Lee Swepston Visiting Professor, Raoul Wallenberg Institute and Lund University () 1, rte. de Prévessin 01210 Ferney-Voltaire, Phone: (33) 450 40 44 57

Case No. 06-00627 Boimah, et al., v. Bridgestone Americas Holding, Inc., et al.

Expert Report January 4, 2010

I, Lee Swepston, declare that the following is true and correct to the best of my knowledge under the penalties of perjury of the of the .

A. QUALIFICATIONS OF THE DECLARANT

1. I am a graduate of the University of at Chapel Hill (BA), and I obtained a

Juris Doctor degree from the School of Columbia University in 1972. After one year

with a human rights legal non-governmental organization (the International Commission

of Jurists in Geneva) I joined the International Labor Organization (AILO@) in Geneva in

1973, and retired from the ILO in 2007 as the Director of the Fundamental Principles and

Rights at Work Department and Senior Adviser on Human Rights. I am presently a

visiting professor at the Raoul Wallenberg Institute and Lund University (Sweden),

teaching a masters degree course in international human rights and international labor

law.

2. I have also written a number of books and articles on international human rights law, as

well as the ILO=s General Survey on Minimum Age for or Work in 1981;

and the ILO Global Report on Child Labor in 2006 was prepared under my supervision

and with my close editorial involvement. In short, my publications include works

specifically on child labor and international human rights law. See the attached list of

publications.

1 3. As Director of the ILO¶s Fundamental Principles and Rights at Work Department, my

responsibilities included partial management and training responsibility for the

International Programme for the Elimination of , the largest ILO technical

cooperation programme (the largest donor to which is the United States).

4. In my capacity as Senior Adviser on Human Rights for the ILO, I frequently represented

the ILO before the United Nations Committee on the Rights of the Child, the supervisory

body established to examine the implementation of the U.N. Convention on the Rights of

the Child, and other human rights bodies.

5. I have not previously served as an expert for other legal proceedings.

6. A copy of my Curriculum Vitae is attached, as Exhibit A, detailing and expanding the

foregoing information.

B. INTERNATIONAL STANDARDS PROHIBITING CHILD LABOR

7. I have been retained by the Plaintiffs in the case of John Roe I, et al. v. Bridgestone

Corp., et al., Case No. 06-cv-00627, to explain the minimum age requirements under the

relevant international instruments and mechanisms with respect to child labor, and to

provide an overview of national legislation from various countries with regards to the

minimum legal working age.

8. The international law on the subject of the age at which children can work, and the kind

of work they are allowed to do, is clearly defined under numerous international

instruments which are binding in international law on Liberia, and can be compared to

the work done by the children working on the Firestone Liberia plantation. Based on such

instruments, international consensus, and a review of national legislation in 24 countries,

as detailed below, the minimum permissible working age for children is no younger than

2 14 years of age, though there are some exceptions described below. In addition,

dangerous work for children is prohibited below the age of 18 years.

9. The international conventions directly applicable to child labor are the following:

Convention on the Rights of the Child, adopted by the United Nations in 1989 and ratified by Liberia on 4 June 1993.

Minimum Age Convention, 1973 (No. 138), adopted by the International Labour Organization (not ratified by Liberia).

Worst Forms of Child Labour Convention, 1999 (No. 182), adopted by the International Labor Organization (ratified by Liberia on 2 June 2003).

10. Related international Conventions include the International Covenant on Economic,

Social and Cultural Rights, adopted by the United Nations in 1966 and ratified by Liberia

on 22 September 2004; and the ILO¶s Forced Labour Convention, 1930 (No. 29), ratified

by Liberia in 1931.

11. In 1959 Liberia ratified the ILO¶s Plantations Convention, 1958 (No. 110), which lays

down minimum standards for work on plantations, but Liberia denounced the Convention

in 1971 and consequently is no longer bound by it.

