The Law & Child Labour: An Overview
Interview with Yamila Rodríguez
Yamila Rodríguez is a lawyer from Buenos Aires, Argentina. She has a strong commitment to human rights, especially children rights, with several publications on the subject.
She is currently a PhD scholar at the University of Buenos Aires where she is conducting research about human rights, children rights, autonomy and participation.
Hi Yamila! It’s such a pleasure to speak with you, let’s start with the main laws that are associated with child labour.
Hi, thank you for inviting me! I am delighted to be here. In the international law context, the most important legal instruments that we need to look at, regarding child labour, are conventions 138 and 182, from the International Labour Organization (ILO), and the United Nations Convention on the Rights of the Child (UNCRC).
ILO convention no. 138 is known as the Minimum Age Convention since it sets the age at which children can legally be employed at work. It was adopted in 1973 but, before that, many conventions had set minimum ages for different industries, for example, sea, agriculture, underground work. According to this convention, States should pursue a national policy designed to ensure the effective abolition of child labour and to raise progressively the minimum age for admission to employment.
It is important to point out that the State´s obligation is to specify which will be the minimum age in its territory: ILO C. 138 does not set a fixed age for all the States. However, the minimum age should not be less than the age of completion of compulsory schooling, and, in any case shall not be less than 15 years. This means that if in any given State the age at which children are supposed to finish primary school – which is the minimum level of education that, in accordance with Article 13 of International Covenant on Economic, Social and Cultural Rights, “shall be compulsory and available free for all”–for example, 12 years old, in that State children still cannot be legally employed until they reach the age of 15.
Then, there is ILO convention no. 182, known as Worst Forms of Child Labour Convention, which was adopted in 1999. The most important feature of this convention is that it calls for immediate and effective measures to secure the prohibition and elimination of the worst forms of child labour.
States are obliged to pursue a national policy to abolish child labour progressively but, regarding its worst forms, they must eliminate it immediately.
—ILO C. 138
The worst forms of child labour include:
all forms of slavery or practices similar to slavery (including child trafficking),
the use, procuring or offering of children for prostitution or pornography,
illicit activities (like drug trafficking),
any work which by its nature or the circumstances in which it is carried out is likely to harm the health, safety or morals of children (for example, deep-sea fishing or handling dangerous machinery).
Finally, we find the United Nations Convention on the Rights of the Child, adopted in 1989. It has been ratified by almost every state in the world and its principles have changed the way in which we, adults, relate to children in many aspects. Child labour is one of them.
The four principles of the CRC are:
Non-discrimination (Art.2)
Best interests of the child (Art.3)
The right to survival and development (Art.6.2)
Participation, or the right to be heard (Art.12)
They serve as guidelines for interpretation of the content of rights and definition of public policies. Regarding the abolition of child labour, this means that every program or strategy designed with this goal must contemplate those principles.
Specifically, art. 35 recognizes 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 the child’s health or physical, mental, spiritual, moral or social development.
As we know, child labour is a social issue, you mentioned the UN Convention on the Rights of the Child. Isn’t that considered a Human Rights law? Should child labour be seen as a part of Human Rights when it comes to the law?
The answer is definitely yes. Child labour should be addressed from a human rights-based approach.
The Committee on the Rights of Child – which is the body that monitors implementation of the CRC by states frequently publishes “General Comments” with its interpretation of the content of human rights provisions in relation with different social issues that affect children. Many of them relate directly or indirectly to child labour.
The most relevant one is GC No. 16 (2013) on State obligations regarding the impact of the business sector on children’s rights. Between many other observations, GC 16 draws attention to how global operations of business can affect children rights. For example, suppliers may be involved in the use of child labour, subsidiaries may be engaged in land dispossession and contractors or licensees may be involved in the marketing of goods and services that are harmful to children.
GC No. 20 (2016) on the implementation of the rights of the child during adolescence and GC No. 21 (2017) on children in street situations, also contain valuable insights on how child rights violations interrelate with economic exploitation.
