So far, children are largely denied access to economic and labour rights. As a result, working children are held in a legal grey area and the protection against economic exploitation they are entitled to under international law is made considerably difficult. The right to work in dignity demanded by the movements of working children would help to strengthen the social position of working children and thus also increase their protection against exploitation.
Economic and labour rights are different and complementary
Under international law, economic rights are those codified in the International Covenant on Economic, Social and Cultural Rights (ICESCR), which was adopted by the UN General Assembly in 1966 and entered into force in 1976. They are a legally binding extension of the rights first set in the Universal Declaration of Human Rights of 1948. International labour rights are defined by the International Labour Organisation (ILO) conventions. The most important of these conventions are summarised in the ILO Declaration on Fundamental Principles and Rights at Work. This declaration highlights the following "fundamental principles" or "core labour standards":
- freedom of association and the effective recognition of the right to collective bargaining;
- the elimination of all forms of forced or compulsory labour;
- the effective abolition of child labour;
- the elimination of discrimination in respect of employment and occupation.
Economic rights and labour rights differ in the sense that economic rights are for all people, while labour rights are only for those in employment. Like all human rights, economic rights are based on the principles of freedom and dignity. They can be distinguished from other human rights, but cannot be seen in isolation from them. Social rights enshrined in the ICESCR include, for example, the rights to food, health, housing, social security and education. Without the recognition and realisation of these rights, neither work nor life as a whole would be possible in freedom and dignity. On the other hand, economic and labour rights also contribute to the realisation of social rights.
Economic rights and social and cultural rights are generally referred to as the second generation of human rights, compared to civil and political rights enshrined in the International Covenant on Civil and Political Rights, which are considered the first generation of human rights. While civil and political rights aim to protect individuals from having their freedom and personal integrity curtailed by state authorities, economic and social rights aim to take measures or facilitate one's own actions to improve one's own living and working conditions and those of others in the interests of human dignity. They were introduced because it was recognised that a life in dignity requires not only guarantees of freedom but also the guarantee of certain living and working conditions, and that individual freedoms themselves require a social framework. This shows that human rights do not fall from the sky, but are the result of efforts and struggles for better livelihoods. This also applies to labour rights, which have emerged from the struggle of workers' organisations for better working conditions (which is why they are also called "workers' rights").
With regard to economic and labour rights, it should be remembered that they refer to an economy and to employment relationships which have been created with the capitalist mode of production. They are aimed at regulations that apply within this mode of production, but do not contain any vision beyond that. This poses a challenge for the further development of human rights, especially social and cultural rights, and the new generation of environmental or ecological rights, including the rights of future generations. This also has significant consequences for the question of the extent to which economic and labour rights apply or should apply to children.
Do economic and labour rights also apply to children?
If one looks at the economic and labour rights enshrined in international law, the contradictory statements on children are easy to recognise. According to the wording of the ICESCR, economic rights apply to "everyone" and thus to all people regardless of their age. The ILO's fundamental principles also do not contain any age references for the "freedom of association" and the "elimination of discrimination in respect of employment and occupation", so they should apply to all workers regardless of their age. Nevertheless, both the ICESCR and the ILO principles each contain a provision which is incompatible with this logic.
With regard to children, the ICESCR lays down minimum ages as a condition for the legal pursuit of paid employment (but without specifying age). When the ILO Principles refer to the "effective abolition of child labour" as a fundamental right, this can logically only be understood as a right of adults, as children are affected by it, but are not considered as a separate subject of this right. The basic principles are governed by ILO Convention 138 (1973), which lays down minimum age requirements for employment.
Although these provisions are intended to meet the special needs of children and protect them, they constitute a serious restriction of economic rights and raise the question of whether this is an age-specific form of discrimination and whether the claimed function of child protection is implicitly nullified. For example, it is not possible for working children under the minimum age to invoke rights at work. The specification of minimum ages is thus also in conflict with the provision to ensure "special protection and support measures for all children and young people" (ICESCR), since these measures at best only apply to working children above the minimum age. A similar logical contradiction can be found in Art. 32 of the UN Convention on the Rights of the Child, which is intended to protect children from economic exploitation.
