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The Rules-Based Order, Maritime Freedom and Recent Naval Operations in the Barents Sea

[source: U.S. Navy from Royal Navy] [official description: “200505-N-NO901-3026 ARCTIC OCEAN (May 5, 2020) The Royal Navy Type-23 Duke-class frigate HMS Kent (F78), front, and the Arleigh Burke-class guided-missile destroyer USS Donald Cook (DDG 75) conduct joint operations to ensure maritime security in the Arctic Ocean, May 5, 2020.”]

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Last week, the U.S. Navy announced publicly that a group of warships had entered the Arctic waters of the Barents Sea to “conduct maritime security operations.”  The ships participating in these combined operations included three U.S. Navy Arleigh Burke-class destroyers and one Royal Navy Duke-class frigate, all of which were accompanied by a U.S. Naval Ship to provide them with logistical support during their operations.  This group of surface ships also received air supportduring these operations from a U.S. Navy P-8A maritime patrol and reconnaissance aircraft and a U.S. Air Force RC-135 reconnaissance aircraft.  Given that these operationswere conducted within a body of water located among the coastlines and island groups of twoEuropean coastal states(i.e., Norway and Russia), the U.S. ships were under the operational command of Commander, U.S. Naval Forces Europe/Africa, headquartered in Naples, Italy.  Of significance, the U.S. Navy’s press release highlighted that these were the first “surface” operations conducted by the U.S. Navy in the Barents Sea since the mid-1980s.  Additionally, the press release declared that these combined naval operations had two intended purposes: (1) to “demonstrate seamless integration among allies” and (2) to “assert freedom of navigation.”About this second purpose, the commander of the destroyer squadron stated, “It was great to be operating in the Barents Sea again.  This is what it means to be a global Navy, sailing wherever international law allows.”

When it comes to “sailing wherever international law allows,” the concept of maritime freedom has received significant international attention over the past few years –but primarily for waters elsewhere in the world that are distant from European shores.  In general, there is a minority of coastal states around the world that attempt to restrict the transits and activities of other states’ vessels and aircraft, particularly their military vessels and aircraft, in excess of what international law permits them to restrict.  While not the only culpable state, China has received much scrutiny for its efforts to control how ships and aircraft may operate on and over the waters of East Asia, particularly within its infamous 9-dash line in the South China Sea.  If other states acquiesce to illegal restrictions imposed by this minority of coastal states, then the maritime freedom guaranteed to all states globally could be jeopardized.

To counter efforts by this minority of coastal states to restrict maritime freedom, the U.S. government has executed a presidentially-directed, multi-agency “Freedom of Navigation Program” over the past four decades.  In conjunction with formal diplomatic protests by the U.S. Department of State, ships and aircraft of the U.S. military conduct routine transits and peaceful activities, known technically as “freedom of navigation operations” (FONOPs) or “operational assertions.”Of note, the U.S. Freedom of Navigation Program also includes what is described as “other FON-related activities” — that is, operations that have “some other primary purpose, but have a secondary effect of challenging excessive maritime claims.”The purpose of these FONOPs and other FON-related activities is to ensure that unlawful, unilateral restrictions imposed by coastal states are not accepted internationally.  For the Arctic region specifically, the U.S. Department of Defense Arctic Strategy (June 2019) described the importance maritime freedom in the Arctic region as follows:“Maintaining freedoms of navigation and overflight are critical to ensuring that the Arctic remains a free and open domain and that U.S. forces retain the global mobility guaranteed under international law. DoD will continue to fly, sail, and operate wherever international law allows.”  At a fundamental level, that same U.S. strategy recognized that preserving maritime freedom in the Arctic, as it is other regions of the world, is about “strengthening the rules-based order.”

