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The Global Nuclear Justice: From Westphalian Exceptionalism to Universal Constitutionalism

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The global nuclear justice quest has been culminated by adopting a new regime that intends to dilute the Westphalian Exceptionalism and tries to establish the Universal Constitutionalism based on UN Charter’s goal of violence free world enunciated in its preamble. But its plausibility and pragmatism would be tested in the years ahead.

The United Nations has voted to approve the text of a proposed draft for an international treaty on the Banning and Prohibiting Nuclear Weapons on July 07, 2017.  The Draft Treaty is called Nuclear Ban Treaty (NBT) that shall formally be opened for signature in September 2017, and shall be binding as an international legal instrument provided it receives 50th country’s instrument of ratification that is duly deposited with the UN Secretary-General within 90 days of its opening as per the provisions of the impugned treaty. Unbelievably, the ensuing ratification of the treaty has consumed 73 years since the attacks on Hiroshima and Nagasaki in Japan to arrive at an international understanding for the nuclear arms free world. Under the auspices of the UN, the international community has made the use or threat of nuclear weapons prohibited unconditionally under Article 1 (e) of the framework of the multilateral treaty. Remarkably, state parties to the treaty have to bear the core and absolute obligation enunciated under Article 1 (a) of the Draft Treaty that is “prohibition of any possession, deployment, testing, transfer, storage and production” of the nuclear weapons and any connection whatsoever therewith or thereto or otherwise. The NBT is an unprecedented step beyond the rubrics of prohibition that must be interpreted by dismantling the geopolitical Doctrine of Nuclearism (DoN), and its proliferation and retention must not be content as an absolute necessity by the few international geopolitical entities.

The positive resurgence of NBT has recalibrated an international impetuosity to untangle the murky clouds of geostrategic justifications of nuclear status quo which have rubbished the DoN and anti-nuclear perceptions of the many national governments. However, past assertions regarding the nuclear disarmament lack convictions of the nuclear states of US, UK, China, France, and Russia along with India, Israel, North Korea and Pakistan led by the United States. The nuclear states have been making massive investments in developing, modernizing, and stockpiling their nuclear arsenals. The Pakistan and North-Korea keep on irresponsibly and aggressively asserting their nuclear capabilities for indulging in war-mongering, creating hostilities and hiding misdeeds in their respective regions. Therefore, it must be admitted that a disastrous drawback has been looming large that might derail the newly established NBT architecture. But international community consisting of more than 122 countries has lent credibility and weight to this process and has alluded to an obligation to eliminate all nuclear weapons for all practical reasons. But, unfortunately, all the nuclear states have refused to register their reservations and opposition to the NBT process and to participate in the Conference for Negotiation. Moreover, most of the allies of the nuclear states who are the part of NATO stayed away from the NBT Process. Had these nine nuclear powers abondoned their nuclear racism and participated in the negotiations, the NBT process would have got a greater amount of legitimacy, credibility, and stability in accomplishing global nuclear justice.

International Fragmented Responses

Ironically, many countries in the past such as China, India, and Sweden who vehemently advocated and spearheaded against the DoN and nuclear proliferation were not only opposed the nuclear prohibition but also conspicuous by their absence at the NBT negotiations. Therefore, such an opposition that reminds us of Shakespeare’s Tragedy “Macbeth” wherein Lady Macbeth flagrantly motivates Macbeth by saying “Look like an innocent flower but be the serpent under it” (It means to look like an innocent flower, but be like the snake that hides underneath the flower) and this is what these five permanent members of the UN Security with Germany and Japan have done to the UN sponsored venture to delegitimize the existing Nuclearism in the world. Further, the trinity of veto-wielded powers the US, UK, and France got furious with the whole NBT exercise and issued a joint statement lambasting the new treaty and asserted that they would not sign, ratify or ever become party to it and there will be no change in the legal obligations on these countries with respect to the nuclear weapons contrary to the existing nuclear world order. The present five permanent nukes-armed countries contended that global security balance is based on the current nuclear power structure bolstered by the Non-proliferation Treaty, 1998 (NPT) and any divagation therefrom might cause hara-kiri of sorts. Thus, NPT regime has claimed to have successfully maintained the nuclear deterrence and peace for over 70 years in Europe and North Asia.

