Approaches to Reducing the Use of Forced or Child Labor: Summary of a Workshop on Assessing Practice (2009)

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Appendix E Definitions of Child and Forced Labor by John Sislin Any attempt to assess the efficacy of business practices to reduce the use of child or forced labor must be grounded in an understanding of the nature of these types of labor, in particular their definitions, scope, and causes. At the heart of the notion of what is and is not child and forced labor, lies the core conventions established by the International Labor Organization (ILO).1 The ILO is an international organization, founded in 1919 and currently an agency within the United Nations, is comprised of 182 member states as of April 2009.2 In 1995, the ILO identified four rights as “fundamental to the rights of human beings at work. These rights are freedom of association and the right to organize and bargain collectively, the abolition of forced labor, equal remuneration and nondiscrimination in employment, and the elimination of child labor. One mechanism of the ILO consists of establishing Conventions, or international treaties, subject to ratification by ILO member States. In May 1995, the Director-General of the ILO launched a campaign to achieve universal ratification of the then seven core Conventions which were designed to support these four rights. The Conventions are: Nos. 87 and 98 on freedom of association and the right to organize and bargain collectively, Nos. 29 and 105 on forced labor, Nos. 100 and 111 on equality, and No. 138 on child labor. “In 1998 the ILO adopted a Declaration on Fundamental Principles and Rights at Work, committing ILO member nations to realize and achieve at the policy level the four basic rights as an obligation inherent in ILO membership, regardless of whether or not they have ratified conventions corresponding to those rights.”3 Finally, in 1999, the ILO adopted Convention No. 182, on the worst forms of child labor. The four Conventions on child and forced labor are the starting point for defining what this labor is. According to Swepson, child labor had not been developed “as a core human rights subject, or even as a subject of great concern” until the last two decades of the 20th century.4 Child labor falls into three categories: some is considered good for a child’s development (e.g., apprenticeship or school programs), some is acceptable, and some is 1 This report uses American spelling, hence “labor” and not “labour.” Those interested in further researching these topics should note that search engines and other databases can return different results depending on the spelling of the terms. 2 For a list of Member States, see: ILO, “Alphabetical list of ILO member countries” available at: http://www.ilo.org/public/english/standards/relm/country.htm. Accessed May 17, 2009. 3 National Research Council, Monitoring International Labor Standards: Techniques and Sources of Information. Washington, DC: National Academies Press, 2004:17-18. For the text of the Declaration, see ILO, “The Declaration,” available at: http://www.ilo.org/declaration/thedeclaration/textdeclaration/lang-- en/index.htm Accessed May 17, 2009. 4 Lee Swepston. “The Contribution of the ILO Declaration on Fundamental Principles and Rights at Work to the Elimination of Child Labour.” Child Labour in a Globalized World, Giuseppe Nesi, Luca Nogler, and Marco Pertile, eds. Surry, UK: Ashgate, 2008, p. 68. Basu and Tzannatos disagree, saying societies have been trying to root out child labor at least as far back as 1802. Kaushik Basu and Zafiris Tzannatos, “The Global Child Labor Problem: What Do We Know and What Can We Do?” The World Bank Economic Review, 17:2, 2003, pp. 147-173. 84 

