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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.

International: Negotiations Underway at WTO for Agreement on Fisheries Subsidies

(Dec. 6, 2019) On November 15, 2019, members of the World Trade Organization (WTO) held discussions on the difficulties they have encountered in curbing harmful fisheries subsidies through international trade negotiations, as well as on the potential ways such negotiations might be successful in the future. Underpinning this work, the WTO negotiating group has endorsed four working papers over the past year, reflecting members’ various positions on issues related to illegal, unreported and unregulated (IUU) fishing, with the goal of meeting United Nations (UN) Sustainable Development Goal (SDG) Target 14.6. The goal of Target 14.6 is “eliminating subsidies to illegal, unreported and unregulated fishing and for prohibiting certain forms of fisheries subsidies that contribute to overcapacity and overfishing, with special and differential treatment for developing and least-developed countries.”

As the International Centre for Trade and Sustainable Development notes in its report Fisheries Subsidies Rules at the WTO,

[t]here is strong evidence from economic modelling and case studies that subsidies to fishing can create incentives for over-capitalisation of the industry and for unsustainable levels of fishing effort. By the most recent estimates, subsidies to the fishing industry [among WTO members] amounted to around US$35 billion per year, of which around US$20 billion were given in forms that tend to enhance fishing capacity. Around 60 percent of assessed fish stocks are fully exploited and 30 percent are already overexploited.

Several other international organizations, including the Food and Agriculture Organization of the United Nations (FAO), the Organization for Economic Cooperation and Development, and the World Bank, have also brought attention to the importance of Target 14.6. In addition, the International Labour Organization (ILO) and the UN Organization for Migration have joined the FAO in noting that IUU fishing can commonly lead to transnational crimes, such as human trafficking and exploitation of migrant and youth workers.

While fishing was ranked the second most dangerous job in the world in 2019, only fourteen states have ratified ILO Convention No. 188 (2007), the treaty designed to provide minimum standards for the employment of workers on fishing vessels, including minimum age, conditions of service, safety of workers, payments, repatriation, accommodations, and other matters.

The many facets of legal disputes over IUU fishing continue to be debated among scholars and practitioners. In June 2020, the United Nations will host the UN Ocean Conference, in accordance with UN General Assembly Resolution No. 73/292, to support the implementation of Goal 14: conserve and sustainably use the oceans, seas, and marine resources for sustainable development.

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Italy: New Provisions on Recruitment of School Staff and Research Entities and the Qualification of Teachers Take Effect

(Dec. 6, 2019) On October 31, 2019, Decree Law No. 126 of October 29, 2019 (Decreto-Legge 29 ottobre 2019, n. 126) (D.L. No. 126), containing extraordinary measures on the recruitment of staff at school and research entities and on the qualification of teachers, entered into force in Italy. The new measures are aimed at tackling shortages in staff at public high schools throughout the country.

Measures on the Qualification and Recruiting of Teaching Staff

The new legislation authorizes the Ministry of Instruction, Universities and Research to establish a procedure for the qualification and examination of new high school teachers. This procedure is to be conducted at the national level but organized at the regional level. The goal is to obtain additional qualified high school teachers for the academic years 2020/2021 to 2022/2023, with a maximum of 24,000 posts. (D.L 126 arts. 1(1)–(3).)

Qualifications for Participation in Recruiting Procedures

The criteria for candidates to participate in recruiting procedures are as follows: (a) to have served between academic years 2011/2012 and 2018/2019 at high schools for at least three years, even if not consecutively; or (b) to have served for at least one year in the specific type of academic post for which the candidate is competing; or (c) to possess the scholastic diploma required by law for the specific class concerned. (Art. 1(5).)

Measures to Counter the Proliferation of Fixed-Term Contracts

The Law includes measures to tackle the proliferation of fixed-term contracts at state high schools throughout the country. The requirement of past service for candidates considers only service rendered at public high schools. Additionally, only staff who have served as support teachers are eligible for teaching positions. Exceptionally, staff who have served at private schools in the national educational system may be considered if they comply with the other qualifying criteria. (Arts. 1(6), 1(7).)

