The Contested Silos of Labour and Environment

In 2017, Labour Law and Environmental Law exist as well-accepted, independent fields of study and expertise. Yet, it was not always this way. As David Doorey argues in advocating for a new field of research and study to address the labour dimensions of climate change, “[a]ll new legal fields must confront their Law of the Horse moment, that point when a decision is made that a new legal field is warranted or desirable because developments in the law or the world around us have outgrown existing legal taxonomies.”^{Footnote 4} While Labour Law emerged as a distinct field at the time of World War II, Environmental Law is said to date from the 1970s. Yet both legal fields, currently face an existential crisis, with environmental law scholars confronted with the challenges of climate change, while labour law scholars confront the erosion of “the standard employment model” and the erosion of “‘labour’ as a class and a movement.”^{Footnote 5}

As Doorey observes, labour and environmental law scholars and practitioners rarely speak to each other, and they engage in their academic and professional work in independent spheres involving different journals, conferences, and tribunals.^{Footnote 6} Moreover, the “goals and outcomes” of the two fields are often in conflict, with labour law addressing tensions over demands for more and better jobs, while environmental law is concerned “with the impacts of consumerism and economic activity on climate, air, and water quality and other harmful effects on the natural environment.”^{Footnote 7} Consequently, labour and environment advocates are often found on different sides of policy debates, with perhaps some of the most obvious recent North American examples concerning disagreement over oil sands production and pipelines as either a necessity due to the number of good jobs created and energy security, or an impossibility due to the seriousness of climate change impacts and other environmental harms.^{Footnote 8}

Beyond the domestic sphere, a bright line dividing labour and environment can be found in key corporate social responsibility (CSR) and sustainability standards that may be viewed as instruments of transnational law. While most CSR standards do reference both environment and labour, they are treated separately, as distinct silos within standards, rather than as interconnected or interdependent issues. For example, the United Nations Global Compact, launched in 2000, is a learning network that provides companies with the opportunity to align their strategies and operations with ten universal principles.^{Footnote 9} The first two principles concern human rights, while Principles 3 to 6 address labour issues, and Principles 7 to 9 address environmental issues.^{Footnote 10} These principles are informed by sources of international law, including the Universal Declaration of Human Rights, the International Labour Organization’s Declaration on Fundamental Principles and Rights at Work, and the Rio Declaration on Environment and Development.^{Footnote 11}

Similarly, the OECD Guidelines for Multinational Enterprises (MNE),^{Footnote 12} originally dating from 1976, consist of voluntary guidelines for companies touching various areas of responsible business conduct. Adhering states are committed to recommending these guidelines to companies operating in or from adhering states.^{Footnote 13} The 2011 update of the OECD MNE Guidelines consists of eleven chapters, including Chapter IV, “Human Rights,” Chapter V, “Employment and Industrial Relations,” and Chapter VI, “Environment.”^{Footnote 14} The Human Rights chapter closely mirrors the business responsibility to respect rights found in the 2011 UNGPs. The employment and industrial relations chapter explicitly embraces the work of the ILO.^{Footnote 15} The environment chapter is said to reflect various instruments, including especially the Rio Declaration.^{Footnote 16}

Among the most integrated of global CSR standards are the 2012 Social and Environmental Performance Standards of the World Bank’s International Finance Corporation (IFC).^{Footnote 17} The mission of the IFC is to mobilize finance to support private sector investment in developing countries.^{Footnote 18} The Performance Standards were initially released in 1998, updated in 2006, and then again in 2011. Designed as a tool to guide clients in the management of environmental and social risk, compliance with the Performance Standards is a condition of IFC support.^{Footnote 19} There are eight performance standards, and while several treat labour and environment as distinct silos,^{Footnote 20} others blur the lines, drawing attention to both community and worker health and safety when confronted with hazardous substances^{Footnote 21} and to the relationship between land acquisition and loss of land-based livelihoods for those who are physically or economically displaced.^{Footnote 22}

