Two Dimensional Hard-soft Law Theory and the Advancement of Women's and Lgbtq+ Rights Through Free Trade Agreements

• Publication year: 2019
• Citation: Vol. 47 No. 2

TWO DIMENSIONAL HARD-SOFT LAW THEORY AND THE ADVANCEMENT OF WOMEN'S AND LGBTQ+ RIGHTS THROUGH FREE TRADE AGREEMENTS

Raj Bhala^* and Cody N. Wood^**

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Table OF Contents

I. FTAS AND WOMEN'S AND LGBTQ+ RIGHTS....................................302

A. Argument..............................................................................302
B. Inspirations...........................................................................302
C. Three Steps...........................................................................306
D. Two Assumptions..................................................................307

II. CRITICAL REFLECTIONS ON "HARD" VERSUS "SOFT" LAW...............308

A. Unsettled Public International law Scholarship.................308

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B. Precise, Binding, and Articulable Variable.........................311
C. GATT-WTO Law and Practical Effects................................312
D. Rebutting Skepticism About"Sof" Law..............................314
E. Sidestepping Jurisprudential Questions...............................317
F. Recalling Reality Since 1930................................................319

III. STEP ONE: TWO DIMENSIONAL HARD-SOFT LAW THEORY...............320

A. Definitional Starting Points.................................................320
B. Five Inferences.....................................................................323
C. Five Structural Dimension Variables...................................324

i. Type of Instrument.....................................................324
ii. Scope of Application..................................................325
iii. Monitoring.................................................................325
iv. Dispute Settlement (Adjudication).............................325
v. Enforcement...............................................................326

D. Five Textual Dimension Variables.......................................326

i. Verb Constructions....................................................327
ii. Vagueness..................................................................329
iii. Ambiguity...................................................................330
iv. Metrics.......................................................................331
v. Status.........................................................................331

E. Two-by-Two Matrix..............................................................332

IV. STEP TWO: APPLYING TWO DIMENSIONAL HARD-SOFT LAW THEORY TO CPTPP ARTICLE 23.4 AND USMCA ARTICLE 23.9..................334

A. Broad Interpretation:USMCAProtects Women and LGBTQ+ Persons, Because"Sex" Includes "Sexual Orientation" and "Gender Identity"................................................................339
B. Narrow Interpretation: Article 23.9 Protects Women and "IGB" Persons, because "Sex" Includes "Sexual Orientation but Excludes "Genderldentity"...........................................342

V. STEP THREE: TOWARDS A HARD-HARD RULE...................................345

A. World Bank Data, Extensions to IGBTQ+ Persons, and Four Topics...................................................................................345
B. Selecting Metrics and Standstill Versus Ratchet Rules........350
C. Topicl: Education..............................................................353
D. Topic 2: Business Capital....................................................356
E. Topic 3: Social Capital.......................................................357
F. Topic 4: Legal Protection....................................................359
G. Proposed Hard-Hard Law Text............................................362

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VI. Conclusion......................................................................................365

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I. FTAS AND WOMEN'S AND LGBTQ+ RIGHTS

A. Argument

What should free trade agreements (FTAs) say about gender, sexual orientation, and gender identity? No longer is "nothing" the only answer. The Comprehensive and Progressive Agreement for a Trans Pacific Partnership (CPTPP) and the United States-Mexico-Canada Agreement (USMCA) now discuss the rights of women and Lesbian, Gay, Bisexual, Transgender, Questioning, and Other (LGBTQ+) persons. They do so in Articles 23.4 and 23.9, respectively.¹ But, these provisions are soft law.

These Articles ought to be strengthened to advance women's and LGBTQ+ rights. That is, we argue gender, sexual orientation, and gender identity should be effectively addressed through hard law legal structures using hard law language that incorporates empirical insights.

Increased openness to trade and foreign direct investment (FDI) are reliably and positively associated with increased scores on the United Nation's Gender Equality Measure (GEM) and Gender Development Index (GDI).² Countries whose trade and FDI constitute greater percentages of their GDP tend to have higher GEM and GDI scores than countries with inward-looking economies. Free trade, it would seem, is good for women.³ We seek to show how free trade, effected through FTAs, may be made even better for women, as well as for LGBTQ+ persons.

