Economic and Labour Rights: A Blind Spot in the Discourse on Children’s Rights

ABSTRACT

This author discusses the question whether children have economic and labour rights, and if so, what that means in practice. With regard to international law, he clarifies the relationship between different areas of law and the relationship between various legal concepts that are relevant to the protection of children’s economic and labour rights. More specifically, he explores the relationship between human rights in general and children’s rights in particular, as well as the relationship between economic and social rights, human and labour rights, and legal and moral rights. Next, he focuses on working children and their associations and which economic and labour rights they consider necessary. Furthermore, he discusses how these rights are, or should be, reflected in international law and in national legislation. Finally, the key obstacles in protecting children’s economic and labour rights in international law are discussed, i.e. what practical difficulties are to be overcome on the ground in order to realise and bring to life the economic and labour rights of children.

KEYWORDS:

• Economic rights
• labour rights
• children’s rights
• living rights
• working children
• children’s work
• child labour
• international legislation
• working children’s movements
• International Labour Organization (ILO)

Acknowledgements

A previous, shorter and, in parts, different version of this paper was published under the title ‘Economic and Labor Rights of Children’ in Jonathan Todres and Shani M King (eds), The Oxford Handbook of Children’s Rights Law (Oxford University Press 2020).

Notes

1 Convention on the Rights of the Child (Adopted 20 November 1989, entered into force 2 September 1990) 1577 UNTS 3.

2 Child Rights International Network, ‘Economic Rights’ <https://archive.crin.org/en/home/rights/themes/economic-rights.html> accessed 5 November 2021.

3 Virginia A Leary, ‘The Social and Economic Rights of the Child’ (1995) 17(4) Law & Policy 353.

4 Ibid. 353.

5 e.g. Aoife Nolan, Children’s Socio-Economic Rights, Democracy and the Courts (Hart Publishing 2011); Aoife Nolan, Human Rights and Public Finance: Budgets and the Promotion of Economic and Social Rights (Hart Publishing 2013); Aoife Nolan, ‘Children’s Economic and Social Rights’ in Ton Liefaard and Ursula Kilkelly (eds), International Law on the Rights of the Child (Springer 2017) 239–58; Michael Freeman, A Magna Carta for Children? Rethinking Children’s Rights (Cambridge University Press 2020).

6 Aoife Nolan and Kirrily Pells, ‘Children’s Economic and Social Rights and Child Poverty: The State of Play’ (2020) 28(1) International Journal of Children’s Rights 111, 114.

7 Nolan, Children’s Socio-Economic Rights (n 5) 21; Nolan, ‘Children’s Economic and Social Rights’ (n 5) 240.

8 Freeman (n 5) 7, 132, 175.

9 Ibid. 405–06.

10 Karl Hanson and Arne Vandaele, ‘Working Children and International Labour Law: A Critical Analysis’ (2003) 11(1) International Journal of Children’s Rights 73; Karl Hanson and Arne Vandaele, ‘Translating Working Children’s Rights into International Labour Law’ in Karl Hanson and Olga Nieuwenhuys (eds), Reconceptualizing Children’s Rights in International Development: Living Rights, Social Justice, Translations (CUP 2013) 250–74; Manfred Liebel, A Will of Their Own: Cross-Cultural Perspectives on Working Children (Zed Books 2004); Manfred Liebel, ‘Do Children Have a Right to Work? Working Children’s Movements in the Struggle for Social Justice’ in Karl Hanson and Olga Nieuwenhuys (eds), Reconceptualizing Children’s Rights in International Development: Living Rights, Social Justice, Translations (CUP 2013) 225–49; Olga Nieuwenhuys, ‘From Child Labour to Working Children’s Movements’ in Jens Qvortrup, William A Corsaro and Michael-Sebastien Honig (eds), The Palgrave Handbook of Childhood Studies (Palgrave Macmillan 2009) 289–300; Manfred Liebel, Philip Meade, and Iven Saadi, ‘Working Children as Subjects of Rights: Explaining Children’s Right to Work’, in Martin D Ruck, Michele Peterson-Badali and Michael Freeman (eds), Handbook of Children’s Rights (Routledge 2017) 437–53; Edward van Daalen, ‘Decolonising the Global Child Labour Regime: The ILO, Trade Unions and Organised Working Children’ (PhD thesis, University of Geneva 2020).

