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Week 5 Child Labour and Human Rights Questions to Consider To what extent does international law deal with the violence of everyday? What is the real-life context of this issue? i.e. Against which background are legal provisions operating? Child labor refers to the exploitive circumstances in which children are sometimes forced to work. The ILO estimate there has been a significant drop in the number of child laborer’s around the world (down to 150 million), however a significant proportion of these are expected to be in the worst forms of child labour. The ILO note that it is difficult to get true estimates of these statistics since a lot of the problem is concealed. The difference between 'child labour' and 'child work' is that child labour refers to work that is harmful to children. It is work that is mentally or physically dangerous, work that interferes with their ability to go to school which can affect their income-earning potential as adults. Child labours is prevalent in a number of industries, including agriculture, manufacturing, textiles (fashion, carpet industry etc) and the drug industry. Child labour can also take place in a domestic setting – a caring role for their younger siblings, maid/servantry work etc. This is capable of interfering with studying and school life just as well as industry work. What are the relevant legal provisions?  The Minimum Age Convention (ILO Convention No.138)  Convention concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour (ILO No. 182),  Recommendation Concerning The Prohibition And Immediate Action For The Elimination Of The Worst Forms Of Child Labour, (R190)  Convention on the Rights of the Child, CRC  UN Declaration on Human Rights Are there any key problems which the law in this area has addressed particularly well or particularly inefficiently?  Are NGOs satisfied with how these laws are operating? 

Have there been any particularly interesting innovations in these areas?  Does this area tell us anything interesting about law-making, participation and PIL’s focus? 

Basic Reading Wallace & Ortega Chapter 9 Klabbers Chapter 6 The Minimum Age Convention (ILO Convention No.138) http://www.ilo.org/dyn/normlex/en/f? p=NORMLEXPUB:12100:0::NO:12100:P12100_ILO_CODE:C138 - Considering that the time has come to establish a general instrument on the subject, which would gradually replace the existing ones applicable to limited economic sectors, with a view to achieving the total abolition of child labour, and having determined that these proposals shall take the form of an international Convention, adopts this twenty-sixth day of June of the year one thousand nine hundred and seventy-three the following Convention, which may be cited as the Minimum Age Convention, 1973. - Policy designed to ensure the abolition of child labour. - C138 is considered the "bedrock of national and international action for the eventual, total abolition of child labor. To date, 114 countries have adopted C138. However, the United States is not among them. Convention concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour (ILO No. 182), 38 I.L.M. 1207 (1999), entered into force Nov. 19, 2000 http://www1.umn.edu/humanrts/instree/ilo182.html - Considering the need to adopt new instruments for the prohibition and elimination of the worst forms of child labour, as the main priority for national and international action, including international cooperation and assistance, to complement the Convention and the Recommendation concerning Minimum Age for Admission to Employment, 1973, which remain fundamental instruments on child labour, and - Considering that the effective elimination of the worst forms of child labour requires immediate and comprehensive action, taking into account the importance of free basic education and the need to remove the children concerned from all such work and to provide for their rehabilitation and social integration while addressing the needs of their families, and - Recalling the resolution concerning the elimination of child labour adopted by the International Labour Conference at its 83rd Session in 1996, and - Recognizing that child labour is to a great extent caused by poverty and that the long-term solution lies in sustained economic growth leading to social progress, in particular poverty alleviation and universal education…

Recommendation Concerning The Prohibition And Immediate Action For The Elimination Of The Worst Forms Of Child Labour - Adopted By The Conference At Its Eighty-Seventh Session, Geneva, 17 June 1999 (Recommendation No. 190) http://www.ilo.org/public/english/standards/relm/ilc/ilc87/com-chir.htm - Expanding on the ILO No.182 Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights http://www1.umn.edu/humanrts/links/norms-Aug2003.html - Transnational corporations and other business enterprises, as organs of society, are also responsible for promoting and securing the human rights set forth in the Universal Declaration of Human Rights. UN Guiding Principles on Business and Human Rights https://www.ohchr.org/Documents/Publications/GuidingPrinciplesBusinessHR_EN.pdf - ‘The United Nations Guiding Principles on Business and Human Rights (UNGPs) is an instrument consisting of 31 principles implementing the United Nations' (UN) "Protect, Respect and Remedy" framework on the issue of human rights and transnational corporations and other business enterprises.’ - Foundational Principles: o ‘States must protect against human rights abuse within their territory and/or jurisdiction by third parties, including business enterprises. This requires taking appropriate steps to prevent, investigate, punish and redress such abuse through effective policies, legislation, regulations and adjudication.’ o ‘States should set out clearly the expectation that all business enterprises domiciled in their territory and/or jurisdiction respect human rights throughout their operations.’ Bullard “Child Labor Prohibitions are Universal, Binding, and Obligatory Law: The Evolving State of Customary International Law concerning the Unempowered Child Laborer” Houston Journal of International Law, Fall, 2001, p147 - In construing the meaning of “child labour” as used in ILO Convention 138, the U.S. Department of Labor gives it a broad definition: “the term ‘child labor’ generally refers to any economic activity performed by a person under the age of 15.”’ - National laws may be limited by their narrow scope, lack of clarity, and loopholes. The international problem, though, lies in monitoring and ensuring enforcement of the domestic labor laws of another sovereign nation. - Instead international norms should be used to protect those who cannot protect themselves—children. - The prohibition of child labor arguably has attained the status of customary international law. The worst forms of child labor violate obligatio ergo omnes, and