On previous occasions, this author has sought to provide insights into the importance of maritime freedom and the deliberate role of the U.S. military in helping to preserve this freedom.  These commentaries have included examinations of the legality and legitimacy of such military operations, explanations about why are they are conducted in the South China Sea, and efforts to quash legal disinformation and dispel factual myths propagated by critics who are opposed to these operations.  Critics of the U.S. Freedom of Navigation Program, including voices in China, often allege inaccurately that these operations are intended to be provocative and that they seek to single out nations that the United States does not like.  At the same time, some European legal observers might be unfamiliar with the FON program and question whether FONOPs are warranted.  For these reasons, the recent U.S./U.K. naval operations in the Barents Sea provide an opportunity to reflect upon the importance of preserving maritime freedom – not only in that body of water, but in oceans world-wide. 

Restrictions on Maritime Freedom in the Barents Sea

Military doctrine explains, “Understanding the operational environment is fundamental to joint operations.”  This operational environment includes “the conditions, circumstances, and influences that affect employment of capabilities and bear on the decisions of the commander.”  In terms of law, what are the “influences” or “conditions” that could affect the operational environment of the Barents Sea?  As mentioned previously, there are two states with territory surrounding the Barents Sea: Norway and Russia.  Norway has not attempted to restrict the maritime freedom enjoyed by other states, but Russia has asserted excessive maritime claims that could affect maritime freedom within portions of the Barents Sea.In particular, Russia has two maritime claims that might have potentially been challenged during the recent U.S./U.K. naval operations.

First, Russia has drawn baselines along its entire coastline, which close off an excessive amount of waters as internal waters and improperly push out the starting point for measuring its maritime entitlements (i.e., territorial sea, contiguous zone, and exclusive economic zone).  As reflected in applicable international law, the normal rule for drawing baselines along a state’s coastline is to use the low-water mark. The International Court of Justice has ruled that the method of straight baselines is “an exception to the normal rules for the determination of baselines” and “may only be applied if a number of conditions are met.”  For example, a straight baseline drawn across a body of water shall not exceed 24 nautical miles. Notwithstanding these legal limitations, Russia has literally implemented the exception to be its universal rule.  In 1984 and 1985, the then-Soviet Union declared a comprehensive regime of straight baselines along its entire coastline.  For purposes of this discussion, the 1985 declaration including straight baselines on Russia’s coastline adjacent to the Barents Sea.  Of note, one of those baselines is drawn from Cape Svyatoy Nos and Cape Kanin Nos, measures approximately 220 nautical miles in length, closes off the mouth of the White Sea, and thereby seeks to make it entirely internal waters. Consequently, the U.S. government views Russia’s regime of straight baselines to be an excessive maritime claim, and challenged these baselines diplomatically and operationally in the 1980s.

Second, Russia has imposed navigational restrictions along the Northern Sea Route (NSR), which appear to apply to military and non-governmental vessels alike.  In 2012, Russia enacted its Federal Law of Shipping on the Water Area of the Northern Sea Route.  This law mandates that foreign vessels intending to transit the NSR shall, among other requirements, provide advance notification of transits, use Russian ice pilotage, pay pilotage fees, and be escorted by Russian icebreakers.  In May 2015, the U.S. Department of State delivered a diplomatic note to the government of Russia, which identified a number of ways in which its NSR law exceeded the authority of a coastal state under international law.  The diplomatic note highlighted that the Russian legal regime “does not seem to provide an express exemption for sovereign immune vessels.”  Similarly, the DoD Arctic Strategy assessed there strictions of Russia’s NSR law to be “in excess of the authority permitted under international law.”Notwithstanding these U.S. concerns, the Russian government did not eliminate or loosen these restrictions, but rather started the process of furthering tightening them.  In March 2019, Russia announced draft legislation that would expressly apply these transit requirements on foreign warships, which would clearly violate the sovereign immune status of such warships. 

