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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.

Sri Lanka: Proposal to Raise Minimum Age of Criminal Liability

(May 23, 2016) It was announced on May 19, 2016, that the Cabinet of ministers of Sri Lanka has approved a proposal to amend the country’s Penal Code, to change the age of criminal responsibility. (Sri Lanka to Amend Penal Code to Increase Minimum Age for Criminal Responsibility, COLOMBO PAGE (May 19, 2016).) At present, the Penal Code allows anyone eight years of age or older to be held responsible for criminal acts. (Penal Code (Jan. 1, 1885, as amended through 2006), REFWORLD, art. 5 (a).) It is the general practice in Sri Lanka for legislation to begin with draft preparation by the executive branch agencies before the matter is considered by the legislature. (Therese Perera, Legislative Drafting in Sri Lanka, LOOPHOLE (May 2011).)

Wijayadasa Rajapaksha, the Minister of Justice, has suggested raising the minimum age of criminal responsibility to 12, arguing that this standard is more consistent with that applied in other countries. Furthermore, the Cabinet approved a provision in which children between the ages of 12 and 14 would face criminal responsibility only after a magistrate determined that they had the necessary maturity or knowledge to form the intent to commit a crime. (Sri Lanka to Amend Penal Code to Increase Minimum Age for Criminal Responsibility, supra.)

According to a report published by the Child Rights International Network, the minimum age of criminal responsibility in what the report includes as Asian countries ranges from 7 (e.g., in Lebanon, Pakistan, and Yemen) to 15 (e.g., in Bahrain and the Philippines). A number of jurisdictions set the age generally at 16, but permit charges to be laid in specified cases for those as young as 14 (e.g., China, Kazakhstan, and Vietnam). (Minimum Ages of Criminal Responsibility in Asia, Child Rights International Network website (last visited May 19, 2016).)

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Zambia: Parliament Makes Further Cuts to Royalty Rates on Production of Minerals

(May 23, 2016) On May 4, 2016, Zambia’s 158member unicameral Parliament passed the Mines and Minerals Development (Amendment) Bill, 2016, to amend the Mines and Minerals Development Act 2015.  (Martine Chileshe, Zambia Mines and Mineral Development Act 2015 – Amendment, TAX NEWS SERVICE (June 30, 2015), International Bureau of Fiscal Documentation online subscription database.)  According to the country’s Constitution, before it can be enacted, the legislation will need the President’s consent.  (Constitution of Zambia (Amendment) Act No. 2 of 2016 (Jan. 5, 2016), § 66, Zambia Parliament website.)  If enacted, the legislation will take effect retroactively as of April 1, 2016.  (The Mines and Minerals Development (Amendment) Bill, 2016, N.A.B. 6, 2016 (Mar. 10, 2016), § 1, Zambia Parliament website.)

Background

If enacted, the legislation would change the royalty rates on production of minerals for the third time in two years.  Under a 2008 Act, royalty rates on production of minerals applicable to license holders were set as follows:

Type Base Rate
base metals norm value 3%
industrial minerals gross value 3%
energy minerals gross value 3%
precious minerals norm value 5%
gemstones gross value 5%

(The Mines and Minerals Development Act, 2008 (Apr. 4, 2008), § 133, Zambia Legal Information Institute website.)  “Norm value” under the Act is “the monthly average cash price per metric ton,” determined by various specified methods, multiplied, e.g., by the amount of the metal or recoverable metal sold; ”gross value” is ”the realised price for a sale … at the point of export from Zambia or point of delivery within Zambia,” subject to certain conditions imposed on the realized price.  (Id. § 133(3).)

In 2014, Zambia amended the 2008 Act and dramatically increased the rates.  It imposed a royalty rate of 20% on open cast mining operations and 8% on underground mining operations, applied on the normal value of base metals or precious metals and the gross value of gemstones or energy minerals.  (The Mines and Minerals Development (Amendment) Act, No. 11 of 2014 (Dec. 23, 2014), § 3, Food and Agriculture Organization of the United Nations (FAOLEX) website.)  It set the royalty rate on industrial minerals at 6% of the gross value of the minerals.  (Id.)  The Act also imposed royalties on production of minerals by unlicensed persons, being 6% of the gross value for industrial minerals and 20% of the normal or gross value for other minerals.  (Id.)

