Edith Cowan University
|Childhood is a golden age, a time for nurturing, developing, being educated, laying sturdy foundations for a productive adulthood, or so we with comfortable lives assume. But many children endure crippling poverty, stultifying physical, emotional, intellectual and social disadvantages, and exhausting work. Of the estimated 250 million children aged between five and fourteen years who are employed world-wide, almost half are employed full time and most live in developing nations: 61 per cent in Asia, 32 per cent in Africa and 7 per cent in Latin America. Considerable as they are, these figures still underestimate the number of children working in unregistered, unregulated, unsafe and hazardous workplaces. Young children bonded in repayment of parental debt, 'sold into the carpet industry and tied to their looms for twelve or more hours a day, or sold or lured into the sex industry' are shocking examples of blighted childhood. Not only do these experiences damage children's mental and physical health, but also deny developing nations a prospective generation of educated adults. Poverty is thus perpetuated.|
|Introducing International Labour and Human Rights Law|
A 1999 international Convention, which complements an earlier Convention: (The International Labor Organisation (ILO) Convention No. 138, 1973, Minimum Age for Admission to Employment), holds promise for child labourers in developing nations. As its title implies, the 1999 Convention concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour C 182, specifies that 'the term child shall apply to all persons under the age of 18' and defines the worst forms of child labour as ' 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'. Also relevant is the Convention's mechanism for enforcing its provisions as it calls for penal sanctions and an overseeing special committee. As over thirty African countries have ratified the Convention since 1999, the number of children working in the ' worst forms' of child labour could be expected to decline if it were legally enforced.
The Convention's norms have already been promoted in some regions. In 1992, the ILO created the International Programme on the Elimination of Child Labor (IPEC) that is currently operating in fifty countries in Africa, Asia, and Latin America. As a catalyst for change, IPEC activities promote the 1999 Child Labour Convention, seek to empower constituencies and help create partnerships to eliminate child labour. Recent IPEC activities in Sub-Saharan Africa have launched or expanded ten programs aimed at eliminating the worse types of child labour, reforming legal services and developing policies.
Together with international labour laws and IPEC activities, international human rights laws provide string to the anti-child labour bow. All fundamental human rights treaties address labour rights and each has a place in the reform process, but the Convention on the Rights of the Child (CRC) is the most comprehensive international instrument for protecting children's rights: the right of children is to be neither exploited economically, nor to perform work that harms their health or physical, mental, spiritual, moral or social development. Article 32 explicitly requires states to protect children from harmful work, ensure they are educated, and establish a minimum age for employment. Except for Somalia, all African nations have ratified the CRC; thus, they are responsible for enforcing its provisions.
Enforcing international law, however, remains a major stumbling block. Having ratified a United Nation's treaty, nations are responsible for enforcing it, depending on whether the treaty is self-executing, limited by a reservation, not in conflict with existing statutory law or incorporated into their constitution. Numerous independent African States guarantee human rights in their political constitutions, but there is often a lack of political will to act decisively on the issue. At independence, both the French-speaking African states and the English-speaking African countries have taken steps to incorporate human rights in their constitutions; institutions that protect human rights, such as an independent judiciary, were also constitutionally established. The scaffolding is in place and the fundamentals are right, but the worsening economic conditions, nepotism and the crumbling of trade have pushed many African countries to the point of institutional collapse. Child labour remains rife even if states failing to develop or enforce labour laws are required to report this omission to the Committee on the Rights of the Child under Article 44 and Article 45. These reports identify the local conditions that affect child workers; they are a valuable resource for local activists and practitioners seeking to hold their governments accountable and to attract attention to detrimental child labour practices. However, at a time of sanctions and crises, Western pressure does not always improve the situation for children in these countries. The Committee on the Rights of the Child is responsible for overseeing that the Convention is implemented effectively, assessing member states' progress periodically and encouraging nations to cooperate; by any measure, no mean feat.
Responsibility for upholding international human rights law through monitoring, regulating and punishing those who exploit child workers lies with nations that have ratified the CRC. Attempts to fulfil these types of commitments are being made. For example, the Democratic Republic of the Congo has a Labour Code that gives a child the capacity to enter into an employment contract (Minimum age 14 years, maximum 18 years, according to the case), regulates conditions and hours of work, defines the nature of suitable work for children, and stipulates penalties for violations of the Code. However, parents and children are often unaware of their rights, and current economic conditions are such that violations take ' place in the informal sector or unstructured sector or involved living by one's wits'; thus, ' practice falls far short of theory'.
