INTERNATIONAL LABOUR LAW

PROJECT REPORT

TOPIC:

ABOILATION OF CHILD LABOUR

(CONVENTION NO. 138 & NO. 182)- A
CRITICAL STUDY IN THE INDIAN CONTEXT

SUBMITTED TO:

DR. SHALLU NUNIWAL

PROFESSOR
PANJAB UNIVERSITY, CHANDIGARH

SUBMITTED BY:

SHUBHKARMANPREET KAUR
202/17, SECTION-D, 8TH SEMESTER,
B. COM LL.B., UILS,
PANJAB UNIVERSITY, CHANDIGARH.

1
ACKNOWLEDGEMENT

Success comes to those who strive for it. To achieve one’s goal, one puts in a lot of hard
work and efficiency. In this process, one takes all the encouraging and helping hands of
the people.

I would like to convey my heart full thanks to Dr. Shallu Nuniwal, my teacher and guide,
who guided me through this project and also gave valuable suggestions and guidance for
completing this project. She provided me with this opportunity and whose immaculate
knowledge was a key in completion of this project.

I owe my regards to the entire faculty of the Department of Legal Studies, from where I
have learnt the basics of Law and whose informal discussions, intellectual support and
able guidance was a beacon light for me in the entire duration of this work. So, with the
concrete efforts and utmost honest intentions, I hereby present this project.

Shubhkarmanpreet Kaur

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TABLE OF CONTENTS

INTRODUCTION...........................................................................................4

BACKGROUND.............................................................................................6

THE MINIMUM AGE CONVENTION 138 OF 1973.................................. 7

ARTICLE 1........................................................................................................7
ARTICLE 2......................................................................................................10
ARTICLE 3......................................................................................................12
ARTICLE 4......................................................................................................14
ARTICLE 5......................................................................................................16
ARTICLE 6......................................................................................................18
ARTICLE 7......................................................................................................19
ARTICLE 8......................................................................................................21

THE WORST FORMS OF CHILD LABOUR CONVENTION 182 OF

1999...............................................................................................................23
ARTICLE 1......................................................................................................23
ARTICLE 2......................................................................................................24
ARTICLE 3......................................................................................................24
ARTICLE 4......................................................................................................26
ARTICLE 5......................................................................................................27
ARTICLE 6:.....................................................................................................27
ARTICLE 7:.....................................................................................................28
ARTICLE 8......................................................................................................30
ARTICLES 9-16...............................................................................................31

CONCLUSION.............................................................................................33

BIBLIOGRAPHY.........................................................................................34
BOOKS...........................................................................................................34
ARTICLES.......................................................................................................35
MISCELLANEOUS...........................................................................................36

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INTRODUCTION

The International Labour Organization (ILO) (2010) estimates that there

could be more than 306 million children worldwide currently involved in
work. Of those children, 215 million are considered to be child labourers. Of
the percentage of children who are child labourers, 115 million are exposed
to hazardous conditions. Such figures are merely estimates as precise
numbers of children in labour are difficult to decipher because many cases
of child labour go unreported. Children work in informal settings where they
participate in activities such as scavenging, shining shoes, or on family
enterprises. Such cases of child labour are not easily visible and are, thus,
difficult to regulate. Children also work in the formal sector in a variety of
industries such as in agriculture, manufacturing, fishing, construction, and
domestic services. The ILO estimates that, of all child labourers, about two
thirds (64 percent) are unpaid family workers, while only 21 percent are
involved in paid employment, and five percent are self-employed. Children
in the rural areas are more likely to work than children in the urban areas.
The child labour distribution by sex tilts towards boys with 54 percent
participating in labour while only 46 percent of those who work are girls.

Although child labour is a worldwide problem, it has been particularly

challenging in developing countries. The largest numbers of child labourers
are found in the Asia- Pacific region with 113.6 million children working,
followed by Sub-Saharan Africa with 65.1 million, and Latin America and
the Caribbean with 14.1 million. In terms of relative extent, Sub-Saharan
Africa presents the most alarming picture. One in four children in Sub-

4
Saharan Africa is involved in child labour compared with one in eight in
Asia- Pacific. The ILO also reveals that 15 percent of all children in Sub-
Saharan Africa are involved in some form of hazardous work. In Pacific-
Asia only 5.6 percent and 6.7 percent in Latin America are exposed to
hazards. Such legislation, however, mostly covers formal labour
relationships; those children working in the informal economy do not often
benefit from legal protection.

These figures highlight the gravity of the menace of child labour, and
provide the context to study Conventions passed by the ILO to combat it.

5
Background

The regulation of child labour has been an area of focus of the International
Labour Organization. Measures taken in this regard include the adoption of
the Minimum Age Convention 138 of 1973 (“Convention 138”) and the
Worst Forms of Child Labour Convention 182 of 1999 (“Convention
182”). Similarly, the United Nations has adopted the Convention on the
Rights of the Child (“CRC”). Other examples such as the African Union’s
adoption of the African Charter on the Rights and Welfare of the Child
(“African Child Charter”) all have the elimination of child labour in their
aim, with varied paths laid out to achieve this. Ratification of these
conventions has lead to legislations at the domestic level preventing child
labour.1 However, statistics prove that these efforts have not achieved what
was intended. The contributions made by the ILO shall be discussed, as the
ILO has been spearheading the campaign against child labour since its
inception in 1919. From 1919 to 1965, the ILO had adopted ten conventions
relating to the minimum age for admission to employment or work. These
were consolidated to form Convention 138. Additionally, while the other
instruments mentioned deal with child rights in general, Conventions 138
and 182 deals with child labour specifically, which is why their study would
be instructive in order to understand the stand of the ILO on child labour,
and its suitability to India.

1
M.Davidson, The ILO’s Latest Campaign to End Child Labour: Will it Succeed where Others have
Failed?, TRANSATIONAL LAW AND CONTEMPORARY PROBLEMS, 203-224, (2001).

