Combatting child labour: The legal framework - International Labour Standards

This paper sets out the international legal framework for combatting child labour, referring in detail to provisions of international labour standards

The Convention on the Rights of the Child adopted by the United Nations General Assembly on 20 November 1989, has been ratified by more than 150 States. The States that ratify this instrument must, inter alia, protect the child from economic exploitation and from performing any work that is likely to interfere with his education, or be harmful to his health or well-being. Article 32 of the Convention on the Rights of the Child, provides for two types of measures to be taken with regard to child labour:

The scope of the child's right to be protected against economic exploitation is defined by the reference to "the relevant provisions of other international instruments". It should be recalled that any work carried out by children in conditions below those established by United Nations Conventions¹ or by the International Labour Organization, shall be considered as economic exploitation. Three closely related principles can be seen in the texts: the need to protect vulnerable minors, the future development of the child (physical as well as intellectual) and the appropriate minimum age.

The form of recognition of the right of the child is left to the States. The list contained in the second paragraph of Article 32 of the Convention gives an indication of the scope and variety of measures to be taken to ensure protection against economic exploitation. The coordination of these measures makes it necessary to define and apply a policy to protect the child so as to enable him to become a responsible citizen. To achieve this, the objectives should be defined by considering both the current situation and the projected future of society. Defining these objectives calls for extensive collaboration between the protagonists of the world of work (labour administration, employers' and workers' organizations) and those of other sectors of society - education, health, justice, etc. in which many NG0s are active.

The application of this policy depends on the measures adopted and the means implemented. Article 32 of the Convention establishes the minimum measures to be taken. These are of three types: the fixing of a minimum age or minimum ages for admission to employment; the regulation of the hours and conditions of employment for children in the meaning of the Convention;² and penalties or sanctions to ensure the effective enforcement of this Article.

These measures must take into account the relevant provisions of other international instruments. While the United Nations Conventions establish general principles, the practical application measures are included in the standards adopted by the International Labour Organization. Since 1919 the ILO has adopted a number of international labour Conventions concerning child labour³ which are supplemented by Recommendations. Furthermore, general international labour Conventions regarding freedom of association, discrimination, wages, and safety and health apply to all workers regardless of age.

It should be recalled that the issue of exploitation of child labour has been raised by the ILO supervisory bodies for a number of years now in relation to the application of the Forced Labour Convention, 1930 (No. 29).

Definition of national policy concerning child labour

An initial comment that should be made is this: a national policy concerning child labour is meaningless unless it is coordinated with all other aspects of children's policy and, more importantly, unless it is coordinated with education and training policy. Education and training objectives (length of compulsory primary schooling, the capacity of primary and secondary school systems, the orientation of school systems, etc.) must be taken into account when determining the policy to adopt regarding child labour. On a practical level, the age for admission to employment should correspond to the age of the end of compulsory schooling. The fixing of a higher age for admission to employment means that children who have finished their studies are unable to legally exercise any activity, which involves an added risk of clandestine work. An age for admission to employment that is lower than the age of termination of compulsory schooling may cause some children to abandon their studies. The Convention on the Rights of the Child asks that States recognize the right of children not to be forced to do work that could compromise their education.

Coordination with children's health-care policy is also essential. Protecting children's health is a determining factor in the fixing of minimum ages for admission to employment, for these ages can vary depending on how hazardous or onerous the work is.

Child labour should also be examined in the framework of employment policy. It is interesting to consider the effects of a policy based on the use of paid child labour, by definition less costly for the employer, on the global level of adult employment. One of the consequences of raising the length of compulsory schooling was to remove children and young persons from the labour market. This is one of the points referred to with regard to national policy objectives in Article 1 of the Minimum Age Convention, 1973 (No. 138), adopted by the International Labour Conference in 1973. National policy must aim "to ensure the effective abolition of child labour and to raise progressively the minimum age for admission to employment or work to a level consistent with the fullest physical and mental development of young persons".

