Hiding in Plain Sight An ILO

Hiding in Plain Sight: An ILO Convention on
Labor Standards in Global Supply Chains

James J. Brudney*
Abstract
This Article proposes a solution to the primary challenge currently confronting governments,
employers, and workers under international labor law: how to promote and protect decent labor
conditions in global supply chains (GSCs).
The Article begins by summarizing why existing public law and private law approaches
have failed to meet this challenge over several decades. It describes the shortcomings of law and
practice in developing countries as well as the weakness of corporate social responsibility (CSR),
including the most ambitious version of CSR, the U.N. Guiding Principles on Business and
Human Rights. It then analyzes the problems with recent national laws in developed countries
that impose mandates on multinational enterprises (MNEs) at the top of global supply chains—
laws requiring disclosure and transparency in labor-protection efforts and laws requiring a due
diligence process to identify and monitor against human rights risks.
The centerpiece of the Article is its argument for an international convention, promulgated
by the International Labor Organization (ILO), that includes three essential features missing
from existing voluntary and mandatory approaches. First, business obligations must include
substantive responsibility to avoid involvement in supply chain human rights violations, not just
procedural responsibility to adhere to a set of due diligence processes. In this context, the Article
explores different approaches to establishing tort liability for violations under both U.S. and
European law. Second, workers and their representatives must directly participate in the design,
implementation, and enforcement of a due diligence system. Third, all workers engaged in supply
chain activities must be protected, regardless of their formal employment or contractual status
*
Joseph Crowley Chair in Labor and Employment Law, Fordham Law School. Thanks to William
Alford, Kate Andrias, Aditi Bagchi, Janice Bellace, Martha Chamallas, Colin Fenwick, Jennifer
Gordon, Desiree LeClercq, Kamala Sankaran, Lee Swepston, Bernd Waas, and Benjamin Zipursky
for valuable comments and suggestions at different stages of this project; to Janet Kearney for
superb research assistance; and to Fordham Law School for generous financial support. The author
is a member of the International Labor Organization Committee of Experts, but this Article is
presented solely in his individual capacity as a law professor. It does not reflect the views of the
Committee or the ILO.
272
Hiding in Plain Sight Brudney
under relevant national law. The Article additionally considers issues of jurisdiction, enforcement,
and remedies likely to arise under the convention.
Finally, the Article addresses the appropriateness and feasibility of such a convention. It
identifies several factors that support a leadership role for the ILO and discusses the impact of
existing ILO conventions on national laws in ways that extend beyond formal ratification. The
Article closes with a suggestion to invite newer voices from the worker and employer communities
to participate in discussions about labor conditions in GSCs alongside the recognized trade union
and employer organizations.
Winter 2023 273

Chicago Journal of International Law
Table of Contents
I. Introduction ............................................................................................................. 275
II. Failure of Existing Public Law and Private Law Approaches ........................ 281
A. Shortcomings of National Law and Practice in Developing Countries .... 281
1. Government economic motivations ........................................................... 281
2. Doctrinal limitations in national labor laws ............................................... 282
3. Strategic and resource restrictions on labor inspection ........................... 283
B. Weakness of the Corporate Social Responsibility Approach ..................... 285
1. Deficiencies in design and implementation ............................................... 286
2. The dilemma of voluntary action ................................................................ 289
C. Limitations of Recent National Laws in Developed Countries ................. 292
1. The disclosure requirements approach ....................................................... 293
2. The due diligence requirements approach ................................................. 295
III. Key Features of an ILO Convention on GSCs ............................................... 302
A. Two Distinct Obligations: Procedural and Substantive Responsibility ..... 302
B. Liability Regimes for Substantive Violations................................................. 305
C. Worker Participation in the Due Diligence Process .................................... 310
D. Scope of Coverage ............................................................................................ 313
1. All GSC workers ............................................................................................ 313
2. Business enterprises operating transnationally .......................................... 313
3. Essential workplace human rights ............................................................... 314
E. Jurisdiction; Enforcement; Remedies ............................................................. 316
1. Jurisdiction ...................................................................................................... 316
2. Enforcement ................................................................................................... 318
3. Remedies ......................................................................................................... 321
IV. Is an ILO Convention on GSCs Appropriate and Feasible? ........................ 322
A. Appropriateness of an ILO Leadership Role ............................................... 323
B. Feasibility of a GSC Convention .................................................................... 326
1. Transnational scope ....................................................................................... 326
2. Issues related to the informal economy ..................................................... 329
3. Successful model programs .......................................................................... 330
C. Assessing Progress............................................................................................. 333
1. Direct and indirect impact ............................................................................ 334
2. Broader participation from employers and workers................................. 335
V. Conclusion .............................................................................................................. 340
274 Vol. 23 No. 2

I. INTRODUCTION
It has been the monstrous curse of the world, of all ages, to degrade labor to the level of a
commodity, a material, a chattel, to be bought and sold, and the price of it regulated in the
market as any “materials to be worked up.”
Eugene V. Debs, Labor as a “Commodity”, LOCOMOTIVE FIREMEN’S MAG.,
Mar. 1889, at 196, 197.
The labor of a human being is not a commodity or article of commerce.
Clayton Antitrust Act of 1914 § 6, 15 U.S.C. § 17.
[L]abour is not a commodity.
ILO, Declaration of Philadelphia art. 1 (May 10, 1944) (reaffirming
fundamental principles of the ILO).
In the twentieth century, nations and the new international order denounced
the idea of labor as a commodity to be exploited. Yet, in the twenty-first century,
the promises appearing on global corporations’ websites that they will respect
workers’ human rights1 bear little relation to the exploitation and abuse actually
experienced by those workers.2 Recent estimates indicate that, worldwide, over
150 million children are engaged in child labor and over twenty-seven million
children and adults are victims of forced labor.3 In addition, tens of millions of
individuals toiling in global supply chains (GSCs) experience some combination
of substandard wages, excessive working time, serious safety and health risks,
restrictions on freedom of association, and workplace discrimination.4
1 See, e.g., Human Rights and Labor Issues, GAP INC. (2022), https://perma.cc/N5WF-X6KD; Human
Rights, WALMART (2022), https://perma.cc/J5UX-K87N.
2 See, e.g., GLOBAL LABOR JUSTICE ET AL., GENDER BASED VIOLENCE IN THE GAP SUPPLY CHAIN: A
REPORT TO THE ILO (2018), https://perma.cc/FEY8-DV3X (reporting on gender-based violence
at twelve supplier factories in India, Indonesia, and Sri Lanka); GLOBAL LABOR JUSTICE ET AL.,
PRECARIOUS WORK IN THE WALMART GLOBAL VALUE CHAIN (2016), https://perma.cc/QQ2Q-
JVY4 (reporting on instances of forced labor, wage-related rights abuses, repression of freedom of
association, and unauthorized subcontracting at supplier factories in Bangladesh, Cambodia, and
India); see also Noor Ibrahim, Sexual Assault, Forced Labor, Wage Theft: Garment Workers in Jordan Suffer
for U.S. Brands, THE GUARDIAN (Aug. 29, 2020), https://perma.cc/U8WV-7WNN (describing
abuses at factories from which GAP, Walmart, and “dozens of American fashion brands” source
apparel).
3 ILO ET AL., ENDING CHILD LABOUR, FORCED LABOUR AND HUMAN TRAFFICKING IN GLOBAL
SUPPLY CHAINS 5 (2019), https://perma.cc/LD6S-MMUG; ILO ET AL., GLOBAL ESTIMATES OF
MODERN SLAVERY: FORCED LABOUR AND FORCED MARRIAGE 2 (2022), https://perma.cc/45AU-
9743.
4 See HUMAN RIGHTS WATCH, HUMAN RIGHTS IN SUPPLY CHAINS: A CALL FOR A BINDING GLOBAL
STANDARD ON DUE DILIGENCE 5, 11–16 (2016), https://perma.cc/UD6D-SVDA. See generally
DAVID WEIL, THE FISSURED WORKPLACE: WHY WORK BECAME SO BAD FOR SO MANY AND WHAT
CAN BE DONE TO IMPROVE IT (2014).
Winter 2023 275

The growth of GSCs for a wide range of products and services5 reflects the
influence of numerous factors, including government efforts to attract foreign
direct investment, the expanded role of international trade, fragmentation of
production across borders, and technological developments.6 Although there is
no single GSC model, multinational enterprises (MNEs) typically occupy the top
of a network of subcontractors, suppliers, and outsourced assemblers or
producers, including homeworkers.7 Over the past several decades, GSCs have at
times contributed to economic growth, job creation, and enhanced
competitiveness, especially in developing countries.8
Progress in achieving decent labor conditions, however, has been
disappointing. Public enforcement of labor standards in developing countries and
private adherence to regulatory norms through codes of corporate social
responsibility (CSR) have largely failed to address grim working conditions in
GSCs for apparel, footwear, electronics, agriculture, and other products.9 Even
the 2011 adoption of the U.N. Guiding Principles on Business and Human Rights,
a rigorously developed voluntary compliance framework, has not led to substantial
change in supply chain labor conditions.10
The COVID-19 pandemic has highlighted this failure to achieve decent
labor conditions. Millions of workers worldwide were left in desperate straits
when brands and retailers cancelled or refused to pay their suppliers for
production orders, suppliers laid off workers or closed factories without providing
5 GSCs have proliferated for products such as apparel, footwear, automobiles, electronics,
agriculture, and seafood, and for services including transportation, tourism, and hospitality. This
Article does not address the diversity in structure and operation of GSCs; its primary examples
come from apparel, footwear, and agriculture. For descriptive and normative purposes, the Article
adopts the paradigmatic model of a brand-driven retail supply chain in which competition among
suppliers and control of ordering practices directly and indirectly affect working conditions.
6 See OECD, INTERCONNECTED ECONOMIES: BENEFITING FROM GLOBAL VALUE CHAINS 13 (2013);
WORLD BANK GRP., TRADING FOR DEVELOPMENT IN THE AGE OF GLOBAL VALUE CHAINS xiii
(2020) [hereinafter WORLD BANK GRP., TRADING FOR DEVELOPMENT]; ILO Governing Body,
340th Sess., Report of the Director-General, Second Supplementary Report: Report of the Technical Meeting on
Achieving Decent Work in Global Supply Chains ¶ 10 (Oct.–Nov. 2020) [hereinafter ILO Governing
Body, 2020 Second Supplementary Report]. The terms “Global Supply Chain” and “Global Value
Chain” (GVC) are generally viewed as synonymous; this Article uses “Global Supply Chain” except
when a publication uses the term GVC.
7 See generally Gary Gereffi et al., The Governance of Global Value Chains, 12 REV. OF INT’L POL. ECON.
78 (2005) (discussing five types of global value chain governance).
8 See Int’l Lab. Conf., 105th Sess., Resolution Concerning Decent Work in Global Supply Chains ¶ 1 (July 8,
2016); WORLD BANK GRP., TRADING FOR DEVELOPMENT, supra note 6, at 67–86.
9 On failure of public law enforcement, see infra Part II.A; on inadequacy of CSR, see infra Part II.B.
10 For discussion of the Guiding Principles as a voluntary form of corporate self-regulation, see infra
Part II.B. For discussion of certain Guiding Principles as foundational in constructing a mandatory
approach, see infra Part III.A.
276 Vol. 23 No. 2

severance payments to which the workers were legally entitled, and governments
did not enforce their laws prohibiting such wage theft.11
Recognizing a need to close the considerable gap between principle and
practice, governments in developed countries have begun enacting legislative
mandates for MNEs that are based or do substantial business within their borders.
These mandates have taken two separate forms: first, laws requiring disclosure
and transparency in labor-protection efforts undertaken by MNEs in their supply
chains;12 and second, laws requiring a level of MNE due diligence in assessing and
enforcing against the human rights risks faced by workers in these supply chains.13
While statutes aimed explicitly at supply chain conditions are a positive
development, they have thus far been less than successful. Disclosure laws lack
financial penalties, a civil liability regime, or indeed any serious enforcement
mechanism for non-compliance. Due diligence laws face a range of conceptual
and design challenges; notably, they do not require consultation with trade unions
at each stage of the due diligence process, and they establish liability only for
failure to follow certain procedures, not for the outcomes of causing or
contributing to human rights abuses.14
The absence of labor protections in practice coincides, ironically, with
widespread international recognition over the past several decades of certain labor
standards as fundamental human rights, including the right to be free from forced
labor, child labor, and workplace discrimination; the right to enjoy freedom of
association and collective bargaining;15 and, most recently, the right to have a safe
11 See WORKER RTS. CONSORTIUM, FIRED, THEN ROBBED: FASHION BRANDS’ COMPLICITY IN WAGE
THEFT DURING COVID-19 (Apr. 2021); BUS. AND HUM. RTS. RES. CTR., WAGE THEFT AND
PANDEMIC PROFITS: THE RIGHT TO A LIVING WAGE FOR GARMENT WORKERS 3 (Mar. 2021)
[hereinafter BHRRC]; Mark Anner, The Governance Challenges of Social Upgrading in Apparel Global Value
Chains in the Context of a Sourcing Squeeze and the COVID-19 Pandemic, in ECONOMIC AND SOCIAL
UPGRADING IN GLOBAL VALUE CHAINS 361, 362, 374–76 (C. Tiepen et al. eds., 2022).
12 See anti-slavery disclosure statutes from California (2010), the U.K. (2015), and Australia (2018),
discussed infra Part II.C.
13 See due diligence statutes from France (2017), the Netherlands (2019), and Germany (2021),
discussed infra Part II.C.
14 See infra Part II.C for analysis and critiques of both sets of laws.
15 These rights are set forth in eight conventions deemed fundamental under the ILO structure: two
dealing with forced labor, two addressing child labor, two covering non-discrimination, and two
dealing with freedom of association and collective bargaining. These eight fundamental conventions
are also enshrined in Int’l Lab. Conf., 86th Sess., Declaration on Fundamental Principles and Rights at
Work (June 1998).
Winter 2023 277

and healthy workplace.16 The International Labor Organization (ILO)17 has led
the drive to identify and elevate such fundamental labor norms in the global
context, a role respected and deferred to by international trade and finance
organizations.18 These norms have also become widely embedded in national
statutes and constitutions.
Although there is no magic solution for what may seem an intractable
challenge, this Article argues for a new international law approach: imposing
liability and related obligations on transnational business enterprises as well as
governments to reduce human rights abuses in GSCs. Specifically, the ILO should
take the lead in formulating a global supply chain convention that sets out three
central requirements for business enterprises. First, business responsibility must
include both a process component and an outcomes component. Business
enterprises must comply with a detailed set of due diligence procedures and also
avoid involvement in human rights violations and provide remedies for causing,
contributing to, or failing to mitigate such violations. Second, workers and their
representatives must be provided the ability to engage directly and meaningfully
with other interested parties in the formulation and implementation of the multi-
stage due diligence process. And third, there must be protection for all workers
engaged in supply chain activities, regardless of their formal employment or
contractual status under relevant national law.
Application of an ILO convention to private entities as well as governments
differs from the ILO’s traditional focus of formulating binding obligations
(through Conventions) or non-binding guidelines (through Recommendations)
16 In June 2022, delegates to the International Labour Conference of the ILO adopted a resolution
adding to the existing fundamental principles the right to a safe and healthy working environment.
See International Labour Conference Adds Safety and Health to Fundamental Principles and Rights at Work,
ILO (June 10, 2022), https://perma.cc/NHZ5-2YCZ; see also Lejo Sibbel, ILO Conventions and the
Covenant on Economic, Social and Cultural Rights: One Goal, Two Systems, 1 DIALOGUE & COOPERATION
51, 53–54 (2001) (discussing close linkage of ILO Conventions to the Universal Declaration of
Human Rights regarding forced labor convention, as well as to the International Covenant on
Economic, Social and Cultural Rights (ICESCR) regarding freedom of association convention).
17 The ILO, a U.N. agency established in 1919 by the Treaty of Versailles, includes 187 member states.
Since its founding, it has promulgated 190 Conventions (deemed binding on states that ratify them)
and over 200 non-binding Recommendations. See ILO Constitution art. 19 (describing procedures
for promulgation and ratification of conventions and recommendations). The eight conventions
identified as fundamental, see supra note 15, have collectively been ratified by over 90% of member
states, and in one instance by 100%.
18 On trade, see Lawrence R. Helfer, Understanding Change in International Organizations: Globalization and
Innovation in the ILO, 59 VAND. L. REV. 649, 707–10 (2006); Lee Swepston, How the ILO Embraced
Human Rights, in RESEARCH HANDBOOK ON LABOUR, BUSINESS, AND HUMAN RIGHTS LAW 295,
305–06 (Janice Bellace & Beryl ter Haar eds., 2019). On finance, see World Bank-ILO Cooperation,
ILO (June 2019), https://perma.cc/44Z8-89UA (identifying joint work and coordinated efforts
responding to global supply chains); The Programme, BETTER WORK, https://perma.cc/UBE9-
RAUH (describing collaboration between ILO and International Finance Corporation (IFC), a
member of the World Bank Group).
278 Vol. 23 No. 2

for national governments only. This Article maintains, however, that the ILO is
well positioned to undertake this modification for a number of reasons. While
governments ratify ILO Conventions mainly to apply within national borders, a
number of Conventions recognize and even require a role for cross-border
cooperation.19 Further, the ILO recently has adopted innovative approaches to
regulating work that is home-based, ambulatory across borders, or involves the
informal economy.20 In addition, the ILO very recently acted to regulate
workplace violence and harassment through a comprehensive implementation
and prevention strategy that could serve as a model for a convention regulating
GSCs.21 Finally, the ILO’s unique tripartite governance structure is well suited to
generating and justifying expectations applicable to employers and their
organizations as well as governments,22 as illustrated by its Tripartite Declaration
of Principles that encourages MNEs to “take immediate and effective measures”
to remedy violations of fundamental labor standards in their operations.23
Since the late 1990s, the ILO has focused on the challenges that GSCs
present, but it has struggled to agree on a comprehensive international approach
to resolving them.24 A convention that achieves the three objectives identified
above could successfully break this impasse. At the same time, the impasse is more
likely to be overcome if the preparations and negotiations include entities in
addition to the traditional employer and worker organizations formally
represented within the ILO’s tripartite structure. On the employer side, MNEs in
particular should be included, and they should participate directly and separately
19 See infra Part IV.B, discussing various examples.

20 See id.
21 See ILO Convention 190 on Violence and Harassment, discussed infra Parts III.C–D.
22 Each of the ILO’s 187 member states is represented not only by governments but also by
organizations of employers and workers. A member state’s right of participation as a representative
includes the right to vote; the standard ratio of representation is 2:1:1, or two government, one
employer, one worker. This ratio applies both in the International Labor Conference (a
parliamentary-type organ that typically meets once a year) and in the Governing Body (a smaller,
executive-type organ that meets more often during the year). See ILO Const. arts. 2, 3, 7.
23 ILO, TRIPARTITE DECLARATION OF PRINCIPLES CONCERNING MULTINATIONAL ENTERPRISES AND
SOCIAL POLICY 8 (5th ed. 2017).
24 See, e.g., Int’l Lab. Conf., 105th Sess., Report IV: Decent Work in Global Supply Chains 1 (Apr. 8,
2016) (noting 2013 decision by Governing Body to initiate discussion on the issue); ILO Evaluation
Off., ILO Decent Work Interventions in Global Supply Chains: A Synthesis Review on Lessons Learned; What
Works and Why, 2010-2019 (Sept. 2019); Guillaume Delautre, Decent Work in Global Supply Chains:
An Internal Research Review (ILO Rsch. Dept., Working Paper No. 47, Oct. 2019); ILO Governing
Body, 2020 Second Supplementary Report, supra note 6, at 25–28; ILO Tripartite Working Grp. on
Options to Ensure Decent Work in Supply Chains, Building Blocks for a Comprehensive Strategy on
Achieving Decent Work in Supply Chains (July 5, 2022). See generally Huw Thomas & Mark Anner,
Dissensus and Deadlock in the Evolution of Labour Governance: Global Supply Chains and the International
Labour Organization (ILO), J. BUS. ETHICS (2022) (contending that ILO gridlock on this issue is due
primarily to shifting power asymmetries between the tripartite constituents of governments,
employers, and workers).
Winter 2023 279

from the International Organization of Employers (IOE), whose members are for
the most part national employer organizations rather than actual businesses.25 On
the worker side, organizations representing informal economy workers in the
supply chain and other NGOs focused on a worker-driven approach to social
responsibility should be included, as their voices would add value distinct from
that of national trade union organizations.26
This Article endorses the U.N. Guiding Principles on Business and Human
Rights (UNGPs) as a baseline structure, while maintaining that pursuant to this
structure, business obligations must be tied to substantive outcomes and adequate
procedures, and also subject to actionable redress. With this in mind, the ILO
should specifically address five major issues when drafting a global supply chain
convention: (i) the nature of MNE duties at the top of the chain, some involving
vicarious liability and some fault-based; (ii) the importance of continuous
engagement with workers and their representatives in the design, implementation,
and enforcement of a due diligence system; (iii) the scope of coverage for workers
engaged in supply chain activities; (iv) the role of governments as a public
enforcement presence, primarily in developed countries where MNEs are based
or do extensive business; and (v) the need for meaningful remedies, including
injunctions to compel compliance, access to monetary relief for victims of human
rights abuses, and other sanctions imposed directly by the government. In this
regard, arbitration becomes relevant as an additional means of resolving disputes
that transcend national borders.
Part II of the Article examines the challenge of assuring decent labor
standards in GSCs. It summarizes the basic shortcomings of efforts by
governments in countries where global supply chain workers are located, by
MNEs through the CSR approach, and by governments in countries where MNEs
are domiciled or do substantial business. Part III then describes and justifies the
key components of a proposed international convention to address the GSC
decent work deficit, as well as discussing issues of jurisdiction, enforcement, and
remedies that are likely to arise. Part IV examines the appropriateness of ILO
leadership on the GSC issue, and the feasibility of the convention being proposed.
It also identifies anticipated gaps in participation by certain employer and worker
entities that could be addressed in order to enhance prospects for productive
resolution.
25 See infra Part IV.C.

