¹ Resolution on the inclusion of a safe and healthy working environment in the ILO's framework of fundamental principles and rights at work <https://www.ilo.org/wcmsp5/groups/public/---ed_norm/---relconf/documents/meetingdocument/wcms_848632.pdf>. For the report that served as a basis of the Conference deliberations, see ILC, 110th Session (2022) Report VII, Inclusion of safe and healthy working conditions in the ILO's framework of fundamental principles and rights at work <https://www.ilo.org/wcmsp5/groups/public/---ed_norm/---relconf/documents/meetingdocument/wcms_844349.pdf>.

² Adding a ‘fifth pillar’ to the 1998 Declaration was generally hailed by the Conference as a historic achievement; see ILC, 110th Session (2022) Record of Proceedings, Record No 1E, Submission and noting of the second report of the General Affairs Committee, 5–22.

³ For an insider's account of the negotiating history of the Declaration, see K Tapiola, ‘The Teeth of the ILO – The Impact of the 1998 ILO Declaration on Fundamental Principles and Rights at Work’ (2018); Maupain, F, ‘L'OIT, la justice sociale et la mondialisation’ (1999) 278 Recueil des cours 262Google Scholar. See also Bellace, J, ‘The ILO Declaration of Fundamental Principles and Rights at Work’ (2001) 17 International Journal of Comparative Labour Law and Industrial Relations 269CrossRefGoogle Scholar.

⁴ These conventions are the Forced Labour Convention, 1930 (No. 29); the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87); the Right to Organise and Collective Bargaining Convention, 1949 (No. 98); the Equal Remuneration Convention, 1951 (No. 100); the Abolition of Forced Labour Convention, 1957 (No. 105); the Discrimination (Employment and Occupation) Convention, 1958 (No. 111); the Minimum Age Convention, 1973 (No. 138); the Worst Forms of Child Labour Convention, 1999 (No. 182); and the Protocol of 2014 to the Forced Labour Convention, 1930.

⁵ To date, another five declarations have been adopted by the Conference; the Declaration concerning the Aims and Purposes of the ILO (known as the Declaration of Philadelphia) in 1944; the Declaration concerning the Policy of Apartheid of the Republic of South Africa in 1964; the Declaration on Equality of Opportunity and Treatment for Women Workers in 1975; the Declaration on Social Justice for a Fair Globalization in 2008; and the Centenary Declaration for the Future of Work in 2019 <https://www.ilo.org/global/about-the-ilo/how-the-ilo-works/departments-and-offices/jur/legal-instruments/WCMS_428589/lang--en/index.htm>.

⁶ See Royle, T, ‘The ILO's Shift to Promotional Principles and the ‘‘Privatization’’ of Labour Rights: An Analysis of Labour Standards, Voluntary Self-regulation and Social Clauses’ (2010) 26 International Journal of Comparative Labour Law and Industrial Relations 249CrossRefGoogle Scholar; U Liukkunen, ‘The ILO and Transformation of Labour Law’ in T Halonen and U Liukkunen, International Labour Organization and Global Social Governance (Springer 2021) 17; Kocher, E, ‘Transnational Labour Law? ‘Corporate Social Responsibility’ and the Law’ in Saage-Maaß, M et al. , Transnational Legal Activism in Global Value Chains. Interdisciplinary Studies in Human Rights, vol 6 (Springer 2021) 187Google Scholar; Zandvliet, R and van der Heijden, P, ‘The Rapprochement of ILO Standards and CSR Mechanisms: Towards a Positive Understanding of ‘‘Privatization’’’ in Marx, A et al. , Global Governance of Labour Rights (Elgar 2015) 170Google Scholar.

