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Ramankulov, K. S. & Ramankulova, A. S. (2022) Trends and Problems of Child Labor Eradication in EAEU Member States (Comparative Legal Issues). European and Asian Law Review. 5 (2), 41-47. DOI: 10.34076/27821668 2022 5 41.
UDC 349.2 (476)
BISAC LAW 054000
DOI: 10.34076/27821668_2022_5_2_41
Research Article
TRENDS AND PROBLEMS OF CHILD LABOR ERADICATION IN EAEU MEMBER STATES (COMPARATIVE LEGAL ISSUES)
KUBANYCHBEK S. RAMANKULOV
Kyrgyz National University named after J. Balasagyn ORCID ID: 0000-0002-9117-9012 ASEL S. RAMANKULOVA Kyrgyz National University named after J. Balasagyn ORCID ID: 0000-0001-7646-3659
It should be noted that as a universal approach to international legal regulation of labor relations, the principle of effective child labor prohibition is one of four fundamentals in the field of labor to be applied by ILO member states on a mandatory basis regardless of ratification of any particular Conventions, but just subject to their adherence to the ILO Constitution. Although child labor is prohibited by regulatory acts and this is reflected in national policies and special programs of Eurasian Economic Union (EAEU) member states, child labor remains a problem that puts the basic rights of a significant number of children in jeopardy. The primary methods are system analysis and a comparative legal method of studying child labor issues in the Eurasian Economic Union member states in respect to the analysis of its current state and ensuring the effective implementation of a child labor prohibition in the Eurasian Economic Union. The issues of new institutional arrangements for protecting children's rights in EAEU member states are analyzed in the paper. There is a particular focus on the lack of a special children's rights protection authority (aside from Russia and Kazakhstan) and the trend of significantly weakened activities by labor inspections in EAEU member states in respect to implementing child labor prohibition as well. The need for defining the concepts of 'light work' and 'labor education' and their formalization in labor legislation provisions is stated in the paper along with the need to adopt legal norms disclosing the nature of relations arising from the work performed by children and the types of this work in the informal economic sector. It appears necessary to work out a concept for regulating relations in the field of child labor in the framework of strategies for the social and economic development of Eurasian Economic Union member states that shall provide for the elimination of child labor based on child labor legislation monitoring and the practice of its enforcement in these states.
Key words: prohibition of child labor, education, protecting children's rights, the worst forms of child labor
Introduction
It is the progress achieved by the Eurasian Economic Union member states in the late 1990s that turned out to be the most notable for solving the problem. Essentially, the laws on children were adopted, legal institutions and mechanisms were established to protect children who found themselves in difficult circumstances, and designed to ensure the application of international legal standards for child labor. In the same period, the issue of child labor was first reflected in the national policy and special programs of the
Copyright© 2022. The Authors. Published by Ural State Law University named after V. F. Yakovlev. This is an open access article distributed under the CC BY-NC 4.0. license http:llcreativecommons.orglllicenselby-ncl4.0I
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Eurasian Economic Union member states. Also, it was noticeable on a doctrinal level that applied research began to prevail among the studies dedicated to child labor. However, over the last decade, a significant weakening has been observed across all the aforementioned points, while child labor remains a problem that puts the basic rights of a significant number of children in jeopardy (see more about this below).
Materials and Methods
A system method has been chosen in this paper as the primary to study trends of development in the main legal institutions for child labor prohibition with regard to the norms of the Eurasian Economic Union and international labor standards. Also, in the process of research, a general scientific dialectical method of social phenomena recognition and special research methods were used (a legalistic method, a method of legal modelling).
The lack of consolidated statistics on the use of child labor in EAEU member states, as well as the lack of credible statistics for some countries of this Union should be noted (Russia, Armenia). Thus, noting the total figure of 79,690 working children aged 5-14 in Kazakhstan, the UNESCO Institute for Statistics has also noted the lack of up-to-date comprehensive data on the issue of child labor in this country. Data for 2018 were published by the aforementioned Institute in 20191. At the same time, according to the cluster survey conducted in 2018, 26.7% of children are involved in child labor in Kyrgyzstan2. Much smaller values for 2019 are provided by the National Statistical Committee of the Republic of Belarus - no more than 4 % of children as a whole are involved in various types of child labor, although the percentage is higher in the countryside. Teenagers aged 12-17 (per international criteria) are not involved in child labor at all3.