26 One such organization is Women in Informal Employment Globalizing and Organizing (WIEGO),
which runs the Home-Based Workers Organizing for Economic Empowerment Project. See
Homeworkers Organizing for Economic Empowerment, WIEGO (2022), https://perma.cc/Q3BF-BHSH.
For discussion of worker initiatives operating outside the traditional trade union structure, see Sean
Sellers, Assessing Feasibility for Worker-Driven Social Responsibility Programs, in POWER, PARTICIPATION
AND PRIVATE REGULATORY INITIATIVES 139, 139–48 (David Brinks et al. eds., 2021) [hereinafter
POWER AND PARTICIPATION]. Other examples of such organizations are discussed infra Part IV.C.
280 Vol. 23 No. 2

II. FAILURE OF EXISTING PUBLIC LAW AND PRIVATE LAW APPROACHES

This Part critiques the main approaches to achieving decent labor conditions
in GSCs, presenting them as they have developed, in chronological terms.
National law and practice in the developing countries where GSCs operate on the
ground have long been deficient. Since the 1990s, MNEs have offered CSR as an
alternative or supplement, but that approach, too, has disappointed. Now,
national governments in countries where GSCs are domiciled (mainly, though not
exclusively, in Europe) are enacting statutes that establish mandatory versions of
CSR-type proposals, applicable to corporations. While a step forward, these
statutes are inadequate in important respects.
A. Shortcomings of National Law and Practice in

Developing Countries
Despite the growing influence of fundamental ILO standards on national
legal systems across the globe, a wide gap remains between those standards and
national law and practice in many countries. This is especially the case in
developing countries where robust GSC operations are located and the informal
economy is widespread. In some developing countries, scholars have observed a
“walking back” of the rigorousness of enacted or ratified labor standards over
time.27 Several factors account for why the implementation of ILO labor standards
by developing countries is so often disappointing: (i) governments may have
economic motivations to minimize enforcement; (ii) national labor laws may have
doctrinal limitations that allow for worker exploitation; and (iii) strategic and
practical restrictions may be imposed on labor inspection.28
1. Government economic motivations
Governments in developing countries are often reluctant to monitor or
enforce labor protections as part of a larger economic strategy. Their reticence
may be linked to a desire to attract new foreign direct investment, an effort to
make domestic companies more attractive to foreign buyers, or an attempt to
remain competitive with working conditions in other countries. It is common
27 Lucas Ronconi, Globalization, Domestic Institutions, and Enforcement of Labor Law: Evidence from Latin
America, 51 INDUS. REL. 89, 96 (2012). See Colin Fenwick, The ILO and National Labour Law Reform:
Six Case Studies, in LABOUR REGULATION AND DEVELOPMENT: SOCIO-LEGAL PERSPECTIVES 235–
287 (Shelley Marshall & Colin Fenwick eds., 2016).
28 On failure of public laws, see Daniel Vaughan-Whitehead, How “Fair” Are Wage Practices Along the
Supply Chain?: A Global Assessment, in TOWARDS BETTER WORK: UNDERSTANDING LABOUR IN
APPAREL GLOBAL VALUE CHAINS 68, 72–100 (Arianna Rossi et al. eds., 2014) [hereinafter
TOWARDS BETTER WORK]; ILO, Wages and Working Hours in the Textiles, Clothing, Leather and Footwear
Industries (ILO Sectoral Activities Dept., Working Paper GDFTCLI/2014, Sept. 2014); Michele
Ford et al., Authoritarian Innovations in Labor Governance: The Case of Cambodia, 34 GOVERNANCE 1255,
1258, 1267 (2021).
Winter 2023 281

wisdom, propagated even by the International Finance Corporation (IFC), the

private sector arm of the World Bank Group, that foreign investment might well
be enhanced if governments soften their approach to business inspections.29
2. Doctrinal limitations in national labor laws
While all national labor laws have doctrinal gaps that allow for worker
exploitation, such gaps are particularly problematic in developing countries.
First, national labor laws typically provide protections only for full-time or
regular employees. Statutory definitions of “regular” employees tend to exclude
temporary, irregular, subcontracted, casual, or home-based workers. These
groups, including workers in the informal sector, make up a majority of the labor
force.30 Further, supply chain employers that are presumptively covered by
national labor statutes can often evade statutory protections by reconfiguring
much of their work force as short-term or contract labor.31
Another major limitation is the precarious legal status of migrant labor.
While transnational labor migration is concentrated in North America and
Western Europe, there are 20.4 million international migrant workers in Southeast
and South Asia and 17.6 million more in the Arab States—regions where many of
the world’s GSCs are located.32 These migrants often have severely limited labor
29 Among the IFC publications addressing these matters is Victoria Tetyora & Sitora Sultanova,
Tajikistan: Improving the Inspections Regime by Addressing Regulatory Implementation Gaps 11, 14 (IFC 2017)
(praising recent law establishing a strict framework for holding unannounced inspections and
limiting frequency of planned inspections as part of making Tajikistan a more investor-friendly
destination); Florentin Blanc & Marielle Leseur, How to Reform Business Inspections: Design,
Implementation, Challenges iii, 4 (IFC 2011) (discussing “common misconceptions” about frequency
of inspections and importance of unannounced inspections as promoting safety, and
acknowledging special contributions from World Bank Group teams in Bosnia and Herzegovina,
Latvia, Tajikistan, and Ukraine, as well as Colombia and Jordan).
30 See ILO, NONSTANDARD EMPLOYMENT AROUND THE WORLD: UNDERSTANDING CHALLENGES,
SHAPING PROSPECTS 15, 103–04 (2015) (temporary work constitutes 67% of wage employment in
Vietnam and is widespread in China, India, Indonesia, and Malaysia; casual work comprises nearly
two-thirds of wage employment in Bangladesh and India; incidence of fixed-term contracts is over
15% in Cambodia); Muhammod Shaheen Chowdhury, Compliance with Core International Labour
Standards in National Jurisdiction: Evidence from Bangladesh, 68 LAB. L.J. 78, 81–82 (2017) (Bangladesh
labor law excludes temporary or casual workers, who comprise a majority of labor force, and adds
specific occupational exclusions for domestic workers, agricultural workers, and employees in
education and research institutions, among others); ASIAN DEV. BANK, INDONESIA: ENHANCING
PRODUCTIVITY THROUGH QUALITY JOBS 226–28 (2018) (nearly 80% of regular employees in
Indonesia are in nonstandard forms of work).
31 See Drusilla Brown et al., Factory Decisions to Become Non-Compliant with Labour Standards: Evidence from
Better Factories Cambodia, in TOWARDS BETTER WORK, supra note 28, at 232–50; Chowdhury, supra
note 30, at 82.
32 Int’l Lab. Conf., 105th Sess., Promoting Fair Migration: General Survey Concerning the Migrant Workers
Instruments 4 (2016) (in 2013, out of 150.3 million economically active international migrants of
working age, 13.6% were working in Southeast and Southern Asia and 11.7% were working in the
Arab states); see also DILIP RATHA ET AL., MIGRATION AND REMITTANCES FACT BOOK 11 (World
282 Vol. 23 No. 2

standards protections33 and may justifiably fear being deported if they assert
whatever rights they do have.34
Finally, national labor laws lack authority beyond national borders. When
GSCs involve major factory production both inside and outside a given country,
the ability of that country’s government to monitor and enforce labor standards
is compromised by the real risks of production being shifted to a more lenient
regulatory setting.35 This allows many violations of workers’ rights to go
unchecked.
3. Strategic and resource restrictions on labor inspection
Even where there are applicable legal protections, workers must cope with
weaknesses in national labor inspectorates’ monitoring and enforcement of those
protections. The principal ILO Convention addressing labor inspection36 has been
ratified by 148 countries, constituting 80 percent of all ILO members, including
the large majority of supply chain countries in Asia, Africa, and Latin America.
Nonetheless, compliance with ratified or enacted inspection standards falls well
short in many developing countries.37 Such shortfalls are a product of both
purposeful government strategy and a practical dearth of resources for inspection.
Bank, 3d ed., 2016) (volume of South-South migration (38% of total) is larger than South-North
migration (34% of total)).
33 The independent Committee of Experts on the Application of Conventions and Recommendations
(CEACR), established by the ILO in 1926, is charged with making impartial observations regarding
a country’s progress toward compliance with ratified conventions in law and practice. The CEACR
has, for example, issued Observations reporting that many countries that have ratified ILO
Convention 87 on Freedom of Association and Protection of the Right to Organise nonetheless
prohibit or restrict foreign workers or migrant workers from establishing trade unions and/or
holding officer positions, in violation of the convention. See, e.g., CEACR Observations on
Convention 87: Int’l Lab. Conf., 108th Sess., Report of the CEACR 50, 132 (2019) (reporting on
Algeria, Philippines); Int’l Lab. Conf., 109th Sess., Report of the CEACR 43, 117, 155 (2020)
(reporting on Albania, Costa Rica, Honduras).
34 See, e.g., George Menz, Employers and Migrant Legality, in MIGRANTS AT WORK 44–59 (Cathryn
Costello & Mark Freeland eds., 2014); Manoj Dias-Abey, Justice on Our Fields: Can ‘Alt-Labor’
Organizations Improve Migrant Farm Workers Conditions?, 53 HARV. C.R.-C.L. L. REV. 168, 189, 197, 206
(2018); see also Jennifer Gordon, Regulating the Human Supply Chain, 102 IOWA L. REV. 445, 467 (2017)
(noting that migrant workers on temporary work visas in the Middle East face additional abuses
from the recruiting agencies through which some 80% have been placed).
35 See, e.g., Worker Rts. Consortium, Factory Assessment Update (Dec. 19, 2006),
https://perma.cc/K878-TNYH (analyzing Gina Form Bra factory closure in Thailand, which had
favorable labor conditions, and transfer of work to new facility in China operated by Gina parent
company).
36 ILO Convention 81 covers labor inspection for industry and commerce. See generally ILO
Convention 81: Labour Inspection Convention, Jul. 11, 1947. In addition, ILO Convention 129
covers agriculture inspection using parallel provisions. See generally ILO Convention 129: Labour
Inspection (Agriculture) Convention, June 25, 1969.
37 In its 2020 General Observation on Labor Administration and Inspection, the CEACR identified
many issues discussed below as reflecting a trend that “has been most notable in Eastern Europe
Winter 2023 283

One mechanism used by governments is to suspend labor inspections or

remove them from central control.38 Moratoria and outsourcing tend to reflect
governments’ conclusion that deregulation will help to attract a greater share of
foreign investment. Another channel for diminishing the effectiveness of labor
inspections is imposing de facto restrictions on inspectors’ power to apply their
authority. Governments often require that employers be informed in advance of
the date of inspection visits, a deviation from the ILO’s labor inspection
convention, which authorizes unannounced audits and inspections.39 In addition,
some developing countries impose limits on the number of worksite visits that
regulators may make.40 These various constraints undermine detection of labor
law violations and impede imposition of penalties or other sanctions prescribed
under national law.41
Further, labor inspectorates in developing countries operate with gravely
inadequate staffing and resources. Budgetary challenges pose problems for labor
bureaucracies even in developed countries, but the problems in developing
countries are especially serious. Governments in developing countries that have
ratified ILO Convention 81 regularly operate with a low number of inspectors, an
and Central Asia but [with] examples in other regions as well.” ILO CEACR Observation on
Convention 81: Int’l Lab. Conf., 109th Sess., Report of the CEACR 461 (2020).
38 See, e.g., ILO CEACR Observations on Convention 81: Int’l Lab. Conf., 108th Sess., Report of the
CEACR 470, 479, 481, 504 (2019) (Bangladesh: export processing zones not covered by national
labor inspection service; India: export processing zones inspected by agency responsible for
attracting investment; Indonesia: decentralization; Ukraine: moratorium); Int’l Lab. Conf., 109th
Sess., Report of the CEACR 492 (2020) (Uganda: decentralization); Int’l Lab. Conf., 109th Sess.,
Addendum to the 2020 Report of the CEACR 571, 595 (2021) (Kyrgyzstan: moratorium; Tajikistan:
moratorium). See generally EU-ILO PROJECT, UKRAINIAN LABOUR INSPECTION LEGAL
FRAMEWORK: ANALYSIS AND RECOMMENDATIONS 57–58 (2018) (criticizing decentralization model
applied at that time as likely to undermine the effectiveness of labor inspections).
CEACR 480 (2019) (India); Int’l Lab. Conf., 109th Sess., Report of the CEACR 490 (2020) (Sierra
Leone); Int’l Lab. Conf., 109th Sess., Addendum to the 2020 Report of the CEACR 562, 574, 607
(2021) (Albania, Pakistan, Zimbabwe). Inspection visits typically occur at commercial and industrial
worksites; employment of homeworkers at the lower tiers of GSCs presents special difficulties for
labor inspection. See generally ILO, The Regulatory Framework and the Informal Economy: Labour
Administration (2013), https://perma.cc/H56X-6AL4.
CEACR 445 (2018) (Moldova); Int’l Lab. Conf., 109th Sess., Addendum to the 2020 Report of the
CEACR 571, 605 (2021) (Kyrgyzstan, Vietnam).
41 Implementation of enacted labor law norms is further eroded when inspectorates are charged with
separate duties that conflict with their mandate to monitor and enforce workplace standards. In
many countries, labor inspectors are assigned to assist in enforcement of the nation’s immigration
laws. See, e.g., ILO CEACR Observations on Convention 81: Int’l Lab. Conf., 109th Sess., Report
of the CEACR 471, 473, 487 (2020) (Italy, Lebanon, Saudi Arabia); Int’l Lab. Conf., 109th Sess.,
Addendum to the 2020 Report of the CEACR 585–86, 591–92 (2021) (Romania, Slovenia). This
assignment directly interferes with inspectors’ responsibility to protect foreign and migrant workers
from workplace exploitation or abuse. As a result, practices such as human trafficking and
hazardous exposure of migrant children go undetected and unpunished.
284 Vol. 23 No. 2

insufficient number of inspections, and a shortage of computer and transport

equipment. Moreover, they often offer low salaries to labor inspectors as
compared to other civil servants doing comparable work, making it hard to retain
a quality workforce.42
The obstacles in law and practice described in this section have not
prevented developing countries from improving GSC working conditions in
particular settings.43 Nonetheless, the bigger picture is that on account of these
obstacles, the public law approach in developing countries is not able to provide
basic protections to the tens of millions of workers in their GSCs.
B. Weakness of the Corporate Social Responsibility Approach
Starting in the 1970s and accelerating since the 1990s, a sizable majority of
MNEs have adopted codes of corporate social responsibility declaring, inter alia,
their respect for workers’ rights.44 These CSR codes generally include an
expectation or commitment that the MNE and its suppliers will adhere to the
ILO’s eight fundamental conventions and other basic worker protections.45 The
codes are, in part, self-serving: MNEs regard them as a useful reputational asset,
showcased on their websites as part of an effort to attract consumers and
investors. Yet they also reflect genuine efforts to address the governance gap that
CEACR 481, 495–96 (2019) (reporting on Indonesia, Saudi Arabia); Int’l Lab. Conf., 109th Sess.,
Report of the CEACR 493 (2020) (reporting on Uganda); Int’l Lab. Conf., 109th Sess., Addendum
to the 2020 Report of the CEACR 564, 567–68, 570, 606 (2021) (reporting on Bangladesh, Haiti,
India, Vietnam); see also ILO General Survey on Labour Inspection 77 ¶ 240 (2006) (noting that in many
developing countries, a miniscule proportion of the budget is dedicated to labor administration, and
only a fraction of that amount goes to labor inspection).
43 One example is the Better Work program, described infra Part IV.B. Coordinated by the ILO and
the IFC, Better Work operates in specific factories in five Asian, two African, and two Latin
American countries with the support of their governments.
44 See Richard Appelbaum, From Public Regulation to Private Enforcement: How CSR Became Managerial
Orthodoxy, in ACHIEVING WORKERS’ RIGHTS IN THE GLOBAL ECONOMY 32, 43 (Richard P.
Appelbaum & Nelson Lichtenstein eds., 2016) [hereinafter ACHIEVING WORKERS’ RIGHTS] (as of
2016, 86% of Fortune Global 200 corporations had codes of conduct and two-thirds had updated
their codes within past three years). Many companies that adopted a code of conduct after 1998
were influenced by the U.N. Global Compact, launched in 2000; of the ten principles with which
thousands of Global Compact member companies pledge to align themselves, the four labor-related
ones are the ILO’s Fundamental Principles and Rights at Work. See id. at 41.
45 See, e.g., SIEMENS, SIEMENS BUSINESS CONDUCT GUIDELINES 37 (2021), https://perma.cc/C86S-
QL9R; PROCTER & GAMBLE, WORLDWIDE BUSINESS CONDUCT MANUAL: HUMAN RIGHTS POLICY
STATEMENT 1–2 (2021), https://perma.cc/S3ZZ-WX4K; ADIDAS, ADIDAS CODE OF CONDUCT
FOR SUPPLIERS: WORKPLACE STANDARDS (2016), https://perma.cc/C4ZP-J6S2.
Winter 2023 285

exists in most GSC countries where, as just described, governments are unwilling
or unable to regulate business conduct that violates basic labor and human rights.46
The CSR approach, however, falls far short of adequately protecting
workers’ rights due to (i) deficiencies in the codes’ design and implementation and
(ii) the codes’ basis in voluntary action.
1. Deficiencies in design and implementation
CSR codes require effective implementation in order to avoid becoming at
best a public relations statement of business hopes and at worst an outright sham.
Since the 1990s, worker-oriented organizations,47 multi-stakeholder initiatives
(MSIs),48 and MNEs themselves have sought to provide monitoring of how CSR
codes are applied and enforced across supply chains. But despite the remarkable
growth of corporate self-regulation during this period, CSR concepts and
structures have failed to protect supply chain workers.49 This failure has been well
documented over the past two decades, both by scholars who professed some
hope for the success of CSR50 and by skeptics in the scholarly and human rights
communities.51
A recent book by Professor Sarosh Kuruvilla examined the inherent
shortcomings of CSR codes, drawing extensively on data from MNEs, MSIs, and
auditing companies as well as on prior studies.52 Kuruvilla did find that the labor
standards enumerated in most CSRs have converged over time and have come to
46 See generally Robert H. Montgomery & Gregory F. Maggio, Fostering Labor Rights in Developing
Countries: An Investors’ Approach to Managing Labor Issues, 87 J. BUS. ETHICS 199 (2008); Justine Nolan,
Closing Gaps in the Chain: Regulating Respect for Human Rights in Global Supply Chains and the Role of Multi-
Stakeholder Initiatives, in POWER AND PARTICIPATION, supra note 26, at 35.
47 Two examples of organizations focused on defending and improving workers’ rights are the Worker
Rights Consortium (WRC) and the Clean Clothes Campaign. See also HUMAN RIGHTS WATCH
(HRW), https://perma.cc/W7AP-74VZ (addressing worker rights as part of broader human rights
agenda).
48 MSIs are voluntary collaborations involving business, governments, and civil society that seek to
address issues of mutual concern including human rights and sustainability. Some examples are the
Ethical Trading Initiative (ETI), Social Accountability International (SAI), and the Global Social
Compliance Programme (GSCP).
49 On the inadequacy of CSR, see SAROSH KURUVILLA, PRIVATE REGULATION OF LABOR STANDARDS
IN GLOBAL SUPPLY CHAINS (2021); Jill Esbenshade, Corporate Social Responsibility: Moving from Checklist
Monitoring to Contractual Obligation?, in ACHIEVING WORKERS’ RIGHTS, supra note 44, at 51, 52–57.
50 See RICHARD LOCKE, THE PROMISE AND LIMITS OF PRIVATE POWER 38 (2013) (lamenting transition
from belief in the “promise” of private CRS monitoring to conclusion that “[i]n reality, the
information collected through [social] audits is biased, incomplete, and often inaccurate”).
51 See, e.g., Esbenshade, supra note 49; Appelbaum, supra note 44; James J. Brudney, Envisioning
Enforcement of Freedom of Association Standards in Corporate Codes: A Journey for Sinbad or Sisyphus?, 33
COMP. LAB. L. & POL’Y J. 555, 570–74 (2012); Jessica Champagne, From Public Relations to Enforceable
Agreements: The Bangladesh Accord as a Model for Supply Chain Accountability, in POWER AND
PARTICIPATION, supra note 26, at 154, 156–60.
52 See KURUVILLA, supra note 49.
286 Vol. 23 No. 2

be based largely on standards covered in ILO conventions, with the exception of

standards for wages.53 But, like scholars before him, he concluded that the auditing
methods used to monitor whether suppliers comply with these codes are deeply
flawed.
Labor standards compliance audits tend to be superficial tick-box exercises.
They are unduly focused on reviewing documents rather than investigating shop-
floor processes and interviewing workers. Moreover, the documents themselves
can be readily falsified, especially as audits are typically announced in advance.
Worker interviews that occur are usually “staged” at the factory site, characterized
by advance coaching and/or intimidation. And auditors’ inadequate training and
orientation result in part from use of the document-heavy model of corporate
financial auditing.54
In addition, Kuruvilla found that global buyers have failed to align their
compliance aspirations with their sourcing practices by increasing product orders
and longer-term commitments for suppliers who demonstrate improved
compliance records. Instead, buyers’ sourcing and compliance practices are usually
in direct conflict. MNE sourcing departments regularly pressure suppliers for
rapid delivery times and minimized production costs, and compliance
departments rarely have the power to affect the sourcing departments’ decisions.55
This lack of alignment reflects an underlying design flaw in the CSR private
regulatory model. A public pledge to promote decent working conditions may
help attract or retain consumers and investors who prefer to engage with a socially
responsible company. It also may mollify regulators who allocate their scarce
resources among more obviously delinquent actors. But this pledge animating the
CSR approach focuses on enhancing brand value and limiting legal liability more
than protecting labor rights.56
In canvassing the scholarship on private regulation outcomes, Kuruvilla
cited two model programs that showed progress with respect to workers’ rights.57
A feature common to these programs is the extensive involvement of workers’
53 See id. at 2, 9 (noting differences in wage standards between focus on minimum wage versus living
wage). The U.N. Global Compact’s labor principles, discussed supra note 44, are silent on wages.
54 See id. at 9–10, 36–47 (summarizing and analyzing problems previously identified and citing LOCKE,
supra note 50, and other scholars).
55 See id. at 8–10, 216–18; TIM BARTLEY ET AL., LOOKING BEHIND THE LABEL: GLOBAL INDUSTRIES
AND THE CONSCIENTIOUS CONSUMER 165–66, 217 (2015); see also Jason Judd & J. Lowell Jackson,
Repeat, Repair, or Renegotiate? The Post-Covid Future of the Apparel Industry 57 (ILO Discussion Paper,
July 2021) (quoting senior apparel industry experts who find no evidence in economics of global
apparel industry that would alter buyers’ incentives to continue to shift costs to suppliers).
56 See KURUVILLA, supra note 49, at 8; see also LOCKE, supra note 50, at 176–77 (concluding that
upstream business practices are driving many of the unfair labor practices by suppliers).
57 See KURUVILLA, supra note 49, at 75. These programs—the Accord on Fire and Safety in Bangladesh
and the Better Work Program—and the ILO’s involvement in creating and/or administering them,
are discussed infra Part IV.B.
Winter 2023 287

representatives in program design, implementation, and enforcement, both at the

planning stage and at the factory level.58 Notably, many MNEs have supported
and encouraged this involvement.59 Yet such worker engagement is entirely absent
from the CSR model. And MSIs do not fare much better in their structure and
operations.60
The latest summary of findings about private regulation in GSCs shows that
there have been no lasting improvements.61 After several decades of widespread
CSR initiatives, that itself is a notable result. And in recent years, the COVID-19
pandemic has provided a dramatic illustration of the inability of CSR and national
laws to furnish labor standards protection in GSCs. As apparel brands and retailers
slashed production volume in their garment industry supply chains, garment
58 For the Accord, see Champagne, supra note 51, at 164–68. Following a 2013 factory collapse killing
more than 1100 workers, the Accord was designed by workers’ rights advocates. Features included
worker education committees, a complaint mechanism with protection against retaliation, and a
right to refuse unsafe work. For Better Work, see Workers and Unions, BETTER WORK,
https://perma.cc/6KRV-UR9Y. As summarized by KURUVILLA, supra note 49, at 102–05, the key
to the process of working conditions improvement over repeated assessments is factory-level social
dialogue through a Performance Improvement Consultative Committee (PICC) comprised of equal
numbers of factory-level management and worker representatives.
59 See Our Approach, BETTER WORK, https://perma.cc/QEK3-5XJA. Better Work provides brands
and retailers with compliance assessment reports of their suppliers and asks them to use their
commercial influence to encourage needed improvements. Improvements can be financed through
IFC-supported preferential interest rates; failure to make improvements can result in public
disclosure of serious non-compliance, with consequences for brand and retailer reputations. A
number of leading brands list partnership or affiliation with Better Work and/or the Accord on
their websites. See, e.g., Memberships and Collaborations, H&M GROUP, https://perma.cc/Z7TA-
T4W7; Impact Partnerships and Collaborations, NIKE (June 1, 2021), https://perma.cc/44TF-U8C4;
Moving Beyond Audits to Empowerment, PVH (May 8, 2019), https://perma.cc/B75H-CQFR.
60 See Ingrid Landau & Tess Hardy, Transnational Labour Governance in Global Supply Chains: Asking
Questions and Seeking Answers on Accountability, in DECENT WORK IN A GLOBALIZED ECONOMY:
LESSONS FROM PUBLIC AND PRIVATE INITIATIVES 43, 55–57 (ILO, Guillaume Delautre, Elizabeth
Echeverria, & Colin Fenwick eds., 2021) (discussing MSI shortcomings with respect to compliance
verification, sanctions, and governance structures). Less than 15% of transnational standard-setting
MSIs report including any members of affected populations as part of their primary decision-
making body. See The New Regulators? Assessing the Landscape of Multi-Stakeholder Initiatives 10 (MSI
Integrity and Duke Human Rights Center, June 2017).
61 See KURUVILLA, supra note 49, at 7. See generally Mark Anner, Squeezing Workers’ Rights in Global Supply
Chains: Purchasing Practices in the Bangladesh Global Export Sector in Comparative Perspective, 27 REV. OF
INT’L POL. ECON. 320 (2019); Tim Bartley, Institutional Emergence in an Era of Globalization: The Rise of
Transnational Private Regulation of Labor and Environmental Conditions, 113 AM. J. SOCIOLOGY 297 (2007).
MNEs seeking to improve their supply chain compliance through codes of conduct might be
expected to support efforts to protect freedom of association and collective bargaining in their
supply chains. Those two fundamental rights serve an enabling function, providing a process by
which workers can identify compliance deficiencies in areas such as forced overtime or unsafe
conditions, and then engage with management to address the deficiencies. In fact, freedom of
association and collective bargaining are the least supported ILO-recognized fundamental rights in
current private regulatory efforts. See KURUVILLA, supra note 49, at 76, 148–49, 153–54, 178–80
(citing his own data and studies by others).
288 Vol. 23 No. 2

workers around the world suffered steep declines in hours and wages—assuming
they were able to retain their jobs at all.62 At the same time, major brands recorded
substantial profits starting in the second half of 2020.63 Despite these profit
figures, millions of workers have been denied wages they were legally owed for
work they had already completed.64 Brands have withheld payments to their
suppliers, who are then far less able to pay their workers even for completed work.
Additionally, one in four workers fired as a result of the pandemic reportedly
has not received legally mandated severance pay.65 One study of factories in eleven
countries66 has estimated that severance theft during the pandemic likely exceeds
half a billion dollars.67 Although the laws of these countries prohibit wage and
severance theft,68 little has been done to enforce them. There is even an indication
that some Asian governments have used the 2020 economic crisis to restrict labor
rights and postpone wage negotiations.69
2. The dilemma of voluntary action
The most ambitious framework for applying CSR in a transnational setting
is the U.N. Guiding Principles on Business and Human Rights (UNGPs or
“Guiding Principles”), promulgated in 2011.70 Regrettably, however, application
of the UNGPs involves purely voluntary action to be undertaken by business
enterprises.
62 See Fired, Then Robbed, supra note 11, at 1–3; Wage Theft and Pandemic Profits, supra note 11, at 3.
63 See Fired, Then Robbed, supra note 11, at 1 (documenting substantial profits for Amazon, H&M,
Inditex, Next, Nike, Target, and Walmart); Wage Theft and Pandemic Profits, supra note 11, at 4
(identifying sixteen brands that recorded over $10 billion in profits in the second half of 2020).
64 See Wage Theft and Pandemic Profits, supra note 11, at 3 (referring to cancelled orders, non-payment to
suppliers, and other commercial practices by brands), 8–17 (reviewing results from eight case
studies in Bangladesh, Cambodia, Myanmar, and the Philippines).
65 See id. at 3; see also Fired, Then Robbed, supra note 11, at 1, 16–25 (reporting documented failure to pay
legally earned severance at thirty-one factories in nine countries, depriving over 37,000 workers of
nearly $40 million, equivalent to an average of five months’ wages for a typical garment worker in
these settings; additional evidence indicates a similar story at 210 export apparel factories in eighteen
countries); Anner, supra note 11, at 374–76 (discussing how lead firms’ squeeze on their suppliers
left perhaps a million workers in Bangladesh and India without severance pay).
66 See Fired, Then Robbed, supra note 11 (documenting wage and severance theft in Bangladesh,
Cambodia, India, Indonesia, Myanmar, Thailand, El Salvador, the Dominican Republic, and
Jordan); Wage Theft and Pandemic Profits, supra note 11 (documenting wage and severance theft in
Bangladesh, Cambodia, Myanmar, the Philippines, and Ethiopia).
67 See Fired, Then Robbed, supra note 11, at 2–3.
68 See id. at 7 (listing statutory protections in nine countries for severance pay and pay in lieu of notice).
69 See Judd & Jackson, supra note 55, at 48 (referring to developments in Cambodia, India, Indonesia,
and Myanmar).
70 Guiding Principles on Business and Human Rights, U.N. Office of Human Rights High
Commissioner 2011 [hereinafter UNGPs].
Winter 2023 289

