INTERNATIONAL LEGAL FRAMEWORK FOR COMBATING CHILD LABOUR

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:

on the one hand the States' recognition of the “right of the child to be protected from

economic exploitation and from performing any work that is likely to be hazardous

to interfere with the child's education, or to be harmful to the child's health or

physical, mental, spiritual, moral or social development”; on the other hand, the

adoption of legislative, administrative, social and educational measures “to ensure the

implementation of the present article”.

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 Conventions 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.1

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

1 S. K. Singh, Bonded Labour and the Law (New Delhi: Deep and Deep Publications, 1994)

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.2

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; and penalties or sanctions to ensure the

effective enforcement of this Article.3

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 labour4 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.

2 Ibid.3 Supra n. 224 Supra n. 19

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).5

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.6 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.7

5 Ibid.6 R. K Misra., Preliminary Report on the Child Labour in the Saree Industry of Varanasi, Human Rights

Cell, Banaras Hindu University, Varanasi, 19957 Supra n. 33

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 1973.8 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.

Recommendation No. 146 sets out a list of factors that affect child labour employment

policy;

income and poverty alleviation policy;

social security;

education, training and vocational orientation policy;

child protection policy.

FIXING OF A MINIMUM AGE FOR ADMISSION TO EMPLOYMENT

8 Neera Burra, Born to Work: Child Labour in India (New Delhi: Oxford University Press, 1995)

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",9 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

9 Ministry of Labour, Annual Report 1994-95 (New Delhi: Government of India, 1995)

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. The legislation of some countries

contains more precise definitions of light work. Such definitions take up the following

points:

simple and well-defined tasks;

lack of physical or mental effort that could endanger the child's health or

development;

the limited number of daily and weekly hours of work;

regular breaks and weekly rest of at least 48 hours;

no night work.10

The table below shows the various options made available by Convention No. 138 with

regard to fixing the minimum age.

Table 5: Minimum ages in accordance with Convention No. 13811

General minimum age

(Article 2)

Light work

(Article 7)

Dangerous work

(Article 3)

15 years or more 13 years18 years

(16 years dispensation)

14 years or more 12 years18 years

(16 years dispensation)

10 Asha Krishnakumar, "Reprehensible by any name: Children in beedi industry," Frontline (Madras),

November 17, 1995, p. 87.

11 Ibid.

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.12

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.13 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.

12 Supra n. 1713 Ibid.

It is nevertheless obligatory to cover the following seven sectors of activity:

mining and quarrying;

manufacturing;

construction;

electricity, gas and water;

sanitary services;

transport, storage and communication;

plantations and other agricultural undertakings, but excluding family and small-

scale holdings producing for local consumption and not regularly employing

hired workers.

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”14 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.15

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

14 Myron Weiner, The Child and the State in India (New Delhi: Oxford University Press, 1991)15 Pradeep Mehta, "Cashing in on Child Labor," Multinational Monitor, April 1994

physical, mental, spiritual, moral or social development. This means that dangerous or

potentially dangerous work should be prohibited for persons less than 18 years of age.16

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 labour standards, "such as those concerning

dangerous substances, agents or processes... , the lifting of heavy weights and

underground work".17 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:

1. after consultation with the organizations of employers and workers concerned;

1. with the full guarantee of the health, safety and morals of the children;

16 Ibid.17 Supra n. 34

2. With adequate specific instruction or vocational training in the relevant branch

of activity. 18

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.19

The principle established by International labour Conventions, and also by the

Convention on the Rights of the Child is the prohibition of night work for persons

under 18 years of age.20 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 6: Definition of night periods and exemptions on the interdiction of night work to

young persons less than 18 years21

13 - 14

years

14 - 15

years14 - 15 years 15 - 16 years 16 - 18 years

At school Not at school

Convention No. 6

(Industry)

22.00 -

05.0011h

No Exemption

or Exception

No Exemption

or Exception

22.00 -

05.00 11h

Art. 3,

para.1

Convention No. 79 22.00 - 22.00 - 22.00 - 06.00 22.00 - 06.00 22.00 -

18 Ibid.19 Ibid.20 B.N. Juyal, Child Labour: The Twice Exploited (Varanasi: Gandhian Institute of Studies, 1985). P.3721 Ibid.

(Non-industrial

occupations)

08.00 14

hr

08.00 14

hr

12 hr 12 hr 06.00 12 hr

Convention No. 90

(Industry)

22.00 -

06.00 12

hr

22.00 - 06.00

12 hr

22.00 - 06.00

12 hr

22.00 -

07.00 7h

Art. 2 para.3

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.22

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

22 Supra n. 34

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 provision of fair remuneration and its protection, bearing in mind the

principle of equal pay for equal work;

the strict limitation of the hours spent at work in a day and in a week, and the

prohibition of overtime, so as to allow enough time for education and training

(including the time needed for homework related thereto), for rest during the

day and for leisure activities;

the granting, without possibility of exception (save in genuine emergency), of a

minimum consecutive period of 12 hours' night rest;

the granting of annual holiday of at least four weeks and, in any case, not

shorter than that granted to adults;

coverage by social security schemes whatever the conditions of employment or

work may be;

the maintenance of satisfactory standards of health and safety and appropriate

instruction and supervision.

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.

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