A Worker-Centered Trade Policy
Desirée LeClercq*
What is a “worker-centered” trade policy? The Biden administration claims that it means protecting all workers—foreign and American—from exploitative working conditions in trade sectors. The administration’s vigorous enforcement of international labor rights suggests a significant departure from previous U.S. trade priorities centered on domestic interests. For economic and humanitarian reasons, various policymakers and scholars celebrate these developments. They optimistically assume that the administration’s new trade policy will influence foreign governments and facilities to comply with international labor rights in trade if the costs of noncompliance outweigh the benefits. They also assume that the policy will influence compliance with strong labor protections as negotiated on the international platform. Both assumptions are misplaced.
Outside the trade context, governments, employers, and workers negotiate how international labor rights manifest in their countries based on pragmatic issues such as political ideologies, economic capacity, and legal systems. Those actors tend to respect those labor rights because they actively participate in the design, monitoring, and enforcement processes. Despite its newfound interest in ensuring compliance with international labor rights under U.S. trade agreements, the Biden administration excludes foreign workers, employers, and counterpart governments from those processes. That exclusion risks obscuring and distorting enforcement predictability, perceptions of legitimacy, and the scope of international labor rights protections within and outside the United States—all of which may reduce or weaken compliance and protections for workers in trade sectors. If the administration sincerely intends to protect workers from trade-related exploitation worldwide, it must stop reinforcing its own discretion and control and start reinforcing the participatory processes embedded in international labor rights.
* Assistant Professor, Cornell ILR School & Associate Member of the Law Faculty, Cornell Law School. I would like to thank Anne van Aaken, Harlan Cohen, Lance Compa, Angela Cornell, David Doorey, Franz Ebert, Jack Getman, Joy Gordon, Shannon Gleeson, Kati Griffith, Marissa Jackson, Kebin Kolben, Terri LeClercq, Inu Manak, Fernanda Nicola, Tonia Novitz, Mona Paulsen, and Gregory Shaffer, as well as participants at the Cornell ILR workshop, Richmond Junior Faculty Workshop, JILSA workshop, the 2022 ASIL International Economic Law Interest Group Workshop, the Cornell Law School workshop, and the 2022 ASIL Research Forum. I would also like to thank James Pezzullo, Thomas Hegeman, and Tess Berman for their exceptional assistance and Suzanne Amy Cohen for her tireless efforts to help me navigate Cornell’s library materials. I am grateful to former colleagues and friends at the ILO and federal agencies for their willingness to hold extensive conversations over these issues. I am especially grateful for the editorial work of the staff of the Columbia Journal of Transnational Law. Any remaining errors are my own and nothing in this Article is reflective of the views of any institution within which I have worked. Nor do they reflect the opinions of the individuals named above, many of whom have engaged in extensive debates over my presumptions and recommendations.