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What have we learnt in the past century?

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It is 100 years since we were supposedly getting over the war to end all wars, World War I, and forming the League of Nations with the purpose of preventing such a conflict and slaughter happening again. Regrettably, the only good that came out of it was the proposal to form the League of Nations; it was not much more than an idea though otherwise stillborn and we needed another World War before something solid resulted, the United Nations with some teeth, although they need sharpening. It was the time that the Chinese Communist party was formed and has just celebrated its centenary. What have we done in the time, apart from multiplying ourselves by a factor of 3, and perhaps upsetting the planet on the way. There are exciting scientific advances, of course, some of which we must use to address the wasteful manner in which we live.

The 1920s and 1930s were times of turmoil, new ideas. Socialism in the forms of nationalism and communism, each with an end result of forming a ruling elite, who would brook little or no interference from their perceived mission. The damage from WWI caused a Depression in the developed world, many of them democratic in form, and this meant they paid not or were not able to pay enough attention to the looming Nazi power growing in Germany. In China, the communist movement was putting down roots, establishing itself and, in the Far East the colonies of British India and the Dutch East Indies, the elite of those nations were listening with sympathy to the socialism that was being preached in Europe.

The end of WWII saw the proponents of each doctrine, social/communism and free market capitalism/democracy sharpen their dividing lines which led to the Cold War between east and west. However, this is too simplistic; Britain, for example, after WWII voted in a Socialist Labour government, which promptly set about nationalising key industries and created the National Health Service, all the basics of socialism, central government control. The key industries didn’t prosper, lacking accountability and arguably fleetness of the free market and in time, after Thatcher, were returned to the private sector. This was not entirely successful as times changed, but the National Health Service has been deemed a success in the overall scheme of things, looking after a nation’s health. Perhaps it was different because it only required a social accountability.

Returning to the division of doctrine, emerging from WWII, this saw the sharp divide of Europe between, on the one hand the Lenin/Stalin communist, centrally controlled regimes of the USSR which had gathered within their scope, whether they liked it or not, many of the countries of Eastern Europe. On the other hand, there were the democracies of Western Europe, which were bolstered by the USA. Germany was divided into two parts but Berlin, the capital, which lay in the Soviet jurisdiction, was a separate entity managed by the four allies who had together opposed the Nazis, namely the USA, the USSR, Britain and France. This arrangement continued, not without its problems, until the new president, Kennedy, in 1961 made a declaration against communism which alarmed Kruschev, the Soviet leader by now since Stalin had died. A Wall was put up by East Germany/ USSR in Berlin in 1961, which became a symbol of the freedom of the west against the restrictions that the Soviet Union enforced. The East German communist government was alarmed at the very large number of their skilled citizens who were defecting to the west; the Wall brought the number down to a trickle, lasting until 1989 by when times had changed.

In the East, China at war end was in the grip of a communist movement that was fighting to overcome the nationalist forces of Chiang Kai Chek. The communists prevailed and the nationalists departed for the island of Formosa, today Taiwan, taking with them the Emperor’s ancient, valuable signatures of office, a bone of contention. Meanwhile, Japan was healing from the bitter defeat inflicted on it from WWII with the help of the USA and was showing its resilience in recovery towards becoming one of the fastest growing economies.

The first test of the new communist China came in the early 1950s in the Korean peninsula, where they wholeheartedly backed the forces of North Korea in their fight against the armies of the south, backed by the USA and its Allies from the western democracies, including Australia. A truce was signed after a few years of hard fighting, with no side obviously prevailing, and Korea was divided between North and South. To this day they have entirely different styles of government, the communist north being dependent on China with the people languishing in poverty while their ruling elite are well off, and the South being one of the Asian ‘tigers’ and one of the most successful democratic economies. The difference is glaring.

The next conflict between communism and a semi pro-democratic form of government, the Vietnam War in the 1960s, had different origins. It was originally part of an anti-colonial struggle to depose the French from their Indo-China possession, which also included Laos and Cambodia. The defining moment came when the French forces were beaten by the N. Vietnamese at Dien Bien Phu in 1954, which was a signal for the French to withdraw. The North Vietnamese government was led by Ho Chi Minh, who had also studied communism in Europe and been persuaded by its ideas.