The Minimum Age Recommendation (No. 146) adopted in 1973 specifies the possible content of this national policy and in particular its links with employment policy, the measures intended to ensure family living standards and income which are such as to make it unnecessary to have recourse to the work of children, the development and progressive extension of adequate facilities for education and training, the development and progressive extension of facilities for the protection and welfare of children and young persons.

Fixing of a minimum age for admission to employment

Rather than speaking of a minimum age for admission to employment, it is more appropriate to speak of various minimum ages depending on the type of employment or work, and depending on the characteristics of the job or position in question. The Convention on the Rights of the Child, like other Conventions adopted by the United Nations, confines itself to indicating that one or more minimum ages for admission to employment should be fixed, and does not go into further details.

Article 2 of Convention No. 138 establishes at least two minimum ages for admission to employment below which "no-one under that age shall be admitted to employment or work in any occupation". The (general) minimum age for admission to employment shall not be less than the age of completion of compulsory schooling and, in any case, shall not be less than 15 years, 14 years initially for countries whose economy and educational facilities are insufficiently developed. Employers' and workers' organizations must be consulted in order to fix the age for admission to employment at 14 years.

Article 3 of Convention No. 138 fixes, for employment or work "which by its nature or the circumstances in which it is carried out is likely to jeopardize the health, safety or morals of young persons", a minimum age of 18 years. The types of employment or work to which this Article applies shall be determined after consultation with employers' and workers' organizations. Under certain conditions (guarantee of protection of health, safety and morals, adequate specific instruction) it is possible to authorize, despite the risk, employment or work by young persons as from the age of 16 years after consultation with employers' and workers' organizations.

Lastly, Article 7 of the Convention provides a minimum age for admission to employment that is lower than the general age for the purpose of carrying out light work. Depending on whether the general minimum age has been fixed at 14 or 15 years, the minimum age for light work will respectively be 12 or 13 years. Article 7 specifies that light work is work (i) which is not likely to be harmful to the health or development of children and (ii) which is not such as to prejudice their attendance at school or their capacity to benefit from the instruction received.⁴ The legislation of some countries contains more precise definitions of light work. Such definitions take up the following points:

The table below shows the various options made available by Convention No. 138 with regard to fixing the minimum age.

Various limits and ages are included in other international labour Conventions preceding Convention No. 138. Convention No. 5 establishes the minimum age for admission to employment in industry at 14 years except for children who work in undertakings in which only members of their family are employed. Convention No. 33 provides that children under 14 years of age "or children over 14 years who are still required by national laws or regulations to attend primary school', may not be employed.

Economic sectors of activity covered

A policy concerning child labour should take the features of the various sectors of activity into account, thus it is important to identity carefully the issues raised by child labour in the various sectors. It would be rather unrealistic to prohibit children under 14 years of age from participating in the agricultural activities carried out by their families. However, this does not mean that all ideas of protecting children in family undertakings should be set aside, but that it would be impossible to apply the same rules to this type of work as to work to be carried out in industrial or commercial undertakings.

Convention No. 138, which is a compilation of texts previously adopted by the International Labour Conference, is to be applied to all sectors of activity, whether or not the children are employed for wages. However, in Article 5, the Convention provides that it is possible to limit initially the scope of application by specifying the branches of activity or the types of undertakings to which the Convention will apply. The branches of activity concerned must be specified in a declaration appended to the ratification of the Convention.

Furthermore, where the application of the Convention to certain limited categories of employment or work would raise special and substantial problems of application, it is possible not to apply it to these categories following consultation with employers' and workers' organizations. This exclusion must be mentioned in the first report submitted to the ILO on the application of the Convention. The "limited categories of employment or work" are not defined in the Convention. During the preparatory work reference was made to employment in family undertakings, domestic service in private households and some types of work carried out without employer's supervision.

