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Nagorno-Karabakh Conflict In The Caucasus: What Documents Say?

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source: rferl.org

The last decade of the USSR has been engraved in the memories by the freedom marches in the republics. At the end of the 1980s, when many countries began to leave the USSR and establish their independence, the Armenia SSR government raised the issue of the annexation of Nagorno-Karabakh from Azerbaijan SSR to Armenia SSR in 1988.

Background of the conflict

At the February 20, 1988 session of the NKAO (Nagorno-Karabakh Autonomous Oblast) Soviet of People’s Deputies, members of the region’s Armenian community adopted a resolution to appeal to the Supreme Soviets of Azerbaijan SSR and Armenian SSR to annex NKAO to Armenian SSR. Followingly, on February 22, 1988, the Armenians opened fire on a peaceful demonstration staged by the Azerbaijanisnear the town of Asgaran,who protested against the decision of the Soviet of People’s Deputies of NKAO. This incident was the beginning of the conflict either in military level. On December 1, 1989, the Supreme Soviet of Armenian SSR adopted an unprecedented resolution “On the unification of Armenian SSR and Nagorno-Karabakh”.On January 10, 1990, the Presidium of the USSR Supreme Soviet adopted a resolution “On the nonconformity with the USSR Constitution of the acts on Nagorno-Karabakh adopted by Armenian SSR Supreme Soviet on December 1, 1989, and January 9, 1990”. The resolution described as illegal Armenian SSR’s act on the unification of Armenian SSR and Nagorno-Karabakh without Azerbaijan SSR’s consent.

On August 30, 1991, the Supreme Soviet of Azerbaijan declared the restoration of state independence. After announcingthe Constitutional Act “On the State Independence of the Republic of Azerbaijan”, the Supreme Soviet of the Republic of Azerbaijan adopted the Law ‘On the abolition of the Nagorno-Karabakh Autonomous Oblast of the Republic of Azerbaijan”. As a result, Armenians began massacres and terrorist activities against Azerbaijanis.In the late 1991-early 1992, the conflict entered its military stage. Having exploited the collapse of the Soviet Union and political instability in Azerbaijan caused by the internal standoff, Armenia began military operations in Nagorno-Karabakh with external military support.

On September 24, 1991, the Armenian military, with the support of the 366th Regiment, attacked the villages of Imarat and Garvand in the Aghdara region, killing Azerbaijanis with special cruelty and expelling the people from their homes. The most considerable armed violence and genocide by Armenians against Azerbaijanis took place with the Khojaly events. In late 1991, Khojaly was blocked by Armenians. Armenians closed all roads, destroyed communication lines and cut off the power supply—the people living here communicated with other cities by helicopter telephones. However, in the same year, after the shooting down of the Mi-8 helicopter, the number of helicopters arriving here also decreased. All weapons were confiscated from the people, and the gendarmerie forces operating in Khojaly were disbanded. A few people had only a total of 50-60 weapons left. On the night of February 25-26, 1992, Armenian forces attacked Khojaly and, with the support of the 366th Russian Regiment, destroyed the city of Khojaly.

After that, the Azerbaijani-Armenian Nagorno-Karabakh conflict escalated, and Armenian forces occupied Nagorno-Karabakh and seven surrounding regions until 1994, killing Azerbaijanis and expelling them from their homes. At that time, Iran, which was trying to meditate, did not react severely to the occupation of Azerbaijani lands by Armenia. As a result, a ceasefire was reached only after Armenia occupied 20% of Azerbaijani territories.

