Trade policy and trafficking

As far back as the Tariff Act of 1930, the United States prohibits the importation of foreign goods made by means of slave labor. But more recently, Congress has debated whether the United States should grant trading privileges to governments that do not respect human rights or fail to combat trafficking. That question featured in the annual debate over whether to grant “most favored nation” trading status to China before it entered the WTO. It arose again when some Members of Congress questioned whether Malaysia should be included in the Trans-Pacific Partnership negotiations.

In January 2018, Senators Menendez and Portman introduced the Anti-Trafficking Act to suspend countries from U.S. trade preference programs for one year for failing to addressing trafficking.

The U.S. State Department spearheads an annual Trafficking in Persons (TIP) Report to assess the extent to which our and other governments are making efforts to meet minimum standards to eliminate human trafficking. On that basis, countries are placed into one of three tiers or on a watch list. “Tier 1” countries are deemed compliant with minimum standards under TVPA for making “serious and sustained efforts” to eliminate human trafficking.

On the other end of the spectrum, governments on “Tier 3” do not fully meet the minimum standards and are not making significant efforts to do so. A country in Tier 3 may be restricted from receiving certain U.S. foreign aid, though the president may issue a partial or full waiver, particularly if withholding such assistance would cause adverse effects to vulnerable populations. The concept of withholding benefits to Tier 3 countries has also been applied to trade.

A “principal” trade negotiating objective

The Bipartisan Congressional Trade Priorities and Accountability Act of 2015 as amended (the legislation that gives the executive branch its trade negotiating mandate and authority) added a principal trade negotiating objective on human rights. The expedited voting procedures afforded to trade deals under the Act can be conditioned on progress toward achieving this objective.

The principal negotiating objectives of the United States with respect to ensuring implementation of trade commitments and obligations by strengthening good governance, transparency, the effective operation of legal regimes and the rule of law of trading partners of the United States is through capacity building and other appropriate means, which are important parts of the broader effort to create more open democratic societies and to promote respect for internationally recognized human rights.

More powerful a lever, the Act explicitly prohibits applying so-called “fast track” voting on trade agreements with countries ranked on Tier 3 of the TIP Report.

The trade authorities procedures shall not apply to any implementing bill submitted with respect to a trade agreement or trade agreements entered into under section 103(b) with a country to which the minimum standards for the elimination of trafficking are applicable and the government of which does not fully comply with such standards and is not making significant efforts to bring the country into compliance (commonly referred to as a “tier 3” country), as determined in the most recent annual report on trafficking in persons submitted under section 110(b)(1) of the Trafficking Victims Protection Act of 2000 (22 U.S.C. 7107(b)(1)).

However, the Act was amended to allow the President to submit a waiver to Congress. The waiver is not meant to rest its case on new, untested commitments. Rather, it should describe “concrete steps” that country has taken to implement recommendations in the TIP report and should include supporting documentation. To date, no country has been denied a trade deal on this basis.

Free trade begins with free

Trafficking in humans is an abomination and the worst form of illicit trade. Some policymakers believe that trading with the United States is a powerful incentive to government action and is therefore an effective tool to deploy as a punishment or carrot to improve human rights. Others argue that engagement in trade opportunities should not be withheld, lest it hold back economic progress in places and for people who need it the most.

Human rights as customary international law came into being and “grew up” alongside the international trade regime after WWII. The primacy of human rights over trade liberalization obligations is consistent with trade law itself, which explicitly provides exceptions where necessary to protect human life.