The whole world, owing to coronavirus pandemic, is enveloped in the darkness. It has wreaked havoc on almost all the aspect of human lives. The educational institutions, theaters and cinemas all have been shuttered. Public gatherings, to maintain the social distancing, have been firmly discouraged. Further, the pandemic has significantly modified the media and entertainment consumption patterns. Social lives ventured into digital environment as a result of people being cramped to their homes. People have switched to several sources of entertainment from the comfort of their own homes and over-the-top (“OTT”) platforms have proven to be a major source of entertainment.
OTT platforms have grown exponentially and taken over the industry. OTT platforms expedites streaming of video content over the web. Several OTT platforms such as Netflix, Amazon, Disney Hotstar, Disney+, Apple TV+, Hulu, etc., have primarily ousted the traditional television service. The notification issued by the Central Government of India aimed at getting online media platforms and content on OTT platforms within the jurisdiction of the Ministry of Information and Broadcasting has been making the rounds in recent times. The cabinet Secretariat, on November 9, 2020, released a notification amending the Government of India (Allocation of Business) Rules, 1961. It has incorporated two new entries to the second schedule of the Rules namely Films and Audio-visual programmes provided by online service provider as well as News and Current Affairs. This action is attributed to the fact that there is large amount of an unrestricted content available on the web as well as lack of an adequate regulatory regime in place to protect its users.
Universal self-Regulation code
The Internet and Mobile Association of India (IAMAI) had come up with a Universal self-Regulation code (code) to administer the content available on OTT platforms. The code was primarily adopted by the fifteen OTT platforms namely zee 5, Viacom 18, Disney Hotstar, Amazon Prime Video, Netflix, MX Player, Jio Cinema, Eros Now, Alt Balaji, Arre, HoiChoi, Hungama, Shemaroo, Discovery Plus and Flickstree. SonyLIV and Lionsgate too have recently signed the code. It was manifestly stated in the code that The Information Technology Act, 2000 (IT Act) is the main governing framework when it comes to online content. The values enshrined in Article 19 of India’s Constitution, namely the Right to Freedom of Speech and Expression, direct the internet and material on the internet. A policy for the digital content sector has to be drafted in line with Article 19 of the Indian Constitution i.e. the Right to Freedom of Speech and Expression, and any constraints on the aforesaid right should be fall within the purview of constitutional restrictions set forth in Article 19(2) of the India’s Constitution.
Further, the code had delineated a mechanism pertaining to (i) Age Classification (the code had particularized the certain categories for standardized age classification namely All ages, 7+, 13+, 16+ and 18+) (ii) Appropriate content specification ( a content descriptor appropriate to each piece of content that demonstrates and tells the viewer about the essence of the content while also advising on viewer discretion) and (iii) Access control Tools( to regulate access to content, signatories to the Code may implement technological tools and measures for access control i.e. PIN/Password.) The code had also established the perspicuous grievance redressal and escalation process to lodge complaint regarding non-adherence to specified guidelines. The MIB, however, has repudiated the proposed code since it did not explicitly categorize the prohibited content. Further, there is no independent third-party oversight and a transparent code of ethics. The MIB instructed IAMAI to seek guidance from the Broadcasting Content Complaints Council (BCCC) and the News Broadcasting Standards Authority (NBSA) self-regulatory frameworks.
A public interest litigation was consolidated in October, 2018, before the hon’ble Delhi High court by Justice For Rights Foundation to draught certain guidelines for modulating the content available on OTT platforms. The MIB while filing the counter affidavit stated that digital platforms are not required to procure a license from them to exhibit their content and the same is not controlled by them. The Ministry of Electronics and Information Technology (MEITY) has also mentioned that they do not oversee internet content and there exists no mechanism for monitoring or licensing an agency or establishment that posts content on the internet. Nevertheless, it was claimed that the provisions concerning IT are applicable, and concerned legislative authority having jurisdiction under the aforesaid Act is authorized to take action using the power granted to them under section 69 of the Act which involves directives for interception, surveillance, or data encryption. Further, under Section 67 of the Act there are penalties pertaining to posting or disseminating obscene information in any digital form. Accordingly, the court while dismissing the petition opined that it cannot grant a mandamus for the creation of regulations when the IT Act already contains stringent restrictions and currently the foregoing petition is pending in the hon’ble supreme court.
