Abstract: Argentina is still debating whether to issue a National Action Plan on Business and Human Rights or to sign a treaty on the subject. It has signed more than 20 human rights treaties in recent decades. It has supported the United Nations Principles on Business and Human Rights from the outset, and still, there is no National Action Plan. Objectives: This work aims to analyze how different administrations faced controversy on the topic and how migrants are being protected when working in Argentina. Prior Work: As stated by Sardi and Buhmann, development is slower for migrants, even if we have already stablished that the current legal framework does not differentiate between nationals and migrants. Approach: We propose a qualitative approach, by studying a significant number of documents that evidence little political coherence. As result, we highlight that there is poor information to set a path for development in Argentina, and that Business and Human Rights seems off focus within the Argentinean priorities.

In today’s globalized economy, the issue of international labor migration in supply chains is one of the most critical – yet largely unexplored – issues for developing States such as Argentina. And while Human rights are ingrained in our moral, political, and legal frameworks, there is a general perception that they are apart from business regulation.

Labor migrants now represent roughly 190 million people, or about 3 percent of the world population. They are an increasingly vital part of the global workforce, and this stamen upholds to the Argentinean reality. During the next decade, migration is likely to be a cutting-edge issue in international relations, economics and social order in many countries due to the effects of the COVID-19 pandemics. The access to the vaccine, the capacity of States to provide for better living standards shall set the course of demography in the next years.

Ninety million people migrate for work globally every year and an increasing percentage of those workers are moving between emerging economies, rather than to industrialized nations. Otherwise known as South-South labor migrants, these workers are filling low-paid jobs; as happens in Argentina, a common migratory destination in the Latin America region.

However, until quite recently, the treatment of individuals as migrants, immigrants and refugees had been little more than a footnote to many policy debates about Business and Human Rights. The discourse of international human rights has finally extended to migrants and migration. Rather quickly, government officials, policy-makers, NGO advocates, academic researchers and international agencies have begun to consider the human rights dimension of contemporary migration and its impact on businesses.

Under the Universal Declaration of Human Rights (created fifty years ago), human rights are universal, indivisible; and inalienable (Clapham, 2009). However, their de facto extension to many vulnerable groups has been a long and difficult process, by no means complete.

(Taran, 2020) argues that this very slow progress, coupled with explicit disinterest in the instrument, symbolize a broader general resistance to recognition of the application of human rights standards to migrants, particularly undocumented migrants. He did concur with (Cholewinski, 2010) view that provisions explicitly granting rights to illegal migrants are likely to hinder ratification by many countries, even though being rendered outside the applicability and protection of the law is contrary to the inalienability of human rights protection.

Along these lines, by examining the treatment of migrants by the Human Rights and Business international regulation, we can study what is happening indeed in the Argentinean case, and particularly its public policy status in the matter. In turn, this would help identify a series of patterns in the State’s approach to Business and Human rights. If lucky, this phenomena might be translated into a factual explanation, giving internal validity to this work. Nevertheless, this work is a preliminary analysis of this matter based on the conviction that the study of migrants within Business and Human Rights has the potential of serving as an example of the transnational space phenomenon.

Nonetheless, this is still a work in progress, which is why data is still partial. Literature on Business and Human Rights in Argentina, as well as the work of authors that have addressed the topic labour migration, have been carefully reviewed. Following the classic structure of case study and after giving details about the theoretical proposals and describing the unit of analysis, in the third part of this article data gathered from the bibliographic and documentary sources will be applied to the theoretical proposals.

Finally, we will draw the most important conclusions of the analysis in relation to the questions that guide this work and provide details about the results obtained, as well as the topics that should be further investigated and that will be framed as the main challenges faced by this community.

Given the nature of our study of the Business and Human Rights regulation and public policy implementation in Argentina, the methodology employed was centered in qualitative aspects, with some minor use of quantitative ones.

