Authored By: Soohemba Agatha Aker
Nigerian Law School
ABSTRACT
There is no disputing the importance of international law in fostering sustainable trade and investment by integrating environmental, social and economic sustainability into global trade and investment practices. With the pressing need to address climate change, biodiversity loss, social inequalities and resource depletion, international legal frameworks have become crucial mechanisms for aligning trade activities with the Sustainable Development Goals. This paper examines the extent to which multilateral, regional, and bilateral treaties incorporate sustainability principles and evaluates the practical impact, limitations, and recommendations for reform. Instruments such as WTO agreements, the Paris Agreement, AfCFTA, and others are analysed for their ability to balance economic growth with environmental protection and social equity.
INTRODUCTION
Background To The Study
The global economy is increasingly interdependent with sustainability becoming an urgent priority. This is primarily a result of the world’s challenges such as climate change, social inequalities, biodiversity loss, resource depletion, etc. Adopting the sustainable development goals therefore allows for a more cursory investment in attaining sustainability in trade relations. However, current progress falls far short of what is required to meet the SDGs, with particular reference to Goals 8 (Decent Work and Economic Growth), 12 (Responsible Consumption and Production) and 13 (Climate Action).[1]
Reports on Goals these goals indicate an increase in global unemployment, increase in global food waste, reaching 1.05 billion metric tons in 2022, a continous rise in global CO₂ emissions to a record 57.4 gigatons as fossil fuel subsidies hit a record high of $1.53 trillion in 2022, more than tripling from 2015 levels yet global temperatures reached record highs in 2023.[2]
These issues therefore emphasise the need for scaled action in integrating sustainability practices in economic activities which then calls for a more proactive international law regime as instruments of global governance.
It is against this background that this paper explores how international law promotes sustainable trade and investment, identifies implementation challenges, and offers reform recommendations.
Statement of The Problem
Despite the presence of legal frameworks regulating trade and investment there are conflicts between the rules and sustainable practices such as environmental protection. This is illustrated in various trading disputes arising from the application of these rules in enforcing sustainable practices in international trade which will be considered in subsequent chapters.
There also remains a gaping hole in the enforcement, consistency and effectiveness of extant laws which has aided continous environmental harm and social inequalities despite these agreements.
This research therefore inquires into the following questions:
- How does international law promote sustainable trade and investment?
- What are the provisions in the international law regime supporting the promotion of sustainable trade and investment?
- What are the challenges in enforcing these provisions?
- Are there remedies to these challenges?
Objectives of the Study
This research titled ‘Reforming Global Trade Law for Sustainability: Legal Frameworks, Challenges, and Opportunities’ seeks to achieve the following objectives:
- Examine the sustainability provisions in major multilateral, regional and bilateral treaties
- Assess the effectiveness of these treaties in promoting sustainability, using case studies of trade disputes and investment agreements.
- Identify gaps in the enforcement of these sustainability provisions and make recommendations to strengthen international legal mechanisms.
Scope of the Study
The scope of the research is ‘Reforming Global Trade Law for Sustainability: Legal Frameworks, Challenges, and Opportunities’. It primarily evaluates key international legal frameworks, It also considers the sustainability provisions in these treaties and agreement, the challenges in implementation, the global trends in sustainable trade and investment and suggests reforms.
Organisational Layout
This paper is divided into five (5) chapters.
Chapter One is the general introduction which contains the background to the study, statement of the problem, objectives of the study, scope of the study, research methodology and an organisational layout.
Chapter Two proceeds with the Theoretical Framework which defines the basic concepts in this paper.
Chapter Three provides an overview of multilateral, regional, and bilateral treaties that influence sustainable trade and investment.
Chapter Four explores case studies by considering practical examples of how international treaties operate and the tensions between trade liberalisation and sustainability goals as well as the challenges.
Chapter Five is the last in this paper. It contains the summary, findings and recommendations.
CONCEPTUAL CLARIFICATIONS
In order to effectively examine the role of international law and treaties in promoting sustainable trade and investment, it is pertinent to define key concepts. They include; sustainability, sustainable trade and investment and international treaties.
