by Alexander R. Kerr Alvarez*
[1] Introduction
In 2018 the world was rocked by the dramatic rise of the video streaming platform TikTok. Its simple format of easily digestible sub-60 second videos has driven it to be the most downloaded app on the Apple App Store in late 2020. It has become a pop cultural tour ’de force with over 800 Million active users and 2.6 billion global downloads as of January 2021.[1] Its popularity has given rise to a new swath of celebrities, viral trends, and methods of political activism. Central to TikTok’s success is its algorithm: a tightly kept secret, that uses bulk meta-data collection to tailor users personal feed to content that they would find entertaining; this drives engagement and watch time- as well as personalizes advertisements for its users. Its virality has also brough scrutiny from tech communities, privacy activists, and governments, who have expressed concern over the app’s extraction of user’s personal data. Data miners and researchers have found that the app collects information beyond that which is allowed by the Android and Google terms of service- hiding some of its data collection behind layers of encryption. This includes, but is not limited to, geolocation tracking (even when the app is not in use), period copying of the users ‘clipboard’, internet search histories, type of phone the app is on, and cookies.[2] These concerns, paired with TikTok’s parent company ByteDance being based in the Peoples Republic of China (hereafter PRC or China) has caused significant worry across both the private and public sectors as to its seemingly benign nature. [3] In late 2019 the United States Army published a research paper “consider[ing TikTok] a cyber threat”.[4]
In May 2020 India banned TikTok and 59 other apps from doing business in India in a purge of Chinese apps from its domestic markets, following skirmishes between it and China on the Line of Actual Control (hereafter LAC) between their borders. The US followed suit in August, ordering that TikTok be added to the International Economic Powers Act (hereafter IEEPA) entities list, banning ‘any transaction’ between ByteDance and its American subsidiary, but has run into complications.[5] In response to this China has asserted their intent to seek redress at the World Trade Organization (hereafter WTO) over the banning of these apps, stating that these were ‘clearly inconsistent with WTO rules…[and] violate the basic principles of the multilateral trading system’.[6] In response both India and the US cited national security concerns as a principal basis for their banning of TikTok.
This paper will explore the likelihoods of both the United States’ and India’s success in a potential WTO dispute via an examination of the national security exception found in Article XIVbis(b) of the General Agreement on the Trade of Services (hereafter the GATS). To do this it will utilize the “objectivity” and “subjectivity” tests established by the Panel in Russian- Measures Concerning Traffic in Transit and apply them to Article XIVbis of the GATS.[7] Although Russia-Traffic in Transit relates to Article XXI of the General Agreement on Trade and Tariffs (hereafter the GATT), it is generally considered that Article XXI and Article XIVbis of the GATS are analogous, as they are nearly identical, and it is likely that the Panel would follow a similar route for Article XIVbis.[8] This paper will show that India is likely to succeed in its invocation of national security, however the US is unlikely to be successful. It would likely not pass the objective or subjective tests established in Russia-Traffic in Transit; as it is unlikely that an economic conflict would meet the standard of an “emergency in international relations”. Further this article will be working under the assumption that the banning of TikTok complies with US and India domestic law and any preferential trade agreements between them and China.
To make this argument, this paper will be divided into four major sections. The first will explore the trade of data flows and digital services under the WTO framework, discussing why the GATS is the relevant treaty for discussing the banning of TikTok. Then it will explore whether India and the United States would be successful in claiming the national security exception found in Article XIVbis of the GATS and per the tests established in Russian- Traffic in Transit.
[2] The Trade of Data Flows and the WTO
Two issues must first be explored prior to a discussion of whether the national security exception was lawfully invoked: 1) what, if any, treaty does TikTok fall under, and 2) if under the protection of a treaty, does the WTO have jurisdiction to intervene in the dispute. Broadly the WTO outlines that all tradable things can be categorized into one of three vertical silos: 1) a goods 2) a service or 3) intellectual property or IP, each with their own respective treaty governing it: The GATT for Goods, the GATS for Services, and the The Agreement on Trade-Related Aspects of Intellectual Property Rights for IP. Apps, data flows, and digital services have not been formally placed into one of the three silos -like traditional industries like steel or banking-, as the WTO texts make no explicit reference to the Internet, digital communication, and other relevant technologies, which creates ambiguity as to the role that the treaties have over the trade of data. To rectify this, the 1999 Council on Services found that much of the activities associated with E-Commerce and Digital Services would fall under the purview of Services and thus would thereafter be governed under the GATS framework.[9] Subsequent decisions pertaining to trade of electronic services, such as e-commerce, have worked under the assumption that digital services fell under the GATS.[10] In the US-Gambling report the Appellate Body concluded that the cross-border supply of services covered under the GATS encompassed all possible means of supplying a service between WTO members. This implies, though not outright says, digital services as well.[11] This was followed up in China-Publications and Audiovisual Products and China-Electronic Payment Services which explicitly state that the distribution of services, as covered in the GATS, includes online delivery and electronic payment services.[12] Further the 1999 Progress Report on the Work Programme on Electronic Commerce states that the “GATS is technology neutral” meaning it does not distinguish between the “different technological means” that “services may be supplied”.[13] However, a final confirmation on what treaty should govern digital services is still ongoing as of 2020.
For an exception to be invoked, it is required that the in-question measure be in violation of the GATS.[14] Although the GATS and the WTO texts in general do not make explicit reference to barriers to the trade of data flows as restrictions of trade, many scholars have argued that because the trade of data is governed by the GATS it can, therefore, be inferred that the WTO has jurisdiction over disputes arising from measures which restrict data flows.[15] Measures restricting cross-border data flows are analogous to restrictions of the cross-border supply of traditional services as they would unduly restrict market access for foreign services and be in violation of National Treatment obligations.[16] With these having knock on effects into other areas of trade.[17] Restrictions of this nature include: Data-localization, conditional flow regimes, local processing requirements, and bans.[18] Thus showing that the measures taken by Indian and the US governments would fall under the GATS framework and be in violation of it; creating a dispute where an exception may be invoked.
