About the authors: Yatharth Kansal and Mainak Mukherjee are fourth-year law students at National Law University and Judicial Academy, Assam (India).
Image by bmnnetwork available here.
I. INTRODUCTION
Optimism of India and China’s relations returning to normalcy ebbed as the Indian Government, under Section 69A of the Information Technology Act, 2000 (IT Act), banned 54 more Chinese apps deemed security threats. The move comes as part of India’s recent stern policy of banning Chinese apps to protect its security interests after border skirmishes with China in the Galwan Valley in 2020. While China has criticized the ban, India expects the ban to secure its sensitive data, which the Chinese apps have been accused of collecting by obtaining various permissions. Nevertheless, India must adhere to its World Trade Organization (WTO) obligations and ensure that the ban is justifiable. In this article, the authors will analyze how India is justified in banning Chinese apps in view of WTO rules and regulations.
II. THE NATIONAL INTELLIGENCE LAW OF CHINA: The Main Security Threat
India banned Chinese apps to safeguard national security, as numerous Chinese apps were collecting sensitive data from Indian users and transferring that data to Chinese servers. This conduct was against the “sovereignty and integrity of India, defense of India, security of state and public order.” Moreover, the Chinese intelligence service could access all this data under the National Intelligence Law of China, 2017 (NILC), which authorizes Chinese corporations to share collected data with their government. Further, Article 7 of NILC mandates Chinese corporations to assist and cooperate with state intelligence work. Similarly, Article 14, which works as a backbone for Article 7, gives the Chinese government absolute authority to gather all the information collected by companies based in China.
Other nations have accused Chinese companies of misusing sensitive data in the past. Recently, the United States imposed a ban on Huawei, a Chinese multinational corporation, for allegedly sharing sensitive data with the Chinese intelligence agency. Similarly, the Chinese company Tik-Tok has been accused of collecting “biometric data” of all its users. However, the main problem is not data collection, but how easily the Chinese intelligence agency can access and misuse this data via the NILC.
III. THE MFN OBLIGATION: How is the WTO concerned?
One of the main agendas of the WTO is to combat protectionism and liberalize the national trade policies of all its member States. The “Most Favored Nation” (MFN) provision of the General Agreement on Trade in Services (GATS), prohibits any discrimination by a member state towards a like service rendered by other member states. However, member states have the leeway to adopt trade-restrictive measures if they justify the measures under the “essential security exception.”
Similarly, under Article XVI (Market Access Commitment) of the GATS, member states may undertake specific commitments to treat foreign and domestic products equally. In US-Measures Affecting the Cross-Border Supply of Gambling and Betting Services, the WTO Appellate Body held that a member may not contravene a specific commitment once it is undertaken. However, India has not taken any specific commitment in the digital service sector. Therefore, it can avoid an examination of its actions.
IV. THE WTO Impasse: The Self-Judging Security Exceptions
Security exceptions have lain dormant in the General Agreement on Tariffs and Trade, 1994 (GATT) upon the creation of the WTO and its subsequent agreements (i.e., Article 73 TRIPS and Article XIV bis GATS). Application of this defense dates back to the Falkland-Malvinas case, where it was observed that members have an inherent right to adopt measures to protect essential security interests. Similarly, in the backdrop of the Angola Crisis in 1961, Ghana justified its boycott of Portuguese goods by arguing that the goods posed a potential detriment to security. In both scenarios, the member states were able to evade a GATT examination because of the self-judging nature of the provision.
The definitive ruling came in the dispute Russia–Measures Concerning Traffic in Transit (DS512) (Russia Transit), in which the Panel, while evaluating Russia’s restrictions on traffic in transit from Ukraine through the Russian federation to third countries during the Crimean crisis, rejected Russia’s argument on the non-justiciability nature of the security exception clause. The Panel further held that a state must satisfy three parameters to invoke the security exceptions defense. First, the state must satisfy one of the requirements of the sub-paragraph of the Security Exceptions. Second, the measures must reasonably fall within the ambit of vital security interest. Third, the measures must be taken in good faith with a rational and plausible relationship between the measures and the end pursued. The Panel’s observation in Russia-Transit has been considered to be highly persuasive and has played a significant role in the Panel’s findings in the Saudi-Protection of IPRs dispute. Similarly, India can justify its ban by satisfying the three requirements of the security exceptions defense.
a. The ban must satisfy one of the requirements of the sub-paragraph of the Security Exceptions.
