Connect with us

International Law

Abused, trafficked, unwanted: A view on the U.S. migration policy development

Published

on

The US Department of State’s Trafficking In Persons (TIP) Report was started in 2001 as a diplomatic means for the United States to communicate with other foreign governments on goals towards eliminating human trafficking. TIP is meant to facilitate dialogue with nations for anti-trafficking initiatives, as well as find resources on prevention, prosecution, and protection programs of human trafficking, highlighting the United States as a global leader in human rights and law enforcement. The TIP Report ranks countries based on a Tiers model (“2017 Trafficking in Persons Report”). The policy outputs and policy outcomes of TIP have been continuously debated within government, advocacy groups, and law enforcement (Kraft 6).

There are various critiques on the given Tiers system the Department of State’s Trafficking in Persons Report (TIP) has used in the previous years. In the “Accountability Over Politics: Scrutinizing the Trafficking in Persons Report” hearing before the Subcommittee on Africa Global Health, Global Human Rights, and International Organizations of the Committee of Foreign Affairs through the House of Representatives during the 114th Congress, David Abramowitz, the Managing Director of Policy and Government Relations of Humanity United Action, has expressed concern on the Tiers model. Abramowitz believes Malaysia is exemplary of a nation praised for the betterment of the human trafficking when undoubtedly there is no accountability for the mass graves incident of 2015, where 130 dead bodies were found (United States 32). Ineffective measures of the tiers in the TIP Report reduce the diplomatic effectiveness of the mechanism, as embodied in both Thailand and Malaysia. Increased effort towards reform of Malaysia and Thailand’s legal framework is needed. This could be achieved through the State Department, more specifically the embassies in Bangkok and Kuala Lampur and the Department’s East Asia and Pacific Bureau. Congressional action could assist in the reform as well (United States 33).

In the Committee on Foreign Affairs’ “Nomination of Rex Tillerson To Be Secretary of State,” one of the commentaries to the Secretary of State included the notion that the current administration allowed political consideration to manipulate expert recommendations of the State Department’s human rights and trafficking professionals, which contributed to the ‘politically-driven’ upgrade of countries like that of Cuba and Malaysia from the Tier 3 category to the Tier 2 Watch List (United States). According to the Honorable Susan Coppedge, Ambassador-at-Large for the Office to Monitor Trafficking in Persons of the US Department of State, as stated during the Committee on Foreign Relation’s hearing for Review of the 2017 Trafficking in Persons Report, law enforcement services should be provided to human trafficking victims. Government involvement tends to instill fear in victims. In defense of Malaysia status change from Tier 2 watch to Tier 2, as prompted by Mr. Cardin, Coppedge states Malaysia has had quadrupled trafficking investigations increases from 158 to 581, as well as improvements in law enforcement measures on trafficking. Additionally, Senator Robert Menendez had been successful in uncovering the waiver report for Malaysia as well as other countries that are not allowed for disclosure by the Department of State. The Honorable John J. Sullivan, Deputy Secretary of State for the US Department of State, noted Ukraine’s improvement to Tier 2 status as well as China’s ineffectiveness to end slavery and trafficking downgraded it to Tier 3 (United States). Previous concerns and criticism regarding TIP from the “Demanding Accountability: Evaluating the 2015 Trafficking in Persons Report”, House of Representatives hearing include concern on grade inflation and favoritism for certain countries through the Department of State tier ranking of the TIP.

To further elaborate upon the TIP Tier model, Tier 1 would include nations that meet the minimum standards to combat human trafficking, Tier 2 would include those making noticeable efforts towards the minimum standards, and Tier 3 would include those not making minimum standards and in danger of receiving sanctions, respectively (United States 2). Cuba had been noted as Tier 2 status for 2015, even with the legal permission for prostitution of 16 year old girls, being a top destination in the Western Hemisphere for child sex tourism, and not criminalizing labor trafficking (United States 3). Uzbekistan’s government incites forced labor in the cotton industry on a daily basis, making it rather undeserving of Tier 2 status (United States 4). India as a Tier 2 is undeserving of its ranking as well, since it had been preventing trafficking victims and families whom had obtained T-visas to leave India (United States 27-28).

As professor Anis H. Bajrektarevic rightfully observed in his revealing work on the Justice-Home Affairs diplomacy, a very corruption (public sector of) is an elementary part of any THB business. “It is a (hidden and) seemingly victimless tradeoff between influence and gain” – as professor brilliantly defines corruption, that ‘runs the engine’.