[3] The National Security Exemption
Central to the WTO’s mission is the reduction of -and eventual abolition of- tariffs, trade barriers, and other protectionist measures between its member states in order to rationalize and liberalize the global trading regime; facilitating the free flow of capital, goods, and services. However, member states can deviate from these goals in the pursuit of non-economic political or policy objectives such as public health, prevention of fraud, public morals, and data security. This is enshrined into Article XIV and Article XIVbis of the GATS. Because this dispute has arisen, chiefly, from national security concerns it is likely that India and the US would invoke Article XIVbis of the GATS which creates an exception to a state’s regular GATS obligations if that state feels that its national security may be threatened. India has already indicated that they are looking into invoking it if a WTO dispute were to arise. [19] Article XIVbis states:
- Nothing in this Agreement shall be construed:
a) to require any Member to furnish any information, the disclosure of which it considers contrary to its essential security interests; or
b) to prevent any Member from taking any action which it considers necessary for the protection of its essential security interests:
i) relating to the supply of services as carried out directly or indirectly for the purpose of provisioning a military establishment;
ii) relating to fissionable and fissionable materials or the materials from which they are derived;
iii) taken in time of war or other emergency in international relations;
c) to prevent any Member from taking any action in pursuance of its obligations under the United Nations Charter for the maintenance of international peace and security.
2. The Council for Trade in Services shall be informed to the fullest extent possible of measures taken under paragraphs 1 b) and c) and of their termination.
Its intent, like that of its near identical twin in Article XXI of the GATT, is to preserve the right of states to determine their “essential security interests” and create a mechanism in which states can established economic barriers of any kind against those that challenge its interests. It has a lower threshold for invocation, requiring only that a measure taken be “considered necessary for its protection”. While the general exceptions found in Article XIV require a strict examination which ‘weighs and balances’ the policy objective, impact, and whether an alternative measure is better suited.[20] Article XIVbis has yet to be invoked in any proceedings but has been rhetorically invoked by states when imposing cybersecurity regulatory measures, most recently with the Vietnam’s 2018 Cybersecurity Law,[21] and in disputes that did not reach the Dispute Settlement Body.[22]
Scholars often argue that the national security exception provides a carte blanche for protectionism and is ripe for abuse.[23] This is because unlike the other exceptions in Article XIV, Article XIVbis does not explicitly prohibit arbitrary or unjustifiable discrimination; requiring only that member states “consider” that their security interests are endangered. This creates a self-judging standard wherein only that state can determine its essential interest and thus can plausibly label anything as contrary to its interests. This was compounded by a general reluctance on the part of the WTO to intervene in situations where the national security exception had been invoked- though they have previously indicated an interest in limiting the exception.[24]
Though there has been a reluctance by member states to abuse these; Article XXI of the GATT has only been invoked sparsely since its original implementation in the 1947 GATT and Article XIVbis has never been invoked. The only recorded abuse of the national security exception, to date, was in 1975 when Sweden attempted to establish a quota system for footwear, arguing that it was done in the “spirit of Article XXI”, though it chose not to formally invoke it.[25] Yoo argues that this reluctance was due to the contracting parties of the 1947 GATT being primarily members of the western non-communist bloc and thus the majority of trade restrictions during the Cold War were externally focused towards Communist, non-GATT member, states. He argues that a spirit of internal cooperation and “economic and political stability” overrode economic concerns amongst the western alliance.[26] Of the seven disputes arising from Article XXI that occurred during the Cold War: six of them were directed against Communist states,[27] and one was against Argentina- a retaliatory measure by Commonwealth states for Argentina’s invasion of the Falkland Islands in 1982.[28] However the restructuring of the global order from unipolarity to multipolarity- epitomized by the ascensions of China in 2001 and Russia in 2012 has reconstituted the WTO into a vehicle to facilitate great power competition.[29] This, alongside the rise in populist anti-trade governments in the late 2010s, has made trade conflicts and abuse of the national security exception, more likely than at any point in the past; as the spirit of cooperation that existed in the Cold War is being diminished in favour of nationalism and autarky. The first instance of this was the seemingly arbitrary global steel and aluminium tariffs put in place by the United States under the Trump Administration in March of 2018, and the instigation of its ongoing trade war with China later that year.[30]
Into this geopolitical milieu, the Panel in the 2018 case Russia-Traffic in Transit argued that Article XXI(b) was not totally self-judging based upon the phrasing of the Article XXI(b) and its chapeau which qualifies ‘it considers’ as limited to the scenarios outlined in Article XXI(b)’s subparagraphs.[31] Those being:
b) to prevent any [Member] 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 the traffic in arms, ammunition and implements of war and to such traffic in other goods and materials as is carried on directly or indirectly for the purpose of supplying a military establishment;
ii) taken in time of war or other emergency in international relations;
The Panel established an objective test, to be applied on a case-by-case basis, to determine whether an invocation of Article XXI was justified, requiring that the measure in-question relate to one of the circumstances outline in Article XXI(b)’s subparagraphs. Further qualifying Article XXI(b), it stated that although a nation has wide discretion in determining what their ‘essential security interests’ are, this is not unlimited and a subjective test determining whether those ‘essential security interests’ are complaint with Article XXI’s chapeau and had been done in ‘good faith’ was required.[32] It argued that ‘essential security interests’ are narrower than regular security interests and thus are only those relating to ‘quintessential functions of the state, namely, the protection of its territory and its population from external threats, and the maintenance of law and public order internally’.[33] It also highlighted the importance of the word ‘necessary’, stating that there must be a relationship between the measure taken and the ‘essential security interests’ which are threatened.[34] It further created a time bar requiring a measure be implemented during an ongoing ‘war or other emergency in international relations’.[35]
Due to the similarities between the Article XXI(b) and Article XIVbis(b), as much of the language in Article XIVbis was replicated from Article XXI, and the similarities in both Article’s chapeau’s it is likely that the WTO would come to similar findings and institute the same or nearly the same standards for a future case arising from Article XIVbis.[36]
[D] Implementation of Article XIVbis(b)
Having established that the panel is likely to review an invocation of Article XIVbis under a similar standard as that established in Russia- Traffic in Transit for Article XXI of the GATT, it is now possible to analyze the likelihood of the success can occur. Both India and the US banned TikTok from doing business within their respective states, showing a clear violation of the GATS National Treatment obligation has occurred- ergo requiring that an exception be invoked for the measure to stand.[37] This section will analyse Article XIVbis(b), via an examination of whether its subparagraph iii) could relate to TikTok. Employing the tests established in Russia-Traffic in Transit to determine whether these were done within the scope of a ‘war or other emergency in international relations’, relate to an ‘essential security interests’ and were done in good faith.