“We already know that child labour is a very complex phenomenon and it has very different causes that should be addressed simultaneously if we wish to have a real impact. It is fundamental to look at this problem, and the multiple factors involved, from a human rights perspective that assumes that children rights are universal, indivisible, interdependent and interrelated.”
Yamila Rodríguez
The Human Rights laws you mentioned are of course international, but whose responsibility is it to implement these laws? Is it a question of national versus international governance? How does it work?
National States are sovereign, which means that they are the ultimate authority in the decision-making process of the state and in the maintenance of order, within its territory. It is a very controversial concept and it is closely related to the difficult ideas of state and government and of independence and democracy.
Although the doctrine of sovereignty has had an important impact on developments within states, its greatest influence has been in the relations between states. During the 20th century important restrictions on the freedom of action of states began to appear (UN charter, Vienna convention on the law of treaties).
As a consequence of such developments, sovereignty ceased to be considered as a synonym of unrestricted power. States have accepted a considerable body of law limiting their sovereign right to act as they please. Those restrictions on sovereignty are usually explained as deriving from consent or autolimitation.
However, in some cases states have been considered to be bound by certain rules of international law; despite the lack of satisfactory proof that these rules were expressly or implicitly accepted by them. When States have not adopted a certain international law, international organisations and courts have derived rules from the divine law, the law of nature or reason, and the law that is common to all nations (jus gentium), as well as the fundamental laws of the state.
On the contrary, new rules cannot ordinarily be imposed upon a state, without its consent, by the will of other states. In this way a balance has been achieved between the needs of the international society and the desire of states to protect their sovereignty to the maximum possible extent.
How does this work in the legal field? On the one hand, in exercise of their sovereign power, states can determine how they want to design the public policies and how to enforce the prohibitions. There are many recommendations for States in those international laws I have named before but they are free to choose the characteristics of their national law regarding child labour (for example, to impose criminal or administrative sanctions for those who employ children in dangerous activities).
On the other hand, both ILO conventions and the CRC have been accepted by almost every state in the world and all of them have accountability mechanisms. ILO C. 138 and 182 both refer to article 22 of the ILO constitution: States must make annual reports about the measures they have taken to give effect to the provisions of conventions.
The CRC has a similar mechanism by which States present periodic reports. In those examinations, States must show what measures have been taken to fulfil its obligations according to the Convention, including child labour, and receive feedback and suggestions from the international community.
In addition, the Optional Protocol to the Convention on the Rights of the Child on a Communications Procedure has entered into force in 2014. Through this new treaty, the international community has recognized that children have the right to appeal to an international mechanism specific to them if violations cannot be addressed effectively at national level.
The UN CRC defines a child as:
Article 1 – For the purposes of the present Convention, a child means every human being below the age of eighteen years unless, under the law applicable to the child, majority is attained earlier.
Does this mean there is a difference between how a child perceived internationally versus how they are viewed nationally?
According to the CRC a “child” is a person below the age of 18, unless the relevant laws recognize an earlier age of majority. The importance of the age of majority lies in the possibility to exercise the rights and responsibilities of adults. The age at which a person may perform various acts, as driving, voting, or making a valid will, does not necessarily correspond with the age of the majority.
On some issues, States are obliged to provide for minimum ages, such as the age for admission into employment and completion of compulsory education; but in other cases the CRC is unequivocal; for example, in prohibiting life imprisonment without the possibility of release or capital punishment for those under 18 years old.
How does the difference in international and national perception of a child affect child labour laws?
In more than half of countries around the world, the legal age of majority is 18 years while most of them have also set a minimum age for admission into full-time employment with the age varying from 14-16 years. Many of those countries have set a minimum age for full-time working that is lower than the mandatory end of schooling age, which suggests that children could be leaving school in favour of employment.
Also, even though children are allowed to work in many countries before they are 18 years old, they are only allowed to make small independent decisions over their own income, such as savings, they also cannot take out loans or make investments.
In most countries, children who are allowed to work are not permitted to join a union without signed parental consent. It is important to examine the domains of economic participation, education and the right to work together due to their overlapping areas.