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Understanding the Trade Policy Template’s Ambiguities

The USTR’s summary of the template proclaims in a bold headline “Internationally-recognized labor principles incorporated into trade agreements.” This leaves open the possibility that the same uncertainty that currently plagues the ILO Declaration’s reference to “principles concerning the fundamental rights” could soon become part of US free trade accords and that a free trade agreement dispute panel could ultimately be forced to address the issue.

Equally concerning is the statement in the congressional leadership’s summary of the template, appearing in only a slightly different form in USTR’s version, that “[t]he obligations of this agreement, as they relate to the ILO, refer only to the 1998 ILO Declaration on the Fundamental Principles and Rights at Work.”²³ This language could be construed as preventing a free trade accord dispute panel from interpreting an agreement’s labor rights obligations with reference to the relevant ILO conventions and jurisprudence, increasing the likelihood that their definition would be left to the whims of the different parties to the accords, rendering them largely meaningless and unjusticiable. 

It is clear, however, that such ambiguity and such potential restrictions on the understanding of fundamental workers’ rights were not the intention of the congressional leadership who agreed to the template. The leadership’s use of the term “internationally-recognized labor standards,” rather than “principles,” understood in the context of the many speeches and public declarations made on this issue, support this conclusion.

For example, Representative Sander Levin (D-MI), chair of the US House of Representatives House Ways and Means Trade Subcommittee and instrumental in the negotiation of the template, has repeatedly decried that, in some countries that are potential parties to free trade accords with the United States, “workers do not have in law or practice their basic international rights.” To address this problem, he has urged that free trade accords “directly incorporate the ILO core labor standards with enforcement” and has advocated for a “clear obligation with a nation with whom we have an FTA to bring one’s own laws and conditions into compliance with basic international standards.” Importantly, he has noted that “[t]he ILO has a body of experience in applying these standards that give them meaning.”²⁴

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