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The Artemis Accords: Repeating the Mistakes of the Age of Exploration

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“Space is a warfighting domain. . . . It is not enough to have an American presence in space; we must have American dominance in space.”- U.S. Vice-President Mike Pence, 20181

In the spring of 1493, the King and Queen of Spain sent an envoy to the Pope in Rome. Along with Portugal, Spain had just used its advanced sailing and navigation technology to reach “new worlds”, areas of the Earth that had not been previously discovered by Europeans. But they had a problem: they wanted to establish sovereign property rights in the lands they had discovered, but they weren’t sure they could do so under their own authority. So they turned to the only international authority in Europe at that time, the Catholic Church, which held sway over governments from Portugal to Poland, from the Arctic to the Mediterranean. If the Church would establish a legal framework that granted them sovereignty, then those nations would be bound to recognize it.2

This is the first lesson that the current governments of the world can learn from the Age of Exploration & Empire that began five centuries ago. Even then, the most powerful nation in Europe, with the largest army and most advanced technology, realized that it could not unilaterally establish property rights or any other kind of sovereignty without the approval of an international authority. After the Church granted that authority, Spain was able to create one of the greatest empires in history. Spain and Portugal formalized the arrangement with a binding international agreement, the Treaty of Tordesillas, whose purpose was to ensure peaceful cooperation between their nations, primarily by establishing a line of demarcation that separated their areas of activity.3

Unfortunately, the legal framework so established was based on national dominance, not multilateral international cooperation. The grant of sovereignty was exclusive, made only to Spain and Portugal, and it required them to subjugate the “savages” in the lands they discovered by taking along Church missionaries.This exclusivity did not sit well with other nations as they also developed the technologies of exploration; it was one of the reasons many northern European nations joined the Protestant Reformation and rejected the authority of the Pope in Rome. Without a fair and equitable international agreement that honored the interests of emerging states, the Church lost its ability to act as an arbiter between nations.

Even worse, the dominance model set up centuries of conflict among the major powers in Europe. Militant nationalism and economic colonialism became the principles guiding national policy. The result was centuries of war, suffering, and neglect among the major powers and the nations they subjugated. This pattern did not end until the 20th century, when the major powers fought two world wars and finally dismantled their colonial empires, sometimes peacefully, sometimes by force.

By the mid-1960’s, most countries on Earth were independent or on their way to becoming so. But a new conflict had started, one that threatened to repeat the mistakes of five centuries earlier. The great powers were once again using their advanced technology to explore new worlds, and the race was on to plant their flag on the Moon first. Under the ancient traditions, the country that did so would have a claim against all others for possession and use of the territory. The Cold War was about to expand into outer space.

But then something wonderful happened. In 1967, the United Nations proposed, and the world’s space powers accepted, an international agreement known as the Outer Space Treaty.4The Treaty was an intentional effort to avoid the mistakes of the Age of Exploration & Empire. Article I states that “The exploration and use of outer space, including the moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind.” Article II is even more specific: “Outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.” Because of this Treaty, the United States carried a plaque to the Moon that said, “We came in peace for all mankind”.5 When the Apollo 11 astronauts planted the U.S. flag, they did so out of pride, but did not establish any claim or national priority.

This legal framework worked well initially, but people soon started wondering about what to do when countries and/or private entities wanted to start commercial activity on the Moon, or build settlements. The solution was the Moon Treaty, proposed by the United Nations and adopted by enough nations to come into force in 1984.6 But it has not yet been adopted by any space-faring nation. The United States, by a recent executive order, has specifically renounced the Treaty and stated its intentions to extract materials from the Moon without any international agreement.7

The newly announced Artemis Accords go even further. Although the actual Accords have not been released pending consultation with possible partners, the summary provided by NASA8indicates that the United States will unilaterally interpret the Outer Space Treaty to allow “space resource extraction”, despite the prohibition against appropriation in Article II of the Treaty. There will also be “safety zones” to avoid “harmful interference” with such operations. The effect is to establish exclusive economic zones, especially if “harmful interference” is defined to include economic harm, not just safety. Will the new Space Force be used to protect such economic interests? Will other nations be excluded if they support the Moon Treaty?9Will private actors be required to follow the same rules as states, as recommended in the recently-drafted Moon Village Principles?10This is the slippery slope of using unilateral action to establish economic rights rather than an international agreement.

