Introduction   Arendt’s account of modernity and The Human Condition  (1958)[1]   Opening the final section of The Human Condition  (1958), ‘The  vita activa  and the modern age’, Hannah Arendt references a quote by Franz Kafka:   He found the Archimedean point, but he used it against himself; it seems that he was permitted to find it only under this condition.[2]   With the advent of space flight, humankind had decisively located Archimedes’ point—the hypothetical vantage point from which one can view the entire Earth, and perhaps even move it. For Arendt, this event marked the continuation of a centuries-long trend, beginning with Galileo’s invention of the telescope, whereby scientific and technological progress alienated humanity from its natural, earthbound existence. In this essay, I will explore two dimensions of Arendt’s opposition to the Space Race: firstly, the Space Race as antithetical to humanity’s natural, earthbound existence, as embodied by her concept of ‘earth alienation’; and, secondly, the Space Race as symbolic of a rejection of human political existence, this being exemplified by the civic republicanism of Arendt’s ideal polity. Taken together, Arendt’s writings on space illuminate her broader theory of the relationship between technology and modernity, for the space race ultimately serves as a metaphor for the technicalisation of modern life, which alienates human beings from the essential realities of the world. Her utopian vision of the modern American republic acts as an antidote to these ills.   This discussion must be located within Arendt’s account of modernity and the basic conditions and activities of human life, as outlined in The Human Condition . For the purposes of this essay, two of Arendt’s   basic conditions of human existence are of particular importance. The first of these, the condition of ‘plurality’, is at the core of her critique of the Western tradition of political thought since Plato. In opposition to the tendency of political philosophers to fetishise the lone individual, she presents plurality: the fact that ‘men, not Man, live on the earth and inhabit the world’.[3] Human plurality is the foundational condition of political life, because politics necessarily takes place in the spaces and interactions between people.[4] The second condition, that of ‘natality’, is ‘the new beginning inherent in birth’.[5] If all politics requires plurality, political action is made possible by natality, which reflects the human capacity to take initiative and begin anew, the wellspring of all political acts.   These conditions, plurality and natality, have a close and co-constitutive relationship with the three basic activities of active human life, or the vita activa , which Arendt contrasts with the vita contemplativa , the life of contemplation. She identifies these activities   as follows. Firstly, the activity of labour , the natural, cyclical activities undertaken by animal laborans  (man as a labouring animal) to meet physical and biological needs, for instance by farming crops for consumption. Secondly, the activity of work , those ‘higher’ forms of production through which homo faber  (man the maker) creates the objects that together comprise the stable, enduring world of human ‘artifice’. Finally, the activity of action , ‘the political activity par excellence’, those activities performed in the public realm, with deliberate intent and in concert with others.[6]   Arendt does not put forth a political programme in The Human Condition . It was neither intended to present an exhaustive list of the activities undertaken by human beings, nor to make claims about human nature  as such. This reflects Arendt’s view that the activities and conditions of human life are not immutable—in fact, technological developments have the potential to fundamentally disrupt them. She gives the example of future scientific advancements enabling the artificial creation of human life, thereby disrupting the condition of natality, the emergence of life itself.[7]  The Human   Condition  traces the development of the human condition and its associated activities through the lens of modernity.   Arendt’s account of modernity is structured around four key features: world alienation, earth alienation, the rise of the social, and the victory of animal laborans . These features reflect two stages in the development of the modern age. The first, from the sixteenth century to the nineteenth, ‘corresponds to world alienation and the rise of the social’; the second, from the beginning of the twentieth century, ‘corresponds to earth alienation and the victory of animal laborans ’.[8] While ‘world alienation’ and ‘the rise of the social’ are   also linked to Arendt’s account of the Space Race, this essay will foreground its connection to ‘earth alienation’ and ‘the triumph of animal laborans ’, as the two features of modernity which correspond   to the advent of the twentieth century, and which—in contrasting ways—embody the phenomenon of the Space Race.   Philosophical context   Arendt’s understanding of alienation has its origins in the thought of Martin Heidegger, with whom she critically reengaged throughout the 1950s. Although this essay will not explore his philosophical doctrine in detail, two foundational concepts are of critical importance for understanding Arendt’s analysis of the Space Race: alienation and disclosure. Alienation refers to Heidegger’s belief that formal or technical modes of thought, as found in scientific and technical disciplines, estrange human beings from the object they seek to understand.[9] This prevents them from knowing ‘Being’, understood as the unknowable source that emanates from all beings, including human beings. Conversely, disclosure refers to Heidegger’s belief that humans can only know Being when they stop attempting to force knowledge of it through formal and technical means.[10] Only then will Being ‘disclose’ itself to them.   Arendt’s interpretation of alienation is particularly relevant to Part 1 of this essay; her reworking of Heidegger’s theory of disclosure is central to Part 2. This reflects the fact that many political and historical phenomena, including the Space Race, can become allegories for alienation and disclosure. Within this framework, Part 1 will analyse the Space Race as a rebellion against humanity’s natural, earthbound existence, with particular reference to the concepts of earth alienation and the triumph of animal laborans .   The Space Race as a rebellion against humanity’s natural, earthbound existence   Situating the Space Race   Earth alienation refers to humanity’s attempts to escape from the ‘shackles of earth-bound experience’, as demonstrated by the drive towards the conquest and exploration of space.[11] Given that the Earth ‘is the very quintessence of the human condition’, it is perhaps unsurprising that in the prologue to The Human Condition , Arendt calls the 1957 launch of the first artificial satellite, Sputnik I, an event ‘second in importance to no other, not even to the splitting of the atom’.[12] Yet her account of the relationship between the Space Race and earth alienation must be situated within her thought on science and technology.   In the cultural discourse of France, West Germany, and the United States—the countries in which Arendt ‘spent significant amounts of time during the 1950s’[13]—the thorny problem of technology, and humanity’s ability to control its growing technological powers, was a recurring theme. In Einfü̈hrung in die Metaphysik  (1953), the published version of lectures given in 1935, Heidegger praises National Socialism for staging an ‘encounter between global technology and modern humanity’.[14] He analogises the USA and USSR to technology, and Germany to modern humanity. Although Arendt departs, of course, from her mentor’s invidious comparison between the United States and Germany, she shares his concern with technology ‘as a feature of modernity’,[15] as do many other twentieth century theorists with whom she is critically engaged, including Max Weber and Karl Jaspers.   Arendt’s concern with the Space Race as earth alienation therefore reflects a broader problem with which she, with Heidegger, was consistently preoccupied: the ‘technicalisation’ of modern life. This term refers to the ‘growing artificiality’, driven by technological development, which was replacing humanity’s natural environs with man-made artifice.[16] In the twentieth century, existing debates about technicalisation were revived by key developments of modernity:[17] automation,[18] space flight, and nuclear fission, with its potential to provide a limitless energy source or ‘destroy all organic life on earth’.[19] In the post-war era of ‘Big Science’, with vast amounts of government funding funnelled into scientific research, a sense of technological possibility abounded.[20] However, this sense of possibility was both utopian and dystopian, as reflected in the contrasting cases of astrofuturism and Arendt’s thought on technology.   Astrofuturism: A contrast case   Astrofuturism, a genre of science fiction writing and expression of utopian dreaming, developed in American intellectual and popular culture after World War II, although its historical roots lie in nineteenth-century imperialism and the myth of the colonial ‘frontier’.[21] Its central preoccupation is with ‘an escape from terrestrial history’ by eschewing humanity’s earthly limitations for the final frontier of space.[22] As with the Space Race and the atomic age, there exists a tension between war and peace in astrofuturism, which encompasses visions of American space colonisation—evident in the militaristic fantasies of authors like Robert Heinlein—as well as the ‘utopian, socialist hopes’ of contemporary astrofuturists like Kim Stanley Robinson.[23] Central to all astrofuturism, however, is the ideology of ‘techno-utopianism’: the belief that technological progress is both imminent and a potential cure for social, political, and economic ills on Earth.[24] As Imre Szeman notes, techno-utopian discourse is ‘employed by government officials, environmentalists, and scientists from across the political spectrum’, as well as by astrofuturists.[25]   Astrofuturism and techno-utopianism significantly influenced, and were influenced by, the Space Race. Their utopian vision thus offers a useful context and contrast case for Arendt’s more dystopian thought on science and technology. Space, for Arendt, is far from an astrofuturistic ‘site of renewal’.[26] While she does not believe a reversal of existing technology is possible or desirable,[27] her writings, from The Origins of Totalitarianism  (1951) to The Human Condition  (1958) to ‘The Conquest of Space and the Stature of Man’ (1963), reflect two major concerns about modern technology: firstly, that humanity’s lack of control over its rapidly developing technological powers may spell catastrophe, and secondly, that, in the modern age, the natural is gradually being subordinated to the artificial and technical, facilitating the rise of consumer society.[28]   The Space Race as earth alienation   Arendt understands the Space Race as the culmination of a deeply rooted tendency within modern scientific and technical knowledge. This view is also reflected in her treatment of nuclear power, which supports her diagnosis of the alienating consequences of modern technology. As Brent Ryan Bellamy writes, in contrast to the techno-utopian discourse surrounding space flight and nuclear energy, the militarisation of both phenomena with the development of atomic bombs and intercontinental ballistic missiles (ICBMs) returned ‘terror … to the technological object’.[29] Arendt’s worries, however, are ontologically oriented. She is less concerned by the destructive power of nuclear technology than by its tendency to divorce ‘technical capability from social understanding’.[30] The inability of the general public to understand nuclear technology makes ‘conscious’, informed decisions about its use difficult, if not impossible.[31] For Arendt, this is an example of what happens when technical knowledge is divorced from ordinary speaking and thinking.   Arendt’s second concern, relating to the triumph of the ‘artificial’ and the technicalisation of modernity, is embodied by the Space Race as the pinnacle of earth alienation. She traces the origins of earth alienation to Galileo’s invention of the telescope in 1609, which first alienated ‘man from his immediate earthly surroundings’.[32] With Galileo’s discovery of the Archimedean point, human beings, now capable of imagining themselves at a vast distance from Earth (see fig 1), began to feel that they were ‘terrestrial not by nature’ but only by chance.[33] To leave Earth behind seemed fitting of their true nature as ‘universal beings’.[34] This is the phenomenon of earth alienation. Fig 1. Archimedes’ lever (unknown, Mechanics Magazine 1824). Annenberg Rare Book and Manuscript Library, University of Pennsylvania, Philadelphia, USA. Wikimedia Commons. accessed 8 June 2021. The crucial result of the discovery of the Archimedean point, then, was a rebellion against aspects of the human condition which were previously ‘earthbound and subject to contingency’.[35] This event marked the beginning of earth alienation and, in fuelling the corresponding development of the natural sciences and astrophysics, led to the technological advances which, many centuries later, gave birth to nuclear fission and the Space Race. The Space Race both embodies and facilitates earth alienation, and its use of technology to escape Earth is symbolic of the triumph of the ‘artificial’ over the ‘natural’. For Arendt, this is evident in the creation of ‘new heavenly bodies’ in the form of satellites like Sputnik I[36] and in the astrofuturist dream of space colonisation. The central figure in Arendt’s analysis is, of course, the astronaut. As she writes in ‘The Conquest of Space and the Stature of Man’, which was published after the departure of USSR probes to the Moon in 1959, and the launch of the first American satellite in 1962:   The astronaut, shot into outer space and imprisoned in his instrument-ridden capsule where each actual physical encounter with his surroundings would spell immediate death, might well be taken as the symbolic incarnation of Heisenberg’s man—the man who will be the less likely ever to meet anything but himself and man-made things the more ardently he wishes to eliminate all anthropocentric considerations from his encounter with the non-human world around him.[37]   Here it is appropriate that Arendt should treat the astronaut as a ‘symbol’. Lying behind her portrait of a man cut-off from the world by man-made instruments, we catch a glimpse of Heidegger’s metaphysical account of how technical knowledge alienates man from ‘Being’. Arendt’s critique of the Space Race, particularly as it relates to the supremacy of technical language and instruments over the natural world and ordinary language (as in the above passage), can be viewed as an allegory for Heidegger’s concepts of Being and alienation, as outlined in the introduction to this essay. The Space Race, as the embodiment of earth alienation, is the highest form of Heideggerian alienation. Earth itself is a symbol of Being, while the artificial technologies of the Space Race and the atomic age are symbols of the alienation of knowledge from Being—and, ultimately, of humanity’s disconnect from the primal reality of the world, for this is how Arendt conceptualises ‘Being’.[38]   As the logical outcome of earth alienation, Arendt’s Space Race marks a key event in the technicalisation of modernity: the gradual replacement of humanity’s natural surroundings with the man-made and the artificial. Crucially, for Arendt, technicalisation is not inherently undesirable.[39] Human artifice has ‘strongly positive connotations’ for her, as the reflection of homo faber ’s capacity for invention and in the classical tradition, which equates human artifice with civilisation.[40] The great danger of technicalisation, however, is that it accelerates existing patterns of consumption . The logical result of this acceleration is that society will eventually be subsumed by ‘an enormously intensified life process’—an infinite process of production and consumption—until a ‘true consumers’ society’ dominates.[41]   As a result of her deep commitment to the idea that human beings are tethered to the Being from which they devolve, Arendt views the conditions of human existence as fundamentally worldly , where the world acts as a proxy for the notion of Being. It is for this reason that Arendt argues that the colonisation of space would pose ‘the most radical change’ imaginable to the human condition.[42] As the embodiment of earth alienation, the Space Race represents, for Arendt, a rejection of humanity’s natural , earthbound  existence—understood as humanity’s attachment to Being—and thus a rejection of the capacity of the human being to be at home in the world. This is the fundamental thought that lies behind her idea that the Space Race symbolises the triumph of the artificial over the natural, which is itself characteristic of the technicalisation of modernity and the rise of consumer society.   The Space Race as the triumph of animal laborans   At the same time, however, Arendt also puts forth a differing conception of the ‘natural-artificial’ dichotomy as it relates to modernity, and here the Space Race plays a different role. In this account, modernity ‘has brought us too close to nature … by elevating labor … to the highest point within the vita activa ’.