12. The ILO adopted other minimum age Conventions before Convention No. 138, but they

were all ³revised´ by that instrument.1 This is a phenomenon of ILO law, by which older

Conventions are closed to further ratification when a revising Convention enters into

force, and any ratifications of the older instruments are replaced when the ratifying State

1 Predecessors to the Minimum Age Convention. The ILO adopted its first Convention on child labor, the Minimum Age (Industry) Convention (No. 5) which prohibited the work of children under the age of 14 in industrial establishments, in 1919. Subsequently nine Conventions on the minimum age of admission to employment were adopted applying to different economic sectors. The Minimum Age (Agriculture) Convention, 1921 (No. 10) and the Minimum Age (Non-Industrial Employment) Convention, 1932 (No. 33) set the minimum age at 14. Other conventions such as the Minimum Age (Sea) Convention (Revised), 1936 (No. 58), Minimum Age (Industry) Convention (Revised) (No. 60), Minimum Age (Fishermen) Convention, 1959 (No. 112) and the Minimum Age (Underground Work) Convention, 1965 (No. 123) set their minimum ages at 15 or higher. Liberia is bound by Convention No. 58, but it is not directly relevant to the present situation.

3 then ratifies the revising instrument.2 In any case, Liberia ratified only one of the older

Conventions on the subject, and that one is not directly relevant to this case. Even if it

had ratified relevant older conventions, they all set a minimum age for employment or

work of 14 years.

C. ILO CONVENTION NO. 138

13. This Convention is the basic international reference on minimum age for employment or

work. C138 states that the minimum age at which children may be employed or work

³shall not be less than the age of completion of compulsory schooling and, in any case,

shall not be less than 15 years´ (Article 2, para. 3); or in developing countries ± if the

ratifying State so elects - 14 years or the end of compulsory schooling (Article 2, para. 4).

14. The basic philosophy of C138 is found in its Article 1:

Each Member for which this Convention is in force undertakes to pursue a national policy designed to ensure the effective abolition of child labour and to raise progressively the minimum age for admission to employment or work to a level consistent with the fullest physical and mental development of young persons.

15. Convention No. 138 was adopted with a recognition by the governments and the organizations of employers and workers who participated in the Conference discussions that the situation in many countries as regards child labour is a complex one. Instead of setting a hard and fast rule that would apply to all situations, the Conference allowed various exceptions for ratifying States. Although Liberia has not ratified this instrument and cannot benefit from these exceptions, the very care taken to define exactly the scope of acceptable child labour in different circumstances evidences the international consensus on this subject.

2 Article 10 of C138.

4 16. In total, 154 nations have ratified the Minimum Age Convention, as of 4 January 2010.3

Other countries that have ratified this Convention include those whose economies are heavily dependant on agriculture such as , , Guyana, and . Most of

LiberiaȂs West African neighbours have ratified the Minimum Age Convention.4 Further, all but

1 of the ILOȂs 53 Member States in Europe have also ratified the Minimum Age Convention.5

17. Under Convention No. 138, light work can be performed at 13 or 12 years (two years younger than the general minimum age). Light work is defined in Article 7, para. 1 as:

(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 programmes approved by the competent authority or their capacity to benefit from the instruction received.

18. In addition, Article 6 provides:

This 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 organisations 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 programme of training mainly or entirely in an undertaking, which programme has been approved by the competent authority; or

3 Minimum Age Convention, International Labor Organization (³ILO´), available at http://www.ilo.org/ilolex/cgilex/convde.pl?C138

4 Burkina Faso, Cóte d¶Ivoire, Gambia, Guinea, Mali, Mauritania, Niger, Senegal, Togo, see id.

5 All ILO European Members except Turkmenistan. See Minimum Age Convention, International Labor Organization (³ILO´), available at http://www.ilo.org/ilolex/cgilex/convde.pl?C138 .

5 (c) a programme of guidance or orientation designed to facilitate the choice of an occupation or of a line of training.

19. There is no indication that the work performed by the children, as described in Plaintiffs¶

Complaint and the Declarations of the child workers, is part of any approved training scheme, so

this provision does not appear applicable and will not be examined further here.

20. Another exemption is allowed for developing countries in Article 5:

1 A Member whose economy and administrative facilities are insufficiently developed may, after consultation with the organisations of employers and workers concerned, where such exist, initially limit the scope of application of this Convention.

««

3. The provisions of the Convention shall be applicable as a minimum to the following: mining and quarrying; manufacturing; construction; electricity, gas and water; sanitary services; transport, storage and communication; and plantations and other agricultural undertakings mainly producing for commercial purposes,(emphasis added) but excluding family and small-scale holdings producing for local consumption and not regularly employing hired workers.

