On June 29, 2020, the Indian Government banned 59 Chinese-origin mobile applications, stating that they were engaged in activities “prejudicial to sovereignty and integrity of India, defence of India, security of State and public order.” This move also comes weeks after a border clash between India and China, which resulted in casualties and rising tensions in the region.
China responded by stating that this action went against the general trend of international trade and e-commerce and selectively and discriminatorily aims at certain Chinese apps on ambiguous and far-fetched grounds, violates the World Trade Organisation (WTO) rules, and abuses the national security exception.
The security exception can be found in various WTO agreements, including Article XXI of the General Agreement on Trade and Tariffs, 1994 (GATT), and allows Members to breach their WTO obligations for the purposes of their national security. This exception has had very little opportunity to be discussed at length, before the Panel or Appellate Body, as most cases are either resolved diplomatically or are still pending before these bodies. The only instance where the security exception under GATT has been discussed by the Panel was in 2019 in the case of Russia – Measures Concerning Traffic in Transit.*
Russia – Traffic in Transit
This case was brought by Ukraine in 2014, challenging Russia’s restriction on traffic in transit of goods from Ukraine to the Republic of Kazakhstan and the Kyrgyz Republic through the territory of the Russian Federation. The Panel’s ruling can be seen as a balancing act between upholding the sovereignty of States and preventing States from adopting trade protectionist measures under the garb of national security.
The first important holding of the Panel is that GATT Article XXI(b) is not totally “self-judging”, and its invocation is subject to review by the Panel. While the chapeau to this Article allows a Member to take any action “which it considers necessary” for the protection of essential security interests, this discretion is limited to circumstances that objectively fall within the scope of one of the subparagraphs of Article XXI(b). However, with regard to the chapeau itself, the Panel interpreted “necessary” as meaning that which is entirely up to the invoking Member to determine such necessity. Hence, this is a more relaxed standard which allows States to make a subjective determination of the necessity of its measures. The only limitations on this discretion are that the Member adheres to the principle of good faith as a general principle in law and that the Member must demonstrate a minimum requirement of the plausibility of the measure in relating to the essential security interest. (paras 7.127 and 7.132).
Secondly, “essential security interest” was understood as “those interests relating to the quintessential function of the state, namely the protection of its territory and its population from external threats, and the maintenance of law and public order internally” (para 7.130).
Finally, in assessing whether Russia’s measures were taken “in time of war or other emergency in international relations” within the meaning of Article XXI, the Panel interpreted it to mean “a situation of armed conflict, or of heightened tension or crisis, or of general instability engulfing or surrounding a state” (para 7.76).
Application in the India-China Context:
Although the Russia – Traffic in Transit case was never appealed, and a panel’s findings are not binding on a future panel, the declared reviewability of GATT Article XXI, in that case, makes it likely for China to be able to officially challenge India’s ban before the WTO, should it choose to do so.
India seems to have a certain amount of flexibility in determining if a situation of emergency exits, and also in determining if its measures in banning certain Chinese apps are necessary to protect its essential security interests. Firstly, it should, in principle, be possible for India to objectively establish the existence of a state of “war or other emergency,” given that there were heightened tensions along the India-China border, as well as armed conflict between the militia and increased instability in the region. The situation has also been described as the worst clash in decades between the two countries, which lends favour to the fact that this situation is not a mere “political or economic conflict” (para 7.75). Secondly, the relatively lax standard to prove a plausible link between the measure and the essential security interest make it easier for India to be able to justify its ban. By citing defence security, violation of citizens’ data and privacy, and public order, India may be able to show a causal link between these national security concerns and the banning of specific apps.
However, it must be noted that WTO Agreements like GATT and the General Agreement on Trade in Services, 1995 (GATS), or even other subsequent declarations on e-commerce, are not completely equipped to review the technologies we are currently discussing. Hence, although a new panel may seek guidance from the Russia case, it may be difficult to directly apply the same legal reasoning to this case, considering that it requires an expansion of the notion of “security” beyond the traditional military concerns envisaged by the case as well as the Agreements. It would be interesting to see how the WTO would approach these issues.While we cannot predict exactly how a panel would review these restrictions, many of the views and interpretations of the Panel in Russia – Traffic in Transit provide wide discretionary powers to States imposing trade restrictions in the interests of national security. Despite the potential challenges India may face in establishing a causal link between the ban and its essential security interests, it would still have a very good case before the WTO if it comes to that. The relaxed standards to determine the necessity of the measures combined with the objective existence of heightened tensions indicate that India could successfully use the security exception as a defence against China’s claims that India’s ban violates WTO rules.
Jyotsna Manohar is a final year law student at Jindal Global Law School.
Image: AP/Indian Express (modified for reuse).
* Update: the recent Panel Report circulated on 16 June 2020 in Saudi Arabia – Measures concerning the Protection of Intellectual Property Rights deals with the security exception, in addition to Russia – Traffic in Transit.