AEI’s trade expert, Claude Barfield, has written an insightful analysis of the Bipartisan Trade Deal announced last week that incorporates enforceable labor and environment mandates into trade agreements. Others, including many editorial writers, have praised the deal for possibly breaking the logjam on free trade agreements with Peru, Colombia, and Korea. (Don’t count on it, though.)
Barfield focuses on the implications of the labor provisions and notes:
It is not clear what our promise to abide by the Declaration amounts to—under international law, or in disputes arising from the FTAs. On the one hand, the Declaration was not passed as a binding ILO Convention; on the other hand, in international trade and environmental cases, NGOs and governments have repeatedly—with mixed success—pointed to preambles, hortatory statements and declarations of principles as “soft” law that ultimately becomes binding. Thus, the administration may well have positioned itself on a slippery slope.
The claim that the “sovereignty card” will insulate the U.S. in the future—that in the end only the U.S. Congress can change U.S. law—is disingenuous. This was a big gun hauled out during the Uruguay Round negotiations to assuage fears that foreign law would trump U.S. law. But the dirty little secret that has emerged since then is that strong domestic and international pressure will come down on future U.S. governments if a labor standards dispute occurs and the U.S. loses. Charges of bad faith and callous unilateralism will inevitably tip the political calculus against defenders of noncompliance.