While the intersection of environment and health and safety laws is an obvious example of overlap between labour and environment,^{Footnote 23} the treatment of these issues in the IFC Performance Standards suggests a deeper and more expansive connection—one that reaches beyond workers to families and communities. Moreover, the consideration of land-based livelihoods reminds us that industrial labour is not the only “work” that merits attention. Indeed, as Anne Trebilcock has observed, there is a need for labour law to move beyond a focus on the formal sector and to embrace the need to “produce better outcomes for the poor” including for those in the informal sector, who are often women.^{Footnote 24}

The approach of the IFC Performance Standards also resonates with Adelle Blackett’s reflections on the colonial history of labour law, in particular her observation that colonial dispossession has led to the recharacterization of the “migrant” as the “modern industrial man.”^{Footnote 25} According to Blackett, colonialism was “first and foremost about securing land,” and she queries whether labour law must be “confined to discussions of exploitation that neglect their profound link to land, and dispossession?”^{Footnote 26} To suggest that labour law consider land and dispossession within its scope, as well as better outcomes for women in the informal sector, would appear to necessitate a redrawing of the boundaries currently associated with the field.^{Footnote 27}

Uncertainty also exists as to the boundaries of environmental law.^{Footnote 28} This is particularly so if attention is paid to the international arena and debates over environment and development that are inextricably intertwined with colonial histories.^{Footnote 29} Indeed, it is notable that while the international instruments most frequently referenced in the labour context originate clearly from an ostensibly labour-focused institution known as the International Labour Organization,^{Footnote 30} the international instruments most frequently referenced in the environmental context emerged from global conferences that ultimately endorsed not environmental protection but sustainable development as the winning theme.^{Footnote 31} Following the 1972 Stockholm Conference on the Human Environment,^{Footnote 32} the 1992 Rio Conference on Environment and Development endorsed the Rio Declaration,^{Footnote 33} a set of twenty-seven principles that have, to differing degrees, found their way into the texts and preambles of international environmental law treaties and domestic legislation and been re-endorsed time and again at international events, including Rio +20^{Footnote 34} in 2012 and, most recently, the 2030 Agenda and the SDGs.^{Footnote 35} Among important principles in the Rio Declaration, Principle 11 makes it clear that states may choose lower environmental standards in the interest of development, rather than embracing the idea that there are minimum environmental standards below which no state may go.^{Footnote 36} While some international environmental law treaties do qualify this principle, it is a choice as to whether or not states become parties to these treaties, and, for the most part, there is little international environmental law that in fact prohibits pollution outright. Even chemicals management in multilateral environmental law treaties is often approached as an issue requiring prior informed consent of an importing country, rather than an outright prohibition on import/export of specified substances.^{Footnote 37}

Having said this, environmental justice scholars and advocates argue that international environmental law principles must be understood in light of the protections offered under international human rights law.^{Footnote 38} For example, according to Karin Mickelson, the contestation that led to the sustainable development consensus may be best understood as a failure by the “North” to recognize that the “South” was seeking fundamental recognition that the meaning of “environmentalism” itself must be open to interpretation.^{Footnote 39} “While environmentalism of the rich might have the luxury of valuing the environment for its own sake, quite apart from its value to humans, the environmentalism of the poor “originates as a clash over productive resources,” with the result that “issues of ecology are often interlinked with question of human rights, ethnicity and distributive justice.”^{Footnote 40} Accordingly, environmental human rights law has emerged as an additional source of international and transnational law that merits attention.^{Footnote 41}

Despite the existence of the ILO and its associated international instruments, it is nevertheless true that the wording of many of the “core” labour standards is often sufficiently vague that they cannot be said to provide clear substantive rules.^{Footnote 42} Similarly to what is seen in the environmental context, international labour standards are often contingent on levels of economic development.^{Footnote 43} Nevertheless, as will be seen below, the link between international labour law and human rights is more clearly accepted, even if it too is contested.^{Footnote 44}

Labour and Environment in Business and Human Rights

The endorsement in 2011 of the UNGPs^{Footnote 45} by the UN Human Rights Council provides an opportunity to reflect upon the relationship between labour law and environmental law through consideration of the relationship between each one and international human rights law. Produced through multi-year multi-stakeholder processes, the UNGPs are a polycentric governance framework comprised of three interrelated pillars: the state duty to protect human rights from violations by non-state actor businesses, as required under international human rights law; the business responsibility to respect human rights, a reflection of social expectations; and the need for effective access to remedies for victims, whether judicial or non-judicial, state-based or non-state-based, including company-level grievance procedures.