The American government had been watching closely and were very worried that if all of Vietnam were to fall to communism, it would lead to the rest of Southeast Asia in time succumbing also. As the leader of the ‘free’ world the USA stepped in and gradually increased its presence to the point that it was perceived as full-scale war. The North Vietnamese devised a way in which they could frustrate the American troops by building a network of underground tunnels from which they could appear unexpectedly and avoid direct confrontation with the better armed American troops. The war did not seem to have an end, and either it had to be escalated or the troops withdrawn. The former route would require going to Congress in Washington and, since the war was becoming increasingly unpopular with the public this was not something that the US government would want to do. The Nixon government of the early 1970s decided on a strategic withdrawal and so the whole of Vietnam was taken over by the communist government of the north, the condition which the US had feared. But times had changed. The world was changing. Some countries were prospering and trading. The old communist guard was getting on, some dying.

In the meantime, India and Indonesia, each with current large populations and significant colonial histories, had leaders who had learned in Europe about socialism/communism. However, the countries they would be serving had large other complex problems to resolve. In India’s case they had to deal with its partition with a mainly Islamic country, Pakistan, on each flank. The Nehru led, mainly Hindu, faction had much sympathy with socialism and were suspicious of the west and western aid agencies such as the World Bank, which were not allowed in to help develop the country. India, for the rest of the century, moved slowly but did not make a move to either communism or the western democracies, perhaps because it inherited a system in which much power rested within the state governments. The national or federal government operated from Delhi in the form that the British left behind.

Indonesia spent the first few years from independence in 1947, establishing itself as a whole. Soekarno, the first president, was a gifted orator, and was a firm believer in socialism/communism, but was a poor administrator. The country had to fend off two break away actions in the 1950s in North Sulawesi and West Sumatra provinces, which were put down with some ferocity. An interesting development was Soekarno’s leading with the 1955 Non- aligned Movement which was held in Bandung. This firmly put him in the neutral camp, although his time in Europe had imbued him with left leanings. His inability to take the country out of poverty was greatly frustrating the political elite in Jakarta and when he was deemed to show his leanings towards communism, the Army with the elite had had enough. He had to go and forcibly resigned, bringing Soeharto to power. The USA, who had watched the moves carefully while, at the same time, being involved in Vietnam, were much relieved.

Soeharto made it clear that he had no liking for a communist form of government. He was also quick to realise that he needed the brains from the private sector to handle the economy. He appointed the Berkeley ‘mafia’, UC Berkeley trained economists to deal with the major problems of food, water and education to lift the country out of poverty which they did very successfully for thirty years. The country was run as a benign autocracy with a guided parliament which re-elected Soeharto every 4 years, until the Asian Financial Crisis struck and caused him to step down. However, well by then it was aligned with the western powers and was invited to join the G-17, the organisation of the world’s richest economies.

It should be added that the grouping of Southeast Asian nations – region that my colleague prof. Anis H. Bajrektarevic calls “the most multilateralised portion of Asia – Asia’s hope” – as the formed an alliance, ASEAN, in August 1967, to establish itself as an independent bloc, headquartered in Jakarta. Currently, there are now 10 countries in the bloc, originally five, with widely differing forms of government.

Come the latter part of the last century, other feuds, some centuries old, reared up to cause some alarm. They were not ostensibly part of the main struggle between rigid rules, centrally controlled communist regimes and the free market western economies, but the one of the Middle East involving several differing elements, on the face of it based on Judaism and its three offset branches, Jewry, Christianity and Islam. On his occasion the struggle had some of its roots in the Balfour declaration of 1917, endorsed in 1926 at a commonwealth conference, and the contrary non-acceptance of Israel after WWII, as a homeland for the Jewish people, by the Palestinians. It has widened out in a determination by a right-wing Islamic fundamentalist group to form a purely Islamic country, a caliphate. It fed off old rivalries and brought differing factions into conflict. It is not settled to this day, and Syria, a land of ancient civilizations, has been torn apart with a refugee crisis that has caused much discomfit in Europe. The politics of the Middle East are very complicated, variations of squabbles centuries old, and possibly unresolvable at this time. They, however, don’t seem to directly affect the main thrust of the proponents of the secular division between the democratic approach and communism to government. Although both the USA and Russia have an involvement, it is not their most important issue, although takes up time.

