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.
Submarine Cables: The Global Data Infrastructure and International Law of the Sea
As a lay person, it is a common perception that data and communication signals travel through multiple satellite systems orbiting around the earth. However, this is a grave misconception. As one writer puts it, “but that the communication signals themselves are then broken into bits of data, which then ply the ocean depths at the speed of light via unseen cables, is hard to imagine.” The reality is that 99% of the world’s communication data is currently moving through hidden undersea cables. These are now befittingly called as the “Out-of-Sight Arteries of Globalization”. These submarine cables are functioning as a global infrastructure for the movement of inter alia big data, communication signals, phone traffic and even financial capital around the world. During the past decade, the weaknesses and gaps in the protection of these underwater fiber-optic cables under International law has come to the fore. This article is aimed at critically analyzing the vulnerability in International law to protect these global underwater data highways.
History & Background
In the year 1858, the first transatlantic subsea cable was laid down between Ireland and Newfoundland which snapped 26 days later. In the year 1864, another transatlantic cable was placed between the same territories and this time it proved to be successful. Following this success, there was no looking back and submarine cables were placed between various territories along the seabed of the Pacific Ocean. Interestingly, the transmission speeds for these first telegraph cables were 12 words per minute which increased exponentially to 200 words per minute by the 1920’s. The invention of the telephone expanded the reliance on these transcontinental cables. From the beginning of the 1950’s until the late 1960’s underwater coaxial cables dominated intercontinental voice communications.
It was the invention of satellite systems during the 1970’s which greatly reduced the reliance on subsea cables for use in communication technologies. Although the satellite systems dominated the telecommunications world for more than a decade, they were soon replaced by the invention of fiber-optic cables. Fiber-optic cables were more capacious in carrying vast amounts of data and signals as compared to coaxial cables of the bygone days. The first fiber-optic cable was laid down in the year 1986. As of 2019, there are 241 active and distinct fiber-optic subsea cables which are mapping a length of 1.1 million kilometers (km) of the seabed. One writer points out the dominance of undersea cables over satellites by the fact that if they were to stop transmitting then “only 7% of the total United States data traffic volume could be carried by satellite”.
Global Significance & Issue of “Materiality”
Subsea cables are a crucial part of the digital economy, making flows and exchanges of data possible. Astonishingly, they are considered to be intangible, immaterial and un-territorial under the international legal framework. It is understandable that an average person using the internet is unaware about the physical aspect of data transmission. However, International law and its supremacy is founded upon physical objects and materiality. International law experts are now increasingly engaging in such a method of analysis as compared to archetypical theoretical frameworks. Hohmann and Joyce explain that “in revealing the deep entanglements of international law and the material things around us, we can begin to understand how international law structures and disciplines its subjects—and sets the contours for the possibilities and limits of our lives—through objects.”
It is absolutely imperative that International law recognizes the physicality of undersea cables which are now deeply intertwined with the social, economic, legal and technological orders of a digital age. International law and its dominance is moulded by the physical infrastructures which are an important factor in the growth of modern digital economies. Undersea cables are now the subject of competition and struggle between both state and non-state actors (e.g developers and corporations). These struggles include title, control, access and territorial sovereignty. All these fall within the ambit of International law, and efforts must be made to enable a fair regulation.
International Legal Framework and Challenges
The protection and security of subsea cables has been the subject matter of at least seven different international conventions between late 19th century and the beginning of 20th century. It all started with “The Convention for the Protection of Submarine Telegraph Cables (1884)” which was inked in Paris. The 1884 convention was applicable in the territorial waters of the signatory states, making the damage of such cables a punishable offense. The primary purpose of this treaty was to encourage the stakeholder States to promulgate domestic legislation protecting these cables.
The World moved on from the Telegraph to the Telephone, but these undersea cables remained of cardinal importance in communication technology. These cables were an agenda topic in the United Nations International Law Commission (ILC) on the law of the sea. In the International Law Conference of the Sea (1958), three articles relevant to the protection of subsea cables were incorporated into the Geneva Convention of the Law of the Sea (1958). It was also agreed that the provisions of the 1958 conventions will not affect any previous treaties (which included the 1884 convention).