Positions of the law in regards to film screenings
A film must be certified by the Central Board of Film Certification before it can be displayed or distributed in cinemas or on satellite, and the content is constrained by existing laws. The CBFC was established by the Cinematograph Act of 1952. When it was established, it was designated as the Board of Film Censors. It was amended in 1959 to give it the authority to certify a picture for mass consumption. The Cinematograph Act of 1952, the Cable Television Networks (Regulation) Act of 1995, and the Cable Television Networks Rules of 1994 are among the laws that govern the industry. However, there is no such particular legislation for regulating material on OTT platforms. The government by virtue of Article 19(2) of Indian constitution can impose restrictions on freedom of speech and expressions in the interest of sovereignty and integrity of India, security of state, friendly relations with foreign countries, public order, decency or morality and so on. Consequently, broadcasted content has often been a restricted matter. In K.A. Abbas v. Union of India and Another, the constitutionality of censorship was initially challenged. The hon’ble supreme court has upheld the constitutionality of censorship under Article 19(2) of the India’s constitution and stated that films must be viewed differently from any kind of art and expressions because a motion picture can elicit more intense emotional response than any other product of Art. However, such censorship should not be exercised to imposed an undue restriction on freedom of speech and expression.
The constitutionality of censorship was also disputed in S. Rangarajan v. P. Jagjivan Ram wherein the hon’ble supreme court has held that the board’s criterion for appraising the films must be that of an ordinary man with common sense and wisdom rather than that of a hypersensitive mind. The Moral values ought not to be compromised in the realm of any social change. The concept of “Dharam” should not be disrupted by the immoral norms or standards. However, it does not suggest that censors must embrace a conservative perspective. They should be resilient to social change and go with the topical environment. The film is the most legitimate and significant medium for addressing topics of public concern. The producer has the right to broadcast his own message, which others may or may not concur with. The state, regardless of how hostile to its policies, cannot suppress open debate and expression. The democracy is basically a government by the people based on open debate. The democratic form of administration necessitates citizens’ active and informed engagement in the societal issue.
Furthermore in, Phantom Films Pvt. Ltd. And Anr. V. The Central Board of Certification, it was said that we are governed in a democratic manner. We can’t expect everyone’s head and intellect to be the same in a democracy. Freedom to think and act in a different way is at the heart of democracy. The beauty of democracy is the diversity of viewpoints, ideas, and manifestations. It’s unrealistic to expect everyone to exhibit themselves in the same way. In the film business, new blood is being infused. This new blood is revved up and eager to get their feet wet in the industry. The film business and the general public have embraced such new blood. Their effort has been recognized and praised by the government. These works are predicated on a certain way of thinking that is unique to them. They have their own opinions and ideas on how the film business should operate, as well as how the medium altogether must be managed. Profanity, obscenity, and depravity do not shock human emotions. Such situations and discussions must be seen in their entirety. The narrative must be perused in its totality and thought upon. It is not appropriate to choose a few phrases, lines, conversations, or situations and venture into the board’s resolution. Certainly, the state, and notably the Central Board of Film Certification, cannot attempt to sculpt and dominate public opinion under the guise of purported public interest or audience preference. That would be terrible, as it would hit at the heart of democracy and civil liberty, which are held in such high regard by everybody. The goals of film certification, consequently, cannot be achieved by disregarding the Constitutionally guaranteed right or by fully undermining and disappointing it. A movie has to be watched on its own and judged accordingly. The plot, subject, background, and location in which it is created, the message it aims to express, and the entertainment, among other things, would all have to be assessed using section 5B’s standards.
Should OTT platforms be governed by a code of self-regulation?
Self-regulation is presently the only option available to such platforms in order to maintain the ability to broadcast material without undue censorship. Because unreasonable restriction would impede the creative flexibility of OTT platforms. It will assist platforms in conducting themselves in an ethical and fair manner while also safeguarding the interests of their users. It would protect content producers’ artistic freedom by promoting creativity and upholding an individual’s right to free speech and expression. The general public desires to view the content in its original and untainted state. They strive to understand artwork in its most primitive sense. The fundamental role of government agency is to maintain the fair field, not to inhibit innovation and ingenuity by placing limitations in a tech industry.
Self-regulators’ competence allows them to adjust their regulations more quickly than government agencies in reaction to technological advancement. More significantly, independent of any technological change, the self-regulator is better equipped to decide when a rule should be modified to improve compliance. Self-regulation has the ability to make compliance more appealing. It develops regulations based on an expert’s level of understanding, customized to the specific sector. These rules are viewed by regulated entities as more “reasonable” from the inception owing to their involvement.