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 THE MINIMUM AGE CONVENTION 138 OF 1973
Convention 138 was adopted by the ILO in 1973. This was a revision of the
conventions adopted since 1919, which were industry-specific. The earlier
conventions applied to specific sectors of the economy or certain
occupations. This Convention is intended to apply to all such sectors.2 There
has been the opinion that the Convention has been adopted not only to
protect the interests of children, but also to protect the security of
employment and income of adults.3

An analysis of the Convention shall be undertaken in this section.

Article 1
This Article outlines the objectives of the Convention, and it states that the
members are to

“Undertake to pursue national policy designed to

ensure the effective abolition of child labour and
to raise progressively the minimum age for
admission to work to a level consistent with the
fullest physical and mental development of young
persons.”

While this Article encourages members to draft laws to abolish child labour,
it does not define what child labour is. A definition is not found in any other
place in the Convention. The lack of a definition is a foundational problem if
states are to eliminate child labour, as they would not how to clearly identify
2
B.Creighton, Combating Child Labour: The Role of International Labour Standards,COMPARATIVE
LABOUR LAW JOURNAL, 371, (1997).
3
M.Myers, The Rights Rights? Child Labour in a Globalising World, THE ANNALS OF THE AMERICAN
ACADEMY OF POLITICAL AND SOCIAL SCIENCE , 38-55, (2001).

7
child labour and eliminate it.4 This also leads to the problem of
inconsistency in measures taken by the member states. There is no
obligation to take measures beyond the drafting of appropriate legislation.
Indeed, it might be sufficient to just establish the required threshold with
respect to age to define child labour and not actually take active measures to
eliminate it. This is problematic as an issue as complex as child labour
requires a nuanced approach and cannot be eliminated merely by enacting
legislation.

This is because legislation cannot be all encompassing, and would cover

only certain sectors, and typically, areas such as agriculture, or domestic
labour would be difficult to control, defeating the objective of the
Convention.5

Mendelivich 6 is of the opinion that predetermined, practical measures are to

be employed to complement legislation.7 He is of the opinion that policies
are to aim at issues such as poverty, and absence from school, which help
prevent child labour and attack the root of the problem. His argument
advocates for great changes to be made in the social, economic and cultural
atmosphere in lesser developed countries. While this is a useful approach, it
places a lot of emphasis on positive action by government. When a country

4
Smolin argues that the Convention has an abolitionist approach to child labour, but unfortunately does not
define the evil that needs to be abolished. D.Smolin, Strategic Choices in the International Campaign
Against Child Labour, HUMAN RIGHTS QUARTERLY, 946, (2000).
5
B.Boockmann, The Effect of ILO Minimum Age Conventions on Child Labour and School
Attendance:Evidence from Aggregate and Individual Level Data, WORLD DEVELOPMENT, 681, (2009).
6
E.Mendelievich, Child Labour, INTERNATIONAL LABOUR REVIEW, 566, (1979). See also Alston,
Implementing Children’s Rights: the Case of Child Labour, NORDIC JOURNAL OF INTERNATIONAL LAW,
40, (1989). Alston states that, given the multifaceted nature of most major child labour problems, the
solutions to them will almost invariably require action by a variety of actors both nationally and
internationally. The problems require government to partner with non-governmental groups, trade unions,
peasant groups, legal service groups, the press, educators, and other local community groups.
7
Alston states that legislation will be effective only where determined efforts are made to secure its
implementation by the bureaucracy charged with responsibility for such implementation, which it is both
technically and financially equipped to do.

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faces poverty and other challenges in the socio-economic sector, the priority
would not be on eliminating child labour, and in fact, states might even turn
a blind eye in order to help boost the economy. Additionally, problems with
respect to implementation exist in lesser developed countries due to the scale
of operations required. A contrasting view is held by many scholars, 8 who
contend that the situation in developed countries proves that elimination of
these conditions does not assure a reduction of child labour.

There have been concerns9 about the drafting of the legislation and the
words it employs, with defective legislation encouraging the exploitation of
loopholes. On the other hand, inordinately rigid provisions10 might not help
deal with the problem with child labour going underground.

There is also the oft repeated argument that enforcement of these laws would
often eliminate a source of income for struggling families. 11 Thus, all factors
socio-economic need to be considered before implementing legislation.12

There also is criticism of the fact that the Convention relies quite heavily on
written policy, with those in the lower strata of society unable to rewrite
laws due to the hierarchy that exists, and that this would only reinforce the
extant situation as the ones framing the law would not want the poor to
penetrate the system.13 14
This can be alleviated by engaging with the
8
J.McKechnie and Hobbs, Child Labour: View From the North, CHILDHOOD, 98, (1999).
9
Alston, supra.
10
Alston, supra.
11
Celek , The International Response to Child Labour in the Developing World International Response to
Child Labour in the Developing World: Why Are We Ineffective?,GEORGETOWN JOURNAL ON POVERTY
LAW AND POLICY, 99, (2004).
12
Celek, supra.
13
Estacio and Marks, Child Labour and the International Labour Organisation's Convention 182: A Critical
Perspective, JOURNAL OF HEALTH PSYCHOLOGY, 483, (2005).
14
Shanthakumari and Kannan, Dissimilarity of Customer Perception and Expectation Among Rural and
Urban Markets, JOURNAL OF CONTEMPORARY RESEARCH IN MANAGEMENT, 110, (2010), who claim that in
rural South Africa there is high poverty, limited opportunities for employment and survivalist
improvisation. Education and access to basic services in rural areas differs significantly from the situation
in urban areas, negatively affecting literacy in rural areas.

9
relevant stakeholders,15 through awareness campaigns and community
action.

Article 2
Article 2(1) of the Convention states:

“Each member which ratifies this Convention shall

specify in a declaration appended to its ratification
a minimum age for admission to employment or
work within its territory.. no one under that age
shall be admitted to employment or work in any
occupation.”