The data was obtained through several requests of public information^³ to the following government departments:

While all of them answered the 7 questions posed to them^⁴, their responses vary greatly regarding the information provided:

The best quality of information was given by the National Coordination Office, closely followed up by the Ministry of Justice and Human Rights, the main State department in charge of the elaboration and future implementation of the National Plan.

In fact, the National Coordination Office got a better score just because it provided information in all the topics asked, even if they stated that “no updated information is available on the topic” (over 3 times).

While the Human Rights Secretariat provided deeper information, it only answered questions 1 and 5, which says:

The first question, indeed, provided us with a clear status of “Business and Human Rights” in Argentina until 2019. When asked in 2021, there was little new data to inform about actions in 2020. In fact, it was only informed that:

“The Human Rights Secretariat is focused on the enterprise participation in the crimes committed by the last dictatorship”^⁵.

The Ministry of Foreign Affairs displayed less elaborated answers, but all of them were connected to information that Argentina presented in a variety of international fora. It was little what it could not be provided by this office, but some major aspects might be distinguished here:

Last but not least, the National Ministry of Economy provided little information to the questions posed. As the area in charge of promoting Argentina to the OECD, it was quite active between 2014 and 2019. Nowadays, political orientation changed, but also did major foreign affairs goals that one, were beyond administration’s term. Still, current Argentinean poverty numbers makes us think that setting off from such an ambitious goal, might be a tale of coherence.

The latter have been essential in drawing meaningful conclusions about the process undergoing in the country. The research team posed semi structural questions to key actors as well as with other relevant actors in the case, were essential in obtaining the information required to reach our conclusions.

3. Case Study: Do Guiding Principles on Business and Human Rights Treat Migration?

On June 16, 2011, the United Nations Human Rights Council (HRC) endorsed the Guiding Principles. Initially proposed by professor John Ruggie, the Special Representative of the Secretary General, this endorsement led to exhaustive process of research and consultation into the subject of business and human rights.

Despite being one of the most debated Human Rights documents ever issued by the HRC, the Guiding Principles fall short of fully addressing the most intractable conceptual issues raised by the intersection of business and human rights.

The question of business and human rights arose in a globalized world, characterized by the wide trade liberalization pursued through the World Trade Organization; one that enabled the movement of capital and goods across national borders. Businesses were able to invest capital and resources based on analyses that included, among other things, differences in minimum wage levels and regulatory demands imposed by individual states in their domestic regimes.

Through trade liberalization, economic forces and actors, such as corporations, have been unleashed to act transnationally and globally. This contemporary trade liberalization project prioritizes the removal of barriers to the transborder movement. of capital, goods, services, legal systems, and people. People movement is one of the milestones of human history and migration has become a more complex issue in the recent years.

Regulation of labour migration today remains largely a matter for States, which retain the sovereign prerogative to determine which non-nationals may enter and take up employment in their territory. While international rooted Human Right protection is available, there is currently no global system for regulating international labour migration. Less there is, a system to deal with the economic impact of it and how to better integrate this human feature to business functionality.

Furthermore, demographic projections for the next forty years suggest that international labour migration will become an increasingly important factor in sustaining the productivity of national economies. Still, National States generally fail in integrating migrants to their social fabric.

The turn to business to promote human rights raises several questions, but it is one of the newer features introduced in the Guiding Principles. What should the role of private business companies be in promoting rights? While we do understand that private companies have a responsibility for such rights, Ruggie’s idea was not focused on migration. In fact, it did not care to even consider it.

But, while the Guiding Principles might not enlight us regarding the topic, the preamble of the UN Declaration of Human Rights of 1948 share with us clearer provisions: It already stated that “every individual and every organ of society (is called upon) to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and efective recognition and observance.”

Neither human rights law nor international trade law recognizes or implements the full array of human attributes. We consider them both as branches of Public International Law and should be studied as complementary features. While, under human rights law, the individual is more than an economic unit, it is still one and as such, it has been conceived under provisions of many states’ domestic immigration law, such as Argentinean one.

The national legal framework is large and complex. There are over twenty-seven thousand laws coexisting in Argentina, a federal country. Migration is a federal matter, as labour regulation is.