The Artemis Accords acknowledge many beneficial agreements and policies: The Outer Space Treaty, Rescue Agreement, and Registration Convention (though not the Liability Convention); peace, transparency, interoperability, protecting heritage sites and sharing scientific information. But its unilateral authorization of space mining is a continuation of the Trump Administration’s underlying foreign policy strategy: unilateral dominance over international cooperation. The United States has withdrawn from the Paris Accords, the Iranian nuclear deal, and, in the middle of a pandemic, the World Health Organization. Dominance has even become the theme of the Administration’s domestic policy, with President Trump recently telling governors, “If you don’t dominate, you’re wasting your time. . . . You have to dominate.”11That core philosophy is now being applied to outer space, as Vice-President Mike Pence proudly announced (above). Despite the lessons of history, the United States is going full speed ahead with the “dominance” model of space development rather than working with the nations of the world to develop a “cooperation” model. Outer space, which so far has been preserved for peace and cooperation, is about to be spoiled, perhaps forever.

But if the Moon Treaty is the key to peaceful cooperation in outer space, why haven’t more nations adopted it? The reason appears to be that the Treaty is incomplete, and thus flawed. Article 11 requires an implementation agreement to create the legal framework for private activity. Without that agreement in place, some states fear the worst, that they will lose their sovereignty if they adopt the Treaty, especially since it refers to outer space as the “common heritage of mankind”. Private mining interests are afraid that their profits will be taxed for redistribution to less-developed countries. As one space law scholar put it:

“Some would say the biggest challenge for the implementation of the Moon Agreement are four little words found in Article 11 . . . the “common heritage of [hu]mankind”. . . . At first glance, it appears that to implement the concept of common heritage of humankind, an international body must be created to redistribute wealth and technology among nations.”12

Some even wonder if they will be able to market the materials they extract. As recently explained by an attorney for the mining industry:

Here’s the issue on the security of tenure [the right to extract materials] and the fiscal regime: there’s an Outer Space Treaty that was signed by a lot of countries when the moon exploration was going on, and the treaty includes a provision that says you can’t appropriate celestial bodies, that would include the moon.

The question is — what happens if I go to the moon? I set up shop, and I extract ice and rocks and start making things, do I own the rocks that I’ve extracted? I’m not saying that I own the moon, but if I put in the effort, do I own the resources? Same thing with asteroids,if I send a robot to the asteroid, it sets up shop and starts extracting things and using them, do you own the extracted mineral? And that’s the legal issue, that’s the unsettled question.13

Until the rule of law is extended to the Moon by such an international agreement, there will be great uncertainty as to the viability of commercial activities. It is an axiom of economics that businesses and investors hate uncertainty, as it makes it impossible to analyze risk and estimate the return on investment.

The solution is to create an implementation agreement that addresses these concerns and can be adopted along with the Moon Treaty. To that end, a Model Implementation Agreement has been drafted by The Space Treaty Project. It was first distributed for comment in 2018 and made its public debut at the 2019 Shanghai Advanced Space Technology conference. It has recently undergone peer review and was published in the Journal of Advances in Astronautics Science and Technology.14

The Model Implementation Agreement has only 10 paragraphs and is based on four organizational principles:

1) The Agreement must be comprehensive and support all private activity;

2) The Grand Bargain: Trade private property rights for public policy obligations;

3) Defer issues currently at impasse (e.g., monetary sharing of benefits) by creating a governance process for making future decisions;

4) Integrate and build upon current institutions and processes.