Results
It is necessary to work out an appropriate conceptual framework, to use basic terms and definitions in a coordinated manner for academic and practical purposes as well as in the processes of international interaction in the framework of the legislation of Eurasian Economic Union member states for effective interaction while building a legal policy pertaining to children's protection and child labor in these countries. Also, it should be noted that significant changes are taking place in the field of regulating child labor relations on the level of Eurasian Economic Union member states that is a typical sign of a complex institution being established within the labor law systems of these countries. For example, the laws on children (and the respective Code in Kyrgyzstan) and program documents in respect to child labor relations adopted lately address a wider scope - organization of protecting children's rights - and secure a common model for the entire system of protecting children's rights on the national level in Eurasian Economic Union member states. That said, it is worth noting that there are no common conceptual documents regarding child labor issues accepted by Eurasian Economic Union member states, so they are regulated on a domestic level almost completely in these countries.
Discussion
Various concepts are used in legislations of EAEU member states regarding the parties of these relations such as 'children', 'child', 'teenager', 'minors', 'persons under 18', 'youth', etc. According to Art. 1 of the Convention on the Rights of a Child adopted by Resolution 44/25 of the General Assembly on November 20, 1989, a child means every human being below the age of 18 years unless under the
1 Bureau of International Labor (2018) Kazakhstan. Minimal Accomplishments. 2018 Findings on the Worst Forms of Child Labor. Available at: https://kz.usembassy.gov/wp-content/uploads/sites/46/%D0%97%D0%B0%D0%BA%D0% BB%D1%8E%D1%87%D0%B5%D0%BD%D0%B8%D0%B5-%D0%B2-%D0%BE%D1%82%D0%BD%D0%BE% D1%88%D0%B5%D0%BD%D0%B8%D0%B8-%D0%BD%D0%B0%D0%B8%D1%85%D1%83%D0%B4%D1%88% D0%B8%D1%85-%D1%84%D0%BE%D1%80%D0%BC-.pdf [Accessed: 3 April 2022].
2 Resolution No. 421-r of the Government of the Kyrgyz Republic dated November 6, 2019. Available at: http://cbd. minjust.gov.kg/act/view/ru-ru/217736 [Accessed: 3 April 2022].
3 On Happiness, Children and Relations in the Family: the Belarusians Answered Belstat Questions. Available at: https://mir.pravo.by/news/different/o-schaste-detyakh-otnosheniyakh-v-seme-belorusy-otvetili-na-voprosy-belstata/ [Accessed: 3 April 2022].
law applicable to this child, the majority is attained earlier. This definition is considered basic, conventionally used in labor legislations of CIS countries to establish the underage individuals who have not passed to the adult age group yet. Therefore, the legal definition of 'persons under 18' should be an umbrella term to define parties in the context of protecting children and child labor used to denote all individuals under the legal age in the codes of Eurasian Economic Union member states when it comes to labor regulation. If a certain age needs to be indicated, the concept 'persons under 18' may be specified through the term 'minors' (e.g., a minor under 16, a minor age 15, etc.), which allows regulating specificities of each party's legal status in this age group of children separately. Additionally, such an approach makes it possible to exclude from use such concepts as 'youth' and 'young workers', since they do not have a clear, certain and unambiguous meaning.
A vast range of issues arises when relations directly associated with child labor are considered. Thus, international labor standards establish the concepts of 'child labor' and 'child work'. This being said, it is implied that 'child labor' means a negative form of child work, while 'child work' is a legal way to apply child labor based on observance of labor rights and freedoms. However, these definitions arouse discord on the national level of EAEU member states. For example, Art. 15 of the Child Code of Kyrgyzstan is called 'The Use of Child Labor' which obviously does not correspond to the aforementioned perception, since in terms of international labor standards, child labor is considered a phenomenon to be excluded. However, the concepts of child labor and child work themselves do not have individual definitions formalized by international labor standards, which causes challenges, particularly for the articulation of other terms regarding children safeguarding in the field of labor relations regulation in the national legislation. Thus, for example, labor codes of Eurasian Economic Union member states provide for students aged 14 or older to be allowed to do light work that neither causes any harm to health nor interrupts the educational process (see Art. 18 of the Labor Code of Kyrgyzstan, Art. 21 of the Labor Code of Belarus, Art. 31 of the Labor Code of Kazakhstan, Art. 63 of the Labor Code of Russia, Art. 257 of the Labor Code of Armenia).
