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

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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.

China

Independent pandemic review panel critical of China and WHO delays

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An independent panel said on Monday (18 January) that Chinese officials could have applied public health measures more forcefully in January to curb the initial COVID-19 outbreak, and criticized the World Health Organization (WHO) for not declaring an international emergency until 30 January, writes .

The experts reviewing the global handling of the pandemic, led by former New Zealand Prime Minister Helen Clark and former Liberian President Ellen Johnson Sirleaf, called for reforms to the Geneva-based United Nations agency.Their interim report was published hours after the WHO’s top emergency expert, Mike Ryan, said that global deaths from COVID-19 were expected to top 100,000 per week “very soon”.

“What is clear to the Panel is that public health measures could have been applied more forcefully by local and national health authorities in China in January,” the report said, referring to the initial outbreak of the new disease in the central city of Wuhan, in Hubei province.

As evidence emerged of human-to-human transmission, “in far too many countries, this signal was ignored”, it added.

Specifically, it questioned why the WHO’s Emergency Committee did not meet until the third week of January and did not declare an international emergency until its second meeting on Jan. 30.

“Although the term pandemic is neither used nor defined in the International Health Regulations (2005), its use does serve to focus attention on the gravity of a health event. It was not until 11 March that WHO used the term,” the report said.

“The global pandemic alert system is not fit for purpose,” it said. “The World Health Organization has been underpowered to do the job.”

Under President Donald Trump, the United States has accused the WHO of being “China-centric”, which the agency denies. European countries led by France and Germany have pushed for addressing the WHO’s shortcomings on funding, governance and legal powers.

The panel called for a “global reset” and said that it would make recommendations in a final report to health ministers from the WHO’s 194 member states in May.

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Huawei

Sweden begins 5G auction despite Huawei protests

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Sweden’s communications regulator began its delayed auction of 5G-suitable frequencies, a move Huawei warned last week would have serious consequences as the vendor still had outstanding legal action contesting its ban.

In a statement, the Swedish Post and Telecom Authority (PTS) said its auction for licences in the 3.5GHz band started today (19 January) with a 2.3GHz sale to follow. It is auctioning 320MHz of 3.5GHz spectrum and 80MHz of 2.3GHz.

The start of the sale comes days after Huawei lost its latest appeal related to the imposition of auction conditions which ban bidding operators using equipment from it or rival ZTE.

Huawei has two other pieces of legal action on the issue outstanding.

In a comment to Mobile World Live issued on 15 January following the failure of its latest appeal, a Huawei representative confirmed its “two main” court cases on the issue were not expected to be ruled on until the end of April.

The company added: “It leads to serious consequences to hold the 5G auction while the conditions for PTS decisions are subject to legal review.”

Sweden’s spectrum auction was originally meant to take place in November 2020, but was postponed after a court suspended the application some of the divisive terms of sale pending a hearing into them.

PTS’ terms were subsequently cleared by the court of appeal, opening the way for the auction to proceeded.

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General

The best of 5G is yet to come  

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Executives from leading mobile operators have urged consumers to be patient with 5G, explaining more advanced capabilities and use cases will become available as the technology evolves.

Speaking at the recent industry conference CES 2021, Drew Blackard, VP of product management at Samsung Electronics America (SEA), told a panel that many current services including video streaming are merely “better on 5G”.

But he added more advanced “only-on-5G experiences” will become mainstream “more and more as the infrastructure develops” and the technology becomes more widely used.

Blackard noted SEA had “done a lot of development with partners to build out what these can look like”, pointing to a collaboration with AT&T to offer AR experiences for sports fans.

Ice Mobility chairman and co-founder Denise Gibson added “there is an element of patience” to realising 5G’s potential.

She said 5G “is a platform that will evolve”, explaining “it’s not solely about” geographic reach, but also provision of advanced capabilities and services on networks and devices.

Blackard added “partnerships are obviously essential”, noting 5G required “a group, an industry to bring that forward. It’s not a single player that can do that”.

Commenting on the issue Abraham Lui, Huawei's Chief Representative to the EU Institutions,  said  "In Europe, the best of 5G is yet to come. As 5G deployment gathers pace across the continent, users will appreciate the benefits of this game-changing technology in the near future".

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