In the year 1973, the UN held a third conference to debate upon the law of the seas and this subsequently resulted in the “United Nations Convention on the Law of the Sea, 1982 (UNCLOS)”. This time again, three provisions (Articles 113 to 115) specifically addressed the protection of undersea cables. Unfortunately, neither the 1982 UNCLOS nor its predecessor treaties could correctly envisage the importance of submarine cables to a digital age.
Pursuant to Art. 21 and 113 of the UNCLOS, littoral states have the authority to enact domestic legislation to protect the subsea cables or any other conduit that lay beneath their territorial waters. States are under no obligation to enact such legislation, and for this reason, most of the littoral states have abstained from doing so. Many studies and reviews have found that there exists little or no domestic legislation which criminalizes any damage caused to such cables.
In addition to this, there does not exist a legal regime which could potentially prosecute offenders who damage undersea cables which are located in the high seas. The UNCLOS limits the jurisdictional protection to flag-bearer vessels. This implies that littoral states could prosecute foreign vessels for damaging fiber-optic cables within its territorial waters, but not otherwise. As a result, there exist significant lacunae in the prosecutions of intentional or negligent damage of such important infrastructure. It is clear that the undersea cables are more prone to nefarious designs to disrupt communications by the foreign vessels of adversary states in the high seas. In terms of technological advancements, the data transmission network has moved forward by leaps and bounds. Legally, the International framework has failed to keep up.
In a modern digital world, these hidden subsea cables are a site of politics, power, communication and most importantly contestation. These cables may prima facie be an invisibility. But the real importance of an invisibility lies in the phenomenon it enshrouds. It is about time that International law recognizes that global digital economies are functioning and prospering through a hidden network of key infrastructure which needs better and impenetrable protection.
 Douglas R. Burnett & Lionel Carter, International Submarine Cables and Biodiversity of Areas Beyond National Jurisdiction: The Cloud Beneath the Sea, BRILL RESEARCH PERSPECTIVES IN THE LAW OF THE SEA, 3 (2017).
 Surabhi Ranganathan, The Out-of-Sight Arteries of Globalization, Visualizing Climate and Loss, http://histecon.fas.harvard.edu/climate-loss/lawofthesea/arteries.html
 Lionel Carter & Douglas R. Burnett, Subsea Telecommunications, in ROUTLEDGE HANDBOOK OF OCEAN RESOURCES AND MANAGEMENT, 349, 350 (Hance D. Smith, et al. eds., 2015)
 Stewart Ash, The Development of Submarine Cables, in SUBMARINE CABLES: THE HANDBOOK OF LAW AND POLICY
 Lionel Carter & Douglas R. Burnett, Subsea Telecommunications, in ROUTLEDGE HANDBOOK OF OCEAN RESOURCES AND MANAGEMENT, 349, 350 (Hance D. Smith, et al. eds., 2015)
 Working Group 8 Submarine Cable Routing & Landing, Final Report – Protection of Submarine Cables Through Spatial Separation, THE COMMUNICATIONS SECURITY, RELIABILITY & INTEROPERABILITY COUNCIL IV, 1
 Stephen C. Drew & Alan G. Hopper, Fishing and Submarine Cables: Working Together, International Cable Protection Committee (February 23, 2009) at 8, available at https://www.iscpc.org/publications/
 Territoriality and Intangibility: Transborder Data Flows and National Sovereignty, in Beyond National Sovereignty: International Communication in the 1990s 259 (Kaarle Noerdenstreng & Herbert I. Schiller eds., 1993)
 International Law’s Objects, 2 (Jessie Hohmann & Daniel Joyce eds., 2019).