The Model Agreement supports all private activity by defining the “use of resources” to include the use of any location on the Moon for any purpose, much the same way that real estate and property rights are considered resources on Earth. Any use would be supported if the private activity is authorized/supervised by a country that has adopted the Moon Treaty and the implementation agreement, because any country that has done so has agreed to the public policy obligations therein and to require that their nationals abide by them.

What are the obligations of the Moon Treaty that the countries and their nationals must accept? They are summarized in paragraph 4 of the Model Agreement:

4. Public Policy Obligations

The States Parties agree that the public policy obligations of the Treaty and this Agreement include the following:

1. Use outer space exclusively for peaceful purposes (Article 3.1);

2. Provide co-operation and mutual assistance (4.2); 

3. Honor the Registration Convention and inform the public of:

– Activities (5.1)

– Scientific discoveries (5.1)

– Any phenomena which could endanger human life or health (5.3)

– Any indication of organic life (5.3)

– The discovery of resources (11.6)

– Any change of status, harmful impacts of activities, use of nuclear power, and links to websites for specific objects/activities [COPUOS recommendations]

4. Protect the environment and preserve areas of “special scientific interest” such as historic landing sites (7.1-7.3);

5. Allow free access to all areas by other parties (9.2);

6. Honor the Rescue Treaty (10.1)

7. Share technology as part of sharing the benefits of outer space with less technologically advanced countries (4.1-4.2)

The full Agreement [follows this article] or [is available at http://spacetreaty.org/modelimplementationagreement.pdf]:

Most of these obligations are already established in other widely adopted treaties, i.e., the Outer Space Treaty, the Rescue Agreement, the Registration Convention, and the Liability Convention. Even the Artemis Accords acknowledge many of them (see above).But there are some that are not acknowledged, such as sharing the discovery of resources, protecting the natural environment, and sharing technology. The Accords are also silent as to whether its obligations will apply to private parties.

Sharing technology is not specified in the Moon Treaty, but some view it as included in Article 4:“The exploration and use of the moon shall be the province of all mankind and shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development.”The “Building Blocks” of The Hague Spaces Resources International Working Group call for sharing technology on a “mutually-accepted basis”.15The Working Group members were “stakeholders of space resource activities and represent consortium partners, industry, States, international organizations, academia and NGOs.”16It is significant that stakeholders from the private sector are willing to consider the sharing of technology. If a “mutually-accepted basis” for sharing cannot be found, the Model Agreement would require the licensing of technology at fair market value.

Accepting the obligations of the Moon Treaty is the trade-off for private property rights, the “Grand Bargain” in the organizational principles. They are no more onerous or burdensome than the obligations that property owners must accept on Earth. Here, property owners must always consider what effect activity on their own property will have on others. Property on Earth is subject to regulation (e.g., zoning, permits, safety) and can be taken (with compensation) for public policy reasons. It is unreasonable to expect that the use of property on the Moon will not be subject to similar regulation.

The Model Agreement contains other provisions, such as controlling law, dispute resolution, and future governance for substantive decisions. It also protects the rights of individuals and those wanting to establish private settlements: “Nothing in this Agreement or in the Treaty shall be interpreted as denying or limiting the rights guaranteed to individuals by the Universal Declaration of Human Rights, or the right of settlements to seek autonomy and/or recognition as sovereign nations.” (Paragraph 10). By providing legal support for all private activity, protecting individual rights, and maintaining essential public policies, the Model Implementation Agreement satisfies all concerns about the Moon Treaty and creates a practical, cooperative alternative to the unilateral and exclusive dominance model being proposed by the United States.

