Research On Legal Issues Of Data Localization Measures From The Perspective Of International Trade La

The vigorous and incremental development of digital technology drives the digital transformation of international trade.As an emerging factor of production,data is playing an important and even indispensable role in international trade.In this context,the free flow of data across borders is the spontaneous process and inevitable demand for the development of global digital trade.Meanwhile,the measures which restrict the free flow of data across borders are becoming widespread around the world increasingly.Some of them are the data localization measures.Data localization measures are measures implemented by the countries to force data in the cyber content layer and digital infrastructure in the cyber physical layer to reside in their jurisdictions,as well as measures to restrict the flow of data and digital infrastructure outside their jurisdictions.The complexity of data localization measures has led to the rise of international rules for data localization measures.Examining the development process of digital trade rules,the international rules for data localization measures are inherited from the traditional international trade rules.At the same time,these new rules also derive a series of new contradictions and arguments to be discussed further.Exploring the differences between the countries,data localization measures are the objective and realistic manifestations of a series of conflicts between trade liberalization interests and non-trade interests(domestic regulatory autonomy,essential security interests and data privacy protection).Based on the idea mentioned above,the article takes the relationship and conflict between trade liberalization interests and non-trade interests as the clue.Firstly,data localization measures reflect the conflict of interest between trade liberalization and domestic regulatory autonomy.Frankly speaking,the conflict between them is an inherent contradiction in international trade.Data localization measures are the new manifestation of this inherent contradiction in the era of digital trade.Although domestic regulatory measures inhibit the realization of trade liberalization potentially,both the WTO and other Free Trade Agreements(FTAs)recognize the necessity of domestic regulation.For digital trade,the disorderly use of neutral technology and the irrationality of free trade undoubtedly highlight the urgent demand of domestic regulatory measures in the digital trade era.In this context,the benign development of digital trade depends on the mutual checks and balances between domestic regulation and trade liberalization,as well as on the appropriate coordination between them.This is essential for the development of digital trade.Under the vision of international trade law,the reasonable boundary of data localization measures is the measures that do not constitute unnecessary trade restrictions.Based on the requirement of the "proportionality principle" and judged along with the path of " weighing and balancing" test,the necessity test of data localization measures should specifically consider the following basic elements: “relative importance of the common interests or values that the measures to be enforced is intended to protect”,“the extent to which the measure contributes to the realization of the policy objective pursued”,“the extent to which the measure produces restrictive effects on international commerce”,“the relative importance of the common interests or values that the measures to be enforced is intended to protect”,and “whether there is an alternative measure that would achieve the same objective and that is less restrictive of trade than a prohibition”.Based on this,selecting the data localization measures in China "Cyber Security Law" and "Data Security Law" as a model,the data localization measures implemented by Chinese government are necessary to achieve national security and personal data privacy protection.The implementation of relevant measures is reasonable and does not constitute unnecessary trade restrictions.From a development perspective,the complexity of data localization measures requires coordination globally.At domestic level,in order to achieve the “coherence” of data localization measures,it is necessary to explore good regulatory practices,enhance the transparency of the data localization measures,improve the regulatory impact assessment of data localization measures,and focus on the overall coordination and balance of relevant domestic regulatory measures.At the international level,it is necessary for the countries to integrate the interests of various parties.The Countries should integrate the interests of each other to explore the coordination and convergence of data localization measures.Secondly,data localization measures reflect the conflict of interest between trade liberalization and the essential security interests.All countries attach great importance to essential security interests in international trade.The security exception clause is the institutional arrangement in which international trade attempts to balance trade liberalization and the essential security interests.In the digital era,network security and data security have become the top priority of all countries in considering the essential security interests.Therefore,data localization measures are becoming practical measures for countries to maintain their own network security and data security in the digital trade era.However,the recent practice shows that the concept of national security is being abused by more and more countries.This has had a negative effect on the liberalization of international trade.Moreover,due to the ambiguity of security exception clauses and the novelty of data localization measures,there is still uncertainty about whether and how data localization measures can be applied to security exception clause.This issue is crucial.From the perspective of treaty interpretation,following the concept of evolutionary interpretation and integrating treaty interpretation method,network security and