International Construction Law: the Development of the Business and Human Rights Treaty and Its Implications on Migrant Workers

• Publication year: 2022
• Citation: Vol. 50 No. 2

International Construction Law: The Development of the Business and Human Rights Treaty and its Implications on Migrant Workers

Anna Parks Muecke^*

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TABLES OF CONTENTS

I. INTRODUCTION.....................................................................................549

A. Contemporary Issues in International Construction Law.......549
B. Outline of Argument..............................................................549

II. BACKGROUND.....................................................................................551

A. The Business and Human Rights Treaty.............................552
B. Construction Law, Generally................................................553

i. Olympics.........................................................................554
ii. World Cup......................................................................555

III. ANALYSIS...........................................................................................556

A. Migrant Workers in the Gulf.................................................557
B. Holding Companies Accountable..........................................558
C. Proper Forum for Bringing Claims........................................560

IV. CONCLUSION......................................................................................561

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I. INTRODUCTION

While the Business and Human Rights Treaty is still in the drafting phase, it is important to take a look at the industries on which it will likely bear great weight. When enacted, the Treaty will regulate international corporations generally; however, it is important for the Treaty drafters to look particularly at construction corporations, which should be subject to international regulations as they often employ migrant workers. Some system of international accountability must be established in order to address alleged human rights violations in these corporations, and the Business and Human Rights Treaty, once past the draft phase and in its final form, should be the document governing such issues.

A. Contemporary Issues in International Construction Law

While traditional construction law disputes are commonly centered around one party's failure to follow building code standards or the terms of a contract, a largely unrecognized yet growing issue in the construction industry is the concern for human rights. Employers should be concerned with taking care of their employees in addition to adhering to contractual obligations for the success of a project. Construction companies not only need to worry about the future safety of people using their final project, i.e., apartment building, hotel, bridge, but also, they need to worry about the current safety of the workers employed to construct such projects. Now that it is common for large companies to have extensive supply chains, it is paramount that contractual provisions are added at each level of the company to protect the rights of their workers.¹

B. Outline of Argument

Human rights abuses occur in employment practices around the world; however, particularly in Qatar and the Persian Gulf, human rights abuses have been running rampant for years.² Labor recruitment in the United

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Arab Emirates (UAE) is shockingly unregulated, and migrants are peddled into labor through "sponsorship[s]."³ The Persian Gulf is both a hub for migrant workers employed within the region and for global companies seeking cheap labor on a temporary basis.⁴ In response to these issues, the United Nations (UN) formed the International Labour Organization (ILO) in 1919 for the purpose of creating and applying standards in the workplace on a global scale.⁵ Nevertheless, human rights abuses have persisted over the years, and the ILO seems to be failing at taking substantive measures in applying its labor standards.⁶

In 2011, the UN created the Guiding Principles on Business and Human Rights (UNGPs), which provide nonbinding rules based on recognized obligations that all companies should owe their employees, particularly throughout their complex supply chains.⁷ In 2014, the UN Human Rights Council (UNHRC) established a working group to create an

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international legally binding instrument that would regulate the activities of transnational corporations and other business enterprises under international human rights law.⁸ In 2018, a draft of the Business and Human Rights Treaty was written by the UNHRC group.⁹ As the Treaty is still in its draft phase, this Note will address the potential for its future drafts and propose measures the Treaty should incorporate to go beyond simply suggesting nonbinding rules.

Looking ahead, establishing a substantive means of enforcing these guiding principles on international companies, particularly those in the construction industry, could yield actual results in the improvement of international labor conditions and human rights abuses. The issues revolving around the Treaty relate directly to the developing area of law known as Business and Human Rights. As this area of law is quite new, little research has been done regarding its implications on corporations globally. Some of the largest construction projects around the world, which employ countless migrant laborers, are run by large corporations. An understanding of construction corporations' employment practices will provide an interesting lens through which to consider how alleged human rights violations are addressed and how corporations are held accountable in the international legal realm.

II. BACKGROUND

Before exploring the future of the Treaty, it is important to understand the reasoning for its genesis. As globalization has infiltrated every commodity and industry in the world, companies are booming, and growth rates are exponential. As businesses extend their reaches beyond country borders, their responsibilities increase as well. The UN Commission on Human Rights adopted a resolution in 2005 to establish standards for transnational corporations as a system of accountability, especially regarding human rights.¹⁰ In 2011, in the aftermath of the 2005 resolution, the UN adopted the UNGPs, which provided the first "global standard for preventing and addressing the risk of adverse impacts on human rights linked to business activity. . . ."¹¹ The UN working group has been focused on drafting a treaty

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to regulate transnational corporations and other businesses in regard to human rights.¹² The UN open-ended intergovernmental working group (IGWG) held its sixth session from October 26 through October 30 of 2020 when the second revised draft of the Treaty served as the basis for the negotiations.¹³ During this session, the group addressed definitional revisions to the draft treaty, disagreements on due diligence obligations imposed by states on companies, as well as liability and appropriate remedies.¹⁴

A. The Business and Human Rights Treaty

Although the Treaty currently imposes no legally binding duties on countries to oversee companies' operations, the UN Office of the High Commissioner for Human Rights (OHCHR) works in conjunction with an intergovernmental working group to establish legally binding measures to be enforced globally.¹⁵ The Treaty, in its current draft form, aims to make countries responsible for enforcing human rights laws on companies operating within their territories; it also makes suggestions and provides avenues by which individuals might avail themselves of jurisdiction to national courts in order to properly address their grievances.¹⁶ The draft Treaty's preamble emphasizes the importance of fostering the growth of companies while diminishing human rights abuses, recognizing that there are certain classes of people who are more at risk to suffer these abuses, including "girls, children, indigenous peoples, persons with disabilities, migrant refugees, [etc.] . . . ."¹⁷

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The draft defines a human rights abuse as "any harm committed by a business enterprise, through acts or omissions in the context of business activities, against any person or group of persons, that impedes the full enjoyment of internationally recognized human rights and fundamental freedoms. . . ."¹⁸ It also defines business activities as "any for profit economic or other activity undertaken by a natural or legal person, including State-owned enterprises, transnational corporations, other business enterprises, and joint ventures, undertaken by a natural or legal person."¹⁹ Article 3 of the draft states that the scope of the agreement will apply to all companies of any transnational nature.²⁰ The draft clarifies that the responsibility lies with the states to monitor and regulate the "business enterprises domiciled within their territory[,]" and it also states that failure to adequately perform human rights due diligence measures will result in sanctions.²¹ Due diligence, however, will not absolve a party of liability if a human rights abuse still occurs as a result of their failure to prevent it.²²

B. Construction Law, Generally

Under the definition of "business activities," it is clear that construction companies fall within the scope of the draft Treaty. Construction law is not always the first area of law that comes to mind when thinking about global corporations and human rights issues; however, over the years, construction companies have been one of the biggest sources of human rights

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violations in the world, particularly in the Persian Gulf, where work opportunities do not abound, and wages are low.²³

i. Olympics

Construction companies commonly seek out transient workers who will accept low wages, and many of the human rights abuses occur on major construction projects such as resorts, hotels, and even sports arenas. For instance, human rights abuses commonly occur during the leadup to the Olympic games, especially during the construction of stadiums.²⁴ In response to the atrocities that occurred during construction of the...