Laws and policies that govern the creation and ongoing operation of business enterprises, directly shape business behaviour. Yet their implications for human rights remain poorly understood. Laws and policies in this area should provide sufficient guidance to enable enterprises to respect human rights, with due regard to the role of existing governance structures such as corporate boards.

However, economic regulation at the national level, does not integrate these dimensions.

To create an equilibrium between economy and Human Rights, we need to understand that the legal landscape might want to commune these, but yet, it has not.

The human dimension of international labour migration was captured as early as 1919 in the Preamble to the Constitution of the International Labour Organization, which considers exploitative labour conditions as a threat to world peace and calls for an improvement in these conditions, including ‘protection of the interests of workers when employed in countries other than their own. And it is thanks to the ILO’s work over one hundred years that we can trace how a worker gained protection at a multilateral international level; and then, in 1990, the glove was picked up by the United Nations.

It took it over thirteen years to entered into force, but the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families was the first serious attempt of the UN to undertook labour as a concern from the the Human Rights’ standpoint.

The Convention is a comprehensive international treaty focusing on the protection of migrant workers’ rights, and it recalls the ILO experience with Conventions No. 97, 143, 151, 29, 86 and 105. We can certainly find a “dialogue” between these sources of International Law and still, this UN Convention, was born old.

In 1990, the multilateral trade system was being reform. Migration- also known as “workers moving from one side to the other of an international border”- was being dealt in trade regulation. But it was not taken into consideration when drafting this UN core Human Right instrument.

So, can we be really surprised that UN Guiding Principles avoided dealing with migration?

While we can easily agree on the Guiding Principles avoiding the “migration” issue; the work of the Committee on the Protection of the Rights of All Migrant Workers and Members of their Families (CMW), should have insisted in the articulation of these two agendas.

Having an independent expert body to monitor the implementation of an International Convention is an institutional asset. Since it first started working in March 2004, the Committee has sustained over 32 sessions, and issued 3 General Comments^⁶.

It has called to work closer to the ILO in General Comments 1 (migrant domestic workers) and 2 (migrants in irregular situation).

However, in their annual reports, little evidence of it might be found. Despite that, in early 2004, the Labour Organization painted a detailed landscape to address the better protection of migrant workers and it seemed that they might be able to join their efforts.

The Governing Body earmarked a general discussion on migrant workers based on an ‘integrated approach’ at the 2004 International Labour Conference, recognizing that “the issues raised by migrant workers for economic and social policy on the one hand, and the protection of human rights on the other, cut across practically all spheres of the normative and technical activities of the ILO”.

The International Labour Office submitted a comprehensive preparatory report to the International Labour Conference in 2004, proposing that the Conference adopt a plan of action that would “engage the ILO and all its constituents in the development of a coherent multilateral framework for the governance of international migration”.

Its objective was for the Conference to examine gaps in the protection and to consider how the ILO could promote coherent, transparent and comprehensive rights-based labour migration policies and best practices. An integrated work with the new UN Committee was to be expected. Yet, it didn’t happen as such.

The 2004 International Labour Conference adopted a plan of action for migrant workers, which was to include the “development of a non-binding multilateral framework for a rights-based approach to labour migration, which takes account of labour market needs”. Yes, the UN Business and Human Rights Principles are an example of that; and yet, UN unilaterally worked on its own.

At the same time, the ILO Multilateral Framework was subsequently adopted by a Tripartite Meeting of Experts in 2005 and approved by the ILO Governing Body in 2006.

According to Argentina’s second periodic report before the CMW - CMW/C/ARG/2 - the national Government has implemented measures to integrate migrants into the labour market, focusing on efforts to promote their relocalization away from large urban centers. Still, we can find little success in it, majorly due to the concentration of work opportunities in the bigger cities.

