Ending abusive and exploitative child labour through international law and practical action.

• Author: Selby, Jessica

Abstract

Twenty years ago, the establishment of the Convention on the Rights of the Child provided hope that child labour would soon become a problem of the past. However, abusive and exploitative child labor is still a prevalent problem today, affecting up to 500 million children. Although the symbolic value of international law has facilitated real progress on the issue, the lack of enforceability of these instruments has weakened their efficacy. Approaches that regulate the issue of child labour specifically, whilst neglecting the contextual causes, can yield only limited results. Ultimately, international legal instruments must be met by practical action if the problem of child labour exploitation is to be solved.

Introduction

The establishment of the Convention on the Rights of the Child ('CRC') (1) in 1989 provided hope that child labour would soon be a problem of the past. However, twenty years on, child labour is still a concern, with up to 500 million children globally estimated to be engaged in employment, (2) many receiving appalling treatment in dangerous conditions, and who may not receive an education. (3) Whilst child labour can occur in all area, its concentration can be inextricably linked with poverty and disadvantage. (4)

Various international conventions have been established to address the economic exploitaion of children. (5) unfortunately, many have proven largely symbolic in nature, and lacking in substantive pragmatic enforceability. (6) Whilst international conventions opposing child labour should be commended as steps towards a solution, states should be encouraged to take practical steps to meet the objectives enshrined in these agreements.

This article will outline the international conventions that address child labour, before examining the nature, causes and impacts of the child labour problem. It will subsequently derail the weaknesses that undermine the conventions, and conclude by outlining proposals for how the child labour problem could be further addressed.

1. International Law on Child Labour

   Progressively over the late 20th Century the international community recognised the need to protect children from economic exploitation. (7) A number of key international conventions now formally prohibit abusive and exploitative child labour.

   1. Convention on the Rights of the Child

      The United Nations Convention, which is clearest in its prohibition on child labour exploitation, is the CRC. (8) Article 32 of the CRC states:

      States Parties recognize the right of the child to be protected from economic exploitation and from performing any work that is likely to be hazardous or to interfere with the child's education, or to be harmful to be child's health or physical, mental, spiritual, moral or social development. (9) The article proceeds to oblige member states to take measures to implement child protections, including regulating working conditions, hours of work, providing a minimum age for entering employment, and imposing penalties for breaching these rules. (10)

      What differentiates the CRC from other conventions is that it utilises the rhetoric of 'rights' rather than presenting; children as the property of their parents or objects of charity. (11) This framework of 'rights' is both a strength and shortcoming of the CRC's enforceability, as discussed later.

      The CRC is the most widely ratified international convention, having been signed by all but two states. (12) Theoretically, the CRC is therefore (at least symbolically) almost universally legally binding in its protection of children's rights. (13)

   2. UN International Bill on Human Rights

      The conventions encompassed in the UN International Bill on Human Rights, (The Universal Declaration of Human Rights, (14) The International Covenant on Economic, Social and Cultural Rights ('ICESCR'), (15) and The International Covenant on Civil and Political Rights ('ICCPR')) (16) also include a number of provisions relevant to the issue of child labour. ICESCR contains an overt prohibition of child labour in article 10(3):

      Children and young persons should be protected from economic and social exploitation. Their employment in work harmful to their morals or health or dangerous to life or likely to hamper their normal development should be punishable by law. States should also set age limits below which the paid employment of child labour should be prohibited and punishable by law. (17) The ICCPR contains a broader provision in its protection of children, stating in article 24:

      Every Child shall have ... the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State. (18) The Universal Declaration of Human Rights takes an even more indirect stance in its prohibition of child labour by articulating the universal right of children to an education in article 26(1). (19)

   3. International Labour Organisation

      Various steps have also been taken through cooperation between states and nongovernmental organisations ('NGOs'). (20) For example, the International Labour Organisation (ILO') (which is a specialised tripartite United Nations agency) has passed a number of resolutions targeting child labour.

      The ILO has defined Child Labour as: 'Any work, which by its nature or employment conditions is detrimental to a child's physical mental, moral, social or emotional development.'. (21)

      The ILO has passed more than a dozen child labour treaties since it was founded in 1919, (22) most of which are consolidated into ILO Convention 138 (Convention (No 138) Concerning Minimum Age for Admission to Employment). (23) ILO Convention 138 implores states to abolish child labour and raise the minimum working age above the age of a child's full physical and mental development (article 1), seeks to protect children from harmful work (article 3), but does permit 'light work' which is not harmful to health, development or educational attendance (article 7). (24)

      Other ILO developments include the International Programme on the Elimination of Child Labor ('IPEC') (25) and ILO Convention 182 (26) on the Worst Forms of Child Labour (27) ILO Convention 182 represents a significant regulatory development as it clearly identifies those types of work that arc deplorable compared to the earlier ILO Convention 138, which only addressed the conditions under which work may be acceptable for children. (28)

      There are also a number of international conventions, or clauses within the above conventions that indirectly regulate on the issue of child labour. Examples include ILO Convention 29 (Convention Concerning Forced or Compulsory Labour) (29), and The Supplementary Convention on the Abolition of Slavery, Slave Trade and Institutions and Practices Similar to Slavery, (30) which both forbid the use of slavery and bonded labour (31) and further rights provided by ICCPR and ICESCR including the right to liberty and security of person, (32) the right not to be subjected to cruel and degrading treatment, (33) the right to just, fair and safe working conditions, (34) and the right to education and healthcare. (35)

2. The Reality: Nature and Impact of Child Labour

   When the various United Nations and ILO treaties are examined alongside each other, together with agreements such as the Millennium Goals, (36) a clear international legal prohibition on child labour is apparent. (37) Member states are obliged to codify these laws into domestic practices, and punish those citizens who do not comply. These conventions have also helped identify connections between protecting children from economic exploitation and providing children with other rights such as education and healthcare. (38) However, the symbolic significance of these international statutes often outweighs their practical application, allowing child labour to remain a global problem.

   A key obstacle to reducing the incidence of child labour is the difficulty of defining the problem and collating data. (39) It is estimated that there are 211 million children between five and fourteen years of age working worldwide, with 186 million of them in the worst forms of child labour, and about 110 million of them not receiving any education at all. (40) Some would argue that this estimate is too conservative, and that there may be up to 500 million children in employment. (41) Evidence also suggests that these children are working long hours, (see Table A below). For example, one study of 210 Malaysian children revealed that they were working an average 10-hour day, with many of them working six and a half to seven days a week. (42)

   Table A: Average Hours of Work per day by age and Type of work for 360 Children in Lahore, Pakistan (71) Type of work Under 9 years 9-11 YEARS Over 11 years Automobile 10 12 12 Carpet 8 10 10 Lathe Machine 10 0 9 Hotel 12 12 10 All 8.5 9 9.8 There are a number of explanations for the lack of reliable data on child labour. Many children are not aware of their rights under international law or do not have access to reporting mechanisms. Even those with available reporting avenues may choose not to report for fear of losing their jobs. (43) Another reason is that child labour often takes place within the private family sector, or is condoned by parents. (44) The limitations on gathering accurate data is also a key factor behind the lack of practical enforceability of international conventions on this issue.

   It is important to recognise that child labour is not a phenomenon that is restricted to lesser-developed nations, but is also prevalent in well-developed states. (45) In its 2002 Global Report, the ILO recognised that child labour is found in all countries, to a greater or less extent. (46) However, there is still significant disparity between wealthier and poorer nations in relation to the number of children engaged in employment (47) and the number of hours that employed children work. (48) One could argue that the risk also...