Making Rights Fundamental: The 2022 Amendment to the 1998 ILO Declaration on Fundamental Principles and Rights at Work and its Radical Implications
What makes a right fundamental, and how does it achieve this status? This article critically examines these questions through a detailed analysis of the 2022 amendment to the 1998 ILO Declaration, which recognised the right to a safe and healthy working environment as a fifth fundamental right. This inquiry is framed by the concepts of fundamentalisation (the process through which a right gains such status) and fundamentality (the normative status of a right). It makes three key contributions. First, it employs the 2022 amendment as a case study of fundamentalisation, analysing how internal and external actors and factors, including COVID-19, shaped the outcome. Second, it identifies the predominance of constitutional-textual and rights-based sets of justifications of the amendment while observing that its formulation was informed primarily by ILO Conventions. Third, it traces the emergence of a flexible ‘amendment formula’, potentially lowering the bar for future rights to be added. R
What makes a right fundamental, and how does it achieve this status? This article critically examines these questions through a detailed analysis of the 2022 amendment to the 1998 ILO Declaration, which recognised the right to a safe and healthy working environment as a fifth fundamental right. This inquiry is framed by the concepts of fundamentalisation (the process through which a right gains such status) and fundamentality (the normative status of a right). It makes three key contributions. First, it employs the 2022 amendment as a case study of fundamentalisation, analysing how internal and external actors and factors, including COVID-19, shaped the outcome. Second, it identifies the predominance of constitutional-textual and rights-based sets of justifications of the amendment while observing that its formulation was informed primarily by ILO Conventions. Third, it traces the emergence of a flexible ‘amendment formula’, potentially lowering the bar for future rights to be added. Revisiting the earlier debate between Alston, Langille and Maupain on fundamentality in the Declaration, the article argues that the 2022 amendment makes accounts of fundamental rights under the 1998 Declaration as ‘procedural’ or ‘enabling’ untenable. Hence the implications of the amendment may be more radical than currently appreciated.
What makes a right fundamental, and how does it achieve this status? This article critically examines these questions through a detailed analysis of the 2022 amendment to the 1998 ILO Declaration, which recognised the right to a safe and healthy working environment as a fifth fundamental right. This inquiry is framed by the concepts of fundamentalisation (the process through which a right gains such status) and fundamentality (the normative status of a right). It makes three key contributions. First, it employs the 2022 amendment as a case study of fundamentalisation, analysing how internal and external actors and factors, including COVID-19, shaped the outcome. Second, it identifies the predominance of constitutional-textual and rights-based sets of justifications of the amendment while observing that its formulation was informed primarily by ILO Conventions. Third, it traces the emergence of a flexible ‘amendment formula’, potentially lowering the bar for future rights to be added. Revisiting the earlier debate between Alston, Langille and Maupain on fundamentality in the Declaration, the article argues that the 2022 amendment makes accounts of fundamental rights under the 1998 Declaration as ‘procedural’ or ‘enabling’ untenable. Hence the implications of the amendment may be more radical than currently appreciated.
Executive Summary
This article provides a critical analysis of the 2022 amendment to the 1998 ILO Declaration, which recognized the right to a safe and healthy working environment as a fifth fundamental right. Through a case study of fundamentalisation, the article examines the internal and external factors that shaped the outcome, including the COVID-19 pandemic. The analysis reveals the predominance of constitutional-textual and rights-based justifications, as well as the influence of ILO Conventions. The article's findings have significant implications for understanding the fundamentality of rights and the process of fundamentalisation. The author argues that the 2022 amendment makes previous accounts of fundamental rights as 'procedural' or 'enabling' untenable, potentially lowering the bar for future rights to be added. This article contributes to the ongoing debate on fundamentality in the Declaration and highlights the need for a more nuanced understanding of this concept.
Key Points
- ▸ The 2022 amendment to the 1998 ILO Declaration recognized the right to a safe and healthy working environment as a fifth fundamental right.
- ▸ The amendment was shaped by internal and external factors, including the COVID-19 pandemic.
- ▸ Constitutional-textual and rights-based justifications dominated the amendment process.
- ▸ ILO Conventions played a significant role in shaping the amendment.
Merits
Strength in methodology
The article employs a case study approach to examine the fundamentalisation process, providing a detailed and nuanced analysis of the internal and external factors that shaped the outcome.
In-depth analysis of ILO Conventions
The article provides a thorough examination of the role of ILO Conventions in shaping the amendment, highlighting their significance in informing the formulation of the right to a safe and healthy working environment.
Contribution to the fundamentality debate
The article revisits the earlier debate between Alston, Langille, and Maupain on fundamentality in the Declaration, providing new insights and challenging previous accounts of fundamental rights as 'procedural' or 'enabling'.
Demerits
Limitation in scope
The article's focus on the 2022 amendment to the 1998 ILO Declaration may limit its generalizability to other contexts and jurisdictions.
Potential for oversimplification
The article's analysis may oversimplify the complex factors that contributed to the amendment, potentially neglecting the nuances and complexities of the fundamentalisation process.
Expert Commentary
This article provides a significant contribution to the ongoing debate on fundamentality in the 1998 ILO Declaration. The author's analysis of the 2022 amendment highlights the complex interplay of internal and external factors that shaped the outcome, including the COVID-19 pandemic. The article's findings also underscore the importance of ILO Conventions in informing the formulation of the right to a safe and healthy working environment. However, the article's limitations in scope and potential for oversimplification should be considered in evaluating its contributions. Overall, the article's insights have significant implications for understanding the fundamentality of rights and the process of fundamentalisation, making it a valuable addition to the literature on human rights and labor law.
Recommendations
- ✓ Future research should explore the application of the 2022 amendment in different contexts and jurisdictions to better understand its practical and policy implications.
- ✓ The ILO should continue to play a key role in shaping international labor standards and informing the formulation of fundamental rights, including the right to a safe and healthy working environment.
