Ban of Chinese Applications in India in the light of Article XXI of GATT

“Globalisation ” -very familiar and ideological term to all today! The meaning is very simple to be explained as “Global Village ” ie linking the globe across. Well, while establishing such linkages many kinds of links can be expected; the same varying from “Godliness “to that what we call “Devilish “.Undoubtedly, it is these” devilish accesses” that needs the system to provide for the ” Rules and Regulations “. So in the provisions of one such kind namely GATT we are going to analyze the ban imposed on the Chinese Applications. What dangers and threats are being posed by the Chinese Applications? How the security of the nation is somewhere at stake? How the stolen data pose threat? What are the possibilities regarding controlling all these threats? What does Article XXI GATT states?

GATT, WTO, Sovereignty and integrity, National Security, Article XXI, Council, Data Stealing, Vulnerability, Loss of Identity, Breach of norms, Policy, and measures.

Introduction

In the modern era of science and technology, we all are facing a very comfortable and convenient mode of lifestyle. Everything has gone simpler ..even simplest, in the sense that just by few seconds and sometimes even by a mere blink of an eye that we can get the job done. Amazing! !Isn’t it? Of course, it is!! So it is the research and development in the technology that everything has made possible in one go and it is only because of the same that today it becomes quite possible for one to reach space, planets other than the Earth, deeper depths penetrating the Earth and the Oceans, the remotest and the rarest areas, etc and what not! !!In a situation of this kind, taking ourselves far back in our history it won’t be anything greater than the fairy tale of getting imagined ourselves things done all in one blink.

Well, nonetheless there are drawbacks of the same when analyzing the other aspects of the same comfort add convenience. Just as we are doing things in  “one-click ” so as sometimes we are totally “done ” in ” one-click “, very serious and worrying while the same is related with the very aspect of the ” security “.Isn’t it sounding vulnerable? Yes, it is! !!Undoubtedly vulnerable -the security of the nation -via the security of its people. Amazing in the modern era of doing things with “click “or in “one go “-it won’t be a miracle when just by a “click “people is “done away with “in the sense of security and privacy of any individual. Moreover citing one judicial principle of “Ubi jus ibi remedium “implying “where there is right there is a remedy”.Here in the present context also we are provided with the remedies in the name of rules and regulations. Talking specifically on the ban imposed on the Chinese Applications posing a serious threat to the security and privacy of the identity and data about any individual. Throughout the article what we are going to recall the way these “Stealing Applications “are posing threats and the way, these are restricted using provisions under the Article XXI of GATT.

Banned Chinese Applications: Perspectives

It was only on June 29, 2020, the Indian Government banned 59 Chinese Applications on the ground of data stealing and national security and sovereign issues. Popular applications among Thore include Tik Tok, SHARE it, UC Browser, Cam Scanner, Helo, Weibo, We chat, Club Factory, etc. Followed by 47 more, with good intervals citing the complaint about there being cloned ones. These unofficial versions are more dangerous as these downloaded through the unofficial address is not updated. Companies do not roll out updates for the unofficial versions thus the vulnerability got unfixed and thus otherwise expected to be exploited by hackers and cybercriminals. A total of thus 224 apps thus have been banned from Chinese origin either directly or indirectly.^1

Does the question now arise as to why these apps are required to be banned? The answer lies in the sense that what the personal data and other details about the privacy of any individual, so crucial are just made public and that too at the hands of the people who can put the same to dreading result to the server located outside India. What has been considered by the Ministry of Electronics &Information &Technology and Law and Justice worth noting

“…..receiving many complaints from various sources including several reports about the misuse of some mobile applications available on some android and ios platforms for stealing surreptitiously transmitting user’s data in an unauthorized manner to servers which have locations outside. ……thus banning Chinese Applications are aimed at protecting safeguards and measures for the security, sovereignty, and integrity of the nation. ……….the digital strike meant for safety, security, defense, the integrity of India and to protect the data privacy of people of India. …….”^2

                                                                                –  Mr. Ravishankar Prasad.

