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Foreword

On 27 January 2016, Beyond Trafficking and Slavery published an open letter by more than 50 of the world's most senior academics and expert researchers in the area of child work and child rights. On the back of decades of research and engagement with working young people, these scholars and activists called on the UN's Committee on the Convention on the Rights of the Child (CRC) to re-think best practice for how to help and protect working young people.

In particular, they call call on the committee to avoid binding the proposed ‘General Comment on the Rights of Adolescents’ to the ILO Minimum Age Convention (No. 138) or the minimum age standards set out in that convention. Instead, the letter’s signatories urge the committee to reference ILO Convention on the Worst Forms of Child Labour (No. 182). The signatories’ support for Convention 182 in this specific instance is subject to the proviso that, prior to any application, the voices of children who will be impacted are listened to and acted upon; their rights will be respected; and that their best interests (decided in conjunction with the children themselves) will be prioritised in all cases. The letter furthermore rejects the blanket application of ILO Convention No. 182, and instead suggests that its application should be guided by careful consideration of the social, cultural, and economic circumstances within which children live and labour.

On 4 April 2016, Human Rights Watch (HRW) responded with their own open letter calling on the committee to ignore these international experts. HRW challenges much of what they claim and urge the committee to continue endorsing Convention 138 and its minimum age approach to child labour and exploitation. The original signatories of the open letter to the CRC have chosen to respond with a further open letter, which has also been sent to the committee. This reflects the highly-charged and politically significant nature of the debates at hand, as the CRC decision will ultimately have serious impacts on working children's lives. The text of the latest open Letter is below, and it has been signed two of by BTS' editors.

17 May 2016

Dear Committee Members

A letter of 1 April 2016 to the Committee on the Rights of the Child from Human Rights Watch (HRW), signed by Jo Becker and Zama Coursen-Neff, was written in response to an open letter of 20 January 2016 to the Committee, signed by many, including ourselves, and criticising minimum-age standards for children’s work as set out in ILO Convention 138. The HRW response challenges only some of the points in the open letter, so before answering its critique it is important to understand what issues are NOT contested.

• The open letter argues that much work is safe or beneficial for children, and HRW says the same. The open letter states that children should not be engaged in work that is harmful to them, and HRW makes that point too. We assume agreement at least in principle on both these points.

• The open letter argues on the basis of documented evidence that attempts to ban children from working through the enforcement of ILO C. 138 or national standards based on it have caused significant harm to many children. HRW does not dispute this finding, so we assume the argument stands as presented.

• The open letter points out that ILO C. 182, The Worst Forms of Child Labour Convention, covers children against harmful work much more completely than does ILO C. 138. Therefore, the net contribution of C. 138 is primarily to prohibit children from work that is safe. HRW does not dispute this analysis.

• The open letter argues that general minimum-age laws have not been shown to protect children from exploitative and harmful work; this can be best achieved by addressing exploitation and harm (which ILO C. 182 does). The HRW letter does not address this argument. Therefore, the argument stands as presented.

The main points of disagreement between the open letter and the HRW response are the following:

• The open letter argues on the assumption that in matters of child rights, the best interests of children (per UNCRC Article 3) should have priority over international agreements that are not rights instruments. It assumes international standards should observe and serve children’s human rights, and that national and international standards violating the best interests of children should be avoided. HRW reverses this priority: it argues that C. 138 should be complied with because it is an established international standard, and that States Parties should not be encouraged to choose to implement some standards but not others. HRW makes no exception for standards that have been amply demonstrated, as in the case of C. 138, to harm many children. This raises the question of whether the purpose of the Committee is to promote bureaucratic compliance or the well-being of children, when the two are not the same.

• The open letter points out that the right to engage in work has been declared a fundamental human right not to be modified by conditions of birth.1 This right has frequently been claimed by children. The UNCRC (article 32) demands that children be protected only from work that is exploitative or harmful in some way. Its phrasing under paragraph 1 supports the corollary that work NOT harmful to children is acceptable. ILO C. 138 exceeds its legitimate authority when it limits children’s pre-existing right to engage in work for purposes not demonstrably to their benefit. As we understand the HRW position, it does not recognise that children have a pre-existing right to at least safe work under the Universal Declaration of Human Rights and the purposes of UNCRC Article 32 spelled out in paragraph 1. Or, it would overrule such rights with a weaker international standard openly conflicting with them. We disagree, and maintain that children’s access to rights granted to everyone can legitimately be abridged only for their own demonstrable protection, a condition that C. 138 clearly does not meet.