 Jeremy Page, Kate O’Keeffe & Rob Taylor, America’s Undersea Battle With China for Control of the Global Internet Grid, Wall Street J. (Mar. 12, 2019)
 George Grafton Wilson, The Law of Territorial Waters, 23 AM. J. INT’L. L. 2, 241-380 (Apr 1929)
 Eric Wagner, Submarine cables and protections provided by the law of the sea, 19 MARINE POLICY 2, 127, 135 (Mar. 1995)
 Convention of the High Sea, Apr. 29 1958, 450 U.N.T.S. 11 (codifying this provision at Article 30, excerpted here: “The provisions of this Convention shall not affect conventions or other international agreements already in force, as between States Parties to them.”)
 Robert Beckman, Protecting Submarine Cables from Intentional Damage, in SUBMARINE CABLES: THE
HANDBOOK OF LAW AND POLICY
 UNCLOS (1982), Art. 27
Locating Sustainable Migration Framework in a Globalized World beyond the UNCSR
The traditional understanding of refugee protection and safeguards enshrined in the 1951 UN Convention relating to the Status of Refugees (UNCSR) with its 1967 Additional Protocol has come to a tipping point. The current scenarios of mixed human migration have given a new term that defines the “new refugee” as “migrant” due to the imprecise distinction between refugee and migrant in the wake of enlarging protections and expanded challenges to the refugee interpretation under UNCSR. Today, mixed human migration has become the determinant factor to critically appreciate the experiences, familiar routes, and intentions of refugees and migrants and threats to the protection system in the wake of emerging populist radicalism in the Global North and Global South with equal intensity. Such radical trends are generally backed by the majoritarian political discourse in constitutional democracies. But such revanchist patterns could only be contained by the re-mainstreaming of liberalism in our geopolitical identities.
New Categories in a Globalized World
Thus, the mixed human migration has necessitated the creation of new categories beyond the traditional understanding provided in UNCSR. Historically, the remarkable distinction between “refugee” and “migrant” is based on the institutional recognition of the notion that the refugee enjoys an elevated status in the framework of international law. However, the nation-states and inter-governmental mechanisms attend refugees based on the thresholds of gravity of refugee situations on a particular occasion. Consequently, such arrangements recognize the “refugees” and derecognize the “economic migrant.” However, in reality, it has now become a well-established understanding that such divisions between these categories are difficult to make in a globalized world. Alexander Betts has written about people who flee hostile circumstances and called such flight “survival migration,” especially from unstable nation-states, situations of socioeconomic violations, and climate change-driven displacement that have not yet been recognized as refugees under UNCSR. Unfortunately, there is no political understanding among the UN member states to broaden the limits of the UNCSR definition of a refugee by creating the new protection categories. Therefore, it is imperative in the present scenario to defend the existing “refugee” category, and nation-states strive to extend protection under international human rights treaties to other groups of vulnerable migrants fleeing persecution beyond UNCSR.
Global Compacts on Refugees & Migration
The origin of the Global Compact on Refugees (GCR) and Global Compact on Migration (GCM) is knotty as a global political project. Primarily, in late 2015, the strategy was to conclude and adopt a comprehensive plan of action for Syrian refugees and Mediterranean routes of refugees who have created a refugee crisis in Europe. Therefore, global institutional politics and other multiple reasons paved the way to adopt such a plan of action in January 2016 for organizing an international conference in New York in September 2016 with the mandate to have GCR. Simultaneously, other world institutions also hard-pressed for a similar arrangement called GCM to create equilibrium for proportionate protection. Such segregation was required due to the organizational distribution of business within the UN system. Therefore, the UNHCR (UN High Commissioner for Refugees) was mandated to act upon and implement GCR.
In contrast, Switzerland and Mexico have co-supervised the parallel GCM programme and its modalities for implementation. Though these Global Compacts have common characteristics, gaps, and intersections mainly, there is small space for internally displaced persons (IDPs) and transnational displacement that has not been recognized in the refugee definition. But UNHCR has proposed specific plans for implementing GCM that incorporate significant steps for migrants in vulnerable conditions. As a result, these Global Compacts have been playing relatively different roles as GCR attempts to address the gaps in the UNCSR by ensuring fundamental principles of humanity and international solidarity and strives to implement the principles of burden-and-responsibility-sharing (BARS) for refugee protection, assisting the refugees and supporting the refugee-hosting countries and communities. On the other hand, GCM provides a nascent global migration governance system as a first step. GCM is an intergovernmental agreement brokered by the UN that addresses all dimensions of global migration holistically and comprehensively and confronts the challenges relating to the worldwide movement by strengthening the contribution and engagement of migrants to sustainable development.
