Felice Morgenstern*

* This article is adapted from Deterrence and Compensation by Felice Morgenstern (ILO 1982).

Duties in Respect of Safety and Health

Liability and responsibility in law have two aspects: one is the duty to do, or not to do, something; the other is the obligation to answer for what has been done, or not done. Any examination of the manner in which different categories of person may be made answerable at the national level for causes of occupational accidents or diseases should be preceded by a summary of the duties laid upon them with a view to the prevention of such accidents and diseases. These duties are often expressly laid down in international standards, or national laws or regulations but may also be defined by case-law. Questions have been raised as to the appropriateness of determining, in (civil) legal proceedings subsequent to injury, what the conduct of those concerned should have been beforehand. But it is also clear that some of the decisions in question, and the publicity surrounding them, have acted as a spur in the field of prevention.

Public bodies

Public bodies (whether government departments, special safety and health executives or other, autonomous bodies) play a large part in setting the framework within which liability and responsibility arise, by formulating rules, both general and particular, regarding the duties of various categories of persons, as well as by participating in their enforcement.

General rules regarding occupational safety and health, and rules regarding safety and health in particular industries or in respect of particular hazards, may be laid down by such means as laws or regulations, codes of practice and technical standards approved by public bodies. A number of international labour Conventions require this to be done as regards the entire subject-matter of the Convention; others call for specific prohibitions, criteria or exposure limits to be established. National legislation, whether in the form of labour codes or specific laws on occupational safety and health, often further provides for detailed standards or regulations to be laid down by public bodies in mandatory form or approved as guidelines; normally, the bodies concerned enjoy considerable discretion regarding the areas in which rules are to be established and their content. In the context of this article, it may be of importance for such rules to specify the persons or bodies on whom the obligation to ensure compliance with their terms rests. A number of international labour Conventions call for this to be done; for instance, the ILO Occupational Cancer Convention, 1974 (No. 139).

Failure to observe provisions of non-mandatory rules such as codes of practice does not in itself provide a ground for civil or criminal proceedings. At the same time, such failure may be taken into account in proceedings regarding non-compliance with a more general, mandatory requirement, as showing that not all necessary care for its fulfilment has been taken.

The absence of general rules, or the failure of such rules to reflect up-to-date knowledge, does not necessarily release employers, manufacturers and others concerned from all liability and responsibility: some courts have taken the view that employers cannot shelter behind the inaction of public bodies. Thus, in 1971, the English High Court of Justice found, in a claim for damages for a severe form of decompression sickness (bone necrosis), that at the time when the injury occurred it was common knowledge among those concerned with compressed air tunnelling that the statutory decompression table was inadequate; the court held that it was the employer’s duty to keep his own knowledge up to date (Ransom v. Sir Robert McAlpine and Sons Ltd. 1971). In some countries the labour inspectorate appears to be expressly empowered to serve notice on employers to remedy dangerous conditions in respect of which no mandatory standards exist.

Manufacturers, suppliers and so on

Most countries have passed legislation or guidelines regarding the duties of manufacturers, suppliers and so on, in respect of occupational safety and health. Generally these relate to machinery and equipment, on the one hand, and dangerous substances on the other. Safety and health requirements regarding machinery and equipment, prior to their use at the workplace, may be said to be threefold: they must be as safe in design and construction as practicable; they must be tested to ensure that they are indeed safe; and they must be made available on the market (through sale, hire, import or export) only when known to be safe. The primary obligation in this matter may lie with the vendor, the manufacturer or on all those concerned.

While general requirements regarding substances for use in work may be analogous to those regarding machinery, it is often a great deal more difficult to determine the effects of a particular substance on health. Consequently, while some national laws treat obligations regarding substances in the same way as those regarding machinery, others are also directly responsive to this difficulty. For example, the French Labour Code as amended in 1976 requires that, before any substance that may involve a danger to workers is marketed, “any person manufacturing, importing or selling it” shall provide approved institutions with the information necessary to the assessment of risks (section L. 231-7); any such person may further be required to assist in evaluating the risk. In many countries, duties in this matter also include factors such as the labelling of hazardous substances and information on safe handling procedures. These duties may not necessarily be confined to the period when the product was first marketed: in the United Kingdom, for example, there may be an obligation to do whatever might be reasonable in the circumstances to keep up to date with current knowledge and to act with whatever promptness fairly reflects the nature of that information. The action to be taken would depend on the gravity of likely consequences of the risk, as well as the gravity of the consequences arising from withdrawal of the product (Wright v. Dunlop Rubber Co. and another 1971). It should also be noted that there is increasing international interest and activity concerning the harmonization of labels for hazardous substances. For example, ILO Conventions 170 and 174 contain export notification requirements.

Enforcement of Duties in Respect of Safetyand Health

There are two ways of being made liable for failure to comply with a duty: one is to be called to account for the failure itself, irrespective of whether it has had any consequences. The other is to be made answerable for the consequences of that failure.

