II. WHY OCCUPATIONAL SAFETY AND HEALTH?

Seeking to justify the fundamental importance of occupational safety and health for the world of work is forcing an open door. Unsafe and unhealthy working conditions have an appalling human cost and accidents, such as the 1911 Triangle Shirtwaist Factory fire in New YorkFootnote ¹⁶ or the 2013 Dhaka garment factory collapse (known as Rana Plaza),Footnote ¹⁷ serve as tragic reminders. Global statistics are persistently alarming. According to the WHO/ILO Global Monitoring Report on the Work-related Burden of Disease and Injury 2000–2016,Footnote ¹⁸ a joint study published in September 2021 that details the impact on human health of 19 different occupational risk factors, found that work-related diseases and injuries were responsible for the deaths of 1.9 million people in 2016. The most significant risks were long working hours and workplace exposure to air pollution, which were linked to approximately 750,000 and 450,000 deaths respectively.Footnote ¹⁹

According to figures published by the UN Global Compact,Footnote ²⁰ workplace-related deaths exceed the average annual deaths from road accidents, war, violence and HIV/AIDS. On top of the 7,500 people who die from unsafe and unhealthy working conditions each day, a further 374 million workers suffer from non-fatal occupational accidents annually. Continents are impacted unevenly with about two-thirds of global work-related mortality occurring in Asia, and the rates of fatal occupational accidents per 100,000 workers being 4 to 5 times higher in Africa and Asia than in Europe.Footnote ²¹ The economic impact of gaps in occupational safety and health is equally significant with four per cent of global gross domestic product lost annually due to costs related to lost working time, interruptions in production, medical treatment and compensation.

Throughout 100 years of standard-setting at the ILO, there has been a constant focus on efforts to improve safety standards in specific sectors, such as construction (Convention No. 167), mining (Convention No. 176) or agriculture (Convention No. 184) and enhance workers’ protection against specific occupational hazards, such as white lead (Convention No. 13), radiation (Convention No. 115), benzene (Convention No. 136), occupational cancer (Convention No. 139), asbestos (Convention No. 162) or chemicals (Convention No. 170).Footnote ²² The Violence and Harassment Convention 2019 (No. 190) is the most recent example of the ILO's attention to promoting occupational safety and health in the world of work.Footnote ²³

The recognition of the critical importance of occupational safety and health is already reflected in numerous international human rights instruments. The International Covenant on Economic, Social and Cultural Rights recognizes in Article 7 ‘the right of everyone to the enjoyment of just and favourable conditions of work [that] ensure, in particular, […] safe and healthy working conditions’. In its 2016 General Comment (No. 23) on Article 7, the Committee on Economic, Social and Cultural Rights stated that preventing occupational accidents and disease is a fundamental aspect of the right to just and favourable conditions of work.

The European Social Charter provides in Article 3 that all workers have the right to safe and healthy working conditions. In this connection, the European Committee of Social Rights states in its digest of case law that the right of every worker to a safe and healthy working environment is a widely recognized principle, stemming directly from the right to personal integrity, one of the fundamental principles of human rights. The principle is also enshrined in Article 31 of the Charter of Fundamental Rights of the European Union pursuant to which ‘every worker has the right to working conditions which respect his or her health, safety and dignity’. Similarly, the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights recognizes in Article 7 the right to work ‘under just, equitable, and satisfactory conditions, particularly with respect to […] safety and hygiene at work [and] the prohibition of […] unhealthy or dangerous working conditions […] for persons under 18 years of age’.

On a more general level, mention should be made of the WHO Constitution, which recognizes in its preamble that ‘the enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being’ and Article 15 of the African Charter of Human and Peoples’ Rights which provides that ‘every individual shall have the right to enjoy the best attainable state of physical and mental health’.