[43] Labour is the most natural of human activities because it exists to fulfil our base biological needs. Its rise over work and action is the phenomenon which Arendt labels ‘the triumph of animal laborans ’, the second defining feature of modernity since the twentieth century. Her account of the relationship between labour, nature, and modernity must be understood in relation to her history of modern science, as outlined in ‘The vita activa  and the modern age’, the final section of The Human Condition .   Here, Arendt posits a relationship between ‘science, secularization and the emergence of modern politics’.[44] She argues that, from the sixteenth century onward, the development of the natural sciences supported secularisation by undermining popular faith in the divine. Secularism and the precepts of the natural sciences became the foundation of modern politics and philosophies of history. She finds evidence of this in Karl Marx’s dialectical materialism, which justifies ‘experimental interventions’ into society guided by natural laws.[45] Crucially, it is also demonstrated by the victory of labour, the only activity within the vita activa  which is driven by an eternal, cyclical ‘process’ much like the processes of the natural sciences.[46]   This account of secularisation and modernisation is pessimistic, a fact exemplified by Arendt’s treatment of the Space Race. In this alternative account of modernity, the Space Race represents a rejection not of humanity’s natural, earthbound existence, but of human consciousness  as it currently exists. From the distance of the   Archimedean point, all human activity resembles a ‘large-scale biological process’, akin to watching the operations of an ant colony from a great height, rather than the result of deliberate human and cultural innovation.[47] With the publication of Earthrise  in 1968, a decade after Arendt’s publication of The Human Condition , the Archimedean point became image (see fig 2). This reduction of human life to a process signals the triumph of labour, that eternal biological process, over work and action. Fig 2. Earthrise (William Anders 1968). National Aeronautics and Space Administration, Washington, DC, USA. Wikimedia Commons. accessed 8 June 2021. Arendt finds two repercussions following from this account of labour and the Space Race highly concerning. The first of these is that a species of labourers, as humanity will become, lacks the judgment necessary to control its growing technological powers. Her second concern—that the transcendental nature of space travel might disrupt the human psyche—filtered into the popular culture of the era. In his short story ‘The Dead Astronaut’, JG Ballard writes of relic hunters who collect the mummified corpses of astronauts killed in orbit, treasuring the remains like ‘the saintly bones of medieval shrines’.[48] Yet the remains of a NASA astronaut turn out to be radioactive—he ‘was carrying an atomic weapon!’[49] Ballard’s tale of cursed bones echoes premodern superstitions about the ‘reckless handling of sacred objects’, rewritten for the space age.[50] It is possible to imagine an Arendtian reading of Ballard’s dead astronauts, cut off from life by their instrumental cocoons, but Ballard’s gore seems to owe more to Mary Shelley than Martin Heidegger.   Other writers of the period rejected Arendt and Ballard’s pessimism. Although not explicitly, these writers are often ‘thinking with Arendt against Arendt’.[51] They deploy her categories of natality and plurality—the miracle of life and plural human existence—to argue that in (temporarily) leaving Earth behind, human beings’ connection to their home and one another is strengthened, rather than disrupted. The publication of Earthrise (see fig 2) energised these responses, as captured by a line from Archibald MacLeish’s ‘Riders on the Earth’ (1968):   To see the earth as it truly is, small and blue and beautiful in that eternal silence where it floats, is to see ourselves as riders on the earth together, brothers on that bright loveliness in the eternal cold—brothers who know now they are truly brothers.[52]   Ambiguities in Arendt’s account of modernity   Ultimately, Arendt reconciles her contrasting accounts of modernity by labelling them a paradox: the triumph of animal laborans  over homo faber  and zoon politikon  (the political animal) has transformed   human beings into ‘human animals unconscious of their capacities and responsibilities’.[53] Such a species is ill suited to exercise the ‘earth-threatening powers’ bestowed upon it by technological development and earth alienation.[54] Nevertheless, Arendt’s assessment of modernity, the role of ‘nature’ within it, and the relationship of the Space Race to the ‘artificial/natural’ dichotomy retains a fundamental ambiguity. The modern era is both ‘too natural and too artificial’[55]—not only in a paradoxical sense, but in a manner which obscures the boundaries of the categories of ‘nature’ and ‘artifice’ themselves.   Arendt’s concern with the Space Race also contains a strongly normative element. The Space Race is anathema to her ideal of human political existence. This is because action, particularly action as a spatially grounded phenomenon , is integral to Arendt’s conception of ‘the good life’. In The Human Condition , she does not explicitly link the Space Race to her account of action and the public realm. As such, while Part 1 of this essay was drawn directly from Arendt’s writings on the Space Race and modernity, Part 2 is my own interpretation, and aims to elucidate the full implications of the Space Race for Arendt’s ideal of human political existence. It might thereby contribute to existing bodies of literature examining her writings on technology and modern politics.[56]   The Space Race as antithetical to Arendt’s ideal of human political  existence   Action and the public realm in Arendt’s ideal polity   Kei Hiruta rejects the common narrative that Arendt is an anti-utopian thinker.[57] Arendt belongs to a group of émigré intellectuals and liberal critics of totalitarianism, including Isaiah Berlin, Jacob Talmon, and Karl Popper, who argue that the utopian impulse is inherently totalitarian because the utopian ‘blueprint’ demands the punishment or eradication of all that fails to meet its impossible standards.[58] While Arendt certainly rejects the blueprint narrative of the classical utopian tradition, Hiruta argues that her writings display another kind of utopian dreaming, which consists of ‘an imaginative and idealized reconstruction of existing polities’.[59] For Arendt, this ideal polity is the modern American republic, reimagined in the civic republican tradition of thinkers from the ancient Greeks to Montesquieu and Alexis de Tocqueville. America’s primary appeal is that it enables its citizens to live ‘the good life’ in Arendt’s understanding of the term, within which public political participation is central.   Politics, in this account, is the process of active civic engagement in the public realm. The public realm is the site where many unique individuals meet and act together to begin things anew, thus reflecting the conditions of plurality and natality. Action in the public realm symbolises hope and possibility. This is why the meaning of action, for Arendt, is exemplified by moments of revolution—she often references the American Revolution and the Hungarian Revolution of 1956—where the enactment of something new lays the foundation for the attainment of greater freedom. However, freedom, in Arendt’s account, is not freedom of choice in the liberal tradition. It is the capacity to do something new or unexpected, thereby actualising the condition of natality, the miracle of life itself.[60]   Action is not without its drawbacks, and The Human Condition  should not be read as a treatise on its assets relative to labour and work. Just as Max Weber draws attention to the irreversible and unintended consequences which result from political action, Arendt notes that action is ‘boundless’ and ‘unpredictable’.[61] Nevertheless, the public realm is of profound importance to Arendt because of the benefits which accrue to the individual, political life, and to human civilisation, from human beings acting together in the public realm. For the individual, action in the public realm is a crucial means of disclosing one’s identity—that which makes a person ‘who’ they are.[62] For political life, action is essential: it is the means by which human beings constitute political communities, develop a sense of political agency, and form opinions and judgements in concert with the diverse perspectives of their peers.[63] For human civilisation, the public realm enables the remembrance of great deeds, words, and individuals long gone, and it functions as the ‘locus of a civilisation that transcends generations’.[64]   Some of the themes implicit in these benefits—the ability of the individual to shape politics through action, the centrality of political agency, and the importance of remembrance—should be understood in light of twentieth-century experiences of war and persecution. These led to a revival of ‘anti-materialist, epic and tragic values’ in many émigré intellectuals, including Arendt.[65]   Yet the most important characteristic of the public realm, for Arendt, is that only in the public realm can reality disclose itself . As Margaret Canovan notes, the critical importance of the disclosure of reality to Arendt must be situated within two contexts.[66] The first of these is The Origins of Totalitarianism , where Arendt highlights an open public realm as a necessary site of resistance to the ‘ideological fictions’ of totalitarian regimes.[67] The second is her intellectual engagement with Heidegger, who claims that Being is disclosed in those spaces that people create together, when individuals stop thinking about Being using formal and technical instruments. The difference between humans and animals lies in this ‘unique human capacity for experiencing reality in its fullness’.[68] Arendt’s theory of action, then, should be read as an allegory for the suspension of formal thought that allows Being to disclose itself to humans. With this allegory, Arendt de-alienates humans from the world and one another. In her account of action as it relates to politics, then, politics is a de-alienated ‘relatedness to others’, to oneself, and to Earth.[69]   Specific to Arendt’s account of disclosure is her new definition of the ‘space’ in which reality discloses itself. Heidegger was uninterested in participatory politics, but for Arendt the space of disclosure is the public realm, formed by the discourse and action of plural human beings. In other words, reality can only be disclosed in a free and open political realm—‘the opposite of the regime to which Heidegger gave his support’.[70] In her chapter on ‘Action’ in The Human Condition , Arendt focuses on the transformative importance   of disclosure to the individual. Their own reality, identity, and sense of self as a unique individual, in contrast to the homogeneity of animal laborans , can only be affirmed through interactions with their fellows in the public realm.[71] Without this, human beings are ‘deprived of things essential to a truly human life’.[72] Seen in this light, in treating political action as the condition of self- and world-disclosure, Arendt locates participatory politics as the great antidote to the technological alienation of human beings from the world that she allegorises to the Space Race. The Space Race should be viewed as antithetical to Arendt’s ideal polity because its technological basis threatens to disrupt the existence of the public realm, and thus the disclosure of reality.   The Space Race as antithetical to the public realm   In the space age of the 1950s-1960s, informed by a sense of technological possibility and such discourses as astrofuturism, humanity’s colonisation of space was viable, even imminent. As late as 1974, the front page of The New York Times declared ‘Proposal for Human Colonies in Space is Hailed by Scientists as Feasible Now’.[73] Within this context, the Space Race disrupts the existence of a different kind of space to the space of Being, namely the physical space of the public realm. The public realm has two core features: the ‘space of appearance’ and the existence of a ‘common world’. The polis , or space of appearance, is not a physical location but a space for   action which is created and re-created by the interactions between individuals. The polis  requires, however, a physical foundation from which this space of appearance can emerge: a ‘common world’, involving physical and temporal proximity between people and their shared world of artifice.[74] People must meet with one another, in physical spaces and institutions, to hear one another’s opinions, discuss and debate political issues, and act in concert to achieve political goals. Spatiality is central to the ‘common world’, and thus also to the public realm, to Arendt’s conception of citizenship, and to her ideal of political life. The Space Race, therefore, is antithetical to Arendt’s ideal of humanity’s political existence—antithetical to her utopia, although she would not have termed it as such.   Conclusion   This essay has explored two dimensions of Hannah Arendt’s critical writings on the Space Race: firstly, the Space Race as a rejection of humanity’s natural, earthbound existence, as embodied by the concept of ‘earth alienation’; and, secondly, that the Space Race is antithetical to her ideal polity—as exemplified by the modern American republic—because it serves as an allegory for the technological disruption of the public realm and the disclosure of reality. The Archimedean point, located by the astronauts of the Cold War Space Race, threatened to alienate human beings from the reality of Being, the Earth, and one another—a dystopian prospect indeed. Clare Francis   Clare Francis graduated from Trinity College, Cambridge, in summer 2020, where she placed first in Human, Social, and Political Sciences (HSPS). She was Co-President of Trinity Politics Society and wrote for and edited the Cambridge Globalist . She intends to work in foreign affairs. [1] Hannah Arendt, The Human Condition  (first published 1958, University of Chicago Press 1998). [2] ibid 248. [3] ibid 8. [4] ibid 176. [5] ibid 9. [6] ibid 7-8. [7] ibid 268-9. [8] Maurizio Passerin d’Entreves, ‘Hannah Arendt’ in The Stanford Encyclopaedia of Philosophy  (Fall edn, 2019). [9] Martin Heidegger, Being and Time  (John Macquarie and Edward Robinson trs, SCM Press 1962) 91-107. [10] ibid 256-9. [11] Arendt (n 1) 265-7. [12] ibid 1-2. [13] Waseem Yaqoob, ‘The Archimedean point: Science and technology in the thought of Hannah Arendt, 1951-1963’ (2014) 44(3) Journal of European Studies 199, 204. [14] ibid 204. [15] ibid. [16] d’Entreves (n 8) 1. [17] Benjamin Lazier, ‘Earthrise, or the Globalization of the World Picture’ (2011) 116(3) American Historical Review 602, 604. [18] Brian Simbirski, ‘Cybernetic Muse: Hannah Arendt on Automation, 1951-1958’ (2016) 77(4) Journal of the History of Ideas 589, 590. [19] Arendt (n 1) 148-50. [20] Malisa Kurtz, ‘Utopia…: Science Fiction in the 1950s and 1960s’ in Eric Carl Link and Gerry Canavan (eds), The Cambridge History of Science Fiction  (Cambridge University Press 2018) 201-2. [21] De Witt Douglas Kilgore, ‘Introduction: The Wonderful Dream’ in De Witt Douglas Kilgore, Astrofuturism: Science, Race, and Visions of Utopia in Space  (University of Pennsylvania Press 2003) 1. [22] ibid 1-2. [23] ibid. [24] Kurtz (n 20) 202. [25] Imre Szeman, ‘Oil, Futurity, and the Anticipation of Disaster’ (2007) 106(4) South Atlantic Quarterly 812. [26] Kilgore (n 21) 2. [27] Yaqoob (n 13) 207. [28] Arendt (n 1) 268-9. [29] Brent Ryan Bellamy, ‘…or Bust: Science Fiction and the Bomb, 1945- 1960’ in Eric Carl Link and Gerry Canavan (eds), The Cambridge History of Science Fiction  (Cambridge University Press 2018) 220. [30] Simbirski (n 18) 594. [31] ibid 595. [32] Arendt (n 1) 251. [33] ibid 263. [34] ibid. [35] Yaqoob (n 13) 211. [36] Arendt (n 1) 268-9. [37] Hannah Arendt, ‘The Conquest of Space and the Stature of Man’ (first published 1963; The New Atlantis , Fall 2007) 1 < https://www.thenewatlantis.com/publications/the-conquest-of-space-and-the-stature-of-man > accessed 1 May 2021. [38] Margaret Canovan, Hannah Arendt: A Reinterpretation of her Political Thought  (Cambridge University Press 1992). [39] Arendt (n 1) 132. [40] Canovan (n 38) 109. [41] Arendt (n 1) 132-3. [42] ibid 10. [43] d’Entreves (n 8) 1. [44] Yaqoob (n 13) 200. [45] ibid 200. [46] Arendt (n 1) 308-16. [47] Arendt (n 37) 1. [48] JG Ballard, The Dead Astronaut: 10 Stories of Space Flight  (Playboy Press 1968) 2. [49] ibid 6. [50] Umberto Rossi, ‘A Little Something about Dead Astronauts’ (2009) 36(1) Science Fiction Studies 101, 107. [51] Patchen Markell, ‘Arendt, Hannah (1906-75)’ in The Encyclopedia of Political Thought  (2014). [52] Quoted in Denis Cosgrove, Apollo’s Eye: A Cartographic Genealogy of the Earth in the Western Imagination  (Johns Hopkins University Press 2001) 259. [53] Margaret Canovan, ‘Introduction’ in Arendt (n 1) x-xi. [54] ibid x-xi. [55] d’Entreves (n 8) 1. [56] Canovan (n 38); d’Entreves (n 8); Kei Hiruta, ‘An “Anti-Utopian Age?” Isaiah Berlin’s England, Hannah Arendt’s America, and Utopian Thinking in Dark Times’ (2017) 22(1) Journal of Political Ideologies 12; Markell (n 51); Simbirski (n 18); Yaqoob (n 13). [57] Hiruta (n 56). [58] ibid 12-3. [59] ibid 12. [60] d’Entreves (n 8) 1. [61] Arendt (n 1) 192. [62] ibid 178. [63] d’Entreves (n 8) 1. [64] Canovan (n 38) 111. [65] ibid 139-40. [66] ibid 110-2. [67] ibid 111. [68] ibid 112. [69] Arendt (n 1) 210. [70] Canovan (n 38) 112. [71] Arendt (n 1) 208. [72] ibid 58. [73] Walter Sullivan, ‘Proposal for Human Colonies in Space is Hailed by Scientists as Feasible Now’ The New York Times (New York, 13 May 1974) 1. [74] Arendt (n 1) 198-99.