Public bodies

It is very difficult in most countries to enforce by legal action obligations of public bodies to exercise their regulatory power, such as the obligation deriving from certain labour Conventions and much national legislation to establish regulations on occupational safety and health. Some common law countries know procedures such as the order of mandamus, which can be claimed by a directly interested person to compel public officers to perform duties imposed upon them by common law or by statute (there is, however, little evidence that such procedures are currently used in the present context). In any case, their use is made more difficult where, as often, the legislation in question leaves public bodies a large discretion as to the areas, means and timing of action. The main methods for obtaining action by public authorities are extra-legal. For example, pressure may be brought to bear by unions, consumer groups or other forms of public opinion (these methods do not constitute enforcement in any proper sense of the term).

More widely, measures taken by public authorities can be set aside on the ground that they do not comply with the law, go beyond the powers conferred by the law (ultra vires) or, more generally, are inappropriate or unreasonable. This is not strictly enforcement of an obligation, but rather definition of its limits.

Manufacturers and suppliers

Where legislation in the area of occupational safety and health places express obligations on manufacturers and suppliers, it tends also to lay down penalties for failure to observe those obligations (e.g., France, United Kingdom, Denmark, Sweden). In some countries the penalty for infringement can be only a fine; this would appear to be the situation in the United Kingdom except where a prohibition notice has not been complied with. In some countries repeated infringements may involve liability to imprisonment, as in France and Venezuela. In yet other countries, the basic sanctions can be either fine or imprisonment; this is the case under Section 1, Chapter 8, of the Swedish Working Environment Act, 1978.

Preventing the distribution of machinery and substances not meeting safety and health requirements must be one of the main aims of enforcement in relation to manufacturers and suppliers. A number of legislative provisions directly reflect that concern (e.g., the French Labour Code provides for possible emergency procedures to suspend the marketing of dangerous substances or the use of unsafe machinery; it also provides for the possible cancellation of sales or leases under which unsafe equipment was provided).

Employers

All recent international labour Conventions in the field of occupational safety and health provide for the supervision of their implementation by appropriate inspection services. For an in-depth discussion on labour inspectorates, see “Labour inspection” in this chapter. Of particular relevance here, however, is the question whether labour inspectors may directly initiate prosecutions, whether they have to go through hierarchical superiors or whether they have to submit their recommendations to other authorities such as public prosecutors. Various statistics show that the number of prosecutions, in relation to the number of violations of safety provisions found, is very low.

Workers

Where an employer may delegate responsibility for occupational safety and health matters, or where relevant legislation places obligations directly on technical or supervisory staff, the duties of the persons concerned are usually enforced in a manner analogous to the enforcement of those of the employer. Some legislation expressly makes it clear that orders and prohibitions issued by the labour inspectorate may be addressed to such persons (e.g., Sweden and the United Kingdom). Similarly, the persons concerned are often expressly covered by the same penalty provisions of the relevant legislation as employers. Moreover, measures may be taken in relation to them which are not possible in relation to an employer.

Differing disciplinary powers exist in a number of jurisdictions in relation to the obligations regarding safety and health of workers. The range of disciplinary penalties for minor offences goes from verbal warning to withholding of one day’s wages; for serious offences, from public reprimand through transfer and suspension for a few days to debarment from promotion for up to one year; and for very serious offences, from the withholding of seven to 15 days’ wages through suspension for up to two months, and debarment from promotion for two years to dismissal.

Penal liability may also exist for violation of the duties of workers in respect of occupational safety and health. In some cases such liability is expressly limited to serious offences (e.g., Spain); in others, such liability is limited to specific duties. For instance, under Section L. 263-2 of the French Labour Code as amended in 1976, the ordinary worker appears to be penally liable only for the introduction or distribution of alcoholic beverages in the place of work. Elsewhere, the liability is more general (e.g., the United Kingdom, Denmark and Sweden) but the possible fine may nevertheless be limited (e.g., in Mexico to not more than one week’s wages). At the same time, there are countries in which there is no penal liability as an enforcement measure for a duty of workers who exercise no supervisory responsibility. This would appear to be the case, for example, under the labour codes of certain countries of Eastern Europe. Similarly, in the United States, under the Occupational Safety and Health Act, 1970, only the employer is liable to the civil penalties laid down for nonobservance of safety and health provisions.

Consequences of Occupational Accidents or Diseases

Social security

One of the main concerns, following an occupational accident or illness, is to ensure the continued livelihood of the victim and the victim’s family. The main means to that end is workers’ compensation. An examination of employment injury benefit schemes in general falls outside the scope of this chapter, but some aspects of the subject are relevant.

First, in quite a number of countries employment injury benefit is provided under schemes based on the principle of the individual employer’s liability. In some countries this liability is compulsorily insured, while in many others it is up to the employer to decide whether to insure or not, and he or she may remain jointly and severally liable with the insurer even if the employer does insure. In addition, there are a number of countries in which national social insurance schemes do not yet cover all workers and the remainder are protected under a scheme of employer’s liability. Individual employer’s liability is based on risk, not fault: in other words, the employer is required to meet the consequences of an accident or disease causally related to employment, within defined limits and on prescribed conditions. There may be provision for additional benefit in case of “serious fault” of the employer.