There has also been growing awareness within the ILO of the need to upscale action in the field of occupational safety and health. For instance, in 2009 the Conference Committee on the Application of Standards—a tripartite body which oversees compliance of member States with ratified international labour conventions—recognized that occupational safety and health was of crucial importance for the quality of work and human dignity.Footnote ²⁴ Similarly, the 2017 General Survey of the Committee of Experts on the Application of Conventions and Recommendations—an independent expert body supervising international labour standards—noted that the promotion of occupational safety and health and the prevention of accidents and diseases at work is a core element of the ILO's founding mission and further recalled that the 2030 Agenda for Sustainable Development shines a light on occupational safety and health, and ILO instruments will be a key tool for countries wishing to make progress over the next 15 years towards the achievement of Sustainable Development Goal target 8.8 in promoting safe and secure working environments for all workers.Footnote ²⁵

III. THE ROAD TO THE ELEVATION OF OCCUPATIONAL SAFETY AND HEALTH

Just as the original Declaration of 1998 was adopted three years after the 1995 Copenhagen World Summit for Social Development, the amendment that includes occupational safety and health in the framework of fundamental principles and rights at work comes three years on from the adoption of the ILO Centenary Declaration on the Future of Work 2019.

While the 1998 Declaration finds its origins in the ILO's effort to position itself in the debate centred on the World Trade Organization around the social dimension of globalization, the 2022 amendment to the Declaration draws upon the work of the Global Commission for the Future of Work, which first gave prominence to the idea that the time had come for occupational safety and health to be recognized as a fundamental principle and right at work.

Indeed, the Global Commission's report, published in January 2019, introduced the notion of a ‘Universal Labour Guarantee’ as a protection floor for all workers, regardless of their contractual arrangement or employment status, as part of the broader human-centred agenda, and in this context, indicated that ‘this proposal also allows for safety and health at work to be recognized as a fundamental principle and right at work’.Footnote ²⁶ The Commission's key recommendations were later taken up in the draft of the Centenary Declaration, that is, the outcome document that was submitted to the Conference for consideration at its 108th (Centenary) Session, and which read in part: ‘The Conference declares that: […] occupational safety and health is a fundamental principle and right at work in addition to those specified in the ILO Declaration on Fundamental Principles and Rights at Work (1998)’.Footnote ²⁷

Discussions at the Conference proved difficult, with some constituents raising questions about process and considering that a decision on this matter was premature. The divergent views included a proposed amendment from the Employers’ group to refer to the ‘promotion of occupational safety and health as an important foundation of decent work’; the EU member States were in favour of adding to the 1998 Declaration ‘the right to safe and healthy working conditions’; the group of Latin American and Caribbean countries preferred to omit any reference to the 1998 Declaration, while the Workers’ group supported wording stating that ‘occupational safety and health should be recognized as a fundamental principle’.Footnote ²⁸

In the event, the compromise negotiated between the two non-governmental groups and accepted by governments was to include in the Centenary Declaration a statement of principle that safe and healthy working conditions are fundamental to decent work, whereas an action-oriented paragraph in the accompanying resolution would request the Governing Body to consider, as soon as possible, proposals for including safe and healthy working conditions in the ILO's framework of fundamental principles and rights at work.Footnote ²⁹ The compromise text reflected the general agreement that the recognition of occupational safety and health as a new fundamental principle and right at work required further analysis but needed to be addressed as a matter of priority.

Delayed by the outbreak of the COVID-19 pandemic and the cancellation of the March 2020 session of the Governing Body session and the June 2020 session of the International Labour Conference, the process had to be kick-started again in March 2021 with the adoption of a revised road map.Footnote ³⁰ A further two Governing Body meetings equipped the tripartite constituents with all the necessary information to facilitate the consideration of the subject at the 110th Session of the Conference in June 2022.Footnote ³¹

The discussions of the Governing Body focused on three main issues. The first was a procedural one, namely whether the inclusion of occupational safety and health in the ILO's framework of fundamental principles and rights at work should take the form of a targeted amendment to the existing 1998 Declaration or, alternatively, a stand-alone declaration.Footnote ³² The second question was the possible effects of an amended 1998 Declaration on the labour clauses incorporated in free trade agreements. The third question was the exact wording that should be used to give expression to the new fundamental principle and the identification of one or more occupational safety and health Conventions that should henceforth be promoted and monitored as core ILO Conventions.

