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

81 Pages Posted: 8 Jun 2022

Date Written: June 7, 2022


This Article proposes a solution to the primary challenge confronting governments, employers and workers under international labor law: promoting and protecting decent labor conditions in global supply chains.

The Article begins by summarizing why existing public law and private law approaches have failed over several decades. In doing so, it briefly describes the shortcomings of laws and practices in developing countries as well as the weakness of corporate social responsibility, including the most ambitious version of CSR, the UN Guiding Principles on Business and Human Rights. It then analyzes the problems with recent national laws in the Global North that impose mandates on multinational enterprises 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 Article argues 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 both substantive and procedural violations under 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 under relevant national law.

The Article then considers questions about the appropriateness and feasibility of such a convention. It explains the appropriateness of a leadership role for the ILO, including its recent experience promulgating conventions that transcend national borders and that provide for detailed due diligence procedures engaging workers at every stage. The Article also discusses the indirect impact of ILO conventions on national laws in ways that extend beyond formal ratification. Finally, the Article suggests building on the ILO’s unique tripartite structure to invite newer voices from the worker and employer communities to participate along with the recognized leadership of trade union and employer organizations.

Suggested Citation

Brudney, James Jules, Hiding in Plain Sight: an ILO Convention on Labor Standards in Global Supply Chains (June 7, 2022). Forthcoming, Chicago Journal of International Law, Vol. 23, No. 2, (January 2023), Fordham Law Legal Studies Research Paper No. 4130450, Available at SSRN: https://ssrn.com/abstract=4130450

James Jules Brudney (Contact Author)

Fordham University School of Law ( email )

140 West 62nd Street
New York, NY 10023
United States
212-636-7387 (Phone)

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