The UNGPs’ fourteen principles dealing with business responsibility to

respect human rights71 set forth an internationally recognized course of action for
business enterprises seeking to prevent and address human rights risks.72 Under
the UNGPs, these enterprises should “know and show” their respect for human
rights.73 To do this, they should have in place a “human rights due diligence
process” that can “identify, prevent, mitigate and account for” how they address
adverse human rights impacts.74 As part of the prevention and mitigation stage, a
business enterprise that causes or contributes to an adverse human rights impact
“should take the necessary steps to cease or prevent” the impact it is causing or
to which it is contributing.75
The situation is more complicated where an enterprise’s involvement is not
causal or contributory, but the adverse impact is still directly linked to its
operations, products, or services by a business relationship. Appropriate action
there depends on factors such as the enterprise’s leverage over the third party, the
importance to the enterprise of the third-party relationship, and the severity of the
abuse.76 If business enterprises have caused or contributed to adverse human
rights impacts, they should provide for or cooperate in remediation.77 When the
relationship is one of direct linkage rather than causation or contribution, the
enterprise is not responsible for providing remediation, although it may participate
in doing so.78
Significantly, the UNGPs reflect the idea that businesses as well as states
have responsibility for the protection of human rights. Moreover, business
enterprises are expected to conduct human rights due diligence (HRDD) by
examining their supply chain activities to make themselves aware of any adverse
human rights impacts caused by the operations of entities with whom they are
directly linked by a business relationship.79 The Guiding Principles also expressly
71 See id. princ. 11–24. Principles 1–10 of the UNGPs address the State’s duty to protect human rights;
princ. 25–31 address access to remedy through state-based judicial mechanisms or other grievance
mechanisms both state-based and non-state-based.
72 The U.N. Human Rights Council endorsed the UNGPs in 2011. For detailed analysis of the
UNGPs’ origins and discussion of their importance and limitations, see generally JOHN GERARD
RUGGIE, JUST BUSINESS: MULTINATIONAL CORPORATIONS AND BUSINESS RIGHTS (2013). Ruggie
was principally responsible for developing the Guiding Principles over several years, in his role as
the Special Representative of the U.N. Secretary-General.
73 UNGPs, cmt. to princ. 15.
74 Id. princ. 15(b), 17.
75 See id. princ. 19(b) and cmt.
76 See id.
77 See id. princ. 22 and cmt.
78 See id. princ. 22 and cmt.
79 See id. princ. 17 and cmt.; Nicola Jagers, U.N. Guiding Principles on Business and Human Rights: Making
Headway Toward Real Corporate Accountability?, 29 NETHERLANDS Q. OF HUMAN RTS. 159, 162 (2011)
290 Vol. 23 No. 2

recognize the ILO Declaration on Fundamental Principles and Rights at Work,

specifying its eight underlying conventions as an authoritative component of the
core human rights that should be respected.80
At the same time, the UNGPs are presented only as recommendations.
HRDD by business enterprises is a voluntary process and creates no directly
justiciable requirements.81 Moreover, due diligence as a risk-management
approach, analogous to minimizing or avoiding business risks and their attendant
liability, raises concerns about structural design similar to those identified for CSR
in general.82 Relatedly, the UNGPs do not contemplate a meaningful role for
workers or their representatives. The principles addressing Corporate
Responsibility to Respect refer at a few points to business consultation with or
feedback from “stakeholders,” but they never expressly mention workers or
suggest that stakeholders play more than a peripheral part in the due diligence
process.83
Notwithstanding its high profile, the UNGPs’ invitation to business
enterprises to develop and implement a voluntary human rights due diligence
process has generally been ignored or taken up in desultory fashion. An
assessment published in 2020 found that almost half the world’s largest companies
failed to show any evidence at all of identifying or mitigating human rights issues
in their supply chains.84
Due in large part to the shortfalls associated with the UNGPs’ voluntary
nature, some developed countries have recently enacted national laws that
mandate corporate obligations to undertake HRDD, as discussed in the next
section. The HRDD framework is further analyzed in Part III as a starting point
for developing an international convention that goes beyond these current
national laws.
(welcoming the responsibility to pursue due diligence down the supply chain, including the conduct
of a range of affiliates and subsidiaries).
80 See UNGPs, princ. 12 and cmt.
81 See Anne Trebilcock, Due Diligence on Labour Issues: Opportunities and Limits of the U.N. Guiding Principles
on Business and Human Rights, in RESEARCH HANDBOOK ON TRANSNATIONAL LABOR LAW 93, 96,
104–05 (Adelle Blackett & Anne Trebilcock eds., 2015); see also Jagers, supra note 79, at 162 (decrying
the “weak approach to corporate responsibility” in the Respect pillar of the UNGPs).
82 See supra note 54 and accompanying text.
83 See, e.g., UNGPs, princ. 18 (discussing consultation with “potentially affected groups and other
relevant stakeholders” during the initial risk assessment process), princ. 20 (discussing feedback
“from both internal and external sources, including affected stakeholders” when tracking the
effectiveness of risk response).
84 BHRRC, TOWARDS EU MANDATORY DUE DILIGENCE LEGISLATION: PERSPECTIVES FROM
BUSINESS, PUBLIC SECTOR, ACADEMIA, AND CIVIL SOCIETY 6 (Nov. 2020),
https://perma.cc/KDV7-S5RU [hereinafter BHRRC, TOWARDS EU MANDATORY DUE
DILIGENCE LEGISLATION].
Winter 2023 291

C. Limitations of Recent National Laws in

Developed Countries
As discussed above and as confirmed by multiple studies, the UNGPs’
voluntary framework has been ineffective.85 In response to this state of affairs,
many large companies in Europe have called for a statutory approach that
mandates HRDD in order to create legal certainty and a level playing field.86 Some
EU legislators and national agency officials also have urged a mandatory approach
that imposes obligations (not just “responsibilities”) on companies to manage
adverse human rights risks in most or all of their supply chains and makes
international standards, like the ILO fundamental conventions, enforceable under
national or EU law.87 As part of these proposed obligations to address risks in a
concrete and detailed manner, there have been calls for provisions imposing
sanctions, including possible liability before European courts, and for victims to
have direct access to remedies.88
Statutory developments at the national level in developed countries have
taken two distinct directions. One set of laws has emphasized disclosure through
reporting obligations specifically aimed at slavery and human trafficking. A second
85 See, e.g., Markus Krajewski et al., Mandatory Human Rights Due Diligence in Germany and Norway: Stepping,
or Striding, in the Right Direction?, 6 BUS. & HUM. RTS. J. 550, 552 (2021) (only 13–17% of all German
companies with more than 500 employees actively applied human rights due diligence in 2019 and
2020); Mathew Millen et al., Human Rights Disclosure in ASEAN 6–7, 9–10 (2019) (human rights
disclosure records for large publicly traded companies in Indonesia, Malaysia, the Philippines,
Singapore, and Thailand fall substantially short of the standard set in the UNGPs in terms of both
extent and quality; one example is that despite focus on human trafficking in the southeast Asia
region, only 15.6% of top-listed companies make any mention of human trafficking as a significant
issue); The Report of the Working Group on the Issue of Human Rights and Transnational Corporations and
Other Business Enterprises, U.N. Doc. A/73/163 ¶¶ 25–29 (July 16, 2018) (discussing systematic
shortcomings in business compliance with the Guiding Principles, including, inter alia, erroneous
focus on risk to the business and not risk to rights holders; tick-box human rights assessments that
fail to engage with stakeholders; pervasive weaknesses in taking action, tracking responses, and
remediation).
86 See, e.g., Our Responsibility in a Globalized World, BHRCC (Aug. 2020), https://perma.cc/8ZV2-SVPK;
Statement of 65 German Businesses Calling for Legislation that Requires Companies to Conduct Human Rights
and Environmental Due Diligence, BHRRC (Aug. 2020), https://perma.cc/B3JJ-BBSC; see also Janos
Amman & Silvia Ellena, Company Coalition Calls for Robust Human Rights Due Diligence Laws, EURACTIV
(Feb. 8, 2022), https://perma.cc/FXB4-FNYK (more than 100 companies signed a joint statement
calling for mandatory HRDD legislation covering all companies in Europe).
87 See BHRRC, TOWARDS EU MANDATORY DUE DILIGENCE LEGISLATION, supra note 84, at 17–19
(views of three members of European Parliament, from the Netherlands, Germany, and Finland),
28–31 (statement of Odile Rousel, French Ministry for Europe and Foreign Affairs).
88 See id. at 18–19, 30–31. Other prominent participants recommend that access to trade markets be
made conditional on compliance with core requirements defined under such a mandatory human
rights statute. See id. at 41–43 (statement of Olivier De Schutter, U.N. Special Rapporteur on
Extreme Poverty and Human Rights & Sharon Burrow, International Trade Union Confederation).
292 Vol. 23 No. 2

statutory approach builds upon the UNGPs’ due diligence template. Both
approaches have serious limitations in principle and practice.
1. The disclosure requirements approach
The approach that emphasizes disclosure of workers’ rights violations
through reporting obligations has notably been used to address slavery and human
trafficking. Statutes enacted in California, the U.K., and Australia require larger
commercial organizations to make disclosures identifying steps they have
undertaken to prevent slavery and/or human trafficking within their supply chains
or any part of their business organizations.89 This focus on mandatory public
disclosures is intended to promote socially conscious decisions by consumers and
investors, but it has been less than effective for several reasons.90
First, the absence from the statutes of specified uniform disclosure standards
allows companies significant discretion in how they choose to comply with
statutory requirements.91 This makes it unlikely that consumers or investors will
receive a consistent picture of what compliance means. Second, even if a
company’s report affirms the presence of slavery or states that the company is
declining to make efforts to eradicate slavery in its supply chain, that disclosure
has no legal consequences under the statutes.92 Finally, the statutes provide no
serious enforcement mechanism for nondisclosure. Authorities can seek an
injunction to compel compliance but there are no penalties for noncompliance
and consumers are given no private right of action.93 Accordingly, it is not
89 See California Transparency in Supply Chains Act of 2019, Cal. Civ. Code § 1714.43(c); U.K.
Modern Slavery Act of 2015, § 54(1)–(5); Australian Modern Slavery Act 2018, § 16(1). The annual
revenue threshold for coverage under these statutes ranges from £36 million (U.K. statute) to $100
million (California statute).
90 For detailed critiques of the three statutes, including references to empirical results, see David Hess,
Modern Slavery in Global Supply Chains: Toward a Legislative Solution, 54 CORNELL INT’L L.J. 247, 260–
69 (examining all three statutes); Chiara Macchi & Claire Bright, Hardening Soft Law: the Implementation
of Human Rights Due Diligence Requirements in Domestic Legislation, in LEGAL SOURCES IN BUSINESS AND
HUMAN RIGHTS: EVOLVING DYNAMICS IN INTERNATIONAL AND EUROPEAN LAW 218, 222–29
(Martina Buscemi et al. eds., 2020) (examining U.K. and Australia statutes); Rachel Chambers &
Jena Martin, Foreign Corrupt Practices Act for Human Rights: A Due Diligence Plus Model for the United
States?, 12–17, WVU College of Law Research Paper No. 2021–019 (May 12, 2021),
https://perma.cc/87LU-LHL3 (examining California statute); Marcia Narine, Disclosing Disclosure’s
Defects: Addressing Corporate Irresponsibility for Human Rights Impacts, 47 COLUM. HUM. RTS. L. REV. 84,
120–22 (2015) (examining California statute).
91 See, e.g., Cal. Civ. Code § 1714.43(a)(1), (c) (2014) (in disclosing “efforts to eradicate slavery and
human trafficking from [their] direct supply chain for tangible goods offered for sale,” companies
must disclose “to what extent, if any” they conduct or maintain verification, auditing, supplier
certification, internal accountability standards, and employee training).
92 See Narine, supra note 90, at 121–22; Chambers & Martin, supra note 90, at 13.
93 See Hess, supra note 90, at 263, 264; Narine, supra note 90, at 122; Chambers & Martin, supra note
90, at 13; Macchi & Bright, supra note 90, at 226. The U.K. law does require annual disclosure
Winter 2023 293

surprising that the majority of companies covered by the California law and 40
percent of covered U.K. companies have not complied with even the soft
requirements.94
Mandated disclosure as a tool for regulating companies is often justified as a
means of promoting consumer or investor empowerment, by reducing
information asymmetries without imposing onerous behavioral requirements on
those companies.95 But apart from broader concerns about whether most
consumers read or understand such disclosures,96 scholars have been skeptical that
supply chain disclosure regimes will lead consumers or investors to punish
businesses with poor human rights records.97
Unlike consumer disclosures focused on a product’s features that directly
affect individual use, supply chain disclosures address the more intangible moral
possibility that the process by which the product is made will allow for human
rights abuses. Such disclosures require that consumers act, sometimes against their
own financial interest, to further their ethical ideals on the basis of unclear signals
(such as audits conducted, certifications granted, or training offered) expressed in
vaguely worded language. That, in turn, can lead consumers to shirk their ethical
ideals, rationalize unsettled choices, or perhaps seek more information that can
then become overwhelming. And the nature of supply chain operations further
exacerbates these challenges, given that risk levels can vary considerably based on
industry, country of operation, and number of tiers or suppliers. Unsurprisingly,
studies indicate that disclosure alone does not change consumer or investor
behavior regarding human rights abuses, whether due to confusing information,
disclosure overload, capricious priorities, insufficient passion to sustain a boycott,
or a combination of these elements.98
statements from covered companies, a step beyond the one-off disclosure mandated under
California law. See Hess, supra note 90, at 263.
94 See Five Years of the California Transparency in Supply Chains Act, KNOW THE CHAIN (Sept. 30, 2015),
https://perma.cc/29GR-WXPP; Chris N. Bayer & Jesse H. Hudson, Corporate Compliance with the
California Transparency in Supply Chains Act: Anti-Slavery Performance in 2016 (Mar. 7, 2017),
https://perma.cc/8AU4-6MA3; Macchi & Bright, supra note 90, at 225 (citing to an independent
final report on the U.K. Act, completed in 2019). Although the Australia statute includes certain
modest advances in the accessibility and content of company reports, there is still an absence of
independent oversight, financial penalties, a civil liability regime, or any requirement for companies
to undertake due diligence. See Macchi & Bright, supra note 90, at 229; Hess, supra note 90, at 266.
95 See generally Christopher Busch, Implementing Personalized Law: Personalized Disclosures in Consumer Law
and Data Privacy Law, 86 U. CHI. L. REV. 309 (2019).
96 See generally OMRI BEN-SHAHAR & CARL E. SCHNEIDER, MORE THAN YOU WANTED TO KNOW: THE
FAILURE OF MANDATED DISCLOSURE 3 (2014) (“‘Mandated disclosure’ may be the most common
and least successful regulatory technique in American law.”).
97 See Narine, supra note 90; Adam S. Chilton & Galit Sarfaty, The Limitations of Supply Chain Disclosure
Regimes, 53 STAN. J. INT’L L. 1 (2017).
98 For more detailed analysis of the challenges related to mandated disclosures in the supply chain
setting, see Narine, supra note 90, at 129–37; Chilton & Sarfaty, supra note 97, at 21–25.
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2. The due diligence requirements approach

The risk management concept of human rights due diligence set forth in the
UNGPs reflects commitment to a detailed process of voluntary corporate self-
regulation. No actual human rights outcomes are required, nor are there specified
consequences for failure to comply with the designated process. Several European
countries have built upon the Guiding Principles’ approach, promulgating statutes
that mandate HRDD by business enterprises. While this should be viewed as a
promising step toward providing meaningful protection for workers, the statutes
fall short in both their process and their outcome requirements. The Netherlands,
France, and Germany have enacted laws that offer examples of these limitations.
In the Netherlands, the Child Labour Due Diligence Act,99 enacted in 2019
and expected to take effect in 2023, once implementing regulations are passed,
requires companies to investigate whether there is a reasonable suspicion that the
goods or services they sell or supply to Dutch end-users have been produced using
child labor.100 If a company identifies such a suspicion, it must develop a plan of
action aimed at addressing the problem.101 Companies are required to submit a
statement to a designated state regulator declaring that they are exercising due
diligence with respect to their investigation and plan of action.102 Failure to
produce such a statement, or to exercise due diligence, is subject to potentially
sizable administrative fines, with affected third parties able to initiate the sanctions
process by filing a complaint with the regulator; repeat offenses may lead to
criminal sanctions for company directors.103
Although the Dutch statute moves beyond CSR by requiring due diligence
from companies, it covers only a single adverse human rights impact: child labor.
Moreover, liability attaches to companies only if they fail to develop and articulate
99 Wet zorgplicht kinderarbeid [Child Labour Due Diligence Act], Stb. 2019, 401 (Neth.).
100 See discussion in Liesbeth Enneking, Putting the Dutch Child Labour Due Diligence Act in Perspective, 12
ERASMUS L. REV. 20 (2019); Macchi & Bright, supra note 90, at 229–31; Hellios Information B.V.,
Dutch Child Labour Due Diligence Act (June 2021); Michael R. Littenberg et al., Dutch Child Labor Due
Diligence Act Approved by Senate: Implications for Global Companies, ROPES & GRAY (June 5, 2019),
https://perma.cc/Y9XX-RETG. Child labor is defined by specific reference to the two ILO
fundamental conventions on child labor. See Enneking, supra, at 31; Littenberg, supra. Unlike the
anti-slavery disclosure laws discussed earlier, the Dutch law covers companies of all sizes although
there is a provision allowing for administrative exemption for certain categories of companies. See
Enneking, supra, at 30.
101 See Wet zorgplicht kinderarbeid art. 5(1). The statute is based on the UNGPs, though its plan of
action contains no specific requirements as to the plan’s form or content—while stating that further
requirements may be established through secondary legislation. See Enneking, supra note 100, at 21.
102 See Wet zorgplicht kinderarbeid art. 4(1). The regulator is to make these statements widely available
through an online public registry. See Macchi & Bright, supra note 90, at 230.
103 See Wet zorgplicht kinderarbeid art. 5 (administrative fines), art. 9 (criminal offense); Macchi &
Bright, supra note 90, at 230–31; Hellios Information B.V., supra note 100, at 3; Littenberg, supra
note 100.
Winter 2023 295

a plan aimed at preventing child labor. Assuming such a plan is developed and
circulated, no liability attaches even if there are numerous instances of child labor
that contribute to the goods or services marketed to Dutch consumers.104
In France, the Corporate Duty of Vigilance Law,105 enacted in March 2017,
imposes a more substantial due diligence obligation on large companies to
monitor the extraterritorial human rights abuses committed as part of their
operations and supply chain.106 This due diligence obligation calls on parent
companies of a sufficient size107 to establish and publish a monitoring plan that
follows the UNGPs’ due diligence process approach,108 specifically requiring that
they (i) determine the human rights risks that arise in connection with activities in
their supply chain; (ii) regularly assess the extent of those risks associated with the
activities of subsidiaries, subcontractors, or suppliers with whom they have an
established business relationship; (iii) specify actions they will take to mitigate or
prevent any abuses; and (iv) monitor the measures they have taken and evaluate
their effectiveness.109 A concerned party has standing to request that a judge
compel a company to establish, implement, or publish a vigilance plan, with
injunctive fines available for failure to comply. Companies also may be subject to
civil liability if individuals are harmed by a failure to establish or implement a plan
and they seek damages for corporate negligence.110
104 Apart from this gap in formulation, the process under the Dutch law fails to specify the form or
content of action plans, creating legal uncertainty for companies seeking to comply. It requires only
a single due diligence statement, which conflicts with the UNGPs conception of due diligence as
an ongoing process, see UNGPs, princ. 17(c); it suggests that a third-party complaint is needed to
trigger government enforcement; and it contains no provision addressing access to remedy for
victims of child labor. See Enneking, supra note 100, at 21, 33; Macchi & Bright, supra note 90, at
231.
105 Loi 2017-399 du 27 mars 2017 relative au devoir de vigilance des sociétés mères et des entreprises
donneuses d’ordre [Corporate Duty of Vigilance Law], Journal Officiel de la République Française,
Mar. 28, 2017. The law is set forth in two articles of the French Commercial Code, Code de
commerce [C. com.] [Commercial Code], L.225-102-4-5 (Fr.). See THE FRENCH COMMERCIAL CODE
IN ENGLISH (Philip Raworth trans., 2020).
106 For analysis of the law’s provisions, see Almut Schilling-Vacaflor, Putting the French Duty of Vigilance
in Context: Towards Corporate Accountability for Human Rights Violations in the Global South?, 22 HUM.
RTS. REV. 109, 115–23 (2021); Macchi & Bright, supra note 90, at 231–36; Dalia Palombo, The Duty
of Care of the Parent Company: A Comparison Between French Law, U.K. Precedents, and the Swiss Proposals,
4 BUS. & HUM. RTS. J. 265, 275–76 (2019).
107 The law applies to French parent companies controlling a multinational corporate group of at least
10,000 employees worldwide or 5,000 employees in France. See Code de commerce [C. com.]
[Commercial Code], L.225-102-4(I).
108 See UNGPs, princ. 15(b), 17; supra text accompanying note 74.
109 See Code de commerce [C. com.] [Commercial Code], L.225-102-4(I.1,2,3,5).
110 See Code de commerce [C. com.] [Commercial Code], L.225-102-4(II), L.225-102-5. The law as
enacted also authorized French courts to impose substantial civil fines for noncompliance, but the
French Constitutional Court invalidated that provision, based on what in the Court’s view
amounted to an intent to sanction indeterminate obligations. The Court further concluded that the
296 Vol. 23 No. 2