APPENDIX E 85 unacceptable. ILO Conventions Nos. 138 and 182 delimit child work and in particular to highlight what forms should be eliminated. Convention No. 138 was adopted in 1973 and establishes minimum ages for work by children. Members who ratify this Convention are directed to specify a minimum age for admission to employment or work. The Convention text further states that the minimum age specified “shall not be less than the age of completion of compulsory schooling and, in any case, shall not be less than 15 years.” Furthermore, “The minimum age for admission to any type of employment or work which by its nature or the circumstances in which it is carried out is likely to jeopardize the health, safety or morals of young persons shall not be less than 18 years.” The specification of hazardous types of employment or work is determined by national sources. Thus, multiple minimum ages were specified. Two exceptions identify work which is permissible. First, the “Convention does not apply to work done by children and young persons in schools for general, vocational or technical education or in other training institutions, or to work done by persons at least 14 years of age in undertakings, where such work is carried out in accordance with conditions prescribed by the competent authority, after consultation with the organizations of employers and workers concerned, where such exist, and is an integral part of--(a) a course of education or training for which a school or training institution is primarily responsible; (b) a program of training mainly or entirely in an undertaking, which program has been approved by the competent authority; or (c) a program of guidance or orientation designed to facilitate the choice of an occupation or of a line of training.” Second, “national laws or regulations may permit the employment or work of persons 13 to 15 years of age on light work which is--(a) not likely to be harmful to their health or development; and (b) not such as to prejudice their attendance at school, their participation in vocational orientation or training programs approved by the competent authority or their capacity to benefit from the instruction received.” Note the lack of definition of what “light work” is, and such key notions as defining when it is harmful to health or development or prejudicial, for instance.5 Convention No. 182 identifies the worst forms of child labor that should be abolished. These are: (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 labor, 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 or 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; (d) work which, by its nature or the circumstances in which it is carried out, is likely to harm the health, safety or morals of children. Clause (d) remains the most ambiguous and is determined within a state’s national context. Forced labor—particularly adult forced labor—is a very different phenomenon than child labor and requires a different policy response. Children engaged in prohibited activity have ideally to be withdrawn from the labor market and provided acceptable 5 For a discussion of light work, see: Augendra Bhukuth, “Defining child labour: a controversial debate” Development in Practice, Volume 18, Number 3, June 2008, pp. 385-394. 

86 APPENDIX E alternatives such as education. For adults, the challenge is to keep them in the labor market, possibly even in the same jobs, while tackling the coercive elements in the recruitment and employment relationship that locks them into bondage and exploitation According to the ILO, historically, action against forced labor focused on slavery; and the first international agreement focused on slavery was the Declaration Relative to the Universal Abolition of the Slave Trade, adopted in 1815 by the Congress of Vienna.6 “Forced labour issues as such became the subject of systematic study and standard setting at the international level only after the First World War, following the work of the League of Nations regarding mandated territories and of the adoption of the 1926 Slavery Convention.”7 Forced labor is defined by the ILO in Convention No. 29, which was adopted in 1930. According to the treaty language, “forced or compulsory labor shall mean all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily.” As Belser et al note: “Embedded in the international definition of forced labour as formulated in ILO Convention No. 29 are two essential criteria: ‘menace of penalty’ and ‘involuntariness’. Accordingly, forced labour occurs when people are being subjected to psychological or physical coercion (the menace or the imposition of a penalty) to perform some work that they would otherwise not have accepted to perform at the prevailing conditions (the involuntariness). The use of deception or fraud, and the retention of identity documents in order to achieve the consent of workers, are illegitimate and can lead to forced labour.”8 Exceptions to the above definition include: “(a) any work or service exacted in virtue of compulsory military service laws for work of a purely military character; (b) any work or service which forms part of the normal civic obligations of the citizens of a fully self-governing country; (c) any work or service exacted from any person as a consequence of a conviction in a court of law, provided that the said work or service is carried out under the supervision and control of a public authority and that the said person is not hired to or placed at the disposal of private individuals, companies or associations; (d) any work or service exacted in cases of emergency, that is to say, in the event of war or of a calamity or threatened calamity, such as fire, flood, famine, earthquake, violent epidemic or epizootic diseases, invasion by animal, insect or vegetable pests, and in general any circumstance that would endanger the existence or the well-being of the whole or part of the population; (e) minor communal services of a kind which, being performed by the members of the community in the direct interest of the said community, can therefore be considered as normal civic obligations incumbent upon the members of the community, provided that the members of the community or their 6 Declaration Relative to the Universal Abolition of the Slave Trade, 8 February 1815, Consolidated Treaty Series, Vol. 63, No. 473. Cited in Eradication of forced labour - General Survey concerning the Forced Labour Convention, 1930 (No. 29), and the Abolition of Forced Labour Convention, 1957 (No. 105). Report of the Committee of Experts on the Application of Conventions and Recommendations, Report III (Part Ib), ILC, 96th Session, Geneva, 2007. 7 Eradication of forced labour - General Survey concerning the Forced Labour Convention, 1930 (No. 29), and the Abolition of Forced Labour Convention, 1957 (No. 105). Report of the Committee of Experts on the Application of Conventions and Recommendations, Report III (Part Ib), ILC, 96th Session, Geneva, 2007. 8 Patrick Belser, Michaëlle de Cock, and Farhad Mehran. ILO Minimum Estimate of Forced Labour in the World. Geneva: ILO, 2005:6-7. 

