Frank Garcia, Professor, Law Faculty. Professor Frank Garcia, photographed on October 21, 2011.

Online Exclusives

Looking Behind the Veil of Trade

Under the auspices of the Clough Center for the Study of Constitutional Democracy, a group of international scholars met March 14 for a roundtable discussion of “Consent, Coercion, and Democracy” focusing on the role of consent and coercion in US trade policy, and in international relations generally.

BC Law Professor Frank Garcia opened the discussion with a short overview of the argument of his recent book, Consent and Trade (CUP 2018), namely that in order to address the current crisis in trade policy and economic globalization, we need to re-capture a vision of trade as a mutually beneficial consensual exchange. Simply put, trade is nothing more or less than the economic bargains we agree to, and the rules we agree on to protect, support and facilitate these bargains, Garcia said. By this standard, much of what passes today for trade is not really trade at all but pathologies of trade: coercion, exploitation, or worse. Where consent is thus absent or impaired, predictable consequences follow in terms of resentment, social conflict, the undermining of democratic culture, and persistent under-development.

BC Law Professor Katie Young responded by first underscoring how central the notion of consent is to international law itself. However, she emphasized how important it is from a human rights perspective to also recognize other values in the international space that can, at times, take precedence over consent, at least when we mean the formal consent of states. Setting these dynamics of coercion or exploitation in a larger rights-based or constitutional framework, can illuminate other ways to recognize and advance fundamental human concerns, she noted.

Referring to his own recent volume on coercion, Boston College political science professor Peter Krause offered his perspective on coercion as a general problem in international relations. In his discipline, what characterizes coercion is the use or threat of force to get international actors to do things they otherwise would not do. It is perhaps fortunate, though not ideal, that in trade policy coercion is generally about economic leverage alone, although there have been notorious examples of the threat of violence to secure trade goals. The key question Krause posed is to what extent can international economic negotiations ever be free from leverage, and the economic asymmetries from which it stems.

Durham University law professor John Linarelli then led the audience through a series of hypotheticals that sought to sharpen understanding of what constitutes coercion, and the acceptable limits of coercion, in a range of settings. The difficulty in reaching any consensus about fairness, the limits of rights-based approaches, and the coercive history of international law itself, lead him to look for consequentialist, welfare-based arguments instead.

Fiona Smith, of Leeds University, UK, drew out parallels between the US context and the current Brexit crisis. European integration has proven inadequate to protect ordinary workers and citizens from the rigors of neoliberal globalization, but the irony, of course, is that the Brexiteers advocate even more neoliberalism for the UK, further opening the economic and social space to coercion, predation, and exploitation. With trust violated and a sense of betrayal having taken root, she posited that it will be very difficult to restore any larger sense of solidarity this way, making consensual economic relations even more important.

Drawing on his years working for the WTO in the multilateral trade negotiation process, Queens University law professor Nicolas Lamp concluded by offering a number of cautions on the limits of consent as a theory of trade. Consensus is difficult in international economic governance, he said, meaning that important decisions will at times have to be made over the objection of a number of states and the ubiquity of power differentials in the multilateral trade negotiations process.

Regardless of their individual views, the discussants agreed that there is no magic bullet for ensuring a fairer global economy and that immense challenges lie ahead for restoring people’s confidence and designing a more inclusive economic globalization.

Recovering trade’s roots in consensual exchange can play an important role in this effort, but it is only part of the solution. Consent is not the only value important in economic and other relationships, nor can valuing consent mean that all decisions will be made by consensus, the group concluded. However, recognizing that trade is essentially about consensual exchanges can help people resist some of trade’s pathologies and ask more of  trade negotiators and political leaders.

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