For these two excessive maritime claims asserted by Russia, the question remains: could the U.S./U.K. warships have challenged either or both these claims during their Barents Sea operations?  In all likelihood, they could have challenged the first one, but maybe not the second one.  Given that Russia’s straight baselines include its entire coastline in the Barents Sea, these foreign warships could have conducted one or more FONOPs to challenge that claim.  But it is somewhat unclear whether it would have been feasible for the foreign warships to challenge the second claim in the Barents Sea.  By the actual language of Russia’s 2012 NSR law, these requirements apply to vessels navigating in the “area of the Northern Sea Route.”  Article 5.1. of that law defines that “area” to include “a water area adjoining the northern coast of the Russian Federation, including internal waters, territorial sea, contiguous zone and exclusive economic zone of the Russian Federation.”  It further defines that area to span from the Bering Strait at its most western point to the “east coast line” of the Novaya Zemlya archipelago.  In other words, the Barents Sea is not within what defines as the “area of the Northern Sea Route.”However, Commander, U.S. Naval Forces Europe/Africa published an opinion-editorial in July 2019, in which he expressed concern about Russia’s increased restrictions on the NSR.  Of note, his description of the NSR implied that the Barents Sea was impacted by Russia’s law, given that he described the NSR as one that “connect the Kola Peninsula and the Bering Strait.”  If that the U.S. understanding of the situation, then these naval operations might have additionally or alternatively sought to challenge this second excessive claim.

As an aside, it would also be helpful to understand what is not the purpose of FONOPs.  In particular, these operational activities are directed at excessive maritime claims, not competing maritime claims.  For competing claims, the U.S. government generally does not take a side in maritime disputes to which the United States is not a party, but calls upon the claimant-states to resolve their disputes by peaceful means in accordance with international law.  This policy nuance is sometimes misunderstood by some government officials and outside observers, particularly in complex situations such as the South China Sea, where competing claims and excessive claims exist simultaneously.  But fortunately, this is not an issue in the Barents Sea.  That is, the “operational environment” of the Barents Sea is not complicated by competing maritime claims, given that Norway and Russia have an agreed maritime boundary delimitation, based upon their 2011 bilateral treaty.

Returning to the matter of maritime freedom, some observers might wonder: what exactly did the U.S./U.K. Navy do during these recent operations in the Barents Sea to protect maritime freedom?  The U.S. Navy’s press release for the Barents Sea operations stated generally that one of the purposes of these operations was to “assert freedom of navigation,” without specifying whether any element of these ongoing operations would actually include ship transits or activities designed to directly challenge one or more of these excessive maritime claims asserted by these surrounding states.  Hopefully, given that the public records of U.S. Freedom of Navigation operations reflect that the most recent diplomatic and operational challenges to these excessive maritime claims in the Barents Sea were in the 1980s and early 1990s, the U.S. and U.K. navies seized this opportunity to renew the operational challenges to some or all of these excessive claims.For reasons of operational security, the public will not know for certain whether specific operational challenges were conducted during these Barents Sea operations until the U.S. Department of Defense issues its annual Freedom of Navigation report for fiscal year 2020, which would be published sometime in early 2021.However, in light of recent U.S. practice elsewhere in the world, the U.S. government might alternatively decide to publicize any freedom of navigation operations in the Barents Sea, soon after they were conducted.

Finally, it should be noted that these recent U.S./U.K. naval operations might have intended to preserve maritime freedom more generally, without actually including a FONOP or other FON-related activities that directly challenge a particular excessive maritime claim.  The U.S. Navy sometimes publicly characterizes these as a “persistent presence” or “routine presence operations.” Such presence operations can be intended to effectuate several national security policies or interests simultaneously, to include preserving maritime freedom, reassuring allies and partners, deterring transnational crimes such as piracy, and dissuading competitors and potential adversaries.  Of course, there would be nothing wrong if these recent naval operations did not include activities to directly challenge one or both of these excessive maritime claims asserted by Russia.  However, given the logistical challenges, expended resources, expansive area of operations, and relatively infrequency for this group of warships to transit to and operate within Arctic waters, it would have been a lost opportunity if the U.S. Navy did not conduct at least one FONOP as an element of these Barents Sea operations.

