Reimagining Trade-Plus Compliance: The Labor Story

Abstract

Today’s trade agreements include “trade-plus” provisions such as intellectual property, labor, and environment commitments and subject them to the same dispute settlement mechanisms as the traditional commercial provisions. This Article queries whether the institutional design in which such trade-plus provisions operate is both appropriate and appropriately theorized. It argues that the trade-plus commitments suffer from a mismatch between the obligations that they demand of states and their compliance mechanisms. The Article proceeds in three parts. Part I reviews the short evolution of the codification of selected trade-plus norms and their enforceability across a selection of international economic instruments from diverse states. Part II argues that the U.S.-Guatemala labor case under the CAFTA-DR demonstrates how the mechanics of the traditional trade agreement dispute settlement system do not accommodate one such trade-plus area (labor). Finally, Part III argues that trade-plus commitments need to be reconceived and that their enforcement mechanisms ought to be reevaluated. In the context of their efforts to modernize or update U.S. trade agreements, the Trump Administration and other governments ought to consider innovative institutional design that achieves enforcement on a principled basis. I argue that an alternative dispute settlement mechanism would better accommodate trade-plus enforcement in a way that traditional trade enforcement cannot. (September 2019 revision: this post now includes a link to a late-stage draft.)

Keywords: Trade Agreements, NAFTA, Labor, Dispute Settlement, International Trade Law