This Article places a duty on members to specify the minimum age for
employment in various occupations. This is not limited to one particular
sector, but to all forms of employment. The words “work” and
“employment” have been used in a manner that suggests that all forms of
work and employment are subject to the Convention. 16 Thus, remuneration,
place of work, or the work being subject to contractual agreement is of no
consideration.17 While age is used as a metric, it might be a problem in India
and the like because there exists of all ages of children working. The
minimum age cannot be lesser than the age of compulsory school, or the
standard figure of fifteen years.

Linking the two concepts (minimum age and compulsory education) is with
the assumption that the infrastructure to provide education exists, which may

15
Stakeholders can be the parents who send their children to work, employer organisations, and trade
unions. Banks and financial institutions can provide development to poor communities, and non-
governmental organisations can be involved in awareness and also in poverty eradication.
16
Creighton, supra.
17
Creighton, supra.

10
not be the case in developing countries.18 In fact, even the fifteen year limit
does not seem to be absolute.19 The Convention itself is aimed to be dynamic
and meant to encourage standards in order to promote the objective. Thus,
emphasis is placed on education rather than work.20

A few scholars of the opinion that a universalized policy of excluding

children below a certain age is not justified as there is no sufficient attempt
to quantify the effect of work, and a blanket ban would limit attempts to
limit only harmful work for children.21 Studies show the importance of
responsibility learnt while children are exposed to a diversity of activities,
and work is important because of the practical nature of learning and the
freedom to experiment it affords children. Scholars also contrast the
consumer culture that is imposed on children with the prohibition on the
freedom of children to earn income.22 The ILO needs to conduct studies on
the impact of work on children and how it can be effectively utilized.

Article 2(4) provides for exceptions for countries with insufficient

development in the economy and education. An initial minimum age of
fourteen may be prescribed, after consultation with stakeholders. While this
flexibility has garnered praise, the use of the word “initially” means that the
ILO expects a change after a few years, but does not indicate what factors
are to be taken into consideration when this happens. Member states can,
therefore, accept that when educational and economic conditions improve,
the minimum age of employment should increase. Despite its lack of detail

18
Bourdillon, White and Meyers, Re-assessing Minimum Age Standards for Children’s Work,
INTERNATIONAL JOURNAL OF SOCIOLOGY, SOCIETY AND POLITICAL SCIENCE, 106-107, (2009).
19
Bourdillon, White and Meyers, supra.
20
Bourdillon, White and Meyers, supra.
21
B.White, Children, Work and 'Child Labour:' Changing Responses to the Employment of Children,
DEVELOPMENT AND CHANGE, 849-878, (1994).
22
Creighton, supra.

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this provision ought to praised for its consideration of the needs of children
in developing countries. The ILO thus embraces and acknowledges that
differences do exist between developing and developed countries.

Article 3
Article 3(1) states:

“The minimum age for admission to any type of

employment or work which is by nature or the
circumstances in which it is carried out likely to
jeopardise the health, safety or morals of young
persons shall not be less than 18 years.”

Creighton23 suggests that the underlying purpose of the provision is to

protect young persons against exposure to hazardous work before they can
judge whether such work can be undertaken in safety. Employment before
they have acquired this mental facility presents a danger not only to
themselves but also to fellow workers. The provision disappointingly seems
somewhat vague as it does not adequately describe or give examples of what
kind of work may fall within this category. In order to supplement
Convention 138 the ILO has established the Minimum Age
Recommendation24 which is, however, a non-binding instrument. In terms of
article 10 of the Recommendation, member states should take into account
work concerning dangerous substances, agents, or processes (including
ionising radiations), the lifting of heavy weights and underground work. The
Recommendation gives some kind of guidance of some of the types of work
to consider when determining if work is hazardous. The Recommendation is,

23
Creighton, supra.
24
ILO MINIMUM AGE RECOMMENDATION, 146 (1973).

12
however, not a legally binding instrument, and member states are thus not
obliged to comply with its provisions. Member states are again left in a
position of determining this type of work without much help from the
Convention.

Article 3(2) stipulates that the types of work referred to in article 3(1) needs
to be assessed after consultation with organizations of employers and
workers. This Article, therefore, allows member states to determine the
issues that may affect them directly. The Convention does not, however,
give the member states guidelines relative to what factors they should
consider in determining whether such work is likely to cause harm.

Article 3(3) stipulates that:

“Notwithstanding the provisions of Article 3(1)

national laws or regulations or the competent
authority may after consultation with the
organisations or employers and workers
concerned, authorize employment or work as from
the age of 16 years on condition that the health,
safety and morals of the young persons concerned
are fully protected and that the young persons
have received adequate specific instruction or
vocational training in the relevant branch of
activity.”

In simpler terms, the Article allows member states to permit children above
the age of sixteen years to participate in work or employment provided that
they are properly protected and have been given adequate information and

13
training to undertake such work. The Article is commended for its flexibility
in permitting children above the age of sixteen years to be able to participate
in such employment. The conditions that the Convention also puts in place,
viz. those of aadequate instruction and vocational training, also seem
reasonable to protect young persons from potential harm.

Article 4
Article 4(1) encourages a competent national authority to exclude limited
forms of employment or work from the relevant scope of implementation of
the Convention. It states that exceptions may be permissible only if they are

a) “necessary,”
b) “in limited categories of work”, or
c) “Relate to special and substantial problems of application”.25

This provision is, however, very broad and not useful, as it does not contain
a list or guidelines relative to which categories of work can be excluded. The
Committee of Experts on the Application of Conventions and
Recommendations (CEACR) asserts that article 4 aims to leave the
competent authorities in each country a wide discretion to adapt the
application of the Convention to the national situation. 26 Among the possible
exclusions mentioned during the preparatory work for the Convention were
employment in family undertakings, and other work outside the domain of
the employer in terms of supervision.27 These forms of work are indeed
difficult to monitor owing to their invisibility but they can be forms of work

25
Borgaza, Limiting the Minimum Age: Convention 138 and the Origin of the ILO's Action in the Field of
Child Labour, CHILD LABOUR IN A GLOBALIZED WORLD: A LEGAL ANALYSIS OF ILO ACTION, 39-64,
(2008).
26
COMMITTEE OF EXPERTS ON THE APPLICATION OF CONVENTIONS AND RECOMMENDATIONS (CEACR)
1981.
27
Bargazo, supra.