In 2015, Zambia enacted the Mines and Minerals Development Act, 2015, the law currently in force, and substantially reduced royalties payable on production of minerals for both open cast and underground mining operations.  Under this Act, holders of a mining license are subject to a royalty rate of 9% for open cast mining operations and 6% for underground operations, applied to the normal value of the base metals or precious metals and the gross value of the gemstones or energy minerals.  (The Mines and Minerals Development Act, 2015 (Aug. 14, 2015), § 89, Zambia Parliament website.)  The royalty payable on industrial minerals remains unchanged at 6% of the gross value of the minerals.  (Id.; see also Wendy Zeldin, Zambia: Mines and Minerals Bill and Related Income Tax Amendment Bill Tabled in Parliament, GLOBAL LEGAL MONITOR (July 8, 2015).)

Royalties payable on production of minerals by persons who do not hold a mining license were also reduced.  Such persons are now expected to pay a royalty rate of 9% of the normal value for base metals or precious metals and 9% of the gross value of gemstones or energy minerals.  (The Mines and Minerals Development Act, 2015, § 89.)  The royalty rate payable for industrial minerals remains the same.  (Id.)

Proposed Changes

If enacted in its current form, the legislation will further reduce the royalties on production of minerals by adopting the following rates:

Type Base Rate
base metals (excluding copper) norm value  5%
energy & industrial minerals gross value  5%
gemstones gross value  6%
precious metals norml value  6%

(The Mines and Minerals Development (Amendment) Bill, 2016, § 2.)  The definition of norm value  under the new legislation is essentially the same as that under the 2008 Act; the gross value is “the realised price for a sale … at the point of export from Zambia or point of delivery within Zambia,” with no conditions included about the realized price.  (The Mines and Minerals Development (Amendment) Bill, 2016, § 2(5).)

The bill will lower the royalty rate for copper from open cast and underground mining operations by setting it at a minimum of 4% and a maximum of 6%, depending on the prevailing price for copper:

Normal Price per Ton Base Rate
below US$4,500 norm value  4%
between US$4,500 and 5,999 norm value  5%
over (inclusive) US$6,000 norm value  6%

(Id.) The legislation will also cut the royalties payable by unlicensed persons by eliminating the distinction in rates between licensees and non-licensees.  (Id. § 2.)  

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Nepal: Minimum Wage Increased

(May 23, 2016) It was reported on March 1, 2016, that the Government of Nepal had amended the minimum wage provided for under the Labor Act, 1992.  Notice of the change was published in the Nepal Gazette dated February 1, 2016.  (Anup Raj Upreti & Tilak Bikram Pandey, Minimum Wage / Salary, 2016 (2072), LEGAL UPDATE (Mar. 1, 2016), Pioneer Law Associates website; Labor Act, 2048 (1992) (as amended 15 Magh 2054 (Jan. 28, 1998)), Nepal Department of Labor website.)

There is one minimum wage applicable to workers and employees who work on tea estates and another established for those who work in other enterprises, but “[t]he minimum wage is applicable to all workers/employees irrespective of status of the employment or the length of service.” (Upreti & Pandey, supra.)  The tea estate minimum monthly salary for the current fiscal year, from February 1, 2016, through July 15, 2016, is NPR6,375 (about US$60), and the minimum daily wage is NPR228 (about US$2).  There is also a daily allowance of NPR30 (about US$0.28) for tea refinery and factory workers and certain other tea estate workers.  (Id.)  For the period after the current fiscal year, from July 16, 2016, through July 15, 2017, the minimum monthly tea-work-related salary will increase to NPR7,075 (about US$67) and the daily wage to NPR253 (about US$2.40); the daily allowance remains the same amount.  (Id.)

Effective February 1, 2016 (the date of publication of the notice in the Nepal Gazette), the new minimum monthly salary for employees in other enterprises is NPR6,205 (about US$59), plus a “dearness allowance” (essentially a cost of living adjustment) of NPR3,495 (about US$33), for a total of NPR9,700 (about US$92).  The new daily wage rate for these other enterprise workers is NPR395 (about US$3.74).  (Id.)

