What would international trade law, and particularly free trade agreements (FTAs) of the United States, look like if the dominant paradigm for their negotiation, drafting, implementation and enforcement shifted from economics to equal human dignity?
First, the concept of equal human dignity has deep philosophical roots, including in the work of Immanuel Kant, the great philosopher of the late Enlightenment. The Categorical Imperative, for which Kant (among other insights) is renowned, and which Kant articulated in three formulations, helps define the concept. Further, the American legal philosopher, John Rawls, offers a formula to elaborate and apply the Categorical Imperative. Second, the concept also has a profound religious basis, including in Roman Catholic Social Justice Theory. Third, considered in a legalistic manner, the words suggest specific criteria for trade accords. “Human” intimates neutrality. “Equal” indicates non-discrimination. “Dignity” suggests respect for the excellent. Applying these criteria to America’s FTAs is not only possible but also yields specific proposals for human, labor and environmental rights that could—and perhaps should—be advanced through those FTAs. Moreover, these criteria mandate a change in negotiating style.
Following from the philosophical, religious and legalistic perspectives, there are three “bottom lines” in respect to a paradigm shift in United States FTA law and policy toward equal human dignity. Applying Kant’s Categorical Imperative calls for the United States to treat its FTA partners in a Golden Rule-like manner. Applying Catholic Social Justice Theory impels promotion of freedom of conscience as a direct effect of trade liberalization and possibly also the improvement of the economic milieu as indirect support for freedom of worship. A legalistic approach to the words “equal,” “human” and “dignity” calls for incorporation into FTAs of excellent labor, environmental and human rights standards. The three perspectives on equal human dignity are not incompatible, and the practical implications for FTAs are complimentary. Yet changing the FTA paradigm to one in which equal human dignity predominates would require careful consideration of efficiency trade-offs, legal capacity, sovereign state responsibility, managed and strategic trade policy, and trade remedies. The effort may well be worthwhile. Throughout many parts of the world, the tide favoring unrelenting and uncompromising free trade has turned.
"Philosophical, Religious, and Legalistic Perspectives on Equal Human Dignity and U.S. Free Trade Agreements,"
Saint Louis University Public Law Review: Vol. 28
, Article 5.
Available at: https://scholarship.law.slu.edu/plr/vol28/iss1/5