Dangerous employment or work

The Convention on the Rights of the Child pays particular attention to the issue of dangerous work, States having to recognize the right of the child to not be obliged to do any work that is likely to be hazardous or to be harmful to the child's health or physical, mental, spiritual, moral or social development. This means that dangerous or potentially dangerous work should be prohibited for persons under 18 years of age.

Article 3 of Convention No. 138 provides a similar prohibition. The minimum age for admission to this type of work or employment is fixed at 18 years. The types of work or employment covered by this provision must be determined by national laws after consultation with employers' and workers' organizations. Recommendation No. 146 specifies that in determining this type of work or employment full account should be taken of relevant international international labour standards, "such as those concerning dangerous substances, agents or processes... , the lifting of heavy weights and underground work". Furthermore, these lists of employment should be re-examined periodically "particularly in the light of advancing scientific and technological knowledge'.

Lastly, when certain branches of economic activity are not covered by the minimum age (general) for admission to employment, provisions must be made to prohibit young persons from carrying out types of employment or work that may involve risks.

The exception provided in Article 3, paragraph 3 of Convention No. 138 allowing children over 16 years of age to carry out certain types of employment or work that may, by its nature or the circumstances in which it is carried out be hazardous or potentially hazardous, is only authorized in the following circumstances:

The regulations concerning night work for children and young persons derive from the same desire to protect them against working conditions that are hazardous to their health or development.

The principle established by international labour Conventions, and also by the Convention on the Rights of the Child⁵ is the prohibition of night work for persons under 18 years of age. However, a certain number of exceptions are permissible. The following table shows the periods that are considered as "night" in the various instruments and also the length of consecutive intervals during which children or young persons may not work.

Table II. Definition of night periods and exemptions on the interdiction of night work to young persons less than 18 years

The Night Work of Young Persons (Industry) Convention, 1919 (No. 6) authorizes night work for young persons over the age of 16 in a limited number of industries which are required to be on continuously, the general prohibition of all night work being fixed at 18 years.

The Night Work of Young Persons (Non-Industrial Occupations) Convention, 1946 (No. 79) provides that States may exempt from the general prohibition of night work fixed at 18 years, domestic service in private households and employment or work which is not deemed to be harmful, prejudicial, or hazardous to children or young persons in family undertakings in which only parents and their children or wards are employed.

The Night Work of Young Persons (Industry) Convention (Revised), 1948 (No. 90) provides the same exceptions as Convention No. 79. Furthermore, it authorizes night work for young persons between 16 and 18 years of age for purposes of apprenticeship or vocational training in specified industries or occupations which are required to be carried on continuously.

Conditions of work for children

The Convention on the Rights of the Child requires provision to be made for appropriate regulation of the hours and conditions of employment. It should be recalled that most international labour standards apply without any distinction being made as to age: they are thus applicable to working children on the same basis as to adult workers of either sex. In accordance with Article 7 of Convention No. 138 measures must be taken to determine the number of hours during which and the conditions in which light work is undertaken, and to govern persons under 15 years who have not yet completed their compulsory schooling.

Recommendation No. 146 provides a list of points regarding conditions of employment to which particular care should be paid:

The matter of the medical examination of children and young persons who are obliged to work is not explicitly dealt with by the Convention on the Rights of the Child. In this connection it should be recalled that the measures listed in paragraph 2 of Article 32 of the Convention constitute a minimum requirement and that in order to give effect to the obligations of the first paragraph other measures are necessary.⁶

International labour Conventions Nos. 77, 78 and 124 provide for a thorough medical examination to determine fitness for employment prior to engagement and also continued medical supervision until 18 years of age. The continued employment of a person under 18 years of age is subject to the repetition of medical examinations for fitness for employment each year. The Conventions do not indicate whether the employer or the State should bear the cost of these examinations but specify that they "shall not involve the child or young person, or his parents, in any expense".