Clearly, enforcing international human rights law via domestic legislation is not straightforward. Politically unstable African nations ravished by war lack a credible, independent judiciary for citizens to challenge governmental or non-governmental failure to protect child labourers. But even in those countries that pride themselves in having an independent judicial system, domestic labour laws are often ignored. As local remedies, including judicial and administrative procedures, must be exhausted before recourse to international remedies is possible, international law is largely beyond the reach of most people. Further, as human rights instruments provide limited investigatory and reporting authority, and no sanctioning ability, few possibilities for enforcing the CRC exist. Embarrassing recalcitrant nations into action is one of the few, but often surprisingly effective, avenues available for enforcing treaty obligations.
Regional treaties are another authority upon which to draw in opposing child labour. In order to improve their human rights record, in 1981, African heads of state adopted the African Charter on Human and Peoples' Rights ("Banjul Charter") that enshrines human rights guarantees. Among other human rights, the African Charter on Human and Peoples' Rights guarantees rights to property, fair wages, health, education, family, a healthy environment, and economic, social and cultural development. Further, the Organization of African Unity drafted its own 'Charter on the Rights and Welfare of the African Child'. Together with the proposed African Court, these developments provide the right conditions, the potential to strengthen the regional human rights system, deter human rights abuse, and ensure a strong human rights culture in Africa.
As African nations attempt to recover from their colonial past, their challenge is to harness useful global processes that do not damage children. But, where developing nations compete for corporate investment interests, cheap, unregulated child labour becomes a prime draw-card. That many developing nations see the international move to ban child labour as an irrelevant, neo-colonial, Western luxury is not surprising when the country is in tatters and economic gain for big business is at stake. Furthermore, foreign companies operating in developing nations are often not bound by the host nation's (or their own nation's) laws. Local child labour issues are inseparable from global legal, political and economic processes.
In some African countries, up to fifty percent of children work, the vast majority in agriculture. Most of them are involved in the local informal economy and international trade regulations have little relevance for them. But where multinational corporations employ children, import policies and multi-lateral trade agreements are potentially useful for regulating child labour. Nonetheless, difficulties abound on at least two fronts. First, poorer nations of the South have resisted attempts to insert child labour prohibitions into the new General Agreement on Tariffs and Trade (GATT) and the North American Free Trade Agreement (NAFTA). A "resistance" that was met with ready approval, since it suited the interests of big Western corporations. Second, children's work in trade industries is often invisible, as, for example, in the leather tanning industries in Africa where adults put the finishing touches to goods exported to developed nations.
Despite these problems, several multinational corporations have bowed to Western public pressure and instituted codes of conduct to regulate their activities in developing nations. In developing guidelines, the United Nations confirms its concern about regulating the economic and social policies of multinational corporations in a globalized economy. Codes of conduct that regulate business behaviour are however, not legally binding; courses of action are recommended only. But some trade unions, employer organizations, various environmental, consumer, investor, religious, ethical and other organizations have made accepting their code as a condition of their membership or licensing agreements. Nevertheless, protecting child labourers from exploitative practices requires relying largely on the goodwill of employers.
Cultural proclivities are another major impediment to promoting rights-based principles. Notions that children are entitled to legal protection that overrides family duties and responsibilities seems often inappropriate in the context of 'group-centred' communities in Africa. Nevertheless, international instruments including the CRC provide a powerful basis for developing policies to protect children from exploitative labour practices and educating parents and children of their rights in the context of new global trade practices. Referring to a nation's international human rights obligations adds force to campaigns against child labour and removes idiosyncratic agenda from local strategies. Further, the Convention's norms could be harnessed to raise people's awareness that child labour is not only illegal, but that short term, economic gains made at the expense of children have serious detrimental consequences for the child's future and for the future of their state.
The CRC provides a comprehensive basis for developing social policies for which promoting and enforcing its norms are primary reform objectives. As children are relieved from having to work, other areas of their lives will improve. These notions are not fanciful as poverty and child labour do not necessarily co-exist. For example, Kerala, in India, has one of the lowest levels of child labour and a school dropout incidence of less than one percent, despite low income levels and high levels of poverty. The high level of social and political awareness among the Kerala population that values sending children to school explains this accomplishment.