Hence, as founded by the United States Government Accountability Office (GAO), from the representation of the Trafficking Victims in Persons Act of 2000, federal agencies have inspected allegations of trafficking crimes, provided training and executed state and local initiatives to support investigations and prosecutions, and established organizational structures, agency-level goals, plans, or strategies. For instance, agencies have trained both new and current staff on investigating and prosecuting trafficking in persons crimes through their agency training academies and centers, provided Web-based training, and developed and disseminated guidance on case pursuance. Agencies have also made training initiatives at the state and local law enforcement levels, nongovernmental organizations, and the general public through a toll-free complaint line, newsletters, national conferences, and model legislation. Some agencies have established special units for continuing their antitrafficking duties. Federal agencies coordinate across agencies’ investigations and prosecutions of trafficking crimes on a case-by-case basis, premised on individual needs per case, and established relationships among law enforcement officials across agencies.

The Department of Justice and Department of Health Services officials recognize the need to increase United States efforts to combat trafficking through more practical and cooperative strategies to identify trafficking victims. Previous GAO efforts on interagency relationship prove a strategic framework with shared goals, mutually reinforcing approaches, and compatible policies and actions to function across agency boundaries helps improve and sustain relationships among federal agencies dealing with national and cross agency jurisdiction issues (“Human Trafficking: A Strategic Framework Could Help Enhance the Interagency Collaboration Needed to Effectively Combat Trafficking Crimes.”). Based on 2016 data collection from the GAO, it is questionable as to whether provisions are being fully effective.

“For 91 provisions, all responsible federal entities reported taking action to implement this provision. For 11 provisions, all responsible federal entities reported that they had not taken action to implement the provision. For 2 provisions, at least one of the responsible federal entities reported that they had not taken action to implement the provision or they did not provide a response. For 1 provision, none of the responsible federal entities provided a response (“Human Trafficking: Implementation of Related Statutory Provisions, Law Enforcement Efforts, and Grant Funding”).”

The above provisions covered topics address human trafficking and related affairs, inclusive of victim services, management and information sharing, and procedural training. Agency officials gave various explanations for why there were no arrangements to implement provisions for which they were chosen as the lead or co-lead. To be rather frank, in three cases, officials cited funding was not appropriated for the activity. Federal, state, and local law enforcement officials and prosecutors interviewed by the GAO reported properly investigating and prosecuting human trafficking cases is challenging for many reasons, including lack of victim collaboration, limited available services for victims, and the problematic nature of identifying human trafficking victims. According to these representatives, victim service programs, such as those that offer mental health and substance abuse services, have helped improve victim cooperation.

The availability of services is limited. Federal, state, and local agencies have taken or are taking actions to address these challenges, such as increasing the obtain ability of victim services through grants and executing both training and public awareness initiatives. GAO identified 42 grant programs with awards made in 2014 and 2015 that may be used to combat human trafficking or to assist victims of human trafficking, 15 of which are planned for these purposes only. Although there are similarities among human trafficking grant programs, federal agencies have recognized processes to help avert unnecessary duplication. For instance, in response to endorsements in a previous GAO report, the Department of Justice requires grant candidates to expose any federal grants they are currently operating under as well as federal grants for which they have applied. Additionally, agencies participating in the grant making committee of the Senior Policy Operating Group (SPOG), an entity through which federal agencies unify their efforts to combat human trafficking, share grant solicitations as well as information on proposed grant awards. The SPOG effort allows other agencies to remark on proposed grant awards and determine whether they plan to award funding to the same organization (“Human Trafficking: Implementation of Related Statutory Provisions, Law Enforcement Efforts, and Grant Funding”).

On the issue of child soldiers, The House Committee on Foreign Affairs 2017 hearing, “Winning the Fight Against Human Trafficking: The Frederick Douglas Reauthorization Act,” affirms that child soldiers are largely affected by the human trafficking industry. The United States has been involved in helping curtail the use of child soldiers. The United States had ratified the United Nations treaty of 2002 which banned the use of children in conflicts. By mandate of ratification, all armed services branched implemented rules to not have underage soldiers in combat. United States’ action on this matter was exemplary for other militaries to follow suite. In 2008, Congress had adopted the Child Soldiers Prevention Act as part of the Trafficking Victims Protection Reauthorization Act of 2008. Nevertheless, within the United States there is still a prevalence of sex trafficking of girls. The Federal Bureau of Investigation (FBI) had reported 60 percent nationwide range of trafficked girls were either from foster care or group homes. More transparency will be required for the allocation of funds towards improving efforts on the issue of child soldiers. The Frederick Douglass Trafficking Victims Prevention and Protection Reauthorization Act authorizes $130 million over four years to prevent human trafficking, protect victims, and better prosecution in the United States and overseas. The act limits the time a nation could be on the Tier 2 watchlist (United States).