With respect to the first question, it was argued convincingly that the principle of workers’ protection against sickness and injury shared the same constitutional basis as the existing four categories of fundamental principles, and therefore there was no valid reason to address occupational safety and health in a separate instrument. In other words, occupational safety and health is explicitly referred to in the Preamble of the ILO Constitution and the Declaration of PhiladelphiaFootnote ³³—just like the other core principles—and thus the obligation to respect and promote that principle is as much inherent in ILO membership as the principles of freedom of association, non-discrimination and the abolition of child labour. As it was clarified at the time of the adoption of the 1998 Declaration, ‘fundamental rights are not fundamental because the Declaration says so; the Declaration says that they are fundamental because they are’.Footnote ³⁴ Or, as it has been metaphorically put, ‘the Declaration is like the ‘‘wisdom tooth’’ of the Constitution, which was already there but finally pierced through the gum in its maturity’.Footnote ³⁵

It was also argued that inserting occupational safety and health into the existing framework would preserve its overall coherence, resonance and visibility. Even more so, as from a practical perspective adding a new, fifth category of fundamental principle would call for a minimally intrusive amendment to paragraph 2 of the 1998 Declaration, as opposed to drafting a tailor-made declaration on occupational safety and health and drawing up an ad hoc follow-up mechanism.

The second aspect which the Governing Body sought to refine ahead of the Conference deliberations was the exact wording of the fundamental principle that should appear in the amended Declaration. Focus was placed on ‘effective protection of safe and healthy working conditions’ and ‘effective protection of a safe and healthy working environment’ and each of the two expressions found equal support from various sources. The term working ‘conditions’ is found in, among other instruments, the 1949 Universal Declaration of Human Rights, the 1966 International Covenant on Economic, Social and Cultural Rights, and the 1961 European Social Charter, whereas the term working ‘environment’ is used in both Conventions Nos. 155 and 187 and the Occupational Health Services Convention 1985 (No. 161). Alternatively, it was proposed that there was no reason to depart from the wording as it appears in the Declaration of Philadelphia, and that reference should therefore be made to ‘adequate protection of the life and health of workers in all occupations’. This would reinforce the premise that the Conference was not creating a new constitutional principle but simply reaffirming the fundamental nature of an existing one.

It should be noted, in this respect, that not all the fundamental principles and rights in the 1998 Declaration use wording from the ILO Constitution: the terms ‘forced and compulsory labour’ are nowhere to be found in the founding document. If anything, this confirms the latitude the Conference has in this matter, including using well-established terminology such as ‘occupational safety and health’. Lastly, it is worth recalling that the wording of fundamental principles as such has not given rise to any difficulties thus far, which should put the terminological debate into perspective.

And finally, the third question arose from doubts expressed by some constituents that, despite its non-binding nature, a Conference resolution amending the 1998 Declaration might indirectly create new obligations for member States through the unsolicited amendment of all those free trade agreements that currently refer to core labour standards, to obligations arising from ILO membership or to the eight fundamental Conventions.

Despite the largely exaggerated and legally unfounded concerns about the possible legal effects on existing trade agreements, most constituents sought reassurances that the resolution would operate pro futuro and that no trade partner could claim that labour clauses in free trade agreements concluded prior to the adoption of the resolution had somehow been modified to align with the expanded list of core labour standards.Footnote ³⁶

Rational and self-evident legal arguments were put forward, such as the fact that a non-binding Conference resolution could not amend treaties negotiated and concluded among States outside the Organization or that it is for the States parties to free trade agreements to decide if, when and how they may amend those agreements to bring them into line with an expanded list of fundamental principles and rights.

Some concerns remained that an evolutive or dynamic interpretationFootnote ³⁷ could possibly modify labour clauses in free trade agreements without the consent of the States parties, or that the Conference resolution could be considered as a subsequent agreement or subsequent practice for the purposes of interpreting those labour clauses. In response, it was indicated that evolutive intent could only be presumed when generic terms were used, as opposed to a specific enumeration of the four categories of fundamental rights,Footnote ³⁸ and that amending international treaties through subsequent agreement and subsequent practice was not generally recognized.Footnote ³⁹

Yet despite their obvious merits, legal arguments did not allay concerns that additional labour-related conditionalities might be imposed on developing countries without their consent, in return for the removal of trade barriers. It was generally felt that only a saving clause providing that nothing in the Conference resolution would affect the rights and obligations arising from existing trade agreements to which States are parties could offer the clarity and certainty needed.

