Among Gabrielle Marceau’s lifetime achievements in her work at the World Trade Organization (WTO), in academic teaching and research stands out her tireless strive to break up the “clinical isolation” between trade and other legitimate societal objectives. She never considered WTO law as a “self-contained regime”: public international law, general principles of international law and international instruments protecting human rights, gender, labour and social rights should be seen inspiring WTO rules and exceptions and as tools to overcome the fragmentation of international law and to create greater coherence within the international legal regime.

Some key questions come to mind: To what extent is it possible to pursue and enforce human rights under or even through WTO law? What are the main issues in WTO rules and jurisprudence that continue to pose obstacles and challenges? What are the ways out of apparent tensions and how can they be resolved?
# I. From Tension to Coherence in Trade and Human Rights Rules and Enforcement

From the perspective of WTO law, States are in principle free to develop, pursue and enforce human rights treaties and standards domestically and internationally, particularly when human rights measures do not affect international trade. Policy space for human rights-related enforcement measures is wide also where such measures do not discriminate between different countries, and do not involve import quotas or tariffs exceeding a country’s maximum tariffs<fnref n="1" /> bound in its Schedule of Concessions. Tensions between human rights and multilateral trade law arise when human-rights-related measures directly target or indirectly affect international trade. This can be done, inter alia, by imposing higher tariffs, or import quotas, or by discriminating between like (or substitutable) imports from different origins depending on the degree of compliance with international human rights instruments, or with human rights standards considered primordial by the importing country. Notably, the moment international trade is involved, respect and enforcement of human rights by the importing country entail extraterritorial dimensions. Beyond human rights, too, if an exporting country wants to sell its products on the importing country’s market, obviously those products have to comply with the importing country’s domestic standards and regulations. But how far does this compliance with the importing country’s standards and regulations extend? Only to those directly affecting or embodied in the traded product, or also those relating to production processes and processing methods used in the exporting country’s territory?

Such human-rights-related trade measures may—provisionally—breach WTO law for the reasons explained below. Traditionally, protection and enforcement of human rights standards affecting trade have been considered in General Agreement on Tariffs and Trade (GATT) law and jurisprudence a matter to dealt with under GATT/WTO exceptions as derogations from free trade principles and trade liberalization. Regardless of the production and processing methods used, when foreign and domestic products were found to be alike (based on traditional criteria of physical characteristics, end use, consumer perceptions and tariff classification), then discrimination is prohibited irrespective of whether directly product-related or not directly product-related production or processing methods in the complied with or breached human rights standards. The approach under the *General Agreement on Trade in Services*<fnref n="2" /> (*GATS*) regarding human rights compliance in services production and trade is essentially similar.

From the perspective of human rights (including sustainability, labour and social rights), differentiating in international trade law between like products depending on the extent to which human rights have been respected in the production or processing process should not only be permitted; such differentiation in international trade law could be used creatively to serve as a tool to enforce effectively such human rights standards and compliance across borders. The GATT/WTO law structure of dealing with human rights (and human-rights-related trade measures) under exceptions is conceptually outdated and highly controversial among academic commentators as it is prone to conflicts, and lack of cohesion between trade liberalization and human rights rules and enforcement.

Before addressing alternative approaches to reconciling human rights and trade rules, however, it should be noted that the evolution of WTO jurisprudence in giving more deference to human rights, sustainability, gender, labour and social rights has been enormous over the past decades. In a nutshell, the traditional *General Agreement on Tariffs and Trade of 1947*<fnref n="3" /> (*GATT 1947*) jurisprudence under the necessity test of the general exceptions of Article XX was often criticized for requiring countries to use least-trade restrictive and/or GATT-consistent alternative measures in pursuing legitimate objectives like furtherance of human rights, which severely constrained countries’ policy space on pursuing legitimate policy objectives and societal concerns.<fnref n="4" />

