The question of privacy arises most notably with the Aristotelian distinction between the public sphere of governance and its separation from the private sphere of individuals concerning domestic life and family. Other than in philosophical discussions, the concept has a wide range of interpretation in many cultures.
Some interpretations might seem quite obscure and deal with moral relativism, as in how personal possessions might form different sorts of consensus depending on the degree and nature of social interaction in different societies. Although the advent of modernity has led to the proliferation of a norm-based approach to society based on the hierarchical set-up, which tends to universalize a society before traditionalizing it, privacy still remains an issue with obscure definitions.
It is only in the formal space that privacy is somewhat clearly defined, as in the case of information in a public forum that may or may not be private. In the informal space is still difficult to define the concept and much is dependent on interpretations and value judgments, such that no universal law can substantively be applied to all cases.
The law in India does not provide for a clearly demarcated right to privacy, and includes it as a limited right under the various rights provided in the Constitution. The right exists, but is burdened with numerous reasonable restrictions that prioritize national interest, foreign policy, national security, law and order, public morality, contempt of court, defamation and incitement to offences as under Article 19(2) of the Constitution.
As per the law, the state reserves the right to withhold the right to privacy if there is an issue of national interest superior to it. The right is also based on consent, such that the right is provided to those who voluntarily demand it, unless there are compelling state interests. The court however, recognizes the right against the government in certain cases, especially if other fundamental rights have been undermined in cases with no compelling state interest.
Privacy thus is defined in the law in India in purely formal terms, and personal privacy can frequently come under the lens of the state’s interests and in the interests of other legal obligations and rights. What the law is unable to clearly define is the right to personal privacy.
Personal privacy, the anthropologist Clifford Geertz would argue, cannot even be based on cultural norms. In his work ‘The Interpretation of Cultures’ (1973), Geertz argues that culture does not determine human behaviour but rather is the context that provides a thick description. Geertz held that the study of culture is not one of an experimental science concerning laws but of an interpretive science in search of understanding. There can thus be patterns of behaviour but not behaviour itself, in that there cannot be objective wholes in human behaviour but rather subjective inferences that require documentation.
Schoeman in 1984 took up the question of the cultural relativism and formed two methods of interpreting this. In the first method, the question is asked as to whether the issue concerning privacy is universal or is it subject to cultural differences. The other method questions whether some aspects of human life are inherently private and others not so just conventionally (J. De Cew, 2013).
While society and culture can be a reference for prescribed modes of behaviour, the requirements of privacy imply autonomy in behaviour. Individual privacy thus mutates against any prescribed form of conduct such that an individual defines the self by oneself. The question thus is one of individual autonomy and its interface with society. The concept can be defined thus at multiple levels, one of the larger society, another of culture, and another at an individual level. Ideally, at no point can one level be prioritized over another.
Historical Antecedents
After early summations in Aristotle’s notion of a separation between the public sphere and the private sphere, as a concept has proved notoriously elusive. Although historically the discussion is not uniform, treatises on the concept began to surface after privacy was defined under the law in America on moral grounds since the 1890s.
While some inferences looked at privacy morally, others treated it as a legal issue. Some arguments have even attempted to deny privacy while others have talked about the distinctions offered in motions around privacy.
In the second half of the 20th Century, philosophical discussions greatly proliferated as privacy laws were becoming more refined. Privacy in this period increasingly became defined in terms of information as the control over information of an individual or entity over the self.
When privacy was not defined in terms of information, it would usually be discussed with a concern towards human dignity and human rights. Privacy was also increasingly seen in terms of control over the access that others might have over an individual.
However, despite the need to respect individual autonomy, privacy also began to be seen in terms of its negative side. In this people with control over access to privacy could under the cloak of privacy protection, indulge in undesirable and illegal activities without any accountability.
This aspect has been a dominant feature among journalists, human rights activists, feminist thought, and alike that tries to lift the facade and install accountability among those with control over privacy. The dominant mode of discussion in contemporary times has been one of the influx of technology and the resulting expansion of the domicile under which privacy can be interpreted.