There are other disruptions in Africa and South America, but not greatly affecting the outcome of the main struggle between left and right. In much of Africa, where colonial power had held sway for many years and where a huge number of slaves had been shipped across the Atlantic to support the American and Caribbean plantations, little had been done to prepare the indigenous peoples to govern themselves. The extractive industries that were put in to take out minerals needed in Europe had systems in place which were devised to ship out the minerals to the controlling country. There was little or no attempt to better the country, in terms of education, infrastructure and skills development, where the extraction had taken place. The result was that the elite of the country, gaining independence, carried on the way things had been before independence and became hugely rich, while the poor just became poorer and poorer. A terrible legacy of colonialism! And certain countries in the north have, in the past few years, been severely affected by fundamental Islamic factions.

In the case of South (Latin) America, we have a mix of countries and the way they are run, significantly influenced by their Spanish or Portuguese legacy. The main problem is the growing and manufacture and the export of drugs and the emigration of people to the USA to get away from poverty. There is no major war ongoing although there have been attempts by some internal factions to take over a specific country for personal gain, which meets with the people’s resistance.

However, China is a large country with a centrally controlled communist regime in charge. In the past 30-40 years, with the passing of Mao Tse Tung and the accession of Deng the strict rigidity of the rules of government were eased and the economy started to grow. As a result, their economy has grown steadily, if not spectacularly at times, albeit from a comparatively low base and is now one of the largest in the world. They are not averse to taking new ideas from the west, sometimes openly but other times by stealth, which is of considerable concern to the west, which have established the norms, rules and rights of business. There was hope in the 1980s that they were changing and welcoming some democratic freedoms, but this altered in 1989 when a student demonstration was brutally quashed at Tienmanman square. The leaders had taken fright, things were getting out of control, and freedoms had to be curtailed and brought back under control. This was also a warning to the western democracies; there was only one way to do business in China and that was the Chinese way.

In 1997, the lease that the UK government held over the territories that encompassed Hong Kong was coming to an end and the territories were due to be handed back. There was some discussion on trying to extend the lease but this was really a non-starter. One of the terms that the British extracted in the departure agreement was that for the first 50 years the conditions which had been set up for the citizens of Hong Kong would be honoured. China agreed to approve the idea of ‘’one country and two systems’’. However, in recent times with Comrade Xi Jaoping feeling that his and the Chinese government’s power is on the increase he could ignore the agreement. There have been unsettling very large demonstrations in Hong Kong as Beijing turns the screw on democratic freedoms, and Hong Kong is brought in line with direct central government policy.

Furthermore, the government is trying to bring the Uighur people, who are of Islamic faith and live in Xinjiang to the west of China, the largest province, into line by brainwashing them. The Uighurs have  been treated to genocide, and are also used, not much better than slaves, to pick Xinjiang cotton, which is a significant and high quality product of this region. This is another worrying example of communist control, as George Orwell highlighted in his book entitled 1984. The UN and the American government have raised the issue strongly, but have been told it is a matter of terrorism!

In the past two decades or so the Chinese have ‘made’ small islands in the South China sea expanding their territorial waters illegally. The ASEAN countries have wakened up to this and showing signs of alarm as China are using these islands as military outposts. In short, they are testing the reaction of the Eastern ASEAN countries, who realistically are not strong enough to resist.  The USA are aware of this and watching carefully. It is still China’s government’s aim that Taiwan, R.O.C., comes under Beijing control.

The Chinese government would appear to have a policy to ensure that the country has the ability to widen its borders and, further afield, to secure by whatever means is most suitable the resources that the mother country requires. This would put it in a very strong position among all nations and supersede the work of past dynasties, justifying its central control. A communist Empire.

