Ilise Levy Feitshans*
* This article is based on a presentation to the Columbia University Seminars on Labour and Employment, sponsored by the Center for the Study of Human Rights, Columbia University, February 13, 1995.
“The enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being … . The achievement of any State in the promotion and protection of health is of value to all.” Preamble to the Constitution of the World Health Organization (WHO).The concept of universality is a fundamental tenet of international law. This concept is exemplified by the issues raised in occupational safety and health because no work is immune from the dangers of occupational hazards. (Examples of the literature describing occupational safety and health hazards from different types of work include: Corn 1992; Corn 1985; Faden 1985; Feitshans 1993; Nightingale 1990; Rothstein 1984; Stellman and Daum 1973; Weeks, Levy and Wagner 1991.)
The universal threat to the fundamental human rights of life and security of person posed by unhealthy working conditions has been characterized in international human rights instruments and ILO standards. According to the Universal Declaration of Human Rights, proclaimed in 1948 (United Nations General Assembly 1994) Article 3, “Everyone has the right to life, liberty and security of person”. The Preamble to the ILO Constitution considers “the protection of the worker against sickness, disease and injury arising out of his employment” as a precondition to “Universal and lasting peace”. Therefore, improvement of the conditions of living and work is a fundamental component of the ILO’s view of universal rights.
As described in a recent exhibit at the UN Secretariat in New York, United Nations staff have been tortured, imprisoned, kidnapped and even killed by terrorists. United Nations Commission on Human Rights, (UNCHR) Resolution 1990/31 pays attention to these hazards, underscoring the need to implement existing mechanisms for compliance with international human rights to occupational safety and health. For these professionals, their role as a conduit for life-saving communication about other people, and their commitment to their employer’s principled work, placed them at equal if not greater risk to other workers, without the benefit of recognizing occupational safety and health concerns when formulating their own work agenda.
All workers share the right to safe and healthful working conditions, as articulated in international human rights instruments, regardless of whether they be confronted in fieldwork, in traditional offices or workplace settings, or as “telecommuters”. This view is reflected in international human rights instruments regarding occupational safety and health, codified in the United Nations Charter in 1945 (United Nations 1994) and the Universal Declaration of Human Rights, amplified in major international covenants on human rights (e.g., the International Covenant on Economic, Social and Cultural Rights 1966), described in major human rights treaties, such as the International Convention on the Elimination of All Discrimination Against Women passed in 1979, and embodied in the work of the ILO and the WHO as well as in regional agreements (see below).
Defining occupational health for the purposes of understanding the magnitude of the governmental and employers’ responsibility under international law is complex; the best statement is found in the Preamble of the Constitution of the WHO: “Health is a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity.” The term “well-being” is extremely important, because it is consistently used in human rights instruments and international agreements pertaining to health.
Equally important is the construction of the definition itself: by its very terms, this definition reveals the consensus that health is a composite of the interaction of several complex factors: physical, mental and social well-being, all of these together being measured by an adequate standard of well-being that is greater than “merely the absence of disease or infirmity”. This term, by its very nature, is not tied to specific standards of health, but is amenable to interpretation and application in a flexible framework for compliance.
Thus, the legal foundation for implementing international human rights to occupational health protections in the workplace from the perspective of security of the person as a facet of protecting the human right to health constitutes an important corpus of international labour standards. The question therefore remains whether the right of individuals to occupational safety and health falls under the rubric of international human rights, and if so, which mechanisms can be deployed to assure adequate occupational safety and health. Further, developing new methods for resolving compliance issues will be the major task for ensuring the application of human rights protection in the next century.
Overview of International Rights to Protection for Occupational Safety and Health
Law of human rights reflected in the United Nations Charter
Protection of the right to health is among the fundamental constitutional principles of many nations. In addition, an international consensus exists regarding the importance of providing safe and healthful employment, which is reflected in many international human rights instruments, echoing legal concepts from many nations, including national or local legislation or constitutionally guaranteed health protections. Laws requiring inspections to prevent occupational accidents were passed in Belgium in 1810, France in 1841 and Germany in 1839 (followed by medical examination requirements in 1845).The issue of “entitlements” to health care and health protections was raised in the analysis of the potential for US ratification of the International Covenant on Economic, Social and Cultural Rights (e.g., Grad and Feitshans 1992). Broader questions regarding the human right to health protections have been addressed, although not fully resolved, in the United Nations Charter; in the Universal Declaration of Human Rights; in Articles 7 and 12 of the International Covenant on Economic and Social Rights; and in subsequent standards by the ILO and the WHO, and other UN-based international organizations.