Invoking under Section 69 A of the Information Technology Act read with relevant provisions of the Information Technology Act  (Procedures and Safeguards for Blocking of Access of Information by Public )Rules 2009. Moreover reportedly raising concerns in the representations to the Indian Computer Emergency Response Team  (CERT-In )regarding data security and loss of privacy in using these apps. Nonetheless exhaustive reports and recommendations from Home Ministry’s  Indian Cyber Crimes Coordination Centre.

1. Financial Express

 2.The Print

Nonetheless “sneaky cyber route to information “can be gauged from the fact of the deeper penetrations of the applications like Tik Tok had in the common rungs of the society. PUBG clocks around 13 million daily users, which according to defense and warfare experts, can lead to a disastrous personal security breach in the present situation. Commodore Shyam Khushi  (retd) of the Indian Navy explains how the ban could prevent the transfer of information to the Chinese government :

“These applications give information about every individual….where they are traveling, they exist and many like minute details ….etc which China can make use of against India easily …….” he adds “…..users are also prone to various kinds of exploitations through these apps. ….the Chinese already have high-end technology with 5G speed which makes it much easier for them to track precise locations and other details. ……so by banning these applications we have saved our people from exploitation by the Chinese by accessing their information. “^3       -A threat.

Referring to the applications ban Lieutenant General Harbhajan Singh PVSM and former signal officer -in-chief of the Indian Army says

“These are very important symbolism. …..these applications are very dangerous in the way that the Chinese can put any bug in the software. …..that is. ..while playing games on your phone and various sites on your phone you send millions of messages to those sites and that China can track easily where these messages are coming from ……and that can harm the individual and nation as a whole. .”^3.

Moreover from a strategic point of view, the recommendations are favoring the same in the deep perspectives on the commercial mark

“India is slowly decoupling from China, as the same has both the emotional and economic impact. India is a net importer from China both of the finished and semi-finished goods. Our exports are low-value items. The Chinese have seen an opportunity to invest and have brought in FDI of about 210 crores. Millions of Indians are influenced by this. ……affecting in their everyday jobs and leisure times -conspicuous and noticeable statement showing how the inner levels of the lives are at stake. ….”^4

Rear Admiral Vineet Bakhshi.

Well, China has always been waging harm via various modes. The Galvan Valley incidents in June brought home the facts that the Chinese cannot be trusted, whatever their Ambassador, Statesman, or Spokesperson in Beijing would say. China is apt to be taken in the manner which suits it in the given moment. ……China will not be allowed to do whatever it needs to expand. ….we need to stand against it.”^4

General Singh.

3.The Deccan Chronicle

Well taking into account the way these applications are posing threats and playing the dirty game of the breach of trust and treacherous tactics hampering the citizen and the integrity of the nation as a whole, the decision to ban these all would have taken far before.

The Banned Applications: Chinese Perspectives

The basic response that China put forth is very common and the same as anyone else would have expected and commented. “…..suspecting India’s action violating the basic rules and regulations under the GATT Norms……India’s selective and discriminating measures target some Chinese Applications on vague and far fetched grounds. …running contrary to the equal and clear procedural standards. …..abusing exceptions to national security and suspected violating WTO standards. …..it runs contrary to the general standards of foreign trade and E-commerce and is not conducive to customer preferences and Indian market rivalry. ..”^6;^7

The response which has been thus exhibited shows the tendency that China is very much interested in the Expansionist policy of its own  using technology and a biological weapon is somewhere exposed and any actions thus taken against and in stern reply by any country at its prey for protecting its sovereignty and integrity, would no doubt will be regarded as “abuse of exceptions ” and “violating the provisions of the GATT  (WTO).”^6,^7