It is worth noting that little or no attention was paid to the fact that a saving clause is intended to resolve a conflict between divergent or contradictory provisions of two or more treaties, and that including such as clause in a non-binding resolution would therefore be stating the obvious. It is also indicative that a saving clause was mistakenly understood as having a controlling effect on unilateral incentive arrangements such as the Generalized System of Preferences.

If anything, the saving clause that is included in the final operative paragraph of the draft resolution amending the 1998 Declaration leaves no doubt that the intent of the drafters of the resolution was to ‘shield’ the web of trade agreements currently in force from any attempt to read into the resolution anything more than a strong policy commitment.Footnote ⁴⁰

IV. THE CONFERENCE IMPRIMATUR FOR THE INCLUSION OF THE FIFTH FUNDAMENTAL PRINCIPLE

The report prepared by the ILO Secretariat to serve as a basis for the Conference discussions emphasized three parameters: first, the urgency to deliver, following the Conference's call some years previously for action to be taken as soon as possible. Secondly, the clear and uncontested constitutional articulation of the amendment exercise, which would consist in reaffirming the prominence of an existing constitutional principle and placing it alongside the principles already designated as fundamental in 1998. And thirdly, the singular simplicity of the proposed amendment, which would be limited to the insertion of half a dozen words in paragraph 2 of the 1998 Declaration.Footnote ⁴¹

Deliberations proved uncomplicated and consensus was reached fairly smoothly and rapidly, which proves that, in the eyes of most constituents, this was a well-matured undertaking.

At the request of one constituent group, a preambular paragraph of the draft resolution sought to affirm that the responsibility for ensuring workers’ safety and health does not lie exclusively with employers but involves corresponding obligations for public authorities and workers. The proposed wording was based on relevant provisions of Conventions Nos. 155 and 187 referring to ‘complementary functions and responsibilities’ or, alternatively, to ‘a system of defined rights and responsibilities and duties’.

Another preambular paragraph that gave rise to no substantive discussion recalled the profound and transformative impact that the COVID-19 pandemic had had on the world of work and how the public health crisis had served as a compelling reminder of the vital importance of occupational safety and health. It is worth noting, in this respect, that the decision to include occupational safety and health in the framework of fundamental principles predates the pandemic and therefore the holding of the Conference discussion amidst a global sanitary crisis was simply coincidental.

Regarding the formulation of the additional fundamental principle, which had initially appeared to be divisive, quasi-unanimous support was expressed for a simple and straightforward reference to ‘a safe and healthy working environment’. The drafters apparently realized that debating the wording of the principle had little practical effect, as the abstract principles enshrined in the Declaration are only translated into specific rights and obligations through the relevant fundamental Convention(s), and hence, the choice of words to give expression to the recognition of occupational safety and health as a fundamental principle and right was not decisive.

It was only natural, therefore, that the main focus of the discussions was the identification of the ILO instruments which should be granted the elevated status of fundamental Conventions within the meaning of the 1998 Declaration. There is an abundance of ILO standards on occupational safety and health, but very few are of a general scope. Agreement was finally reached on the recognition of the Occupational Safety and Health Convention 1981 (No. 155), and the Promotional Framework for Occupational Safety and Health Convention 2006 (No. 187), as fundamental due to their complementary nature and the combination of technical prescriptions with a systems approach to the management of occupational safety and health.Footnote ⁴²

Concerning the trade implications, discussions revealed a large convergence of views that a saving clause was legally unnecessary, yet politically indispensable. Recognizing the diversity of modern economic cooperation agreements that combine trade facilitation with investment protection and include labour chapters, the Conference decided to affirm that nothing in the resolution amending the 1998 Declaration would affect trade and investment agreements concluded prior to the adoption of the resolution. It also decided that the saving clause would only relate to inter-State agreements and not to agreements signed with private actors, while any reference to unilateral trade incentive schemes, such as the Generalized System of Preferences, was wisely avoided.