International response to the conflict

The UN has adopted four resolutions (822, 853, 874, 884) on the Nagorno-Karabakh conflict, and its terms have not yet been fulfilled. In the recent debates, Nicol Pashinyan stated that the conflict is happening between the so-called Nagorno Karabakh Republic and the Republic of Azerbaijan. However, these four resolutions explain the real situation and declare that the dispute is not happening in Nagorno Karabakh; this is the international conflict caused by Armenia. Firstly, in all resolutions, Nagorno Karabakh is considered the territory of the Azerbaijan Republic. Secondly, all four resolutions start with the deterioration of relations between Armenia and Azerbaijan, and then the escalation of armed conflict. The Security Council provides a good understanding of who is involved in the conflict by stressing the sovereignty, territorial integrity and inviolability of international borders of all states in the region. Such texts are not written in the context of internal conflicts. Moreover, the Security Council emphasized that there is a threat to the sovereignty, territorial integrity and international borders of Azerbaijan.

The UNSC adopted resolution 822 on April 30, 1993, after the occupation of Kelbadjar district of the Republic of Azerbaijan. Firstly, the document states the following phrase:

“Noting with alarm the escalation in armed hostilities and in particular, the latest invasion of the Kelbadjar district of the Republic of Azerbaijan by local Armenian forces”.

“Local Armenians” phrase is indicated only in the resolution 822, apart from it, neither resolution states the term as an involved party of the conflict. However, this term does not clearly state the parties of the conflict. It is unknown which local Armenians invaded Kelbadjar district due to uncertainty. In this resolution, the UN clearly says that battle is not happening only between local Armenians living in Nagorno Karabakh and the Republic of Azerbaijan. Secondly, the resolution emphasizes the term “in particular, the latest invasion of the Kelbadjar district”, which means that there are many other districts occupied by the invasion forces and UN is concerned about the conflict by seeing it as a severe threat to security in the region, which was going on for a long time. The second phrase ultimately shows that other forces joined to the conflict:

“Demands the immediate cessation of all hostilities and hostile acts with a view to establishing a durable ceasefire, as well as immediate withdrawal of all occupying forces from the Kelbadjar district and other recently occupied areas of Azerbaijan”.

The word “invasion” used in the first line is replaced by “occupation” and “occupying forces” in the second line. The meaning of the wording “occupation” in international law is obvious – occupation can only be the result of interstate conflict. With this phrase, the UN indirectly conveys the presence of Armenian forces in Kelbadjar and other occupied regions.

These phrases were reflected in subsequent resolutions as well. Thus, the Security Council has tried to show that the war in Nagorno-Karabakh is not a result of, in fact, an internal conflict. Indirectly, the Security Council attempted to deliver that the lands belonging to Azerbaijan are occupied by Armenia. These phrases can be clearly seen in the following resolutions:

Resolution 853,

“Noting with alarm the escalation in armed hostilities, in particular, the seizure or the district of Aghdam in the Azerbaijani Republic,

  1. Condemns the seizure of the district of Aghdam and of all other recently occupied areas of the Azerbaijani Republic;

Resolution 874,

“Calls for the immediate implementation of the reciprocal and urgent steps provided for in the CSCE Minsk Group’s “adjusted timetable”, including the withdrawal of forces from recently occupied territories and the removal of all obstacles to communications and transportation.”

Resolution 884,

“Noting with alarm the escalation in armed hostilities as a consequence of the violations of the ceasefire and excesses in the use of force in response to those violations, in particular, the occupation of the Zangelan district and thecity of Goradiz in the Azerbaijani Republic and the withdrawal of occupying forces from other recently occupied areas of the Azerbaijani Republic…”

It can be questioned that why the Security Council didn’t mention that the conflict happened between Armenia and Azerbaijan? What is the reason for not calling Armenia as an occupier? If the Security Council would recognize Armenia as an occupier, then new obligations would arise for the Security Council. In the meantime, Armenia had to be called as an aggressor and the resolutions adopted should have been demanded unconditionally. Due to several reasons, the Security Council did not do this but instead stressed who is responsible in this conflict.

For instance, in 1991, during the Yugoslavian War, the Security Council adopted a resolution by stating “Wars in Yugoslavia” and “parties in Yugoslavia” to deliver this matter to the community as an internal conflict. However, all four resolutions about Nagorno-Karabakh conflict don’t include any wording mentioned above. Besides, conflict was emphasized as a threat to the sovereignty, territorial integrity and international borders of Azerbaijan.