The current Model Agreement is the product of consultation with many individuals and organizations over the past three years. It now being presented for consideration as a reasonable alternative to the Artemis Accords. If adopted, the Agreement will have a significant advantage over the Accords in that, like all treaties, it will be an enforceable international agreement that is binding on the States Parties, not just a unilateral action by one country with a few activity partners. It will also be comprehensive, supporting all private activity, not just materials extraction like the Accords. And it will include an overall framework for international cooperation, including controlling law and dispute resolution, none of which are included in the Accords.

We have become familiar with the Overview Effect, that fundamental change in attitude that comes from viewing the Earth from space, as with the picture of Earthrise taken from the Moon in 1968. We must now take an overview through time. Humanity is on the verge of leaving the home planet. It is the greatest adventure and opportunity in our history, but it will be an opportunity lost if we repeat the mistakes of the last Age of Exploration. We can continue to preserve outer space for peaceful cooperation, or we can extend the pattern of domination and conflict that for too long has controlled our destiny on Earth.

At this most pivotal moment in history, the choice is ours.

Many thanks to Vidvuds Beldavs and the International Lunar Decade (https://ildwg.wordpress.com/) for assistance in researching this article.

References

1. Washington Post, videos of U.S. Vice-President Mike Pence: “Space is a warfighting domain”, October 23, 2018. https://www.youtube.com/watch?v=0LtLNp4nde0“We must have American dominance in space”, August 9, 2018. https://www.youtube.com/watch?v=9xEkyT7XrxQ

2. Bulls of Donation (1493), Wikipedia (Three papal “Bulls of Donation”- Inter Caetera,Eximiae Devotionis,and Inter Caetera (2)- were issued May 3-4, 1493, and a fourth – Dudum Siquidem– on September 26, defining the terms of the “donation” of lands to each country). https://en.wikipedia.org/wiki/Bulls_of_Donation#cite_note-verzijl-1

3. The Treaty of Tordesillas (1494), Wikipedia.https://en.wikipedia.org/wiki/Treaty_of_Tordesillas

4. Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (The Outer Space Treaty, 1967), United Nations Office of Outer Space Activities (UNOOSA).http://www.unoosa.org/oosa/en/ourwork/spacelaw/treaties/introouterspacetreaty.html

5. Lunar Plaque, Wikipedia.https://en.wikipedia.org/wiki/Lunar_plaque#cite_note-Moon_Flag-1

6. Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (The Moon Treaty, 1984), UNOOSA.http://www.unoosa.org/oosa/en/ourwork/spacelaw/treaties/intromoon-agreement.html

7. Executive Order on Encouraging International Support for the Recovery and Use of Space Resources, The White House, April 6, 2020.

https://www.whitehouse.gov/presidential-actions/executive-order-encouraging-international-support-recovery-use-space-resources/

8.NASA, The Artemis Accords (2020).https://www.nasa.gov/specials/artemis-accords/index.html

9. “Australia would be obliged to withdraw from the Moon Treaty if it accepts an offer to join the Accords.” Mark Whittington, How the United States plans to make space exploration pay, The Hill, April 26, 2020.https://thehill.com/opinion/technology/494730-how-the-united-states-plans-to-make-space-exploration-pay?fbclid=IwAR3lwrIV43fPX6T7lMDFC9tilnzZiBdidgUEAVLzNsTl6FLBnGtInT1xWMI

10. “States shall authorize and continually supervise all lunar activities of their nationals in order to ensure compliance with international law.” Moon Village Association,Moon Village Principles Issue 2 (draft), March 5, 2020. https://moonvillageassociation.org/moon-village-principles-mvp-issue-2-draft-public-consultation-opens/

11. David Choi, ‘Exactly what President Trump wants’: Democratic governors are shunning Trump’s calls to ‘dominate’ protests using military forces, Business Insider, June 1, 2020. https://www.businessinsider.com/state-leaders-shun-trumps-calls-to-dominate-protests-using-military-2020-6

