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Build Capacity, Not Sanctions

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Historically, U.S. trade agreements have protected workers’ rights and environmental standards, but have fallen short in calling for provisions that would protect various human rights, such as women’s rights and gender equality. In recent years, advocates have urged negotiators to include binding and sanctionable standards prescribing human rights and gender rights in U.S. trade agreements, but Assistant Professor Desiree LeClercq argues that those efforts are a mistake.

In “The Disparate Treatment of Rights in U.S. Trade,” forthcoming in the Fordham Law Review, LeClercq makes the case that adding sanctions to U.S. trade agreements to protect a broader spectrum of international rights will actually create a complicated legal regime of conflicting and unclear standards. Instead, she argues that U.S. trade agreements should include provisions that would provide additional resources to trade-partner countries. Those binding commitments would strengthen countries’ capacities to respect human rights and to reallocate the benefits of trade to women.

Gender rights advocates argue that trade agreements should ensure that women and men benefit equally from global trade, but LeClercq’s article lays out the historic framework of U.S. trade policies, which explains why their arguments have not resonated.

According to LeClercq, the Proskauer Employment and Labor Law Assistant Professor at the ILR School, “U.S. policymakers craft trade provisions to protect U.S. workers and businesses from unfair market competition. By falsely assuming that global rights take precedence over that overarching objective, gender scholars have gotten it exactly backwards. Current efforts to advance gender rights provisions also lack a cogent and cohesive legal standard; those efforts would benefit from drawing lessons from the labor movement.”

LeClercq, who spent several years negotiating trade agreements on behalf of the United States, provides two preliminary examples of how current gender-rights arguments might be resituated within the framework of trade. She does so by taking two arguments demonstrating how trade harms women abroad and proposes reframing them to demonstrate how the poor treatment of women workers abroad creates unfair market competition with the United States.

She also cautions against the traditional focus on sanctioning potentials, emphasizing that the distributional effects of sanctions on workers is still underexplored. Rather than risk hurting the very vulnerable categories of workers that advocates hope to protect, gender rights advocates should focus on trade’s ability to redistribute resources and its potential to accumulate data.

LeClercq also pointed out several areas in which U.S. law and jurisprudence, which are reflected in U.S. enforcement activities, fail to align with international laws. “Regulating international rights through unilateral interpretation and enforcement is risky,” LeClercq warned. “Rights advocates should instead focus on addressing the root causes of inequality without introducing competing legal standards.”

Rights’ groups could advance efforts by addressing the economic aspects of gender inequality in trade-partner countries. Building off of the United States-Mexico-Canada free trade agreement, LeClercq argues that provisions stipulating to technical assistance and cooperation between countries should be mandatory, rather than hortatory. Trade partners should also commit to gathering and sharing employment data disaggregated by sex and by gender identity. In that sense, U.S. trade agreements would strengthen the international rights regime by redistributing trade’s gains and by collecting critical data.

“I am not proposing a rights-trade divorce,” LeClercq writes in the article. “But we must stop trying to inject international rights law into binding and sanctionable trade law beyond the rights intrinsically linked to trade and to national interests. By exploring alternative trade provisions such as capacity building and cooperative exchanges, we will find better ways to legitimize international rights while preserving the integrity of our rights and trade systems. Meanwhile, U.S. trade law may redistribute resources and collect data concerning a broader spectrum of rights, all while sticking to its own governance lane.”