Simplification of Acquisition Procedures for Research Institutions

In accordance with Law No. 296 of December 27, 2006 (Legge 27 dicembre 2006, n. 296) on the Annual Budget of the State, the new legislation waives the requirement that state universities and artistic, musical, and choral institutions use the electronic market and the telematic network for acquiring goods and services connected to their research activities. (Art. 4(1).)

Additional Measures

Other measures in D.L. No. 126 include provisions on the recruitment of school and technical management staff at the Ministry of Instruction to ensure the functioning of educational institutions (art. 2) and amendments to increase the state budget to support the new measures (art. 7(1)).

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Germany: Constitutional Court Rules Rent Control Law Constitutional

(Dec. 5, 2019) In an order published on August 20, 2019, the German Federal Constitutional Court (Bundesverfassungsgericht, BVerfG) declined to hear three cases that challenged the constitutionality of the federal rent control provisions. It stated that the rent control provisions do not violate the guarantee of private property, freedom of contract, or the general guarantee of equality. 

Facts of the Case

On June 1, 2015, the Tenancy Law Amendment Act entered into force in Germany, authorizing the individual German states to enact regulations to designate “tight housing markets” in which a rent cap would apply for the next five years. The “rent brake” (Mietpreisbremse) prohibits landlords from charging rent that is more than 10% of the local average rent for a new lease in an area that has been designated as a tight housing market. (BVerfG paras. 1–4; BGB § 556d.) Tight housing markets are defined as “municipalities or parts of a municipality in which the sufficient provision of affordable housing for the population is at particular risk.” However, a higher rent may be charged when the previous rent exceeded the maximum allowable rent, the premises were constructed after October 1, 2014, or the premises have been thoroughly modernized. (BGB §§ 556e, 556f.)

In 2015, Berlin issued a rent control regulation effective for the next five years that designated all of Berlin as a tight housing market. (BVerfG para. 8.) The Berlin Regional Court referred two cases to the Federal Constitutional Court, asking whether the rent control provisions violated the right to equality because the maximum permissible rent that landlords are allowed to charge differs depending on the state in which the property is located. Furthermore, the Court asked whether the exceptions to the rent control law unlawfully favored landlords who already charged an excessive rent before the law was enacted. (Paras. 13–14, 16.) In addition, the Federal Constitutional Court received a constitutional complaint from a landlady who was sued by her tenants for rent paid in excess of the 10% limit and alleged that the rent control provisions violated her property rights, the right to equality, the principle of legal certainty, and her freedom of contract as part of the general freedom of action. (Paras. 17, 20; Basic Law art. 2, para. 1; art. 3, para. 1; art. 14, para. 1; art. 80.)

Decision

The Federal Constitutional Court did not accept the referrals for review because the referring court did not give sufficient reasons why it was convinced that the rent control provisions are unconstitutional and that its decision depends on those provisions. Nor did it accept the constitutional complaint, as it had little prospect of success because the constitutional rights of the complainant had not been violated, in the opinion of the Court. (BVerfG paras. 32, 48.)

The Court stated that the constitutional right to property codified in article 14, paragraph 1 of the Basic Law had not been violated because, even though the provisions on rent control did infringe the right to property, the infringement was justified. It reiterated that the right to property is of particular significance for the social state. Any infringement must be justified by public interest and be proportional. The Court also stated that the rent control provisions aim to prevent the direct or indirect displacement of economically weaker segments of the population from areas where demand for residential housing is high, which is a legitimate goal in the public interest. In the view of the Court, while rent regulations may exacerbate the lack of housing due to a higher number of renters who can afford apartments in tight housing markets, rent caps eliminate price peaks and have a restraining effect on the development of the average local rent. (BVerfG paras. 54, 55, 60, 62, 63.)

The Court held that the rent control provisions are necessary. It is not certain that other means, such as the promotion of housing construction or the extension of housing benefits to more people, are equally effective. (Paras. 66, 67.)

The Court further stated that the rent-cap provisions are proportionate. It reiterated that the legislature must strike a fair balance between the rights of property owners and the common good and that it has broad discretion in doing so. The legislature may amend property provisions even if this results in negative consequences for property owners. Especially in the area of tenant law, which is a highly contentious social policy topic, a property owner must expect frequent changes in legislation and cannot rely on a currently favorable legal position. The constitutional guarantee of private property does not protect the expectation of receiving the highest possible rent from that property. (Paras. 73–76.)