The other main country which espouses communism as per Leninism is, of course, Russia, which has always vied with the democracies of the west, unlike China which was rather left on its own, distance being a factor, until recent decades. After Kruschev, in the 1980s there was a time for a modicum of ‘honesty’ from the Russian government. They could not keep up with the economy of the USA with which they were attempting to compete. They released their hold on several European countries, such as Poland, Czechoslovakia and Hungary, and withdrew their border to a north-south line bordering Belarus and Ukraine, Estonia and Latvia and into the Black Sea. They retained a small piece of territory next to Lithuania which gives them a better outlet to the Baltic Sea and recently they took the Crimea illegally to secure a position in the Black Sea.

A few of the ‘freed’ countries have adjusted themselves in the years that have followed, for instance the peoples of Czechoslovakia decided to split along nationalistic lines into the Czech Republic and Slovakia. One has to draw attention to the former Yugoslavia, formed as a country of the southern Slavs, which was not part of the Soviet hegemony, which separated somewhat bloodily into its discrete parts, with the demise of Tito. This was the strongman who emerged from WWII and kept the disparate parts of Yugoslavia together and prevented the Soviets from adding it to the total taken. The countries that evolved from Yugoslavia were Serbia, Croatia, Bosnia Herzegovina and Kosovo.

The European Union has greatly enlarged since these countries became independent, could exercise their freewill, and confirmed their willingness to join the EU after invitation. The bloc now adds up to 27 member states and the centre of gravity which was firmly in the west, has shifted eastward significantly.

Russia has to deal with a significant, admittedly rather unwieldy, EU, as well as the powerful alliance, NATO, The North Atlantic Treaty Organisation, which was set up at the end of WWII to protect the western democracies with the involvement of the USA from any potential aggression of the USSR. Since the partial rapprochement of Russia in its adjusted format, over the past 3 decades, there is much less pressure on NATO. It doesn’t stop Russia trying to meddle with the former countries of the Soviet on their borders. Belarus has a regime that is close to the Russians, not necessarily the will of the people, and Ukraine, while looking west towards the EU, has had to fend off Russian aggression in recent times in which they lost Crimea. In the complex Middle East situation Russia offers support to parties that are opposed to western supported ones, for example Assad’s Syria. But overall, Vladimir Putin’s Russia does not pose as much of a long-term threat as the apparent threat offered by China. There is, from the people themselves, a wish to open up the country. However, this can be expected to take some time; change will be slow.

To return to the east, ASEAN as a bloc, partly modelled on the EU, is still feeling its way. In recent times, the military coup occurring in Myanmar has taken ASEAN by surprise. Their offer to mediate has been firmly rejected at the ASEAN annual meeting. This was to be expected as the military have been involved in actions against some of the Myanmar people almost continuously since Independence and in recent years the military have exercised utmost savagery against the Rohingya people. The country is of great strategic value to China and hence the Myanmarese can rely on their backing. Its value, apart from Myanmar’s considerable resources, e.g. the Jade mines of Kachin province, a nice earner for the military elite, lies in the fact that Myanmar provides a gateway to the Indian Ocean and thence access to China’s significant resources in Africa, where they have been slowly entrenching themselves for the part of half a century.

Looking ahead

Taking note of President Xi’s recent upbeat speech at the Centenary of the Chinese Communist Party, it is clear that the government of China feels confident that they are now in a strong position to push on with expanding their strategic aims. These will be pushed ahead by fair means or foul, honestly or not, by stealth if need be. If anyone dares to oppose them will get a ‘’bash’’ on the head! It is a warning to the western Allies. ASEAN should be concerned about the South China Sea.

Russia, in the next phase, will want to not upset matters too much and be reasonably content to have matters stay as they are. A significant revenue for them is oil supply to the EU. They have a growing mood in the populace that wants more freedom. This will be difficult to resist.