Secondly, account may be taken, in the financing of employment injury insurance, of the employment injury record of particular industries or of individual employers. (As a general principle of financing, this applies only where employment injuries are covered as a distinct branch of social security and, even in such cases, not universally.) Collective or individual rating as applied in many countries is designed to establish a contribution rate corresponding to likely expenditure, but there are also systems of individual rating that are designed to meet actual cost during the observation period (France, United States), or under which a collective rate is increased or decreased for individual undertakings in the light of expenditure on accidents in their employment or the effectiveness of preventive measures (Canada, Germany, Italy, Japan). Whatever the general principle of financing applied, there may be penalties added to the contribution rate of an employer who fails to carry out prescribed preventive measures, and many countries make special provision, under the social security scheme and, again, whatever the general principle of financing, for financial penalties where accidents occur owing to the serious misconduct or gross negligence of the employer; in some countries, the employer is liable in such a case for the reimbursement of the entire expenditure incurred by the insurance institution. There are divergences of view regarding the value of recourse to one or another of the various schemes. All of them, though in different ways, require an administrative infrastructure which makes them difficult to apply in developing countries and costly anywhere. In addition, individual rating based on recorded experience is difficult to apply to small undertakings.

Thirdly, in a number of countries social security institutions play an active role in the promotion of occupational safety and health. In some countries that role includes not only the setting of safety standards but also their enforcement, including the imposition of penalties. This has been the case, in particular, in Canada, Chile, France, Germany and Luxembourg.

Finally, the possibilities open to a worker or to his or her survivors to bring into play the civil liability of the employer or of fellow-employees are often limited by reference to the existence of social security. Three main approaches may be distinguished.

First, in some countries with employment injury schemes based on the principle of the individual employer’s liability, there is an option: the worker can claim the benefit of the statutory no-fault workers’ compensation legislation or he or she can sue under the general rules of tort, in principle on the ground of fault. The choice cannot be altered once made to the extent of lodging a claim or instituting proceedings. Accordingly, a worker who opts for the potentially higher benefits of the civil action also runs the risk of obtaining no benefit at all if the action does not succeed.

A second solution—applied in many Western European countries, in French-speaking Africa, in Canada, in Mexico, and in Pakistan—is that of giving the employer and fellow employees immunity from civil action in respect of normal cases covered by the employment injury scheme. Civil action remains possible—perhaps in theory rather than in practice—where the employer or a fellow employee can be shown to have acted with intent. In some countries it also remains possible where there has been penal sanction (Italy), gross negligence (Norway) or serious fault (Switzerland), while elsewhere the “inexcusable” or other serious fault of the employer leads to an increase of social security benefits at the employer’s expense (France, Spain, Mexico, many French-speaking African countries). The concepts of serious or inexcusable fault have been defined by case-law or legislation in the countries concerned; the gravity of the fault tends to be either in the degree of disregard for the likely consequences of an act or omission, or in the failure to deal with dangers which have been drawn expressly to the employer’s attention, as a result of previous accidents or otherwise. In some of the countries following this approach, civil action also remains possible to cover elements of compensation, such as damages for pain and suffering, which are not covered by the statutory scheme (Austria, Belgium, Switzerland).

The third approach is to allow unlimited recourse to civil liability actions, with a view to supplementing the employment injury benefit received under social security. That recourse applies in some countries—Greece, Japan, Sweden, and the United Kingdom—to liability both for fault and, in so far as it exists, to liability without fault; in others it applies only to liability for fault (Chile, Columbia, Peru). The approach is also followed in the Netherlands and some of the countries of Eastern Europe, where occupational accidents and diseases are not treated as a distinct branch of social security.

It should be added that, while social security schemes regarding employment injuries tend to cover all employment-related accidents, they are often far from covering all employment-related diseases. Causality may be more difficult to establish in cases of occupational disease, and the question of responsibility may be further complicated where a disease takes a long period of time to manifest itself and may not appear until some time after employment has ceased. As regards diseases not covered—for instance, because the scheme has an exhaustive list of compensable diseases—the ordinary rules of civil liability apply.

Civil liability

The possibility of recourse to civil action in respect of the consequences of occupational accidents and diseases is far from general. Where action against the employer and fellow employees is excluded or severely limited, it remains open against the manufacturer or supplier, but only in respect of the consequences of shortcomings in machinery, equipment or substances. Moreover, in some of the countries in which civil action is freely available both the number of claims made and the proportion of them which go to the courts are relatively small (this is true of both accident/illness and discrimination cases).

There are a number of bases on which a civil action can be brought. It may be based on the breach of a contractual obligation (under a contract of employment, a contract for services, or, conceivably, a supply contract). It is more likely to be brought in tort, on the ground of a civil wrong or breach of a duty established by law. Such actions may in turn relate to a breach of a duty at common law, under the general terms of a civil code or under a labour code, or they may relate to a breach of specific statutory obligations in the field of safety and health. Finally, a tort action may be available for fault or on the basis of “strict” or “objective” liability—that is, for risk without fault.