The Court opined that the federal legislature may assume that the state legislature is generally better able to assess the local housing market than the federal legislature. Limiting rent control to tight housing markets ensures that it is applied only in areas in which renters are in need of special protection. Furthermore, the way in which courts interpret the term “tight housing market” limits tenant claims to those that are compatible with the legislative aims. (Paras. 78, 81.)

With regard to the use of the owner’s property, the Court held that linking the maximum permissible rent to the average local rent is not unreasonable. The impact of the rent control provisions is not immediate but will materialize gradually over time and is mitigated by the fact that the local average rent may be exceeded by 10%. Furthermore, exceptions exist for properties constructed after October 1, 2014, and for premises that have been thoroughly modernized. Lastly, the rent regulations are limited to a five-year period. The fact that a landlord may not be able to get the maximum profit out of his or her property does not constitute a permanent loss for the landlord, a threat to the substance of the property, or the loss of any reasonable use of the property. (Paras. 83, 85–88.)

The Court stated that the right to equal treatment codified in article 3, paragraph 1 of the Basic Law is also not violated by the rent control provisions. In the opinion of the Court, it is already doubtful whether landlords in different cities are in comparable situations. In any case, different treatment is justified. By referring to the local average rent, the federal legislature ensures that the rent is market-orientated and the property profitable. That criterion is also suitable and necessary. Differences in the maximum permissible rent reflect local differences in the housing market. Furthermore, even though landlords cannot influence the location of their property, it does not follow that there must be a federal uniform maximum permissible rent. Such a federal uniform maximum rent would lack a sufficient link to a tenant’s economic capacity and would not satisfy the legislative aim of preventing the displacement of low-income tenants. (Paras. 91, 96, 97, 99.)

The rent control provisions also do not violate the right to equal treatment by treating private and commercial landlords the same. In the opinion of the Court, the legislative aims justify an application of the rent control provisions irrespective of the economic significance of the rental income for the landlord. (Paras. 100, 101.)

The Court further stated that the rent regulation that Berlin passed did not violate the right to property because the state legislature had complied with the requirements of the Tenancy Law Amendment Act. (Paras. 108, 113.)

Related Development

On October 9, 2019, the German federal government adopted a draft act that would extend the regulations on rent control until 2025 and improve tenants’ rights to demand the return of rent that was paid in excess of the maximum allowed rent.

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Israel: Supreme Court Approves Deportation of Human Rights Watch Representative for BDS Support

(Dec. 5, 2019) On November 5, 2019, Israel’s Supreme Court rejected an appeal against an administrative court judgment approving the minister of interior’s decision not to renew the employment visa of the second appellant, Omar Shakir. The majority opinion was written by Justice Neal Hendel, with justices Noam Solberg and Yael Willner concurring. (AdminA 2966/19 Human Rights Watch & Omar Shakir v. Minister of Interior) (in Hebrew, all translations by author).)

Appellants’ Arguments

The claims of the appellants—the international human rights organization Human Rights Watch (HRW) and Shakir—centered on the “constitutionality and the interpretation” of the Entry into Israel (Amendment No. 28) Law, 5777-2017, which limits entry of persons who are engaged in boycott activities against the State of Israel. (Entry into Israel (Amendment No. 28) Law, 5777-2017 (Amendment Law); AdminA 2966/19 para. 3.)

They contended that “the denial of entry into Israel on the basis of a political position ‘violates the core essence of freedom of political expression, undermines the principle of equality – and threatens the core character of the democratic state’” in a disproportional way, thereby violating the basic rights of foreigners whose entry is denied and of Israelis and residents of areas under Israeli control who are interested in interaction with such foreigners. (AdminA 2966/19 para. 3.)

The appellants further argued that

Shakir’s actions – as a private person, and more so as an organization employee – do not constitute a boycott of Israel, because they were designed to protect human rights, and are directed at those involved in harmful activities. In this sense, it is, in their opinion, a common and legitimate practice of [human] rights organizations, which corresponds to the expansion of the application of international law on business corporations. (Para. 3.)