Sustainability
The present-day concept of sustainability as we know it gained prominence with the 1987 UN report “Our Common Future”. It has since enjoyed various attempts at demystifying its meaning.
In the charter for the UCLA Sustainability Committee, sustainability is defined as the integration of environmental health, social equity and economic vitality in order to create thriving, healthy, diverse and resilient communities for this generation and generations to come.
It expresses the principle that future generations should live in a world that the present generation has enjoyed but not diminished.[3]
Sustainable Trade And Investment
Sustainable trade is defined by the World Trade Organisation as the integration of environmental, economic and social sustainability principles into global trade policies, ensuring long-term economic stability without depleting natural resources[4]
According to Gehring (2021), sustainable investment refers to financial flows that prioritise not just economic returns but also social and environmental responsibility, a principle increasingly reflected in modern free trade agreements.
These definitions as cited above share similarities in that they emphasise the conduct of trade activities in a manner that achieves not only the economic objectives, but also preserves the social and environmental goals.
International Law And Treaties
The term ‘International law’, also referred to as Laws of Nations was first coined by Jeramy Bentham in 1780. It is described as a set of rules, agreements and treaties that are binding between countries. It is an independent system of law existing outside the legal framework of a particular state.[5]
A treaty can be bilateral, multilateral or regional. A bilateral treaty is made between two nations, while a multilateral or regional treaty is signed by more than two nations. Such instruments can also be referred to as ‘conventions’, ‘covenants’, ‘agreements’, ‘protocols’ or some similar words, and less commonly `exchanges of letters’.[6]
Examples of international law are inter alia; The United Nations Charter, which establishes the United Nations and its goals, etc.
OVERVIEW OF KEY INTERNATIONAL LAW IMPACTING SUSTAINABLE TRADE AND INVESTMENT
The global push for sustainability and the adoption of the sustainable development goals in trade and investment has given rise to an array of treaties which reflects the global consensus on the necessity for these legal frameworks to integrate sustainable practices in trade and investment. They serve the purpose of setting the legal and institutional parameters within which countries negotiate trade and investment policies while reconciling the economic, environmental and social agendas. This chapter analyses the multilateral, regional and bilateral agreements and their sustainability provisions.
MULTILATERAL TREATIES
These are treaties that involve multiple countries and provide principles for trade and investment governance at a global level.
World Trade Organisation trade rules.
WTO established by the Marrakesh agreement is central to global trade governance. While its support for sustainability remains debatable, in fulfilling its primary function, it recognises sustainability as a trade objective. It has recognised the legitimacy of environmental protection as a global trade concern and demonstrated this through its rules which shall be considered below.
- General Agreement on Tariffs and Trade (GATT) 1994:
The General Agreement on Tariffs and Trade (GATT) 1994 contained in Annex 1A of the WTO Agreement binding upon all WTO Members further liberalises trade in goods through the reduction of tariffs and other trade barriers and elimination of discrimination. It provides the foundation for WTO rules on trade liberalisation and also recognises sustainability through Article XX (general exceptions), which allows trade restrictions for environmental and public health reasons.