12. Michelle Hanlon, What is the Moon Treaty and is it still useful?,Filling Space, May 14, 2020.https://filling-space.com/2020/01/17/what-is-the-moon-treaty-and-is-it-still-useful/?fbclid=IwAR2HHd5x6hPQQf7AsuLuVoy5JpY98LxsWEbYofRCjiRwTIqKn8gkMP5tDGc

13. Stutt, Amanda, How Earth-bound Mining Lawyers Think About Space Mining (interview with Scot Anderson, attorney and Global Head of Energy & Natural Resources with the law firm Hogan Lovells in Denver, Colorado),Mining.Com, Jan. 3, 2020.https://www.mining.com/how-earth-bound-mining-lawyers-think-about-space-mining/?fbclid=IwAR0pbCwO20c9W_uEd1Rve0ME_6Aw5Z4XMcqr_MdTSrYr-L-VkB_TkKD5JrI

14. O’Brien, D. Legal Support for the Private Sector: An Implementation Agreement for the Moon Treaty. Adv. Astronaut. Sci. Technol. (2020). https://doi.org/10.1007/s42423-020-00059-w

15. The Hague International Space Resources Governance Working Group, Building Blocks For The Development Of An International Framework On Space Resource Activities (13. Sharing of benefits arising out of the utilization of space resources),November 2019.https://www.universiteitleiden.nl/binaries/content/assets/rechtsgeleerdheid/instituut-voor-publiekrecht/lucht–en-ruimterecht/space-resources/bb-thissrwg–cover.pdf

16.The Hague International Space Resources Governance Working Group, International Institute of Air and Space Law, Leiden University (2019)https://www.universiteitleiden.nl/en/law/institute-of-public-law/institute-of-air-space-law/the-hague-space-resources-governance-working-group

Model Implementation Agreementfor the Moon Treaty (May 2020)

Preface

The provisions of this Agreement and the underlying Treaty shall be interpreted and applied together as a single instrument. In the event of any inconsistency between the Agreement and the Treaty, the provisions of the Agreement shall prevail. After the adoption of the Agreement, any instrument of ratification or formal confirmation of or accession to the Treaty shall also represent consent to be bound by theAgreement. No State or entity may establish its consent to be bound by the Agreement unless it has previously established or establishes at the same time its consent to be bound by the Treaty.

1. Administration; Creation of Agency

The States Parties agree to create as soon as is practicable an agency (“Agency”) to administer the provisions of the Agreement Governing The Activities Of States On The Moon And Other Celestial Bodies (“Treaty”) and this Implementation Agreement (“Agreement”).

2. Licenses for Private Activity; Exploitation of Resources

The States Parties agree to authorize the Agency to issue licenses to non-governmental entities (“NGE”) for the priority exploitation of resources. Exploitation of resources shall include but is not limited to: (a) the extraction of materials, (b) the use of a location for any other commercial activity [e.g., tourism], and (c) the use of a location for non commercial private activity [e.g., science, settlements]. Licenses shall describe the extent, duration, and nature of the activity and shall maximize free access for all in accordance with Article I of the Treaty On Principles Governing The Activities Of States In The Exploration And Use Of Outer Space, Including The Moon And Other Celestial Bodies [the Outer Space Treaty]. Activity by governments is authorized under Treaty Articles 8 and 9.

3. Requirements for License; Adoption of Obligations

The States Parties agree that the Agency shall issue a license for any NGE activity that is authorized and supervised by a State Party to this agreement. The States Parties further agree to require that their nationals (a) accept the public policy obligations of the Treaty as mandated by Treaty Article 14, and (b) share technology as described in Paragraph 5 of this Agreement. The license shall be revoked if, at any time, a licensed NGE fails to comply with its obligations.

