Over the past decade, international trade law seems to have undergone a redefinition of its aims. Traditionally focused on trade liberalization and economic efficiency, it is increasingly incorporating environmental, social and ethical considerations. Thus, from a trade focused on economic development, whose negative externalities were understood above all in terms of exceptions to the rules of free trade, trade is tending to become a tool for achieving environmental and societal objectives. From this perspective, trade is no longer seen systematically as an obstacle, but as a means of achieving certain objectives. In January 2022, the Director General (DG) of the WTO put it this way:

> [i]f you take one thing away from what I say here today, please make it this: trade is part of the solution to the challenges we face, far more than it is part of the problem.
> Across every dimension of sustainability—economic development, social inclusion, and environmental conservation—leveraging the full power of trade and trade policy will help us achieve our goals more effectively and efficiently.<fnref n="1" />

Trade is now recognized, even by critical players, as a tool that can be mobilized to advance fundamental rights, the environment and inclusion. International organizations, governments, businesses and civil society groups are all seeking, to varying degrees, to incorporate these objectives into trade standards.

This transformation can be described as a transition towards more sustainable, responsible and inclusive trade, i.e., trade that is more respectful of the environment and of the rights of those involved throughout the supply chain, with a view to interpersonal, global and intergenerational equity. On its behalf, governments are taking initiatives at national, plurilateral and multilateral levels. Of course, this evolution is not without its problems. A spontaneous, fragmented and reactive movement, the transition is taking place without a common vision, making it both fruitful and a source of normative fragmentation and new forms of exclusion.

This article takes a critical look at the ongoing transition, which holds the promise of more sustainable, responsible, and inclusive trade, but also raises new challenges that may undermine its very objectives. This transition deserves closer examination, as it unfolds across three interrelated levels of governance: the multilateral level (I), the plurilateral or regional level (II), and the national level (III). The final section (IV) reflects on the risks of normative fragmentation and the growing exclusion of entire groups of countries from global trade flows, while considering the role of law in shaping a more coherent, equitable, and resilient trade architecture.

<footnote n="1">WTO, *DG Okonjo-Iweala tells sustainability conference “trade is part of the solution to challenges we face”* (28 January 2022), online: <wto.org> [perma.cc/6X2U-65X5] [WTO, *DG Okonjo-Iweala*].</footnote>
# I. The Multilateral Level: The WTO and the “Discovery” of its Vocation for Sustainable
        Development

The WTO has long been criticized for being closed to certain issues, notably environmental and social ones. However, although late in coming and probably still insufficient, an unprecedented evolution has marked the last few years of work at the WTO, to the point where we can sometimes wonder whether the WTO has not suddenly changed its vocation. This change probably has, at least in part, to do with the way in which WTO DG Ngozi Okongo-Iweala associates the objective of sustainable development with the WTO’s raison d’être:

> [s]ustainable development has been part of the WTO since day one. Using trade to promote sustainable development is literally written into the preamble of the WTO’s founding agreements from 1994. Alongside job creation and enhanced living standards, sustainability is seen as a key means by which trade and the WTO can help improve people’s lives.<fnref n="2" />

As a result, much of the work undertaken in Geneva not only takes sustainable development into account but increasingly places it at the very heart of the agenda. Indeed, a glance at the WTO’s agenda reveals that countries are working on ever more specific issues, such as plastic pollution,<fnref n="3" /> the circular economy,<fnref n="4" /> environmental goods and services,<fnref n="5" /> gender equality<fnref n="6" /> and fossil fuel subsidies.<fnref n="7" /> Already in 2022, nearly 90 countries—representing more than 85% of world trade—were taking part in various sustainability discussions.<fnref n="8" />

The Organization’s new vocation has been particularly visible in the climate field since the 2022 COP. At this event, the WTO was actively involved alongside other institutions, notably through the creation of a “Trade Pavilion” and the organization of the first Trade Day within a COP.<fnref n="9" /> It’s no coincidence that the *2022 World Trade Report* has been devoted entirely to the issue of trade and climate, addressing issues such as decarbonization, carbon pricing and adaptation,<fnref n="10" /> report described by Gabrielle Marceau as “*véritable trésor de recherches sur les diverses facettes de ces deux sujets.*”<fnref n="11" /> The following year, the Deputy Director-General, Jean-Marie Paugam, stated that we are witnessing “a new trade narrative based on […] climate and sustainability.”<fnref n="12" /> The WTO’s chief economist insisted on the need to discuss a global carbon tax, while DG Okongo-Iweala said: “we cannot get to net-zero without trade because it is indispensable for spreading low-carbon technology to everywhere it is needed.”<fnref n="13" /> In the same year, the WTO hosted an unprecedented forum on decarbonization standards in the steel sector, bringing together governments, international organizations and industry, thus consolidating its role as a platform for dialogue.<fnref n="14" />

WTO members are now combining trade and the environment on a daily basis. What’s more, they are using international trade law to better protect the environment and certain social aspects. To this end, the Geneva Ministerial of 2022 made its mark with the adoption of an environmental and social treaty—the *Agreement on Fishing Subsidies*<fnref n="15" />—considered to be a decisive step towards achieving a United Nations sustainable development goal.<fnref n="16" /> With this new treaty, once in force, WTO Members commit to restricting fisheries subsidies that are harmful to marine biodiversity, while enabling the poorest populations—and the women often responsible for this daily task—to continue to obtain the marine resources essential to their survival.