The MIB by virtue of the amendment has now can regulate and draught policies regarding digital media and online streaming on OTT platforms. However, such governmental intervention can considerably jeopardize the constitutional right to freedom of speech and expression. The suppression of freedom of speech and expression is what censorships is all about. The freedom of speech and expression suggests that right to manifest one’s thought via words of mouth, writing, picture and any other means. The freedom of speech is one of the most well-known and fiercely protected civil rights against government encroachment. In modern democratic societies, it is generally considered as an essential notion. Every citizen of a democratic nation has the freedom to express his or her opinions on various issues. Thousands of viewpoints are disseminated around the country via various channels. A film director has the freedom to manifest himself and gives effect to his thoughts, even though others may not concur with him. An exhibition of films as well as documentaries cannot be prohibited for purely speculative reasons since prohibiting motion pictures is tantamount to suppressing the right to freedom of expression and speech. Restrictions upon Individual’s freedom of speech and expression must only be permitted if they are required to avert severe harm from being perpetrated. It is critical to have a healthy and extensive amount of free expression in order to assert a thriving and well- functioning democracy. Democracy, otherwise, is obsolete and akin to a totalitarian dictatorship. It should be up to the public to determine what they want to see and what they don’t want to watch. Thus, the cornerstone to safeguarding artistic freedom is a sustainable self-governance paradigm.
 K.A. Abbas v. Union of India and Another (1970) 2 S.C.C. 780
 S. Rangarajan v. P. Jagjivan Ram (1989) 2 S.C.C. 574
 Phantom Films Pvt. Ltd. And Anr. V. The Central Board of Certification 2016 S.C.C. online Bom 3862: (2016) 4 AIR Bom R 593: AIR 2017 (NOC 62) 29
 Id. at 13
 Subhradipta Sarkar, RIGHT TO FREE SPEECH IN A CENSORED DEMOCRACY, UNIVERSITY OF DENVER SPORTS
AND ENTERTAINMENT LAW JOURNAL 62, 84 ,89 (2009)
Will COPUOS five-year mission produce a new “international governance instrument” for outer space resources?
During its 2022 session, the Legal Subcommittee (LSC) of the United Nation’s Committee on the Peaceful Uses of Outer Space (COPUOS) created a Working Group on the Legal Aspects of Space Resource Activity and gave it a five-year mandate to gather information, study the current legal framework, and “assess the benefits of further development of a framework for such activities, including by way of additional international governance instruments.” (emphasis added). A survey was sent to the LSC’s member states and official observers, with a response due by December 30.
Fifteen member states and five non-governmental official observers responded to the surveys. The responses were recently posted online by the United Nations Office on Outer Space Activities (UNOOSA), the parent body of COPUOS. This article will look at eight of them: three from states representing the range of international opinion, and all five of the observers, who represent part of “civil society”.
The Working Group Mandate: Address Unresolved Space Resource Issues
COPUOS-LSC gave its Working Group the following mandate (emphasis added):
The Working Group shall:
(a) Collect relevant information concerning activities in the exploration, exploitation and utilization of space resources, including with respect to scientific and technological developments and current practices, taking into account their innovative and evolving nature;
(b) Study the existing legal framework for such activities, in particular the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, and other applicable United Nations treaties, also taking into account other relevant instruments, as appropriate;
(c) Assess the benefits of further development of a framework for such activities, includingby way of additional international governance instruments;
(d) Develop a set of initial recommended principles for such activities, taking into account the need to ensure that they are carried out in accordance with international law and in a safe, sustainable, rational and peaceful manner, for the consideration of and consensus agreement by the Committee, followed by possible adoption by the General Assembly as a dedicated resolution or other action;
(e) Identify areas for further work of the Committee and recommend next steps, which may include the development of potential rules and/or norms, for activities in the exploration, exploitation and utilization of space resources, including with respect to related activities and benefit sharing.
The establishment of the Working Group and its mandate is significant. It represents a consensus acknowledgement that the Outer Space Treaty (OST) does not adequately address space resource activity and how the benefits of outer space are to be shared. It is also the first time since the 1970’s that member states of COPUOS have been willing to consider a new “international governance instrument” beyond non-binding principles and recommendations (e.g., the COPUOS long-term sustainability guidelines of 2019).
The Working Group has a five-year work plan. During initial setup in 2022, it was instructed to gather information from the members of the LSC to help establish the scope of its work. To that end, a survey was distributed to all member states and official observers, inviting a response to the following topics (emphasis added):
– The type of space resources that fall within the mandate and scope of the Working Group.
– The type of activities that fall within the mandate and scope of the Working Group.
– The type of information to be collected by the Working Group in accordance with its mandate.