The Significance of Providing Notification

Given the geopolitical status of Russia in the European theater, perhaps some additional thoughts on maritime freedom through the lens of U.S.-Russia relations are warranted.  The current U.S. National Security Strategy recognizes that the United States, Russia, and China are not “at peace” or “at war,” but rather are operating in “an arena of continuous competition.”  The strategy also identifies that a “risk of conflict due to Russian miscalculation is growing.”  In response, the U.S. strategy declares, “We will raise our competitive game to meet that challenge, to protect American interests, and to advance our values.”  Additionally, the United States seeks to “deepen collaboration with [its] European allies and partners to confront forces threatening to undermine our common values, security interests, and shared vision.”  These allies would include the United Kingdom, and these common values would include preserving maritime freedom.  Yet a question arises:  how can the United States protect a value or interest like maritime freedom without increasing the risk of miscalculation by a competitor like Russia?  Once again, consider the Barents Sea naval operations as an illustrative example.

An important preparatory step taken with respect to these naval operations was that Russia was notified that they were occurring.  As a matter of practical details, when and how was this notification provided?  The U.S. Navy’s press release addresses when it was provided: “The Russian Ministry of Defense was notified of the visit to the Barents Sea, May 1.”But it does not specify the manner in which the notification was provided.  In all likelihood, the U.S. government provided this notification through defense attaché channelsor a direct communications link with the Russian government.

Another logical question worth asking is why was this notification provided?  The U.S. Navy’s press release clarifies, “The notification was made in an effort to avoid misperceptions, reduce risk, and prevent inadvertent escalation.”  Some observers might wonder whether providing this advance notification of these operations sets a “bad precedent.”  International law can be formed by either conventional law or customary law, but both forms of law create legal obligations for the state-parties involved.  In terms of customary law, a concern might be that a practice of providing notifications to a coastal state before conducting transits or commencing routine operations could eventually form an obligation to provide such notifications in the future.  Paradoxically, legal experts might question whether providing this type of notification for naval operations – especially ones that are specifically intended, in part, to protect maritime freedom — might risk undercutting that very freedom by providing that notification.

In this particular instance, however, this notification arguably does not jeopardize the maritime freedom guaranteed to all states under international law.  As the International Court of Justice has explained, customary international law is formed through state practice accompanied by “a belief that is practice is rendered by the existence of a rule of law requiring it.”  This necessary element is captured by the Latin phrase opinion juris sive necessitatis, or “opinio juris” for short.  This raises the question:  what was the intended purpose of this notification for these naval operations?  In other words, this notification was not provided out of some sense of obligation or requirement of the international law of the sea.  Instead, the decision to provide this information to Russia was made as a matter of U.S. policy. 

Moreover, the U.S. Navy’s press release does not indicate that notification was provided for a particular freedom of navigation operation to challenge a specific maritime claim asserted by Russia as a coastal state.  Instead, the notification might have been more generally about the combined U.S./U.K. naval operations within the high seas of Barents Sea.  This would be consistent with specific obligations under a bilateral agreement that is separate and apart from the international law of the sea.  In fact, the United States and Russia have several bilateral agreements that include notification provisions designed to reduce risk of unsafe incidents or escalation between their respect military forces.  Under the 1972 Prevention of Incidents On and Over the High Seas Agreement (INCSEA), both the United States and Russia agreed to “provide through the established system of radio broadcasts of information and warning to mariners, not less than 3 to 5 days in advance as a rule, notification of actions on the high seas which represent a danger to navigation or to aircraft in flight.”  Additionally, the two governments concluded a legally-binding, bilateral agreement in 1989 with the stated purpose of “prevent[ing] dangerous military activities, and thereby [reducing] the possibility of incidents arising between their armed forces.”  Article II of that agreement obligates each party to “take necessary measures directed toward preventing dangerous activities,” without specifying what types of measures are necessary and whether those measures might include prior notification of conducting activities.  At the same time, however, Article VIII of that same agreement states, “This Agreement shall not affect…the rights…of navigation and overflight, in accordance with international law.”  In short, the U.S. advance notification to Russia about these naval operations did not otherwise undermine the maritime freedom to operate in the Barents Sea.

