The Posthumous Pardon of Homer Plessy

Source: US Global Legal Monitor

On January 5, 2022, the governor of Louisiana posthumously pardoned Homer Plessy, the defendant in the famous 1896 U.S. Supreme Court case Plessy v. Ferguson. Plessy is known for affirming the legal theory of “separate but equal” that was used to justify Jim Crow laws in the 19th and 20th centuries. It was later overturned in part by Brown v. Board of Education.

Plessy involved a Louisiana law called the Separate Car Act, which required separate railway cars for Black and white riders. If a person violated the Separate Car Act, they were subject to criminal penalties. According to the case, Homer Plessy was 7/8 white and 1/8 Black (technically considered Black under Louisiana law) but he attempted to sit in a whites-only car, which resulted in his arrest and imprisonment.

Act No. 111, The Separate Car Act, from Acts Passed by the General Assembly of the State of Louisiana. Photo taken by Anna Price.

In his defense, Plessy argued that separate facilities for different races violated his 14th Amendment rights. The Supreme Court eventually granted review of this case and rejected Plessy’s assertions.

The majority’s opinion conceded that the 14th Amendment’s purpose was to create equality among races, but the Court held that the intended equality was political, rather than social, and decided that having separate railway cars, which were similarly situated, did not imply that one race was inferior to another. In one passage, the majority opinion noted, “If one race be inferior to the other socially, the Constitution of the United States cannot put them on the same plane.” The lone dissenter, Justice John Harlan, reasoned that the Constitution is colorblind and does not tolerate the idea of classes of citizens.

Louisiana’s pardoning of Plessy is the first such act under a state law that expedites the pardon process for criminal convictions stemming from laws that were in place “to maintain or enforce racial separation or discrimination of individuals.”


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On this Day: The Danish Queen Margarethe II – 50 Years as Head of State

Source: US Global Legal Monitor

Queen Margarethe II waves to the crowd. Photo by Flickr user Mifl68, April 16, 2015. Used under license CC BY-NC-ND 2.0..

Today, January 14, 2022, the Danish Queen Margarethe II (Margrethe Alexandrine Þorhildur Ingrid) celebrates 50 years on the Danish throne. However, she was not born the heir apparent to the throne, but became Crown Princess of Denmark at the age of 13 when the Danish Parliament adopted an act of succession (Tronfølgelov) that allowed daughters to inherit the throne.

The Succession Act of 1953 was, as laws often are, a law written out of necessity. Margarethe was at that time the oldest of three royal siblings, all girls, born to King Frederik IX and Queen Ingrid. Queen Ingrid was 43 years old and the royal couple had given up hope of a male heir. However, perhaps the Danish Parliament held on to some hope that the stork would still bless the royal couple with a crown prince, as the law was made male-preference primogeniture, meaning that while daughters now had a place in line to the throne, even an older daughter’s place was still behind any younger brother.

Not until 2009 did an amendment make the succession act gender-neutral, meaning that the first-born of a Head of State would become the first in line to the throne regardless of his or her gender. At that time, Queen Margarethe’s eldest son, Crown Prince Frederik, already had two children: Prince Christian (born in 2005) and Princess Isabella (born in 2007). Their positions in line to the throne were not affected by the succession law as Christian was older than Isabella, but her younger brother Prince Vincent (born in 2011) would have succeeded her in line to the throne had it not been for the legislative change in 2009. Born minutes before his twin-sister Princess Josephine, Vincent holds the third position among the four siblings.

Adoption of the 1953 Succession Act

When adopted in 1953, changing the succession order required a constitutional amendment. The Danish Constitution of 1953 entered into force on the same day as the separate Succession Act. As required by the Constitution, the Danish people were consulted on the future of the country in a national referendum held in 1953.

In 2009, the new succession act did not require a constitutional amendment as the Constitution already allowed for female succession to the throne. (§ 2 Danish Constitution.)

Royal Duties and Requirements

As a queen-to-be, Margarethe assumed many duties when she turned 18, such as assuming a seat at the State Council (Statsråd) on April 16, 1958. The State Council, which includes the Head of State, crown prince or crown princess, and all the government ministers, “negotiates all laws and important government measures.” (§17 stk. 2 Danish constitution.)

Her position as crown princess also meant that her engagement to Comte Henri de Laborde de Monpezat (later Prince Henrik) in 1966 had to be approved by the king and the Danish Parliament.  (§ 5 Succession Act.) The wedding took place in 1967 at the Holmen Church. The newlyweds took up residency at Marselisborg Palace, before Margarethe’s father’s sudden death on January 14, 1972.

Upon the king’s death, Margarethe became queen by a royal public proclamation, without a coronation. Ahead of the proclamation, she had to choose a royal motto, and chose: “God’s help, the love of The People, Denmark’s strength.” Queen Margarethe also chose to be titled Queen Margarethe the second, recognizing the role of Queen Margaret (the first) (Margaret Valdemarsdatter) who presided over Denmark, Norway, and Sweden in the Kalmar Union between 1397 and 1412.

The Role of the Head of State (Queen or King)

In 1849, Denmark became a constitutional monarchy, when King Frederik VII signed a constitution that defined and limited his powers. The constitution was later amended in 1866 and 1915. Today, the role of the Head of State is to “represent Denmark abroad and to be a figurehead at home,” which includes participating during the formation of government by formally appointing the government, receiving state visitors, conferring “Royal Warrants” and heading and awarding the Royal Orders of Chivalry. In addition, as Head of State it is the Queen’s duty to sign all Danish laws. (§14 Danish Constitution.)

