The last decade of the USSR has been engraved in the memories by the freedom marches in the republics. At the end of the 1980s, when many countries began to leave the USSR and establish their independence, the Armenia SSR government raised the issue of the annexation of Nagorno-Karabakh from Azerbaijan SSR to Armenia SSR in 1988.
Background of the conflict
At the February 20, 1988 session of the NKAO (Nagorno-Karabakh Autonomous Oblast) Soviet of People’s Deputies, members of the region’s Armenian community adopted a resolution to appeal to the Supreme Soviets of Azerbaijan SSR and Armenian SSR to annex NKAO to Armenian SSR. Followingly, on February 22, 1988, the Armenians opened fire on a peaceful demonstration staged by the Azerbaijanisnear the town of Asgaran,who protested against the decision of the Soviet of People’s Deputies of NKAO. This incident was the beginning of the conflict either in military level. On December 1, 1989, the Supreme Soviet of Armenian SSR adopted an unprecedented resolution “On the unification of Armenian SSR and Nagorno-Karabakh”.On January 10, 1990, the Presidium of the USSR Supreme Soviet adopted a resolution “On the nonconformity with the USSR Constitution of the acts on Nagorno-Karabakh adopted by Armenian SSR Supreme Soviet on December 1, 1989, and January 9, 1990”. The resolution described as illegal Armenian SSR’s act on the unification of Armenian SSR and Nagorno-Karabakh without Azerbaijan SSR’s consent.
On August 30, 1991, the Supreme Soviet of Azerbaijan declared the restoration of state independence. After announcingthe Constitutional Act “On the State Independence of the Republic of Azerbaijan”, the Supreme Soviet of the Republic of Azerbaijan adopted the Law ‘On the abolition of the Nagorno-Karabakh Autonomous Oblast of the Republic of Azerbaijan”. As a result, Armenians began massacres and terrorist activities against Azerbaijanis.In the late 1991-early 1992, the conflict entered its military stage. Having exploited the collapse of the Soviet Union and political instability in Azerbaijan caused by the internal standoff, Armenia began military operations in Nagorno-Karabakh with external military support.
On September 24, 1991, the Armenian military, with the support of the 366th Regiment, attacked the villages of Imarat and Garvand in the Aghdara region, killing Azerbaijanis with special cruelty and expelling the people from their homes. The most considerable armed violence and genocide by Armenians against Azerbaijanis took place with the Khojaly events. In late 1991, Khojaly was blocked by Armenians. Armenians closed all roads, destroyed communication lines and cut off the power supply—the people living here communicated with other cities by helicopter telephones. However, in the same year, after the shooting down of the Mi-8 helicopter, the number of helicopters arriving here also decreased. All weapons were confiscated from the people, and the gendarmerie forces operating in Khojaly were disbanded. A few people had only a total of 50-60 weapons left. On the night of February 25-26, 1992, Armenian forces attacked Khojaly and, with the support of the 366th Russian Regiment, destroyed the city of Khojaly.
After that, the Azerbaijani-Armenian Nagorno-Karabakh conflict escalated, and Armenian forces occupied Nagorno-Karabakh and seven surrounding regions until 1994, killing Azerbaijanis and expelling them from their homes. At that time, Iran, which was trying to meditate, did not react severely to the occupation of Azerbaijani lands by Armenia. As a result, a ceasefire was reached only after Armenia occupied 20% of Azerbaijani territories.
International response to the conflict
The UN has adopted four resolutions (822, 853, 874, 884) on the Nagorno-Karabakh conflict, and its terms have not yet been fulfilled. In the recent debates, Nicol Pashinyan stated that the conflict is happening between the so-called Nagorno Karabakh Republic and the Republic of Azerbaijan. However, these four resolutions explain the real situation and declare that the dispute is not happening in Nagorno Karabakh; this is the international conflict caused by Armenia. Firstly, in all resolutions, Nagorno Karabakh is considered the territory of the Azerbaijan Republic. Secondly, all four resolutions start with the deterioration of relations between Armenia and Azerbaijan, and then the escalation of armed conflict. The Security Council provides a good understanding of who is involved in the conflict by stressing the sovereignty, territorial integrity and inviolability of international borders of all states in the region. Such texts are not written in the context of internal conflicts. Moreover, the Security Council emphasized that there is a threat to the sovereignty, territorial integrity and international borders of Azerbaijan.