It is, indeed, a hollow claim of the maintenance of peace and security for the last, so the low-intensity warfare has dominated many years as this period almost in all the regions of the world including US and Russian Federation who have the biggest nuclear arsenals of the time. However, the Cod-War nuclear rivalry of the US and ex-USSR (now Russia) swelled to other regions and countries of the world that pandered to substantial travails and tribulations for the Global South populations. Therefore, the claim of peace or no-war situation cannot be justified by nuclear deterrence narrative as the present order has been accumulated at the expense of the Afro-Asian societies. Hence, the NBT regime is also juxtaposed with a Westphalian model of state-centrism under which a Global Legality Framework (GLF) has been followed in inking the NBT under the auspices of UN architecture. The NBT adherence by the state parties and national governments has been meticulously formulated so that their obligations and commitments could be executed after duly depositing the instrument of ratifications. But in the case of suspected or alleged non-compliance of the NBT, it does not offer any guidance whatsoever despite the fact Article 4 of the NBT details as to how the nuclear states must divest themselves of all connections with nuclear arsenals limit claims; therefore, it needs further elaboration and clarification.

Past Denuclearization Drives

The history of the fragmented response of the international community (read nuke-states) embedded in the use of atomic weapons in the WW-II that had incepted the methodology of the warfare in the future. At San Francisco in the US on June 26, 1945, United Nations Charter was signed that contained adequate provisions for peace, tranquility, and stability throughout the world. But on July 16, 1945, the US detonated the world’s first nuclear explosive at the Trinity test site adjacent to Alamogordo-New Mexico in circumvention of the UN spirit and ethos. Therefore, UN Disarmament Commission was established on January 11, 1952, having dissolved the UN Energy Commission. But, the UK also tested its first atomic bomb called Hurricane at Monte Bello Islands in Australia on October 03, 1952. However, US President Eisenhower proposed a new vision termed as “Atoms for Peace” (AoP) while addressing the UN General Assembly on December 08, 1953. The AoP Programme was directed to use nuclear energy for peaceful purposes with safeguards against the military use of nuclear materials and allowed all the nations willing to subscribe to AoP with these conditions. He also mooted an idea to create an international atomic energy organization that ultimately initiated an era of nuclear power and its dissemination. However, the USSR proposed the idea of setting-up of Nuclear Weapons Free Zones (NWFZs) in the UN General Assembly in 1956 and Poland introduced the Rapacki Plan as the first NWFZ. Thereafter, on October 16, 1956, the Statute of the International Atomic Energy Agency (IAEA) was opened for signature. The IAEA has been established to enable the peaceful use of nuclear energy and to ensure that IAEA’s assistance should not be used for military objectives.

Many NGOs such as Pugwash Movement also supported the idea of denuclearized world. Thus, the US., UK, and USSR declared an unofficial moratorium on the nuclear tests from November 1058 to September 1961. In the following years, many efforts have been made to have a nuclear weapons free world by the US and the former USSR in the 1960s. Under the UNGA Resolution 1653 (XVI) and UN Charter, threat or use of nuclear weapons was declared unconditionally illegal in 1961 and violation thereof was regarded as a crime against humanity. In 1962, the Cuban Missile Crisis that was juxtaposed with nuclear weapons and it terrified the international community to the hilt. The ICJ (International Court of Justice) with the majority rendered an advisory opinion on the reference made by the UN General Assembly regarding the “Legality of Threat or Use of Nuclear Weapons” Case on July 08, 1996 had limited the scope of the legality of use to the rare situations of the survival of a state. Even before that, the leaders of the two super powers of the Cold war era, Ronald Reagan (US) and Mikhail Gorbachev (USSR), now Russian Federation, met at Reykjavik-Iceland in 1986 to negotiate a historical nuclear disarmament treaty. In the later stages, particularly in 2009 at Prague, President Barack Obama has also shared the sentiments of the President Jimmy Carter who had expressed his determination in 1977 to wipe out completely the menace of nuclear weapons. Fortunately, new NBT regime seems to be in proximity to his vision of the nuclear weapons-free world.