The French law goes beyond the Dutch statute in a number of respects: it
covers a range of human rights abuses, it provides details on specified required
elements of due diligence plans, it mandates regular (not simply one-off)
assessments and evaluations of effectiveness, and it provides for civil liability.
These differences arguably strengthen the accountability of parent companies with
respect to HRDD obligations. But the French statute is not without its flaws. It
applies only to large parent companies, whereas the Dutch statute covers
companies of all sizes (an approach that is more consistent with the UNGPs).111
In addition, the French statute relies exclusively on the courts to enforce by
responding to applications from interested persons. It is silent regarding any
government agency role in providing supplemental enforcement or even guidance
materials to help address asymmetries of information and resources.112
The French law explicitly requires parent companies to consult with their
trade unions when establishing a complaints mechanism as part of the risk
assessment process.113 There is, however, no similar requirement for trade union
involvement when adopting actions to prevent or mitigate human rights abuses,
monitor the actions being taken, or evaluate their effectiveness. This implied
exclusion of a duty to consult with organizations representing workers—including
NGOs or other civil society organizations representing supply chain workers in
foreign countries—suggests that the design and implementation of monitoring
plans are unlikely to be any more effective than the plans designed and
implemented by business enterprises pursuant to the UNGPs or voluntary CSR
codes. As discussed in Part III, preventive measures, monitoring, and evaluation
are more likely to succeed when workers and their organizations have substantial
input in designing and implementing the processes.
Although French companies may be responsible in principle for the
extraterritorial human rights abuses of their subsidiaries, subcontractors, and
suppliers, victimized workers can establish civil liability in practice only by proving
several distinct elements: (i) the parent company breached its due diligence
civil liability provision simply reiterated the classic rules of civil liability in tort and did not create
any new system of vicarious liability. See STEPHANE BRABANT & ELSA SAVOUREY, COMMENTAIRES:
FRANCE’S DUTY OF VIGILANCE LAW: A CLOSER LOOK AT THE PENALTIES FACED BY COMPANIES
1–2 (2017); Vincent Brenot, The French Constitutional Court Partially Invalidates the Corporate Duty of
Vigilance Law, AUGUST-DEBOUZY (Mar. 24, 2017), https://perma.cc/V6XN-3GC6.
111 See UNGPs, princ. 17(b) (HRDD will vary in complexity with the size of business enterprise). As
explained supra note 100, the Dutch law covers companies of all sizes, although there is a provision
allowing for administrative exemption for certain categories of companies.
112 See Schilling-Vacaflor, supra note 106, at 115–21 (arguing that weak enforcement of French law
since 2017 relates directly to the government’s failure to rigorously monitor or enforce
implementation; civil society organizations lack knowledge and resources to analyze quality of
companies’ vigilance plans and collect sufficiently reliable information about negative human rights
consequences attributable to plan deficiencies).
113 See Code de commerce [C. com.] [Commercial Code], L.225-102-4(I.4).
Winter 2023 297

obligation by failing to establish and implement an effective monitoring plan; (ii)

as a result of that breach, a supply chain actor was able to commit human rights
abuses against the workers; and (iii) those abuses resulted in damages.114 Thus, if
a company’s vigilance plan is well established and effectively implemented,
workers will be unable to establish liability, regardless of whether a subcontractor
or subsidiary has committed extensive supply chain abuses against them. And even
if the vigilance plan is not well designed and implemented, liability still depends
on proving that the subcontractor or subsidiary abuses occurred as a result of the
plan’s deficiencies. Liability emerges as a function of the due diligence process
adopted and applied by the parent company, not based separately on the human
rights outcomes experienced by workers.
This difference between process-oriented and outcomes-oriented
approaches to liability reflects an ambiguity in the Guiding Principles as to
whether an HRDD risk management process, standing alone, can fulfill business
enterprises’ responsibility not to infringe on human rights. Certain language in the
UNGPs indicates that HRDD consists of a range of procedures that businesses
should have in place.115 Yet there is also language indicating that regardless of
whether a business enterprise has implemented due diligence processes, it should
be held responsible for causing or contributing to an adverse human rights
impact.116 French lawmakers chose not to hold companies strictly liable for
infringements of human rights which they themselves cause or to which they
contribute.117
The first vigilance plans pursuant to the French statute were published in
2018 and 2019, and initial assessments are not encouraging.118 The majority of the
114 See Tiphaine Beau de Lomenie & Sandra Cossart, Stakeholders and the Duty of Vigilance, DOSSIER
THEMATIQUE 5-6 (2017); Palombo, supra note 106, at 276; Macchi & Bright, supra note 90, at 235.
115 See UNGPs, princ. 17–21.
116 See UNGPs, princ. 11–13 (suggesting that business enterprises breach their responsibility whenever
they infringe human rights), princ. 17 cmt. (stating that business enterprises conducting due
diligence should not assume that it “will automatically and fully absolve them from liability for
causing or contributing to human rights abuse”). See generally Jonathan Bonnitcha & Robert
McCorquodale, The Concept of ‘Due Diligence’ in the U.N. Guiding Principles on Business and Human Rights,
28 EUR. J. INT’L L. 899, 901–05, 909, 912 (2017); Mark B. Taylor, Human Rights Due Diligence in Theory
and Practice, in RESEARCH HANDBOOK ON HUMAN RIGHTS AND BUSINESS 88, 103–06 (Surya Deva
& David Birchall eds., 2020).
117 Cf. Schilling-Vacaflor, supra note 106, at 116 (describing legislative history of the statute; as initially
submitted in 2013, the law imposed a burden of proof on companies to show they could not have
avoided the human rights abuse and attendant damage by precluding the risk or its realization, given
the power and means at their disposal).
118 See THE LAW ON DUTY OF VIGILANCE OF PARENT AND OUTSOURCING COMPANIES, YEAR 1:
COMPANIES MUST DO BETTER (Juliette Renaud et al. eds., 2019) [hereinafter COMPANIES MUST DO
BETTER] (reviewing eighty plans across the extractive, arms, agri-food, banking, and garment
sectors); Pauline Barraud de Lagerie et al., Implementing the French Duty of Vigilance Law: When
Enterprises Drew Up their First Plans, in DECENT WORK IN A GLOBALIZED ECONOMY, supra note 60,
298 Vol. 23 No. 2

plans exhibited problems of readability and accessibility;119 failure to identify and

consult with stakeholders;120 insufficient detail on the distinct approach to
mitigation and prevention measures;121 frequent erroneous focus on risks that
human rights abuses could cause for the company, rather than risks provoked by
the company, which is what the law requires;122 and monitoring and evaluation
components that were either not mentioned at all or identified as under
development.123 While these early returns may yield over time to an improved
compliance landscape, it seems possible if not probable that the French statute
will function as another form of corporate self-regulation, albeit under the soft
control of judges who are at times responsive to suitably knowledgeable and
aggressive private parties.124
Germany adopted the Act on Corporate Due Diligence Obligations for the
Prevention of Human Rights Violations in Supply Chains in June 2021, to take
effect in 2023.125 The German statute has more depth than its French counterpart
in a number of respects. It defines human rights risks to encompass specific
international conventions, including the eight ILO fundamental conventions.126 It
at 165, 170–81 (reviewing various problems in first sets of plans); Schilling-Vacaflor, supra note 106,
at 117–23 (presenting case study of French oil and gas company affecting indigenous communities
in Bolivia); Sherpa, Creating a Public Authority to Enforce the Duty of Vigilance Law: A Step Backward? 6–
8 (Apr. 2021), https://perma.cc/AVT9-5SMA (discussing ways to reinforce currently weak
implementation other than creating a supervisory authority).
119 See COMPANIES MUST DO BETTER, supra note 118, at 11 (most plans were only a few pages long,
and extensive cross-referencing of other chapters on corporate disclosure meant reading the plans
required constant flicking back and forth).
120 See id. at 13; de Lagerie et al., supra note 118, at 171.
121 See COMPANIES MUST DO BETTER, supra note 118, at 17; de Lagerie et al., supra note 118, at 176–
78.
122 See COMPANIES MUST DO BETTER, supra note 118, at 15.
123 See id. at 19.
124 See Sherpa, supra note 118, at 5–6 (proposing a facilitation of court cases through requiring better
access to internal company information, providing for a more favorable civil liability regime, and
strengthening the role of the Public Prosecutor’s office in civil proceedings); Macchi & Bright, supra
note 90, at 235–36 (expressing concern about the current state of superficial compliance).
125 Lieferkettensorgfaltspflichtengesetz [LkSG] [Act on Corporate Due Diligence Obligations for the
Prevention of Human Rights Violations in Supply Chains], July 16, 2021, Bundesgesetzblatt, Teil I
[BGBl I] at 2959 (Ger.), translated in Act on Corporate Due Diligence in Supply Chains, FED. MINISTRY
OF LAB. & SOC. AFFS. (Aug. 18, 2021), https://perma.cc/5FPC-ZG97. The Act is examined in
Krajewski et al., supra note 85; GUNTHER MAIHOLD ET AL., RESPONSIBILITY IN SUPPLY CHAINS:
GERMANY’S DUE DILIGENCE ACT IS A GOOD PLACE TO START (Mar. 2021),
https://perma.cc/7C4K-9TPT.
126 See LkSG, supra note 125, at § 2(1), Annex nos. 1–11. The Annex also includes the International
Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic,
Social and Cultural Rights (ICESCR). By contrast, the French statute refers in open-ended language
to “serious infringements of human rights and fundamental freedoms and impairment of the health
and safety of persons.” L.225-102-4.
Winter 2023 299

also includes extended and nuanced discussion of the distinct due diligence
obligations applicable to business enterprises and their direct suppliers.127 This
includes a section on remedial action specifying circumstances under which an
enterprise must act to end a recognized human rights violation in its own business
area or at a direct supplier, as well as relevant factors when deciding whether to
terminate a business relationship if the violation cannot be ended.128 Certain due
diligence obligations extend further down the supply chain, enabling persons to
report risks and violations that occur due to economic actions of an indirect
supplier.129 In addition, the German statute identifies specific supervisory and
implementation roles for public authorities,130 in contrast to the French law which
is silent regarding any presence for administrative agencies.
At the same time, the German statute, like its French counterpart, applies
only to very large enterprises.131 The statute also makes only brief mention of
giving “due consideration” to the interests of employees in establishing and
implementing its risk management system.132 Consultation with affected workers
or their representatives is not required, suggesting minimal interest in having them
participate meaningfully as part of the due diligence process.133 Further, although
companies must conduct risk analysis of an indirect supplier if they are informed
via “substantiated knowledge” suggestive of a human rights violation,134 the
coverage of due diligence in this one limited respect indicates that systematic due
diligence towards indirect suppliers is not envisioned under the statute.135 Finally,
127 See LkSG, supra note 125, § 3 (due diligence obligations), § 4 (risk management), § 5 (risk analysis),
§ 6 (preventive measures), § 7 (remedial action), § 8 (complaints procedure), § 10 (documentation
and reporting obligation).
128 See id. § 7(1) (when enterprise discovers that a human rights violation has occurred or is imminent,
“it must, without undue delay, take appropriate remedial action to prevent, end, or minimize the
extent of the violation”; in Germany, “the remedial action must bring the violation to an end”;
abroad, “the remedial action must usually bring the violation to an end”), § 7(3) (termination of a
business relationship is required only if the violation is very serious, implementation of remedial
measures has not remedied the situation, and there are no less severe means available).
129 See id. § 2(5) (definitions), § 9 (obligations regarding complaints procedure and carrying out a risk
analysis in response to “substantiated knowledge” of a violation).
130 Further regulations may be issued through an ordinance. See, e.g., id. § 9(4) (authorization to regulate
risk assessment details for indirect suppliers), § 13(3) (authorization to regulate procedures for
submission and auditing of annual due diligence reports), § 14(1) (authorization to monitor
compliance with multiple due diligence requirements using proper discretion).
131 Id. § 1 (from 2023, the law covers enterprises with at least 3,000 employees in Germany; from 2024,
the number is reduced to 1,000).
132 Id. § 4(4).
133 See Krajewski et al., supra note 85, at 55; Maihold et al., supra note 125, at 34.
134 LkSG, supra note 125, § 9(3).
135 See Krajewski et al., supra note 85, at 556; Maihold et al., supra note 125, at 2; see also Alan Beattie,
Why Import Bans to Combat Forced Labour May Backfire, FIN. TIMES (Feb. 14, 2022),
https://www.ft.com/content/4a5dafa9-a867-4d0a-b611-4f9a8a2e7194 (pointing to the German
300 Vol. 23 No. 2

because the German statute will not become effective until 2023, application of
these provisions may give rise to additional questions or challenges as a matter of
law and/or practice.
Stepping back, the mandatory disclosure and HRDD statutes that have
emerged thus far in developed countries exhibit considerable variation in terms of
the size of companies covered, the types of human rights protected, the scope of
applicability to supply chains, the role of public authorities in administration and
enforcement, and the nature of penalties and liability.136 Governments presumably
adopt varied approaches to preventing human rights abuses based on national
political realities and differing assessments of how best to protect their companies’
competitive positions.137 These variations raise the likelihood of conflicting
applications for at least some MNEs, and inconsistent approaches for similarly
situated supply chain workers.138
An international law response offers the prospect of greater uniformity at
least in principle, setting forth requirements to be adhered to by both governments
and business enterprises. To be sure, ILO conventions must be enacted and
administered through national law. But while even improved national laws may
generate inconsistencies that pose challenges for some MNEs, the variations will
arise within an agreed-upon international framework and set of guidelines. In that
law’s failure to go deep into supply chain tiers as an important reason why big German companies
are satisfied with the new statute). Regarding remedies, violations may result in administrative fines
and—for large enough fines—an exclusion from the award of public contracts; however, civil
liability as a remedy for violations of the Act is expressly precluded. See LkSG, §§ 24, 22, 3(3).
136 Norway’s Transparency Act, effective July 1, 2022, requires large multinationals doing business in
Norway to conduct human rights due diligence, publish a statement at least annually regarding the
results of this due diligence, and respond to third party requests for information as to adverse
human rights impacts. See Lov om virksomheters åpenhet og arbeid med grunnleggende
menneskerettigheter og anstendige arbeidsforhold (åpenhetsloven) [Act relating to enterprises’
transparency and work on fundamental human rights and decent working conditions (Transparency
Act)], Lov 18 June 2021 nr. 99. For present purposes, it is sufficient to note enactment of yet
another distinct national law mandating due diligence.
137 Protection of competitive advantages may encompass minimizing business costs associated with
establishing and implementing a mandated due diligence program, including, inter alia, whether to
cover more remote or indirect suppliers. In addition, limiting the costs to larger business enterprises
may minimize the expansion of government bureaucracy for administrative functions necessitated
under the new law.
138 Further, the statutes are themselves the exception rather than the rule: ceteris paribus, similar laws are
unlikely to be enacted in most high-income countries where MNEs are registered or conduct
substantial business. See WORLD BANK, WORLD BANK COUNTRY AND LENDING GROUPS (2022),
https://perma.cc/4597-U9Y9 (listing eighty high-income countries). Of the world’s 100 top non-
financial MNEs, the only ones located outside high-income economies are in China (eleven MNEs).
Roughly two-thirds of the 100 top MNEs are in the U.S., U.K., Germany, France, and Japan; others
are in fifteen additional high-income countries. See UNCTAD, WORLD INVESTMENT REPORT 2021,
ANNEX TABLE 19 (2021), https://perma.cc/M3G5-WBWB. Four of the eighteen high-income
countries with MNEs have enacted HRDD statutes: the Netherlands, France, Germany, and
Norway.
Winter 2023 301

regard, existing disclosure and due diligence statutes share certain critical
weaknesses. They do not establish liability for human rights abuses even when a
business enterprise causes or contributes to those abuses; liability attaches only
for failure to follow certain processes established under national law. The laws
also do not require that workers—the putative victims and beneficiaries—
participate in the design and implementation of the processes being established.
III. KEY FEATURES OF AN ILO CONVENTION ON GSCS

As established above, neither existing national laws and practices nor the
voluntary CSR approach adequately address the issue of human rights abuses in
GSCs. Instead, this Article contends that legal liability and related obligations
should be imposed on transnational business enterprises as well as governments.
Specifically, this Part argues that the ILO should take the lead in formulating a
GSC convention setting out requirements for both businesses and governments
related to workers’ rights.
The description and justification for a GSC convention begins by explaining
why HRDD requirements alone are not sufficient—legal obligations must
encompass substantive as well as procedural responsibilities. This Part then
presents the proposed convention’s three central requirements. First, the
convention should contain provisions mandating substantive responsibility for
businesses to avoid involvement in supply chain human rights violations,
recognizing the distinct possibilities of strict, fault-based, and vicarious liability.
Second, it should mandate procedural adherence to HRDD that assures direct and
meaningful participation by workers and their representatives, along with other
interested parties, at each stage of the process. Third, its scope of coverage should
embrace all workers engaged in supply chain activities, regardless of their formal
employment or contractual status under relevant national law. This Part concludes
by discussing elements of jurisdiction, enforcement, and remedies that should also
be addressed in a GSC convention.
A. Two Distinct Obligations: Procedural and
Substantive Responsibility
Under a GSC convention, business enterprises should be required to fulfill
two distinct obligations: (i) a procedural responsibility to adhere to a detailed set
of due diligence processes and (ii) a substantive responsibility to avoid
involvement in supply chain human rights violations. The UNGPs’ corporate
responsibility framework, which contains these two separate conceptions of
business responsibility, provides a natural and helpful starting point for the
structure of the dual obligations in a GSC convention.
Despite the frailty of their voluntary nature, the Guiding Principles have
been recognized as the U.N.’s primary continuing model for progress in the GSC
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human rights area. Their statement of business responsibilities to protect human

rights, both in direct and more extended dealings, has been endorsed or
incorporated in communications from the EU, guidelines from the Organization
for Economic Cooperation and Development (OECD), and various private and
multi-stakeholder initiatives.139 Governments enacting laws to mandate human
rights due diligence have borrowed heavily from the UNGPs framework.140
The Guiding Principles contain both conceptions of business responsibility
that this Article argues should be integrated into a GSC convention. On the one
hand, they emphasize business enterprises’ procedural responsibility, defining
human rights due diligence as a process that enables businesses to account for
how well they address their own adverse human rights impacts.141 This concept of
procedural responsibility shows up prominently in Principle 17, which specifies
that the due diligence process should include a number of distinct stages.
Principles 18 through 21 elaborate that those stages should: (i) identify and assess
human rights impacts or risks; (ii) integrate and act upon the assessment findings;
(iii) track the effectiveness of the actions taken; and (iv) communicate what has
been done, orally and in writing. Faithful adherence to these due diligence stages
is one key aspect of implementing a business’s responsibility not to abuse or
infringe on human rights.142
But importantly, several of the Guiding Principles also set forth standards of
business conduct that focus on substantive results, as distinct from procedures,
creating responsibility related to certain outcomes—namely, the avoidance or
mitigation of human rights abuses in a supply chain. In Principle 13, business
enterprises are held directly responsible for causing or contributing to adverse
human rights impacts through their own activities,143 and they should seek to
prevent or mitigate any such impacts that are linked to their operations, products,
or services by their business relationships.144 In Principle 22, business enterprises
are responsible for providing a remedy whenever they cause or contribute to
adverse human rights impacts.145 And in Principle 24, they should respond to the
139 See Michael K. Addo, The Reality of the United Nations Guiding Principles on Business and Human Rights,
14 HUMAN RTS. REV. 133, 141–45 (2014).
140 See discussion supra Part II.C; see also OECD, Due Diligence Guidelines for Responsible Business
Conduct (2018).
141 See UNGPs princ. 17–21.
142 See Taylor, supra note 116, at 105.
143 See UNGPs princ. 13(a).
144 See id. princ. 13(b).
145 See id. princ. 22; see also Bonnitcha & McCorquodale, supra note 116, at 912 (arguing that causation
or contribution results in strict liability for a business).
Winter 2023 303

risk of causing or contributing to gross human rights abuses regardless of

conflicting requirements.146
The UNGPs also imply that businesses can be liable for complicity in human
rights abuses. While complicity in legal terms often involves knowingly providing
practical assistance or encouragement to a supplier’s violation of a fundamental
human rights convention, this level of affirmative causation may not be
necessary.147 In Principle 17, business enterprises may be viewed as morally
complicit in the acts of a supplier “when they are seen to benefit from an abuse
committed by that [supplier].”148 Such moral complicity does not require relations
of ownership or control: as expressed by one scholar, “[i]t is enough that lead
firms are on notice that their contracts with suppliers are the occasion for which
these workers are subject to oppressive conditions.”149 This notice may be a
function of MNE sourcing departments regularly pressuring suppliers for rapid
delivery times and minimized production costs.150
Using the UNGPs’ concepts as a template, responsibilities for process and
outcome should constitute separate and equally necessary obligations under an
ILO convention. A business may develop and implement its HRDD approach on
a continuing basis across its supply chain and yet discover two months later that
widespread forced labor exists in its primary supplier factory. Weeks after that,
the business may find that sex discrimination in wage levels is rampant in a plant
controlled by its subsidiary. The MNE has been fulfilling its HRDD process; at
the same time, it has been causing or contributing to adverse human rights
impacts.
One response would be to accept a safe-harbor defense for MNEs that
conduct appropriate due diligence yet still, on occasion, discover human rights
violations within their immediate supply chain. That approach characterizes the
regulation of corrupt business practices under U.K. law.151 And without a safe-
146 See UNGPs princ. 24(c).

147 See UNGPs princ. 17 cmt; see also id. (emphasizing that even business entities conducting reasonable
HRDD may be liable for causing or contributing to human rights abuses).
148 Id.
149 Aditi Bagchi, Production Liability, 87 FORDHAM L. REV. 2501, 2521 (2019).
150 See supra note 55 and accompanying text; Bagchi, supra note 149, at 2519 (discussing certain payment
structures and production timelines as foreseeably leading to abusive working conditions at supplier
factories), 2522 (observing that while lead firms may be arms-length actors with their suppliers,
their supply contracts “reflect a common interest in inattention to workers’ interests”).
151 Under the U.K. Bribery Act 2010, § 7(1) makes it unlawful for a company to fail to prevent a person
associated with the company from committing bribery, but § 7(2) provides a defense if the company
can prove it had “adequate procedures” in place to prevent such bribery. See Ministry of Justice,
Bribery Act 2010: Post Legislative Scrutiny Memorandum, Cm. 9631, at 8 (U.K. 2018) (“The Bribery Act
offence, coupled with the full adequate procedures defence, was designed to encourage the business
community to maintain the momentum in incorporating bribery prevention as an essential part of
corporate good governance. The aim was, and still is, to encourage not to oblige.”).
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harbor reward for MNEs that implement due diligence in good faith, at least some
companies may feel less incentive to pursue HRDD with the requisite rigor and
dedication.
On the other hand, if due diligence is viewed as a sufficient defense to escape
liability for actual human rights violations within the supply chain, MNEs may be
tempted to practice a minimal form of due diligence. This HRDD process would
presumably be more sophisticated than the tick-box auditing methods associated
with CSR codes.152 However, it would also be less than optimally demanding and
responsive given the absence of collateral consequences when forced labor or
discrimination are found to exist.153
After decades of disheartening results from good faith and bad faith business
efforts at voluntary compliance, and disappointing early returns from statutes
mandating compliance based only on a due diligence process, the argument for
two sets of obligations has become increasingly powerful. Relatedly, the U.S.
Foreign Corrupt Practices Act (FCPA), unlike its English counterpart, prohibits
bribery of foreign officials and provides no defense based on a company’s due
diligence-type procedures.154 Its substantive prohibition model places a heavier
burden on corporations to search for and eliminate corruption in their operations.
While the FCPA met with initial resistance, many U.S. businesses seem to have
accepted and to some extent even endorsed a situation that reduces risks and
uncertainties associated with corruption while basing competition more
predictably on traditional market factors.155
In the end, the harm of a faulty due diligence process and the harm from
perpetrating or contributing to human rights abuse are distinct. They justify
different approaches to establishing liability and different channels of access to
relief.
B. Liability Regimes for Substantive Violations

As discussed in Part II, the current state of law and practice allows
governments in developing countries and companies with CSR codes to ignore or

153 See generally Neil Robson, The Bribery Act: A Decade On, REUTERS (Aug. 6, 2021),
https://perma.cc/6KCG-HJ2G (noting few examples of enforcement of U.K. Bribery Act during
first decade and adding that “[t]he past decade’s repeated anti-bribery training has . . . resulted in
firms and their employees taking a hardline stance on anti-bribery and corruption (ABC) issues.
Well, at least on paper. ABC clauses are now routinely added to contracts with suppliers, agents,
consultants and other third parties so as to be able to demonstrate that the firm has a robust and
no-nonsense attitude towards bribery, wherever the third party may be located.”).
154 See Pub. L. No. 95-213 (1977), codified in relevant part at 15 U.S.C. § 78dd-1(a).
155 See Conniel Mack, Six Reasons Why Corporations Like (and Want) the Foreign Corrupt Practices Act Even if
They Won’t Admit It, BHRCC (June 13, 2017), https://perma.cc/NDS4-MRZP; Chambers &
Martin, supra note 90, at 6–9.
Winter 2023 305

overlook human rights abuses in GSCs. While recent statutes in developed

countries require a focus on human rights assessment procedures, they do not
address accountability for adverse human rights outcomes. It has become readily
apparent that the economic incentives underlying supply chain production
practices give rise to substantial and foreseeable risks of abusive working
conditions. A convention aimed at reducing those risks must motivate the actors
that are in the most efficient position to minimize, if not eliminate, the risks:
MNEs at the top of supply chains.156
These MNEs have knowledge of industry practices and available
technologies that allow for overview planning to reduce at least some human
rights risks. Further, MNEs’ control in setting prices empowers them to agree to
certain price increases for supplier goods or services in exchange for participating
in, or exerting greater control over, the monitoring of supplier workplace
conditions. MNEs’ direct relationship with consumers also means they can pass
on to those consumers a portion of the costs associated with assuring decent
supply chain working conditions. Finally, MNEs have substantial assets, extended
institutional lives, and regular interaction with the legal system—making them a
reasonable focus for enforcement of new legal requirements.
The most straightforward case regarding a supply chain violation of human
rights is when an MNE itself causes the human rights harm. Thus, if a major U.S.
or EU garment retailer owns and operates factories in Indonesia or Cambodia,
and conditions at those factories include extensive forced labor or sexual
harassment, that retailer should be subject to strict liability under the
convention.157 Although U.S. law erects substantial obstacles to bringing tort
actions against MNEs based on events outside the country,158 there may well be
jurisdiction in this instance under the Alien Tort Statute (ATS),159 another federal
156 The discussion in the following paragraph borrows from the thoughtful analysis of these risk-
shifting factors by Bagchi, supra note 149, at 2526–29.
157 The Article makes use of U.S., U.K., and EU tort law examples and references. An ILO convention
addressing liability in GSCs must be responsive to the common law basis for U.S. and U.K. tort
law and the civil law foundations of law in EU countries.
158 See generally Nestle USA v. Doe, 141 S. Ct. 1931 (2021) (discussing limits on extraterritorial
application of Alien Tort Statute); Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981) (discussing
limits imposed under forum non conveniens doctrine).
159 See Nestle USA, 141 S. Ct. at 1937 (discussing what qualifies as a sufficiently specific allegation of
aiding and abetting in the U.S. a child slavery violation overseas). In May 2022, two U.S. senators
introduced a bill that would amend the ATS to give it extraterritorial application. See USA: Senators
Introduce Bill to Clarify Extraterritorial Application of Alien Tort Statute to Ensure Companies are Held
Accountable for Human Rights Abuses Abroad, BHRRC (May 9, 2022), https://perma.cc/69YC-W476.
306 Vol. 23 No. 2

law specifying extraterritorial application,160 or customary international law.161