The UNGPs have been critiqued by those who believe that they fail to properly reflect existing international human rights law on the “extraterritorial” obligations of states. There are also those who believe that the “do no harm” expectation of the business responsibility to respect is inadequate, as the power of transnational corporations brings with it an obligation of legal stature to also promote and fulfil human rights.^{Footnote 46} Indeed, following the endorsement of the UNGPs, select states and civil society groups advocated successfully for a binding treaty process to begin discussions at the UN Human Rights Council.^{Footnote 47} At the same time, a Human Rights Council Working Group was established to further implementation of the UNGPs, and yearly Forums are held to consider and promote action.^{Footnote 48} In addition, the business responsibility to respect has been gradually embedded in multiple international CSR standards, as noted above.^{Footnote 49}

The content of the business responsibility to respect rights is elaborated in Principles 11 to 24, and requires businesses to adopt a human rights policy (Principle 16) and to engage in human rights due diligence throughout the business enterprise, so as to “identify, prevent, mitigate, and account for how they address human rights impacts” (Principle 17). Businesses should also remediate or participate in legitimate remediation processes when they identify that they have caused or contributed to adverse human rights impacts (Principle 22). The overarching responsibility, described in Principle 13, is to:

1. (a) “Avoid causing or contributing to adverse human rights impacts through their own activities, and address such impacts when they occur;

2. (b) Seek to prevent or mitigate adverse human rights impacts that are directly linked to their operations, products or services by their business relationships, even if they have not contributed to those impacts.”

The business responsibility is understood as distinct from the state duty and exists irrespective of state compliance with its own obligations.^{Footnote 50} Ultimately, business enterprises should both “comply with all applicable laws” and “respect internationally recognized human rights, wherever they operate.”^{Footnote 51}

The scope of the business responsibility to respect rights is of particular interest here. Specifically, Principle 12 states: “The responsibility of business enterprises to respect human rights refers to internationally recognized human rights – understood, at a minimum, as those expressed in the International Bill of Human Rights and the principles concerning fundamental rights set out in the International Labour Organization’s Declaration on Fundamental Principles and Rights at Work.”

The Commentary to Principle 12 clarifies that the International Bill of Rights consists of “the Universal Declaration of Human Rights and the main instruments through which it has been codified: the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social, and Cultural Rights,” together with “the principles concerning the fundamental rights in the eight ILO core conventions as set out in the Declaration on Fundamental Principles and Rights at Work.”^{Footnote 52} The Commentary notes that, in particular circumstances, additional standards need to be considered, including United Nations instruments elaborating “the rights of indigenous peoples; women; national or ethnic, religious and linguistic minorities; children; persons with disabilities; and migrant workers and their families. Moreover, in situations of armed conflict enterprises should respect the standards of international humanitarian law.”

Notable is the lack of any explicit or even (intentionally) implicit reference to environmental rights or standards, and without explanation. This is not surprising, as there is no single institutional authority that promulgates environmental norms that would obviously merit inclusion, unlike the body of international labour standards of the ILO.^{Footnote 53} While the legal normativity of ILO Conventions as compared with ILO recommendations differs,^{Footnote 54} for example, the fact of association with the ILO and the existence of rights-based conventions makes obvious the relationship between the norms evident in instruments of the ILO and human rights. However, deeper consideration reveals that there is indeed increasing global consensus on the content of both procedural and substantive environmental rights, as well as the need to pay particular attention to the environmental concerns of vulnerable groups, including indigenous peoples, women, and children. This has been well documented in the UN Human Rights Council work of John Knox.^{Footnote 55}