Moreover, the Conference decided that in the future the Declaration should be cited with both the year of original adoption and the year of its amendment. Finally, the Conference agreed that the Governing Body should initiate the process for updating all international labour standards (seven Conventions, one Protocol and seven Recommendations) that contain references to the 1998 Declaration and to the four categories of fundamental principles and rights that existed at the time of their adoption.Footnote ⁴³

From a legal and institutional perspective, there are three aspects of the Conference discussions that call for comment.

First, the inclusion of occupational safety and health in the ILO's framework of fundamental principles and rights at work puts an end to a largely academic debate as to how the original four categories of fundamental principles and rights at work were selected. Scholars have doubted, for instance, that specific criteria (for instance, legal, philosophical or economic criteria) were used to determine the four categories and have questioned in particular the purported omission of safety and health.Footnote ⁴⁴

It was in an attempt to rationalize the recognition of four constitutional principles as being fundamental, to the exclusion of other principles also spelled out in the Constitution, that one of the architects of the Declaration noted that ‘the fundamental workers’ rights category enjoys a functional coherence which relates to their impact on the achievement of other rights […] As enabling rights, they empower workers with the tools that are necessary for the conquest of other rights’.Footnote ⁴⁵

However plausible or convincing this may have been at the time of the adoption of the 1998 Declaration, the explanation that fundamental rights are, and can only be, enabling rights has lost much of its relevance. As the record shows, no objection was raised by tripartite constituents to the inclusion of safety and health as an additional fifth fundamental principle, which proves that at no point was the Declaration perceived as a self-contained and exclusive list of enabling rights.

Furthermore, with the benefit of hindsight and based on the discussions that led to the adoption of the resolution amending the 1998 Declaration, it should now be clear that the 1998 Declaration should not be seen as a static list, but rather as a document that reflects the ILO constituents’ shared understanding as to what membership entails in terms of bedrock commitments. The amendment to the 1998 Declaration confirms that the list of fundamental principles and rights at work may, in fact, be reviewed by the Organization's supreme executive and legislative body and that there is no established hierarchy among the foundational principles set out in the ILO Constitution.

Secondly, the debate around the saving clause generated a strong sense of déjà vu. Indeed, if there is one question in relation to which the Conference discussion was astonishingly reminiscent of that which led to the adoption of the original 1998 Declaration, it is the possible ramifications of the Declaration on trade relations. In 1998, the Conference deliberations were almost stalled—to the point that one delegate observed that the Committee had been discussing trade policy more than protection of core labour standardsFootnote ⁴⁶—around the possible nexus between the respect of fundamental principles and rights at work and trade sanctions. In 2022, there was scepticism related to the effects that an amended Declaration might have on the labour clauses that have massively populated free trade agreements and other trade facilitation arrangements in recent years. In both cases, developing countries showed disbelief that a ‘soft law’ instrument such as a Conference resolution cannot generate, directly or indirectly, new obligations and they called for express reassurances to be built into the negotiated instrument.

During the preparatory work of the 1998 Declaration, it was repeatedly explained that the safeguard clause aiming at excluding the possibility of adopting trade sanctions against a member that might be in breach of fundamental principles and rights was redundant from a legal point of view.Footnote ⁴⁷ In a similar fashion, ample clarifications were provided at the Governing Body and Conference discussions prior to the adoption of the 2022 resolution to the effect that a non-binding Conference resolution cannot affect the scope and content of bilateral or plurilateral trade agreements negotiated outside the Organization and that a saving clause would therefore serve no purpose in this regard.Footnote ⁴⁸ Even though the need for a saving clause was in both cases overstated, it reflects the degree of discomfort of some member States about the political fallout of the Declaration.

What made the question of a saving clause topical this time was the proliferation of free trade agreements which directly link trade privileges with respect for fundamental workers’ rights. The debate around the relevance and limits of evolutive interpretation was indicative of the uneasiness among many constituents. Concretely, the question was raised as to whether terms contained in existing free trade agreements such as ‘core labour standards’ or ‘fundamental principles and rights at work’ could—in the context of third-party settlement of a possible dispute among States parties—be subject to an evolutive interpretation, that is to say, as incorporating all the ILO fundamental principles recognized at the time of interpretation rather than only those recognized at the time of the conclusion of the trade agreement in question.