4. Public Policy Obligations

The States Parties agree that the public policy obligations of the Treaty and this Agreement include the following:

1. Use outer space exclusively for peaceful purposes (Treaty Article 3.1);

2. Provide co-operation and mutual assistance (4.2); 

3. Honor the Convention On Registration Of Objects Launched Into Outer Space (“Registration Convention”) and inform the public of:

– Activities (5.1)

– Scientific discoveries (5.1)

– Any phenomena which could endanger human life or health (5.3)

– Any indication of organic life (5.3)

– The discovery of resources (11.6)

– Any change of status, harmful impacts of activities, use of nuclear power, and links to websites for specific objects/activities [COPUOS recommendations]

4. Protect the environment and preserve areas of “special scientific interest” such as historic landing sites (7.1-7.3);

5. Allow free access to all areas by other parties (9.2);

6. Honor the Agreement On The Rescue Of Astronauts, The Return Of Astronauts And The Return Of Objects Launched Into Outer Space(“Rescue Treaty”) (10.1)

7. Share technology as part of sharing the benefits of outer space with less technologically advanced countries (4.1-4.2)

5. Sharing Technology; Exclusions

In accordance with Treaty Article 4, the States Parties agree to develop a process for sharing technology on a mutually acceptable basis. Until or in the absence of such a process, the States Parties agree to require their nationals to license technology at no more than fair market value. Technology that is subject to export controls shall be excluded from these requirements.

6. Standards and Recommended Practices; Registry

The States Parties, in consultation with non-governmental entities, agree to develop technology standards and recommended practices for the safe use and development of space resources. Such standards or practices shall not require technology that is subject to export controls. The Agency and/or other designated entities shall maintain the registry of such information and any information relevant to activities on the Moon that is not included in the registry for the Registration Convention that is maintained by the United Nations.

7. Protected Sites; Designation

The States Parties agree to prohibit the use or disturbance of any location on the Moon or other celestial body that is the site of a historical mission that occurred more than 20 years prior to the authorization of new activity pending a final determination of the site’s status as a Cultural Heritage Site. This prohibition applies to the location of any equipment and any evidence of presence (e.g., footprints, tracks). The States Parties agree to develop standards and recommended practices for determining what historical, cultural, or scientific sites should be protected or to designate another entity/process for making such determinations that will be binding on the States Parties.

8. Governance; Fees

The States Parties agree to create a process of governance for making substantive decisions as authorized under Articles 11 and 18 of the Treaty. The States Parties are financially responsible for the Agency, which shall be operated in a cost-effective manner. The collection and use of fees for administration or any other purpose is a substantive decision to be made by the governance process.

9. Dispute Resolution

The States Parties agree that any dispute concerning this Agreement or the Treaty shall be addressed using the consultation process detailed in Treaty Article 15. As an alternative, the States Parties hereby authorize the voluntary use of binding arbitration in accordance with the 2011 Permanent Court of Arbitration Optional Rules for Arbitration of Disputes Relating to Outer Space Activities. The results of such arbitration shall be enforceable underThe Convention on the Recognition and Enforcement of Foreign Arbitral Awards(“New York Convention”).  The Agency shall facilitate and inform the arbitration.

10. Controlling Law; Rights of Individuals, Settlements

In accordance with Treaty Article 12, the States Parties agree that the controlling law at any location shall be the law of the country that authorized/supervises the activity at that location, subject to this Agreement and Treaty. Relations between locations of different nationalities will be governed by current international law, including theConvention On International Liability For Damage Caused By Space Objects(“Liability Convention”), until such time as new substantive rules are created under the governance process in Agreement Paragraph 8, as authorized by Treaty Article 18. Nothing in this Agreement or in the Treaty shall be interpreted as denying or limiting the rights guaranteed to individuals by the Universal Declaration of Human Rights, or the right of settlements to seek autonomy and/or recognition as sovereign nations.

Dennis O’Brien is a member of the International Institute of Space Law and founder of The Space Treaty Project (www.spacetreaty.org). The Project is a member of the Moon Village Association; Mr. O’Brien sits on their Coordination & Cooperation workgroup

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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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International Law

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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