APPENDIX E 87 direct representatives shall have the right to be consulted in regard to the need for such services.” Convention No. 105, adopted in 1957, focuses on prohibiting Member States from using forced labor: “Each Member of the International Labor Organization which ratifies this Convention undertakes to suppress and not to make use of any form of forced or compulsory labor--(a) as a means of political coercion or education or as a punishment for holding or expressing political views or views ideologically opposed to the established political, social or economic system; (b) as a method of mobilizing and using labor for purposes of economic development; (c) as a means of labor discipline; (d) as a punishment for having participated in strikes; (e) as a means of racial, social, national or religious discrimination.” A recent study by the National Research Council identified seven major categories of forced labor.9 These were: slavery and abductions, compulsory participation in public works projects, mandatory forced labor in remote areas, bonded labor, involuntary labor resulting from trafficking in persons, domestic workers in involuntary labor situations, and prison labor and rehabilitation through work.10 In addition, that report noted other situations, where forced labor might be said to occur. These include certain forms of requirements to work or forced overtime. Four brief comments about these definitions are noteworthy. First, there are areas of overlap between child labor and forced labor. In particular, children may be in forced labor situations. According to the ILO, “It is estimated that children aged less than 18 years represent between 40 and 50% of all forced labour victims.”11 The implication for this project is that some business practices may target child labor or forced labor only, or both situations. Second, individuals may enter into and exit from child labor and forced labor situations. For example, children used to pick crops may be in a child labor situation part of the year, but not all of the time. The implication for business practices is that one must consider the possibility that when one looks for child labor, it may not be found due to temporal reasons. This was one critique of a survey of child labor in the cocoa growing sectors of West Africa.12 The implication is that without full-time, effective auditing or monitoring, one cannot prove that there is no child labor; one can only prove that there is child labor. The same is true for forced labor. 9 See also Kanchana N. Ruwanpura and Pallavi Rai, Forced Labour: Definition, Indicators and Measurement. Working Paper 18. Geneva: ILO, 2004. The identify five types of forced labor (slavery and abduction, misuse of public and prison works, forced recruitment, debt bondage and domestic workers under forced labour situations, and internal or international trafficking) and note that the ILO had previously eight categories—see the International Labor Organization. Stopping Forced Labour. Global Report under the Follow-up to the ILO Declaration on Fundamental Principles and Rights at Work. Geneva: ILO, 2001. Also, a detailed discussion of the definition can be found in Eradication of forced labour - General Survey concerning the Forced Labour Convention, 1930 (No. 29), and the Abolition of Forced Labour Convention, 1957 (No. 105). Report of the Committee of Experts on the Application of Conventions and Recommendations, Report III (Part Ib), ILC, 96th Session, Geneva, 2007. 10 National Research Council, Monitoring International Labor Standards: Techniques and Sources of Information. Washington, DC: National Academies Press, 2004:140-148. 11 ILO, A global alliance against forced labour. Global report under the follow-up to the ILO Declaration on Fundamental Principles and Rights at Work. ILC, 93rd Session, Report I (B). Geneva: ILO, 2005, p. 2. 12 Amy Ritualo, Charita Castro and Sarah Gormly, "Measuring Child Labor: Implications for Policy and Program Design", Comparative Labor Law & Policy Journal v. 24 no2 (Winter 2003) p. 401-434. 

