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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.

Romania: Same-Sex Marriage Decision Postponed

(Sept. 27, 2016) On September 20, 2016, the High Court of Cassation and Justice of Romania, for the second time, postponed making a decision on recognizing a same-sex marriage concluded between a Romanian citizen and a non-Romanian outside the country. The decision was previously postponed in July, with the Court saying it needed more time to consider the matter, and now a ruling is expected on October 27. Romania does not have legal same-sex marriage domestically. (Romanian Court Again Postpones Ruling on Same-Sex Marriage, ABC NEWS (Sept. 20, 2016).)

The High Court of Cassation and Justice (HCCJ) was established as the supreme court of Romania under a 2004 law. It has nine members and decides cases based on majority opinion. (Id.; High Court of Cassation and Justice of Romania, HCCJ website (last visited Sept. 26, 2016); Law No. 304 on Judicial Organization (June 28, 2004), HCCJ website (in Romanian).)

Background

A U.S. citizen, Claibourn Robert Hamilton, and a Romanian, Adrian Coman, who were married six years ago in Belgium, sued to have their marriage recognized in Romania; they are represented by an attorney, Iustina Ionescu, who is a board-member of ACCEPT, a Romanian civil rights organization that also employs Coman. In 2012 the couple began attempting to have their marriage sanctioned, because they hoped to move to Romania for work and, later in life, retire there.   Romanian immigration officials did not recognize their marriage. (Romanian Court Again Postpones Ruling on Same-Sex Marriage, supra; Gwenyth Gamble, Romania Court to Rule on Same-Sex Marriage Recognition, PAPER CHASE (Sept. 19, 2016).) Unless formal recognition is given to the relationship, Coman’s American spouse will not be permitted to reside in Romania. At present he can only stay in the country for three months at a time. (The Coman-Hamilton Case, ACCEPT website (last visited Sept. 26, 2016).)

Views on the Case

Coman expressed his frustration with the delay in the decision, although he did approve of the judges giving the issue careful consideration. He advocated the passage of a law on civil partnerships, which would allow Hamilton to live in Romania. Coman said, “Nobody else’s rights are infringed upon if Clai gets residence in Romania, or if he can talk to a doctor as my spouse if I am in the emergency room in Bucharest.” (Romanian Court Again Postpones Ruling on Same-Sex Marriage, supra.) His attorney argued that the Court should recognize that the right to privacy and family is guaranteed by the Constitution for all and that the Court should not be “influenced by social or political groups that are pleading against equal rights for LGBT persons.” (Id.)

The Alliance of Romanian Families has a different view, arguing that recognizing Coman and Hamilton’s marriage would be traumatic for Romania. David Tut, a spokesperson for the group, said, “[w]e are a Christian country … and we accept traditional families as they are defined in the Bible.” (Id.)

 

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Russia: New Requirements for Firearms Operation Licenses

(Sept. 27, 2016) In July 2016, the most recent amendments to the Russian Federal Law on Weapons entered into force. (Federal Law No. 227-FZ of July 3, 2016 on Amendments to Certain Legislative Acts of the Russian Federation and the Repeal of Certain Legislative Acts (Provisions of Legal Acts) of the Russian Federation in Connection with the Adoption of the Federal Law on Troops of the National Guard of the Russian Federation, ROSSIISKAIA GAZETA (July 6, 2016) (official publication, in Russian).) These amendments establish new requirements for the registration, licensing, and storage of hunting, sporting, pneumatic, and gas weapons and for military and hunting knives.

The amendments make exhibiting and collecting weapons and ammunition in Russia subject to licensing; newly issued licenses are valid for a six-month period. (Federal Law No. 150-FZ on Weapons, art. 9, (consolidated version of July 6, 2016) (in Russian).) Licensing is also required for developing, producing, testing, storing, repairing, and disposing of civilian and service weapons and ammunition. (Id. art. 9(1).) Purchase of a license, which is issued for five years with the possibility of renewal, allows for the acquisition of up to five permitted weapons. (Id.)