Responses to specific points made in the HRW letter

We proceed through specific points raised in the HRW letter.

At the beginning, the HRW letter points to the long experience of Human Rights Watch in investigating and dealing with child labour in many countries of the world. The organisation has long operated on the widely accepted assumption that children are effectively protected by minimum-age standards; and when assumptions are widely accepted, they are rarely tested. If HRW have assessed this assumption empirically, it would be helpful if they could cite investigations that show the holistic effects on children’s well-being of being stopped from working in accordance with minimum age regulations. There is nothing in the letter to suggest that they have this kind of data available; and without such data, the length and breadth of their experience remain unconvincing.

The HRW letter continues under the following subheadings.

1. A minimum age for employment does not prohibit children from work

The HRW letter rightly points out that a minimum age for employment does not prohibit children from all work: the question is whether the work it allows and the work it prohibits correspond with work that is beneficial to children and work that is harmful to them. ILO C. 138 places no restriction on work over the age of 15 (or 14 – or in some countries 16); it allows light work for a very narrow age range (12–13, 13–15, 14–15, or potentially 16–17 depending on the school-leaving age for the country concerned); it allows unlimited chores in the child’s home and small-scale work on family farms (following ILO guidelines, UNICEF suggests that up to 28 hours a week of domestic chores should not count as child labour for children aged 5–112; and it allows work performed as part of vocational training under certain conditions. In practice, under the right conditions both economic work and unpaid work in the home can convey responsibility and skills; under the wrong conditions, both can be exploitative, harmful and interfere with schooling.

The HRW letter does not offer evidence that school-leaving age, or indeed any other age, correlates with whether the work is generally harmful; it does not take account of children out of school for other reasons than work; it does not take account of use of time in school holidays. Moreover, it does not consider how to deal with those who are above the minimum age for employment, and therefore outside the scope of minimum-age standards, yet still in school. The HRW letter offers no reason why the policy of light work should not apply to all school-going children and young people, including those above the minimum age of employment and those below the minimum age for light work. It fails to consider situations in which household chores and unpaid work in the home are more exploitative and less benign than appropriate part-time employment. In sum, it fails to show that age and employment correlate with whether the work is harmful or beneficial.

Even if the principle goal of ILO C. 138 is, as the HRW letter states, “to prevent children from working at ages that are too young or for hours that can harm their development or schooling”, the question remains as to whether the approach of the Convention is adequately focused on these goals, or whether on the contrary it allows significant harmful work and prohibits significant beneficial work. One recent study of 51 countries suggests that changes in minimum age legislation have insignificant effects on children’s use of time3; indeed, it appears that in certain situations such regulations can have the perverse effect of increasing hours of work4.

2. Work at young ages or for too many hours can be harmful

This statement by HRW is not in doubt; the question is whether the ILO C. 138 addresses this problem. The HRW letter argues that although work may be beneficial in some instances, many studies show that work by young children or long hours of work are harmful to their schooling and future earnings potential. In support of their argument the letter cites four studies by respected economists, which consider relations between children’s work on the one hand, and school outcomes and later incomes on the other.5 Three of these are single-country case studies, and all use statistics collected for other purposes, which limit their ability to exercise important controls, like quality of schooling and children’s abilities. Moreover, such statistical studies can deal only with general patterns, and do not indicate the effects of work on particular children in particular circumstances: indeed the authors of one paper point out that there are indications that some children benefit from work6 (which they regard as being swamped by other evidence). Further, the data available to these studies are inadequate to indicate the processes that drive the patterns that appear; Emerson and Souza point out that their data may support policies other than a prohibition on children’s work.7 In a paper published later, Emerson points out, “Though almost every theoretical study of child labor posits a fairly rigid relationship between child work and diminished human capital, there is very little empirical evidence to support or refute this assumption.”8 It is unrealistic to cite his research in support of policy based on that assumption.

