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To what extent does international aid provide a sticking plaster, rather than a solution, to post-war recovery?

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The theory of Good Governance (GG) relies on the belief an effective government builds upon the criteria of transparency and accountability. Moreover, government brings together the formal institutions of the state and their monopoly of legitimate coercive power (Stoker, 1998). The post-colonialism era left many states in a situation of civil war, bankruptcy and corruption, where an alliance of elites controlled the country’s main resources and wealth, which led to persistent inequalities and divisions within a country (Henderson, Stalker, 2000).

Thus, the fragmented state’s incapability to provide security, justice and basic needs, legitimized, in the citizen view, the use of force as not recognizing government’s authority.  The on-going tensions in the Middle-East illustrates how the longer a civil war lasts the more likely an escalation of violence will occur and lead to a spillover effect from a state to region. This in turn might have a significant impact on international peace. Following, post-war recovery donors believed the maintenance of political stability and peace-building process required assistance of the international system in order to limit the threat of a return to violence. This last point is essential, as it highlights the subjective use of foreign aid and need for mutual responsibility of the donor and recipient to apply the basic principles of humanitarian aid: humanity, neutrality, impartiality and independence.

This essay will argue contemporary humanitarian aid effectiveness is undermined by the politicization of the process, which is the pursuit of political objectives by humanitarian instruments. As a consequence, this results in the donor’s national interests and security being privileged over recipient’s need. Aid policy would then be determined by selectivity of which state receives aid and on the contrary, the circumvention of some governments.  This concept does not only impacts humanitarian principles, challenges the ethics of donor countries but also has long-term devastating consequences on development strategies. Boone (1996) argues, that instead of supporting development aid can provoke and enhance poverty as directly given to governments ‘that consume aid inflows instead of investing in their country’ (pp-289).  In order to analyze the impact politicized foreign aid had on developing countries Afghanistan and Somalia will be used as case studies. As, they both suffered from complex political fragmentation following a fall of a regime and required impartial assistance. This essay argues, efficient aid should be implemented by a return to classic humanitarianism through the establishment of democracy and good governance and so the likelihood of sustainable peace.

Outline and Literature

Afghanistan and Somalia has been chosen as case studies as they highlight the argument no matter the amount of humanitarian aid the recipient receives, if the institutions are weak and the aid subjective then it will not be incorporated homogeneously to the society.

To begin, intervention is not new and relies on peaceful stability. In order to understand the influence and consequences of politicization on foreign aid during post-war recovery three major concepts of humanitarian aid will be defined: ‘humanitarianism imperative’, impartiality as a component of legitimacy, and the use of conditionality as reward of Good Governance.  First of all, Joanna Macrae, described humanitarianism as ‘designed to mitigate the impact of war’, mainly led by the West (Macrae, pg 7).

Nonetheless, The Code of Conduct for the International Red Cross introduced the concept of ‘humanitarian imperative’, which defines the principle of humanity as the right to receive and to give humanitarian assistance (Schweizer, 2004). This point highlights, even though humanitarian aid is imperfect, it is a right and duty to bring assistance to people in need. Furthermore, in order to restore legitimacy of the state it is essential to establish or reform the national government, which often requires impartial cooperation on the ground with local actors. A solution for cooperation and legitimacy has been addressed through the application of conditionality which Nelson and Eglinton (1992) defined as a set of strategies that the donors apply in order to bring in political and economic reforms in the recipient country. It has further been used as a reward for Good Governance and a pressure mechanism for compliance to peace-process. For instance, bilateral donors and UN agencies applied them in post-war recovery of Somalia and Afghanistan.

However, it will be argued first of all, it is not the most appropriate approach to strengthen good governance. Secondly, it often excludes groups from the reconstruction process, which leads to social exclusion and has a negative impact on sustainable peace (Manning, 2010). While in both countries the humanitarian field staff has been criticized for both economic and political reasons. This paper will focus only on the political aspect of international aid as opposed to economical factors because the implementation of growth-promoting activities requires strong political infrastructure.

Additionally, It is worth highlighting, politicized humanitarianism theorists argued classic humanitarianism is faulty as ‘neutrality is only a myth’. Furthermore, O’Brien (2004) and Anderson (1999) point out, neutrality is impossible to obtain as when aid decides to intervene in a conflict it has a political view ’international assistance (…) becomes a part of that context and thus also of the conflict’’ (pp-1). She gave an example of the Sri Lankan government, which considered Tamil-speaking refugees are similar to the Tamil Tigers; in this situation then providing humanitarian aid would also be helping a rebel group. Nonetheless, it has been stated politicization is a violation of the Geneva Conventions on the Laws and Customs of War, and so should respect the principles of impartiality and transparency.

