An Analysis of Child Labor Rights in The African Region: Haowen Miao
An Analysis of Child Labor Rights in The African Region: Haowen Miao
An Analysis of Child Labor Rights in The African Region: Haowen Miao
Region
Haowen Miao 1, *
1
School of Law, Xiamen University, Xiamen, 361000, China.
*
Corresponding author. Email: 12920202201233@stu.xmu.edu.cn
ABSTRACT
The issue of child labor is one of the issues that legal developments have always made it difficult to solve completely.
As the world's economies develop and laws develop, many regions are well able to address child labor through legal
constraints. In some regions, such as Africa, the use of child labor is still prevalent under the evolving legal system.
This is because the legal system in the African region does not match the situation of its child labor use. The
mainstream, universal legal system is not effective in addressing the needs of child labor in the African region. This
paper therefore addresses the incongruity between the legal system of child labor and the plight of child labor in the
African region. Through a comparative analysis of the region, a philosophical analysis of law and an economic
analysis of law, this paper attempts to propose a more reasonable legal solution. This paper argues that a moderate
relaxation of the minimum age limit for child labor and legal, social and international coordination are better measures.
These tools can help African child laborers to escape the legal grey areas and obtain the remuneration and security of
labor they need to survive.
years if he or she attains majority before the age of 18 The protection of children's rights to education,
years. It is important to note that majority is not development, equality and health, for example, is
necessarily linked to a specific age. Adulthood can be important for the protection of child labor rights. The
attained either by meeting the age criterion or by criteria protection of children's rights including the right to
other than age. [3] education, the right to development, the right to equality
and the right to health, is equally important for the
The information in The ILO No 138 Convention No.
protection of child labor rights. [6] The ILO realised at
"On the minimum age of employment" standard
the end of the 20th century that the emergence of child
indicates that the minimum age criteria for child labor
labor could be curbed by explicit legal prohibition in
include both universal and specific. Meanwhile, it
developed countries. In developing countries, however,
shows that there are universal and exceptional minimum
poverty is an ineradicable factor. Long-term solutions in
age requirements for child labor recognized
Africa depend on social progress brought about by
internationally, because the legal definitions of
sustained economic growth, particularly in the areas of
developed countries are the ones that are generally
poverty eradication and universal education. [7] Thus, in
accepted and accepted internationally. Most of the
1999, ILO introduced Convention 182, which was the
exceptions are specific to developing countries
Worst Forms of Child Labor Convention. This
particularly in Africa. The minimum age for child labor
Convention makes the prohibition and elimination of the
varies accordingly depending on the specific content of
worst forms of child labor a priority objective for
the labor. The economic activities of children are
national and international action. The universality of
divided into acceptable child labor and child labor that
labour rights is twofold. It includes the wide
needs to be eliminated depending on whether it is
geographical scope of application and the
potentially harmful to the child. [4] Acceptable child
comprehensive nature of the subject of the right. [2]
labor includes part-time work such as delivering
newspapers as a babysitter or doing simple farm work Labor standards vary to varying degrees depending
on the family farm. Unacceptable child labor, on the on the situation in each country and region. The concept
other hand, refers to economic labor practices that are of "core labor standards" was first introduced at the
harmful to children's physical and mental health and are Social Development Summit in Copenhagen in 1995 in
performed in stressful or hazardous working conditions. order to achieve a relatively uniform set of labor
More specifically it refers to the exploitation of children standards. In the report Trade, Employment and Labor
as cheap labor by endangering their safety, health or Standards: A Study of Workers' Core Rights and
welfare, taking advantage of their low defenses, which International Trade by the OECD, it was argued that
is detrimental to their development and hinders their only a small number of labor standards could be called
access to education or training. [5] "core labor standards". [7] These standards are carefully
selected and together they form a whole of human rights
At the level of international law, the establishment of
protection.[8] One of the core standards is the
a minimum age of employment for child labor is also a
elimination of exploitative child labor.
minimum protection for children in the form of
legislation. It is an important legal way to be able to
protect them from exploitation and abuse. Since 1919,
2.3. Shortcomings of Child Labor Legislation in
the International Labour Conference has established 11 the African Region
conventions on the minimum age for employment.
In the African region, many countries have legal
These conventions set the minimum age for admission
safeguards and social protection in place due to the
to employment generally at 14 years, which was raised
influence of colonial and developed countries. In
to 15 years after the 1930s, and set a higher age for
Rwanda, for example, the country has signed a series of
employment for work harmful to the health, safety or
international conventions to protect child labor including
moral development of children.