(1) India- Article XIVbis (b)
(a) Factual Background
Since 5 May 2020, China and India have been engaged in a series of ongoing conflicts along the Sino-Indian Border. Fighting started when the People’s Liberation Army (PLA) troops crossed the LAC into Indian Territory, subsequently occupying forty-to-sixty square kilometres previously held by New Delhi.[38] This was preceded by light skirmishes in the Sikkim region in January 2020 between PLA and Indian National Army (INA) Troops and was followed by a melee skirmish on the 15 June between INA and PLA regulars in the Galwan Valley that led to forty-three casualties, thirty-five dead, and ten INA soldiers -including four officers- being taken into detention by the PLA. Since May, it has been reported that there have been one hundred INA casualties ‘mostly minor injuries’ and fifty PLA casualties. In response to the Chinese incursion, a popular movement against Chinese imports has occurred in India. The government has cancelled a number of contracts with Chinese firms and faces further calls for a nationwide boycott.[39] New Delhi responded by instating a number of restrictions on imports from China, including TVs, tyres, air conditioning, and, at of writing, two hundred plus apps have been banned including all apps owned by Alibaba, Tencent, Baidu, Sina and ByteDance.[40]
(b) War or Other Emergency
Sino-Indian border conflicts are not a new occurrence, the two countries have had skirmishes in 1962, 1967, 1987, and 2017 prior to this. Though, there have not been reported deaths from these since the 1962 Sino-Indian War. In Russia- Traffic in Transit the Panel sought to reflect on what the meanings of ‘war’ and ‘emergency in international relations’ were; broadly defining the later as any “situation of armed conflict, or of latent armed conflict, or of heightened tension or crisis, or of general instability engulfing or surrounding a state” and defining the former as a subcategory of emergency. [41] Though broadly defining war as an “an armed attack or conflict”.[42] The objectivity test states that for a measure to be justified it must have occurred during or in response to one of either. It further indicated that an emergency would ‘give rise to defence or military interests, or maintenance of law and public order interests’.[43]
In Russia-Traffic in Transit, the facts lent themselves to an easy analysis: there was/is an ongoing conflict on the border between the two countries in the Donbass region of Ukraine between the Ukrainian Armed Forces and separatist elements in that region known as the Donbass Peoples Republic; and, arguably, there is an ongoing state of conflict between the two since 2014. When Russian forces took part in the annexation of Crimea and are assisting, with lethal and command support, for the separatists in the Donbass.[44] Further United Nations General Assembly Resolution no. 68/262 and UN General Assembly Resolution No. 71/205 directly reference the ongoing situation between the two nations and denounces Russian aggression into Ukraine, describing it as an armed conflict.[45] In its report the Panel stated that the ongoing conflict directly ‘affects the security of Russia’s border with Ukraine in various ways’ and that the situation constituted an emergency.[46]
Following this logic, it is likely that the Panel would also find that the ongoing situation between China and India would constitute an emergency in international relations or war. This is because, although there have been talks to return to the status quo ante bellum, no such effort has been successful, skirmishes and tit-for-tat economic retribution are still ongoing.[47] The deaths of uniformed regulars during these skirmishes would constitute an ‘armed attack or conflict’ or ‘the heightening of tension’ between them. Further, the broader conflict over the LAC could constitute a ‘latent armed’ conflict as tensions between the two spikes with some regularity. The continuation of tensions between the two nations indicates that a situation which would ‘give rise to defence or military interests…’ is in existence. Thus, showing that it is likely that the Panel would accept that an emergency in international relations that affects India is ongoing.
(c) Essential Security Interests
The panel decision indicates that ‘essential security interests’ are narrower and should be treated higher than usual security interests; stating that they should be related to the ‘quintessential functions of the states’ mentioned above.[48] However, it acknowledged that the essential security interests of its member states vary and are subjective; therefore, only the member state can determine it.[49] Thus it is likely that the panel would prima facie accept whatever essential security interests India felt were threatened.