Even if U.S. law needs some adaptation, however, what matters for present
purposes is that the convention identify liability for such business conduct,
building from the causation provisions of the UNGPs.
If an MNE contributes to human rights violations by its own subcontractors
or subsidiaries, a more extended analysis might take place to determine whether
there was complicity in the violation.162 For instance, it may be reasonable to infer
that an MNE regularly dictating low production prices and specific short-term
delivery schedules to its subsidiary has contributed to the predictable results of
those demands: forced overtime, unsafe working conditions, and low wages.163
More broadly, the close relationship between an MNE buyer and its repeat-player
supplier may result in sufficient control on the part of the MNE to establish
vicarious liability for certain human rights violations committed by the supplier.164
The question of how far such a relationship can be understood as being under the
control of an MNE—or to what extent the MNE assumes responsibility for
working conditions at that supplier—requires consideration of specific context,
possibly including the longevity or permanence of the relationship; the extent of
their collaboration; and the MNE’s inspection and oversight process, as
contracted for and applied in practice.165
MNEs that have not caused or directly contributed to human rights abuses
may still be linked to those abuses through business relationships they maintain
with entities in their supply chain. A linkage may be deemed to exist if the MNE
knowingly benefits from the human rights violation by the supply chain entity,
and perhaps even if the MNE should have known that the “beneficial” violation
was being committed. For example, if an MNE has used a particular supplier
factory more than once in the past, and that factory has been found on several
recent occasions to have used forced labor, the question arises whether the MNE
knew or should have known that forced labor would contribute to the completion
160 See 42 U.S.C. § 2000e(f) (Title VII, prohibiting sex discrimination, applies to the foreign operations
of U.S.-controlled companies).
161 See generally James J. Brudney, The Right to Strike as Customary International Law, 46 YALE J. INT’L L. 1,
41–50 (2021) (examining components of a federal cause of action for customary international law
in human rights setting).
162 The UNGPs’ commentary on complicity as a legal matter refers to “knowingly providing practical
assistance or encouragement that has a substantial effect” on commission of the human rights
abuse. UNGPs, princ. 17 cmt.
163 See Peter Rott & Vibe Ulfbeck, Supply Chain Liability of Multinational Corporations?, 3 EUR. REV. OF
PRIV. L. 415, 419–20, 434–35 (2015).
164 Vibe Ulfbeck & Andreas Ehlers, Tort Law, Corporate Groups, and Supply Chain Liability for Workers’
Injuries: The Concept of Vicarious Liability, 13 EUR. CO. L. 167, 173 (2016).
165 A rigorous and engaged HRDD process is likely to reduce adverse human rights outcomes in the
direct supply chain. Conversely, a less-than-rigorous HRDD process is likely to result in more
instances of human rights abuse, as well as liability related to the process itself. See infra Part III.C.
Winter 2023 307

of its current factory order.166 Answering this question can be complicated, due in
part to uncertainty as to the entities with which the MNE maintains a business
relationship. Moreover, corporate law in Europe and the U.S. generally prohibits
piercing the corporate veil with respect to negligent actions or omissions of
independent contractors or subsidiaries.167 That said, some recent court decisions
suggest the possibility of fault-based liability for risks of abuse that may be
reasonably foreseeable.168
Another model for assessing business liability in the third-party context is
the non-delegable duty doctrine under U.S. and U.K. tort law. Under this doctrine,
some responsibilities have been deemed so important to the community as to be
non-transferrable. In the workplace setting, it is relatively settled that employers
may not delegate to third parties the provision and operation of a safe place of
work for their own employees.169 This would apply in direct terms against an
employer who engages a subcontractor to oversee protection for her own
employees against threats to worker safety, including human rights abuses such as
forced labor or sexual violence. In the supply chain context, if the convention
imposes on an MNE a duty to protect from human rights abuses workers who
are furthering the MNE’s commercial venture, this would arguably trigger the
same non-delegable duty.170
Finally, one might address business liability in the third-party context by
invoking enterprise causation. Under this vicarious liability theory, “a business
enterprise cannot justly disclaim responsibility for [harms or abuses] which may
166 Cf. Chambers & Martin, supra note 90, at 24 (discussing similar issues in the drafting of a Foreign
Corrupt Practices Act for Human Rights).
167 See generally CARSTEN GERNER-BEUERLE & MICHAEL SCHILLIG, COMPARATIVE COMPANY LAW 814–
88 (2019); Frank H. Easterbrook & Daniel R. Fischel, Limited Liability & the Corporation, 52 U. CHI.
L. REV. 89 (1985).
168 See Susana C. Mijares Peña, Human Rights Violations by Canadian Companies Abroad: Choc v. Hudbay
Minerals Inc., 5 WESTERN J. LEGAL STUD. 1, 14 (2014) (discussing 2013 decision from Ontario
Superior Court of Justice involving assaults and rapes committed by subsidiary mining project’s
security personnel in Guatemala during eviction of indigenous peoples from contested land); Rott
& Ulfbeck, supra note 163, at 431–35 (discussing Chandler v. Cape, a 2012 decision from the English
Court of Appeal involving subsidiary employee’s exposure to asbestos dust).
169 See generally Restatement (Third) of Agency § 7.06 (including Comment discussing Restatement
Second, Torts, §§ 416, 427); DAN B. DOBBS ET AL., THE LAW OF TORTS § 432, WESTLAW (2d ed.,
database updated June 2021); Wilsons & Clyde Coal Co. Ltd. v. English [1938] AC 57 (HL);
McDermid v. Nash Dredging Ltd. [1987] AC 906 (HL).
170 See Restatement (Third) of Agency § 7.06 and accompanying comment (thanks to Ben Zipursky for
this insight); DOUGLAS BRODIE, ENTERPRISE LIABILITY AND THE COMMON LAW 164 (2010). A
counterargument would be that the business is delegating production of a product, not
responsibility for workplace safety, and its own employees are not involved in producing that
product. See Vibe Ulfbeck & Andreas Ehlers, Direct and Vicarious Liability in Supply Chains, in LAW
AND RESPONSIBLE SUPPLY CHAIN MANAGEMENT 91, 103–05 (Vibe Ulfbeck et al. eds., 2019).
308 Vol. 23 No. 2

fairly be said to be characteristic of its activities.”171 If the human rights abuses in

supply chain factories or on supply chain farms are “inevitable by-products of
planned activities—not the random consequences of discrete acts,”172 then
removal of supply chain causation can eliminate the risk of harm. Yet the abuses
themselves may not be inevitable, based on MNEs’ capacity to develop and
implement an effective regime of deterrence.173 For that reason, an enterprise
causation approach may encourage MNEs to be creative and aggressive in
searching for ways to reduce the risks of supply chain abuses.174
In an analogous non-supply chain setting, the U.S. Supreme Court has
endorsed an enterprise risk approach to vicarious liability for hostile environment
sexual harassment under Title VII.175 The Court deemed it “well recognized” that
this form of harassment by supervisors “is a persistent problem in the workplace,”
and concluded it was fair to hold employers vicariously liable as “one of the costs
of doing business, [a cost] to be charged to the enterprise rather than the
victim.”176 The Court noted that vicarious liability in this setting enhances
enterprise efficiency, given that “the employer has a greater opportunity to guard
against misconduct by supervisors . . . [and a] greater opportunity and incentive
to screen them, train them, and monitor their performance.”177
Businesses have long asserted that they are committed to reducing human
rights risks in their supply chains. While the history of CSR codes casts some
doubt on that commitment, a suitably constructed and effective human rights due
171 Gregory C. Keating, The Idea of Fairness in the Law of Enterprise Liability, 95 MICH. L. REV. 1266, 1379
(1997) (quoting Ira S. Bushey & Sons, Inc. v. U.S., 398 F.2d 167, 171 (2d Cir. 1968) (Friendly, J.)).
172 Id. at 1267.
173 Cf. Ulfbeck & Ehlers, supra note 170, at 173 (suggesting that supply chain buyers may exercise some
control over worksites through inspections and similar oversight processes).
174 See Martha Chamallas, Vicarious Liability in Torts: The Sex Exception, 48 VALPARAISO L. REV. 133,
151–56 (2013).
175 Faragher v. City of Boca Raton, 524 U.S. 775 (1998).
176 Id. at 798.
177 Id. at 803. See Chamallas, supra note 174, at 173–78 (discussing Faragher’s application of enterprise
liability based on causation rather than negligence). The employer’s incentive to screen, train, and
monitor its agents is analogous to incentives for MNEs with knowledge of supply chain practices
and available technologies. See text following supra note 156. The Court in Faragher created a limited
two-part defense to this enterprise liability: the employer must prove (i) that it had acted reasonably
to prevent and promptly correct harassment abuses, and (ii) that the employee had acted
unreasonably in not utilizing the employer’s complaint procedure to report the harassment and
mitigate the harm. See 524 U.S. at 807. Such a two-part defense might have some relevance in the
HRDD setting, although an MNE would have to prove both that it had prevented and promptly
corrected human rights abuses in the past and that its complaint procedure was a reasonable option
(demonstrably effective results plus workers not chilled from participating due to fear of retaliation)
that affected workers unreasonably failed to utilize. This defense to enterprise causation would in
effect require a due diligence process that is comprehensive, rigorous, and includes extensive worker
participation.
Winter 2023 309

diligence process might come closer to fulfilling it. The catch is that HRDD needs
to be well-designed and rigorously implemented. A genuinely effective due
diligence process should be able to reduce the risk of human rights abuses, thereby
diminishing the potential for vicarious liability under enterprise causation or any
other substantive liability theory. At the same time, if the due diligence process is
not well designed and/or is poorly implemented, the prospect of detecting and
preventing supply chain abuses diminishes—and liability for such outcomes is
likely to increase. In addition, as discussed below, an inadequate HRDD process
should itself give rise to liability regardless of its relationship to specific human
rights abuses.
C. Worker Participation in the Due Diligence Process

Throughout the HRDD process, the primary target of supply chain risks and
possible abuses is the workers themselves. Decades of experience with CSR codes
and initial mandatory HRDD statutes show that when workers or their
representatives are not directly involved in formulating and implementing the due
diligence process, that process becomes little more than a tick-box exercise, failing
to produce meaningful progress.178 Conversely, social auditing programs that
provide for extensive worker participation and consultation have achieved notable
levels of success,179 a goal publicly sought by MNEs as well as by workers and
their advocates.180
Accordingly, a GSC convention must provide for direct and substantial
worker participation in the due diligence process, as this will ensure that the
process is meaningful and best able to protect against human rights abuses. There
are several models for worker engagement in the due diligence process on which
the convention could base its framework.
The Fair Food Program, a partnership involving multinational retailers,
agricultural growers, and farmworkers in the southeastern U.S.,181 illustrates
178 See KURUVILLA, supra note 49; Esbenshade, supra note 49; COMPANIES MUST DO BETTER, supra note
118; de Lagerie et al., supra note 118.
179 See supra note 58 (discussing the Accord and ILO/IFC Better Work programs); infra notes 307–310
and accompanying text (discussing Fair Food Program); Anner, supra note 11, at 376–78 (advocating
for labor-centric mechanisms to address decent work deficits in supply chains, including trade
unions and also worker-employer co-governance social responsibility programs). See generally Mark
Anner, Jennifer Bair, & Jeremy Blasi, Learning from the Past: The Relevance of Twentieth-Century New York
Jobbers’ Agreements for Twenty-First-Century Global Supply Chains, in ACHIEVING WORKERS’ RIGHTS,
supra note 44, at 239–58.
180 See OECD, Due Diligence Guidance for Responsible Business Conduct 17–18, 48–51 (2018).
181 See FAIR FOOD PROGRAM, FAIR FOOD PROGRAM 2021 REPORT 4 (2021), https://perma.cc/AXY8-
LGT8. See generally Greg Asbed & Sean Sellers, The Fair Food Program: Comprehensive, Verifiable, and
Sustainable Change for Farmworkers, 16 U. PENN. J. L. & SOC. CHANGE 39 (2013); James J. Brudney,
Decent Labour Standards in Corporate Supply Chains: The Immokalee Workers Model, in TEMPORARY
310 Vol. 23 No. 2

vividly how meaningful worker engagement can help address labor abuses in
supply chains. Under the Program, the farmworkers who have experienced and
understood these abusive conditions are integral in identifying the risks to be
addressed.182 A third party monitor launched by the workers’ organization
collaborates with retailers, growers, and workers to conduct regular risk
assessments.183 The monitor then responds to identified abuses with a detailed
plan for corrective action and tracks the results of that plan.184 As part of the
identification and correction stages, workers have multiple ways to report
violations and are protected in doing so.185 There is close attention to management
accountability, framed primarily with reference to market-based consequences;
suppliers who do not remedy identified abuses can lose their ability to sell to
participating retailers.186 The third-party monitor tracks the responses, evaluates
their effectiveness, and compiles a detailed report reviewing the process and its
results.187 In short, farmworkers are integrally involved in identifying, assessing,
monitoring, and reporting on human rights risks, allowing for significantly better
results from the due diligence process.
The Fair Food Program model is hardly the only means of achieving
successful worker participation,188 and the GSC convention should not specify any
particular model. However, the convention should make clear that meaningful
worker consultation is required at every stage of the HRDD process. Continuous
consultation and input from workers and their representatives diminishes the
likelihood of serious or prolonged human rights abuses, and may also serve to
rebut certain HRDD-based charges against a business. For example, rebuttal
MIGRATION IN THE GLOBAL ERA: THE REGULATORY CHALLENGES 351–376 (Joanna Howe &
Rosemary Owens eds., 2016).
182 See FAIR FOOD PROGRAM 2021 REPORT, supra note 181, at 32–34 (listing code standards).
183 See id. at 8.
184 See Asbed & Sellers, supra note 181, at 46–47; Brudney, supra note 181, at 365–68.
185 These mechanisms include growers’ provision of a booklet and video to all workers at point of hire,
with contents written and acted by worker representatives; periodic worker education sessions at
worksites; health and safety committees established at every grower worksite; and a twenty-four-
hour hotline operated by the monitor and focused on collaborative factfinding with growers. See
Asbed & Sellers, supra note 181, at 46; FAIR FOOD PROGRAM 2021 REPORT, supra note 181, at 8–11.
186 See FAIR FOOD PROGRAM 2021 REPORT, supra note 181, at 11. The code includes zero tolerance for
child labor, forced labor, sexual harassment with physical contact, or other forms of violence, id. at
32, but does not address the right to collective bargaining, which is unavailable to agricultural
workers under U.S. statutory law.
187 See id. at 30–61, reporting detailed results under eleven separate headings. The 2021 Report contains
data updated through the program’s ninth season (2019–20).
188 Other participatory models include traditional collective bargaining agreements, sectoral bargaining
arrangements with transnational unions, and oversight systems that include labor rights
organizations performing various monitoring functions. See Judd & Jackson, supra note 55, at 54.
See generally Jeremy Blasi & Jennifer Bair, An Analysis of Multiparty Bargaining Models for Global Supply
Chains, ILO (2019), https://perma.cc/QV93-5R9U.
Winter 2023 311

might include an MNE’s ability to demonstrate that the workers’ complaint

procedure—intended to assist in mitigation and prevention of abuses—was in fact
a reasonable option from workers’ standpoint, by showing that it was achieving
or had achieved effective results and that workers were not deterred from
participating due to any justified fear of retaliation.189
In its 2019 Violence and Harassment Convention, the ILO demonstrated its
capacity and willingness to include a multi-stage obligatory due diligence process
aimed at preventing a particular kind of workplace abuse and also its appreciation
for the value of consultation with workers as an integral part of that process. The
Convention requires governments to consult with workers or their representatives
at multiple stages: (i) when developing an “inclusive, integrated and gender-
responsive approach”; (ii) when adopting and implementing the workplace policy;
(iii) when identifying hazards and assessing risks; and (iv) when identifying sectors,
occupations, or work arrangements that give rise to added exposure to violence
and harassment.190
A due diligence process that includes regular engagement between workers,
suppliers, and brands at the top of a supply chain, when combined with the
attention to outcomes liability already discussed, could encourage MNEs to
reward both suppliers and their own personnel for compliance with labor
standards. Such an adjustment, altering the current incentive structure that is
based almost exclusively on short-term sourcing decisions, has been called for by
many observers.191 As part of a more equitable sharing of human rights risks
between business enterprises on the one hand and suppliers and workers on the
other, a GSC convention should encourage MNEs to recognize suppliers who
demonstrate high levels of compliance (in process and outcome terms) with
increased product orders and longer-term commitments.
189 See discussion of similar business defense in Faragher, supra note 177.
190 ILO Convention 190 art. 4(2), 9(a), 9(c). The ILO’s comprehensive strategy on workplace violence
and harassment is also expressly outcome-oriented. The Convention requires governments to take
all appropriate measures to prevent violence and harassment, and mandates action to ensure easy
access to effective remedies for victims when violence and harassment has occurred. See id. arts. 7,
8, 10(b), 10(d).
191 See, e.g., Judd & Jackson, supra note 55, at 50–51 (discussing adjustment of pay systems for sourcing
executives and others to focus more on supply chain labor outcomes instead of short-term pricing
cycles); Matthew Amengual et al., Global Purchasing as Labor Regulation: The Missing Middle, 73 INDUS.
& LAB. REL. REV. 817, 818, 838 (2020) (criticizing absence of incentives for compliance in that MNE
did not increase purchase orders when supplier labor standards improved); KURUVILLA, supra note
49, at 178, 216. The prospects for shifting pay incentives and priorities may be modestly enhanced
due to recent developments suggesting some MNE consolidation of supplier sources. See Judd &
Jackson, supra note 55, at 7–11, 37.
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D. Scope of Coverage
1. All GSC workers
A GSC convention should protect all workers engaged in supply chain
activities from human rights abuses, regardless of whether they are defined as
employees under relevant national law. This breadth of coverage is essential to
avoid the pitfall of failing to provide legal protections for temporary, home-based,
casual, or migrant workers, as has occurred under many national laws.192 Once
again, the recent ILO Convention on Violence and Harassment provides a
template or model for this broad coverage, by declaring its protection of “workers
and other persons in the world of work, including employees as defined by
national law and practice, as well as [other] persons working irrespective of their
contractual status, [and] persons in training, including interns and apprentices, . . .
volunteers, jobseekers, and job applicants . . . .”193 A GSC convention should
utilize this model, while also explicitly covering both private and public sectors, in
both the formal and informal economies.194
2. Business enterprises operating transnationally
With respect to supply chain brands and retailers, a GSC convention should
cover business enterprises of sufficient magnitude to operate transnationally,
either in their direct operations or through supply chain relationships.195
That said, considerable variations exist in the size, sector, and structure of
such business operations. The UNGPs recognize that “the scale and complexity
through which enterprises meet their responsibility [to respect human rights] may
vary” based on the factors just mentioned as well as others, including “the severity
of . . . adverse human rights impacts.”196 Assuming that all businesses in the supply
chain setting will have some obligation to prevent and remedy their human rights
abuses, along with an obligation to carry out human rights due diligence, the
192 See supra notes 30–31 and accompanying text (discussing these gaps in worker protection under
many national laws—in developed and developing countries).
193 ILO Convention 190 art. 2(1).
194 See id. art. 2(2).
195 Although this Article focuses on brands and retailers sitting at the top of extended GSC networks,
transnational suppliers such as Foxconn Technology Group (Apple’s main supplier) and Li & Fung
(supplier for many garment brands) also oversee GSCs and would be covered by the proposed
convention. For discussion of the substantial role played by transnational suppliers in GSCs, see
Trang (Mae) Nguyen, Hidden Power in Global Supply Chains, 63 HARV. J. INT’L L. (forthcoming 2023),
https://perma.cc/NQW8-A6B8.
196 UNGPs princ. 14; see also UNGPs princ. 17(b) (HRDD “[w]ill vary in complexity with the size of
the business enterprise, the risk of severe human rights impacts, and the nature and context of
operations”), princ. 24 (if business enterprises need to prioritize remedial responses, they “should
first seek to prevent and mitigate those [adverse human rights impacts] that are most severe or
where delayed response would make them irremediable”).
Winter 2023 313

nature and extent of these twin obligations may depend on the abovementioned
factors, among others.
For instance, a large MNE working with regular subcontractors and its own
subsidiaries may have ample resources and clarity of control to develop and
administer an elaborate HRDD process. By contrast, medium-sized businesses
involved in irregular supply relationships or small businesses dependent on
informal economy suppliers will have less control in devising and implementing
an HRDD process. At the same time, the likelihood of undetected and possibly
severe human rights abuses may be higher in such unbounded settings. If business
coverage is defined in unduly precise or prescriptive terms, the convention may
well exclude aspects of supply chain relationships falling outside the definitional
ambit even when those aspects involve serious human rights abuses. Yet a
malleable approach to supply chain definitions may create uncertainty for MNEs
seeking to assess their compliance in HRDD terms as well as their vulnerability to
human rights abuses in the lower tiers of a possible chain.
All these variations and uncertainties take on added significance given the
consequences: when and whether to assess injunctive relief, civil penalties,
individual or group damages, and perhaps even criminal sanctions. Thus, for
instance, a set of HRDD requirements might apply comprehensively and
rigorously to an MNE that has ample resources and knowledge capability about
its regular supply chain activities, but somewhat less rigorously to a mid-size
business that has only ad hoc dealings with its various supply chain producers.
Rather than seek a one-size-fits-all approach, it seems prudent to allow national
governments to define the nature and extent of coverage for businesses involved
in supply chain production at different levels.
3. Essential workplace human rights
A final issue on scope of coverage concerns possible limits on the human
rights to be protected. The baseline for an ILO convention should include the
human rights enumerated in the ILO Declaration on Fundamental Principles and
Rights at Work: freedom from child labor, forced labor, and discrimination; plus
rights to freedom of association and collective bargaining; and the right to a safe
and healthy workplace.197 Additionally, the right to an adequate living wage is
inextricably linked to considerations of safety and health—and also perhaps
forced labor—and thus should be included as part of this baseline.198
197 See supra note 15.