For the reasons discussed above, this paper will support the argument politicization hinders the success of foreign aid following post-war recovery by examining how the use of conditionality in Afghanistan and Somalia was ineffective in influencing the government and was applied even though harmful to the population. Secondly, following this analysis it will be discussed if the political aspect of foreign aid can be neglected by focusing on a bottom-up mobilization through NGO’s. However, this solution will be argued not efficient as to obtain sustainable peace and development the state’s political structure will need to be constructed around the concept of ‘impartiality’, ‘country ownership’ and ‘good governance’.

Links and Case Studies

Since the cold war Afghanistan has been an aid-dependent country as in order to fight the Red Army, and so the communist invasion, the United States had given over $600 million per annum to the country (Giradet, 1998, pg. 118). Moreover, while the communist part of the country equally needed assistance, the US-led aid only focused on one side, the Afghan mujahideen, by supporting them both financially and technically. Following this period of aid flow, another one happened during the civil war in Afghanistan, from 1992 through the end of the Taliban regime in 2001. It will further be argued; the emphasis of foreign aid was not on meeting the basic needs of Afghanistan’s population but on encouraging trade (Fayez, 2013). Similarly, to Afghanistan, Somalia post-cold war suffered from war and famine and the situation did not improve with foreign aid assistance. In fact, it is still considered as the most modern state collapse in the world. Moreover, the famine drew attention of the United Nations on to the Somali civil war in 1992, through the United Nations Operation in Somalia (UNOSOM) however they withdrew in 1994 due to conflict between Somalia and American forces.

Unfortunately, the lack of neutrality and impartiality in foreign assistance to Somalia was most markedly felt following 9/11 and so the beginning of the ‘war on terror’ led by the United States. In fact, the concerns focused on keeping international peace and securitization rather than humanitarian protection of Somali population.  As Bradbury stated (2010) ‘the emphasis on reviving a central government has simply served to perpetuate a violent conflict over control of the state.’ (pp-2)

The situation in Afghanistan and Somalia are similar and support Easterly (2002) statement of foreign aid, which argues ‘the tragedy of aid’, is mainly due to a lack of accountability and management. Furthermore, due to the difficulty to collaborate with weak state framework and infrastructures often lead NGOs to endorse the role of providing security from a bottom-up mobilization rather than acting through a government in order reaching the population directly (DeMars, 1996: 81).  Nonetheless, they can undermine the state’s responsibility to deal with the crisis as well as aggravate the issue by not providing equal assistance to different groups.

Arguments and counterarguments

When analyzing the effectiveness of international aid, one has to consider specific tools of the process such as conditionality. As stated above, conditionality is the use of ‘bargaining aid’ in orders to reform the recipient’s country policy, and is argued to be a major support for increased living standards and development (Montinola, 2007).  

However, the situation in Afghanistan challenges this perspective as conditionality has been used mainly for short-term recovery for security interests instead of sustainable peace. Furthermore, The Bonn Agreement, was a series of agreement attempting to re-establish the State of Afghanistan following the US invasion and has been argued to favor only one side of the conflict, which was the ally of US during ‘war on terror’ (Goodhand, 2009). For instance, the agreement established the foundation for future Afghan governance in order to help the U.S. eradicate al Qaeda and,’ in the long term, would be stable enough to deny terrorists a haven’ (Fields, 2011). The fact emergency security was the main interest of donors brought them to keep elites at their posts in exchange of promise of stability, which consequently excluded a minority.  The fragmentation of Afghan politics and institutions, limited the application of conditions.

Thus, the Bonn Agreement while attempting to reform the state, in the US interests, did not create de facto sovereignty and domestic legitimacy; which are essential to sustainable peace.

In comparison, Somalia post-war recovery attracted many interests especially in terms of trade and geopolitical location. For instance, the fact the main donors were the US and USSR reflected the on-going cold war rivalry and the desire for both countries to access the red sea. (Mehmet, 1971) However, the large amounts of aid flow did not accelerate growth and development, as there was no existence of efficient administration.  In contrary, when the trade interests are situated in another state the humanitarian aid will follow the trend. Moreover, Britain cut off aid to Somalia, which they argued was based on Human Rights violations. But, Britain selectivity towards aid was actually caused by difficulty to administrate aid and mainly political factors. Therefore, much of the attention at the time was on Nigeria, due to Britain strong trade interests with the country. As, the world economy today depends significantly on oil and Britain is no exception. Actually, the Nigerian oil production and the British foreign assistance to Nigeria begin since the colonial history, which explains their interest to keep the territory stabilized as weak Nigerian oil out-put could have negative impact on the donor as well as the recipient of aid (Vazul, 2010).