Under the United Nations Charter the contracting parties state their aspiration to “promote” economic and social advancement and “better standards of life”, including the promotion of human rights protections, in Article 13. Using language that recalls the ILO’s Constitutional mandate under the Treaty of Versailles, Article 55 specifically notes the linkage between the “creation of conditions of stability and well-being” for peace and “higher standards of living” and “universal respect for, and observance of, human rights and fundamental freedoms”. The debate regarding the interpretation of these terms, and whether they encompassed all or only a fraction of recognized constitutional rights of UN Member States, was unduly politicized throughout the Cold War Era.
This handful of basic documents share one weakness, however-they offer vague descriptions of protections for life, security of the person and economically-based rights to employment without explicitly mentioning occupational safety and health. Each of these documents employs human rights rhetoric ensuring “adequate” health and related basic human rights to health, but it is difficult to patch together a consensus regarding the quality of care or “better standards of life” for implementing protections.
Occupational safety and health protections under the Universal Declaration of Human Rights (UDHR)
Security of the person, as discussed in UDHR Article 3
Although there is no case-law interpreting this term, Article 3 of the UDHR ensures each person’s right to life. This includes occupational health hazards and the effects of occupational accidents and work-related diseases.
The cluster of employment rights in UDHR Articles 23, 24 and 25
There is a small but significant cluster of rights relating to employment and “favourable conditions of work” listed in the Universal Declaration of Human Rights. The principles articulated in three consecutive articles of the UDHR are an outgrowth of history, reflected in older laws. One problem exists from the standpoint of occupational health analysis: the UDHR is a very important, widely-accepted document but it does not specifically address the issues of occupational safety and health. Rather, references to issues surrounding security of person, quality of conditions of work and quality of life allow for an inferencethat occupational safety and health protections fall under UDHR’s rubric. For example, while the right to work in “favourable conditions of work” is not actually defined, occupational health and safety hazards certainly impact upon the achievement of such social values. Also, the UDHR requires that human rights protections at the worksite ensure the preservation of “human dignity”, which has implications not only for the quality of life, but for the implementation of programmes and strategies that prevent degrading working conditions. The UDHR therefore provides a vague but valuable blueprint for international human rights activity surrounding issues of occupational safety and health.
International Covenant on Economic, Social and Cultural Rights (ICESCR)
The meaning and enforcement of these rights are amplified by the principles enumerated in the International Covenant on Economic, Social and Cultural Rights (ICESCR), Part III, Article 6 and 7b, which assures all workers the right to “Safe and healthy working conditions”. Article 7 provides greater insight to the meaning of the right to just and favourable conditions of work. “Favourable conditions of work” includes wages and hours of work (ICESCR Article 7.1 (a) (i)) as well as “Safe and healthy working conditions” (Summers 1992). The use of this phrase within the context of favourable conditions of work therefore lends greater meaning to the UDHR’s protections and demonstrates the clear nexus between other human rights principles and protection of occupational safety and health, as further amplified in ICESCR Article 12.
Promotion of industrial hygiene under Article 12 of the International Covenant on Economic, Social and Cultural Rights
Of all the UN-based international human rights documents, ICESCR Article 12 most clearly and deliberately addresses health, referring to the explicit right to health protection through “industrial hygiene” and protection against “occupational disease”. Further, Article 12’s discussion regarding improved industrial hygiene is consistent with Article 7(b) of the ICESCR regarding safe and healthful working conditions. Yet, even this express guarantee of occupational safety and health protection does not offer detailed exposition of the meaning of these rights, nor does it list the possible approaches that could be applied for achieving the ICESCR’s goals. Consistent with the principles articulated in many other international human rights documents, Article 12 employs deliberate language that recalls the WHO’s Constitutional notions of health. Without question, Article 12 embraces the notion that health concerns and attention to individual well-being include occupational safety and health. Article 12 reads:
The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health … The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for: …
(b) The improvement of all aspects of environmental and industrial hygiene;
(c) The prevention, treatment and control of epidemic, endemic, occupational and other diseases.
Significantly, Article 12 also pays direct attention to the impact of occupational disease on health, thereby accepting and giving validity to a sometimes-controversial area of occupational medicine as worthy of human rights protection. Under Article 12 the States Parties recognize the right to physical and mental health proclaimed indirectly in Article 25 of the UDHR, in the American Declaration, the European Social Charter, and the revised Organization of American States (OAS) Charter (see below). Additionally, in Paragraph 2, they commit themselves to a minimum of four “steps” to be taken to achieve the “full realization” of this right.
