Authors: Aaditya Vikram Sharma and Prakash Sharma*
Various news outlets have reported that Pakistan is moving patients from Punjab to Pakistan- administered Kashmir. This article analyses the soundness of this decision vis- à -vis international law.
Recently, it has come to light that the Government of the Islamic Republic of Pakistan is moving coronavirus positive patients from the province of Punjab to Pakistan-administered Kashmir. This territory of Kashmir controlled by Pakistan is administered through two regions comprising of Gilgit-Baltistan and the so-called Azad Kashmir.
The patients of COVID-19 are being moved to “Special Quarantine Centers” that are coming up in Mirpur and other cities in the region. The region comprises of territories that are the two most marginalized areas under Pakistani occupation. In fact, Kashmir, as a whole, is considered a disputed territory.
In this article, we try to decipher the applicable international law concerning the State-mandated movement of COVID-19 infected people in Pakistan to Pakistan-administered Kashmir. We draw out the relevant international treaties and gauge the response of the government accordingly to find out the legitimacy of these acts.
Status of Kashmir
Kashmir is considered a disputed territory. The erstwhile Kingdom of Kashmir is controlled by three countries- China, India and Pakistan. India and Pakistan claim the whole of Kashmir. The history is complex and beyond the purview of this article.
It is pertinent to note that Pakistan’s stance has been, at least constitutionally, to respect the wishes of the Kashmiri people. To that end, the semi-autonomous State of Azad Kashmir was created. But, its autonomy is doubtful—the AJ&K Interim Constitution, 1974 under Article 7(3)states that “[N]o person or political party in Azad Jammu and Kashmir shall be permitted to propagate against, or take part in activities prejudicial or detrimental to, the ideology of the State’s accession to Pakistan.” The Government in Islamabad exercises ultimate control on its administered regions.
On the other hand, India administered its administered region of Jammu and Kashmir by initially creating the State of Jammu and Kashmir. On 5 August2019, the Indian Federal Government removed the special status and created the two Union Territories of Jammu and Kashmir and Ladakh. The move was opposed by Pakistan which even threatened to go to the ICJ.
The Corona Virus outbreak in Pakistan
Coronaviruses are a large family of viruses which may cause illness in animals or humans. In humans, several coronaviruses are known to cause respiratory infections ranging from the common cold to more severe diseases such as Middle East Respiratory Syndrome (MERS) and Severe Acute Respiratory Syndrome (SARS). The most recently discovered coronavirus causes coronavirus disease COVID-19.
This new virus and disease were unknown before the outbreak began in Wuhan, China, in December 2019. It is especially dangerous because its infectability is perilously high—people can easily catch COVID-19 from others who have the virus. The disease, which can be fatal, spreads from person to person through small droplets from the nose or mouth when a person with COVID-19 coughs or exhales. These droplets land on objects and surfaces around the person. Other people then catch COVID-19 by touching these objects or surfaces, then touching their eyes, nose or mouth. People can also catch COVID-19 if they breathe in droplets from a person with COVID-19 who coughs out or exhales droplets. This is why it is essential to stay more than 1 meter (3 feet) away from a person who is sick. Pakistan detected its first case on 26 February 2020. At the time of writing, as per the WHO database, there have been 1526 total cases, out of which 25 have recovered and 12 have died. However, instead of restricting movement, the Government of Pakistan has decided to move patients from the worst affected province to a least affected and internationally disputed and underdeveloped territory. The next part analyses the soundness of this decision under International Law.
As Pakistan-administered-Kashmir is a disputed territory, it is pertinent to see what international laws apply. De-facto control of the region is with Pakistan. So, our focus shall be on the treaties that apply to it. Under the international legal framework surrounding epidemics and pandemics, the primary documents that are available are the International Health Regulations (IHR). These were adopted by the World Health Assembly of the World Health Organisation in 2005 and entered into force in 2007. These regulations are applicable to196 countries, including Pakistan. One of the main principles of the IHR is that their implementation would be with “With full respect for the dignity, human rights and fundamental freedom of persons” (emphasis supplied).So, Pakistan is required to respect the human rights of the people in its administered territories.
The primary human right which applies here is the Right to Health. According to the Office of the High Commissioner for Human Rights, the Right to Health is considered an inclusive right and includes the right to prevention, treatment and control of diseases. This is enunciated by Human Rights instruments such as the Universal Declaration of Human Rights, 1948 (UDHR) and the International Covenant on Economic, Social and Cultural Rights, 1966 (ICESCR). Pakistan is a party to both the Covenants. The UDHR, under Article 25, states that “Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family..”Further, explicit provisions have been made under Article 12(1) of the ICESCR regarding the health of peoples. It reads as follows-
“The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.”
In fact, Article 12(2)(c) goes further and states that-
“2. The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for:
(c) The prevention, treatment and control of epidemic, endemic, occupational and other diseases;” (emphasis supplied)
By moving infected patients into an internationally disputed and so-called autonomous territory, Pakistan is violating the rights guaranteed to these peoples. According to the WHO, the best methods to control the outbreak include isolation and social distancing. Most of the countries globally have gone into lockdown and restricted the movement of their populations. However, the Government of Pakistan, citing economic reasons, has been reluctant to declare a lockdown and in its wisdom, has decided to migrate highly infectious patients to a region with a relatively unscathed population.
Understandably, the locals are not in support of this move by the Government of Pakistan. So, the policy of the government goes against its stated goal to respect the wishes of the Kashmiri people. This migration of patients is being done even when the region has registered one of the lowest cases in Pakistan. At the time of writing, there are only 2 cases in the so-called Azad Kashmir province. Punjab has the highest number of cases, i.e, 558. The health-care facilities are also inadequate in Pakistan- administered Kashmir. Logic would, therefore, dictate making quarantine centres and creating better medical infrastructure in the better equipped Punjab province. Instead, quarantine centresare being established in the relatively underdeveloped Pakistan-administered-Kashmir. This move is quite baffling and contrary to international law.
Pakistan’s actions directly contradict its international stance and international law. In fact, its hypocrisy has taken a new tone when the Government of India offered aid during the SAARC conference and Pakistan raised the ‘Kashmir issue’. After raising the issue, it has started moving COVID-19 affected peoples from its Punjab province to its administered region of Kashmir. It should refrain from such acts and, as a matter of fact, treat them with better healthcare facilities that already exist in Punjab.
Both Authors are writing in their personal capacity. All views are personal.
*Prakash Sharma is an Assistant Professor at the Vivekananda Institute of Professional Studies, New Delhi, India.
OTT broadcast and its censorship: Whether a violation of freedom of speech and expression
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, 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 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, 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.
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. 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.
 K.A. Abbas v. Union of India and Another (1970) 2 S.C.C. 780
 S. Rangarajan v. P. Jagjivan Ram (1989) 2 S.C.C. 574
 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
 Id. at 13
 Subhradipta Sarkar, RIGHT TO FREE SPEECH IN A CENSORED DEMOCRACY, UNIVERSITY OF DENVER SPORTS
AND ENTERTAINMENT LAW JOURNAL 62, 84 ,89 (2009)
What Determines Taliban Government’s Legitimacy?
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.
Artificial Intelligence and International Refugee Law
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.
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.
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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