The plaintiff

Where a civil action is not excluded by the system of workers’ compensation, that action is available to those injured by the consequences of a breach of duty, whether by fault or by the creation of a risk. First and foremost, the action is available to the worker who suffered an employment injury due to such a breach. It is generally also available, in case of death of the worker, to his or her survivors, although these may be variously defined as persons actually dependent on the worker, or persons whose maintenance the worker was required by law to ensure. There have been some decisions recognizing that in certain circumstances trade unions may have an interest in bringing an independent civil action (for example, this has occurred in France and Italy). Elsewhere there is no evidence of a systematic attempt by unions to bring civil actions to defend their own interests in the matter; the more usual situation is that of unions supporting, financially or otherwise, the claims of those directly concerned. Proceedings under social security legislation for increases in benefit on the ground of inexcusable fault of the employer may, in some countries, be initiated by the competent social security institution as well as by those directly concerned. Moreover, social security institutions which have paid benefits may be able to sue to recover these from a person civilly liable for an employment injury.

The defendant

A civil action may lie against a wide range of persons or bodies with duties in the field of safety and health. In practice, where such action is not precluded by social security legislation, the great majority of civil claims are made against the employer. Nearly everywhere, the employer is also liable to make good injuries caused by the wrongful acts or omissions of his or her employees, whatever the level of their responsibilities, in the exercise of their duties, although the basis for that liability differs. Common law countries have the concept of “vicarious liability”; some civil law countries base liability on the fact that the employer is the commetant (the one having engaged in the act). Both of these have undertones of agency and the practical effects are analogous. Elsewhere, the liability of the employer is derived from his or her own fault in the choice of employees or their supervision. Usually, the liability of the employer does not prevent simultaneous or parallel action against the worker who caused the damage. In any case, the injured party usually prefers to sue the employer.

The extent to which the employer is liable to make good injuries caused by the wrongful acts or omissions of persons other than his or her employees is a more difficult question. In some jurisdictions, there is legislation or case-law the effect of which is to make an undertaking responsible in certain circumstances for compliance with duties in respect of safety and health of workplaces under its control, even if the risks at issue have been created by third parties such as sub-contractors, or with duties in respect of employees working outside the employing undertaking even where another undertaking has control of the workplace. Except to the extent that statutory provisions go further, liability in such a case appears to be based on the notion that the employer is at fault in that he or she is not ensuring the execution of duties laid upon him or her and of which one cannot rid oneself by contractual or other relations with third parties; if he or she has done all that a reasonable employer could have done, there is no liability.

There is also the question of recourse actions. More than one person may be concurrently responsible for the situation which led to an employment injury: manufacturer and employer, employer and contractor, and so forth. Or the employer may have been made liable for the acts of others. Where the worker chooses or is compelled to seek a remedy against only one of several joint “tortfeasors” or against the employer rather than against those for whose acts the employer is liable, the person sued is normally able to claim a contribution from the others responsible.

Burden of proof and causation

The burden of proof in a civil action rests with the plaintiff: it is up to the plaintiff to demonstrate the grounds for that action. The plaintiff has to show, first, that he or she has the correct defendant. This should not normally create any difficulty in relation to an action against the employer. On the other hand, there may be a real difficulty—particularly in cases of disease with slow manifestation—in showing who was the manufacturer or supplier of the machinery or substances alleged to be unsafe. It appears that in certain matters related to workplace injuries, such as the manufacture of asbestos, suits are now brought jointly against all major manufacturers if responsibility cannot initially be pinned on one company.

Secondly, the plaintiff has to make out the claim against the defendant. Where a claim is based on strict liability, whether in respect of employment injuries in general or in respect of injuries caused by particular categories of dangerous objects, it is necessary only to show that the injury was indeed caused by employment or by the risk in question. Where a claim is based on non-performance of a specific statutory duty and the statutory provision leaves no discretion as to the manner of its performance, it is necessary to make out a case that the duty was not performed as stated; since this is a question of fact, it should not normally create major problems of proof. But where a statutory duty leaves a discretion—for instance by the use of such terms as “reasonably practicable”—or where a claim is based on a duty of care (under common law, under the general provisions of civil codes or under labour codes) demonstrating that the duty has not been fulfilled is not always easy. Accordingly, courts have considered to what extent the burden of proving whether there has or has not been fault should be placed on the employer or other defendant rather than the worker.

While some national approaches such as these relieve the plaintiff of the need to demonstrate the manner in which a careful employer would have prevented the accident or illness, they do not at all imply that the case will necessarily be won. In a proportion of cases it will be possible for the defendant to demonstrate that he or she had been as careful as possible in the circumstances (i.e., that he or she was not at fault). This is particularly true if a special degree of fault is necessary for an action to succeed—as in actions for additional social security benefits by reference to an “inexcusable fault” of the employer.

