25 Years after the Adoption of the ILO 1998 Declaration on Fundamental Principles and Rights at Work: What is New in the Human Rights Turn in Labour Law?

June 2023 marked the 25^th anniversary of the adoption of the ILO 1998 Declaration of Fundamental Principles and Rights at Work (the Declaration). The Declaration has been a catalyst for intense discussions and has wielded significant influence, within and beyond the ILO. This post explores the most notable impacts of the Declaration, spanning from its inception to the 2022 Amendment that incorporated the right to a safe and healthy working environment. Particularly, it delves into recent advancements within the Inter-American System of Human Rights (IASHR), where the ILO Fundamental Conventions have served as a powerful platform for expanding workers’ rights. With no adjudicatory tribunal within the ILO (see here), regional human rights courts gain significance.

The Human Rights Turn in International Labour Law: The ILO Declaration from 1998 to 2022

The adoption of the 1998 Declaration represented the ILO’s strategic response to the challenges brought about by globalization and trade liberalisation, positioning itself as a leading authority in social and labour affairs within the evolving global governance landscape. The Declaration sets forth a comprehensive framework of labour standards applicable to all Member States, irrespective of their ratification status. These standards include freedom of association and the effective recognition of the right to collective bargaining, the elimination of all forms of forced or compulsory labour, the effective abolition of child labour, the elimination of discrimination in respect of employment and occupation, and, since last year, a safe and healthy working environment. Additionally, the Declaration incorporates a promotional follow-up mechanism, which entails an annual study on non-ratified fundamental Conventions and a report by the Committee of Experts on the Application of Conventions and Recommendations (CEACR). This follow-up mechanism is enhanced by specific technical assistance programs aimed at facilitating the ratification and implementation of fundamental ILO conventions.

The adoption of the Declaration was met with substantial critiques (see here and here), primarily focused on two main issues. First, concerns centred on the hierarchical categorization of labour rights, with certain rights being designated as fundamental. Second, objections were raised against the transition to a promotional follow-up mechanism, seen as undermining the ILO’s traditional supervisory system. Although these critiques were contested (see here, here, and the corresponding rejoinder here) they remain relevant for ongoing discussions, as we shall explore in the following sections.

In 2022 the International Labour Conference (ILC) made a significant stride by incorporating the right to a safe and healthy working environment into the Declaration. This event marked the inclusion of the Occupational Safety and Health Convention, 1981 (No 155) and the Promotional Framework for Occupational Safety and Health Convention, 2006 (No 187), alongside the existing eight ILO fundamental Conventions. As a result, a comprehensive review of the ILO’s normative framework was undertaken during the recently concluded 111^th session of the ILC. 

The inclusion of Occupational Safe and Healthy at Work (OSH) traces back to the centenary session of the ILC in 2019. Unresolved issues on whether it should be approached as an amendment or an autonomous declaration, which ILO conventions to include, and the potential impacts on existing free trade agreements (FTAs) hindered progress at that time (see here). The debate was subsequently referred to the Governing Body for further analysis. By 2022 and in light of the impacts of the COVID-19 pandemic on workers, it became evident that OSH required enhanced recognition within the ILO framework.

The adoption of the amendment brought forth two noteworthy innovations. First, the inclusion of a principle of complementary responsibilities in the preamble, primarily advocated by the employers’ group. Drawing from Article 6 of ILO Convention No. 155, this principle emphasizes that collaborative efforts among the three ILO constituents shall be made to fulfil the obligations concerning OSH. Second, a saving clause was introduced in the 5th paragraph of the amendment, as a response to heated debates surrounding its potential impacts on existing FTAs (see here). Specifically, questions arose regarding whether the inclusion of the right to a safe and healthy working environment imposed new obligations on States bound by FTAs that generically refer to “core labour standards” or the 1998 Declaration. The saving clause, described by a commentator as “legally unnecessary, yet politically indispensable” (see here p. 226), aimed to address these concerns.

25 Years Later. What Have We Learned?

During these years the Declaration has had significant influence. Within the ILO, it has been reinforced by the 2008 Declaration on Social Justice for a Fair Globalization and the 2019 Centenary Declaration for the Future of Work, becoming a pillar of the ‘decent work’ concept. The promotional follow-up mechanism of the Declaration has also played an important role in fostering the ratification of the fundamental conventions. Outside the ILO, the Declaration is referenced in various private instruments of labour governance, including international framework agreements and corporate social responsibility codes. It has also been expressly embraced in the UN Guiding Principles on Business and Human Rights (Principle 12), and, although not explicitly mentioned, both the OECD Guidelines for Multinational Enterprises (chapter 5) and the 2030 UN Agenda (SDG 8) incorporate several core labour standards. However, its most significant impact has been in FTAs (see here). According to the ILO’s database covering the period 1998-2022, a total of 357 FTAs were adopted, with 329 incorporating labour provisions and 113 explicitly referring to the ILO 1998 Declaration. As previously mentioned, this issue sparked crucial debates during the adoption of the 2022 amendment.