14
in which children are exploited. According to Swepston, 28 no country has
actually made use of the possibility of excluding categories of employment
or work from the application of this Convention. This provision makes the
Convention difficult to implement as there is insufficient detail on which
member states can rely if they wish to conform to such provisions.
Confusion is therefore created, and member states are justified in abstaining
from making such a list.

Article 4(2) stipulates:

“Each member which ratifies this Convention shall

list in its first report on the application of the
Convention submitted under article 22 of the
Constitution of the ILO any categories which may
have been excluded in pursuance of Article 4(1)
giving the reasons for such exclusion, and shall
state in subsequent reports the position of its law
and practice in respect of the categories excluded
and the extent to which effect has been given or is
proposed to be given to the Convention in respect
of such categories.”

Barzago states that the fact that member states have to list the exclusions in a
report is a sign that this article is too rigid. 29 Member states are required to
list exclusions in the first national report which is delivered in the first year
of ratification of the Convention. Member states must, therefore, determine
and decide upon the possible exceptions in a very short period of time. 30
28
L.Swepston, Child Labour: Its Regulation by ILO Standards and National Legislation, INTERNATIONAL
LABOUR REVIEW, 577-594, (1982).
29
Bargazo, supra.
30
Bargazo, supra.

15
After the submission of the first national report, it seems as though member
states can no longer modify the list of exceptions or provide one if no
exceptions were included in the first report.31 This means that member states,
having ratified the Convention, cannot adapt their regulations to suit social
and economic changes that might occur over the years. According to some
scholars, such provisions have discouraged the use of article 4 in many
countries.32 It is advisable that the ILO provide member states with at least
more time, more than a year where necessary, to provide possible
exceptions, and also the chance to change such exceptions after a period of
time to take into account changing social and economic conditions.

Article 5
Article 5(1) stipulates that member states whose economy and
administrative facilities are insufficiently developed may initially limit the
scope of application of this Convention. The provision seems to
accommodate less developed countries by permitting the limitation of the
scope of operation of the Convention. Member states that adhere to the
provisions of article 5(1) are, however, expected to declare the branches of
economic activity or types of undertakings to which they will apply the
provisions of the Convention. Borzago33 alleges that this clause is
problematic as it does not adequately describe the sectors that can be
excluded from the scope of the Convention.

Article 5(3) expressly states that the Convention will apply to specific
sectors, such as mining, quarrying, construction and the like.

31
Bargazo, supra.
32
Bargazo, supra.
33
Bargazo, supra.

16
The Convention does not adequately describe the complexities of the
agricultural sector. Agriculture is considered to be the most important
economic activity in many developing countries, and child labour is highly
prevalent in that industry.34 The provision states that the Convention is
applicable to plantations, but children working on local farms and not
regularly employing hired workers seem to be excluded from the application
of the Convention. This provision has the potential to create confusion.
From a literal interpretation of this Convention, a child below the age of
fifteen years involved in agricultural work for his/her own household, even
though the child is subjected to poor working conditions and for long hours,
is not protected by the Convention. Misunderstandings have arisen as a
result of the poor drafting of the Convention. 35 Large-scale agriculture
depends on hired workers who receive wages for their work, thereby making
it part of the formal sector. Family-based work, however, is regulated by the
internal family management and this makes it difficult for the government to
regulate.36 One cannot blame the drafters of the Convention for excluding it
from the application of the Convention. Its exclusion, however, does not
work in the best interests of the child, as it does not protect the child from
exploitative labour in such sectors. Smolin37 declares that the fact that small
scale labour is not regulated means that children are pushed out of wage-
earning plantations into small-scale plantations even though this still
prevents school attendance.

34
Bargazo, supra.
35
Bargazo, supra. Member states who have excluded one or more sectors of the economy from the material
scope of the Convention are obliged to indicate their general position with regard to the employment of
children in those sectors, also pointing out the progress made towards a broader application of the
Convention. See Article 5(4)(a) of Convention 138.
36
Smolin, supra.
37
Smolin, supra.

17
Sweptson38 rightfully claims that a clear distinction should be made between
articles 4 and 5. Swepston alleges that, while Article 4 allows the exclusion
of an occupation, article 5 allows for the exclusion of an entire economic
sector.39 From a further analysis of the provisions, article 4 seems to apply to
all ILO member states, both those in the developed and undeveloped
countries. Article 5, however, seems to lean towards developing countries as
they are insufficiently developed. Excluding an entire economic sector
would not adequately protect children from exploitative labour practices.
Employers could take advantage of such non-regulation and abuse children
in those excluded or unregulated sectors. Despite the problems of
implementation, all economic sectors should be fully addressed in legislation
to avoid the possible exploitation of children in all economic sectors.

Article 6
Article 6 provides for an exception to the application of minimum ages,
stipulating that they do not apply to work done by children in schools for
vocational training and the like. This provision is commended for its
flexibility in providing children with the chance of learning through work.

Swepston40 claims that many countries unfortunately do not have any

regulation covering work done in institutions, and it is advisable that such
regulations be promulgated to protect the large number of children
participating in schools and institutions of learning. Sweptson's contentions
are pertinent as children in some cases may be subjected to exploitative
labour practices at school or institutions of learning. An example of that
would be a child who undertakes a practical subject such as agriculture, who
38
Swepston, supra.
39
Swepston, supra.
40
Swepston, supra.