As inputs to an overarching Mapping Report, fourteen individual research reports were prepared that describe statements made by specific sources of international law on the topic of “human rights obligations, including non-discrimination, relating to the enjoyment of a safe, clean, healthy and sustainable environment.”^{Footnote 56} While all states may not have “formally accepted” all the norms identified in the Mapping Report, Knox highlights that, given the “diversity of the sources from which they arise” and their “remarkabl[e] coheren[ce],” they “provide strong evidence of converging trends towards greater uniformity and certainty in the human rights obligations relating to the environment.”^{Footnote 57} Notably, there is “striking” “agreement among sources” that States have procedural obligations including “duties (a) to assess environmental impacts and make environmental information public; (b) to facilitate public participation in environmental decision-making, including by protecting the rights of expression and association; and (c) to provide access to remedies for harm.”^{Footnote 58} Knox further notes the “special importance” of “rights of freedom of expression and association” and the protection of life, liberty, and security of individuals exercising these rights in relation to public participation in environmental decision-making. This is due to the “extraordinary risks” facing human rights defenders who work to protect the environment, land rights, and natural resources.^{Footnote 59}

With regard to substantive rights protection, Knox concludes that states are obligated to protect against environmental harm that interferes with the enjoyment of a broad spectrum of human rights, and that this includes an obligation to adopt a legal framework both to protect against environmental harm and to regulate private actors to protect against such harms.^{Footnote 60} Finally, the Mapping Report considers the obligations of states to protect members of groups in “vulnerable situations,” including women, children, and indigenous peoples.^{Footnote 61}

The Mapping Report confirms that the state duty under the UNGPs requires states to regulate and adjudicate abuse by business enterprises, “including environmental harm that infringes human rights.”^{Footnote 62} Knox notes that in a review of business and human rights cases, “nearly one-third of the cases alleged environmental harm that affected human rights, including the rights to life, health, food and housing,” with most of the “direct harm to communities” cases involving environmental impacts.^{Footnote 63} All three pillars of the UNGPs clearly “apply to environmental human rights abuses.”^{Footnote 64}

In Knox’s final 2018 report to the UN Human Rights Council, he presents Framework Principles on human rights and the environment which elaborate upon the themes of the Mapping Report.^{Footnote 65} Here, he specifically acknowledges that there is a need for more work to clarify “the responsibilities of businesses in relation to human rights and the environment.”^{Footnote 66} The Framework Principles and related commentary note that businesses “should conduct human rights impact assessments in accordance with the [UNGPs],”^{Footnote 67} and that the business responsibility includes to “avoid causing or contributing to adverse human rights impacts through environmental harm, to address such impacts when they occur and to seek to prevent or mitigate adverse human rights impacts that are directly linked to their operations, products or services by their business relationships.”^{Footnote 68} However, further guidance for business enterprises is not provided.

One concern with a human rights approach to environmental protection is that it reinforces a perception that humans are separate and distinct from the environment.^{Footnote 69} It may also be seen to disregard the intrinsic worth of nature, as well as the possibility that nature herself has rights, views common to many Indigenous cultures.^{Footnote 70} Indeed, in a 2017 report focused upon the value of biodiversity to humans, Knox explicitly acknowledges that “the components of biodiversity also have intrinsic value that may not be captured by a human rights perspective, while at the same time asserting that “the full enjoyment of human rights … depends on biodiversity.”^{Footnote 71} There is no doubt that the adoption of an environmental human rights approach, and especially one that draws attention to business responsibilities, is a strategic choice.

In conclusion, the business responsibility to respect rights as articulated in the UNGPs applies to all rights. While the UNGPs highlight labour rights as an area of concern, they are silent on environmental rights, even though there is increasing evidence of a consensus surrounding the existence and content of both procedural and substantive environmental rights, as well as the rights of members of vulnerable groups subject to environmental harm.