It seems obvious that the concept of light work excludes all the hazardous or dangerous conditions, and such work should be considered easier than normal work assigned to an adult worker. However, there are neither legal definitions of the term 'light work' nor a list of this work in the regulatory acts of the aforementioned states.
In practice, the use of child labor is mostly justified by implementing the process of labor education (Lyutov, Ramankulov & Gerasimova, 2019: 37; Shoshin, 2009: 295-300). That said, the concept of 'child (children) education' is used only with respect to the general socialization of children in current legislations on children's rights of Eurasian Economic Union member states (Sosnina, 2018: 53-55; Anisimov, Pavlov & Pavlova et. al, 2016: 1668-1686)4. Also, it should be noted that the provisions of ILO Convention No. 138 (the fundamental Minimum Age Convention, 1973) cannot be applied to the work performed by children and teenagers in general, vocational, or technical schools or any other educational institutions. According to the same Convention (Art. 7), national legislations of Convention member states may establish age limits for working children of aged 13-15 in case they perform light work that most likely will not cause any harm to the children's health and development. Additionally, the performance of light work should not prevent children from attending educational institutions, participating in vocational guidance programs approved by competent authorities and, if possible, obtaining benefits from the received training. However, the concept of 'labor education' has never been specified in legislations of Eurasian Economic Union member states, which increases the risks of using child labor in practice, including its worst forms, under the guise of labor education processes.
Also, it is important to solve the aforementioned problems in the context of introducing into foreign and Russian experience in the Eurasian Economic Union member states the Decent Work Concept (hereinafter the Concept) developed by the International Labor Organization5. This document establishes the provision according to which decent work is productive work in conditions of freedom, security, and human dignity that also pays a fair income and offers prospects for personal development. Therefore, the
4 Maslova, D. (2018) No Education. No Future. Migrants' Children Are Involved in Hazardous Child Labor Most Often. Available at: https://kaktus.media/doc/378024_ni_ycheby_ni_bydyshego._chashe_v_opasnyy_detskiy_tryd_vovlecheny_deti _migrantov_intervu.html [Accessed: 3 April 2022].
5 International Labor Office (1999) Decent Work: a Report by the General Director of the International Labor Office. 87th session of ILO, Geneva. Available at: http://www.ilo.org [Accessed: 3 April 2022].
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suggestions should be noted from the UN Committee on Economic, Social and Cultural Rights regarding its focus on the concept of 'exploited' while disclosing the essence of decent work, particularly, the aspect related to children's protection and child labor. However, according to some experts, the term 'exploited' 'is not self-explanatory and it does not have a fully approved meaning' (Siegel, 2003: 6). The main focus of ILO Convention No. 182, for example, is on the prohibition of the worst forms of child labor and immediate measures for its eradication (1999), aside from sexual exploitation, and also on the issues of morality, drugs, and hazardous labor. Moreover, this fundamental Convention is expressively protective and imperative by nature, aimed at eradicating some of the most negative phenomena related to child labor (Smirnov, 2011: 155). The norms of another fundamental convention, Convention No. 138, are of another legal nature. They are mostly represented by more flexible means of regulation, although it is only the norms limiting labor of minors for a restricted list of work that are essentially considered mandatory for the states that have ratified the Convention.
It should be noted that currently there is a valid list of manufacturing operations, professions, and work under arduous and harmful labor conditions where the labor of persons under 18 is prohibited. However, these lists are mostly focused on industrial manufacturing which makes them poorly adapted for agriculture where child labor is used to a great extent. That said, according to the Convention, the concept of 'work' is applied in the scope covering all kinds of child employment in formal and informal economic sectors. Therefore, it will be a crucial factor for Eurasian Economic Union member states to adopt legal norms disclosing the nature of relations arising from the performance of work by children in the informal economic sector and the types of this work.
