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The use and abuse of national security: The need to adhere to the rules of the multilateral trading system



The concept of national security, like almost everything else, has evolved over time. During the Cold War, it included the threat of conventional, biological and nuclear weapons being deployed against civilian and military targets. Countering this threat meant keeping standing armies in readiness, building underground fallout shelters, and developing extensive continuity of government (COG) plans for whatever survived after a nuclear exchange, writes Simon Lacey.

Today we still live under the shadow of nuclear annihilation, but we also live in the information age, meaning that the attack vectors which potentially threaten us have expanded to include what is referred to as “critical infrastructure”, encompassing everything from roads to railways, to ports, to the power grid, to the financial system and of course, the communications networks underpinning all of these.

And because such an expansive understanding of what constitutes a threat to our existence now prevails, politicians have not shied away from even some of the most extreme measures in an attempt to safeguard this broad notion of national security. One of the latest examples of this are the bans imposed by several European countries on Chinese suppliers such as Huawei, effectively preventing the global equipment vendor from participating in 5G rollouts.

Today, the stakes are admittedly higher than in earlier eras, with international commercial rivalries raging over who manufactures and sells the critical infrastructure upon which our societies depend. Be that as it may, this does not justify arbitrarily setting aside the legally binding general principles that have evolved over centuries and governed us for many decades. These general legal principles include proportionality, fundamental rights, legal certainty, legitimate expectations, non-discrimination and due process.

Government action or measures that do set aside one or more of these general legal principles should be considered an exception. Exceptions, by their very nature need to be narrowly formulated, limited in both scope and time to what is absolutely necessary, and have an adequately articulated and substantiated factual basis.

Take for example the first of these conditions. Those countries that have imposed restrictions against Huawei have done so by simply banning it from their 5G telecommunications infrastructure. A blanket ban is the very antithesis of a narrowly formulated measure. The United Kingdom, after an extensive, transparent, and evidence-based telecom infrastructure review carried out in 2019, proposed that Huawei be allowed to operate in the country’s 5G ecosystem, subject to a number of carefully prescribed limitations. This is more in keeping with the principle that exceptions to general legal principles must be narrowly formulated, but was subsequently abandoned by the Johnson government due to intense political pressure from the Trump administration.

The second criteria, namely that measures be limited in both scope and time to what is absolutely necessary has also been violated in the case of the various bans enacted and under consideration against Huawei. If something is necessary, then it is by definition also functionally capable of achieving its stated objective. However, cybersecurity experts are unanimous in conceding that measures based on purely flag of origin considerations are completely useless in countering cybersecurity threats. So, if the bans against Huawei are not capable of achieving their stated objective, it stands to reason that they cannot be necessary.

Finally, the third criteria for exceptionally setting aside general legal principles, namely that any restrictive measures have a suitably articulated and substantiated factual basis, is likewise sadly missing in the case of the bans against Huawei. Western governments and consumers have been told that the company represents a national security threat and that the reasons for this assessment remain classified. This argument may have carried some weight in decades past, but ever since Colin Powell unwittingly went before the United Nations General Council and presented a manufactured case falsely claiming that Iraq was building and stockpiling weapons of mass destruction, we are no longer in a position to accept any claims by our security and intelligence interests purely on the basis of good faith.

A number of bans against Chinese equipment vendors currently being implemented or contemplated by various European governments deviate significantly from the security guidance provided by the EU Commission in its “5G toolbox”. They also make the EU highly vulnerable to a legal challenge before the World Trade Organization, given the highly discriminatory and arbitrary nature of these bans.

They also set a dangerous precedent which could be applied in other sectors and technologies, just like we have seen the Trump administration focus its fire first on Huawei and then subsequently on apps like TikTok and WeChat, and most recently the civilian drone manufacturer DJI. The potential economic damage that could be wreaked by an ever-expanding policy of targeting Chinese technology companies for exclusion based on some poorly formulated and scarcely articulated notion of national security is daunting.

Because war is too important to leave to the generals, and because the concept of national security now encompasses everything that constitutes the foundations of our continued economic prosperity, we need to be very cautious in assessing the advice and recommendations emanating from the narrow and entrenched interests who constitute our national defence and security services. In the same way, we cannot abandon the general legal principles that have made our free and open societies what they are today.

About the author

Simon Lacey is senior lecturer in International Trade and the University of Adelaide in South Australia. He was previous vice president trade facilitation and market access at Huawei Technologies in Shenzhen, China.