(d) Good Faith
The Panel held that invocations of the security exception were required to have occurred in ‘good faith’ and had not arisen from arbitrary, non-security, interests.[50] Member states, therefore, are require to ‘articulate sufficiently’ the veracity of their claims of what an essential interest was and demonstrate, to a ‘minimum requirement of plausibility’ that the emergency in international relations directly relates to the concern for the states essential interest.[51]
In Russia-Traffic in Transit the Panel found that an emergency involving armed conflict on one’s border would constitute a situation in which a state’s essential interests had been challenged.[52] Russia showed that the measures in question[53] directly related to the change-in-government that occurred in 2014 and the subsequent invasion of Crimea by the Russian Federation; as the measure taken specifically related to cargo crossing the Ukrainian-Russian border and had traveling through the location of the emergency- the Donbass and Luhansk oblasts.[54] Showing a ‘minimum requirement of plausibility’ that their was a potential that the cargo could be used in a capacity that could threaten Russia’s ‘essential interests’.[55]
The question then, is did the TikTok ban occur in good faith. In Article XIV of the GATS deference is given for states seeking to ensure data protection and individual privacy. It is likely then, that a Panel would bring this consideration over into questions of a conflict, [56] as the widespread distribution of computers and cell phones has altered traditional battlespaces.[57] Cyberspace is now recognized as the fifth operational dimensional alongside land, sea, air, and space.[58] In wartime, breaches of digital spaces could constitute a ‘potential risk’ to those on the battlefield and within society writ large; as data supremacy can confer a battlefield advantage to a warring army.[59] One such example would be geolocation and geotags, data which TikTok collects. In the Donbass conflict in Eastern Ukraine, cell phone towers and geolocation software have been used by Russian-allied separatists to track the movements of the Ukrainian Army for the purposes of targeting artillery and distributing propaganda.[60] Both of these could be achieved through TikTok. Plausibly its geolocation tracking could be used for targeting purposes, calculating troop movements, and uncovering the location or number of personnel within enemy military bases. Concerns of tracking led the Uttar Pashar and Madhya Prades Police Departments and governments banning Chinese apps prior to national ban.[61] Further, TikTok has been used by the Chinese government for propaganda purposes; reportedly, it has shadow banned Indian accounts discussing the border skirmishes, disrupting internal communication channels within India. A similar, though more effective, tactic was used during the Russo-Georgian War where Russian forces used cyberattacks to bring down fifty-four government communication sites as well as local news in Gori, the provincial capital of the province at the centre of the Russian invasion, to disrupt civilian-governmental communications to obfuscate the ongoing invasion.[62] India therefore could plausibly show that the ‘minimum requirement of plausibility’ necessary for the ‘good faith’ test outline in Russia-Traffic in Transit had been sufficiently met as there are plausible situations in which an essential interest could be threatened. Those likely being the ‘protection of its territory’ or ‘population’; as both are threatened by further Chinese incursions beyond the LAC. Therefore, because the measure taken by India happened during a time of emergency and met the plausibility standard, the Panel is likely to rule that it had acted in good faith.
(e) Conclusion
It is likely that the Panel would grant India an Article XIVbis exception due to the ongoing state of conflict between it and China over the LAC between them, and the measure had been done in ‘good faith’- as it related to the emergency and could plausibly relate to the protection of a security interest.
(2) United States of America- Article XIVbis (b)
(a) Factual Background
During the 2016 campaign, then candidate, Donald Trump proclaimed that the largest threat to the United States was China, declaring that it was a currency manipulator and stating his intent to balance the trade deficit between the United States and it. Starting in 2018, President Trump sought to make good on these declarations and established a number of tariffs between the United States and China- including a 50% ad valorem tariff on washing machines, 30% ad valorem tariff on solar panel parts and a 25% ad valorem tariff on Steel. In response China imposed retaliatory tariffs on the import of American goods including Soybeans. Despite efforts to deescalate the trade war, the average tariff rate for imported goods both ways is ~20% and there are numerous cases at present in the WTO over the disputes.[63] Part of this trade war included an executive order banning TikTok on national security grounds.[64]
These events did not occur in a vacuum as China is considered a rising power and a chief rival to the United States. The 2018 National Security Strategy described China as a ‘revisionist power’ and threat, seeking to reorder global power structures away from the US and towards itself.[65] Leading some to argued that the two are engaged in a Cold War.[66]
(b) War or Other Emergency
Unlike India, the United States is not engaged in any situation which could be construed as a ‘war’ or ‘latent conflict’ between it and China; as there has not been a reported situation of Chinese and American regulars having exchanged fire since the Korean War in 1953.[67] This said, there are geopolitical tensions between the two, though whether that can meet the standard of a ‘heightened tension or crisis’ is uncertain. The two are engaged in an economic or trade war with one another. Evidenced by the aforementioned tariffs, trade restrictions, Chinese quasi-annexation of the disputed nine-dash line territory,[68] forced technology transfers, and de-facto embargo of some Chinese Tech companies including Huawei, ZTE, and TikTok by the United States. Economic warfare is a common strategy used to deny an opposing force or geopolitical rival access to strategic economic material (via blockades, privateering, strategic bombing, the freezing of capital assets, etc.) which could be beneficial to it. [69] As a strategy, it has been used during warfare and strategic competition throughout history and is a recognized dimension of warfare.[70] Ioachimescu-Voinea argues that because a trade war constitutes a deviation from the status quo it could objectively meet the standard of a situation of ‘heightened tensions’ between the US and China. [71] Though this is unlikely, and a Panel would likely not concur.[72] In Russia-Traffic in Transit the panel stated that:
‘…that political or economic differences between Members are not sufficient, of themselves, to constitute an emergency in international relations for purposes of subparagraph (iii). Indeed, it is normal to expect that Members will, from time to time, encounter political or economic conflicts with other Members or states. While such conflicts could sometimes be considered urgent or serious in a political sense, they will not be “emergencies in international relations”’ [73]
Thus, the Panel would likely not consider that the US-China Trade War constitutes an emergency in international relations, because it is unlikely to be objectively seen as anything but a political or economic conflict.