Penalties, sanctions and other application measures

The Convention on the Rights of the Child, like ILO Convention No. 138, provides that sanctions should be adopted to ensure the effective enforcement of the measures it provides. Sanctions in respect of the enforcement of labour law are necessary but not sufficient. They are indispensable if they are applied but they are not sufficient in themselves to ensure the enforcement of labour legislation.

This is why Convention No. 138 provides in Article 9 that "all necessary measures, including the provision of appropriate penalties" should be taken to ensure the effective enforcement of the Convention. Among these measures particular mention should be made of the reinforcement of labour inspection services, for example by especially training inspectors to detect and remedy abuse with regard to child labour.

In addition to specialists' areas, it is important to provide children and parents, and employers' and workers' organizations with information and make them aware of all aspects of child labour. Teachers should be the focus of special attention, particularly those who are responsible for children who are reaching particularly vulnerable ages.

¹See Article 10(3) of the International Covenant on Economic, Social and Cultural Rights: ... "Children and young persons should be protected from economic and social exploitation. Their employment in work harmful to their morals or health or dangerous to life or likely to hamper their normal development should be punishable by law. States should also set age limits below which the paid employment of child labour should be prohibited and punishable by law'. See also Article 24(1) of the International Covenant on Civil and Political Rights: "Every child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State'. See also Article 1(d) of the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery: 'Any institution or practice whereby a child or young person under the age of 18 years, is delivered by either or both of his natural parents or by his guardian to another person. whether for reward or not, with a view to the exploitation of the child or young person or of his labour'.

² cf. first Article: ... "a child means every human being below the age of 18 years".

³ Minimum Age (Industry) Convention, 1919 (No. 5); Night Work of Young Persons (Industry) Convention, 1919 (No. 6); Minimum Age (Sea) Convention, 1920 (No. 7); Minimum Age (Agriculture) Convention, 1921 (No. 10); Minimum Age (Trimmers and Stokers) Convention, 1921 (No. 15); Minimum Age (Non-Industrial Occupations) Convention, 1932 (No. 33); Minimum Age (Sea) Convention (Revised), 1936 (No. 58); Minimum Age (Industry) Convention (Revised), 1937 (No. 59); ~um Age (Non-Industrial Occupations) Convention (Revised), 1937 (No. 60); Medical Examination of Young Persons (Industry) Convention, 1946 (No. 77), Medical Examination of Young Persons (Non-Industrial Occupations) Convention, 1946 (No. 78); Night Work of Young Persons (Non-Industrial Occupations) Convention, 1946 (No. 79); Night Work of Young Persons (Industry) Convention (Revised), 1948 (No. 90), Minimum Age (Fishermen) Convention, 1959 (No.6 112); Minimum Age (Underground Work) Convention, 1965 (No. 123); Medical Examination of Young Persons (Underground Work) Convention, 1965 (No. 124); Minimum Age Convention, 1973 (No. 138). Search ILOLEX for the full text of these conventions

⁴ Examples of work considered as light are included in paragraph 2 of the Minimum Age (Non-Industrial Employment) Recommendation, 1932 (No. 4 I): running errands, newspaper deliveries, odd jobs in connection with the practice of sports or the playing of games, picking and selling flowers and fruit. The participation of children in light work should also be conditional upon parental consent, a medical certificate of physical fitness 'and, where necessary, previous consultation with the school authorities'. Hours of work should be adapted to the school timetable and the child's age. The Minimum Age (Non-Industrial Employment) Convention, 1932 (No. 33) provides in Article 3, paragraph 1 that the duration of light work should not exceed two hours per day 'on either school days or holidays, the total number of hours spent at school and on light work in no case to exceed seven per day."

⁵ As indicated above States must recognize the right of the child (18 years in accordance with the first Article) not to be obliged to carry out any work likely to be harmful to his health.

⁶ cf. the provisions of Article 24 of the Convention on the Rights of the Child.