The UNSC adopted resolution 822 on April 30, 1993, after the occupation of Kelbadjar district of the Republic of Azerbaijan. Firstly, the document states the following phrase:
“Noting with alarm the escalation in armed hostilities and in particular, the latest invasion of the Kelbadjar district of the Republic of Azerbaijan by local Armenian forces”.
“Local Armenians” phrase is indicated only in the resolution 822, apart from it, neither resolution states the term as an involved party of the conflict. However, this term does not clearly state the parties of the conflict. It is unknown which local Armenians invaded Kelbadjar district due to uncertainty. In this resolution, the UN clearly says that battle is not happening only between local Armenians living in Nagorno Karabakh and the Republic of Azerbaijan. Secondly, the resolution emphasizes the term “in particular, the latest invasion of the Kelbadjar district”, which means that there are many other districts occupied by the invasion forces and UN is concerned about the conflict by seeing it as a severe threat to security in the region, which was going on for a long time. The second phrase ultimately shows that other forces joined to the conflict:
“Demands the immediate cessation of all hostilities and hostile acts with a view to establishing a durable ceasefire, as well as immediate withdrawal of all occupying forces from the Kelbadjar district and other recently occupied areas of Azerbaijan”.
The word “invasion” used in the first line is replaced by “occupation” and “occupying forces” in the second line. The meaning of the wording “occupation” in international law is obvious – occupation can only be the result of interstate conflict. With this phrase, the UN indirectly conveys the presence of Armenian forces in Kelbadjar and other occupied regions.
These phrases were reflected in subsequent resolutions as well. Thus, the Security Council has tried to show that the war in Nagorno-Karabakh is not a result of, in fact, an internal conflict. Indirectly, the Security Council attempted to deliver that the lands belonging to Azerbaijan are occupied by Armenia. These phrases can be clearly seen in the following resolutions:
“Noting with alarm the escalation in armed hostilities, in particular, the seizure or the district of Aghdam in the Azerbaijani Republic,
- Condemns the seizure of the district of Aghdam and of all other recently occupied areas of the Azerbaijani Republic;
“Calls for the immediate implementation of the reciprocal and urgent steps provided for in the CSCE Minsk Group’s “adjusted timetable”, including the withdrawal of forces from recently occupied territories and the removal of all obstacles to communications and transportation.”
“Noting with alarm the escalation in armed hostilities as a consequence of the violations of the ceasefire and excesses in the use of force in response to those violations, in particular, the occupation of the Zangelan district and thecity of Goradiz in the Azerbaijani Republic and the withdrawal of occupying forces from other recently occupied areas of the Azerbaijani Republic…”
It can be questioned that why the Security Council didn’t mention that the conflict happened between Armenia and Azerbaijan? What is the reason for not calling Armenia as an occupier? If the Security Council would recognize Armenia as an occupier, then new obligations would arise for the Security Council. In the meantime, Armenia had to be called as an aggressor and the resolutions adopted should have been demanded unconditionally. Due to several reasons, the Security Council did not do this but instead stressed who is responsible in this conflict.
For instance, in 1991, during the Yugoslavian War, the Security Council adopted a resolution by stating “Wars in Yugoslavia” and “parties in Yugoslavia” to deliver this matter to the community as an internal conflict. However, all four resolutions about Nagorno-Karabakh conflict don’t include any wording mentioned above. Besides, conflict was emphasized as a threat to the sovereignty, territorial integrity and international borders of Azerbaijan.
During the conflict, the OSCE Minsk Group was formed, and the parties were brought to the negotiating table to resolve the conflict. Russia, which has been involved in resolving the conflict, initially sought to bring Russian forces to the region as peacekeepers. However, in December 1994, at a summit of OSCE participating States in Budapest, Member States decided to bring OSCE peacekeeping forces to the Nagorno-Karabakh region. These forces could be composed of the military forces of neutral states.
In December 1996, at the summit of the OSCE Member States in Lisbon, all Member States, except Armenia, recognized the territorial integrity of Azerbaijan in connection with the Nagorno-Karabakh conflict. The signed documents concluded that Nagorno-Karabakh conflict had to be resolved within the framework of Azerbaijan’s territorial integrity. Also, all proposals by the OSCE Minsk Group to solve the conflict first referred to the UN Security Council’s resolutions, then put forward their proposals for resolving the conflict. On the other hand, the OSCE Minsk Group prepared three plans to solve the conflict. However, the parties did not agree with these proposals due to several reasons. In November 2007, OSCE Minsk Group adopted final Madrid Document concerning resolving the conflict.