I have focused largely on global approaches and top-down responses to eliminating child labour. The on-going challenge for the ILO and the broader anti-child labour campaign is to engage with local and national ideals, give support to bottom-up initiatives and to work in ways that respect diversity and autonomy without compromising children's basic rights. For international labour and human rights instruments to have relevance for children, the employers and others who turn a blind eye to, or are unaware of, children's suffering, need to be held accountable for their practices. Legal accountability is currently the best option available. However, enforcing laws is impossible where legal services are non-existent or inappropriate; thus, legal reform is a pressing issue in many developing nations.
Public protests against child labour that demand greater transparency and accountability from employers of children are also essential for the reform process. It allows the singling out of unlawful practices but also, to justify ethical approaches and to promote non-exploitative practices as a marketing tool. Much can, and is being done voluntarily by some companies, to eliminate harmful child labour practices.
The notion that child labour is illegal and perpetrators culpable requires a considerable shift in the way child labour is perceived. Developing comprehensive, local approaches to deal with the issue is paramount. The first step is to acknowledge child labour as a problem, rather than part of the solution to overwhelming social, economic and cultural disadvantage in developing nations. Where all levels of government are committed to ensuring adult workers are paid adequate salaries, and social welfare structures are developed to assist disabled or unemployed parents or guardians, children are less likely to need to work full-time. Local labour unions will also continue to explore ways to advocate for the rights of all workers. Second, for rights-based principles to have relevance in all developing nations, cultural beliefs, attitudes and practices regarding the value of children, childhood, education and leisure have to be re-assessed in light of both global trends and local opportunities.
For many African nations, eliminating child labour and developing comprehensive education programs is a mammoth task, particularly in light of the HIV/AIDS epidemic and other serious problems. But international norms provide an authority to guide local social, economic and cultural reform, and policy development. For the betterment of all, every possibility for improving the quality of children's lives and developing their capabilities must be seized.
 Garg A 'A Child Labor Social Clause: Analysis and Proposal for Action' (1999) (Winter-Spring) New York University Journal of International Law and Politics 473-534 @ 475. Retrieved April 12, 2002, from Westlaw Australia database.
 Ibid, 476.
 Smolin D M 'Conflict and Ideology in the International Campaign Against Child Labour' (1999) 16 (Spring): Hofstra Labor & Employment Law Journal 383-451 @ 383. Retrieved April 12, 2002 from Westlaw Australia database.
 Kern C M 'Child Labor: the International Law and Corporate Impact' (2000) Winter Syracuse Journal of International Law and Commerce 177-198 @ 177. Retrieved August 8, 2002 from Westlaw Australia database.
 C182 Worst Forms of Child Labour Convention, 1999, International Labour Organization, International Programme on the Elimination of Child Labour: IPEC. http://www.ilo.org/public/english/standards/ipec/ratification/convention/text.htm Retrieved December 3, 2001. Articles 2 and 3 respectively.
 IPEC ratification map: http://www.ilo.org/public/english/standards/ipec/ratification/map/index.htm
 Above, note 1, 497.
 Samet A J 'Rights of Children in the New Millennium' Keynote Address: Child Labor and the New Millennium (1999) 21 Whittier Law Review Fall (Sixteenth Annual International Law Symposium): 69-81 @ 78-79. Retrieved August 8, 2002 from Westlaw Australia database.
 IPEC Action Against Child Labour 2000-2001: Progress and Futures Priorities Report (2002) International Labour Organisation at http://www.ilo.org/public/english/standards/ipec/ratification/convention/index.htm
 Ayoub L "'NIKE Just Does it - and Why the United States Shouldn't: the United States' International Obligation to Hold MNCs Accountable for their Labor" (1999) Spring-Summer DePaul Business Law Journal 395-442 @ 413. Retrieved August 8, 2002 from Westlaw Australia database. See The International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Convention on the Elimination of Discrimination against Women and the Convention on the Rights of the Child (CRC).
 Smith J M ' North American Free Trade and the Exploitation of Working Children' (1994) Fall Temple Political and Civil Rights Law Review: 57-116 @ 70. Retrieved August 8, 2002 from Westlaw Australia database.
 Convention on the Rights of the Child, G.A. res. 44/25, annex, 44 U.N. GAOR Supp. (No. 49) at 167, U.N. Doc. A/44/49 (1989), entered into force Sept.2 1990. University of Minnesota Human Rights Library. http://www1.umn.edu/humanrts/instree/k2crc.htm
 Under the "best interests of the child" standard, the obligations of states, parents together with the international community are set forth in Article 32:
1. 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 the child's health or physical, mental, spiritual, moral or social development.