The Role of UNHCR & Shifting Global Debate
The position of UNHCR has become challenging as it confronts a multitude of constraints such as cuts in the humanitarian budget by the US, widespread non-compliance with the UNCSR and its Additional Protocol, and the emergence of institutional rivalry with the entry of IOM in the UN system. However, UNHCR has taken a restrained approach and deliberately excluded many parts from the current global debate on GCR, particularly Lego-institutional reforms. The GCR’s Comprehensive Refugee Response Framework (CRRF), Global Refugee Forum (GRF), and a string of Solitary Platforms provide the foundation for the philosophy of change and emplace global arrangement for international cooperation and addressing particular refugee crises. These institutional arrangements in the GCR framework, like CRRF and GRF, stipulate a new development-based and market-driven model of operation with a lot of pragmatism. GCR is an itinerary of actions and actors entrusted to implement the BARS and the entire ambit of modes of contribution on the part of stakeholders. The GCR is a remarkable achievement in its normative and substantive significance and commitments, provided it is executed on the ground. The CRRF has been showing positive results in Ethiopia and Kenya. However, it is the political leadership that has to determine new commitments and promises.
In the present scenario, international institutions require the exceptional and unprecedented capacity to lead collective action based on moral yet pragmatic parleys and diplomacies. World history is a testimony that non-binding intangible and universal commitments of the nation-states incommensurate with the international refugee regime do not serve a significant purpose. At least five to eight years must be demarcated to assess the impact of the Global Compacts on the ground. To do an impact assessment of GCR and GCM along with durable solutions, there are numerous refugee situations like Rohingya refugees in Bangladesh and India, Afghan refugees in Pakistan and Iran, Syrian refugees in Europe, Lebanon and Jordan, Mexican refugees in the US, Somali refugees, Venezuelan refugees in Colombia and Brazil, Afro-Asian refugees in Canada and Tibetan refugees in India. Though the GCM stipulates principles only, it has to evolve its intellectual contours in its initial stages to establish a global migration governance system, and its institutionalization will consume years ahead. However, the GCM is a remarkable achievement that has made migration a head-on agenda item for the UN system.
Global Refugee System: A Critique
Off late, UNHCR has not been innovative and inventive for an expansion of alternatives for refugee protection. It has adopted a guarded approach under which several issues have been put on hold. For long, UNHCR has been avoiding institutional reforms and keeping the refugee definition out of its re-consideration and re-formulation in tune with the current objections by the Global South countries. UNCSR refugee definition is the most significant contention of the Global South countries. It is a Eurocentric formulation and does not cater to the needs of the refugee people from the Global South nation-states. As a whole, the UNCSR regime is regarded as a Global North project imposed on Global South countries. Presently, many UNHCR personnel acquiesce in institutional politics, and the threat has been looming upon them that might jeopardize refugee protection. In such a pessimistic atmosphere, the GCR and CRRF provide a ray of hope for refugee protection. But there would be numerous geostrategic and geopolitical challenges such as the metamorphosis in the thresholds of global world order in terms of the recalibration and transformation of goal-posts of international power politics, the impact of socioeconomic praxis, the emergence of the artificial intelligence in RSD, and immigration procedures, and resurgence of far-right and nihilistic nationalism for minorities, and LGBTQI groups worldwide. Therefore, UNHCR has to continue to adapt to the changing circumstances, particularly by developing and re-crafting its capability for political leadership along with the existing humanitarian leadership in the context of global restrictionism.