Thus, despite its reputation as a fortress of free trade, the WTO is becoming increasingly open to issues that do not appear to fall solely within the scope of trade liberalization. As Gabrielle Marceau observed in 2024, “[l]’*Organisation est devenue* *un moteur essentiel pour le développement durable et un forum incontournable*.”<fnref n="17" />

Although this transition marks a willingness to take non-trade objectives into account in the negotiations and work of WTO members, it nevertheless remains limited. Indeed, the human rights dimension, inherent in the concept of sustainable development, is only rarely taken into account. Thus, to date, this transition has essentially revolved around the “environment” pillar of sustainable development, with a real and welcome focus on intergenerational equity. However, very little attention has been paid to the “social” pillar, notably human rights and labor standards.

It is also worth mentioning that although these “overtures are very much encouraging”, we’re a long way from a substantial change in WTO rules, since “the member states who do not give up their sovereign rights easily.”<fnref n="18" /> In fact, discussions are mainly technical and exploratory. Their primary aim is to promote collective learning, the sharing of experience and better mutual understanding. States are not yet negotiating new rules. Of course, the mere fact that the United States, China, the European Union, Vanuatu and Turkey are engaged in dialogue on these issues is already a major step forward. The fact remains, however, that given the sensitive issues at stake, progress may appear slow, or even insufficient for many.

Finally, while we welcome the shift towards non-trade issues, there is a reasonable fear that environmental, inclusion and human rights issues will be sucked in by the logic of trade. In this respect, although it may be tempting to move certain issues forward in a forum such as the WTO, the role of specialized institutions and organizations remains fundamental. This underscores the importance of collaboration between these organizations and the WTO.

<footnote n="2">WTO, *DG Okonjo-Iweala*, *supra* note 1.</footnote>

<footnote n="3">WTO, *Plastics pollution and environmentally sustainable plastics trade*, online: <wto.org> [perma.cc/39MA-N3AE].</footnote>

<footnote n="4">WTO, *Trade and environmental sustainability*, online: <wto.org> [perma.cc/X8PQ-UGEU] [WTO, *Trade and environmental sustainability*] WTO, *Trade and Environmental Sustainability Structured Discussions (TESSD)*, WTO Doc WT/MIN(24)/11/Add.4 (2024), online: <docs.wto.org> [perma.cc/3G4W-ADVF] [WTO, *Trade and Environmental*].</footnote>

<footnote n="5">WTO, *Trade and environmental sustainability*, *supra* note 4; WTO, *Trade and Environmental*, *supra* note 4*.*</footnote>

<footnote n="6">WTO, *Women and Trade*, online: <wto.org> [perma.cc/66KU-VHB6].</footnote>

<footnote n="7">WTO, *Fossil fuel subsidy reform*, online: <wto.org> [perma.cc/S4BZ-ZC29].</footnote>

<footnote n="8">Anabel González, *Trade Thoughts, from Geneva* (12 December 2022), online (blog): <wto.org> [perma.cc/KFK9-6Z4Y].</footnote>

<footnote n="9">WTO, *WTO Secretariat to highlight role of trade policy for climate action at COP28 in Dubai* (9 November 2023), online: <wto.org> [perma.cc/3WQE-M529]; WTO, *Pavillon du commerce*, online: <wto.org> [perma.cc/TN2N-YKFJ].</footnote>

<footnote n="10">OMC, *Rapport sur le commerce mondial 2022: Changement climatique et commerce international*, (Genève: OMC, 2022).</footnote>

<footnote n="11">“[A] veritable treasure trove of research on the various facets of these two subjects” [translated by author] (Gabrielle Marceau, Maeva Obiang Ndong & Leon Seidl, “Les Nouveaux Rôles de l’OMC” in Geneviève Dufour & Richard Ouellet, eds, *Réforme de l’OMC: vers un nouveau multilatéralisme économique* (Sherbrooke: Presses de la SQDI, 2024) 11 at 19, online (pdf): <pressesdelasqdi.org> [perma.cc/2BBL-3RFS]).</footnote>

<footnote n="12">WTO, *DDG Paugam: Trade is becoming more political, more sustainable, more traceable* (3 October 2023), online: <wto.org> [perma.cc/QDA5-UMNT].</footnote>

<footnote n="13">WTO, *DG Okonjo-Iweala: We need to use every weapon in our arsenal to fight the climate crisis* (4 December 2023), online: <wto.org> [perma.cc/6N29-SUJ7].</footnote>

<footnote n="14">Jean-Marie Paugam, *Trade Forum for Decarbonization Standards: Promoting coherence and transparency in the steel sector* (9 March 2023), online: <wto.org> [perma.cc/VA6R-PW73].</footnote>

<footnote n="15">WTO, *Agreement on Fisheries Subsidies*, WTO Dec WT/L/1144 (2022).</footnote>

<footnote n="16">UN, “SDG target 14.6” aims to: “prohibit certain forms of fisheries subsidies which contribute to overcapacity and overfishing, eliminate subsidies that contribute to illegal, unreported and unregulated fishing and refrain from introducing new such subsidies, recognizing that appropriate and effective special and differential treatment for developing and least developed countries should be an integral part of the World Trade Organization fisheries subsidies negotiation.”</footnote>