21. Firestone therefore could not claim this exemption for the plantations in question, even if

Liberia had ratified Convention No. 138, because plantation work cannot be excluded from the

application of the convention.

22. Further, the minimum age for employment or work must be higher in certain circumstances, as provided in Article 3:

1. 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 jeopardise the health, safety or morals of young persons shall not be less than 18 years.

23. This higher minimum age may be mitigated in certain circumstances:

6 3. Notwithstanding the provisions of paragraph 1 of this Article, national laws or regulations or the competent authority may, after consultation with the organisations of employers and workers concerned, where such exist, authorise employment or work as from the age of 16 years on condition that the health, safety and morals of the young persons concerned are fully protected and that the young persons have received adequate specific instruction or vocational training in the relevant branch of activity.

24. It is apparent that the kind of work being performed by children as young as 6 years old, as detailed in Plaintiffs¶ Complaint and the child worker Declarations, falls squarely within the provisions of Article 3 of Convention No. 138. This will examined in more detail below.

D. ILO Worst Forms of Child Labor Convention, 1999 (No. 182)

25. The Worst Forms of Child Labor Convention, 1999 (No. 182), which has been ratified by both Liberia and the U.S. , recognizes that it is likely to be impossible for poorer countries to eliminate child labor entirely in the short term, because in many cases there is a direct link between poverty and the existence of child labor. Nevertheless, C182 takes the position that there are certain forms of child labor ± termed the ³worst forms of child labor´ - that cannot be excused by poverty. Article 1 of this Convention provides:

Each Member which ratifies this Convention shall take immediate and effective measures to secure the prohibition and elimination of the worst forms of child labour as a matter of urgency.

26. According to Article 2 of this Convention:

For the purposes of this Convention, the term child shall apply to all persons under the age of 18.

27. Article 3 defines the worst forms of child labour as: (a) all forms of or practices similar to slavery, such as the sale and trafficking of children, debt bondage and serfdom and forced or compulsory labour, 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;

7 (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.

28. Article 4 states that: a. The types of work referred to under Article 3(d) shall be determined by national laws or regulations or by the competent authority, after consultation with the organizations of employers and workers concerned, taking into consideration relevant international standards, in particular Paragraphs 3 and 4 of the Worst Forms of Child Labour Recommendation, 1999.

29. Paragraphs 3 and 4 of Recommendation No. 1906 provide as follows:

3. In determining the types of work referred to under Article 3(d) of the Convention, and in identifying where they exist, consideration should be given, inter alia, to: (a) work which exposes children to physical, psychological or sexual abuse; (b) work underground, under water, at dangerous heights or in confined spaces; (c) work with dangerous machinery, equipment and tools, or which involves the manual handling or transport of heavy loads; (d) work in an unhealthy environment which may, for example, expose children to hazardous substances, agents or processes, or to temperatures, noise levels, or vibrations damaging to their health; (e) work under 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. 4. For the types of work referred to under Article 3(d) of the Convention and Paragraph 3 above, national laws or regulations or the competent authority could, after consultation with the workers' and employers' organizations concerned, authorize employment or work as from the age of 16 on condition that the health, safety and morals of the children concerned are fully protected, and that the children have received adequate specific instruction or vocational training in the relevant branch of activity.

30. The kind of work described in Plaintiffs¶ Complaint and the child worker Declarations falls squarely within the definition of Article 3(d). If account is taken also of Recommendation

No. 190, the kind of work described is consistent with the descriptions in Paragraph 3 (c), (d) and

(e).

E. U.N. CONVENTION ON THE RIGHTS OF THE CHILD

6 A Recommendation in the ILO is a non-binding instrument, often adopted as in this case, to supplement, clarify and expand on the obligations contained in Conventions. Recommendation No. 190 was adopted at the same time as Convention No. 182.

8 31. Liberia has also ratified the U.N. Convention on the Rights of the Child (³CRC´), adopted by the United Nations in 1989. This Convention has been ratified by every nation in the world except Somalia and the United States. While this Convention deals with the rights of the child in a much more general context than do the ILO conventions, which focus on child labor, it does contain one article on this subject:

Article 32

1. States Parties recognize the right of the child to be protected from economic exploitation and 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. 2. States Parties shall take legislative, administrative, social and educational measures to ensure the implementation of the present article. To this end, and having regard to the relevant provisions of other international instruments, States Parties shall in particular: (a) Provide for a minimum age or minimum ages for admission to employment; (b) Provide for appropriate regulation of the hours and conditions of employment; (c) Provide for appropriate penalties or other sanctions to ensure the effective enforcement of the present article.