As a result, concerns regarding the hierarchization of labour rights have materialized, with core labour standards overshadowing other internationally recognized labour rights. Moreover, the enforcement of these standards has expanded beyond the ILO’s framework, leading to further fragmentation in international labour law. However, the Declaration has also triggered a counter-trend towards greater synergy. This trend spans mainly from recent developments concerning workers’ rights within the IASHR. 

Core Labour Standards at the IASHR: The Case of the Right to Strike and the Right to Safe and Healthy Working Conditions

Extensive scholarship has underscored the merits of framing labour rights as human rights (for an overview, see here and here). Within this context, the IACtHR has assumed an important role, particularly in the wake of its landmark 2017 ruling in the case Lagos del Campo vs. Peru which established the direct enforceability of economic, social, cultural and environmental rights (ESCER). This shift has propelled the IACtHR to the forefront of global labour governance (see Ebert in this volume). This section contributes to this ongoing discussion by shedding light on two recent advancements within the IASHR: the recognition of the right to strike and the evolving case law regarding the right to safe and healthy working conditions.

The recognition of the right to strike has been a contentious issue within the ILO. While the traditional interpretation derived the right to strike from ILO Convention No. 87, the employers’ group challenged this interpretation, resulting in a blockade within the  Committee on the Application of Standards of the ILC in 2012 (see here). Despite ongoing efforts, this issue remains unresolved (see here). However, a significant breakthrough occurred in 2021 when the IACtHR issued its Advisory Opinion 27/21, affirming that the right to strike is a human right derived from ILO Fundamental Convention No. 87 and a principle of customary international law (paras. 95-97). This decision was further reinforced by the Judgment in Former Employees of the Judiciary v. Guatemala, firmly establishing the enforceability of the right to strike within the Inter-American space (see here). The IACtHR’s stance on this matter extends beyond the IASHR and indicates a significant shift in the global recognition of this crucial right (see Lörcher & Ebert here).

The IACtHR has also played a significant role in advancing the recognition of the right to just and satisfactory working conditions (JSWC), even predating the 2022 Amendment to the ILO Declaration. In Spoltore vs. Argentina, the IACtHR applied its ESCER adjudication methodology through Article 26 of the American Convention on Human Rights (ACHR), to derive the right to JSWC from the Charter of the Organization of American States in light of the ILO Convention No. 155 and other relevant international human rights instruments. Expanding on this precedent, the IACtHR further developed the right to JSWC in two significant judgments: Workers of the Fireworks Factory vs. Brazil and Miskito Divers v. Honduras. These cases brought to light the appalling working conditions faced by marginalized groups, including Afro-descendant women and indigenous peoples, resulting in tragic incidents –a fatal explosion in the former and the precarious situation of informal divers in the latter. Drawing on ILO Convention No. 81 on Labour Inspection and No. 155 on Occupational Safety and Health, as well as the General Comments of the CESCR, the IACtHR clarified that the right to JSWC encompasses the prevention of work-related harm, provision of effective remedies, and regular oversight. Moreover, the IACtHR highlighted the interplay between the right to JSWC and the right to equality and non-discrimination, considering the vulnerable circumstances of the victims in both cases. Consequently, the IACtHR held the respective states responsible for violating the right to JSWC and prescribed reparations aimed at monetary compensation, addressing labour informality and vulnerability through educational and social programs, and enhancing state control over private enterprises.

All in all, the recent decisions rendered by the IACtHR underscore its commitment to expanding workers’ rights, particularly in cases where progress within the ILO has been hindered. By leveraging the ILO Fundamental Conventions enshrined in the Declaration, the IACtHR has effectively widened the realm of international labour law, notably addressing the impasse surrounding the right to strike. Furthermore, the IACtHR’s proactive approach is evident in its case law concerning OSH, drawing upon ILO Convention No. 155 even before it attained fundamental labour rights status. These developments exemplify the IACtHR’s innovative potential, characterized by its expansive legal interpretation, its reliance on ILO norms and decisions from its supervisory bodies, its victim-centred focus, and its transformative approach to reparations. Notably, these advancements hold significant promise for informal workers, who constitute more than half of the global workforce and currently lack formal representation at the ILO (Articles 3 and 7 of the ILO Constitution). Through its proactive approach, the IACtHR stands as a compelling forum to redress the rights of informal workers and ensure their inclusion in the global labour agenda.

Taking Stock: What to Expect Next?

The last 25 years have seen the ILO Declaration emerge as a pivotal instrument, transcending the boundaries of the ILO itself. While concerns persist regarding the categorization of labour rights and the tangible outcomes of increased ratification rates, the Declaration has showcased its potential to bolster the recognition of core labour standards within regional human rights systems. This post has delved into recent findings within the IASHR, where the ILO Fundamental Conventions have catalysed the recognition of workers’ rights. While the role of human rights systems regarding workers’ rights also faces challenges (see here and here), further exploration of the dissemination of Inter-American labour standards, both intra-regionally through the conventionality control doctrine and extra-regionally through cross-fertilisation and transnational strategic litigation, holds great promise for future analysis.