 44 articles. The chapters cover general provisions, attributed rights and international cooperation, activities involving underwater cultural assets, modern preservation of underwater cultural assets, excavations in the sea, penalties, and supplementary provisions. Sea excavations will not be permitted unless: the nation’s historical position or identity is involved; lack of the underwater cultural asset might affect the completeness of the interpretation of the history of mankind; it is not sufficient to protect the seas without excavation, because major commercial market value is involved; there is a need to carry out underwater cultural heritage investigation and research; without the excavation, conservation, protection, or management will be insufficient because of a dire situation or an existing change in the environment; or there are other situations in which the competent authority deems it necessary to excavate the waters. (Draft Law on Preservation of Underwater Cultural Heritage, art. 34.)

The Ministry of Culture has stated that, to avoid underwater cultural assets being made subject to improper excavation, theft, damage or other destructive acts, the new Law imposes criminal or administrative penalties for such acts, with the nature of the penalties dependent on the degree of the acts’ severity. The maximum punishment is five years’ imprisonment and/or a fine of NT$10 million (about US$307,000).  (Legislative Yuan Passes the Law on Preservation of Underwater Cultural Heritage …, supra; Draft Law on Preservation of Underwater Cultural Heritage, art. 37.)  A “Supplementary Resolution” appended to the Law states that the central organ in charge (i.e., the Ministry of Culture) may designate a specialized agency for underwater cultural heritage, exclusively devoted to carrying out all types of underwater cultural heritage protection and management work.  (Draft Law on Preservation of Underwater Cultural Heritage, Supplementary Resolution, item 1; Legislative Yuan Passes the Law on Preservation of Underwater Cultural Heritage …, supra.)

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Australia: Victorian Parliament Passes Law Establishing Protest Buffer Zone for Abortion Clinics

(Nov. 30, 2015) On November 27, 2015, the Legislative Council (upper house) of the parliament of the Australian state of Victoria passed legislation that prevents protesters from coming within 150 meters (164 yards) of an abortion clinic.  (Abortion Clinic Protest Buffer Zone Law Passes Victorian Upper House, ABC NEWS (Nov. 27, 2015).)

A bill to establish “safe access zones” at clinics providing reproductive health services was originally introduced in August 2015 by Fiona Patten, a member of the Victorian parliament from the Australian Sex Party (a progressive, civil libertarian party established in 2009).  The general proposals were later adopted in a government-sponsored bill introduced by the state’s Health Minister, Jill Hennessy, in October, the Public Health and Wellbeing Amendment (Safe Access Zones) Bill 2015 (Victorian Legislation website; information on the original private member’s bill is also available on that website).  The Victoria Legislative Assembly (lower house) passed this bill on November 12, 2015.

Compared to the original bill, the government bill narrowed the application of the safe access zones to “premises at which abortions are provided” and set out specific prohibited behaviors.  It also included different penalties and provided for broader police enforcement and seizure powers.  (Paige Darby, Research Note on Exclusion Zones in Australia – Update 4 (Parliamentary Library & Information Service, Oct. 2015), Parliament of Victoria website.)

In the bill, as enacted, prohibited behavior is defined as

(a) in relation to a person accessing, attempting to access, or leaving premises at which abortions are provided, besetting, harassing, intimidating, interfering with, threatening, hindering, obstructing or impeding that person by any means; or
(b) subject to subsection (2) [related to employees of the premises] communicating by any means in relation to abortions in a manner that is able to be seen or heard by a person accessing, … [etc.] premises at which abortions are provided and is reasonably likely to cause distress or anxiety; or
(c) interfering with or impeding a footpath, road or vehicle, without reasonable excuse, in relation to premises at which abortions are provided; or
(d) intentionally recording by any means, without reasonable excuse, another person accessing, … [etc.] premises at which abortions are provided, without that other person’s consent; or
(e) any other prescribed behavior. (Public Health and Wellbeing Amendment (Safe Access Zones) Bill 2015 (Vic) (Safe Access Zones Bill) cl 5 (new § 185B), Victorian Legislation website.)

The penalty for engaging in one of these behaviors within a safe access zone, being an area within a 150 meter radius from an abortion clinic, is 120 penalty units or imprisonment for a term not exceeding 12 months.  (Id. new § 185D.)  The current value of a penalty unit is AU$151.67, making the maximum fine under this provision AU$18,200.40 (about US$13,100).  (Penalties and Values, Victoria Justice and Regulation website (last visited Nov. 27, 2015).)  There is also a separate offense of publishing or distributing a recording of a person accessing (etc.) an abortion clinic, with the same penalties applying.  (Safe Access Zones Bill, new § 185E.)

Prior to the passage of the bill, the Victorian Parliamentary Library noted, “Tasmania is the only Australian jurisdiction which has specific exclusion zones around abortion clinics, while the ACT [Australian Capital Territory] has recently passed legislation that is yet to commence.”  (Darby, supra, at 7.)  It also noted relevant provisions and debate in other countries, including Canada, France, South Africa, and the United States.  (Id. at 9-10.)  The research paper also provided background information on protests at abortion clinics in Melbourne and related legal action by a clinic that was initiated in 2014 and determined by the Supreme Court of Victoria in August 2015.  (Id. at 2-3.)

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Canada: Government Drops Appeal to Supreme Court over Niqab Ban During Citizenship Ceremonies

(Nov. 27, 2015) On November 16, 2015, John McCallum, the Minister of Immigration, Refugees and Citizenship, and Jody Wilson-Raybould, the Minister of Justice and Attorney General of Canada, issued a joint statement stating that the recently elected Liberal government would discontinue a request for appeal of a recent ruling of the Federal Court of Canada (which was also upheld by the Federal Court of Appeal) holding that a policy requiring women to unveil during the oath of citizenship ceremony was “unlawful on administrative law grounds.” (Government of Canada, Statement from the Minister of Immigration, Refugees and Citizenship and the Minister of Justice (Nov. 16, 2015).)