With regard to economic and labour rights, the question arises as to whether, in addition to the right to protection from exploitation and hazardous work, children are also granted other rights which are considered essential for adults. This applies in particular to the following rights, which can be found in various formulations both in the ICESCR and in some ILO conventions and their basic principles:
- the right to work and to free choice of employment;
- the right to just and favourable working conditions;
- the right to protection against unemployment;
- the right to equal pay for equal work, without any discrimination;
- the right to form and join trade unions for the protection of one's own interests, including the right to collective bargaining
- the right to rest and leisure, including reasonable limits on working hours and periodic paid holidays
According to the ILO, these rights are not suitable for children or even harm them if they were applied to them. This opinion is based on a particular childhood pattern that has developed with civil society in Europe and has been globalised since the colonial era. According to this pattern, children's lives should be completely "work-free" and child labour should be replaced by compulsory school attendance ("school is the best place to work"). Children who do not (yet) go to school are often deplored as "children without childhood" and even discriminated against. This is contradicted by the fact that millions of children continue to work despite legal prohibitions. The reasons and motives are as varied as the conditions under which this work is carried out.
The ILO fails to recognise the reality of working children
The fact that work is still, and perhaps will be increasingly, part of the lives of many children and belongs to their childhood (and is usually affirmed by children) makes it necessary to grant children all the economic and labour rights that apply to adults. In contrast to work prohibitions, this would help to protect working children from exploitation, to safeguard their human dignity and to improve their working and living conditions. It would also make it easier to realise the social rights enshrined in the Convention on the Rights of the Child, such as the right to health (Article 24), social security (Article 26), an adequate standard of living (Article 27), education (Articles 28 and 29) or recreation and leisure (Article 31).
It should be noted that the rights to form independent associations and to represent common interests in an organised manner, rights which count as economic and labour rights, are also enshrined in the Convention on the Rights of the Child (Article 15). Although these rights are not formulated as economic or labour rights, they do have this meaning for children who work or wish to work. Working children in many regions of the Global South have long made use of these rights by founding their own social movements and organisations and insisting on their independence.
The refusal to grant full economic and labour rights to children is particularly persistent in trade unions and the International Labour Organisation. It is expressed above all in the ILO conventions against child labour and the relevant discourses and measures which seek to eliminate all forms of child labour. This is also reflected in the persistent refusal to recognise working children and their organisations as partners and to allow them to participate in decisions affecting their situation as working children.
ILO Conventions 138 and 182
One of the conventions which the ILO considers to be a particularly important part of its principles is ILO Convention 138, which does not refer to human rights in general, nor to children's rights in particular, but defines measures to prevent children below certain specified age limits (15 years, 18 years for heavy work) from working. Although the working conditions for children vary widely, the Convention assumes that work is generally harmful to children and should therefore be prevented by all legal means. In this context, it is obvious - as in the numerous earlier conventions against child labour - that their main purpose is to ward off the feared wage competition with children. While humanitarian motives are cited, it has not yet been proven that this Convention has contributed significantly to improving the situation of working children. On the contrary, various studies have shown that the exclusion of children from work simply because of their low age has had counterproductive effects and has actually worsened the situation of many working children, including their families.
In addition to this Convention, the ILO adopted ILO Convention 182 in 1999. The distinction made therein between acceptable and "worst" forms of child labour was in principle welcomed by many children's movements. However, they object to the fact that child trafficking, recruitment as soldiers, pornography and prostitution are referred to as child labour in the Convention. On the other hand, they demand that existing laws be used to combat these crimes against children. They also criticise that the ILO conventions do not grant children any participation rights. In many cases, they have even been used as justification for the expulsion of working children from their workplace, even if they were there with one of their parents.
A "right to work in dignity" instead of "abolition of child labour"
Although the difficulties in this area have been documented in research for years, neither the ILO nor governments have yet undertaken a holistic assessment of the supposed protection of children through measures and programmes to eliminate child labour. Although the ILO's Global Reports published since 2002 speak of a decline in child labour worldwide, they also note that the conditions under which children work have deteriorated in many areas. From report to report, they emphasise that the planned complete abolition of child labour by 2025 can only be achieved if the pace is accelerated considerably. In this context, the participation of working children's organisations is not only a right enshrined in the Convention on the Rights of the Child. It would also be an appropriate and obvious way for children to present their problems and identify violations of rights, and for policy makers to obtain information on the actual results of current policies and practices.
In order to be better protected against economic exploitation, most movements of working children have been demanding the "right to work in dignity" for 30 years now. As a subjective right of children, this right would go beyond Article 32 of the Convention on the Rights of the Child. From the point of view of working children's organisations, this right does not mean, as is often misunderstood, that every person has the right to demand the work of a child, nor that children must be guaranteed employment. It is understood as the right of a child to decide freely whether, where, how and for how long it works. The right also goes beyond employment under the regime of and being dependent on an employer in a capitalist economy, and beyond all kinds of economic activities outside the "official" labour market (i.e. in the informal economy or in private households), which children are obliged to perform by persons who have power over them. The aim is to expand the children's scope for decision-making and to strengthen their social status as acting subjects.