It should be noted that Article 12 does not define “health”, but follows the definition stated in the WHO Constitution. According to Grad and Feitshans (1992), Paragraph 1 of the Draft Covenant prepared under the auspices of the Commission on Human Rights, however, did define the term by applying the definition in the WHO Constitution: “a state of complete physical, mental and social well-being, and not merely the absence of disease or infirmity.” Like the ILO with respect to Articles 6-11 of the ICESCR, WHO provided technical help in drafting Article 12. The Third Committee did not accept WHO’s efforts to include a definition, arguing that such detail would be out of place in a legal text, that no other definitions were included in other articles of the Covenant, and that the proposed definition was incomplete.
The words “environmental and industrial hygiene” appear without the benefit of interpretive information in the text of the preparatory records. Citing other resolutions of the 1979 World Health Assembly, the report also expresses concern for “the uncontrolled introduction of some industrial and agricultural process(es) with physical, chemical, biological and psychosocial hazards” and notes that the Assembly further urged Member States “to develop and strengthen occupational health institutions and to provide measures for preventing hazards in work places” (Grad and Feitshans 1992). Repeating a theme expressed in many prior international human rights documents, “The right of everyone to the enjoyment of the highest attainable standard of physical and mental health” is a goal clearly shared by employers, workers and governments of many nations-a goal that unfortunately remains as elusive as it is universal.
International Convention on the Elimination of All Forms of Discrimination Against Women
The International Convention on the Elimination of All Forms of Discrimination Against Women (1979), Part III, Article 11(a), states that “The right to work is an inalienable right of all human beings”, and Article 11(f) lays down “The right of protection of health and to safety in working conditions, including the safeguarding of the function of reproduction”.
Article 11.2(a) prohibits “sanctions, dismissal on the grounds of maternity leave”, a subject of profound contemporary and historical conflict and violation of international human rights, under many legal systems of UN Member States. For pregnant women and other people who work, these important issues remain unresolved in the jurisprudence of pregnancy. Thus, Article 11.2 is unquestionably geared to overturning generations of ingrained institutional discrimination under law, which was an outgrowth of mistaken values regarding women’s ability during pregnancy or while raising a family. Issues from the perspective of the jurisprudence of pregnancy include the dichotomy between protectionism and paternalism which has been played out in litigation throughout the twentieth century. (US Supreme Court cases in this area range from a concern for limiting the hours of women’s work because of their need to be home raising families, upheld in Mullerv. the State of Oregon,208 U.S. 412 (1908), to the decision banning forced sterilizations of women who are exposed to reproductive health hazards in the workplace among other things in UAWv. Johnson Controls,499 U.S. 187 (1991) (Feitshans 1994). The imprint of this dichotomy on the conceptual matrix of this Convention is reflected in Article 11.2(d), but is not clearly resolved since “special protections”, which are often necessary to prevent the disproportionately dangerous effects of working conditions, are often inappropriately viewed as beneficial.
Under the terms of this Convention, Article 11.2(d) endeavours “To provide special protection to women during pregnancy in types of work proved to be harmful to them”. Many facets of this provision are unclear, such as: what is meant by special protection; are effects limited to maternal harm during pregnancy; and if not, what are the implications for foetal protection? It is unclear from this Convention, however, what the standard of proof is to make a “special protection” necessary or acceptable, and also what is the scope of an acceptable protective mechanism.
Article 11.3 limits the reach of “special protections”, by clearly stating that implementation of occupational safety and health protections must be based on scientific evidence, rather than social values. Article 11.3 states: “Protective legislation relating to matters covered in this article shall be reviewed periodically in the light of scientific and technological knowledge and shall be revised, repealed or extended as necessary.” Methods for oversight and appropriate risk assessment also need to be spelled out, in order to ensure that improper exclusionary policies, such as forced sterilizations to retain or obtain employment, will be viewed as constituting gross violations of international human rights, and therefore will not be given credence under this Convention. These thorny issues have been litigated and will raise increasingly perplexing questions regarding implementation and compliance with the Convention’s principles as occupational epidemiology uncovers more reproductive health hazards and the need for effective preventive measures.