18
may be forced to grow crops in the blazing heat, using pesticides without the
necessary instruction and protective clothing. As a form of punishment
children may also be used in ways that are harmful to them, while the school
bases its claim on the exception found in Article 6. The Convention is,
unfortunately, not helpful in giving guidelines relative to what kind of
activities children can or cannot undertake in schools. Setting out guidelines
for the work of children in schools and institutions of learning is, however,
critical if children are to be protected in schools and training institutions.

Article 7
Article 7 states:

“Member states through their national laws can

permit children between the ages of 13 and 15
years of age to undertake light work. Such work
should not be likely to be harmful to their health or
development and should not prejudice their
attendance at school, their participation in
vocational orientation or training programmes.”

There is a lack of definition or clarity relative to what work actually qualifies

as light work. Light work is simply referred to as work that is not likely be
harmful to the health or development of children and also not likely to
prejudice their attendance at school. The lack of a definition could afford
member states some form of flexibility in dealing with circumstances that
are unique to themselves. Such definition may, thus, be influenced by
environmental, cultural, social, political, and economic circumstances.41 The
41
Hilson Child Labour in the Artisanal Mining Communities: Experiences from Northern Ghana, WILEY
JOURNAL OF COMMUNITY PRACTICE: ORGANIZING, PLANNING, DEVELOPMENT AND CHANGE, 445-473,
(2010). Hilson in his analysis of child labour in small-scale mining communities in Africa comes to the

19
absence of a definition may, however, also cause confusion and a general
misunderstanding of the concept. This article does not provide any
operational guidance for assessing what work qualifies as light work. 42
Despite the confusion and lack of detail of this term, the ILO has on many
occasions requested member states to adopt legislation and measures to
establish and regulate the light work of children. It can also be implied that
this Convention does not permit the light work of children below the age of
thirteen years, even if such employment is not hazardous to their health,
morals, or development and does not prejudice attendance at school. The
fact that children below the age of thirteen years cannot work, even if such
work is not detrimental, seems somewhat unfair and restrictive. This
provision is incompatible with many cultures, and it places an unnecessarily
strict prohibition of work by children below the age of thirteen. The ILO
should re- consider the possibility of light work for children of all ages.
Smolin43 argues that the provision of light work assumes that children
between the ages of twelve and fifteen years will be subject to compulsory
education laws and enrolled in school. In India, however, approximately
twenty percent of children between the ages of five and fourteen years are
actually not in school. Smolin44 rightfully argues that for the large majority
of children not in school it is difficult to see how their best interests are

conclusion that the light work of children differs according to individual circumstances, for instance, on
whether a child is based in the rural or urban areas. In rural Sub-Saharan African environments the lack of
transportation and machinery makes life extremely labour intensive. The simple domestic task of collecting
water becomes a major problem when a child has to walk extremely long distances to collect the water. In
an urban setting the availability of municipal water makes getting a glass of water very easy and does not
take up much time. The light work of children will thus be affected by many differing factors such as
accessibility, the local geography, the multiplicity of ethnic groups, languages and systems of socialisation
and education.
42
Swepston, supra. Some countries have been said to disagree with the concept of allowing a restricted
kind of light work for younger children. Other countries have adopted provisions on light work and have
set ages of between 10 and 15 years for such work.
43
Smolin, supra.
44
Smolin, supra.

20
served by ruling out full-time employment.45 Smolin46 rightfully argues that
the "desire of a child labour movement to support compulsory education
cannot excuse a failure to provide labour standards which meet the actual
needs of the current circumstances of many children." He further claims that
the exceptions of light work will channel underaged children into
unregulated sectors.

Article 8
Article 8 provides for an exception to the prohibition of employment or
work for the purposes of artistic performances. The article once again places
a duty on the authorities to grant permits, and they are to limit the number of
hours for which employment or work is allowed, and prescribe the
conditions under which it is permitted. No minimum age is laid down in the
Convention for this type of work.47

Abernethie48 claims that the notion of childhood reflected in Convention 138

focused mainly on European, American, and British ideas, history, and
circumstances. National and international labour law at the end of the 19th
and the beginning of the 20th centuries was focused on solving important
questions regarding the work of women and children. 49 The shared belief
that children should not have a natural right to work formed the basis for the
establishment of the concept of a minimum age for admission to
employment or work.50 In the drafting of the Convention the Western

45
While it would be likely to serve the best interest of the child to supply meaningful formal education, in
the absence of such opportunities it makes little sense to reduce this age group to a significant degree of
enforced idleness.
46
Smolin, supra.
47
Swepston, supra.
48
L.Abernethie, Child Rights in Contemporary Society: Why Do We Care?, INTERNATIONAL JOURNAL OF
CHILD RIGHTS, 81-114, (1998).
49
Borgaza, supra.
50
Borgaza, supra.

21
countries dominated the ILO membership, and it has been difficult for many
developing countries to ratify the Convention for economic and cultural
reasons.51

There has been criticism of the Convention for not being drafted keeping in
mind the best interests of the child. White believes that the Convention treats
children like helpless victims, needing the involvement of adults. He says
that with an increase in poverty, various forms of disease and the incidence
of child-headed families, children would have to work to avoid starvation.
Meanwhile, member states can get away with not taking measures as they
are supposed to work only with funds that they can allocate. He says the real
issue is not about deciding when a child can be permitted to enter the
workforce, but the creation of an environment where it is not necessary.

**

By the second half of the 1990s, the ILO recognised the criticism it was
facing with respect to Convention 138, and realized that it was considered
extremely complicated.52 The solution it conceived of was the creation of a
new convention, which would focus energy on the most intolerable forms of
child labour. Thus, in 1999, the International Labour Conference adopted
the Worst Forms of Child Labour Convention 182 of 1999 unanimously.