⁷ Critics pointed at the erosion of the entire corpus of international labour standards and their systematic replacement ‘by a nebulous and essentially self-defined and self-evaluated system of so-called core labour standards’; see Alston, P, ‘‘Core Labour Standards’ and the Transformation of the International Labour Rights Regime’ (2004) 15 EJIL 457CrossRefGoogle Scholar; Alston, P and Heenan, J, ‘Shrinking the International Labour Code: An Unintended Consequence of the 1998 ILO Declaration on Fundamental Principles and Rights at Work?’ (2004) 36 New York University Journal of International Law and Politics 221Google Scholar. Contra, see B Langille, ‘Core Labour Rights – The True Story (Reply to Alston) (2005) 16 EJIL 409; F Maupain, ‘Revitalization not Retreat: The Real Potential of the 1998 ILO Declaration for the Universal Protection of Workers’ Rights’ (2005) 16 EJIL 439. See also Eren, O, ‘Continuation of the ILO Principles in the 21st century Through the Compliance Pull of Core Labor Rights’ (2008) 13 Journal of Workplace Rights 303CrossRefGoogle Scholar.

⁸ Free trade agreements are international treaties concluded between two or more States aimed at removing trade barriers and offering reciprocal preferential access to markers. According to the World Trade Organization's database on regional trade agreements, there are 353 free trade agreements in force today. Almost one third of the free trade agreements currently in effect contain labour provisions that generally aim at promoting international labour standards while 80 free trade agreements include express references to the 1998 Declaration; see the ILO's database ‘Labour Provisions in Trade Agreements Hub’ <www.ilo.org/LPhub>.

⁹ Under art 14 of the Rules on Investment and Modalities on their Implementation adopted by the Economic Community of West African States in 2008, ‘investors and investments shall act in accordance with fundamental labour standards as stipulated in the ILO Declaration on Fundamental Principles and Rights of Work, 1998’; see ECOWAS Supplementary Act A/SA.3/12/08 Adopting Community Rules on Investment and the Modalities for their Implementation <https://edit.wti.org/app.php/document/show/9030e714-3be3-48f2-93a1-69b5ec76d8bb>.

Similarly, art 15 of the Model Bilateral Investment Treaty Template adopted by the Southern African Development Community in 2012 provides that ‘investors and their investments shall act in accordance with core labour standards as required by the ILO Declaration on Fundamental Principles and Rights at Work, 1998’. The Commentary adds that ‘the ILO Declaration sets out what are considered as the minimum global standards. Almost all States have subscribed to these minimum standards. There is no evident rationale for any investor to operate in a manner than denies these standards, given the tripartite nature of the process by which ILO standards are adopted’; see SADC Model Bilateral Investment Treaty Template with Commentary <https://www.iisd.org/itn/wp-content/uploads/2012/10/SADC-Model-BIT-Template-Final.pdf>.

¹⁰ Foundational principle 12 refers to the ‘responsibility of business enterprises to respect internationally recognized human rights – understood, at a minimum, as those expressed in the International Bill of Human Rights and the principles concerning fundamental rights set out in the International Labour Organization's Declaration on Fundamental Principles and Rights at Work’; see Guiding Principles on Business and Human Rights: Implementing the United Nations ‘‘Protect, Respect and Remedy’’ Framework <https://www.ohchr.org/sites/default/files/documents/publications/guidingprinciplesbusinesshr_en.pdf> 13–14.

¹¹ Chapter V of the Guidelines referring to Employment and Industrial Relations echoes the relevant provisions of the 1998 Declaration while the Commentary notes that the ILO is the competent body to set and deal with international labour standards and to promote fundamental rights at work as recognized in its 1998 Declaration on Fundamental Principles and Rights at Work; see OECD Guidelines for Multinational Enterprises 2011 Edition, paras 47–59 <https://www.oecd.org/daf/inv/mne/48004323.pdf>.

¹² The Ten Principles of the UN Global Compact call upon businesses to operate in ways that, at a minimum, meet fundamental responsibilities in the areas of human rights, labour, environment and anti-corruption. Four of those principles reproduce the four categories of fundamental principles and rights at work set out in the 1998 Declaration <https://www.unglobalcompact.org/what-is-gc/mission/principles>.

¹³ Instruments negotiated between a multinational enterprise and a Global Union Federation (GUF) concerning the international operations of the company; see Hernstadt, O, ‘Are International Framework Agreements a Path to Corporate Social Responsibility?’ (2007) 10 University of Pennsylvania Journal of Business and Employment Law 187Google Scholar.