The shift to the weighing and balancing test in jurisprudence under the exceptions of *GATT 1947* Article XX<fnref n="5" /> and *GATS* Article XIV<fnref n="6" /> offers a more effective entry gate for pursuing and enforcing societal concerns regarding compliance with human rights also through measures that seem provisionally inconsistent with the *GATT* or *GATS*, by justifying such derogations from free trade rules subject to certain conditions. This approach resembles a proportionality test and has introduced significant deference to governments pursuing legitimate non-trade policy objectives. Instead of placing excessive emphasis on least trade-restrictive measures, under this test, the Appellate Body factored additional parameters into weighing and balancing the necessity and justifiability of a measure: i.e., (i) the importance of the interest or value at stake in a given country or society, (ii) the degree of trade-restrictiveness, (iii) the extent of contribution to the achieving the objective pursued, and (iv) whether alternative measures are reasonably available (technically and practically), that are (v) less trade restrictive, and (vi) make an equivalent contribution to achieving the objective as the challenged measure sought to be justified.

Several paragraphs of *GATT 1947* Articles XX,<fnref n="7" /> particularly (a), (b), (d) and (g), and several paragraphs of *GATS* Articles XIV,<fnref n="8" /> especially (a), (b) and (c) are most relevant for justifying measures pursuing human rights, sustainability, gender, labour and social rights. When human-rights-related trade measures are found to be provisionally inconsistent with a *GATT* or *GATS* obligation, they could be justified under these WTO exceptions, provided their policy purpose fits into one of the ranges of objectives protected under the *GATT 1947*/*GATS* general exceptions (*GATT 1947* Article XX<fnref n="9" />/*GATS* Article XIV<fnref n="10" />). The national security exceptions (*GATT 1947* Article XXI<fnref n="11" />/*GATS*Article XIVbis,<fnref n="12" /> or *Agreement on Trade-Related Aspects of Intellectual Property Rights* (*TRIPS*) Article 73<fnref n="13" />) could also be relevant, albeit to a lesser extent, when these exceptions are properly interpreted in line with recent panel reports, and thus not applied in an excessively broad manner.

For the protection of human rights (including gender, labour and social rights) *GATT 1947* Article XX(a) on the protection of public morals<fnref n="14" /> and *GATS* Article XIV(a) on public morals and public order<fnref n="15" /> have most frequently been invoked in the literature as avenues for justifying trade measures pursuing human rights that have been found provisionally inconsistent with *GATT 1947*/*GATS* obligations. WTO panels and the Appellate Body have to date not questioned Members’ choices in determining which societal concerns and policy objectives fall within “public morals” or “public order” in their countries and societies.<fnref n="16" />

*GATT* Article XX(d)/GATS Article XIV(c) may justify measures provisionally found to be *GATT*/*GATS*-inconsistent if these measures are necessary for the enforcement of laws and regulations—defined broadly—that are not in themselves inconsistent with *GATT*/*GATS* law. Article XX(d) mentions the enforcement of patent rights which are relevant for the right to health through access to affordable medication. *GATS* Article XIV(c) mentions protection of personal privacy and personal data, but both provisions could potentially apply to many other laws and regulations related to human rights enforcement.

For trade-related measures pursuing rights to environmental protection, sustainability and climate change mitigation, the exceptions under *GATT 1947* Article XX(b) or (g) are most relevant.<fnref n="17" /> Notably, justification under Article XX(g) requires establishing an objective relationship between the measure and the conservation objective. Moreover, the measure needs to be implemented in conjunction with restrictions on domestic production or consumption, not increases of domestic production utilizing or processing domestically raw materials or critical minerals. Such evenhandedness in implementing environmental, sustainability or climate change mitigation measures is also called for under the introductory clause (chapeau) of *GATT 1947* Article XX,<fnref n="18" /> from good governance perspective.

For health-related human rights, e.g. regarding public health (of humans, animals, plants), *GATT 1947* Article XX(b),<fnref n="19" /> *GATS* Article XIV(b)<fnref n="20" /> and *TRIPS* Article 7 and 8<fnref n="21" /> are most relevant (although these *TRIPS* articles cannot justify WTO-law-inconsistencies). In ascertaining necessity under Article XX(b), the weighing and balancing test applies, including the above-mentioned parameters such as the importance of the human-rights-related objective, or the degree of human-rights-related contribution that the trade-related measure achieves.

