The Third Country's Adequacy Assessment Rules Under The GATS Security Exception

Regarding the restriction of cross-border data flow,countries have adopted different regulatory approaches based on different national conditions and values.The EU 's General Data Protection Regulation is undoubtedly an excellent model among them.In this model,the EU has adopted the Third Country's Adequacy Assessment Rules as a conventional method for data cross-border movement,but it has caused some controversy.There are objections that the assessment of the suitability of a third country will result in differential treatment between different countries and violate the WTO's most-favored-nation treatment principle.At present,China is preparing to enact its own personal data cross-border restrictions bill.In the latest "Personal Information Crossborder Security Assessment Method(Consultation Draft)" released by Cyberspace Administration of China,Security Assessment Rules is used as a conventional means to restrict the cross-border flow of data.It is conceivable that the problem of differential treatment of different countries may occur in the future.In response to this problem,this article takes the EU's General Data Protection Regulation as the object,and examines its compliance issues under the framework of WTO's trade in services,that is,the General Agreement on Trade in Services(hereinafter referred to as GATS).In particular,whether it can get an exemption from the application of Article 14 bis National Security Exceptions under GATS.By analyzing the GATS text,studying the relevant jurisprudences of the WTO dispute settlement agency,and applying the inspection methods to this issue,which adopted by the expert group.It can be seen that the Third Country's Adequacy Assessment Rules can safeguard a country's essential security interests,thus causes No Violation of GATS obligations.The first chapter of this article introduces the concept of the Third Country's Adequacy Assessment Rules.Starting from its basic concept of the cross-border flow of data restriction,it specifically analyzes what is "data",what is "cross-border flow",and what is "restriction",and limits the scope of data of this article to personal data.It then introduced and clarified the Third Country's Adequacy Assessment Rules in the GDPR.Finally,the rules and models that restrict the cross-border flow of data used in countries around the world are introduced and classified.The second chapter of this article mainly analyzes how the Third Country's Adequacy Assessment Rules conflict with the Article 2 of GATS,the most-favored-nation treatment principle,and proposes that it can be justified by invoking the Article 14 bis of GATS,the national security exceptions.This chapter first sorts out the laws and treaties related to the cross-border flow of data to determine the specific legal context in which this article's discussions are made,namely the GATS agreement under the WTO framework.Then it describes the situation of different treatment in the application of the Third Country's Adequacy Assessment Rules,and analyzes it by substituting it into the Most Favoured Nation treatment.It can be seen that these two conflict.Then,two exceptions of GATS introduced in this chapter,which can be invoked as defenses to this issue,namely the general exception of Article 14 and the security exception of Article 14 bis.but national security exception,due to their special status in text,has certain advantages in application,and is more conducive to the third country assessment rules for the purpose of defense.The third chapter is the core part of this article.This chapter specifically demonstrates the compliance of the Third Country's Adequacy Assessment Rules with Article 14 bis 1(a)of the GATS.In order to demonstrate,the author used the analysis method adopted by the expert group of the Russia – Traffic transport case,analyzing in IRAC way.This chapter focuses on discussing the issue of the right to self-determination caused by "it considers",the interpretation of "fundamental security interests" and the application of the "chapeau".After making sure that the Right of Self Judgement will be limited,this article struggling to find a reasonable way to apply the Article 14 bis(a).For the purpose of finding out the meaning of the “essential security interests”,this article sought original interpretation from the dictionary and test it in the context,and it states that there is a hard core in the concept of essential security interests,namely the personal safety and freedom of citizens,major economic security,and major environmental security.Security interests that are in line with or close to a hard core can be directly determined and allow member states to invoke security exceptions.For security interests that are not belong to hard core,they need to be explained by member states more specifically,however it's also necessary to respect the self-determination of member states.As for the argument that chapeau of article 14 did not apply to article 14 bis.The reason for the special arrangement of these two articles is considered,and the different opinions of other scholars were discussed,and finally concludes that the chapeau could not be applied to the security exception.In the end,The final conclusion states that the Third Country's Adequacy Assessment Rules can be jusitified by applying security exceptions.The fourth chapter is the last chapter of the article.In this chapter,the article analyzes the changes in China's data cross-border legislation in related bills,and connects the legislative trends of countries around the world.It also combines Chinese cyberspace strategies and analyzes security assessment methods.The article then analyzes the similarity between the security assessment method and the third country's adequacy assessment rules,and shows the possibility that China's security assessment method may also be challenged by GATS compliance.At that time,though differences exist,security exceptions can be used to defend.At the end of the article,A few suggestions in the implementation process are made to help prepare for compliance challenge.