– The views of States members regarding the existing legal framework for space resource activities.
– The current practices and challenges in the implementation of the existing legal framework for such activities.
– The benefits and challenges to the development of a framework for such activities.
– The relevant factors for the development of a set of initial recommended principles for such activities.
– The format, agenda, topics and other details of the dedicated conference (currently) scheduled for 2024.
– Any other background or information paper, or any other views, that States members may wish to share.
Responses of Representative States: Luxembourg, Russia, and Australia
Luxembourg is a member of the European Space Agency and one of the first signers of the Artemis Accords. It is the second country (after the United States) to pass a national law authorizing its own nationals (including corporations headquartered there) to remove and take ownership of outer space resources. A sample from its response:
Luxembourg considers that the Artemis Accords, as well as the Building Blocks of the Hague Working Group, constitute a valuable contribution to the discussions in international fora, especially the UN COPUOS.
According to the Luxembourg legislator, space resources are now commonly defined as abiotic resources that are in situ in outer space and can be extracted. This notion includes, for example, mineral resources and water, but not orbital positions or frequencies.
Luxembourg ratified the Outer Space Treaty, the Liability Convention and the Registration Convention and is in the process of accessing the Rescue Agreement. Luxembourg has not signed the Moon Agreement. The international space treaties have not yet been tested with regard to the rights over resources found in space. Most of carried missions have taken place for scientific purposes. However, for the sustainability of future deep space exploration, for commercial space projects and space mining to be viable, future explorers and investors will need certainty regarding their rights to the materials they find.
It seems essential that the Working Group, especially when formulating the set of initial recommended principles, is driven by adaptive governance principle and focuses on the most pressing issues. The highest priority is the recognition of individual rights over space resources, mechanisms for avoiding harmful interference and for the establishment of safety zones.
Russia is a fully “spacefaring” country, with the capacity to launch payloads and humans into outer space and send probes to the Moon and planets. It has not signed the Artemis Accords nor passed a national law authorizing private ownership of space resources. From their response:
Space resources include celestial bodies, spaces and territories of celestial bodies, mineral resources, liquids and gases located on them, various types of radiation, orbital-frequency resource, and other objects. . . . Due to the fact that the necessary legal framework for research and study of certain types of space resources, such as solar energy and the orbital frequency resource is available or not required, it is advisable to exclude these types of resources from the scope of the Working Group while referring to them in the classification system.
An important task of the Working Group is also to develop a monitoring mechanism for activities related to the exploration and utilization of space resources, which may include:
– issues of establishing responsibility when implementing the said activities;
– monitoring compliance with established international standards regulating the extraction of space resources, as well as control over the lawfulness of such operations;
– control over the organization of licensing of activities related to the exploration, exploitation and utilization of space resources;
– an algorithm for resolving conflicts and disputes between actors engaged in the extraction and utilization of space resources, an algorithm for international consultations between states;
– a mechanism for informing the international community (including the obligation to inform the UN Secretary-General) of the nature, progress, locations, and results of such activities;
– consideration of the feasibility of establishing a special international body responsible for securing the regime of the utilization of space resources (by analogy with the ITU, the International Seabed Authority).
A space resource, even after its extraction (removal), does not lose its unique natural extraterrestrial origin, unlike a resource mined on Earth. The transformation of space resources, in particular their extraction and, as a result, the acquisition of a natural-anthropogenic nature, does not give rise to ownership of these resources. However, the national legislative initiatives of certain States vest their non-governmental persons, citizens and entities with the right to mine, appropriate, own, transport and sell the mineral resources of celestial bodies, including asteroids. But the national law of any State cannot extend to territories outside its jurisdiction.
Thus, it is necessary for the Working Group to determine a mechanism for prioritizing missions and the number of admissible missions in the light of the physical characteristics of the celestial body and to consider the issues of the avoidance of the depletion of extraterrestrial resources and conservation of the space environment, among other issues.
Australia is unique among the world’s space powers: it has ratified the Moon Agreement and signed the Artemis Accords. Steven Freeland of Australia has been named vice-chair of the Working Group (Andrzej Misztal of Poland is the chair). Here is part of its response as it tries to straddle two worlds:
Australia considers that the type of space resources and activities that fall within the mandate and scope of the Working Group may include:
– Activities contemplated by the five United Nations (UN) treaties on outer space;
– Activities and definitions contemplated by the Hague International Space Resources Governance Working Group on the Building Blocks for the Development of an International Framework on Space Resource Activities, including definitions for the terms ‘space resource’ and ‘space resource activities’;
– Activities contemplated by national agencies, including the Artemis program;
– Activities contemplated through States Members’ policies, including NASA’s Lunar Landing and Operations Policy Analysis and the European Space Agency’s Space Resources Strategy.