For labour and social rights, *GATT 1947* Article XX(e)<fnref n="22" /> regarding products stemming from prison labour can be mentioned. However, this provision was not really inspired by human rights concerns, it was more concerned with levelling the playing field between cheaper products from prison labour and products manufactured with better labour and social standards outside prisons. Considering the breadth and variety of primary and secondary labour and social rights developed in ILO conventions, the scope of Article XX(e) is very narrow. More interesting in this context, are provisions of the charter of the stillborn International Trade Organization (ITO), which would have intertwined ITO dispute settlement on trade disputes with referral of related issues regarding labour and social rights for expert opinions to the ILO. The ITO trade panel would then have decided the dispute based on the ILO’s expert opinion on implicated labour or social rights.

Compliance with human rights, labour and social standards could also be justified for reasons of national security, although stretching *GATT 1947* Article XXI<fnref n="23" /> and *GATS* Article XIVbis<fnref n="24" /> is akin to a slippery slope. Enforcement of human rights through measures justified with national security concerns would necessarily be selective regarding particular human rights and specific countries. It would be a function of geostrategic concerns rather than the extent or severity of human rights violations. These national security exceptions are attractive for regulating countries because they come with fewer strings and conditions attached than those that apply under Article XX/Article XIV.

As noted, when human rights are pursued through measures not affecting trade and not breaching WTO obligations, States retain full policy space to do so. When countries use trade sanctions or measures incentivizing more human rights compliance, the legal situation becomes different. Importantly, the potential for pursuing human rights, including environmental protection, sustainability, climate change mitigation, labour and social rights is more limited in relation to WTO provisions that still rely on traditional legal standards of likeness and economic substitutability. These concepts may constitute obstacles for human rights enforcement because they need to be transposed conceptually in product-related or non-product-related production and processing methods and then justified under the WTO exception clauses. Differentiation between products produced or processed with lower or higher human rights and labour/social standards is cumbersome under these WTO rules and obligations, and thus may be effectively possible only through justification under the *GATT*/*GATS* exceptions. Importantly though, these problems arise only with respect to measures pursuing human rights standards if these measures have a discriminatory or trade-restrictive effect on traded products or services. Horizontally applicable human rights measures without such trade effects need no further justification under WTO law and jurisprudence.

The burden of proof shift under the WTO exceptions upon defendant countries reduces their potential for using them to pursue human rights standards. However, the language of the “chapeau” introductory clause of the *GATT*/*GATS* exceptions against arbitrary or unjustifiably discrimination between countries where the same conditions prevail, and against disguised restriction of international trade has been interpreted as even-handedness requirement in WTO jurisprudence. This evenhandedness standard offers a tool for filtering and separating genuine human rights enforcement from protectionist abuse. The terms “arbitrary” and “unjustifiable” qualifying “discrimination” and “disguised” qualifying “restriction” suggest that some degree of discrimination or restriction are acceptable when pursuing legitimate policy objectives, including human rights. The benchmark of “discrimination between countries where the *same* conditions prevail” is also of critical importance for differentiating between countries where in terms of human, environmental, labour and social rights and standards *not the same* conditions prevail. The potential of the distinction between countries where the same conditions prevail, and conversely, where countries are not similarly situated in respect of the enforcement of particular human rights (or also environmental, social, labour, economic rights), or human rights generally, is yet to be explored and employed in practice.

