Implementing Article 32 of the Convention on the Rights of the Child as a domestic statute: protecting children from abusive labor practices.

• Author: Kistenbroker, Hillary V.

Child labor exists everywhere, even in the United States. Exemptions in the Fair Labor Standards Act chip away at the law's effectiveness and create loopholes for abuse, particularly with children employed in agriculture. Article 32 of the Convention on the Rights of the Child provides that children have the right to protection from "economic exploitation" and hazardous labor. This Note examines the need for improvement in federal child labor laws and why such reform is important to protect children at home and abroad. Congress should implement a domestic statute embodying the functionalities of Article 32 of the CRC, as such a statute would help establish and enshrine the CRC's protections and mirror emerging norms in international law. Such a law would serve as a model for other countries and stand as a powerful vindication of America's commitment to international human rights.

1. INTRODUCTION II. CONVENTION ON THE RIGHTS OF THE CHILD ARTICLE 32: A PROPOSED SOLUTION A. Background on the Convention on the Rights of the Child B. Resistance to Ratification of the Convention as a Whole C. Textual Analysis of CRC Article 32 III. CURRENT CHILD LABOR LAWS DO NOT PROVIDE ADEQUATE PROTECTION A. The Problem of Exploitative Child Labor: A Self-Fulfilling Prophecy B. U.S. Child Labor Law: Loopholes and Opportunities for Exploitation 1. The Fair Labor Standards Act and its Treatment of Child Labor 2. Special Exceptions for Children Working in Agriculture IV. TO WHAT EXTENT DOES U.S. LAW COMPLY WITH ARTICLE 32? A. Comparing Article 32 and ,Judicial Interpretation of "Oppressive Child Labor" B. Comparing Article 32 and Judicial Interpretation of "Hazardous" Child Labor C. Other Laws Demonstrating Compliance with Article 32 D. Areas for Improvement V. ADOPTING A STATUTE WITH ARTICLE 32'S FUNCTIONALITIES WOULD BE BENEFICIAL: A COMPARISON TO THE TORTURE VICTIM PROTECTION ACT VI. CONCLUSION VII. APPENDIX A MODEL STATUTE CHILD LABORER PROTECTION ACT I. INTRODUCTION

   The Seventh Circuit's decision in Flomo v. Firestone Natural Rubbet Co. stunned children's rights advocates around the world when it declined to hold Firestone liable for exploiting twenty-three Liberian child laborers. (1) The plaintiff children worked at Firestone's rubber plant and filed suit against the company pursuant to the Alien Tort Statute (ATS). (2) They alleged Firestone's plantation used hazardous child labor in violation of customary international law. (3) Firestone tacitly encouraged such employment by setting high daily production quotas for its "legal" employees, who were primarily poor Liberian agricultural workers. (4) To ensure that they met daily quotas, workers would hire other Liberians cheaply, or, alternatively, "dragoon their wives or children into helping them, at no monetary cost." (5)

   While working on the Firestone plantation, the children used machetes to cut the bark off of rubber trees and drain the latex into large buckets. (6) The children also sprayed trees with fungicides and various other potentially toxic chemicals without any safety equipment. (7) After the lawsuit was filed, Firestone's president admitted that each worker would tap about 650 trees per day, which amounts to approximately twenty-one hours of labor. (8)

   While the Seventh Circuit found that corporations could be held liable under the ATS, the court did not hold Firestone liable for violating the law of nations. (9) The court acknowledged that although the labor was clearly "hazardous," the case nevertheless had to be dismissed. (10) Writing for the court, Judge Richard Posner explained that current sources of international law regarding child labor did not allow him to "distill a crisp rule." (11) This lack of a clear international principle made it difficult for the court to determine which actions violated international law. (12)

   Although the international community has made much advancement in recognizing and protecting children's rights, (13) Flomo illustrates that some courts are hesitant to acknowledge that international child labor law has risen to the status of custom enforceable under the ATS. This is particularly true with respect to Article 32(1) of the Convention on the Rights of the Child (CRC), which recognizes a child's right to protection from exploitation or labor, which might harm his development. (14) The Seventh Circuit criticized Article 32's language as "too vague and encompassing to create an international legal norm." (15)

   The purpose of this Note is to propose that Congress should codify a domestic statute implementing the same functionalities as Article 32 of the CRC, as such a statute would help establish and enshrine the protections therein and mirror emerging norms in international law. Part Two explains why the U.S. has failed to ratify the CRC as a whole and analyzes the text of Article 32 in depth. Part Three of this Note establishes why current child labor laws in the U.S. and other countries provide inadequate protection. Part Four examines the extent to which U.S. law already complies with Article 32 and discusses areas for improvement. Finally, Part Five proposes a new domestic statute and explains how it would be beneficial, drawing on a comparison to the Torture Victim Protection Act of 1991.