- Trade Related Aspects of Intellectual Property Rights (TRIPS)
The Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement, established under the World Trade Organisation (WTO) in 1995, provides a legal framework for protecting intellectual property rights, including patents, copyrights and trademarks. The agreement facilitates the development and commercialisation of environmentally friendly technologies by granting patent protections to inventors, thereby incentivizing research in renewable energy, energy-efficient processes as well as green production method.[7]
- Agreement on Subsidies and Countervailing Measures (SCM)
The Agreement on Subsidies and Countervailing Measures (SCM) was enacted under the WTO legal framework to regulate subsidies that distort international trade. It determines the legitimacy of subsidies based on their impact on market competition and economic fairness. It is employed as a tool for promoting environmental sustainability by prohibiting subsidies that contribute to environmental harm, such as those supporting the fossil fuel industry and high-emission industrial activities.[8]
- Trade and Environmental Sustainability Structured Discussions (TESSD)
In its efforts to align trade policies with global sustainability goals, the WTO initiated the Trade and Environmental Sustainability Structured Discussions (TESSD) in 2020. This initiative aims to embed climate policies, biodiversity conservation and circular economy principles into global trade agreements to aid the exchange best practices and development rules that support environmental goals.[9]
Paris Agreement
The Paris Agreement provides a robust regulatory framework on climate action. It was adopted by 196 Parties at the UN Climate Change Conference (COP21) in Paris, France, on 12 December 2015. It entered into force on 4 November 2016. Though its primary focus is on the reduction of greenhouse gas emissions and the transition to a low-carbon economy, it also impacts trade and investment policies by encouraging the adoption of sustainable practices in sectors like energy and transportation. It achieves this by encouraging the adoption of Nationally Determined Contributions (NDCs) where countries communicate actions they will take to reduce their greenhouse gas emissions, build resilience and adapt to the impacts of climate change in order to reach the goals of the Paris Agreement.[10]
Convention on Biological Diversity (CBD)
The Convention on Biological Diversity (CBD), adopted in 1992 at the Earth Summit in Rio de Janeiro, is a multilateral treaty aimed at promoting the conservation of biodiversity, the sustainable use of its components and the fair and equitable sharing of benefits arising from genetic resources.[11] An important development under the CBD is the Nagoya Protocol on Access and Benefit-Sharing (ABS), adopted in 2010. This instrument regulates how genetic resources can be accessed and how benefits derived from their use should be shared between users (e.g., pharmaceutical companies, and biotechnology firms) and provider countries, particularly those in the Global South.[12]
Basel Convention
The Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, commonly known as the Basel Convention was adopted in 1989 and entered into force in 1992 as a response to the proliferating international trade in hazardous waste, particularly fromdevelopedtodevelopingcountries.[13]
It is aimed at regulating and reducing the movement of hazardous waste across borders, preventing illegal dumping and promoting environmentally sound waste management practices.[14]
REGIONAL TRADE AGREEMENTS (RTAS)
EU Free Trade Agreements (EU FTAs)
The European Union plays a vital role in integrating environmental and labour standards into its Free Trade Agreements. These Agreements mandates the EU and its trade partners to effectively implement and enforce international labour conventions and environmental agreements among other provisions in its rules.[15]
The EU’s commitment to sustainable trade is further exemplified by its European Green Deal, the EU–Mercosur Agreement, the EU-Canada Comprehensive Economic and Trade Agreement (CETA).
African Continental Free Trade Area (AfCFTA)
The African Continental Free Trade Area (AfCFTA) is one of the most ambitious trade initiatives on the African continent, aiming to boost intra-African trade, foster economic growth and promote sustainable development. Established in 2018 under the African Union (AU) framework, the agreement seeks to eliminate tariffs on 90% of goods traded within Africa, enhance regional integration and create a single market of over 1.3 billion people.[16]
The United States-Mexico-Canada Agreement, USMCA (formerly North American Free Trade Agreement, NAFTA)
The United States-Mexico-Canada Agreement (USMCA) which replaced the North American Free Trade Agreement (NAFTA) in 2020, represents a modernised regional trade agreement that incorporates binding environmental and labour provisions.[17] It fills the gap in lack of environmental safeguards of NAFTA by strengthening environmental governance which requires all parties to enforce sustainability standards in trade and investment.[18]
Association of Southeast Asian Nations (ASEAN) Trade Agreements
The Association of Southeast Asian Nations (ASEAN) has become a major regional trade bloc, with ten (10) member states working toward greater economic integration. In recent years, ASEAN has taken steps to integrate sustainability into its trade policies.[19]
ASEAN’s key trade agreements, including the ASEAN Free Trade Area (AFTA) and the Regional Comprehensive Economic Partnership (RCEP), incorporates some environmental provisions but these provisions do not have binding effect on partners.[20] However in 2023, ASEAN adopted the Green Economy Framework which provides a guide for integrating sustainability into regional trade agreements.[21]
BILATERAL TREATIES (BITS)
Bilateral Investment Treaties (BITs) govern investment relationships between two countries and prioritises investor protections over sustainability considerations. However, in recent years, modern BITs have begun incorporating environmental and social governance (ESG) requirements, ensuring that foreign investments uphold sustainability objectives.[22] Some of the bilateral agreements will be considered below.