In the “Child Soldier Prevention Act of 2017, H.R. 1191”, sponsored by Representative Christopher Smith in the 115th Congress, it was mentioned that Congress’ Victims of Trafficking and Violence Protections Act of 2000 would probably be the pivotal achievement on the issue of child soldiers. With the Trafficking Victims Protection Act (TVPA) of 2000, Congress made the Child Soldiers Prevention Act (CSPA) of 2008 part of the TVPA. Regulations included the TIP Report to have a listing of foreign governments which recruit and utilize child soldiers in their militias or government funded armed groups. The 2017 TIP Report identifies the Democratic Republic of the Congo, Mali, Nigeria, Somalia, South Sudan, Sudan, Syria, and Yemen as nations on the CSPA list (“Child Soldier Prevention Act of 2017” 7). TVPA restrictions on grants to nations began with TIP Report 2003 (“Child Soldier Prevention Act of 2017” 14).

Nations whom have used child soldiers as listed in the most recent TIP report are prohibited from receiving various forms of security assistance, including defense articles, global military education and training, peacekeeping operations programs, military financing, and the issuing of licenses for direct commercial sales of military equipment for child soldier recruitment purposes (“Child Soldier Prevention Act of 2017” 18-19). Relevant legislation oversight on the TIP Report includes closed hearings on the topic of human trafficking, commonly held by the Committee on Foreign Relations, in anticipation of the TIP’s yearly release as well as commentaries post-publication in public hearings.

The House Foreign Affairs Committee, specifically its Subcommittee on Africa, Global Health, Global Human Rights, and International Organizations, has also hosted hearings on the TIP Report (“Child Soldier Prevention Act of 2017” 31). A bill from the 115th Congress to further modify requirements associated with the TIP Report, include H.R. 2200, the Frederick Douglass Trafficking Victims Prevention and Protection Reauthorization Act of 2017, which passed the House on July 12, 2017, and contains several changes to the TIP Report’s country ranking process. Other bills introduced in the 115th Congress that, if passed, would modify requirements associated with the TIP Report include H.R. 436, the Human Trafficking Prioritization Act, S. 377, the Trafficking in Persons Report Integrity Act, H.R. 1191, the Child Soldier Prevention Act of 2017 and H.R. 2219 and S. 952, the End Banking for Human Traffickers Act of 2017 (“Child Soldier Prevention Act of 2017” 31).

In a statement at the 114th Congress, at a House of Representatives hearing entitled “Get It Right This Time: A Victims-Centered Trafficking in Persons Report,” the following is established:

“ While democracy does not guarantee the absence of slavery, and some struggling democracies and even democratic regimes have effectively fought trafficking, autocracy and weak or ‘emerging’ democracies are less equipped to tackle this horrific human rights challenge. Respecting the human rights, fundamental freedoms, and dignity in full of women, people in prostitution, and migrants, holding traffickers fully to account, and expunging corruption as the catalyst of human trafficking, are matters of governing justly. In particular, an independent judiciary, the rule of law, and a dynamic civil society are the markings of governments that are governing justly, and central to the success of modern day abolition efforts (United States 2).”

Witness protection under the Ministry of Justice had been found to be favorable, however there were still unaccounted for occurrences in Thailand. In 2015, Thailand did not allow traffickers’ ships on land, allowing criminals to escape via ocean routes. There were also unaccounted for Rohingya passengers refused entry. A ‘push-back’ policy does not assist with combating human trafficking (United States 21). As the Myanmar elections were not free nor fair, political circumstances only escalate the higher risks of the Rohingya for human trafficking (United States 28-29).

Referencing the 114th Congress House of Representatives Committee on Foreign Affairs hearing “Accountability Over Politics: Scrutinizing the Trafficking In Persons Report”, a statement released by Secretary of State John Kerry focused on the three P’s of the TIP report: prosecuting traffickers, protecting and empowering victims, and preventing future trafficking crimes. The honorable Susan Coppedge, Ambassador-at-Large to the Department of State, voiced concern for the protection of domestic workers as well as ‘corrupt or complicit officials’ whom benefit from trafficking (United States 5). TIP staff members work in conjunction with individuals at embassies, posts abroad, and the US Department of State regional offices (United States 7). Coppedge asserts housing for girls rescued from trafficking should be provided by the United States (United States 20). There is only a small amount of prosecutions and convictions on foreign labor trafficking in the United States, which needs to be reformed. More to protect unaccompanied undocumented children, as well as further address roots of the problem, need to be made feasible (United States 30).

