ILO, OECD and UNEP/FAO Chemical Safety Activities: A Comparative AnalysisChapter IVComparative Analysis |
This section contains an analysis of the instruments described in Section III. Specifically, it will address areas of common ground, any inconsistencies or potential for inconsistencies and areas where further cooperation and coordination among the organizations would be warranted. Whilst the analysis covers the chemical safety activities of ILO and OECD, it will only address the UNEP/FAO work relating to PIC.
Following the subsection providing general comments, the analysis is broken into the following three subsection:
Chemical Testing, Assessment and Management
Chemical Accident Prevention, Preparedness and Response
Prior Informed Consent, and Related Information Exchange, Procedures
As a starting point for comparing and contrasting the work of the ILO and OECD in the field of chemical safety, it is important to recognize the different constituencies served by the two organizations. Firstly, the ILO is a specialized agency of the United Nations with 174 member countries. Therefore, it covers a wide spectrum in terms of size, wealth, political structure and geographic distribution. The OECD has a smaller membership with 28 countries geographically limited to Europe, North America and the Pacific. These countries are all committed to market economies and pluralistic democracies, and they are among the most wealthy countries in the world.
Another important distinction is the organization and structure of decision-making bodies. The ILO is unique in having a formal tripartite structure which means that, at all levels, decisions are made by representatives from governments, employers and workers. Furthermore, all instruments incorporate the idea that decisions should be made only after consultation with representatives of each of these three social partners. By contrast, the delegates to OECD policy bodies are limited to representatives of member countries, as nominated by their governments. However, these do not need to be government employees; many delegations include representatives from the private sector or others. Furthermore, the OECD has established formal structures to provide a means for consultation with, and advice from, representatives of industry and trade unions (i.e., BIAC and TUAC). BIAC and TUAC are often invited to send participants to policy meetings as observers, and to technical discussions, workshops and other activities. As such, they often have significant input into the development of legal instruments. They also serve to provide insights into relevant activities of the ILO and other organizations. Both the OECD and ILO invite representatives of other interested international organizations to participate in their meetings and other activities.
With respect to work on chemical safety, another important distinction to note is the fact that the two organizations have different government ministry/agency counterparts. Consistent with their mandates, the representatives to the ILO bodies tend to come primarily from labour or social welfare ministries/agencies, whereas the heads of delegation to the OECD Joint Meeting come primarily from environmental/health ministries and agencies. Although delegations to international organizations represent their governments, do not adequately consult with their compatriots from other concerned ministries/agencies in preparation for such representation. The focus of the work of each organization also reflects their mandates. The Occupational Safety and Health Programme of the ILO is concerned with workers' safety and health, whereas the work of the OECD deals with the protection of human health and the environment in more general terms (usually without specifying any sector of the population). However, these distinctions are not clear-cut. For example, the scope of the ILO Convention concerning the Prevention of Major Industrial Accidents, 1993 (No. 174) covers the environment. OECD activities in the field of chemical accidents is focussed on those posing a risk to the health of the environment outside the fence of the installation. Although this theoretically excludes workers, in fact the measures addressed by the two organizations are virtually identical. Furthermore, while most OECD Council Acts do not specify any particular target group, there are a couple of Acts which specifically mention the protection of workers. The recent Resolution concerning the Declaration on Risk Reduction for Lead has indicated that occupational exposure is a priority area of concern.
One area of possible confusion is the fact that the terminology used by the different organizations to address the same or similar issues is not the same. This may be a reflection of the concern of the different constituencies served or may be the result of historical or personal factors. The use of differing terminology could lead to an unwarranted appearance of inconsistencies in a work product, thus leading to potential difficulties. For example, with respect to work on accident prevention, preparedness and response; the OECD refers to chemical accidents or accidents involving hazardous substances whereas the work of the ILO relates to major industrial accidents. However, the end product of the two organizations tends to be consistent and mutually supportive. In any event, the differences in the use of terminology is difficult to resolve since they are embedded in instruments which have been formally adopted.
Another distinction between the organizations, which may not have a direct impact on matters of coordination, is in fact that OECD Council Decisions are immediately binding on member countries, once adopted by the Council, without a need for further national action. This is the consequence of the original treaty establishing the OECD. On the other hand, ILO Conventions enter into force twelve months after they have been ratified by two countries, and are binding only on those countries which have formally ratified the Convention. Therefore, the extent of countries which are bound will differ and will change over time.
