The Disparate Treatment of Rights in U.S. Trade

Why do U.S. trade agreements leverage trade sanctions to protect workers’ rights and the environment but fail to protect other rights? We know that the benefits of international trade are not shared equally. And yet, apart from legally binding provisions regulating labor rights and environmental standards (“trade-plus provisions”), U.S. trade agreements omit binding provisions that might redistribute trade benefits more broadly, such as by protecting the equal opportunities of women and men to participate in trade activities. The scholarly attention on trade-plus provisions focuses on the impact of those provisions on rights and trade. Surprisingly little attention has been placed on the intentions of adopting those provisions in the first place or on whether those intentions would apply equally to a broader spectrum of international rights.

This Article explores the rationale behind the inclusion of labor and environmental standards in U.S. trade law and its implication for the future inclusion of additional rights. It makes two central claims—one pragmatic and the other normative. My pragmatic claim is that policymakers intend for trade agreements and their provisions to regulate trade competition; trade-plus provisions are no exception. Rights will be incorporated into trade law only if they prove germane to achieving fair trade conditions. My normative claim, which is more likely to draw the ire of my fellow rights advocates, is that the above criterion is necessary to maintain the integrity of the trade and international rights regimes, even if it excludes some rights while favoring others. 

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