Data Sovereignty and Trade Agreements: Three Digital Kingdoms

Abstract

For centuries, international lawyers have wrestled with the relationship between national sovereignty and international law. This is also the case of international trade law, where the tension between trade liberalization and national sovereignty culminated in the famous “Great 1994 Sovereignty Debate” between the late Prof. John Jackson and other leading scholars when the WTO came into being. As we enter the digital age, the issue of sovereignty resurfaced once again in the form of data sovereignty. In this paper, I will examine provisions in trade agreements which deal with data sovereignty issues, such as restrictions on data flow such as internet filtering and censorship; data localization requirements including the requirements to use certain technologies. In particular, the paper will focus on the clash between the US, China, and the EU, which chooses to champion the sovereignty of the firm, the state and the individual respectively. With a critical examination of their relevant policies and positions, the paper will also suggest ways the issue should be dealt with in future trade agreements.