Bills relevant to TIP include the Frederick Douglass Trafficking Victims Prevention and Protection Reauthorization Act of 2017, H.R. 2200 (“Frederick Douglass Trafficking Victims Prevention and Protection Reauthorization Act of 2017”), The Trafficking in Persons Report Integrity Act, S. 377 (“Trafficking in Persons Report Integrity Act”), The Child Soldier Prevention Act of 2017, H.R. 1191 (“Child Soldier Prevention Act of 2017”), the End Banking for Human Traffickers Act of 2017, H.R. 2219 (“End Banking for Human Traffickers Act of 2017”), and the End Banking for Human Traffickers Act of 2017, S. 952 (“End Banking for Human Traffickers Act of 2017”).

The Frederick Douglass Trafficking Victims Prevention and Protection Reauthorization Act of 2017, H.R. 2200, sponsored by Christopher Smith April 2017, had twenty-nine cosponsors from House of Representatives, which ensured approval through the House of Representatives. The twenty-nine cosponsors were Representatives Karen Bass, Edward R. Royce, Sheila Jackson Lee, Susan W. Brooks, Lois Frankel, Ann Wagner, Tony Cardenas, Ted Poe, Ryan A. Costello, David N. Cicilline, Brad Sherman, Daniel M. Donovan, Jr., Patrick Meehan, Lynn Jenkins, Susan A. Davis, Salud O. Carbajal, Gwen Moore, Dwight Evans, Denny Heck, James P. McGovern, Tulsi Gabbard, Alcee L. Hastings, Raul M. Grijalva, Kristi L. Noem, Barbara Comstock, Luke Messer, David Young, Erik Paulsen, and Carolyn B. Maloney. This bill states that instead of only the President, the Secretary of Health and Human Services has the authority to award grants to local education agencies, in partnership with nonprofit agencies for awareness services. H.R. 2200 further ensures priority funding for lodging and accommodation purposes that lack policies on child sexual exploitation, and calls for making certain the United States does not fund human trafficking. H.R. 2200 calls upon credible evidence on nations’ human trafficking reform progress. Additionally, airport personnel should identify and report human trafficking victims (“Frederick Douglass Trafficking Victims Prevention and Protection Reauthorization Act of 2017”).

The Trafficking in Persons Report Integrity Act, S.377, was introduced in 2017 by Senator Robert Menendez, and cosponsored by five Senators, including Marco Rubio, Tim Kaine, Cory Gardner, Rob Portman, and Christopher Coons. The bill aims to amend the Trafficking Victims Protection Act of 2000 to clarify standards upon which countries are held accountable for the TIP Report tier ranking model, as well as other purposes related to concrete measures taken towards ending human trafficking. The S.377 amendment includes identifying ‘concrete actions’ and ‘credible evidence’ towards improving the epidemic of human trafficking. Additionally, reports on the amounts of loans towards Tier 2 and Tier 3 countries are to be submitted to the Chairman and Ranking Member of the Committee of Foreign Relations sections in the Senate as well as the House of Representatives, to be distributed by the Secretary of the Treasury (“Trafficking in Persons Report Integrity Act”).

The Child Soldier Prevention Act of 2017, H.R. 1191, was sponsored by Representative Christopher Smith, and cosponsored by Representatives Frederica Wilson, Randy Hultgren, James P. McGovern, and Randy K. Weber, Sr. The purpose of this bill would be to ensure operative enactment of the Child Soldier Prevention Act of 2008 and hold régimes responsible for having children part of armed conflict, whether that may be as soldiers, servants, or sex slaves. H.R. 1191 also prohibits the selling of armament to nations that look favorably upon the utilization of child soldiers (“Child Soldier Prevention Act of 2017”).