Australia is party to the five UN treaties on outer space and is committed to meeting its international obligations. Australia is also committed to contributing to the development of norms that ensure the long-term safety, stability and sustainability of the outer space environment. The activities of States in outer space are also guided by a number of non-binding instruments. Despite not holding the status of law, Australia recognises that these non-binding instruments indicate the intentions of signatory States as to their conduct in outer space.
Australia does not consider that Article II of the Outer Space Treaty prohibits ownership of resources extracted or removed from the Moon or other celestial bodies. However, ensuring compliance with Articles I and II of the Outer Space Treaty requires some understanding of the elements of those obligations or ways of satisfying them in the context of space resource activities, and the Working Group may like to give consideration to this issue.
In Australia’s view, the establishment of an international regime governing exploitation of the Moon’s natural resources consistently with Article 11(5) [of the Moon Agreement] would permit and facilitate space resource exploitation in a rational, safe and equitable manner, providing a means by which the exploration and use of outer space can be carried out for the benefit and in the interests of all countries.
Response from Observers (“Civil Society”)
Six Observers responded to the survey. One of those, the European Space Agency, is an inter-governmental organization. The other five are non-profits, part of “civil society” (“any non-profit, voluntary citizens’ group which is organized on a local, national or international level”) that gives voice to stakeholders. Here is a sample of their responses, in alphabetical order:
For All Moonkind is focused almost exclusively on the preservation of historic/cultural landing sites from the early years of lunar exploration. Their position is that any resource agreement must include protection of such sites:
Culture is who we are, where we have been and where we are going. It is what shapes our identity as humans. In short, development cannot be sustainable without culture. Moreover, cultural heritage protection is a mainstay of intergenerational equity. The protection and preservation of human heritage recognizes those who came before us, protects the gains of our civilization and allows future generations to learn from both their processes and results.
As the Working Group considers the legal aspects of space resource activities, it must address the impact those activities will have on cultural heritage and use the universality of heritage to achieve consensus.
Zones could be established to manage, and hopefully prevent, conflict, starting with proposed heritage protection zones. For All Moonkind also suggests that the first Coordination Zones can be implemented immediately, to recognize and protect human heritage on other celestial bodies. We believe that international community will be more willing to reach agreement regarding the protection of a site of universal value, as opposed to the operative site of a State or private company.
The Moon Village Association is an umbrella organization that facilitates the work of many groups and individuals. Its response* highlights sharing the benefits of outer space exploration and development. Although it stopped short of calling for mandatory benefit sharing, it did call for consideration of benefit sharing at every level of decision-making:
It is the sense of this Working Group that benefit sharing as a desirable feature in the context of international and space law, is in the process of maturing into a more consequential working theme, whose consideration should be deemed mandatory at relevant legal and operational levels, in the same vein as all relevant factors reviewed in this recommendation should be considered mandatory.
This said, it is also the sense of this Working Group that no benefit sharing first principles and specific mechanisms may manifest unless access issues have been resolved in close concertation with key operators and strongly invested stakeholders.
Specific mechanisms need to be considered simultaneously to legal and operational clarification, in the context of space resources utilisation, of non-exclusionary forms of priority and property rights intended to enable investment and operations to proceed.
While remaining aware of the fact that without economic sustainability there is neither sustainability nor access to and sharing of benefits, it is nonetheless the sense of this Working Group that, without a broad and inclusive debate on measures to mitigate future inequalities that may result from lack of sufficient consideration of access and benefit sharing issues, it would become considerably more difficult to assert international legitimacy in defining above specific legal and operational mechanisms.
The National Space Society was formed in 1987 by a merger of the National Space Institute with the L-5 Society. It generally supports the private sector and discourages regulation:
Notably, there are four factors most relevant to the development of a set of initial recommended principles: 1) the mitigation of harmful impacts and interference; 2) the need for economic incentives and clarity in benefit-sharing; 3) recognition of resource rights regardless of domestic or international implementation; and 4) the dissemination of data.
First, the mitigation of harmful impacts and interference speaks to the impacts of ISRU [In Situ (in place) Resource Utilization] activities and external interference upon ISRU activities. The protection of international cultural heritage sites in outer space should be paramount regarding ISRU impacts. . . . As humanity transcends into the solar system, the protection of how we progressed is important historically, culturally, and inspirationally.