<footnote n="17">“The Organization has become an essential driving force for sustainable development and a key forum for the promotion of sustainable development” [translated by author] (Marceau, Obiang Ndong & Seidl, *supra* note 11 at 14)</footnote>

<footnote n="18">Raymond Saner, “The WTO, climate change and sustainable development” (2024) 27:4 Intl J Sustainable Development 501 at 514.</footnote>
# II. The Plurilateral Level: Regional Trade Agreements as (Aspirational) Vessels of
        Normative Ambition

Regional trade agreements are also increasingly seen by governments as tools for achieving certain non-trade objectives. Indeed, states are increasingly including human rights and human rights linked to the environment clauses in the free trade agreements (FTAs) they negotiate.<fnref n="19" /> In this respect, the practice has intensified, diversified and become more widespread. According to one study, 308 different environmental standards have been listed in 630 free trade agreements concluded since 1947.<fnref n="20" /> The same study showed that more recent agreements contain more. The *Comprehensive and Progressive Agreement for Trans-Pacific Partnership*<fnref n="21" /> is a good example: it alone contains a 26-pages chapter dedicated to environmental protection.<fnref n="22" /> Another study found that 61% of FTAs concluded between 2010 and 2015 contained labour standards, an increase of 21% compared to agreements concluded in the 2000s.<fnref n="23" /> The FTAs of recent years have innovated by diversifying the standards included.<fnref n="24" /> Several FTAs refer to gender equality and the rights of indigenous peoples. For example, the *Free Trade Agreement between the United Kingdom and New Zealand* (2022) includes a right to digital inclusion for the Maori people, women and rural populations.<fnref n="25" /> States are also resorting to FTAs in unprecedented ways. One example is Switzerland, whose agreement with Indonesia stipulates that palm oil must be produced using environmentally responsible practices, failing which a customs surcharge will be imposed.<fnref n="26" /> The practice is also becoming more widespread, as even agreements between developing countries are no exception to the trend. For example, the 2018 African Continental Free Trade Area refers to food security, democracy, the rule of law, gender equality, and the promotion and protection of cultural diversity.<fnref n="27" /> Clearly, this trend is growing and accelerating.<fnref n="28" /> But is it legally evolving in such a way that environmental and human rights standards are actually better implemented at national level? In other words, do these clauses have any real normative impact?

According to many, this trend towards including clauses in FTAs would represent an unprecedented innovation to ensure better implementation of human rights and environmental norms. The literature starts from the observation that there is a gap in the implementation of international law. Indeed, it is widely acknowledged that the field of international human rights law is struggling to ensure real implementation of standards. Subjected to a multiplication of compartmentalized sub-systems, and to no real coordination,<fnref n="29" /> dependent on the will of the States,<fnref n="30" /> human rights’ universal protection system is struggling to make progress in terms of implementation. With regard to forced labour, the *Palermo Protocol*<fnref n="31" /> has no international monitoring body capable of receiving complaints<fnref n="32" /> when it’s clear that the International Labour Organization (ILO) is no longer enough.<fnref n="33" /> International environmental law also lacks effectiveness due to its institutional deficiency<fnref n="34" /> and the sectorization, fragmentation, imprecision and lack of binding force of its normative corpus.<fnref n="35" /> So, despite a “*frénésie normative*”<fnref n="36" /> formalized in 2 300 international treaties,<fnref n="37" /> international environmental law has failed to protect the environment. In his report on the shortcomings of international environmental law, the Secretary-General of the United Nations concluded that this branch of law suffered from a lack of effectiveness and enforcement.<fnref n="38" /> Against this backdrop, everyone is looking for ways to make standards more effective.

Hence, where international environmental or human rights law fails, international trade law would be seen as capable of compensating for the lack of better implementation. International trade law is often seen as one of the most effective areas of international law, thanks to its effective and binding dispute settlement mechanisms. For many, therefore, the inclusion of human rights or environmental protection clauses within FTAs themselves would be a lever for making compliance with standards more concrete, for example, by giving concrete form to commitments made in the context of an international convention<fnref n="39" /> and submitting them to a binding dispute settlement body. The European Union (EU) has been using this strategy since 1995.<fnref n="40" /> The USA and Canada do the same, but unlike the EU, which uses a strategy of collaboration and dialogue, these two countries provide for the application of economic sanctions in the event of non-compliance with the non-market values included in the FTAs. For some, this practice represents a revolution and is changing the face of FTAs.<fnref n="41" /> These clauses, which are subject to control through dispute settlement mechanisms, increase the normative scope of standards.<fnref n="42" /> In the case of genetic resources, some authors have even observed that the clauses included in the FTAs go beyond what the conventions provide for in terms of genetic resources.<fnref n="43" /> Thus, FTAs represent an added value that makes it possible to control the violation of standards.<fnref n="44" /> They would also help to exert political pressure on the government while improving dialogue,<fnref n="45" /> in addition to empowering civil society, a key player in the effective implementation of standards.<fnref n="46" /> In this way, FTAs would provide a unique opportunity to enforce international labour law,<fnref n="47" /> women’s emancipation,<fnref n="48" /> the rights of indigenous peoples, and offer various means of improving the situation of human rights and human rights related to the environment through financial and technical assistance, or diplomatic pressure. In short, the inclusion of clauses in FTAs would enable better implementation of human rights and environmental protection standards.