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Italy: New Code of Cultural Heritage and Landscape

(May 20, 2016) On March 31, 2016, an updated version of the 2004 Code of Cultural Heritage and Landscape entered into effect in Italy.  (Legislative Decree No. 42 of January 22, 2004, Code of Cultural Heritage and Landscape, as Mandated by Article 10 of Law No. 137 of July 6, 2002 (L.D. No. 42), GAZETTA UFFICIALE No. 45 (Feb. 24, 2004), available at NORMATTIVA (in Italian) (consolidated text updated with provisions effective Mar. 31, 2016).)

Innovations in the Updated Code  

The updated Code contains a number of new provisions to enhance protection of and promote the Italian cultural heritage. Some of the most important innovations are:

  • Revised Definition of Cultural Property

The Code excludes from the definition of cultural property the works of a living author whose creations do not go back more than 50 years and creations that are less than 70 years old.  (Id. art. 10(5).)

  • Government Authorization and Notification Requirements Revised

The Code adds the “removal or demolition, even if followed by re-construction,” of legally protected cultural property to the types of conduct that require prior governmental authorization.  (Id. art. 21(1).)

The Code provides that the national police assigned to protect the national cultural heritage must be informed of any fortuitous discovery of protected cultural property, whether real estate or movable property. (Id. art. 90(1).)  The Code exempts from the need to obtain prior government authorization certain activities performed without a profit motive related to the study, research, or free expression of thought and creative expression aimed at promoting knowledge of the national cultural heritage.  (Id. art. 108(3-bis).)

  • Strengthening of Government Powers vis à vis Cultural Property 

The Code strengthens the supervision mechanisms of the central government to protect cultural property located throughout the country.  (Id. art. 18(2).)  The Code also charges governmental entities, including local authorities, with the obligation to preserve and create inventories of cultural property under their administration.  (Id. art. 30(4).)  In addition, it recognizes and strengthens cooperative activities between government and academic entities aimed at disseminating  knowledge of the national cultural heritage (id. art. 119) and creates mechanisms for cooperative activities between public and private entities aimed at protecting the national landscape (id. art. 133).

The Code provides rules applicable to the upkeep of the colors of the facades of culturally protected buildings (id. art. 154).  It also expands the prohibition against placing or affixing signs or other means of publicity on buildings or in areas protected as cultural property.  (Id. art. 49(1).)

The Code regulates the payment of compensation in cases where the restitution of cultural property must be made (id. art. 79(2)) and eliminates the statute of limitations on legal actions for the recovery of cultural property illegally removed from Italy (id. art. 78(3)).

  • Modernization of Authorization Procedures for Transfers of Cultural Property 

The Code sets forth a procedure for the issuance of a government authorization to transfer legally protected cultural property held in private hands or in the public domain (id. arts. 55(2) & 56(2)), eliminating the requirements of a prior authorization for the transfer of the property to the state and the payment of tax obligations (id. art. 57(1)).  The Code also now contains a detailed procedure for the transfer to private ownership of public real estate subject to legal protection as cultural property.  (Id. art. 57-bis.)

  • Procedures on Landscaping, Real Estate, and Intervenors

The Code regulates the procedure for the issuance of a “Declaration of Remarkable Public Interest” procured to protect real estate and other areas with cultural value throughout the country.  (Id. art. 138.)  It sets forth stringent rules for the approval of landscape planning projects and activities (id. art. 135) and establishes the procedure for the approval of  “Landscape Plans” affecting certain territories with cultural value in the country, a procedure that includes public participation and consultation mechanisms (id. arts. 143 & 144).  It also grants legal recognition to the profession of intervenors in cultural property (i.e., handlers, specialists, experts).  (Id. art. 9-bis.)