Mixed Migration: A Divide between Principles and Pragmatics
The normative understanding of refugee protection and their human rights must not be sandwiched between principles and pragmatics of the regulatory approach. It is the cause of refugee protection that must alone prevail in global institutional priorities, intergovernmental primacies, and political urgencies in any given situation. But the divide between principles and pragmatics of refugee protection has been increasingly widening at an unprecedented scale that has made the UNCSR partially irrelevant, and several governments do not feel embarrassed with their public apathy towards refugees. Even though, immigration has squarely benefited and enriched the host countries of the Global North by building societies based on multiculturalism, pluralism, and cosmopolitanism. However, the political advocacy of right-wing nationalism in Australia, Canada, Europe, the US, South Asia, South-East Asia, and elsewhere conveys that the Global North has been incriminating immigration in the name of pragmatism by undermining the principles of migration.
The far-right nationalism breeds backlash and xenophobia. There is a need to repulse the anti-immigration surge. Global migration is, prima facie, not an immigration narrative alone; instead, it is, predominantly, impregnated with refugee dimensions that have to be dealt with under UNCSR and GCR instead of restrictive immigration laws. Because when immigration law stops, refugee law begins. Immigration law is based on nationalism, and refugee law is based on globalism. The global principles of the rule of law must comport with secular democracy, inclusive human rights, and liberal pluralism. These principles must get the support of the electorates in all geopolitical entities across the world. Such steps will guard these principles from far-right-wing politicians who are hell-bent on eroding universal liberal values. Therefore, the international community must reconcile the idea of liberal internationalism with the notion of secular democracy; otherwise, humanity would not be able to defeat the resurgent Frankenstein of international politics.
Global Public Perception & Sustainable Migration Framework
The global public perception suffers from the fear and impact of the increasing population of refugees and migrants, and Global North countries are reluctant to host them. There are 84 million displaced people worldwide, and out of them, 26.6 million are refugees (as of mid-2021). However, the challenge is greater geographical concentration as 85% of refugees live in low and middle-income countries, and 60% are present in just ten countries. Meanwhile, global migration trends have been mostly steady in terms of proportion to the global population since the 1970s, although the statistics of the people have increased from 70 million to 240 million. However, the refugee crisis has never been a crisis of statistical data; rather, it is the crisis of international politics and trust deficit among the comity of nations. The people of Global North countries are skeptical and fearful of socio-cultural transformation due to the triggering of structural changes with the arrival of refugees. Such changes cause the loss of low-skilled manufacturing jobs, starting of the politics of austerity, and politics-driven campaigns by the far-right-wing politicians in the host countries. In such a situation, the global community must develop a sustainable migration framework based on migrants-oriented policies that address both host and transit countries in equal measures.
One of the biggest challenges in the current world order is reconciling democracy with globalization in the wake of anti-migrant populism in Global North and Global South countries with equal far-right ferocity? It is, indeed, a significant challenge to preserve the optimism in the present world where electoral choices are expressed with technology, and sovereign citizens demand the re- endorsement and re-statement of national sovereignty in all its manifestations. Therefore, such integration of democracy and globalization needs a substantial amount of creativity that includes a new perception about normal human mobility and forced migration. Such optimism needs farsighted global governance supported by institutions and subsidiary organizations of the UNO, regional and other inter-governmental organizations. However, such a possibility right now is absent due to the international orders increasingly becoming more and more obstructive and deterring human mobility. There is a need to have collective measures to address the problem of the exodus of hybrid migration resulting in a backlash in the destination countries. It further jeopardizes the lives of people taking strenuous and frantic travels in search of safer refuge. Such reckless journeys become the cause of mushrooming of criminal syndicates indulging in human trafficking and criminalizing migration networks that mount a massive burden upon the capabilities of refugee-hosting countries while chipping away the thresholds of refugee safety.