The End Banking for Human Traffickers Act of 2017, H.R. 2219, was sponsored by Representative Edward Royce, and cosponsored by Representatives William Keating, Carolyn Maloney, Mia Love, Patrick Meehan, Brian Fitzpatrick, and Kyrsten Sinema. H.R. 2219 aims for including the financial industry to assist with combating human trafficking. The purpose would be to resolve and ensure financial accountability of funding towards human trafficking through means such as the Interagency Task Force to Monitor and Combat Human Trafficking (“End Banking for Human Traffickers Act of 2017”). H.R. 2219 is not to be confused with S.952, which is of the same bill title. The End Banking for Human Traffickers Act of 2017, S. 952, was sponsored by Senator Elizabeth Warren, and cosponsored by Senators James Lankford and Marco Rubio. S. 952 is an amendment to the Victims of Trafficking and Violence Protection Act of 2000 to include the Secretary of the Treasury within the President’s Interagency Task Force to Monitor and Combat Trafficking. This task force is responsible to submitting recommendations to Congress for revising anti-money laundering programs to target money washing found in the human trafficking industry. The Federal Financial Institutions Examinations Council examines processes to improve anti-money laundering programs to combat human trafficking actions and referrals for potential human trafficking cases to the appropriate law enforcement agencies. S. 952 also establishes that the Department of Justice must report both efforts to eliminate money laundering on to human trafficking, and the quantity of formal examinations, custodies, allegations, and criminal offenses in money washing cases related to human trafficking (“End Banking for Human Traffickers Act of 2017”).

Overall, the TIP Report of 2017 of the Department of State has shown improvement from previous report versions, but is still in need of amendments to address misdemeanors found within the Tier ranking system of nations as well as preferential agreements on the issue of allocation of funding. In defense of efforts made by the Department of State, on September 14, 2017, the Department awarded $25 million to the Global Fund to End Modern Slavery, through the Office to Combat and Monitor Trafficking of Persons. The Global Fund to End Modern Slavery is a non-profit organization focused on developing public-private partnerships to decrease modern slavery (Tillerson). However, a true dedication to the cause of human trafficking, although wanted by many advocacy member groups as well as Congressional members, is a decision today mainly influenced by the executive branch’s priorities. As Secretary of State Rex Tillerson stated in his nomination hearing, “Nomination of Rex Tillerson To Be Secretary of State”, his commitment to end human trafficking is only to the extent that is compliant with the policies and law preferences of President-elect Donald Trump. This response was given various times throughout the report, inclusive of a specific interlude question on the seafood industry, raising numbers of illegal, unreported and unregulated fishing, the need for transparency measures in the fishing industry, and human trafficking (United States). More information on United States’ legislation on the TIP Report could be found if there were public accessibility to Closed Hearings’ materials as well as other confidential material Congressional staffers have access to, such as that of the “CLOSED: Preparing for the Trafficking in Persons Report” of June 2017 (United States).

Ingrid Noriega pursued a bachelor's degree in International Affairs from the School of International Service, American University. Ingrid is mainly interested in environmental justice, fine arts, life, health, & behavioral sciences topics.

Continue Reading
Comments

International Law

The rise & rise of populist demagogues in democratic nations

Published

on

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“.

Continue Reading

International Law

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

Published

on

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)

Continue Reading

International Law

What Determines Taliban Government’s Legitimacy?

Published

on

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.

Continue Reading

Publications

Latest

Reports13 seconds ago

Study of Diversity Shows Scale of Opportunity in Media and Entertainment Industries

The World Economic Forum’s Power of Media Initiative has compiled a first-of-its-kind compilation of the state of diversity and representation...

South Asia3 hours ago

Afghanistan and the Quest for Democracy Promotion: Symptoms of Post-Cold War Malaise

The U.S. withdrawal from Afghanistan should be the first step in a reduced American overseas force posture. Democracy promotion in...

Middle East5 hours ago

UAE-Israel relations risk being built on questionable assumptions

A year of diplomatic relations between the United Arab Emirates and Israel has proven to be mutually beneficial. The question...

Americas7 hours ago

Afghanistan and Beginning of the Decline of American Power

Has America’s disgraceful withdrawal from Afghanistan spoiled its global standing? The pictures of retreating American soldiers at Kabul International Airport...

Defense9 hours ago

North Korea’s Nuclear Shadow: A Worrisome Expansion

Abstract: The nuclear news from North Korea remains clear and threatening.  Ignoring both political warnings and legal prohibitions, Kim Jong...

Russia13 hours ago

Russia’s Blueprint For Success in the Middle East

As a tradition in the modern world the Middle East remains unstable. Continuous political turbulence in the region extinguishes all...

pakistan-terrorism pakistan-terrorism
Terrorism20 hours ago

India’s view of “terrorism: at the UNGA?

At the recent United Nations’ general Assembly session, India was furious at mention of Kashmir by Pakistan’s prime minister Imran...

Trending