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| Global Governance of Cross-border Data Flow: Interconnection and Differentiated Order of Human Rights, National Security and Sovereignty |
| Wu Xiaodan |
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Abstract The international regulation of cross-border data flow is not merely within the scope of digital trade law, but a primary constituent element of the international legal order for data and cyberspace. In the context of development suspension of global rules, the divergent regulation among states and bilateral, regional trade agreements has created an overlapping, interactive, and competitive governing situation, and the insufficient, fragmented and differentiated rules constitute non-tariff trade barriers of cross-border data flow and give rise to constant transitional disputes and conflicts, which has enlarged the risk of data colonist, data imperialism, data nationalism and data protectionist. The essential causing roots are the interrelated and complex relations among the three core concepts, i.e., human rights, national security and sovereignty, and the vital differences and competition in the relevant notion values, policy orientation and regulation approaches. There are different definitions for personal data and divergences surrounding the right to privacy and right to development. The biased emphasis of the US and EU laws on civil rights, particularly the freedom of speech undermines the economic dimension of data and the related right to development issue, and the overspill effect of their domestic laws has enlarged the digital divide. Therefore, strengthening the implementation of right to development should be the concern of international legal order for data and cyberspace. The extension of national security scope and the strategic importance of data has promoted the issue of data and cyber security to be the concerns of national security and triggered the misuses of national security exceptional rules for national security in trade and investment agreements. The impact of cyberspace on sovereignty has furthered the policy and practice differences and conflict in data regulation, especially with respect to the issues of the long-arm jurisdiction, extraterritorial effect of data rights protection and universal practice of localization requirements and measures. Therefore, there is an imperative need to abolish the current set-pattern of focusing on domestic data law and international economic order and the technical separation of domestic law and international law, and integrally and interrelated rethink the core concepts of human rights, national security and sovereignty. A flexible and differentiated order diffusing the vast differences regarding these three concepts and the corresponding fragmented and divergent regulation values and methods could promote the construction of a coordinated, uniform global data governing framework. Regulation competition has become a major part of international competition. As the most advanced form of international competition, regulation competition lays the foundation for coordinating international rules and constructing a universally accepted date governing framework. The data laws of the European Union, the United States and China are the primary source of competition for formulating global governing framework, which presents the opportunity for coordinating international rules and constructing global legal order. International data regulation originates from the interaction of domestic law and international law, which is also the key elements for the United States and the European Union to shape and influence international rules. As for China, the core tasks are demolishing and responding to the biased, double-standards narratives of human rights, national security and sovereignty in data regulation; improving domestic regulations values and regulatory rules; proposing international law narrative based on domestic needs and international cooperation. China’s proposal for data international regulation shall be built upon the flexibility of data and cyber sovereignty, focusing on national security and equity protection of personal information and aiming at the promotion of free cross-border data flow.
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Published: 02 August 2025
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