Second, the current void of governance has contributed to a lack of investment in ISRU because of uncertainty within the legal field and the calls for monetary benefit-sharing. The recommended principles should incentivize investment by clarifying that benefit-sharing ought not to be compulsory monetary benefit-sharing but rather encouragement of enabling and promoting the development of technology, capabilities, and education; particularly in developing countries. Benefit-sharing could also take the form of an international fund to assist in the above-mentioned actions and bolstering the ever-necessary UN SDGs [sustainable development guidelines]. Clarity with the intentions of benefit-sharing is likely to incentivize economic activity to develop ISRU further.
This leads into the third and fourth factors of resource rights and data dissemination. In order for ISRU to further the human experience to outer space, the right to utilization is necessary. Thus, legitimate resource rights provided through legal processes should be recognized regardless of their domestic or international implementation. This would also incentivize economic investment. Lastly, the dissemination of data related to the type and amount of resources discovered and/or extracted should be considered. This is significant because as data becomes available regarding the amount of resources in varying places, it can create clearer methods of governance.
The Open Lunar Foundation is “committed to enabling peaceful, cooperative lunar settlement for the benefit of all life.”
The recovery, exchange and use of natural resources have always been foundational to the development and maintenance of any human society. Yet history also shows that uncoordinated access can create conflict and unfettered development can grow to the detriment of people, places and intentions. As humanity seeks to establish new roots in the vastness of space, the technical, economical and legal ability to make use of available natural resources will thereby play a crucial role in determining our failure or success.
In polycentricity, a shared set of goals and institutions empowers local management by semi-autonomous decision makers. Polycentricity leverages localized synergies and deep system knowledge for high social-ecological and governance congruence. Through subsidiarity and diversity, polycentric governance enables institutional experimentation and exchange in uncertain and complex environments. In a polycentric lunar governance system, the different lunar resource systems can be managed locally and individually while conforming to universal norms and principles such as transparency, sustainability, peace, cooperation, and justice.
Create a Catalog of Scarce Resources: Not all space resources are equally accessible or exist in large quantities. Specific resources or regions may be affected by inherent conditions of scarcity, such as the “peaks of eternal light” at the lunar poles or the “radio quiet zone” on the far side of the Moon. To ensure appropriate management regimes, we recommend developing and updating a living list of resources and regions involving conditions of scarcity. States, operators and other interested stakeholders should involve themselves in this definitional process and publicly commit to recognizing and respecting the list.
Scaffolding Towards Shared Frameworks: Wishing to ensure that emerging lunar regulations truly enable a plurality of societies, parties and activities, while not over-specifying institutional structures based on past approaches, a foundational document could be adopted which focuses on guiding principles and shared agreements rather than specific resource management and coordination approaches. Such a document could emphasize commitment to peace, cooperation and accessibility while protecting the ability for adaptive learning and evolution.
The Space Generation Advisory Council submitted itsE.A.G.L.E. report from May 2021 in lieu of a specific survey response. The particulars of “Effective and Adaptive Governance for a Lunar Ecosystem” are too long to summarize (see list below). In general, it calls for a new international “charter”:
The regulatory tools devised in UNCOPUOS seemingly follow a life span of roughly 20 years. Treaties, principles, and guidelines each characterised two decades of international space diplomacy by providing a reference narrative for the community. After long reflection, we realised that the narrative of the next two decades could be captured by charters. With this term we refer to a legal document enacted to define the essential features and boundaries of a legal framework through the solemn commitment of its signatories. Examples of famous charters used in this sense include the Magna Carta Libertatum, the Charter of the United Nations and the Charter of Fundamental Rights of the European Union.
Suggested Topics for a Lunar Governance Charter
– Fundamental Principles of Space Law
– Guiding Principles for a Lunar Governance Charter
– Human Life Protection
– Heritage Preservation
– Science / Business Balance
– The Use of Lunar Resources
– Safety Zones
– Liability & Registration
– Minimum Coordination
– Conflict Resolution
At the E.A.G.L.E. Team, we value the ability to unite and converge above everything else. When we set foot to initiate the development of this document, our main goal was to provide a contribution that could simultaneously increase the value of all others by providing them with meaningful opportunities to be expressed. We wanted to inspire global actors and catalyse international discussions on the exploration and use of the Moon. With this purpose in mind, we birthed the idea of a Lunar Governance Charter as a shared narrative that could frame the global debate on lunar governance within pragmatic but also idealistic terms. Structured in the way presented in Section 3, we believe that a Lunar Governance Charter could constitute a useful reference framework for the evolution of adaptive governance.
