Pakistan’s obligations concerning child labour under international law
Pakistan is a state party to the UN Convention on the Rights of the Child (UNCRC) which it ratified in 1990. Among the obligations, UNCRC creates for Pakistan is the requirement to ensure that children are protected from all forms of economic exploitation and hazardous or harmful work (see Article 32). Additionally, Pakistan has ratified the International Labour Organisation (ILO) Minimum Age Convention and Worst Forms of Child Labour Convention.
The Minimum Age Convention sets 15 as the general minimum age for employment (13 for light work) and 18 for hazardous work. However, it also permits countries to set a temporary minimum age of 14 for employment (and 12 for light work) if its educational infrastructure and economy are insufficiently developed. Similarly, the minimum age for hazardous work can be reduced to 16. The Worst Forms of Child Labour Convention prohibits all forms of slavery (including debt bondage) and “work which could harm children’s health and/or expose them to danger.”
Pakistan is a state party to the UNCRC, which it ratified in 1990.
Pakistan’s domestic legal framework for child labour law
The 18th Amendment to Pakistan’s Constitution, passed in 2010, devolved all child welfare and labour issues to the provincial level. However, until a province repeals or adopts a replacement law, pre-existing federal laws on children’s rights remain in effect. Consequently, laws on child labour vary according to where the child is in Pakistan (there are four provinces in Pakistan plus the Islamabad Capital Territory (ICT), which is a federal territory).
One example of this is that under federal law the minimum age for employment is 14. This is also the case in the provinces of Khyber Pakhtunkhwa and Sindh, however, in Punjab, it is 15. Another example is that the federal-level 1991 Employment of Children Act (ECA) sets the minimum age for hazardous work as 15 (which is not compliant with international law). However, at the provincial level in Khyber Pakhtunkhwa, Sindh, and Punjab the minimum age for hazardous work is 18 (which is compliant with international law).
A final example relates to child domestic labour. On 4 August 2020, Pakistan’s Cabinet amended the ECA to add domestic labour to the list of occupations that it is prohibited for children to work in. Due to the 18th Amendment this currently only applies to ICT. It could be adopted by other provinces by way of an assembly resolution, but none have yet done so. However, the Punjab Domestic Workers Act 2019 prohibits the employment of children (under the age of 15) in households in any capacity.
Table: Minimum age for child work and hazardous work by province in Pakistan
The reality of child labour in Pakistan
The exact number of child labourers in Pakistan is not known. This is, in part, because only 34 percent of children are registered at birth. As a result, it is hard to establish both how many children there are in Pakistan and the age of those working. Pakistan’s only completed National Child Labour Survey, conducted in 1996, recorded 3.3 million child labourers (a second survey begun in 2019 but is not yet completed). However, unofficial estimates by non-government organisations place the number of child labourers to be significantly higher at around 10 to 14 million.
Unofficial estimates suggest there are up to 14 million children engaged in child labour in Pakistan.
According to the ILO domestic labour is when underage children carry out hazardous household tasks (e.g., using dangerous objects like knives or hot pans) and/or work in slavery-like conditions. Child domestic labour is particularly hard to obtain accurate information about because it happens in private spaces. Additionally, a substantial proportion of Pakistani society does not see household work as constituting ‘labour’ for a child. Notably, as discussed above, domestic labour was only recently added to the list of occupations prohibited for children under the ECA. Children engaged in domestic labour in Pakistan are disproportionately girls from rural areas. Familial poverty is the main ‘push’ factor for children to work as domestic labourers (including to pay off family debts, finance a sibling’s education, and fund doweries). In 2004 the ILO estimated there were 264,000 child domestic labourers in Pakistan.
Child domestic labourers are also at high-risk for other harm. Many relocate from rural to urban settings (where most domestic labour takes place) and live in their employers’ homes far away from their families. Domestic labour happens behind closed doors and children are often dependent on employers for basic needs such as food, and accommodation. This makes child domestic labourers particularly vulnerable to abuse (psychological, sexual, and physical), debt bondage (i.e., working to pay for the cost of their food, accommodation, etc.), and deprivation of other rights (e.g., the rights to play, education and healthcare).
