About the author: Tushar Krishna is a penultimate student at West Bengal National University of Juridical Sciences, Kolkata. His deep interest lies in International law and Humanitarian Law. Currently, he is also the convenor of the International Law Student Association NUJS chapter.
Image by Kateryna Babaieva available here.
I. Introduction
In the contemporary world, 6000 people die daily from work-related illnesses and fatalities, accounting for over 2.3 million annually. The number increases multifold if we consider the number of occupational fatalities (i.e. 340 million) and victims of work-related diseases (i.e. 160 million). Considering the seriousness of the situation, on June 10, 2022, the International Labor Organisation (ILO) adopted a resolution (‘2022 Resolution’) to incorporate “occupational health and safety (OSH)” as a fifth fundamental principle and right at work (FPRW). It elevates the “right to the safe and healthy working environment (RSHWE)” to the same level as the other four FPRW – (i) abolition of child labor, (ii) elimination of discrimination in employment, (iii) right to collective bargaining, and (iv) elimination of forced labor – and internationally recognized it as “universal labor right”. Here, it is noteworthy that the RSHWE is not something new for the ILO to recognize. Rather, the 2022 Resolution finds its place at the very heart of the ILO preamble and 1944 Declaration of Philadelphia (which laid down ILO’s aims and purposes). Therefore, the question stresses on the potential difference that the ILO recognition of RSHWE can bring and whether the mere recognition by ILO is sufficient to ensure a reducing mortality rate and work-related diseases. If not, what steps must be taken to guarantee that the 2022 Resolution’s true objectives are carried out? Given the importance of these questions, I tried to answer them in this article.
II. What does it mean to have RSHWE recognised by ILO?
With the recognition of RSHWE as FPRW, the Convention on Occupational Safety and Health, 1981 (C-155) and Convention on Promotional Framework for Occupational Safety and Health, 2006 (C-187) have been conceded as ILO’s “Fundamental Convention”. If we see the primary obligation of the 2022 Resolution – “all ILO member states (‘MS’), no matter whether they have ratified the Conventions in question or not, have an obligation arising from their ILO membership to respect, promote and realize, in good faith, […] a safe and healthy working environment” – it does not require the MS to ratify the conventions for being obligated by them. However, past experiences have shown a massive ratification wave of fundamental conventions following their recognition as FPRW. For instance, after the 1998 Declaration on FPRW (1998 Declaration), the number of ratified countries for the Convention on Minimum Age rose from 58 to 175. Similarly, as of now, the ratification of the Convention on Forced Labor increased to 180, and the Convention of the Worst forms of Child Labor increased to 187. Therefore, it would be unsurprising to observe C-155 and C-187 ratified in increasing numbers in the near future. Nonetheless, it is questionable whether this possible consequence would make any difference because MS’s obligation under the 2022 Resolution is unrelated to whether or not they ratify the core conventions. The answer is likely affirmative. Since the ILO falls under soft law as it hardly provides strict enforcement measures on its MS (aside from reporting requirements), there are instances like India, an ILO member, purposefully avoided ratifying the Convention on Collective Bargaining (C-98), which is a fundamental convention, so that it is not required to enforce the rights attached to it like the right to strike, without caring about the fact that being an ILO member itself requires it to bound by the obligation under C-98, irrespective of ratification. It shows that even though ratification of the conventions in question is not required once RSHWE is recognized as FPRW, in practice, ratification is what ensures that the MS are taking the legally binding obligation on the said rights. Therefore, in this regard, even if we consider that the 2022 Resolution in itself does not make MS legally obligatory towards enforcing RSHWE, the ratification would definitely help in enforcing RSHWE to a greater extent globally.
