U.S. unlikely to accept NAFTA gender chapter with teeth: trade experts

The Liberals want a feminist North American Free Trade Agreement, but trade experts say that will depend on reassuring the United States no one could use it to hold their feet to the fire.

"I think U.S. support for such a chapter (on gender equality) would hinge upon the soft or hard nature of the commitments in any proposal with respect to gender," said Wendy Cutler, a former trade negotiator for the U.S. government.

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"If it's largely aspirational and has soft commitments, with no dispute settlement and no obligation to accede to other agreements, then I think it's something the administration would consider favourably," said Cutler, vice-president of the Asia Society Policy Institute in Washington, D.C.

In other words no real consequences for failure.

The U.S. and Mexico have already been asking high-level questions about the scope and impact of the proposed chapter on gender equality, according to Angella MacEwen, a senior economist with the Canadian Labour Congress.

"They were looking at the language the Canadians had proposed and were saying, 'Why would we do this?"' said MacEwen, who is familiar with that aspect of the talks.

"Would this change anything?"

The answer could be a matter of perspective.

The new 'gold standard'

The Canadian Press has not seen the proposed text, but several sources both in and outside of government said it is modelled after the gender chapter the Liberal government added to its free trade deal with Chile.

That pact the second in the world had both countries agree that working to include women and girls is key to long-term economic development and reaffirm their commitment to international agreements on gender rights.

They also set up a committee to oversee that work.

It also made clear, however, that nothing in the gender chapter could be subject to the dispute resolution mechanism that applies to the rest of the trade deal.

"The Chile chapter is really weak," said MacEwen.

It is this kind of symbolism that had the Conservatives pushing back against the idea of wrapping gender equality into the new NAFTA, calling it a distraction from the goals of creating jobs and securing market access for Canadians.

International Trade Minister Francois-Philippe Champagne said the fact that gender rights are on the table at all and codified in the Canada-Chile deal is an important step.

"It's a journey," he said in an interview.

"The fact that we even have a discussion around what should be the content, how far it should go, what will be the process to review the clause from time to time, for me is already a step forward," said Champagne.

"The gold standard now needs to include a gender chapter."

Turn virtues into venom?

Colin Robertson, a former Canadian diplomat, said he thinks the progressive trade agenda the Liberals have been championing is getting noticed because of the recognition that the many benefits of trade have not been shared equally.

"Gender specifically is really about equal treatment and empowerment, especially of women, and this crosses the North-South-East-West divide," said Robertson, vice-president and fellow at the Canadian Global Affairs Institute.

"Even Trump recognizes its salience."

The Liberal government might be bringing gender issues into other areas too.

MacEwen said Canada has proposed language on things like pay equity, child care and women in trades in the preamble to the labour chapter, although they are not hard obligations.

"Canada doesn't have pay equity, so we wouldn't be in compliance with the chapter, but it does talk about the importance of moving towards it," she said.

David MacNaughton, the Canadian ambassador to the U.S., said he expects gender equality to come up during the third round of NAFTA negotiations beginning Saturday in Ottawa.

He also suggested previous talks revealed the Americans are not yet convinced.

"They didn't immediately sign on," he said.

Dan Ujczo, an international trade lawyer specializing in Canada-U.S. matters, said there is some concern a chapter on gender could have unintended consequences.

"Can these virtues turn into venom?" said Ujczo.

Parental leave concerns

The concern is that language on parental leave, for example, be used to challenge labour and employment laws in the U.S. that do not grant a year of paid parental leave, which is available in Canada.

"Could some of these broadly worded provisions then be used to attack otherwise legitimate federal and state laws in the U.S.?" said Ujczo, who is with the cross-border firm Dickinson Wright, in Columbus, Ohio.

That is why Ujczo said he thinks Canada will need to put significant effort into reassuring the U.S. administration of President Donald Trump the gender chapter will not be enforceable.

That raises another question.

"An agreement without enforcement is just an agreement to agree and so really, what's the point?" he asked.