The Middle East has rumbled on for centuries. A solution does not appear to be likely in the short term although the majority of people just want peace so that they may live with a feeling of security. They cannot reach this position because the leaders feel they have some God-given mission to achieve first. There are pockets relatively peaceful, e.g. The Emirates.  

 The Liberal democracies of the west have some internal voices of dissent, but at the moment their biggest problem is dealing with a refugee crisis caused by the Syrian mess, and the peoples coming from Africa running away from poverty. These are all heading for Europe. The other area where there is a significant problem is the southern USA where there is an unrelenting movement of peoples coming from Central and South America, trying to escape poverty and/or poor government.

The problem has become larger in the past half century; the population has tripled without our becoming aware. The CO2, not surprisingly, has also increased which has alarmed some scientists, and the two issues may be related, because we breathe out CO2 as well as significantly use up more resources some of which, in turn, generate CO2. We must remember, however, that carbon dioxide is a building block of life; below 150 ppm the world starts dying, both flora and fauna. The world, whatever political persuasion, communist or democratic, has to take notice of the climate issue which is to be highlighted at the COP26 conference in November this year. It is interesting that the leading countries espousing these opposite forms of government, China and USA, are responsible for 36% of the CO2 output of the world, each of them, so far, shy of taking a leadership role. Will we see much progress on this issue if they don’t take a leadership role?

The Future

Science, building on what came before, has achieved almost unbelievable advances in less than a century. One of the foremost of them was finding the properties of the silicon chip, which led to the computer, becoming commercially available from the 1960s and thereafter aiding all aspects of scientific endeavour. Now we are looking at the digital age, and on into quantum mechanics and artificial intelligence. We have broken the barriers of space and there is a veritable limitless opportunity to be explored.

On the other hand, there are many more of us, 8+ billion as against 3- billion in the 1960s and we haven’t yet resolved the problems of poverty, pollution and paucity of some of our key resources, such as water, or why we have an apparent climate crisis.  The problems have only become bigger, which means the millennial and subsequent generations who will be brought up with the new sciences from a young age will have plenty to do. What sort of government will they have dictated to them or will they resolve a better system that embraces the better points of each, so long as there is adequate freedom of action?  

The world is changing; almost two thirds of its population already live in Asia and there is a shift in the ethnic balance. The United Nations is more important than ever; it has disappointed in not getting involved in a positive and robust way in certain disputes where a form of genocide has taken place, but they are constrained by their remit. Perhaps it requires a change of location from NY to reflect the changing population distribution and a time to review their raison d’etre.  

The new generation have inherited a number of problems but, at the same time, they have the skills and tools to deal with them. One can but hope they do use them and with common sense.

Dr J Scott Younger OBE is a professional civil engineer, and spent 42 years in the Far East undertaking assignments in 10 countries for WB, ADB, UNDP. Published many papers and columnist for Forbes Indonesia and Globe Asia. Served on British & European Chamber boards and Vice Chair of Int’l Business Chamber, for 17 years. His expertise is Infrastructure and Sustainable development and he takes an interest in international affairs.

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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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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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International Law

Artificial Intelligence and International Refugee Law

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Refugee rights are cosmological, binding, blended, co-dependent, and interconnected and constitute the basic structure of international custom [BASIC] encapsulating the national jurisdictions across the world. BASIC thrives on dignity; therefore, the word “refugee rights” can be delineated and defined in a single word–as per my understanding–called “dignity,” as it is the issue of human dignity that we address in refugee rights. Therefore, refugee rights mean dignity, but the same has been further convoluted with the ascendance of Artificial Intelligence (AI) has presented new challenges to human equality in all walks of life. AI has reduced humanity in algorithmic calculations contrary to global human rights norms. AI does not recognize the significance of humanitarianism in its current form. It has envisioned a world of dynamic numerals that do not protect humanity and mitigate human sufferings in the Refugee Status Determination (RSD) procedures.  Algorithmic humanitarianism is an idea suffering from the mechanical, technocratic, and scientific acclimatization of human existence devoid of ethics, justice, and morality. Machine-controlled calculations exclusively adjudicate the RSD procedures and immigration decisions. But the application of AI has also raised a host of issues relating to the data privacy, confidentiality, and use and misuse of data information collected by the governments, organizations, RSD officials, and immigration authorities from the refugees and asylum-seekers migrants, and stateless (RAMS). Such data may be exploited, employed, and maneuvered for geostrategic, geopolitical, geo-engineering, medico-research, socio-economic, and demographical purposes by the global, regional, and domestic institutions and governments. In human rights protection, refugee rights, and immigration decisions, AI has been adversely impacting RSD procedures and immigration judgments across the world.