The blow was given to the economy of the over-ambitious country with the world over condemnable Expansionist policy when such policy is sustained at the very ground of the breach of the trust maintained by the preyed country. China has been ever supporting entity to the devilish mindset of Pakistan via funding and money laundering in making weaker and weaker the fundamental strata of the society. It is the major threat to the very background of a sovereign and integral country being not only the enemies at the border but also the vulnerability at the very prone and approachable cyber boundaries. “The ways of combatting the devilish desire of any country against the sovereignty and integrity of the nation are four folds viz. Political, Diplomatic, Economic and Military…..” says Commodore Kaushal. ….”..while banning the Chinese Applications will surely prevent the innermost threats that have been posted by the Chinese in the very deeper strata of the mindsets of the common. ….and there how avoiding unnecessary private data and details on the part of the common; innocent; unaware masses of the people in a total unalarmed mode and also as a whole putting the nation to a threat. “

GATT -Article XXI and Ban on Chinese Applications

GATT or what we also call General Agreements on Trade and Tariff was created after II World War, in the year 1947  with a treaty signed by 23 countries and signed also the International Law on January 1, 1948.GATT remained one of the focal features of the International Trade Agreements until it was created by the creation of the WTO on January 1, 1995. The aim behind the GATT was to form rules to end or restrict the most costly and undesirable features of the pre-war protectionists period, namely quantitative trade barriers such as trade controls and quotas. The agreement also provided a system to arbitrate commercial disputes between nations, and the framework enabled several multilateral negotiations for the reduction of the tariff barriers. GATT was regarded as a significant success in the post-war years.

Taking into account Article XXI around which our present topic of discussion revolves, each line by line and simultaneously gauging the same in the glimpse of the similar decided disputes and cases forthwith. The text of Article XXI is as follows :

Article XXI

“Security Exceptions: Nothing in this agreement shall be construed –

a. to require any contracting party; to furnish any information the disclosure of which it considers contrary to its essential security interests;

b. to prevent any contracting party from taking any action which it considers necessary for the protection of its essential security interests –

i) relating to fissionable materials or the materials from which they are derived.

ii) relating to traffic in arms, ammunition, and implements of war and such traffic in other goods and materials as is carried on directly or indirectly to supply a military establishment.

iii) taken in time of war or another emergency in international relations.

c. to prevent any contracting party from taking any action in pursuance of its obligations under the United Nations Charter for the maintenance of international peace and security. “^8 ^9 

We notice very well that China in its response to the ban imposed on the Chinese Applications by India recently cited the same to be a misuse or what it calls “abuse of exceptions “.Let us take a sound and befitting reply for the same in the very words of the council constituting GATT while the provisions are being drafted into.

“We have a good deal of thought to the question of security exception which we thought should be included in the charter. There was a grave danger of having too wide an exception and we could not put it into the charter simply by saying -‘by any member of measures relating to Members security interests ‘-because that would permit anything under the sun…..we cannot prohibit measures which are needed purely for security reasons by making it tight, at the same time we cannot make it so broad, that under the guise of security -countries will put on measures which have a commercial purpose …..just a guarantee against the abuses of exceptions. “^10

One similar case where Ghana rejecting the Portuguese goods on the ground of the occasion of the accession of Portugal. ….to be held justified under the ground of security exception under article XXI. ^11

“Contracting party to be the sole judge of deciding what is necessary for the essential security interest. “

It is what iterated in many other cases too where the member countries of EEC – Canada and Australia invoked the same against the import from Argentina …..and again it was held to be the right invoking. ^12

In the US trade embargo against Nicaragua also the same principle was invoked upholding the applicability of the provisions under Article XXI of GATT. ^13

Well, all these are the instances when we see how clearly and the provisions stand beside anything in the favour of the security and integrity of the nation.

What’s next: Way Ahead

Well, the time is to scrutinize the next “to be status “on both sides. Implying to say what’s next for India and what’s next for China.