National interests from donors thus undermined promoting good governance and strong political infrastructures in post-recovery of developing countries such as Somalia and Afghanistan (Sorensen, 2013). To sum up, conditional aid seems incompatible with the self-interested nature of bilateral donors. As concerning the role of international organizations it also seems like the main interest of IMF, which is to promote global growth and economic stability and so is not in compliance with the actual needs of citizens in recipient country. This last point raises the question, if conditionality has been ineffective due to fostering violence, marginalizing a part of the population and delegitimizing the state then would the use of unconditional aid be more benefiting? Furthermore, we will see the use of unconditional aid through NGO’s can also be problematic and has its flaws with the example of cash-based transfers since 2000 in Somalia which illustrated the difficulty to monitor the process as most payments were involved in fraud and diversion problems. (Hedlund, 2012) Nonetheless, even though the complex discussion around the question of which policy is more suitable between ‘conditional’ or ‘unconditional’ aid is still ongoing, studies have shown the latter has more chances to progress towards the establishment of democracy and ‘country-ownership’ than states that received conditional aid (Kersting, 2014).

It has been argued one way of dealing with the dilemma of sending substantial aid flows to weak institutions is to by-pass the state-centric phenomena of humanitarianism. And so, to deliver aid through Non-government Actors as Acht (2015) would advocate. Their main point is that government-government assistance is more likely to be inefficient as the recipient state suffers from “bad” governance, which they define as ‘‘human rights violations, lacking representativeness of the government and high levels of military expenditures’’(Acht, 2015, pp-2). Thus, this would lead donors to find another way to deliver aid, by targeting directly the population. Furthermore, their empirical analysis is build on the theory bilateral channel are most of the times chosen by donors which goals are non-developmental and interested in securitization through stability process or build upon post-colonialism relationships, as mentioned above. Instead then using NGOs would be more useful to depoliticize aid, especially when emergency on the ground is required. They believe, local ownership of reforms to promote good governance has been lacking satisfactory evidence and so bypassing bilateral channels seems to provide a ‘rational’ choice to the issue (Acht, 2015).

In line with this thought, Djarklov (2012) holds that foreign aid could lead politicians and so elites of developing countries to ‘engage in rent-seeking activities in order to appropriate these resources and try to exclude other groups from the political process’ (pp-169). And so, bilateral foreign aid by creating dependency could undermine democracy. Nonetheless, the solution to solely use NGOs to bypass governments and to underestimate the efficiency of aid when used impartially could lead to undergoing human catastrophes with no long-term solutions. Furthermore, the role of NGO’s in Somalia and Afghanistan illustrates how the roots of the causation of inefficient foreign aid is not the bilateral channel but the non-development goals and the lack of interest from donors in establishing an accountable democracy.

First of all, NGO’s can be considered as enemies and so targeted by local actors due to delegitimization of aid from their perspective as they consider Western aid as political entities (Irby, 2012). Secondly, donors can see NGO’s as an extension of their military interests (Abiew, 2012). Finally, NGO’s do not provide long-term post-war recovery, as the question on the duration of this alternative is questionable.

Spang (2016) questions the view NGO’s provide a clear alternative to bilateral channel by argumenting ‘politicization of aid may cause (…) non-governmental organizations (NGOs) on the ground to become strategic targets in the conflict’ (pp-1). As foreigners and so NGO representatives could be seen as targets, intervening in an area where a specific entity has authority on the conflict zone. For instance, in Somalia Al-Shabaab attacked NGO internal personnel in order to manipulate and control the organizations as they considered them as ‘spies or agents of foreign intervention’ (Irby, 2012, pp-6) but was also manipulated for material gain. Especially Médecin Sans Frontières (MSF), when trying to negotiate access to territory has experienced this challenging obstacle to the process of providing assistance.

In comparison, NGO’s has been used as an extension of the donors military particularly in Afghanistan where humanitarian agencies had to work with states agencies, which undermined their neutrality.  The US Secretary of State, Colin Powell stated in a speech the close relationship the US has with NGO’s during the Enduring Freedom operation in Afghanistan (Abiew, 2012). This situation was later confirmed when the organizations applied the government program. The fact, western government lack of neutrality in bilateral foreign aid also undermines NGO’s at the same time, as local actors perceive them as an extension of modern imperialism.

To sum up, this essay does not argue NGO’s are not a useful tool to provide assistance during post-war recovery but that these alternatives are only short-term solutions, as they do not have the resources or the capacities to bring sustainable peace when corrupted and weak political infrastructures are still governing.

While there has been a consensus among academics that good governance is essential in order to promote development, it is a subjective theory and so means different things depending on individuals.  In this paper, good governance will be referred as the qualities of a state to govern around the principles of democracy, accountability, transparency and legitimacy. Moreover, The 1997 UNDP Report Governance for Sustainable Development sums up effectively the objectives a strong political infrastructure should have in order to be considered as legitimate: ‘it is, among other things, participatory, transparent and accountable, effective and equitable, and it promotes the rule of law.’ Moreover, by providing assistance without considering if the government prior intervention was well governed would improve the view of local actors on foreign aid and so would bring more likely collaboration.  Additionally, along this line aid is mainly undermined because donors do not take into account that even with substantial amount of aid if elites are still exercising power with no development goals then peace will not be sustainable.