Video killed the PLA Star: Cartoons and popstars last resort to attract “Baby” soldiers



It happens but rarely that a totalitarian regime accepts its mistakes publicly, and that too when the eyes of the entire world are fixated on its smallest of steps.  So when the latest population census shows a massive decline in births across China, it is reason to be worried. The CCP has long tooted its own horn about the success of its One Child policy which ‘stabilised’ their population at 1.4 billion. But large numbers have their own Malthusian logic - writes Henry St George.

Though seemingly counterintuitive, a large population is a boon for any country, provided it is handled properly. Now the same all-knowing party has been forced to retract its past statements and false proclamations and forced to ‘liberalise’ their child-rearing policy to allow upto three children per family. Unfortunately, birthing cannot be increased at the push of a button, nor can it be planned at five year intervals. Coercion, the preferred policy of the CCP in all its foreign and domestic dealings, has no major impact on this aspect.

The CCP’s policy of restricting the fertility rates for Chinese women in 1979 led to a decline from 2.75 in 1979 to 1.69 in 2018 and finally 1.3, as per the latest census. For a country to remain in that ‘optimal’ zone of balancing between the youth and the aged, the rate needs to be near or equal to 2.1, a distant target to achieve in the short term, regardless of incentives. The CCP modified their policy in 2013 when they allowed couples, themselves single children, to have two children. This bizarre restriction was removed entirely in 2016 and now the policy allows up to three children. This is in total contrast to the inhuman efforts by the CCP to curtail the birth rates of Uighur women in the Xinjiang region. Using vasectomy and artificial implements forcefully, the Uighur population rate has been reduced to its lowest since 1949, which is nothing but genocide. To put a number on it, Chinese birth control policies could cut between 2.6 to 4.5 million births of the Uighurs and other ethnic minorities in southern Xinjiang within 20 years, up to a third of the region's projected minority population. Already, official birth rates have dropped by 48.7% between 2017 and 2019.

The drop in population has been so severe that President Xi Jinping had to hold an emergency meeting of the Political Bureau of the CCP’s Central Committee on 01 June where he attempted to incentivise birth of more than one child in the upcoming 14th Five Year Plan (2021-25). However, the wordings in the conference and the policy decisions point to a dictatorial way of implementing this so called incentivisation. “Education and Guidance” will be provided for family and marriage values and a national long and medium term “Population Development Strategy” will be implemented. This policy has been trolled heavily on Weibo where the ordinary Chinese citizens have decried the rising cost of education and living, supporting ageing parents, lack of day care facilities and excessively long working hours.

The impact of this policy has been felt the most in the People’s Liberation Army (PLA). Though it has left no stone unturned to showcase its disruptive potential against the US and India, in terms of an ‘informationised’ and ‘intelligentised’ warfighting potential, the truth is that it is struggling to retain recruits of adequate intellect and technical skills. Most Chinese youth with even an iota of scope for job opportunities in tech companies, stay miles away from the PLA. The PLA has had to resort to movie-making, producing rap videos and requesting support of movie stars in order to attract and retain Gen Z youth in its ranks. Unlike the previous generations of PLA recruits, most of whom were from peasant families and used to hardships and following orders without questioning them, the new recruits are tech-savvy and are the only ones with capability to operate PLA’s new military toys, whether they are AI, hypersonic missiles or drones. Due to the emphasis on civil-military fusion, PLA has been able to modernise its military rapidly but has forgotten that the military is as good as its soldiers and officers. The desperation for recruitment can be made out of the fact that height and weight norms have been diluted, professional psychotherapists are being brought in to counsel them and exo-skeletons and drones are being used to ensure that the troops face minimal hardship. All these are excellent training methods for a peacetime army but such ‘mollycoddling’ and degraded physical standards will lead to a rout during wartime.

The One-Child policy of 1979 also implies that more than 70% of PLA troops are from one-child families and this number increases to 80% when it comes to combat troops. Though it is an open secret that more than four PLA soldiers died in the Galwan Valley clash with Indian troops last year, the CCP has managed to keep this fact a secret, aware of the possibilities of social and political disturbances that may mar its successful hold on information dissemination. Even the death of the four soldiers created a huge uproar on social media websites in China despite being heavily censored. Bloggers and journalists arguing to the contrary have either been jailed or disappeared. This is a natural reaction of a society which has been kept in an information vacuum for the past 20 years, and which has been diet-fed the myth of its own invulnerability and invincibility. The last war that China fought was in 1979 and that too with hardened Mao-era soldiers intoxicated with Communist ideology. The modern Chinese society has not seen war or its after-effects. When their own ‘precious’ children start to fall, the wailing will shock the CCP out of power.