This said, there is disagreement as to whether Russia-Traffic in Transit requires that the situation of ‘war or other emergency’ needs to be between the two parties of the WTO dispute.[74] Although the emergency of Russia-Traffic in Transit occurred between Russia and Ukraine as well as on the frontier between them, the decision does not attempt to establish any spatial requirements or require that the emergency be between the parties to the dispute as part of the objective test. It defines an ‘emergency in international relations’ as happening either in ‘world’ or ‘global politics’.[75] The Panel only mentions territorial proximity in its discussion of ‘general instability’, as the instability must be either ‘engulfing or surrounding a state’.[76] Similarly the Panel nowhere suggests that that the war or emergency must be between the parties to the dispute, only that an emergency be objectively occurring.[77] In EC, Australia, Canada – Trade restrictions affecting Argentina applied for non-economic reasons, the emergency only existed between the United Kingdom and Argentina; Australia and Canada were not involved with the conflict.[78] In the Cold War era GATT cases arising from the measure taken against Czechoslovakia, there as well, existed no direct situation of conflict between it and the US or Peru. [79] Further illustrating a lack of need for the emergency to be between the parties of the dispute. Therefore, it could be argued that the US is engaged in a ‘war or other emergency’. Since the late 90s the US has been engaged in a number of anti-terror operations across the world, which has colloquially become known as the War on Terror. This includes, but is not limited to, military operations in Libya, Niger, Nigeria, Somalia, Yemen, Iraq, Syria, Afghanistan, Pakistan, and the Sahara. These operations include the regular deployment of uniformed troops to battlespaces where they are engaged in lethal combat with hostile combatants leading to the deaths and detention of American personal. The legal basis of this is the 2001 and 2003 AUMFs which establish that a state of hostilities exists between the United States and: Al-Qaeda, Al-Qaeda’s constituent forces, the Ba’athist Republic of Iraq, and irregulars resisting the occupation of Iraq.[80] Therefore, because the objective test established by the panel requires that ‘the action [only] was “taken in time of”’ emergency to the disputed parties, it is likely that the Panel would establish that objectively the United States is involved in an emergency in international relations.
(c) Essential Security Interests
The analysis for this section would be the same as that had occurred for India, with the Panel prima facie accepting that whatever interests the United States thought was being impacted.
(d) Good Faith
The Good Faith test requires that the state invoking the national security exception demonstrate a clear connection between its measure, the emergency in international relations and that a ‘minimum requirement of plausibility’ exist between the measure and the interest which was threatened. Although the United States claims that the Trade War arose out of national security concerns; it is clear that what motivates it are both political and economic disagreements.[81] The Panel considers these to be outside of the realm of acceptable reasons for an invocation of the national security exception and thus cannot constitute an emergency. If the Trade War did constitute an emergency, it would be more likely the Panel might accept it- but it is still be uncertain at best. This is because it is difficult to articulate a connection between the measure and the national security concerns cited by the US as justification for the Trade War. Those being an industrial gap between the USA and China which could threaten US interests in the event of a war. Further, some speculate that the reason the Trump Administration ordered the banning of TikTok arose from TikTok users having disrupted a rally held during Trump’s run for reelection.[82] The reluctance of the government to follow up on litigation within domestic courts that has arisen from the measure and the pressure it put on ByteDance to sell TikTok of America to a regime friendly firm further illustrates that it may have been acting in pursuit of economic and not security goals. However, the inattentiveness of the government may be due to domestic events- specifically, the transition to the Biden Administration, which may have superseded these proceedings, as the Biden Department of Justice were involved in oral arguments for TikTok v Trump in January. Further, if the emergency were the War on Terror, there exists no foreseeable way that a Panel would accept that a ‘minimum requirement of plausibility’ that links the banning of TikTok to the War on Terror would be met. Therefore, it is unlikely that the United States would pass the subjective test established in Russia-Traffic in Transit as the link between TikTok and the United States ongoing conflicts is tenuous at best.
(e) Conclusion
Thus, it is unlikely that the United States banning of TikTok would be accepted by the Panel and the United States would have been seen to be violating its GATS obligations. This is because it is unlikely that a Panel would accept that the banning of TikTok directly relates to whatever emergency in international relations the United States is currently engaged in; as the War on Terror does not involve China and the Trade War between it and China is unlikely to meet the standard. However, this does not preclude the possibility that during a Panel investigation the USA could present evidence of an ongoing emergency between it and China which is not publicly known, that may meet the standards of article XIVbis(b). However, this may not be accepted as in Russia- Traffic in Transit the Panel adopted Russia’s recommendation that an emergency be ‘publicly known’.[83] Further, it is unlikely that the Panel would find that the United States was acting in good faith, as the Trump Administration seems to have been acting out of narrow economic protectionist interests in the Trade War. Therefore, it is likely that the Panel would find that the United States had improperly invoked Article XIVbis(b) and order than the US reinstate TikTok. However, it is unlikely that the United States would accept this seeing as it is long-held American practice to deny that the WTO has the power to judge the national security exception.[84]
[E] Conclusion
International society is converting from the Post-war order into a new age of multipolarity and global integration not seen since the 19th Century. Partly driven by the decline in armed conflict following 1945 and the establishment of the UN and partly driven by a rising tide of populism and economic protectionism, great power conflicts are bound to arise from trade disputes and an era of trade wars may soon be upon us. The Trump Administration’s aggressive implementation of tariffs, quotas, and the banning of TikTok being the opening salvos. This will challenge the WTO order in a profound and yet unseen manner as it will become a political battlefield in which states will engage in economic competition with one another.
Central to this new era will be the national security exceptions in the TRIPS, GATT, and GATS as they provide member states with a comprehensive tool to circumnavigate their regular obligations vis-à-vis their rivals. However, outside of Article XXI of the GATT, the national security exception is under considered. This article hopes to help develop the literature by demonstrating a possible path for how the decision made in Russia-Traffic in Transit may apply in the GATS context by exploring the legality of the banning of TikTok by the US and India and by exploring how the national’s security exception may apply in situations of data flows. However, it cannot be conclusive in its estimations as situations may differ if taken up by the Dispute Settlement Body.
______________________
* 4th Year Law and International Relations (LLB Honours) student at Edinburgh University
[1] B Doyle “TikTok Statistics” Wallarro 1 January 2021, available at https://wallaroomedia.com/blog/social-media/tiktok-statistics/.
[2] K Poulsen & R McMillen “TikTok Tracked User Data Using Tactic Banned by Google” The Wall Street Journal 11 August 2020, available at https://www.wsj.com/articles/tiktok-tracked-user-data-using-tactic-banned-by-google-11597176738.