The Netherlands Model BIT
The Netherlands Model BIT (2019) represents a progressive shift in investment treaty frameworks, incorporating explicit ESG requirements for investors. Under this BIT, foreign investors must comply with human rights, environmental standards and labour protections while respecting the host country’s regulatory power.[23]
International trade and investment agreements play a pivotal role in shaping global sustainability policies, but their effectiveness depends largely on the strength of their enforcement mechanisms. This chapter has examined the multilateral, regional, and bilateral frameworks that integrate sustainability considerations into trade and investment governance.
CASE STUDIES, PRACTICAL APPLICATIONS AND CHALLENGES
While the international law regime governing trade and investment has progressively integrated sustainability principles, their effectiveness in practice depends on implementation, enforcement, and compliance by state and non-state actors. These case studies reveal patterns, challenges and opportunities in the intersection of trade, investment, and sustainability. By evaluating the effectiveness, limitations, and potential improvements in treaty implementation, this analysis will provide a clearer understanding of the practical impact of international trade law on sustainable development.
The Paris Agreement and Trade: Climate Commitments and Challenges
The Paris Agreement sets global climate goals, including reducing greenhouse gas emissions and promoting sustainable economic policies. [24] While the agreement does not directly regulate trade, its implementation has implications for global commerce, particularly in areas such as carbon pricing, trade restrictions on high-emission goods, and fossil fuel subsidy reforms.
Carbon Border Adjustment Mechanisms (CBAMs) and Trade Disputes
One of the most contentious trade policies linked to the Paris Agreement is the European Union’s Carbon Border Adjustment Mechanism (CBAM), which imposes tariffs on carbon-intensive imports such as steel, cement, and aluminium.[25]
The rationale is to prevent carbon leakage, where companies relocate to jurisdictions with weaker environmental regulations to evade emissions controls.[26] However, developing nations argue that CBAMs act as a form of green protectionism, disproportionately affecting export-driven economies in Africa, Asia, and Latin America. [27]
Fossil Fuel Subsidy Disputes
There is ongoing debate over fossil fuel subsidies. The World Trade Organisation (WTO) and the G20 have urged nations to phase out environmentally harmful subsidies, yet implementation has been marred by economic and political concerns.[28] Countries such as India and Indonesia have resisted subsidy removals, arguing that they are necessary for access to energy and economic stability.[29]
This demonstrates the conflict between sustainability goals and national economic policies, highlighting the challenges of enforcing environmental trade provisions under the Paris Agreement.
EU Trade Agreements and Environmental Standards
The European Union (EU) has emerged as a global leader in integrating sustainability clauses into trade agreements. Many of its bilateral and regional trade pacts include Trade and Sustainable Development (TSD) chapters, which require compliance with environmental, labour, and human rights standards.[30]
EU-Canada Comprehensive Economic and Trade Agreement (CETA)
The EU-Canada Comprehensive Economic and Trade Agreement (CETA) is one of the most progressive trade agreements in terms of environmental governance. It legally binds both parties to the Paris Agreement, requiring strong environmental protections in trade.[31] Despite its ambitious scope, CETA faces enforcement challenges, as its sustainability clauses are difficult to litigate, leading some critics to label them as “soft law” provisions.[32]
EU-Mercosur Agreement and Deforestation Concerns
The EU-Mercosur Agreement, negotiated between the EU and Argentina, Brazil, Paraguay, and Uruguay, seeks to expand trade while enforcing deforestation protections particularly in the Amazon rainforest.[33]
Philip Morris v. Uruguay
In this dispute, Philip Morris International sued Uruguay under a Bilateral Investment Treaty (BIT) with Switzerland, claiming that Uruguay’s anti-smoking laws violated its trademark rights and devalued its investment.[34] The International Centre for Settlement of Investment Disputes (ICSID) tribunal ruled in favour of Uruguay, upholding the rights of governments have the right to regulate in the interest of public health and sustainability.[35] This ruling set a precedent for BITs to recognise state regulatory authority over sustainability and public welfare.