32. For the purposes of the CRC, a ȃchildȄ is defined as ȃevery human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier.Ȅ7

33. Here again, the conduct alleged in Plaintiffs¶ Complaint and described by the child

worker Plaintiffs in their Declarations falls squarely within the provisions of Article 32, and will

be examined in more detail below. The reference in Article 32(2) to other international standards

includes the ILO standards on child labour, thus reinforcing the interaction and consistency

between the instruments adopted by the ILO and the United Nations.

F. INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS

7 CRC, Article 1.

9 34. The International Covenant on Economic, Social and Cultural Rights adopted by the

General Assembly of the U.N. in 1966 and ratified by Liberia provides in Article 10 (3) that:

ȃdz Children and young persons should be protected from economic and social exploitation. Their employment in work harmful to their morals or health or dangerous to life or likely to hamper their normal development should be punishable by law. States should also set age limits below which the paid employment of child labour should be prohibited and punishable by law.Ȅ

G. MINIMUM AGE FOR EMPLOYMENT OF CHILDREN, INCLUDING THOSE ENGAGING IN HAZARDOUS WORK, SET BY NATIONAL LEGISLATION

36. The minimum age at which most nations allow children to be employed or work is

between 14 and 16 years, in accordance with international law. I have attached as Exhibit

B a sampling of national laws in a separate Appendix of National Legislation on

Minimum Age for Employment of Children. A review of such national legislation

indicates that most countries allow young persons to engage in hazardous work only

between 16 and 18 years of age.

H. Summary conclusions on the applicable international law

37. In summary, based on a review of the foregoing international instruments and the

national legislation of numerous countries, it is evident that there is international

consensus on the minimum working age for children, which is not less than 14 years of

age, though some counties have adopted higher minimum ages. It is also acceptable to

allow children to work at light work from the age of 12 years.

38. Allowing children to work under the age of 12 years, and the use of young persons under

16 years to perform dangerous physical labour in conditions that are likely to harm their

health or physical, mental, spiritual, moral or social development, such that which is

10 alleged in Plaintiffs¶ Complaint and described in the child Plaintiffs¶ Declarations, are

clear and unambiguous violations of two international Conventions that Liberia has

ratified (the UN Convention on the Rights of the Child, and ILO Convention No. 182);

and is also inconsistent with the provisions of the fundamental standards set forth in ILO

Convention No. 138. This is also inconsistent with the International Covenant on

Economic, Social and Cultural Rights ratified by Liberia. The circumstances surrounding

this work in Liberia¶s rubber plantations fall within none of the provisions for flexibility

in application for developing countries allowed in the ILO instruments.

39. Liberia has a poor record of submitting reports which would allow international

supervisory bodies to review the progress it has made in implementing its obligations

under international law. It ratified the Worst Forms of Child Labor Convention (No. 182)

in 2003, and a first report on its implementation was due in 2005. The ILO has made

considerable recent efforts to encourage and assist Liberia to submit the outstanding

reports, and the most recent session of the ILO Committee of Experts on the Application

of Conventions and Recommendations held in November-December 2009 was able to

examine Liberia¶s first report on Convention No. 182. It is not yet known what the report

contained nor what the Committee of Experts might have said about it ± the Committee¶s

report will not be available before the end of February or early March 2010.

40. The United Nations Committee on the Rights of the Child was able to review Liberia¶s

first report on the implementation of the UN Convention on the Rights of the Child only

in 2004, but no reference was made to the situation of children working on Firestone-

owned plantations in the Committee¶s 2004 report. A review of the documentation

submitted to that Committee reveals that it received no information on this situation. It

11 should be stated that international supervisory bodies generally may comment only on the

information they receive, particularly from governments, which means that if the

international supervisory bodies concerned have not been informed of particular areas of

concern, they may not have been able to examine the situation fully. Failure to comment

on every aspect of the situation of child labour, for instance, does not imply an

endorsement of situations not examined.