Additionally, the Convention’s drafters followed the pattern set by the ILO, describing a detailed reporting mechanism for oversight and compliance, in the form of mandatory regular reporting before the Convention’s Human Rights Commission. Under the Commission’s procedures, set forth in Article 18, State Parties to the Convention undertake to “report on the legislative, judicial, administrative or other measures which they have adopted to give effect to (these) provisions” within one year and at least once every four years, and may indicate impediments to implementation. The requisite development of standards that are needed to determine the necessary preventive strategies for reproductive health hazards in the workplace, may be addressed through this mechanism for the exchange of vital compliance information.
Regional Treaties and Declarations Regarding Human Rights
American Convention on Human Rights
The American Convention’s Preamble refers to economic and social rights including, in Article 3, the right to life. Yet the Convention does not specifically address health or working conditions as fundamental rights protected in other treaties. Significantly for the implementation of international human rights, however, this treaty provides a structure for a human rights commission and court by establishing the Inter-American Commission on Human Rights. The Commission’s powers include the procedures for requests for information by the Commission against governments who are believed to have violated human rights. It does not directly address occupational safety and health questions confronting people who work in the Inter-American system.
The African (Banjul) Charter on Human and Peoples’ Rights
The African (Banjul) Charter on Human and Peoples’ Rights, adopted June 27, 1981, provides an innovative perspective on established concepts of international human rights, as articulated in human rights instruments. As discussed by Alston (1984) from a theoretical standpoint without making specific reference to the African (Banjul) Charter itself, this instrument clearly represented a groundbreaking attempt to expand the realm of international human rights protections and make such protections available in a flexible framework for all people. Within its broad scope, the African (Banjul) Charter includes rights to a clean environment, political rights, and rights to sustainable aspects of development. Interestingly, and in stark contrast to the European Social Charter, the African (Banjul) Charter does not address protection of working conditions or occupational safety and health. In a manner that parallels the UDHR’s protection, the African (Banjul) Charter Article 4 prohibits human rights violations against “his life and integrity of his person”. Also consistent with UDHR Article 3, the African (Banjul) Charter Article 6 assures the security of person.
Following some of the language from the WHO Constitution which has become seminal to international human rights to health, Article 16 requires Parties to protect the “right to enjoy the best attainable state of physical and mental health”. Signatory Parties endeavour to “take the necessary measures to protect the health of their people and to ensure that they receive medical attention when they are sick”.
As in the case of many other international human rights instruments, the African (Banjul) Charter establishes a mechanism for oversight and compliance, in the form of a Human Rights Commission. States may request the examination of human rights violations by other States, assuming that exhaustion of remedies requirements have been met. These procedures are discussed in detail in Articles 30 through 59.
European Social Charter
In the European Social Charter promulgated in 1965, Part I(2) clearly states, “All workers have the right to just conditions of work”, and Part I(3) states, “All workers have the right to safe and healthy working conditions”. These rights are further described in Part II, Article 3, which offers a detailed discussion of “The Right to Safe and Healthy Working Conditions”, with a view to ensuring the effective exercise of the right to safe and healthy working conditions. Unlike other international human rights instruments, however, the European Social Charter also hints at the prospect of creating mechanisms for enforcement and other issues raised by implementation and compliance with international human rights norms within the plain meaning of the document itself. Article 3.2 requires Contracting Parties “to provide for the enforcement of such regulations by measures of supervisions”, and in Article 3.3 “to consult, as appropriate, employers’ and workers’ organizations on measures intended to improve upon industrial safety and health”. This impressive provision is amplified in its intensity by reporting mechanisms in Part IV, Articles 21 and 22, which allow for international scrutiny of implementation activities at regular intervals.
In addition to its remarkably comprehensive approach to international human rights protections, especially concerning occupational safety and health, it is also worth noting that the European Social Charter clearly and decisively sets forth the groundwork for future activities towards implementation and compliance with its provisions. For example, the reference to regulation and supervision in Article 3 is consistent with international monitoring and enforcement by Contracting Parties as well as NGOs, both in the European system and in their home jurisdictions. The concept of consultation between employers and workers, articulated in Article 3.3, goes beyond mirroring the tripartite structure of the ILO, foreshadowing as well the increasing acceptance of joint labour-management safety committees to achieve internal compliance with international human rights in employment.
As indicated in the Preamble to the ILO Constitution, “the protection of the worker against sickness, disease and injury arising out of his employment” is a precondition to “Universal and lasting peace”. Therefore, improvement of the conditions of living and work is a fundamental component of ILO Conventions and Recommendations. Johnston (1970) wrote, “The underlying principle is that certain basic human requirements should be removed from the sphere of international competition to secure certain minimum standards of strength and human dignity”. Although the ILO lacks the “universal authority … to exclude a non-complying employer … from the legitimate labour market”, Friedman (1969) envisions a stronger role for the ILO: “The day can be foreseen when the ILO laws and directives will attain such force, and the stigma of non-compliance will mean exclusion from an international labour market.”
