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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.

Argentina: Law on Protection of Women Amended to Include Provisions on Political Violence

(Feb. 26, 2020) On November 20, 2019, the Congress of Argentina adopted Law 27533, which amended several provisions of Law 26485 of 2009 on the Comprehensive Protection of Women, to sanction any behavior that weakens, prevents, or limits the participation of women in public affairs on equal basis with men.

The new Law’s amendment of article 4 of Law 26485 provides that any gender-based action or omission based on an unequal relationship of power, which directly or indirectly affects a woman’s life; freedom; dignity; physical, psychological, sexual, or economic well-being; political participation; or personal safety constitutes violence against women.

Law 27533 also amends article 5 of Law 26485 to establish that undermining, annulling, preventing, hampering, or restricting the political participation of women in violation of their right to engage in a political life free from violence and to participate in public and political affairs on equal terms with men constitutes political violence against women.

Finally, Law 27533 adds to article 6 of Law 26485 the provision that intimidating, harassing, dishonoring, discrediting, persecuting, bullying, or threatening women so as to prevent or restrict the development of their political life or access to political rights and duties is considered public political violence.

Under the provisions of the new law, street harassment of women is now considered violence against women.

Actions considered violence against women are subject to civil and criminal liability under articles 19–35 of Law 26485.

Background to Argentina’s Laws on Political Violence Against Women

The foundation for Argentina’s laws on political violence against women was laid by the adoption in June 1994 of the Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women, better known as the Convention of Belem do Para.

In 2004, the States Parties to the Convention agreed to create the Follow-up Mechanism to the Belem do Para Convention in order to monitor the implementation of the Convention in the State Parties.

In October 2015, the Follow-up Mechanism in its Declaration on Political Harassment and Violence Against Women called for “[promoting] legislation for the eradication of political violence and harassment against women.”

One year later, the Committee of Experts of the Follow-up Mechanism adopted its Inter-American Model Law on the Prevention, Punishment and Eradication of Violence Against Women in Political Life, in which the Committee recognized that “political violence against women constitutes a serious violation of the human rights of women and is a major threat to democracy.” The Model Law was adopted with the purpose of “assisting in the process of harmonization of national legal frameworks with the Belém do Pará Convention, on the issue of violence against women in public life.”

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Germany: Court Allows Student to Wear Niqab at School

(Feb. 25, 2020) On January 29, 2020, the Higher Administrative Court of Hamburg (OVG Hamburg) held that a 16-year old girl is allowed to attend school dressed in a niqab face veil that leaves only the area around the eyes open. The Court stated that there is no legal basis in Hamburg law for the prohibition on attending classes in a niqab.

Facts of the Case

The applicant has sole custody of her 16-year old daughter. The daughter graduated from school after tenth grade and currently attends a vocational school. In sixth grade, she started wearing a headscarf. She now wears a niqab. When she was asked by the school to remove her niqab in class and on school property, she refused, invoking her freedom of religion. (OVG Hamburg, para. I.1.)

After discussions with the student failed, the school administration issued an order requesting the mother to ensure that her daughter would not attend classes wearing a niqab; a headscarf would be permissible. The school prohibited her from attending classes until she complied with the order. The school explained that the educational task of the school is not limited to transmitting knowledge; it also includes an exchange of ideas between students and between students and teachers. According to the order, proper communication is not possible when one cannot observe the facial expressions of the other person. (Para. I.1.)

The applicant objected to the order and filed an appeal with the administrative court, seeking to order or restore the suspensory effect of her objection. On December 20, 2019, the administrative court ruled in her favor, stating there was no legal basis for the order. The respondent school appealed the decision to the Higher Administrative Court of Hamburg, which confirmed the decision of the lower court. (Para. I.2. & 3.)

Decision

The school based its order on a provision of the Hamburg School Act, which states that legal guardians are required to ensure that a child attends school regularly. In the opinion of the lower court, with which the appeals court concurs, this provision is insufficient as a legal basis for the order as the provision does not specify “how” a child should attend school. Participation in classes understood as physical presence in class is also possible in a niqab. In addition, if participation also included willingness to communicate, wearing a niqab would only impede communication but not make it impossible. (Para. II.2.2.) The appeals court added that nonverbal communication (eye contact) remains possible because the niqab leaves the eyes uncovered. Furthermore, the respondent did not provide sufficient evidence why a person wearing a niqab would not be able to communicate with teachers or peers. (Para. II.2.2.b.)

The appeals court also rejected the respondent’s argument that based the order on the general clause of the Police Act of Hamburg. The general clause allows measures to fight threats to public security or public order. The appeals court held that it was not clear how wearing a niqab would threaten public safety or order. Public order is defined as the unwritten rules whose observance current social and moral views consider necessary for having harmonious relationships between people. Public safety consists of the inviolability of the legal system, the institutions and events of the state or other public authorities, and the subjective rights of the individual. In the court’s opinion, the evidence does not support the respondent’s argument that by not attending classes and graduating with a degree from the vocational school, the daughter will be forced to become dependent on social security payments from the state and thereby violate public order or safety. The court states that, on the one hand, the daughter already graduated from school, which qualifies her to do an apprenticeship. On the other hand, the respondent is keeping the applicant’s daughter from attending class because of her niqab on the grounds that it is legal to do so; however, this is the question that the court must decide and cannot be presupposed. (Para. II.2.2.c.)

Lastly, the appeals court stated that the order could also not be enforced against the daughter herself because this would infringe her freedom of religion as guaranteed by the German Basic Law. Any restrictions to this right require an explicit legal basis, which currently does not exist in Hamburg. The legislature must find a balance between freedom of religion and the state’s educational mandate codified in article 7, paragraph 1 of the Basic Law when it enacts such a law. (Para. II.2.3.)