However, for regional trade agreements to compensate for the failure of the international environmental or human rights law system, the clauses must meet certain quality criteria.

The intensification, diversification and generalization of the practice of including human rights and environmental protection clauses in FTAs now enables us to take a step back and assess whether the practice of inclusion really does lead to better implementation of human rights. Moreover, even those authors who recognize the virtues of such a practice identify shortcomings. Among these, failings in the legal construction of clauses stand out. Poorly drafted clauses dilute standards, leading to a race to the bottom,<fnref n="49" /> few are really subject to an effective dispute resolution mechanism<fnref n="50" /> and they “*présentent un langage d’une portée limitée et engendrent souvent des débats juridiques qui empêchent leur mise en oeuvre*.”<fnref n="51" /> A report on the state of women’s clauses in FTAs showed that most of them were diluted by other social, intellectual property or agricultural considerations.<fnref n="52" />

In short, while States are using regional trade agreements to achieve more sustainable, responsible and inclusive trade, it must be said that the technique of drafting clauses still needs to be fine-tuned. Although there is no such thing as perfect normative clarity,<fnref n="53" /> poorly drafted clauses have a reduced normative scope and risk not being implemented by the competent authorities. This is what some authors call the performative force of the norm:<fnref n="54" /> the quality of a clause gives it the chance to become effective. Admittedly, a clause can be deliberately poorly drafted: indeed, in some cases, for example, to achieve consensus, “*l’ambiguïté peut être stratégique*.”<fnref n="55" /> Nonetheless, the natural prerequisite for States to implement a treaty standard is its quality.

<footnote n="19">Rafael Leal-Arcas, “New Frontiers of International Economic Law: the Quest for Sustainable Development” (2018) 40:1 U Pa J Intl L 83 at 87; Karolina Milewicz et al, “Beyond Trade: The Expanding Scope of the Nontrade Agenda in Trade Agreements” (2018) 62:4 J Conflict Resolution 743; Marva Corley-Coulibaly, Ira Postolachi & Netsanet Tesfay, “A Multi-Faceted Typology of Labour Provisions in Trade Agreements: Overview, Methodology and Trends” (Geneva: International Labour Organization, 2021), online: <ilo.org> [perma.cc/E95J-DJ2U]; Jean-Frédéric Morin, Andreas Dür & Lisa Lechner, “Mapping the Trade and Environment Nexus: Insights from a New Data Set” (2018) 18:1 Global Envtl Politics 122; Jean-Frédéric Morin & Mathilde Gauquelin, “Trade Agreements as Vectors for the Nagoya Protocol’s Implementation” (2016) Centre for International Governance Innovation, Working Paper No 115, online: <cigionline.org> [perma.cc/S2AL-FC7J].</footnote>

<footnote n="20">Morin, Dür & Lechner, *supra* note 19 at 123.</footnote>

<footnote n="21">*Comprehensive and Progressive Agreement for Trans-Pacific Partnership*, 8 March 2018.</footnote>

<footnote n="22">James Hollway, Jean-Frédéric Morin & Joost Pauwelyn, “Structural conditions for novelty: the introduction of new environmental clauses to the trade regime complex” (2020) 20:1 Intl Envtl Agreements: Politics, L & Econs 61 at 63.</footnote>

<footnote n="23">Damian Raess & Dora Sari, “Labor Provisions in Trade Agreements (LABTA): Introducing a New Dataset” (2018) 9:4 Global Pol’y 451 at 454—55.</footnote>

<footnote n="24">Jean-Frédéric Morin, Joost Pauwelyn & James Hollway, “The Trade Regime as a Complex Adaptive System: Exploration and Exploitation of Environmental Norms in Trade Agreements” (2017) 20:2 J Intl Econ L 365 at 380.</footnote>

<footnote n="25">*Free Trade Agreement between the United Kingdom of Great Britain and Northern Ireland and New Zealand*, 22 February 2022, art 15.2(d).</footnote>

<footnote n="26">*Comprehensive Economic Partnership Agreement (CEPA)*, 16 December 2018 (EFTA States and Indonesia), art 8.10.</footnote>

<footnote n="27">*Agreement Establishing the African Continental Free Trade Area*, 21 March 2018, Preamble (entry into force 30 May 2019), online: <au.int> [perma.cc/DC54-E6RS].</footnote>

<footnote n="28">Rohini Acharya, “Regional trade agreements: recent developments” in Rohini Acharya, ed, *Regional Trade Agreement and the Multilateral Trading System*(Cambridge, UK: Cambridge University Press, 2016) 1.</footnote>

<footnote n="29">Emmanuel Decaux & Olivier de Frouville, *Droit international public* (Paris: Dalloz, 2014) at 318.</footnote>

<footnote n="30">Ethan Gren, “The End of Human Rights: A Pragmatic Rejoinder” (2020) 7:1 North East L Rev 56 at 60.</footnote>

<footnote n="31">*Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime*, 15 November 2000, 2237 UNTS 319.</footnote>

<footnote n="32">Kristine Plouffe-Malette, “De l’OIT à l’OMC. L’interdiction d’importation des produits intégrant le travail forcé et les pires formes de travail des enfants: un appel à la morale?” (2019) 32:1 RQDI 239 at 244.</footnote>