Whether the civil action is based on fault or on risk, it is necessary to show that the injury suffered is the result of that fault or risk (i.e., a causal connection between them must be demonstrated). It is not usually required that the fault or risk be the sole or determining cause, but it must be one immediate cause of the injury. The problem of showing a causal connection is particularly acute in cases of illness the origin of which is not yet fully understood—although courts have sometimes interpreted the law so as to give the benefit of the doubt to the worker. This difficulty may be caused by factors such as the worker having been exposed to new technology or a new substance, the full implications of which are not yet known; the disease may have a long latency period, or the worker may have been subject to complex exposures. Even in cases of accidental injury it is not always possible to prove “on the balance of probabilities” (the required degree of proof in civil actions) that the injury was due to the demonstrated fault. There are also cases in which the causal connection between a demonstrated fault and an injury is broken by the intervening tortious act of a person for whose acts the person being sued is not liable, although an intervening act does not necessarily break the chain of causation.

Defences

Even where fault or risk and its causal connection to an injury has been demonstrated, a number of possible defences may permit the defendant to reduce or even avoid liability.

First and foremost is the fault of the injured worker. Such fault may take the forms of failure to comply with safety instructions, of a degree of carelessness going beyond inadvertence, of “frolics” (behaviour at the workplace unrelated to the normal performance of work), of violation of orders, or of drunkenness. Different systems of law have sought to balance the degree of such fault and the degree of fault of the defendant in compensating injury.

A second defence known in some countries is that of volenti non fit injuria (i.e., that the injured worker knowingly and voluntarily assumed the risk which led to the injury). Given the inequality in standing between employer and worker, courts have been reluctant to consider that this defence applied in ordinary cases in which a worker performed work, with or without protest, which he or she knew to involve a risk other than the normal risk inherent in the work. While in the past it was a recognized practice to give workers who enter inherently dangerous jobs “hazard pay” as a contractual counterpart for the assumption of the risk, there is doubt as to the validity of contracts under which the worker agrees, even for consideration, to bear the consequences of risks for which the employer would normally be liable, and such contracts may indeed be expressly prohibited. On the other hand, the law looks kindly on the worker who knowingly and deliberately courts danger in order to save other persons. The law also increasingly protects workers who remove themselves from situations involving imminent danger and who “whistle-blow” on violations of safety and health laws.

It is too early to say what effect, if any, this defence will have on statutory provisions permitting or requiring workers to stop work when they believe serious danger to be imminent. In any case, the protection of workers who choose to stop work (or to “blow the whistle”) from recriminations and victimization deserves further attention in all jurisdictions.

From time to time, defendants have tried to rely on the fact that the dangerous working practice which led to an accident was widely used in the industry. There is no evidence that this has led to a limitation of liability. Conversely, the fact that certain good practices are widely followed in an industry has been regarded as evidence that a particular defendant not applying these practices was at fault.

Time limits for the submission of claims

Most legal systems permit civil actions to be brought only within a relatively short period after the date when the cause accrued; the usual period is two or three years and may be as short as 12 months. Since longer delays increase the difficulties of establishing facts, these time bars are in the interests of all concerned.

However, with the emergence of occupational diseases which manifest themselves only many years after exposure to the substances or agents responsible for them—in particular, but not exclusively, various forms of occupational cancer—it became clear that in certain circumstances it was necessary to have, as the starting point of the time limits for the submission of claims, the moment at which the worker concerned knew that he or she had a cause of action. This is now widely provided for in relevant special legislation or as a special provision in general Limitation Acts. This does not necessarily resolve all difficulty: it is not always easy to determine the precise moment in time when a claimant had or should have had all the elements enabling the worker to sue. This is somewhat easier where the disease is included in a schedule or classification of diseases

Categories of damage

Damages which may be obtained through a civil action tend to fall into three main categories, although not all three are universally obtainable: (a) payment of all medical and rehabilitation expenses not covered by social security; (b) payment of earnings lost, in most countries to the extent that they are not covered by social security; and (c) damages for pain and suffering, disfigurement and loss of enjoyment and expectation of life. The principle of tort is restitution—that is, the plaintiff should be in a position no worse than he or she would have been had the tort not been committed.

Earnings lost are in some cases compensated by periodic payments supplementary to any relevant periodic payments from social security and to such earnings as the worker is able to obtain after the injury, so as to bring total income to the level of previous earnings. It is more usual for compensation to take the form of lump sums. Where there is continuing incapacity or death, the assessment of future losses which has to be made is necessarily speculative both as to the level of earnings and as to life expectancy. Where there is an award to survivors the speculation bears not only on likely future earnings but on likely future support. Although an attempt is made to take inflation and taxation into account, it is very difficult to do so to a realistic extent with lump sum payments. It is not surprising in these circumstances that lump sum awards for loss of earnings vary greatly, and that a periodic allocation will sometimes be preferable (period payments may more feasibly take taxation and inflation into account).