To begin with, India taking the same as an opportunity to look forward the space for filling out the gap of the limitless talent inborn youth and the yearning of the time that is usually spent on the meaningless timepass jobs. This situation will also aid a lot in filling this vacuum. On the one hand, they are much inquisitive about their time investment and secondly the other hand where the space will be equipped by those who are willing to replace the same with something to be built in India or what we call the same “Indian origin “.Thus India is going to get this opportunity born out of the threat twofold viz. diverting the time of the section of the citizen from spending the same on useless “timepass “towards something useful while at the same time the time that has earlier been spent on the Chinese Applications or “timepass “will at full vacuum strive hard for filling the gap by something which is of Indian origin and thus the revenue going outside which in return used for destroying and targetting India will now be able to get them utilized positively within the country and not least cutting short the source of a threat running across the cyber boundaries stealing important data and making the commons prone and vulnerable. ^5

Now let us know how China will face ahead taking into concerns the rebuking step forward as a reply to the ill will posed in the way of safety and security; Sovereignty and integrity of the nation. Through proven and will be proving further China will make use of the “Disguised Attacks ” strategy. Implying by tying up with those with apparently different origin and base while originally routed in China and there how continuing the evil targets. The best example of such a mentality is highly evident from the incidence of “Snack Video “and “Kwai”.The latter of base Beijing was banned because it misused the market and data to which similar kind new one named “Snack Video “came forth though apparently based in Singapore by some Symphony Tech Pte Ltd. but belonging to Beijing base. Well, it is not such that China will move one side and one head rather than “mirrored offering “it will take help of the laws and regulations on the fake ground of “India abusing the exception “.Nonetheless the same will be challenged at various levels by just anyhow breaking and molding the laws as it thinks fit; particularly under the GATT Regulations. As we have already discussed what and how the interpretations under Article XXI to be taken and have already been taken in similar perspectives in numerous cases decided earlier touching the same situation. ^6;^7

Conclusion

So notwithstanding what has already been faced and the innocent masses are subjected to; what the time calls to every citizen at least learn from the past when just mere trade practice may lead a country to 500 years old bandage daring to release out of which “mentally “is still a daring task in itself. An amazingly if remained in the third world, unaware of the current scenario the country is struggling with and also remaining ununited and being mere prey to those planning and targetting us all well enough in sound plotting by outside and by some “sponsorers “within as well for letting the whole system shattered and shred apart into numbness. Just taking a pledge not to be the tool at such evil-minded hands and being ourselves aware along with the target of making aware others too against what is striking at the very base and ready to catch easy prey. Encouraging something national for contributing to the nation-building truly. So the need here is not to be subjected to anything just wake up and get rid of all the things meant for keeping in a way or another you “we the people “in shackles in whatever name and whatever ways. The first and the sole aim to be national and buy national.

                 References

  • 1. https://www.wto.org
  • 2. https ://www.wikipedia.org
  • 3. https ://www.thehindu.com
  • 4. https ://www.deccanchronicle.com
  • 5. https://www.outlookindia.com
  • 6. https://thewire. in/tech
  • 7. https://m.timesofindia.com/business
  • 8. https://www.financialexpress.com
  • 9. https ://www.theprint.com

Endnotes

  • 1.https://www.financialexpress.com
  • 2.https ://www.theprint.com
  • 3.https ://www.deccanchronicle.com
  • 4.https ://www.thehindu.com
  • 5.https ://www.outlookindia.com
  • 6 .https ://thewire.in
  • 7.https://m.timesofindia.com
  • 8.https ://www.wto.org
  • 9.https://www.wikipedia.org
  • 10. EPCTA/A/PV/33 p 33 pg20 -21 and corr 3
  • 11.GATT /CP 3/SR 22 ,corr  1
  • 12.C/M/188,PP 2 -16 :C/MA’AM /191PP 41 -46
  • 13.C/M/196 at p . 7

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