<footnote n="33">Cameron Rempel, “A New Approach to International Labour Disputes and Regional Trade Agreements” (2018—2019) 5:4 McGill J Dispute Resolution 85 at 91—94.</footnote>

<footnote n="34">Nils Meyer-Ohlendorf, “Would a United Nations Environment Organization Help to Achieve the Millennium Development Goals?” (2006) 15:1 RECIEL 23 at 26; Loic Vatna, “Regard prospectif sur la gouvernance international du développement durable” (2012) 24:2 RQDI 217.</footnote>

<footnote n="35">Louis Jacobus Kotzé, “International Environmental Law’s Lack of Normative Ambition: an Opportunity for the Global Pact for the Environment?” (2019) 16 J European Envtl & Planning L 213 at 219; Nora Ait Aissi Paillon, “Le *Pacte Mondial pour l’environnement*: un appui à la gouvernance mondiale de l’environnement?” (2018) 31:2 RQDI 71 at 82.</footnote>

<footnote n="36">“[N]ormative frenzy” [translated by author] (Sandrine Maljean Dubois, “La quête d’effectivité du droit international de l’environnement” in Delphine Misonne, ed, *À quoi sert le droit de l’environnement*? (Bruxelles: Bruylant, 2018) 251 at 255).</footnote>

<footnote n="37">Ronald B Mitchell, “International Environmental Agreements (IEA) Database Project”, online: <iea.ulaval.ca> [perma.cc/G4LY-ZAG7].</footnote>

<footnote n="38">*Gaps in international environmental law and environment-related instruments: towards a global pact for the environment*, UNGA, 73<sup>th</sup> Sess, UN Doc A/73/419 (2018) at para 7.</footnote>

<footnote n="39">Marco Bronckers & Giovanni Gruni, “Retooling the Sustainable Standards in EU Free Trade Agreements” (2021) 24:1 J Intl Econ L 25 at 33.</footnote>

<footnote n="40">Billy Alexis Melo Araujo, *The EU Deep Trade Agenda: Law and Policy* (Oxford: Oxford University Press, 2016) at 228—29.</footnote>

<footnote n="41">Geraldo Vidigal & Kathleen Claussen, eds, *The Sustainability Revolution in International Trade Agreements*(Oxford: Oxford University Press, 2024) at ch 1.</footnote>

<footnote n="42">Lore Van den Putte, “EU Bilateral Trade Agreements and the Surprising Rise of Labour Provisions” (2015) 31:3 Int J Comp Lab L & Ind Rel 263 at 268.</footnote>

<footnote n="43">Morin & Gauquelin, *supra* note 19 at 2—4.</footnote>

<footnote n="44">Csongor István Nagy, “Trade Interests and Extraterritorial Value Considerations in New-Generation Free Trade Agreements: The Psychology of Redirection” (2020) 19:2 J Int’l Bus & L 128 at 159.</footnote>

<footnote n="45">Kateřina Hradilová & Ondřej Svoboda, “Sustainable Development Chapters in the EU Free Trade Agreements: Searching for Effectiveness” (2018) 52:6 J World Trade 1019 at 1028.</footnote>

<footnote n="46">Madelaine Moore & Christoph Scherrer, “Conditional or Promotional Trade Agreements—Is Enforcement Possible? How International Labour Standards Can Be Enforced through US and EU Social Chapters” (Singapore: Friedrich Ebert Stiftung, 2017) at 7—8.</footnote>

<footnote n="47">Rempel, *supra*note 33 at 91.</footnote>

<footnote n="48">Anna Hutchens, “Empowering Women through Fair Trade? Lessons from Asia” (2010) 31:3 Third World Quarterly 449.</footnote>

<footnote n="49">Hradilová & Svoboda, *supra* note 45 at 1019—20.</footnote>

<footnote n="50">Jean-Frédéric Morin & Sikina Jinnah, “The untapped potential of preferential trade agreements for climate governance” (2018) 27:3 Envtl Politics 541 at 552, online: <chaire-epi.ulaval.ca> [perma.cc/M2JE-TULH].</footnote>

<footnote n="51">“[H]ave a limited scope and often give rise to legal debates that prevent their implementation” [translated by author] (Michèle Rioux et Sylvain Zini, “Arrimer ouverture commerciale et progrès social” in Sylvain Zini, Éric Boulanger & Michèle Rioux, *Vers une politique commerciale socialement responsable dans un contexte de tensions commerciales* (Québec: Presses de l’Université du Québec, 2021) 289 at 289).</footnote>

<footnote n="52">Jose-Antonio Monteiro, “Gender-Related Provisions in Regional Trade Agreements” (2018) WTO Economic Research and Statistics Division, Working Paper No ERSD-2018-15 at 2.</footnote>

<footnote n="53">Eric Millard, “Les limites des guides de légistique: l’exemple du droit français” in Alexandre Flückiger & Christine Guy-Ecabert, eds, *Guider les parlements et les gouvernements pour mieux légiférer: Le rôle des guides de légistique* (Geneva: Schulthess, 2008) 117 at 127.</footnote>

<footnote n="54">Norberto Bobbio, *Essais de théorie du droit: recueil de textes* (Paris: Bruylant, 1998) at 65.</footnote>

<footnote n="55">“[A]mbiguity can be strategic” [translated by author] (Alexandre Flückiger, *(Re)faire la loi*:*Traité de légistique à l’ère du droit souple* (Berne: Stämpfli, 2019) at 528).</footnote>
# III. The National Level: A Standard-Setting Laboratory and a Vector of Normative
        Imbalance

Probably in response to multilateral inertia in a number of areas, many states have adopted unilateral measures that link trade and sustainability. Over the past decade, these national trade strategies with an environmental or social flavour have literally multiplied: carbon regulation,<fnref n="56" /> border carbon adjustment mechanisms (CBAM),<fnref n="57" /> corporate duty of care standards,<fnref n="58" /> environmental requirements in public procurement,<fnref n="59" /> ban on plastic products,<fnref n="60" /> deforestation regulation,<fnref n="61" /> etc.