Moreover, the RSHWE’s inclusion under FPRW would have a significant impact on global commerce and trade. The 1998 Declaration serves as the cornerstone for some of the most significant models of commercial policies/guidelines – i.e. Guiding Principles on Business and Human Rights, UN Global Compact, cross-border trade agreements, and numerous other transnational codes of conduct. Indeed, in the past, there have been only few bilateral trade agreements like EU-Canada CETA, EU-Singapore FTA, et al., laying down the “OSH” as part of their labor standards (along with the other four FPRW). Although the ILO made it clear that the 2022 Resolution does not impair its MS’s obligations with regard to standing trade agreements, there is no doubt that the Resolution would lead to emerging transnational trade agreements incorporating a legally obligatory labor clause on RSHWE to a greater extent. Therefore, it is evident that the 2022 resolution will have a significant impact on the greater recognition of RSHWE in global trade.
III. Why is mere recognition not enough?
Although ILO’s recognition is a landmark decision, it is only the beginning (and not the endpoint). One of the reasons behind is the inherited flaws which are present in it (some are already pointed out above, like non-enforceability mechanisms, no real legal obligation without ratification, et al.). In recent times, when governments across the globe seem to encourage inexpensive labor to entice investments, these emerging labor norms might be adopted for the “namesake” in order to avoid international condemnation without truly enforcing them. In fact, the seriousness of the issue can be observed from the fact that due to these economic considerations involved, policymakers had excluded RSHWE from the 1998 Declaration.
Additionally, with the recognition of a right under FPRW, certain conventions are recognized as “fundamental conventions”. It led to a “hierarchy” among ILO’s own conventions – “fundamental/universal conventions” and “other conventions (in the current context, there are 40 ILO conventions specifically address concerns related to RSHWE; some are even indispensable to fully realize the OSH in workplaces)” – which is consequently becoming a barrier in achieving the overall objectives of not only “other non-recognized conventions” but also fundamental conventions. For instance, the Chemical Convention 1990 (C-120) has a direct linkage with the workers’ health and safety as it lays down the specific mechanism for workers to deal with harmful chemicals and their disposal. It also delineates the workers’ (also supplies’) specific responsibilities and duties while workers deal with chemicals. Evidently, these principles play an indispensable role when the question comes to setting a national policy on RSHWE, as mandated under C-155 and C-187. The same applies to numerous other conventions, including but not limited to C-115, C-167, C-176, et al. So, there is a close nexus between fundamental conventions and other conventions. However, due to mere recognition of C-155 and C-187 as fundamental conventions, nations will not feel obligated to ratify additional conventions that are essential to obtaining RSHWE’s ultimate goal (particularly when many MS are not even inclined towards ratifying fundamental conventions – See India’s instance discussed above). Therefore, while the ILO recognition of RSHWE is a significant step, the mere recognition would be, unfortunately, insufficient to guarantee a safe and healthy working environment without additional measures.
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IV. What is needed?
The 2022 Resolution itself emphasizes that recognition of RSHWE as FPRW is one thing, and its global enforcement is another thing. The initial step could be a large number of ratification of not only the fundamental conventions but also the other related conventions. These conventions, very broad in scope (as applicable to all sectors and economic activities), require the nations to develop, enforce and regularly review a national policy and a national safety and health culture on OSH, which can lead to a greater impact. Although ratification is the first step, it is not enough. Real implementation can only be possible with active engagement and the concerted effort of all the stakeholders involved – i.e. employers, governments, and international organizations – in executing their obligation and duties. Employers need to realize that OSH is more likely to be an investment than an expense as it affirms the increased worker contribution due to reduced workplace injuries and illness, thereby enhancing overall productivity. The governments require to support underlying obligations under the said conventions by welcoming domestic laws and regulations with effective enforcement measures and penalties attached. There is a need to have effective capacity-building programs, which can be supported by opening information advisory services on OSH and training programs. Here, the partnership with ILO and its sister organizations like ICO, IHOCA, ECOCA, and other institutes, which work on the development of tools, materials and training, can come into the picture. Additionally, it is necessary to mandate due diligence on the global supply chain and trade agreements with respect to a healthy and safe working environment. Although these requirements are challenging to meet, they are actually just a small part of what is needed to attain the real goal of RSHWE, i.e., people who go to work can come back home alive, uninjured and healthy.