¹⁴ Written statements of principles adopted voluntarily by companies to express their commitment to particular management practices. See, for example, Apple's Supplier Code of Conduct and Human Rights Policy <https://www.apple.com/supplier-responsibility/pdf/Apple-Supplier-Code-of-Conduct-and-Supplier-Responsibility-Standards.pdf>; Ford's Supplier Code of Conduct <https://corporate.ford.com/content/dam/corporate/us/en-us/documents/operations/governance-and-policies/supplier-code-of-conduct/Ford%20Supplier%20code_Final_EN.pdf>; Shell Code of Conduct <https://coc.shell.com/en_gb/_jcr_content/root/main/containersection-0/list/list_item/links/item0.stream/1649352093386/907103b38da13e492535ee805fe6d997a51782c2/codeofconduct-english-2015.pdf>; Intel's Global Human Rights Principles <https://www.intel.com/content/www/us/en/policy/policy-human-rights.html>.

¹⁵ Murphy, H, ‘The World Bank and Core Labour Standards: Between Flexibility and Regulation’ (2014) 21 Review of International Political Economy 399CrossRefGoogle Scholar. See also ITUC, The Labour Standards of the Multilateral Development Banks: A Trade Union Guide (2019).

¹⁶ The fire caused the death of 146 garment workers, 123 women and girls and 23 men. Many workers could not escape from the building as doors to exits were locked during working hours to prevent workers from taking unauthorized breaks. As a result of the fire, the American Society of Safety Professionals was founded in October 1911.

¹⁷ The collapse of the eight-story building which housed five garment factories, killed at least 1,132 people and injured more than 2,500—the deadliest garment factory disaster in history <https://www.ilo.org/global/topics/geip/WCMS_614394/lang--en/index.htm>. According to reports, more than half of the victims were women, along with a number of their children who were in nursery facilities within the building. The building's owners ignored warnings to avoid using the building after cracks had appeared the day before the accident and workers were ordered to return the following day. To ensure that injured workers and dependants of the deceased were effectively compensated, a coordinated framework known as the Rana Plaza Arrangement was agreed with the ILO acting as a neutral chair. Between March 2014 and October 2015, the Arrangement distributed almost $30 million directly to victims <https://ranaplaza-arrangement.org/>.

¹⁸ <https://www.ilo.org/wcmsp5/groups/public/---ed_dialogue/---lab_admin/documents/publication/wcms_819788.pdf> viii.

¹⁹ ibid 12.

²⁰ New brief on safe and healthy working environment <https://www.unglobalcompact.org/take-action/safety-andhealth>.

²¹ ibid.

²² The ILO has adopted more than 40 Conventions specifically dealing with occupational safety and health, as well as over 40 Codes of Practice. Nearly half of international labour instruments deal directly or indirectly with occupational safety and health issues <www.ilo.org/dyn/normlex/en>.

²³ Convention No. 190 entered into force on 25 June 2021 and has so far received 20 ratifications <https://www.ilo.org/wcmsp5/groups/public/---dgreports/---gender/documents/publication/wcms_814507.pdf>.

²⁴ ILC, 98th Session (2009) Record of Proceedings, Provisional Record 16 part one, para 208 <https://www.ilo.org/wcmsp5/groups/public/---ed_norm/---normes/documents/publication/wcms_116491.pdf>.

²⁵ ILC, 106th Session (2017) General Survey on the occupational safety and health instruments concerning the promotional framework, construction, mines and agriculture, Report III (Part 1B) para 573 <https://www.ilo.org/wcmsp5/groups/public/---ed_norm/---relconf/documents/meetingdocument/wcms_543647.pdf>.

²⁶ ILO, Work for a brighter future – Global Commission on the future of work (2019) 12.