Fast Fashion Case Study: Rana Plaza and the Environment

Despite the existence of environmental human rights, as documented by Knox, the business and human rights movement appears preoccupied with labour rights, including health and safety of workers, while remaining largely oblivious to violations of environmental rights that arise in the same industrial factory contexts.^{Footnote 72} This is not to say that environmental problems are ignored by powerful corporate actors. Indeed, “big brand companies” are increasingly “integrating environmental goals into their core business strategy” with measurable targets that are independently audited.^{Footnote 73} Environmental sustainability tools include “life-cycle assessment, supply chain tracing, eco-certification, and sustainability reporting.”^{Footnote 74} The adoption of these tools and targets has led to incremental improvements through reductions in the ecological footprint of many consumer goods, yet the big brand sustainability embrace has been criticized for failing to address the underlying problem of increasing consumer consumption on a finite planet.^{Footnote 75} Moreover, social concerns including child labour and forced labour tend to be treated separately from concerns over environmental issues, allowing firms to choose to improve in one sphere while ignoring the other.^{Footnote 76}

My limited claim is qualitatively different: even when big brands choose to address labour and environmental issues by adopting supply chain responsibility tools, labour-related problems are treated as raising human rights concerns, while environmental problems are not. An examination of the environmental degradation associated with fast fashion at industrial sites such as Rana Plaza in Bangladesh provides a useful starting point for my claim. The horrors associated with factory fires and the horrendous loss of life suffered in the Rana Plaza factory collapse^{Footnote 77} are clearly worthy of serious international attention. Perhaps particularly horrendous in the Rana Plaza story is that workers, largely female, were forced to enter the factory or lose their jobs, even though they raised fears over large cracks in the foundation.^{Footnote 78} Yet, the claim in this paper is that the “slow death” that arises from environmental harm must also draw attention from the international community if we are to take seriously a human rights approach to transnational governance of industrial activities. For example, as documented in a New York Times article from 2013, the pollution problems associated with the fast fashion industry in Bangladesh are serious:^{Footnote 79}

The article then suggests that it is the “political and economic power of industry” that is responsible for an increase in pollution, despite better laws and new environmental courts, with impacts felt directly by children of factory workers: “‘The school always smells,’ Golam said. ‘Sometimes we can’t even eat there. It is making some kids sick. Sometimes my head spins. It is hard to concentrate.’”^{Footnote 80}

The Rana Plaza factory collapse spurred action at multiple levels as attention focused on how to ensure that worker safety in the Bangladesh factories could be protected in the future, while addressing remedy and responsibility for victims of the tragedy and their families. According to Larry Catá Backer, responses to the disaster included initiatives at every level: criminal prosecutions were brought in Bangladesh against factory owners and engineers;^{Footnote 81} the United States suspended its generalized system of preferences with Bangladesh and then renegotiated the terms in order to induce legal reform in Bangladesh;^{Footnote 82} the EU launched a Sustainability Compact together with the ILO and others designed to improve conditions for workers;^{Footnote 83} and lawsuits were brought in foreign courts seeking damages for wrongful death and negligence.^{Footnote 84} More importantly from a transnational law perspective, brand companies and allied stakeholders formed two initiatives, the Alliance for Bangladesh Worker Safety (a project of North American apparel companies and retailers),^{Footnote 85} and the more rigorous Accord on Fire and Building Safety in Bangladesh (a binding agreement between brands and trade unions, with broader membership and a tripartite structure like that of the ILO).^{Footnote 86} Both were designed to become regulators of building safety through facilities inspections throughout the global garment production chains. In addition, the Arrangement was established to provide an independent and comprehensive process to deliver support to victims and their families. A Rana Plaza Coordination Committee was created to administer the Arrangement, comprised of representatives from the government of Bangladesh, together with local and international representatives of the garment industry, trade unions, and NGOs, with the ILO serving as a “neutral and independent chair.”^{Footnote 87} A Trust Fund was established and managed by the ILO, with donations from companies sourcing from Bangladesh.^{Footnote 88}

