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occasion for a growing harmonization of national norms, which tend to privilege the
private. This legal field includes international arbitration of disputes between states
and private investors concerning infringements of investor rights outlined in BITs and
Free Trade Agreements (FTAs). Sometimes termed lex mercatoria, this is a body of
law and institutions peculiarly shaped to the needs of transnational business.
Some commentators refer to this body of law as though it had somehow evaded or
marginalised the state altogether. 217 Such a view is not empirically accurate, however.
A tremendous body of interconnected and harmonised domestic legal safeguards of
private activity has arisen as a direct result of sustained activity by states themselves.
This is also true of the rise of transnational arbitration bodies that favour private ordering.
These result from inter-state treaties.
States have created this framework through bilateral mechanisms, such as development
aid (for example, USAID promotes the signature of BITs and FTAs in aid-recipient
countries) and through multilateral institutions (notably the IMF, World Bank and certain
UN agencies). The World Bank has a long-standing policy of providing “technical
assistance” that ensures countries have investor protections in place and judicial
structures equipped to enforce them. 218
Behind such harmonisation appears to be an emerging belief that states are not merely
at the service of their own publics but have an additional duty, exercised through a
congeries of public servants, to service a larger global or transnational public (a
global civil society or transnational private sector) whose needs are everywhere similar
and predictable. 219 Precisely because the public is, in fact, an aggregate of private
individuals, presumptively autonomous (i.e., not a national of any particular state), it
need not be viewed as falling to any particular state’s governance. This transnational
public becomes visible in the context of trade and commerce but also in universalist
claims such as those of human rights.
Precisely because the public is, in fact, an aggregate of private individuals,
presumptively autonomous (i.e., not a national of any particular state), it need
not be viewed as falling to any particular state’s governance.
At the same time, a related dimension of contemporary governance of personal data
is firmly international, clearly premised on and resulting from inter-state coordination.
Examples include inter-state co-operation to combat serious crimes, money-laundering
and, perhaps especially, terrorism. 220 In the main, this has meant co-operation between
the US and the EU, which, since 2001, has prioritised information sharing. One 2006
report describes progress as follows: 221
U.S. and EU officials have ... bridged many gaps in their respective
terrorist lists and have developed a regular dialogue on terrorist financing.
217 See Gunther Teubner, “‘Global Bukowina’: Legal Pluralism in the World Society,” in Teubner (ed.),
See Gunther Teubner, “‘Global Bukowina’: Legal Pluralism in the World Society,” in Teubner (ed.), Global
Law Without a State (Aldershot, 1997); See also Jane Winn, “Technical Standards as Information Privacy
Regulation”, PLSC Washington D.C. (2010).
218 See Humphreys (2010), Chapter 4.
219 Humphreys (2010), Chapter 6 and Conclusion. On “global civil society” the writings of John Keane and
Mary Kaldor.
220 See, for example, Eric Rosand, Alistair Millar, Jason Ipe, and Michael Healey, “The UN Global Counter-
Terrorism Strategy and Regional and Subregional Bodies: Strengthening a Critical Partnership”, Center
on Global Counterterrorism Cooperation, (October 2008).
221 For example, Kristin Archick, “U.S.-EU Cooperation Against Terrorism”, CRS Report for Congress (2006), 2–3.
70 Navigating the Dataverse: Privacy, Technology, Human Rights