Compensation for non-pecuniary loss (such as pain and suffering) can necessarily be only an estimation of what is reasonable. Again, this leads to variations in the sums awarded. Some legal systems permit courts to award punitive damages, which may reach very large amounts.

Conflicts of law

Some reference must be made to the operation of civil liability where an employment injury arises in circumstances having potential links with several systems of law. Situations are now prevalent in which dangerous activities such as construction or rig drilling are carried out within the jurisdiction of one country by undertakings having the nationality of another country and employing workers from yet other countries. Should injury or disease accrue in such a situation, the rules of conflict of laws (which may also be called private international law) will come into play. These rules are not international in the sense of being universally or even generally recognized in all legal systems, but are a branch of and peculiar to each system of private law; with regard to many issues, however, there is little disagreement and certain areas of disagreement which remain are being diminished, in particular through the adoption of international conventions. When the rules of private international law are invoked in any legal system, they decide only three preliminary points. First, whether or not the courts of that legal system have jurisdiction over the issue at hand. If it is decided that the courts do indeed have jurisdiction, they must then go on to decide whether to apply their own internal rules or those of another legal system involved. Finally, they will decide whether they must recognize as decisive any foreign judgement already pronounced on the issue, or enforce any right vested in a party under a foreign judgement, or on the other hand treat such judgement or rights as nullities. The links between an injury and several countries may lead to “forum shopping” (i.e., the attempt to bring an action in the country where the highest damages are likely to be obtained).

Penal (criminal) liability

Penal or criminal liability following an employment injury, in the widest sense of liability to a penalty, may be incurred on four possible bases.

First, the occurrence of an accident or the apparent incidence of disease may bring into operation the provisions designed for the enforcement of laws and regulations regarding occupational safety and health. The inspectorate in most countries is too understaffed to keep a constant eye on all possible dangers. On the other hand, when accidents or diseases become known, in particular through their obligatory notification, this may lead to inspection visits and, as appropriate, criminal prosecution.

Secondly, some legislation concerning occupational safety and health contains special provisions regarding penalties applicable in the case of accidents or diseases, particularly where these are serious. The equivalent may be found in most systems of workers’ compensation in the form of increased contributions for poor health and safety performance.

Thirdly, employment injuries, particularly if serious or fatal, may bring into operation rules of criminal law not specifically related to occupational safety and health, such as those related to manslaughter, special rules on fires and explosions, and so on. There are some cases (examples may be found in Italy and the Netherlands) in which the normal penalties for the offences in question are increased where they were committed in a work setting.

Finally, there are cases in which penal codes contain specific provisions regarding injuries caused by violations of requirements on occupational safety and health.

It is sometimes expressly provided that action on one of these four bases does not exclude action on another. In some countries the reverse is true: in Sweden, for example, use by labour inspectors of their power to make compliance with remedial or prohibition orders subject to fines excludes recourse to action through the criminal courts. In some cases, but not always, the attitude to plurality of sanctions derives from the nature—civil, administrative or criminal—of those sanctions specifically designed for enforcement. There would seem to be little doubt, although there are no formal statistics to prove it, that most of the low number of prosecutions in relation to occupational safety and health infringements relate to infringements which have caused injury. There is similarly no statistical information on the use made of general rules of criminal law in relation to employment injuries. It would appear, however, that there are greater variations in this respect from country to country than with respect to other aspects of enforcement.

Elements of the offence

There is a wide acceptance of the maxim that there should be no penalty without previous legal authority. While, therefore, it is possible for courts in civil proceedings to affirm the existence of legal duties not previously defined, this is not normally possible in penal proceedings. On the other hand, it is possible in penal proceedings to determine the practical implications of a duty established by previous authority: in practice, this distinction between civil and penal liability may be one of degree. Different legal systems also appear to agree that an offence is committed only if there has been intent or, in many of them, culpable negligence, unless a legislative enactment expressly provides otherwise.

The enforcement provisions of some legislation on occupational safety and health make it an offence not to comply with statutory requirements in the field, irrespective of whether there was intent or culpable negligence, and so do some special provisions in penal codes. This has been confirmed by case-law. For instance, in a decision of 28 February 1979, the Supreme Court of Spain held that failure to comply with prescribed safety measures in the construction industry was sufficient in itself to give rise to sanctions under the corresponding enforcement measures. In some cases this strict liability carries only administrative or civil penalties. In many countries, the difference between strict liability, on the one hand, and the requirement of deliberate action, on the other, may not be as great in practice as appears at first sight. There are variations between different legal systems as regards the degree of negligence necessary for it to be “culpable” so as to warrant the imposition of penalties.

Initiation of penal proceedings

In principle, all prosecutions are a matter for the appropriate public authorities; criminal sanctions are intended for the protection of the interests of the community and not of the individual. There are, however, some possibilities for private prosecutions in certain circumstances (e.g., in Switzerland, Austria, England, Finland and France). Sometimes an inspector may institute proceedings, but it is more usual for action to be taken by public prosecutors, district attorneys, state solicitors and similar authorities. They act upon information from inspectors, social security bodies, the injured person, or members of the public, but the final decision regarding action is theirs. In principle, if they are satisfied that an offence appears to have been committed, they should act.

