Child Labour in a Globalized World

A Legal Analysis of ILO Action

Luca Nogler, Marco Pertile, Giuseppe Nesi

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317168003
• Edition: 1
• Topic: Law
• Subtopic: Jurisprudence
• Index: Law

This volume examines the legal dimension of the ILO's action in the field of Child Labour. The authors investigate the implementation of the relevant legal instruments and assess the effectiveness of the ILO supervisory system. All relevant instruments are considered while particular attention is given to Convention 182 on the elimination of the worst forms of child labour. Child Labour in a Globalized World describes the ILO's activities concerning the eradication of child labour whilst assessing and evaluating the effectiveness of the relevant legal framework and functioning of the supervisory system. This book contextualizes the issue of the eradication of the worst forms of child labour in the recent doctrinal debate on the nature of labour standards and the transformation of the ILO. This important work will be a valuable resource for academics, researchers and policy-makers with an interest in labour law, international law, and children's rights.

Chapter 1
Introduction: The Fight Against Child Labour in a Globalized World

Marco Pertile

1.1 Child labour: the origin of the debate and the role of the ILO

Although deeply rooted in the history of humanity, child labour again became an issue for public debate quite recently, in the mid-1980s.1 In that decade, thanks to extensive media coverage and increased circulation of information, the civil society of the so-called developed world became aware that the black and white pictures of children working during the Western Industrial Revolution might just as easily be taken in colour in other regions of the contemporary world.2 Since then, few human rights issues have so constantly drawn the attention of public opinion as the one at hand, and the movement against child labour has continued to expand and gain support.

As often happens with problems that suddenly arouse the conscience of the general public, the initial reactions were rather instinctive and ill-coordinated. The effort involved (and still does) a range of participants, among them NGOs, trade unions, international corporations, international organizations and governments and private individuals. At the national and international levels, initiatives emerging from civil society generally paved the way for the intervention of governments and intergovernmental organizations. Private initiatives such as labelling schemes and corporates’ codes of conduct mushroomed with little or only lukewarm support from the public sector. Only after some initial hesitation, spurred on by other international agencies and some of its constituents, the ILO developed a new approach to exploit its decades-long expertise and assumed a leadership role in the field.3

Indeed, the involvement of the ILO in the fight against child labour dates back to the early years of the Organization.4 As testified to by the Preamble to the Constitution, the enhancement of the conditions of working children (and women) was in fact one of the primary reasons justifying the adoption of the founding treaty.5 In an initial phase, the activities of the Organization in the field almost entirely concerned standard-setting, and the approach mainly consisted of introducing a minimum age for admission to employment.6 The first conventions, which dealt with specific sectors such as industry, agriculture, the work of trimmers and stokers, fishing and underground work, were revised by a comprehensive text in 1973: Convention 138 on the minimum age for admission to employment. Convention 138 introduced not only a general age-limit for admission to employment, but also a number of flexibility clauses aimed at favouring ratification by less-developed countries.7 Nevertheless a substantial part of the membership of the Organization considered these measures unbalanced, reflecting the needs and the cultural tradition of the Western world.8 The process of ratification was stuck for some years and the activity of the Organization in the fight against child labour seemed to have arrived at an impasse. The approach began to change in the 1990s as the interest in problems of child labour resurfaced within public opinion. At the UN World Summit of 1995, in Copenhagen, world leaders committed themselves to ‘safeguard the basic rights and interests of workers and, to this end, freely promote respect for relevant International Labour Organization conventions’.9 In the text of the Copenhagen Declaration on Social Development, the conventions on child labour were explicitly mentioned, alongside those on freedom of association, the right to organize and bargain collectively, and the principle of non-discrimination.10

Similarly, when the International Labour Conference adopted the much-discussed Declaration on Fundamental Principles and Rights at Work, in 1998, the effective abolition of child labour was included amongst the four fundamental principles of the Organization, together with the freedom of association and the right to collective bargaining; the elimination of forced or compulsory labour and the elimination of discrimination in respect of employment and occupation.11 Merely by membership of the Organization, Member States were therefore bound to respect those principles, irrespective of their ratification of the relevant conventions.

The Declaration marked the emergence of a new approach centred upon the creation of priorities in the activity of the ILO. Such an approach was implemented in the field of child labour by the subsequent adoption of Convention 182 on the Worst Forms of Child Labour in 1999.12 Convention 182 aimed to complement (not substitute for) Convention 138 on the minimum age by identifying the four worst forms of child labour to be targeted for immediate eradication.

In principle, the criticism of prioritization is as easy as effective. Creating priorities inevitably means ranking the rest as non-priorities. In this sense, it has been pointed out that the logic of the Declaration on Fundamental Principles and Rights at Work runs the risk of undermining the legal value of the obligations deriving from the ILO Conventions that do not fall under the scope of the four ‘fundamental’ principles.13 However, concerning child labour in particular, it is to be underlined that the adoption of Convention 182 achieved a number of unprecedented results. Amongst them are the shaping of a consensus on a common core of child labour at the global level and the revitalization of the activities of the Organization in the field. Convention 182 was adopted unanimously and was very rapidly ratified by almost the entire membership of the ILO. The ratification process of Convention 182 generated a renewed interest in Convention 138, which received a substantial number of ratifications in its turn. At the time of writing, 165 and 150 States are party to Conventions 182 and 138 respectively. Most importantly, the whole process revived the interest of donor countries and the channelling of a substantial amount of funds to the fight against child labour.