11 International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966, entered into force 3 January 1976) UNTS 93.

12 ILO, ‘Declaration on Fundamental Principles and Rights at Work and its Follow-up’ in The International Labour Organization’s Fundamental Conventions (International Labour Office 1998) 73–75; See also ILO, Rules of the Game: A Brief Introduction to International Labour Standards (International Labour Office 2014) 74.

13 ILO Declaration on Fundamental Principles and Rights at Work (Adopted 18 June 1998, Annex revised 15 June 2010); ILO, The International Labour Organization’s Fundamental Conventions (International Labour Office 2002) 74.

14 International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171.

15 See Neil Stammers, Human Rights and Social Movements (Pluto Press 2009).

16 See General Conference of UNESCO ‘Declaration on the Responsibilities of the Present Generations towards Future Generations’ (Adopted on 12 November 1997) <http://portal.unesco.org/en/ev.php-URL_ID=13178&URL_DO=DO_TOPIC&URL_SECTION=201.html> accessed 5 November 2021; Manfred Liebel, ‘Adultism and Age-based Discrimination against Children’ in Dagmar Kutsar and Hanne Warming (eds), Children and Non-Discrimination: Interdisciplinary Textbook (University Press of Estonia 2014) 119–43; Frederike Lindau, Accessing the Future: Children’s Conceptions and Practices of Access Rights in Environmental Matters (Debus Pädagogik Academy 2021).

17 Manfred Liebel, Decolonizing Childhoods: From Exclusion to Dignity (Policy Press 2020) 161–90.

18 ILO, Convention No 138 Concerning Minimum Age for Admission to Employment (Adopted 26 June 1973) 1015 UNTS 297.

19 See Liebel, ‘Adultism and Age-based Discrimination’ (n 16); Michael Bourdillon and Richard Carothers, ‘Policy on Children’s Work and Labour’ (2019) 33(4) Children & Society 387.

20 See, for instance, James McKechnie and Sandy Hobbs (eds), Working Children: Reconsidering the Debates, Report of International Working Group on Child Labour (Defence for Children International 1998); Martin Woodhead, Children’s Perspectives on their Working Lives: A Participatory Study in Bangladesh, Ethiopia, the Philippines, Guatemala, El Salvador and Nicaragua (Rädda Barnen/Save the Children 1998); Prashant Bharadwaj, Leah Lakdawala and Nicholas Li, ‘Perverse Consequences of Well-Intentioned Regulation: Evidence from India’s Child Labor Ban’ (2013) National Bureau of Economic Research Working Paper No 19602.

21 The ambiguity is partly explained by the different views that existed between representatives of states, the ILO, and some international NGOs when this article was drafted, leading to political compromises. See Sharon Detrick (ed), The United Nations Convention on the Rights of the Child: A Guide to the ‘Traveux Préparatoires’ (Martinus Nijhoff 1992); Sharon Detrick, A Commentary on the United Nations Convention on the Rights of the Child (Martinus Nijhoff 1999); Karl Hanson, Diana Volonakis and Mohammed Al-Rozzi, ‘Child Labour, Working Children and Children’s Rights’ in Wouter Vandenhole, Ellen Desmet, Didier Reynaert and Sara Lembrechts (eds), Routledge International Handbook of Children’s Rights Studies (Routledge 2015) 316–30; Wouter Vandenhole, Gamze Erdem Türkelli and Sara Lembrechts, Children’s Rights: A Commentary on the Convention on the Rights of the Child and its Protocols (Edward Elgar 2019). This also applies to Article 15 on freedom of association, which I discuss below.

