Making Rights Fundamental: The 2022 Amendment to the 1998 ILO Declaration on Fundamental Principles and Rights at Work and its Radical Implications

What makes a right fundamental, and how does it achieve this status? This article critically examines these questions through a detailed analysis of the 2022 amendment to the 1998 ILO Declaration, which recognised the right to a safe and healthy working environment as a fifth fundamental right. This inquiry is framed by the concepts of fundamentalisation (the process through which a right gains such status) and fundamentality (the normative status of a right). It makes three key contributions. First, it employs the 2022 amendment as a case study of fundamentalisation, analysing how internal and external actors and factors, including COVID‐19, shaped the outcome. Second, it identifies the predominance of constitutional‐textual and rights‐based sets of justifications of the amendment while observing that its formulation was informed primarily by ILO Conventions. Third, it traces the emergence of a flexible ‘amendment formula’, potentially lowering the bar for future rights to be added. Revisiting the earlier debate between Alston, Langille and Maupain on fundamentality in the Declaration, the article argues that the 2022 amendment makes accounts of fundamental rights under the 1998 Declaration as ‘procedural’ or ‘enabling’ untenable. Hence the implications of the amendment may be more radical than currently appreciated.