Singapore-based corporate darling Hyflux made sure that it ticked all the right boxes when it came to governance and regulatory compliance. But its recent fall from grace is a cautionary tale on how management styles, charismatic CEOs, and directors’ personal interests can work against even the toughest corporate governance framework.   Grit and Persistence: The Rise of CEO Olivia Lum   In her 2015 speech to students at the National University of Singapore, Olivia Lum not only extolled the virtues of grit and hard work, but revealed some very personal details. The founder of much-lauded water treatment company, Hyflux, recounted how, in the early days, she would worry about paying next month’s rent.   It was a difficult, decades-long, journey that started in 1989, when Lum sold both her house and car to start Hyflux as a sales agent for large multinational companies. In 2003, Hyflux was listed on the Singapore Exchange (‘SGX’). In 2006, UK-based Global Water Intelligence recognised it as Water Company of the Year. Over the years, Lum’s personal fame also rose. From 2002 to 2005 she was a Nominated Member of Parliament. In 2011, she was named the EY World Entrepreneur of the Year.   Yet a decade later,   in November 2022, Lum, along with a former CFO and four independent directors, were charged with violations of the Securities and Futures Act[1] for non-disclosure of information relating to Hyflux’s sale of Tuaspring, its integrated water and power plant.   The Appearance of Corporate Governance   Hyflux certainly appeared to be at the forefront of Singapore’s regulatory compliance regime.[2] Its annual reports made the required disclosures on the sixteen principles of the Code of Corporate Governance (the ‘Code’). With the exception of a departure from Principle 3 on the separation of the Chairman and CEO roles, there was nothing noteworthy about the disclosures. The company also had an internal Code of Conduct and Ethics. In 2006, it published its first sustainability report—in accordance with Global Reporting Initiatives—a year ahead of when such reporting was made mandatory.   As a prominent business personality, Lum gave many interviews over the years where she pointed to corporate governance as one of Hyflux’s core values.[3] No one in Singapore’s business community could have expected the circumstances of the Tuaspring sale.   The Tuasping Debacle   In 2016, Hyflux decided to sell Tuasping, but couldn’t complete the sale by December 2017. Nevertheless, Tuasping remained on the balance sheet, and on March 2018, a KMPG audit report showed a healthy liquidity position.   Just two months later, Hyflux announced that it had run out of cash to pay creditors. An impairment loss of SGD 916m was recorded in 2018—the true extent only confirmed when the Public Utilities Board valued it at a negative purchase price and took over the business at zero dollars. Retail investors suffered losses on perpetual capital securities that Hyflux had issued.[4] In November 2020, Hyflux was placed under judicial management and, two years later, Lum and other executives were charged with violations of the Securities and Futures Act. Lum was also charged under the Companies Act for Hyflux’s non-compliance with accounting standards. In May 2023, three KPMG auditors were issued with orders by the Public Accountants Oversight Committee.   But to really understand how and why Hyflux got to this point, it can be instructive to look over the preceding years—marked by an exodus of senior executives, an uneven balance of power on the board, utilitarian-style leadership, a lack of director independence, and a toxic internal culture.   A Dominant CEO   In 2018, Hyflux’s key management committee consisted of five persons (see Appendix 1). Between 2013 and early 2014, Hyflux’s CFO, COO, and Deputy CEO, all resigned. Analysts at the time noted that the stock market hardly reacted to the resignations—an indication that the market based its evaluation of management quality solely on Lum.   With dual roles as chairman and  CEO, it’s undeniable that Lum had an overbearing influence on the management team. The arrangement was a departure from Principle 3 of the Code, but the board explained that vesting the two roles in Lum ‘provides the Group with strong and consistent leadership’.[5]   Using Finkelstein’s model[6] of power dynamics, it is possible to score key management personnel on the dimensions of structural power, ownership power, expert power, and prestige power. Applying this framework to Lum places her as a dominant figure in the management team—with the highest power score by a large margin​ (Appendix 2). On the one hand, this placed Lum as a visionary who could chart the company’s course. On the other hand, domineering CEOs often lead to conflict avoidance and cognitive blindness, which results in weak boards.[7]   Hyflux did appoint a Lead Independent Director to address the balance of power issue in accordance with the Code. However, the company failed to strengthen its structure for risk and controls where the Code was silent. For example, it didn’t have a chief risk officer, and its Risk Management Committee met only once in 2017.[8] Also, the Head of Internal Audit was not part of its broader management committee.[9]   Lack of Board Independence   The board of directors is responsible for supervising management. In Singapore, a combination of statute[10] and general law imposes duties on directors. The Singapore courts have stated that ‘[t]he ‘interests of the company’ is not just profit maximisation. Neither is it profit maximisation by any means’.[11] In a survey, close to 91 percent of Singapore directors agreed that directors are ‘permitted to take into account the interests of stakeholders other than shareholders when performing his functions’.[12] Generally, research indicates that boards function more effectively when they are independent of management.[13]   The Hyflux board comprised Lum and seven independent directors, including lawyers and finance professionals (See Appendix 3). The proportion of independent directors far exceeded the requirements of the Code. However, there were questions about whether the board was truly independent.[14]   Over the years, some of these independent directors had other relationships with the company that made them non-independent. Until 2005, Gay Chee Cheong was deemed a substantial shareholder.[15] Between 2013 and 2015, Gary Kee was an executive director. Until 2010, Christopher Muragasu was employed as senior vice-president of corporate services. Between 1996 and 2006, Muragasu’s sister held a number of positions, including COO, Deputy CEO, and as a senior advisor. Teo Kiang Kok’s brother was vice-president of business development between 2005 and 2008.   Between 2005 and 2010, Kok’s law firm, Shook Lin & Bok, provided legal services to Hyflux and earned fees totalling SGD 364,000. Lee Joo Hai, a partner at professional services firm BDO LLP, had similar potential conflicts of interest. Between 2005 and 2008, BDO Raffles provided internal audit services to Hyflux, earning fees amounting to SGD 186,000. While this was below the SGD 200,000 annual threshold that determines a director’s independence, the perception of a potential conflict of interest remains. Kok and Hai also served together on two other boards. The Code is silent on such interlocking directorships, but research has identified them as a threat to directors’ independence.[16]   The Impact of Utilitarian Morality   The academic literature indicates that corporate governance regulations tend to be informed by the utilitarian foundation of morality—which aims to produce the best consequence for the greatest number of persons—while ignoring deontology and virtue ethics.[17] Deontology concerns fundamental duties that should be followed regardless of consequences. Virtue ethics emphasises traits such as honesty and diligence.   However, for directors, a utilitarian application is far from straightforward. The interests of multiple stakeholders need to be considered when making decisions in the ‘best interest’ of the company—and ‘best interest’ is not limited to shareholders’ interest in maximising profits. For example, the risk-reward profiles of shareholders and perpetual note holders might be different when the company enters a new market. Also, for a company with a strong CEO who also has substantial shareholdings and a board that is arguably less independent than it looks, what is in the ‘best interest’ of the company will depend on the CEO’s vision and management style.   When a CEO applies corporate governance rules based mainly on utilitarianism, the rules are simply treated as conditions to be fulfilled in order to pursue bigger corporate goals—without a deeper regard for the reasons behind the rules. In this scenario, director’s duties are not linked to categorical imperatives, but are a means to an end. There are concerns that utilitarianism alone might not promote behaviours in line with ethical and societal norms.[18]   Lum’s management style was clearly aligned with utilitarianism: results alone were important, regardless of how they were achieved. When, for example, Hyflux was preparing a bid to run Singapore’s first water treatment plant, Lum told staff—who spent months working nights in preparation—that, ‘This is the only chance we can make it big’. And when speaking about Hyflux’s values, such as its ‘can-do’ spirit, she said that they are critical because they ‘helped us win contracts and deliver projects’.[19]   A Toxic Company Culture   Employee reviews can provide an insight into company culture—which can in turn contribute to poor ethical decisions by management. Glassdoor reviews of Hyflux reveal employee concerns about a ‘toxic’ culture—‘top-down’, not receptive to feedback, involving ‘micro-management’, and ‘fast-paced’ .[20]     A top-down approach can deprive employees and directors of their voice, and consequently personal responsibility for their actions. Modern supporters of utilitarianism accept that ethical decisions need to be agent-centric—that the actor must be themselves rather than a neutral third-party observer thinking in the abstract.   Also, a fast-paced environment that does not value individual opinion is not conducive to deliberate thinking that is less vulnerable to biases—what Kahneman calls System II thinking.[21] Research indicates that people make more rational decisions when slow, deep thinking is activated.[22]   Finally, when individuals are given space to be themselves, they have more capacity to process their emotions and reach a more balanced view of ethical issues. Research shows that emotions are related to a deontological way of thinking.[23] In the classic Fat Man trolley problem, while pure, rational calculation may lead us to push a man onto the tracks to save more lives, it is emotions that hold us back from hurting him with our own hands. Emotions can be a counterforce to utilitarianism, which is inadequate by itself.[24]   Conclusion   The Hyflux case clearly shows that corporate governance can be complied with on paper, and publicly, but its actual application can be difficult to evaluate. Management and media might paint a picture of a company guided by purpose and values, but this can differ from employees’ reality.   It’s critical to understand how  management are making ethical decisions, both in the normative and the behavioural view, their personal and outside interests, and how corporate culture can be shaped to nudge them into making better decisions. Andrew Leo Andrew Leo studied accounting at the National University of Singapore and University of Cambridge. Based in Singapore, he currently works as an accountant in a global asset management company and serves as vice chairperson of the audit and risk committee of a large charity. He is interested in internal controls, corporate governance, and leadership. Appendix 1: Key Management Personnel (2018) No. Name Title 1. Olivia Lum Executive Chairman and Group CEO 2. Lum Suat Wah Group Executive Vice President and CFO 3. Wong Lup Wai Group Executive Vice President and Chief Operating Officer 4. Cheong Aik Hock Group Executive Vice President and CEO of Tuasping 5. Chang Cheow Teck Group Executive Vice President, Operations Appendix 2   Note: Scores are on a simplified basis based on publicly available information.   Appendix 3: Board of Directors (2018) No. Name Role Committee(s) Profession 1. Olivia Lum Executive Chairman and Director Nominating, Investment CEO 2. Teo Kiang Kok Lead Independent Director Audit, Nominating, Remuneration, Risk Management Lawyer 3. Lee Joo Hai Non-Executive Independent Director Audit, Risk Management Accountant 4. Gay Chee Cheong Non-Executive Independent Director Audit, Nominating, Remuneration, Investment Investment Management 5. Christopher Muragasu Non-Executive Independent Director Nomination, Remuneration, Risk Management Formerly Hyflux’s senior vice-president of corporate services 6. Simon Tay Non-Executive Independent Director Risk Management, Investment Lawyer 7. Lau Wing Tat Non-Executive Independent Director Audit, Risk Management Investment Management 8. Gary Kee Eng Kwee Non-Executive Independent Director Investment General Management, Consultant; Formerly Hyflux’s Executive Director for Finance and IT [1] Securities and Futures Act 2001. [2] Singapore’s corporate governance framework comprises rules found in the Companies Act 1967, the Securities and Futures Act 2001 and, for companies listed on the SGX, the Listing Manual and guidelines set out in the Code of Corporate Governance. The Code is based on the ‘comply or explain’ principle that is set out in the Financial Aspects of Corporate Governance report (the Cadbury Report), and adopted in the Combined Code (now known as the UK Corporate Governance Code) in 1998. [3] ‘The boldness to dream’ Leaders Magazine, Inc. (January 2012) < https://www.leadersmag.com/issues/2012.1_Jan/ROB/LEADERS-Olivia-Lum-Hyflux-Ltd.html > accessed 12 August 2022 [4] Amir Yusof, ‘“We have not lost faith”: Hundreds of Hyflux investors gather to express concerns at Hong Lim Park’ ( Channel News Asia , 30 March 2019) < https://web.archive.org/web/20211205091648/https://www.channelnewsasia.com/singapore/we-have-not-lost-faith-hundreds-hyflux-investors-gather-express-concerns-hong-lim-park-896896 > accessed 5 December 2023. [5]  Hyflux Limited, ‘Hyflux Ltd Annual Report for FY2017’ (2018) < https://links.sgx.com/FileOpen/Hyflux%20Ltd%20Annual%20Report%20for%20FY2017.ashx?App=Announcement&FileID=498672 > accessed 12 August 2022 . [6] S Finkelstein, ‘Power in top management teams: dimensions, measurement, and validation’ (1992) 35(3) Academy of Management Journal 505-538. [7] E Heemskerk, K Heemskerk, and M Wats, ‘Conflict in the boardroom: a participant observation study of supervisory board dynamics’ (2017) 21 Journal of Management & Governance   233-263. [8] Hyflux (n 5). [9] ibid. [10] The Companies Act requires directors to be honest and diligent in carrying out their duties. Singapore courts have indicated that these statutory duties are based on general law expectations for directors to act bona fide in the interests of the company ( Ho Kang Peng v Scintronix Corp Ltd ) and exercise due care and diligence ( Falmac Limited v Cheng Ji Lai Charlie ). [11]  Ho Kang Peng v Scintronix Corp Ltd  [2014] SGCA 22. [12] P Koh and HH Tan, ‘Directors’ duties in Singapore: law and perceptions’ (2019) 14(1) Asian Journal of Comparative Law 37-63. [13] James D Westphal, ‘Collaboration in the Boardroom: Behavioural and Performance Consequences of CEO-board Social Ties’ (1999) 42(1) The Academy of Management Journal 7-24. [14] Kenneth Cheng, ‘Hyflux’s fall from grace: What went wrong’ ( TODAY , 23 May 2018) < https://www.todayonline.com/singapore/hyfluxs-fall-grace-what-went-wrong > accessed 12 August 2022; Mak Yuen Teen, ‘Hyflux’s board ticked boxes but let down stakeholders’ The Business Times (24 May 2019) < https://www.businesstimes.com.sg/opinion-features/columns/hyfluxs-board-ticked-boxes-let-down-stakeholders > a ccessed 12 August 2022 . [15] Mak (n 14). [16] ibid. [17] Abhijeet K Vadera and Gerard George, ‘The morality of doing business purposefully’ SID Directors Bulletin (2018) < https://www.sid.org.sg/images/PDFS/Publications/DirectorsBulletin/DirectorsBulletin_4Q2018.pdf > accessed 12 August 2022. [18] ibid. [19] Hyflux (n 5). [20]  Hyflux employee reviews about senior management ( Glassdoor , 2023) < https://www.glassdoor.sg/Reviews/Hyflux-senior-management-Reviews-EI_IE39115.0,6_KH7,24.htm > a ccessed 12 August 2022 . [21]  Daniel Kahneman, Thinking, Fast and Slow (Penguin 2011). [22]  ‘Gained in translation’ The Economist  (17 May 2014) https://www.economist.com/science-and-technology/2014/05/17/gained-in-translation  accessed 12 August 2022 . [23]  Norbert Paulo, ‘Law, Reason, and Emotion? The Challenge from Empirical Ethics’ (2017) 103(2) Archives for Philosophy of Law and Social Philosophy 239-259. [24]  Arthur Dobrln, ‘Three approaches to ethics: principles, outcomes and integrity’ Psychology Today (18 May 2012) < https://www.psychologytoday.com/us/blog/am-i-right/201205/3-approaches-to-ethics-principles-outcomes-and-integrity > accessed 12 August 2022 .