²⁷ ILC, 108th Session (2019) Report IV, ILO Centenary outcome document 7. There was also an earlier proposal made by the EU member States in the context of a Conference discussion in 2017 for ‘the ILO to explore the feasibility to include occupational safety and health in fundamental principles and rights at work as this was an issue referring to the life, health and dignity of workers, and would be completely in line with the spirit of the Declaration’; see ILC, 106th Session (2017) Provisional Record 11-2(Rev.) para 331.

²⁸ ILC, 108th Session (2019) Provisional Record 6B(Rev.), Report of the Committee of the Whole, para 986. Regarding process, it was explained that nothing prevented the Conference from recognizing a new fundamental principle and right at work through the Centenary Declaration as this would involve the same sovereign organ, the same procedure and the same constitutional logic as that of the 1998 Declaration, ibid, para 1011. Nonetheless, many governments felt that more certainty was needed, especially as regards the selection of occupational safety and health Conventions to be recognized as fundamental, before a formal amendment of the 1998 Declaration could be undertaken.

²⁹ ILC, 108th Session (2019) Provisional Record 6B(Rev.), Report of the Committee of the Whole, paras 1327, 1330.

³⁰ GB.341/INS/6, para 45 and GB.341/INS/PV, para 195.

³¹ GB.343/INS/PV, paras 177–215 and GB.344/INS/PV, paras 200–242.

³² The dilemma arose from the fact that the drafters of the Centenary Declaration made general reference to the inclusion of occupational safety and health in the ILO's framework of fundamental principles and rights at work without specifying the 1998 Declaration, which, theoretically speaking, left room for different options. It soon became clear, however, that the expression ‘the ILO's framework of fundamental principles and rights at work’ could only be meaningfully perceived as referring to the 1998 Declaration. A proposal that certain key occupational safety and health Conventions could be granted the status of ‘priority’ rather than fundamental Conventions found no support and was not further pursued.

³³ The Preamble of the ILO Constitution notes that ‘the protection of the worker against sickness, disease and injury arising out his employment’ is among the improvements that are ‘urgently required’ while the Declaration of Philadelphia identifies a ‘solemn obligation’ of the Organization to further programmes that will achieve ‘adequate protection for the life and health of workers in all occupations’ <http://www.ilo.ch/dyn/normlex/en/f?p=1000:62:0::NO:62:P62_LIST_ENTRIE_ID:2453907:NO>.

³⁴ ILC, 86th Session (1998) Report VII, Consideration of a possible Declaration of principles of the International Labour Organization concerning fundamental rights and its appropriate follow-up mechanism 10. Likewise, the Office report submitted to the Conference in 2008 for the purposes of considering the ILO Declaration on Social Justice for a Fair Globalization noted: ‘while it would seek to underscore the importance of the principles enshrined in the Constitution and Declaration of Philadelphia, a Declaration would not establish, nor be capable of establishing, new or more detailed obligations, either directly or indirectly. Its very nature, which is in essence declaratory, is incapable of imposing or modifying legal obligations under the Constitution or ratified Conventions’; see ILC, 97th Session (2008) Report VI, Strengthening the ILO's capacity: Continuation of the discussion and possible consideration of an authoritative document, para 68.

³⁵ Maupain (n 7) 444.

³⁶ There is considerable diversity in labour clauses varying from binding obligations to soft commitments and non-committal policy statements. For more on the scope and content of labour provisions in free trade agreements, see Araujo, B Melo, ‘Labour Provisions in EU and US Mega-Regional Trade Agreements: Rhetoric and Reality (2018) 67 ICLQ 233Google Scholar; Harrison, J, ‘The Labour Rights Agenda in Free Trade Agreements’ (2019) 20 Journal of World Investment & Trade 705CrossRefGoogle Scholar. See also ILO, Social Dimensions of Free Trade Agreements (2015); ILO, Handbook on Assessment of Labour Provisions in Trade and Investment Arrangements (2017); ILO, Labour Provisions in G7 Trade Agreements: A Comparative Perspective (2019).