The merits of each of these initiatives alone or in combination can be debated. Backer argues that these multiple initiatives might be seen as the construction of “a factory building designed to create space for the production of regulation/governance by a variety of producers to satisfy the domestic and global needs of markets in regulation/governance” while also provocatively asking: “Is the Rana Plaza regulatory/governance factory also structurally compromised and ready to collapse?”^{Footnote 89} Yet I wish to focus on a different dimension: what of the environmental consequences of fast fashion, and the rights of vulnerable children of factory workers, for example, to live in a healthy environment? Might these issues be better embedded in transnational governance responses? This is not to suggest that environment plays no role—for example, according to Backer, supplier codes of conduct that form part of agreements between manufacturers and apparel retailers may include provisions on environmental practices.^{Footnote 90} And environment features in transnational governance initiatives like the Global Compact and the OECD MNE Guidelines. Yet there is a sense that environmental human rights issues are not obvious. In the context of the Rana Plaza case study, we might conclude that this is because they are not sudden or spectacular (in the horrific sense), but rather long and slow harms arising from multiple synergistic interactions, absent easy proof of causation of harm (a common problem in the environmental field). It is therefore easy for them to be overlooked, or treated as secondary, or as having a lesser human consequence. The same, of course, can be said about climate change, an issue that is also present in the background context of Rana Plaza. Indeed, not only is Bangladesh particularly vulnerable to climate change, as noted in the New York Times article, but women and children of the global south are particularly climate vulnerable.^{Footnote 91}

Relational Autonomy, Workers, and Corporeal Citizenship

The focus of the response to Rana Plaza, and the structure of international (transnational) labour law more generally, is upon workers and their rights. One might suggest that the aim is to provide protections that are sufficient so that workers can work without fear of imminent death or undue exploitation but are not sufficient to make sure that workers, their families, and the community lead sustainable livelihoods. Would it be useful to re-imagine transnational labour law to better embrace environmental rights? How might this relate to ideas of sustainability or sustainable development?

The workers in the Rana Plaza factory were largely female, and, as evident from the New York Times article, many had family, including young children, close at hand. While feminist labour law theorists have argued persuasively for the need to broaden the scope of labour law to embrace the unpaid work of caregivers, usually women, that often takes place within the home,^{Footnote 92} the aim of this analysis is slightly different. As a starting point, and inspired by the concept of relational autonomy as developed by Jennifer Nedelsky, I propose that we need to move beyond an image of the worker as a bounded, autonomous being, and embrace a view of the worker as a relational being with porous boundaries. Of course, the labour movement as a whole is based upon ideas of collective action. But is it conceptualized as collective action of bounded autonomous individuals (the key building blocks of liberalism)? If so, what might it mean to reimagine this?

According to Nedelsky, the common feminist critique of traditional liberalism is that “atomistic individuals” are taken as the “basic units of political and legal theory” and so the “inherently social nature of human beings” is ignored.^{Footnote 93} Her claim is that a relational view of the individual sees that “the persons whose rights and well-being are at stake are constituted by their relationships such that it is only in the context of those relationships that one can understand how to foster their capacities, define and protect their rights, or promote their well-being.”^{Footnote 94} Nedelsky also considers the way in which boundary metaphors are commonly invoked in legal relationships, including property, and suggests the need to move beyond boundary metaphors to focus upon the real question: “what patterns of relationship among people and the material world [do] we want”?^{Footnote 95}

Thus, workers are embedded in relationships at work and in family and community, and realize autonomy as a result of relationships that nurture and support the possibility of autonomy. This suggests that a view of the worker as an individual with rights that are detached from family and community and even ecological contexts is misguided; a better view, then, might be of a relational worker constituted by porous boundaries.

A different but complementary approach is inspired by the work of Dayna Nadine Scott and her co-authors Jennie Haw and Robyn Lee on consumerism and toxins,^{Footnote 96} who embrace a vision of the individual as a corporeal citizen. According to Scott, Haw, and Lee, precautionary consumption of household goods so as to reduce toxins in the home and family is feminized labour. They argue for an embrace of the concept of corporeal citizenship, drawing upon the insight of material feminists to move beyond the common conceptualization of the individual as “stand[ing] outside of, and separate from, the environment.”^{Footnote 97} Precautionary consumption “accepts the assumption of a fully autonomous, clearly bounded individual who is able to act ‘against’ the environment to keep toxins out.”^{Footnote 98} Yet this “limits agency to the individual and essentially depoliticizes efforts to address toxins.”^{Footnote 99}