Abstract   The authors, faculty members at Northeastern University and Boston University, highlight the shifting values and priorities of their Millennial and Gen Z students as they prepare for work in the innovation and entrepreneurship fields. In their classes with both undergraduate and graduate students, they explore the rich intersection between creativity, business, and social impact.   In alignment with worldwide trends, their students want to launch ventures that are meaningful, economically viable, and socially responsive to the challenges of our time. As witnesses to increasing economic disparity, the effects of climate change, political upheaval, culture wars, and pandemics like Covid-19, these generations see clearly that business models based only on profit are outdated. The next generation is demanding a shift in the profit-driven paradigm toward one that is inclusive and responsive to a triple bottom line: People, Planet, and Profit.   Gen Z and Millennial students want to solve problems that truly matter while honouring their individuality; they want to make a positive impact in their communities in a way that is also financially sustainable.   The authors share case studies that emphasize the importance of integrating their four part Make/Care/Strategize/Implement (MCSI) Framework into the fabric of organizations from the visioning stage to implementation:   MAKE like artists CARE like activists STRATEGIZE like entrepreneurs IMPLEMENT like organizers   By implementing the MCSI Framework, the next generation of entrepreneurs will have the building blocks necessary to embrace a more holistic, sustainable approach to business that lays a foundation for a lifetime of meaningful, impactful work.   Bringing Meaning to the Marketplace   Let us paint a picture for you. Or better yet, we will share our story in three acts:   Act 1: Individuals   We see a need for the next generation of students to gain entrepreneurial skills to develop meaningful ventures for the future. Starting with artists and arts administrators, and branching out across university silos to incorporate students from across disciplines, we create graduate and undergraduate courses and introduce the Make/Care/Strategize/Implement (MCSI) Framework.   Act 2: Community   We host a symposium, Art and Ideas in Action: Arts + Business + Social Impact,  utilizing the MCSI Framework, and confirm that imaginative thinking, strategic partnerships with key stakeholders, and clear measurable outcomes are essential to inspire meaning and hope during complex times, not just for students but for broader community-based audiences. This symposium is a catalyst for what is now the largest conference for students interested in innovation and entrepreneurship, IDEA  Con , hosted annually by Innovate@BU, Boston University. [1]   Act 3: Society   With the rapid advancement of artificial intelligence and a host of other challenges, we recognize the importance of the integrated MCSI Framework to develop a human-centered economy. Through intentional, strategic integration of creativity, higher education can take the lead in providing a clearer sense of purpose and promoting innovative solutions amongst its students.   Act 1: Individuals   The Beginning: Teaching Professional Skills to Artists   Art students (visual, performance, and music) spend thousands of hours perfecting their craft with little space to gather the tools they need to market their work. Many art students graduate with highly developed artistic expertise in their chosen disciplines but lack the entrepreneurial skills necessary to create the impact they want, and arguably the impact society needs.   When we were asked to co-create an experimental course called Cultural Entrepreneurship  within the graduate Arts Administration program at Boston University, we welcomed the challenge to teach artists and arts administrators how to reimagine new revenue streams that support their creative expertise and competencies. With backgrounds in   arts, social impact, political organizing, and entrepreneurial consulting, we as instructors emphasized a practical and experiential learning-based approach.   As faculty members, we are committed to unlocking students’ creative and entrepreneurial mindsets, and our courses help students to recognize their potential to be change makers. We challenge our students to create vibrant, economically viable ventures that extend from their visionary entry points as artists and arts leaders. Introducing our students to the vocabulary of startups, from Minimum Viable Product (MVP) to Return On Investment (ROI), we teach the distinctions between various business models, including nonprofit, for-profit, and benefit corporations. While this is basic information for business students, it is rarely talked about in art schools.   Cultural Entrepreneurship as an academic discipline has had a 20+ year history in the UK, drawing international attention with the publication of John Howkins’s book, The Creative Economy: How People Make Money from Ideas . [2] Nonetheless, in the context of Boston University’s arts administration program, the introduction of this class in 2013 was groundbreaking. Since the course began, we have taught thousands of students, many of whom continue to remain in contact with us. As of 2023, over 40% of those surveyed have launched their own ventures, as both entrepreneurs and intrapreneurs, at the intersection of Arts & Culture, Business & Technology, and Social Impact.   We treat our course as an incubator for real-world startup ideas, taking students through ideation, testing, and pitching their new ventures. Our students are excited and energized by this learning-by-doing approach. For many, this is the first time they are learning about the workings of the rapidly evolving creative economy, along with the challenges and opportunities for art entrepreneurs.   Our students are growing and thriving, using words such as ‘transformative’, ‘exhilarating’, and ‘eye opening’ to describe their experiences in our class. We have tapped into a desire for a new definition for success: one that includes financial viability, but also creative engagement and social relevance. This makes honing a creative, entrepreneurial mindset an important professional skill. Our primary focus when we first started in 2013 was to teach artists and arts administrators the importance of keeping an eye on the broader markets and communities while also fulfilling their individual creative purpose. We created a safe community-oriented classroom that encouraged students to get comfortable taking risks while developing their entrepreneurial skills and perfecting their artistic crafts so that they could generate their own economic opportunities.   While we started by teaching artists the skills and language of the innovation and entrepreneurship world, our interdisciplinary approach has now expanded to students from various disciplines. We use a framework that teaches a creative mindset to serve a broader population.   It was in these first classrooms that our MCSI Framework originated:   MAKE LIKE ARTISTS:  While creativity is inherent in every individual, we help students access it and integrate creativity into their day-to-day lives. Using the Creative Re/Frame M.A.K.E. Framework we help students get Messy to activate idea generation, be Awake and Aware of opportunities around them, Keep going through their challenges and Enjoy the process.   We offer our students the tools and techniques to foster a creative mindset, unlocking imagination to envision new strategic and innovative solutions.   CARE LIKE ACTIVISTS:  Caring for the larger community makes for better business and for deeper personal fulfilment. Using a Creative Re/frame C.A.R.E Framework, we help students hone in on the powers of Curiosity, Awareness, Responsibility, and Empathy and connect these elements to unique organizational value propositions.   STRATEGIZE LIKE ENTREPRENEURS:  Using design thinking, we empower our students to develop their ventures step-by-step. By right-sizing and strategically structuring business models, students can successfully set specific, measurable, and achievable goals.   IMPLEMENT LIKE ORGANIZERS:  We help students translate ideas into action. Urgency, tasks, timelines, and measuring impact are crucial for success. We stay highly focused on final products aimed at the systemic change needed to create long-lasting impact.   CASE STUDY: BENDADA MUSIC FESTIVAL [3]   Inês Andrade, a doctoral candidate in performance classical piano at Boston University’s College of Fine Arts, traveled from Lisbon to her family’s home of Bendada, Portugal. While she had driven the mountainous windy roads countless times in her life, this year was different. She had been asked to perform a Christmas concert in the newly inaugurated Casa da Música da Bendada , a well-appointed music school built with funding from a European Union grant. The building was beautiful; its soundproof practice rooms and a modern concert hall overlooked the valley below. But aside from the Christmas concert, the hall was largely empty the rest of the year. The town of Bendada has had a long history with music, starting in 1870 when the Sociedade Filarmónica Bendadense  was established. This musical history, combined with the economic demise of the region from the 1970s, got Inês thinking. She was performing in a gorgeous music hall, and she realized this was an opportunity to create something more. The seed for the Bendada Music Festival was planted. ‘I always knew I wanted to do more with music than just perform concerts’, she says. ‘I wanted to create something that could make an artistic and economic impact that could help revitalize the whole community. My community’.   As a committed artist dedicated to piano from an early age, Inês had the artist’s discipline to finely hone her expertise, connecting to a purpose that she then shared with others. Inês came to the first part of the MCSI Framework (Make Like an Artist) from an authentic entry point. As an artist, she channelled her creative practice to an intention that fuelled and inspired both herself and others.   Back in Boston for her final semester prior to receiving her doctorate, Inês enrolled in the Cultural Entrepreneurship class. Inês used the course to workshop her vision and build skills using the MCSI Framework to:   Make Like an Artist by building on her credibility as a well-established musician. Care Like an Activist by owning her authentic connection to the town of Bendada, its long history as a music centre, and undertaking research to more fully understand its current plight. Strategize Like an Entrepreneur by networking to build a sustainable funding model. Implement Like an Organizer by partnering with the Portuguese Secretary of Economic Development, Portugal State Tourism office, and the Boston University community.   Integrating the four pieces of MCSI, Inês was able to turn her idea into a viable international program that has had a quantifiable impact in the region and beyond . But she knew she couldn't do this alone, nor did she want to. She formed a formidable partnership with a fellow doctoral candidate in performance piano, Edoardo Carpenedo. Edoardo took the same graduate class the following year so they could have a common language and vision as they prototyped their venture they founded together, the Bendada Music Festival.     In the summer of 2024, the Bendada Music Festival completed its 9 th  year with a record number of students, ranging in age from 14 to 22 years old. Music teachers from around the world, and corporate, community, and governmental partners, all gathered to enjoy captivating concerts. Thousands of audience members from local communities came together in unique concert venues ranging from 12 th -century castles to 16 th -century churches. The local community participates in the Bendada Community choir, hosts a folk festival in the town square alongside the music festival, and houses students in individual homes. Along with the hundreds of students and instructors who hone their skills through the festival each year, Bendada citizens participate as musicians and concert goers, and restaurants and hostels benefit from the increase in tourism and revenue. Act 2: Community   The Ripples: Recognizing the Need for MCSI in a Larger Context   As impact-oriented educators as well as community-based professionals we wanted to share our learnings in the classroom with a larger audience. We set out to create an opportunity for our students to network with innovators within the corporate, nonprofit and political arenas, as well as to share our resources and learnings with the broader Boston community so that it was not sequestered to the campus. We understood the importance of igniting the power of interdisciplinary partnerships to scale the impact of what we were creating in the classroom. Building on the MCSI Framework, we partnered with the BU’s College of Fine Arts, Questrom School of Business, and the BU Arts Initiative to introduce a unique, creative public symposium: Arts & Ideas in Action: Arts + Business + Social Impact .   Tapping into our own collective creative mindset to make  our vision a reality, we cared like activists, reaching out to cross-disciplinary stakeholders to work with us to infuse energy, hope and purpose into a welcoming space. We strategically  built cross-disciplinary alliances across the campus as well as the city to create an impactful agenda. And we  implemented  a rich, community-based, inclusive conference filled with energy, hope, and measurable outcomes at Boston University on 11 November 2016.   The theme of the conference was optimism and hope. We planned to model how the arts and business communities could work together toward a common good, despite being unlikely bedfellows. We incorporated our students into conference planning through an Ambassador program and invited our communities from outside of the university. The planning committee agreed that it would be best to hold the event after the US Presidential election. The 11 November 2016 date seemed ideal—the event would happen toward the end of the semester but not too close to the holidays. Three days before the symposium,   surprising election results revealed a very divided country. And as any good organizer, innovator, entrepreneur, or improv actor knows, our job was to remain nimble while working with dynamic variables.   After the US Presidential election, the direction of our symposium shifted from confidence to confusion, from optimism to uncertainty. We were bringing together Boston’s business and arts community after a highly divisive election. We asked ourselves, ‘How can we acknowledge the tense post-election climate without being political? How can we maintain a tone of collaboration and promote goodwill among people who potentially held opposing beliefs?’. Originally, we thought that the symposium would offer innovative networking opportunities; now we feared that the audience would be unable to span their differences.   Our sold-out crowd filled the newly renovated Boston University Graphic Design department’s space. Attendees from Boston-based for-profits, nonprofits, and government agencies gathered with higher education administrators, faculty, and students to explore the question, ‘What happens when art and business join forces to create stable economic opportunities and build vibrant communities while addressing societal needs?’.   To acknowledge the political sea change, we updated our introductory slide deck to include a Toni Morrison quote: ‘This is precisely the time when artists go to work. There is no time for despair, no time for self-pity, no need for silence, no room for fear. We speak, we write, we do language. That is how civilizations heal’. We knew that no matter how people voted or what political views they held, we stood by the belief that the arts have the power to connect, fortify and help us to build equitable, healthy, empathetic, respectful communities that benefit everyone.   To our delight, the tone of the symposium honoured our original vision to create an atmosphere of hope and possibility, but with even more energy and focus. Not only did artists need economic opportunities, but it was abundantly clear that businesses needed creative partners to help reimagine new ways forward. We began to think about the potential for arts and business collaborations to develop in a larger socio-economic context.   When Boston University’s BUild Lab IDG Capital Student Innovation Centre opened their doors in 2017, we partnered with them as creative practitioners in residence to expand upon the model of the Arts & Ideas in Action: Arts + Business + Social Impact   symposium to design and grow what is now the largest cross disciplinary student innovation conference in the USA, IDEA Con. [4]  Fast forward to October 2024 and IDEA Con, now with over 700 participants registered from 25 colleges and universities, incorporated an exercise from the MCSI second module of CARE Like an Activist through interactive CARE Cafés with all the participants in the auditorium.   These CARE Cafés were introduced by first posing the questions: ‘Where does creative innovation come from? And ‘What are problems worth solving?’. The CARE Cafés provided an opportunity for attendees to verbalize to each other what motivates them to get involved in something beyond themselves by exploring their CARE: an acronym for Curiosity, Awareness, Empathy, and Responsibility.   Prompts included:   WHAT  big problems are you curious about? HOW  do you want to address these problems? WHERE  do you think this interest/desire comes from? WHY are you the one to address this? Why now? WHAT  is your unique entry point into this problem? WHO else do you want to talk with to explore this problem/opportunity?   Once attendees had an opportunity to gather their individual ideas through a journaling exercise, they were put in two long lines and participated in a time-based speed dating-like activity. By giving individuals an opportunity to explore what they care about and articulate it to others, we allowed them to make authentic connections with a larger community, hatch partnerships, and deepen their sense of meaning from the event.   In addition to the CARE Cafés, IDEA Con highlights young creative entrepreneurs by giving them opportunities to share their stories in five-minute, TED Talk-style presentations. These speakers follow the MCSI Framework, inspiring attendees to tap into their own wellspring of curiosity. Over the years IDEA Con has featured student innovators such as:   Max Bard . [5]  A graduate of Boston University’s MFA program, Max is an interdisciplinary artist who uses recycled materials for his pieces with clients ranging from Google to national parks and galleries. IDEA Con hired Max to create a sculptural piece during the day-long conference emphasizing the theme of sustainability. His pop-up artist studio on the first floor of the Questrom School of Business at IDEA Con was an interactive practice inviting attendees to comment, share and discuss his piece in real time emphasizing the importance of Making like an Artist.   Ellice Patterson . [6] While studying for her MS from Boston University, Ellice was also establishing her non-profit organization Abilities Dance Boston that uses dance as a tool to advocate for intersectional disability rights. Ellice was a speaker for IDEA Con and modelled the importance of Caring like an Activist by creating a venture that aligns with her belief that dance should be inclusive of all body types. Her dance troupe then joined her on the stage to share their work and a performance with the audience.   Anj Fayemi . [7]  A rap artist and computer scientist from Nigeria, Anj was studying at MIT when he stumbled across a problem he was uniquely suited to solve. He was getting ready to release a new album and wondered, ‘How can artists use technology to directly interact and grow their fan base?’. He founded his for profit company, Rivet, in his third year at MIT and shared his story at IDEA Con from ideation to implementation underling the critical aspects of Strategizing Like and Entrepreneur and Implementing Like an Activist.   While continually refining the MCSI Framework, we have had opportunities to introduce the approach to thousands of students, professionals, and international dignitaries. We have found that no matter the age, experience, or industry there is a deep connection to incorporating the four quadrants of the MCSI Framework to make more meaningful work. The MCSI Framework clarifies and encourages participants to pay attention to the distinct puzzle pieces starting with authenticity and ending with solving problems that matter.   Act 3: Society   Reframing Future Economies   We have arrived at Act 3 in our story. In Act 1, our goal was to introduce entrepreneurial skills to art students, which we then grew into an interdisciplinary approach to creative entrepreneurship integrating our MCSI framework. In Act 2, our perspective broadened to reveal how the MCSI framework can serve a larger community through the symposium Arts & Ideas in Action: Arts + Business + Social Impact and later, through the IDEA Con Student Innovation Conference.   Our Gen Z and Millennial students are acutely aware of the uncertain economic future with the rapid advancement of artificial intelligence and a host of challenges including climate change, economic disparity and political unrest. They seek employment that reflects their triple bottom line values, provides financial security and offers hope for the future. If they can’t find these opportunities in existing companies, they are committed to building new ones. And our students are not alone—in the Deloitte 2023 Gen Z and Millennial Survey: Waves of Change: Acknowledging progress, confronting setbacks, 22,000 Millennials and Gen Z’ers across 36 countries responded with a deep concern for unethical business practices and political unrest. [8]  With businesses holding the locus of power in our time, Millennials and Gen Z’ers look to business leaders to rise up to address economic greed, disparity and the impending impacts of climate challenges.   Researchers from UK-based research organizations, Nesta and Pearson, assert that the future will require both human and machine capacities. As automation and artificial intelligence expand in the workplace, so will the need for deeply human skills like ‘originality, active learning and the fluency of ideas’. [9] The MCSI Framework offers student innovators the opportunity to cultivate and integrate deeply human skills into their ventures. As educators, we believe higher education is poised to lead a paradigm shift, providing students with the language and tools to become our future creative, caring, and strategic innovators.   We have arrived at the end of Act 3, but the curtain does not close. Universities are poised to play a key role as incubators for interdisciplinary collaboration and socially responsible innovation. Through a holistic approach that integrates making, caring, strategizing, and implementing, together we can create the meaningful businesses of the future. Wendy Swart Grossman and Jeannette Guillemin Wendy Swart Grossman is both a faculty member at the Questrom School of Business at Boston University as well as a co-founder of Creative Re/Frame, LLC.  With a background in global presidential politics and NGO and non-profit social impact organizations, she infuses creativity into her classrooms and client spaces to drive authentic community centered change to amplify the voices of her students and clients missions.    Jeannette (Jen) Guillemin is both a faculty member at the D’Amore-McKim School of Business at Northeastern University as well as a co-founder of Creative Re/Frame, LLC. With a background spanning arts leadership, counseling, and experiential learning, she integrates creativity and reflection into her classrooms and client collaborations to cultivate ethical leadership, foster resilience, and spark community-centered innovation. [1]  See ‘IDEA Con 2024’ ( Boston University ) < https://www.bu.edu/innovate/events/idea-con/ > accessed 19 December 2024. [2]  John Howkins, The Creative Economy: How People Make Money from Ideas  (Allen Lane 2001). [3]  See ‘Bendada Music Festival’ < https://bendadamusicfestival.com/ > accessed 19 December 2024. [4]  See (n 1). [5]  See ‘Home’ ( Max Bard ) < https://maxbard911.com/ > accessed 19 December 2024. [6]  See ‘Abilities Dance Boston’ < https://www.abilitiesdanceboston.org/ > accessed 19 December 2024. [7]  See ‘Where we began’ ( Rivet ) < https://www.rivet.app/about-us > accessed 19 December 2024. [8]  ‘2023 Gen Z and Millennial Survey’ ( Deloitte ) < https://www2.deloitte.com/cn/en/pages/about-deloitte/articles/genzmillennialsurvey-2023.html > accessed 19 December 2024. [9]  Hasan Bakhshi, Jonathan M Downing, Michael A Osborne, and Philippe Schneider, ‘The Future of Skills Employment in 2030’ ( Pearson and Nesta , 2017) < https://media.nesta.org.uk/documents/the_future_of_skills_employment_in_2030_0.pdf > accessed 19 December 2024.