The ILO has also fostered the creation of consistent standards for those safety problems which cannot be covered by Convention provisions without broaching ILO jurisdiction over sovereign nations. For example, ILO Codes of Practice regarding safety protections have served as the blueprint for occupational safety laws and regulations in such areas as dock work, transfer of technology to developing nations, civil engineering and heavy industries. These model codes, which are sometimes applied with minor modification as draft legislation, share the values expressed in several ILO Conventions pertaining to occupational safety and health (e.g., the Protection Against Accidents (Dockers) Convention (Revised), 1932 (No. 32); the Safety Provisions (Building) Convention, 1937 (No. 62); the Medical Examination of Young Persons (Industry) Convention, 1946 (No. 77) and the Medical Examination of Young Persons (Non-Industrial Occupations) Convention, 1946 (No. 78); the Guarding of Machinery Convention, 1963 (No. 119); the Hygiene (Commerce and Offices) Convention, 1964 (No. 120); the Occupational Safety and Health (Dock Work) Convention, 1979 (No. 152); and the Occupational Safety and Health Convention, 1981 (No. 155). The latter is considered in more detail below).
ILO Convention 155: Convention Concerning Occupational Safety and Health and the Working Environment, 1981, and its antecedents
Since its inception, the ILO has encouraged promotion of better working conditions. Early efforts focused upon accidents in particular, and legal remedies for workers’ compensation. This is evinced in the ILO’s early Conventions, such as: Convention 32, the Protection Against Accidents (Dockers) Convention (Revised), 1932; Convention 62, the Safety Provisions (Building) Convention, 1937 and in Conventions concerning medical examinations for workers and machine guards. By setting forth specific requirements for accident prevention, these Conventions served as a precedent for performance standards found in occupational safety regulations in many nations today. These Conventions reflect the constant theme that protection against occupational accidents is a right shared by all workers.
Consistent also with this heritage, Convention 155, Article 3(e) offers the definition of health, “in relation to work, indicates not merely the absence of disease or infirmity; it also includes the physical and mental elements affecting health which are directly related to safety and hygiene at work.” This definition is deceptively simple and comprehensive at the same time: it bespeaks the complex interaction between dangerous workplace exposures; individual lifestyle and environmental factors that impact upon the effects of working conditions (Mausner and Kramer 1985). In addition, this approach is multidimensional, because its concern for both physical and mental elements of health and well-being implicitly takes into account the effects of occupational stress and other mental problems.
But the heart of Convention 155 concerns the creation of effective national, regional and workplace mechanisms for implementation and compliance with other ILO standards. As adopted by the 67th Session of the International Labour Conference in 1981, Convention 155 fosters the creation, implementation and periodic evaluation of occupational safety and health standards among Member States of the ILO. For example, Article 4.1 states Convention 155’s goal of fostering the development of a “coherent national policy” concerning occupational safety and health protections. To this end, Convention 155 obligates ratifying Member States to promote research, statistical monitoring of hazardous exposures (such as medical surveillance measures, not unlike technical standards in Member States) and worker education and training. Convention 155 uses broad terminology to provide a regulatory framework. Consultation with representative organizations and employers is required before exemptions will be granted, and any exclusions of categories of workers requires reporting on efforts to achieve “any progress towards wider application” pursuant to Article 2.3. Convention 155 also fosters education for “representative organizations” and worker participation in the development and enforcement of occupational safety and health regulations internally and on regional, national and international levels.
ILO Conventions instituting workers’ compensation
The ILO is responsible for the successful drafting and adoption of several ILO Conventions pertaining to workers’ compensation (ILO 1996a.)
These include the Workmen’s Compensation (Agriculture) Convention, 1921 (No. 12); the Workmen’s Compensation (Accidents) Convention, 1925 (No. 17); the Workmen’s Compensation (Occupational Diseases) Convention, 1925 (No. 18); the Sickness Insurance (Industry) Convention, 1927 (No. 24); the Sickness Insurance (Agriculture) Convention, 1927 (No. 25); the Medical Care and Sickness Benefits Convention, 1969 (No. 130). Generally speaking, workers’ compensation statutes are common among ILO Member States. Such statutes represent an economically-based (rather than human rights-oriented) compromise: providing care and assistance to injured workers and replacing the uncertainties of litigation with a scheduled system of payment that does not examine the issue of fault and places a monetary limit on the recovery afforded to people who have been injured by occupational accidents or occupational disease. (One example in the United States is found in the Virginia Workmens’ Compensation Act Annotated (1982): voluntary acts that are related to requirements of the employment contract are entitled to compensation.) Delay, underreporting, low payments and legal disputes when obtaining coverage for medical care under these separate systems are common. Despite such practical limits upon their effectiveness, the “universality” of these protections in the United States and under international law indicates a societal will to provide monetary disincentives for dangerous work practices, and financial support for injured workers.