2. CONVENTION ON THE RIGHTS OF THE CHILD ARTICLE 32: A PROPOSED SOLUTION

   1. Background on the Convention on the Rights of the Child

      The Convention on the Rights of the Child is an international agreement establishing "a comprehensive set of goals for individual nations to achieve on behalf of their children." (16) The CRC affirms children's basic civil, political, economic, social and humanitarian rights. (17) Every member of the U.N. has ratified the CRC except for the U.S. and Somalia. (18) Although the U.S. signed the CRC on February 16, 1995, (19) signing a treaty does not legally bind a country. (20)

      Thus, the CRC "does not have the force of domestic law and does not create binding obligations" until it has undergone the full ratification process in Congress. (21) However, the CRC is an international custom, even though the U.S. has not ratified. (22) As such, the CRC is only enforceable through the second clause of the Alien Tort Statute, which allows jurisdiction when a foreign plaintiff claims a violation of international custom. (23) Yet the Seventh Circuit's criticism in Flomo demonstrates that the ATS is unlikely to provide remedy to foreign plaintiffs seeking to enforce customary international law relating to child labor.

   2. Resistance to Ratification of the Convention as a Whole

      The government's failure to ratify the CRC is largely attributable to political controversy and misconception about the CRC's intent, language, and purpose. (24) Opponents of the CRC usually have two main arguments: (1) the CRC will interfere with parents' judicially implied constitutional right to raise children, (25) and (2) ratifying the CRC will weaken U.S. sovereignty and give the U.N. power to determine how American children are treated within our legal system. (26) Opponents take issue with the whole text of the CRC and believe that the CRC as a whole places an unwarranted level of importance on children's rights to the detriment of parental rights. (27) Interest groups also fear that ratification of the CRC will permit children to sue their parents and enable teenagers to get abortions without parental consent. (28) Scholars have largely dismissed these two main arguments because opponents fail to adequately comprehend the true text and purpose of the treaty. (29)

      Groups concerned that the CRC will compromise American sovereignty fail to realize that the U.S. cannot legally be bound to a treaty without voluntary consent. (30) While ratifying a treaty may restrict U.S. sovereignty in a specific area, Congress has the power to determine when such a tradeoff is worthwhile. (31) Since the U.S. views international treaties as non-self-executing, the act of ratification itself should be viewed as an exercise of sovereignty. (32) In the event of a conflict between the two bodies of law, the Constitution would always supersede the CRC. (33)

      Furthermore, neither the U.N. nor the CRC provide how a state party should implement or enforce the treaty. (34) Instead, the CRC created a Committee on the Rights of the Child to evaluate how ratifying countries have implemented the CRC's provisions and provide guidance for improvement. (35) The Committee bases its evaluation on periodic reports submitted by each country. (36) CRC Article 45 also allows the Committee to use additional methods to monitor compliance--such as consulting specialized agencies, commissioning studies for additional information, and publishing general recommendations and suggestions. (37) However, Article 45 is not technically an enforcement mechanism because individual states have the ultimate power to choose how to implement the CRC's goals. (38)

      Furthermore, the U.S. has ratified many other human rights treaties with no adverse effects on sovereignty. (39)

      Opponents also portray the CRC as anti-family and impinging on parental rights, when in reality, the CRC espouses the opposite. The text of the CRC makes numerous references to a child's place within the family and favorably describes the family unit as a whole. For example, the Preamble refers to the family as "a fundamental group of society" and "the natural environment for growth and well-being." (40) Article 5 obliges states party to "respect the responsibilities, rights and duties of parents." (41) Moreover, Article 9 requires states party to ensure that children are not separated from their parents against their will, except in cases where competent authorities deem it necessary for the child's best interest. (42) As evidenced at various points in the text, drafters of the CRC intended to "preserve the balance" between children's rights and family rights, rather than reduce a parent's legitimate rights or undermine...