Licensing requirements are extended by the amendments to cold-bladed weapons used for hunting game, firearms with limited destructive capacities, and air guns with a muzzle energy exceeding 7.5 joules that are used for hunting. (Id. art. 13.) Similar requirements are established for rifles and smooth-bore long-barrel weapons of self-defense, long guns for hunting, sporting long guns, and air guns and firearms of limited range that may or may not require carry permits. (Id.) For weapons purchased for collecting purposes only, storage permits are issued for an indefinite period. (Id.)

To obtain a license to purchase weapons, the new amendments require submission of proof of the non-use or possession in the past of narcotic drugs or psychotropic substances. (Id.) Additionally, gun owners are required to submit a medical report indicating the absence of medical contraindications that would prohibit weapons possession and to pass a drug test every five years. (Id.) A similar medical report is required to obtain permits to store and use weapons given as awards to military officers. (Id. art. 20-1.)  Another amendment requires authorized weapons and ammunition dealers to report all buyers to the local police agency on a monthly basis. (Id. art. 18.)

After this amending law was signed by the President of the Russian Federation, two different versions of it containing different provisions on the term of validity for licensing weapons used for self-defense purposes were simultaneously published in official sources. One version provides for a five-year, the other for a ten-year, period of license validity. Russian commentators have discussed various options for resolving this technical glitch; their proposals range from establishing the application procedure at the discretion of the court to having the next State Duma (the legislature, which was elected on September 18, 2016) reconsider the issue. (Victor Khamraev, Zakon ob Oruzhii Dal Osechku [The Law on Weapons Has Misfired], KOMMERSANT.RU (July 6, 2016).)

Prepared by Olena Yatsunska, foreign law consultant, under the supervision of Peter Roudik, Director of Legal Research.

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UN: Call to Include Human Rights Provisions in Trade Agreements and Dispute Resolution

(Sept. 27, 2016) On September 13, 2016, the United Nations Independent Expert on the Promotion of a Democratic and Equitable International Order, Alfred de Zayas, called for all future trade agreements to include provisions extolling the primary importance of human rights. He also said that the treaties should be aligned with the duty that states have to meet the requirements of the human rights accords they have signed, as well as health and environmental goals. (Trade Agreements Should Mainstream Human Rights, UN Expert Urges, SOUTH-SOUTH NEWS (Sept. 13, 2016); Press Release, Office of the United Nations High Commissioner for Human Rights, Mainstream Human Rights into Trade Agreements and WTO Practice – UN Expert Urges in New Report (Sept. 13, 2016).)

Views on Treaties

On presenting a July 2016 report to the U.N. Human Rights Council, de Zayas stressed the importance of including these issues in trade agreements, stating:

Investors and transnational enterprises have invested new rules to suit their needs, rules that impinge on the regulatory space of States and disenfranchise the public. … In case of conflict, priority must be given to advancing the public interest rather than continuing the current emphasis on profit expectations of investors and transnational corporations. (Mainstream Human Rights into Trade Agreements and WTO Practice …, supra; Report of the Independent Expert on the Promotion of a Democratic and Equitable International Order (Report), A/HRC/33/40 (July 12, 2016), U.N. General Assembly website.)

He added that parties should “mainstream” human rights in trade agreements and World Trade Organization (WTO) regulations and that the development, negotiation, adoption, and implementation of trade agreements should not be carried out in secret. Instead, civil society stakeholders such as consumer organizations, health experts, and environmental groups should be included in every part of the process of creating trade agreements and putting them into effect. (Mainstream Human Rights into Trade Agreements and WTO Practice …, supra.)

Responsibility to Act

In his recent Report, de Zayas described the concept of “responsibility to act in the public interest” (R2A), a reformulation of the previous human rights concept of “responsibility to protect,” commonly referred to as R2P. (Id.) He stated that the focus of human rights attention should be extended “out of the narrow focus on protecting populations from war crimes and genocide to a broader duty to protect populations from war, military interventions and structural violence. The international community has an interest in reaffirming a duty to protect and actively advance civil, cultural, economic, political and social rights.” (Report, supra, ¶ 13.)