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are therefore crimes against humanity. Hence, child labor prohibitions are universal, obligatory, and binding on all nations and individuals. The problem of child labor embraces many controversies, including state sovereignty, economic development, trade globalization, international labor rights, cultural sovereignty, poverty, racism and inequality. There is a difference between child labor and exploitive child labor. Globalisation draws more children into servitude. Some multinational companies must utilize lower wage markets to stay competitive. To allow the practice of child labor is to deprive a child of childhood, to rob the child of freedom, to ensure illiteracy, to perpetuate poverty and to rob the child and his nation of a future. There are a number of sources that may demonstrate that the prohibition of child labor has evolved into custom and is universally obligatory. Solutions under international law: o Litigation under customary international law - stronger enforcement mechanisms are essential to reduce or help eliminate the problem of child labor. The exploitation of child labor will not be eradicated in our hemisphere unless MNCs are sanctioned and exposed for their complicity. o Individual Responsibility Under International Law – Because corporations may be individually bound to abide by international law, MNCs could be responsible for their unlawful child labor practices abroad. o Civil Litigation - the first lawsuits were filed to hold U.S. retailers and manufacturers accountable for mistreatment of workers in foreign-owned factories operating on U.S. soil. 257 The suits were filed against The Gap, Tommy Hilfiger, J Crew, Gymboree, Jones Apparel Group, Wal-Mart, J.C. Penney, Sears and others on behalf of about 40,000 current or former sweatshop workers. Litigation naturally creates global awareness and certain economic pressures. o Alien Tort Claims Act - “the district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” o Jurisdiction - Where oppressive child labor practices exist, jurisdiction over the offense will be a crucial issue, that is, whether a foreign state’s jurisdiction over the offense is legitimate under international law.

Davidson “The International Labour Organization's Latest Campaign To End Child Labor: Will It Succeed Where Others Have Failed?” Transnational Law and Contemporary Problems Spring, 2001 - The problem of hazardous child labor is not entirely eliminated in industrialized countries. In the United States, for example, a high proportion of children working in agriculture comes from immigrant or ethnic-minority families.'

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1980s – ILO began a new approach to combat child labour. First with public information campaign and then in 1991, by launching the International Program on the Elimination of Child Labour (IPEC). IPEC aims to strengthen national capacities (through a broad alliance of partners, situational analysis, national policies, awareness, legislation, direct action and mainstreaming child labour issues into socio-economic policies, programs and budgets). ILO goals have met much resistance due to "vested commercial interests and market pressures as well as moral indifference and cultural attitudes”. Child labor will only be eliminated when a country develops economically and socially. With new ILO reports on child labor within countries, "we will be able to use the moral powers, as well as the political powers, to put the spotlight on the worst actors on the world stage today. ‘As U.S. Secretary of Labor Alexis Herman explained to the Senate Committee on Foreign Relations when they were considering C182, "[What is different today-and this is a very important change from a decade ago-is that today governments and organizations are finally now acknowledging the problem ....If we are to eliminate the worst forms of child labor, we must have a core standard that is accepted and applied globally. Convention 182 gives us that standard”.’

Junlin Ho “The International Labour Organization’s Role in Nationalizing the International Movement to Abolish Child Labor” 7 Chinese Journal Int'l L. 337 - There has only been slow progress in the abolition of child labour, as it remains a global problem. It has been contended that this problem can be attributed to the ILO's inability or unwillingness to impose enforcement measures on its members. - ‘The problem is not a lack of public support for ending child labor; rather, lack of enforcement upon discovery of violations has slowed the reform process’ - Some argue for a trade-labor linkage (linking world trade policies and labor standards). WTO have rejected this - There should be a shift towards enforcement with more ‘teeth’. - Some have argued that the ICC should move to becoming a hybrid court, that relies on national authorities to enforce international criminal law, which would be equally salient when applied to the abolition of child labor. - ILO has a desire to prevent states from withdrawing membership and so there are doubts as to their willingness to implement such an enforcement regime. - Instead, the Development argues that given the practical realities of the ILO and WTO, a decentralized national system of trade-labor linkage using ILO standards and reports to determine labor compliance is a more effective means of abolishing child labor than the theory of an international trade-labor linkage.

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‘The ILO remains focused on child labor issues and encourages compliance from its member states through a system involving the mild stick of public shaming and the mild carrot of financial assistance.’ The Trade Labour Linkage argument is based on a competition argument and a human rights argument: o ‘The competition argument is based on unfair competition and a race to the bottom theory. Countries with lower labor standards have lower production costs, which give them a competitive advantage.’ o ‘The human rights argument is that violations of core labor rights, as enumerated by the ILO in its 1998 Declaration, constitute human rights violations. By imposing a trade-labor linkage, nations are protecting the oppressed, including children forced into labor, in countries that violate these core labor standards.’ The counterargument lies in protectionism that allow more developed countries to "protect" their interests by preventing less developed countries from maximizing their comparative wage advantage. Given the failure to create an international multilateral agreement on trade- labor linkage and the likely continued opposition to the creation of such an agreement, this Development asserts that the international community should look elsewhere for trade-labor linkage (on a national basis). Consider the examples of US/Myanmar and US/Cambodia. ‘Although a strong international system has not been feasible in this situation, the goal of improving child labor conditions globally can still be achieved through a nationalized process.’

Aine Smith “Child Labor: the Pakistani effort to end a scourge upon humanity--is it enough? 6 San Diego Int'l L.J. 461 - ‘Child labor is not a problem that can be solved by the magic stroke of a wand, or even the legislative pen for that matter; rather, long term planning is vital to promulgate the slow process of eradicating all abusive forms of child labor.’ - Pakistani s in direct derogation of international law. - ‘The historical dependence upon child labor, coupled with the standard business objective to maximize financial gain, is a significant barrier’ - ‘The international community threatens trade sanctions and punishment by the International Court of Justice for the illegal use of fishnets in international waters. What sanctions have been administered for using children as laborers? None. Isn't it time, at the very least, to safeguard children as vigorously as the international community protects fish?’...