As a general matter, there is a distinct trend of improved coordination and cooperation among those organizations involved in chemical safety. This is further encouraged by the expressed will of member countries, particularly as resources become more constrained and the value of cooperative efforts is increasingly appreciated. The work programmes, and the most recent outputs, of the concerned organizations reflect this trend. As an example, the OECD is undertaking a greater outreach to non-OECD countries and the most recent Council Acts establish obligations to share information and experience with non-OECD countries either directly or through other international organizations. Furthermore, attempts to promote improved inter-organization coordination, cooperation and efficiency and to minimise duplication, competition and conflicting messages in the field of chemical accidents have been the subject of concern by OECD activities.
In this regard, it should also be noted that in the last several years, two formal mechanisms were established for the distinct purpose of coordinating international activities relating to chemicals, including the work of the ILO and the OECD. The first is the Inter-organization Programme for the Sound Management of Chemicals (IOMC). The IOMC was established in response to recommendations in Agenda 21 of UNCED. Chapter 19 of Agenda 21 states that collaboration on chemical safety between UNEP, ILO and WHO, within the IPCS, should be the nucleus for international cooperation on environmentally sound management of toxic chemicals and that cooperation with programmes such as those of the OECD and the EC and other regional and governmental chemical programmes should be promoted. The IOMC is designed to serve as a mechanism for coordinating policies and activities pursued by the participating organizations, jointly and separately, which are related to the assessment and management of chemicals. The IOMC is a cooperative undertaking among six intergovernmental organizations which, within the framework of their own respective constitutional mandates, work together as partners to promote international coordination in the environmentally sound management of chemicals. The six participating organizations in the IOMC are the three cooperating organizations of the IPCS (WHO, UNEP and ILO) as well as FAO, UNIDO and OECD. An Inter-Organization Coordination Committee (IOCC), composed of representatives from the participating organizations of the IOMC has been established to coordinate and foster the joint planning of relevant activities. Such coordination should ensure full consultation among all those involved, with the aim of avoiding duplication and inconsistencies. The IOCC normally meets twice a year and may invite observers to attend its meetings. Scientific and technical work of the IOMC are carried out through the existing structures of the participating organizations, either individually or jointly. According to the Memorandum of Understanding (MOU) among the six participating organizations, there are seven areas in which coordination is being sought. These include: international assessment of chemical risks; harmonization of classification and labelling of chemicals; information exchange on chemicals and chemical risks; establishment of risk reduction programmes; strengthening of national capabilities and capacities for management of chemicals; prevention of illegal international traffic in toxic and dangerous products; and other areas as agreed by all participating organizations.
The second mechanism, the Intergovernmental Forum on Chemical Safety (IFCS), is a non-institutional arrangement whereby government representatives meet to consider and provide advice and, where appropriate, make recommendations to governments, international organizations, intergovernmental bodies and non-governmental organizations involved in chemical risk assessment and environmentally sound management of chemicals. Relevant UN bodies and specialized agencies and intergovernmental and non-governmental organizations participate without the right to vote.
The functions of the IFCS are consultative and advisory and it seeks to, inter alia, identify priorities for cooperative action on chemical safety; recommend concerted international strategies for hazard identification and risk assessment; assist in securing the collaboration of national, regional and international bodies active in the field; advise governments and promote the strengthening of national coordinating mechanisms and of national capacities for chemicals management.
The six programme areas which were proposed under Chapter 19 of Agenda 21, entitled "Environmentally Sound Management of Toxic Chemicals" have been adopted by the IFCS as priority programme areas. These are:
In addition, the Commission on Sustainable Development considered issues related to toxic chemicals at its May 1994 meeting. The Commission adopted a number of conclusions of specific interest. For example, they "called for United Nations bodies and other international organizations to improve international coordination, to avoid unnecessary duplication of efforts and to strengthen the IPCS in order to share the burden of work, involving WHO, ILO and UNEP as well as FAO, UNIDO, OECD and CEU.
In the area of chemical testing, assessment and management, it would appear that the work of the OECD and the ILO are primarily complementary. ILO Convention No. 170 calls on ratifying States to formulate, implement and review a coherent policy in the safety of chemicals at work. This would include the establishment of classification, marking and labelling systems, based on the chemical hazards and safety precautions to be taken, and to ensure the availability of safety data sheets(Endnote 3).
The OECD Council Acts provide the technical and policy guidance which could assist in the formulation of such a policy. Specifically, the Acts referred to earlier provide guidance for the establishment of national programmes for chemicals management. The Acts described in paragraphs 72 and 73 provide a basis for international cooperation in the testing and assessment of chemicals. While some of these relate to programmes of cooperation established specifically among OECD countries, some also provide guidance for non-OECD countries, or establish mechanisms for sharing the experience of OECD countries with others. For example, in the Decision-Recommendation on the Co-operative Investigation and Risk Reduction of Existing Chemicals [C/90/163/Final], OECD member countries agreed to share, worldwide, the information on the chemicals subject to investigation, via the IRPTC, and invited the IPCS to use the results of the investigations in their work.