Other duties include giving speeches to the public. The annual New Year’s speech is broadcast live by Danish media and typically viewed by millions of Danes, but the corona speech that she held in March 2020 broke all records, with more than 3.4 million viewers. The Queen’s speeches are available on the royal palace website.

Names Fit for a Queen 

Although the Danish Name Act (Navneloven) does not specify special provisions for royalty, there are some rules that apply solely to royals, including that only royals may have a number designation following their name, thus, no little Johnny III. Margarethe is only the second Queen Margarethe, but her son will be Frederik X and her grandson will one day be Christian XI. In fact, being named Frederik or Christian, is a royal tradition. Ever since Christian II, who reigned from 1513 to 1523, the kings of Denmark have been named either Frederik or Christian. If the tradition is to be continued, Christian will have to name his firstborn son Frederik or his firstborn daughter Margaret.

Unlike most Danes, Queen Margarethe has four given names: Margrethe Alexandrine Þorhildur Ingrid. Þorhildur, an Icelandic name, was chosen in recognition of Iceland, which was part of the Danish kingdom when Margarethe was born in 1940. Formally, the queen does not have a last name but is part of the House of Glücksborg. She is also known to her closest family as Daisy, after the Danish flower and has been called the “World’s coolest queen.”

A Royal Ending and Royal Resting Place

Starting in the 1400s, all Danish regents have been buried in the Roskilde Cathedral, and plans have been made for Queen Margarethe to rest there as well. Her late husband, Prince Henrik, however, refused to be buried with her on the account of his dissatisfaction over his royal title and royal duties, arguing that because he was not an equal to the queen in life, he should not be an equal to her in death. Prince Henrik was instead cremated and some of his ashes were spread over Danish waters while some were buried in an urn in a private garden in the Fredensborg Palace.

Still Going Strong

The queen is currently the second longest-serving regent in Denmark, second only to King Christian IV, who served for 60 years. Some of the programmed celebrations in her honor have been postponed due to the surge of COVID-19 in Denmark, but the queen continues to be very popular among the Danes, celebrated for her artistic talents, and she has publicly communicated that she has no plans on stepping down early. For those interested in reading more about Queen Margarethe, the Royal House of Denmark has published a special site commemorating the queen’s 50-year reign.

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FALQs: The Icelandic Reduced Workweek Trial

Source: US Global Legal Monitor

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

[Office work], Harris & Ewing (1936). Library of Congress Prints and Photographs Division, //hdl.loc.gov/loc.pnp/hec.40971 .

During the first year of the COVID-19 pandemic the world saw a surge in remote work, potentially changing the way many of us work forever. But even before the pandemic, people seeking a better work-life balance were looking at reinventing the work structure, including pursuing the potential of reduced work schedules without any reduction in pay.

Progress toward a regular eight-hour workday in the United States can be said to have begun in 1866 and made strides in the 1930s. Although commonly understood as the global norm today, the 40-hour workweek has its exceptions. For example, in Norway a 37.5-hour workweek is the norm in all collective agreements. Similarly, Denmark has established a 37-hour workweek as its norm. Moreover, the United Arab Emirates announced just last month that the work week would be reduced  to 36 hours for “public sector employees at the ministerial level,” or four and a half days, dismissing everyone at noon on Friday ahead of religious observances at the end to the week, leaving employees to enjoy a two-and-a-half day weekend.

Which brings us to the topic of this post, the findings of two reduced workweek pilots in Iceland, the results of which were published in English (Going Public: Iceland’s Journey to a Shorter Working Week) this past summer. The result was overwhelmingly positive, with both employees and employers reporting increased productivity and well-being.

1. How is the workweek regulated in Iceland?

The Icelandic labor market has three pillars: laws and regulations set by the government, collective wage agreements, and individual work contracts.

Iceland adopted its 40-hour workweek legislation in 1971, 50 years ago, but according to statistical reports, it was not until 2002 that the actual numbers of hours worked on average was at or below 40 hours.

Similar to its neighboring Nordic countries, Iceland does not have a minimum wage or a nationally set workweek. The Icelandic Act on the 40-hour work week provides that a normal workweek may not exceed 40 hours, but the terms for any specific industry are set by collective agreements, including wages and work and rest time rules, and the hours for a specific employee are set in the individual work contract. There is no minimum wage but working conditions are regulated in the Act on Working Terms and Pension Rights Insurance.

2. Has there been a push for a shorter workweek previously?

Members of the Icelandic Parliament proposed a move to a 35-hour workweek in 2015, but it was voted down. The non-government organization Alda, which was one of the organizations behind the workweek pilot study, has advocated for a shorter workweek since 2011.

3. Why was the pilot study on a reduction in working hours initiated?

When the reduced working hour pilot was proposed it was reported that people living in Iceland spent 90 minutes less a day on leisure activities compared to people living in Denmark and Spain. The trials were conducted as a response to trade unions and civil society efforts to introduce a shorter workweek.

Specifically, the Icelandic National Government trial was announced with the purpose of  determining “whether it [was] possible to shorten working hours [to 36 hours] without wage cuts and achieve mutual benefits for staff and institutions.”

4. How was the study conducted?

Two pilots were conducted by the Reykjavik City Council (2014-2019) and the Icelandic national government (2017-2021). In total more than 2,500 workers (1% of the working population) and more than 60 different workplaces and governmental agencies participated in the pilot, reducing working hours by between one and four hours per week. (Report at 6, 58-60.)

The participating workplaces had to develop qualitative targets to maintain or increase productivity and surveys for tracking employee satisfaction. “Quantitative studies were also routinely conducted by the Reykjavík City Council and the Icelandic government, both as a part of their usual operations and specifically for the trials. These focused mainly on quality of life, stress, satisfaction with work, sick days, and workload among participating workers and the other ‘control’ workplaces, as well as data on their respective ‘performance’ and service provision.” (Report at 31.)