Due process and reporting mechanisms within the ILO
Alston views the ILO as an international model for procedural requirements, which, in his opinion, “legitimize the declaration of new norms” (1984). Such features of ILO procedures include: preparation of a preliminary survey of relevant laws among Member States, followed by its Governing Body’s decision whether to place the item on the agenda of the annual International Labour Conference (ILC), followed by a questionnaire from the ILO Secretariat to participating Member States. After the draft has been referred to a technical committee, a draft instrument is circulated to Member States and the appropriate worker and employer representatives; a revised draft instrument is then prepared and submitted to the technical committee, discussed by plenary and drafting committee, and adopted after voting by the ILC. This approach allows for maximum discussion and communication between regulated entities and their governing parties. For a detailed examination of ILO reporting mechanisms see “International Labour Organization” later in this chapter.
These procedures, initiated in 1926 at the inception of the Committee of Experts on the Application of Conventions and Recommendations, have continued vibrancy in the international system. For example, the ILO’s model forms the blueprint in the contemporary Convention on the Elimination of All Forms of Discrimination Against Women: Article 18 sets forth a mandatory reporting mechanism before an international Committee also described within the provisions of the Convention. Mandatory reports regarding activities towards implementation and compliance should be heard by the Committee at the end of the first year following ratification, then at least every four years. Additional reporting procedures for monitoring the application of ILO standards and Conventions include but are not limited to: direct contact missions (for an excellent description of the ILO’s mediation and conciliation role on “direct contact” missions, see Samson 1984); Commissions of Inquiry to investigate particular cases of egregious violations of ILO Conventions and Constitutional provisions; and regularly scheduled periodic oversight through reporting to Conference meetings and reporting to the Governing Body and the Administrative Tribunal. Reporting mechanisms are slow but invaluable; these constitute an important component of a much larger process of mobilizing world opinion towards positive change regarding labour issues.
Ruda (1994) notes that ILO Conventions 87 (Freedom of Association and Protection of the Right to Organize, 1948) and 98 (Right to Organize and Collective Bargaining, 1949) were written into the Gdansk agreements between the Polish government and the union Solidarity. “Neither the Committee of Experts nor the Conference’s Committee on the Application of Standards may impose sanctions of any kind, though their conclusions are sometimes regarded as political or moral sanctions.” This has been a constant frustration throughout the history of the Committee, even though its ability to influence certain governments under the appropriate circumstances is a point of pride.
World Health Organization
WHO’s Alma-Ata Declaration on Primary Care
In the so-called Alma-Ata Declaration (World Health Organization 1978), coming out of the International Conference on Primary Health Care, held by WHO/UNICEF in Alma-Ata, USSR, from 6 to 12 September 1978. WHO launched an international campaign widely known as “Health For All 2000” which reflects a concerted international effort to improve the quality of health and the rendering of health services, especially primary care but also including occupational safety and health, throughout the world. Even though occupational safety and health does not appear within the plain language of the Declaration it has been included in strategic programming, such that realization of basic health protections has also been fostered by disseminating information and developing programme strategies with the goal of achieving “Health for All 2000” under the auspices of the Declaration.
Consistent with the letter and the spirit of the WHO Constitution discussed above, the Alma-Ata Declaration calls for “urgent action by all governments, all health and development workers, and the world community to protect and promote the health of all people of the world”. Notably, Article 1 clearly reaffirms that “health … is a fundamental human right and that the attainment of the highest possible level of health is a most important worldwide social goal. … ” Article 3 says, “The promotion and protection of the health of the people is essential to sustained economic development and contributes to a better quality of life and to world peace.” In addition, the conference laid the groundwork for concrete programmatic strategies, to achieve these goals. Implications for occupational safety and health derived from the Alma-Ata implementation include the development of occupational health facilities as a part of both regional and international strategies. The Pan-American Health Organization (PAHO) provides one example of regional activities that follow WHO’s Plan of Action, “Health for All 2000: Strategies” (Pan-American Health Organization 1990) where occupational safety and health concerns are included in the development of training institutes and the development of health programmes.
