The prohibition of child labour under the Convention on the Rights of the Child (CRC)

by Panagiotis Kontakos,

Introduction

It is part of the problem of child labour that to treat all work done by children as equally unacceptable means to confuse and trivialise the issue. Children do a variety of work in widely divergent conditions. However, many societies, especially poor rural ones, do not necessarily view child work as ‘bad’, even at an age of eight or nine years. UNICEF classifies child labour as intolerable and exploitative, if it involves the following characteristics: it is carried out full-time at too early an age; too many hours are spent on working; it exerts undue physical, social or psychological stress; it includes work and life on the streets in bad conditions; inadequate pay; too much responsibility; it hampers access to education; it undermines children’s dignity and self-esteem, such as slavery or bonded labour and sexual exploitation; it is detrimental to full social and psychological development. This analysis presents the extent of protection of children against child labour, in particular economic exploitation, based on the Convention on the Rights of the Child (CRC). (C. Grootaert, 1995, pp. 198-203)

Definition of Child Labour

The term “child labour” does not encompass all work performed by children under the age of 18, but that which violates international standards. Many children, in very different national circumstances, carry out work that is entirely consistent with their education and full physical and mental development. Drawing on the provisions of ILO Conventions No.138 and No.182, there are three categories of child labour to be abolished:

  • Labour performed by a child who is under a minimum age specified in national legislation in line with international standards for that kind of work.
  • Labour that jeopardizes the physical, mental or moral well-being of a child, known as hazardous work.
  • The unconditional worst forms of child labour, which are internationally defined as slavery, trafficking, debt bondage and other forms of forced labour, forced recruitment for use in armed conflict, prostitution and pornography and illicit activities.

Some child labourers are highly visible, such as street children working in the urban informal economy. Others, such as child domestic workers, are effectively hidden from public view and are thus particularly vulnerable, including to physical, emotional and sexual abuse. Rather than working in formal sector establishments that produce for export, the majority of child labourers in manufacturing toil in supply chains producing for the domestic market, for example, in the production of fireworks, matches or incense sticks. A reported increase in home-based production of these and other goods, in response to heightened competitive pressures, brings with it an increased potential for exploitation of child labour.

In its 2006 Global Report, The end of child labour: Within reach, ILO reports: “In 2004 there were 218 million children trapped in child labour, of whom 126 million were in hazardous work. Although the participation of girls in child labour and hazardous work is on a par with that of boys in the youngest age group (5-11 years), boys predominate considerably at older ages in both categories. However, the number of child labourers globally fell by 11 per cent over the last four years, while that of children in hazardous work decreased by 26 per cent. For the age group of 5-14 years the decline in hazardous work was even steeper – by 33 per cent. The global picture that emerges is that child work is declining, and the more harmful the work and the more vulnerable the children involved, the faster the decline.” (UNICEF, 2007, p. 479)

Latin America and the Caribbean are making the greatest progress – the number of children at work has fallen by two-thirds over the last four years, with just 5 per cent of children now engaged in work. The least progress has been made in sub-Saharan Africa, where the rates of population growth, HIV/AIDS infection and child labour remain alarmingly high. (UNICEF, 2007, p. 479)

Legal Instrument: The Convention on the Rights of the Child

The Convention on the Rights of the Child is a human rights treaty, which sets out the civil, political, economic, social, health and cultural rights of children. It was unanimously adopted by the UN General Assembly on 20 November 1989. It entered into force on 2 September 1990. The right of children to be protected from economic exploitation first appeared in the Declaration on the Rights of the Child of 1924 and was reiterated and expanded in the Declaration on the Rights of the Child of 1959. (Detrick, 1992, pp. 1-4)

The Article 32 of the Convention on the Rights of the Child (CRC) stipulates that:

  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
  3. provide for a minimum age or for minimum ages for admission to employment;
  4. provide for appropriate regulation of the hours and conditions of employment;
  5. provide for appropriate penalties or other sanctions to ensure the effective enforcement of the present article.”

According to the Article 39 of the Convention, “States Parties shall take all appropriate measures to promote physical and psychological recovery and social reintegration of a child victim of: any form of neglect, exploitation, or abuse; torture or any other form of cruel, inhuman or degrading punishment; or armed conflicts. Such recovery and reintegration shall take place in an environment which fosters the health, self-respect and dignity of the child.

The Article 4 of the Convention states that “States Parties shall undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognized in the present Convention. With regard to economic, social and cultural rights, States Parties shall undertake such measures to the maximum extent of their available resources and, where needed, within the framework of international co-operation”.

Scope of the Norm

Based on the Article 1 of the CRC, “a child means every human being below the age of eighteen years unless, under the law applicable to the child, majority is attained earlier”. However, considering that the age of eighteen is old in many cultures to be considered as a child, the national law may set a lower age.

The Article 32 of the CRC prohibits the employment of children under a defined age as well as the employment of children in a workplace that threatens their health or dignity. Under the above-mentioned Convention, the following types of work are prohibited:

  • hazardous work;
  • work that interferes with the child’s education;
  • work that is harmful to the child’s health; and
  • work that is harmful to the child’s physical, mental, spiritual, moral or social development.