41. Relevant on this point is also the U.S. Department of State Country Report on Human

Rights Practices (Liberia, 2008), reporting widespread child labor in the country. It does

not address the situation on the Firestone Plantation directly, though it does cite the

existence of the problem in the country generally. While this is not entirely probative, it

is indicative. This report states:

The law prohibits the employment and apprenticeship of children under the age of 16 during school hours; however, the government did not effectively enforce the law. Child labor was widespread in almost every economic sector, in large part due to extreme poverty. Throughout rural areas, particularly where there were no schools, small children continued to take care of younger brothers and sisters and to work on family subsistence farms. In urban areas children assisted their parents as vendors in markets or hawked goods on the streets. During the year there were reports that children were tapping rubber at smaller plantations and private farms. There were also unconfirmed reports that children were forced to work in conditions that were likely to harm their health and safety, such as stone cutting or work that required carrying heavy loads. Some children were engaged in hazardous labor in the alluvial diamond industry and in agriculture.8

I. COMPARING THE SITUATION IN LIBERIA TO THE INTERNATIONAL CONVENTIONS

42. I have reviewed the depositions and declarations of various class plaintiffs, and other

relevant documentation which has been supplied to me. Here follows a summary of the

information contained in these documents, and an analysis of the situation in each respect

compared to the relevant international instruments. The volume of the information

8 See the latest report in full at http://www.state.gov/g/drl/rls/hrrpt/2008/af/119009.htm.

12 received means that it was not practical to examine each deposition or declaration

individually, but they demonstrate a very high degree of consistency.

43. Description of the work done by the children. The descriptions by the deponents are

consistent among themselves in general terms, though they differ to some degree in

detail. The kind of work they describe consists of:

- Cleaning cups of ³cup lump´ (latex remnants) - Gathering latex - ³Slashing´ weeds with a machete or ³hook´ - Carrying latex to collection site (65 - 70 pound bucket) - Applying chemicals to trees - Panel laying (less often)

44. The work described is clearly ³work´ in the sense of the international conventions. The fact that the children concerned were not formally engaged as employees by Firestone is irrelevant. This has been made clear by the two ILO Conventions (Nos. 138 and 182), both of which refer to ³employment or work´ in order to make it clear that any kind of activity is covered, whether or not under an employment relationship, and even whether or not it is remunerated.

45. It also clearly is not the kind of ³light work´ which C. 138 allows to be performed as young as 12 years old. Light work is defined in Article 7(1) of C. 138 as work which is ³(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 programmes approved by the competent authority or their capacity to benefit from the instruction received.´

46. The work described does fall within the description of dangerous work in Article 3 of C. 138: 1. 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 jeopardise the health, safety or morals of young persons shall not be less than 18 years. While C. 138 has not been ratified by Liberia, it is bound by C. 182 which in Article 3 describes as a ³worst form of child labour´: (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. This kind of child labour is to be abolished with immediate effect for all children under the age of 18.

47. This kind of work also falls within the provisions of Article 32 of the UN Convention on the Rights of the Child which ³recognize(s) the right of the child to be protected from economic exploitation and 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.´

13 48. Ages of children. Children describe assisting their fathers (in some cases uncles) from as young as 7 years old, while others began at older ages. This falls entirely outside the provisions of all the instruments detailed above, and constitutes a gross violation of international standards on child labor. The youngest permissible age for any kind of work is 12 years old, and then only if it is light work. The kind of regular, heavy work described here should not be performed before the age of 14; and not before the age of 18 if it is hazardous.

49. Motivation for work. There is consistent information that these children work to assist their fathers because if they do not the fathers cannot meet the daily quotas and the family would not get paid in full. There is also information that Firestone supervisors encourage the children to work to allow fathers to meet quotas. All of them state in their declarations that they did not seek to work on the plantation, but that they felt compelled to do so in order to prevent the family from starving. This would appear to be forced or compulsory labour because the children are compelled to work, especially when they are very young. Forced labor of children is one of the worst forms of child labor explicitly prohibited in C. 182.

50. Conditions under which work performed. Some of the children described beginning around 5.30 in the morning, and working until 1.30, while others stated that they worked from 4 a.m. until late afternoon, sometimes returning after finishing school, with details differing among children. Several indicated that they were aware of the ³no child labour´ policy, but that the supervisors continued to encourage them to work anyway. They were told to hide from the ³big men´ or visitors on the estate, though encouraged by supervisors to work to allow families to meet daily quotas.

