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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.

Indonesia: Revision of Mining Regulation

(Jan. 24, 2017) On January 11, 2017, Indonesia’s government issued a fourth revision to a government regulation of 2010 on the management of mineral and coal businesses. (Viriya P. Singgih, Indonesia Pledges Leeway for Obedient Miners, JAKARTA POST (Jan. 16, 2017); Implementation of Mineral and Coal Mining Business Activities, Government Regulation No. 23/2010 (the Regulation) (Feb. 1, 2010, as amended Feb. 21, 2012), GLOBAL BUSINESS GUIDE.) The Regulation implements the Law on Mineral and Coal Mining. (Law of the Republic of Indonesia Number 4 of 2008 [sic] Regarding Mineral and Coal Mining (enacted Jan. 12, 2009) (the Law) PWC.COM (unofficial translation).)

The purpose of the revision was to renew a provision that had been due to expire to allow local miners to export their products if they show a commitment to build their own smelters to process ore and send at least 30% of the mined ore to domestic smelting enterprises. The revision emphasizes that the ores that may be exported include washed bauxite, copper concentrates, and low-grade nickel ore.  (Singgih, supra.) According to Energy and Mineral Resources Minister Ignasius Jonan, the government would “monitor [the progress] every six months. If they fail to fulfill the commitment to build the smelters, there will be no export licenses for nickel and bauxite miners.”  (Id.)

Jonan added that the revised regulation had been misunderstood as forcing local miners to each have at least 30% of their nickel or bauxite ore sent to local smelters, in order to be permitted to export the rest. In fact, the requirement is calculated based on the capacity of Indonesian smelters. As an example, he said that at present the amount of nickel that domestic smelters can handle in a year is 16 million tons; therefore nickel mines must sell about 4.8 million tons to those local smelters during the year, to meet the 30% requirement.  (Id.)

Background

The 2009 Law had described minerals as non-renewable natural resources, to be used for the benefit of the nation, and it stated that the national interest could be served by control of exports. (The Law, Preamble & arts. 2 & 5; Constance Johnson, Indonesia: Export Ban on Unprocessed Minerals Comes into Effect, GLOBAL LEGAL MONITOR (Jan. 23, 2014).) In order to stimulate domestic industry, regulations imposed a ban on export of such ores as nickel, bauxite, chromium, gold, silver, and tin, due to come into force in 2014. (Johnson, supra; Singgih, supra.)

In 2014, the Minister of Industry stated that concentrate exports would be permitted until 2017, and at the same time the Ministry of Mines and Energy proposed a three-year exemption from the export ban to allow exports from mining companies committed to building smelters to process ore in Indonesia. These changes were included in a January 11, 2014, revision of the 2010 Regulation. (Johnson, supra; Sacha Winzenried & Fandy Adhitya, Export Ban on Unprocessed Minerals Effective 12 January 2014 – Three-Year Reprieve for Some, but Uncertainty Remains, PWC.COM.)

The limitation on exports has been seen as a boon to foreign competitors, who have been able to increase their share of the international market. The Philippines in particular became the largest supplier of nickel in the world. With the new, 2017 revision, the exemptions allowing domestic companies to export some of their products are extended. (Singgih, supra.)

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India: Decision Not to Sign Hague Treaty on Child Abduction

(Jan. 23, 2017) In a decision made by the Women and Child Development (WCD) Minister, Maneka Gandhi, and agreed to by the Ministry of External Affairs, the government of India has decided not to ratify the Hague Convention on Child Abduction. (Shalini Nair, India Will Not Ink Hague Treaty on Civil Aspects of Child Abduction, INDIAN EXPRESS (Nov. 27, 2016); Hague Conference on Private International Law, Convention on the Civil Aspects of International Child Abduction (Hague Convention), Oct. 25, 1980, HCCH No. 28, Hague Conference website.) Indian media outlets reported on November 6, 2016, that the decision not to ratify was a certainty and then on November 27 that the decision had been made.  (Govt Likely to Junk Inter-Parental Child Abduction Bill, TRIBUNE (Nov. 6, 2016); Nair, supra.)