The letter also cites the US Department of Labor National Agricultural Workers Survey, showing higher rates of school dropout among children working in agriculture, which has a lower minimum age of employment than other sectors. The dropout rate has possible explanations other than work; agricultural areas house a high proportion of immigrant children and children from immigrant backgrounds; they also offer opportunities of learning life skills out of school.

We notice that school can be compatible with part-time work. This combination is widely accepted for older children, and widely practiced by younger children. The Tanzanian study cited by the HRW as showing that work inhibits school outcomes in fact points out that there is no evidence of this correlation below 6.5 hours a week, and that below 15 hours a week the correlation is not statistically significant. This study does not, therefore, justify a minimum age for light work.

Finally in this section, the HRW letter cites a study on street children in Brazil9 as evidence that gender disparities are greater for younger working children. The way to deal with gender disparities is to tackle them directly.

3. Government responsibility extends beyond banning child labour

We are in complete agreement with HRW that banning child labour without addressing the root causes is irresponsible. Programmes that relieve poverty and improve education are essential. Enforcing a minimum age for employment, however, appears to have little relevance to these, and in some cases is likely to be counter-productive.

4. Eliminating a minimum age for employment may put children at greater risk.

The HRW letter points out that children are less able than adults to negotiate with their employers for safe, healthy, and fair work conditions, compounded by pressure from family expectations to endure abusive conditions and lack of knowledge on where to report abuse. We agree that all these need to be addressed; but argue that they are not effectively addressed by a minimum age of employment, whether arbitrarily set at 14 or 15 or based on local age for compulsory schooling. The problems can be addressed by supporting working children in a variety of ways.

HRW is deeply sceptical that governments have the will or capacity to ensure safe and decent working conditions for children under the existing minimum age of employment, and notice that many governments fail to enforce existing laws. They believe it unlikely that the same governments would conduct adequate monitoring for even younger children. The letter concludes, “Although some children may benefit from working in good conditions, the lack of legal protections may leave others at risk.” We submit that the way to address conditions of work is to focus on them rather than to divert attention to age of employment. Further, local advocacy on harmful work is likely to be more effective in protecting vulnerable children than are poorly focussed government regulations.

We agree that removal of a minimum-age prohibition is likely to result in more children from poor families earning money; we argue that a significant number of them are likely to be better off as a result. Indeed access to better jobs may reduce the amount of work required.

5. Enforcing a minimum age does not preclude urgent efforts to end the worst forms of child labour.

We agree with this statement; but in practice, much attention has been given to enforcing minimum-age standards, which would be better spent on interventions that have clear benefits for the children concerned. The recent ILO World Report on Child Labour points out that little progress has been made on reducing hazardous work in the older age group10, but fails to link this observation to the organisation’s distorted emphasis on its Convention 138 as the “fundamental standard” of child labour.

6. Governments should not be encouraged to cherry-pick international law.

Here, as pointed out above, we disagree profoundly with the HRW position.

First, a correction: the insistence in the open letter on serving children’s best interests by paying attention to local context does NOT suggest (as the HRW letter claims) a “logical conclusion” that child slavery and other worst forms of child labour might be acceptable. They are clearly not acceptable to any of us. We insist, however, that it is important to ensure that any intervention does not make things even worse for children; this requires attention to local conditions.

On international law generally, not everyone concerned with child protection has such confidence in what the HRW letter terms the “robust body of international standards to protect children”11. While significant advances in child protection have been achieved, too many children are still left behind, and too often children who are already disadvantaged are further damaged by interventions intended to protect them. What is at issue is whether all international standards meet their intentions and do in fact protect children. It is in the nature of human knowledge to be prone to error; history has shown that even universally accepted beliefs can turn out to be wrong when tested against empirical evidence. We do not think that people in governments are generally unable to think critically on how international standards might affect their citizens and their children; on the contrary, we expect responsible people in governments to take a discerning approach to international laws – to give priority to the interests of their children over specific international standards.

Conclusion

The Human Rights Watch letter acknowledges that work may be beneficial to children in some instances. A key feature in Human Rights discourse is the protection of interests of minorities – especially disadvantaged minorities – that are threatened by controlling majorities. If a significant number of children receive considerable benefit from work – and perhaps limited benefits from school – the question for human rights is whether or not these children should be deprived of the fundamental human right to work on grounds of a general pattern that indicates that the majority have different interests.