But who were Argentinean migrants in the last years? The National Migration Office shows us that until 2018 -no further data is available- Venezuelans were the ones who sought to sojourn in Argentinean soil^⁷. They were followed (but not closely) by Paraguayans, Bolivians and Colombian. It is certainly a change in the provenance of migrants, who -until 2010- were majorly from Peru, followed by Paraguayans and Bolivians^⁸.

Yet, National Government decided to create special provisions to certain migrants groups, such as the Syria Programme (approved by National Migration Directorate Regulation No. 3915/2014 and No. 4683/2016), the regularization of Haitians for humanitarian reasons (Regulation No. 1143/2017) and the facilitation of migration procedures for Venezuelans (Regulation No. 594/2018).

While these measures were in line with the 2030 Agenda for Sustainable Development, they rose concern about certain favoritism towards one group of migrants against another one. Still, if we were to read the very wording of each programme, there is little room to sustain such idea. They propose no real advantage for specific migrants in terms of real access to their rights. Anything enabled by any programme, is in fact, sustained by the wording of the National Migration Law (No. 25871) which doesn’t make any difference between one migrants or another. In fact, it will address any “non national” as a “migrant” accordingly to article 2 and they shall enjoy an equal treatment, as if they were “nationals”, in accordance with articles 5 and 6.

Awareness-raising and outreach strategies are designed to establish the principles of cordiality and respect. Still, there is a gap between what has been written and the praxia.

According to recent studies headed by {Formatting Citation} cole international human rights treaties are ineffective, counterproductive, or else beneficial for only those countries that tend to respect human rights regardless of treaty membership. Analysts often attribute gaps between human rights principles and practices to willful disobedience, self-interested defection, and ineffective enforcement.

A special team had been set up to disseminate information and increase awareness and understanding of various communities with regard to the rights and obligations arising from Act No. 25.871. But, it works mainly in the bigger cities such as Buenos Aires, Córdoba and Rosario. Migrant organizations have risen their voices and complained that the country has not federal implementation of it. This was later translated into an experiment conducted in La Rioja, Tucumán, La Pampa, Mar del Plata, Villa Gesell, Salta, Córdoba, Posadas and Mendoza, with the participation of the Bolivian, Colombian, Peruvian and Uruguayan consulates, that would visit those towns for a day.

Publicity is still poor, and the people who needed it the most, preferred to try to travel to a bigger city over waiting for the next visit, if any, were to come.

But, the major issue raised in last year -and latest- report is the controversy around Decree No. 70/2017. The Decree focuses on procedural issues and on migrants involved in acts punishable by law – one of the principles established in the Act before it was amended (art. 3 (j)) – and on foreign nationals who violate migration law through irregular entry into the national territory. Civil Society understood that it imposed more severe restrictions on entering or remaining in the country. The Argentine Government understood that the sanctions were the same as those regulated by the Migration Act (Act No. 25.871), which has been in force for over 10 years.

The case of one “Vanesa Gomez Cuevas” caused major controversy. She was a Peruvian mother of three, who had served jail time for drug smuggling and then deported along her 2-year-old son and forced to leave her other two children behind in Argentina.

Her case was resolved by the very own National Migrations Office, who decided to let her return to Argentina.

Still there is a question that has not been yet addressed: What is the State doing to promote the employability of migrant workers?

Some specific initiatives regarding “regularization of migrants” might be found. And they were specifically carried out by notorious unions in the country: Association of Domestic Workers, the Brickworkers Union and the National Register of Rural Workers and Employers.

Beyond that, little can be said: the web-enabled platform called Radex allows residency application system for foreign nationals. There, they might share their employment profile. Still, that database, is not shared with the private sector in Argentina, and there is little promotion of migrant inclusion in the workforce from National authorities.

4.2. The National Business and Human Rights Action Plan of Argentina: a Tale of Little Political Coherence

In 2017, Argentina approved its first National Action Plan (NAP) on Human Rights^⁹. While it is allegedly still in force during 2020, change of administration last December 2019 put a stop in its reporting^¹⁰.

In its part 5, called “Civil Culture”, it includes the 5.6 section “Business and Human Rights” where it announces that the State was -finally-going to issue its own National Action Plan on the topic.