Reviewing existing legal instruments is not sufficient to understand the areas of potential common interest or inconsistencies, since it does not provide a picture of on-going efforts either directed towards the implementation of the existing instruments, or towards the development of new instruments. While it is outside the scope of this paper to consider on-going work programmes, it is instructive to point out, in this subsection, that the OECD and ILO, along with other organizations, are cooperating in activities related to the classification and labelling of chemicals.
With respect to specific chemicals, the target chemicals identified by the two organizations do not overlap. The OECD instruments on specific chemicals have been limited to anionic synthetic surface active agents and mercury in the very early years of the programme, and then PCBs and lead in the last decade. The ILO has adopted instruments on benzene, as indicated above, as well as on asbestos, the latter adopted in 1986, although early recommendations adopted in 1919 and 1921 addressed issues of lead poisoning.
It should be noted that the 1987 Act on PCBs is limited to obligations and roles of the OECD member countries and the Secretariat. However, the 1996 Resolution relating to Lead reflects the increased concern within the OECD Chemicals Programme for outreach to non-OECD countries. It specifically invites the Secretary-General to bring the Declaration to the attention of non-member countries and of the UN Commission for Sustainable Development and other inter-governmental bodies. The Declaration itself states that member countries will "extend cooperative efforts to share, including with non-OECD countries, information about exposures of concern, risk reduction options, etc.". It also declares that the OECD should compile a guide on the risk reduction of lead to assist both OECD and non-OECD countries in implementing lead risk reduction programmes. In addition, it invites non-member countries to implement the terms of the Declaration, and invites other international organizations to take the Declaration into consideration in developing goals, guidelines, and codes.
The area of chemical accident prevention, preparedness and response is where there appears to have been duplication in work between the OECD and the ILO. The scope of the ILO Convention No. 174 (and related guidance materials) and the OECD Recommendation C/92/1/Final and referenced Guiding Principles overlap virtually completely in scope as well as the specific issues addressed. Work in this field was initiated independently. However, since the development of the guidance materials were on-going at nearly the same time in both organizations, a concerted effort was made to avoid any significant differences. In addition to Secretariat consultations, there were a number of government, industry and union representatives who were involved in the negotiations/review process in both organizations.
The most obvious difference between the work of the two organizations is probably with respect to terminology. For example the term "chemical accident" is used by the OECD and the term "major industrial accident" is used by the ILO. While this may cause some confusion and may reflect small differences in the scope of activities, the differences in terminology do not seem to affect the substantive implementation of the Convention, Recommendation or guidance materials. In this regard, whenever possible an attempt was made to conform the OECD definitions with those used by the ILO.
Another difference is that the scope of the OECD instruments and related activities are focused on off-site effects (on the environment outside the facility fence and of non-worker populations). The ILO Convention and Recommendation also have as an objective protection of off-site populations and the environment, as well as workers. However, despite this apparent distinction in scope of coverage, in fact the actions which should be taken by public authorities and industry in order to protect workers, and to protect the public and the environment, are for the most part the same.
The OECD Recommendation concerning Information Exchange related to the Export of Banned or Severely Restricted Chemicals C/84/37/Final, which preceded the actions of UNEP, FAO or ILO in this field, set the framework for wider international agreement. In light of the efforts of the other organizations, the OECD Joint Meeting concluded that there was no need for specific actions by the OECD. Therefore, this Council Act has been effectively superseded.
With respect to PIC, the instruments adopted by UNEP and the FAO currently are voluntary whereas the provisions in ILO Conventions Nos. 170 and 174 are mandatory for countries which ratify the Convention. In fact the relevant provisions of Conventions Nos. 170 and 174 do not establish PIC procedures but rather parallel the information exchange provisions of the London Guidelines and FAO Code.
The ILO has an interest in and a concern for the collaboration with UNEP to ensure a well-coordinated approach to the elaboration of a new international instrument on PIC for chemicals. This collaboration is also mandated through the framework of follow-up action to Agenda 21 and the Memorandum of Understanding concluded between UNEP and the ILO. In this connection, the need for PIC to take into account existing relevant ILO instruments as well as occupational health aspects of the subject in the Office's primary concern. This has become increasingly more important in the light of the UNEP Governing Council decision 18/12 which refers to the invitation of the relevant international organizations to participate in the negotiating process for the development of PIC.
It is also worth pointing out that the application of ILO instruments is overseen by a supervisory machinery that includes an independent Committee of Experts on the Application of Conventions and Recommendations and a standing committee of the International Labour Conference (ILC).