 Thus, the aid policy should be applied and delivered with consideration of the reality of what is happening in the country and so the state’s policy. This last point raises the question, what kind of government should be established in order to develop a country post-war?

While some academics argues democracy is not they key to development, as the recipient country needs to find their own solutions.  However, democracy has actually been the most satisfactory solution in order to give the opportunity for equal participation to the political environment. We can consider, development and sustainable peace as the outcome while democracy and good governance are the process to obtain a convincing solution to post-war recovery.

It is essential to highlight the limits of good governance theory, as it is a difficult task to establish a causal relationship between the latter and development. For instance, while it is true democracy does not always lead to sustainable peace and development, the fact it incorporates human rights, transparency and accountability makes it an effective government where there is higher chances that aid will be distributed homogenously to the population (Opara, 2007).

As strong political infrastructures are needed in order to manage grievances and be able to handle conflicts before they will turn violent. For instance, analysis of the situation in Haiti have concluded the only alternative for post-war recovery is to bring the necessary assistance to establish a cohesion between the state and citizens and to work effectively towards a ‘participatory consensus’ (Kumar, 1998).

Conclusion

Considering the above, it can be concluded that in order to establish a long-term post-war recovery the process has to be political, in the sense of establishing good governance.

We have analyzed, foreign aid is mainly undermined by its politicization, due to the donor’s instrumentalization of aid for national and security interests. It is more likely, bilateral channels would be more effective if they provided assistance impartially based on humanitarian need rather than conditionality and so reward of good governance. The current foreign aid assistance in Somalia and Afghanistan civil wars requires the participation of NGO’s and unconditional aid but the roots of the conflict has to address before, as the prerequisite of sustainable peace is good governance and legitimacy of the state.

For further research, the causal relationship between democracy and development should be further analyzed with its applicability to different post-war situations. Furthermore, it would be interesting to consider the variability of democracies in order to establish not a one size-fit all model, but one which could correspond to the state’s cultural and traditional background. While, the Westernized perspective of political infrastructures cannot be applied to every post-war recoveries, engaging in a reform of the current government to promote transparency, accountability and participation could stabilize the conflicts.

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International Law

The rise & rise of populist demagogues in democratic nations

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The term dictators & demagogues are used interchangeably in various contexts but there’s a difference, the former rules over a totalitarian state where government is able to exercise a complete influence over every aspect of citizen’s life whereas the latter is a “wannabe dictator” but due to the system of checks & balance in place they’re are not fully capable to create police states.

In 21st century these flamboyant  demagogues  have adjusted their personality & politics in such a way  that they successfully hide their intent & action in the shadows of democratic system so unlike Hitler’s Fascist regime or North Korea’s Communist dictatorship, it’s difficult to held them accountable because they’ll try to justify their hasty & unreasonable decision  in the name of Constitution & larger public good.

There are some common qualities shared by populist demagogues in  democratic countries that need to be checked in all seasons to protect the country & its people from potential benevolent dictators.

1.Compromised Constitutional Bodies

The rabble-rousers of the modern era have smartly learnt from their predecessors that to stay in power for eternity, it’s important to curb & limit the functions of Independent Institutions like Courts, Central Bank, Auditory Bodies, Investigation Agencies etc. For instance the President of Turkey Recep Erdogan has almost destroyed judicial independence in the country & with the recent news about the call of his political ally to shut down Turkey’s Constitutional Courts is not just alarming but also a cause of concern in a country where a record number of journalists are serving jail sentences under false charges & this decision if taken will not just compromise the press freedom which is already at its nadir in Turkey but it’ll also weaken the capacity of judicial system to guarantee the protection of people’s rights.

2.Unnecessary Focus on the revival of Glorious Past

Demagogues keep reminding us about the ancient prosperity & always pushing the narrative to portray their   country as the leading force , it can be done via 2 ways, either promote the soft power like culture, tradition, civilization & spirituality or use even nasty tricks to pull out the blinded nationalism that includes portraying one’s country as the leading colonizer, telling people about invaders & portray them as protector of native civilization or use race theory to create a class divide in society like Hitler did by invoking the Aryan identity that made some people into believing that they are superior to others.

By inciting this false hope of regaining the past glory & branding slogans like “Make America Great Again”, “For us, Hungary First”, “Abki bar, Modi Sarkar” they deceit & manipulate people into voting for their parties without doing any substantive work on the ground.

3.No respect for Dissent & Human Rights

Dissent or criticism of the leader & its establishment is part of a healthy Democratic society where people are fundamentally free to express their views regarding the government’s policies. While delivering a lecture on the topic,” The Hues That Make India: From Plurality to Pluralism,” the Supreme Court Justice DY Chandrachud noted that ” Descent is the safety valve of a democracy”  but sadly the Modern day Niro of India who ironically belongs to the same State where this lecture was being delivered has left no stone unturned to deliberately cut this valve into pieces.