On the operative side, apart from these developments in standard-setting, the year 1992 brought about the creation of IPEC, the International Programme for the Elimination of Child Labour. This probably was the most significant turning point in the involvement of the ILO in the fight against child labour. With its more than 450 staff and its annual budget of some 60 million US dollars, IPEC is not only the largest single programme within the ILO, but also the most important actor in the field of technical cooperation against child labour.14 The Programme is mandated to assist Member States in fulfilling their obligations under the relevant treaties with a view to achieving the progressive elimination of child labour and the eradication of the worst forms as a priority.15 Its activities range from advocacy and awareness-raising, to technical cooperation with governments and assistance to children in regional, sub-regional and national projects.16 The focus is on favouring the adoption of national policies that remove children from hazardous work and provide alternatives for them. At present, IPEC operates in 88 countries and runs more than 250 projects.17

For a number of reasons, which will be explained below, it is argued that the ILO should continue to be the institution that coordinates the efforts of the international community against child labour in the years to come. Firstly, though, it is worth sketching the main features of the phenomenon of child labour and of the relevant legal issues.

1.2 Child labour: a multidimensional issue

Articles and scholarly works on child labour routinely describe the problem as complex and difficult to solve. It seems fair to assume that that is not only due to the comprehensible difficulty of each and every scholar to admit that they have been entrusted with a menial task. One can easily share at least the characterization of child labour as ‘multidimensional’.18 Here, it is submitted that this is so under three, partially overlapping, perspectives: 1) subjective multidimensionality; 2) causal multidimensionality; and 3) multidimensionality on the grounds of solutions.

1.2.1 Subjective multidimensionality

Child labour reveals its multidimensional nature from a subjective point of view as several actors, different in nature and often having different agendas, may cause the problem or contribute to the quest for a solution. It follows that understanding the scope of child labour at the global level requires a careful analysis of the role of those actors. One usually thinks of developed countries, less-developed countries, trade unions, NGOs, transnational corporations, governmental authorities, intergovernmental organizations, and so on. Somewhat paradoxically, children are seldom mentioned. The main stakeholders are usually dealt with as the object of the problem rather than a subject capable of having their say and cooperating in the quest for a solution. This is legally sanctioned by municipal legal orders, which, at least up to a certain age, regard children as largely incapable of deciding for themselves.19

For its part, international law does not change the picture significantly. International legal obligations of a customary or conventional nature are generally framed as obligations resting on States. The latter ones are legally bound to adopt legislative or operational measures with a view to eradicating child labour, but the content of those obligations is scarcely connected to the need to learn the concerns of children from their voice, let alone to empowering children to decide for themselves in some respects. A notable exception to this is Convention 182 as complemented by Recommendation 190. In fact, article 6 of the Convention obliges States Parties to ‘design and implement programmes of action to eliminate as a priority the worst forms of child labour’ and to do so ‘in consultation with relevant government institutions and employers’ and workers’ organizations, taking into consideration the views of other concerned groups as appropriate’. Article 2 of Recommendation 190 further specifies the meaning of ‘other concerned groups’, recommending that ‘the programmes of action referred to in article 6 of the Convention should be designed and implemented … taking into consideration the views of the children directly affected by the worst forms of child labour …’. The approach is in line with the general principle laid down by article 12 of the Convention on the Rights of the Child, according to which ‘States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child …’. It appears, however, that these requirements have not been adequately implemented so far.

1.2.2 Causal multidimensionality

Child labour reveals its multidimensional nature also with respect to the causes lying at the basis of the problem and the factors impeding its solution; amongst them, poverty is universally recognized as a major cause for child labour. Recognition of its role as a determinant of the problem is so widespread that affirming that child labour is inextricably connected to the economic situation of a given region has become a truism. Indeed, poverty is often employed as a catch-all concept that includes reference to several factors such as, for instance, parents’ illiteracy, insufficient adult wages, lack of schooling, natural disasters and endemic armed conflicts.20 Somewhat inevitably, reference to ‘poverty’ often involves the assumption that child labour is not a deliberate choice of the children and the families, but the outcome of necessity.21

However, empirical studies demonstrate that child labour is not exclusively determined by market forces and economic factors: the overall picture is rather more complicated...

Table of contents

• Cover Page
• Half Title Page
• Dedication
• Title Page
• Copyright Page
• Contents
• List of Contributors
• Preface
• Acknowledgements
• Table of Legal Instruments
• List of Abbreviations
• Chapter 1 Introduction: The Fight Against Child Labour in a Globalized World
• Part I The ILO’s Action in the Fight Against Child Labour
• Part II The Implementation of Child Labour Standards: Selected Instruments and ILO’s Interaction with Other International Organizations
• Part III Case Studies
• Part IV An Epilogue?
• Appendix Convention concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour
• Bibliography
• Index