[3] Chinese data collection regulations allow for wide discretion by state security to engage in bulk meta data collection on those within China and those whose data is held by Chinese firms. See S Hennessy & C Miransola “Did China Quietly Authorized Law Enforcement to Access Data Anywhere in the World” Lawfare Blog 27 March 2017, available at https://www.lawfareblog.com/did-china-quietly-authorize-law-enforcement-access-data-anywhere-world. As well, there are concerns over censorship of content that is critical of the Chinese Communist Party see A Hern “Revealed: How TikTok Censors Videos that do not please Beijing” Guardian 25 September 2019, available at https://www.theguardian.com/technology/2019/sep/25/revealed-how-tiktok-censors-videos-that-do-not-please-beijing and F Potkin “ByteDance Censored Anti-China content in Indonesia” Reuters 13 August 2020, available at https://www.reuters.com/article/us-usa-tiktok-indonesia-exclusive/exclusive-bytedance-censored-anti-china-content-in-indonesia-until-mid-2020-sources-idUSKCN2591ML.
[4] N Vigolor “U.S. Military Branches Block Access to Tok Tik App Amid Pentagon Warnings” New York Times 4 January 2020, available at https://www.nytimes.com/2020/01/04/us/tiktok-pentagon-military-ban.html.
[5] See Exc. Order. 13942, 85 Fed. Reg. 155 (06 August 2020) and R Chesney “Banning TikTok and WeChat: Another Primer” Lawfare Blog 7 August 2020, available at https://www.lawfareblog.com/banning-tiktok-and-wechat-another-primer. The Trump Administration concurrently has been seeking to facilitate the purchase of TikTok of America by a consortium of Oracle Services and Walmart and the administration has delayed the implementation of the IEEPA order. However, at time of writing, this merger has stalled over disagreements between the Consortium, ByteDance, the US and China over the terms of the purchase, see J Horwitz & Brenda Goh “Beijing unlikely to approve Oracle, Walmart’s TikTok deal: Global Times” Reuters 22 September 2020, available at https://www.reuters.com/article/us-usa-tiktok-china/beijing-unlikely-to-approve-oracle-walmarts-tiktok-deal-global-times-idUSKCN26D048. The Committee on Foreign Investment in the United States (hereafter CFIUS) has ordered ByteDance to divest itself from TikTok of America by mid-November or face sanctions, though this has been delayed. Occurring concurrently there is a series of proceedings in the DC, Nineth, and Third Circuits seeking injunctive relief by BtyeDance and TikTok creators arguing that the ban was contrary to the first amendment and was ultra vires see TikTok Inc. v. Trump, Civil Action No. 1:20-cv-02658 (CJN) (D.D.C. 27 September 2020) and Marland, Cosette, Rinab et al v Trump Civil Action No. 2:20-cv-04597 (WB)(E.D.P. 30 November 2020).
[6] Reuters “China says US and Indian bans on TikTok, WeChat broke WTO rules” Reuters 5 October 2020, available at https://economictimes.indiatimes.com/news/international/business/china-says-us-and-indian-bans-on-tiktok-wechat-broke-wto-rules/articleshow/78498069.cms?from=mdr.
[7] Panel Report- Russian- Measures Concerning Traffic in Transit, WT/DS512/R and WT/DS512/R/Add.1, circulated to WTO Members 5 April 2019, adopted 26 April 2019. (hereafter Russian-Transit).
[8] N Mishra “The Trade- (Cyber)security Dilemma and its Impact on Global Cybersecurity Governance” Journal of World Trade (Forthcoming), Centre for International Law Working Paper Series 19/05, available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3491122 (hereafter Mishra, “Cybersecurity”).
[9] Though this has not been formalized into one of the treaties as there are ongoing disputes to the IP implications of digital services. See, WTO General Council, Work Programme on Electronic Commerce, S/L/74, Adopted on 27 July 1999, para. 9 and WTO General Council, Work Program on Electronic Commerce, IP/C/18, adopted 30 July 1999.
[10] See, Appellate Body Report- United States-Measures Affecting the Cross-Border supply of Gambling and Betting Services, WT/DS285, circulated 7 April 2005, adopted 20 April 2005 (hereafter US-Gambling), Appellate Body Report- China-Measures Affecting Trading Rights and Distributions Services for Certain Publications and Audiovisual Entertainment Products, WT/DS363, circulated 21 December 2009, adopted 19 January 2010 (hereafter China-Publications and Audiovisual Products) and Panel Report- China – Certain Measures Affecting Electronic Payment Services WT/DS413/10, circulated 16 July 2012, adopted 31August 2012 (hereafter China-Electronic Payment Services).
[11] US-Gambling para. 6287.
[12] China-Publications and Audiovisual Products para. 71209; China-Electronic Payment Services para. 7180 and 7182.
[13] WTO General Council, Work Programme on Electronic Commerce, S/L/74, Adopted on 27 July 1999, para. 4-6.
[14] Panel Report, US-Section 337 Tariff Act (1989), L/6439 – 36S/345, circulated 19 January 1989, adopted 7 November 1989 para. 5.9.
[15] M Francesca Ferracance “Data Flows and national security: a conceptual framework to assess restrictions on data flows under GATS security exception” (2018) 21(1) Digital Policy, Regulation and Governance at 44-70; M Burri, “The Regulation of Data Flows Through Trade Agreements” (2017) 48 Georgetown Journal of International Law at 407-448 (hereafter Francesca Ferracance “Data Flows and National Security”) ; A Mitchell and J Hepburm, “Don’t Fence Me In: Reforming Trade and Investment Law to Better Facilitate Cross-Border Data Transfer” (2017) 19 Yale Journal of Law and Technology at 182-237.
[16] Ibid.
[17] C. Malmstorm “Trade in a Digital World”, Conference on Digital Trade, European Parliament, 17 November 2016, available at http://trade.ec.europa.eu/doclib/docs/2016/november/tradoc_155095.pdf.
[18] Francesca Ferracance “Data Flows and National Security”
[19] A Sen 2020 “Chinese app ban: India may invoke GATS security exception at WTO” The Hindu Business Line, 04 July 2020, available at: https://search-proquest-com.ezproxy.is.ed.ac.uk/newspapers/chinese-app-ban-india-may-invoke-gats-security/docview/2419791615/se-2?accountid=10673 .