It is important to underline the fundamental difference between work and economic exploitation. Exploitation refers to the taking unjust advantage of another for someone’s own benefit. It includes situations of manipulation, misuse, abuse, victimisation, oppression or ill-treatment. These situations undermine the dignity of the child and threaten the proper development of his/her personality. The exploitation poses a risk to the child’s education, health, physical and mental progression. (Pais, 1993, p. 51)

The application of the Article 32 of the CRC is broad, as it prohibits “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”. The CRC does not refer to the normal development, but to the individual development of each child. (Child, 1999, p. 58)

Based on the Article 32 of the CRC, State Parties should establish the right to be protected from exploitation by introducing minimum age legislation. The principal international instrument introducing minimum ages is the ILO Convention concerning Minimum Age for Admission to Employment No. 138. According to this Convention, States Parties have to determine the risky for the child types of work. Recommendation No. 146 that supplements Convention No. 138, gives guidance on the criteria, which should be applicable to the determination of hazardous employment or work. Art. 5 (3) of the ILO Minimum Age Convention No. 138 prohibits States Parties from excluding certain activities from the application of the Convention: mining and quarrying; manufacturing; construction works; work in electricity, gas and water; sanitary services; transport, storage and communication; and work on plantations and in other agricultural undertakings mainly producing for commercial purposes. These types of work because of their nature are considered to be particularly harmful for the child’s development. Given that these types of work correspond to the types of child labour designated as exploitative by UNICEF and the ILO, it can be argued that the Minimum Age Convention attempts to determine certain types of work per se as exploitative. (ILO, 1997, pp. 105-107)

State Obligations

The Article 32 of the CRC stresses that States not only have to provide for appropriate penalties or other sanctions but also for adequate regulation of the hours and conditions of employment and for a minimum age for admission to employment with due regard to the relevant international instruments. Given that the Article 2 of the of the ILO Minimum Age Convention demands from the States to establish a minimum age not less than the age of completion of compulsory schooling, the CRC reiterates the important link between the minimum legal age for admission to employment or work and the minimum age for the end of compulsory education. (ILO, 1997, p. 114)

In relation to the conditions of employment, the relevant international instruments are the ILO Conventions that prohibit employment of children in certain occupations at night, require medical examinations and prohibit children from specific dangerous occupations such as the Occupational Safety and Health Convention No. 152. Particular attention should be paid to economic exploitation of children in the informal sector, for example, agriculture, fishing and domestic service, where the phenomenon is more prevalent.  (Child, 2003, pp. 26-38)

Both UNICEF and ILO stress the importance of education as a key factor in limiting child labour. In this context, the States shall take legislative, administrative, social and educational measures. Administrative measures could include labour inspections of companies. The wide range of measures is proof of the fact that States Parties have the obligation to prevent and suppress violations of the right to protection from economic exploitation by private parties. (Child, 2003, pp. 35-38)

The Committee on the Rights of the Child also underlined the need to develop a comprehensive national strategy or national plan of action for children. While implementation constitutes an obligation for States Parties, it needs to engage all sectors of society, including the children themselves as well as civil society. (Child, 2003, pp. 37-38)

Moreover, in accordance with the Article 39 of the CRC, exploited children should be offered recovery and reintegration. Where children are working illegally, States should ensure the availability of recovery and integration programmes that focus on assisting under-age children and those in ‘worst forms’ of labour to leave work, receive education and training, and improve their life chances without further victimization. (UNICEF, 2007, p. 497)

States may fulfil their obligations within the framework of international cooperation, i.e. they should be supported with development assistance when needed. The WTO should ensure that its activities related to international cooperation and economic development give primary consideration to the best interests of children and promote the full implementation of the CRC. (Child, 2003, p. 63)

Conclusion

Child labour can be defined as a form of denial of the right to education and of the opportunity to reach full physical and psychological development. International legal instruments have tried to enforce the fight against the exploitative forms of child labour. Concerning the Convention on the Rights of the Child, since its adoption, in 1989, it has reached almost universal declaration. However, the Convention needs to achieve its potential to transform the lives of children worldwide, thus it is significant to be well known and its binding obligations on States must be fully understood. Cooperation in international level constitutes the key on the protection of the right of every child to grow up in a safe and inclusive environment.

References

C. Grootaert, R. K., 1995. Child Labour, An Economic Perspective. International Labour Review.

Committee on the Rights of the Child, 1999. Report on the Twenty-second Session. CRC/C/90.

Committee on the Rights of the Child, 2003. General Comment No. 5. CRC/GC/2003/5.

Committee on the Rights of the Child, 2003. General Comment No. 5, General Measures of Implementation of the Convention on the Rights of the Child. CRC/GC/2003/5.

Detrick, S., 1992. The UN Convention on the Rights of the Child: A Guide to the “Travaux Pre´paratoires. Martin Nijhoff Publishers.

ILO, 1997. Child Labour, Targeting the Intolerable. ILO.

ILO, 2004–2005. The End of Child Labour: Within Reach. ILO.

Pais, M. S., 1993. Opening Statements on the Day of General Discussion on the Economic Exploitation of Children. fourth ed. Committee on the Rights of the Child.

UNICEF, 2007. Implementation Handbook for the Convention on the Rights of the Child. Third ed. United Nations Children’s Fund.

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