³⁷ Among the numerous academic writings on evolutive interpretation, see Arato, J, ‘Subsequent Practice and Evolutive Interpretation: Techniques of Treaty Interpretation over Time and Their Diverse Consequences’ (2010) 9 The Law and Practice of International Courts and Tribunals 443CrossRefGoogle Scholar; Dawidowicz, M, ‘The Effect of the Passage of Time on the Interpretation of Treaties: Some Reflections on Cost Rica v. Nicaragua’ (2011) 24 LJIL 201CrossRefGoogle Scholar.

³⁸ The case of labour provisions using exclusively generic terms such as ‘core labour standards’ remains exceptional. For instance, the EU-South Africa agreement of 2000 refers to ‘basic social rights’ or ‘pertinent standards of the ILO’ and the EU-Chile agreement of 2003 refers to ‘fundamental social rights’. In contrast, most free trade agreements include a specific reference to the 1998 Declaration and/or name the four fundamental principles; see, for instance, EU-Japan Economic Partnership Agreement, art 16.3; EFTA-Georgia Free Trade Agreement, art 10.5; Republic of Korea-Colombia Free Trade Agreement, art 16.6; Australia-Republic of Korea, art 17.1; Republic of Korea-Turkey Free Trade Area Framework Agreement, art 5.4. It should also be noted that many free trade agreements list occupational safety and health alongside the current fundamental principles and rights as part of ‘internationally recognized labour rights’ that need to be recognized and protected by domestic law; see, for instance, Canada-Ukraine Free Trade Agreement, art 13.3; US-Singapore Free Trade Agreement, art 17.7.

³⁹ International Law Commission, Draft Conclusions on Subsequent Agreements and Subsequent Practice in relation to the Interpretation of Treaties, with Commentaries, UNYBILC, vol II, (2018) Part Two, 58–63.

⁴⁰ It should be recalled that at the time of the Conference discussion of the 1998 Declaration, a proposal to include a similar saving clause on trade that ultimately became operative paragraph 5, gave rise to heated debate and resulted in the adoption of the Declaration being put to a vote; see ILC, 86th Session (1998) Record of Proceedings, 20/70–20/111.

⁴¹ ILC, 110th Session (2022) Report VII, Inclusion of safe and healthy working conditions in the ILO's framework of fundamental principles and rights at work 14.

⁴² The complementarity of these Conventions has been acknowledged by the ILO Committee of Experts; see for instance ILO standards on occupational safety and health, ILC, 98th Session (2009) Report III (Part 1B), paras 294–295, and Working together to promote a safe and healthy working environment, ILC, 106th Session (2017) Report III (Part 1B) para 37. To date, Conventions Nos 155 and 187 have received 75 and 58 ratifications respectively but their upgrading to fundamental status is expected to increase these figures significantly.

⁴³ This would require the formal adoption of a Convention and a Recommendation partially revising the instruments concerned. In practical terms, by ratifying the revising Convention, a member State that had previously ratified any of the eight instruments concerned would recognize that it would continue to be bound by that instrument in its amended version, whereas a member State that ratified any of those instruments after the entry into force of the revising Convention would be deemed to have ratified it as amended by that Convention. A draft revising Convention and Recommendation as well as other consequential amendments are now before the Governing Body for consideration; see GB.346/INS/3/3.

⁴⁴ See, for instance, Alston (n 7) 485; E de Wet ‘Governance through Promotion and Persuasion: The 1998 ILO Declaration on Fundamental Principles and Rights at Work’ (2008) 9 German Law Journal, 1438.

⁴⁵ Maupain (n 7) 448.

⁴⁶ ILC, 86th Session (1998) Provisional Record 20, para 355.

⁴⁷ ILC, 86th Session (1998) Report VII, Consideration of a possible Declaration of principles of the International Labour Organization concerning fundamental rights and its appropriate follow-up mechanism 20. As one government had observed, including a safeguard clause in the Declaration was ‘tantamount to building a dam in the desert’, while the Workers’ group considered the clause to be totally inappropriate and wondered how a safeguard clause in a non-binding document could be seen to protect anyone in any event; ILC, 86th Session (1998) Record of Proceedings, 20/88–20/89 and 20/110.

