Written by Cecile Paquette

Introduction

The International Labor Organization (ILO) adopted Convention No. 190 (Convention 190) and its accompanying recommendation (No. 206) in 2019.¹ee Convention (No. 190) for Eliminating Violence and Harassment in the World of Work, June 21, 2019, ILO C190 [hereinafter Convention No. 190]; Recommendation (No. 206) for Eliminating Violence and Harassment in the World of Work, June 21, 2019, ILO R206. Convention 190 sets forth the first international labor standard that provides a framework to prevent, remedy, and eliminate violence and harassment in the workplace, including gender-based violence and harassment.²See Convention No. 190, supra note 1, Preface (“For the first time, there is a clear and common framework to prevent and address violence and harassment, based on inclusive, integrated and gender-responsive approach.”). As of October 2025, 51 countries have ratified Convention 190, and it is in force in 45 countries.³See Violence and Harassment in the World of Work: A Guide on Convention No. 190 and Recommendation No. 206, ILO (July 16, 2021), https://www.ilo.org/sites/default/files/wcmsp5/groups/public/%40dgreports/%40gender/documents/publication/wcms_814507.pdf (on file with American University International Law Review) [hereinafter ILO, A Guide on Convention No. 190]; Entry into Force, ILO (Nov. 23, 2015), https://www.ilo.org/resource/entry-force (on file with American University International Law Review) (entry into force is “the date on which a Convention takes effect and its provisions become binding on ratifying States”). For the countries that have ratified the Convention, their national laws must adhere to the articles set forth in the document within twelve months.⁴See Entry into Force, supra note 3.

Convention 190 is a major step in promoting the rights of workers in international law because it specifically recognizes the rights of workers and provides direct definitions of violence and harassment.⁵See Convention No. 190, art. 1(1)(a)–(b). Violence and harassment are defined as ranges of behavior, leaving countries that ratify the convention to apply varied definitions for both harassment and violence.⁶See id.; see also A Guide on Convention No. 190, supra note 3, at 8. Though Convention 190 provides more guidance on the above definitions, it remains vague on the definition of “employers.”⁷See A Guide on Convention No. 190, supra note 3, at 18 (noting the broad scope of workers as including individuals outside a traditional contractual agreement but not defining who their employers are). Specifically, it states that “employers” are defined by national law and practice, which varies globally.⁸See id. at 8. While the ILO has defined “employers” in other conventions and recommendations, it has intentionally not created a strict definition for employer in Convention 190.⁹See Recommendation (No. 198) for Employer Relationship Recommendation, June 15, 2006, ILO R198 [hereinafter Recommendation No. 198].

In choosing not to provide a strict scope for the definition of employers, Convention 190 allows countries to enact legislation that still adheres to international obligations, without preventing harm.¹⁰See Hoffman et al., International Treaties Have Mostly Failed to Produce Their Intended Effects, 119 PNAS 1, 2 (2022) (noting the lack of effectiveness of human right treaties compared to trade regulations). The highest risk stems from the lack of accountability large companies may face over harms caused by their subsidiaries in other, non-signatory countries.¹¹See id. at 1. Because large companies are often global in scale, the harm that occurs to people in one country may be indirectly caused by parent companies who did not enact enough safeguards to prevent workplace harm and violence.¹²See Oliver Wright et al., ESG Litigation Risks for Mining and Metals Companies, 21 Pratt’s Energy L. Rep. § 1.01, at 1 (2021). If there is no requirement that these larger parent companies can be held liable, then victims of harm and violence in the world of work have no real means of attaining redress through Convention 190.¹³See id. (detailing the trend of imposing greater transnational accountability on labor violations).

Enforcement Issues in International Law – The Need for Specificity

One of the biggest critiques of international law is that it is not effective in preventing the harm they seek to suppress.¹⁴See Hoffman, supra note 10, at 1. Part of this lack of effectiveness comes from the intentionally broad nature of treaties, because states can technically comply with its treaty obligations by enacting domestic legislation while producing little or even counter-productive effects.¹⁵See Amnesty International, Reservations to the Convention on the Elimination of All Forms of Discrimination Against Women: Weakening the Protection of Women from Violence in the Middle East and North Africa Region, at 15, IOR 51/009/2004 (Nov. 3, 2004) (explaining how ratifying members of the CEDAW can weaken the treaty by enacting broad domestic legislation) [hereinafter Reservations to the Convention]. For example, the United Nations High Commissioner for Refugees (UNHCR) enacted the 1951 Convention Relating to the Status of Refugees (Refugee Convention), where the term “refugee” was defined for the first name under international standards.¹⁶See Convention Relating to the Status of Refugees, art. 1, July 28, 1951, 189 U.N.T.S. 137. The definition references “persecution” as a compelling reason for someone to flee their country, but it falls short of defining “persecution,” leaving states to interpret it as broadly or narrowly as they see fit.¹⁷See United Nations High Commissior for Refugees (UNHCR), Executive Committee, at 18–20, U.N. Doc. EC/1992/SC.2/CRP.10 (June 15, 1992) (emphasizing that refugee applicants can be denied status because some countries are reluctant to deem repeated discrimination as persecution).