The Netherlands Model BIT
The Netherlands Model BIT (2019) is one of the most progressive investment treaties in terms of environmental, social, and governance (ESG) requirements. Unlike traditional BITs that focus primarily on investor protections, this treaty requires investors to comply with human rights and environmental standards. However, while the Netherlands Model BIT sets a new benchmark for sustainability in investment law, its enforcement remains a challenge as compliance depends on host-country regulations. [36]
CHALLENGES
Flowing from the case studies the barriers to effective implementation and application of the sustainability provisions in trade laws can be categorised into legal, economic, and political barriers which mostly affect compliance and implementation. These challenges include;
- Anaemic enforcement mechanisms
- Conflict between trade liberalisation and sustainability
- Inconsistency in sustainability provisions between multilateral, regional and bilateral agreements, creating legal fragmentation.
- Investor-state disputes subverting sustainability regulations
- Limited capacity to implement sustainability commitments in trade and investment policies.
Without addressing these obstacles, the integration of sustainability in trade and investment agreements will remain largely aspirational rather than impactful.
CONCLUSION
Summary
This research, titled “Reforming Global Trade Law for Sustainability: Legal Frameworks, Challenges, and Opportunities,” has examined the intersection of international law, sustainable trade, and investment and assessed how legal instruments shape economic policies while integrating sustainability principles. It analysed multilateral, regional, and bilateral treaties that influence sustainable trade and investment.
Furthermore, it assessed the practical implementation of sustainability provisions and the challenges in enforcement.
Findings
Flowing from the above, the following key findings are hereby made:
- It has been found that multilateral agreements have introduced provisions aimed at incorporating environmental and social sustainability into trade and investment governance. More so, some regional trade agreements include specific environmental and labour standards, though enforcement mechanisms remain weak, while bilateral Investment Treaties (BITs) are gradually incorporating ESG (Environmental, Social, and Governance) principles,setting a new precedent for sustainability obligations on investors.
- Despite the inclusion of sustainability clauses in trade and investment agreements, there are either weak dispute settlement mechanisms or loopholes in their enforcement as many agreements contain non-binding or soft law provisions making it difficult to hold violators accountable.
- There is an inherent conflict between economic growth objectives and sustainability commitments.
- There exist remedies to the challenges facing the application of international in the promotion of sustainable trade and investment.
Recommendations
Based on the above findings, the following recommendations are proffered:
- Sustainability in trade agreement should be strengthened. Trade agreements should not only include sustainability clauses, they should establish clear sanctions for non-compliance with such provisions, including penalty tariffs to ensure they are enforceable through dispute settlement mechanisms.
- Developing countries should also be provided with financial and technical assistance to meet sustainability obligations in trade, to prevent unfair disadvantages in the global market.
- The WTO should explicitly incorporate and align with the Sustainable Development Goals. The WTO’s Article XX exceptions, which allow for trade restrictions based on environmental and health concerns, should be expanded to explicitly recognise climate change mitigation as a legitimate trade objective.
- Increased international cooperation on sustainable trade between entities such as the WTO, UNCTAD, UNEP and UNFCCC will further harmonise trade and sustainability governance.
- Bilateral Investment Treaties (BITs) should require mandatory ESG reporting for investors to ensure compliance with climate, labour, and human rights standards.
- The Investor-State Dispute Settlement (ISDS) system should be reformed to include environmental and public interest exceptions, preventing corporations from challenging legitimate sustainability regulations.
- Incentives for investment should also prioritise sustainable projects, including renewable energy infrastructure, climate-resilient agriculture, and circular economy initiatives.
Moving forward, global trends such as digital trade agreements, carbon credit markets and AI-driven compliance monitoring will significantly shape the future of sustainable trade. Initiatives like the Digital Economy Partnership Agreement (DEPA) promote paperless trade and improved carbon tracking mechanisms, while carbon credit trading is becoming an indispensable part of global trade policies under frameworks like the EU’s Emissions Trading System (ETS) and the UN’s Article 6 of the Paris Agreement. As these innovations continue to evolve, international trade law must adapt to leverage and integrate these technologies to strengthen enforcement and accountability in sustainable trade and investment policies.
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[1] https://sdgs.un.org/goals; The Sustainable Development Goals Report 2024
[2] Ibid pages 31-35
[3] Clough, G. Wayne, Jean-Lou Chameau, and Carol Carmichael. “Sustainability and the University.” The Presidency , winter 2006.