Different industries and work places adopted different solutions to reducing the length of their workdays. For example, staff at public schools adopted rotating schedules where teachers left the school incrementally in relation to the student population and lunches were staggered for the students to reduce the number of staff needed in supervisory roles. In one police station, officers worked staggered week schedules, working shorter hours one week (8 a.m. to 3 p.m. Monday through Thursday and 8 a.m. to 12 p.m. on Fridays) and longer hours the next (8 a.m. to 4 p.m. all five days), reducing the total hours worked by eight hours over a two-week period. (Report at 72f.)

Other measures adopted to shorten the length of the workday included fewer and/or more focused meetings as well as shorter coffee breaks.

5. What was the purpose of the pilot studies?

The purpose of the studies was to increase work-life balance but also to increase productivity.

6. What was the result of the pilot studies?

The outcome of the two pilot studies was considered a success, both among employees and employers, who reported increased productivity and decreased stress and improved work-life balance among employees. (Report at 33.)

Moreover, none of the participant workplaces saw reduced service satisfaction. For example, the Reykjavik City Council and the Directorate of Internal Revenue found no decrease in service satisfaction among patrons compared to before the pilot, despite the reduction in service hours on Fridays. The employees themselves reported providing better service as they were happier with their work-life balance. (Report at 70.)

However, the results were not without challenges, specifically managers were not able to reduce their hours as much as they had hoped, and certain shift workers said it was difficult to manage the handover communication within the allotted reduced hours. (Report at 75.)

7. Did the pilot studies have other impacts too?

Yes, even though workers were happier and more productive, in certain industries, such as public health care, the pilot resulted in the recruitment of additional workers. (Report at 55.)

Other findings of the government survey following the pilot involved a generational divide between older workers who, as a personal preference, considered it important to work long hours versus younger workers who preferred shorter hours. Other benefits associated with a shorter workweek included reduction in traffic congestion, and increased social capital as workers who worked fewer hours volunteered more. It also reduced family life tensions and improved family life, especially for shift workers and single parents.

8. Did Iceland reduced the workweek following the pilot?

Despite the success of the study, the Icelandic law on workweek hours has not been amended and the maximum hours of work is still 40 hours per week. However, the pilot has had an effect on the labor market, with collective agreements now including shorter workweek hours. For example, the Federation of State and Municipal Employees (BSRB) has implemented a shorter workweek for its members, being 36 hours for public employees and 32 hours for shift workers, without cutting pay.

In total, collective agreements from several unions were changed, affecting “170,200 union members from Iceland’s 197,000 strong working population.” (Report at 53.) These members now have either a right to shorter work hours or the right to negotiate shorter working hours. Responding to the changed rules, a member of Parliament representing the Green Party declared in April of 2021, that the next step was to reduce the workweek to 30 hours per week. (Report at 55.)

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The New Frederick Douglass Memorial Bridge – Pics of the Week

Source: US Global Legal Monitor

On September 7, 2021, the new Frederick Douglass Memorial Bridge opened in Washington, D.C. This new bridge replaced an older bridge, also called the Frederick Douglass Memorial Bridge. Both bridges were named in honor of the famous 19th century abolitionist Frederick Douglass who lived in Washington, D.C., for the last years of his life and whose home is now a national park in the District.

Frederick Douglass Memorial Bridge / Photograph by Andrew Weber

According to the bridge’s website, it has three arches, and will eventually also have four pedestrian overlooks and two piers. My colleague Andrew took a picture of the bridge looking northwest towards the District:

Photograph by Andrew Weber

The bridge also looks spectacular at night with the streetlights illuminating its graceful arches, which are also reflected in the water:

Photograph by Andrew Weber

I also want to give a shout out to my colleague Andrew. For years, Andrew has volunteered to take photos for posts and he has probably been the most indefatigable photographer for In Custodia Legis. Thank you Andrew!

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FALQs: The Role of Members of the Swedish Parliament without Party Affiliations

Source: US Global Legal Monitor

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

On November 29, 2021, the Swedish Parliament (Riksdag) elected its first female prime minister, Magdalena Andersson, for a second time. The first time was on November 23, 2021, on what was dubbed “Super Wednesday” (superonsdagen) in the Swedish press, when the newly elected PM stepped down before the regerinsskifteskonselj (official transfer of government) at the Royal Palace with the Swedish King Carl XVI Gustaf (head of state). She stepped down becaause her coalition party left the government when their budget was voted down and replaced by the opposition budget by the Swedish Parliament.

Voteringsknappar i en ledamotsbänk; grön knapp för “ja”, röd “nej” och gul “avstår”. [voting buttons in a member bench; green for ”yes”, red for ”no” and yellow for “abstains.”] (2014) Photo by: Melker Dahlstrand/Sveriges riksdag, https://www.riksdagen.se/globalassets/17.-press/pressbild/voteringsknappar-201407243.jpg. Used under the Swedish Parliament Press Pictures fair use rules.

The Swedish Constitution provides that prime ministers are elected as long as a majority of members do not vote against them. (6 ch. 3 § Regeringsformen (RF) [Instrument of Government] [Swedish Constitution](SFS 1975:152).) In the case of Magdalena Andersson, the result of the second vote, with 173 out of 349 total members voting against her, 101 in favor, and 75 abstaining, highlighted Sweden‘s divided chamber where the “left block” holds 175 seats against the “right block” opposition of 174. The process also highlighted the role of the only member of Parliament who is currently unaffiliated with a party (previously a member of the Left party), who struck a deal to vote in favor of the prime minister and the unusual power they may hold in a Parliament that otherwise shows little room for individual deals.