Therefore, these opportunities and initiatives enhanced the chances for a denuclearized world but, unfortunately, no substantial progress could be achieved for a peaceful future and humanity generally got disenchanted and disillusioned with the cynicism of the nuclear weapons states. Though, they do pose some anti-nuclear weapons advocacy sporadically just to placate the sentiments of the non-nuclear countries. But, ultimately, denuclearization drive got tottered under the exclusive global security narratives that have been politically crafted, diplomatically calibrated, and monetarily pursued by the nukes holder states.   

The NBT Strengths & Weaknesses

The NBT has been created as an ambitious plan for achieving universality ultimately in the years ahead, but it seems a remote possibility as it contemplates minimum substantive obligations for implementation irrespective of the fact whether the non-nuclear states agree to the deployment of nuclear weaponry or have any connection therewith. However, there is a strong case made out for prohibitions in the NBT are universally binding under customary international law (CIL) deviant to the opposition, reservation, exception or rejection by the states or countries resorting to the persistent objector rule. But, unfortunately, NBT still protects and promotes the idea of Statism considered to be the bedrock of the present world order which emanates from Article 18 giving state parties the right to withdraw from the NBT mandate by formally attaching a statement regarding the “extraordinary circumstances” that have endangered the paramount  interests of its country and, therefore, made a case for withdrawal. Further, the NBT regime is silent about the geopolitics of denuclearization, demilitarization, and conventional disarmament. Even it also ignores the fact of nuclear capabilities of threshold nuclear states under the current technological advancement that gives a nuclear weapon option to them.

Any reneging from the NBT shall take three months from the date of notice and statement deposition but, regrettably, the NBT lacks procedure on defining and contesting the grounds of “extraordinary circumstances” if made with mala fide intentions beyond the pale of law and morality. Even non-nuclear states would not accord any credence to the global human well-being while exercising their sovereign rights. Let’s hope that comity of nations would not use the rights available under Article 18 of the NBT shortly. Nevertheless, such kind of provision does make global human security subservient to the national security interest narrative that further undermines the CIL, International Law and the Principles of Natural Law regarding weapons of mass destruction (WMD), etc. Consequently, state parties to the NBT can rescind their NBT obligations in the ways which are not there in international human rights instrument such as 1948 UN Convention on the Prevention and Punishment of the Crime of Genocide, 1973 UN Convention on the Suppression and Punishment of the Crime of Apartheid, and 1984 UN Convention on Torture (CAT) etc. However, the preponderance of the nuclear states in world power structure does not conform to the international law, the international rule of law, peace, democracy and human rights for all.

Where from here?

Despite all the weaknesses and challenges, the anti-nuclear protagonists and advocates of nuclear disarmament have accomplished as of now something considered unthinkable in the form of the NBT. But the skeptics are hell bent to quash the NBT as wannabe narrative that would prove a giant fiasco. Thus, the dichotomy between nukes-states and non-nukes states has become invincibly visible devoid of any common minimum understanding for the shared future of the humanity. Primarily, the DoN has been impulsive that has fashioned the geostrategic calibrations of the nukes-states leading to the considerable self-restraint in crisis situations. The policy of nuclear unilateralism has delegitimized the implementation of NPT regime since its being discriminatory in nuclear nonproliferation standards, e.g. Israel’s nuclear ambitions are being ignored, whereas nuclear non-proliferations standards were enforced in Iraq in 2003 beyond the NPT stipulations and violation of the UN Charter. At the same time, Iran and North Korea are under the constant threats of military actions sans any defense unless and until such actions are authorized unanimously by the five permanent members of the UN Security Council (UNSC) resolution along with four other states in the UNSC under the Article 27 (3), the UN Charter, but such a possibility remains a distant dream.