Next, the question arises, which political, economic and social rights are more prone to being effectively pursued through trade measures (like sanctions or subsidies or trade incentives) against this backdrop of the structure of WTO law and conventional jurisprudence. The proposition is that this is more likely to be successful with economic and social rights (as well as environmental/sustainability/climate change mitigation rights) than for civil and political rights. This is so because economic and social rights are more closely related to trade and product-related production and processing methods than civil and political rights, that would seem generally not directly related to products, services, their production and trade. It might be quite difficult, but not impossible, to conceive of the extent to which civil and political rights are observed as part of a country’s non-product-related production and processing standards with respect to which *not the same conditions prevail* in different countries. Consequently, differentiation between products stemming from countries with different human rights enforcement standards would then be permissible under the chapeau of *GATT*/*GATS* exception clauses.

Does the level at which human rights are entrenched and enforced matter? It appears that the WTO level is more compatible with enacting and enforcing human rights through international instruments (multilateral, regional, bilateral) than through regulation and enforcement at national (and thus more likely unilateral) level (e.g., through the nationally determined and circumscribed public morals as an avenue to capturing social or labour rights’ enforcement). Needless to say, most human-rights-related WTO disputes concern measures taken at the national level that are assessed for consistency with WTO rules and exceptions. However, human rights measures implementing international treaties and instruments are usually not challenged, and, to date, e.g., no provision of a multilateral environmental treaty has been found to be inconsistent with WTO law. Challenges typically target national measures taken for legimitate policy purposes but accompanied by protectionist elements, abuse or effects. The conditions for justification under *GATT*/*GATS* exceptions and its chapeau are prone to filtering out protectionist aspects of measures taken for legitimate purposes and many WTO panel and Appellate Body rulings did exactly that.

Furthermore, which types of human rights enforcement tools are more likely to be compatible with WTO law and jurisprudence? Given the stringency of WTO non-discrimination rules and other conceptual problems with WTO law as it stands, capturing human rights enforcement would work better with incentive structures like trade preferences. They will face fewer legal hurdles than sanctions, bans and prohibitions. This may be why preferential trade agreements, too, often prioritize incentive structures or subsidies for raising human rights standards over trade bans or sanctions against lowering such standards. In any event, the enforcement instrument should be chosen wisely.<fnref n="25" /> Often soft law options and “carrots” like the Generalized System of Preferences for developing and least-developed countries have been more effective and successful in incentivizing gradual change and upgrading observance of human rights within countries than the “sticks” of trade bans and sanctions against entire countries. The choice among the range, scope and level of institutional regime is also essential as it allows like-minded countries and policymakers to move ahead of the curve with innovative rules and model conduct.<fnref n="26" />

<footnote n="1">Tariff ceilings bound in so-called country-specific *GATT* Schedules of Concessions for Trade in Goods. Under the *GATS*, Schedules of Commitments on Trade in Services contain liberalization commitments on market access and national treatment for specific services trade sectors and modes of service supply.</footnote>

<footnote n="2">WTO, *General Agreement on Trade in Services*, LT/UR/A-1B/S/1 (1994), online: <docsonline.wto.org> [perma.cc/ZTG4-QY44] [*GATS*].</footnote>

<footnote n="3">GATT, *General Agreement on Tariffs and Trade*, 55 UNTS 187 (1947), online: <wto.org> [perma.cc/M7BW-4H7J] [*GATT 1947*].</footnote>

<footnote n="4">Peter Van den Bossche & Werner Zdouc, eds, *The Law and Policy of the World Trade Organization*, 5th ed (Cambridge: Cambridge University Press, 2022) at 592—668.</footnote>

<footnote n="5">*GATT 1947*, *supra* note 3, art XX; WTO, *Korea—Measures Affecting Imports of Fresh, Chilled and Frozen Beef*, WTO Doc WT/DS161/AB/R (2000) (Appellate Body Report), online: <docsonline.wto.org> [perma.cc/VNE7-623L]*.*</footnote>

<footnote n="6">*GATS*, *supra* note 2, art XIV; WTO, *United States—Measures Affecting the Cross-Border Supply of Gambling and Betting Services*, WTO Doc WT/DS285/AB/R (2005) (Appellate Body Report), online: <docsonline.wto.org> [perma.cc/KH39-WJBY]*.*</footnote>