The responses from member states and observers show a wide spectrum of opinion concerning “additional international governance instruments”. Some do not want any additional rules unless they confirm private property rights and protect space resource activities. Others would require any space resource activity to be approved by an international authority, like the International Seabed Authority in the UN Convention on the Law of the Seas. In between are those who do not want a new authority but do want a new international agreement that will protect essential public policies while providing legal support for private activity. That agreement might be a stand-alone treaty, like the other UN space treaties, or it might be part of the Moon Agreement as an Article 11 resource agreement.
There is also a spectrum concerning what public policies should be protected. Most would agree on protecting heritage sites, but does that include every track mark by every rover? To what extent do we share information and technology? As for protecting activities, how can safety zones or priority rights be structured so that they are not prohibited exclusive claims? In general, how can we maximize sharing the benefits of outer space while still establishing mechanisms that promote economic sustainability?
The next five years may well produce a new international agreement that will guide the nations of Earth as we begin to leave the home world. Without one, we might repeat the mistakes of the Age of Imperialism, when powerful countries battled for control of distant resources, causing centuries of war, suffering, and neglect. Humanity has a chance to start over, and the new COPUOS working group might be the best vehicle for doing so. For this year’s meeting dates and other information about COPUOS and the Legal Subcommittee, click here.
* MVA’s response was primarily written by Suyan Christina Malhadas and the Space Law and Policy Research Group of the Catholic University of Santos, Brazil, with contributions from members of MVA’s Adaptive Governance Working Group, including this author.
Shaping a 21st-century world order amounts to a patchwork
What do Moroccan arms sales to Ukraine, a transnational Russian Iranian transit corridor, and US assistance in developing a Saudi national strategy have in common?
Together with this week’s Russian-Iranian financial messaging agreement and Chinese President Xi Jinping’s December visit to Saudi Arabia, they are smaller and bigger fragments of a 21st-century world order in the making that is likely to be bi-polar and populated by multiple middle powers with significant agency and enhanced hedging capabilities.
So is the competition between rival US and Chinese technologies for which the jury is still out.
For the two likely dominant powers, the United States and China, the building blocks are efforts to line up their ducks in a bipolar world.
For Russia, they involve hanging on to its pre-Ukraine war status, in part by deploying its Wagner Group mercenaries to the Sahel; devising ways to circumvent sanctions; and hoping that time will work in its favour in what was supposed to be a blitzkrieg but has turned into a drawn-out slugging match.
For middle powers, the name of the game is carving out their own space, leveraging their enhanced influence, and seeking advantage where they can.
The result is that weaving the 21st century’s tapestry amounts to a patchwork in which some fragments will have long-term effects while others may not even register as a blip on the radar.
Take, for example, Morocco’s decision to give Ukraine some 20 refurbished Russian-made T-72B battle tanks. The deal made Morocco the first African, if not the first Global South nation, to militarily aid Ukraine.
The move, almost a year into the Ukraine war, is likely to have been motivated by short-term considerations, including Russia’s close ties to Morocco’s arch-rival Algeria and US recognition of Morocco’s claim to the formerly Spanish Western Sahara, rather than long-term 21st-century world order considerations.
Even so, Morocco’s breaking ranks with much of the Global South serves the US goal of sustaining the current world order in which it is the top dog, even if its power diminishes.
It doesn’t fundamentally affect China’s goal of rebalancing power in the existing order to ensure that it is bi- rather than unipolar.
The loser in the deal is Russia, which, like Iran, wants to see a new world order in which the United States is cut down to size.
The tank deal may not be a significant loss for Russia, but it does suggest that horse trading is a critical element in weaving the fabric of a new order.
So is mutual interest.
Like the arms sale, the agreement between Russia and Iran to create a financial messaging system that would allow their banks to transfer funds between one another and evade sanctions that block their access to the global SWIFT system is unlikely to have a major impact on the structure of the new world order.
Russian and Iranian efforts to link Europe with the Indian Ocean, centred on 3,000 kilometres of rail and sea and river shipping, are potentially far more significant.
The transport corridor would help reshape trade and supply networks in a world that seems set to divvy up into rival blocs. Moreover, it could shield Russia and Iran from US and European sanctions as they forge closer economic ties with fast-growing economies in Asia.
Russia and Iran are not just looking at India, which sits at one extreme of the corridor.
They also expect to capitalise on their links to China. All three are members of the Shanghai Cooperation Organisation (SCO), and China and Iran are close to becoming members of the Russia-dominated Eurasian Economic Union (EEU) free trade zone.