The Importance of “Maintaining” Maritime Freedom Against “All Hazards”

In closing, a brief lesson in maritime history and law might be appropriate.  The Barents Sea was named after Willem Barentsz.  Living in latter half of the sixteenth century, Barentz was a Dutch navigator, cartographer, and explorer.  During his seafaring career, he famously explored all of the oceans and islands surrounding the European continent, to include the Mediterranean Sea but more notably waters within the Arctic Circle.  Hoping to find the “northeast passage,” Barentz and his crews impressively braved extreme weather conditions and undertook three historic voyages through these icy waters.  For these accomplishments, one of the bodies of water that he was a pioneer to explore was eventually named in his honor.  Coincidentally, the final years of Barentsz’s life overlapped with the first years of another famous Dutchman:  Hugo Grotius.  Grotius was aware of his fellow countryman’s contribution to international maritime exploration, as he purportedly observed that Baretnsz was “worthy to be ranked with” the Italian Amerigo Vespucci and Christopher Columbus.  Eventually, Grotius left his own mark on world history, being described now by many legal experts as the “father” of international law. 

Only a decade after Barentz’s death, Grotius published his pamphlet Mare Liberum, which translates from Latin as The Freedom of the Sea.  About the universality of maritime freedom, Grotius famously observed, “[T]he sea is common to all, because it is so limitless that it cannot become a possession of any one, and because it is adapted for the use of all, whether we consider it from the point of view of navigation or of fisheries.”  At that time, Grotius was countering Portugal’s mare clausum (closed sea) policy.  What happens if one state seeks to control other states’ free access to the world’s oceans: should those others states capitulate or acquiesce?  Grotius legal defense of maritime freedom argued otherwise:

Wherefore since both law and equity demand that trade with the East Indies be as freeto us as to any one else, it follows that we are to maintain at all hazards that freedom which is ours by nature, either by coming to a peace agreement with the Spaniards, or by concluding a treaty, or by continuing the war.

Four centuries later, we see that two truths endure: the cold weather conditions of the Barent Sea still pose a “hazard” to mariners who brave those Arctic waters; so, too, do the efforts by some states around the world that seek to restrict the maritime freedom of other states, including in the waters of the Barents Sea.  In the contemporary era, however, the ways for states to “maintain” their maritime freedom has been refined, beyond “a treaty” or “a war.”  In between those extremes rests another option:  routine, peacetime naval operations, like those recently undertaken by two allied navies.

Jonathan G. Odom is a judge advocate (licensed attorney) in the U.S. Navy. Currently, he serves as a Military Professor of International Law at the George C. Marshall European Center for Security Studies, located in Garmisch-Partenkirchen, Germany. Previously, he has served as the oceans policy adviser in the Office of the U.S. Secretary of Defense and as a Military Professor of law and Maritime Security at the Daniel K. Inouye Asia-Pacific Center for Security Studies. The views expressed are his own and do not necessarily reflect the positions of the U.S. Government, the U.S. Department of Defense or any of its components. He may be contacted at jonathan.odom[at]usa.com

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International Law

The rise & rise of populist demagogues in democratic nations

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

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

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

1.Compromised Constitutional Bodies

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

2.Unnecessary Focus on the revival of Glorious Past

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

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

3.No respect for Dissent & Human Rights

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

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

4. Polarisation for winning elections

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

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

5.Violate established rules of Political Conduct

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

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

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

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

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

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

7. Climate Change Deniers

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

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

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

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

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

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

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

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

Universal self-Regulation code

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

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

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

Positions of the law in regards to film screenings

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

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

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

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

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

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

Conclusion

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


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

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

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

[4] Id. at 13

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

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

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International Law

What Determines Taliban Government’s Legitimacy?

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Photo Credit: Wikimedia Commons

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

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

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

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

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