22 The UN Committee on the Rights of the Child emphasises in its General Comment No 12 (UNCRC, 2009): ‘Children working at younger ages than permitted by laws and International Labour Organization Conventions Nos 138 (1973) and 182 (1999) have to be heard in child-sensitive settings in order to understand their views of the situation and their best interests. They should be included in the search for a solution, which respects the economic and socio-structural constraints as well as the cultural context under which these children work (§ 116). ‘Children and, if existing, representatives of working children’s associations should also be heard when labour laws are drafted or when the enforcement of laws is considered and evaluated’ (§ 117).

23 Hanson and Vandaele, ‘Working Children’ (n 10); ‘Translating Working Children’s Rights’ (n 10).

24 Manfred Liebel, ‘Children without Childhood? Against the Postcolonial Capture of Childhoods in the Global South’ in Antonella Invernizzi and others (eds), ‘Children Out of Place’ and Human Rights: In Memory of Judith Ennew (Springer 2017) 79–97; Sarada Balagopalan, ‘Childhood, Culture, History: Redeploying “Multiple Childhoods”’ in Spyros Spyrou, Rachel Rosen and Daniel T Cook (eds), Reimagining Childhood Studies (Bloomsbury Academic 2018) 23–40.

25 They correspond to the rights enshrined in ILO Conventions no 87 of 1948: ‘Freedom of Association and Protection of the Right to Organize’ and no 98 of 1949: ‘Right to Organize and Collective Bargaining’, which are basic to the ILO Fundamental Principles.

26 See Manfred Liebel, Bernd Overwien and Albert Recknagel (eds), Working Children’s Protagonism: Social Movements and Empowerment in Latin America, Africa and India (IKO 2001); Nieuwenhuys (n 10); van Daalen (n 10).

27 This is regulated in the statutes of the trade unions. See, Florian Lian, ‘Explain Classes of Person Who Cannot Join Trade Union’ <https://de.scribd.com/doc/75978749/Explain-Classes-of-Person-Who-Cannot-Join-Trade-Union> (accessed 27 November 2021). The main reason is that employment of children is seen as illegal child labour, but there is also relevant an adultist attitude which does not recognise the political agency and participation of children.

28 Edward van Daalen and Karl Hanson, ‘The ILO’s Shifts in Child Labour Policy: Regulation and Abolition’ (2019) 11 International Development Policy 133.

29 International Working Group on Child Labour, ‘Have We Asked the Children?’ (1997) <www.concernedforworkingchildren.org/wp-content/uploads/Have-we-The-ChildreIWGn-discussion-paper_IWGCL-1.pdf> accessed 5 November 2021; Jo Boyden, Birgitta Ling and William Myers, What Works for Working Children (Rädda Barnen/Save the Children 1998); Antonella Invernizzi and Brian Milne, ‘Are Children Entitled to Contribute to International Policy Making? A Critical View of Children’s Participation in the International Campaign for the Elimination of Child Labour’ (2002) 10(4) International Journal of Children’s Rights 403; Judith Ennew, William Myers and Dominique Pierre Plateau, ‘Defining Child Labor as if Human Rights Really Matter’ in Burns H Weston (ed), Child Labor and Human Rights (Lynne Rienner 2005) 27–54; Sharon Bessell, ‘Influencing International Child Labour Policy: The Potential and Limits of Children-Centred Research’ (2011) 33 Children and Youth Services Review 564; Nandana Reddy, ‘The International Movement of Working Children. Bangalore: The Concerned for Working Children’ (2013) <www.concernedforworkingchildren.org/wp-content/uploads/International-Movement_Nandana-Reddy_March-7_Paper.pdf> accessed 5 November 2021.

30 See Marianne Dahlén, ‘The Negotiable Child: The ILO Child Labour Campaign 1919–1973’ (PhD thesis, Uppsala Universitet 2007).

