Chicago Journal of International Law

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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 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.

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