Child Labor Prohibitions Are Universal, Binding, and Obligatory Law: The Evolving State of Customary International Law concerning the Unempowered Child Laborer
Bullard, Madeleine Grey, Houston Journal of International Law
Child labor (1) is the most prevalent source of child exploitation and child abuse in the world today. (2) At least 250 million children between the ages of five and fourteen (3) are working in developing countries. (4) Approximately 120 million of these children work full-time, and tens of millions of these children work under oppressive, (5) exploitative, (6) and hazardous, (7) conditions. (8) According to recent global estimates by the International Labor Organization (ILO), the majority of the world's working children are found in Asia (61%), followed by Africa (32 %) and Latin America and the Caribbean (7%). (9) Africa, the world's poorest region, has the highest incidence of child workers--approximately 40%--while the corresponding figure for Asia and Latin America is about 20%. (10) The United Nations Children's Fund ("UNICEF") estimates that hundreds of millions of children worldwide under the age of fifteen are employed. (11)
Traditional governmental approaches to preventing the premature entry of children into the workforce include the enactment and enforcement of child labor legislation and compulsory primary education. (12) These efforts, while noble and necessary, fall short of eliminating the problem. (13) Children need special protection and should be given opportunities, by law and other means, to enable them to develop physically, mentally, morally, spiritually, and socially in a healthy and normal manner, with freedom and dignity. As such, international law should be relied upon to put an end to the abuse.
While most countries have laws that regulate the employment of children, the laws may be limited by their narrow scope, lack of clarity, and loopholes. (14) The most daunting problem, though, lies in monitoring and ensuring enforcement of the domestic labor laws of another sovereign nation. (15) While some forms of international law rest on the consent given by states to limit their sovereignty and be bound by the rules of international law, (16) some rules have become so entrenched and well recognized that consent is not required. (17) Thus, these international norms should be used to protect those who cannot protect themselves--children.
Widespread international concern for working children has compelled foreign governments to protect children through legislation, but lacking adequate enforcement (18) and supervision, some child labor laws are virtually impotent. (19) For example, in some developing countries, laws protecting children are promulgated but not enforced, primarily because child labor is already a structural part of the economy. (20) Likewise, in the poorest countries, families put their children to work out of necessity; the children's meager earnings help provide basic food and medicine for themselves and younger siblings. (21) The sentiment that the children need to work to survive is reflected by foreign labor inspectorates' reluctance to discourage the practice of child labor when it is discovered. (22) Additionally, foreign labor ministries are usually understaffed and lack resources; inspectors are poorly trained, and their low pay makes them easily corruptible. (23) Unfortunately, when inspectors do attempt to enforce child labor laws, they are often faced with public indifference, hostility from powerful economic interest groups, and parents' reluctance to cooperate. (24) Furthermore, enforcement is often impeded because employers routinely receive advance warning of visits by inspectors, who are usually residents of the area. (25) When violations are reported and charges are brought, judicial responses are often slow and inadequate. (26) Despite the recent proliferation of human rights conventions, (27) Proposed (28) and current (29) legislation, and international labor agreements that address labor problems, (30) harmful child labor practices continue to flourish throughout the world. (31)
Fortunately, however, these instruments and developments could serve to convert child labor prohibitions into violations of international law. …