Critics & Human Rights Activists are put behind bars for raising their voice against the atrocities & crime inflicted on tribals, minorities & other vulnerable sections of society. They are mercilessly beaten, tortured, thrashed & maimed in solitary confinements making no exceptions for maintaining basic human decency that is expected from the “World’s Largest Democracy”.

4. Polarisation for winning elections

The gruesome killing of George Floyd by White male police officer sparked a global outrage & protests against the racial inequality & hate crime that is at its highest level in more than a decade. People demanded accountability & change to stop the Institutionalised & Systemic racism against the people of color in the United States. Ex-president Trump instead of calling out & condemning white supremism  (terrorism) has defended & even embraced this far right radical ideology of hate.

As per the report by V-Dem, there’s an upsurge in political polarisation in India since 2014 when BJP seize the power at Centre & this is evident by frequent incidents of mob-lynching, riots & attacks on minorities especially muslims & Dalits in India. This report further states that Freedom of Religion has seen a considerable decline under the current regime. The reason behind these precipitous decline is the rise of Hindutva Politics which was long gone, forgotten & buried in the coffin but the BJP has called out the jinn of hatred to sway elections after elections at the cost of people who want to live a peaceful life in a non-hostile environment.

5.Violate established rules of Political Conduct

Politics was always a dirty business but populist leaders in most democracies have stooped to a new low & ruined it further. They never shy away from using homophobic & sexiest slurs or passing derogatory remarks against their counterparts in other parties.

Take for instance Brazilian President Bolsonaro, a nutcase who revokes popular prejudices in his ugly campaign rhetoric by passing many offensive & utterly distasteful comments against women, gays, environmentalists & minorities.

The rise of retro-macho politics has left no space for political sobriety & if unchecked, the tumor of hypermasculinity will not be just limited to hate speeches & jibes but translate into formidable action against humanity.

That’s how Romanian dictator Ceaușescu turned his political rhetoric into dystopian reality, under his dictatorship, birth control was banned, abortion was outlawed & fetus was declared the “property of society”, so women were tested for pregnancy & monitored to make sure that they give birth, and punished if they failed.

6. Refusal to accept migrants from Impoverished & war-torn countries

This is the hypocrisy of Western States who for decades have waged war, supported regime change, imposed Economic sanctions & trade barriers, sold weapons to militants in Middle-eastern & African countries finally when refugees & immigrants are arriving at the European borders from these destabilized countries where anarchy has bolstered civil war & complete chaos after covering an extremely dangerous route & taking enormous risks such as relying on people-smugglers or using flimsy boats to cross rough seas, they were detained & locked up under inhumane conditions in shipping containers in Hungary at whims & fancies of  Hungarian government headed by ultra-right wing Viktor Orbán but after the European Union Court ruling last year, Hungary has finally shut-down these illegal migrant transit zones situated on its border with Serbia, at the same time tightening rules which will effectively bar future migration prospects in EU member states.

7. Climate Change Deniers

Climate Change is the biggest threat to human existence in the 21st Century. Earth’s Climate is now changing faster than at any point in modern civilization, primarily as the result of human activities. It needs to be understood that Climate Change is not just a science issue but a policy issue as well. In most of the countries where demagogues are in-charge the policy seems to be more destructive, anti-science & discredit the scientific studies that show that effects of Climate Change are horrific & destructive for the Planet.

The environmental policies of Bolsonaro in Brazil have put the Amazon Rainforest on the verge of extinction. Regarded as the “lungs of the Earth”, the Amazon acts as a giant carbon sink & is also responsible for driving rain patterns across South America & Africa. Leaked documents revealed that Bolsonaro has cynical plans for Amazon Rainforest that includes hydroelectric plants, construction of bridges on Amazon river & a proposed highway through the dense forest to integrate Amazon basin with the rest of the National territory.

Under pressure from the Biden Government, Bolsonaro is now promising to make Brazil Carbon neutral by 2050 but his Environmental minister has asserted that his country is ready to cut 40 percent of deforestation in Amazon Forest only if the International Community will provide $1Billion as assistance. Though It is highly unlikely that the Brazilian government will take any steps against the influential farming lobby that played an important role in the victory of Bolsonaro in 2018 & to whom he has promised to dismantle existing environmental protections to make way for agricultural land expansion and intensified production.

The rise of populist leaders in  democratic countries is not sudden, before seizing power they boastfully promise to set their country free from corruption, crime & socio-economic inequality but after winning election they shift their goal post to achieve sinister objectives. Electoral political system in a democracy needs an urgent overhaul to include an educated perspective rather than simply representing the

will of majority which is no less than tyranny & this could only happen if people(voters) are aware about fascism among themselves & what  does it take for a normal country to become a Nazi State that had turned itself on the path of ravage & destruction. The importance of self realisation & tumultuous past is aptly described in a quote by Ernest Hemingway in his classic book, For whom the Bell tolls “But are there not many fascists in your country?’ There are many who do not know they are fascists but will find it out when the time comes“.