Therefore, permanent members of the UNSC along with the countries opposed to NBT might resort to coercive unilateralism to delegitimize and discredit the NBT regime despite its being in conformity with GLF. They had already displayed such tactics and tantrums in the past in the case of war against Iraq that was branded as counter-proliferation narrative. Moreover, the nuclear-states do not respect their obligations and do not have the political will to negotiate the complete nuclear disarmament project. The NPT regime has been in force since 1970, but nuclear weapons states have always violated their material obligations that have also established the fact that the nuclear powers have opted for nuclear deterrence as a permanent security narrative and the nonproliferation as its mechanism to monitor any other nuclear ambition in the world.

Suggestions

The NBT regime is an iconoclastic development that conveys to the present ideologues of the DoN that the public perception of the 122 countries has rejected the contemporary nuclear dogma of the world based on NPT model. Thus, NPT model cannot eliminate the Nuclearism, and it obfuscates the idea of denuclearization. Therefore, the NBT regime offers a two-fold strategy for nuclear disarmament; firstly, unequivocally prohibiting the use or threat of nuclear weapons and secondly, the relevance of the nuclear energy technology option must be addressed in the process of nuclear disarmament. It is my well-considered view that all opposition from all quarters including the US, UK, and France, the new NBT regime must be regarded an unprecedented opportunity to wipe out all the nuclear weapons in the world. The NBT process has been a peregrination from the Westphalian Exceptionalism to Universal Constitutionalism construed under the idea of common good for collective humankind that gives hope for the denuclearized world ahead.

Once again, the NBT regime has presented an occasion to the global community to substantiate its perennial will to eliminate nuclear weapons in commensurate with the UN Charter mandate. The NBT is a historical accomplishment of the collective wisdom of the 122 countries and their civil society institutions and individuals. The US, UK, and France and their assertions under the joint statement are fallible, flawed and they must not treat it a political project, but it is, indeed, a massive project for the humanity by the humanity for its existential survival on this beautiful planet. However, the biggest challenge before the international community is to take full measures for making the NBT regime functional with sufficient ratifications and achieve its objectives of the global nuclear justice to the hilt.

Ph. D., LL.M, Faculty of Legal Studies, South Asian University (SAARC)-New Delhi, Nafees Ahmad is an Indian national who holds a Doctorate (Ph.D.) in International Refugee Law and Human Rights. Author teaches and writes on International Forced Migrations, Climate Change Refugees & Human Displacement Refugee, Policy, Asylum, Durable Solutions and Extradition Issus. He conducted research on Internally Displaced Persons (IDPs) from Jammu & Kashmir and North-East Region in India and has worked with several research scholars from US, UK and India and consulted with several research institutions and NGO’s in the area of human displacement and forced migration. He has introduced a new Program called Comparative Constitutional Law of SAARC Nations for LLM along with International Human Rights, International Humanitarian Law and International Refugee Law & Forced Migration Studies. He has been serving since 2010 as Senior Visiting Faculty to World Learning (WL)-India under the India-Health and Human Rights Program organized by the World Learning, 1 Kipling Road, Brattleboro VT-05302, USA for Fall & Spring Semesters Batches of US Students by its School for International Training (SIT Study Abroad) in New Delhi-INDIA nafeestarana[at]gmail.com,drnafeesahmad[at]sau.ac.in

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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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What Determines Taliban Government’s Legitimacy?

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Photo Credit: Wikimedia Commons

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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Artificial Intelligence and International Refugee Law

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Refugee rights are cosmological, binding, blended, co-dependent, and interconnected and constitute the basic structure of international custom [BASIC] encapsulating the national jurisdictions across the world. BASIC thrives on dignity; therefore, the word “refugee rights” can be delineated and defined in a single word–as per my understanding–called “dignity,” as it is the issue of human dignity that we address in refugee rights. Therefore, refugee rights mean dignity, but the same has been further convoluted with the ascendance of Artificial Intelligence (AI) has presented new challenges to human equality in all walks of life. AI has reduced humanity in algorithmic calculations contrary to global human rights norms. AI does not recognize the significance of humanitarianism in its current form. It has envisioned a world of dynamic numerals that do not protect humanity and mitigate human sufferings in the Refugee Status Determination (RSD) procedures.  Algorithmic humanitarianism is an idea suffering from the mechanical, technocratic, and scientific acclimatization of human existence devoid of ethics, justice, and morality. Machine-controlled calculations exclusively adjudicate the RSD procedures and immigration decisions. But the application of AI has also raised a host of issues relating to the data privacy, confidentiality, and use and misuse of data information collected by the governments, organizations, RSD officials, and immigration authorities from the refugees and asylum-seekers migrants, and stateless (RAMS). Such data may be exploited, employed, and maneuvered for geostrategic, geopolitical, geo-engineering, medico-research, socio-economic, and demographical purposes by the global, regional, and domestic institutions and governments. In human rights protection, refugee rights, and immigration decisions, AI has been adversely impacting RSD procedures and immigration judgments across the world.