Referred to as politiska vildar (literally political savages), members of Parliament who no longer hold a political affiliation can be seen as wildcards in the Swedish Parliament, where party loyalty is strong and members vote with their party leadership more than 93% of the time. For example, during the parliamentary term of 2010-2014, members only voted against party lines nine times, and several times were by accident. Members of Parliament are not legally required to vote with their party.

The role of the politically unaffiliated member is about to change next year when politically unaffiliated members will no longer be able to retain seats on parliamentary committees that they obtained while part of a political party.

1. How are members of Parliament elected?

To be elected to Parliament a person must be a member of a political party. (3 ch. 1 § RF; 2 ch. 9 § Vallag (2005:837).) Parties make a list during the election process, listing the order in which candidates will be elected to Parliament depending on the number of seats that the party receives. (6 ch. 3 § Vallag.)

However, coupled with the party lists, in 1995 Sweden introduced the possibility to indicate support (personkryss) for a person listed further down on the party ballot, or even write-in a candidate using a party ballot without candidate’s names pre-printed. A recent example of this is when, in 2018, former national skier Thomas Wassberg got written-in and elected for the Swedish Democrats against his will. (He never assumed office.) Prior to the 1998 election, voters could only strike a candidate they did not like from the party’s candidate list. However, it was largely ineffective to affect the outcome.

Thus, in Sweden, a person cannot be elected to Parliament without either being part of a party or being a write-in candidate on a party ballot. Write-in candidates can refuse to serve if they have not chosen to stand for election.

Candidates to the Swedish Parliament must be 18 years old and Swedish citizens to be eligible for election. (3 ch. 4 § RF.)

2. Can a member of Parliament leave his or her party?

There is no law that prevents members of Parliament from leaving their party. Once elected they have an individual mandate to serve in Parliament. (3 ch. 1 § RF.)

As mentioned above, the party whip can be strong in Sweden, resulting in conflict and it is perhaps not surprising that members feel an urge to leave their party. One of the more known politicians to do so is former Left Party leader Gudrun Schyman, who in 2004 left her party while still a member of Parliament in order to pursue more feministic policies and then became a founding member of the feminist party, Feministiskt Initiativ. Members can also be excluded from their parties, as Amineh Kakabaveh (formerly Left Party) was in 2019.

3. What happens when a member leaves his or her party?

Because members serve as individuals, in effect, a party that loses a member of Parliament also loses mandates in the Parliament and relative power in the Parliament. Historically this has had little effect on politics, or the overall composition of the Parliament, but following the 2018 election when Parliament was split 175 to 174, the current unaffiliated member makes that number 174 to 174, which is why her vote matters more than it normally would.

4. Can a party force a member to leave Parliament?

No. Even though members are typically elected because of their relative placement on the member list of the ballot, the party cannot force a member to leave Parliament. Leaving a party affiliation or not showing up for work is not grounds for removing a member from Parliament. The rationale being that a member who does not fulfill his or her duties to their constituency is likely to lose his or her seat in Parliament in the next election.

In fact, a member of Parliament must receive leave from the speaker to leave Parliament (4 ch. 11 § RF.) As of January 1, 2022, Parliament will have some possibilities to reclaim pay for members of Parliament who are repeatedly absent during chamber votes. In addition, members of Parliament who are convicted of certain crimes must leave Parliament.

Specifically, chapter 4 section 11 of the Instrument of Government states that:

A member of the Riksdag or a deputy may not leave office without the Riksdag’s consent.

When there is reason to do so, the Election Review Board shall independently examine whether a member or a deputy is competent in accordance with ch. 4 § 2 para [meaning if the person has a right to vote in the national election to Parliament]. Anyone who is declared unauthorized is thus separated from his or her assignment.

A member or a deputy may otherwise be dismissed from the assignment only if he or she has proven to be manifestly unsuitable for the assignment through a crime. Decisions are made by the courts.

However, for a crime to be considered serious enough it must carry a sentence of two years imprisonment. (comp. 20 ch. 4 § Brottsbalken (SFS 1962:7700) (BrB).)

In addition, members of Parliament may seek and receive leave from Parliament, and nothing prevents party leadership to coax members who are unpopular with party leadership to apply for such leave. (5 ch. 3 § Riksdagsordningen (SFS 2014:801) (RO).) When members leave Parliament on their own, or because of a crime, a deputy member will fill in until a permanent replacement is selected. (5 ch. 6 § RO.)

5. How many members have left their parties while in Parliament?

Thirty-three members of Parliament have left their political parties while retaining their seats in Parliament. The party with the most vildar in history is the Swedish Democrats. In 2018 alone, a record eight members left the Swedish Democrats to become unaffiliated. Only the Christian Democrats and the Social Democrats have not had at least one member leave the party.

6. Have there been proposals to forbid political unaffiliated members of Parliament?

Yes, including this year: Politiska vildar Motion 2020/21:1079 by Maria Stockhaus (M). However, the proposal was voted down on the grounds that each member of Parliament carries his or her responsibility towards the voters that elected them.

Another previous individual proposal includes recognizing the personal votes of a candidate only when that candidate has reached a certain – high – threshold of personal votes. Not surprisingly, the party (SD) that has had the greatest problem in retaining its members has also been the most vocal about changing the rules.