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OTT broadcast and its censorship: Whether a violation of freedom of speech and expression

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The whole world, owing to coronavirus pandemic, is enveloped in the darkness. It has wreaked havoc on almost all the aspect of human lives. The educational institutions, theaters and cinemas all have been shuttered. Public gatherings, to maintain the social distancing, have been firmly discouraged. Further, the pandemic has significantly modified the media and entertainment consumption patterns. Social lives ventured into digital environment as a result of people being cramped to their homes. People have switched to several sources of entertainment from the comfort of their own homes and over-the-top (“OTT”) platforms have proven to be a major source of entertainment.

OTT platforms have grown exponentially and taken over the industry. OTT platforms expedites streaming of video content over the web. Several OTT platforms such as Netflix, Amazon, Disney Hotstar, Disney+, Apple TV+, Hulu, etc., have primarily ousted the traditional television service. The notification issued by the Central Government of India aimed at getting online media platforms and content on OTT platforms within the jurisdiction of the Ministry of Information and Broadcasting has been making the rounds in recent times. The cabinet Secretariat, on November 9, 2020, released a notification amending the Government of India (Allocation of Business) Rules, 1961. It has incorporated two new entries to the second schedule of the Rules namely Films and Audio-visual programmes provided by online service provider as well as News and Current Affairs. This action is attributed to the fact that there is large amount of an unrestricted content available on the web as well as lack of an adequate regulatory regime in place to protect its users.

Universal self-Regulation code

The Internet and Mobile Association of India (IAMAI) had come up with a Universal self-Regulation code (code) to administer the content available on OTT platforms. The code was primarily adopted by the fifteen OTT platforms namely zee 5, Viacom 18, Disney Hotstar, Amazon Prime Video, Netflix, MX Player, Jio Cinema, Eros Now, Alt Balaji, Arre, HoiChoi, Hungama, Shemaroo, Discovery Plus and Flickstree. SonyLIV and Lionsgate too have recently signed the code. It was manifestly stated in the code that The Information Technology Act, 2000 (IT Act) is the main governing framework when it comes to online content. The values enshrined in Article 19 of India’s Constitution, namely the Right to Freedom of Speech and Expression, direct the internet and material on the internet. A policy for the digital content sector has to be drafted in line with Article 19 of the Indian Constitution i.e. the Right to Freedom of Speech and Expression, and any constraints on the aforesaid right should be fall within the purview of constitutional restrictions set forth in Article 19(2) of the India’s Constitution.

Further, the code had delineated a mechanism pertaining to (i) Age Classification (the code had particularized the certain categories for standardized age classification namely All ages, 7+, 13+, 16+ and 18+) (ii) Appropriate content specification ( a content descriptor appropriate to each piece of content that demonstrates and tells the viewer about the essence of the content while also advising on viewer discretion) and (iii) Access control Tools( to regulate access to content, signatories to the Code may implement technological tools and measures for access control i.e. PIN/Password.) The code had also established the perspicuous grievance redressal and escalation process to lodge complaint regarding non-adherence to specified guidelines. The MIB, however, has repudiated the proposed code since it did not explicitly categorize the prohibited content. Further, there is no independent third-party oversight and a transparent code of ethics. The MIB instructed IAMAI to seek guidance from the Broadcasting Content Complaints Council (BCCC) and the News Broadcasting Standards Authority (NBSA) self-regulatory frameworks.

A public interest litigation was consolidated in October, 2018, before the hon’ble Delhi High court by Justice For Rights Foundation to draught certain guidelines for modulating the content available on OTT platforms. The MIB while filing the counter affidavit stated that digital platforms are not required to procure a license from them to exhibit their content and the same is not controlled by them. The Ministry of Electronics and Information Technology (MEITY) has also mentioned that they do not oversee internet content and there exists no mechanism for monitoring or licensing an agency or establishment that posts content on the internet. Nevertheless, it was claimed that the provisions concerning IT are applicable, and concerned legislative authority having jurisdiction under the aforesaid Act is authorized to take action using the power granted to them under section 69 of the Act which involves directives for interception, surveillance, or data encryption. Further, under Section 67 of the Act there are penalties pertaining to posting or disseminating obscene information in any digital form. Accordingly, the court while dismissing the petition opined that it cannot grant a mandamus for the creation of regulations when the IT Act already contains stringent restrictions and currently the foregoing petition is pending in the hon’ble supreme court.