[20] Appellate Body Report, EC-Measures Prohibiting the Importation and Marketing of Seal Products WT/DS400/16/Add.7 WT/DS401/17/Add.7 circulated 22 May 2014, adopted 16 June 2014, para. 5.214; US-Gambling para. 292.
[21] M Nguyen 2018 “Vietnam lawmakers approve cyber law clamping down on tech firms, dissent”, Reuters, 12 June 2018, available at: www.reuters.com/article/us-vietnam-socialmedia/vietnamlawmakers-approve-cyber-law-clamping-down-on-tech-firms-dissent-idUSKBN1J80AE.
[22] R Bhala “National security and International Trade Law: What the GATT says, and what the United States Does” 19(2) University of Pennsylvania Journal of International Law (1998) at 263-317.
[23] B Jordan “The WTO versus the Donald: Why the WTO Must Adopt a Review Standard for Article XXI(b) of the GATT”, 37(1) Wisconsin International Law Journal (2020) at 173-205 (hereafter Jordan “WTO versus the Donald”); M Ioachimescu-Voinea “National Security Exceptions in the WTO- A Carte Blache for Protectionism? Part II- US-Steel and Aluminium Products disputes, Improvements of the Security Test, Conclusion” X(1) Law Review(Romania) (2020) at 3-43 (hereafter Ioachimescu-Voinea, “National Security in the WTO”).
[24] GATT Panel Report, United States – Trade Measures Affecting Nicaragua, L/6053, (1986), unadopted, paras. 5.17 and 5.3.
[25] T Cottier and P Delimatsis, “Article XIVbis: Security Exceptions”, in P Stoll and C Feinäugle (eds), Max Planck Commentaries on World Trade Law, WTO-Trade in Services, vol 6 (2008) 329-348.
[26] J Yeong Yoo and D Ahn “Security Exception in the WTO System: Bridge or Bottle-Neck for Trade and Security” 19(2) Journal of International Economic Law (2016) at 417-443.
[27] Nicaragua and Czechoslovakia turned Communist after their accession to the GATT and Yugoslavia ascended in 1965, See GATT Panel Report, US – Issue of export licenses, CP.3/SR22-II/28 (1949); US – Suspension of Obligations between the US and Czechoslovakia, CP.5/5-II/36 (1951); Peru – Prohibition of Czechoslovakian Imports, L/2844 (1954); US- Imports of Sugar from Nicaragua, BISD/31S/67 (1983); US – Trade measures affecting Nicaragua, L/6053 (1985); EEC – Trade Measures taken by the EC against the Socialist Federal Republic of Yugoslavia, L/6948 (1992).
[28] GATT Panel Report, EC, Australia, Canada – Trade restrictions affecting Argentina applied for non-economic reasons, C/W/402 (1982).
[29] H Zimmermann “Realist Power Europe? The EU in the Negotiations about China’s and Russia’s WTO Accession” 45(4) Journal of Common Market Studies (2007) at 814-832 and A Reich “The Threat of Politization of the World Trade Organization” 11 May 2005.
[30] F Li “Trump’s Steel and Aluminum Tariffs, National Security and WTO Law” 2 China and WTO Review (2018) at 273-300 (hereafter Li “Trump Steel and Aluminum Tariffs”); Jordan “WTO versus the Donald”.
[31] Russia-Traffic in Transit para. 7.72.
[32] Russia-Traffic in Transit para. 7.132.
[33] Ibid. para. 7.130.
[34] Ibid. para. 7.63.
[35] Russia-Traffic in Transit para. 7.77.
[36] Mishra, “Cybersecurity”.
[37] China-Electronic Payment Services para. 7.687.
[38] A Tellis “Hustling in the Himalayas: The Sino-Indian Border Confrontation” Carnegie Endowment for International Peace, June 2020, available at https://carnegieendowment.org/files/Tellis_Himalayan-Border-Standoffs.pdf.
[39] A Dastidar & R Tiwari “Chinese Firms to lose India business in Railways, Telecom” The Indian Express 18 June 2020, available at https://indianexpress.com/article/business/economy/border-dispute-chinese-firms-india-business-railways-telecom-6464148/ and N Gamai “‘Software In A Week, Hardaware In A Year’: Magsaysay Awardee Sonam Wangchuk calls for ‘Boycott Made In China’ The Outlook 30 May 2020, available at https://www.outlookindia.com/website/story/india-news-software-in-a-week-hardware-in-a-year-magsaysay-awardee-sonam-wangchuk-calls-for-boycott-made-in-china/353838.
[40] TNN, “After TV sets and tyres, government bans AC imports” The Times of India 16 October 2020, available at https://timesofindia.indiatimes.com/business/india-business/after-tv-sets-tyres-govt-bans-ac-imports/articleshow/78690471.cms.
[41]Russia-Traffic in Transit para 7.76 and 7.102.
[42]Russia-Traffic in Transit para 7.76 and 7.102.
[43] Ibid. para 7.75.
[44] Russia-Traffic in Transit para. 7.115 and C Ziegler “A Crisis of Diverging Perspectives: U.S.-Russian Relations and the Security Dilemma” 4(1) Texas National Security Review 2020.
[45] United Nations General Assembly Resolution no. 68/262 (2014), A/RES/68/262 (2014), UN General Assembly Resolution No. 71/205, (2016).
[46] Russia-Traffic in Transit para 7.119, and 7.123.
[47] S Miglani & C Cadell “India says troops had ‘minor faceoff’ with China in Sikkim border area” Reuters 25 January 2021, available at https://news.yahoo.com/india-says-troops-had-minor-074243738.html and A Krishnan “China slams India’s ban on 43 more apps” The Hindu 25 November 2020, available at https://www.thehindu.com/news/national/china-slams-indias-move-to-ban-43-more-apps/article33175495.ece.
[48] Russia-Traffic in Transit para 7.130.
[49] Ibid. para 7.131.
