National Law School of India

University, Bangalore.

Labour Law-II
Abolition of child labour
(Convention No. 138 & No. 182)-
A Critical Study InThe Indian
Context.

Subhankar Pasalapudi
11th Trimester
B.A L.L.B (Hons.)
Roll No.: 1904

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Table of Content

INTRODUCTION.................................................................................... 3

RESEARCH METHODOLOGY................................................................ 5

BACKGROUND...................................................................................... 7

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

ARTICLE 1................................................................................................8
ARTICLE 2.............................................................................................10
ARTICLE 3.............................................................................................12
ARTICLE 4.............................................................................................13
ARTICLE 5.............................................................................................15
ARTICLE 6.............................................................................................16
ARTICLE 7.............................................................................................17
ARTICLE 8.............................................................................................19

THE WORST FORMS OF CHILD LABOUR CONVENTION 182 OF 1999

............................................................................................................. 20

ARTICLE 1.............................................................................................20
ARTICLE 2.............................................................................................21
ARTICLE 3.............................................................................................21
ARTICLE 4.............................................................................................23
ARTICLE 5.............................................................................................23
ARTICLE 6:............................................................................................24
ARTICLE 7:............................................................................................24
ARTICLE 8.............................................................................................26

Submitted on: 17th November 2014

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ARTICLES 9-16.......................................................................................27

CONCLUSION...................................................................................... 28

BIBLIOGRAPHY................................................................................... 29

BOOKS..................................................................................................29
ARTICLES..............................................................................................29
MISCELLANEOUS....................................................................................30

Introduction
The International Labour Organisation (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.4 Children work in informal settings
where they participate in activities such as scavenging, shining shoes, or on family
enterprises.5 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.7 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

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Sub-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.

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 Research Methodology

Aims and Objectives: The aim of this paper is to study the ILO Conventions 138 and
182 and understand their significance, so a study to establish its application to India can
be made.

Scope, Extent and Limitations: The scope of this paper is limited to an examination of
the Conventions and an analysis of the context in which they were passed, and their scope
of operation. The applicability of these Conventions to India shall be dealt with by my
partner, ID No. 1921.

Research Questions:

1. What are Conventions No. 138 and 182?

2. What was the context in which they were passed?
3. What are the salient features of Convention No. 138, and how does it operate?
4. Has the operation of Convention No. 138 been effective?
5. What are the salient features of Convention No. 138, and how does it operate?
6. Has the operation of Convention No. 182 been effective?

Chapterisation: This paper has been divided into three chapters. The first chapter
provides the background to the Conventions. The seccond chapter deals with Convention
138, and the third chapter deals with Convention 182.

Sources: This paper has been written from scholarly articles, the text of the Conventions,
and various other international instruments and studies.

Style: This paper employs an analytical style of writing. It analyses various provisions of
law and seeks to offer a better alternative.

Citation: The NLS Uniform Citation Guide has been adhered to acknowledge inputs
from external sources.

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6
 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
Unions 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 deal 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.

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

1 M.Davidson, The ILOs 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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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 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.

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).

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).

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This is because a 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

Mendelivich6 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
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.

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 Childrens 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.

8 J.McKechnie and Hobbs, Child Labour: View From the North, CHILDHOOD, 98, (1999).

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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 relevant stakeholders,15 through awareness campaigns
and community action.

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.

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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 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

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.

18 Bourdillon, White and Meyers, Re-assessing Minimum Age Standards for Childrens
Work, INTERNATIONAL JOURNAL OF SOCIOLOGY, SOCIETY AND POLITICAL SCIENCE, 106-
107, (2009).

19 Bourdillon, White and Meyers, supra.

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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 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
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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 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, 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 organisations 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

23 Creighton, supra.

24 ILO MINIMUM AGE RECOMMENDATION, 146 (1973).

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 workers concerned, authorise 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 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 adequate 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 1) necessary, 2) in limited
categories of work, or 3) 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

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.

14
supervision.27 These forms of work are indeed difficult to monitor owing to their
invisibility but they can be forms of work 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 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

27 Bargazo, supra.

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.

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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.

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
31 Bargazo, supra.

32 Bargazo, supra.

33 Bargazo, supra.

34 Bargazo, supra.

16
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.

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

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.

38 Swepston, supra.

39 Swepston, supra.

17
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 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

40 Swepston, supra.

18
 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 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

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 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.

19
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. Smolin 43 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. Smolin 44 rightfully argues that for the large
majority of children not in school it is difficult to see how their best interests are 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

43 Smolin, supra.

44 Smolin, supra.

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.

20
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 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.

**

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.

51 Borgaza, supra.

21
By the second half of the 1990s, the ILO recognised the criticism it was facing with
respect to Convention 138, and realised 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
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 states:

Each member which ratifies this Convention shall take

immediate and effective measures to secure the prohibition

52 Myers, supra.

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.

22
 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 categorisation of child labour into categories, distinguishing the worst forms of child
labour from the others.57 This Convention is an advancement over Convention 138 as it
seeks to 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

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
 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, 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

58 International Labour Organisation, CHILD LABOUR: A TEXTBOOK FOR UNIVERSITY STUDENTS, 46,
(2004).

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.

24
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 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 organisations of
employers and workers concerned.

63 Smolin, supra.

64 Smolin, supra.

65 Smolin, supra.

66 Estacio and Marks, supra.

67 Davidson, supra.

68 Smolin, supra.

25
The Convention proposes the determination of the definition of hazardous work at the
national level after taking into consideration all relevant factors 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 programmes

of action to eliminate as a priority the worst forms of child
labour,

2) Such programmes 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 69 for having the ability to engage
leadership and mobilise resources. A comprehensive scheme eliminating child labour and
the environment that encourages it is necessary.70 While Convention 138 does not seem to

69 Davidson, supra.

70 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 argue that, without appropriate accompanying policies, Convention 182 on the worst forms of child

26
include NGOs, Convention 182 seemingly encourages participation. 71 Political will to
effectively consider childrens interests is also necessary.72

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

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.

71 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.

72 Estacio and Marks, supra.

27
 of children form the worst forms of child labour and their
rehabilitation

and social integration,

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.73 Parents would have reason to send children to
school, and employers would find it difficult to find children to hire. 74 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.75 States need to be wary of children being forced to work after school
hours, as that would be even more difficult to cope with.76

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

74 Bourdillion, supra.

75 Bourdillion, supra.

28
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.77

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.

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.78 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.

76 Bourdillion, supra.

77 ILO, 2013. www.ilo.org

78 ILO, 2010 www.ilo.org

29
Articles 9-16
Articles 9 to16 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.79 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,80 and that this was merely an attempt by the ILO in an area
adequately covered by the CRC. Hence, they say, this does not add measurably to the
normative standards that have already been established in international law.81

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 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

79 Smolin, supra.

80 Gallineti, supra.

81 Gallineti, supra.

30
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.

31
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Books
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UNIVERSITY STUDENTS, (2004).

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1. Alston, Implementing Childrens Rights: the Case of Child Labour, NORDIC JOURNAL
OF INTERNATIONALLAW, 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 Childrens
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).
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).

32
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).
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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 ILOs 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).

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MANAGEMENT, 110, (2010).

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Action against Child Labour, INTERNATIONAL JOURNAL OF CHILD RIGHTS, 515-534,
(2010).

Miscellaneous
1. Accelerating Action Against Child Labour: Global Report under the Follow-up to the
ILO Declaration on the Fundamental Principlesand 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.

33
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).

34