ILO C. 182, Worst Forms of Child Labor, UN CRC,
Palermo Protocol on Trafficking in persons. In terms of
2.2. The Recent International Legal domestic legislation, Rwanda's labor law and penal code
Framework for the Protection of Child Labor all provide for the under-age labor force. The legal
Rights minimum age for children to work is sixteen, and the
minimum age for hazardous work is 18. [9]
Although the Universal Declaration of Human
Rights, the International Covenant on Economic, Social In fact, the practical effects of these acts have been
and Cultural Rights and the International Covenant on less than satisfactory. The Rwandan legal system and
Civil and Political Rights, the United Nations framework is merely a response to the international
Declaration on the Rights of the Child and the United situation and a continuation of the legal systems of
Nations Convention on the Rights of the Child do not developed countries. The practical effect of these laws is
directly provide for the protection of child labor rights, likely to be counterproductive, leaving a large number of
their provisions on the protection of children's rights. child workers in a grey area of the law without the
1178 H. Miao
means to obtain protection. Many parts of Africa like exacerbate the abuses of child laborers. On the one hand,
Rwanda, have child labor legislation that is not the employer will increase the number of hours worked
compatible with their own. Such legal developments are by child laborers. On the other hand, it will undercut the
hardly likely to help child laborers and countries in wages of child laborers, seriously increasing the severity
practice. This is because these acts protecting child of their illegality.
labor are too old or are merely a copy of world labor
Objectively, the use of child labor also contributes to
laws. It is difficult to adapt them to the needs of actual
the development of the local economy. Countries near
production on the ground.
the equator, such as Rwanda, Côte d'Ivoire and Ghana,
3.ANALYSIS OF THE CAUSES OF CHILD for example, have the natural advantage of being able to
LABOR grow cocoa to produce chocolate. But it has to be
admitted that chocolate factories give child labourers
This article prefers to refer to the "child labor and families of child labourers a little more economic
problem" in Africa as "child labor phenomenon". income.
Because, from an extra-legal perspective, child labor in
The law should not only consider guilt and
Africa is a product of the realities of the situation. To
innocence, right and wrong. Rather, it should be better
some extent, it is not even the transnational corporations
adapted to the needs of the people, so that the law can be
that actively seek child labor, but rather the children
as effective as it should be. Absolute protection of child
who actively seek ways to earn money and thus become
labor or industry is irrational, as the two are not totally
child laborers. The use of child labor in Africa clearly
incompatible, but even interdependent. The protection of
undermines the right to education, the right to
child labor can lead to the decline of industry and
development, the right to health and even the right to
worsen the economic situation of child laborers and their
life. However, it is unrealistic to protect the human
families, while the protection of industry can seriously
rights of child laborers in the same way as in developed
undermine the rights of child laborers to health,
countries. For developing countries, the problem is not
education and other rights and deprive a region of its
so simple. For even if they legislate a strict ban on child
development potential. Understanding the causes of
labor and impose heavy penalties for its use, they still
child labor therefore requires an understanding of the
cannot solve the problem of child labor. However, risk
relationship between child labor and local industry. It is
pushing it into an even poorer and more miserable
also important to see that the legitimate needs of child
existence. [10] Given the particular economic and legal
labor can co-exist with the development needs of local
situation in Africa, it is important to analyse the causes
industry. This requires government subsidies and
from the perspective of the workers.
concessions of benefits from industry. Giving child
laborers more economic benefits while employing them
3.1. Legal-philosophical Analysis
rationally will not only encourage child labor, but will
The starting point for the protection of child labor also promote the long-term development of industry.
under the law is the value-oriented approach of good
law and good law, i.e. the protection of the weak. As a 3.2. Economics of Law Analysis
reserve for the development of society, it is more
There should be no distinction between good and
important for children to be educated to stimulate their
bad law. In other words, the law of a developed country
potential and make a greater impact when they are put
is not necessarily applicable to a developing country.
into society in the future. The law therefore takes a more
Kaushik Basu, a professor of economics at Cornell
macro view than a utilitarian one, focusing only on the
University in the USA, examined in 1999 a survey
productive benefits of the moment. Besides, the reason
published by the International Labour Organisation in
why child labor is repeated in Africa is indeed the result
1996 on child labour in four countries between 1992 and
of poor legal regulation. Yet, it is hollow to talk about
1993. He noted that the degree of economic
good law and good practice, leaving aside the realities
development of a country and its use of child labour
of their societies. The care that we recognise should be
were inversely correlated. The African country with the
given to children is based on an average standard of
lowest GDP per capita ($672 per capita) had 41.4 per
living, which gives rise to extended rights such as the
cent of its children economically active, while North
right to education and the right to development. The
America, the richest region, had no child labor. [11] This
reality in Africa is that it is below average, where
means that there is a contrast between the state of
children's survival, not to mention education and
economic development and the state of labor, which
development, is in many cases the most important
cannot be generalised.