⁴⁸ ILC, 110th Session (2022) Report VII, Inclusion of safe and healthy working conditions in the ILO's framework of fundamental principles and rights at work, para 32. See also ILC, 110th Session (2022) Record of Proceedings, Third report of the General Affairs Committee Summary of proceedings concerning the draft resolution to amend the ILO Declaration on Fundamental Principles and Rights at Work (1998) para 233.

⁴⁹ In the words of the Court, ‘where the parties have used generic terms in a treaty, the parties necessarily having been aware that the meaning of the terms was likely to evolve over time, and where the treaty has been entered into for a very long period or is of continuing duration, the parties must be presumed, as a general rule, to have intended those terms to have an evolving meaning’; see Dispute regarding Navigational and Related Rights (Costa Rica v Nicaragua), Judgment of 13 July 2009, ICJ Rep 2009, para 66. Other loci classici of evolutive interpretation in the jurisprudence of the ICJ include Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council resolution 276 (1970), Advisory Opinion of 21 June 1971, ICJ Rep 1971, para 53; Aegean Continental Shelf Case, Judgment of 19 December 1978, ICJ Rep 1978, para 80; Case concerning Pulp Mills on the River Uruguay, Judgment of 20 April 2010, ICJ Rep 2010, para 204.

⁵⁰ GB.344/INS//6(Add.1), Issues relating to the inclusion of safe and healthy working conditions in the ILO's framework of fundamental principles and rights at work, para 175.

⁵¹ ibid, para 180.

⁵² ibid, para 182. For instance, beneficiaries under the European Union's GSP+ arrangement established by EU Regulation No. 978/2012 are required, inter alia, to have ratified 27 international conventions, including the eight ILO fundamental Conventions listed in the Regulation.

⁵³ Apparently based on the questionable premise that the new fundamental right would have been automatically transposed in trade agreements and preference programs had a savings clause not been inserted, one commentator argued that ‘ILO members decided not to give occupational safety and health instruments parity with the ILO's other fundamental rights [since the saving clause] relegates the enforcement of occupational safety and health to the ILO's enforcement mechanisms while subjecting commitments to the ILO's other fundamental rights to trade enforcement, including potential trade sanctions [and] the result is a new, fragmented regime of fundamental labour rights’; see D LeClercq, ‘Occupational Safety and Health as a New Fundamental Labour Right: Opportunities and Challenges’ <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4161060>.

⁵⁴ Most free trade agreements provide for dispute resolution through diplomatic means, recommendations issued by advisory groups or experts, or binding arbitral award. A certain number of free trade agreements exclude labour clauses, wholly or partially, from the scope of application of dispute settlement mechanisms; see Chase, C et al. ‘Mapping of Dispute Settlement Mechanisms in Regional Trade Agreements – Innovative or Variations on a Theme?’ in Acharya, R (ed), Regional Trade Agreements and the Multilateral System (CUP 2016) 608Google Scholar.

⁵⁵ In the words of one commentator, ‘when other institutions become involved with enforcing ILO standards, the ILO to some extent loses ownership. If such “outsourcing” is not done sensibly, the ILO's governance model may suffer’; Bronckers, M and Gruni, G, ‘Taking the Enforcement of Labour Standards in the EU's Free Trade Agreements Seriously’ (2019) 56 CMLRev 1591Google Scholar.

⁵⁶ Panel of Experts Proceeding Constituted under Article 13.15 of the EU-Korea Free Trade Agreement, Report of the Panel of Experts, 20 January 2021, paras 128–133.

⁵⁷ ibid, paras 107, 121–122.

⁵⁸ CAFTA-DR, Arbitral panel established pursuant to chapter twenty, In the Matter of Guatemala – Issues in relation to the obligations under article 16.2.1(a) of the CAFTA-DR, Final report of the panel, 14 June 2017, para 427.

⁵⁹ <https://www.ilo.org/wcmsp5/groups/public/—ed_norm/—declaration/documents/publication/wcms_467653.pdf>.