The Hague Convention, which at present has 95 signatories (Status Table: Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, Hague Conference website (last updated July 27, 2016)), aims to protect children from the harmful effects of international abduction by a parent by encouraging the prompt return of abducted children to their country of habitual residence, and to organize or secure the effective rights of access to a child. … [C]ustody and visitation matters should generally be decided by the proper court in the country of the child’s habitual residence. (Important Features of the Hague Abduction Convention – Why the Hague Convention Matters, U.S. Department of State, Bureau of Consular Affairs website (last visited Jan. 11, 2016).)

Background

Gandhi’s decision marks a turnaround in the direction the Indian government had been taking in its approach to international child abduction. The government had come under international pressure, particularly from the United States and the United Kingdom, to accede to the Convention.  (Govt Likely to Junk Inter-Parental Child Abduction Bill, supra.)  In 2009, the government’s own Law Commission, headed by former Supreme Court judge Dr. A.R. Lakshmanan, had issued a report calling on the government to ratify the Hague Convention. (Law Commission of India, Need to Accede to the Hague Convention on the Civil Aspects of International Child Abduction (1980), Report No. 218 (Mar. 2009), Law Commission website.) Furthermore, in February 2016, the Punjab and Haryana High Court asked the Law Commission of India to again recommend that the government sign the Hague Convention and adopt a related law because, in the words of Justice Rajive Bhalla, “for want [of] the Union of India acceding to the Hague Convention and or enacting a domestic law, children will continue to be spirited away from and to India, with courts and authorities standing by in despair.”  (Ajay Sura, High Court Urges Law Commission to Recommend Signing of Hague Convention, TIMES OF INDIA (Mar. 5, 2016).)

In line with these recommendations, the WCD Ministry in June 2016 issued a draft of the Civil Aspects of International Child Abduction Bill, 2016 and a notice on the bill, No. CW-I-31/59/2016-CW-I  of June 22, 2016 (both available at Bring Our Kids Home website), which reflected the provisions of the Hague Convention and would have paved the way for India’s accession to it.  The draft bill had reportedly specified that a decision under the Hague Convention to return a child would not be final, and courts would have the power to deny custody if the person caring for the child was putting the child at grave risk of physical or psychological harm or was not actually exercising the custody rights.  (Govt Likely to Junk Inter-Parental Child Abduction Bill, supra; Mayura Janwalkar, In US, 80 Abduction Cases in Which Parent Took Child to India, Says Susan S Jacobs, Special Adviser on Children’s Issues), INDIAN EXPRESS (Sept. 16, 2016). The bill also recommended a jail term of one year for any parent or family member found guilty of wrongfully retaining or removing a child from the custody of the other parent.  (Govt Likely to Junk Inter-Parental Child Abduction Bill, supra.)

Defense of the Decision 

Defending the government’s decision not to sign the Convention, a WCD Ministry official stated that signing it would be to the disadvantage of Indian women in that there were far more cases of Indian women escaping bad marriages abroad and returning “to the safety of their homes” in India than non-Indian women who are married to Indian men leaving India with their children, and that the majority of such cases involved women fleeing, not men. (Nair, supra.)  Another government official claimed that developed countries had pressured India to sign the treaty on the basis of gender equality and establishing the father’s rights to the child as equal to those of the mother, “[b]ut that doesn’t apply here given the reality of Indian marriages.”  (Govt Likely to Junk Inter-Parental Child Abduction Bill, supra.)  Gandhi herself claimed to have originally supported signing the Hague Convention but changed her mind over time and “after interacting with women who have been abandoned by their husbands abroad, had their passports snatched from them, been beaten up, and have somehow scraped [together] the money [to flee] and are in terrible fear.” (Id.)

