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.

Conclusion

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.

Sahajveer Baweja
Sahajveer Baweja
Institution- 3rd-year B.A.LL.B. student at Rajiv Gandhi National University of Law, Patiala, India