Several ILO instruments contain provisions of relevance to a draft PIC convention. Four of these hold a particularly important place: the Convention (No. 170) and Recommendation (No. 177) concerning Safety in the Use of Chemicals at Work, 1990 and Convention (No. 174) and Recommendation (No. 181) concerning the Prevention of Major Industrial Accidents, 1993. Each ILO member State, having ratified either Convention No. 170 or No. 174 assumes, inter alia, the obligations to set up a classification system, based on specific appropriate criteria; for determination whether a chemical is hazardous; to establish chemical safety data sheets for hazardous chemicals, including detailed information on hazards, safety precautions and emergency procedures recommended for such a chemical; to label hazardous chemicals so as provide essential information regarding the hazards they present and the safety precautions to be observed; and to communicate as an exporting state to any importing country the fact and the reasons for the prohibition of the use of some hazardous substances (including chemicals), technologies or processes if such a prohibition is imposed for reasons of safety and health at work or as a potential source of accident (Articles 5, 6, 7, 8 and 19 of Convention No. 170; Articles 4, 5 and 22 of Convention No. 174). Particular attention should be paid to Article 5 of Convention No. 170, which provides the underlying basis for any PIC procedure: "the competent authority shall have the power, if justified on safety and health grounds, to prohibit or restrict the use of certain hazardous chemicals, or to require advance notification and authorization before such chemicals are used".
With workers and employers being in the first line of contact with chemicals, it is also important to recall the provisions of the ILO Convention (No. 155) and Recommendation (No. 164) concerning Occupational Safety and Health in the Working Environment, 1981, which lays down basic principles regarding the prevention of occupational accidents and diseases (Articles 11, 12 and 16(2) are particularly pertinent). To the extent that chemicals are carcinogenic substances, provisions of the Convention (No. 139) and Recommendation (No. 147) concerning Prevention and Control of Occupational Hazards caused by Carcinogenic Substances and Agents, 1974, relating to prohibitions and controls are also pertinent. The Convention (No. 136) and Recommendation (No. 144) concerning Protection against Hazards of Poisoning Arising from Benzene, 1971, addresses that particular chemical. Furthermore, the question of compensation in case of an occupational accident or disease is governed by several ILO instruments that would need to be taken into account in any discussion of liability issues. It will be important for any other legally binding instrument adopted on PIC to take an approach which is consistent with ILO instruments or at least avoids incompatibility with them. Chapter 19 of Agenda 21 refers to the need to take account of ILO work in the area of chemical safety (Paragraphs 19.6, 19.7, 19.36 and 19.39).
Whilst specifically Article 19 of ILO Convention No. 170 calls for exporting countries to notify importing countries of prohibition of all or some uses which relates to the notification of control actions and notification of exports in the London Guidelines. The UNEP/FAO PIC procedure will also result in notifications of control actions, once the chemical subject to the control is entered into the PIC procedure. It therefore follows that there is a possible distinction between the scope of the UNEP/FAO procedure and the Article 19. In the UNEP and FAO context, a ban is a prohibition of all uses and a severe restriction is a prohibition of most uses. The ILO text appears somewhat wider in that it addresses the prohibition of some uses (as opposed to most uses). In fact, the issue has gotten more complicated in the application of the term severe restriction by FAO/UNEP.
Another important factor with respect to coordination activities is the fact that UNEP and FAO (in consultation with member States, other international organizations, industry and environmental groups) have established clear, widely publicized procedures to facilitate implementation. Although voluntary, they are being implemented by many countries and there have been a number of training programmes to assist importing countries and there have been a number of training programmes to assist importing countries to use the procedures. Furthermore, efforts are underway to convert the PIC procedure into a legally binding instrument (which may or may not include other information exchange provisions of the London Guidelines and FAO Code). Thus, it would appear that if countries which ratified Convention No. 170 participated in the PIC procedure, they would substantially be fulfilling their obligation under the Convention. Therefore, there would not be a need for a separate action to be taken as a consequence of Article 19. However, the ILO Convention may serve as an important incentive to ensure that countries which are party to the Convention participate in the PIC procedure, at least by providing UNEP/FAO with notifications of control actions.
The provision of Article 22 in Convention No. 174 which states that: "when, in an exporting member State, the use of hazardous substances, technologies or processes is prohibited as a potential source of a major accident, the information on this prohibition and the reasons for it shall be made available by the exporting member State to any importing country" (goes beyond the PIC procedure in that it applies to technologies and processes and not just substances). However, it is worth keeping in mind that in developing the OECD Guiding Principles, a similar provision was proposed and the Expert Group was convinced that it is difficult to identify technologies or processes prohibited as a potential source of a major accident.
Endnote 3:
Note that this review does not consider any manuals or guidance materials which have been prepared by the ILO, which may overlap with the issues addressed in the OECD instruments.
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