198 See generally SHELLEY MARSHALL, LIVING WAGE: REGULATORY SOLUTIONS TO INFORMAL AND
PRECARIOUS WORK IN GLOBAL SUPPLY CHAINS (2019); John C. Landefield et al., The Association
Between a Living Wage and Subjective Social Status and Self-Rated Health: A Quasi-Experimental Study in the
Dominican Republic, 121 SOC. SCI. & MED. 91 (2014).
314 Vol. 23 No. 2

The UNGPs expressly refer to the ILO Declaration, identifying that the
Declaration and the International Bill of Human Rights (which consists of the
Universal Declaration of Human Rights and two widely endorsed international
covenants)199 encompass an authoritative core list of rights to be protected in the
labor context.200 The latter group of documents adds considerably to the reservoir
of workplace-related human rights, folding in rights like free expression,201
privacy,202 a high standard of physical and mental health,203 periodic holidays with
pay,204 and technical and vocational guidance.205
One might contend that all workplace-related human rights referred to in
the preceding paragraph should be covered by the convention, based on
considerations of universality and asserted interdependence.206 At the same time,
the challenges of assessing, monitoring, and enforcing compliance with an HRDD
process, and fulfilling an obligation to avoid human rights abuses, become
considerably more complex and arduous as the list of human rights expands.
Certain human rights—such as freedom of expression or privacy—may be more
directly linked to those set forth in the Declaration of Fundamental Principles
while others—such as periodic holidays with pay or technical and vocational
guidance—may have a more attenuated relationship to those same ILO
fundamental principles. The German Supply Chain Due Diligence Act, for
example, largely tracks the ILO fundamental conventions in defining workplace-
related human rights risks to include child labor, forced labor, slavery, disregard
of occupational safety and health obligations, disregard of freedom of association,
and discrimination and unequal treatment, while also adding the withholding of
an adequate living wage.207 Rather than seeking to identify priorities or limitations
regarding the more extensive collection of human rights enumerated in the
International Bill of Human Rights, it may be preferable for a GSC convention to
199 See G.A. Res. 217 (III) A, Universal Declaration of Human Rights (Dec. 10, 1948) [hereinafter UD]
(containing 30 articles); International Covenant on Economic, Social and Cultural Rights, Dec. 16,
1966, 993 U.N.T.S. 3 [hereinafter ICESCR] (containing 31 articles); International Covenant on Civil
and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171 [hereinafter ICCPR] (containing 53 articles).
200 See UNGPs princ. 12 cmt.
201 See UD art. 19; ICCPR art. 19.
202 See ICCPR art. 17.
203 See ICESCR art. 12.
204 See UD art. 24.
205 See ICESCR art. 6.
206 See What are Human Rights?, U.N. OFFICE OF THE HIGH COMMISSIONER FOR HUMAN RIGHTS:
SOUTH-EAST ASIA REGIONAL OFFICE, https://perma.cc/XC9J-PS6C (“[A]ll human rights are . . .
indivisible, interrelated and interdependent. The improvement of one right facilitates advancement
of the others. Likewise, the deprivation of one right adversely affects the others.”).
207 See LkSG, supra note 125, § 2(2) ¶¶ 1–8. But cf. LkSG Annex, nos. 1–11 (listing eight fundamental
ILO conventions; 2014 Protocol to Forced Labor Convention 29; and two U.N. covenants, the
ICCPR and the ICESCR).
Winter 2023 315

leave to national governments the decision of which additional human rights

beyond the fundamental principles should be covered.
E. Jurisdiction; Enforcement; Remedies

In addition to the three central requirements discussed earlier in this Part, a
GSC convention is likely to confront a series of issues stemming from its
transnational application and associated complexities, such as recognizing
standing for certain representative actors, ascribing burdens of proof, or attaching
responsibility to high corporate officials. These issues are grouped below under
the headings of jurisdiction, enforcement, and remedies, although the issues do
not always fall neatly into one heading. Additionally, certain issues grouped under
enforcement also implicate ancillary liability concerns that are distinct from the
substantive and procedural liability discussion in earlier sections of this Part.
1. Jurisdiction
The UNGPs urge countries to set forth expectations that business
enterprises domiciled in their territory and/or jurisdiction will respect human
rights in all their operations.208 The understanding is that countries may authorize
enforcement against MNEs domiciled within their jurisdiction regarding supply
chain operations abroad which the MNEs direct or effectively control.209 This
form of extraterritorial jurisdiction has been conferred under HRDD statutes
enacted in the Netherlands, France, and Germany.210
A similar approach can be followed under a GSC convention. For example,
where the HRDD mandate in its various stages would apply to an MNE in one
country at the top of a supply chain, it seems appropriate for jurisdiction also to
cover that MNE for acts or omissions by its supply chain subcontractors,
subsidiaries, or suppliers in other countries related to the HRDD process. It is less
clear that these lower-down supply chain actors should have a distinct HRDD
obligation enforceable in the courts of the first country, given that they are in
effect subject to indirect regulation through the obligations imposed on the MNE.
With respect to alleged violations of human rights, courts in the MNE’s
home country should have jurisdiction insofar as the MNE is potentially liable
under a fault-based or vicarious liability theory. Jurisdictional barriers exist under
208 See UNGPs princ. 2.

209 See id. at princ. 2 cmt.
210 See supra Part II.C.2, discussing these three statutes. The French and German laws confer
jurisdiction over companies registered in the country and with more than a certain (substantial)
number of employees. The Dutch statute confers jurisdiction over any business that sells or supplies
goods or products to Dutch end-users, regardless of where it is registered or principally domiciled.
316 Vol. 23 No. 2

U.S. tort law,211 and perhaps under the laws of some other developed countries,
but the convention should encourage governments to create new channels of
access. Individuals facing the costs of bringing human rights abuse actions in
distant foreign courts should be able to rely on representative actors such as trade
unions and civil society organizations, and the convention should authorize
recognition of such actors for standing purposes.212 Individuals still may prefer to
sue in their home jurisdiction, although that option has its challenges for victims
concerned about the strength of enforcement within their own legal system,213 as
well as for MNEs with a more limited presence in the supply chain country. If the
MNE did not directly or indirectly cause or contribute to the human rights abuse,
its perpetrator will be a supply chain actor and the victim should be able to bring
an action in the jurisdiction where the abuse occurred.214
An alternative to practical or legal obstacles associated with extraterritorial
jurisdiction is arbitration. International framework agreements between MNEs
and global union federations illustrate the potential for enforceability through
contract norms rather than statutory or regulatory litigation.215 A second
illustration involves the Accord on Fire and Building Safety in Bangladesh, an
agreement among brands, retailers, suppliers, and unions that produced significant
improvements in safety at over 1,000 factories.216 The Accord adopted applicable
procedures from the UNCITRAL Model Law on International Commercial
Arbitration, facilitating multi-party arbitration under such agreements.217 The
convention should at least refer to arbitration as an option for resolving disputes
with extraterritorial dimensions.
211 See supra note 159 (discussing limits on extraterritorial jurisdiction under Alien Tort Statute and
doctrine of forum non conveniens).
212 The German statute explicitly allows alleged victims to authorize such representative actions by
trade unions or NGOs. See LkSG § 11(1).
213 See, e.g., supra notes 31–34 and accompanying text (discussing serious challenges to asserting basic
rights for temporary, irregular, home-based, or casual workers, and also for migrant workers).
214 There also is the possibility of joint liability for the human rights abuse, between the MNE and one
or more supply chain actors.
215 See generally Stefania Marassi, International Framework Agreements and Management of Global Supply Chain:
Extra-Judicial Mechanisms to Enforce International Labour Standards, 74 QUESTIONS OF INT’L L. 51–69
(2020); CLEAN CLOTHES CAMPAIGN ET AL., MODEL ARBITRATION CLAUSES FOR THE RESOLUTION
OF DISPUTES UNDER ENFORCEABLE BRAND AGREEMENTS (2020) [hereinafter MODEL
ARBITRATION CLAUSES].
216 The Bangladesh Accord is discussed in more detail infra at Part IV.B.3.
217 See James J. Brudney, Reflections on Labor Standards in Global Supply Chains, in POWER AND
PARTICIPATION, supra note 26, at 205, 219–20. Cf. Champagne, supra note 51, at 164–65, 172–74
(discussing benefits of arbitration under the Accord while noting that costs were relatively high and
adequate transparency was not guaranteed). See generally Kisanthi Parella, The Stewardship of Trust in
the Global Value Chain, 56 VA. J. INT’L L. 585 (2016); PERMANENT CT. OF ARB., INTERNATIONAL
LABOUR ARBITRATION AND CONCILIATION RULES (July 2, 2021), https://perma.cc/WJ47-LW2B.
Winter 2023 317

2. Enforcement
Central to the design of an enforcement section for a GSC convention
should be the creation or identification of a public agency within each national
government’s enforcement structure. As discussed earlier, the French HRDD
statute omitted any role for public enforcement, while the German law provided
for such a role in several distinct respects.218 This public enforcement presence
should be designed to carry out three separate functions. The enforcement agency
should have an education function. It should develop guidance materials
supporting the government’s efforts to formulate appropriate HRDD strategies,
assisting MNEs to develop their own HRDD processes, and helping the public to
understand how HRDD is to work and what role citizens can play. The agency
also should have a compliance function. It should enable appropriate departments
to conduct thorough reviews of the HRDD processes and advise the public on
how they can participate—for example, by encouraging or participating in
government inquiries or initiating complaints based on particular facts. Finally, the
agency should have a sanctions function. It should establish, publicize, and pursue
a system of timely and effectively dissuasive sanctions targeted separately to
HRDD violations and to human rights abuses caused or contributed to by
businesses, and refer violators to courts, tribunals, and alternative dispute
resolution mechanisms.219
For alleged HRDD violations, enforcement should be expected through a
public prosecutor but also permitted for aggrieved private parties. The domestic
executive branch has a strong interest in seeing that its own HRDD laws are
properly implemented and enforced. It is possible that private parties complaining
about HRDD non-compliance, who reside primarily in supply chain countries,
will face heavy burdens from pursuing actions in foreign courts over multiple
years. Although they are unlikely to do so when aggrieved only about a process
violation, they may be aggrieved about far more than process but only be able to
establish a process violation. In such circumstances, they should have standing to
do so.
A separate issue related to enforcement (though also to scope of coverage)
is whether to impose obligations not only on business entities but also, in some
circumstances, on the individuals who make relevant operational decisions, such
as corporate officers—and if so, whether that should be done under a civil or
criminal approach. The Dutch Child Labour Due Diligence Act provides for
criminal enforcement and liability, including possible imprisonment, for company
directors when they are responsible for two violations of the same Act
218 See supra note 112 and accompanying text (France); note 130 and accompanying text (Germany).
219 ILO Convention 190 art. 10 includes a range of enforcement and remedial responsibilities for
member states.
318 Vol. 23 No. 2

requirement within a five-year period.220 This repeat-offender liability seems at

least presumptively fault-based. By contrast, the U.S. Sarbanes-Oxley Act imposes
strict liability on “highly placed corporate actors” for failing to act upon evidence
of wrongdoing in the securities area.221 The wisdom of such strict personal liability
has been questioned by some scholars222 but defended by analogy to Calabresian
tort theory: because high-ranking corporate officials have specialized knowledge
and leadership influence, they are both well-placed to disclose wrongdoing and
least vulnerable to retaliation, and are hence in the best position to prevent or
mitigate abuses.223 It is reasonable for the convention to include the possibility of
enforcement against individuals in some circumstances, given that corporate
leadership is composed of individuals and the deterrent effect of individual liability
is undeniable in certain settings. However, in light of the complexities and
variations of supply chain structures and HRDD processes, it may be preferable
to use a fault-based approach with regard to enforcement against corporate
officials for violations of convention requirements.
Finally, and importantly, a special facet of enforcement involves allocation
of the burden of proof in cases alleging a violation of HRDD procedures. The
burden of proof to establish liability for failing to devise and implement a required
HRDD process would normally fall on the party asserting the violation—either a
public enforcement entity or perhaps workers or their representatives pursuing
private enforcement. However, the convention should make clear224 that once the
moving party establishes a prima facie case that the HRDD process is deficient in
one or more respects, the burden shifts to the MNE to establish either (a) that the
due diligence process in fact complies with convention requirements or (b) that
even if the process has flaws, including flaws that may have contributed to abuses,
the MNE could not reasonably have done more to correct or detect these flaws.
220 See supra note 103 and accompanying text (referencing Littenberg, supra note 100, at 4; Macchi &
Bright, supra note 90, at 231).
221 See Elizabeth C. Tippett, The Promise of Compelled Whistleblowing: What the Corporate Governance Provisions
of Sarbanes-Oxley Mean for Employment Law, 11 EMP. RTS. & EMP. POL’Y J. 1, 3 (2007). Attorneys
representing public companies must internally report evidence of securities fraud; the chief legal
officer has a duty to investigate upon receiving evidence of a material securities law violation; and
top executives must endorse company financial statements and are liable for omissions or false or
misleading materials in those statements. See id. at 34–35, 39 (citing 15 U.S.C. § 7245; 18 U.S.C.
§ 1350; 17 C.F.R. § 205.3(b) (2006)).
222 See, e.g., Reinier Kraakman, Gatekeepers: The Anatomy of a Third-Party Enforcement Strategy, 2 J.L. ECON.
& ORG. 53, 60 (1986) (contending that mandatory whistleblower rules create strong incentive to
withhold information); Larry C. Backer, Surveillance and Control: Privatizing and Nationalizing Corporate
Monitoring after Sarbanes-Oxley, 2004 MICH. ST. L. REV. 327, 341 (2004) (contending that mandatory
reporting mechanism creates atmosphere of constant surveillance).
223 See Tippett, supra note 221, at 50–51 (invoking Calabresian theory to contend that because high
corporate officials are more likely to be viewed as indispensable to the company, compelling them
to investigate and report abuses is an effective way to prevent or mitigate tortious conduct).
224 This could be a matter for travaux preparatoires or a prefatory “Whereas” clause rather than text itself.
Winter 2023 319

The most persuasive reason for allowing such a shift in the burden of proof
is the comparative access to relevant evidence. Information concerning how an
MNE constructs and operates its HRDD process requires examining the fine-
grained details of its business operations, typically stretching across multiple
countries, including its relations with suppliers, subcontractors, and subsidiaries,
and perhaps implicating confidential business matters. This information is located
within the business and is not readily accessible to either a potential human rights
victim or a government investigator. Moreover, it is simply too easy for an MNE
to claim lack of foreseeability in such a complex factual setting, leaving the victim
or the government to have to prove its existence.
Accordingly, the MNE should have to rely on the due diligence process
evidence within its possession, particularly when establishing it did all it reasonably
could to comply. Otherwise, by requiring the moving party to prove—for
example—an MNE’s failure to assess with sufficient regularity the extent of
human rights risks or to operate an effective monitoring plan, the law would make
it exceedingly difficult to establish a violation, in effect denying access to a
remedy.225 This recommended approach is consistent with elements of U.S. labor
and employment discrimination law, in which an employer’s privileged access to
internal business information justifies a similar shifting in the burden of proof.226
It is also consistent with U.K. law on equal pay for work of equal value, where the
employer is required to explain wage differentials between jobs.227 Further, this
approach has parallels to European tort law, in which reversals of the burden have
been applied for breaches of a statutory rule, violations of a safety duty, and
accidents at the workplace.228
A business that demonstrates it did all that could have been reasonably
expected to develop and implement its HRDD process should succeed in avoiding
225 See Macchi & Bright, supra note 90, at 235 (criticizing French law for requiring that the burden of
proof remain with victims throughout and contending that this requirement conflicts with the
provisions of UNGPs principle 26, which calls for the “reduc[tion] of legal and practical barriers
that could lead to a denial of access to remedy”); Palombo, supra note 106, at 284 (observing that
the demonstrated difficulty under French law for claimants to obtain the relevant information on
business practices of MNEs “may de facto result in no real opportunity for [a remedy]”).
226 See, e.g., 42 U.S.C. § 2000e-2(k) (shifting the burden of proof in Title VII disparate impact cases);
United Food & Commercial Workers Local 150-A v. NLRB (Dubuque Packing Co.), 1 F.3d 24,
29–32 (D.C. Cir. 1993) (shifting the burden of proof in NLRA dispute over duty to bargain); see also
Nutrinova Nutrition Specialties & Food Ingredients GmbH v. Int’l Trade Comm’n, 224 F.3d 1356
(Fed. Cir. 2000) (applying burden-shifting mechanism under 35 U.S.C. § 295 in actions alleging
patent infringement); Ana Swanson, Companies Brace for Impact of New Forced Labor Law, N.Y. TIMES,
(June 22, 2022), https://perma.cc/UVC8-EQ5H (describing burden-shifting mechanism under
Uyghur Forced Labor Prevention Act, Pub. L. No. 117-78, which took effect on June 21, 2022).
227 See Equality Act 2010, c. 15, § 136 (U.K.), https://perma.cc/D35T-W9G8.
228 See CEES VAN DAM, EUROPEAN TORT LAW 324 (2013), § 1107-1 (Germany), § 1107-2 (France).
320 Vol. 23 No. 2

liability for violations at a process level.229 If, however, it is determined that the
business violated its HRDD obligations—for instance, by inadequate monitoring
of actions taken to mitigate or prevent previously identified human rights abuses
or by failing to submit timely and complete reports documenting the HRDD
operation—the business would then be subject to appropriate and effective
remedies, as presented in the next subsection.
3. Remedies
Where business enterprises violate their procedural obligations by failing to
establish and implement the HRDD process, a GSC convention should authorize
a public prosecutor or government agency to seek injunctive relief, compelling
compliance and/or restorative actions by businesses as well as prompt compliance
by government agencies with performance of the public enforcement functions
set forth above. Administrative fines against business enterprises for
noncompliance also should be available (as under the German statute discussed
earlier), and they should be proportionate to the severity and persistence of
HRDD violations. A further available sanction should be exclusion from
participation in public procurement contracts for a fixed period of time.230
Where business enterprises directly or indirectly cause or contribute to
human rights abuses, a GSC convention should make civil liability available.
Victims should have access to adequate and timely relief, including appropriate
compensatory damages for harms inflicted regardless of HRDD compliance.
They should also be able to seek punitive damages if the abuses reflect willful
misconduct. The convention should allow civil liability actions to be brought on
behalf of victims by a public enforcement agency, but with the provision that
initiating such an action should not foreclose the separate rights of victims to seek
relief as they determine is warranted.
Finally, a GSC convention should provide for additional remedies that may
be appropriate based on the relationship between an MNE and its supply chain
operators, insofar as that relationship affects workers and their livelihoods. Such
remedies could include, in appropriate circumstances, directing MNEs to provide
financial support to suppliers in order to enable or facilitate compliance with
HRDD requirements, maintenance of income for workers adversely affected by
requirements for suppliers to come into HRDD compliance, and compensation
229 As discussed supra Part III.B, assessment of liability for human rights abuse outcomes is a separate
matter.
230 This exclusion is part of the German statute on corporate due diligence. See LkSG, supra note 125,
§ 22. Such a sanction adds to the deterrence effect, given that MNEs often depend on government
contracts in overall operations. In addition, public procurement accounts for a substantial portion
of government budgets, and governments are expected to safeguard public values as well as
maintaining a high quality of service delivery when fulfilling public procurement responsibilities. See
generally Public Procurement, OECD, https://perma.cc/7DTM-UEMQ.
Winter 2023 321

(such as severance) for workers adversely affected by suppliers’ inability to comply

with HRDD requirements.231
***
In the past, ILO conventions have often set forth workplace standards with
specificity but left forms of enforcement and remedy to be elaborated under
national law.232 Recent conventions have been more explicit about the need for
suitable enforcement and sanctions while still appreciating the essential role of
national initiative.233 The recommendations in this section should be understood
in light of the ILO’s evolution toward a more specific framework, recognizing that
member states retain the political authority to develop their own enforcement and
remedial approaches.
IV. IS AN ILO CONVENTION ON GSCS APPROPRIATE AND FEASIBLE?

The GSC convention proposed in this Article differs from the ILO’s
traditional practice of directing its obligations only at national governments. This
Part contends that the ILO is well-positioned to broaden its focus in the GSC
setting for a number of reasons.
To start, the ILO is in a unique position to mobilize support and approval
for international labor and human rights obligations. In addition, it has a proven
track record of promulgating conventions that promote transnational
cooperation—involving private entities as well as governments. Further, the ILO
has been committed to dealing with issues related to the informal economy. It also
has created successful model programs that directly engage supply chain working
conditions. While ratification of a GSC convention will face obstacles, these
obstacles should not prevent the convention from having a positive impact on
government efforts to address GSC issues. In that regard, prospects for a positive
impact would be enhanced by broader participation from the employer and
worker communities.
231 See generally MODEL ARBITRATION CLAUSES, supra note 215, at 13.
232 Compare, e.g., ILO Convention 111 on Discrimination (Employment and Occupation) art. 1
(specifying substantive standards) with id. arts. 2–3 (calling for implementation and enforcement “by
methods appropriate to national conditions and practice”); compare ILO Convention 87 on Freedom
of Association and Protection of the Right to Organise arts. 2–7 (specifying substantive standards)
with id. arts. 8, 11 (describing implementation in broad terms).
233 See, e.g., Protocol of 2014 to the Forced Labour Convention of 1930 arts. 1–4 (requiring member
states to “take effective measures” for prevention of forced labor, protection and remediation for
victims, punishment of perpetrators, and education for employers); ILO Convention 190 arts. 10–
11 (requiring member states to “take appropriate measures” covering a detailed and nuanced
approach to enforcement, remedies, and training).
322 Vol. 23 No. 2

A. Appropriateness of an ILO Leadership Role

This Article argues for an international GSC convention that would impose
liability and related obligations on transnational business enterprises as well as
governments. An international law approach like the one proposed here responds
to national-level inconsistencies and deficiencies by offering the prospect of a
standard floor of rights, establishing a level playing field and a stronger benchmark
for universal protection.234
A threshold question is what incentives exist to generate compliance with
this approach, given that international human rights conventions and covenants
seek to protect individuals or groups from transgressions by their own
governments.235 Such conventions and covenants create hard-law commitments
in that they are legally binding when ratified by national governments, but they are
unenforceable through reciprocal pressures from signatory states or other hard
transnational means.236 Instead, they depend on domestic law enforcement for
effective implementation—the very type of enforcement that so far has been
deficient in the GSC setting.
Countries may adopt and choose to comply with international human rights
laws for any number of reasons beyond reciprocity or coercion.237 They may act
from economic motivations such as securing access to trade benefits238 or based
on cultural factors like the desire for shared identity in a surrounding community
of nations.239
234 See Simon Deakin & Frank Wilkinson, Rights v. Efficiency? The Economic Case for Transnational Labour
Standards, 23 INDUS. L.J. 289, 301, 305 (1994).
235 See Oona A. Hathaway, Why Do Countries Commit to Human Rights Treaties?, 51 J. CONFLICT RESOL.
588, 592 (2007). In this respect, they differ from international trade agreements or arms agreements,
which seek to regulate relations between governments such that a violation by one government may
be met with a reciprocal violation by the other.
236 See id. at 592–93 (arguing that enforcement of these treaties does not depend on other states but
rather on actors within the state itself). If, for example, Vietnam accepts or encourages sex
discrimination in its garment factories, or arranges for the imprisonment of trade union leadership,
the U.S. will not respond or retaliate by tolerating employer sex discrimination or imprisoning its
own labor leaders.
237 See generally Harold Hongju Koh, Why Do Nations Obey International Law?, 106 YALE L.J. 2599 (1997)
[hereinafter Koh, International Law]; Harold Hongju Koh, How is International Human Rights Law
Enforced?, 74 IND. L.J. 1396 (1999) [hereinafter Koh, Human Rights Law]; Anne van Aaken & Betel
Simsek, Rewarding in International Law, 115 AM. J. INT’L L. 195, 196 (2021).
238 See Koh, Human Rights Law, supra note 237, at 1407; van Aaken & Simsek, supra note 237, at 213.
239 See Ryan Goodman & Derek Jinks, How to Influence States: Socialization and International Human Rights
Law, 54 DUKE L.J. 621, 626 (2004) (invoking acculturation, meaning “the general process by which
actors adopt the beliefs and behavioral patterns of the surrounding culture”); see also Sara Kahn-
Nisser, The Ripple Effect: Peer ILO Treaty Ratification, Regional Socialization, and Collective Labor Standards,
22 GLOB. GOVERNANCE 513, 525 (2016) (finding a ripple effect in EU countries since the late 1990s
with respect to ratification of collective labor rights conventions, notably ILO Conventions 87 and
98).
Winter 2023 323