Views on Dispute Resolution Mechanisms

In addition to discussing the need to include human rights provisions in treaties, the report expresses the view that mechanisms to settle disputes between investors and nations, including WTO dispute resolution methods have had a bias in favor of business over human rights. (Mainstream Human Rights into Trade Agreements and WTO Practice … , supra.) De Zayas identified the following rights as potentially being curtailed by the trade dispute resolution process:

  • self-determination;
  • sovereignty over valuable natural resources;
  • life and health (particularly where access to generic medicines is blocked);
  • work in “decent” conditions;
  • access to information, including data concerning commercial treaties;
  • peaceful assembly and association; and
  • public participation. (Id.)

The Independent Expert argued:

The path to a democratic and equitable order is through the expansion of public courts, not the creation of private courts with questionable transparency, accountability or independence. … Arbitrators and judges must be required by their terms of reference to interpret trade agreements in the light of binding human rights treaty obligations. Domestic courts must deny effect to investor–State dispute settlement awards and WTO dispute settlement decisions that violate human rights.” (Id.)

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ICC: Court to Expand Focus to Environmental and Other Serious Crimes

(Sept. 26, 2016) On September 15, 2016, the International Criminal Court (ICC) announced that it will work on prosecuting environmental and other serious crimes. The announcement came in a press release and policy paper on how the Court will prioritize and select cases. By publishing the paper, described as an “internal document,” the Court hopes to increase transparency about its operations. (Brittany Felder, ICC to Focus on Environmental Crimes, PAPER CHASE (Sept. 16, 2016).)

According to ICC Prosecutor Fatou Bensouda, the policy paper will equip the office “with clear and transparent guidelines for the exercise of prosecutorial discretion in the selection and prioritisation of our cases.” She added that the decisions are made “[i]n accordance with the principles of independence, impartiality and objectivity … ” and “on the strength of sound, pragmatic and fair criteria.” (Press Release, Office of the Prosecutor, ICC Prosecutor, Fatou Bensouda, Publishes Comprehensive Policy Paper on Case Selection and Prioritisation (Sept. 15, 2016), ICC website.) Bensouda stressed that the new policy paper will help with the difficult decisions on how the ICC should use its finite resources to handle “the ever burgeoning demand arising from situations of mass atrocity.” (Id.)

The criteria for selecting cases are detailed in the policy paper. Decisions will be made on situations to investigate and prosecute

in light of the gravity of the crimes, the degree of responsibility of the alleged perpetrators and the potential charges. The weight given to each criterion will depend on the facts and circumstances of each case and each situation, and the stage of development of the case hypothesis and investigation. The Case Selection Document will be reviewed as investigations proceed, by applying the same case selection criteria. (Office of the Prosecutor, Policy Paper on Case Selection and Prioritisation, ¶ 34 (Sept. 15, 2016), ICC website.)

In addition to its traditional focus on crimes committed in armed conflicts, the ICC will now also focus on cooperating with national governments to aid in prosecuting such serious crimes as “illegal exploitation of natural resources, arms trafficking, human trafficking, terrorism, financial crimes, land grabbing or the destruction of the environment.” (Id. ¶ 7.) The paper also emphasized the role that can be played by various dispute resolution methods, including through “truth seeking mechanisms, reparations programs, [and] institutional reform … ,” in addition to traditional justice systems. (Id.) The ICC has committed itself to sharing information and evidence with national authorities, on the basis that crimes the Court is investigating may be linked to crimes being investigated under domestic law. (ICC Prosecutor, Fatou Bensouda, Publishes Comprehensive Policy Paper on Case Selection and Prioritisation, supra.)

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United Nations: Report on Debt Bondage

(Sept. 26, 2016) On September 15, 2016, Urmila Bhoola, the United Nations Special Rapporteur on Contemporary Forms of Slavery, presented a report on slavery in the modern world, in particular debt bondage, to the 33rd Session of the United Nations Human Rights Council (HRC), being held September 13-30, 2016.  (Debt Bondage Remains the Most Prevalent Form of Forced Labour Worldwide – New UN Report, Office of the High Commissioner for Human Rights (OHCHR) website (Sept. 15, 2016); Calendar of Meetings and Events 2016, OHCHR website (last visited Sept. 20, 2016).)

Bhoola stated, “[e]ven though it takes place worldwide across many sectors of the economy, and is a form of enslavement with deep historical roots, debt bondage – also known as bonded labour – is still not universally understood.” She said it “remains one of the most prevalent forms of modern slavery in all regions of the world despite being banned in international law and most domestic jurisdictions.” (Debt Bondage Remains the Most Prevalent Form of Forced Labour Worldwide – New UN Report, supra.)