A particular feature of these measures is their extraterritorial effect. Indeed, to gain access to the markets of countries adopting such measures, foreign companies have to change the way they do business. Admittedly, this is not an extraterritorial effect in the classic sense of the term in international law, since these normative measures do not oblige foreign states to modify their own normative frameworks. However, the objective is clear: these measures force foreign companies to adjust their practices, failing which the commercial relationship will be broken off.

Of course, states have always adopted environmental measures to regulate products imported into their territory. In many cases, these measures had the effect of restricting market access if no action was taken. What we are witnessing today, however, is a new phenomenon: states are using trade not only to protect their environment, natural resources or population, but also to bring about changes in the practices of foreign companies. Former Deputy Director-General, Anabel González, described this development in the following terms:

> [f]or sure, WTO members have always been able to adopt the environmental policies of their choice, provided they are not used as disguised means of protectionism. And they have. Between 2009 and 2020, governments notified to the WTO upwards of 4 600 trade-related climate measures in areas like energy conservation and efficiency, reforestation and much more. But it is no longer just about WTO members having space to implement domestic actions; it is also about proactively using trade, trade policy and trade cooperation to achieve environmental goals.<fnref n="62" />

These measures all pursue a legitimate objective and respond to challenges of considerable importance. No one can deny the importance of taking action in the face of climate change, biodiversity loss or violations of fundamental labor rights and principles.

However, they do pose real concerns. We will raise two of them.

Firstly, while these national strategies pursue noble objectives of environmental and human rights protection, they are sometimes applied to the detriment of inclusive trade. The latter refers here both to a notion of micro-inclusivity that covers groups who traditionally enjoy little or no benefit from trade and who are traditionally excluded from trade policy-making and the normative production process, such as women, indigenous populations and micro, small, and medium enterprises (MSMEs).<fnref n="63" /> The notion also concerns macro-inclusivity, which refers to regions of the world or groups of countries, such as the least developed countries or developing countries. Very often, national strategies have negative impacts on both levels of inclusiveness. This may be due to the technical requirements that the new measures impose. For example, the new CBAM will require greenhouse gas emissions to be accounted for and reported.<fnref n="64" /> Vigilance laws usually require exporters to be aware of all risks throughout their supply chain. Considering that 90% of the world’s companies are MSMEs,<fnref n="65" /> a majority are unable to comply with these measures due to a lack of technical knowledge, resources or funds to begin the necessary transition. This negative impact is obviously exacerbated for companies from developing countries and LDCs, which risks marginalizing them even further in the international trade game.

Secondly, the multiplication of these national measures leads to a worrying fragmentation of the regulatory framework. This proliferation of standards increases the complexity faced by exporting companies. Here again, MSMEs are the hardest hit, lacking the technical or financial resources to ensure compliance with a set of heterogeneous and constantly evolving standards. Yet most of these companies act in good faith and express a genuine desire to contribute to more sustainable trade. Today, however, they are demanding greater simplicity and predictability. The current context, marked by signs of regulatory pushback—be it the conclusions of the Draghi report on the competitiveness of European industry,<fnref n="66" /> the setbacks observed in France and Germany, or the anticipated protectionist stance of a possible Trump 2.0 administration—suggests that recent standardization efforts are running out of steam.

<footnote n="56">The OECD’s 2024 report already listed 79 countries that had adopted a carbon pricing measure, and anticipated an increase in this number over the next 5 years: “[c]urrently, an increase in the introduction of new carbon pricing instruments is expected over the next five years” (OECD, “Pricing Greenhouse Gas Emissions 2024: Gearing Up to Bring Emissions Down” (Paris: OECD, 2024) at 7, online (pdf): <oecd.org> [perma.cc/8TQC-NUDK]).</footnote>

<footnote n="57">European Commission, “Carbon Border Adjustment Mechanism (CBAM)”, online: <taxation-customs.ec.europa.eu> [perma.cc/3DJD-XMXG].</footnote>

<footnote n="58">Since 2000, researcher Elise Groulx has regularly been (2000, 2010, 2013, 2019 and 2022) mapping vigilance initiatives adopted at both national and international level. Her “Galaxy of norms” includes all laws, guidelines, regulations, frameworks, etc., of general or sectoral application. Her work speaks for itself: there is a growing tendency for governments to use legal instruments to regulate transnational corporate activities (Elise Groulx, “Galaxy of Norms 2000—2022” (2022), online: <sancroft.com> [perma.cc/KND3-859C]; Elise Groulx Diggs, Milton C Regan & Beatrice Parance, “Business and Human Rights as a Galaxy of Norm” (2019) 50:2 Geo J Intl L 309.</footnote>