In addition, Harold Koh has pointed to three procedural elements that help
explain why governments obey international law: (i) their interaction within a
transnational legal process, (ii) the ongoing interpretation of international norms,
and (iii) domestic internalization of those norms.240 The ILO’s ability to engage
national governments with respect to each of these procedural elements has led
governments to be particularly willing to incorporate international labor norms
into their legal systems.
First, the ILO’s structure creates a space for necessary interaction within the
transnational legal process. The ILO’s 187 member states engage collectively in
ILO governance through review and promulgation of all conventions and
recommendations,241 as well as through participation in annual general surveys
that examine their laws and practices on pre-designated conventions or
recommendations.242 Second, the ILO continually interprets international labor
norms in ways that assist governments with compliance. Its interpretation of these
norms is conveyed initially and continuously through ILO supervisory bodies,243
and also on numerous occasions through transnational tribunals, including the
European Court of Human Rights, the European Court of Justice, and the Inter-
American Court of Human Rights.244 Third, the ILO supports countries’ domestic
240 See Koh, International Law, supra note 237, at 2634; Koh, Human Rights Law, supra note 237, at 1399.
241 See ILO Constitution art. 19 (describing process for adopting conventions and recommendations,
followed by communication of adopted texts to all member states for possible ratification
(conventions) or giving effect (recommendations)).
242 Pursuant to article 19 of its constitution, the ILO publishes an in-depth annual General Survey on
the national law and practice of member States regarding certain conventions and/or
recommendations chosen in advance by the Governing Body. See General Surveys, ILO,
https://perma.cc/4QVZ-BH29. These surveys are completed mainly on the basis of reports
received from member States and information transmitted by employers’ and workers’
organizations. Member states also interact regularly with the ILO’s three supervisory committees,
and through partnering efforts involving ILO staff in regional, sub-regional, and country offices.
243 Under article 37 of the ILO Constitution, authoritative interpretations of conventions occur
through referral to the International Court of Justice or appointment of a special tribunal. Absent
such referral or appointment (which has occurred only once in the ILO’s 103 years of existence),
the CEACR “determine[s] the legal scope, content and meaning of the provisions of the
Conventions, [through] opinions and recommendations [that are] intended to guide the actions of
national authorities.” CEACR, 2021 Report on the Application of International Labour Standards,
Report III/Add. 13 (2021). In addition, there is an established jurisprudence on freedom of
association and collective bargaining, developed by the tripartite Committee on Freedom of
Association (CFA). See ILO, FREEDOM OF ASSOCIATION: COMPILATION OF DECISIONS OF THE
COMMITTEE ON FREEDOM OF ASSOCIATION (6th ed., 2018), https://perma.cc/9MG6-FWSN; ILO,
FREEDOM OF ASSOCIATION: DIGEST OF DECISIONS AND PRINCIPLES OF THE FREEDOM OF
ASSOCIATION COMMITTEE OF THE GOVERNING BODY OF THE ILO (5th ed., 2006),
https://perma.cc/FR7H-ABW3.
244 See, e.g., Demir & Baykara v. Turkey, 2008-V Eur. Ct. H.R. 396 (invoking ILO Convention 87 on
freedom of association); Sidabras & Dziautas v. Lithuania, 2004-VIII Eur. Ct. H.R. 367 (invoking
ILO Convention 111 on nondiscrimination); Yakye Axa Indigenous Community v. Paraguay,
Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 125, ¶ 151 (Jun. 17,
324 Vol. 23 No. 2

internalization of those norms by encouraging and often catalyzing actions from

national lawmaking entities across all branches of government. These actions
include governments creating statutes that embody or assimilate the norms,
promulgating executive decrees or regulations that provide for their
implementation, and issuing judicial decisions that apply and extend norms in the
context of national facts and circumstances.245
There is abundant evidence that the ILO’s transnational processes and
mechanisms have helped to incentivize endorsement of and compliance with the
substantive norms it has created. Its conventions on child labor, forced labor,
freedom of association, and nondiscrimination have been ratified collectively by
over 90% of its member states.246 The norms contained in those ILO conventions
have also influenced diverse initiatives across the globe, showing up in trade
agreements between governments, CSR codes, and collective agreements between
MNEs and global unions.247
Still, an ILO approach to GSC labor protections may have a harder time
achieving similar recognition or broad acceptance. The traditional model for ILO
conventions contemplates that member states will approve a convention’s
provisions for application, under their national law, to conduct occurring within
the borders of the state.248 When one state ratifies a convention, implementation
2005) (construing ILO Convention 169 on the rights of indigenous peoples); Case C-214/10, KHS
AG v. Winfried Schulte, 2011 E.C.R. I-11794 (invoking ILO Convention 132 on holidays with pay).
See generally Tzehainesh Tekle, The Contribution of the ILO’s International Labour System to the European
Court of Human Rights’ Jurisprudence in the Field of Non-Discrimination, 49 INDUS. L.J. 86 (2020).
245 See Saskatchewan Fed’n of Labour v. Saskatchewan, 1 S.C.R. 245 (Can.) (applying C.87 on freedom
of association); Corte Constitucional [C.C.] [Constitutional Court], marzo 2, 2004, Sentencia C-
170/04 (Colom.) (applying C.138 and C.182 on child labor); Tribunal de Première Instance de
Première Classe de Cotonou [Cotonou Court of First Instance, First Class], July 20, 2009, Dossier
54/2002 (Benin) (applying C.183 on maternity protection); Corte Suprema de Justicia de la Nación
[CSJN] [National Supreme Court of Justice], 4/6/2013, “Díaz, Paulo Vicente c. Cervecería y
Maltería Quilmes S.A. / recurso de hecho,” (D.485.XLIV) (Argen.) (applying C.95 on protection
of wages).
246 Six of the eight conventions have been ratified by over 92% of member states, including one
(Convention 182) by all 187 member states. The two conventions with sub-90% ratification are
Convention 98 on collective bargaining (89.8%) and Convention 87 on freedom of association
(83.9%). The overall average is 92.8% for the eight conventions.
247 For trade agreements, see, e.g., Trade Promotion Agreement, U.S.-Panama, arts. 16.2, 16.6 (2007),
https://perma.cc/2Y3N-TMKH; Free Trade Agreement, EU-Vietnam, art. 13.4 (2019),
https://perma.cc/62DL-WFBS. For CSR codes, see, for example, Human Rights and Labor
Compliance Standards, NIKE (Apr. 4, 2018), https://perma.cc/2XZ6-Q5FG; Human Rights, ADIDAS,
https://www.adidas-group.com/en/sustainability/social-impacts/human-rights/#/modern-
slavery/ (last visited Jan. 11, 2023); Our Code of Conduct, VODAFONE (2020),
https://perma.cc/VAU8-7JMH. For international framework agreements, see, for example,
International Framework Agreement between ABN ARMO Bank, FNV Finance, and UNI Global
Union (Sept. 2015), https://perma.cc/GY8P-N826; Framework Agreement between IKEA and
the IFBWW (Dec. 2001), https://perma.cc/4TX6-VHCL.
248 See Conventions and Recommendations, ILO, https://perma.cc/NQT6-EC3S.
Winter 2023 325

ordinarily requires domestic government monitoring of the conduct of individual

or business actors within that state, but not the conduct of business supply chain
actors in other states. In contrast, a GSC convention contemplates different
national law circumstances in two important transnational respects. First, a GSC
convention would involve regulating supply chain conduct occurring in one
country for which an MNE at the top of the supply chain, registered or doing
substantial business in a different country, may be held accountable. Second, it
would involve traversing jurisdictional boundaries when determining whether or
how workers victimized by supply chain conduct in one country may seek relief
against a government or business located in another.
But while these transnational elements raise questions regarding the
feasibility of a GSC convention, this Article concludes that such questions can be
answered in light of the ILO’s transnational track record, especially in more recent
times.
B. Feasibility of a GSC Convention

As noted in the Introduction, the ILO has struggled for a number of years
with the challenges posed by GSCs.249 There are continuing disagreements among
the tripartite constituencies as to the best way forward.250 At the same time,
scholars are increasingly calling for stronger and more focused ILO action.251 And
there is reason to believe that an ILO solution is feasible, particularly given the
current political environment that has led to many national statutes regulating
GSCs.
1. Transnational scope
The transnational scope of this Article’s proposed GSC convention may be
unusual, but it is hardly unique. Although ILO standards are ratified by national
governments and presumptively applied within national borders, a considerable
number of ILO conventions specifically reference cross-border cooperation
249 See supra note 24.

250 See, e.g., ILO Decent Work Interventions in Global Supply Chains, supra note 24, at xii (fragmentation of
effort identified in 2016 persists as of September 2019); Governing Body, Report of the Technical
Meeting, supra note 24, at 4–8 (reviewing proposals presented in October–November 2020 by
Government Group, with amended versions proposed by Workers Group and Employers Group;
meeting ended without adopting conclusions).
251 See, e.g., Sungjoon Cho & Cesar F. Rosado Marzan, Labor Trade, and Populism: How ILO-WTO
Collaboration Can Save the Global Economic Order, 69 AM. U.L. REV. 1771, 1802–06 (2020) (calling for
an ILO convention to regulate lead firms as employers of persons working for the firms’ suppliers,
contractors, and franchisees); Anne Posthuma & Arianna Rossi, Coordinated Governance in Global
Value Chains: Supranational Dynamics and the Role of the International Labour Organization, 22 NEW POL.
ECON. 186, 187 (2017) (contending that international organizations should do more to regulate
transnational economic sectors, given that “individual nations are limited in their scope to address
the transnational dynamics that can drive downgrading for workers”).
326 Vol. 23 No. 2

between governments or involving private entities. Some of these conventions

merely contemplate such cooperation, while others use mandatory language.252
One recent example of a mandatory approach is the 2011 Domestic Workers
Convention.253 It requires cooperation between national governments to ensure
that its extensive provisions—which include detailed protections for information-
sharing, written job offers, and other conditions—are effectively applied to
migrant domestic workers.254 Decades earlier, the 1949 Revised Convention on
Migration for Employment included similar requirements, specifying that ratifying
states were obliged to assure cooperation between their employment services and
the corresponding services of other member states.255
The 2006 Maritime Labor Convention (MLC) is perhaps the most high-
profile example of a convention that mandates transnational cooperation and
functions effectively across national borders.256 The MLC establishes extensive
minimum working and living standards for all seafarers on ships flying the flags
of ratifying countries.257 Maritime labor certificates, carried only by ships flying
such a flag, serve as evidence that inspections have occurred and convention
requirements have been met to the extent so certified.258 This avoids the need for
comprehensive inspections of such ships when docked in ports of other countries.
The convention includes an obligation prohibiting more favorable treatment for
a ship that does not fly the flag of a ratifying government than for a ship that
does.259 By establishing an internationally level playing field, the MLC incentivizes
252 Two relatively recent instances that use mandatory terms are the Protocol of 2014 to the Forced
Labor Convention of 1930 art. 5 (requiring that governments “shall cooperate with each other to
ensure the prevention and elimination of all forms of forced or compulsory labor”) and the 1989
Indigenous and Tribal Peoples Convention art. 32 (requiring in more detail that governments “shall
take appropriate measures . . . to facilitate contacts and co-operation between indigenous and tribal
peoples across borders, including activities in the economic, social, cultural, spiritual and
environmental fields”).
253 ILO Convention 189.
254 See id. art. 8(3). In addition, the Convention requires that before crossing a national border, domestic
workers recruited in one country for work in another receive a written job offer or employment
contract “enforceable in the country in which the work is to be performed” that covers an extensive
specified set of terms and conditions. See id. art. 8(1) (requiring the enforceable contract or job
offer), art. 7 (listing the terms and conditions to be covered).
255 See ILO Convention 97 art. 7(1). Where workers more generally are recruited in one country for
work in another, the 1997 Convention on Private Employment Agencies encourages states to
consider bilateral agreements in order to prevent abuses and fraudulent practices in recruitment,
placement, and employment. See ILO Convention 181 art. 8(2).
256 See generally Maritime Labour Convention, Feb. 7, 2006, as amended (2020),
https://perma.cc/28DU-6NPY [hereinafter MLC]. There have been 101 ratifications of the MLC.
257 See MLC arts. IV, V, VI; Regulations 1.1–5.3.
258 See MLC art. V(2)–(3).
259 See MLC art. V(7).
Winter 2023 327

placing ships under the flag of a ratifying state, making them subject to ILO
supervision.260
Other ILO conventions have authorized cross-border government actions
or cooperation without mandating them. One illustration is the 2007 Work in
Fishing Convention, which states that a ratifying government may take immediate
measures to rectify working conditions “clearly hazardous to safety and health”
onboard a vessel flying the flag of another government.261 Another example is the
1975 Migrant Workers (Supplementary Provisions) Convention, which states that
ratifying governments are free to enter into multilateral or bilateral agreements to
resolve problems arising under application of the convention’s provisions on
abusive conditions for migrants and equality of opportunity and treatment.262
The litany of ILO conventions that provide for cross-border enforcement,
collaboration, or access to remedies includes instruments dating from the middle
of the last century, but most such conventions have been promulgated in recent
decades. This progression reflects the ILO’s growing appreciation that
international labor standards often require transnational engagement to meet the
needs of governments, employers, and workers. This is perhaps most obvious
when the convention subject is by definition transnational, such as migration for
employment or cross-border maritime employment. Transnational engagement is
also relevant when the convention is only partially concerned with cross-border
dimensions, as has been true of conventions addressing domestic work, human
trafficking, and forced labor. A convention on GSCs can be seen to fit under both
headings. Because GSCs often depend on the precarious legal status of migrant
labor, 263 and because GSCs involve employment relationships that implicate the
260 See Desirée LeClercq, Outsourcing Enforcement, 62 VA. J. INT’L L. 271, 286–87 (2022). The MLC also
includes a mechanism for periodic updating through amendments, which have been added in 2014,
2016, and 2018. A new set of amendments, approved by the ILC in June 2022, is expected to enter
into force in December 2024. See Acceptance of Amendments of 2022 to the MLC, 2006, ILO,
https://perma.cc/R58A-RUAS.
261 ILO Convention 188 art. 43(2).
262 See ILO Convention 143 art. 15 (agreements), arts. 1–9 (abusive conditions), arts. 10–14 (equality
of opportunity and treatment). There are also ILO conventions that regulate cross-border relations
between workers’ organizations or between employers’ organizations. Thus, article 5 of the 1948
Convention on Freedom of Association guarantees to both trade unions and employer
organizations the right to affiliate with international organizations of workers and employers.
263 See supra notes 33–35 and accompanying text. The cross-border aspects of conventions discussed
in this section focus on the shifting movement of workers, who themselves can be readily identified.
While the transnational elements of supply chains typically involve movement of a product or its
components, mobility of migrant workers across borders may also be part of supply chain
operations. That said, tracking the relocation of supply chain products may require additional
monitoring efforts when seeking to identify human rights abuses or lack of due diligence.
328 Vol. 23 No. 2

laws and practices of multiple states,264 a transnational approach is effectively the

only way forward.
2. Issues related to the informal economy
Apart from the issue of transnational scope, a GSC convention would need
to address issues involving lower tiers of the supply chain, where large numbers
of workers participate as members of the informal economy.265 As a general
matter, assuring decent labor standards in the informal economy is a daunting
challenge—for national governments and for the ILO—that is largely beyond the
scope of this Article. That said, however, a number of recent ILO instruments
have exhibited a commitment and capacity to address decent labor standards in
the informal economy, including as part of global supply chains.
The ILO’s 1996 Home Work Convention, which promotes equality of
treatment between homeworkers and other wage earners, includes a capacious
definition of the term “home work” with respect to products or services assigned
by the employer.266 Moreover, by specifying that the term “employer” includes
persons who give out home work either directly or through intermediaries,
regardless of whether the term “intermediary” is provided for in national
legislation, the convention allows for a broad conception of supply chain
employment coverage.267 The 2011 Domestic Workers Convention provides
further benchmarks for protection of lower-tier supply chain workers. In addition
to requiring government action to ensure the protection and promotion of
fundamental labor rights, the convention imposes obligations related to the
informal economy aspects of domestic work.268 And while domestic work is not
264 The very recent ILO convention addressed to violence and harassment supports the ILO’s capacity
to regulate GSC working conditions in a different respect. See generally ILO Convention 190. As
explained in Part III, that convention serves as a structural model regarding the breadth of its
worker coverage, its approach to due diligence including a requirement for substantial worker
involvement, and its attentiveness to outcomes as well as processes.
265 See generally Veronica H. Villena & Dennis A. Gioia, A More Sustainable Supply Chain, 98 HARV. BUS.
REV. 84 (Mar.–Apr. 2020); U.N. GLOBAL COMPACT, NAVIGATING DECENT WORK CHALLENGES IN
MULTI-TIERED SUPPLY CHAINS: LEADERSHIP BRIEF 8 (2020), https://perma.cc/H5M4-U8MT.
266 ILO Convention 177 art. 1(a) (defining home work).
267 See id. art. 1(c) (defining employer), art. 4 (detailing criteria for equal treatment between
homeworkers and other wage earners). See generally The Regulatory Framework and the Informal Economy:
Specific Groups: Homeworkers: Reducing Vulnerabilities Through Extending and Applying the Law, ILO
(2013), https://perma.cc/B96K-LRXX.
268 Obligations include equality of treatment to formal economy workers regarding working hours,
overtime compensation, and paid leave, ILO Convention 189 art. 10; direct payment of
compensation at regular intervals, id. art. 12; labor inspection measures granting entrance to
household premises with due respect for privacy, id. art. 17(2)–(3); access to effective complaint
mechanisms, id. art. 17(1); and access to courts and other dispute resolution mechanisms under
terms equal to those for workers generally, id. art. 16.
Winter 2023 329

itself part of supply chains, its precarious status—often as part of the informal
economy—offers useful parallels that could be applied in a GSC convention.
Although ILO recommendations create guidelines rather than obligations,
two recent recommendations offer further indications of the ILO’s ability to
respond to the special precarities of the informal economy. The 2012 Social
Protection Floors Recommendation complements existing social security
conventions and recommendations by assisting member states in developing
strategies to cover the unprotected, the poor, and the most vulnerable, including
workers in the informal economy and their families.269 Additionally, the 2015
Recommendation Concerning the Transition from the Informal to the Formal
Economy defines the term “informal economy”270 and offers guidance to facilitate
the transition of workers and economic units from the informal to the formal
economy while respecting workers’ fundamental rights, as well as guidance to
prevent the informalization of formal economy jobs.271
The proliferation of ILO instruments attentive to informal economy
challenges hardly suggests that these challenges have been adequately addressed.272
Nonetheless, the fact the ILO is seeking to improve the status of workers in the
informal economy in diverse and nuanced ways suggests that a GSC convention
can and should include approaches to protecting and promoting decent labor
standards in that setting.
3. Successful model programs
In addition to its promulgation of conventions and recommendations, the
ILO has played a role in the creation of two programs seeking to augment labor
protections in supply chains, the Accord on Fire and Building Safety in
Bangladesh and the Better Work program. The successes of these programs
indicate that brands and retailers at the top of the supply chain are willing and able
269 See ILO Recommendation 202 arts. 4–12.

270 ILO Recommendation 204 I(2) (term “refers to all economic activities by workers and economic
units that are—in law or in practice—not covered or insufficiently covered by formal
arrangements,” excluding illicit activities).
271 See id. I(1)(a), (c).
272 A third recent ILO recommendation addresses another aspect of the informal economy directly
related to supply chains: workers unprotected by national labor laws that are vague or incomplete
as to who is a covered employee. See ILO Recommendation 198 on the employment relationship
(2006). See generally supra text accompanying notes 30–31 (discussing widespread statutory exclusions
from regular employment status of temporary, casual, and home-based workers). See also Yiran
Zhang, The Paradox of Upgrading: Social-Reproduction-Driven Informalization of Manufacturing
Work Among Migrants in China 4 (2022) (unpublished manuscript) (on file with author) (reporting
that female migrant workers have increasingly returned to their inland hometowns from coastal
factories in order to serve as “student companions” to their school-age children, accepting lower
pay and no social protection while performing the same work in casually organized home-based
workshops).
330 Vol. 23 No. 2

to work with the ILO to address labor standards deficiencies in ways that parallel
this Article’s recommendations for the content and structure of a GSC
convention.
The Accord on Fire and Building Safety in Bangladesh273 was negotiated in
2013 in response to a garment factory fire that killed over 1,100 workers. The ILO
played a role in the creation of this program and served as independent chair of
the Accord Steering Committee to enhance implementation.274 The Accord helped
produce significant improvements in fire, electrical, and structural safety standards
at more than 1,000 factories during its eight years of existence.275 As a binding
agreement among hundreds of brands, retailers, and suppliers, along with local
and international unions and NGOs, the Accord required commitments from
brands at the top of the supply chain. These commitments included contributing
substantial funds to support inspection and remediation at supplier factories,
ensuring resources for suppliers seeking to bring their factories into compliance,
and ceasing to do business with factories that failed to make needed safety
repairs.276
An important element of the program was substantial worker involvement
in its implementation. Trade unions were given co-equal representation with
brands on the Steering Committee, while workers were further empowered
through democratically elected safety and health committees at the factory level,
an extensive training program, a confidential complaints mechanism, and a right
to refuse unsafe work.277 There was also a serious commitment to monitoring and
remediation through independent inspections by qualified safety engineers
accompanied by public disclosure of inspection reports and corrective action
plans. As a result, 84% of violations identified at 1,620 covered factories were
corrected.278 Another important feature of the Accord was its provision for a
273 Accord on Fire and Building Safety in Bangladesh, May 13, 2013 [hereinafter Bangladesh Accord],
https://perma.cc/5KCP-CFPT.
274 See Bangladesh Accord art. 4.
275 See Champagne, supra note 51, at 160–71. The Bangladesh Accord was terminated in December
2021, and its continuing impact will depend on the extent of support from local employers and the
Bangladeshi government. See Youbin Kang, The Rise, Demise, and Replacement of the Bangladesh
Experiment in Transnational Regulation, 160 INT’L LAB. REV. 407 (2021).
276 See About, ACCORD ON FIRE AND BUILDING SAFETY IN BANGLADESH (2018),
https://perma.cc/524S-NP3F; Champagne, supra note 51, at 160–71; see also ILO, FINAL REPORT:
MEETING OF EXPERTS ON LABOUR INSPECTION AND THE ROLE OF PRIVATE COMPLIANCE
INITIATIVES 13 (Dec. 2013) (description by Workers’ Group of Bangladesh Accord’s positive
features that could serve as an example for other private regulatory efforts).
277 See Bangladesh Accord art. 4 (Steering Committee equal representation), art. 17 (safety and health
committee); art. 16 (training), art. 18 (confidential complaints mechanism), art. 15 (right to refuse
unsafe work).
278 See BANGLADESH ACCORD, QUARTERLY AGGREGATE REPORT ON REMEDIATION PROGRESS AT
RMG FACTORIES COVERED BY THE ACCORD 3 (April 2018) (copy on file with author).
Winter 2023 331

process by which parties to the agreement could bring disputes about meaning
and implementation to the Steering Committee and could appeal a Committee
decision to final and binding arbitration.279 This approach to enforcement meant
that the parties to the Accord were not dependent on Bangladesh’s labor
inspectorate to prosecute their complaint.
The other program, Better Work, was originally conceived by the ILO. It
aims to remediate labor conditions by providing factory-level advisory and
training services built on social dialogue as a foundation for improvement.280
Acting through Performance Improvement Consultative Committees (PICC),
equal numbers of factory management and workers’ representatives meet regularly
to prioritize changes to be implemented at the workplace.281 Extensive analysis of
PICC performance and results has shown that well-functioning PICCs lead to
higher wages and better working conditions.282 Substantial evidence also supports
a “business case” for improved compliance: where workers report improved
conditions and higher levels of compliance, there is a positive effect on
productivity and profitability.283 In addition to advising factories, Better Work
collaborates with governments to improve labor laws, and with brands to ensure
progress is sustained.284
The success of these comparatively modest programs does not address
issues of scalability, and both programs focus primarily on first-tier and second-
tier suppliers rather than lower-tier workers from the informal economy.
Nonetheless, the brands’ role is noteworthy in creating incentives for factory
279 The arbitration process was governed by the U.N. Commission on International Trade Law
(UNCITRAL) Model Law on International Commercial Arbitration, and awards were enforceable
in the domestic courts of the relevant signatory’s home country. See Bangladesh Accord art. 5. Two
global union signatories took two global brands to arbitration under the Bangladesh Accord;
positive settlements were reached in both cases, including one resulting in more than $2 million
being made available for remediation to supplier factories. See Champagne, supra note 51, at 164–
65.
280 Initiated in Cambodia in 2001, Better Work is a partnership between the ILO and IFC that is
currently active in nine countries, focused on 1700 garment factories that employ over two million
workers. See The Programme, BETTER WORK, https://perma.cc/UBE9-RAUH [hereinafter BETTER
WORK]; Arianna Rossi, Better Work: Lessons Learned and the Way Forward for Decent Work in the Global
Garment Industry, in DECENT WORK IN A GLOBALIZED ECONOMY, supra note 60, at 243, 247, 249.
281 See Rossi, supra note 280, at 249.
282 See id. at 249–50 (citing to multiple academic studies). See generally Drusilla Brown et al., The Impact
of Better Work: A Joint Program of the International Labour Organization and the International Finance
Corporation, TUFTS U. LABOR LAB (Sept. 26, 2016), https://perma.cc/CC7Y-LQRC; Drusilla Brown
et al., The Impact of Better Work: Firm Performance in Vietnam, Indonesia, and Jordan, ILO & IFC (Aug.
2018), https://perma.cc/ZLY3-JAJV (discussion paper).
283 See Rossi, supra note 280, at 251 (citing to several studies).
284 See BETTER WORK, supra note 280.
332 Vol. 23 No. 2

participation and for increased compliance.285 In Better Work, this participation

has extended at times to continuing sourcing relationships even after labor
standards violations have been identified, provided the factory commits to
participating in advisory and training services.286 And the Accord’s use of contract-
based remedies through transnational arbitration invites consideration of remedial
approaches less heavily dependent on national courts in developing countries.
One further observation about these two model programs seems pertinent
in the context of whether a proposed GSC convention can garner commitments
to compliance. The Accord responded to egregious factory violations that caused
a large-scale tragedy, while the Better Work program addresses supply chain
misconduct at less dramatic stages. It might be argued that national governments
and MNEs will apply a GSC convention by focusing primarily on egregious cases
rather than adopting a more uniform approach. Some focus on egregious cases
seems appropriate given considerable evidence of high-profile supply chain
violations involving fundamental labor norms.287 But at the same time, Better
Work’s link between improved workplace standards and enhanced productivity
suggests there is also room for a more systematic, if lower-profile, strategy when
implementing a GSC regime.
C. Assessing Progress
The domestic law of many countries where MNEs are located (including the
U.S., the U.K., and countries in the EU) may not currently conform to the
framework of this Article’s proposed convention. There are some countries where
domestic law developments can already support such a framework or are moving
in that direction. Nonetheless, the proposed convention’s treatment of liability,
especially with respect to liability for human rights abuses as an outcome, may well
require domestic law adjustments in terms of jurisdiction and/or substantive
doctrine. This is in part the function of ILO conventions and international human
rights law more generally: setting standards that are to an extent aspirational while
encouraging countries to move toward meeting the new standards in law and
practice.
285 See Rossi, supra note 280, at 254, 256; Jennifer Bair, Contextualizing Compliance: Hybrid Governance in
Global Value Chains, 22 NEW POL. ECON. 169, 176 (2017) (discussing global buyers’ engagement with
Better Work, including as Buyer participants, purchasing the factory-level monitoring reports, and
as Buyer partners, receiving access to all monitoring reports in exchange for inter alia increasing its
number of suppliers and using Better Work compliance audits to replace its own audits of those
factories).
286 See Rossi, supra note 280, at 256.
287 See supra notes 3–4 and accompanying text (identifying widespread global incidence of forced labor,
child labor, substandard wages, excessive working time, serious safety and health risks, and other
abuses).
Winter 2023 333