Some Indian women who left the U.S. with their children have claimed that they and/or their children were subjected to routine, psychologically traumatic abuse by their husbands and in-laws. When they made complaints to the authorities, either no action was taken, they were forced to move into shelters, or their children were removed by child protective services.  (Ananya Sengupta, Mothers in Hague Plea – Call to Govt Not to Sign Child Abduction Convention, TELEGRAPH (Aug. 18, 2016).)

Reinforcing such claims, opponents of signing the Convention point to a 2010 research report on Hague Convention cases showing that globally 68% of the taking parents were mothers, 85% of these mothers were the primary caregivers of their children, and 54% had gone home to a country in which they held citizenship, with the majority being women fleeing abusive and violent homes. In the view of Convention opponents, half of Hague Convention cases are not actually “parental abduction” but “flights to safety.”  Moreover, the Hague Convention, drafted before most of the social science research on domestic violence and its effects on children had been conducted, was framed with the understanding that usually it was a noncustodial father who took children from their primary caregiver (their mother) and that it was left-behind parents who had been unfairly harmed by abductions, rather than women crossing international borders with their children to escape serious abuse, often from countries where many barriers to help may exist.  (Jeffrey L. Edleson et. al., Multiple Perspectives on Battered Mothers and Their Children Fleeing to the United States for Safety: A Study of Hague Convention Cases (Berkeley Project Report), Final Report, NIJ #2006-WG-BX-0006, Goldman School of Public Policy, Univ. of Cal.-Berkeley website (Nov. 2010).)

Views Supporting Accession to the Convention

In contrast, advocates for signing the Convention and passing an Indian anti-child-abduction bill maintained in the run-up to the government’s decision that Indian policy makers were focusing too narrowly on the issue of “Indian women being abused,” instead of accepting that there are numerous reasons why parents abduct their children, and experts consider child abduction to be child abuse with long-lasting traumatic effects. (Why Is India Reluctant to Act Against Parental Child Abduction?, Bring Our Kids Home website (Oct. 23, 2015).) Reasons for abduction, according to the Canadian Centre for Child Protection, include a parent feeling unjustly treated by the court process or frustrated with custody arrangements, a contentious divorce or break-up, an effort to exert control over an ex-spouse or partner, a way to deprive the other parent of access to the child, and a parent’s concerns for his/her safety or the safety of his/her child.  (Parental Child Abduction: Why Do Parents Abduct Their Children?, Missingkids.CA website (last visited Jan. 11, 2017).)

While parental child abduction is a criminal offense under the Indian Penal Code, because India has not signed the Hague Convention, there is no way for a foreign government to force the abducting parent or the Indian government to return an abducted child. (Child Abduction – India, GOV.U.K. (last visited Jan. 11, 2017).) The U.S. State Department, in its 2016 international child abduction report, stated, “India demonstrated a pattern of noncompliance by persistently failing to work with the United States to resolve abduction cases in 2015.” (Bureau of Consular Affairs, Annual Report on International Parental Child Abduction (IPCA) 35 (2016), U.S. Department of State website.)  This lack of compliance is also reflected in the attitudes of Indian courts toward international child abduction cases, which have provoked great criticism of the courts and caused India to be widely branded as a “safe haven” for abducting parents.  The criticisms include

  • judges deciding abduction cases on an arbitrary basis, and wrongfully asserting jurisdiction over foreign nationals and non-resident Indians (What Is IPCA?, Bring Our Kids Home website (last visited Jan. 11, 2017));
  • Indian courts choosing to relitigate custody decisions already made in the best interest of the child by courts where the child resided prior to the abduction, with children rarely returned to their countries of habitual residence (Janwalkar, supra);
  • the inability of Indian courts to prove or disprove abuse charges effectively, given jurisdiction limits, or to subpoena evidence or witnesses from abroad (Open Letter to the Editor – Scroll.in and Ms. Mridula Chari, Bring Our Kids Home website (Aug. 21, 2016));
  • long and costly delays left-behind parents face in litigating their cases in Indian courts from abroad because of the huge case backlogs (What Is IPCA, supra); and
  • cultural and gender bias pervasive in Indian society that leads to negative stereotyping of left-behind fathers as abusive and encourages the filing of false abuse claims (id.).