It took several steps in that direction, being the creation of an special unit for the elaboration of such plan, one strong step^¹¹. Its dissolution early 2020, is another clear sign in the opposite direction; specially taking into account that the commitment was not undertaken by any of the newer institutional structures^¹².

Regarding migrants’ rights, the commitments undertaken under the general Human Rights Action Plan had an uneven implementation. Few initiatives on migrants' rights reported advances (part 1, 1.10 section)^¹³.

At present, the new government has not stated whether it will continue with this initiative; and there is no plan to follow up the pledges once there.

Underlying the drawing up of a National Action Plan for Human Rights is the concept of state responsibility for those rights being respected and provided for. This responsibility devolves primarily on the national government of every state, but national and local administrations also have a responsibility to discharge.

The Action Plan has several purposes. Primarily, its aim is the promotion and protection of human rights. Another purpose is to heighten awareness of human rights issues. The third purpose is to promote co-ordination of human rights activities, above all within the national administration. In order for these purposes to be attainable, the Action Plan has to be realistic and practical. The fourth purpose of the Action Plan is to improve education on human rights; and through it, to raise awareness.

The implementation of an adequate NAP is necessary for the State to better coordinate its policies among the different areas in a human rights approach to migrants, but it also makes it possible to apply basic policies or guidelines for companies (both public and private), respect the rights that migrants have.

The NAP is a dynamic tool that, together with other State commitments, such as the fulfilment of the SDG goals, should strengthen the treatment of discrimination and access to work in dignified conditions for migrants.

Migrants are one of the groups that suffers the greatest inequality; this constitutes a threat to the social and economic development of the country, and therefore it is necessary for the State to apply the NAP in a coordinated manner with local governments and businesses. In particular, strengthen human rights standards in small and medium enterprises, which are the ones that allow migrants the greatest access.

Since the approval of the Human Rights NAP, Argentina started a path that allowed to set and track commitments for the respect of the different human rights issues. While those are reflected in the very own State’s candidacy for the UN Human Rights Council (2019-2021)^¹⁴, we cannot affirm that they remained as “State’s commitments”.

Migrant situation is hard to describe due to the very little fresh data available. Portrayed among the most vulnerable groups in the context of the COVID pandemic, migrants’ rights were in little focused of the most recent measures adopted to face the current crisis. None of the general policies adopted -such as the “Ingreso Familiar de Emergencia”- made special considerations regarding their situation^¹⁵.

Their access to decent working conditions and right to not be discriminated are in dire situation.

In this context, little progress has been made in continuing to work across the board on the implementation of the Human Rights NAP. None work might be highlight regarding the effective social and economic inclusion of migrants from a Business and Human Rights perspective; at the same time, women rights are in the center of the formulation of new policies as we may find the new National Action Plan against gender violence.^¹⁶

Certainly, migrants are currently among the most affected ones, and we call for the implementation of appropriate policies for respecting the rights of migrants. These policies need to be formulated and implemented in coordination with the private sector to ensure access to decent working conditions.

Bailone, M.; D’Ambroso, M.; Ferreira Lima, L. & Vázquez, A. N. (2020). Inmigrantes y apátridas en situación de riesgo: la tutela laboral en Brasil y Argentina. (I. de D. do T. e gestao Sindical, Ed.). Belo Horizonte: Editora RTM.

Bast, J. (2011). Bilateralism and Multilateralism in International Migration Law. Proceedings of the ASIL Annual Meeting, 105(2009), pp. 412–415. https://doi.org/10.5305/procannmeetasil.105.0412.

Brodie, M. (2012). “Pushing the Boundaries: The Role of National human rights institutions in Operationalizing the ‘Protect, Respect and Remedy Framework”. The UN Guiding Principles on Business and Human Rights. Foundations and Implementation, (April 2008), pp. 245–272.