<footnote n="7">*GATT 1947*, *supra* note 3, art XX.</footnote>

<footnote n="8">*GATS*, *supra* note 2, art XIV.</footnote>

<footnote n="9">*GATT 1947*, *supra* note 3, art XX.</footnote>

<footnote n="10">*GATS*, *supra* note 2, art XIVbis.</footnote>

<footnote n="11">*GATT 1947*, *supra* note 3, art XXI.</footnote>

<footnote n="12">*GATS*, *supra* note 2, art XIVbis.</footnote>

<footnote n="13">GATT, *Agreement on Trade-Related Aspects of Intellectual Property Rights*, LT/UR/A-1C/IP/1 (1994), art 73, online: <docsonline.wto.org> [perma.cc/5AW4-TEL3] [*TRIPS*].</footnote>

<footnote n="14">*GATT 1947*, *supra* note 3, art XX (a).</footnote>

<footnote n="15">*GATS*, *supra* note 2, art XIV(a).</footnote>

<footnote n="16">See WTO, *European Communities—Measures Prohibiting the Importation and Marketing of Seal Products*, WTO Doc WT/DS400/AB/R (2014) (Appellate Body Report), online: <docsonline.wto.org> [https://perma.cc/L7RT-FH3U]; WTO, *China—Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Products*, WTO Doc WT/DS363/AB/R (2009) (Appellate Body Report), online: <docsonline.wto.org> [perma.cc/W4V8-S8NE].*.*In the former dispute animal welfare and protection of indigenous rights were considered as “public morals” of the European Union under *GATT* Article XX(a); in the latter case, “content control” was considered to fall within “public order” under *GATS* Article XIV(a). However, the challenged measures had to be justified also under the other conditions of the weighing and balancing text and the chapeau of the exception clauses.</footnote>

<footnote n="17">*GATT 1947*, *supra* note 3, arts XX(b)(g).</footnote>

<footnote n="18">*Ibid*, art XX.</footnote>

<footnote n="19">*Ibid*, art XX(b).</footnote>

<footnote n="20">*GATS*, *supra* note 2, art XIV(b).</footnote>

<footnote n="21">*TRIPS*, *supra* note 13, arts 7—8.</footnote>

<footnote n="22">*GATT 1947*, *supra* note 3, art XX(e).</footnote>

<footnote n="23">*Ibid*, art XX.</footnote>

<footnote n="24">*GATS*, *supra* note 2, art XIVbis.</footnote>

<footnote n="25">Michael Trebilcock & Joel Trachtman, *Advanced Introduction to International Trade Law*, 2nd edition, (Cheltenham, UK: Edward Elgar, 2020) at 202—05.</footnote>

<footnote n="26">See e.g. (among many more), WTO, *Agreement on Subsidies and Countervailing Measures*, LT/UR/A-1A/9 (1994), online: <docsonline.wto.org> [perma.cc/7TJT-TDM2] [*Agreement on Subsidies*]; the plurilateral talks on plastics, fossil fuels, environmental goods and services (see WTO, “Environmental Goods Agreement (EGA)”, online: <wto.org> [perma.cc/9CKN-MVJT]).</footnote>
# II. Key WTO Rules to Resolve Challenges in Promoting Human Rights

A significant number of WTO rules envision pursuing legitimate societal concerns not only under exceptions and derogations from freer trade rules; rather such legitimate concerns including human rights, environmental protection, sustainability, climate change mitigation, and labor/social standards play an important role in defining, shaping and implementing trade rules, in several important areas of the WTO covered agreements.

