As long as men and women have traded, they have wrestled with questions of human rights. Under international law, policymakers are supposed to view human rights as universal and indivisible. Hence in its free trade agreements, the E.U. includes provisions calling upon its trade agreement partners to promote universal human rights as delineated under the U.N. Declaration of Human Rights. However, it does not make these provisions obligatory or enforceable.
The U.S. takes a different approach to the wedding of trade and human rights; it uses trade agreements to prompt governments to respect specific human rights such as labor and due process rights. In 2007, the U.S. made some of these human rights obligations (labor rights, due process, access to affordable medicines and access to information) actionable and enforceable in its free trade agreements. Thus, the U.S. could challenge its free trade partners' human rights practices in a trade dispute, but the U.S. government has never done so.
However, this month, the trade writing committees of the Congress announced new legislation designed to advance human rights through trade. Congress grants the executive branch authority to negotiate trade agreements and delineates negotiating priorities. Under the Bipartisan Congressional Trade Priorities and Accountability Act proposed this month, the U.S. would make promoting human rights an overall trade negotiating objective of U.S. trade policy. Advocates hope the legislation will enable the U.S. to use trade to improve a wide range of human rights in potential free trade partners such as Vietnam. But the bill does not say what human rights the Congress includes, how policymakers will use free trade agreements to advance human rights, or explain how the U.S. will assess whether these human rights are being adequately respected.
These are not the only questions we should ask about the marriage of trade and human rights, either. The truth is although scholars, policymakers and activists have long debated the relationship between trade and human rights, academics know very little about the relationship or about causality. Specifically, we don't yet know how protecting human rights may facilitate trade or what human rights should be in place in order to encourage trade. Before they act, legislators should ask whether respect for human rights — such as protection for property rights, access to information or due process rights — need to be in place for trade to be conducted. We also need a greater understanding of how to use trade agreements to facilitate greater governmental respect for human rights and to empower individuals to demand their rights. For example, if trade agreements simply focus on what governments should do, these agreements may do little to enable people to participate in political processes or to organize and collectively bargain.
Moreover, unless policymakers are willing to challenge human rights violations through trade dispute mechanisms, we won't know if trade agreements really work to advance human rights. For example, both the U.S. and the E.U. are deeply concerned about Internet censorship and filtering, particularly in China. China's web filtering and firewall act as trade barriers, and they aren't applied in a uniform and impartial way. In 2010, senior European Commission leaders threatened a trade dispute. And in late 2011 the U.S. government sent a letter to the Chinese government asking it to explain why some foreign sites (such as Google) were inaccessible in China, who decides if and when a foreign website should be blocked and if China has an appeal procedure for such blockage. Although China was required to respond under World Trade Organization rules, the U.S. government never received a formal reply. Neither the U.S. nor the E.U. moved forward. Hence, we don't know if we can effectively challenge censorship (a violation of human rights) as a trade barrier.
If the U.S. really wants to promote human rights with its trade agreements, how we act is as important as what human rights we promote. And if we want this marriage to be sustainable, we need greater understanding of whether the union between trade and human rights is effective and should endure. Policymakers should be asking scholars and activists to answer these questions before they make the promotion of human rights an objective of trade agreements.