[50] Russia-Traffic in Transit para 7.134
[51] Ioachimescu-Voinea, “National Security in the WTO”.
[52] Russia-Traffic in Transit para 7.142-7.146.
[53] A requirement that all Ukrainian cargo traveling to third-party states via Russia needed to be rerouted to Belarus for an interim period and receive special authorization to enter into Russia; and the banning of certain classes of goods from entering Russia, Ibid para. 7.140.
[54] Ibid. para. 7.142-7.146.
[55] Ibid. para. 7.27.
[56] Francesca Ferracance “Data Flows and National Security”.
[57] M Schmitt “Taming the Lawless Void: Tracking the Evolution of International Law Rules for Cyberspace” 3(3) Texas National Security Review (2020) at 33-47.
[58] Summary of the National Defense Strategy of the United States (2018), available at https://dod.defense.gov/Portals/1/Documents/pubs/2018-National-Defense-Strategy-Summary.pdf.
[59] Mishra, “Cybersecurity”.
[60] Asymmetric Warfare Group, US Army “Russian New Generation Warfare Handbook” (2016), available at https://www.multibriefs.com/briefs/rcaa/Russian_New_Generation_Warfare_Handbook.pdf.
[61] N Baus “Banning Apps violate WTO rules, will affect employment of Indians: Chinese Embassy” The Print 30 June 2020, available at https://theprint.in/diplomacy/banning-apps-violates-wto-rules-will-affect-employment-of-indians-chinese-embassy/451938/.
[62] D Hollis “Cyberwar Case Study: Georgia 2008” Small Wars Journal (2011), available at https://smallwarsjournal.com/blog/journal/docs-temp/639-hollis.pdf.
[63] C Bown “US-China Tradewar Tariffs: An Up-to-Date Chart” Peterson Institute For International Economics 14 February 2020, available at US-China Trade War Tariffs: An Up-to-Date Chart | PIIE and C Bown & M Kolb “Trump Trade War Timeline: An Up-to-Date Guide Peterson Institute For International Economics 18 December 2020, available at Trump’s Trade War Timeline: An Up-to-Date Guide | PIIE.
[64] Exc. Order. 13942, 85 Fed. Reg. 155 (06 August 2020).
[65] Summary of the National Defense Strategy of the United States (2018), available at https://dod.defense.gov/Portals/1/Documents/pubs/2018-National-Defense-Strategy-Summary.pdf.
[66] M Zhao “Is a New Cold War Inevitable? Chinese Perspectives on US-China Strategic Competition” 12(3) The Chinese Journal of International Politics at 371-394.
[67] It could be argued that because an armistice is the cessation of fighting not a treaty returning parties to the status quo antebellum, that a conflict situation may exists between them. However, in common practice an armistice functions as peace treaty. See E Stanley “Ending the Korean War: The role of Domestic Coalition Shifts in Overcoming Obstacles to Peace” 34(1) International Security 2009 at 42-82.
[68] The nine-dash line territory overlaps a vital sea lane with 60% of global trade moving through it a year. China claims the territory however the international community disagrees. See South China Sea Arbitration, Philippines v China, PCA Case No 2013-19, ICGJ 495.
[69] E Sand “Desperate Measures: The Effects of Economic Isolation on Waring Powers” 3(2) Texas National Security Review (2020) at 12-37.
[70] Ibid.
[71] Ioachimescu-Voinea, “National Security in the WTO”.
[72] Something she herself notes, Ibid.
[73] Russia-Traffic in Transit para 7.75.
[74] See Ioachimescu-Voinea, “National Security in the WTO” and Li “Trump Steel and Aluminum Tariffs”.
[75] Russia-Traffic in Transit para 7.73.
[76] Ibid. para 7.76
[77] Ioachimescu-Voinea, “National Security in the WTO”.
[78] Though there was not a conclusive decision in this case. The GATT council decided to shelve the dispute-which became irrelevant after the cessation of the conflict and the status quo was restored, see A Reich “The Threat of Politization of the World Trade Organization” 11 May 2005.
[79] US – Issue of export licenses; US – Suspension of Obligations between the US and Czechoslovakia; and Peru – Prohibition of Czechoslovakian Imports
[80] Authorization for Use of Military Force, Pub. L 107-40, 115 Stat. 224 (2001) and Authorization for Use of Military Force Against Iraq Resolution, Pub. L 107-243, 116 Stat. 1498 (2003).
[81] See Li “Trump Steel and Aluminum Tariffs”, Ioachimescu-Voinea, “National Security in the WTO”, and Jordan “WTO versus the Donald”. All of which concluded that the Trade War was done in bad faith and that the measures done as part of it would be unlawful. Also see US Dept. of Commerce, The Effect of Imports of Steel on the National Security- An Investigation Conducted under Section 232 of the Trade Expansion Act of 1962 (2018) available at https://www.commerce.gov/sites/default/files/the_effect_of_imports_of_steel_on_the_national_security_-_with_redactions_-_20180111.pdf; specifically ‘displacement of domestic steel by excessive imports and the consequent adverse impact on the economic welfare of the domestic steel industry….’.
[82] However, the CFIUS investigation started before the Administration writ large took interest. See A Brown “Is this the Real Reason why Trump wants to Ban TikTok” Forbes 1 August 2020, available at https://www.forbes.com/sites/abrambrown/2020/08/01/is-this-the-real-reason-why-trump-wants-to-ban-tiktok/?sh=77df14244aed.
[83] Russia-Traffic in Transit para. 7.119.
[84] Jordan “WTO versus the Donald”, R Lighthizer “Statement by Ambassador Robert E. Lighthizer on Retaliatory Duties” 26 June 2018, available at https://ustr.gov/about-us/policy-offices/press-office/press-releases/2018/june/statement-ambassador-robert-e and Dispute Settlement Body, “US Statements at the Meeting of 23 October 2017” pp. 5 and Russia-Traffic in Transit Annex D-10 “Executive Summary of the Arguments of the United States”.