Additional Law Library of Congress Resources related to the Swedish Parliament

 

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From Summorum Pontificum to Traditionis Custodes: Changes in Liturgical Matters at the Catholic Church

Source: US Global Legal Monitor

The following post is by Dante Figueroa, a senior legal information analyst at the Law Library of Congress. He has recently written for In Custodia Legis on the Italian Parliamentary LibrarySpanish Legal Documents (15th to 19th Century)Recent Legislation Enacted by Italy to Tackle COVID-19; and Italy: A New Silk Road Between Italy and China – the Belt and Road Initiative.

Missale Romanum. Photo by Dante Figueroa.

History shows that developments do not happen hastily at the Vatican, particularly when it comes to liturgical matters. In fact, ten years ago I wrote about the “Instruction” issued by the Vatican’s Pontifical Commission Ecclesia Dei (Church of God) in 2011 on the implementation of Pope Benedict XVI’s 2007 Apostolic Letter Summorum Pontificum. This concerned the use of the Roman Liturgy (also called “the Roman Rite,” “Tridentine Mass,” or “Traditional Latin Mass/TLM”), which is contained in the 1962 Roman Missal (Missale Romanum) of the Roman Catholic Church approved by Pope St. John XXIII, and later revised by Pope St. Paul VI in 1969. The latest edition of the Roman Missal was published in 2000.

The Missale Romanum also contains the New Order of Mass (Novus Ordo Missae). Interestingly, when the Novus Ordo was approved, prominent thinkers and personages of the United Kingdom, including Agatha Christie, sent a letter to Pope Paul VI pleading for the “survival of the traditional rite of the Mass [which] belongs to universal culture.” The Pope consequently authorized the TLM on a limited basis in England and Wales.

The Novus Ordo is considered the forma ordinaria (the normal form) of the Mass, and the 1962 Roman Missal the forma extraordinaria (the extraordinary form). Prior to Summorum Pontificum (SP, 2007) and its Instruction (2011), the TLM could still be used, but only with permission from the respective bishop. The SP and its Instruction contained measures to expand the use of the TLM, as discussed in my previous blog post.

On July 16, 2021, Pope Francis issued his Apostolic Letter, “Traditionis Custodes (Guardians of the Tradition, TC), on “the Use of the Roman Liturgy Prior to the Reform of 1970.” In the TC, the Roman Pontiff states his motivation “to promote the concord and unity of the Church, with paternal solicitude towards those who in any region adhere to liturgical forms antecedent to the reform.”

Per the TC, the respective bishop must:

  • decide whether to authorize the use of the 1962 Roman Missal (TLM) in his diocese (art. 2);
  • ensure that Catholic groups that until now celebrate according to the TLM “do not deny the validity and the legitimacy of the liturgical reform, dictated by Vatican Council II and the Magisterium of the Supreme Pontiffs” (art. 3 § 1);
  • designate locations where the TLM may be celebrated, with the exclusion of parochial churches or the erection of new personal parishes (art. 3 § 2);
  • establish the days on which the celebration of the TLM is permitted (art. 3 § 3);
  • appoint a suitable priest who, as his delegate, is entrusted with the celebrations of the TLM and with the pastoral care of the TLM faithful (art. 3 § 4);
  • verify that the parishes canonically erected for the TLM faithful are effective for their spiritual growth, and to determine whether or not to retain them (art. 3 § 5); and
  • take care not to authorize the establishment of new groups (art. 3 § 6).

In addition, the TC states that:

  • the readings of the Sacred Scripture at the TLM must be proclaimed in the vernacular language, using authorized translations approved for liturgical use by the respective Episcopal Conferences (art. 3 § 3);
  • priests ordained after the publication of the TC who wish to celebrate the TLM should submit a formal request to their bishop, who is to consult with the Apostolic See before granting authorization (art. 4);
  • priests who already celebrate the TLM should request from their bishop the authorization to continue to enjoy this faculty (art. 5); and
  • enforcement of TC measures falls, on behalf of the Holy See, onto the Congregation for Divine Worship and the Discipline of the Sacraments and the Congregation for Institutes of Consecrated Life and Societies of Apostolic Life (art. 7).

The new measures included in the TC have met a mixed response in different Catholic circles. At the core of the debate, on the one hand, is the real or perceived lack of acceptance by certain groups of the reforms approved by the Second Vatican Council to the millenary Catholic liturgy. On the other hand, proponents of Pope Benedict XVI’s reforms, lifting the restrictions imposed on the TLM (now reinstated by Pope Francis), argue against real or perceived abuses of the liturgy unleashed after the Second Vatican Council. Even Pope Francis has expressed his sadness about “abuses in the celebration of the liturgy on all sides.”

Since the Council of Trent, a gathering of Catholic bishops in northern Italy between 1545 and 1563, “the ordinary celebration of the Mass followed a precise format that was set forth in printed books – and was always celebrated in Latin. This Mass held firm in Catholic life for 400 years. That was until the Second Vatican Council of 1962 to 1965. Also known as Vatican II, the council was convened to address the position of the Catholic Church in the modern world,” leading to changes to the Mass and subsequent debate.

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100th Anniversary of the Tomb of the Unknown Soldier

Source: US Global Legal Monitor

This year marks the 100th anniversary of the establishment of the Tomb of the Unknown Soldier.

Over two years after the end of World War I, Congress approved the burial of an unknown soldier at Arlington Cemetery (March 4, 1921, ch. 175 41 Stat. 1447). The law provided that the Secretary of War

[was] authorized and directed, under regulations to be prescribed by him, to cause to be brought to the United States the body of an American, who was a member of the American Expeditionary Forces who served in Europe, who lost his life during the World War and whose identity has not been established for burial in the Memorial Amphitheater of the National Cemetery at Arlington, Virginia.