31 This was one of the main reasons why the ILO launched the ‘International Programme on the Elimination of Child Labour (IPEC)’ in 1992, and in June 17, 1999 adopted ILO Convention no 182 concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour (ILO 1999). Nevertheless, Convention no 182 did not replace Convention no 138, but is understood only as its complement.

32 See, for instance, Michael Bourdillon, Ben White and William Myers, ‘Re-Assessing Minimum-Age Standards for Children’s Work’ (2009) 29(3/4) International Journal of Sociology and Social Policy 106–17; Michael Bourdillon and others, Rights and Wrongs of Children’s Work (Rutgers University Press 2010); Eric Edmonds and Maheshwor Shrestha, ‘The Impact of Minimum Age of Employment Regulation on Child Labor and Schooling: Evidence from UNICEF MICS Countries’ (2012) 1(14) IZA Journal of Labor Policy 1; Bharadwaj, Lakdawala and Li (n 20); Diane L Putnick and Marc H Bornstein, ‘Is Child Labor a Barrier to School Enrollment in Low-and Middle-Income Countries?’ (2015) 41 International Journal of Educational Development 112; Virginia Morrow and Jo Boyden, Responding to Children’s Work: Evidence from the Young Lives study in Ethiopia, India, Peru and Vietnam (Young Lives 2018).

33 For an overview, see Bourdillon and others (n 32).

34 Judith Ennew, ‘Outside Childhood: Street Children’s Rights’ in Bob Franklin (ed), The New Handbook of Children’s Rights: Comparative Policy and Practice (Routledge 2002) 201–15.

35 See Michael Bourdillon and William Myers, ‘Introduction’ in Michael Bourdillon and William Myers (eds), Child Protection in Development (Routledge and INTRAC 2013); Bourdillon and Carothers (n 19).

36 ILO (n 13); ILO, The End of Child Labour: Within Reach, Global Report on Child Labour under the Follow-up to the ILO Declaration on Fundamental Principles and Rights at Work (International Labour Office 2006); ILO, Accelerating Action against Child Labour: Global Report on Child Labour under the Follow-up to the ILO Declaration on Fundamental Principles and Rights at Work (International Labour Office 2010); ILO, Global Estimates of Child Labour. Results and Trends 2012–2016 (International Labour Office 2017).

37 See Judith Ennew, Yuli Hastadewi and Dominique Pierre Plateau, ‘Seen, Heard – and Forgotten? Participation of Children and Young People in Southeast, East Asia and Pacific in Events and Forums Leading to and Following up on the United Nations General Assembly Special Session for Children, 2002’ (2007) 17(1) Children, Youth and Environments 33.

38 Liebel ,‘Do Children Have a Right to Work?’ (n 10) 242–43.

39 See, in detail, Manfred Liebel, ‘Protecting the Rights of Working Children instead of Banning Child Labour: Bolivia Tries a New Legislative Approach’ (2015) 23(3) International Journal of Children’s Rights 491.

40 In national constitutions the ‘right to work’ is usually defined as the obligation of the state to achieve full employment, so that everyone who wishes to may work. In the Finnish constitution of 1999, for example, it says in section 18.2: ‘The public authorities shall promote employment and work towards guaranteeing for everyone the right to work’ (for such regulations see Terence Daintith, ‘The Constitutional Protection of Economic Rights’ (2004) 2(1) International Journal of Constitutional Law 56–90: 76–80).

41 See Manfred Liebel (in collaboration with Karl Hanson, Iven Saadi and Wouter Vandenhole), Children’s Rights from Below: Cross-Cultural Perspectives (Palgrave Macmillan 2012).

42 See Liebel, ‘Do Children Have a Right to Work?’ (n 10).

43 For a review, see Bourdillon and others (n 32).

44 According to my personal observations as street worker and participant of working children’s meetings, this happened particularly in Latin American countries such as Colombia, Ecuador, Peru, Paraguay, Mexico and Nicaragua.