2. States Parties shall take legislative, administrative, social and educational measures to ensure the implementation of the present article. To this end, and having regard to the relevant provisions of other international instruments, States Parties shall in particular:
(a) Provide for a minimum age or minimum ages for admission to employment;
(b) Provide for appropriate regulation of the hours and conditions of employment;
(c) Provide for appropriate penalties or other sanctions to ensure the effective enforcement of the present article.
 Above, note 1, 498.
 Levesque RJR 'The Internationalization of Children's Human Rights: Too Radical for American Adolescents?' (1994) 9 (Spring) Connecticut Journal of International Law 237-293 cites several sources. Retrieved August 8, 2002 from Westlaw Australia database.
 Udombana NJ 'Toward the African Court on Human and Peoples' Rights: Better Late than Never' (2000) 3 Yale Human Rights and Development Law Journal 45-111 @ 48. Retrieved August 8, 2002 from Westlaw Australia database.
 Ibid, 48-49.
 Above, note 13.
 UN Convention on the Rights of the Child Committee on the Rights of the Child Consideration of Reports Submitted by States parties Under Article 44 of the Convention Democratic Republic of the Congo 28 February 1998 CRC/C/3Add.57 8 August 2000, 27. (Order No. 19/67 of 3 October 1967).
 Above, note 17, 51.
 Above, note 4, 185.
 Above, note 17, 96.
 Ibid, 46.
 See African Charter on the Rights and Welfare of the Child, July 11, 1990, OAU Doc. CAB/LEG/24.9/49 (1990). As of November 1999, it had been ratified by 16 African countries; Price Cohen C 'Implementing the U.N. Convention on the Rights of the Child' in Sixteenth Annual International Law Symposium "Rights of Children in the New Millennium" (1999) Whittier Law Review. 95-105 @ 104. Retrieved August 8, 2002 from Westlaw Australia database.
 Above, note 17, 111.
 Above, note 4, 190.
 Krug N J "Exploiting Child Labor: Corporate Responsibility and the Role of Corporate Codes of Conduct" (1998) New York Law School Journal of Human Rights (Spring): 651-676 @ 659. Retrieved November 23, 2001 from Westlaw Australia database.
 Glut T A "Changing the Approach to Ending Child Labor: An International Solution to an International Problem" (1995) Vanderbilt Journal of Transnational Law November (28): 1203-1244 @ 1227-1228 (Retrieved April 12, 2002 Westlaw Australia database) refers to ILO estimates. Most African child labourers are agricultural workers; for example, in Zimbabwe in 1999, a survey shows the majority (82%) of the working children are employed in the agricultural sector and 11% are in the domestic sector. See the National Child Labour Survey Country Report Zimbabwe 1999 International Labour Organisation International Programme on the Elimination of Child Labour (IPEC). http://www.ilo.org/public/english/standards/ipec/simpoc/zimbabwe/report/page6.htm#action
 Ibid, 1215.
 Ibid, 1227.
 Weiss E B ' The Rise or the Fall of International Law?' (2000) Fordham Law Review, (November): 345-372 @ 352. Retrieved August 8, 2002 from Westlaw Australia database.
 International Labour OrganizationActriv Codes of Conduct for Multinational Corporations @ http://www.itcilo.it/english/actrav/telearn/global/ilo/guide/main.htm
 Mutua M W 'The Ideology of Human Rights'. (1996) 36 Spring Virginia Journal of International Law Association 589-657 @ 642. Retrieved April 2, 2002 Westlaw Australia database.
 Above, note 1, 482-483.
 Ibid, 483.
 Above, note 3, 404.
 Above, note 9, 78.
Ann-Claire Larsen is a sociologist who has a keen interest in international human rights law. In July 2002, she moved from Murdoch University's School of Social Inquiry to the School of Justice and Business Law at Edith Cowan University, Perth, Australia. Her research interests include indigenous violence, child labour, and rural disadvantage from a human rights perspective. Currently, she is researching employee experiences at a health call centre. Women in prison will be her next research focus. The theme that runs through her research is how services, which are established to protect vulnerable populations, fail to achieve their objectives. Recent publications include:
Tonts, M. and A. Larsen 'Rural Disadvantage and Human Rights in Australia' Issues of Health, Education and Housing Geography. Forthcoming, 2002. Larsen, A. and Alan Petersen, 'Rethinking Responses to "Domestic Violence" in Australian Indigenous communities' The Journal of Social Welfare and Family Law 23(2) 2001: 1-14. Larsen, A. 'Governing Families with Young Children through Discipline', Journal of Sociology Nov.1999, 35, No. 3: 279-296.