The Law and Politics of Socially Inclusive Trade

American ambivalence toward international institutions is nothing new. In his farewell address, George Washington famously warned against foreign entanglements. After World War I, the U.S. Senate rejected the Treaty of Versailles, leaving the United States outside the formal post-war order it helped establish and neutering the new League of Nations. Throughout the late twentieth century, the United States refused to ratify multilateral agreements ranging from the Vienna Convention on the Law of Treaties, to the UN Convention on the Law of the Sea, to a host of human rights agreements. Nor did the dawn of the twenty-first century change the United States’ attitude. In 2001, President George W. Bush began his administration by “unsigning” the Rome Statute of the International Criminal Court and the Kyoto Protocol on the UN Framework Convention on Climate Change. These agreements run the gamut from treaties on peace and security to the environment, and from human rights to the law of the sea. But one area -—international trade-— has fared better than others in insulating itself from the United States’ hesitation toward international institutions. Even while he warned against foreign entanglements, Washington also counseled his successors to “establish[,] with powers so disposed, . . . conventional rules of intercourse, the best that present circumstances and mutual opinion will permit . . . .” This embrace of commerce and the international institutions that support it has been relatively consistent throughout American history. Even in the face of significant domestic political resistance to new trade agreements, such as opposition to NAFTA in the early 1990\u27s and the Seattle riots at the WTO Ministerial in 1998, key government institutions have by and large supported international trade institutions, even when they have been leery of other institutions. No longer. The 2016 presidential election sent Donald Trump to the White House on a platform of renegotiating trade agreements that he argued had poorly served American interests, especially those of the blue-collar workers so central to politics in the states that delivered the presidency to Trump. Since taking office, the Trump administration has embarked on an aggressive campaign to use trade policy to rebuild American manufacturing capacity. It has imposed tariffs on steel and aluminum imports in an effort to expand productive capacity and jobs in those sectors. It has renegotiated NAFTA to include provisions it hopes will return more of the automotive supply chain to the United States. And it has taken on China over its industrial policy that has led to the loss of U.S. jobs. These actions, unfortunately, have done little so far to meaningfully address the very real underlying concern. Neither U.S. trade policy nor international trade agreements do enough to ensure that trade liberalization supports important social values, such as an equitable distribution of wealth and environmental protection, which market transactions often undervalue. Given the Trump administration’s failure to make good on the demand for a socially inclusive trade policy, it falls to others to find a way forward. Into that void steps Professor Gregory Shaffer with his innovative and illuminating article, Retooling Trade Agreements for Social Inclusion. Professor Shaffer’s article is what scholarship should be-—well versed in theory and of immediate practical significance. Professor Shaffer’s article is a rich work on the relationship between the international trading system and issues of broader social policy. In this essay, I want to build upon two points Professor Shaffer makes. In Part I, I discuss the history of U.S. trade policy and how the separation of trade policy into what Professor Shaffer calls a “two-step model”—the first, a foreign policy issue aimed at maximizing the benefits of liberalized trade, and the second, a domes- tic policy issue aimed at combating distributional problems resulting there- from—has proven unsustainable because domestic politicians have failed to address the social inequalities caused by free trade. Part II responds to critics who argue that the crisis he identifies does not exist. In Part III, I discuss the substantial promise, but also peril, of a key component of Professor Shaffer’s proposed solution to this crisis: revising trade remedies laws to permit countries to impose social dumping duties