Sincerely,

Note: Unless otherwise specified, those signing below do so in their capacities as individual practitioners and researchers. The names appear in alphabetical order

1. Dr Bree Akesson, Wilfrid Laurier University, Canada
2. Professor Priscilla Alderson, Social Science Research Unit, Institute of Education, University College London, UK
3. Ms Reem Ali, Independent Consultant, Canada
4. Dr Nicola Ansell, Brunel University, London, UK
5. Dr Dena Aufseeser, University of Maryland, Baltimore County, USA
6. Professor Janet Boddy, University of Sussex, UK
7. Ms Doris Bonnet, French Research Institute for Developpement, France
8. Professor Michael Bourdillon, University of Zimbabwe
9. Professor Jo Boyden, University of Oxford, UK
10. Mr James Boyon representing the African Movement of Working Children and Youth, African Movement of Working Children and Youth, Senegal
11. Mr Richard Carothers, Partners in Technology Exchange (www.ppic-work.org), Canada
12. Dra / Profesora Maria Delores Cervera, Centro de Investigación y de Estudios Avanzados del Instituto Politécnico Nacional, Mexico
13. Dr Kabita Chakraborty, Children’s Studies Program, York University, Canada
14. Mr Saifullah Channa, Executive Director, Development of Institution and Youth Alliance, Pakistan
15. Dr John Cockburn, Département d’économique, Université Laval, Partnership for Economic Policy, Canada
16. Dr Tara Collins, Ryerson University, Canada
17. Dr Gina Crivello, University of Oxford, UK
18. Dr Jennifer Driscoll, Kings College London, UK
19. Dr Maria Claudia Duque Paramo, Pontificia Universidad Javeriana, Colombia
20. Dr Jane Dyson, University of Melbourne, Australia
21. Mr Justin Flynn, Institute of Development Studies, UK
22. Mr Yashodhan Ghorpade, Conflict, Violence and Development Cluster, Institute of Development Studies, University of Sussex, UK
23. Dr Jason Hart, University of Bath, UK
24. Mr Emrul Hasan representing Plan Canada, Director, Program Effectiveness and Technical Advisors Plan Canada
25. Dr Neil Howard, Robert Schuman Centre for Advanced Studies, European University Institute; Editor Beyond Trafficking and Slavery, Open Democracy, UK
26. Ms Sara Imanian, University of Central Lancashire, UK
27. Dr Antonella Invernizzi, Independent Consultant, France
28. Dr Melanie Jacquemin, Beyond Trafficking and Slavery, France
29. Dr Pamela Kea, University of Sussex, UK
30. Professor Anne Trine Kjorholt, Norwegian Centre for Child Research, Norway
31. Ms Caroline Krafft, Minnesota Population Centre, University of Minnesota, USA
32. Dr Cath Larkins, The Centre for Children and Young People’s Participation, University of Central Lancashire, UK
33. Dr Deborah Levison, Humphrey School of Public Affairs, University of Minnesota, USA
34. Dr Stanford Mahati, University of the Witwatersrand, South Africa
35. Ms Despina Maraki, Panteion University of Social and Political Sciences, Greece
36. Dr Emma Mawdsley, University of Cambridge, UK
37. Dr Kate McAlpine, Caucus for Children’s Rights, Tanzania
38. Mr Nicolas Meslaoui, Independent Consultant, Belgium
39. Dr Brian Milne, Independent Consultant, France
40. Dr Virginia Morrow, Deputy Director of Young Lives, Associate Professor & Senior Research Officer, Department of International Development, University of Oxford, UK
41. Dr Bill Myers, Retired from United Nations (UNICEF and ILO), University of California, Davis, Chair International Institute for Child Rights and Development, USA
42. Ms Claire O’Kane, Independent Consultant, UK
43. Mr Samuel Okyere, University of Nottingham; Editor Beyond Trafficking and Slavery, Open Democracy, UK
44. Dr Alphonce Omolo, Children’s Rights, Projects & Social Policy Educator, Kenya
45. Dr Alula Pankhurst, Director, Young Lives, Ethiopia
46. Dr Kirrily Pells, University College London, Institute of Education, UK
47. Ms Carmen Ponce, Group for the Analysis of Development, Lima, Peru
48. Dr Kirsten Pontalti, University of Oxford, UK
49. Professor Gina Porter, Durham University, UK
50. Ms Kavita Ratna representing the Concerned for Working Children, Director Advocacy, The Concerned for Working Children, Bangalore, India
51. Dr Keetie Roelen, Institute of Development Studies, UK
52. Dr Rachel Rosen, UCL Institute of Education, UK
53. Mr Bernard Schlemmer, French Research Institute for Developpement, France
54. Professor Spyros Spyrou, European University, Cyprus
55. Dr Jessica Taft, University of California, USA
56. Mr Fabrizo Terenzio representing Enda, Enda Tiers Monde, Senegal
57. Professor Nigel Thomas, The Centre for Children and Young People’s Participation, School of Social Work, Care and Community, University of Central Lancashire, UK
58. Professor Rachel Thomson, University of Sussex, UK
59. Dr Dorte Thorsen, University of Sussex, UK
60. Dr Kay Tisdall representing the Centre for Research on Families and Relationships, University of Edinburgh, Centre for Research on Families and Relationships, U of Edinburgh, UK
61. Dr Afua Twum-Danso Imoh, Department of Sociological Studies, University of Sheffield, UK
62. Voix des Enfants Actifs, La Voie des Enfants Actifs, France
63. Professor Ben White, Emeritus Professor, International Institute of Social Studies Erasmus, University Rotterdam, Netherlands
64. Dr Nabeel Yahya, Friends of the Environment Centre, Doha, Qatar
65. Mr Sepideh Yousefzadeh, Independent, Netherlands

