Under international law, child labor in itself is not prohibited, in recognition of the potential benefits of some forms of work and of the realities that require many children to enter the workforce to support their own or their families’ basic needs. Instead, international treaties address the circumstances under which children may work and require states to set minimum ages for employment. In addition, children who work do not give up the basic human rights that all children are guaranteed; in particular, they continue to enjoy the right to education.
The Convention on the Rights of the Child guarantees children the right “to be protected from performing any work that is likely to be hazardous or to interfere with the child’s education, or to be harmful to the child’s health or physical, mental, spiritual, moral or social development.”128
The Worst Forms of Child Labour Convention, adopted by the International Labour Organization in 1999, develops the prohibition on harmful or hazardous work more fully. Under the Worst Forms of Child Labour Convention, some forms of child labor are flatly prohibited, such as slavery or practices similar to slavery. Other types of work are prohibited if they constitute “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.”129
Under the Worst Forms of Child Labour Convention, states parties determine what constitutes prohibited hazardous work in consultation with workers’ and employers’ organizations, considering “relevant international standards, in particular . . . the Worst Forms of Child Labour Recommendation.”130 Among other factors, the recommendation calls for consideration of the extent to which the work “exposes children to physical, psychological or sexual abuse” or involves “particularly difficult conditions such as work for long hours or during the night or work where the child is unreasonably confined to the premises of the employer.”131
In addition to establishing a minimum threshold for work conditions appropriate for children, the I.L.O. also sets a minimum age for joining the workforce. The I.L.O. Minimum Age Convention states that the minimum age for admission to employment “shall not be less than the age of completion of compulsory schooling and, in any case, shall not be less than 15 years.”132 An exception to the minimum age of fifteen is made only for a state “whose economy and educational facilities are insufficiently developed,” which may “initially specify a minimum age of 14 years.”133 El Salvador sets the age for completion of compulsory schooling at fourteen.134
The right to education is proclaimed in the Universal Declaration of Human Rights and guaranteed in three treaties ratified by El Salvador: the International Covenant on Economic, Social and Cultural Rights, the Convention on the Rights of the Child, and the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (known as the Protocol of San Salvador). Primary education must be “compulsory and available free to all.” Secondary education, including vocational education, must be “available and accessible to every child,” with the progressive introduction of free secondary education.135 In addition, the International Covenant on Civil and Political Rights guarantees each child the right to “such measures of protection as are required by his status as a minor,” a provision that the Human Rights Committee has interpreted to include education sufficient to enable each child to develop his or her capacities and enjoy civil and political rights.136
With regard to the interplay between child labor and education, the Convention on the Rights of the Child explicitly guarantees children the right “to be protected from performing any work that is likely . . . to interfere with the child’s education . . . .”137
The right to education is a right of progressive implementation, meaning that implementation may take place over a period of time, subject to limits on available resources. A state party to the International Covenant on Economic, Social and Cultural Rights agrees “to take steps . . . to the maximum of its available resources” to the full realization of the right to education.138
128 Convention on the Rights of the Child, art. 32(1).
129 Worst Forms of Child Labour Convention, art. 3(a), (d).
130 Ibid., art. 4(1).
131 Worst Forms of Child Labour Recommendation, art. 3.
132 Minimum Age Convention, art. 2(3).
133 Ibid., art. 2(4).
134 Human Rights Watch interview with Walter Palacios, February 13, 2003.
135 The International Covenant on Economic, Social and Cultural Rights provides that primary education “shall be available to all” and that secondary education “shall be made generally available and accessible to all by every appropriate means.” International Covenant on Economic, Social and Cultural Rights, art. 13. Article 28 of the Convention on the Rights of the Child recognizes “the right of the child to education”; states parties undertake to make secondary education “available and accessible to every child.” The Protocol of San Salvador contains similar provisions. See Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (“Protocol of San Salvador”), adopted November 17, 1988, O.A.S.T.S. No. 69 (entered into force November 16, 1999), art. 13(3). El Salvador ratified the protocol on June 6, 1995.
136 See International Covenant on Civil and Political Rights (ICCPR), opened for signature December 19,1966, 999 U.N.T.S. 171 (entered into force March 23, 1976), art. 24; Human Rights Committee, General Comment 17: Rights of the Child, para. 3, in Compilation of General Comments and General Recommendations p. 145. El Salvador ratified the ICCPR on February 29, 1980.
137 Convention on the Rights of the Child, art. 32(1).
138 International Covenant on Economic, Social and Cultural Rights, art. 2(1). See also Convention on the Rights of the Child, art. 28. Nevertheless, “[t]he realization of the right to education over time, that is ‘progressively,’ should not be interpreted as depriving States parties’ obligations of all meaningful content. Progressive realization means that States parties have a specific and continuing obligation ‘to move as expeditiously and effectively as possible’ towards the full realization of article 13” of the covenant. Committee on Economic, Social and Cultural Rights, General Comment 13, The Right to Education, U.N. Doc. E/C.12/1999/10 (1999), para. 44, in Compilation of General Comments and General Recommendations, p. 79.