Technology and Privacy
Marshall Mc Luhan, the media theorist, referred to media technology as a prosthetic extending out from the human body (Mc Luhan, 1964). As technology continuously expands the minimum scope for human interaction, as its prosthetic of interaction, the more are the lines going to get blurred between the public and the private.
The prosthetic shapes an individual’s interaction with the objective reality of the habitat he inhabits, and is one that is the logical realization of the environment he inhabits. Media technology exists in terms of a mirror to the individual and is an extension of the self in a public substance. Technology thus mediates an individual’s psychological profile as the prosthetic of interaction by re-enacting the individual’s interaction in the media technology’s own formal configurations.
Later in the 20th Century, the Fourth Amendment in the US legally undertook to protect individuals from electronic surveillance and wiretaps. The massive amounts of information available in digital format makes many individuals suspicious of the role of technology in invading personal privacy.
Previously clandestine operations such as Carnivore by the FBI and Echelon as a global satellite network that preyed on digital interactions have been uncovered that add to the suspicion among individuals over the technological assimilation of privacy. Technology here takes control over access to privacy away from the autonomous individual and places it at the hands of specialists.
Technology thus acts to re-enact individual interaction and re-configures it according to its own forms on the basis of control over access. The continuous progress and innovation in technology makes it extremely difficult for legal definitions to be assigned to the evolving interactions.
Seemingly benevolent technological apparatus such as tracking technology in use by medical researchers can be a tool for more malevolent intent. The greatest problem with this situation is the inability of legal apparatus to be updated with new developments. Given how the concept is based on individual autonomy, should not the legal apparatus at least protect privacy in this definition?
Without this definition, and the accompanying corpus of rights, the concept shall continue to be an issue ill defined in modernity. Thinking must move ahead from defining privacy only in terms of its interaction with laws and the society at large to define it also in terms of culture and individual autonomy.
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The United Nations has shaped so much of global co-operation and regulation that we wouldn’t recognise our world today without the UN’s pervasive role in it. So many small details of our lives – such as postage and copyright laws – are subject to international co-operation nurtured by the UN.
In its 75th year, however, the UN is in a difficult moment as the world faces climate crisis, a global pandemic, great power competition, trade wars, economic depression and a wider breakdown in international co-operation.
Still, the UN has faced tough times before – over many decades during the Cold War, the Security Council was crippled by deep tensions between the US and the Soviet Union. The UN is not as sidelined or divided today as it was then. However, as the relationship between China and the US sours, the achievements of global co-operation are being eroded.
The way in which people speak about the UN often implies a level of coherence and bureaucratic independence that the UN rarely possesses. A failure of the UN is normally better understood as a failure of international co-operation.
We see this recently in the UN’s inability to deal with crises from the ethnic cleansing of the Rohingya Muslims in Myanmar, to civil conflict in Syria, and the failure of the Security Council to adopt a COVID-19 resolution calling for ceasefires in conflict zones and a co-operative international response to the pandemic.
The UN administration is not primarily to blame for these failures; rather, the problem is the great powers – in the case of COVID-19, China and the US – refusing to co-operate.
Where states fail to agree, the UN is powerless to act.
Marking the 75th anniversary of the official formation of the UN, when 50 founding nations signed the UN Charter on June 26, 1945, we look at some of its key triumphs and resounding failures.
Five successes
1. Peacekeeping
The United Nations was created with the goal of being a collective security organisation. The UN Charter establishes that the use of force is only lawful either in self-defence or if authorised by the UN Security Council. The Security Council’s five permanent members, being China, US, UK, Russia and France, can veto any such resolution.
The UN’s consistent role in seeking to manage conflict is one of its greatest successes.
A key component of this role is peacekeeping. The UN under its second secretary-general, the Swedish statesman Dag Hammarskjöld – who was posthumously awarded the Nobel Peace prize after he died in a suspicious plane crash – created the concept of peacekeeping. Hammarskjöld was responding to the 1956 Suez Crisis, in which the US opposed the invasion of Egypt by its allies Israel, France and the UK.