88 APPENDIX E Third, child and forced labor overlap to some extent with trafficking.13 The U.N. adopted a protocol against trafficking in 2000, which entered into force in 2003. The Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children (also known as the Palermo Protocol) defines trafficking as: “"Trafficking in persons" shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.”14 For purposes of this project, trafficking is considered a subset of child and forced labor, that is, this project is concerned only with trafficking that is used to facilitate these forms of labor. Fourth, ambiguity in the definitions makes scope harder to pin down. One issue is that both concepts—“child labor” and “forced labor”—are a bit ambiguous on the margins. Child labor is particularly problematic in the notion that it is partially up to individual nations to determine in part what constitutes hazardous child labor.15 Myers goes further in a speech in 2001: Important differences of perspective on child labor begin with defining it, for there is no common concept that unites everyone discussing the problem. As a result the term ‘child labour’ has become severely devalued and problematic. It is now used to signify so many different things that it is almost useless except as an emotion-laden slogan useful for mobilizing public indignation and action. Even in the technical literature, a single publication often will use ‘child labour’ in more than one sense. One day several years ago I randomly picked a dozen or so books and articles from the bookshelf and began a list of the different explicit or implicit definitions I found in them. In perhaps only a half hour, and but a little way through the pile, I accumulated the following ten definitions of ‘child labour’, and surely would have encountered still others had I continued the search: • All work of any kind performed by children; 13 See for example, Roger Plant, “Forced Labour, Migration, and Trafficking.” Labour Education 4, Number 129, 2002, pp. 58-65. 14 Office of the United Nations High Commissioner for Human Rights. “Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime.” Available at: http://www2.ohchr.org/english/law/protocoltraffic.htm. Accessed on May 19, 2009. 15 For an excellent discussion of various definitions employed and the importance of being clear, see Eric Edmonds, “Child Labor.” In Handbook of Development Economics, Vol. 4, John Strauss and T. Paul Schultz, eds. North Holland, 2008. For a strong critique of the definition of child labor, see for example: Silvia Sanna, “Slavery and Practices Similar to Slavery as Worst Forms of Child Labour: A Comment on Article 3(A) of ILO Convention 182” in Child Labour in a Globalized World, Giuseppe Nesi, Luca Nogler, and Marco Pertile, eds. Surry, UK: Ashgate, 2008. However, Swepson, in the same volume argues that the ILO’s global reports on child labor have presented the concept in “a more easily readable and understanding form” and provided examples and clear explanations (p. 80). 

APPENDIX E 89 • Economic participation by children; • Full-time work performed by children; • Work that is harmful to children; • Work that interferes with schooling; • All remunerated work; • Wage employment; • Work that exploits children; • Work that violates national child labour laws; • Work that violates international standards. This sampling of recent definitions does not describe a single phenomenon. The different definitions imply quite dissimilar notions about just what is problematic about ‘child labour’, and they of course lead to divergent policies and activities for addressing the issue. For example, a strategy to halt all work by children would not necessarily resemble one seeking to discourage only wage employment, or only work that is harmful to children.16 Also, operationalizing concepts can be tricky. (This is crucial in trying to measure the incidence of child or forced labor.) In the realm of child labor, operationalizations deal with terms such as child work, child labor, and child economic activity. According to the ILO: Economic activity” is a broad concept that encompasses most productive activities undertaken by children, whether for the market or not, paid or unpaid, for a few hours or full time, on a casual or regular basis, legal or illegal; it excludes chores undertaken in the child’s own household and schooling. To be counted as economically active, a child must have worked for at least one hour on any day during a seven-day reference period. “Economically active children” is a statistical rather than a legal notion. “Child labour” is a narrower concept than “economically active children”, excluding all those children aged 12 years and older who are working only a few hours a week in permitted light work and those aged 15 years and above whose work is not classified as “hazardous”. The concept of “child labour” is based on the ILO Minimum Age Convention, 1973 (No. 138), which represents the most comprehensive and authoritative international definition of minimum age for admission to employment or work, implying “economic activity”. “Hazardous work” by children is any activity or occupation that, by its nature or type, has or leads to adverse effects on the child’s safety, health (physical or mental) and moral development.17 16 William E. Myers, “Appreciating Diverse Approaches To Child Labor.” A presentation during the symposium "Child Labor & the Globalizing Economy: Lessons from Asia/Pacific Countries," Stanford University, California, February 7 – 9, 2001. Available at: http://www.childlabor.org/symposium/myers.htm. 17 International Labor Organization, The End of Child Labour: Within reach, Global Report under the follow-up to the ILO Declaration on Fundamental Principles and Rights at Work, International Labour Conference, 95th Session 2006, Report I (B). Geneva: ILO, 2006:6. For a further discussion of what 

90 APPENDIX E Ritualo et al. identify a variety of large scale efforts to collect data on child labor, for example by the ILO, the World Bank, and by national countries. While these data are indeed useful to get a big picture view of child labor, a question is the degree to which these approaches are helpful vis-à-vis business practices to eliminate child or forced labor in specific situations. economic activity is, see: Amy Ritualo, Charita Castro and Sarah Gormly, "Measuring Child Labor: Implications for Policy and Program Design", Comparative Labor Law & Policy Journal v. 24 no2 (Winter 2003) p. 401-434.