Today’s discussion is inspired by the recent letter from 27 members of Congress to
the president asking him to reopen the Trans-Pacific Partnership
Agreement to negotiate better protections for LGBT individuals. This
follows an earlier letter from some of the same members urging the
president to use TPP to deal with Brunei’s adoption of sharia law. And
most people will remember the controversy in the Colombian FTA over
labor rights and the Colombian government’s treatment of its unions. All
raise the same question: what is the proper role of human rights issues
in a trade negotiation?
At one level, it is difficult not to be a bit cynical about some of
these efforts. Most, if not all, of the signers of the LGBT letter
oppose TPP — several are leaders in that fight — and there is no hint in
the letter that addressing their LGBT concerns would lead to a change
in their position on the agreement. Under the circumstances, one should
not expect the Obama administration to take the letter seriously, since
following through on it would produce no additional votes for TPP and
could well cause other members to switch to opposition. For better or
worse, we are at the stage of debate on TPP where the only things being
considered are steps that will produce more votes rather than
fewer. This letter would have been more compelling had it been sent four
years ago (of course, it would not have gotten nearly as many
signatures then, public opinion having not yet shifted as dramatically
as it has recently).
Nonetheless, these letters raise a valid point that is difficult for
trade proponents to address adequately. On one side, it is hard to deny
that human rights violations have occurred, and continue to occur, in
some of the countries with whom we have negotiated trade agreements. One
can quibble about their scope or magnitude, and about how the United
States can play judge and jury when it is thousands of miles removed
from the scene of the crime, but their existence in at least some cases
is undeniable. And, we should acknowledge and be proud of the fact that
Americans want to be righters of wrongs. We are not always appreciated
for that, and we have occasionally ended up making things worse rather
than better, but overall the world is a better place for our efforts.
On the other side there is the inevitable question of what to do when
the perfect becomes the enemy of the good. It would be wonderful if
human rights abuses did not happen, and it would be grand if our actions
could make them go away. But, if the consequence of trying to do that
is the failure of the negotiations, who is really better off? Probably
not the abuse victims, because there is no agreement and no commitments
from the other country to better behavior. Certainly not the economies
of the participating countries, because there would be no economic
benefits to tally up.
In other words, like unilateral sanctions, this is often a lose-lose
strategy. We fail to persuade the other country to do what we want, and
we lose the rest of the agreement in the process. One of my biggest
frustrations over the years has been how to respond to the comment I
have heard frequently on the Hill: “We know the sanctions/human rights
provision won’t work, but we have to do something.” My usual response
is, “No, you don’t have to do something if all it will do is make the
situation worse.” But that is neither persuasive nor morally
satisfactory, even if it is true.
Where I have ended up, albeit reluctantly, is that negotiations are
about drawing lines, and sometimes an objective simply falls outside the
lines because it is too much baggage for the vehicle to carry. For
business that should not mean the objective is unworthy, but for human
rights activists neither should it mean that failure to pursue it is
unworthy. Sometimes living to fight another day in another venue is the
best one can do.
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William Reinsch is a Distinguished Fellow with the Stimson Center, where he works principally with the Center’s Trade21 initiative.