UN peacekeeping missions involve the use of impartial and armed UN forces, drawn from member states, to stabilise fragile situations. “The essence of peacekeeping is the use of soldiers as a catalyst for peace rather than as the instruments of war,” said then UN Secretary-General Javier Pérez de Cuéllar, when the forces won the 1988 Nobel Peace Prize following missions in conflict zones in the Middle East, Africa, Asia, Central America and Europe.
However, peacekeeping also counts among the UN’s major failures.
2. Law of the Sea
Negotiated between 1973 and 1982, the UN Convention on the Law of the Sea (UNCLOS) set up the current international law of the seas. It defines states’ rights and creates concepts such as exclusive economic zones, as well as procedures for the settling of disputes, new arrangements for governing deep sea bed mining, and importantly, new provisions for the protection of marine resources and ocean conservation.
Mostly, countries have abided by the convention. There are various disputes that China has over the East and South China Seas which present a conflict between power and law, in that although UNCLOS creates mechanisms for resolving disputes, a powerful state isn’t necessarily going to submit to those mechanisms.
Secondly, on the conservation front, although UNCLOS is a huge step forward, it has failed to adequately protect oceans that are outside any state’s control. Ocean ecosystems have been dramatically transformed through overfishing. This is an ecological catastrophe that UNCLOS has slowed, but failed to address comprehensively.
3. Decolonisation
The idea of racial equality and of a people’s right to self-determination was discussed in the wake of World War I and rejected. After World War II, however, those principles were endorsed within the UN system, and the Trusteeship Council, which monitored the process of decolonisation, was one of the initial bodies of the UN.
Although many national independence movements only won liberation through bloody conflicts, the UN has overseen a process of decolonisation that has transformed international politics. In 1945, around one third of the world’s population lived under colonial rule. Today, there are less than 2 million people living in colonies.
When it comes to the world’s First Nations, however, the UN generally has done little to address their concerns, aside from the non-binding UN Declaration on the Rights of Indigenous Peoples of 2007.
4. Human rights
The Human Rights Declaration of 1948 for the first time set out fundamental human rights to be universally protected, recognising that the “inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world”.
Since 1948, 10 human rights treaties have been adopted – including conventions on the rights of children and migrant workers, and against torture and discrimination based on gender and race – each monitored by its own committee of independent experts.
The language of human rights has created a new framework for thinking about the relationship between the individual, the state and the international system. Although some people would prefer that political movements focus on ‘liberation’ rather than ‘rights’, the idea of human rights has made the individual person a focus of national and international attention.
5. Free trade
Depending on your politics, you might view the World Trade Organisation as a huge success, or a huge failure.
The WTO creates a near-binding system of international trade law with a clear and efficient dispute resolution process.
The majority Australian consensus is that the WTO is a success because it has been good for Australian famers especially, through its winding back of subsidies and tariffs.
However, the WTO enabled an era of globalisation which is now politically controversial.
Recently, the US has sought to disrupt the system. In addition to the trade war with China, the Trump Administration has also refused to appoint tribunal members to the WTO’s Appellate Body, so it has crippled the dispute resolution process. Of course, the Trump Administration is not the first to take issue with China’s trade strategies, which include subsidises for ‘State Owned Enterprises’ and demands that foreign firms transfer intellectual property in exchange for market access.
The existence of the UN has created a forum where nations can discuss new problems, and climate change is one of them. The Intergovernmental Panel on Climate Change (IPCC) was set up in 1988 to assess climate science and provide policymakers with assessments and options. In 1992, the UN Framework Convention on Climate Change created a permanent forum for negotiations.
However, despite an international scientific body in the IPCC, and 165 signatory nations to the climate treaty, global greenhouse gas emissions have continued to increase.
Under the Paris Agreement, even if every country meets its greenhouse gas emission targets we are still on track for ‘dangerous warming’. Yet, no major country is even on track to meet its targets; while emissions will probably decline this year as a result of COVID-19, atmospheric concentrations of greenhouse gases will still increase.