consideration. Many children in Africa are expected to
do light work to help their families, and it is this reality The African region has a poor economic base and
that has led many children to accept the practice of child therefore its superstructure is less developed and its
labor. They may take this labor for granted, which can human rights are less well developed. Due to historical
An Analysis of Child Labor Rights in the African Region 1179
inertia, the issue of child labor is treated as a normal compensation treatment as legal workers in terms of
phenomenon and is not brought to the attention of the compensation benefits. [13] Concerted interventions by
public. [12] It is inappropriate to demand that the education authorities, labor authorities and legislatures
African region take child labor protection directly into can all lead to a brighter future and realistic labor gains
account in this context. Such a demand directly cuts for child laborers. This article suggests that this can be
across the economic base and places too high a demand done in the following ways. Firstly, legislators should
on the superstructure. This is because Africa's colonial revise the minimum age for legal child labor, so that
history has made its laws more advanced due to the younger child laborers can become legal workers.
influence of developing countries, but the actual Depending on the stage at which the incidental
economic base is not compatible with such laws. obligations arise, they can also be divided into
pre-contractual obligations, obligations incidental to the
In Rwanda, for example, the minimum working age
performance of the contract, post-contractual obligations,
is set by law at 16. But many quarries use child laborers
etc. [14] Secondly, law enforcement should strictly limit
under the age of 14. Meanwhile, it means that many
the number of hours worked by child laborers and
child laborers cannot obtain legal status as workers and
increase the cost of breaking the law for overtime
gives employers an excuse to reduce pay and use child
employment. Thirdly, the wages of child laborers should
laborers at a much lower rate than legal workers. In this
be adjusted to the content and intensity of child labor,
practical situation, what was intended to be a benevolent
and the cost of child labor should be increased, so as to
protection for child laborers becomes a negative factor
allow the market to regulate the number of child
in limiting their access to remuneration. It is easy to see
laborers. Then, the entry of child laborers should be
that, in the face of large numbers of child laborers,
strictly restricted in some areas with special working
Rwanda's laws cannot be adapted to its particular
conditions to protect the physical health of child laborers.
economic situation.
Finally, the government should compel companies to
In order for a region or country like Rwanda to take on the obligation to invest in education, linking the
better address the problem of child labor, it should not right to use child labor with the obligation to invest in
just be banned. However, it should be given the proper education, while promoting child labor and industrial
permission and relaxation so that child laborers at a development. The legal system is the pallet of child
younger age can become legal workers and become labor protection, and only pockets that are adapted to fit
protected by law and reasonably integrated into the can be used effectively from legislation. Law enforcers
economy. In a situation of repeated prohibition, are the correctors to apply and correct legislative
legislators should no longer impose a ban. Rather, they deficiencies in practice and to feed back into legislation.
should reflect on the rationale and use the advantages of Social linkage is the protective shield, creating an upper
child labor to suit the needs of existing industries. It is limit for child labor protection and bringing into play the
important that companies that use child labor have laws power of the community to monitor and support it.
that respect not only the right to health and life, but also
In addition to the legislative activities of the local
the right to remuneration and the right to rest. As a
government legislature and the enforcement measures of
result, child labourers can receive remuneration
the executive, there can be regulation by NGOs to make
commensurate with their work and have the courage to
child labor more reasonable. Voluntary human rights
claim justice for themselves in the face of injustice.
organisations and foundations can improve the social
Sound legislation allows the State, the company and the
climate and give a more comprehensive understanding
child worker to interact positively with each other to
of the conditions in which child labor is practised, so
promote economic development.
that more precise help can be given. The supervisory
4.SETTING REGULATORY MECHANISMS role played by voluntary social organisations can
TO MAKE CHILD LABOR MORE complement government monitoring, and some
COMPATIBLE children's funds can provide sponsorship and workplace
improvements for working children.
4.1. Domestic Intervention
4.2. International Intervention
The domestic sphere is the most direct area of
regulation and has the most effective means of dealing The African region is more dependent on
with child labor. The African region needs to protect the international economic development. Therefore,
right to survival, labor and remuneration of child international forces have an important influence on child
laborers, considering the actual needs. The protection of labor in Africa. International conventions including the
child labor should be incorporated into the protection of Minimum Age for Admission to Employment (Industry)
the Labor Code. On the one hand, the cost of breaking Convention (No. 5), the Minimum Age for Admission to
the law should be increased for users of child labor. On Employment Convention (No. 138) and the Worst Forms
the other hand, child laborers should be given the same of Child Labor Convention (No. 182) are mandatory as a
1180 H. Miao
means of safeguarding the working environment and the looks at the harmonious development of the economic
right to protection of child labor. International base and the superstructure of child labor. It is hoped
instruments act as a bottom-up protection if domestic that it will serve as an inspiration to the governments,
law is not able to take effective measures. societies and employers in the African region. It
proposes feasible legal solutions for all areas where
Here, the multi-stakeholder model of Bangladesh
child labor is used including the African region, to
can be drawn upon. US NGOs, the International Labor
guarantee the simultaneous development of economy
Organization, UNICEF, relevant Bangladeshi
and human rights.
employers' organizations and others have all intervened
to eliminate child labor in the garment industry in
Bangladesh and have succeeded in bringing down the
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An Analysis of Child Labor Rights in the African Region 1181
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