When analyzing the diplomatic processes in the Nagorno-Karabakh conflict, it is evident that Armenia does not recognize Nagorno-Karabakh as a separate state or institution. According to several documents, the conflict has acquired an international character and must be resolved within the framework of international law, and the borders of Azerbaijan. Despite all the accepted and approved international documents, the Armenian leadership wants Nagorno-Karabakh to be recognized as an independent entity because, in this way, it will be easier to control the territory in favor of Armenia. Moreover, the issue that was often raised at the meetings of the OSCE Minsk Group was related to the referendum, especially about self-determination. The deportation of Azerbaijanis living in Nagorno-Karabakh during the Soviet era had a serious impact on the ethnic composition of the population. Today, the Armenian diplomatic corps demands the status quo, taking into account only the ratio of 1988.However, this contradicts both international law and the Constitution of the Republic of Azerbaijan, and as a result, the right to self-determination cannot be extended to the Nagorno-Karabakh region. In addition, in 1996 Armenia did not recognize international borders of Azerbaijan. It creates a condition for Armenia to start any conflict in anywhere in the borders, as happened in 2020 July.
Today, not only the Nagorno-Karabakh region but surrounding territories also are extremely militarized. Clashes in the region are a serious threat to the security of the peoples who are living there closely. Armenians authorities’ non-compliance with international law also creates conditions for the proliferation of terrorist groups in the region. The settlement of the Nagorno-Karabakh conflict under international law will ensure the security of the region and the effectiveness of economic and humanitarian assistance.
Considering the slowdown in peace talks in Nagorno-Karabakh conflict, the failure of the OSCE Minsk Group, the unfair treatment of the Western media on Nagorno-Karabakh conflict, repeatedly nurturing Azerbaijan’s territorial integrity with an unreasonable attitude by Armenia, makes the region more unstable and increases border clashes and as in the past, the region will not lead to multi-directional change.
Refugees In The Outbreak Of The Pandemic
The COVID-19 today is having an adverse impact on our lives although it has brought exceptional changes in climate and human behavior. The increasing number of refugees and internally displaced persons in the 21st century explains the intensified global scenario. The refugee crisis is the greatest humanitarian crisis the world has ever seen where most of them are internally displaced persons. Yet, they are humans with unique life experiences; they had dreams, children who are dwelling hopes of normal life, and a better tomorrow. The mothers are longing to return home, fathers yearning to work again, and an identity. Leaving behind their homes, being prosecuted from the country, and losing their loved ones; refugees had gone through the worst of time. Refugees are the worst sufferers in this 21st century. Around 80 million homeless people in the world most of them are from Syria, Afghanistan, South Sudan, Myanmar, and Somalia. The Syrian crisis reported being the greatest refugee crisis in the world. The United Nations also estimated the women and children to be the worst sufferers.
The refugees were tormented by years of poverty, poor health, and lack of basic infrastructures like education, food, health care, sanitation, social security, and etc. Humanitarian organizations have stretched beyond their capacity to help millions of refugees over the years. The WHO and UN Refugee Agency have signed new agreements to provide health services and benefits to the displaced and vulnerable population around the world. Among the 79.5 million forcibly displaced individuals lacks access to clean water or soap. Despite social and economic setbacks due to the pandemic, health is still the paramount factor affecting the poor and homeless. During the COVID-19 situation around the world food, medicine or sanitary products and even clean water have become inaccessible for many refugees. Social distancing has become a major concern in the refugee camps.
The COVID -19 is severely affecting the education of the children in the refugee camps. In the refugee camps only 63% of refugees are enrolled in primary school and 24% in secondary education where most of the children are left out. The limit in pursuing education continues potentially in the refugee camps and its worsening due to the pandemic. There is a growing possibility of discrimination and xenophobia is affecting the process of socialization in their host country. Nevertheless, an unequal world with challenges to achieve education and skill training for self-development must be ceased.
In Yemen, more than 3 million people have been displaced and approximately 17 million require food. Yemen’s health facilities have either been destroyed or damaged in the conflict and with the unbridled transmission of COVID‑19 in Aden; Yemenis are living through the worst humanitarian crisis. Only a few health centers are operational in Yemen where the numbers of patients suffering from malnutrition, cholera, dengue fever, and injuries of war are very high.