This final section posits that while widespread ratification of a GSC

convention by national governments will likely not be swift or easy, the
convention may nonetheless succeed in mobilizing national law in the meantime.
It also suggests that if the ILO’s tripartite constituencies decide to engage with
this Article’s proposed convention framework, their efforts would be enhanced
by hearing from additional voices within both employer and worker constituencies
as part of tripartite engagement.
1. Direct and indirect impact
Although promulgation of a GSC convention will require broad support
from both MNEs and member states, any such instrument is unlikely to secure
widespread formal ratification in a short time period.288 At the same time, there
are reasons why countries may not ratify conventions with which they are in
substantial agreement. This could be a matter of the particulars of a country’s
constitutional structure or partisan politics.289 In addition, because ILO
conventions do not permit reservations or qualifications,290 ratifying states must
incorporate all elements into their national laws, setting a high threshold.
Ratification of a convention also is more onerous than simply adapting national
laws to international standards, due to certain costs associated with ILO
supervision. As with any ILO convention, countries that ratify the proposed GSC
288 Recently promulgated ILO conventions, with the notable exception of Convention 182 on the
worst forms of child labor, have not been widely ratified over the five years following their entry
into force. Convention 182 entered into force in November 2000; 160 of 187 countries had ratified
it within five years, and all 187 have done so as of today. By contrast, the Domestic Workers
Convention (Convention 189) entered into force in September 2013; there have been 35 total
ratifications, 25 of which occurred within five years. And the Maternity Protection Convention
(Convention 183) entered into force in February 2002; there have been 43 total ratifications, 13 of
which occurred within five years.
289 For example, the U.S. is a strong financial and ideological supporter of the ILO, but it ratifies few
conventions, for reasons related, inter alia, to its federalist structure and also to partisan politics.
Nonetheless, U.S. laws and practices may substantially comport with ILO norms reflected in certain
unratified conventions. See, e.g., Country Baseline under the ILO Declaration Annual Review: United States
of America (2000–2019): The Effective Abolition of Child Labour, INT’L LAB. ORG.,
https://perma.cc/G5KJ-EUKE (regarding child labor); Country Baseline under the ILO Declaration
Annual Review: United States of America (2000–2019): The Elimination of All Forms of Forced or Compulsory
Labour, INT’L LAB. ORG., https://perma.cc/WRJ4-EKT4 (regarding forced labor). See generally
William R. Corbett, The More Things Change: Reflections on the Stasis of Labor Law in the United States, 56
VILL. L. REV. 227, 247–48 (2011).
290 Unlike other human rights instruments, such as many U.N. treaties, ILO conventions are the
product of a tripartite governance structure, involving voting and decision-making rights for
employer and worker organizations. It would undermine this structure to allow one member of the
tripartite group—governments—to undo even partially what all three groups have agreed upon. A
handful of conventions do allow for flexibility at the national level on an express basis. See, e.g., ILO
Convention 182 art. 4(1) (types of hazardous work for children shall be determined by national
law); ILO Convention 138 art. 2 (minimum age shall be specified by each country so long as tied
to compulsory schooling age level).
334 Vol. 23 No. 2

convention would have to file regular compliance reports and undertake the
necessary formal dialogue with representative employer and worker organizations
that precedes each report.
For these and other reasons, the influence of ILO conventions cannot be
fully understood by examining sheer quantity of ratifications. Some governments
bring their national laws closer to proposed convention norms during a
convention’s preparatory process. Such domestic law mobilizations may reflect
socialization and learning among ruling elites following the extended exchange
and dialogue between the ILO and member states that precedes promulgation.291
Additionally, governments may improve their domestic standards following a
convention’s promulgation while declining to ratify—so as to steer clear of
internal constitutional or political disputes, avoid administrative costs following
from ratification, enable themselves to participate in trade agreements that
demand such consistency, or legitimize their status in a larger community of
nations.292
Based on these factors identified from both pre-promulgation and post-
promulgation settings, an ILO convention may have the ability to ameliorate
workers’ rights without ratification. Thus, a new GSC convention could form the
basis for a more consistent and persuasive approach at national statutory levels
even if not widely ratified.
2. Broader participation from employers and workers
The ILO’s unique governance structure—a tripartite body composed of
representatives of governments, employer organizations, and trade unions—has
long made it more representative of civil society and accountable to a broader
range of stakeholders than other international government organizations. To that
end, the ILO Constitution specifies responsibilities for employer and worker
organizations whose status is “most representative of employers or workpeople,
as the case may be, in their respective countries.”293 At the same time, recent
developments in the world of work, including the emergence of powerful
transnational enterprises and the corresponding reduction in the role of traditional
291 See Faradj Koliev, Promoting International Labour Standards: The ILO and National Labour Regulations, 24
BRITISH J. POL. & INT’L REL. 361, 362–63 (2022) (focusing on period from 1970–2012 and finding
that ILO has had influence on domestic labor regulations during the preparatory process of ILO
conventions).
292 On trade advantages and legitimacy pursuits, see supra notes 243–244 and accompanying text. See
also Anonymous, Do International Treaties Only Have an Impact on Ratifying States?: The Influence of the ILO
Maternity Conventions in 160 States, 1883–2018, ___ INT’L LAB. REV. ___ (forthcoming 2023) (on file
with author) (empirical analysis indicating influence on non-ratifying states).
293 ILO Constitution art. 3(5); see also ILO Convention 144, Concerning Tripartite Consultations to
Promote the Implementation of International Labor Standards art. 1 (“In this Convention, the term
‘representative organisations’ means the most representative organisations of employers and
workers . . .”).
Winter 2023 335

employer organizations, the shrinkage of trade union representation in

industrialized countries, and the growth of the informal economy, have led
numerous observers to suggest that tripartism must accommodate a wider range
of interested actors, at least on a strategic basis.294 To allow for such an
accommodation, this Article suggests that established employer and trade union
organizations should invite and encourage distinct input from certain participants
as part of the tripartite dialogue contributing to a GSC convention.
On the employer side, large numbers of companies, including most MNEs,
are not affiliated with their national employer organizations.295 ILO representation
of employers comes through the International Organization of Employers (IOE),
a body composed of employers’ organizations from member states. When IOE
“bureaucrats”296 speak for employers at the ILO, MNEs and their preferred
positions may not be adequately or fairly represented. The potential for divergence
is especially relevant with respect to proposed solutions to the GSC labor
standards challenge.
In its 2017 revision of the MNE Declaration, the ILO stated that MNEs
“should carry out due diligence” in order to identify, prevent, and account for how
they deal with adverse impacts related to international human rights.297 The MNE
Declaration went beyond the UNGPs’ language to state that as part of the
identification and assessment of actual or potential adverse human rights impacts,
the process “should involve meaningful consultation with . . . workers’
organizations,” taking account of the “central role” of freedom of association,
collective bargaining, and social dialogue.298 Several years on, many large
companies in Europe have called for the “should” in that due diligence provision
to become a “shall,” urging national governments and the EU to enact mandatory
HRDD statutes.
294 See, e.g., GERRY RODGERS ET AL., THE INTERNATIONAL LABOUR ORGANIZATION AND THE QUEST
FOR SOCIAL JUSTICE, 1919-2009 17–18, 240 (2009); Landau & Hardy, supra note 60, at 53; Lawrence
R. Helfer, The ILO at 100: Institutional Innovation in an Era of Populism, 113 AM. J. INT’L L. UNBOUND
396, 399 (2019); Paul van der Heijden, The ILO Stumbling Towards Its Centenary Anniversary, 15 INT’L
ORGS. L. REV. 203, 217 (2018); Velibor Jakovleski et al., The ILO’s Role in Global Governance: Limits
and Potential, in THE ILO @ 100: ADDRESSING THE PAST AND FUTURE OF WORK AND SOCIAL
PROTECTION 82, 95–96 (Christophe Gironde & Gilles Carbonnier eds., 2019).
295 See Landau & Hardy, supra note 60, at 53; van der Heijden, supra note 294, at 217.
296 The term is invoked by van der Heijden, supra note 294, in contrast to what he identifies as the
more dynamic environment created by CEOs.
297 See Tripartite Declaration of Principles Concerning Multinational Enterprises and Social Policy,
¶ 10(d) (2017) [hereinafter MNE Declaration]. The MNE Declaration was initially issued by the
Governing Body in 1977 and has been amended since then, in 2000, 2006, and 2017.
298 See id. ¶ 10(e). The corresponding UNGPs language addressing human rights due diligence never
mentions workers’ organizations (referring in general terms to “potentially affected groups and
other relevant stakeholders,” UNGPs princ. 18(b)), nor does it refer to any role for freedom of
association, collective bargaining, or social dialogue.
336 Vol. 23 No. 2

A statement from sixty-five German businesses in August 2020 insisted that

only a mandated statutory approach can “help create both legal certainty and a
level playing field.”299 A joint statement by over 120 European businesses in
February 2022 was more extensive, calling for mandatory HRDD legislation to
“bring about a paradigm shift” and specifying that the legislation should cover all
businesses regardless of size; should extend a company’s responsibility across its
full supply chain; should drive meaningful action rather than invoking the tick-
box approach of overreliance on social audits; should include robust engagement
with workers, unions, and other stakeholders at all stages of the required due
diligence process; and should provide for effective remedies, including
administrative penalties and sufficiently strong civil liability.300 The IOE, however,
was until recently opposed to mandatory HRDD legislation, arguing instead for
“voluntary, flexible, and collaborative efforts.”301 Its subsequent recognition that
such legislation may be inevitable is ringed with cautionary warnings.302 MNE
support for a mandatory approach does not mean that business enterprises will
want to go as far as workers do in this respect. But given that transnational and

300 See Making EU Legislation on Mandatory Human Rights and Environmental Due Diligence Effective, BHRRC
(Feb. 8, 2022), https://perma.cc/S4D9-Y8AJ. Later in February 2022, the European Commission
issued a Proposal for a Directive on Corporate Sustainability Due Diligence. The Draft Directive
has numerous parallels to the HRDD statutes, discussed supra Part II.C. It applies to EU and third-
country companies above a certain size, requiring them to establish a human rights and
environmental due diligence process that includes appropriate measures to identify actual and
potential adverse human rights impacts arising from their own operations or those of subsidiaries
or established business relationships. The Draft Proposal must be reviewed and approved by the
Council of Ministers and the European Parliament; member states would then have two years to
transpose the Directive into national law. See European Commission Press Release IP/22/1145,
The Commission, Just and Sustainable Economy: Commission Lays Down Rules for Companies
to Respect Human Rights and Environment in Global Value Chains (Feb. 23, 2022); European
Commission Issues Major Proposal on Due Diligence Obligations to Protect Human Rights and the Environment
Across Supply Chains, WHITE & CASE (Feb. 24, 2022), https://perma.cc/B5GZ-7L7K. Since 2014,
an open-ended intergovernmental working group (OEIGWG) established by the U.N. Human
Rights Council also has produced a series of draft instruments (a third revised draft was issued in
August 2021) aimed at regulating the human rights-related activities of transnational corporations
and other business enterprises. See Commentary from the ENNHRI to the Open-Ended Intergovernmental
Working Group on Transnational Corporations and Other Business Enterprises with Respect to Human Rights,
BHRRC (Nov. 1, 2021), https://perma.cc/7BBZ-WS7J. Both the EU and Working Group drafts
focus primarily on HRDD and do not sufficiently address the three salient features of the GSC
convention proposed in this Article. In addition, the EU proposal would have a narrower reach
than an ILO convention promulgated for all countries to review and ratify. And the ILO is capable
of faster and more coherent decision-making than the U.N. Working Group, which is informally
constituted and is now in its ninth year of revising drafts.
301 See IOE, IOE PAPER ON STATE POLICY RESPONSES ON HUMAN RIGHTS DUE DILIGENCE 10–22,
28 (May 2018), https://perma.cc/8N7R-6JZY.
302 See IOE, KEY DEVELOPMENTS IN MANDATORY HUMAN RIGHTS DUE DILIGENCE AND SUPPLY
CHAIN LAW: CONSIDERATIONS FOR EMPLOYERS 31–34 (Sept. 2021), https://perma.cc/WYD6-
N757.
Winter 2023 337

other larger business enterprises are lobbying in different contexts for a mandatory
option, it is important that MNEs have a voice and a place at the table when an
ILO convention is discussed and negotiated.
On the workers’ side, NGOs and other civil society groups may speak more
effectively than traditional trade unions to address working conditions for supply
chain workers who are migrants, homeworkers, or otherwise part of the informal
economy. Such efforts at times involve workers in a particular informal economy
sector banding together to reach agreements with local government officials.303
Additionally, social dialogue mechanisms aimed at assisting transitions from the
informal to the formal economy may receive ILO technical assistance as the
parties seek to implement strategies set forth in Recommendation 204.304
With the decline in trade union density, organizations besides unions have
become important advocates for decent labor standards in general. To be clear,
unions continue to play the leading role in the supply chain setting, through
traditional collective bargaining, international framework agreements, and in
helping to promote innovative arrangements such as the Bangladesh Accord and
the Indonesian Freedom of Association Protocol.305 But some of the more
successful co-governance efforts in the supply chain context have involved
contributions from worker-focused NGOs,306 resulting in agreements negotiated
outside a collective bargaining framework.
303 One example involves the Federation of Petty Traders and Informal Workers Union of Liberia,
which advocates for the rights of Liberian street vendors “to earn a livelihood with freedom from
unrelenting police harassment, extortion, and violence.” FEPTIWUL (Federation Petty Traders &
Informal Workers’ Union of Liberia), STREETNET INT’L: INT’L ALL. OF STREET VENDORS,
https://streetnet.org.za/organization/federation-petty-traders-informal-workers-union-of-liberia-
feptiwul/ (last visited Jan. 11, 2023). The Federation signed a Memorandum of Understanding with
the City of Monrovia in 2019 that commits the parties to meeting on a monthly basis, addressing
issues such as street zoning, sanitation, and spatial layout of individual vendors. See Liberia’s Street
Vendors Pioneer New Approach with City Officials, WIEGO (Jan. 29, 2019), https://perma.cc/U95X-
63CE.
304 See, e.g., ROSA CHENG LO, COSTA RICA: BUILDING A NATIONAL STRATEGY FOR THE TRANSITION
FROM THE INFORMAL TO THE FORMAL ECONOMY THROUGH SOCIAL DIALOGUE, ILO 4–5, 13–17,
20–21 (2018), https://perma.cc/ZPN3-VAZG.
305 The Indonesian Freedom of Association Protocol was signed in 2011 by Indonesian textile,
clothing, and footwear unions; major supplier factories; and global sportswear brands, including
Adidas, Nike, New Balance, and Puma. See TIM CONNOR ET AL., THE FREEDOM OF ASSOCIATION
PROTOCOL: A LOCALISED NON-JUDICIAL GRIEVANCE MECHANISM FOR WORKERS’ RIGHTS IN
GLOBAL SUPPLY CHAINS 1, 15 (2016), https://perma.cc/K6K7-BQ4Z; Karin Astrid Siegmann et
al., Positive Class Compromise in Globalized Production? The Freedom of Association Protocol in the Indonesia
Sportswear Industry, 156 INT’L LAB. REV. 345 (2017).
306 The WRC, a witness signatory on the Steering Committee of the Bangladesh Accord, worked with
Steering Committee members to ensure the principles of the Accord were being fully executed and
that inspections and repairs were taking place in a timely fashion. See International Safety Accord,
WORKER RTS. CONSORTIUM, https://perma.cc/Q8U2-RH29.
338 Vol. 23 No. 2

One prominent example is the Fair Food Program, which includes a series
of bilateral agreements between the Coalition of Immokalee Workers (CIW), a
worker-based human rights organization acting on behalf of tens of thousands of
agricultural workers in the southeastern U.S., and national and international retail
brands, including fast food chains, food service companies, and supermarkets.307
The agreements, under which retail brands impose severe market consequences
on suppliers who fail to comply with a human rights-based code of conduct, have
resulted in substantial wage increases and dramatically improved working
conditions for this migrant and minority population.308 The program has been
recognized for its innovative processes by the U.N. and the U.S. government309
and its approach is being replicated in other U.S. agricultural settings.310 Of
immediate relevance, its four-step process of risk identification, assessment,
monitoring, and enforcement indicates how an approach like France’s Vigilance
Plan can be made more effective.
Other NGOs have worked closely with the ILO to address decent work
challenges facing informal economy workers in supply chain settings. One
example is Women in Informal Employment Globalizing and Organizing
(WIEGO);311 another is the National Domestic Workers’ Alliance (NDWA).312
307 See Asbed & Sellers, supra note 181; Brudney, supra note 181; Dias-Abey, supra note 34. The program
is discussed supra Part III.C for its success in promoting worker participation in the HRDD process.
308 See Fair Food Program 2021 Report, supra note 181; FAIR FOOD PROGRAM 2017 REPORT (describing
substantial improvements in wages, hours, work environment, health and safety, and housing). As
discussed supra Part III.C, the monitoring and enforcement process combines worker-driven
complaint investigations and comprehensive audits linked to rapid corrective action, all coordinated
by the Fair Foods Standards Council, a third-party monitor launched by CIW in 2011.
309 See, e.g., U.N. Working Group on Business and Human Rights, Statement at the End of Visit to the
United States U.N. Working Group on Business and Human Rights, Washington D.C., 1 May 2013
(May 2, 2013), https://perma.cc/F72T-JS9L; U.S. EQUAL EMP. OPPORTUNITY COMM’N, SELECT
TASK FORCE ON THE STUDY OF HARASSMENT IN THE WORKPLACE, REPORT OF CO-CHAIRS CHAI R.
FELDBLUM & VICTORIA A. LIPNIC (2016), https://perma.cc/GJL4-F37N; End of Visit Statement,
United States of America (6-16 December 2016) by Maria Grazia Giammarinaro, U.N. Special
Rapporteur in Trafficking in Persons, Especially Women and Children (Dec. 16, 2016),
https://perma.cc/YED6-XPQV.
310 Under the Milk with Dignity program, developed in consultation with CIW and FFP, Migrant
Justice signed an agreement in 2017 with Ben & Jerry’s Homemade Holdings (a wholly-owned
subsidiary of the British-Dutch conglomerate Unilever), making that MNE the first major dairy
corporation to join the program and require its supplier farms to come into compliance with the
Milk with Dignity Code of Conduct. See About the Milk with Dignity Program, MIGRANT JUSTICE
JUSTICIA MIGRANTE (2018), https://perma.cc/G2UR-QDD4.
311 See, e.g., Homeowners Organizing for Economic Empowerment, WIEGO, https://perma.cc/Q3BF-BHSH;
ILO and WIEGO Policy Brief Series: Childcare for Workers in the Informal Economy, INT’L LAB. ORG. (Mar.
3, 2020), https://perma.cc/G3JK-7RM9; Home-Based Workers in the World: A Statistical Profile, INT’L
LAB. ORG. (Feb. 19, 2021), https://perma.cc/P8TJ-6G2X.
312 The NDWA is an advocacy organization promoting the rights of domestic workers in the United
States. See, e.g., Home Economics: The Invisible and Unregulated World of Domestic Work, NAT’L DOMESTIC
WORKERS ALL. (2012), https://perma.cc/K4PZ-C7B3 (provides an empirically based and
Winter 2023 339

Collective bargaining remains the internationally recognized and preferred means

for workers to play an essential role in assessing the compliance of suppliers. But
worker-centered organizations besides unions have made important contributions
to worker-employer co-governance in the supply chain setting.313 Their voices
should be part of the dialogue regarding how to structure an effective compliance
program, modifying approaches identified in current and proposed due diligence
statutes.
V. CONCLUSION
This Article addresses a critical challenge confronting the international labor
law community: how to promote and protect decent labor conditions in global
supply chains. Existing approaches to the problem, developed through national
law and corporate self-regulation, have been disappointing, and the COVID-19
pandemic has highlighted ongoing human rights abuses in this area. Thus, the time
is ripe for a new international law approach. In arguing for the creation of an ILO
convention on GSCs, the Article has emphasized three factors that a GSC
convention would have to include to overcome the weaknesses of existing laws
and practices: (i) separate obligations for business enterprises regarding due
diligence procedures and human rights outcomes; (ii) substantial worker engagement
in formulating and implementing due diligence processes; and (iii) application to
all supply chain workers, regardless of employment or contractual status under
national law.
In contending that the ILO is best situated to deliver such a convention, this
Article has pointed to the ILO’s preeminent leadership role in developing
transnational labor standards and its recent experience promulgating conventions
that function effectively across national borders. The Article also asserts that while
ratification of a GSC convention may be difficult, the ways in which ILO
conventions directly and indirectly affect national law and practice even without
ratification mean that this convention could nonetheless have a significant impact.
The challenge of rectifying human rights abuses in GSCs will not be easily
met, as should be evident from the ILO’s inconclusive struggles with how to
address the GSC problem.314 An international convention recognizing the scope
for national authority on approaches to both prevention and punishment will not
assure uniformity among ratifying governments. Wealthier ILO member states
representative picture of domestic employment in twenty-first-century America); Enforcement of ILO

Convention 189 on Decent Work for Domestic Workers, EUR. PUB. SERV. UNION (Oct. 14, 2013),
https://perma.cc/ZP2M-FMUB (interviewing leaders from NDWA and other national domestic
worker organizations addressing strategies for implementation and enforcement of ILO
Convention 189).
313 See generally Anner, supra note 11, at 378; Blasi & Bair, supra note 188; POWER & PARTICIPATION,
supra note 26, at 139–53.
314 See Thomas & Anner, supra note 24.
340 Vol. 23 No. 2

where more MNEs are based may take a more stringent stance with respect to
goods or services entering their market than developing countries, which may
choose to regard supply chain working conditions as preferable to the abject
poverty or starvation that can occur in the absence of such employment. And
current internal tensions between employer and worker organizations over aspects
of the ILO supervisory system further complicate the prospects for resolution.315
A proposed ILO convention on GSCs may well fuel some of these existing
conflicts and tensions within the ILO. But international law discourse contributes
to conflicts as well as (or on the way to) reducing or resolving them—that has
been its role in other settings.316 Moreover, in this setting, the recent statutory
movement in EU countries, along with draft proposals emanating from the EU
Commission and the U.N. Human Rights Council,317 suggest the emergence of a
collective will on regulating GSCs that has not heretofore been visible. Insofar as
national or regional trains have begun to leave the station, the prospect of
inconsistent rules and remedies effectively invites a transnational intervention.
This Article has sought to describe and justify both the necessary contours of that
intervention and the international organization capable of making it happen.
315 See Lee Swepston, Crisis in the ILO Supervisory System: Dispute Over the Right to Strike, 29 INT’L J. COMP.
LAB. L. & INDUS. REL. 199 (2013); L.C. Hofmann & N. Schuster, It Ain’t Over ‘till It’s Over: The Right
to Strike and the Mandate of the Committee of Experts Revisited, GLOB. LAB. UNIV. (2016).
316 See Monika Hakimi, draft chapter (Feb. 2022) (unpublished manuscript) (on file with author)
(arguing that international law’s stimulation of conflict among governments is part of a constructive
role).
317 See supra note 300, discussing EU Commission Draft Directive issued in February 2022, and third
revised draft issued in August 2021 by Open-Ended Intergovernmental Working Group
(OEIGWG) established by the U.N. Human Rights Council.
Winter 2023 341

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Hiding in Plain Sight: An ILO Convention on

Labor Standards in Global Supply Chains

Winter 2023 273

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19 See infra Part IV.B, discussing various examples.

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25 See infra Part IV.C.

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II. FAILURE OF EXISTING PUBLIC LAW AND PRIVATE LAW APPROACHES

A. Shortcomings of National Law and Practice in

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wisdom, propagated even by the International Finance Corporation (IFC), the

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One mechanism used by governments is to suspend labor inspections or

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insufficient number of inspections, and a shortage of computer and transport

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be based largely on standards covered in ILO conventions, with the exception of

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representatives in program design, implementation, and enforcement, both at the

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The UNGPs’ fourteen principles dealing with business responsibility to

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recognize the ILO Declaration on Fundamental Principles and Rights at Work,

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C. Limitations of Recent National Laws in

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2. The due diligence requirements approach

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obligation by failing to establish and implement an effective monitoring plan; (ii)

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plans exhibited problems of readability and accessibility;119 failure to identify and

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III. KEY FEATURES OF AN ILO CONVENTION ON GSCS

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human rights area. Their statement of business responsibilities to protect human

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risk of causing or contributing to gross human rights abuses regardless of

146 See UNGPs princ. 24(c).

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B. Liability Regimes for Substantive Violations

152 See supra note 54 and accompanying text.

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overlook human rights abuses in GSCs. While recent statutes in developed

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law specifying extraterritorial application,160 or customary international law.161

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fairly be said to be characteristic of its activities.”171 If the human rights abuses in