Two additional comments should be made. First, in respect of penal proceedings, the statutory periods of limitation do not so far appear to have given rise to difficulty (possibly because periods of limitation for penal purposes are often very long). Secondly, penal legislation is territorial, in the sense that it applies only to an offence which has effect in the territory over which the enacting legislation has jurisdiction. In transnational work situations, this limitation of jurisdiction can raise the problem of where the power to control health and safety lies.

Persons liable

Penal proceedings, like civil proceedings, are in principle possible in relation to any person with duties in the field of occupational safety and health. A problem which arises is that of the liability of legal persons (i.e., of corporations which have duties as manufacturers or employers). It is a widespread principle in criminal law that only natural persons can be liable: in many cases that principle is absolute, in others it applies only to some offences. In connection with occupational safety and health some countries expressly envisage the possible penal liability of corporations. Because of general principles of criminal law, certain of these do so only as regards penalties imposed by the labour inspectorate or other administrative and civil sanctions (e.g., some Scandinavian countries, Belgium, Spain), whereas others do not make that distinction (e.g., England, the United States). It is sometimes expressly specified that the liability of companies is to be enforced by means of fines. Contrary to the situation in many countries, proceedings in England are brought against the corporate employer in preference to any individual working within the undertaking, on the assumption that the company has a much greater degree of control.

Individuals—whether non-corporate employers, or directors or managers of companies—may be made liable for violation of the employer’s duties, directors or managers being liable in place of or in addition to corporations. For this purpose there must be a personal fault. Given the generality of the duties widely laid upon the employer, it is not difficult for courts to find that there is some omission. Nevertheless, there are cases of acquittal on the ground that there was no personal fault of the individual employer or director. In certain circumstances an employer may delegate duties as regards occupational safety and health (and the corresponding penal liability) to line management, or duties in this matter may be laid directly upon technical and supervisory staff. Case-law shows that the penal liability so laid on the staff in question is not simply theoretical. In France, the Criminal Court of Béthune, on 22 January 1981, held the chief engineer of a mine guilty of involuntary manslaughter in respect of a firedamp explosion in 1974 which cost 40 lives; he was found seriously negligent in not having installed a gas detector. In Italy, in the 1977 case concerning the use of benzene in a dye factory, the general manager, the technical manager and the works physician, as well as the owners and the managing director, were found guilty of involuntary homicide. A study made in Finland (1979) of penal responsibility in practice showed that 19% of charges and 15% of convictions concerned managers, 36% and 36% respectively concerned executives, and 35% and 38% respectively concerned supervisors. Penal proceedings against workers who do not have technical or supervisory responsibilities are possible in a number of countries, but not universally; they would appear to be used relatively sparingly and to require a high level of personal fault.

Defences

It is generally no defence in penal proceedings that the accused did not know the law. Conversely, it is often emphasized that it is the duty of the employer and of technical and supervisory staff to have all relevant knowledge.

In penal proceedings, contrary to the situation in civil cases, the fact that the negligence of the victim contributed to an accident is also generally not a defence. For instance, a Swiss court in 1972 convicted an employer following the electrocution of a worker who was loading metal onto a truck under a live electric main; it held that, while the worker himself could have taken the essential precaution of switching off the current, it was the responsibility of the supervisor (in this case the employer) to ensure the safety of the worker by so doing.

On the other hand, there may be a variety of extenuating circumstances which are taken into account by courts with respect to the penalty to be imposed (for example, an exemplary work record). In a Swiss case in which an accident resulted from the insufficient shoring of a drainage trench, the fact that the employer had tried to save working hours for the benefit of the employees working on piece rates, while not a defence, was taken into account in sentencing.

Penalties

Earlier (in the section on enforcement) some examples were given of the penalties possible under legislation on occupational safety and health. In many cases the financial penalties so laid down have higher ceilings than those available under more general penal codes and statutes.

On the other hand, the range of possible sentences of imprisonment is more likely to be greater under general penal codes and statutes.

In certain circumstances, other types of penalty are possible, such as being banned from the occupation in which a homicide occurred. Moreover, under Section L. 263-3-1 of the French Labour Code as amended in 1976, in the case of accident in an undertaking where serious or repeated infringements of safety and health rules have been observed, the court may require the undertaking to submit for its approval a plan to normalize conditions; if the undertaking fails to do so it may be required to implement some other plan approved by the court.

As in other areas of criminal law, it would appear that in practice the penalties imposed seldom encompass all possibilities or reach the possible maxima. Instances of imprisonment occur, but rarely. Fines are imposed, but rarely at maximum levels.

Largely as a result of the scarcity of specifically compiled statistical information, and the fact that it appears very few health and safety claims actually make it as far as a courtroom, it is extremely difficult to evaluate the deterrent effects of civil and criminal liability, either in absolute terms or in relation to each other. It is similarly difficult to determine the role which legal liability plays in prevention relative to social security or voluntary compliance measures. The criminal law none the less remains a deterrent, along with civil law remedies, of health and safety violations.