Scott, Haw, and Lee propose the frame of corporeal citizenship for anti-toxin advocacy, suggesting that the “movement of toxics across bodies, and through our environments and economies, provides a rationale for why we should extend out our spheres of political and ethical responsibility from the level of the individual or family to cover broader ecosystems and communities.”^{Footnote 100} The concept of corporeal citizenship, originating in the work of Gabrielson and Parady (who bring material feminism together with environmental political theory), addresses in part the problem of green citizenship theories, which assume “autonomous human subjects” “have the knowledge and ability to participate in appropriate ‘green’ activities” while excluding those who cannot participate equally due to “unequal social locations.”^{Footnote 101} “Corporeal citizenship … turns attention to thinking about the environment through the body, emphasizing difference, with the ultimate aim of collective action and decision-making.”^{Footnote 102}

To better understand corporeal citizenship, it is necessary to consider the “porosity of bodily boundaries” and to consider the insights of material feminists, who “adopt an ontological frame in which entities do not pre-exist their relationality: both humans and non-humans, subjects and objects, and social and physical entities, mutually co-constitute each other.”^{Footnote 103} As “human corporeality continuously interacts with the materiality of the environment,” it becomes important to rethink human agency and to accept the importance of taking responsibility for the maintenance of boundaries that are “semi-permeable and established and stabilized through social and natural interactions.”^{Footnote 104} Rather than giving in to “defeatism,” a corporeal citizenship model suggests that “the state’s responsibility to manage and protect the health of its population is inseparable from its responsibility to care for the health of the environment.”^{Footnote 105} It also has implications for the “sphere of ethical and political responsibility of ‘individual’ citizens” to care for the “wider social community and the environment.”^{Footnote 106}

The corporeal citizen should therefore think not only about the consequences of toxins for individual and family health, but for everyone, including plants and animals. Adopting a corporeal citizen model of the worker in transnational labour law would extend the boundaries of the field, aligning it with environmental human rights claims and so beyond workers to families and communities. It could even push beyond anthropocentric understandings of human rights to culturally informed visions that acknowledge the rights of nature. The localized consequences of industrial externalities would thus be brought within transnational labour law itself. Satisfactory working conditions would be understood by workers and the instruments of transnational governance as necessitating more than simply the enabling of survival in a factory. A corporeal citizen approach to transnational labour law would enable sustainable livelihoods of family and community in a healthy environment. In the process, the labour/environment divide would begin to dissolve.

Children’s Rights and the Sustainable Development Goals

While I have argued that a reconceptualization of the worker and thus transnational labour law is essential, here I inquire into whether there are already signs that such conceptual shifts exist in practice. Two developments will be briefly considered: first, the results of research conducted by UNICEF on children in the ready-made garment sector in Bangladesh, and second, the adoption in 2015 of global Sustainable Development Goals.

In 2012, UNICEF, the Global Compact, and Save the Children, released the results of a joint initiative to develop a set of “Children’s Rights and Business Principles,” inspired by the 2011 UNGPs and the Convention on the Rights of the Child.^{Footnote 107} The elimination of child labour features prominently in Principle 2, while Principle 7 asks businesses to “[r]espect and support children’s rights in relation to the environment and to land acquisition and use.”^{Footnote 108} The Principles observe that children “absorb a higher percentage of pollutants to which they are exposed” and that their immune systems are more vulnerable than those of adults.^{Footnote 109} As with other CSR guidance, then, both labour and environment feature in the Principles, and they appear to be treated as distinct concerns. Moreover, additional guidance is available on supply chain responsibility, which identifies both labour and environment issues as of importance to children’s rights.^{Footnote 110}