On the basis of our cumulative experiences, there is a need to re-imagine the innovative and inventive refugee protection proscenium to respond to grisly human migration in all continents and countries. But it must not be devoid of the principles of Global Human Rights Constitutionalism, and it must discard the discourse of popular nationalism that is anarchist, narcissist, nihilist, and exclusionary in its treatment of RAMS (refugees, asylum-seekers, migrants, stateless). The current Globalized World needs the re-validation and re-assertion of diversity, dignity, multiculturalism and liberal values of the yore. It is an age requiring arrangements for integrating the contesting and opposing interests across the political spectrum in all geopolitical enties. Such measures demand audacious actions, quixotic visions and re-embracing of human rights liberalism beyond the rubrics of UNCSR.
UNCTAD Report: Revisiting Old Issues in Managing Cross-Border Data Flows
Today, information space has become a field of confrontation involving major digital platforms, governments, societies and individual users. Stories featuring latest cyberattacks or state-sponsored attempts to limit the influence of social networks and regulate the digital sphere, where there is no governance at the international level, are those that grab the headlines of many online media outlets.
Given the current climate, it is then no surprise that the United Nations is paying close attention to the issues related to the digital domain. On September 29, United Nations Conference on Trade and Development released its Digital Economy Report 2021, which focuses on the issue of managing cross-border data flows. The piece is rather comprehensive in terms of the issues covered, seeking to analyze the inhibiting factors that prevent us from working out an exhaustive definition of what “data” is, while exploring the specific approaches of states to regulating cross-border data flows. The report’s authors pay particular attention to the digital divide that has emerged between developed and developing nations. That said, we would argue that the report is more of a descriptive paper rather than a real step towards erecting a system of global governance.
The first section of the report addresses the lack of clarity on the definition of “data”, whether in research or among practitioners. With no unified terminology, communication between stakeholders appears to be complicated, much as the process of designing public policy as regards the digital sphere. A generally accepted and unified terminology would no doubt make it easier to foster closer cooperation, although this is certainly not a defining prerequisite. International efforts to fight against terrorism can be a case in point here, as there is no conventional definition of “terrorism,” while this does not hinder inter-state cooperation, both regionally and globally. While this cooperation may not always proceed smoothly, any problems encountered tend to be the upshot of political squabbles rather than the implications of the fact that no single definition of “terrorism” is to be found.
The UNCTAD report brings up another underlying premise, which is that data should be treated as a global public good. This will allow citizens, acting as “producers” of raw data, to claim the benefits of it being used by digital platforms. This issue has already been discussed at the EU, with the approach tested in a number of cities. Transferring some control over the flow of data from corporations to users is an important step towards ensuring that human rights are upheld in the digital environment.
The UNCTAD report also explores the technological and digital divide, whose dimensions span developed and developing countries as well as urban and rural areas within a particular country. This problem is nothing new: it was only last year when UN Secretary-General António Guterres referred to the need to bridge the gap, arguing that it was instead widening amid the COVID-19 pandemic. At the same time, he proposed a Roadmap for Digital Cooperation.
Besides, the report notes the massive impact of digital platforms. These, the authors believe, “are no longer just digital platforms” but “global digital corporations” that have the necessary capabilities for processing information, which puts them in a privileged position. Further, digital platforms are able to influence policymaking through lobbying their interests. In terms of spending, Facebook and Amazon are the most active lobbyists in the United States, while Google, Facebook and Microsoft are the biggest spenders in Europe. The report suggests that the privileged position of digital corporations—such as their ability to process massive bulks of data and derive profit from raw information—leads to something of an imbalance between the private and the public sectors when it comes to recruiting talent. Accordingly, the gap is widening, which means that the tech giants are moving even further out in front.
Finally, fragmentation of the digital space into competing models of managing cross-border data flows is another challenge to the digital domain and its prospects. Should such fragmentation occur, this may create new obstacles to communication and economic development, as the existing models (those of the U.S., the EU, Russia, China and India) offer different regulatory practices that have their own flaws and inefficiencies. The report identifies the broad shortcomings of these practices, making note of poor coordination between government agencies; ambiguous formulations deliberately used to denote key concepts (such as “critical infrastructure” or “digital sovereignty”); and setting unrealistically high technical requirements, including the requirement to store personal data locally—something that entails greater costs for smaller businesses and is detrimental to end consumers of digital products and services.