The appellants emphasized that although HRW focused on incorporating rules governing corporate liability into the field of human rights, it did not call for a boycott and was not a member of the Boycott, Divestment, Sanctions (BDS) movement. (Para 7.) As the boycott activities were not directed “only because of affiliation to the State of Israel,” HRW argued, they could not be defined as a boycott. (AdminA 2966/19 paras 3 & 7.)

The appellants argued that the Minister’s decision was inconsistent with relevant tests issued by the Population and Immigration Authority on July 24, 2017, for preventing entry into Israel of boycott activists. The appellants contended that according to these tests, entry of organizations’ activists into Israel should be examined in the light of their organizations’ activities. (Para. 3.) Because a significant part of the boycott activities attributed to Shakir involved the use of HRW’s Twitter account on the organization’s behalf, they alleged, these activities did not fall under the definition of a boycott. Considering that the State of Israel had not classified HRW as a boycott organization, they argued, these publications could not be viewed as constituting a call for a boycott. Additionally, some statements that Shakir had made in a personal capacity and were cited by the administrative court constituted merely an analysis of the BDS agenda and not a call for a boycott; and some were made prior to his entry into Israel in early 2017 and therefore did not constitute boycott activity that was “consistent and ongoing,” within the criteria established for “independent” boycott activists. (Para. 3.)

The respondents included the minister of interior along with several Israeli nonprofit organizations. They submitted detailed arguments, referred to in the decision of the Supreme Court.

Applicable Law

The authority of the interior minister to deny entry to boycott activists is based on section 2(d)–(e) of the Entry into Israel Law, 5712-1952, which was added by the Amendment Law. Under this section, a person who is not an Israeli citizen or a permanent resident must be denied entry into Israel if that person or an organization or a body on behalf of which that person acts has intentionally and publicly published a call to or a commitment to “boycott the State of Israel.”  The minister is authorized to deviate from the prohibition only under special conditions, which must be given in writing. (Amendment Law; AdminA 2966/19 para. 9.)

The Amendment Law defines “boycott of the State of Israel” in accordance with the definition provided under the Law for the Prevention of Harm to the State of Israel by Boycott, 5771-2011. Accordingly, a boycott of the State of Israel applies to the

[d]eliberate avoidance of economic, cultural or academic contact with a person or another party, only because of their affiliation with the State of Israel, one of its institutions or an area under its control, which is liable to harm [the State] economically, culturally or academically. (Law for the Prevention of Harm to the State of Israel by Boycott § 1.)

Supreme Court Decision

Addressing the constitutional challenges raised against the Amendment Law, Justice Hendel determined that these would better be made directly to the Supreme Court sitting as a High Court of Justice (HCJ)—a procedure that would require adding the Knesset (parliament) as a respondent—rather than indirectly during the appeal stage. A special petition centering on the constitutionality of the amendment was already pending before the HCJ in another case. (AdminA 2966/19 paras. 10–14 (note justices Solberg’s and Willner’s reservations regarding the legal standing of a foreigner claiming harm to the rights of Israeli citizens).)

Hendel determined that objectives of the two categories (individual as well as organizational activities) addressed in the Amendment Law were designed to accomplish the same goals—namely,

preservation of the sovereignty and security of the State of Israel, side by side with a concrete objection to “encouraging the just struggle conducted by the State of Israel against the boycott movement – on the basis of the doctrine of defensive democracy and the right of the State to defend and protect its citizens from discrimination.” … Therefore both are subject to the principle determination in the Alqasam case, according to which the arrangement determined in the … framework of Amendment No. 28 carries “a preventive and nonpunitive character.” (Para. 15.)

The Amendment Law, thus, did not apply to persons who ceased to engage in boycott activities. In Hendel’s opinion, consideration should be given to the nature of the activity itself. Therefore a distinction must be made between “an organization that dedicates itself to BDS activity [and] … one that engages in [such activity] one time in a random fashion.” (Para 16.) An additional distinction also should be made with regard to a prominent activist who disseminates the boycott agenda publicly, as compared with a private person acting within the premises of his family, Hendel added. (Para. 15.)