Positions of the law in regards to film screenings

A film must be certified by the Central Board of Film Certification before it can be displayed or distributed in cinemas or on satellite, and the content is constrained by existing laws. The CBFC was established by the Cinematograph Act of 1952. When it was established, it was designated as the Board of Film Censors. It was amended in 1959 to give it the authority to certify a picture for mass consumption. The Cinematograph Act of 1952, the Cable Television Networks (Regulation) Act of 1995, and the Cable Television Networks Rules of 1994 are among the laws that govern the industry. However, there is no such particular legislation for regulating material on OTT platforms. The government by virtue of Article 19(2) of Indian constitution can impose restrictions on freedom of speech and expressions in the interest of sovereignty and integrity of India, security of state, friendly relations with foreign countries, public order, decency or morality and so on. Consequently, broadcasted content has often been a restricted matter. In K.A. Abbas v. Union of India and Another[1], the constitutionality of censorship was initially challenged. The hon’ble supreme court has upheld the constitutionality of censorship under Article 19(2) of the India’s constitution and stated that films must be viewed differently from any kind of art and expressions because a motion picture can elicit more intense emotional response than any other product of Art. However, such censorship should not be exercised to imposed an undue restriction on freedom of speech and expression.

The constitutionality of censorship was also disputed in S. Rangarajan v. P. Jagjivan Ram [2]wherein the hon’ble supreme court has held that the board’s criterion for appraising the films must be that of an ordinary man with common sense and wisdom rather than that of a hypersensitive mind. The Moral values ought not to be compromised in the realm of any social change. The concept of “Dharam” should not be disrupted by the immoral norms or standards. However, it does not suggest that censors must embrace a conservative perspective. They should be resilient to social change and go with the topical environment. The film is the most legitimate and significant medium for addressing topics of public concern. The producer has the right to broadcast his own message, which others may or may not concur with. The state, regardless of how hostile to its policies, cannot suppress open debate and expression. The democracy is basically a government by the people based on open debate. The democratic form of administration necessitates citizens’ active and informed engagement in the societal issue.

Furthermore in, Phantom Films Pvt. Ltd. And Anr. V. The Central Board of Certification[3], it was said that we are governed in a democratic manner. We can’t expect everyone’s head and intellect to be the same in a democracy. Freedom to think and act in a different way is at the heart of democracy. The beauty of democracy is the diversity of viewpoints, ideas, and manifestations. It’s unrealistic to expect everyone to exhibit themselves in the same way. In the film business, new blood is being infused. This new blood is revved up and eager to get their feet wet in the industry. The film business and the general public have embraced such new blood. Their effort has been recognized and praised by the government. These works are predicated on a certain way of thinking that is unique to them. They have their own opinions and ideas on how the film business should operate, as well as how the medium altogether must be managed. Profanity, obscenity, and depravity do not shock human emotions. Such situations and discussions must be seen in their entirety. The narrative must be perused in its totality and thought upon. It is not appropriate to choose a few phrases, lines, conversations, or situations and venture into the board’s resolution. Certainly, the state, and notably the Central Board of Film Certification, cannot attempt to sculpt and dominate public opinion under the guise of purported public interest or audience preference. That would be terrible, as it would hit at the heart of democracy and civil liberty, which are held in such high regard by everybody. The goals of film certification, consequently, cannot be achieved by disregarding the Constitutionally guaranteed right or by fully undermining and disappointing it. A movie has to be watched on its own and judged accordingly. The plot, subject, background, and location in which it is created, the message it aims to express, and the entertainment, among other things, would all have to be assessed using section 5B’s standards.

Should OTT platforms be governed by a code of self-regulation?

Self-regulation is presently the only option available to such platforms in order to maintain the ability to broadcast material without undue censorship. Because unreasonable restriction would impede the creative flexibility of OTT platforms. It will assist platforms in conducting themselves in an ethical and fair manner while also safeguarding the interests of their users. It would protect content producers’ artistic freedom by promoting creativity and upholding an individual’s right to free speech and expression. The general public desires to view the content in its original and untainted state. They strive to understand artwork in its most primitive sense. The fundamental role of government agency is to maintain the fair field, not to inhibit innovation and ingenuity by placing limitations in a tech industry.

Self-regulators’ competence allows them to adjust their regulations more quickly than government agencies in reaction to technological advancement. More significantly, independent of any technological change, the self-regulator is better equipped to decide when a rule should be modified to improve compliance. Self-regulation has the ability to make compliance more appealing. It develops regulations based on an expert’s level of understanding, customized to the specific sector. These rules are viewed by regulated entities as more “reasonable” from the inception owing to their involvement[4].