The Chinese app ban satisfies Article XIV bis (b)(iii): “taken in time of war or other emergency in international relations.” The Indian and Chinese troops were engaged in a border confrontation in the Galwan Valley, which resulted in the death of 20 Indian soldiers.
The Galwan standoff can qualify as a “war or other emergency in international relations” as it resulted in a military action from both sides. After the Galwan conflict, India is in a situation where it cannot take any risk of allowing any threat from China to its sovereignty. Moreover, the Galwan Valley standoff looked like a well-planned move from China, which could not have been executed without collecting information about the whereabouts of the Indian soldiers. This information could have been accessed with the help of the Chinese applications which the soldiers used on their electronic devices.
b. The measures reasonably fall within the ambit of vital security interest.
The ban on Chinese apps was imposed under Section 69A of the IT Act read with IT Rules, 2009, which empowers the Indian Government to block public access of applications that can threaten its security interests.
Further, India can justify its ban under the security exception clause of the GATS, which contains the phrases “it considers” and “necessary.” The Panel in the Russia-Transit case adopted a balanced approach by interpreting the phrases as mentioned above, both objectively and subjectively, which meant that the invoking member had the discretion to determine what constitutes its essential security interest; however, such action was subject to review by the Dispute Settlement Body (DSB) to determine if it was “necessary.” The International Court of Justice (ICJ) adopted a similar approach in its Advisory Opinion on the Unilateral Declaration of Independence in Respect of Kosovo. It held that a legal question could have both political and legal aspects. Similarly, the ICJ in the Mutual Assistance case held that even if such clauses are “self-judging,” the requested state must act reasonably and in “good faith.”
Therefore, India can argue that the ban is essential for its security interest because the Chinese apps collect and store crucial and sensitive data of its users. This data can be easily accessed by the Chinese intelligence service under the NILC. Moreover, due to the self-judging nature of the security exception clause, India has the right to determine what is essential for its security interest.
c. The measures must be taken in good faith with a rational and plausible relationship between the measures and the end pursued.
The obligation of good faith is a “customary international law” that underlies all treaties. It is codified under Articles 31(1) and 26 of the Vienna Convention on the Law of Treaties (VCLT), which mandates the interpretation and performance of every treaty in good faith.
After the Galwan Valley incident, India suspected that China’s military escalation was planned on the basis of data collected by the Chinese apps. India could have retaliated in the form of military force, or could have cut-off diplomatic ties with China. However, they acted in good faith by choosing a less lethal method: targeting the Chinese economy by banning their apps from the Indian market.
Self-judging clauses can circumvent the multilateral trading system because member states can adopt trade-restrictive protectionist measures under the guise of national security. Thus, good faith must apply to both the member state’s interpretation of the sub-paragraph of the Security Exceptions, as well as the connection between the member’s action and its security interests. Therefore, the measures “must meet a minimum standard of plausibility” supporting the allegedly affected essential security interests.
In this technology driven era, apps have previously been accused of collecting sensitive government security information. For example, the US banned Strava for storing heatmap data that could reveal military sites. Similarly, Chinese apps like Tik-Tok and UC Browser have been accused of collecting sensitive data from their users. Further, data collected by Chinese apps from different sources, be it civilians, diplomats, or military, can easily be accessed and misused by Chinese agencies. Thus, the ban protects the data of the country as a whole from being misused and to the detriment of the nation. This satisfies the requirement that the measure has a plausible relationship with the pursued end.
V. CONCLUSION
India’s long border dispute with China looks far from over. At a time when data is considered to be the new oil, India continues cracking down and taking stern actions toward Chinese apps to prevent Chinese entities from misusing the data of the people of India. This shows that India is not currently ready to compromise data protection while having a border dispute.
Moreover, the security exception clause of GATS gives a member state the freedom to implement measures that it considers necessary for the protection of its essential security interest. Although the self-judging nature of the clause allows floodgates to open for its abuse, India’s ban is justified because it can satisfy the Russia-Transit parameters. Further, under any circumstances, India’s territorial integrity falls within the purview of its essential security interest. Therefore, any action taken by the government for the protection of its territorial integrity is cogent and justified.