1. Universal Declaration of Human Rights (1948), article 23,1. ↩︎
2. http://www.unicef.org/infobycountry/statspopup9.html (accessed 16 April 2016) ↩︎
3. Edmonds, E. V. and Shrestha, M. (2012) 'The Impact of Minimum Age of Employment Regulation on Child Labor and Schooling: Evidence from UNICEF MICS Countries', IZA Journal of Labor Policy, 1(14). ↩︎
4. Bharadwaj, P., Lakdawala, L. K. and Li, N. (2013) 'Perverse Consequences of Well-Intentioned Regulation: Evidence from India’s Child Labor Ban', NBER Working Paper 19602. Cambridge, MA: National Bureau of Economic Research. ↩︎
5. Victoria Gunnarsson, Peter F. Orazem, and Mario A. Sánchez, "Child Labor and School Achievement in Latin America," World Bank Economic Review 20, no. 1 (2006); Kathleen Beegle et al., "The Consequences of Child Labor: Evidence from Longitudinal Data in Rural Tanzania," (Social Science Research Network, 2008); Patrick M. Emerson and André Portela Souza, "Is Child Labour Harmful? The Impact of Working Earlier in Life on Adult Earnings," (http://oregonstate.edu/emersonp/ (accessed 23 August 2009): Institute for the Study of Labor, 2007); Nadeem Ilahi, Peter F. Orazem, and Guilherme Sedlacek, "How Does Working as a Child Affect Wage, Income and Poverty as an Adult?," (Washington, D.C.: The World Bank, 2005). ↩︎
6. "How Does Working as a Child Affect Wage, Income and Poverty as an Adult?." P. 17. ↩︎
7. Emerson and Souza, "Is Child Labour Harmful? The Impact of Working Earlier in Life on Adult Earnings." P. 30. ↩︎
8. Patrick M. Emerson, "The Economic View of Child Labor," in The World of Child Labor: An Historical and Regional Survey, ed. Hugh D. Hindman (Armonk, NY: M.E. Sharpe, 2009). P. 8. ↩︎
9. Emily Gustaffson-Wright and Hnin Hnin Pyne, "Gender Dimensions of Child Labor and Street Children in Brazil," (Washington: World Bank, 2002). ↩︎
10. ILO, World Report on Child Labour: Paving the Way to Decent Work for Young People (Geneva: International Labour Office, 2015). P. 44. ↩︎
11. See, for example, the essays in Michael Bourdillon and William Myers, eds., Child Protection in Development (Abingdon: Routledge, 2012). ↩︎