The Digital Economy Report implies the solution lies in establishing a new institutional framework to meet the challenge of global governance in the digital domain. This new institution should contain the “appropriate mix of multilateral, multi-stakeholder and multidisciplinary engagement.” At the same time, the report argues for ad hoc interaction between stakeholders given the inherent complexity of the framework. The new organization should become a coordinating body for digital governance with a sound mandate.
Indeed, the main stumbling block for global governance to emerge in the digital sphere has to do with the model of interaction to be chosen. The epitome of the intergovernmental approach is the International Telecommunications Union (ITU), while the Internet Corporation for Assigned Names and Numbers (ICANN) is illustrative of the multi-stakeholder approach.
Since neither is perfect, this naturally leads us to the conclusion that a combined approach is what is needed. This approach can possibly provide states with a much-needed platform for broader involvement in issues of digital governance, while ensuring that non-state actors and expert community retain their positions. The UNCTAD report refers to the United Nations Economic and Social Council (ECOSOC) as a perfect example of such a “hybrid” international organization. At ECOSOC, interaction with NGOs takes place through the Conference of Non-Governmental Organizations in Consultative Relationship with the United Nations. Expert bodies made up of representatives of individual countries as well as of independent experts also operate within the framework of ECOSOC.
Indeed, ECOSOC is a good example of how international institutions can interact with NGOs. However, it will not do to simply copy its mechanism, and it is so for several reasons. First, final recommendations within ECOSOC are adopted by representatives of member states. This harms its usefulness as a model to be replicated, since there will always be the risk that issues are politicized—this will be the case even if the new institution is designed with the combined approach in mind. Besides, should this body take on the role of the principal coordinator in the digital space, issues will become more politicized and disagreements will be more heated, thus slowing down decision-making. Second, the question remains as to how the new institution will interact with the existing organizations, namely the Internet Architecture Board and the Internet Engineering Task Force. The ad hoc mechanism to engage NGOs in other areas, which works perfectly fine for ECOSOC, may not be enough when it comes to technical standards that need to be constantly updated. Third, the General Assembly elects ECOSOC members every three years. However, this would not be feasible for the new coordinating body as the digital domain has its own leaders, and leaving them overboard would be incredibly detrimental to its effectiveness. In such a case, there remains the above-mentioned risk of discussions between the U.S./EU and Russia/China becoming politicized.
Moreover, the choice of decision-making mechanism presents certain difficulties given the dominant position of the four, both on the international stage and in terms of data processing. Operating on the basis of consensus may hinder negotiations or become an instrument to block unwanted decisions, while a simple majority will likely result in these nations establishing ad hoc coalitions to try and swing votes in their favour. Therefore, it seems prudent to design a complex voting mechanism based on qualified majority, possibly drawing on the system used in the Council of the European Union. Still, this mechanism will not rule out struggles unfolding behind the scenes.
Finally, the fact that the two sides have fundamental disagreements as to the concept of sovereignty in the digital space should be accounted for, as this could put an end to the new coordinating institution before it has even been established. The only way to move forward with a truly effective platform for cooperation in the digital space is to temporarily improve, if not to normalize, the relations between the leading states in this area.
No global governance in the digital domain is better than a poorly regulated system spinning its wheels. Our modern world is too dependent on technological advances that ensure that all regions and facets of life are complementary. Any failure of the mechanism can be extremely costly. However, increasing fragmentation of the digital space may be even more costly—for developing and developed countries alike. One possible way forward amid the international environment mired in uncertainty is to search for common ground on the most basic of issues. While the differences in national regulations persist, there are a number of issues that are common to all: these include cyberterrorism, cybercrime, illegal access to data or threats to critical infrastructure.
Multilateral agreements that do not address the fundamental differences in the stances taken by states may lay the foundation for global governance to emerge in the future. It is in this context that the joint U.S.–Russia draft resolution on the responsible behaviour of states in cyberspace, if legally unbinding, bears utter significance for cooperation between nations who espouse two different models as well as for overcoming the negative background of broader political disagreements.
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