The voice came from an oblong metal plaque like a dulled mirror which formed part of the surface of the right-hand wall […]. The instrument (the telescreen, it was called) could be dimmed, but there was no way of shutting it off completely.[1]   1. Introduction Prior to the spring of 2020, two notable events occurred in quick succession: surveillance vans equipped with Live Facial Recognition (‘LFR’) technologies were seen patrolling Cardiff City Stadium before the club’s football match with Swansea City,[2] and the Metropolitan Police Service announced that it had installed an LFR camera at Oxford Circus, a highly-trafficked area in the Westminster borough of London.[3] Facial recognition is by no means the only way in which personal data is captured and used by the police,[4] but it is certainly one that has gripped the imagination of the public. Civil society groups have described the technology as an ‘Orwellian mass surveillance tool’ not unlike the instruments used in the fictional state of Oceania in 1984 .[5] The increasing use of facial recognition technology by law enforcement agencies, therefore, poses an acute regulatory challenge, with many concerned that ‘existing legislative and policy frameworks are outdated and fail to account for the new and various ways in which biometric data is, or might be, accessed and used’.[6]   This article seeks to contribute to evolving scholarship on the use of LFR by law enforcement from the vantage point of international human rights law (‘IHRL’).[7] It begins by situating the regulation of LFR within the parameters of the relationship between the law and technology, before elaborating on how LFR operates, as well as on the justifications for its deployment by police forces. The article then examines the main sources of international law on discrimination that apply in this context, focusing in particular on the issue of racial bias. It does not, however, set out an exhaustive checklist of the potential systemic biases inherent in LFR technology; rather, it addresses the underlying normative question of when, if ever, the police may make use of such tools in a manner compliant with IHRL principles on equality and non-discrimination.   2. LFR and the relationship between law and technology   The nature of the relationship between the law and technology has been debated at length. Proponents of technological exceptionalism have suggested that the ‘essential qualities’ of technology ‘drive the legal and policy conversations that attend them’.[8] This school of thought reinforces what Carter and Marchant have described as the ‘pacing problem’: the idea that ‘rules-based regulation cannot keep up with the pace of new developments’.[9] Indeed, the notion that the law is ill-equipped to deal with the extent and rate of technological advancement has received traction amongst scholars. Johnson and Post, for example, in response to the limitations of ‘territorially-based law-making and law-enforcing authorities’,[10] have argued in favour of a new form of Internet governance, unbound by geographical boundaries. Similarly, Calo has suggested that the interaction of new and emerging technologies with outmoded legal frameworks prompts a ‘systematic change to the law or legal institutions in order to reproduce, or if necessary, displace, an existing balance of values’.[11] This process is not framed as static in nature, but as one continually on the move, since ‘technology has not stood still’.[12]   However, there are those that have expressed reservations about attempts to linearise the relationship between the development of the law and technological change. Jones, in particular, has criticised theories of technological exceptionalism for failing to account for the fact that ‘the story of law and technological change is much more varied, messy, and political’.[13] According to Jones, rather than linearly following technology, ‘a great deal of legal work shapes technology and the way in which it will be understood in the future’, with ‘scholars, judges, regulators, and legislators often [making sense] of technologies in a way that is forward-looking’.[14] In a similar vein, Balkin indicates that it is ‘[unhelpful] to speak in terms of ‘essential qualities’ of a new technology that we can then apply to law’.[15] Although acknowledging that Calo’s thesis ‘is destined to be the starting point for much future research in the area’, Balkin argues in favour of assessing the evolving uses of emerging technology for the purposes of developing the law, given that ‘people continually find new ways to employ technology for good or for ill’.[16]   The global governance of LFR and so too its uses in law enforcement contexts are thoroughly interconnected with competing conceptions of the relationship between law and technology. On one hand, the essentialist tendencies of technological exceptionalism have been borne out in descriptions that stress the novelty of facial recognition as ‘an attractive solution to address many contemporary needs for identification’, bringing together ‘the promise of other biometric systems […] and the more familiar functionality of visual surveillance systems’.[17] On the other hand, a number of authors have raised concerns about the uses (and abuses) of such technology on human rights grounds.[18] For instance, scholars including Bu have attempted to evaluate the lawfulness of facial recognition technology by reference to both EU data protection rules and the privacy jurisprudence of the European Court of Human Rights (‘ECtHR’).[19] Whilst attention has naturally focused on the extent to which infringements upon privacy and data protection rights may be ‘justified as a necessary and proportional invasion’,[20] the extent to which the use of LFR has been tested against international legal principles and standards on discrimination remains under-developed.[21] Indeed, in the British context, Bradford, Yesberg, Jackson, and Dawson have described ‘potential bias and discrimination’ as a ‘significant controversy’ in the use of LFR by police forces—a concerning possibility which requires consideration of two issues.[22] First, what justifications have been raised in favour of the use of LFR by police forces? Second, what specific aspects of LFR usage by law enforcement raise the spectre of potential discrimination?   3. The operation of LFR   In perhaps the most sustained independent analysis of the use of LFR in the context of British policing, Fussey and Murray identify four salient features.[23] First, facial recognition technology allows ‘for the real time biometric processing of video imagery’; unlike CCTV cameras, the process by which individuals are identified and tracked through their facial features is partly automated.[24] Second, compared to open street surveillance cameras, LFR possesses ‘additional and powerful capabilities’ in the form of ‘enhanced data-matching’.[25] Third, LFR is integrative in nature: it is possible for such technology to be accommodated into ‘police body worn cameras or city-wide surveillance camera networks, on a 24/7 basis, and for the resultant data to be subject to automated analysis’.[26] Fourth, the objects identified in the deployment of facial recognition technology are not disposable or transferable: the software ‘creates a digital signature of identified faces, and then analyses those digital signatures against a database (referred to as the ‘watchlist’) in order to determine whether there are any matches’.[27]   4. The rationales for police use of LFR   Having briefly outlined how facial recognition technology operates, there is one remaining question that warrants consideration: why, exactly, has LFR been promoted in modern policing practices? The answer to this question rests on the belief that the technology advances the aims of effective policing and crime prevention. It is my proposal that this assumption is predicated on two rationales—efficiency and impartiality—and that the orthodoxies upon which these rationales in turn rest have unstable foundations. The gaps and inconsistencies responsible for this instability are significant to the extent that they impinge upon the discrimination risks associated with the use of facial recognition tools by law enforcement agencies.   a. Efficiency   In attempting to justify its deployment by police forces, advocates of LFR have repeatedly lauded its ‘efficiency’ in enhancing surveillance capabilities. As Hamman and Smith have put it, ‘[facial recognition] technology has benefited law enforcement in innumerable ways, such as creating reliable evidence, enabling efficient investigations, and helping to accumulate data that allow law enforcement to react quickly and effectively’.[28] This emphasis on the functionality of facial recognition technology can be directly correlated with the increasing use of such tools ‘to ensure security and combat terrorism around the world’.[29] Yet LFR also has the potential to be employed in situations that fall outside the scope of national security and counterterrorism operations. As observed by the Divisional Court in R (Bridges) v Chief Constable of South Wales and Ors [2019] EWHC 2341:     Like fingerprints and DNA, AFR technology enables the extraction of unique information and identifiers about an individual allowing his or her identification with precision in a wide range of circumstances. Taken alone or together with other recorded metadata, AFR-derived biometric data is an important source of personal information.[30]   There is cause for concern with regard to the potential mission creep of facial recognition technology into operational policing writ large. Whilst efficiency-based arguments in favour of using LFR in law enforcement contexts hinge upon its putative benefits, what is less clear is whether they are grounded in empirical evidence. At present, the Face Recognition Vendor Test, a series of large-scale assessments of LFR systems realised by the National Institute of Standards and Technology (‘NIST’) in the United States, represents the most comprehensive independent evaluation of cross-demographical performance inconsistencies in such technology.[31] Its 2019 study of 189 LFR software programs identified that racial minorities were up to 100 times more likely to be wrongfully identified than White males in facial recognition deployment exercises.[32] Other analyses have also identified problems with LFR software in relation to the accurate identification of juveniles and darker-skinned women.[33] These inconsistencies raise serious concerns as to the effectiveness of LFR as a mode of data-driven policing and undermine the extent to which the attendant disruption to ‘the balance of power between governors and the governed’ is normatively warranted.[34]   b. Impartiality   Morgenthau’s conception of the police as ‘law-enforcing agency’ usefully illustrates how the notion of police impartiality is, at its very core, a protean concept.[35] On one hand, the meaning of police impartiality may be viewed as identical to that of equality before the law: ‘the police are in this sense impartial if they mete out equal treatment to persons and situations which the law requires to be so’.[36] Nevertheless, the impartiality of the police also ‘performs a social and political function similar to that performed by the reputation of the courts for being the impartial “mouthpiece” of the law’.[37] As it is the purpose of law enforcement agencies in this context to ‘defend that legal order and maintain that status quo’, an institution whose purpose is ‘the defense of the legal order cannot be impartial with regard to it, but must rather be for or against it’.[38]   With respect to the use of LFR by law enforcement agencies, impartiality is closely allied with the notion of accuracy. The NIST’s Face Recognition Vendor Test clearly illustrates this association.[39] NIST assesses the correctness of classification procedures so that ‘face recognition system developers, and end users should be aware of these differences and use them to make decisions and to improve future performance’.[40] In correlating the ostensible precision of algorithms with notions of fairness and objectivity, the use of facial recognition technology by law enforcement agencies promises to improve the accuracy of suspect identification[41] and curb discriminatory uses of police discretion, such as in the stop and search context.[42]    There is, however, one problematic point that can be drawn from the use of impartiality as a rationale for the deployment of LFR by police forces. As mentioned earlier, the social and political function of police impartiality—that is, to defend the legal order and maintain the status quo—inevitably raises the question of whether LFR may in fact entrench existing biases amongst law enforcement agencies. The long and difficult history of communities of colour feeling the sharp edge of the law as a consequence of police action heightens the significance of such an inquiry.[43] Given that the disproportionate representation of Black people in the criminal justice system has, in the words of one author, become ‘the single most vexed, hotly controversial and seemingly intractable issue in the politics of crime, policing and social control’, the reinforcement of this status quo via LFR technology engages fundamental issues as to the categorisation of relations between the police and minority ethnic communities.[44]   5. International human rights law on discrimination   The principle of non-discrimination has served as a constant since the nascence of human rights law in the form of the Universal Declaration of Human Rights, which applies without ‘distinction of any kind’.[45] The Intentional Convention on the Elimination of All Forms of Racial Discrimination (‘CERD’) and the International Covenant on Civil and Political Rights (‘ICCPR’)—the two most important treaties on the prohibition of discrimination in the context of civil liberties—provide fertile ground for an analysis of whether the use of LFR by law enforcement agencies is IHRL-compliant.   International law prohibits both direct and indirect discrimination and places positive and negative obligations on States to uphold these prohibitions. The CERD prohibits discrimination on the basis of ‘race, colour, descent, or national or ethnic origin’,[46] and obliges States, in particular, to legislate against racial discrimination and ensure compliance amongst public authorities with the obligations set out in legislation.[47] Discrimination on the same grounds is prohibited under the ICCPR. Indeed, the ICCPR further clarifies that the right to not be discriminated against ‘on the ground of race, colour, sex, language, religion or social origin’ is non-derogable,[48] even in situations such as public emergencies where States may permissibly limit other rights (freedom of expression, for example).[49] Framed within the parameters of this overarching framework, the question that falls to be determined is whether international law prohibits the use of race, or a proxy for race, as a factor in the deployment of LFR technology by law enforcement.   For the sake of this inquiry, it is necessary to outline the elements of direct and indirect discrimination under international law. Direct discrimination occurs when an act has the ‘purpose’ of ‘nullifying or impairing the recognition, enjoyment or exercise’ of a particular group’s rights or freedoms.[50] Of most direct relevance to the use of LFR by law enforcement, indirect discrimination involves actions or policies that are ostensibly neutral but which in practice have a disproportionate impact, or ‘effect’, on a particular group’s enjoyment of rights or freedoms.[51] The particular context and circumstances of an act are relevant considerations for these purposes; as confirmed by the Committee on the Elimination of Racial Discrimination in L.R. v Slovakia, ‘indirect discrimination can only be demonstrated circumstantially’.[52] Notwithstanding the recognition of ‘purpose-based’ and ‘effect-based’ discrimination under IHRL, not all forms of disparate or disproportionate treatment are impermissible. A difference in treatment will not constitute discrimination if the criteria for such differentiation are ‘legitimate’.[53]   The practice of ‘racial profiling’ in policing—namely, ‘the use of race, ethnicity, religion, or national origin rather than individual behaviour as the basis for making law enforcement decisions about who may be involved in criminal activity’—exposes the slippage between ostensibly legitimate forms of discrimination and conduct which violates international law.