The modern legal measure system in the field of child labor is a tool that enables the development of comprehensive solutions for the issue of child labor elimination in the context of international labor standards and in terms of implementing the social welfare state principles in the Eurasian Economic Union member states. Bringing the issue of child labor elimination to the forefront is primarily the national objective of Eurasian Economic Union member states in accordance with the fundamental international legal principle of effective child labor prohibition and national constitutions of the aforementioned states.
Thus, in accordance with Art. 27 of the Constitution of Kazakhstan, 'preservation of rights and protection of children's legal interests is one of the priority areas of the national policy'. The Constitution of Kyrgyzstan prohibits the use of child labor (Art. 23). The Constitutions of Armenia (Art. 16, 37), Belarus (Art. 32), Russia (Art. 32) establish the norm on protection by the state of motherhood, childhood, and family. These constitutional norms provide for their appropriate reflection in the hierarchy of legal goals that provide a focus on solution to the problem of child labor elimination in a number of major social relations development areas in Eurasian Economic Union member states. The strategic areas of social and economic development reflected in the program documents of most Eurasian Economic Union member states include the issues of improving the level of labor and the quality of the labor environment when minors are involved6. It is important to note that the aforementioned countries are adopting national plans, taking actions to prevent and eradicate the worst forms of child labor that provide for the implementation of appropriate measures by various public control and administration authorities, law enforcement agencies, local authorities, and public organizations. Generally, the organizational and legal system focused on the issue of child labor elimination in Eurasian Economic Union member states complies with the ILO Convention7 that adheres to the comprehensive approach to both the politics and the operational strategy, so that this issue could be addressed and solved in a multi-sectoral context by
6 Provisions on Preventing Child Labor Exploitation Have Been Added to the Armenian State Employment Strategy for 2019-2023 due to the Efforts of 'Save the Children - Armenia' and the Program. Available at: https://www. euneighbours.eu/ru/search/24?keys=&page=318 [Accessed: 3 April 2022]; The Plan of Measures for Preventing Children's Involvement in the Worst Forms of Child Labor (WFCL) for 2019-2024 Is neither Refined nor Approved yet despite Establishment of a Task Force in 2018 within the Kyrgyzstan Government Program Implementation. Prevention of Children's Involvement in the Worst Forms of Child Labor: a Plan of Measures for 2019-2024. Available at: https:// www.ilo.org/moscow/news/WCMS_671370/lang--ru/index.htm [Accessed: 3 April 2022]; Ministry of Labor and Social Protection of the Population of the Republic of Kazakhstan (2021) Information about Implementation of Plan of Measures for Eradication of the Worst Forms of Child Labor for 2020-2022 (based on the results of 2020). Available at: https:// www.gov.kz/memleket/entities/enbek/press/article/details/41079?lang=ru [Accessed 3 April 2022].
7 International Labor Office (2018) Ending Child Labour by 2025: A Review of Policies and Programs International Labor Office (ILO), 2nd ed. Geneva. 29-69. Available at: https://www.ilo.org/ipec/Informationresources/WCMS_653987/lang--en/ index.htm [Accessed: 3 April 2022].
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the potentialities of various national law branches, as well as by coordinated and consistent efforts made by the most diverse organizations and interested parties.
Therefore, another area in solving the aforementioned problem in Eurasian Economic Union member states is strengthening the potential of national agencies — a crucial element in ensuring the stability of relations for child labor elimination. It is important to strengthen the potential of all authorities, agencies, organizations, and individuals dealing with child labor issues. However, in most Eurasian Economic Union member states (aside from Russia and Kazakhstan), there are no special authorities in charge of protecting children's rights that prevents focusing on the entire range of protecting children's rights issues, also including child labor issues. The position of the Children's Rights Ombudsman was introduced in Russia and Kazakhstan by the Presidents of those states in 2009 (Decree No. 986 of the President of the Russian Federation dated September 1, 2009) and in 2016 (Decree No. 192 of the President of the Republic of Kazakhstan dated February 10, 2016) respectively. The disagreement between goals and means (resources) leads to formalism in operations of agencies, illusive diversity of services that either reproduce the same function or remain restricted in terms of high-quality response to certain tasks. The immediate consequence of such a situation is low efficacy of services specializing in children's protection, the decline in trust in them on the part of citizens, emergence of barriers to interaction.