  • International Standards and Cooperation

The Code creates cooperation mechanisms for the control of the circulation of Italian cultural property outside the national territory.  (Id. art. 64-bis.)  It adopts the United Nations Educational, Scientific and Cultural Organization (UNESCO) 2003 Convention for the Safeguarding of the Intangible Cultural Heritage into the Italian legal system.  (Id. art. 7-bis; Convention for the Safeguarding of the Intangible Cultural Heritage (Oct. 17, 2003), UNESCO website.)  It also implements European Union legislation on the restitution of cultural property to its state of origin and on cooperative activities with other EU countries concerning cultural property stolen or illegally removed from Italy.  (L.D. No. 42, arts. 75(2) & 76(2-bis).)

  • Protected Cultural Property Held by Private Parties

The Code contains new provisions on the protection of cultural property granted to private parties by concession. (Id. art. 116(1).)  It also includes new seminal measures to allow for the sponsorship by private parties of initiatives to protect the national cultural heritage.  (Id. art. 120(1).)

Highlights of Provisions Already in the Code Prior to the 2016 Changes 

  • General Protection of the Italian Cultural Heritage 

The Code was designed to reinforce the importance of Italy’s cultural heritage to the identity of the Italian people. (Id. art. 1(2).)  Cultural heritage is composed of, among other elements, art, history, archeology, anthropology, archives, bibliographical libraries, museums, picture galleries, and art galleries.  (Id. arts. 2(2) & 10(2)(a).) In order to make preservation of the cultural a government responsibility, the Code created the Ministry for Cultural Assets and Activities (MCAA).  (Id. arts. 3 (1) & 4(1).)   Religious cultural property is to be protected by the relevant religious institution.  (Id. art. 9(1).)

The Code instituted the use of a “Declaration of Cultural Interest” certificate for certain properties, to be issued by the authorities, who also must maintain an online registry of such declarations.  (Id. arts. 10, 11, & 15(2-bis).)  Additionally, the Code enables the regions and other public territorial entities to enter into financial agreements with foundations in order to implement activities that protect the cultural heritage.  (Id. art. 121(1).)

  • Governmental Protection

The Code establishes a procedure for carrying out renovations or changes or other forms of material intervention in protected cultural property, including environmental impact assessments.  (L.D. No. 42, arts. 22 & 26.)  The state and regional and local government entities are under the obligation to adopt measures for the protection and conservation of cultural property throughout the country.  (Id. art. 30.) Under the Code, private owners of legally protected cultural property may be compelled to carry out conservation of such property.  (Id. art. 34.)  In addition, the MCAA may order the transportation of protected cultural property to public institutions that provide custody for movable cultural property and grant them temporary custody rights over such property.  (Id. art. 43.)  Cultural property may also be given in deposit to specific institutions for purposes of better protecting it.  (Id. art. 44.)

  • Regulation of Activities in Protected Cultural Areas

The exercise of commercial activities in areas deemed to have archaeological, historical, artistic, or landscape value is also heavily regulated by the Code. (Id. art. 52.)  The Code forbids the disposition of certain property from certain cultural domains, such as places of archaeological interest, national monuments, museums, galleries, libraries, and archives, among others.  (Id. art. 54(a), (b), (c) & (d).) Furthermore, the Code mandates enforcement authorities to report all banned commercial activity carried out with the use of protected cultural property.  (Id. art. 63(1).)

  • Exportation of Protected Cultural Property from Italy

The Code makes international circulation of protected property subject to stringent requirements and restrictions.  (Id. art. 64-bis.)  The permanent removal of cultural property from Italian territory is generally forbidden (id. arts. 65 & 68), but the temporary exit of cultural property from Italian territory is allowed under strict conditions (id. arts. 66 & 67).  The MCAA maintains a database of all cultural property that has been illegally removed from Italian territory.  (Id. art. 85.)

  • Protection of Landscape Assets

The Code protects landscape assets, defined as territory that is expressive of the Italian identity and whose character derives from both natural and man-made factors. (Id. art. 131(1).)  The Code lists landscape areas that are to receive legal protection as cultural property in Italy.  (Id. art. 142.)

The Code prohibits owners, possessors, or holders of real estate and areas that have a landscape interest from destroying or harming them.  (Id. art. 146(1).)  Such persons must submit a proposal for intervention in the protected asset to the respective authorities and may not commence any work on them before the respective authorization is issued.  (Id. art. 146(2).)  Certain minor interventions, however, do not require government authorization.  (Id. art. 149.)