[54] Bowling and Phillips, for instance, have argued that crime statistics could be seen as both a ‘shield’ for law enforcement agencies in the United Kingdom ‘with which to defend the disproportionate use of stop search’, and a ‘sword’ by which ‘police officers might select suspects’ within groups purported to be likely participants in criminal activity.[55] In the American context, Morris has demonstrated how violations of international law are revealed in evidence concerning the disparate impact of pretextual traffic stops on African Americans.[56] These instances of disproportionality do not just incur profound costs at an individual level, but also directly impinge upon the relationship of minority ethnic communities with the criminal justice system: ‘the systematic profiling of black and minority ethnic groups inevitably leads these groups to lose faith in the very authorities that are meant to protect them’.[57] As a consequence, racial profiling conducted under the auspices of crime prevention objectives undermines the very enjoyment of rights guaranteed under the CERD and ICCPR. The significance of LFR in this paradigm relates to its use as a medium by which discriminatory police practices are not only reflected but entrenched.   A textual analysis of the CERD and its interpretative instruments illustrates its potential utility as a means of regulating the deployment of LFR by the police. The object and purpose of the Treaty, according to its Preamble, is to ‘combat racist doctrines and practices’.[58] Article 2 of the CERD obliges States to ‘engage in no act or practice of racial discrimination’, [59] as well as to ‘amend, rescind or nullify’ any local, national or governmental policies which are identified as having the effect of perpetuating discrimination.[60] Regarding the administration of justice, General Recommendation No. 31 provides that States must take necessary steps to prevent ‘questioning, arrests and searches’ based solely on ‘that person’s colour or features or membership of a racial or ethnic group’, or any profiling which exposes him or her to greater suspicion.[61] Correspondingly, General Recommendation No. 13 provides that law enforcement officials must be ‘properly informed about the obligations their state has entered into under the Convention’ and conduct ‘intensive training to ensure that in the performance of their duties they respect as well as protect human dignity and maintain and uphold the human rights of all persons without distinction’.[62] These provisions are significant to the extent that they provide a framework against which the discriminatory impacts of facial recognition technology can be tested, recognising the role of the police as an entry point into the criminal justice system and a means by which States can exercise coercive measures.   6. LFR and racial bias   The issue of racial bias is a point of contention amongst critics and proponents of LFR.[63] Whilst comprehensive studies such as NIST’s Face Recognition Vendor Test have identified extensive demographic biases in deployment exercises, localised assessments conducted in recent years suggest that these discrepancies have been overstated. Indeed, in April 2023, the National Physical Laboratory (‘NPL’), the national measurement standards laboratory of the United Kingdom, tested two facial recognition systems currently used by the Metropolitan Police Service and South Wales Police.[64] Although the NPL study confirmed that the LFR software had the poorest performance on Black-Female faces, it noted that the demographic inconsistencies in accuracy rates were statistically insignificant.[65] The suggestion that statistical insignificance is decisive in overcoming the issue of demographic bias, however, dislocates the use of such technology from its immediate context. The implications of inaccuracies in LFR, however miniscule they are purported to be, can be severe when paired with historical racial disparities in police contact. A false positive match places an individual at risk of being subjected to escalated action in the form of police stops, detentions, and arrests because of an incorrect match against a database.   The divergence in empirical evidence on demographic bias goes to the heart of an assessment of the legality of LFR. In Bridges , the Court of Appeal determined that, in failing to take reasonable steps to make enquiries about whether facial recognition software had bias on racial or sex grounds, the South Wales Police had failed to comply with the Public Sector Equality Duty (‘PSED’) under section 149 of the Equality Act 2010.[66] Despite the lack of clear evidence of racial bias, as Gikay observes, the Court’s findings in respect of the PSED ‘demonstrates that the current equality law [in the UK] can effectively address the concerns of inaccuracy and bias that are raised by the use of LFR technology by law enforcement authorities’.[67] In light of the widespread cross-jurisdictional use of LFR technology, the question remains as to whether IHRL principles on discrimination can be used to these same ends.[68]   7. LFR and indirect racial discrimination   Whilst law enforcement agencies generally do not make use of LFR technology for the purposes of direct discrimination, the effects of potential biases and errors, as discussed, mean that these tools can have a disproportionate impact on racial minority groups compared to other ethnic groups. This amounts to a form of indirect discrimination under the CERD, so long as the ‘criteria for such differentiation, judged against the objectives and purposes of the Convention [are not] legitimate’.[69]   The jurisprudence of the ECtHR is particularly instructive with regard to the issue of legitimate differentiation under international law.[70] The ECtHR has defined discrimination as differential treatment, ‘without an objective and reasonable justification, [of] persons in relevantly similar situations’.[71] A difference in treatment is discriminatory under Article 14 of the ECHR if it has no objective and reasonable justification—that is, if it does not pursue a ‘legitimate aim’ or if there is not a ‘reasonable relationship of proportionality between the means employed and the aim sought to be realised’.[72] Examining a discrimination claim in this context thus requires a two-tiered approach, focusing first on the aim pursued, and second on the relationship between the impugned difference in treatment and the realisation of that aim.   Although the aim of efficient and effective law enforcement is likely to be recognised as a legitimate objective, the second, more difficult undertaking relates to whether the use of biased, error prone LFR technology is proportionate to this aim. Given that Contracting States’ margin of appreciation is narrower in cases involving so-called ‘suspect’ discrimination grounds, in which the category of race falls,[73] ECHR case law mandates that ‘very weighty reasons’ are required to justify why differential treatment appears both suited to and necessary in the realisation of a legitimate aim pursued.[74] Any putative gains in efficiency and so-called impartiality from the perspective of law enforcement agencies must, therefore, be balanced against the infringement upon discrimination rights and the plethora of other freedoms affected by dint of LFR technology.   The unique human rights impacts of LFR suggest that a restrictive approach should be adopted in such a proportionality assessment. As previously mentioned, the use of LFR technology in law enforcement contexts negatively affects the right to a private life due to the ‘capture and processing of biometric information without an individual’s consent’.[75] Deploying LFR technology in public places also has profound negative implications for the enjoyment of rights to freedom of expression and association. The ECtHR’s recent determination in Glukhin v. Russia is a valuable illustration to this effect.[76] In Glukhin , the Court determined that the conviction of a protestor for failing to notify Russian authorities of his intention to hold a solo demonstration, and the use of LFR technologies within this context, violated his rights to respect for his private life and freedom of expression, protected under Articles 8 and 10 of the ECHR respectively.[77]   Viewed in light of this catalogue of rights violations, the potential demographic biases in LFR technology ‘portend a strong foundation for further restricting how governments use’ such tools on indirect discrimination grounds.[78] Indeed, as previously stated, Article 2 of the CERD mandates States to nullify laws and regulations which have the effect of perpetuating racial discrimination.[79] General Recommendation No. 31 further provides that States must ‘implement national strategies or plans of action aimed at the elimination of structural racial discrimination’.[80] The significance of these provisions in relation to the governance of LFR is made clear by the absence of a legal framework in various jurisdictions that clearly define the use, regulation and oversight of such technology.[81] In the absence of targeted regulation, the increasing deployment of facial recognition technology in policing will only perpetuate existing societal divisions and erode confidence in the criminal justice system amongst minority ethnic communities.   8. Conclusion   Like the telescreens that captured Winston’s attention in the opening pages of 1984, the human rights impacts of LFR may be dimmed, but cannot be shut off completely. Taking stock of the positive IHRL obligations on States and the rights affected by indirect discrimination, this paper has suggested that the use of biased and error-ridden facial recognition technology is unlikely to be proportionate to a legitimate aim of effective law enforcement. Such practices should, in this author’s opinion, amount to impermissible indirect discrimination under the ECHR and under international law in general. Whilst this conclusion is necessarily qualified by the divergence in evidence on demographic bias, it recognises the possibility of technological advances either heightening or mitigating the risk of indirect discrimination in the deployment of LFR. This latent risk means that police forces making use of such technology ought to be alive to the prospect of racial profiling occurring and the possibility of trust amongst minority ethnic groups being further diminished. Udit Mahalingam Udit Mahalingam is a recent LLM graduate from the University of Cambridge. He is interested in civil liberties and human rights issues, particularly within the context of national security and law enforcement practices. [1] George Orwell, 1984 (Houghton Mifflin Harcourt 2013) 3-4. [2] Steven Morris, ‘Anger over use of facial recognition at South Wales football derby’ The Guardian (London, 12 January 2020) < https://www.theguardian.com/technology/2020/jan/12/anger-over-use-facial-recognition-south-wales-football-derby-cardiff-swansea > accessed 1 January 2024. [3] Zoe Tidman, ‘Metropolitan Police deploys facial recognition in central London with two hours’ warning’ The Independent (London, 20 February 2020) < https://www.independent.co.uk/news/uk/crime/met-police-facial-recognition-technology-city-westminster-a9346831.html > accessed 1 January 2024. [4] Indeed, the use of LFR by law enforcement can be viewed as part of the broader phenomenon of so-called ‘predictive policing’. See Andrew Guthrie Ferguson, ‘Big Data and Predictive Reasonable Suspicion’ (2015) 13(2) Pa. L. Rev. 327. [5] Sam Shead, ‘“Orwellian” Surveillance Cameras Face Legal Battle’ ( Forbes , 25 July 2018) < https://www.forbes.com/sites/samshead/2018/07/25/orwellian-surveillance-cameras-face-legal-battle/?sh=433d578e1e39 > accessed 1 January 2024. [6] Matthew Ryder KC, ‘Independent legal review of the governance of biometric data in England and Wales’ (‘The Ryder Review’) ( Ada Lovelace Institute , June 2022) [1.3]. [7] Although the focus of the present article, policing is not the only area in which issues around the regulation of LFR arise—see Information Commissioner’s Office, ‘Information Commissioner’s Opinion: The Use of Live Facial Recognition Technology in Public Places’ (18 June 2021) < https://ico.org.uk/media/for-organisations/documents/2619985/ico-opinion-the-use-of-lfr-in-public-places-20210618.pdf > accessed 1 January 2024. [8] Ryan Calo, ‘Robotics and the Lessons of Cyberlaw’ (2015) 103 Calif. L. Rev. 513, 549. [9] Ruth B Carter and Gary E Marchant, ‘Principles-Based Regulation and Emerging Technology’ in Gary E Marchant, Braden R Allenby and Joseph R Herket (eds), The Growing Gap Between Emerging Technologies and Legal-Ethical Oversight (Springer 2011) 165. [10] David R Johnson and David Post, ‘Law and Borders—The Rise of Law in Cyberspace’ (1996) 48 Stan L. Rev. 1367, 1367. [11] Calo (n 8) 552. [12] ibid 515. [13] Meg Leta Jones, ‘Does Technology Drive Law? The Dilemma of Technological Exceptionalism in Cyberlaw’ (2018) Journal of Law, Technology & Policy,   101, 101. [14] ibid 130. [15] Jack M Balkin, ‘The Path of Robotics Law’ (2015) 6 Cal L. Rev 45, 45. [16] ibid 45. [17] Lucas D Introna and Helen Nissenbaum, ‘Facial Recognition Technology A Survey of Policy and Implementation Issues’ 3 < https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1437730 > accessed 1 January 2024. [18] See, for example, Vera Lúcia Raposo, ‘The Use of Facial Recognition Technology by Law Enforcement in Europe: A Non-Orwellian Draft Proposal’ (2022) 29 European Journal on Criminal Policy and Research 515; Diego Naranjo, ‘Your face rings a bell: How facial recognition poses a threat for human rights’ < https://repository.gchumanrights.org/server/api/core/bitstreams/61aa23ad-0262-4f46-bcfe-fc74a1d485f3/content > accessed 1 January 2024; Daragh Murray, ‘Facial recognition and the end of human rights as we know them?’ (2024) 4(2) Netherlands Quarterly of Human Rights. [19] Qingxiu Bu, ‘The global governance on automated facial recognition (AFR): ethical and legal opportunities and privacy challenges’ (2021) 2 International Cybersecurity Law Rev 113, 116-118. [20] Amy K Lehr and William Crumpler, ‘The Impact of FRT Deployment on Human Rights’ in Facing the Risk: Part 2: Mapping the Human Rights Risks in the Deployment of Facial Recognition Technology  (Center for Strategic and International Studies 2021) 10 . [21] Discrimination issues arising from the use of LFR technology have, however, been considered in the context of federal laws and regulations in the United States—see, for example, Rachel S Fleischer, ‘Bias In, Bias Out: Why Legislation Placing Requirements on the Procurement of Commercialized Facial Recognition Technology Must Be Passed to Protect People of Color’ (2020) 50(1) Public Contract Law Journal 63. [22] Ben Bradford, Julia A Yesberg, Jonathan Jackson, and Paul Dawson, ‘Live Facial Recognition: Trust and Legitimacy as Predictors of Public Support for Police Use of New Technology’ (2020) 60(6) The British Journal of Criminology 1502, 1504. [23] Peter Fussey and Daragh Murray, ‘Independent Report on the London Metropolitan Police Service’s Trial of Live Facial Recognition Technology’, ( University of Essex Human Rights Centre , July 2019) < https://repository.essex.ac.uk/24946/1/London-Met-Police-Trial-of-Facial-Recognition-Tech-Report-2.pdf > accessed 1 January 2024. [24] ibid 19. [25] ibid 19. See also ‘Facing the Camera: Good Practice and Guidance for the Police Use of Overt Surveillance Camera Systems Incorporating Facial Recognition Technology to Locate Persons on a Watchlist, in Public Places in England & Wales’ ( Surveillance Camera Commissioner , November 2020) [3.42] < https://assets.publishing.service.gov.uk/media/5fc75c5d8fa8f5474a9d3149/6.7024_SCC_Facial_recognition_report_v3_WEB.pdf > accessed 1 January 2024. [26] ibid 20. [27] ibid 19. [28] Kristine Hamman and Rachel Smith, ‘Facial Recognition Technology: Where Will It Take Us?’ ( Criminal Justice Magazine , 12 April 2019) < https://www.americanbar.org/groups/criminal_justice/resources/magazine/archive/facial-recognition-technology-where-will-it-take-us/ > accessed 1 January 2024. [29] Irena Nesterova, ‘Mass data gathering and surveillance: the fight against facial recognition technology in the globalized world’ (2020) 74 SHS Web Conf 2. [30]  R (Bridges) v Chief Constable of South Wales and Ors [2019] EWHC 2341 (Admin) [57]. [31] Patrick Grother, Mei Ngan, and Kayee Hanaoka, ‘Face Recognition Vendor Test (FRVT) Part 3: Demographic Effects’ ( National Institute of Standards and Technology , December 2019) < https://nvlpubs.nist.gov/nistpubs/ir/2019/nist.ir.8280.pdf > accessed 1 January 2024. [32] ibid 2. [33] Lindsey Barrett, ‘Ban facial recognition technologies for children-and for everyone else’ (2020) 26(2) Boston University Journal of Science and Technology Law. [34] Joe Purshouse and Liz Campbell, ‘Automated facial recognition and policing: A Bridge too far?’ (2021) 42 Legal Studies 209, 209. [35] Hans J. Morgenthau, ‘The Impartiality of the International Police’ (1968) 21(2) Revista Española de Derecho Internacional 267, 269. [36] ibid. [37] ibid. [38] ibid. [39] Grother, Ngan, and Hanaoka (n 31) 3. [40] ibid. [41] Kyriakos Kotsoglou and Marion Oswald, ‘The long arm of the algorithm? Automated Facial Recognition as evidence and trigger for police intervention’ (2020) 2 Forensic Sci Int Synergy 86, 87. [42] See, for example, Sir William Macpherson of Cluny, The Stephen Lawrence Inquiry: Report of an Inquiry (Cm 4262-I, 1999) [6.45]. [43] See, for example, Joel Miller, ‘Stop and Search in England: A Reformed Tactic or Business as Usual?’ (2010) 50(5) Brit. J. of Criminology 954, 954. [44] Robert Reiner, ‘Race and Criminal Justice’ (1989) 16(1) Journal of Ethnic and Migration Studies 5, 5. See also Julia A Yesberg, Arabella Kyprianides, Ben Bradford, Jenna Milani, Paul Quinton, and Oliver Clark-Darby, ‘Race and support for police use of force: findings from the UK’ (2022) 32(7) Policing and Society 878, 878. [45] Universal Declaration of Human Rights, G.A. Res. 217 A(III), U.N. GAOR, 3d Sess., U.N. Doc. A/810 (1948), Art 2. [46] Intentional Convention on the Elimination of All Forms of Racial Discrimination (CERD), Art. 1(a), 660 U.N.T.S 195 (1966). [47] ibid, Art. 2(a), Art. 2(c). [48] International Covenant on Civil and Political Rights (ICCPR), G.A. Res. 2200A (XXI), UN GAOR, 21st Sess., Supp. No. 16, Art. 4(1). [49] ibid, Art. 19(3); Human Rights Committee (‘HRC’), General Comment No. 34, Freedoms of opinion and expression [21] (2011). [50] HRC, General Comment No. 18, Non-discrimination [1] (1989). [51] ibid. [52]  L.R. v. Slovakia, Communication No. 31/2003, Committee on the Elimination of Racial Discrimination [10.4] (1996). [53] See, for example, Broeks v. The Netherlands , Communication No. 172/1984, Human Rights Committee, U.N. Doc. CCPR/C/OP/2 [13]: ‘The right to equality before the law and to the equal protection of the law without any discrimination does not make all differences of treatment discriminatory. A differentiation based on reasonable and objective criteria does not amount to prohibited discrimination within the meaning of article 26.1’. [54] Open Society Justice Initiative, Addressing Ethnic Profiling in Policing  (Open Society Initiative 2009) 17. [55] Ben Bowling and Coretta Phillips, ‘Disproportionate and Discriminatory: Reviewing the Evidence on Police Stop and Search’ (2007) 70(6) MLR 936, 948. [56] Maria V. Morris, ‘Racial Profiling and International Human Rights Law: Illegal Discrimination in The United States’ (2001) 15 Emory Int’l L. Rev 207, 211. [57] Michael Shiner, Zoe Carre, Rebekah Delsol and Niamh Eastwood, ‘The Colour of Injustice: ‘Race’, drugs and law enforcement in England and Wales’ ( StopWatch , 14 October 2018) iv < https://www.stop-watch.org/what-we-do/research/the-colour-of-injustice-race-drugs-and-law-enforcement-in-england-and-wales/ > accessed 1 January 2024. [58] CERD (n 46), Preamble. [59] ibid, Art. 2(1)(a). [60] ibid, Art. 2(1)(c). [61] ‘General Recommendation No. 31, General Recommendation XXXI on the Prevention Of Racial Discrimination in the Administration and Functioning of the Criminal Justice System’ (Committee on the Elimination of Racial Discrimination, 2005) 20. [62] General Recommendation No. 13, General Recommendation XIII on the Training of Law Enforcement Officials in the Protection of Human Rights’ (Committee on the Elimination of Racial Discrimination, 1993) 2. [63] See, for example, the Court of Appeal’s observations in R (Bridges) v Chief Constable of South Wales and Ors [2020] EWCA Civ 1058 [199].   [64] Tony Mansfield, ‘Facial Recognition Technology in Law Enforcement Equitability Study: Final Report’ ( National Physical Laboratory , March 2023) < https://science.police.uk/site/assets/files/3396/frt-equitability-study_mar2023.pdf > accessed 1 January 2024. [65] ibid 4. [66]  Bridges (n 63) [201]. [67] Asress Adimi Gikay, ‘Regulating Use by Law Enforcement Authorities of Live Facial Recognition Technology in Public Spaces: An Incremental Approach’ (2023) 82(3) CLJ 414, 431. [68] The repression of the Uyghur community in Xianjiang represents one of the most notable instances of systematic LFR deployment and is illustrative of the technology’s wide-ranging human rights impacts. Indeed, the UN Office of the High Commissioner for Human Rights have reported on the existence of ‘a sophisticated, large-scale and systematized surveillance system’ in Xinjiang that is ‘driven by an ever-present network of surveillance cameras, including deploying facial recognition capabilities’. See UN Office of the High Commissioner for Human Rights, ‘OHCHR Assessment of Human Rights Concerns in the Xinjiang Uyghur Autonomous Region, People’s Republic of China’ ( OHCHR , 31 August 2022) [96] < https://www.ohchr.org/sites/default/files/documents/countries/2022-08-31/22-08-31-final-assesment.pdf > accessed 1 January 2024. [69] ‘General Recommendation No. 14, General Recommendation XIV on Article 1, Paragraph 1, of The Convention (Committee on the Elimination of Racial Discrimination, 1993) 2. [70] See: European Convention for the Protection of Human Rights and Fundamental Freedoms, Sept. 3, 1953, art. 14, 213 U.N.T.S 221. Article 14 of the ECHR is materially similar to the anti-discrimination provisions in the ICCPR and CERD. It provides that ‘the enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status’. [71]  D.H. and Others v. the Czech Republic , App. No. 57325/00, [44] (ECtHR. Feb. 7, 2006). [72]  Molla Sali v Greece , App no. 20452/14, [135] (Eur. Ct. H.R. Dec. 9, 2018); Eweida & Others v United Kingdom , App nos. 48420/10, 59842/10, 51671/10 and 36516/10, [88] (ECtHR. Jan. 15, 2023). [73] For a comprehensive overview of the development of ‘suspect’ discrimination grounds in ECHR case law, see: Oddný Mjöll Arnardóttir, ‘The Differences that Make a Difference: Recent Developments on the Discrimination Grounds and the Margin of Appreciation under Article 14 of the European Convention on Human Rights’ (2014) 14(4) Hum. Rights Law Rev. 647, 649-652. [74] The ECtHR originally developed the ‘very weighty reasons’ test in cases involving sex or gender discrimination. See: Abdulaziz, Cabales and Balkandali v United Kingdom , App nos. 9214/80, 9473/81 and 9474/81 [78] (ECtHR, 28 May 1985). Even if not referring expressly to the ‘very weighty reasons’ test as such, the Court has reasoned that racial discrimination is ‘a particularly invidious kind of discrimination’, which ‘in view of its perilous consequences, requires from the authorities special vigilance and a vigorous reaction’: Timishev v. Russia , App nos. 55762/00 and 55974/00 (ECtHR, December 13, 2005) [56]. [75] Lehr and Crumpler (n 20) 10. [76]  Glukhin v. Russia, App   no. 11519/20 (ECtHR, 4 July 2023). [77] ibid [90]-[91] [78] Monika Zalnieriute , ‘Glukhin v. Russia App. No. 11519/20 Judgment’ (2023) 111(4) American Journal of International Law 695, 696. [79] CERD (n 46), Art 2(1)(c). [80] General Recommendation No. 31 (n 61), 5(i). [81] In 2022, the Ryder Review recommended, inter alia, that there was an ‘urgent need for a new, technologically neutral, statutory framework’ for the governance of biometric data in the United Kingdom. See Ryder (n 6) para 8.2. For a comprehensive overview of ‘potential legal and regulatory approaches in selected jurisdictions’ towards LFR governance, see Bu (n 19) 116.

This time, it feels like it is finally happening—until Abu Salah comes home with the dreaded news: ‘Wait another two days until the strong winds die down ’. Roliana cannot understand. ‘Daddy, why don’t we just take the airplane?’ she asks. [1]     I. Introduction   Seeking safety and entry into the territory of a state to initiate an asylum procedure, is often a life-risking and traumatising endeavour. Yet, thus far, the state parties to the 1951 Convention Relating to the Status of Refugees (1951 Geneva Convention) including all member states of the European Union (EU) refuse to offer accessible safe passage.[2] The lack of sufficient humanitarian visas exacerbates the situation and forces refugees on perilous journeys across deserts, the sea, and violent borders.[3] Five-year old Roliana and her family fled from Aleppo, in 2012.[4] Part of the city was captured by rebels; regime forces subsequently dropped barrel bombs on densely populated urban areas.[5] Due to the escalating conflict, the family moved up north, towards Afrin, but the war caused water and electricity shortages, dysfunctional schools, and a lack of work.[6] The family decided to cross into Turkey, and eventually to Greece.   This is not a single story, the Syrian conflict has displaced over 12 million.[7] While the forced movement of refugees is one aspect of war and conflict, no conflict is waged without grave breaches of the laws of war, without violence against civilians. The barrel bomb attack on Aleppo by the Syrian regime as well as the indiscriminate shelling by Opposition groups as a response most likely constitute war crimes.[8] Those fleeing conflict zones and wars such as in Syria, like the family of Roliana, but also in Afghanistan, Eritrea, Ukraine, or Sudan, have often experienced these unimaginable crimes. They may have been victims and/or witnesses of war crimes, crimes against humanity or even genocide.   However, instead of issuing visas and thereby opening a safe route by air, the EU imposes sanctions on carriers such as airlines which forces people on dangerous journeys.[9] At Europe’s land borders, the search for a safe haven is answered with entry prevention measures and violence, a systematic practice depriving refugees of their right to seek asylum and freedom from harm that may itself amount to crimes against humanity.[10] Having fled the crimes in their home countries, asylum-seekers are likely to become victims of international crimes in transit again.   Disconnected Realities And yet, even upon arrival in states that provide access to regular asylum procedures, this essential part of a refugee’s experience—the manifest violations of human rights relevant under international criminal law (ICL) before and during the flight—remains outside the scope of the asylum process. The asylum procedure only aims to determine if the applicants meet the legal criteria according to the 1951 Geneva Convention. If so, beneficiaries of international protection are granted a respective residence permit as well as the 1951 Convention travel document .[11] The individual interest of many refugees to seek truth and justice for the harm suffered remains unaddressed in the asylum context.[12] It is only recognised in international treaties dealing with severe harm[13] and under the rules of international criminal law, above all, the Rome Statute of the International Criminal Court (ICC).[14]

‘Throughout history, it has been the inaction of those who could have acted; the indifference of those who should have known better; the silence of the voice of justice when it mattered most; that has made it possible for evil to triumph’. Haile Selassie, United Nations General Assembly, 4 October 1963.[1] Introduction The continuing suffering of the Sudanese people illustrates the futility of international policy-making in the absence of the political will necessary to enforce treaties. As worthy as conventions on human rights and genocide prevention are, without a robust enforcement architecture, the world’s dictators and war lords will continue to persecute and eliminate minority groups with impunity. In Sudan, the blame does not rest on the international community or the legacy of colonialism alone. Faced with human rights abuses, the African Union prioritises state sovereignty and leaders’ immunity from prosecution, and the Islamic world shows little concern for the systematic elimination of Muslims in Darfur. In addition, Khartoum skilfully manipulates American security concerns post-9/11, rendering humanitarian initiatives toothless. This article will draw on personal experience: interviewing survivors in Darfur in 2004, and founding Waging Peace, a charity supporting thousands of Sudanese refugees in the UK. Fig 1. The drawing shows Aishbarra village in Darfur, which was attacked by Janjaweed militia. Houses are set on fire by one of the attackers using a match. Villagers are shot and one person is shown with his left leg severed from the knee down. The villagers that were attacked are coloured in black pencil, while the attackers have lighter (orange) skin – showing the ethnic nature of the attacks (i.e. Arabs attacking ‘black Africans’ – in this case those from the Massaleit tribe). On the bottom right of the drawing are two young men, attached by the neck, led away by a Janjaweed fighter. These young men/boys could be taken into slavery, or may become child soldiers. The Islamist mission On 30 June 1989, the National Islamic Front (NIF) led by Field Marshall Omar Bashir overthrew the democratically elected government of Ja’afar Nimeiri, establishing the world’s second Islamist republic (after Iran). At the previous year’s election, the NIF polled less than 10%. Yet, Sudan specialist Gill Lusk says, the NIF secured power because its members had spent years rising through the ranks of Khartoum’s institutions, guided by their ideological leader, Hasan Turabi. ‘El Turabi and his colleagues had read their Lenin’, says Lusk. ‘The infiltration was patient and systematic and it included uncountable sleepers who revealed their beliefs after the 1989 coup’.[2]

The 2011 Western and Arab intervention in Libya was born of the lessons learned (or, as the case may be, not learned) from the international community’s previous two decades of responding to the outbreak of conflict and commission of gross violations of human rights in various contexts. More precisely, the Libyan case was informed by the international community’s previous failure to stop the horrific genocide in Rwanda and to halt what had been up to that point the largest mass killing on European soil, in Srebrenica, since the Second World War.   During those anxious months in the late winter and early spring of 2011 as observers watched events unfolding in Libya, these lessons ‘weighed heavily on the decision-makers in Washington, London, Paris and beyond’.[1] The world was monitoring a domestic Libyan uprising which was being met, particularly in the city of Benghazi, by the excessive use of force by units under the command of Muammar Qaddafi. The ‘Responsibility to Protect’ (R2P) doctrine was invoked by some international figures to push for the ultimate passage of UNSCR 1973 on the premise of preventing potential crimes against humanity and indeed the resolution contains language pertaining to R2P.[2] This UN resolution paved the way for the NATO and Arab intervention in Libya, which morphed from a protection mission to one of regime change, leading to Qaddafi’s downfall.   Ian Martin, the first UN Special Representative in Libya, in his meticulously documented book All Necessary Measures?  has detailed the initial international decisions taken on Libya in 2011-12. While questioning whether R2P indeed played a seminal role in international decision-making, Martin notes: ‘the Libya experience has done such damage to the limited international consensus there was around the R2P doctrine’.[3]   Whether or not R2P was central to the passage of UNSCR 1973, the lack of serious international investment in the Libya that emerged after Qaddafi regime’s demise was a singular failure on the part of the world’s leading powers especially given the legacy of Qaddafi’s four-decade plus quixotic, chaotic, and terrorizing reign. The international clarity and vision that were applied before the passage of UNSCR 1973 have seldom been in evidence since Qaddafi’s downfall.   As the world has turned its gaze away from Libya, Qaddafi’s successors have spent the past decade quarrelling—often violently—over the shallow legitimacy of the country’s institutions instead of working together to build a functioning state. As a consequence, the ordinary Libyan citizen has been left materially less secure and too often prey to abuse at the hands of the thugs (both home-grown and imported), while some of the victims of Qaddafi’s abuses themselves became victimizers.