Like the Refugee Convention, Convention No. 190 recognizes the necessity of tailoring international law to specific definitions, but still falls short of defining all necessary provisions.¹⁸See A Guide on Convention No. 190, supra note 3, at 8; Hoffman, supra note 10, at 1. Because the definition of “employer” is varied across countries, the scope of who actually bears the responsibilities of preventing gender-based violence and harassment in the world of work differs across signing parties.¹⁹See Duty of Vigilance Law (FR), Law No. 2017-399 (Mar. 27, 2017); but see 42 U.S.C. § 2000e(b). Because we live in a global market, the reality of the employer-employee relationship is far more indirect than the traditional authority structure in a workplace.²⁰See Duty of Vigilance Law (FR), Law No. 2017-399 (Mar. 27, 2017); but see 42 U.S.C. § 2000e(b). Specifically, large companies may have subsidiaries in other countries where they do not exercise the usual responsibilities of an employer to those employees.²¹See Iain Butler, A Guide to Parent Companies and Their Subsidiaries: How Far Does Responsibility Go?, RWK Goodman (Oct. 31, 2019), https://www.rwkgoodman.com/info-hub/a-guide-to-parent-companies-and-their-subsidiaries-how-far-does-responsibility-go/ (on file with American University International Law Review). As a result, these larger companies may not be legally responsible for any harassment or violence the employees of their subsidiaries have faced in the place of work as they do not act with direct authority, and Convention 190 is silent on the potential liability of parent companies.²²See generally A Guide on Convention No. 190, supra note 3.

The large result from this is that a company based in a country that ratifies Convention 190 may have subsidiaries in another country that has not signed onto the treaty and is therefore not bound by its obligations.²³See Entry into Force, supra note 3. Therefore, the workers within the subsidiary’s country will not be able to bring an action with Convention 190 to redress harms in the workplace against the subsidiary, despite the overarching parent company being bound by international law.²⁴See id. Because the treaty is too vague on the definition of employers and their corresponding liability, Convention 190 leaves workers of large companies at risk from achieving justice in international courts.

How Should We Describe Employers?

In strictly defining what “counts” as an employer, the ILO can provide much more clarity in determining: (1) who is responsible for preventing workplace harms, and (2) who can be liable when such harms exist.²⁵See Recommendation No. 198, supra note 9, Preface (emphasizing the existence of an employer-employee relationship as a reiteration of the employer’s responsibilities to the employee). Further, it ensures uniformity in international law and raises the bar for states to be diligent in ensuring the protection of workers.²⁶See Reservations to the Convention, supra note 15, at 15 (noting the purpose of international treaties is to amend domestic legislation to adhere to the rights guaranteed in the CEDAW). When there is a clear definition of the existence of an employment relationship, the chain of liability is easier for victims to utilize.²⁷See Recommendation No. 198, supra note 9, art. I.4(b).

Despite the omission of defining employers in Convention 190, the ILO already has the framework for defining “employers,” which aids in establishing potential liability for workplace harms.²⁸See id., art. I.7. In 2006, the ILO created Recommendation 198 concerning the employment relationship.²⁹See generally id. The ILO explicitly recognizes the increasingly globalized nature of the economy, the circumvention of national protection by choice of law, and the difficulties of establishing the existence of an employment relationship for transnational workers.³⁰See id., art. II.9. As a result, the ILO’s provisions for determining the existence of an employment relationship suggest a presumption of a relationship when relevant indicators are present.³¹See id., art. II.11. Relevant indicators include the periodic payment to the worker from the employer, which can extend an employment relationship all the way from a worker to a large parent company.³²See id., art. II.13(a)–(b).

Some countries, such as France, have taken a liberal approach to understanding the scope of employers.³³See Duty of Vigilance Law (FR), Law No. 2017-399, art. 1 (Mar. 27, 2017). France ratified Convention No. 190 in 2023; however, its 2017 Duty of Vigilance law supports the Convention by expanding the responsibilities of employers in France and making them liable for harms caused outside of France by their subsidiaries.³⁴See Press Release, France Ratifies Convention C190 on Violence and Harassment in the World of Work, Apr. 13, 2023 (ILO); id. The French courts have further reiterated in various cases that French parent companies’ vigilance duties extend to global subsidiaries.³⁵See Tribunal Judiciaire de Paris [TJP] (Paris Judicial Court) Sep. 18, 2025, TotalEnergies SE (Uganda), at 18 (Fr.). The courts interpretations of employer responsibility come from the explicit scope of employers outlined in the Duty of Vigilance law.³⁶See id.; Duty of Vigilance Law, Law No. 2017-399 (Mar. 27, 2017). Despite it being broader as to the types of harms employers may be responsible for, its explicit definition of employers and the inclusion of foreign subsidiaries complement Convention 190 by ensuring that victims can actually seek relief from those who caused them harm.³⁷See Duty of Vigilance Law, Law No. 2017-399 (Mar. 27, 2017).

Conclusion

The ILO’s Convention 190 is impressive in its dedication to promoting human rights in the workplace and specifying the increased risk of gender discrimination.³⁸See generally Convention No. 190, supra note 1. However, in failing to specifically define “employer,” the question of liability is left up to domestic legislatures and courts.³⁹See A Guide on Convention No. 190, supra note 3, at 8. While some states may hold broad definitions that increases the responsibilities that companies owe to their workers, others may narrow the definition to exclude liability for workers of subsidiaries.⁴⁰See generally Duty of Vigilance Law (FR), Law No. 2017-399 (Mar. 27, 2017); but see 42 U.S.C. § 2000e(b). To ensure that the rights promised in the Convention are enforceable, the ILO should specifically define “employers” to include parent-companies with global subsidiaries, akin to the French Duty of Vigilance law and Recommendation No. 198’s factors for determining the existence of an employment relationship.⁴¹See Duty of Vigilance Law (FR), Law No. 2017-399, art. 1 (Mar. 27, 2017); Recommendation No. 198, supra note 9, art. II.13(a)–(b). This definition would establish broader protections for victims globally who seek damages for the harms that were caused to them and force signing countries to expand the responsibilities of employers by increasing liability. The current Convention 190 is a great starting point, but its effectiveness is directly linked to how far countries are willing to expand their own definition of employers. Convention 190 can do more to protect workers, and defining who is responsible for workers is a fundamental step in the right direction.