In India almost 18,000 Rohingya refugees are taking shelter where thousands of them live in densely populated settlements in preposterous conditions; a third world country with the second-highest population in the world. India can hardly feed its population and especially it hosts a huge number of Refugees. Tibetan and Sri Lankan refugees have access to certain rights as assisted by the government, while the Rohingyas are still struggling for it. But, in Bangladesh, the WHO is working with governments to secure the health of nearly one million Rohingya refugees against the multiple threats of the pandemic and including natural disasters in the upcoming monsoon season.
The COVID-19 is increasing the needs and vulnerabilities of the Refugees. The United Nations High Commission for Refugees (UNHCR) is concerned about the collateral effects of the pandemic among the Refugees. According to the UNHCR’s Assistant High Commissioner for Protection, due to the degrading socio-economic plight of the forcibly displaced people and poverty among them has made them a target to several traffickers that are immorally exploiting and profiteering from their culpability. The adolescent girls and children have become the victims of sexual exploitation, forced labor, slavery, and organ removal, forced recruitment into armed groups, forced marriages, or forced begging. The COVID-19-related impacts on restricted movements, closures, or availability of proper help, support services are put to constrain. The pandemic has limited the opportunity for the refugees, particularly women to seek legal support for sexual and gender-based violence.
On the World Day against Trafficking, the United Nations Office on Drugs and Crime, UNHCR proposed for support in the prevention of trafficking and response efforts globally. The Governments and humanitarian actors together must ensure and assist the victims of trafficking
mostly among the displaced people where they are in immediate need of protection. A major initiative was taken by the WHO Eastern Mediterranean Regional Office (EMRO) to monitor the events and trend of COVID-19 among displaced populations in camps and non-camps settings for their safety.
Resources are available in scanty, refugee camps and settlements are becoming overcrowded and many are being forced to sleep outside in freezing temperatures during the winters. For those living in refugee camps or camp-like situations, they also face an increased risk of COVID-19. In refugee camps, it is difficult to practice public health measures like frequent hand washing or social distancing. Therefore, it is also the responsibility of the host government to provide aid and essentials to the refugees living in their country. But in many cases, the host governments don’t have enough financial capability but can arrange testing services in certain regions, regardless of whether an individual is a national or a refugee. Secondly, even though high-income countries are currently most affected, they need to assist low- and middle-income countries because those countries don’t have the means to deal with COVID-19. The outbreak of the pandemic in populous and poor countries will put the rest of the world at continued risk.
It’s true of the fact that the world was not prepared for a pandemic and COVID-19 does not respect any boundaries. But, the governments should not use pandemic as an excuse for applying repressive policies. Efforts should be made spread information in every camp that have limited source to reliable information about COVID-19 and measures of protection.
Understanding the unlawfulness of the Law of Armed Conflict
The contravention of rules outlined in the Law of Armed Conflict has created an environment of exploitative exceptions in the understanding, and applicability of human rights and security in theatres of modern warfare. As these exceptions pave way for the proliferation of national might in the name of national security, and combatant safety, the human suffering for non-combatants also witnesses a proportionally massive upsurge. The changing (mis)understanding of these regulations calls for a review on the accountability and necessity of jus in bello, and its weakened importance under the ambit of the law of armed conflict, and the greater International Humanitarian Law.
More than often, man-made conflicts have been responsible for the decimation of life and property around the globe. Even though human casualty stands divided between conventional and non-conventional threats in a modern world, the protraction of man-made conflict is mainly responsible for loosening up tides after tides of bloodshed for physical or territorial gains. However, with the advent of the prospect of domestic/international accountability, and a fool-proof system of checks and balances, mankind’s warfare is held by tighter strings of transparency and justifiability, adorned by rules and regulations. Nonetheless, it is very important to analyse and understand if its techniques of armed conflicts and subsequent regulation are stringed by laws of conduct to create a policy of accountability and fairness equally amongst participating parties or are riddled with discriminatory practices, apropos to an obscure understanding of who is sacred and who is profane. Rather unsettling, the horrors of war have time and again been governed with a rather small yet informative account of jus in bello (justice in war) or the law which governs how warfare is conducted, centred in the Law of Armed Conflict.