In the light of the relevant provisions of the 1969 Vienna Convention on the Law of Treaties, the International Law Commission's work on subsequent agreements and subsequent practice in relation to treaty interpretation, and the rule developed by the International Court of Justice,Footnote ⁴⁹ the ILO Secretariat had put forward the view that the theoretical possibility of an arbitral panel engaging in an evolutive interpretation of generic terms such as ‘core labour standards’ could not be excluded but remained highly unlikely. It was noted, for instance, that whereas there is no axiomatic method for determining whether treaty provisions are to be interpreted in a ‘contemporaneous’ or an ‘intertemporal’ manner, those generic terms may be regarded as having an evolutive meaning only if it is established that such has been the true intention of the parties to the agreement concerned.Footnote ⁵⁰

This is all the more true as the vast majority of labour clauses in free trade agreements enumerate exhaustively the current fundamental principles and rights at work, and hence reading additional provisions into those clauses would be tantamount to amending rather than interpreting them. It was further indicated that even if the resolution amending the 1998 Declaration could be deemed to constitute ‘subsequent agreement’ or ‘subsequent practice’ within the meaning of Article 31(3) of the Vienna Convention, it is generally accepted that such agreement or practice may only have the effect of clarifying the meaning of the labour clauses in question but not amending them.Footnote ⁵¹

As for unilateral trade incentive schemes, such as the Generalized System of Preferences, it was explained that the conditions for access to those non-reciprocal trade preferences may be modified at the sole discretion of the State having established the scheme, and there can therefore be no dispute to settle through third-party intervention and hence no room for interpretation, evolutive or otherwise.Footnote ⁵²

It follows that, legally speaking, even without the explicit saving clause included in the fifth operative paragraph of the resolution amending the 1998 Declaration, none of the 103 free trade or economic partnership agreements currently in effect that contain labour clauses could be deemed to have been modified to incorporate occupational safety and health as a fundamental workers’ right.Footnote ⁵³

Thirdly, in striking contrast to the disproportionate importance attached to the need for a saving clause and the possibility of labour clauses in free trade agreements being subject to an evolutive interpretation in the context of future disputes, very little attention was paid during the Conference or the Governing Body discussions to the related question of whether the ILO should be involved in the settlement of such trade disputes and seek to have a say, especially with regard to the interpretation of international labour standards and the practice of its supervisory bodies. The proliferation of dispute settlement clauses in free trade agreements entrusting responsibility for the interpretation of labour provisions to expert panels,Footnote ⁵⁴ not necessarily familiar with the various ILO supervisory procedures and the voluminous case law they generate, represents in the long-term a direct risk for the authority of the ILO's voice in the global regulatory framework and the integrity of its supervisory system.Footnote ⁵⁵

While the panel that examined the trade dispute between the European Union and the Republic of Korea interpreted the terms ‘to respect’, ‘to promote’ and ‘to realize’ fundamental principles by essentially reproducing the ‘definitions’ developed by ILO supervisory bodies such as the Committee of Experts on the Application of Conventions and Recommendations and the Committee on Freedom of Association,Footnote ⁵⁶ there is no guarantee that other bodies would follow the same approach.

The differing views on the legal nature of the 1998 Declaration expressed by the respective panels that examined the EU–Korea and the US–Guatemala disputes is another illustration of the same point. Whereas the panel of experts in the EU–Korea labour dispute held the view that the 1998 Declaration was not in itself binding but that the parties assumed a separate binding commitment arising from Article 13.4.3 of their bilateral agreement and not from the Declaration per se,Footnote ⁵⁷ the arbitral panel constituted under Article 20.6.1 of the Dominican Republic-Central America-United States free trade agreement (CAFTA-DR) to examine a dispute between the United States and Guatemala considered the 1998 Declaration to be a ‘relevant rule of international law’ within the meaning of Article 31(3)(c) of the Vienna Convention on the Law of Treaties.Footnote ⁵⁸

As long as the requirement for prior consultations with the ILO is not codified in free trade agreements to ensure its meaningful participation in any interpretative process, independent bodies may unwillingly deviate from well-established ILO guidance, leading to cacophony and uncertainty. The ILO needs to rise to the challenge and undertake timely initiatives to avoid marginalization in such a crucial area of its mandate.