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Lithuania turns against China’s aggression



It has recently become known that Lithuania has decided to quit the '17+1' economic and political co-operation format between China and Central and Eastern European countries, as it believes the format is divisive, writes Juris Paiders.

The Lithuanian minister of foreign affairs told the media: “Lithuania no longer sees itself as a member of '17+1' and will not take part in any of the format’s activities. From an EU viewpoint, this is a divisive format, therefore I would like to urge all member states to strive for a more effective cooperation with China as part of the '27+1' [format].”

The 17+1 format was established to further cooperation between China and 17 European nations – Albania, Bosnia and Herzegovina, Bulgaria, Czechia, Greece, Croatia, Estonia, Latvia, Lithuania, Montenegro, Poland, Romania, Serbia, Slovakia, Slovenia, Hungary and North Macedonia. Lithuania joined the format in 2012.

Critics of the format believe that it undermines EU unity, while its supporters say it is a valuable instrument for maintaining relations with China, as Lithuania doesn’t have the same capabilities of maintaining high-level bilateral contacts with Beijing as the larger European countries have. It’s unnecessary to add that the welfare of the supporters of the format directly depends on Beijing’s money.

China’s investments in Lithuania and bilateral trade aren’t very substantial, but last year saw an unprecedented increase in China’s cargo flows via Lithuanian railways.

Lithuanian intelligence services have warned that China wants to increase its global influence by securing foreign economic support for political issues that are important to Beijing. All three Baltic states have publicly expressed similar sentiments regarding China’s activities in the region.

In mid-May, The European Parliament (EP) decided to not discuss the investment contract between EU and China until the sanctions imposed by China against MEPs and scientists remain in force.

The Lithuanian Parliament passed a resolution condemning crimes against humanity in China and the Uyghur genocide.

Lithuania has also urged the UN to launch an investigation into the Uyghur “re-education camps” in Xinjiang, as well as asked the European Commission to review the relations with China’s communist leadership.

In response, the Chinese embassy expressed that the aforementioned resolution is a “low-grade political charade” that is based on lies and misinformation, also accusing Lithuania of meddling in China’s internal affairs. However, China is also using Lithuania’s marginal media outlets to paint itself in a positive light. In the following weeks, we can expect that the remaining Baltic states and Poland will also withdraw from the 17+1 format, which will undoubtedly provoke a negative reaction from Chinese embassies.

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TMview database expands to Chinese market



On 19 May, the European Union Intellectual Property Office (EUIPO) and the China National Intellectual Property Administration (CNIPA) officially launched the inclusion of Chinese trade marks into TMview. Following the signing of the Agreement on Exchange of IP information by the parties in September 2020, intense technical cooperation between the EU and China intellectual property offices made the launch possible. Over 32 million registered Chinese trade marks are now available online under the TMview one-stop shop.

CNIPA Commissioner Shen Changyu and EUIPO Executive Director Christian Archambeau held a virtual meeting to celebrate the inclusion of Chinese trade marks into TMview.

Archambeau said: "The go-live of Chinese trade mark data in the TMview database is a tribute to the mutually beneficial cooperation between China and Europe in general, and more specifically between the China National Intellectual Property Administration and the European Union Intellectual Property Office.

"This is a welcome step forward in the efficiency and transparency of the global trade mark system since about 28 million Chinese trade marks are now accessible for a free, multi-lingual search via the internet. This will help Chinese and European businesses, of all sizes, including the small and medium-sized enterprises who are increasingly tackling global markets."

TMview currently covers the EU and other regions across the world. Following the inclusion of Chinese registered trade marks, TMview will increase from over 62 million to more than 90 million items from 75 IP Offices. In other words, around 28 million trade marks registered in China will be available in the global TMview database.

The inclusion of Chinese trade marks into TMview was possible thanks to the support of IP Key China, an EU-funded project that promotes intellectual property rights in China and cooperates with local authorities.


TMview is an international information tool used by the IP community to search trade marks in given countries. Thanks to TMview, businesses and practitioners can consult details of a trade mark such as the country, goods and/or services, type and registration date.

TMview contains the trade mark applications and registered marks of all EU national IP offices, the EUIPO and a number of international partner offices outside the EU.

About the EUIPO

The EUIPO is a decentralized agency of the EU, based in Alicante, Spain. It manages the registration of the European Union trade mark (EUTM) and the registered Community design (RCD), both of which provide intellectual property protection in all EU member states. The EUIPO also carries out cooperation activities with the national and regional intellectual property offices of the EU.

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