Algorithmic Humanitarianism

Therefore, algorithmic humanitarianism has presented a compendium of questions than answers. Hence, AI lacks anthropogenic sensitivity, critical thinking, human subjectivity, and objectivity thresholds needed to appreciate the degrees of persecution and discrimination in RSD procedures and immigration decisions in violation of global human rights norms of refugee protection. Thus, there is a need to rummage and ruminate upon these issues by examining AI’s application and assessing the impact thereof on the global human rights norms that sustain humanity and make human existence humane beyond the insight of algorithmic intelligence and discernment. There has to be a human-centric primacy of AI application while positioning refugee equalizers in the ADM Technologies Framework (ATF) for RSD Procedures viz-a-viz international human rights law (IHRL) challenges with the human rights-based approach (HRBA). Further, the equality framework of AI must constitute and advocate that algorithmic humanitarianism must be reprogrammed with new AI technologies impregnated with global human rights norms for sustainable artificial intelligence.

Peremptory acceptance of AI technologies and greater dependence upon AI by both national governments and the private sector and actors have led to growing apprehension regarding the potential adverse repercussions for the core principles of democratic societies like human dignity in diversity, ethical governance, democratic transparency, multicultural accountability, and pluralistic inclusivism. Therefore, there is an indispensable requirement for a framework of global governance to address the full range of societal challenges concomitant with AI inter-alia intimidations to the right to privacy, the right to access to information, the right to equal protection of the law, and the right to non-discrimination during immigration and repositioning of refugees consistent with the existing global human rights framework. Because the emergence of AI is a reality and it has penetrated in the universal institutional life of nation-states, also providing an opportunity for the human mind to utilize it in a manner that conforms and complements global human rights norms while taking into account the Limits of AI Reception, Laxities of AI Recantation, & Luxuries of AI Repercussion.  In the future, artificial intelligence technologies might well substitute humans in the workplace altogether. But at least for the foreseeable future, businesses will derive far more value using AI to augment and enhance existing capabilities than automate away human jobs. All nation-states should establish an independent, empowered body to address all aspects of management and review for all types of ADM technologies employed by the national governments worldwide and put all existing and future AI models in the public domain for their scrutiny.

AI and Refugee Rights Equalizers

The free expression of ideas and opinions, freedom of association, the right to privacy and the right to access to information are digital equalizers for refugee rights in an age of AI propounded and protected within the ambit of IHRL framework such as Universal Declaration of Human Rights (UDHR), UN Covenant on Civil and Political Rights-1966 (ICCPR), UN Covenant on Economic, Social and Cultural Rights-1966 (ICESCR) along with Sub-international Human Rights instruments like AU’s African Charter on Human and Peoples’ Rights. But, unfortunately, these rights have become the pawns of online state surveillance and transgressions facilitated by the gigantic deployment of AI technologies. States have been using AI software against refugee rights defenders, peace activists, human rights journalists, civil society advocates, etc. The speed of technological development empowers individuals globally to utilize novel models of information and communication technologies to elevate the capability of governance structures, commercial establishments and civil society individuals to embark on data surveillance, collection, and an interception. Such steps in a digital age allow the circumvention and abuse of human rights enunciated in Article 12 of the UDHR and Article 17 of the ICCPR that have put a question mark on the future of the right to privacy of individuals, the rights of women, the rights of children, and the rights RAMS.