Conclusion

The MIB by virtue of the amendment has now can regulate and draught policies regarding digital media and online streaming on OTT platforms. However, such governmental intervention can considerably jeopardize the constitutional right to freedom of speech and expression. The suppression of freedom of speech and expression is what censorships is all about. The freedom of speech and expression suggests that right to manifest one’s thought via words of mouth, writing, picture and any other means. The freedom of speech is one of the most well-known and fiercely protected civil rights against government encroachment. In modern democratic societies, it is generally considered as an essential notion. Every citizen of a democratic nation has the freedom to express his or her opinions on various issues. Thousands of viewpoints are disseminated around the country via various channels. A film director has the freedom to manifest himself and gives effect to his thoughts, even though others may not concur with him. An exhibition of films as well as documentaries cannot be prohibited for purely speculative reasons since prohibiting motion pictures is tantamount to suppressing the right to freedom of expression and speech. Restrictions upon Individual’s freedom of speech and expression must only be permitted if they are required to avert severe harm from being perpetrated. It is critical to have a healthy and extensive amount of free expression in order to assert a thriving and well- functioning democracy. Democracy, otherwise, is obsolete and akin to a totalitarian dictatorship[5]. It should be up to the public to determine what they want to see and what they don’t want to watch. Thus, the cornerstone to safeguarding artistic freedom is a sustainable self-governance paradigm.


[1] K.A. Abbas v. Union of India and Another (1970) 2 S.C.C. 780

[2] S. Rangarajan v. P. Jagjivan Ram (1989) 2 S.C.C. 574

[3] Phantom Films Pvt. Ltd. And Anr. V. The Central Board of Certification 2016 S.C.C. online Bom 3862: (2016) 4 AIR Bom R 593: AIR 2017 (NOC 62) 29

[4] Id. at 13

[5] Subhradipta Sarkar, RIGHT TO FREE SPEECH IN A CENSORED DEMOCRACY, UNIVERSITY OF DENVER SPORTS

 AND ENTERTAINMENT LAW JOURNAL 62, 84 ,89 (2009)

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International Law

What Determines Taliban Government’s Legitimacy?

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With the fall of Kabul, and the evasion of President Ashraf Ghani, the Taliban has taken over the reins of Afghanistan. States like Pakistan and China have already expressed their willingness to “work with the Taliban”  thereby legitimizing the Taliban government, whereas India has refused to recognize this “reign of terror”. The jurisprudential question of legitimacy arises here because the transfer of power in Afghanistan was through a coup d’etat which constitutes an extra-constitutional means of formation of government. Governments desire legitimacy because it gives them the right to rule and an acceptance on the international and domestic levels.

The most accepted theory in this regard is Hans Kelsen’s Pure Theory of Law. Kelsen, a positivist, claimed that law was contaminated by sociological impurities and morality, and focussed his theory on law alone. He based the legitimacy of the new order of government on its efficacy, and a rule was said to be efficacious when individuals regulated by it “behave, by and large, in conformity” with it. When the new order was efficacious, the coup was said to be successful, and the new government was held to be a legitimate one. Kelsen’s theory was widely accepted to uphold governments after coups such as in The State v. Dosso (Pakistan; 1958), Madzimbamuto v. Lardner-Burke (Southern Rhodesia; 1968), and Uganda v. Commissioner of Prisons (Uganda; 1966), among others. Since Kelsen tries to purify laws from the socio-political aspects, he contends that that it is irrelevant why people comply with the law and it could even be out of pure fear. Thus, a rogue government such as the Taliban which is efficacious as it receives compliance out of coercion and not out of consent, would be a legitimate one from a Kelsenian perspective.

The primary criticism that arises to Kelsen’s separability thesis is that he fails to distinguish between validity of law and its legitimacy. Critics have argued that while validity of law concerns with its authoritativeness, legitimacy depends on the virtue of justness and is contingent upon socio-political and moral factors. The issue lies with attaching legitimacy to the performance of the government. Instead, legitimacy should involve the questions of whether the government has the ability to demand the obligations out of voluntary conviction, provide for public goods such as the rule of law, protection of fundamental rights, etc., and function in a manner such that the society is generally benefitted. A study on legitimacy in seventy-two countries concludes that more the citizens are treated as rightful holders of political power, more legitimacy the government derives. This means that the virtue of legitimacy must flow from the citizens and the society and not from a coercive power that the top-down approach provides.

In the light of this, when the Taliban government is examined, it is realised that with its extremist ideology and terror activities in the past, it can hardly fulfil this criteria.While the ‘good Taliban’ has claimed that it will protect the freedom of press and not discriminate against women while allowing for their participation in the society within framework of Islamic law, these assurances will pacify only those who are unfamiliar with its history. Under the rule of Taliban in the years between 1996 and 2001, human rights were suspended, and political killings, rape, torture, amputation, and public executions were common place. A Taliban 2.0 which has emerged victorious against one of the major superpowers of the world, and has external support is unlikely to reform. Ideologically, they still remain the same movement committed to a puritan interpretation of Islam and this is evidenced by the fact that the barbaric Sharia law is in place once again. These baseless claims should be perceived as a political strategy to appease states into granting them de jure legitimacy because despite the jurisprudence of legitimacy developed, there is nothing in the international law that bars states like China, Russia, Pakistan or others from recognizing the rogue state of Islamic Emirate of Afghanistan. Therefore, the future of the Taliban and Afghanistan rests in the interplay of international actors.

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