Jus in bello falls within the ambit of the International Humanitarian Law (IHL), and as the semantics suggest, it indeed is purely humanitarian in its objective to limit human suffering in modern warfare through a strict set of pre-decided rules. Jus in bello is independent of the questions about the reason for war, or its basic rules, which in turn is explained by jus ad bellum(the law of waging war). Jus in bello, if we analyse through its literary content, consists of two parts. The first part explains principle determinants for a proper quantum of force required in armed warfare if limiting warfare is ever the case in humanitarian laws. The second part guides us through limitations and prohibitions in warfare if not complete cessation, which reminds of the old age tradition of centripetal discussions around international peace and security, albeit to no practical effect. In contrast to the humanitarian nature of the IHL, the first part of jus in bello aims to indulge the parties in conflict with a categorised, and diverse set of paradigms for use of violence. In a dubious exception, it can also encourage the parties to use toolkits of violence on adversaries, if it is justified with international/domestic military necessity, regardless of the means of interpretation, e.g. Turkey’s raid over Syria. Nonetheless, the rule of active distinction in IHL between combatants and non-combatants aims to impose limits on destruction and suffering in armed conflicts. However, the interpretation of the exceptional military necessity, proportionality, and distinction (MNPD) principles in IHL makes the death and injury of non-combatants casual, by emphasising on the miscued understanding that any unintentional attack with extreme unaccountability on non-combatants can, and will be classified as “collateral damage”. It ends up giving a sense of irresponsibility, justifiability, and immunity to the unprejudiced actions of the armed combatants since their actions are no longer a criminal or civil liability.
Fortunately, the second part of jus in bello adheres to the responsibilities in humanitarian law and imposes strict, absolute limits on certain instruments and modes of violence which can most certainly, if given a free hand, increase human casualty and suffering. These rules are extremely significant and cannot be exploited for potential military advantages. It is extremely altruistic to non-combatants. Nevertheless, a major limitation of the second part, as a general exception concerns the legality of warfare in the treatment and torture of prisoners of war by nation-states, regardless of the combatant and non-combatant status. One such example of that exploited limitation is the question on the authorization of torture, and indignation by US Personnel in the infamous Abu Ghraib prisons, which is backed by a textbook excuse that under US military commissions, information acquired through torture, generally inadmissible in domestic US civil/military courts will be considered as evidence for the sake of its internal security, and can ignore international laws and declarations. Fundamentally, even though this rule is in contrast with The Military Commission Act of 2006 section 6 (c)(1), the international organisations, honouring their commitment to the UN Charter Chapter 1, Article 2(7), limit their intervention in the matter. This is even though the US has ratified UNCAT Convention against Torture, and stands in clear violation of international decrees.
Moreover, the penumbra veiling the opacity of scores of military commissions, omissions and laws in this particular matter by different nation-states has threatened to unsettle various humanitarian provisions in jus in Bello, to evolve with the growing needs of armed conflict, primarily after the US’s war on terrorism. Major western nation-states like the UK and the US have called for a case by case approach into evidence gained from torture, taking a cue from Churchill’s “supreme emergency” dictum, henceforth, threatening to make torture a tool of plausible military necessity, which is unproportioned and discriminatory towards non-combatants.
Articulating the terminology change in IHL over due course of time, and an itemization of new crimes post-World War II, it is to be brought into notice the alarming plethora of provisions that have changed course in jus in bello. Regardless of the differentiation between combatants/prisoners of war, and non-combatants in Article 37(1) of Additional Protocol I and Article 44 of Protocol I of Geneva Convention, the lack of trust among state actors over doubtful logic and morality due to the inclusion of irregular fighters, non-state actors, and foreign fighters in modern warfare leads to unprecedented failure to comply with the second part prohibitions. This has resulted in the loss of a great majority of non-combatants in the conflicts of the 21st Century.
Furthermore, with the increasing reliance on tech-based warfare to minimise combatant casualty among state actors, WMDs have been the instrument of choice against the belligerent party. Unfortunately, the volatile firepower of such weapons, as well as its unprejudiced understanding between combatants, and civilians are judged under MNPD principles. Regardless of its clear military, and political danger over misuse, it is still accepted frivolously in the international community, and among state actors as a weapon of choice. The existence of nuclear weapons even after strengthened efforts towards non-proliferation, and its evolving doctrines of use among various nation-states, is an example of this effort to sham jus in bello, which is acting towards effective distinction in conflicts. The concept of the use of WMDs as a possible deterrent or a method of national self-defence is heavily prejudiced and debated in the international legal community, which openly admits that it cannot regulate the legality or illegality of such weapons by a nation-state in cases of self-defence, whatever the interpretation may be. Instead, they added this responsibility on MNPD principles, and un-verified claims of user assessment for self-defence, which technically does nothing to put a halt on the proliferation of WMD usage as an instrument of fear-mongering, e.g. the Democratic People’s Republic of Korea.