Legal experience in the field of employment in Eurasian Economic Union member states allows noticing the problems in the interrelations between the eradication of child labor and regulation of permissible employment of children in accordance with the law. Thus, the problem of children's legal employment becomes even more complicated, because currently there are two independent markets: an education market and a labor market (Zabelina, Asaliev & Druzhinina, 2021: 985-1002; Petrochenko, 2018: 131-132). That said, the segment of children's employment in the labor market is 'absorbed' by the segment of older individuals, including students and graduates of secondary and higher educational institutions. Additionally, the growing number of NEET category children, i.e., those who do not receive any professional training or education and are not involved in legal employment, is not taken into account in Eurasian Economic Union member states (Zabelina & Mirzabalaeva, 2019: 307-313). The situation is getting more complicated since the optimal correlation of educational and labor legislations with respect to the permissible forms of child labor use has not been established in the aforementioned states (some of them have been mentioned above). As a result, significant differences are offset when it comes to the employment of children of various age groups who go to school and their peers who have never been educated, first of all, from the perspective of the risks of being involved in the worst forms of child labor. It should be noted that the solution to this problem is also complicated by the reduced efficacy of monitoring in the field of child labor that has been performed selectively or has not been performed at all lately in Eurasian Economic Union member states. That is why it is expedient to continue the practice of developing concepts for the field of child labor in the framework of strategies for social and economic development of Eurasian Economic Union member states with a focus on eliminating child labor based on activating monitoring processes in the field of child labor legislation and the practice of its enforcement in these states.
Conclusion
In the context of establishing institutional arrangements for protecting children's rights in Eurasian Economic Union member states, legal regulation of protection of children who found themselves in difficult circumstances has gained significant momentum (e.g., the term 'a child in difficult circumstances' is used in Art. 4 of the Law of the Republic of Belarus 'On the Rights of a Child'). Legal institutions designed to protect children in difficult circumstances have been established following the adoption of laws on children's rights in Eurasian Economic Union member states that integrated the issues of child labor into the already established comprehensive system of child protection. The new Child Code has gained the most notable momentum in Kyrgyzstan after trade unions of the republic initiated the inclusion of some issues of child labor based on the experience of ILO regional program approval. In this case, regulation of special features typical for identification and social support of children involved in the worst forms
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of social labor is stipulated by legal norms of Section 7 of the Provision for the Procedure of Identifying Children and Families in Difficult Circumstances1. At the same time, development of these children protection institutions in Eurasian Economic Union member states appears not only as adoption of new norms, but as development of the necessary law enforcement level to ensure an effective solution to the issue of child labor eradication. In this regard, it is impossible not to note the specificities of functioning of state labor inspections in Eurasian Economic Union member states the competencies of which include exercise of state monitoring and supervision over compliance of labor legislation, including the issues of child labor. It is these states where weakening of the labor inspection systems is the most noticeable (Lyutov, 2019: 92-106; Goryan, 2017: 9-21), though such a policy is pursued under the guise of employer rights protection against regulatory pressure, the fight against corruption, budget economy, etc. It is important to note that the policy aimed at weakening the labor inspection system, first, undermines the opportunities for effective implementation of a child labor prohibition in Eurasian Economic Union member states, thus enabling preservation of threats and risks for life and health when it comes to child labor, and, second, promotes further uncertainty with respect to solving the problem of child labor eradication in all forms and manifestations and, therefore, strips the states in question of the prospects for long-term stable social and economic development.
References
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Information about the authors
Kubanychbek S. Ramankulov - PhD in Law, Professor, Head of the Civil, Labor and Environmental Law Department, Faculty of Law, Kyrgyz National University named after J. Balasagyn (Kyrgyz Republic, e-mail: ramaks65knu@mail.ru).
Asel S. Ramankulova - post-graduate student, Kyrgyz National University named after J. Balasagyn (Kyrgyz Republic, e-mail: aramankulova@gmail.com).
© K. S. Ramankulov, 2022 © A. S. Ramankulova, 2022
Date of Paper Receipt: March 7, 2022
Date of Paper Approval: April 10, 2022
Date of Paper Acceptance for Publishing: June 24, 2022