45 Julia Sloth-Nielsen and Katrien Klep, ‘Independent Children’ in Jonathan Todres and Shani M King (eds), The Oxford Handbook of Children’s Rights Law (OUP 2020) 615–32.

46 See Liebel, ‘Children without Childhood? (n 24) and Decolonizing Childhoods (n 17).

47 Although the ILO emphasises in its definition of child labour that not all work is harmful to children, it limits the ‘tolerated’ forms of work to ‘ …  activities such as helping their parents around the home, assisting in a family business or earning pocket money outside school hours and during school holidays’ (www.ilo.org/ipec/facts/lang--en/index.htm), and to children who have reached the minimum age defined in Convention No 138. In addition, the ILO pays no attention to these activities in its publications.

48 See, for instance, Ina Gankam Tambo, Child Domestic Work in Nigeria: Conditions of Socialisation and Measures of Intervention (Waxmann 2014); Martha Areli Ramírez Sánchez, ‘“Helping at Home”’: The Concept of Childhood and Work Among the Nahuas of Tlaxcala, Mexico’ in Beatrice Hungerland and others (eds), Working to be Someone (Jessica Kingsley 2007) 87–95; Tobias Samuelsson, ‘Children’s Work in Sweden: A Part of Childhood, a Path to Adulthood’ (PhD thesis, Linköping University 2008).

49 See Liebel, Meade and Saadi (n 10).

50 Pamela Reynolds, Olga Nieuwenhuys and Karl Hanson, ‘Refractions of Children’s Rights in Development Practice: A View from Anthropology’ (2006) 13(3) Childhood 291, 300–301.

51 Karl Hanson and Olga Nieuwenhuys (eds), Reconceptualizing Children’s Rights in International Development: Living Rights, Social Justice, Translations (CUP 2013); Karl Hanson and Olga Nieuwenhuys, ‘A Child-Centred Approach to Children’s Rights Law: Living Rights and Translations’ in Jonathan Todres and Shani M King (eds) The Oxford Handbook of Children’s Rights Law (OUP 2020) 101–20.

52 Liebel, Children’s Rights from Below (n 41).

53 Gerison Lansdown, The Evolving Capacities of the Child (UNICEF Innocenti Research Centre 2005); Manfred Liebel, ‘From Evolving “Capacities” to Evolving “Capabilities”: Contextualizing Children’s Rights’ in Daniel Stoecklin and Jean-Michel Bonvin (eds), Children’s Rights and the Capability Approach: Changes and Prospects (Springer 2014) 67–84.

54 See Liebel, Children’s Rights from Below (n 41) 100–01.

55 A solidarity or social economy comprises income-generating activities aimed primarily at meeting the needs of the workers in mutual support, not at gaining the highest profit see Peter Utting (Ed.), Social and solidarity economy: Beyond the fringe. (London: Zed Books. 2015). Various movements of working children have realised solidarity economies on a small scale and some export their goods to European fair trade organisations (e.g. the Italy-based organisation ‘Little Hands’: see Little Hands, www.littlehands.it).

56 Documented in AMWCY, ‘Voice of African Children: Work, Strength and Organisation of Working Chil-dren and Youth’ (2001) Enda Tiers-Monde Occasional Papers No 217; See also Manfred Liebel, ‘Children’s Work, Education, and Agency: The African Movement of Working Children and Youth (AMWCY)’ in Gerd Spittler and Michael Bourdillon (eds), African Children at Work: Working and Learning in Growing Up for Life (LIT 2012) 303–32.

57 See Liebel, ‘Do Children Have a Right to Work?’ (n 10).

58 See Manfred Liebel and Antonella Invernizzi, ‘The Movements of Working Children and the International Labour Organization: A Lesson on Enforced Silence’ (2018) 33(2) Children & Society 142; Noam Peleg, ‘Illusion of Inclusion: Challenging Universalistic Conceptions in International Children’s Rights Law’ (2018) 24(3) Australian Journal of Human Rights 326.