The *Agreement on Technical Barrier to Trade*(*TBT Agreement*) Article 2.2<fnref n="27" /> envisions that technical regulations and standards should not be more trade restrictive than necessary to fulfil a legitimate objective or societal concern, taking into account the risks that non-fulfilment would create. This innovation is meant to ensure that matters like technical safety or consumer protection from fraud do not create unnecessary obstacles to international trade even if they are not discriminatory. The open-ended list of legitimate societal concerns (which could include human rights, labour and social standards and sustainability) thus shapes the application and enforcement of this provision. The parameters listed in Article 2.2 resemble, and arguably inspired, the parameters considered by the Appellate Body in its weighing and balancing test under the *GATT* general exceptions. However, contrary to *GATT* Article XX, the legitimate objectives shape the scope and nature of the *TBT* Article 2.2 obligation, not merely the justification of measures under exceptions, i.e., the fallacy of the *GATT*’s structure from a human rights perspective. Moreover, *TBT* Article 2.2 applies not only to the application of existing technical regulations, but already to their preparation and adoption which is another important innovation.

Similarly, the “legitimate regulatory distinction” test under Article 2.1 of the *TBT Agreement*<fnref n="28" /> (which combines most-favoured-nation and national treatment standards regarding technical regulations and standards) foresees that when a measure has a detrimental impact on trade, *TBT*-inconsistent discrimination will not be found to exist when this detrimental impact stems exclusively from a legitimate regulatory distinction. This means the analysis of legitimate societal concerns including those related to human rights flows into the interpretation and application of the provision before a finding of discrimination is made, thereby obviating the need for justification under exception clauses.

The *GATT*/*GATS* rule—exception dichotomy is also largely absent from the conceptual structure of the *Agreement on the Application of Sanitary and Phytosanitary Measures*<fnref n="29" /> (*SPS Agreement*). A fundamental rationale of that *Agreement* is the need for scientific justification for food safety and security measures as well as plant and animal life and health standards (sanitary and phytosanitary standards). This structural approach ensures that human, animal and plant rights to health and life are protected, while filtering out protectionist *SPS* standards that are not based on objective scientific risk assessment and risk management. The protection of rights to life and health prevails over free trade when it is based on science, regardless of majority or minority scientific opinions. International standards are favoured and fostered through presumptions of consistency with *SPS* rules when countries choose to comply with those international standards (*SPS* Article 3.2). Nonetheless, countries retain the right to set their own appropriate level of protection and to pursue higher standards of protection of rights to health and life than international (minimum) standards. Finally, regarding human, animal and plant rights to life and health countries are entitled to act on a provisional basis until the risks materialize out of precaution (*SPS* Article 5.7).

Furthermore, *TRIPS* Articles 7 and 8<fnref n="30" />, but also Article 31 on compulsory licensing, the Declaration on Public Health and the *TRIPS* Amendment all play a role in promoting human rights to public health (inter alia, through affordable access to medication in spite of *TRIPS* patent protection), although relevant jurisprudence shows the limits of the current approach and discussions on broader exceptions and waivers from the *TRIPS Agreement* are ongoing.

Importantly, all these and other WTO rules and disciplines should not be seen first and foremost as obstacles to human rights enforcement, as often asserted by academics and critics among non-governmental organizations. These rules and exceptions (including the necessity and even-handedness standards embodied in *GATT*/*GATS* exceptions) provide positive policy guidance that will render measures intended to respect and enforce human rights standards more targeted and effective by filtering out protectionist aspects. They also may avoid regulatory capture and rent-seeking behavior by domestic industries through lack of evenhandedness in human rights enforcement vis-à-vis exporters and specific exporting countries over others. WTO rules and principles thus foster the use of more efficient and targeted trade policy instruments in pursuing human rights policies.

In this respect, it is important to reiterate that “horizontal” application of measures implementing and enforcing human rights measures will less likely cause concerns as their WTO-consistency than “vertical” human rights measures, i.e., those targeted at specific products, enterprises or economic sectors or in particular countries It is also important for regulators to proceed with coherence and avoid fragmentation in the application and enforcement of various human, labor, social, sustainability, climate change mitigation and environmental rights and respective instruments.

Positive incentive structures for enacting, monitoring and complying with human rights standards (like special preferences or special and differential treatment for countries, sectors or companies that comply with specific human rights standards or human rights instruments generally) are to be preferred over negative sanctioning and disciplining for human rights violations.