<footnote n="59">The public procurement sector is little studied. Yet public procurement accounts for an average of 14% of GDP in developed countries, and much more in developing countries. As a result, governments have been quick to recognize that public procurement is a vehicle of choice for achieving certain environmental and social objectives, as well as often enabling them to promote their local economies. By 2022, all OECD countries except Mexico had adopted a normative measure to regulate this sector (OECD, “Harnessing Public Procurement for the Green Transition: Good Practices in OECD Countries” (Paris: OECD, 2024) at 14, 131, online: <oecd.org> [perma.cc/V94A-EQD4]; Geneviève Dufour & Marianne Dionne, “L’approvisionnement responsable: quelle marge de manoeuvre pour les acheteurs publics au regard de la nouvelle mouture de la LCOP?” in Barreau du Québec, *Récents développements en droit des marchés publics* (Cowansville, QC: Yvon Blais, 2024) 143).</footnote>

<footnote n="60">Around the world, states (but also cities, provinces, etc.) are adopting various regulations to ban or limit the use of plastic. In 2024 alone, UNEP advised 30 countries that have regulated plastic (UNEP, “Taking on plastic pollution”, online: <unep.org> [perma.cc/RC2A-66HU]).</footnote>

<footnote n="61">European Parliament, News Release, “Deforestation law: agreement with Council gives companies extra year to comply” (3 December 2024), online: <europarl.europa.eu> [perma.cc/QCW3-AGMH].</footnote>

<footnote n="62">González, *supra* note 8.</footnote>

<footnote n="63">Patricia Goff, “Inclusive Trade: Justice, Innovation, Or More of the Same?” (2021) 35:2 Ethics & Intl Affairs 273 at 275.</footnote>

<footnote n="64">Ziva Buzeti, “The EU Carbon Border Adjustment Mechanism (CBAM) explained” (20 November 2014), online: <circularise.com> [perma.cc/NNA5-ZEA6].</footnote>

<footnote n="65">World Bank, “Small and Medium Enterprises (SMEs) Finance” (last modified 16 October 2019), online: <worldbank.org> [perma.cc/8Y4E-3JKT].</footnote>

<footnote n="66">Mario Draghi, *The future of European competitiveness* (Luxembourg: European Commission, 2025), online: <commission.europa.eu> [perma.cc/YB4N-VQ75].</footnote>
# IV. Conclusion: Can a Three-Level Governance Framework Deliver Sustainable
        Trade?

As we can see, the transition to sustainable, responsible and inclusive trade takes place at three levels. At multilateral, plurilateral and national levels, governments are devoting time, energy and money to transforming international trade law to meet environmental and human rights protection objectives. Things are moving as never before.

At multilateral level, whether at the WTO or within other international organizations (ILO, WHO, Human Rights Committee, etc.), the trade weapon is perceived as a tool, or even a lever, capable of taking the implementation of certain standards even further. For example, historically, the issue of forced labor was discussed during the negotiation of the WTO*Fisheries Subsidies Agreement*<fnref n="67" /> as well as during the negotiation of a binding legal instrument on fundamental rights and transnational corporations within a working group set up by the UN Human Rights Council.<fnref n="68" />

At the plurilateral level, although the technique needs to be perfected, states use trade agreements in the same way: they become tools for achieving non-trade objectives.

At national level, in response to the slowness of multilateral negotiations, or in reaction to the inaction of other States, the major economic players—but not only—do not hesitate to adopt national measures to prevent unsustainable imports from entering their territory, forcing other countries to regulate in their turn, failing which their companies will find themselves excluded from the market. The European Union has mastered the art, to the point of becoming a “normative power” in the field.<fnref n="69" />

In short, the current trend is simple: it seems that trade can no longer be conducted without taking environmental and social considerations into account. What’s more, the achievement of environmental and social objectives seems to be motivating the adoption of new rules for international trade.

The virulent protests of the 1990s and 2000s, notably those in Seattle, Genoa and Cancún, denounced trade as a brake on the realization of human rights, environmental protection and the promotion of inclusion. Of course, not all the promises of trade have been kept, and a lot of trade policies still too often undermine these objectives. However, a shift has taken place. Trade is no longer seen solely as an obstacle, but increasingly as a lever. Several non-governmental organizations have softened their stance, preferring to engage in dialogue and influence the rules rather than reject them outright.<fnref n="70" /> Popular mobilizations against international trade are becoming rarer, and even actors historically critical of the WTO or certain trade agreements have come to defend them—at least in part—when multilateralism itself is perceived to be under threat, as was the case in response to the unilateral trade measures adopted during the first Trump presidency.<fnref n="71" /> In short, there seems to be emerging agreement that trade law can, under certain conditions, contribute to more sustainable trade.