Finally, proponents of the Convention claim that the Berkley Project Report cited above, which reviewed cases of abducting mothers bringing children to the U.S., not fleeing the U.S. for India with their children, was flawed in that only 22 mothers claiming abuse were interviewed and none of the claims were verified by the report’s authors, no fathers or judges were interviewed, the definition of abuse was extremely broad, and the authors themselves “all but admit that their findings cannot be generalized.” (Robert Franklin, Time Magazine Urges Changes to Hague Convention to Help Mothers Who Abduct Their Children, National Parents Organization website (Jan. 4, 2011).)

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European Court of Justice/Sweden: Invalidation of Data Retention Obligations

(Jan. 19, 2017) On December 21, 2016, the European Court of Justice (ECJ) delivered a judgment striking down Sweden’s Data Retention Act as inconsistent with provisions of the Charter of Fundamental Rights of the European Union. (Joined Cases C-203/15 & C-698/15, Tele 2, Sverige AB v Post-och Telestyrelsen and Secretary of State for the Home Department v. Watson, Brice, and Lewis (Dec. 21, 2016), CURIA.)

Fifteen EU Member States (including Sweden and the United Kingdom) as well as the European Commission submitted materials to the ECJ for consideration in the cases.  (Id.)  A number of Member States of the European Union have amended their data retention laws following the ECJ’s 2014 landmark decision Digital Rights Ireland (C-293/12 and C-594/12).  (The Data Retention Saga Continues: European Court of Justice and EU Member States Scrutinize National Data Retention Laws, JONES DAY (Aug. 11, 2016); Joined Cases C-293/12 & C-594/12, Digital Rights Ireland Ltd v Minister for Communications, Marine and Natural Resources (Apr. 8, 2014), CURIA; Theresa Papademetriou, Court of Justice of the European Union: Data Retention Directive Held Invalid, GLOBAL LEGAL MONITOR (May 21, 2014).)

Background

In 2003, the Swedish Parliament adopted a Data Retention Act requiring Swedish Telecom and Internet providers to collect and retain metadata on the calls and other communications of its customers, including the time, location, and duration of the communications, for six months. (16a, 16d§§ Lagen om elektronisk kommunikation (LEK) (Datalagringslagen) [Data Retention Act] (Svensk författnignssamling [SFS] 2003:389), LAGEN.NU.) Even after the ECJ declared, in its decision on Digital Rights Ireland, that the Data Retention Directive 2006/24/EC infringed privacy rights, a Stockholm Administrative District Court upheld the country’s Data Retention Act, arguing that the Swedish law was more well-defined than the Directive had been.  (Elin Hofverberg, Sweden: Internet Service Provider Appeals Data Retention Obligation, GLOBAL LEGAL MONITOR (Nov. 7, 2014).) However, the Swedish Internet service provider Tele 2 stopped collecting data on its customers and appealed the district administrative court’s decision to the Sweden’s Administrative Court of Appeal.  (Id.; Administrative District Court Stockholm, Case No. 14891-14 (Oct. 13, 2014) (in Swedish) (on file with author).)

The Administrative Court of Appeal referred the case to the ECJ with the following questions:

  1. Is a general obligation to retain traffic data covering all persons, all means of electronic communication and all traffic data without any distinctions, limitations or exceptions for the purpose of combating crime … compatible with Article 15(1) of Directive 2002/58/EC, taking account of Articles 7 and 8 and Article 52(1) of the Charter? (ECJ ¶ 51.)
  2. [W]hether Article 15(1) of Directive 2002/58, read in the light of Articles 7, 8 and Article 52(1) of the Charter, must be interpreted as precluding national legislation governing the protection and security of traffic and location data, and more particularly, the access of the competent national authorities to retained data, where that legislation does not restrict that access solely to the objective of fighting serious crime, where that access is not subject to prior review by a court or an independent administrative authority, and where there is no requirement that the data concerned should be retained within the European Union. (Id. ¶ 114.)