Algorithmic Humanitarianism

Therefore, algorithmic humanitarianism has presented a compendium of questions than answers. Hence, AI lacks anthropogenic sensitivity, critical thinking, human subjectivity, and objectivity thresholds needed to appreciate the degrees of persecution and discrimination in RSD procedures and immigration decisions in violation of global human rights norms of refugee protection. Thus, there is a need to rummage and ruminate upon these issues by examining AI’s application and assessing the impact thereof on the global human rights norms that sustain humanity and make human existence humane beyond the insight of algorithmic intelligence and discernment. There has to be a human-centric primacy of AI application while positioning refugee equalizers in the ADM Technologies Framework (ATF) for RSD Procedures viz-a-viz international human rights law (IHRL) challenges with the human rights-based approach (HRBA). Further, the equality framework of AI must constitute and advocate that algorithmic humanitarianism must be reprogrammed with new AI technologies impregnated with global human rights norms for sustainable artificial intelligence.

Peremptory acceptance of AI technologies and greater dependence upon AI by both national governments and the private sector and actors have led to growing apprehension regarding the potential adverse repercussions for the core principles of democratic societies like human dignity in diversity, ethical governance, democratic transparency, multicultural accountability, and pluralistic inclusivism. Therefore, there is an indispensable requirement for a framework of global governance to address the full range of societal challenges concomitant with AI inter-alia intimidations to the right to privacy, the right to access to information, the right to equal protection of the law, and the right to non-discrimination during immigration and repositioning of refugees consistent with the existing global human rights framework. Because the emergence of AI is a reality and it has penetrated in the universal institutional life of nation-states, also providing an opportunity for the human mind to utilize it in a manner that conforms and complements global human rights norms while taking into account the Limits of AI Reception, Laxities of AI Recantation, & Luxuries of AI Repercussion.  In the future, artificial intelligence technologies might well substitute humans in the workplace altogether. But at least for the foreseeable future, businesses will derive far more value using AI to augment and enhance existing capabilities than automate away human jobs. All nation-states should establish an independent, empowered body to address all aspects of management and review for all types of ADM technologies employed by the national governments worldwide and put all existing and future AI models in the public domain for their scrutiny.

AI and Refugee Rights Equalizers

The free expression of ideas and opinions, freedom of association, the right to privacy and the right to access to information are digital equalizers for refugee rights in an age of AI propounded and protected within the ambit of IHRL framework such as Universal Declaration of Human Rights (UDHR), UN Covenant on Civil and Political Rights-1966 (ICCPR), UN Covenant on Economic, Social and Cultural Rights-1966 (ICESCR) along with Sub-international Human Rights instruments like AU’s African Charter on Human and Peoples’ Rights. But, unfortunately, these rights have become the pawns of online state surveillance and transgressions facilitated by the gigantic deployment of AI technologies. States have been using AI software against refugee rights defenders, peace activists, human rights journalists, civil society advocates, etc. The speed of technological development empowers individuals globally to utilize novel models of information and communication technologies to elevate the capability of governance structures, commercial establishments and civil society individuals to embark on data surveillance, collection, and an interception. Such steps in a digital age allow the circumvention and abuse of human rights enunciated in Article 12 of the UDHR and Article 17 of the ICCPR that have put a question mark on the future of the right to privacy of individuals, the rights of women, the rights of children, and the rights RAMS.

