Data Localization, International Law Perspective

Ali, Shareef Sanar (2025) Data Localization, International Law Perspective. STUDIA JURIDICA ET POLITICA JAURINENSIS, 12 (2). pp. 123-142. ISSN 2064-5902

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Abstract

Although the core principles of the General Agreement on Trade in Services (GATS) can extend the agreement to the movement of data, thereby enhancing the effectiveness of GATS in the digital age, there is very little to prevent governments from implementing wide data localisation measures, as GATS provides broad exceptions that create leeway for circumventing these obligations. Additionally, the ambiguity surrounding internet technology has given governments more justification. After all, how could anyone challenge these policies when technology and intelligent services themselves were once incapable of detecting what Edward Snowden later exposed? In response to these uncertainties, and the existing security exceptions in GATS, countries continue to invent new data localisation measures through different approaches. China forbids data transfers by default, only allowing them as exceptions, and emphasises national security with ambiguous discretionary limits. The GDPR limits transfers from outside the EU in order to balance privacy and trade but provides exceptions. The USA, without a unified federal legislative framework, has focused localization on areas such as taxation and defence, motivated mostly by national security. Given these dynamics, and the sensitivity of national security, the author argues that greater emphasis should be placed on reactivating the role of WTO panels and, at the very least, establishing broad boundaries for what constitutes security, even if the concept itself is difficult to define precisely.

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