In the end, the lack of political will, and international compliance, marred by selfish national interests have worked more to change the law of armed conflicts, rather than strictly implementing it. The increasing reliance on the first part of jus in bello threatens to omit the second part from IHL, resulting in warfare and conflicts in modern times without a leash to save civilians from the unavoidable line of fire. It is high time that the international community takes a stand to promote and propagate the relevance of IHL to preserve the purity of conventions in place years ago, without pressure from major nation-states. These conventions find their relevance even now until mankind in its very nature of gaining more power decides to uproot it once and for all.
How India’s Current Digital Strike Against China Is well-Protected Under article 14 Of Gats
As the military tensions between India and China were steadily increasing due to Chinese intrusion into India territory at the Galwan valley, India on 29th June, 2020 launched a digital strike against China to counter its unwarranted territorial aggression. In a press release as issued by the Indian government, it was stated that 59 applications were decided to block as such applications are “prejudicial to sovereignty and integrity of India, defence of India, security of state and public order”.
Certainly, the digital strike has been hailed by many countries that were aware of the rising accusations of Chinese surveillance on sensitive communications. China has often been blamed for the act of stealing foreign intellectual property for its military advancement. The Chinese government has been using these applications as a medium to institutionalize a system that legally and illegally acquires the foreign technology for its domestic advantage and strategic development.
Although, as this Indian geo-political move has much significance in the ongoing debate of protecting the sovereignty of India, China, on the other hand, has threatened to sue India at WTO dispute resolution forum for potentially violating the multilateral WTO agreements. China has termed this Indian app-banning move as an abuse to national security exception. It has stated that this move is ‘selective and discriminatory’ and against ‘fair and transparent procedure requirements’ thus, violating the trade-liberalizing agreements. However, India has squared-off all the Chinese claims by terming them frivolous because India’s WTO sovereignty and national security defence argument in this incident is much stronger and infallible.
Therefore, in this article, I would be discussing that how India’s recent measure is protected under the provisions of Article XIV (a), XIV (c) (2), and XIV Bis of GATS and thus how it raises a strong stance in favour of India that can rebut the baseless Chinese WTO threat.
Article xiv and xiv bis of the gats
GATS is a multilateral agreement that is established to provide rules for trade in services with a view to the expansion of such trade while ensuring transparency and progressive liberalization in order to promote the economic growth. Although this agreement desires to achieve a higher level of liberalization, it still recognizes the right of Member-state to regulate, and to introduce new regulation, on the supply of services within their territories to meet national policy objectives.
Article XIV is one such provision articulated in the agreement that provides the Member-state to accommodate other policy goals and choices made in accordance with domestic laws and societal values. This article expresses the scope of particular matters related to national importance including privacy and public order. Moreover, Article XIV bis is another such provision that accommodates security exceptions that provide the room for implementing those actions which it considers necessary for the protection of its essential security interests.
India’s move of blocking applications is well-based on these provisions that provide the sovereign country like India to take all policy measures which protects the security of its state and thus, its recent measures are protected under these Articles.
Measure protected under Article XIV (A) of GATS
Article XIV (a) gives the liberty to the member-state for adopting or enforcing any measures that are necessary to protect public morals or to maintain public order. According to the Panel Report in dispute of United States –Gambling, public order has been defined as “the preservation of the fundamental interests of a society, as reflected in public policy and law.”
In the same WTO dispute, two-tier analysis of justifying the member-state measure under this specific provision has been provided. The panel states that member-state has to satisfy two elements that are firstly the measure must be one designed to “maintain public order”; and secondly the measure for which justification is claimed must be “necessary” to maintain public order.
In the present scenario, India’s measure to ban the 59 Chinese apps was necessary to maintain the public order. As India provides the primary market of digital space, there is a higher risk of exploitation of fundamental interests of the society and its citizens. According to the Ministry of Information Technology, many complaints were filed with them which summarily reports about misusing of these applications to steal and underhandedly transmitting users’ data in an illegal manner to data servers that are located outside the territory of India. Therefore, it was important for India to protect the fundamental interest and values of its citizens and thus, a necessity which is an objective standard has been evolved for India to take such WTO-consistent repressive measure which was reasonably available to protect the public order of its country after following the test of weighing and balancing a series of factors as determined by Appellate Body in WTO dispute of Korea-Beef.