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* 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 Protectionfor Occupational Safety and Health

Law of human rights reflected in the United NationsCharter

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 underthe 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 inference that 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 12of the International Covenant on Economic, Socialand 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 Eliminationof 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 Muller v. 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 UAW v. 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 DeclarationsRegarding 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.

ILO standards

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 OccupationalSafety 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 ComplianceIssues 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.

Conclusions

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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WHO Headquarters:                                                 
150, cours Albert Thomas,                                        
F-69372 Lyon Cedex 08, France                                          
Tel.: +33-7 273 84 85                                                
Fax: +33-7 273 85 75                                                
Telex: 380023                                                           
Headquarters: 20 avenue Appia,                                           
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IARC Headquarters:                                                 
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Tel.: +33-7 273 84 85                                                
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UNEP Headquarters:                                                
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Nairobi, Kenya                                                                      
Tel.: 2-23 08 00                                                                     
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IAEA Headquarters                                                  
Vienna International Centre,                                    
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Tel.: +43-1-23 60                                                            
Fax: +43-1-23 45 64                                                 
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UNDP Headquarters:
1 United Nations Plaza,
New York,
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United States
Tel.: +1-212-906 5000     
Fax: +1-212-906 5778

FAO Headquarters:
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Tel.: +39-6-522 51     
Fax: +39-6-522 53 152
Telex: 610181 FAO 1
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IMO Headquarters:
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London SE1 7SR,
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Tel.: +44-171-735 7611     
Fax: +44-171-587 3210
Telex: 23588

UNCTAD Headquarters:
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Addresses of the ISSA International Sections

ISSA International Section for Research

Secretariat of the Section:

c/o Institut National de Recherche et de Securite (INRS)

30 rue Olivier Noyer, F-75680 Paris Cedex 14

Tel. +33-1 40 44 30 00; Fax +33-1 40 44 30 99

ISSA International Section on Information

Secretariat of the Section:

c/o Association nationale pour la prevention des accidents du travail (ANPAT)

88 rue Gachard, Boоte 4, B-1050 Bruxelles

Tel. +32-2 648 03 37; Fax +32-2 648 68 67

ISSA International Section for the Mining Industry

Secretariat of the Section:

Vedeckovyzkumny Uhelny Ustav

(Scientific Research Institute for Coal Mining)

Pikartska ul. 7

CS-716 07 Ostrava Radvanice

Czech Republic

Tel. +42-69 623 20 48; Fax +42-69 623 21 76

ISSA International Section for the Chemical Industry

Secretariat of the Section:

c/o Berufsgenossenschaft der chemischen Industrie

Kurfьrsten-Anlage 62

D-69115 Heidelberg

Tel. +49-6221 52 34 98; Fax +49-6221 52 33 23

ISSA International Section for the Iron and Metal Industry

Secretariat of the Section:

c/o Allgemeine Unfallversicherungsanstalt

Adalbert-Stifter-StraЯe 65, A-1200 Wien

Tel. +43-1 33 111 558; Fax +43-1 33 111 469

ISSA International Section for Electricity

Secretariat of the Section:

c/o Berufsgenossenschaft der Feinmechanik und Elektrotechnik

Gustav-Heinemann-Ufer 130, D-50968 Koln

Tel. +49-221 37 78 1; Fax +49-221 37 78 134

ISSA International Section for the Construction Industry

Secretariat of the Section:

c/o Organisme professionnel de prevention du bвtiment et des travaux publics (OPPBTP)

Tour Amboise, 204 Rond-Point du Pont-de-Sevres

F-92516 Boulogne-Billancourt

Tel. +33-1 46 09 26 54; Fax +33-1 46 09 27 40

ISSA International Section for Agriculture

Secretariat of the Section:

c/o Bundesverband der landwirtschaftlichen

Berufsgenossenschaften

Weissensteinstrae 72

D-34131 Kassel-Wilhelmshohe,

Tel. +49-561 93 59 401; Fax +49-561 93 59 414

ISSA International Section for Machine Safety

Secretariat of the Section:

c/o Berufsgenossenschaft Nahrungsmittel und Gaststatten

Dynamostrae 7-9

D-68165 Mannheim

Tel. +49-621 44 56 22 13; Fax +49-621 44 56 21 25

ISSA International Section for Education and Training

Secretariat of the Section:

c/o Caisse rйgionale d’assurance maladie

(CRAM- Ile-de-France)

17-19 place de l’Argonne

F-75019 Paris

Tel. +33-1 40 05 38 02; Fax +33-1 40 05 38 84

ISSA International Section for Health Services

Secretariat of the Section:

c/o Berufsgenossenschaft fur Gesundheitsdienst und Wohlfahrtspflege

Pappelallee 35-37

D-22089 Hamburg

Tel. +49-40 20 20 70; Fax +49-40 20 20 75 25

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