Moreover, the digital rights and the right to privacy prompted by AI technologies application become more sensitive in the case of the RAMS, particularly if the impact of AI might lead to the detention and deportation of RAMS to their homelands which might put their life at persecution. AI technologies have posed legal, ethical, and social implications for the international community of nation-states to deliberate upon positioning the potential refugee equalizers in the ADM technologies framework for RSD procedures. However, the impact of AI on RAMS and protection regime underscores the risks that AI, algorithms, machine learning, and related technologies may pose to the rights of RAMS, also acknowledging the openings AI technologies offer to augment the accessibility of the rights envisioned in the UDHR and UNCSR. But few questions remain to be answered: What are the positive and negative impacts, risks, and threats of AI technologies for RAMS and their protection rights? What is the legal framework that guarantees RAMS to have access to the Internet and Digital Rights? How does the current legal framework protect the rights of RAMS to access the Internet and their online privacy rights? How can AI enhance the welfare of the RAMS? How could AI make sure RAMS’ access to education? How could AI ethics and policies protect and accommodate RAMS’ rights and mitigate the risks they might face? And what are the predicaments that AI could be abused to circumvent internationally granted rights of RAMS?

The geopolitical ramifications make the challenges associated with Internet sensitive that paved the way for enhanced censorship on social media and other OTT platforms. By banning the websites or resorting to state censorship, the biggest casualty is free speech and privacy. Under such state censorship, online human rights defenders face prosecution and endure persecution at the same time. Unfortunately, IRL instruments do not envisage any reference to the digital or information rights of refugees. However, AI has massive potential to uphold and promote the rights of RAMS; conversely, it can also suppress them. For example, facial recognition technology can be impregnated with AI software to pinpoint and target the RAMS who challenge the repressive asylum regime in host countries and oppose the regime in their countries of origin. AI prognostic propensities might be subject RAMS to arbitrary detention and deportation.

IHRL Obligations

All nation-states must create a special task force (STF) to convene and assemble all ADM scientists & developers, national policy-makers, crucial stakeholders, prominent civil society institutions, educational institutions, and non-governmental organizations to adequately appreciate the actual and potential impacts of ADM technologies on global human right norms. Such steps would lay down the foundations for ethical, moral, and value-oriented dimensions to AI and its application while preserving human rights in RSD and immigration decisions. International refugee law and immigration is a realistic prism that provides a methodology to assess state practices, border control security apparatus and checking measures, global migration governance regime, worldwide criminalization of migration, and surging xenophobia. The RSD and immigration law operate at the intersection of municipal and international law and ensnares global human rights norms and international law. In Genesis, “And God said, let us make man in our image, after our likeness: and let them have dominion over the fish of the sea, and over the fowl of the air, and over the cattle, and overall the earth, and over every creeping thing that creepeth upon the earth. So God created man in his image, in the image of God created he him; male and female created he them.”  Therefore, in the current world order, nation-states have a constitutional scheme to respect international human rights obligations, internet governance with algorithmic transparency in the wake of invoking ADM technologies and their utilization.

ADM Companies and Beyond

Thus, most ADM companies contend with working independently without coordination and collaboration of their initiatives and productivities. It is incumbent upon the UN to lead and bring these companies to one platform while calibrating and coordinating their endeavours in confronting the challenges posed by AI governance. These ADM technology companies must work collectively to ensure that human rights are firmly entrenched in developing, designing, and deploying AI systems worldwide. As ADM technologies evolve and develop, innovative AI governance models have also become crucial for centrally positioning human rights obligations in the AI governance’s operational trajectory. However, it is aptly impressive that all stakeholders and parties privy to the development, employment, and management of ADM technologies must have holistic and critical scrutiny of the actual impacts of AI application and its implications and repercussions on humanity.

Besides regulation, public procurement and standardization should also include human rights principles and rules, thus shaping AI’s future. Public bodies and authorities should require that suppliers respect human rights while designing, developing, and deploying AI technologies that they intend to supply. Finally, AI protocols should be based on technical standards incorporating human rights rules and principles. These standards should be set forth by a collective body with global reach and representing the different sectors of society, including industry, states, civil society, international organizations, and academia.

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