51. From the point of view of safety and health at work, the children stated consistently that they were working without protective gear such as gloves and goggles (and affirming consistently that such gear was not provided to anyone on the plantation). In addition, most of the children describe various injuries received while working, and state that as they were not recognized employees they could not be treated for these occupational injuries by Firestone medical facilities.

52. Finally, as the children are not formal employees, they do not get paid directly by Firestone.

53. Conventions Nos. 138 and 182 prohibit work ³which by its nature or the circumstances in which it is carried out is likely to jeopardise the health, safety or morals of young persons´. It is thus not only the nature of the work itself, but also the circumstances in which it is performed, that put into jeopardy the health and safety of the young persons concerned. These conditions of work thus form and additional violation of these conventions.

54. Schooling. Schooling appears to be provided for children who are registered on the Firestone estate, but the years that the children say they have attended vary from one year up. Attendance is in afternoons for most part, for 3 ± 4 hours, but this varies a bit. The children sometimes indicated that work they performed interfered with their ability to perform school work due to fatigue. Only children with identification numbers allowed to go to school, and some testified that their fathers were unable to obtain an identification number for them.

14

55. The Convention on the Rights of the Child provides in paragraph 32(1) that children have “the right … to be protected from economic exploitation and from performing any work that is likely to be hazardous or to interfere with the child's education,(emphasis added) or to be harmful to the child's health or physical, mental, spiritual, moral or social development.” The evidence makes it clear that the work performed is interfering with their education.

56. The “no child labor” Policy. It appears from the documentation that Firestone adopted a policy prohibiting child labour on the estate in 2000, renewed in 2005, declaring that underage, or , children should not work on the plantation. Note that the original policy, as I read it, specified no particular age below which young persons would be considered children, but there may be guidance that I have not seen. The 2005 restatement of the policy was the first time I have seen that it was specified that the minimum acceptable age for work is 18. Different depositions indicate, however, either no awareness of the policy, or knowledge that it existed but few specifics. A lack of implementation is also evident, as supervisors explicitly encouraged non-compliance. Some children indicated that they continued assisting their fathers after the issuance of the policy, with the knowledge and encouragement of supervisors. There was also some information indicating that the policy was in fact put into practice on occasion, but clearly not consistently.

57. The mere existence of a stated policy without strong enforcement allowed the continuation of child labor on the estate.

58. Entry into effect of the conventions concerned. Among the objections raised by

defendants at an earlier stage in these proceedings was the argument that since the

International Labour Organization’s (ILO) Worst Forms of Child Labour Convention

(No. 182) was not adopted until 1999, and Liberia did not ratify it until 2003, Firestone

was not bound by it until 2003, or conceivably from its adoption in 1999. While it is a

legal question whether an international consensus exists with respect to a law of nations

norm even if a specific country has not ratified a convention or treaty that is a primary

source of the norm, even if Firestone’s position is correct, which I do not think is the

case, I nevertheless conclude that Defendants are in violation of at least one other

international convention, the Convention on the Rights of the Child, which Liberia

ratified in 1993. This convention differs from the ILO Conventions concerned only in the

15

EXHIBIT A Lee St. Clair Swepston, III Curriculum Vitae

Born: 5 July 1947, Annapolis, , United States of America

Civil Status: Married

Citizenship: USA

Languages: English, French, Spanish - some German, Italian and Portuguese

Address:

1, rte. de Prévessin Telephone: (0033) 01210 Ferney-Voltaire 450.40.44.57 France Mobile: (0033) 621.50.34.35 E-mail: lswepston@gmail. com

Education

1965 - 1969: University of North Carolina at Chapel Hill (USA) - Bachelor of Arts in English literature

1969 - 1972: Law School of Columbia University, , New York (USA) - Juris doctor

Work experience

1972 - 1973: Legal Officer, International Commission of Jurists (a human rights non- governmental organization), Geneva, .

1973 - 2007: International Labour Office, Geneva, Switzerland

• 1981 - 1985: Regional Adviser on International Labour Standards for English-speaking Africa.

• 1987 - 1991: Assistant to Director of the International Labour Standards Department

• 1991: Appointed Human Rights Coordinator.

• 1993: Appointed Chief of the Equality Branch, promoted to D.1. • 2004: Appointed Director, Department of Fundamental Principles and Rights at Work, and Senior Adviser on Human Rights.