Violence against child labourers in Pakistan typically only comes to light in cases involving extreme brutality. Between January 2019 and 2020, around 300 child labourers were rescued by the Child Welfare and Protection Bureau in Punjab alone. However, in this period only 51 cases of violence against child labourers were reported by Pakistani media.
Khan and his wife were both charged with “cruelty to a child” under Section 328-A of the Pakistan Penal Code (they were not charged with employing a minor because, at the time, domestic labour was not a prohibited profession under the ECA). However, in 2017, Tayyaba’s father attempted to have the charges against Khan and Zafar dropped by offering his formal ‘forgiveness’. In Pakistan, criminal cases are filed by victims or their families, not the state. Plaintiffs can choose to drop cases (even for serious charges) by pardoning the accused “in the name of God.” Critics of this right to ‘forgive’ say that such pardons are often the result of a financial payment to victims (or their families) and enable the wealthy to avoid punishment.
In Tayyaba’s case, the court rejected her father’s pardon and took suo moto notice of the case (i.e., when a court acts on its own accord without request from involved parties) warning that: “no agreements can be reached in matters concerning fundamental human rights.” In April 2018, Islamabad High Court found both the accused guilty and sentenced them to one-year in prison and a 50,000 rupee fine (approximately $750). In June 2018, that sentence was increased to three years by the same court. In January 2020, it was again reduced to one-year by Pakistan’s Supreme Court.
Although Tayabba’s father initially told officials that the judge and his wife had not hurt his daughter and that she had fallen down the stairs, he later admitted to the BBC that he had lied and that Khan had paid for his lawyer and promised to get him a house and a car as a “token of sympathy”.
Child domestic labour happens behind closed doors making children particularly vulnerable to abuse, debt bondage, and deprivation of other rights.
Context – The Tindouf Refugee Camps
Of course there is a lot to I could say about the history of the Tindouf camps, but essentially what is relevant for this blog post is this: The people living in the Tindouf refugee camps are members of the ‘Sahrawi people’, a nomadic people from Western Sahara. When the territorial conflict about Western Sahara erupted into violence in 1976, they fled just across the border to the Tindouf area in Algeria. The United Nations refugee agency UNHCR has recognised that the Sahrawi people living in the Tindouf camps have the legal status of being refugees. The camps are controlled by Polisario, the liberation movement of the Sahrawi people, which is fighting for the Sahrawi’s claim to the territory of Western Sahara. In 1976, the Polisario proclaimed the SADR as an independent state, which is considered an unrecognised state. Although quite a few countries, as well as the African Union, recognize the SADR, not all countries do and therefore it is unable to sign most international treaties. Therefore, the camps are inhabited by a population of refugees that lives under what most of them consider their own government, but others consider to be an unrecognised entity, not bound to respect children’s rights.
The Issue – Non-State Actors and Why They Matter
Usually, when considering who is responsible for someone’s children’s rights, we turn to the state that is in control of the territory or the children in question. In the case of refugees, the international legal system sets out that the state which they are in must guarantee the refugees the same rights as its nationals.