Almost three months after the passage of this law, on Memorial Day 1921, the bodies of four unknown soldiers who were buried in France were exhumed. These bodies were housed in identical caskets and moved to the city hall in Chalons-en-Champagne in France where on October 24, 1921, U.S. Army Sgt. Edward Younger selected one of the four caskets to represent all those whose lives had been lost in the war by laying white roses on the chosen casket. The bodies of the other three unknown soldiers were reinterred in the Meuse-Argonne American Cemetery in France.

The casket was then loaded onto the U.S.S. Olympia for transportation to the United States where it lay in state in the Capitol Rotunda from November 9-11, 1921. On November 11, 1921, President Harding presided over the entombment of the unknown soldier at which the unknown soldier was accorded various medals, including the Medal of Honor, the Victoria Cross, and the Croix de Guerre.

After the interment ceremonies, the tomb was encased by a simple marble crypt.

[Tomb of the Unknown Soldier, Arlington National Cemetery, Arlington, Virginia]. Harris & Ewing, photographer. 1923. Library of Congress, Prints & Photographs Division, //hdl.loc.gov/loc.pnp/hec.43467

In 1926, Congress authorized funds for the completion of the structure (ch. 805, 44 Stat. 914). This law directed the Secretary of War “to secure competitive designs according to such regulations as he may adopt and to complete the Tomb of the Unknown Soldier … and a sum not to exceed $50,000 is hereby authorized …” Work on the tomb was finally completed in 1932.

In 1946, Congress passed legislation to provide for the burial of an unknown soldier from World War II who had died overseas (ch. 461, 60 Stat. 302). However, this did not take place and in 1956, Congress passed additional legislation (ch. 946, 70 Stat. 1027) to add the remains of an unknown soldier from the Korean conflict. This law also provided again for the burial of an unknown soldier from World War II. Two years later, their bodies lay in state at the Capitol Rotunda from May 28-30, 1958, before they were interred on Memorial Day at Arlington Cemetery. An unknown soldier from the Vietnam War was also interred at Arlington but his remains were later identified and returned to his family for burial.

There have been a number of ceremonies to commemorate the centennial of the establishment of this monument. On October 24, 2021, a reenactment of the selection of the unknown soldier took place in Chalons-en-Champagne. In the United States, from November 9-11, visitors to the tomb at Arlington were allowed to walk on the Tomb of the Unknown Soldier Plaza and lay flowers if they wished. On November 11, there was a joint honors procession as well as a joint service flyover by all branches of the military.

Tomb of the Unknown Soldier at Arlington Memorial Cemetery in January 2013 / photograph by Jenny Gesley

100 Years of “Poppy Day” in the United Kingdom

Source: US Global Legal Monitor

The following is a guest post by Clare Feikert-Ahalt, a senior foreign law specialist at the Law Library of Congress covering the United Kingdom and several other jurisdictions. Clare has written numerous posts for In Custodia Legis, including Weird Laws, or Urban Legends?FALQs: Brexit Referendum; and The UK’s Legal Response to the London Bombings of 7/7.

Poppies. Photo by flickruser hannasabel. (July 3, 2010), used under creative commons Attribution 2.0 Generic (CC BY 2.0), https://creativecommons.org/licenses/by/2.0/.

At the eleventh hour on the eleventh day of the eleventh month – we will remember them.”

One hundred years ago tomorrow, on November 11, 1921, the first poppy day occurred in Britain. At that time, First World War had been over for three years and the United Kingdom (UK) was in the middle of an economic recession that saw two million people unemployed. Over six million British men served in the First World War; 700,000 died while serving, and of those who returned 1.75 million had sustained a disability, with over half of these men being permanently disabled. A large number of unemployed people during the recession were ex-servicemen and a significant number of them, and their families or the widows of servicemen, ended up in workhouses, which were renowned for the poor treatment of their residents.

The Royal British Legion (RBL) had been formed earlier in the year, on May 15, 1921, and combined four organizations that had been established to support servicemen. The early work of the RBL focused on those in urgent need and, in 1921, it started a “Poppy Appeal” to collect money for its cause.

The tradition originated in America after Moina Michael was inspired by a poem written by John McCrae titled “In Flanders Fields” to buy artificial poppies to sell to raise money for servicemen in need. This practice was adopted by both the American Legion Auxiliary and the RBL in 1921, although the dates that poppies are worn varies in both countries. In the United States, the traditional date to wear these poppies is the Friday before Memorial Day. In the UK, they are worn to mark Armistice Day on November 11, which is the day the Armistice agreement was signed, marking the end of fighting and the start of peace negotiations when it entered into force at 11 a.m. that day.

In 1921, the RBL ordered one million poppies from France and commissioned the manufacture of an additional eight million in Britain in order to sell the poppies as a symbol of “remembrance and hope for a peaceful future” and support for the service and sacrifice of members of the Armed Forces and their families. The funds raised from the sale of poppies are used in support of servicemen and their widows and families. In 1921, despite the recession, the RBL sold out of poppies and raised £106,000 (approximately US$146,000), which, when adjusting for inflation, is roughly equivalent to £5.4 million (approximately US$7.3 million) today. The success of the Poppy Appeal has continued over the past 100 years and raised £46.5 million (approximately US$64 million) in 2019.

Poppies in the EU

The online sale of poppies to the European Union (EU) through the RBL’s “Poppy Shop” was halted in 2021 as a result of the UK’s exit from the EU (commonly known as Brexit). As a result of Brexit, the RBL stated “regrettably we will need to cease sales to customers in countries in the EU until such times that legislation is reviewed.” This year, the RBL determined that the sale of poppies to EU member states through its “Poppy Shop” would not be commercially viable due to the increased expenses, such as customs charges and the additional paperwork of having to register for value added tax (VAT) in an EU member state, which would increase the price of the product by an unreasonable amount.