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American Samoa: Court Rules Individuals Born in American Samoa Enjoy Birthright United States Citizenship

(Feb. 24, 2020) In December 2019, the United States District Court for the District of Utah issued a memorandum decision finding that individuals born in American Samoa enjoy birthright United States citizenship under Section 1 of the Fourteenth Amendment. (Fitisemanu v. United States, No. 18-36 (D. Utah Dec. 12, 2019) (Fitisemanu) (order granting summary judgment).)

Case History

In addition to the 50 states and the District of Columbia, the United States possesses five inhabited territories: Puerto Rico, Guam, American Samoa, the U.S. Virgin Islands, and the Northern Mariana Islands. Unless otherwise provided in other federal statutes, 8 USC § 1408(1) designates persons “born in an outlying possession of the United States” as nationals, not U.S. citizens. As noncitizen nationals, American Samoans generally do not enjoy several rights and privileges held by U.S. citizens, including voting, running for elective federal or state office, and serving on federal and state juries. (Fitisemanu at 7.) In a series of treaties and agreements entered into during the early 20th century, the islands of American Samoa granted sovereignty to the United States, promising to “obey and owe allegiance to the Government of the United States of America.” (Cession of Tutuila and Aunu’u, Apr. 17, 1900, reprinted in Am. Samoa Code Ann. 2, 3 (2017); see also Cession of Manu’a Islands, July 16, 1904, reprinted in Am. Samoa Code Ann. 4 (2017).)

In 2018, the Fitisemanu plaintiffs—three individuals and a nonprofit corporation headquartered in Utah—filed suit against the United States. Shortly after commencing the suit, the plaintiffs filed a motion for summary judgment. Among other requests for relief, the plaintiffs sought a declaratory judgment that “persons born in American Samoa are citizens of the United States by virtue of the Citizenship Clause of the Fourteenth Amendment and that 8 USC § 1408(1) is unconstitutional.” (Fitisemanu at 4.) The United States filed a motion to dismiss for failure to state a claim upon which relief could be granted; simultaneously, the American Samoa government and its congressional delegate filed a motion to intervene. After the District Court granted permissive intervention, the intervenors argued against imposing U.S. citizenship on American Samoa. (Fitisemanu at 5.)

English Common Law Precedent

The principle of birthright citizenship in America is rooted in the 17th century English decision Calvin’s Case, 77 Eng. Rep. 377 (K.B. 1608). Calvin’s Case established a two-part test to determine whether an individual was subject to English rule: (1) birth within the monarch’s territory and (2) allegiance to the monarch. (Calvin’s Case at 382.) This precedent remained in force through the pre-revolution colonial period, when it was accepted that children born to English emigrants in the colonies were “natural born British subjects.” (Inglis v. Trustees of Sailor’s Snug Harbor, 28 U.S. 99, 120 (1830).)

Birthright Citizenship Under the Fourteenth Amendment

After the Civil War the Thirteenth Amendment abolished slavery, but questions of national citizenship, as well as the citizenship of former slaves and their offspring, remained unanswered. In response, Congress passed the Civil Rights Act of 1866 over a presidential veto (Cong. Globe, 39th Cong. 1st Sess. 1861 (1886)), and the Fourteenth Amendment was adopted on July 9, 1868. Section 1 of that Amendment provides, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”

A relevant case addressing the Fourteenth Amendment’s reach analyzed whether a child born in California to parents of Chinese descent, who were at all relevant times subjects of the Chinese emperor, is entitled to United States citizenship at the time of his or her birth. (United States v. Wong Kim Ark, 169 U.S. 649 (1898).) Relying in large part on Calvin’s Case, the Supreme Court held that the Fourteenth Amendment grants citizenship to all children born on American soil to foreign parents, with some limited exceptions. (Wong Kim Ark, 169 U.S. at 693.)

Present Decision

On the basis of the historical context outlined above, the government conceded that persons born in American Samoa are subject to the federal government’s jurisdiction. In other words, the sole question before the Court was “whether American Samoa is ‘in the United States’ for purposes of the Fourteenth Amendment.” (Fitisemanu at 35.) Relying on Wong Kim Ark, and viewing “the Fourteenth Amendment in light of the English common-law, [the Court held] that American Samoa is within the dominion of the United States because it is a territory under the full sovereignty of the United States… .” (Fitisemanu at 58.) The Court further held, “Plaintiffs, having been born in the United States, and owing allegiance to the United States, are citizens by virtue of the Citizenship Clause of the Fourteenth Amendment.” (Fitisemanu at 67.)

In reaching its ruling, the Court rejected the government’s reliance on the case Downes v. Bidwell, 182 U.S. 244 (1901). The Supreme Court in Downes held that Puerto Rico was not part of the United States for purposes of Article 1, Section 8 of the Constitution, which covers tax uniformity. The District Court concluded that because Downes dealt with a separate provision of the Constitution, the Downes holding was irrelevant to the questions before it. (Fitisemanu at 66; see also Downes, 182 U.S. at 292 (White, J. concurring) (“In the case of the territories, as in every other instance, when a provision of the Constitution is invoked, the question which arises is, not whether the Constitution is operative … but whether the provision relied on is applicable.”).)

Future Outlook

The United States has appealed the District Court’s ruling, which is currently pending review by the 10th Circuit Court of Appeals. The District Court issued a stay of its ruling pending the resolution of the case on appeal. (Fitisemanu v. United States, No. 18-36 (D. Utah Dec. 13, 2019) (order staying ruling pending appeal).)

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