The inevitability of nimble fingers? Law, development, and child labor.

• Author: Cox, Katherine E.

1. INTRODUCTION

   There are four hundred million children working throughout the world today.(1) Efforts to reduce the incidence of child labor have not worked; the figures are rising, not diminishing.(2) In response, countries and international bodies have become more resolute in their efforts to eradicate child labor's most intolerable forms. Various possible responses to the problem have been canvassed, including(3) (1) the implementation of unilateral trading measures that condition trade upon eradicating child labor,(4) (2) the enforcement of labor standards through international trading agreements,(5) (3) the increased use of corporate codes of conduct,(6) and (4) the adoption of new international labor standards.(7) These options have generated much debate. They have been discussed, and will continue to be discussed, at high levels. Perhaps, however, before taking any new measures, it is worth reflecting on and reconsidering the law already in place. Such an examination may help to determine why the present international framework has not been effective. Through an examination of current law it may be possible to promote more appropriate and direct steps towards combating child labor, while avoiding potentially harmful measures. Action that is based on incorrect assumptions about the causes of child labor and how it can be solved may lead to a worsening of the situation, and not an improvement.

   This Article examines development issues that are raised in a legal analysis of international human rights law relating to child labor. In so doing it highlights some of the weaknesses of the present legal approach to the problem. In order to demonstrate better the weaknesses of the system, India is used as an example of a developing country where some of the development issues raised in the legal analysis arise. The second Part of this Article defines the concept of child labor. It undertakes a comprehensive analysis of international legal instruments that deal with the topic of child labor and touches on the relationship between child labor and the right to education. The third Part examines some of the development issues that arise out of that legal analysis and critiques the current legal approach. In particular it focuses on the causes of child labor that cannot be directly attributed to poor economic development and thus warrant a different approach. The final Part of the paper uses India as an example of a country, which, despite progressive legislation and policy, and improved economic development, has not been able to make significant inroads into eradicating the practice of child labor.

2. CHILD LABOR

   In the past decade, the issue of child labor has attracted increasing attention. In times past, the topic has been the focus of action at both the national and international levels, but it has never been an issue of major concern. However, since the mid-1980s, the world has paid greater attention to its most voiceless inhabitants.(8) The adoption of the United Nations Convention on the Rights of the Child (CRC) by the General Assembly in 1989 illustrates this general trend.(9) In addition to enumerating new rights, the Convention transformed the rights articulated in the earlier Declaration of the Rights of the Child into binding legal obligations.(10)

   Within the United Nations' structure, both the United Nations International Children's Emergency Fund (UNICEF) and the United Nations Commission on Human Rights have done work in the area of child labor.(11) However, it is the International Labour Organization (ILO) in particular which has embarked on a mission to draw attention to this issue.(12) In 1991 the ILO introduced an International Programme on the Elimination of Child Labour (IPEC), which, by 1998, was operational in fifty countries.(13) In March 1996 the ILO governing body put child labor on the agenda for the 1998 session of the International Labor Conference, with the objective of getting the international community to adopt a new convention aimed at prohibiting intolerable forms of child labor.(14) Child labor has also been the focus of other international conferences.(15)

   In addition to UN agencies, both non-governmental organizations (NGOs) and the media have increasingly focused on the plight of child workers. In recent times, the role of large multinational corporations in the exploitation of children has been particularly scrutinized. Reports from human rights organizations have highlighted the continuing use of child labor by sporting goods companies such as Nike and Reebok.(16) As a result, Reebok created the corporate position of human rights officer, and it now grants human rights awards in an attempt to counteract criticism of its past record.(17) Numerous international bodies are also beginning to take action. The Universal Federation of Travel Agents' Association (UFTAA), the World Tourism Organization, and the International Federation of Football Association (FIFA) are three international organizations which have agreed to take steps to combat child labor problems that come within the ambit of their operations.(18)

   Regional trading groups and individual countries have similarly made moves to implement restrictive trading measures in an attempt to crack down on child labor. The European Union reached agreement on a new Generalized System of Preferences (GSP) in 1995. The new GSP bans the import of goods produced by child labor.(19) Only countries that comply with the agreement receive access to European Union markets and, if they are developing countries, reduced tariffs.(20) In the United States, legislation has recently been passed banning imported goods made by forced child labor,(21) and Senator Harkin has introduced a bill banning the import of products produced by child labor.(22) Other countries, in particular those which have large numbers of children in the work force, have started to review their national child labor legislation and develop new child labor policies.(23) The effectiveness of these programs has varied from country to country, but there is no doubt that there is a new international awareness of the problem, and that a country's treatment of its children is now subject to greater international scrutiny.

   To ascertain why the international community has now so comprehensively rejected child labor it is necessary to determine what is so abhorrent about it. Why do people react in horror when the topic of child labor is raised? What is so intrinsically bad about it? The appalling consequences of child labor are usually cited as providing clear and unequivocal evidence of why it is such an objectionable practice.(24) Certainly, the list of harms is significant: children who work suffer serious detriment to their health and development; they are exposed to hazardous working conditions; and they are easy targets for abuse and exploitation.(25) They also miss out on educational opportunities.(26) But if these causes for concern are removed (and admittedly it is unrealistic to suppose they ever would be) one is left to wonder whether there isn't something more fundamental at stake? If all that is bad about child labor is exposure to these harms, can there be anything wrong with a child working if she is not so exposed? Indeed, hasn't a child, like the rest of us, a right to work? If a child is working reasonable hours, in good conditions, is being well paid and treated, and being provided with training and educational opportunities "on the job," is it still possible to object to the practice of child labor?

   Interestingly, UNICEF maintains that some work that promotes or enhances a child's development without interfering with schooling, recreation, or rest may be beneficial to a child.(27) The organization goes on to say that "to treat all work by children as equally unacceptable is to confuse and trivialize the issue and to make it more difficult to end the abuses. This is why it is important to distinguish between beneficial and intolerable work."(28) Nevertheless, while it may be true that some work done by children is beneficial, this author maintains that the very practice of child labor, as defined in this Article,(29) is wrong for a reason independent of its effects: a child is not an adult. A child is still growing and developing. Until a child has had the opportunity to mature, acquire independent thought and gain self-awareness, any work that she does must be regarded, in some sense, as "forced" labor. The further a child is from becoming an adult the more likely it is that this will be the case. This might explain why, to most minds, the idea of a six-year-old working is more objectionable than the idea of a twelve-year-old doing so.(30) If it is agreed that child labor is abhorrent, not only because its consequences are intolerable, but because children are unable to make free, informed decisions about the work that they do, it then becomes necessary to define child labor and to determine whether its practice can be regarded as a human rights violation.

   1. What is Child Labor?

      There is no international legal instrument that defines the concept of child labor. This is surprising given that the practice is so universally condemned. In fact, it has been observed that until child labor is conclusively defined it is hard to envisage how the practice will be abolished.(31) Furthermore, because countries independently regulate child employment there is no uniform custom to draw on in this area at all. Accordingly, the scope of what is and isn't child labor is unclear.(32) This will become evident in the discussion below.

      The starting point for defining child labor is to ask who, in this context, is a child? The difficulty encountered in answering this question highlights one of the most fundamental problems of regulating child labor and goes to the heart of the dilemma of determining when it is acceptable for a child to work. As discussed above, child...