Buhmann, K. (2012). The Development of the ‘UN Framework’: A Pragmatic Process Towards a Pragmatic Output. The UN Guiding Principles on Business and Human Rights : Foundations and Implementation, pp. 85–105.

Drinóczi, T. & Mohay, Á. (2018). Has the Migration Crisis Challenged the Concept of the Protection of the Human Rights of Migrants? The Case of Ilias and Ahmed v. Hungary (Invited Contribution). Irregular Migration as a Challenge for Democracy, pp. 97–112. https://doi.org/10.1017/9781780687025.007.

Guglielmelli White, A. (2008). Not so dependent but not so empowered: South American women in Argentina. ProQuest Dissertations and Theses, 222--n/a. http://search.proquest.com/docview/304658460?accountid=14553%5Cnhttp://openurl.library.uiuc.edu/sfxlcl3?url_ver=Z39.88-2004&rft_val_fmt=info:ofi/fmt:kev:mtx:dissertation&genre=dissertations+&+theses&sid=ProQ:ProQuest+Dissertations+&+Theses+Full+Text&atitl.

Melish, T. J. & Meidinger, E. (2012). Protect, Respect, Remedy and Participate : ‘New Governance’ Lessons for the Ruggie Framework. The UN Guiding Principles on Business and Human Rights: Foundations and Implementation, pp. 303–336.

Novick, S. (1997). Políticas Migratorias Argentina. Studi Emigrazione, 125, pp. 83–122. http://webiigg.sociales.uba.ar/pobmigra/archivos/migrar.pdf.

Sardi, M. (2018). Borders as Privileged Areas for Promotion and Protection of Human Rights to Migrant Workers. US-China Law Review, 15(2), pp. 67–78.

1 Chair Professor, PhD, LLM, Universidad Nacional de Córdoba – Universidad Católica de Córdoba, Argentina, Address: Obispo Trejo 323 Centro (X5000IYG), Córdoba, Argentina, Tel.: +54351 4219000, Corresponding author: csommer@ucc.edu.ar.

2 Chair Professor, PhD, LLM, Universidad de Flores, Argentina, Address: Pedernera 275, Flores, Buenos Aires, Argentina, Tel.: +5491135051318, Corresponding author: avazquez@uflouniversidad.edu.ar.

AUDJ, Vol. 17, No. 3/2021, pp. 7-22

3 These requests were made under file numbers:

EX-2021-07676050- -APN-DNAIP#AAIP;
EX-2021-02385324-APN-DNAIP#AAIP;
EX-2019-05055465- -APN-SECDHYPC#MJ;
EX-2021-02087146- -APN-DNAIP#AAIP;
EX-2021-02123993- -APN-DNAIP#AAIP.

4 The questions were:

1. What has your Ministry done regarding “Business and Human Rights” between 2010-2020?

2. What is the status of the commitments undertaken regarding Human Rights affected by business activity?

3. Please explain the administrative organization of the National Public Administration, in what concerns the Ministry of Justice, specially regarding the “Business and Human Rights National Plan”

4. Which are the areas in charge of the Business and Human Rights Plan in the period 2010-2020?

5. What department, and under whose authority, currently has the responsibility of promoting Human rights among business activity?

6. Please report the status of the National Plan of Action on Business and Human Rights.

7. What commitments have your area took regarding Sustainable Development?

11 The creation of the Unit for the Coordination of Public Policies on Business and Human Rights was established by Act 321/18. Available at https://www.boletinoficial.gob.ar/detalleAviso/primera/182330/20180426

12 See Decreet 70/2019 and the new institutional architecture of the National Ministry of Justice and Human Rights, https://www.boletinoficial.gob.ar/detalleAviso/primera/224080/20191224?busqueda=1 and https://mapadelestado.jefatura.gob.ar/estructura_oescalar.php?n1=010

15 In fact, several voices from the Civil Society marked their concern regarding migrants not being able to properly access that benefit. See for example https://www.cels.org.ar/web/2020/04/la-poblacion-migrante-debe-acceder-al-ingreso-familiar-de-emergencia/.