WHO’s Beijing Declaration on Occupational Health For All, 1994
In October, 1994, the Second Meeting of the WHO Collaborating Centres in Occupational Health convened and signed the Declaration on Occupational Health For All. The Beijing Declaration is clearly rooted in the heritage of the WHO Alma-Ata Declaration on Primary Care, as well as many ILO instruments pertaining to occupational safety and health. Noting that 100 million workers are injured and 200,000 die each year in occupational accidents, and that 68 to 157 million new cases of occupational disease are attributed to hazardous exposures or workloads, the Beijing Declaration calls for “new strategies and programmes for occupational health throughout the world” and further asserts that occupational health programmes “are not a burden but have a positive and productive impact on the company and the national economy”, therefore linked to notions of sustainable development. The Declaration also calls for the development of infrastructure, including occupational health services with medical surveillance and health promotion, as well as for stronger linkage between occupational health programmes, other health activities, and the programmes and activities sponsored by the WHO.
ILO/WHO Joint Safety and Health Committee
WHO cooperates with the ILO under the auspices of the Joint ILO/WHO Committee on Occupational Health founded in 1946. One early project was the International Anti-Venereal Disease Commission of the Rhine, and in the 1950s, requests from Egypt and Iran were met by ILO and WHO expert consultants who provided technical assistance for comprehensive occupational health surveys.
The Committee has defined occupational safety and health as follows: “the promotion and maintenance of the highest degree of physical, mental and social well-being of all workers in all occupations; the prevention among workers of departures from health caused by their working conditions; the protection of workers in their employment from risks resulting from factors adverse to health; the placing and maintenance of the worker in an occupational environment adapted to his physiological and psychological equipment and, to summarize, the adaptation of work to man and of each man to his job”.
Summary of Law and Theory Regarding Human Rights to Health Protection in the Workplace
Since there are no expressly articulated mechanisms for enforcing occupational safety and health rights, it could be argued that there is no established jurisprudence of the right to protection for human life or health in the workplace except through unusual interpretations of leading human rights instruments, which are strained at best. For example, Article 3 of the United Nations’ UDHR expressly mentions the need to protect the right to life, liberty and security of the person without making reference to the environmental or workplace context in which such protections can or should prevail.
Additionally, the absence of criminal sanctions or penalties for human rights violations in general (other than gross violations of human rights, such as slavery, genocide, war crimes, apartheid) or any standard requiring international penalties for violations of personal security caused by occupational safety and health hazards, calls for the exploration of alternatives to traditional law enforcement if occupational safety and health protections are to be realized.
As described above, many international human rights instruments express the concept that occupational safety and health is a fundamental human right, especially insofar as individual human rights to life, well-being and security of the person are concerned. The assurance of these rights is also codified in a cluster of international instruments that do not traditionally fall within the rubric of human rights. Taken together, one can conclude that the human right to healthy workplaces is therefore an accepted norm of international law. At the same time, however, domestic laws of Member States share the same dilemma as is found in the international system: fragile protections of overall working conditions in general, and protections of workplace health in particular, raise complex issues that arise from the tension between prevention strategies, which target broad segments of a given population to reduce the spread of disease or the effects of specific dangers on the one hand, balanced against the popular sentiment that resists the temporary abrogation of certain individual rights to travel, engage in certain activities, or engage in commerce in order to protect the individual right to occupational health protections. It therefore remains unclear to what extent that cluster of rights to occupational safety and health may be enforceable on an international or state-by-state basis to provide practical amelioration of working conditions experienced by individuals. Can the promise of protection for these human rights be met within the context of new workplaces and the codified rules of the international system?
Codification of the jurisprudential notion of occupational safety and health protections therefore is found within the rubric of human rights. Monitoring and implementing these articulated protections, therefore, constitutes the first phase of the next century’s human rights concerns. Mindful of these questions, new approaches that can be employed to solve these problems are discussed below.
