INTRODUCTION

Recent U.S. trade agreements have been characterized by the incorporation of increasingly detailed standards backed up by provision for their enforcement. This trend continued right up to the last days of the Bush Administration, with Democrats insisting on the addition of new, more specific labor and environmental provisions to agreements then before Congress. Under the new Administration there has been no apparent inclination to resile from this approach; if anything, the preference appears to be for “more of the same.” The 2009 President's Trade Policy Agenda states an intention to maintain “strong standards of social accountability” by “[b]uilding on the provisions concerning labor in some of [the United States'] FTAs.” U.S. Trade Representative Ron Kirk more recently has promised a new focus on enforcement, stating in an important speech that “[r]ealizing the potential benefits of trade pacts depends largely on whether we're willing and able to enforce [the negotiated] rules.” This approach, although suggesting a shift in focus, does not seem to imply any fundamental rethinking; for the Administration, the provisions found in past agreements remain a baseline.

It is easy to see the attraction of detailed standards. In the 1980s, frustration with worldwide intellectual property (IP) protection led American policymakers to link the grant of trade benefits to countries' adoption of higher IP standards. This occurred in trade preference systems, then in the WTO negotiations, and, more recently, in bilateral preferential trade agreements (PTAs) – or, as they have been known, free trade or trade promotion agreements.