• 2007: Retired from ILO, became consultant.

Major representational responsibilities at ILO

• Representing ILO for relations with other international organizations as concerns human rights, including representation before UN treaty bodies, 1993 - 2007;

• Chief of ILO delegation at the Commission on Human Rights, 1993 - 2005, and at the Human Rights Council, 2006 - 2007

• Representing ILO for relations with other international organizations as concerns human rights, including representation before UN treaty bodies, 1993 - 2007;

• Director-General's representative, annual sessions of the Independent Expert-Advisers on the Declaration of Fundamental Principles and Rights at Work, 2006 and 2007

• Deputy Representative of Director-General, Committee on the Application of Standards, International Labour Conference 2000 - 2005 ;

• Deputy Representative of Director-General, Committee on the Declaration of Fundamental Principles and Rights at Work, International Labour Conference 1998

• Deputy Representative of the Director-General, Committee on the Capacity of Members, International Labour Conference 2007

• Responsible for adoption of the Indigenous and Tribal Peoples Convention, 1989 (No. 169), and for its supervision 1990 - 2005

• Chief of ILO delegations at the World Conference on Human Rights, 1993 and the World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance, 2001

• Presented testimony on ILO standards to committees of the Russian Duma and the Iranian Majlis

• Testimony to Committee on Employment and Social Affairs, European Parliament, 2004 and 2006

• Represented the ILO at the UN Permanent Forum on Indigenous Issues, 2001 - 2007 • Responsible for ILO coordination of Regional technical cooperation project with the Asian Development Bank, 2001 - 2002, and principal ILO author of Core Labor Standards Handbook, ADB and ILO, 2006 (see www.adb.org/Documents/Handbooks/Core-Labor- Standards/CLS-Handbook.pdf)

• Member of Scientific Committee for World Forum of Human Rights, 2004 and 2006 (Nantes, France)

• Member of ILO missions to prepare annual Director-General's reports on The Situation of Workers in the Occupied Arab Territories, 1993 - 2005

• Led ILO mission to explore return of to the ILO, 1993

Teaching:

• Masters Degree in International Human Rights and International , Raoul Wallenberg Institute and Faculty of Law, Lund University, Sweden, since 2006 (created and taught)

• International Training Centre of the ILO, Turin, : At regular intervals since about 1990 - courses on ILO standards, human rights, equality, impact of globalization on workers' rights, indigenous and tribal peoples, judges' training in international labour rights

• Regular lectures to visiting students at the ILO, 1980 - 2007

• Guest Lecturer on ILO, human rights and economic, social and cultural rights at (inter alia):

- Columbia University Law School, New York - Harvard Law School, Boston - Cornell University, New York - Lund University, Lund, Sweden - University of Beijing, - Wuhan University, China - International Institute of Human Rights, Strasbourg - Political Science Faculty, University of Paris - University of Heidelberg - University of Western - University of Toronto - York University, Toronto - Tilburg University, the Participation in recent conferences:

• Economic Globalization, Global Justice and CSR, hosted by EconomEtica (Centro interuniversitario per l'etica economica e la responsabilità sociale di impresa), Milan, 20 April 2007, "Key speaker" in session on Human Rights in the Economic Sphere: international law, social clauses and CSR standards. See http://www.econometica.it/.

• Human Rights, Indigenous Rights and the Extractive Industry Workshop, hosted by IPIECA (International Petroleum Industry Environment Conservation Association), Calgary, , 28 June 2007. Workshop report including my presentation on ILO Convention No. 169 and industry available at http://www.ipieca.org/activities/social/hr_workshop_series.php #calgary.

• Workshop on UN Treaty Body Reform, University of Mannheim and Office of the UN High Commissioner for Human Rights, Berlin May 2007.

• IPU, ILO, OHCHR seminar on Migration: the human rights perspective, Seminar for members of parliamentary committees working on human rights and other committees addressing migration issues, Geneva, 24 - 26 October 2007. Presented The international legal framework - Human rights law and labour conventions. Report available at http://www.ipu.org/splz-e/hrbodies07.htm.

• The Charter and Human Rights at Work: 25 Years Later, University of Western Ontario, October 2007, invited speaker on international labour law (proceedings being prepared for publication). See http://www.law.uwo.ca/conferences/program.html.