European Court of Justice Findings

The ECJ Grand Chamber heard the joined cases C-203/15 and C-698/15 as part of a preliminary ruling request from the Administrative Court of Appeal in Stockholm and the Court of Appeal (England & Wales) (Civil Division). (Id. ¶ 1.)  The ECJ found that in addition to possibly violating articles 7 (privacy) and 8 (protection of personal data) of the Charter of Fundamental Rights of the European Union, the Swedish law also raised questions regarding a possible violation of article 11 (freedom of expression) of the Charter. (Id. ¶ 92.)  In its December 21, 2016, judgment, the Court found that requiring data retention by service providers may only be allowed when it constitutes a ”necessary, appropriate and proportionate measure within a democratic society” and only when retained “for a limited period” and justified by the objectives listed in article 15 (1) of Directive 2002/58 on Privacy and electronic communications.  (Id. ¶ 95; Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 Concerning the Processing of Personal Data and the Protection of Privacy in the Electronic Communications Sector (Directive on Privacy and Electronic Communications), EUR-LEX; Charter of Fundamental Rights of the European Union, 2012/C 326/02, 2012 OJ (C 326) 391, EUR-LEX.)

The ECJ further found that the information collected by Swedish service providers enabled intimate details to be concluded about a person’s “everyday habits, permanent or temporary places of residence, daily or other movements, the activities carried out, the social relationships of those persons and the social environments frequented by them” (id. ¶ 99) and could ultimately make the person affected “feel that [his/her] private [life is] the subject of constant surveillance” (id. ¶ 100).

The Court went on to argue that although the law does not directly adversely affect the content of communications (as it only recorded metadata), “the retention of traffic and location data could nonetheless have an effect on the use of means of electronic communication, and, consequently, on the exercise by the users thereof of their freedom of expression, guaranteed in Article 11 of the Fundamental Rights Charter.”  (Id. ¶ 101.)  Moreover, in answering the second question quoted above, regarding when data retention is permissible, the ECJ found that the data retained can only be accessed with the “objective of fighting serious crimes” (id. ¶ 115) or if “vital national security, defence or public security” is at stake (id. ¶¶ 119 & 125).  In addition, such access requires prior judiciary review, and the collected information is stored within the European Union.  (Id. ¶ 125.)

Finally, the ECJ concluded that the Charter of Fundamental Rights precluded the adoption and enforcement of such laws as the Swedish Data Retention Act as it “provide[d] for general and indiscriminate retention of all traffic and location data of all subscribers and registered users relating to all means of electronic communication.”  (Id. ¶ 134 (1).)  However, according to the ECJ, the EU Member States are still allowed to adopt laws that retain traffic and location data as long as the purpose of the legislation is to fight serious crimes, and all “retention of the data is limited, with respect to the categories of data to be retained, the means of communication affected, the persons concerned and the retention period adopted, to what is strictly necessary.”  (Id. ¶ 108.)  Such categories need to be defined based on objective evidence, according to the Court; for example, the identification of specified geographical areas that are at high risk of being breeding grounds for the preparation of serious crimes.  (Id. ¶ 111.)

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United Kingdom: Consultation on Additional Drone Regulations Proposed

(Jan. 18, 2017) The Government of the United Kingdom recently issued a consultation document that contains additional proposals for the use of unmanned aerial vehicles (UAVs), or drones.  Drone technology is of growing economic importance; it is estimated it will be worth £102 billion (about US$126 billion) by 2025.  The government wishes Britain to become “the global go-to place for scientists, innovators and tech investors, and the development of new technologies such as drones is key to that … we want to further drive forward progress in the UK drones industry by fostering the right supportive environment.”  (Department for Transport, Unlocking the UK’s High Tech Economy: Consultation on the Safe Use of Drones in the UK (Dec. 21, 2016) (Consultation), at 5, GOV.UK.) The consultation advocates creating a simpler legal framework for drone operators.  (Id.)

