Disability Provisions in Trade Agreements
According to the World Health Organization (WHO), over 15 percent of the world’s population live with disabilities, with over 80 percent of these individuals living in developing countries. The WHO defines disability as “the interaction between individuals with a health condition, such as cerebral palsy, Down syndrome and depression, with personal and environmental factors including negative attitudes, inaccessible transportation and public buildings, and limited social support.” The World Trade Organization (WTO) has indicated plans to adopt the theme of trade and disability into its organizational framework, as prioritizing this topic could be an effective route to spur economic growth for disadvantaged populations. A McKinsey study found that actively addressing barriers to employment for persons with disabilities could lead to a U.S. GDP increase of $215 billion by 2040. Even so, there is scarce literature on the nexus of trade and disability.
In December 2022, WTO deputy director-general Angela Ellard delivered the keynote address at the launch of trade law professor Amrita Bahri’s study on trade and disability. According to Bahri, 27 percent of free trade agreements (FTAs) registered with the WTO contain disability provisions, compared to the 20 percent that contain gender provisions. Prioritizing this intersection between trade and disability has the potential to simultaneously increase business opportunities for persons with disabilities and improve global access to assistive devices.
Focusing on this topic also aligns with the priorities of the Biden administration. In January 2021, Executive Order (EO) 1395, On Advancing Racial Equity and Support for Underserved Communities Through the Federal Government, established that “each agency must assess whether, and to what extent, its programs and policies perpetuate systemic barriers to opportunities and benefits for people of color and other underserved groups.” The EO mentions several underserved communities: “Black, Latino, and Indigenous and Native American persons, Asian Americans and Pacific Islanders and other persons of color; members of religious minorities; lesbian, gay, bisexual, transgender, and queer (LGBTQ+) persons; persons with disabilities; persons who live in rural areas; and persons otherwise adversely affected by persistent poverty or inequality.”
The approach to equity provisions in trade agreements varies significantly by party. Because this is a relatively novel topic of negotiations, it is imperative that the U.S. government engage with the WTO’s work and hone its approach to disability and trade. The United States’ evolving usage of such provisions in trade agreements could have a domino effect on future negotiations. Research suggests that trade agreements typically directly copy disability provisions from previous agreements. Thus, the Office of the United States Trade Representative (USTR) should set the example of including new provisions which more effectively stimulate opportunities for the disability community.
Currently, USTR is using the findings of the report from the U.S. International Trade Commission’s Investigation on the distributional effects of trade and trade policy on U.S. workers to inform their inclusive trade work. This investigation consists of an academic symposium substantiated by roundtable discussions involving civil society groups, workers, entrepreneurs, and consumers. Ambassador Katherine Tai has requested that this process be repeated five times every three years for upwards of 15 years to fill the void in research on equity and trade research. In October 2022, one of the investigation’s main takeaways was that trade agreements should focus more on intersectionality to boost the opportunities of underserved communities. This would entail accounting for the interconnectedness of different social groups, such as focusing on how trade could specifically boost the opportunities of women who have disabilities or the Black LGBTQ+ community.
Subsequently, USTR included gender updates in its 2023 Trade Policy Agenda and 2022 Annual Report for the first time, following its inclusion of a section on the Informal Working Group on Trade and Gender the year prior. They are still, however, hoping to find a balance between what is meaningful and what is easy and collaborative in trade negotiations. Though they are aiming for ambitious and forward-leaning policies, they face the challenge of educating the constituency and bringing relevant stakeholders to the table ahead of imminent crises. Further, other negotiating parties might be less accustomed to conversations on intersectionality, highlighting the importance of establishing transparency and promoting education in these negotiations.
In recent trade negotiations, USTR has increasingly focused on equity provisions, but they still have room to tailor their approach to trade and disability. The United States-Mexico-Canada Agreement (USMCA), which entered into force on July 1, 2020, provides a recent example of the United States’ approach to equity provisions. The USMCA is largely intended to help improve lives by reducing tariffs and making it easier to facilitate the cross-border flow of goods and services. Still, however, this agreement tends to group various underserved populations together without emphasizing intersectionality. For instance, the USMCA’s chapter on labor says it prioritizes diversity:
"The Parties may develop cooperative activities in the following areas: . . . (l) addressing the opportunities of a diverse workforce, including: (i) promotion of equality and elimination of employment discrimination in the areas of age, disability, race, ethnicity, religion, sexual orientation, gender identity, and other characteristics not related to merit or the requirements of employment."
This provision does not necessarily highlight actionable ways to boost the labor opportunities of underserved populations. This is particularly evident when it is compared to the December 2021 UK-Australia free trade agreement, which complemented its approach to similar provisions with language prioritizing “sharing best practice” for these topics. This forward-leaning agreement also establishes that the parties “recognise the importance of the participation of SMEs owned or led by under-represented groups, such as women, youth, indigenous peoples, persons with a disability and minority groups in international trade.” Focusing such provisions on the importance of inclusivity in addition to the prevention of discrimination has the potential to lead to more proactive policy decisions.
At the same time, however, it is important to consider how trade negotiations must balance the ways in which all involved parties have approached equity provisions. In May 2022, the United States launched the Indo-Pacific Economic Framework for Prosperity (IPEF), reaching a consensus with Australia, Brunei, Fiji, India, Indonesia, Japan, the Republic of Korea, Malaysia, New Zealand, Philippines, Singapore, Thailand, and Vietnam. The inclusivity language in IPEF’s ministerial text falls more in line with the USMCA’s than the UK-Australia agreement’s. However, given the range of these parties’ priorities, even the act of adding an “inclusivity” section to this plurilateral agreement might be considered a step in the right direction for USTR’s equity initiatives. Still, however, this provision does not necessarily promote a sufficient level of engagement for the disability communities.
In July 2022, the United States and Kenya announced the launch of the U.S.-Kenya Strategic Trade and Investment Partnership. These negotiations have presented a window for innovation in equity provisions, as they have been the first space in which the other party approached USTR on these issues. Both countries included equity for vulnerable communities, women, and youth on their priority lists, so this engagement presents a novel platform for both parties to innovate together on these issues along with a specific focus on persons with disabilities. In their joint statement, the two parties promised to “work to identify resources to support the economic empowerment and participation of women, youth, persons with disabilities, other vulnerable populations, and the African Diaspora in trade to promote equitable and inclusive development.” This focus on the nexus of trade and development across and within the countries could be leveraged to widely impact these communities.
As National Security Advisor Jake Sullivan said in April 2023 in remarks on “traditional FTAs,” “For the problems we are trying to solve today, the traditional model doesn’t cut it.” The United States has reached an inflection point in its approach to international trade, presenting a unique opportunity to reshape U.S. agreements’ previous approaches to equity and inclusion. And, as the United States considers the prospects of a trade agreement with the United Kingdom, prioritizing research on the nexus of trade and disability is particularly critical. If this agreement occurs, it has the potential to be uniquely proactive in its approach to equity provisions, and consequently serve as an exemplar for trade agreements to come. To better serve the disability community, USTR might consider incorporating intersectionality language as well as the more proactive language of the UK-Australia Agreement’s inclusivity provisions in future trade agreements. Furthermore, the robust labor chapter in USMCA provides a viable blueprint upon which to build future mechanisms to better support persons with disabilities.
Margot Putnam is an intern with the Scholl Chair in International Business at the Center for Strategic and International Studies (CSIS) in Washington, D.C. William A. Reinsch holds the Scholl Chair at CSIS.