data security can be interpreted as a country’s “essential security interests”.From the perspective of the application of the treaty,it is legitimacy to invoke security exception clauses in data localization measures.In accordance with the security exception clause,each country enjoys the right to selfdetermination in its basic security interests.However,the exercise of the right also has an objective tolerance limit.In order to avoid the abuse of security exception clauses that goes against the basic purpose and philosophy of trade liberalization,the implementation of data localization measures should follow the requirements of the principle of good faith.The Tik Tok case is closely related to the issue of essential security interests.In the Tik Tok case,the measures taken by the U.S.Trump Administration are still problematic and fail to meet the requirements of the security exceptions clause which stipulated in international trade law.The series of measures taken by the US administration undoubtedly requires further reflection and review prudently.Thirdly,data localization measures reflect the conflict of interest between trade liberalization and data privacy protection.The practice shows that the U.S.and Europe are holding nearly opposite opinion on the priority between the free flow of data across borders and data privacy protection.This has also led to a differentiated choice of regulatory paths between them.The academic community has also paid attention to this issue.This article argues that such divergent regulatory paths are the new portrayal of the “trade and…” between trade(trade liberalization)and human rights(data privacy)in the digital trade era.However,data localization measures are not only the realistic manifestation of this “trade and…” but also an important balance point to realize the harmony of trade liberalization and data privacy.In the era of digital trade,the interaction between digital trade liberalization and data privacy is a theoretical premise for the development of data localization measures.Data privacy provides guidance and evaluation functions for balancing trade interests and privacy rights,as well as provides certain theoretical support for the development of data localization measures which is conducive to the healthy development of digital trade and the optimal formulation of digital trade rules.As far as the interaction is concerned,there are inherent difficulties in attempting to place trade and human rights issues in the same framework system.Therefore,the interaction between trade liberalization and data privacy is still appropriate to be separated into two independent systems.Through the interaction within these two independent systems,it is conducive to the mutual integration of trade liberalization rules and data privacy protection rules,which in turn helps to jointly promote the development of both.Returning to the perspective of international trade law,in view of the key position of data privacy protection,the trade arrangement is paying attention to achieve the balance and coordination between these two are always in progress.The general exception clauses in international trade rules are still the most direct provisions applicable to the implementation of data localization measures for the purpose of data privacy protection.This clause has also been inherited and developed in many recent FTAs and undoubtedly has an important guiding role in practice.A series of measures under GDPR are aimed at realizing data privacy protection.Based on the GATS general exception clauses,the relevant measures stipulated in the GDPR can comply with the legal connotation of GATS general exceptions and will not impose disguised restrictions and discrimination on digital trade.As a rising country in the world,facing data localization measures,China should optimize its own domestic rules for data localization measures and promote the improvement of international rules for data localization measures more constructively.It is not only a practical demand for China to safeguard its core interests in the era of digital trade but also an objective requirement for China to participate in global digital trade.This issue is complex and needs to be considered specifically at both the domestic and international levels.At the domestic level,China should properly balance the interests of trade liberalization with the autonomy of domestic regulation,the essential security interests and the protection of data privacy.In terms of domestic regulation,based on the concept of trade liberalization,China should improve its domestic rules on data localization based on the bottom line of domestic regulatory autonomy.The concept of trade liberalization is of vital importance to China.In terms of essential security interests,China should change the value orientation of excessive prevention,clarify the basic considerations of national security in the digital trade as a reference to construct domestic rules.As far as data privacy protection is concerned,China’s data privacy protection legislation should be based on the concept of trade liberalization and optimize its own data privacy protection rules by referring to international data privacy protection standards.In this way,China’s domestic rules for data localization measures will be more sustainable and responsive to the trend of digital trade.From the perspective of international rules,China should emphasize respecting regulatory autonomy and promoting trade liberalization as the fundamental position to improve the construction of rules.On this basis,China may consider advocating the construction of conditional international rules on data localization with the goal of achieving a balance between the interests of trade liberalization and non-trade interests.Furthermore,China should gradually promote the effective coordination of data localization measures globally by promoting the precise interpretation and correct application of traditional trade rules in the digital trade era.In this way,China can participate in the global governance of digital trade more constructively and more effectively.