Proposals in the Consultation

Since 2014, the House of Lords has been considering whether legislation is needed to better regulate the recreational use of drones.  The House of Lords issued a report in which it noted that advances in technology and a decrease in the cost of drones has led to an inconsistent regulatory framework that currently distinguishes between the commercial and noncommercial use of drones.  This distinction presumed that noncommercial users had a pre-existing knowledge of aviation and the rules of the air; however, advances in technology mean that similar aircraft are being used by commercial and recreational users, but under different regulations.  (HOUSE OF LORDS, EU SELECT AFFAIRS COMMITTEE, 7TH REPORT OF SESSION 2014–15, CIVILIAN USE OF DRONES IN THE EU, 2014–15, HL 122, ¶ 40.)

The new proposals include mandatory registration of new drones, increased penalties for flying drones illegally near no-fly zones; new signage for no-fly zones at sensitive sites, such as airports and prisons; and the introduction of a new criminal offense of misusing a drone.  The proposals in the consultation also include making drones identifiable by electronic means so that the police can more easily determine the owner of any drone discovered breaking the law, introducing a commercial drone pilot license, requiring mandatory insurance for drone owners, and establishing a system of drone traffic management.  (Consultation, Part 3.)

Current Laws

Drones are currently covered primarily by the UK’s aviation laws, which are regulated by the Civil Aviation Authority (CAA).  Other areas of law that come into play, particularly if the drone has a camera mounted on it, are data protection, privacy, liability, insurance, export, and intellectual property laws, as well as the common-law torts of nuisance and trespass.  (Peter Lee, Some Thoughts on the Drone Sector…, DRONES AND THE LAW (Feb. 4, 2016).)

The UK’s current laws addressing drones are detailed in Clare Feikert, Regulation of Drones: United Kingdom, part of a Law Library of Congress multinational report, Regulation of Drones (Apr. 2016).

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Germany: Government Proposes Law to Reduce Gender Pay Gap

(Jan. 18, 2017) On January 11, 2017, the German government agreed on a draft act that aims to ensure equal pay for work of equal value for women and men in the same workplace. (Gesetzentwurf der Bundesregierung, Entwurf eines Gesetzes zur Förderung der Transparenz von Entgeltstrukturen [Draft Act of the Federal Government, Draft Act to Promote Transparency in Pay Structures] (Jan. 11, 2017), Federal Ministry for Family Affairs, Senior Citizens, Women, and Youth website.)

Current German law forbids discrimination in pay on the basis of gender, among other categories. The draft act would provide the following measures to promote transparency in pay structures:

  • prohibition of direct or indirect pay discrimination based on gender and provision of a legal definition of “equal work or work of equal value” and other concepts in connection with “equal pay” (id. §§ 3, 4, & 7);
  • the legal right of an individual employee to request information on the company’s fixed basic gross salary and on one or two salary components, in companies with more than 200 workers (id. §§ 10 & 12);
  • enhanced rights of the Worker’s Council to enforce the employee’s right to information (id. §§ 13, 14, & 15);
  • encouragement of employers with more than 500 employees to put measures in place to regularly audit the pay structures to ensure equal pay (id. § 17); and
  • obligation of employers with more than 500 employees to provide regular updates on the status of measures to promote equality in general and wage equality between men and women or explain why there are no such measures in place, with publication of the reports as an attachment to the company’s management report (id. §§ 21 & 22 ¶ 4).

Next Procedural Steps 

The federal government forwarded the draft act to the Bundesrat for discussion. The Bundesrat, the constitutional body through which the German states participate in the legislative process, generally has six weeks to debate draft legislation.  After the six weeks have passed, the federal government will forward the draft act, along with the comments of the Bundesrat, to the German Bundestag (parliament) for discussion.  (Basic Law for the Federal Republic of Germany (May 23, 1949), BGBl. I at 1, as amended, art. 76 ¶ 2, GERMAN LAWS ONLINE (unofficial English translation).)

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