The policy requirement for women to remove their face veils when taking the oath of citizenship was first included in Citizenship and Immigration Canada (CIC)’s Operational Bulletin number 359, on December 12, 2011 (Kady O’Malley, SourceDocWatch: CIC Operational Bulletin on “Full and Partial Face Coverings” at Citizenship Ceremonies, CBC NEWS (Dec. 12, 2011)), and then was incorporated in CIC’s policy manual. (Ishaq v. Canada (Citizenship and Immigration), 2015 FC 156 (Feb. 6, 2015), ¶ 4.) The legal dispute arose when a Pakistani national, Zunera Ishaq, objected to the requirement on the ground that it interfered with her freedom of religion. (John Mastrangelo, Face-Coverings and the Canadian Citizenship Oath: The Federal Court of Appeal Decides ‘Ishaq v Canada, THE COURT (Sept. 21, 2015).)

While the government argued that the policy was merely a guideline, the Federal Court disagreed and held that the policy was mandatory in nature and that it interfered “with a citizenship judge’s duty to allow candidates for citizenship the greatest possible freedom in the religious solemnization or the solemn affirmation of the oath …” as enshrined in a provision of the Citizenship Regulations. (Ishaq v. Canada (Citizenship and Immigration), ¶ 68); Citizenship Regulations, SOR/93-246, ¶ 17(1)(b) (May 11, 1993, as amended), Government of Canada website.) The Court found that because the subsidiary policy was in conflict with the enabling regulation, it was invalid. (Ishaq v. Canada (Citizenship and Immigration), ¶¶ 55 & 57.) Since the decision could be made on non-constitutional grounds, the Court declined to decide the case on issues arising from the Canadian Charter of Rights and Freedoms. (Id. ¶ 67.)

On September 15, 2015, the Federal Court of Appeal, though it did not endorse all the findings of the Federal Court, dismissed the appeal on the grounds that there was “no basis to interfere with the Federal Court’s finding as to the mandatory nature of the impugned change in policy as this finding is overwhelmingly supported by the evidence.” (Canada (Citizenship and Immigration) v. Ishaq, 2015 FCA 194,¶ 4 (Sept. 15, 2015).) On October 5, the Federal Court of Appeal also rejected a motion to stay the previous decisions until the Supreme Court has decided on the matter. (Canada (Citizenship and Immigration) v. Ishaq, 2015 FCA 212 (Oct. 5, 2015).)

The previous, Conservative government had asked the Supreme Court to hear an appeal of the lower court rulings, but the recently elected Liberal Party government followed through with a campaign promise to drop the appeal. (Liberals Drop Controversial Supreme Court of Canada Niqab Appeal, THE STAR (Nov. 16 2015).)

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Indonesia: Limits on Foreign Investment in E-Commerce Proposed

(Nov. 27, 2015) According to a November 23, 2015, report, Indonesia’s Ministry of Trade is developing a new, more restrictive policy for foreign ownership of e-commerce businesses in the country. The new rules, designed to favor domestic online companies, would apply to online shopping and service businesses. (Govt Prepares Foreign Ownership Limits in E-Commerce, JAKARTA POST (Nov. 23, 2015).) The Director General for Domestic Trade, Srie Agustina, said that the government has been working to revise the negative investment list, the itemization of market sectors that are closed to foreign investment. The list is established in a presidential regulation. (Id.; Negative Investment List, Indonesia Investment Coordinating Board website (last visited Nov. 23, 2015); Presidential Regulation of the Republic of Indonesia, No. 39 of 2014, List of Business Fields Closed to Investment and Business Fields Open, with Conditions, to Investment, Indonesia Investment Coordinating Board website.)

Agustina stated, “[i]n the initial phase, foreign entities would be allowed to have a minority ownership in the e-commerce and marketplace [businesses].” (Govt Prepares Foreign Ownership Limits in E-Commerce, supra.) She added that eventually the plan is to have a cap of 30-40% foreign ownership in a business, but that the new rules would not be applied retroactively to companies that currently have a majority of shares held by foreigners. (Id.) Bambang Heru Tjahjono, the Director-General of Informatics Application at the Ministry of Communications and Information, noted that under the new regulation being considered foreigners would be permitted to invest in existing e-commerce companies, but not new domestic enterprises just starting operations. Foreigners could, however, create new e-businesses based in Indonesia. (Id.)

The marketing communications manager of the online business Global Digital Niaga said that the Indonesian e-commerce industry would benefit from the proposed changes; that favorable view was echoed by Gaery Undarsa, managing director of another Indonesian company, Global Tiket Network. Online businesses in Indonesia are projected to generate Rp49 trillion (about US$3.56 billion) in revenue in this year; that amount is expected to increase 26% in 2016. (Id.)

In a separate move concerning the negative investment list, last month the Indonesia Investment Coordinating Board, a government agency that assists foreigners planning to invest in the country, called for public comments on possible revisions to the list. In addition, the Board’s Frank Sibarani said that the Board “will be more open to investment in manufacturing, forestry, etcetera.”  (Hidayat Setiaji & Gayatri Suroyo, Indonesia Seeks Public Submissions for Revised Negative Investment List, REUTERS (Oct. 16, 2015); Our Services, Indonesia Investment Coordinating Board website (last visited Nov. 25, 2015).)

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