In Hendel’s opinion, the language of the definition of the term “boycott of the State of Israel” suggested that it contained only a boycott motivated by the link of the boycotted body to the State of Israel, its institutions, or an area under its control. In contrast, participation in a boycott against a particular body because of its flawed conduct, which is not necessarily related to its Israeli identity, did not fall within the scope of the Amendment Law, and did not constitute a ground for limiting entry into Israel. Referencing a previous Supreme Court decision, Hendel further concluded that “a boycott based on opposition to a general policy of the government of Israel, regarding an area under its control, comes under the boycott law – because it reflects negation of the legitimacy of the State regarding an activity, and does not derive from a specific action of the boycotted body.” (Para 18.)

Application to the Current Case

The minister’s decision was limited to Shakir’s employment visa and did not apply to HRW, which was not characterized by the State as a boycott organization and could therefore request employment of a different representative who was “not involved up to his neck in BDS activity.” (Para. 19.)

According to Hendel, the difference in treatment afforded to HRW and Shakir derived from the fact that HRW’s engagement in the Israeli-Palestinian arena constituted only a single component of the organization’s global activity, which did not justify classifying it as a boycott organization. The difference in treatment is also based on the personal record Shakir accumulated as an individual in boycott activities up to joining HRW. (Para 19.) The totality of Shakir’s actions, Hendel concluded, brought him personally within the application of section 2(d), resulting in the denial of his application. (Para. 20.)

This conclusion is based on the lower court’s finding that Shakir had engaged in “active, systematic and lengthy activity to advance boycotts against the State of Israel and bodies affiliated with it, or an area under its control.” Shakir was found to have repeatedly called, in various settings, for promoting the BDS movement, describing it as “an effective and moral way to change the balance of power between Israel and the Palestinians, and to promote a just solution to the conflict.” (Para. 18.) In 2015 Shakir signed a petition containing, among other things, a pledge “to engage with the Palestinian struggle and to do so honoring the BDS call.” In 2016 he participated in various panels in which he praised the boycott movement and discussed the benefits of the BDS strategy, and in 2017, after joining HRW, he published an update on a report calling for general withdrawal from Israeli banks. (Para. 18.)

Hendel further rejected the argument that Shakir’s activity was motivated by protection of human rights and therefore did not derive from affiliation to the State of Israel, its institutions, or an area under its control. He held that

a call for a boycott of Israel may come within the scope of section 2(d) of the Entry Law, even if it relies on arguments of protection of human rights, or the provisions of international law. In fact, it appears that the possibility of covering the [indecent] call for boycotts by the rhetoric of human rights would empty … [the Amendment Law] of its objective goal – a fight against the boycott movement [BDS]. These objectives indicate, therefore, that the phrase “only because of his affiliation with the State of Israel […] or an area under its control, is not limited to a boycott based on “political” opposition to this control – and may include boycotts that are based on identifying Israeli control of the area as a violation of international Law. …

The test is a substantive test, and the words covering for the delegitimation campaign will not provide immunity to their speaker. (Paras. 21–22.)

As the minister’s decision was limited to Shakir and did not extend to HRW in general or to any other similar organizations, Hendel found the decision to be reasonable, proportional, and within the authority of the minister under law. (Paras. 23–24.)

HRW’s Reaction

In commenting on the decision, HRW expressed concern about the “wider chilling effect” on human rights groups’ activities and the “increasing risk to their ability to continue operating in Israel and the Occupied Palestinian Territories.” HRW reiterated its claim that

[n]either Human Rights Watch nor Shakir as its representative has ever called for a boycott of Israel. As part of its global campaign to ensure that businesses uphold their human rights responsibilities to avoid contributing to abuses, Human Rights Watch has urged companies to stop working in or with settlements in the West Bank, which are illegal under international humanitarian law. The organization has never called for a consumer boycott of those companies.

HRW stated that “given the ruling’s far-ranging implications for freedom of expression and for the ability of other advocacy organizations to work in Israel,” it might “seek a hearing before an expanded panel of Supreme Court judges.” In its decision, the Supreme Court indicated that the constitutionality of the Amendment Law was to be addressed in another pending case. In addition to issues involving legal standing, as indicated by Justices Solberg and Willner, a request for a special hearing before an expanded panel is unlikely to be approved before the constitutionality of the Amendment Law is first reviewed by the Supreme Court in a panel of three justices.