This means that according to the existing framework Algeria, as the camps’ host state, is considered the primary actor in this scenario. It also has ratified various conventions, including the ‘Convention on the Rights of the Child’ (CRC) and the ‘1951 Convention relating to the Status of Refugees’. This means that Algeria has responsibilities such as treating nationals and refugees alike when it comes to access to elementary education and other public services. At first sight, the situation is therefore quite clear, Algeria is responsible for the international children’s rights of the Sahrawi children living on its territory, right? Yes, but…
From early onwards, Algeria has delegated all responsibility over the camps to Polisario. They recognize the SADR as an independent state, and the Polisario as its government. This means that Algerian authorities are not present in the camps and do not, for example, provide education in the camps. It happens surprisingly often that people find themselves in a situation in which not a state, but another type of actor is making the calls when it comes to their children’s rights protection. This is also the case with the Sahrawi refugees in the Tindouf camps which is why considering Algeria alone as responsible is not very useful from the perspective of a child living in the camps. However, since not all countries recognise the SADR as a country, internationally it is usually seen as a ‘non-state actor’. This term is usually used for bodies that are not states but still relevant in the international legal community, such as international organisations like the United Nations, corporations or armed opposition groups. They cannot become a signatory to conventions like the CRC. Nevertheless, it is increasingly accepted that non-state actors should also be responsible for the rights of the people they are in control of. Legally speaking, the International Court of Justice has accepted this possibility, as long as the actor in question has ‘international legal personality’. Whether a non-state actor will fulfil this qualification, and which obligations it has if it does, depends on the actor’s purpose and function. This still sounds quite vague so to put it more concretely, here are some of the obligations that non-state actors could (or should) be bound by:
- Obligations arising out of exercising effective control over people or territories: An actor exercising government-like functions should be bound by children’s rights norms when what they do can affect the rights of the children under their control. For example, when a governing body is in control over water supply, they have to make sure that access to this water is equally accessible to all children.
- Self-imposed obligations: Many non-state actors actually voluntarily declare that they will adopt certain human and children’s rights standards. Arguably this can give rise to the actor being internationally obliged to respect these standards.
- Ius cogens norms: These are rules of international law that must be complied with at all times and cannot be derogated from, no matter by whom. The argument is that non-state actors with international legal personality should also have to follow the generally accepted rules within which they operate. Some of these rules are human rights norms, for example the prohibition of torture.
Human Rights Obligations for Polisario?
These obligations should also apply to Polisario (the Sahrawi governing body). Firstly, it has international legal personality based on its role of representing the Sahrawi people, as accepted by the UN, and secondly, it exercises actual control over the Tindouf camps and its inhabitants. This control is in many ways similar to the control a regular government usually has over a country (deciding who gets to enter, applying its own criminal and juvenile law, etc). Therefore, this almost complete control over the camps could be a reason to hold Polisario responsible for certain children’s rights obligations. This is supported by the fact that Polisario, or rather the Sahrawi Arab Democratic Republic, the state that Polisario proclaimed, has ratified the ‘African Charter on Human and People’s Rights’, although not the ‘African Charter on the Rights and Welfare of the Child’. It also has its own human rights catalogue included in its constitution, which contains the right to free education and the obligation to ensure protection for children. These ‘national’ or regional commitments to human rights can arguably also give rise to international obligations in the field of children’s rights.
As you can see summarised in this chart, there is a lot of room for seeing Polisario responsible for certain rights of Sahrawi children, in addition to the obligations of Algeria.
Still, whether non-state actors can have children’s rights obligations remains disputed by some. Looking at the goals that international children’s rights law is supposed to achieve however, it seems like denying that Polisario can hold certain children’s rights obligations bypasses the reality of a child living in the camps and experiencing almost exclusively the governance of Polisario. Children’s rights are supposed (a) protect children and (b) apply to every child equally, independent of nationality. Consequently, if children’s rights are supposed to protect every child equally, they should also be granted to those living under the control of a non-state actor.
If you want to know more about the situation in the Tindouf camps, then follow our upcoming posts and vlogs from our field research trip!
You can read my complete thesis on this subject here.
A map of the territory of Western Sahara and the Tindouf camps.
SOURCE: Omar-Toons. (2011, 15 March). Western sahara map showing morocco and polisaro [Illustration]. Wikipedia.
Who is responsible for providing education in the Tindouf camps?
SOURCE: Ammi, L. (2018). Sahrawi refugees in Algeria [Photograph]. European Union.
Water tanks in the Tindouf camps.
In my original bachelor thesis, I also analysed the role of other actors present in the Tindouf camps. Anyone interested in reading the full version can find the complete paper here.