Moreover, as this measure promotes the maintenance of public order, it was found by the appellate body in the dispute of US-Gambling that the member-state is not obliged to explore and exhaust all other reasonably available alternatives and there is no need for prior consultations with the counter-part before implementing such measure and thus, this measure is WTO-consistent and protected under Article XIV (a) of GATS.
Measure protected under Article XIV (C) (2) of GATS
This Article provides the liberty to the member-state like India to adopt or enforce such measure that is necessary to secure compliance with such laws and regulations that are not inconsistent with the provisions of GATS. Further, this provision provides a non-exhaustive list of those laws or regulations that are not inconsistent with WTO and clause (2)specifically provides a WTO-consistent provision that relates to “protection of the privacy of individuals in relation to the processing and dissemination of personal data and the protection.” In the WTO dispute of Mexico-Soft Drinks, the Appellate Body explained the meaning of law or regulations and held that such term is used to denote the rules including international agreements that form part of the domestic legal system of a WTO member-state.
Under this provision, it is necessary to show that the measure which is enforced was necessary and was further designed to secure compliance with the WTO-consistent law. Undeniably, the current measure which banned the Chinese apps was particularly designed to secure compliance with the Indian Constitution (WTO-consistent law) as well as other Indian legislations that accounts for protecting the privacy of its citizens as these apps were threatening and violating the privacy of its users. This measure is said to be securing the compliance as its design reveals that the certain measure protecting the right to privacy of its citizens under Article 21 of the Constitution.
The Supreme Court of India in its landmark decision held that right to privacy including the aspect of information privacy is a facet of Article 21 of the Indian Constitution and thus it is a fundamental right guaranteed to everyone. Therefore, when the Indian government was satisfied that there was a reasonable apprehension regarding the security of data and breach of privacy of its citizens due to operation of such certain apps, it became indispensably necessary for the Indian government to enforce such WTO-consistent measure to ban these applications to protect the privacy and sensitive data of its citizens from being harmed and intruded. Moreover, the Appellate Body in dispute of Dominican Republic-Import and Sale of Cigarettes held that the member-state has the whole right to determine for themselves the level of enforcement of their WTO-consistent law, thus this measure was necessarily implemented to secure compliance with the Constitutional principles of India and hence, this measure is protected under Article XIV (c) (2).
Measure protected under Article XIV BIS of GATS
This article provides for the security exceptions that allow the member-state to take any actions that are required to preserve the sovereignty and national security interests of its state in times of war or any emergency in international relations. The recent ban of these 59 apps was in regard to terminate their usage as it was reported that these apps were being engaged in activities which were prejudicial to sovereignty and integrity of India and have been acting hostile to national security and defence of India. Such threats to the pillars of democracy required emergency measures and therefore, India’s measure to disallow the usage of these applications was a result to ensure safety and sovereignty of Indian cyberspace.
Moreover, this action of India cannot be seen in isolation and there is a need to appreciate the geo-political evidence revolving around India that aggravated the situation. There was a weather of emergency created in India due to the repeated aggression shown by the Chinese government at the Line of Actual Control. Even 20 Indian soldiers were martyred during the violent face-off with the Chinese counterpart. Such incident potentially raises a situation of emergency in international relations and that further allows India to take the defence of Article XIV Bis to eclipse its digital strike under the ambit of necessary and strategic action taken to protect the security and sovereignty of India.
For China, the doors of WTO are ajar to try its last fling to protect its shameful diplomacy of unfair practices; however, approaching to this organization will do more harm than good for China as the case of India is strong and firm. India’s current diplomatic measure is clearly WTO-consistent and squarely falls under the Security and General exceptions provided under GATS, therefore, there is no instance of trade violation. Instead of giving a baseless threat, China should try to mediate and consult the issue with the Indian government to protect the trade market that it used to enjoy before the ban. It should also try to introduce reformative measures that ensure accountability and transparency amongst the links between the Chinese government and the Chinese economic players. The world is now aware of the dirty economic strategies that China is implementing to build a Chinese century and this time, the world would rebut back with stronger measures just like India declared a digital war against China.
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