The Worst Forms of Child Labour

Convention 182 of 1999

51
Borgaza, supra.
52
Myers, supra.

22
This Convention came into effect on 19th November, 2000. This is first time
that there has been recognition by an international instrument of the need to
protect children from being exploited to commit crime, and to clarify that
this would qualify as abuse. This Convention, while dealing with child
labour, is unusual as it focuses more on criminal activity than on child
labour.53 The ultimate aim of the Convention is to eliminate the worst forms
of child labour.54 It recognises the need to ensure access to basic education
and the need to remove the children from the work environment by
eliminating structures that reinforce it and by providing rehabilitation.55

Article 1
Article 1 state:

“Each member which ratifies this Convention shall

take immediate and effective measures to secure
the prohibition and elimination of the worst forms
of child labour as a matter of urgency.”

The terms “immediate” and “effective measures” and “as a matter of

urgency”, show that the elimination of child labour is considered to be a
priority.56 This provision allows for the categorization of child labour into
categories, distinguishing the worst forms of child labour from the others. 57
This Convention is advancement over Convention 138 as it seeks to

53
White claims that in the 1980s the official thinking about child labour experienced a shift from a purely
abolitionist perspective towards one which could include the support or protection of children who work,
even if such employment might contravene the law.
54
Article 1, Convention 182.
55
Article 8, Convention 182.
56
Y.Noguchi, 20 years of the Convention on the Rights of the Child and International Action against Child
Labour, INTERNATIONAL JOURNAL OF CHILD RIGHTS, 515-534, (2010).
57
B.White, Defining the Intolerable; Child Work, Global Standards and Cultural Relativism, CHILDHOOD,
133-134, (1999).

23
encourage member states to take measures, rather than pass legislation the
implementation of which cannot be guaranteed.

Article 2
This states that the Convention applies to all under the age of eighteen years.

Article 3
“The worst forms of child labour comprise:

a) all forms of slavery, or practices similar to slavery,

such as the sale and trafficking of children, debt
bondage and serfdom and forced or compulsory
labour, including forced or compulsory recruitment of
children for use in armed conflict;
b) the use, procuring, or offering of a child for
prostitution for the production of pornography of for
pornographic performances;
c) the use, procuring, or offering of a child for illicit
activities, in particular for the production and
trafficking of drugs as defined in the relevant
international treaties; and
d) work done which, by its nature or the circumstances
in which it is carried out, is likely to harm the health,
safety or morals of children.”

The first three are termed “unconditional” because even an improvement in

working conditions would not deem them tolerable.58 On the other hand,
58
International Labour Organisation, CHILD LABOUR: A TEXTBOOK FOR UNIVERSITY STUDENTS, 46,
(2004).

24
3(d) is usually seen as a conditional worst form of labour, with working
conditions determining whether it actually is. 59 A hazardous form of work
can be converted by providing for appropriate safety mechanisms, for
instance.60

The wording of 3(d) and article 3(1) of Convention 138 are similar. The
non-permissible work under Convention 138 has been upgraded to a worst
form of labour in this Convention. Thus, they are complementary.

One of the most evident differences between the two Conventions is that
while Convention 138 mentions specific industries like mining, Convention
182 refers to slavery, trafficking and the like in more general terms. 61
Convention 138 seeks to categorise forms of labour in industries which are
not illegal per se, whereas Convention 182 recognises activities that are
widely recognised as criminal. This approach is laudable, as it tries to root
out child labour and all its manifestations not only in the formal sector, like
previous efforts, but in areas where it is most prevalent and difficult to
curb.62

However, there has been criticism. Child pornography is a criminal matter,

and should not be considered a labour issue. 63 Such crimes are difficult to
eliminate and much more difficult for a civilian movement that the labour
movement is.64 Smolin says this stance is imposing an impossible standard. 65
Another criticism is the fact that employers who reinforce these standards

59
International Labour Organisation, CHILD LABOUR: A TEXTBOOK FOR UNIVERSITY STUDENTS, 46,
(2004).
60
International Labour Organisation, CHILD LABOUR: A TEXTBOOK FOR UNIVERSITY STUDENTS, 47,
(2004).
61
Article 5(3), Convention 138.
62
Davidson, supra.
63
Smolin, supra.
64
Smolin, supra.
65
Smolin, supra.

25
are consulted as stakeholders.66 Governments are to take a more active role.
Another difficulty is the monitoring of the informal sector. This is difficult
as efforts even in the formal sector have been difficult to sustain. 67 The
absence of regulation of children in armed conflict is conspicuous, as it is
quite prevalent in African nations and other war-ridden states. While forced
enlistment is countered, coercion is not. Smolin is of the opinion that
Convention 182 operates in an area where there is a several lack of
experience on the part of the lawmakers, and law enforcers.68

Article 4
1. “ The types of work referred to under Article 3(d) shall be determined
by national laws or regulations by the competent authority after
consultation with the organisations of employers and workers
concerned taking into consideration relevant labour standards in
particular paragraphs 3 and 4 of the Worst forms of Child Labour
Recommendation 1999,
2. The competent authority after consultation with the organisations of
employers and workers concerned shall identify where the types of
work so determined,
3. The list of the types of work determined under paragraph 1 of this
Article shall be periodically examined and revised as necessary in
consultation with the organizations of employers and workers
concerned.”

The Convention proposes the determination of the definition of hazardous

work at the national level after taking into consideration all relevant factors

66
Estacio and Marks, supra.
67
Davidson, supra.
68
Smolin, supra.

26
and consulting stakeholders. However, the problem of the government not
even being willing to consult the usually hostile worker organisations is an
issue. While worker organisations are mentioned, other stakeholders are
ignored by the convention. Since most of the activity under this Convention
relates to crimes, consultation of law enforcement agencies is crucial.

Article 5
This Article deals with monitoring mechanisms. This is critical to the
success of the Convention. However, financial implications for less-
developed countries are to be considered.

Article 6:
It states:

1. Each member shall design and implement programme of

action to eliminate as a priority the worst forms of child
labour,
2. Such programme of action shall be designed and
implemented in consultation with relevant government
institutions and employers' and workers' organisations
taking into consideration the views of other concerned
groups as appropriate.”

