Constructive Ambiguity in Cross-Border Data Transfers: Legal Certainty and Indonesia’s Regulatory Space 35 27

Abstract

This study aims to evaluate the legal justification and implications of constructive ambiguity in the cross-border data transfer (CBDT) provisions of the Indonesia–United States Agreement on Reciprocal Trade (ART), particularly regarding legal certainty and Indonesia’s regulatory autonomy. The urgency of this research stems from the increasing reliance on cross-border data flows in digital trade and the potential tension between international trade commitments and domestic data protection obligations. Employing normative legal research through statutory, conceptual, and comparative approaches, this study analyses the relevant ART provisions under Article 31 of the Vienna Convention on the Law of Treaties 1969 and compares them with Chapter 19 of the United States–Mexico–Canada Agreement (USMCA). The findings demonstrate that the expressions “trusted borders” and “appropriate protection” remain insufficiently defined, leaving unresolved interpretive questions despite the integrated interpretation of the treaty provisions. This uncertainty may undermine legal predictability, generate unequal interpretive risks, and complicate Indonesia’s exercise of regulatory autonomy. The novelty of this study lies in developing a four-dimensional evaluative framework for assessing constructive ambiguity based on shared negotiating necessity, interpretive openness, distribution of interpretive benefits and legal risks, and implementation safeguards. Drawing on the USMCA comparison, the study proposes more precise substantive obligations, a jointly agreed compatibility mechanism, and explicit safeguards for legitimate public-policy measures. These findings contribute to international trade law scholarship by offering a structured approach to balancing digital trade liberalisation, legal certainty, and national regulatory autonomy.