During the conflict, the OSCE Minsk Group was formed, and the parties were brought to the negotiating table to resolve the conflict. Russia, which has been involved in resolving the conflict, initially sought to bring Russian forces to the region as peacekeepers. However, in December 1994, at a summit of OSCE participating States in Budapest, Member States decided to bring OSCE peacekeeping forces to the Nagorno-Karabakh region. These forces could be composed of the military forces of neutral states.

In December 1996, at the summit of the OSCE Member States in Lisbon, all Member States, except Armenia, recognized the territorial integrity of Azerbaijan in connection with the Nagorno-Karabakh conflict. The signed documents concluded that Nagorno-Karabakh conflict had to be resolved within the framework of Azerbaijan’s territorial integrity. Also, all proposals by the OSCE Minsk Group to solve the conflict first referred to the UN Security Council’s resolutions, then put forward their proposals for resolving the conflict. On the other hand, the OSCE Minsk Group prepared three plans to solve the conflict. However, the parties did not agree with these proposals due to several reasons. In November 2007, OSCE Minsk Group adopted final Madrid Document concerning resolving the conflict.

Conclusion

When analyzing the diplomatic processes in the Nagorno-Karabakh conflict, it is evident that Armenia does not recognize Nagorno-Karabakh as a separate state or institution. According to several documents, the conflict has acquired an international character and must be resolved within the framework of international law, and the borders of Azerbaijan. Despite all the accepted and approved international documents, the Armenian leadership wants Nagorno-Karabakh to be recognized as an independent entity because, in this way, it will be easier to control the territory in favor of Armenia. Moreover, the issue that was often raised at the meetings of the OSCE Minsk Group was related to the referendum, especially about self-determination. The deportation of Azerbaijanis living in Nagorno-Karabakh during the Soviet era had a serious impact on the ethnic composition of the population. Today, the Armenian diplomatic corps demands the status quo, taking into account only the ratio of 1988.However, this contradicts both international law and the Constitution of the Republic of Azerbaijan, and as a result, the right to self-determination cannot be extended to the Nagorno-Karabakh region. In addition, in 1996 Armenia did not recognize international borders of Azerbaijan. It creates a condition for Armenia to start any conflict in anywhere in the borders, as happened in 2020 July.

Today, not only the Nagorno-Karabakh region but surrounding territories also are extremely militarized. Clashes in the region are a serious threat to the security of the peoples who are living there closely. Armenians authorities’ non-compliance with international law also creates conditions for the proliferation of terrorist groups in the region. The settlement of the Nagorno-Karabakh conflict under international law will ensure the security of the region and the effectiveness of economic and humanitarian assistance.

Considering the slowdown in peace talks in Nagorno-Karabakh conflict, the failure of the OSCE Minsk Group, the unfair treatment of the Western media on Nagorno-Karabakh conflict, repeatedly nurturing Azerbaijan’s territorial integrity with an unreasonable attitude by Armenia, makes the region more unstable and increases border clashes and as in the past, the region will not lead to multi-directional change.

Mr. Aliyar Azimov is Senior Specialist in the Institute of Caucasus Studies at Azerbaijan National Academy of Sciences. He is an honored graduate student of Pécs University. He got his Bachelor degree at Baku State University from International Relations and Economics programme. His main research fields concern on energy politics and security, international security and foreign policy issues, peace and conflictology, political economy, and internal/external affairs of South Caucasus. He is successful participator of Essay Contest, titled Russia’s actions against the Southern Gas Corridor and potential impacts in this direction, held by UNEC Research Foundation. He was honored as the best student of year in 2013 at Baku State University. Mr. Aliyar worked as a program manager at Hungarian NGO – Subjective Values Foundation. Currently, he is also External Relations Manager at Technote, which is the biggest tech media company in Azerbaijan.

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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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