Poppies in Soccer

The use of poppies as a symbol of remembrance has not been without issue. In 2016, the Fédération Internationale de Football Association (FIFA), the body responsible for governing soccer around the world, was embroiled in controversy after it declined a request for soccer players for the four teams from the UK (England, Wales, Scotland, and Northern Ireland, which are known as the Home nations) to wear the poppy symbol on armbands during a world cup qualifier between England and Scotland that was scheduled to be held on Remembrance Day. While FIFA had permitted this in 2011, it noted in 2016, that the recently amended Laws of the Game provide that players’ equipment must not carry commercial, political or religious messages, and considered the poppy to be a political symbol. The general secretary of FIFA stated “Britain is not [the] only country that has been suffering from the result of war.” The UK Parliament held a debate on this issue and member’s of parliament (MPs) were not receptive to FIFA’s approach, with the prime minister calling it “utterly outrageous” and wrapping up her statement by advising FIFA to “jolly well … sort their own house out.” The minister for sport, heritage and tourism stated “[p]oppies are a poignant tribute to the bravery and sacrifice of our servicemen and women, and footballers and fans alike should be able to wear them with pride.”

Despite the outcry from the general public, MPs, the Cabinet and the prime minister, FIFA upheld the ban. In defiance of this decision, the English and Scottish teams not only both wore black armbands with a poppy during their match on November 11, 2016, but also displayed pictures of poppies on the big screen, distributed t-shirts featuring poppies to the fans in the stands, played the last post and held a one minute silence. As a result, England, as the home team, was fined £35,000 (approximately US$50,000) and Scotland was fined £15,600 (approximately US$21,500) by FIFA. The FIFA disciplinary committee chairman stated “[i]n the stadium and on the pitch, there is only room for sport, nothing else.” The Welsh and Northern Irish teams also featured displays of the poppy in the stands or on the pitch and were also fined approximately US$21,600 and US$16,200, respectively. England announced its intention to contest the fine at the Court of Arbitration for Sport.

The ban stood for almost a year, until the end of 2017, when FIFA revised the Laws of the Game to permit symbols and slogans that can be interpreted as political, provided they do not relate to political parties, individuals, governments, or political events. The Laws of the Game provide that “[w]hen commemorating a significant national or international event, the sensibilities of the opposing team (including its supporters) and the general public should be carefully considered,” and it recommended that any disputes involving these issues be resolved prior to the game. It thus appears that, within the Laws of the Game, the poppy marking Armistice Day is now considered to commemorate a significant national event rather than as a political symbol and that, provided the support of the opposing team and organizing body has been obtained prior to the match, the home national teams can display the poppy. The four soccer teams reportedly never paid the fines that were levied against them.

Poppies and the Environment

Red poppies, which were originally made of silk, are now comprised of paper and plastic. With the UK seeking to improve the environment through policies and laws, the RBL has stated that the paper and plastic components of the poppy can be separated and recycled by some local authorities and it has also set up places where people can return poppies for recycling at a national chain of grocery stores. The RBL also sells enamel poppy pins that can be worn each year. The RBL further states that it has removed over eight million items of single use plastic from its 2021 products and is continuing “to look at ways to further reduce the environmental impacts of […] Poppy Appeal products.”

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Human Rights, Migration, and Soccer: The Role of FIFA

Source: US Global Legal Monitor

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

Following the alleged serious human rights abuses related to the 2018 World Cup in Russia, and the reported controversies surrounding the treatment of migrant construction workers in preparation for the 2022 World Cup in Qatar, what will happen when the World Cup comes to North America?

In 2018, the United States Soccer Federation, the Canadian Soccer Association, and the Mexican Football Association won their bid to host the 2026 World Cup, through the “United 2026” bid. New to the bidding process to host the World Cup, the finalist American, Canadian, and Mexican United 2026 cities had to submit human rights plans to the Fédération Internationale de Football Association (FIFA), in accordance with its 2017 Human Rights Policy. However, some organizations are now questioning FIFA’s commitment to prioritize human and workers’ rights, as the organization has reportedly blocked the public release of the cities’ human rights plans.

Andre Cypriano, Bola de açúcar, 2011, Library of Congress, Prints & Photographs Division, //hdl.loc.gov/loc.pnp/ppbd.01103, used under Creative Commons CC BY-NC-ND license.

FIFA’s Human Rights Policy

FIFA is a non-profit organization based in Zurich, Switzerland. The association revised its statute in April 2016 to include the statement that “FIFA is committed to respecting all internationally recognized human rights and shall strive to promote the protection of these rights.” Following this move, FIFA established an independent Human Rights Advisory Board and released the Human Rights Policy in 2017, which is in line with the United Nations (UN) Guiding Principles on Human Rights (UNGPs). FIFA’s Human Rights Policy identifies potential adverse human rights risks due to its relationships with other entities in the areas of labor rights, land acquisition and housing rights, discrimination, security, and players’ rights. While rooted in the UNGPs, FIFA implements its human rights commitments through a four-pillar approach, as opposed to the UNGPs three-pillar approach based on the Ruggie Principles of protect, respect and remedy. FIFA’s four-pillar approach to addressing potential human rights risks involves (i) commit and embed; (ii) identify and address; (iii) protect and remedy; and (iv) engage and communicate.

Lessons Learned from Qatar 2022?