This development is welcome—indeed, it appears both timely and necessary. After all, what is the value of free trade rules if the world is collapsing under the weight of a triple environmental crisis, if vast segments of the global population remain excluded from its benefits, and if those who produce the goods cannot afford to consume them? Admittedly, the core purpose of international trade law is to liberalize exchanges, secure commercial relations, and provide predictability for economic operators. While these objectives remain essential, they lose much of their meaning if disconnected from the broader framework of international law—a legal order that, as Emmanuelle Jouannet has compellingly argued, pursues two fundamental aims: the protection of state sovereignty and the promotion of human well-being. It is this second dimension, too often overlooked in the field of trade, that must be reclaimed.<fnref n="72" />

So, although efforts appear belated and insufficient, they do mark a paradigm shift: a transition is taking place. As such, the law is in a privileged position: it can be a transformative tool, but it can also slow down or even prevent the achievement of truly sustainable, responsible and inclusive trade. At a time when change is underway, we need to ask ourselves whether the law is taking the right paths, and whether any of them should be privileged. In other words, can the advent of more sustainable, responsible and inclusive trade really be achieved through three-tier governance?

In this respect, it has to be said that the current transition to sustainable, responsible and inclusive trade does not follow a linear trajectory or a coherent normative framework. It is developing in a fragmented, often improvised way, according to the political, economic or geopolitical priorities of the moment, resulting in a tangle of disparate measures with sometimes contradictory effects. The multiplicity of areas of normative production raises fears of a fragmentation of trade relations, leading to a loss of legal predictability for economic operators and further marginalizing certain states or social groups. Fragmented governance compromises the legibility of the law and the coherence of public policies. The challenge is to create bridges, coordination mechanisms and safeguards to ensure overall coherence.

In January 2022, DG Okongo-Iweala was already relying on cooperation and multilateralism to coordinate the use of trade as a tool for achieving sustainable development objectives in a spirit of intergenerational equity:

> international cooperation can help ensure that efforts to put a price on carbon do not lead to avoidable business costs and trade frictions, or place disproportionate burdens on poor countries. Nearly 70 different carbon pricing schemes are now in force globally, with different sectoral coverage and wildly varying prices—from less than $ 1 per ton of CO2 in Poland and Ukraine to more than $ 130 in Sweden. Canada is planning to increase its carbon price from C $ 50 per tonne this year to C $ 170, currently worth US $ 135, in 2030. This fragmentation raises compliance costs and uncertainty for the private sector—and weighs heaviest on small businesses.<fnref n="73" />

In this context, the multilateral trading system—though more fragile than ever—emerges as the only viable path to prevent the current normative fragmentation from triggering a regulatory backlash of historic proportions. Now that national and plurilateral frameworks have served, often effectively, as experimental spaces, and given that the movement toward sustainability is unlikely to be reversed, attention must return to the multilateral level. Especially so, as the extraterritorial impacts of some of these measures are already proving potentially harmful for certain actors, particularly the most vulnerable. By defining common rules on structuring issues—such as carbon taxation, the fight against deforestation, plastic pollution or the duty of care—governments could contain the scattering of standards, ensure inclusive mechanisms and reinforce the legal security of economic players.

Despite all the good intentions in the world, sustainable, responsible and inclusive trade cannot be decreed. In an integrated world, it is built collectively through demanding, coordinated legal work, open to a plurality of voices. The current transition is both a historic opportunity and a test of resilience for trade law. It remains to be seen whether we can collectively take the right path.

<footnote n="67">Finally, the reference to forced labor was removed from the text of the agreement (WTO, “Fisheries subsidies chair introduces draft text, seeks members’ views at fifth ‘Fish Week’”, (18 September 2023), online: <wto.org> [perma.cc/J39T-PUFH]; Global Affairs Canada, News Release, “Canada reaffirms its commitment to achieving WTO agreement on fisheries subsidies” (15 July 2021), online: <canada.ca> [perma.cc/RV83-XXYB]).</footnote>

<footnote n="68">*Elaboration of an international legally binding instrument on transnational corporations and other business enterprises with respect to human rights*, UNGA, 26<sup>th</sup> Sess, UN Doc A/HRC/26/L.22/Rev.1 (2014), online: <documents.un.org> [perma.cc/2D9E-3P2G].</footnote>

<footnote n="69">Laurent Cohen-Tanugi, “Europe as an International Normative Power: State of Play and Perspectives” (2021) 2:3 R européenne dr 91, online: <geopolitique.eu> [perma.cc/UGD4-277M].</footnote>

<footnote n="70">Admittedly, the WTO has long remained closed to the concerns of civil society organizations. It is slowly but surely opening up (Joost Pauwelyn, “Taking Stakeholder Engagement in International Policy-Making Seriously: Is the WTO Finally Opening Up?” (2023) 26:1 J Intl Econ L 51; Daniel Esty, “Non-Governmental Organizations at the World Trade Organization: Cooperation, Competition, or Exclusion” (1998) 1:1 J Intl Econ L 123 at 132).</footnote>

<footnote n="71">In 2019, the largest union in the United States supported the adoption of the new free trade agreement between Canada, the United States and Mexico. While it acknowledged the agreement’s flaws, it recognized that “[t]he updated USMCA means trade in America will now be fairer because of our hard work and perseverance” (Richard L Trumka, “Letter Supporting US Mexico Canada Agreement (USMCA)” (18 December 2019), online: <aflcio.org> [perma.cc/Z9AN-W7RQ]).</footnote>

<footnote n="72">Emmanuelle Jouannet, *Le droit international libéral-providence*:*Une histoire du droit international* (Bruxelles: Bruylant, 2011) at ch 5.</footnote>

<footnote n="73">WTO, *DG Okonjo-Iweala*, *supra* note 1.</footnote>