Gaza: Can Anyone Hear Us?[1]   In a Washington Post  article published on 16 December 2023, the reporter David Ignatius wrote:   For three days this past week, I traveled the West Bank, from the arid hills below Hebron in the south to the chalky heights of Nablus in the north. What I saw was a pattern of Israeli domination and occasional abuse that makes daily life a humiliation for many Palestinians—and could obstruct the peaceful future that Israelis and Palestinians both say they want.  Driving the roads of the West Bank is—forgive the term—a ‘two-plate’ solution. Israeli settlers with yellow license plates zoom along on a well-guarded superhighway called Route 60. Palestinians with white plates navigate small, bumpy roads. Since Oct. 7, many of the entrances to their villages have often been closed. Traveling in an Israeli taxi with a Palestinian driver, I saw some of both worlds.  I watched backups at Israeli checkpoints near Bethlehem and Nablus that were over a half-mile long and could require waits of more than two hours. The delays, indignities and outright assaults on Palestinians have become a grim routine. ‘If I’m in a yellow-plate car, does that change my blood?’ asked Samer Shalabi, the Palestinian who was my guide in the Nablus area.  My tour of the West Bank was a reality check about what’s possible ‘the day after’ the Gaza war ends. President Biden and other world leaders speak hopefully about creating a Palestinian state once Hamas is defeated. I’d love to see that happen, too. But people need to get real about the obstacles that are in front of our eyes.[2]    I was struck by this piece of reporting—well-intentioned though it was—for the absence of context and history that it reveals. Is Mr. Ignatius only now discovering the occupation and its pernicious impact on Palestinian life, the relentless oppression waged against Palestinians over nearly six decades? Can he now, finally, begin to see the context that led to the current horrific loss of Palestinian and Israeli lives?   In the more than four months since the 7 October conflict erupted, Israel has dropped over 45,000 bombs on Gaza weighing more than 65,000 tons, which is equivalent to three atomic bombs like those dropped on Hiroshima. This has resulted in a level of destruction that is ‘comparable in scale to the most devastating urban warfare in the modern period’, comparable to the bombing of Dresden during the second world war. According to Robert Pape, a University of Chicago political scientist, ‘the word “Gaza” is going to go down in history along with Dresden and other famous cities that have been bombed. What you’re seeing in Gaza is in the top 25% of the most intense punishment campaigns in history’.[3]   Between 7 October 2023 and 19 February 2024, over 29,092 Palestinians have been killed (approximately 70 percent are women and children), 69,028 injured (or 3.0 percent of Gaza’s population) and 1.7 million (out of 2.3 million or 74 percent) have been internally displaced. During the same period, there have been over 1200 Israelis killed (including foreign nationals), approximately 5,400 injured and 134 remain hostage in Gaza.[4] Conservatively, between 29-37 percent of all buildings have been damaged or destroyed[5] including over 60 percent of Gaza’s homes (over 70,000 destroyed or made uninhabitable and over 290,000 damaged) in addition to apartment buildings, water and sanitation infrastructure, factories, businesses hotels, shopping malls, theaters, mosques, and churches. Approximately 92 percent of all school buildings have been damaged (in addition to 392 educational facilities) or are used as shelters. All of Gaza’s universities have been damaged or destroyed and are no longer operational. Similarly, the number of functioning hospitals has dropped from 36 to 14 (11 are partially functional and three are running at minimal capacity).[6] By the second half of November, the World Bank estimated that ‘60 percent of Gaza’s ICT, health and education infrastructure had been destroyed [and] 70 percent of its commerce-related infrastructure’, resulting in an unemployment rate of 85 percent (given the closure of 56,000 businesses and a loss of 147,000 formal sector jobs).[7]   The northern Gaza Strip has no access to clean water and the south receives a meager water supply from one pipeline coming from Israel. By 2 January, there was a full electricity blackout throughout the Gaza Strip, which has continued.[8] The systematic destruction of Gaza’s infrastructure has led to the ‘rapid spread of infectious disease’.[9] Consequently, the World Health Organization warns that the outbreak of disease could ultimately kill more Palestinians than Israeli bombs.[10] According to Professor Devi Sridhar, the chair of global public health at the University of Edinburgh, ‘A quarter of [Gaza’s] population could die within a year due to outbreaks of disease caused by this unprecedented conflict’[11] where ‘indirect health related deaths…can outnumber direct deaths by more than 15 to 1’.[12]

Introduction   The epitome of the 21st century’s Russian war against Ukraine manifested itself in Vladimir Putin’s speech on the morning of 24 February 2022.[1] In his address, the Russian President announced a series of wars against the collective West and the sovereign state of Ukraine. The massive Russian military attack on Ukrainian land, air, and sea was presented to the Russian public as ‘a special military operation’. According to President Putin, ‘The purpose of this operation was to protect people who, for eight years now, have been facing humiliation and genocide perpetrated by the Kiev regime. To this end, we will seek to demilitarize and denazify Ukraine, as well as bring to trial those who perpetrated numerous bloody crimes against civilians, including against citizens of the Russian Federation’. Putin’s bold statement was uttered notwithstanding the facts that, during those eight years, Russia had annexed Crimea and effectively occupied Donbass, two Eastern regions of Ukraine.[2] The Russian government machine failed, however, to gain control over the Ukrainian government and the Ukrainian people beyond the occupation borders.[3]   Arguably, the full-scale Russian invasion, accompanied by an overwhelming scale of atrocious crimes against the Ukrainian nation, creates a ‘context of a manifest pattern of similar conduct directed against’ the Ukrainian nation to destroy it as such, in whole or in part, within the meaning of the crime of genocide.[4] The thesis of this essay is that such a manifest pattern includes a crime that could itself affect such destruction ie the forcible transfer of children of the group to another group (from Ukraine to Russia or Russian-controlled territory).   It is uncontested that since 2014, and later, after February 2023 on a larger scale, a substantial number of Ukrainian children have been transferred, under the control of the Russian authorities, from their homes or places of residence to the territory of the Russian Federation or to the Ukrainian regions under Russian occupation.[5] Based on an analysis of Russian law and the reports of public officials in the field of education and children’s rights, the necessary conclusion is that all such acts were carried out by the state’s centralized system of governance under the control and leadership of President Putin. It is posited that such actions reflect the intent to destroy the nation of Ukraine and eliminate its identity as a separate entity from Russia.   On 17 March 2023, the Pre-Trial Chamber of the International Criminal Court issued arrest warrants for Mr Vladimir Putin and Ms Maria Lvova-Belova, Commissioner for Children’s Rights in the Office of the President of the Russian Federation. They both are allegedly responsible for ‘the war crime of unlawful deportation of the population (children) and that of unlawful transfer of the population (children) from occupied areas of Ukraine to the Russian Federation (under articles 8(2)(a)(vii) and 8(2)(b)(viii) of the Rome Statute)’.[6]

Bo Kyi is a Burmese human rights activist and founder of the Assistance Association for Political Prisoners (AAPP), a human rights organization that advocates for the release of political prisoners in Burma and works to document prison conditions, unlawful arrests, and detention-related abuses carried out by the Burmese government. The AAPP also provides humanitarian assistance and other support to current and former political prisoners and their families. Bo Kyi is a former political prisoner due to to his participation in pro-democracy protests during the 1988 uprising. Assistance Association for Political Prisoners Assistance Association for Political Prisoners.   CJLPA : Can you tell us about your first interactions with politics during the 1988 student movement and what made you want to get involved with anti-government protests?   Bo Kyi : I was born in a country where fear was pervasive. We feared imprisonment, there was a fear of being tortured, losing a loved one or home, a fear of losing your dignity, a fear of poverty and forced labor. The military dictatorship began in 1962, three years before I was born. But by the time I was a teenager I already understood that our university students had long been at the heart of political movements in Burma, since before colonial independence.   In 1988, I was a final year student at Rangoon Arts and Sciences University, majoring in Burmese literature. In that time, there was not a multi-political party system, only one military-aligned party called the Burma Socialist Programme Party (BSPP). We were taught political science in university, but it was the ‘Burmese Way to Socialism’ with no space for criticism. We were told to just listen and memorize what was taught. Students had not been allowed to establish student unions since 7 July 1962, when military soldiers infamously blew up a Rangoon student union with dynamite. Thereafter, all students’ unions were declared illegal, students were forced to join the BSPP for a chance to gain further study, everything was controlled by the Party. I had never heard of democracy or human rights. In university, we had to learn what happened in the past by listening to our elders in secret. Professors and tutors taught us the history of the student movement in Burma, and the role that it played before, in colonial times.   My father was a soldier in the Air Force, and he raised me as if I was a soldier, not allowing any question back. If I asked questions, he beat me. When I was young, I had a great fear of my father. But as I got older and older, I tried to look for ways to free myself from my father. This is why I worked hard to get good grades at high school and go to university. Such kinds of emotions would lead me to join the struggle.   On 22 September 1987, the military government led by General Ne Win announced demonetization of the national currency, the Kyat. The decision rendered the existing banknotes of 1, 5, 10, and 20 kyats invalid. The purported aim of the demonetization was to curb black market activities and reduce corruption, but everyone knew it was led by the senior generals’ superstition. Most of the population faced challenges in exchanging their old currency for the new notes, so many people simply lost their entire savings and what little wealth they had.   As students, we financially relied on our parents as they supported us through our studies. When they suffered, we also suffered. This dissatisfaction with the economic situation soon boiled over into rage at the injustice of dictatorial military rule.

Moral considerations in confiscating Russian assets Russia’s full-scale war against Ukraine has been going on for almost two years. During this time, Russia has committed brutal crimes against Ukrainians, which were witnessed by the international community. In February 2023, the UN General Assembly demanded that Russia stop the war and immediately withdraw its army from Ukraine.[1] In March 2023, the International Criminal Court (ICC) issued an arrest warrant for Vladimir Putin, accusing him of being responsible for the illegal deportation of children from Ukraine, which constitutes a war crime.[2] While Ukraine is fighting for its freedom and awaiting fair adjudication of crimes committed during this bloody war, the material losses of the Ukrainian state are growing.   According to the World Bank, the losses caused by the aggressor amount to more than 400 billion euros on the controlled territory alone, and after the liberation of the entire territory of Ukraine from the invaders, this amount might double.[3] Ukraine’s economy currently functions at the expense of macro-financial assistance from partners, but Russia must pay for the damage it caused to peaceful Ukrainians.   Voluntary compensation by the aggressor country is unlikely. A more practical solution is to confiscate the assets of Russia as a state, as well as its citizens and companies that support the Putin regime. However, prior to the full-scale invasion, there were no universal approaches to the confiscation of assets of the aggressor state with the possible aim of transferring them to the state affected by the aggression while the war was ongoing.   Historically, compensation for war losses was conducted mostly at the expense of state funds on the basis of treaties or other international acts. In most cases, the aggressor state must agree to pay compensation under such treaties, since they are typically negotiated and require the consent of all parties involved. However, there are some scenarios in which compensation may be determined without the direct agreement of the aggressor state:   Imposed reparations: in certain situations, the victorious parties in a conflict may impose reparations on the aggressor state as part of the peace settlement, as after World War I with the Treaty of Versailles.[4] These imposed reparations are often outlined in a treaty or agreement. The aggressor state may be required to accept these terms as a condition for the cessation of hostilities and the restoration of peace.

Over his career, Kevin Macdonald has directed a plethora of documentaries and films which have garnered critical acclaim and popular success. Not one to shy away from sensitive and complex subject matter, Kevin’s work depicts unsanitised, thought-provoking stories, from a documentary on antisemitism to a film on a prisoner in Guantanamo. For the former, Kevin was awarded an Academy Award for Best Documentary feature. His latest film, The Mauritanian , explores the real story of Mohamedou Ould Slahi, a man imprisoned by the US government in Guantanamo and charged with organizing the 9/11 attacks. The film follows civil rights lawyer Nancy Hollander, marine prosecutor Steve Crouch, and the alleged terrorist Mohamedou himself. Featuring a star studded cast of Benedict Cumberbatch, Jodie Foster, and Tahar Rahim, the film intricately weaves complex themes such as the rule of law to make a compelling legal drama. CJLPA : Before we delve into the film The Mauritanian , we wanted to know what impact the film had had on Mohamedou Ould Slahi’s life and how life has been for him since the film came out.   Kevin Macdonald : I spoke to him recently. He is doing well. He still runs into difficulties with certain countries. They still won’t let him into Germany which is where he was living before he was arrested. He’s a sensitive soul and finds it really upsetting.   One of the things that’s remarkable to me is that he is not more embittered. He wants to be positive, do positive things and not regret all the time he lost. This is in the context of his mother dying whilst he was in prison [Guantanamo]. He is also incredibly forgiving. So for him to be faced with these accusations, which are almost certainly orchestrated to some degree by embarrassed individuals in the security services, is awful. I was told that this was the case by the German ambassador to Mauritania, who became a very good friend of Mohamedou’s. The German ambassador said that there were people in the BND who act hand in glove. These people don’t want to admit they were wrong [about Mohamedou]. They would rather just keep on besmirching his reputation.   CJLPA : Subsequent to the film coming out, Mohamedou has given talks at eminent institutions such as the Cambridge Union. How has he found speaking publicly on his time in Guantanamo?   KM : He is willing to talk about it but finds it really hard. There is a lot of trauma that gets brought up during the talks. After those sorts of talks, he has to recover. It takes him several days after each time to recover because he’s reliving the trauma each time. He wants to tell people but at the same time it affects him. When he came and stayed in my house, he liked spending a lot of time in his room. I don’t know much about prisoner psychology, but he likes to be in a small, controlled environment.   CJLPA : You now know him very well. How did you first come across Mohamedou’s story?   KM : I had actually read some of his book [ Guantanamo Diary ] when it came out it. I never thought of making a film about it until Benedict Cumberbatch’s production company got in touch with me and asked me whether I would be interested in being involved. I was not sure if there was anything more to say about the war on terror. The production company told me to just talk to Mohamedou. I spoke to him and it was his personality, wit, and warmth that really astonished me and I thought, I want to make a film about this character. I’m not a politician. I’m not a lawyer. I’m a filmmaker interested in stories and characters.   I just thought he was an extraordinary character who needed to be better known. I wanted to try and tell the story of Guantanamo in a way that really affects a wide audience that isn’t just preaching to the converted. The problem with a lot of human rights films and documentaries is that they are seen and admired by people who already agree with what is in them. We felt that we wanted to make a film that tried to reach both sides of the American political divide, to show that the justice that was served to Mohamedou was a travesty and that he was mistreated by the system. If you can move people to empathy, you can change their mind. You can make them understand the legal aspects of his case but in a simple but emotional way.