Of a similar potential impact on a future world order is US assistance in Saudi Arabia’s development of a first-time-ever long-term vision for the kingdom’s national security, an essential building block in Crown Prince Mohammed bin Salman’s effort to modernize his military.
Saudi Arabia expects to disclose its strategy later this year. It would codify “the kingdom’s strategic vision for national security and regional security,” according to Gen. Michael “Erik” Kurilla, the top commander of US forces in the Middle East, who is advising his Saudi counterparts.
Shaping Saudi strategy as well as military modernization may be the United States’ best bet to imbue at least some of its values and complicate the establishment of similar defense ties with China or Russia. Moreover, it would enhance the kingdom’s ability to absorb and utilize US weapons systems.
“The Saudis, under MBS’s (Mohammed bin Salman’s) leadership, now recognize (their) deficiencies and seem, for the first time, determined to address them in partnership with the United States and to a degree with the United Kingdom,” said political-military analyst and former Pentagon official Bilal Y. Saab.
That will undoubtedly register on the geopolitical chessboard, even if small moves also count for something.
Undemocratic United Nations and Global Peace
War is not the solution to any problem rather war is a problem itself. Many countries believe in diplomacy and peaceful means of problem-solving and conflict resolution. But, unfortunately, many nations still seek solutions of problems and continuity of politics in wars.
If we look at any newspaper, we find too many armed conflicts going on around the globe. To name a few would include a catastrophic war between Russian Federation and Ukraine which has caused tens of thousands of casualties, with millions displaced. Decades-long civil wars and subsequent US-led NATO intervention and withdrawal has brought Afghanistan to the brink of famine and hunger. The whole Middle Eastern region is unstable and striving with civil wars for long. The Arab -Israel conflict and Kashmir Dispute have been there for more than seven decades.
Above-mentioned and many others examples of armed conflicts prove that there is no durable peace in the world. Here one thing that needs to be noted is that conflict is always inevitable among individuals, societies and nations, because the interests of individuals, societies and nations do not always converge. When there is divergence of interests, conflict arises.
What is needed to be done is the resolution of these conflicts. There are two ways to resolve conflicts: one is violent way (use of force) and the other is peaceful way (diplomacy and negotiations). More than seven decades ago, after World War 2, nations realized that war is not solution to any problem and they established United Nations Organization (UNO). Primary objective of UN was and is the maintenance of peace and security in the world.
But, if we look at history, it seems the UN has failed to achieve international peace and security. UN may have had role in preventing the outbreak of another world war, but it could not stop a series of conflicts from Korea, Vietnam to Afghanistan (during Cold War), and from Africa, Middle East to ongoing Russian-Ukraine conflict.
This is a question mark on the credibility of UN, that why the UN despite being guardian of international peace and security cannot stop wars.
UN has six principal organs and many Specialized Agencies and Funds for different tasks. Among them Security Council is the most powerful Organ and is mandated with enforcing international peace and security. UNSC uses two tools to enforce its decisions, one is applications of sanctions and the other is use of force (intervention).
However the concentration of power in the hands of five permanent states of Security Council, namely the United States, United Kingdom, France, China and Russia have been problematic. These five countries use veto power whenever they perceive any resolution to be against their national interest or against the interests of their allies. Throughout the Cold War, US and USSR had paralyzed UN by vetoing resolutions. Same happened with any other conflict including when US drafted a resolution to stop the war in Ukraine.
So, it is crystal clear that if UN (specifically Security Council) is not reformed, UN can not achieve its primary goal i.e. maintenance of peace and security. UN members and experts have talked about reform in Security Council. Experts have also given suggestions and proposals to make UN more democratic and representative. One of those proposals is abandoning veto and doubling the size of SC members. This can make UN more democratic and representative to some extent. But this is not an easy job. Firstly, because P5 are reluctant to abandon this privileged position (veto power). Secondly, countries hoping for permanent membership are opposed by other countries. For example, many European countries object Germany’s membership. Pakistan objects to India’s membership.
Experts believe the solutions could be the democratization of UN system (particularly UNSC). This is done by involving General Assembly in the decision making regarding international peace and security. General Assembly is a symbol of democracy, representing almost all the states on the globe. Simple or two-third majority must be mandatory to make any decision regarding international peace and security. This could stop any powerful state to use UN as a tool for its own vested national interest , and the decision of majority will prevail. All the states, big and small, powerful and weak will have equal say in the UN. Otherwise the possibility of wars, violence, genocide and injustice will further increase.
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