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United Kingdom: Cabinet Office Details Government Actions to Tackle Public Intimidation Ahead of General Election

(Dec. 4, 2019) The Cabinet Office of the United Kingdom has issued an update detailing actions the government has taken to tackle public intimidation that candidates may face in the upcoming general election to be held on December 12, 2019. The experiences of many candidates during the 2017 general election resulted in the government commissioning a report into public intimidation of candidates in elections. The Cabinet Office has expressed concern that if intimidation and abuse are left unchecked, the way British democracy operates will change. A written statement from the Cabinet Office noted,

For those in public life, it has become harder and harder to conduct any political discussion, on any issue, without it descending into tribalism and rancour. Social media and digital communication – which in themselves can and should be forces for good in our democracy – are being exploited and abused, often anonymously.

The main emphasis of the update appears to be educating candidates about the existing laws that can be used to protect them from intimidation and how to report crimes of intimidation. The Cabinet Office has worked with the Crown Prosecution Service (CPS) to produce guidance on how members of Parliament (MPs) should respond to threatening behavior and when such behavior should be reported to the police. This guidance also applies to candidates. The guidance covers the following offenses: criminal damage; different types of assault; harassment; stalking; hate crimes; threats to kill; public order offenses; and indecent, grossly offensive, and menacing communications.

The guidance explains how the police decide whether or not to charge a suspect with an offense, and how the CPS determines whether to prosecute an offense using its Code for Crown Prosecutors. The guidance includes information about the Code of Practice for Victims of Crimes, which contains standards on how victims of crimes should be treated and the information they should receive. It further explains how decisions by the police not to refer cases to the CPS, and by the CPS not to prosecute can be challenged.

The National Police Chiefs’ Council, the Electoral Commission, the College of Policing, and the CPS have issued joint guidance on the possibly criminal behaviors candidates may be subjected to during election campaigns. Other than specific electoral offenses, the criminal offenses detailed overlap with those contained in the CPS guidance.

The Cabinet Office recently conducted a public consultation to obtain feedback on proposals designed to protect the UK’s electoral process and candidates from undue influence and intimidation. As a result of the consultation, the government announced that it would introduce legislation to create a new electoral offense, clarify the law of unduly influencing voters, and introduce a program of digital imprints for political advertisements to enable viewers to see who is responsible for publishing it. As the upcoming election is a snap election, the government did not have time to enact legislation to implement these proposals, but the Cabinet Office has stated that it is committed to introducing such legislation in the future.

The government has also introduced a program called “Defending Democracy” that intends to help maintain the integrity of the electoral process. The program is designed to

protect and secure UK democratic processes, systems and institutions from interference, including from cyber, personnel and physical threats;

strengthen the integrity of UK elections;

encourage respect for open, fair and safe democratic participation; and

promote fact-based and open discourse, including online.

On May 5, 2019, the Cabinet Office introduced a series of new measures as a part of this program to help protect democratic procedures, including a ban on people found guilty of abusive or intimidating behavior from running for office; a new offense of intimidating a candidate or campaigner during the electoral period; imprints on digital election material; and a consultation to examine the laws regulating foreign donations. As with the other proposed measures detailed above, the government did not have time to enact legislation on these proposals prior to the election.

At the local level, the police have been briefed on their role for protecting candidates and have a dedicated point of contact whom candidates may contact if they have any concerns. The Cabinet Office has stated that the government has provided security advice and guidance to all MPs and that “there is a package of security measures available for homes and constituency offices,” but did not detail what these measures include. The Cabinet Office has further stated that online activity that crosses the threshold into illegal activity should be treated in the same manner as illegal activity offline and reported to the police. The Cabinet Office, Home Secretary, and Secretary of State for Digital, Culture, Media and Sport have written to social media companies to advise them that they should provide advice to candidates in one place on their platforms on the type of content that breaches the platform’s terms and conditions, where to report breaches, and what to expect when they file a report.

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