B. Inspirations

One inspiration for this argument comes from Down Under. New Zealand's Minister of Trade and Environment, David Parker, correctly states: "It's not fair to rely upon trade to cure all of the world's environmental problems. But it is fair to ask if trade agreements can help."⁴ The same point

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applies to women's and LGBTQ+ rights. The fact that trade cannot empower all women and all LGBTQ+ persons in all dimensions of life does not mean FTAs should exclude obligations that would help them participate more fully in import-export businesses. Doubtless, Mr. Parker's boss, Jacinda Ardern-the third female Prime Minister of New Zealand-agrees. Her government signed CPTPP in January 2018, staying in this deal with 10 other Asia-Pacific nations, a year after U.S. President Donald J. Trump withdrew America from its predecessor agreement, the Trans Pacific Partnership (TPP).⁵ In doing so, President Trump took America out of the first FTA in human history to incorporate a provision on women's rights. So, a second inspiration for our argument is that provision-Article 23.4 of the CPTPP.

A third inspiration for this argument comes from America's neighbor to the North. Thanks to Prime Minister Justin Trudeau, who took office in 2015, Canada insists on social clauses in its FTAs.⁶ Canada successfully negotiated for the inclusion of Article 23.9 in the new version of the North American Free Trade Agreement (NAFTA), USMCA, and in September 2018 the United States and Mexico agreed to it and the overall deal.⁷USMCA, thus, is the first

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FTA, to which America is a party, that includes a provision not only on women's rights, but also on LGBTQ+ rights. Succinctly put, New Zealand and Canada have seized the opportunity FTAs present to help two suffering groups that are otherwise disadvantaged from enjoying the full economic benefits these agreements are meant to provide.

That they are right to do so is a fourth inspiration; namely, these two significant trading nations have highlighted the problem of discrimination in their international commercial relations. Unfortunately, reliable, comprehensive global survey data concerning discrimination against LGBTQ+ persons is lacking. But it is reasonable to infer from the plethora of global data concerning the plight of women that LGBTQ+ persons may be afflicted by similar, or even worse, discrimination. Anecdotal evidence abounds (including informal discussions by the authors with colleagues and friends overseas). And, in many countries, homosexuality remains a criminal offense punishable by imprisonment or even death.⁸ That is especially the case in many Islamic law (Shari'a) jurisdictions, where homosexual behavior is categorized as a haqq Allah (claim of God) offense that triggers a hadd (limit) punishment of flogging.⁹ The data concerning discrimination against women is stark. Across 144 countries ranked by economic opportunities, education, health, and political engagement, women have 68% of the chances and positive outcomes of men.¹⁰ This gender gap, which worsened between 2016 and 2017, is estimated to take 100 years to close across these four areas.¹¹ Gender parity is most skewed with respect to the economy: it is estimated to take 217 years before women, globally, are equally represented in the labor market and earn the same amount as men.¹² Worldwide, women hold unpaid or lower paid positions in disproportionately high numbers, and hold highly-paid senior

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positions in disproportionately low numbers.¹³ And, gendered salary differences infect many jobs that both sexes occupy. Unsurprisingly, the Nordic countries top the ranking for best overall gender parity, while countries across the Middle East and North Africa are at the bottom of the Global Gender Gap Index.¹⁴ Rwanda is a notable exception: it ranks fourth, and this happy ranking at least correlates with having the highest share of women in the legislature of any country in the world-60%.¹⁵ In the United States, which overall ranks a poor 49^th (falling between 2016 and 2017), the gender income gap worsened in the ten years from 2008 to 2017, and female political empowerment (ranking 96^th in the world) is at its lowest level in a decade.¹⁶

More than half of the children in the world-1.2 billion kids-are at risk of poverty, conflict, and/or discrimination against girls.¹⁷ Among these 1.2 billion kids, 153 million are cursed by all three plagues, and "575 million girls live in countries where discrimination against women is common."¹⁸ Child labor, forced marriage, malnutrition, pre-mature motherhood, and under-education rob girls of their childhood, and differentiate countries on an "End of Childhood" Index.¹⁹ Of the 175 countries ranked eight of the bottom ten are in West or Central Africa, yet some developed and emerging...