However, Principle 3 also provides that “all business should provide decent work for young workers, parents and caregivers.”^{Footnote 111} While on the surface this text and related commentary are not obviously relevant to the reconceptualization of the worker, it is the application of this principle in the context of the Bangladesh garment sector that suggests a bridging of the labour and environment silos. In a study released in 2015 on the ready-made garment sector and children in Bangladesh, UNICEF notes that the rights of the children of the predominantly female garment workers are affected by the “working and living conditions of garment workers” through interlinked impacts that “relate to the practices and conditions inside and outside the factory gates.”^{Footnote 112} Solutions that improve the impact on children, therefore, “require holistic approaches that address the situation in both the factory and the community context.”^{Footnote 113} The study examines eight impact areas. Impact area 7, “Lack of decent living conditions,” explicitly considers how the living conditions of the female garment sector workers impact the health of their families, including children, and identifies the role of the garment sector itself in contributing to both water pollution and water scarcity, with “disproportionate impact on the urban poor,” including a lack of access to safe water for children.^{Footnote 114}

The focus on the worker as a parent of children who live in communities with contaminated environments as a consequence of industry conduct clearly adopts a relational view of the worker, although perhaps not quite a corporeal vision. Appropriately, in 2018, Knox released a study on the rights of the child and environment as part of his Special Rapporteur mandate.^{Footnote 115} Already in 2016, the Special Rapporteur on hazardous wastes and substances presented a report on the rights of the child, with recommendations that businesses conduct human rights due diligence throughout their global supply chains.^{Footnote 116}

The second source that I will briefly consider here is the set of 17 Sustainable Development Goals, endorsed by 170 world leaders in September 2015 in Transforming Our World: The 2030 Agenda for Sustainable Development (the 2030 Agenda).^{Footnote 117} The Preamble to the 2030 Agenda explicitly states that the SDGs “seek to realize the human rights of all and to achieve gender equality and the empowerment of all women and girls.”^{Footnote 118} Moreover, the SDGs “are integrated and indivisible and balance the three dimensions of sustainable development: the economic, social, and environmental.”^{Footnote 119} The overarching vision embraced by the 2030 Agenda is of “a world in which every country enjoys sustained, inclusive and sustainable economic growth and decent work for all. A world in which consumption and production patterns and use of all natural resources […] are sustainable.”^{Footnote 120} This world is also “climate-sensitive” and resilient, with respect for biodiversity. It is, moreover, a world in which “humanity lives in harmony with nature and […] living species are protected.”^{Footnote 121} Crucially, for the purpose of this paper, the 2030 Agenda explicitly states that the SDGs are grounded fully in respect for international law, including international human rights law.^{Footnote 122} Implementation of the SDGs by business is explicitly discussed in paragraph 67 of the 2030 Agenda.^{Footnote 123}

The SDGs address labour issues in Goal 8, which aims to “[p]romote sustained, inclusive and sustainable economic growth, full and productive employment and decent work for all,” with the protection of labour rights specifically identified in target 8.8.^{Footnote 124} Goal 16, focused on the promotion of “peaceful and inclusive societies for sustainable development” and the provision of “access to justice for all” is arguably implicitly consistent with procedural environmental rights.^{Footnote 125} Many goals address environmental concerns ranging from water to climate change to biodiversity protection, yet none explicitly endorse the protection of environmental rights.^{Footnote 126} However, many SDGs use language that suggests an overlap between environment and labour issues, hinting or explicitly endorsing the importance of access to land and small-scale livelihoods, while simultaneously highlighting the need to reduce hazardous substances and minimize adverse impacts on both people and the environment.^{Footnote 127}

The content of the SDGs is important, as international CSR instruments are actively aligning their guidance tools with the SDGs. For example, the UN Global Compact has transformed its agenda in light of the SDGs, noting that in addition to the Ten Principles, companies should embrace the SDGs.^{Footnote 128} A paper commissioned by the Business and Sustainable Development Commission explicitly examines the relationship between the UNGPs and the SDGs, concluding in part that a “concerted campaign to advance respect for human rights through global value chains” would align with the expectation that “companies use their leverage to drive respect for human rights,” an expectation that should be “a centrepiece of […] advocacy for the role of business in advancing the SDGs.”^{Footnote 129} It remains to be seen whether this advocacy and action will take seriously the environmental dimensions of human rights, perhaps by re-imagining the worker as a corporeal citizen.