As discussed earlier, this Convention is more action based than Convention

138, as evidenced by this article. This article has been praised for having the
ability to engage leadership and mobilise resources. A comprehensive
scheme eliminating child labour and the environment that encourages it is
necessary.69While Convention 138 does not seem to include NGOs,
69
Dessy and Pallage, Why Banning the Worst Forms of Child Labour Would Hurt Poor Countries, CENTRE
FOR RESEARCH ON ECONOMIC FLUCTUATIONS AND EMPLOYMENT MONTREAL, (2001). Dessy and Pallage

27
Convention 182 seemingly encourages participation.70 Political will to
effectively consider children’s interests is also necessary.71

Article 7:
Article 7 states:

1. “Each member shall take all necessary measures to

ensure the effective implementation and enforcement of
the provisions giving effect to this Convention including
the provision and application of penal sanctions or, as
appropriate, sanctions,
2. Each member shall, taking into account the importance
of education in eliminating child labour, take effective
and time bound measures to:
a) Prevent the engagement of children in the
worst forms of child labour,
b) Provide the necessary and appropriate
direct assistance for the removal of children
form the worst forms of child labour and
their rehabilitation and social integration,

argue that, without appropriate accompanying policies, Convention 182 on the worst forms of child labour
should be rejected by poor countries. Through their studies they show that this Convention seems to worsen
the situation of poor families who need the wages of their children to survive. They do acknowledge that,
combined with a food-for-education programme, the Convention may boost the support for a ban on
harmful forms of child labour because more time is spent in school rather than at work.
70
Positioning children in a rather passive role further reinforces the construction of child labour as an
object without a human face. Since they are on the receiving end, they merely accept the decisions made by
the legislators even though such decisions may not necessarily be the best. Estacio and Marks argue that for
the first time an international convention dealing with child labour explicitly recognises the inputs of
children's wishes. They argue that the input, however, counts only in the implementation phase and not in
the determination of the definition of what constitutes work which, by its nature or the circumstances in
which it is carried out, is likely to be harmful to the health, safety, and morals of the child.
71
Estacio and Marks, supra.

28
 c) Ensure access to free and basic education
and wherever possible and appropriate
vocational training for all children removed
from the worst forms of child labour,
d) Identify and reach out to children at special
risk,
e) Take into account the special situation of
girls.”

Penal sanctions can serve as a deterrent. However, the Convention does not
provide guidance with respect to the appropriateness of sanctions, with
member states being given the choice. There is also no clarity on whether a
conditional worst form of child labour is to be treated differently from an
unconditional one.

Education is another tool. Compulsory attendance is a remedy, as

monitoring schools is easier than monitoring workplaces. 72 Parents would
have reason to send children to school, and employers would find it difficult
to find children to hire.73 Providing basic education can encourage parents to
send children to school as it provides long term benefits, and the innovation
of governments in India with the implementation of the mid-day meal
scheme is a crucial factor as well. However, insufficient and unqualified
teaching methods need to be eliminated to avoid giving parents reason not to
send their children to school.74 States need to be wary of children being

72
International Labour Organisation, CHILD LABOUR: A TEXTBOOK FOR UNIVERSITY STUDENTS,113,
(2004).
73
Bourdillion, supra.
74
Bourdillion, supra.

29
forced to work after school hours, as that would be even more difficult to
cope with.75

Social integration of child labour victims has been provided for, but this has
been done with an assumption that member states can afford to do so. Most
LDCs do not have the finances or the ability to rehabilitate children.

While requiring that children in special risk be considered, the Convention

does not define “special risk”. However, the conditions that force children
into child labour are varied. While poverty and the like are obvious causes,
approval of the parents and guardians might put a child who is not
considered to be at risk in danger.

The special emphasis on girls might detract from efforts to reduce boys in
labour as states are not incentivized to do so. Statistics show a decline in
numbers of girl children in labour, whereas the number of boys has remained
unchanged.76

Article 8
Article 8 stipulates:

“Members shall take appropriate steps to assist

one another in giving effect to the provision of this
Convention through enhanced international
cooperation and or assistance including support
for social and economic development, poverty
eradication programmes and universal
education.”

75
Bourdillion, supra.
76
ILO, 2013. www.ilo.org

30
This article makes the Convention unique. Usually, Conventions are
restricted to the borders of member states. Developed countries, who
allocate large sums of money to the elimination of child labour, have
donated to developing countries.77 However, such collaboration is
completely voluntary. Forums for interaction and exchange of ideas and
schemes can be created to facilitate an effective implementation of this
article to achieve the objective of the Convention.

Articles 9-16
Articles 9 to 16 deal with procedural matters such as ratification. This has
been criticized as too time-consuming as it provides for a twelve month gap
between ratification and implementation.78 This contradicts the appeal for
urgency in article 1.

**

Convention 182 is lauded for considering both developed/industrialised and

developing countries. Myers says that the Convention was negotiated so
skillfully that it became the first one to be passed unanimously by the ILO.
This was by targeting a common denominator of forms of child labour that
everyone agreed was harmful. The success of this Convention is its general
objectives subject to monitoring, giving member states freedom.

Smolin disapproves of the efficacy of this Convention as it emphasizes

reduction of criminal activity. ILO has very little influence in such matters.
Others believe this Convention was unnecessary, 79 and that this was merely
an attempt by the ILO in an area adequately covered by the CRC. Hence,

77
ILO, 2010 www.ilo.org
78
Smolin, supra.
79
Gallineti, supra.

31
they say, this does not add measurably to the normative standards that have
already been established in international law.80

Conclusion
Myers claims that the content and style of Convention 182 reflects lessons
learnt from Convention 138. The content refers to the most intolerable forms
80
Gallineti, supra.