As mentioned above, the alleged mistreatment of migrant workers employed in the preparations for hosting the World Cup in Qatar in 2022 has drawn international attention from advocacy groups such as Human Rights Watch, Amnesty International, and the Business and Human Rights Resource Centre. For its part, the International Labour Organization (ILO) has partnered with Qatar since 2017 to implement an ambitious labor reform agenda, including the adoption of a non-discriminatory minimum wage, with a Minimum Wage Commission to monitor its impact, and new legislation to better protect workers from heat stress. In addition, the ILO has assisted Qatar in dismantling its “kafala” sponsorship system, including removing the requirements for workers to obtain exit permits and no-objection certificates to change employers. Qatar’s partnership with the ILO comes after the 2017 closure of a 2013 complaint by workers’ organizations, alleging non-observance of the Forced Labour Convention, 1930 (no. 29), which Qatar ratified in 1998.

However, despite Qatar’s ambitious labor reform agenda in partnership with the ILO, researchers at Human Rights Watch note that the additional protections provided for migrant construction workers employed at stadium sites are not applicable to the vast majority of Qatar’s migrant population, including workers building other essential infrastructure for the World Cup, or workers in the hospitality sector.

Following FIFA’s Human Rights Policy, and perhaps learning from the Qatar 2022 experience, the United 2026 Committee has developed a human rights strategy in consultation with stakeholders in Canada, Mexico, and the United States. The human rights strategy follows the UNGPs, and also addresses potential human rights risks. Through its consultations, the United 2026 Committee identified risks in the United States, Canada, and Mexico such as discrimination, rights of indigenous peoples, labor rights, supply chain labor, freedom of expression, human trafficking, gender-based violence, freedom of movement and travel, land use and housing rights, privacy concerns, and security and law enforcement.

Focus for United 2026 – Labor Rights in Mexico

In addition to committing to a human rights strategy in accordance with FIFA’s new Human Rights Policy, Mexico is undertaking major changes to its labor legislation in the context of the 2019 United States-Mexico-Canada Agreement (USMCA), and U.S. State Department has sponsored the Mexico United 2026 Project to institutionalize reforms and to prevent possible labor violations. Mexico was categorized as a country with systematic violations of rights in the International Trade Union Confederation’s (ITUC) 2020 “Worst Countries for Workers” report. However, there is hope that the human rights ambitions of FIFA, and the efforts of organizations committed to labor reform in Mexico, may make the United 2026 World Cup not a time to be concerned for human or workers’ rights, but a time to celebrate sport, united.

New Law Library Report Lists Countries with Legislation Establishing a “Net Zero” Emissions Target

Source: US Global Legal Monitor

Title page of the Law Library’s report “Net Zero Emissions Legislation Around the World”

The United Nations Climate Change Conference got underway this week in Glasgow in the United Kingdom (UK), opening on October 31 and running until November 12. The conference is commonly referred to as “COP26,” as it is the 26th session of the “Conference of the Parties” to the 1994 UN Framework Convention on Climate Change (UNFCCC).

The UNFCCC has “near-universal membership,” having been ratified by 197 parties (196 states and the European Union). As explained on the conference website, “[t]he run up to this year’s summit in Glasgow is the moment (delayed by a year due to the pandemic) when countries update their plans for reducing emissions.” In particular, as stated in an introductory document published by the conference hosts, “[c]ountries are being asked to come forward with ambitious 2030 emissions reductions targets (NDCs) that align with reaching net zero by the middle of the century.” “NDCs” are Nationally Determined Contributions, which all parties agreed to communicate or update every five years as part of the Paris Agreement signed at COP21 in December 2015. Therefore, 2020 marked the first of these five-year cycles. The document further states that

[t]o keep the temperature of the planet under control – limiting its increase to 1.5 degrees – the science dictates that by the second half of the century, we should be producing less carbon than we take out of the atmosphere. This is what reaching ‘net zero’ means.

According to the document, the UK was “the first major economy to put into law that we will reach net zero carbon emissions by 2050.”

Ahead of COP26, the Law Library’s foreign law specialists and analysts reviewed the laws of jurisdictions around the world to determine which parties had enacted legislation putting a “net zero” target into law, and which additional countries had formally proposed such legislation (particularly through the introduction of a bill in the relevant parliament). The findings of this work are available in a table published on the Law Library’s website, which identifies 39 jurisdictions around the world as having a net-zero emissions or “climate neutrality” goal enshrined in legislation:

This includes the European Union and its 27 member states, where a June 2021 regulation sets 2050 as the target date for climate neutrality. Eight EU member states have passed their own legislation in addition to the directly applicable regulation, including two that have set an earlier target date. To date, 11 countries outside the EU have passed legislation containing a net zero emissions goal, with two setting a target date earlier than 2050. At least three other countries have introduced or are expressly developing legislation that includes the goal.

We have provided links for primary source materials and included a brief note as to the relevant targets established in the legislation.

Various other countries (as well as cities and companies) have made net-zero pledges through policy documents or other official statements; these are not reflected in the table. A recent report by the UN Environment Programme (UNEP) found that “[n]et-zero pledges – and their effective execution – could make a big difference,” but “current plans are vague and not reflected in NDCs.” The executive director of UNEP stated:

Nations need to put in place the policies to meet their new commitments, and start implementing them within months. They need to make their net-zero pledges more concrete, ensuring these commitments are included in NDCs, and action brought forward. They then need to get the policies in place to back this raised ambition and, again, start implementing them urgently.

It is also essential to deliver financial and technological support to developing nations – so that they can both adapt to the impacts of climate change already here and set out on a low-emissions growth path.

The Law Library has published various articles related to climate change and the law in the Global Legal Monitor, including some specifically related to net-zero targets. We will continue to monitor legal developments in this area, so please subscribe to receive updates.