Definition of Debt Bondage 

The Report explains that debt bondage is addressed in the Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery of 1956 as one of four practices similar to slavery or types of servitude (the others being serfdom, and certain kinds of exploitation of women and of children). (Report of the Special Rapporteur on Contemporary Forms of Slavery, Including Its Causes and Consequences (Report), A/HRC/33/46, ¶ 5 (July 4, 2016) (click on E to view English text); Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery (Supplementary Convention) (adopted Apr. 30, 1956, entered into force Apr. 30, 1957), OHCHR website.) Servitude can be viewed as “human exploitation falling short of slavery,” and debt bondage, while a type of servitude, can be characterized as slavery if the characteristics of ownership are present.  (Report, supra.)

Debt bondage, although not included in the definition of forced labor under the International Labour Organization (ILO) Forced Labour Convention, can be a form of forced labor, and the two practices overlap. (Id.)  The Convention refers to debt bondage as “work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily.” (Id.; CO29 – Forced Labour Convention, 1930 (No. 29) (adopted June 28, 1930, entered into force May 2, 1932), ILO website.)

The Supplementary Convention definition of debt bondage is broad enough, the Report comments, to cover workers in extremely different situations, “from in debt bondage in systemic, archaic, feudal systems of slave-labour exploitation,” to “migrant workers from developing countries who leave their countries accruing debt to cover the costs associated with recruitment.” (Report, supra, ¶ 8.)  In addition, there is a close relationship between debt bondage and various forms of exploitation, “including forced labour, the abuse of migrant workers, trafficking, and the worst forms of child labour.”  (Id.)

The Report further notes that debt bondage entails a power imbalance between the employer/ creditor and the worker/debtor that “often increases the worker’s vulnerability to further human rights abuses,” as “employers and creditors are reported to adjust interest rates, to make further deductions arbitrarily as penalties for perceived poor performance, and/or to charge high prices for basic goods or working tools resulting in an increase of the debt and the perpetuation of deeply exploitative situations.” (Id.  ¶ 7.)  In her remarks to the HRC, Bhoola emphasized that “[p]eople in debt bondage end up working for no wages or wages below the minimum in order to repay the debts contracted or advances received, even though the value of the work they carry out exceeds the amount of their debts.”  (Debt Bondage Remains the Most Prevalent Form of Forced Labour Worldwide – New UN Report, supra.)

For purposes of comparison, the definition of slavery under the 1926 Slavery Convention is as follows:

(1) Slavery is the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised.

(2) The slave trade includes all acts involved in the capture, acquisition or disposal of a person with intent to reduce him to slavery; all acts involved in the acquisition of a slave with a view to selling or exchanging him; all acts of disposal by sale or exchange of a slave acquired with a view to being sold or exchanged, and, in general, every act of trade or transport in slaves. (Slavery Convention (signed on Sept. 25, 1926, entered into force on Mar. 9, 1927), OHCHR website.)

The People in Debt Bondage

Although there is reportedly no authoritative estimate of how many people worldwide are in debt bondage, the ILO provided a figure in 2012 of 20.9 million people being victims of forced labor of all forms. (Report, supra, ¶ 10.) According to Bhoola, while “these figures refer to all forms of forced labour, … given the close interrelationship with debt bondage, the figures offer some insight into debt bondage prevalence trends globally.”  (Id.)  Of the 20.9 million, the Asia-Pacific region has the highest absolute number of forced labor victims, “11.7 million, or 56 per cent of the global total,” with the second-highest number in Africa and the third-highest in Latin America and the Caribbean.  (Id.)

Some of the factors Bhoola enumerated as leading people and families into debt bondage include “structural and systemic inequality, poverty, discrimination, and precarious labour migration.” (Debt Bondage Remains the Most Prevalent Form of Forced Labour Worldwide – New UN Report, supra.)  Some of the factors that interfere with such persons being released from debt bondage include “[w]eak or non-existent financial and other regulatory frameworks, lack of access to justice, lack of law enforcement and governance as well as corruption.”  (Id.)

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