32
of labour that no group or country would credibly defend and that virtually
all societies would condemn. He contends that "one could argue that this
Convention has come closer to expressing a genuinely global consensus on
child labour than Convention 138." This is evident in the fact that this
Convention has received worldwide ratification. Hanson and Vandeale base
their argument on nearly similar ideas, and they claim that Convention 182
in itself did not change the existing material law obligations concerning
child labour. While the aim of Convention 138 was the progressive
eradication of child labour, Convention 182 recognises the existence of
tolerable forms of child labour and seeks to eliminate the worst forms of
child labour. The worst forms of child labour should never be tolerated, but
there seems to be a general neglect in international law relating to the
tolerable forms of work from which children can benefit. Convention 138
makes reference to light work but does not adequately determine what it is,
and the ILO should rather focus on the definition of tolerable forms of
labour such as the light work of children.

33
Bibliography
BOOKS
1. International Labour Organisation, CHILD LABOUR: A TEXTBOOK FOR

UNIVERSITY STUDENTS, (2004).

ARTICLES
1. Alston, Implementing Children’s Rights: the Case of Child Labour, NORDIC
JOURNAL OF INTERNATIONAL LAW, 40, (1989).
2. B.Boockmann, The Effect of ILO Minimum Age Conventions on Child Labour
and School Attendance:Evidence from Aggregate and Individual Level Data,
WORLD DEVELOPMENT, 681, (2009).
3. B.Creighton, Combating Child Labour: The Role of International Labour
Standards,COMPARATIVE LABOUR LAW JOURNAL, 371, (1997).
4. B.White, Children, Work and 'Child Labour:' Changing Responses to the
Employment of Children, DEVELOPMENT AND CHANGE, 849-878, (1994).
5. B.White, Defining the Intolerable; Child Work, Global Standards and Cultural
Relativism, CHILDHOOD, 133-134, (1999).
6. Borgaza, Limiting the Minimum Age: Convention 138 and the Origin of the ILO's
Action in the Field of Child Labour, CHILD LABOUR IN A GLOBALIZED WORLD: A
LEGAL ANALYSIS OF ILO ACTION, 39-64, (2008).
7. Bourdillon, White and Meyers, Re-assessing Minimum Age Standards for
Children’s Work, INTERNATIONAL JOURNAL OF SOCIOLOGY, SOCIETY AND

POLITICAL SCIENCE, 106-107, (2009).

8. Celek , The International Response to Child Labour in the Developing World
International Response to Child Labour in the Developing World: Why Are We
Ineffective?,GEORGETOWN JOURNAL ON POVERTY LAW AND POLICY, 99, (2004).
9. D.Smolin, Strategic Choices in the International Campaign Against Child Labour,
HUMAN RIGHTS QUARTERLY, 946, (2000).

34
10. Dessy and Pallage, Why Banning the Worst Forms of Child Labour Would Hurt
Poor Countries, CENTRE FOR RESEARCH ON ECONOMIC FLUCTUATIONS AND

EMPLOYMENT MONTREAL, (2001).

11. E.Mendelievich, Child Labour, INTERNATIONAL LABOUR REVIEW, 566, (1979).
12. Estacio and Marks, Child Labour and the International Labour Organisation's
Convention 182: A Critical Perspective, JOURNAL OF HEALTH PSYCHOLOGY, 483,
(2005).
13. Hilson Child Labour in the Artisanal Mining Communities: Experiences from
Northern Ghana, WILEY JOURNAL OF COMMUNITY PRACTICE: ORGANIZING,
PLANNING, DEVELOPMENT AND CHANGE, 445-473, (2010).
14. International Labour Organisation, CHILD LABOUR: A TEXTBOOK FOR

UNIVERSITY STUDENTS, 47, (2004).

15. J.McKechnie and Hobbs, Child Labour: View From the North, CHILDHOOD, 98,
(1999).
16. L.Abernethie, Child Rights in Contemporary Society: Why Do We Care?,
INTERNATIONAL JOURNAL OF CHILD RIGHTS, 81-114, (1998).
17. L.Swepston, Child Labour: Its Regulation by ILO Standards and National
Legislation, INTERNATIONAL LABOUR REVIEW, 577-594, (1982).
18. M.Davidson, The ILO’s Latest Campaign to End Child Labour: Will it Succeed
where Others have Failed?, TRANSATIONAL LAW AND CONTEMPORARY
PROBLEMS, 203-224, (2001).
19. M.Myers, The Rights Rights? Child Labour in a Globalising World, THE ANNALS
OF THE AMERICAN ACADEMY OF POLITICAL AND SOCIAL SCIENCE , 38-55,
(2001).
20. Shanthakumari and Kannan, Dissimilarity of Customer Perception and
Expectation Among Rural and Urban Markets, JOURNAL OF CONTEMPORARY
RESEARCH IN MANAGEMENT, 110, (2010).
21. Y.Noguchi, 20 years of the Convention on the Rights of the Child and
International Action against Child Labour, INTERNATIONAL JOURNAL OF CHILD
RIGHTS, 515-534, (2010).

35
MISCELLANEOUS

1. Accelerating Action Against Child Labour: Global Report under the Follow-up
to the ILO Declaration on the Fundamental Principles and Right at Work,
INTERNATIONAL LABOUR OFFICE, (2010).
2. General Survey on the Fundamental Conventions Concerning Rights at Work
in Light of the ILO - Declaration on Social Justice for a Fair Globalization,
2008: Report of the Committee of Experts on the Application of Conventions
and Recommendations Report III (Part IB), INTERNATIONAL LABOUR OFFICE.
3. Making Progress Against Child Labour Global Estimates and Trends
2000-2012, INTERNATIONAL LABOUR ORGANISATION, (2013).
4. The Millennium Development Goals Report of 2012, UNITED NATIONS
5. UNITED NATIONS CHILDREN'S, FUND MILLENNIUM DEVELOPMENT GOALS:
GOAL ERADICATE POVERTY AND HUNGER, (2006).

36