The Disparate Treatment of Rights in U.S. Trade

By Desirée LeClercq

Rights advocates are increasingly urging U.S. trade negotiators to include new binding and sanctionable provisions that would protect human rights, women’s rights, and gender equality.  Their efforts are understandable.  Trade agreements have significant advantages as a process for advancing international rights. Even though Congress and the executive incorporate international environmental standards and labor rights into U.S. trade agreements, they have refused to incorporate gender rights and broader human rights.  The rationale behind the United States’s disparate treatment of rights in trade has received almost no scholarly attention.  That is a mistake.

Using labor rights as a case study, this Article discerns the rationale for incorporating rights into U.S. trade policy.  Properly understood, U.S. policymakers incorporate some rights into U.S. trade agreements because they view those rights as critical to protecting national industries and citizens from unfair trade conditions.  Efforts to incorporate rights as the ends rather than the means to trade policy accordingly fail to resonate with policymakers.  Those efforts also fail to appreciate the significant policy drawbacks of coupling trade law and international rights law, such as conflicts between international law and domestic federal and state laws, and challenges to domestic processes in the United States and abroad.  Nevertheless, there are alternative ways that the United States may protect international rights while preserving the sanctity of both regimes.