This illustrates a core conundrum of the UN in that it opens the possibility of global cooperation, but is unable to constrain states from pursuing their narrowly conceived self-interests. Deep co-operation remains challenging.
Five failures of the UN
1. Peacekeeping
During the Bosnian War, Dutch peacekeeping forces stationed in the town of Srebrenica, declared a ‘safe area’ by the UN in 1993, failed in 1995 to stop the massacre of more than 8000 Muslim men and boys by Bosnian Serb forces. This is one of the most widely discussed examples of the failures of international peacekeeping operations.
On the massacre’s 10th anniversary, then UN Secretary General Kofi Annan wrote that the UN had “made serious errors of judgement, rooted in a philosophy of impartiality”, contributing to a mass murder that would “haunt our history forever”.
If you look at some of the other infamous failures of peacekeeping missions – in places such as Rwanda, Somalia and Angola – it is the limited powers given to peacekeeping operations that have resulted in those failures.
2. The invasion of Iraq
The invasion of Iraq by the US in 2003, which was unlawful and without Security Council authorisation, reflects the fact that the UN is has very limited capacity to constrain the actions of great powers.
The Security Council designers created the veto power so that any of the five permanent members could reject a Council resolution, so in that way it is programmed to fail when a great power really wants to do something that the international community generally condemns.
In the case of the Iraq invasion, the US didn’t veto a resolution, but rather sought authorisation that it did not get. The UN, if you go by the idea of collective security, should have responded by defending Iraq against this unlawful use of force.
The invasion proved a humanitarian disaster with the loss of more than 400,000 lives, and many believe that it led to the emergence of the terrorist Islamic State.
3. Refugee crises
The UN brokered the 1951 Refugee Convention to address the plight of people displaced in Europe due to World War II; years later, the 1967 Protocol removed time and geographical restrictions so that the Convention can now apply universally (although many countries in Asia have refused to sign it, owing in part to its Eurocentric origins).
Despite these treaties, and the work of the UN High Commission for Refugees, there is somewhere between 30 and 40 million refugees, many of them, such as many Palestinians, living for decades outside their homelands. This is in addition to more than 40 million people displaced within their own countries.
While for a long time refugee numbers were reducing, in recent years, particularly driven by the Syrian conflict, there have been increases in the number of people being displaced.
During the COVID-19 crisis, boatloads of Rohingya refugees were turned away by port after port. This tragedy has echoes of pre-World War II when ships of Jewish refugees fleeing Nazi Germany were refused entry by multiple countries.
And as a catastrophe of a different kind looms, there is no international framework in place for responding to people who will be displaced by rising seas and other effects of climate change.
4. Conflicts without end
Across the world, there is a shopping list of unresolved civil conflicts and disputed territories.
Palestine and Kashmir are two of the longest-running failures of the UN to resolve disputed lands. More recent, ongoing conflicts include the civil wars in Syria and Yemen.
The common denominator of unresolved conflicts is either division among the great powers, or a lack of international interest due to the geopolitical stakes not being sufficiently high. For instance, the inaction during the Rwandan civil war in the 1990s was not due to a division among great powers, but rather a lack of political will to engage.
In Syria, by contrast, Russia and the US have opposing interests and back opposing sides: Russia backs the government of the Syrian dictator Bashar al-Assad, whereas the US does not.
5. Acting like it’s 1945
The UN is increasingly out of step with the reality of geopolitics today.
The permanent members of the Security Council reflect the division of power internationally at the end of World War II. The continuing exclusion of Germany, Japan, and rising powers such as India and Indonesia, reflects the failure to reflect the changing balance of power.
Also, bodies such as the IMF and the World Bank, which are part of the UN system, continue to be dominated by the West. In response, China has created potential rival institutions such as the Asian Infrastructure Investment Bank.
Western domination of UN institutions undermines their credibility. However, a more fundamental problem is that institutions designed in 1945 are a poor fit with the systemic global challenges – of which climate change is foremost – that we face today.