Overview of Implementation and Compliance Issues in the International System
Ever since the UN Charter was adopted, sceptics have questioned the viability of enforcing international public law, especially in areas concerning the prevention of gross violations of human rights. Preventing such harms under the international system is at least a two-part process, requiring (1) codification of principles, followed by (2) meaningful steps towards implementation and compliance. Typically, such theories assume a context of an organized society with traditional types of legal institutions and enforcement procedures to provide punishment, and deterrence for “bad actors” who refuse to comply with the system’s articulated goals and shared values. Achieving implementation and compliance for human rights in general, and for healthy workplaces in particular, is problematic and complex. Fifty years after the UN Charter was written, there exists a viable international system that works with some level of efficiency to codify norms into written standards; the development of compliance mechanisms for implementation, however, remains uncharted. Therefore the emerging vital questions must be explored: What are the alternative models which do not rely on coercion for enforcement in order to implement the maximum occupational safety and health protection? How can new, extra-legal incentives to compliance with international human rights protections for occupational safety and health be created?
Inherent limits upon the effectiveness of the international system impede the implementation of any set of principles or norms for occupational safety and health protection, so long as the international system remains without some underlying enforcement or positive incentive for compliance. The application of quantifiable measures is not the case in international occupational safety and health practice, however, using ILO Convention 162 Concerning Safety in the Use of Asbestos, 1986 as an example. Under Convention 162, Article 11.1 specifically bans the use of crocidolite. But Article 11.2 reverses this approach; there is no formalized enforcement mechanism for inspection leading to abatement of hazards or for imposing penalties, beyond the limited oversight provided by institutions for reporting. In addition, the actual standard for exposure limits to asbestos is not articulated in Convention 162.
Instead, Convention 162 leaves the appropriate standards to the competent authority in a given nation. Consequently, the very nature of reporting without enforcement or positive incentives for compliance by nations or employer-entities generates practical constraints on the implementation of human rights principles and laws (Henkin 1990). As Henkin notes, “International law is constantly apologizing for itself … to justify its very existence” because it has no government and no institutions of governance.
Even though the international system has a recognized ability to limit aggression between states, as evinced by diplomatic relations and other areas of compliance, there are few instances where the international system can enforce sanctions or penalties against so-called bad actors, as are commonly enforced under domestic laws. For this reason, the sound of frustrated pleas for the implementation of international human rights protections have echoed through the corridors of the United Nations and at international conferences involving NGOs. Without a schedule of enforcement -sanctions or fines or penalties-to generate punishment and deterrence, there is an immediate need to develop effective mechanisms for implementation and compliance with international human rights protections of occupational safety and health. Such approaches to “interactive” compliance are therefore ideally suited to fill this void, when this approach is taken in tandem with practical strategies for applying such positive incentives to improve working conditions throughout the international system (Feitshans 1993). Therefore, there is a clear demand for compliance mechanisms that will take the weak and undervalued reporting system to, in the words of K.T. Samson (former Chief, Application of Standards Branch of the International Labour Office), “a dimension beyond dialogue”.
Now that the international system has outgrown the need for codification of universal human rights norms as the primary focus for international activity, many have suggested that the time has come to turn international attention towards implementation and compliance with those norms. Leading commentary (Sigler and Murphy 1988), for example, has an unclearly articulated but important working assumption that competition between entities-be they employer corporations or UN Member States-can be used as a tool to achieve effective occupational safety and health protections, if that competition is fuelled by positive incentives instead of the traditional punishment and deterrence model. “We are moving more toward getting organizations to control and police themselves,” says Joseph Murphy, a lawyer and co-editor of Corporate Conduct Quarterly, a newsletter on compliance and ethics.
The first half-century of UN activity brought codification of international human rights norms regarding the right to a healthy workplace in several key international human rights instruments. These international instruments have implicitly limited effectiveness, however, because other than administrative monitoring, they lack enforcement and deterrence mechanisms to ensure their implementation. There has been marked frustration with these limitations upon the effectiveness of the international system, despite an impressive accumulation of international documents and reports before many UN organs, because these efforts offer little oversight or monitoring beyond reporting. The treaties and conventions discussed in this paper enforcing or protecting health rights, share in this frustration, despite important strides that have been achieved through diligent use of reporting mechanisms.
The important concepts found in international human rights instruments are based upon the philosophy that work-related illnesses are an avoidable aspect of industrialization and also reflect a poorly articulated international consensus that people should not be killed or seriously injured for their work. Designed to protect the human right to safety in the workplace, such instruments and their underlying principles are not standards for perfection. These instruments express international human rights to occupational safety and health but should not, therefore, be viewed as the maximum level to ensure an improved quality of life for people who work; nor should they be viewed as the maximum achievable level from the perspective of improvements that can be fostered through competition for positive incentives. Rather, these standards are intended to serve as “minimum” levels of international human rights protection in the workplace, ameliorating the quality of life for all people who work.
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