[4] (WTO, 2023)
[5] Definitions, Origins, Nature and Importance of International Law: Meaning and Definitions of International Law, Bivek Chaudhary
[6] https://www.justice.gc.ca; unimelb.libguides.com
[7] World Intellectual Property Organisation (WIPO), ‘Patent and Biotechnology Resources’ (2023) www.wipo.int
[8] WTO, ‘Agreement on Subsidies and Countervailing Measures’ (1995)
[9] WTO, ‘Trade and Environmental Sustainability Structured Discussions (TESSD)’ (2023)
[10] https://unfccc.int/process-and-meetings/the-paris-agreement/nationally-determined-contributions-ndcs
[11] Convention on Biological Diversity (CBD), ‘Text of the Convention’ (1992) <www.cbd.int>.
[12] Convention on Biological Diversity (CBD), ‘Nagoya Protocol on Access and Benefit-Sharing’ (2010) <www.cbd.int>.
[13] Basel Convention, ‘Text of the Convention’ (1989) <www.basel.int>.
[14] Secretariat of the Basel Convention, ‘Controlling Transboundary Movements of Hazardous Wastes’ (2022) <www.basel.int>
[15] https://policy.trade.ec.europa.eu/development-and-sustainability/sustainable-development/sustainable-development-eu-trade-agreements_en
[16] African Union, ‘African Continental Free Trade Area (AfCFTA)’ (2023) <www.au.int>.
[17] Office of the United States Trade Representative, ‘United States-Mexico-Canada Agreement (USMCA)’ (2023) <www.ustr.gov>.
[18] U.S. Congressional Research Service, ‘USMCA Environmental Provisions’ (2022) <www.crsreports.congress.gov>.
[19] ASEAN Secretariat, ‘ASEAN and Sustainable Trade’ (2023) <www.asean.org>.
[20] United Nations Economic and Social Commission for Asia and the Pacific (UNESCAP), ‘Environmental Provisions in ASEAN Trade Agreements’ (2022) <www.unescap.org>.
[21] ASEAN Green Economy Framework, ‘A Pathway to Sustainable Trade’ (2023) <www.asean.org>.
[22] UNCTAD, ‘World Investment Report: Sustainability Trends in BITs’ (2023) <www.unctad.org>.
[23] Government of the Netherlands, ‘Netherlands Model Bilateral Investment Treaty (2019)’ <www.government.nl>.
[24] UNFCCC, ‘Paris Agreement’ (2015) <www.unfccc.int>.
[25] European Commission, ‘Carbon Border Adjustment Mechanism (CBAM): Policy Brief’ (2023) <www.ec.europa.eu>.
[26] WTO, ‘Carbon Border Adjustments: Trade and Environment’ (2022) <www.wto.org>.
[27] UNCTAD, ‘Trade and Climate Change: Impact of CBAMs on Developing Countries’ (2022) <www.unctad.org>.
[28] International Institute for Sustainable Development (IISD), ‘Fossil Fuel Subsidy Reform: WTO and G20 Perspectives’ (2023) <www.iisd.org>.
[29] World Bank, ‘Energy Subsidies and Their Role in Developing Economies’ (2021) <www.worldbank.org>.
[30] European Commission, ‘Trade and Sustainable Development in EU Agreements’ (2023) <www.ec.europa.eu>.
[31] CETA Agreement Text, ‘EU-Canada Comprehensive Economic and Trade Agreement’ (2017) <www.ceta.org>.
[32] International Trade Law Journal, ‘Legal Challenges in Enforcing TSD Clauses’ (2021) <www.itlj.org>.
[33] EU-Mercosur Agreement, ‘Environmental and Social Provisions’ (2023) <www.eu-mercosur.org>.
[34] ICSID, ‘Philip Morris v. Uruguay: Investment Arbitration Award’ (2016) <www.icsid.worldbank.org>.
[35] UNCTAD, ‘Investment Arbitration and Public Health: Lessons from Philip Morris v. Uruguay’ (2022) <www.unctad.org>.
[36] International Investment Law Review, ‘Challenges in Implementing ESG Obligations in BITs’ (2023) <www.iilr.org>.