Quantitative import bans or restrictions for lack of human rights compliance are often provisionally WTO-inconsistent but could be justified under the above-mentioned exceptions. Generally available production subsidies (including tax reductions, tax breaks and border tax adjustments) for human rights compliant production or processing are can be designed in a WTO-consistent manner and are often most efficient and effective in generating change.

<footnote n="27">WTO, *Agreement on Technical Barriers to Trade*, LT/UR/A-1A/10 (1994), art 2.2, online: <docsonline.wto.org> [perma.cc/P4S2-2US6].</footnote>

<footnote n="28">*Ibid*, art 2.1.</footnote>

<footnote n="29">WTO, *Agreement on the Application of Sanitary and Phytosanitary Measures*, LT/UR/A-1A/12 (1994), online: <docsonline.wto.org> [perma.cc/CW2N-ZLRY] [*SPS Agreement*].</footnote>

<footnote n="30">*TRIPS*, *supra* note 13, arts 7—8. *TRIPS* Articles 7 and 8 are different from *GATT* Article XX/GATS Article XIV insofar as they do not permit derogation from *TRIPS* rules and obligations.</footnote>
# III. The *Subsidies Agreement* as Obstacle to
        or Framework for Fostering Good Governance in Human Rights Enforcement?

Classic WTO subsidies disciplines are narrowly focused through an economic lens. Strict enforcement of subsidy rules absent considerations of human rights is outdated in the face of the legitimate societal policy priorities.

It is common wisdom that the *Agreement on Subsidies and Countervailing Measures*<fnref n="31" /> (*Subsidies Agreement*) seems ill-equipped to accommodate subsidies that pursue human rights-oriented or climate change mitigation objectives. This is surprising because most special and differential treatment incentive structures, and most subsidies nowadays pursue broader public interest objectives or strategic policy goals.

The legal framework needs reform to distinguish better between legitimate human rights inspired subsidies and protectionist subsidies also to align for the sustainability/climate-change nexus. The green box under the *Agreement on Agriculture* offers some food security policy space similar to the green box subsidies in now-expired Article 8 of the *Subsidies Agreement*.<fnref n="32" /> However, there is a need for reform of the *Subsidies Agreement*<fnref n="33" /> to provide more policy space for human rights-oriented (also green, health-promoting and developmental) subsidies beyond the coverage of Article 8, which reflects countries’ policy space priorities of the 1980s. Positive in the existing green box rule book of the *Subsidies Agreement* is the non-discrimination rule requiring making subsidies (including those promoting human rights, environmental protection, sustainability and climate change mitigation) available to all similarly situated companies and possibly countries with common but differentiated responsibilities and respective capabilities.

Strengthening multilateral permissions and conditionalities would reduce the need for or likelihood of punitive responses to subsidization that neglects human rights standards and is not intended to distort trade. Key is also the need for modernized conditionalities because limitless policy space is likely to lead to rent-seeking and subsidy capture by favored industries (also upstream and downstream) in favored target sectors of human rights enforcement including environmental, sustainability, climate change mitigation, labor and social rights).

<footnote n="31">*Agreement on Subsidies*, *supra* note 26.</footnote>

<footnote n="32">*Ibid*, art 8.</footnote>

<footnote n="33">*Ibid*.</footnote>
# —

Finally, WTO law enforcement is badly adapted to production, processing and trading in global and regional supply chains spanning multiple jurisdictions of sovereign States. Likewise, pursuing human rights standards (especially when conceptualized as non-product-related process and production methods) along supply chains is difficult to reconcile and enforce with trade measure tools unless such action spans entire supply chains. At times when multilateral institutions and negotiations stall, and unilateral actions imposed by importing countries, proliferate due to, inter alia, climate change mitigation action through nationally determined contributions, and especially due to geostrategic concerns and rivalry, governments become increasingly incapacitated in pursuing human rights related trade policies. This may leave producers, traders, consumers as the key players in making supply chains resilient in respecting and enforcing human rights.