India’s decision to ban 59 Chinese mobile applications on June 29 stirred a debate on the implications of the notification on its international trade obligations, specifically those under the rules of the World Trade Organisation (WTO). Ji Rong, the spokesperson for the Chinese embassy in India, called the decision “ambiguous and far-fetched”, and further said that it “abuses national security exceptions and violates WTO rules”. Now, apart from extending the ban to 47 more such China-owned mobile applications, India also intends to implement restrictions on apps funded by China. All these actions have been done under the veil of national security, a justification that has been significantly exploited in international law. Like other international bodies, WTO laws, too, provide governments with broad discretion for measures taken in furtherance of their purported security interests. However, with China claiming that India’s decision violates international law and abuses the WTO’s security exception, should India be worried about a prospective legal dispute before the international body? Or, will the legal and political issues that have tainted the WTO’s functioning, specifically surrounding the national security exception, act as a saviour for India’s trade interests?
The law on the issue of the security exception is not in India’s favour as it allows for scrutiny of the government’s measures by the dispute settlement body of the WTO. India’s implementation of the ban on the mobile applications is unlikely to pass the test stipulated by the WTO panel in previously adjudicated cases. The interpretation of the security exception, as determined by the panels in the Russia-Ukraine case and the Saudi Arabia-Qatar dispute, has limited the ambit of the provision. According to the ruling in Saudi Arabia-Qatar dispute, any measure taken during a situation of international unrest should not be “remote or unrelated” to the “emergency in international relations”. This means that the measures should be “necessary” to protecting a country’s security interests, and must be directly in pursuance of the international emergency situation.
In the notification published by the Indian Ministry of Information Technology, authorities said that the Chinese applications allegedly threatened Indian “sovereignty and integrity”, and endangered the “security of the state and public order”. However, there is no mention of the decision being taken in furtherance of the ongoing standoff on the Indo-China border. Moreover, the notification does not clearly stipulate the detrimental impact that each application has on the national security of India, specifically on the unrest in the Galwan valley. While it says that the applications pose a threat to the privacy and security of over 1.3 billion Indians, it does not establish a link between this threat and the government’s claim that the use of the Chinese applications attacks the country’s national security.
Further, the notification does not justify the imposition of a blanket ban across India, as opposed to adopting a more limited restriction on the applications by prohibiting their use in vulnerable regions, such as along the Line of Actual Control (LAC), where India is currently facing a standoff with China. Moreover, India could have also specifically implemented the ban on government employees and members of the armed force. For example, in the past, Indian army personnel have been barred from using Facebook and Twitter due to “security considerations and leakage of sensitive data”. The notification, however, does not spell out what specific features of the banned apps make them a greater threat to national security than Facebook and Twitter, which throws into doubt the excessive measures taken against the Chinese applications. Hence, these measures could arguably be considered as disproportionate, and, therefore, unrelated to what they seeks to achieve—protection from a security threat from China along its border.
Thus, to justify its decision, India will not only have to prove a significant and direct link of the ban to its security interests but also provide evidence to support its application across its population in entirety. Any decision by the WTO will have to be followed through by India, which is one of the most active members of the organisation. Moreover, India has, since the inception of the WTO, opposed discriminatory trade practices and even contested them before the dispute settlement body. Hence, maintaining the sanctity of the organisation and abiding by the decision of the dispute settlement body is not only in India’s larger interests, but also keeping in line with its previous interactions with the WTO.
However, the issue is not this straight-forward. The provisions on the security exception in the WTO legal framework has not only raised turmoil in legal circles but also in international politics. The essence of the debate lies in the question: Can the dispute settlement body of the WTO adjudicate on the security provision at all? The United States (US) has been the most forceful advocate for the non-justiciability of the provision. The American position holds that the rule is “self-judging”, which means that the country invoking the security exception does not have to justify its necessity to the WTO. Therefore, the effectiveness and the proportionality of the measures would be the sole discretion of the domestic authorities. On the other hand, the WTO has taken a different view on the issue. Through the Russia-Ukraine case and the Saudi Arabia Qatar dispute, the WTO has established that it does, in fact, have jurisdiction to decide whether the security exception justifies the measures imposed by a country. While the American position would help India preserve a sense of immunity for its actions before the WTO, the legal position of the dispute settlement bodies is a potential obstacle to this decision.
However, despite the prospective illegality of India’s decision to restrict the use of the Chinese applications, the decision continues to celebrate situational impunity from any legal action by China. India’s decision is both timely and strategically sound. The WTO is currently undergoing an existential crisis. The US, in pursuance of its fierce criticism of the organisation, has essentially rendered its dispute settlement system ineffective by blocking the appointment of judges. The appellate body is, therefore, no longer able to adjudicate on new disputes as the panel is unable to meet the minimum requirement for the number of judges. As a vital member of the international organisation, this is a cause for concern for India. However, in the current situation, in which the WTO’s dispute resolution body has essentially been disbanded, India can ensure that its trade interests are protected even while levelling such accusations at China and other actors. Hence, the exceptional situation has secured a sense of impunity from trade sanctions for India. Consequently, even if China is convinced that the mobile app ban by India is illegal, India currently enjoys a free hand to implement its decision, as its measures can no longer be disputed before the now powerless WTO appellate body.
The only short-term threat to India in international politics is trade sanctions by other countries. While countries like the European Union and Canada had applauded the decision of the WTO to restrict the use of the security exception to justify trade sanctions, they are unlikely to take a pro-China stand on the issue and question India’s invocation of the provision. This is primarily because of the overall discontent with China among Western powers. The western distrust towards China first began simmering with the expansion of China’s Belt and Road Initiative. However, now the issues have deepened with the imposition of the National Security Legislation in Hong Kong, which several liberal democracies view as a concerning violation of the rights of the residents in Hong Kong along with China’s obligations towards the international community. Several countries are also highly critical of its aggression in the South China Sea and the East China Sea. Moreover, even China’s allies in the Middle East and Africa are highly unlikely to take an anti-India stand and impose trade restrictions in an already struggling pandemic-struck economy.
While India may be temporarily avoiding disputes before the WTO, there are other costs that it has to bear as a result of its over-dependency on its bilateral trade relations with China. For instance, China has warned India of the detrimental impact of the decision on the domestic job market as the apps will be shutting down their Indian branches. Further, Huawei, a Chinese telecom company, has already announced its decision to reduce its staff and investment in India significantly. Hence, while India continues to retain its reputation as a law-abiding citizen of the international community despite its imposition of retaliatory trade measures against China, the costs of the souring bilateral trade relations may be higher than what is being portrayed.
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SOURCE: SOHAM SEN/THE PRINT