  • Penalties Associated with Violations of the Code

The Code regulates situations of loss of cultural assets due to lack of traceability or exit from the national territory, in which case the violator must pay an amount to the state equivalent to the value of the respective property. (Id. art. 163.)

The Code imposes administrative penalties for violation of its protective provisions related to the conservation of cultural property, urban construction and cultural property preservation, and other activities. (Id. art. 160.)  The Code also establishes administrative penalties for violation of the provisions on the international circulation of protected cultural assets.  (Id. art. 165.)

Criminal penalties are established by the Code for acts such as the destruction, modification, unauthorized restoration, or performance of works of any type affecting legally protected cultural property.  (Id. art. 169(1)(a).)  These penalties include incarceration for six months to one year and a fine of €775 to €38,734.50 (about US$884-$44,181).  (Id.) The performance of activities on protected cultural property that adversely affects its conservation is subject to this same punishment.  (Id. art. 170(1).)  (Id.) 

Forgery of cultural property and the failure to implement conservation measures ordered by the MCAA are also crimes subject to criminal penalties. (Id. arts. 178 & 172(1), respectively.)  The forgery of cultural property is punishable with incarceration for a term of from three months to four years, and a fine of €103 to €3,099 (about US$117 to $3,535).  (Id.)

The Code penalizes the unauthorized transfer of cultural assets with a term of imprisonment of up to one year and a fine of €1,549.50 to €77,469 (about US$1,767 to $88,361).  (Id. art. 173.)  Criminal penalties are also set for conduct that violates the Code’s provisions on archaeological research and the theft of cultural property belonging to the state.  (Id. arts. 175 & 176.)  Under the Code, collaboration by a convicted party in the recovery of lost or stolen cultural property is a mitigating circumstance in their sentencing.  (Id. art. 177.)

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International: Paris Agreement Parties to Consider Human Rights Issues

(May 20, 2016) The parties that signed the 2015 Framework Convention on Climate Change, popularly called the Paris Agreement, are meeting from May 16 to May 25, 2016, in Bonn, Germany, to consider the human rights implications of aspects of the climate change plan. (Adoption of the Paris Agreement, FCCC/CP/2015/L.9, United Nations website (Dec. 12, 2015); Mark Casper, Paris Agreement States Urged to Address Human Rights Issues, PAPER CHASE (May 13, 2016); “No Time for Complacency” – UN Rights Expert Says as the Paris Agreement Faces Its First Key Test, Office of the High Commissioner for Human Rights (May 13, 2016).) The meeting’s purpose includes negotiating a new international climate mechanism “to transfer funds from developed to developing countries for projects that contribute to the mitigation of greenhouse gas emissions and support sustainable development.” (“No Time for Complacency” – UN Rights Expert Says as the Paris Agreement Faces Its First Key Test, supra.)

According to John H. Know, the United Nations Special Rapporteur on human rights and the environment, the planned meeting will be the “first test of States’ commitment to the principles of the Paris Agreement … .” (Id.) He added that the Paris Agreement is the first environmental pact to include a human rights commitment and said that “[t]he fact that 177 States have signed the Paris Agreement in less than a month is very welcome news, but the hard work of safeguarding the environment and human rights is just now beginning.” (Id.)

The existing climate plan includes the Clean Development Mechanism (CDM), which is described on the CDM’s webpage as permitting “emission-reduction projects in developing countries to earn certified emission reduction (CER) credits, each equivalent to one tonne of CO2. These CERs can be traded and sold, and used by industrialized countries to a [sic] meet a part of their emission reduction targets under the Kyoto Protocol.” (What Is the CDM?, CDM website (last visited May 16, 2016).) The CDM has been under criticism for enabling the establishment of “hydroelectric and other projects that were linked to human rights abuses, including displacement of indigenous and other communities without transparency or adequate consultation.” (“No Time for Complacency” – UN Rights Expert Says as the Paris Agreement Faces Its First Key Test, supra.) The expectation now, with the Bonn meeting, is that a new mechanism will be instituted to include safeguards against violations of rights and procedures for filing grievances when such violations do occur. (Casper, supra.)

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