Moreover, the digital rights and the right to privacy prompted by AI technologies application become more sensitive in the case of the RAMS, particularly if the impact of AI might lead to the detention and deportation of RAMS to their homelands which might put their life at persecution. AI technologies have posed legal, ethical, and social implications for the international community of nation-states to deliberate upon positioning the potential refugee equalizers in the ADM technologies framework for RSD procedures. However, the impact of AI on RAMS and protection regime underscores the risks that AI, algorithms, machine learning, and related technologies may pose to the rights of RAMS, also acknowledging the openings AI technologies offer to augment the accessibility of the rights envisioned in the UDHR and UNCSR. But few questions remain to be answered: What are the positive and negative impacts, risks, and threats of AI technologies for RAMS and their protection rights? What is the legal framework that guarantees RAMS to have access to the Internet and Digital Rights? How does the current legal framework protect the rights of RAMS to access the Internet and their online privacy rights? How can AI enhance the welfare of the RAMS? How could AI make sure RAMS’ access to education? How could AI ethics and policies protect and accommodate RAMS’ rights and mitigate the risks they might face? And what are the predicaments that AI could be abused to circumvent internationally granted rights of RAMS?

The geopolitical ramifications make the challenges associated with Internet sensitive that paved the way for enhanced censorship on social media and other OTT platforms. By banning the websites or resorting to state censorship, the biggest casualty is free speech and privacy. Under such state censorship, online human rights defenders face prosecution and endure persecution at the same time. Unfortunately, IRL instruments do not envisage any reference to the digital or information rights of refugees. However, AI has massive potential to uphold and promote the rights of RAMS; conversely, it can also suppress them. For example, facial recognition technology can be impregnated with AI software to pinpoint and target the RAMS who challenge the repressive asylum regime in host countries and oppose the regime in their countries of origin. AI prognostic propensities might be subject RAMS to arbitrary detention and deportation.

IHRL Obligations

All nation-states must create a special task force (STF) to convene and assemble all ADM scientists & developers, national policy-makers, crucial stakeholders, prominent civil society institutions, educational institutions, and non-governmental organizations to adequately appreciate the actual and potential impacts of ADM technologies on global human right norms. Such steps would lay down the foundations for ethical, moral, and value-oriented dimensions to AI and its application while preserving human rights in RSD and immigration decisions. International refugee law and immigration is a realistic prism that provides a methodology to assess state practices, border control security apparatus and checking measures, global migration governance regime, worldwide criminalization of migration, and surging xenophobia. The RSD and immigration law operate at the intersection of municipal and international law and ensnares global human rights norms and international law. In Genesis, “And God said, let us make man in our image, after our likeness: and let them have dominion over the fish of the sea, and over the fowl of the air, and over the cattle, and overall the earth, and over every creeping thing that creepeth upon the earth. So God created man in his image, in the image of God created he him; male and female created he them.”  Therefore, in the current world order, nation-states have a constitutional scheme to respect international human rights obligations, internet governance with algorithmic transparency in the wake of invoking ADM technologies and their utilization.

ADM Companies and Beyond

Thus, most ADM companies contend with working independently without coordination and collaboration of their initiatives and productivities. It is incumbent upon the UN to lead and bring these companies to one platform while calibrating and coordinating their endeavours in confronting the challenges posed by AI governance. These ADM technology companies must work collectively to ensure that human rights are firmly entrenched in developing, designing, and deploying AI systems worldwide. As ADM technologies evolve and develop, innovative AI governance models have also become crucial for centrally positioning human rights obligations in the AI governance’s operational trajectory. However, it is aptly impressive that all stakeholders and parties privy to the development, employment, and management of ADM technologies must have holistic and critical scrutiny of the actual impacts of AI application and its implications and repercussions on humanity.

Besides regulation, public procurement and standardization should also include human rights principles and rules, thus shaping AI’s future. Public bodies and authorities should require that suppliers respect human rights while designing, developing, and deploying AI technologies that they intend to supply. Finally, AI protocols should be based on technical standards incorporating human rights rules and principles. These standards should be set forth by a collective body with global reach and representing the different sectors of society, including industry, states, civil society, international organizations, and academia.

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