• Workers' Rights, Human Rights: Making the Connection, 16 and 17 November 2007, Centre for Research on Work and Society, York University, Toronto - Keynote address on workers' rights as human rights and responsibilities of business.

• Legislative opportunities to improve corporate accountability at EU level, European Coalition for Social Justice, Brussels, May 2008, invited speaker on workers' rights. Documentation at

.en=ۃhttp://www.corporatejustice.org/spip.php?article67

Current Activities: • Consultant to Government of on International Labour Standards, and adviser to International Labour and Development Research Centre, Kainan University, Taiwan (since 2008).

• Adviser to the International Labour Office for adoption of a proposed international instrument on HIV/AIDS and the World of Work, International Labour Conference, Geneva, June 2009 and June 2010.

• Chittagong Hill Tracts Commission, member since 2008. Represented Commission at Universal Periodic Review of Bangladesh, United Nations Human Rights Council, February 2009.

• Drafting document for guidance for oil and gas industry on indigenous and tribal peoples, Social Responsibility Working Group, International Petroleum Industry Environmental Conservation Association (IPIECA) (completion envisaged first half 2009).

• Consultant to the International Labour Office for a draft Decent Work Country Programme for the , 2009. • Consultant to Swedish Sami Parliament on land rights.

• Drafting Handbook for Members of Parliament on Human Rights and Migration, for the Inter-Parliamentary Union, International Labour Office and Office of the UN High Commissioner for Human Rights (2009).

List of Publications

I. On the ILO and human rights

Books and chapters

The International Labor Organization: The International Standards System and Basic Human Rights, Westview/HarperCollins, 1995 (with Bartolomei and von Potobsky).

International Labour Law, in Comparative Labour Law and Industrial Relations in Industrialised Market Economies, IXth edition, ed. Blanpain (Wolters Kluwer, 2007). (See also earlier editions.)

Adoption of Standards by the International Labour Organization: Lessons and Limitations, in Human Rights Standards: Learning from Experience, International Council on Human Rights Policy, 2006 (paper accessible at

(AN=ۃhttp://www.ichrp.org/public/workingpapers.php?id_projet=19

'International Labour Organization (ILO) Standards and Human Rights', in The Universal Declaration of Human Rights: Fifty Years and Beyond, ed. Danieli, Stamatopoulou and Dias (Baywood, New York, 1999).

'Human Rights Complaints Procedures of the International Labor Organization', in Guide to International Human Rights Practice (3rd ed.), ed. H. Hannum (Transnational, New York, 1999) (also in earlier editions).

The Universal Declaration of Human Rights and ILO Standards: A comparative analysis on the occasion of the 50th anniversary of the Declaration's adoption, ILO, 1998 (2nd edition 2001).

International Labour Standards, in Human Rights: International Protection, Monitoring, Enforcement, ed. Janusz Symonides. Burlington, VT: Ashgate Publishing, 2004.

Complaint Procedures of the International Labour Organisation, in Human Rights: the International Petition System, ed. M. E. Tardu (Oceana, New York, 1985).

Contribution of the Declaration on Fundamental Principles and Rights at Work to the Elimination of Child Labour, in Child Labour in a Globalized World: A Legal Analysis of ILO Action, ed. Nesli, Nagler and Pertile, Ashgate, England, 2008. The International Labour Organization and Human Rights, in International Protection of Human Rights: A Textbook, Krause and Scheinen ed., Institute for Human Rights, Abo Akademi (), 2009.

International Labour Organization, in Encyclopedia of Human Rights, Oxford University Press, New York, 2009.

The International Labour Organization and the Quest for Social Justice, 1919- 2009: An intellectual history of the ILO , with Rodgers, Lee and Van Daele, International Labour Office, Geneva, 2009.

Articles

'Human rights law and : Development through ILO supervision', International Labour Review, Vol. 137, No. 2 (1998), Special Issue: Labour rights, Human rights.

'The Convention on the Rights of the Child and the ILO', Nordic Journal of International Law, Vols. 61/62, 1992-1993.

'Child Labour: Its Regulation by ILO Standards and National Legislation', International Labour Review, Vol. 121, No. 5 (1982).

'Remuneration and International Labour Standards', in Bulletin 19 of the International Encyclopaedia for Labour Law and Industrial Relations, 1990 (with G. Starr)

II. Indigenous and Tribal Peoples

'The Indian in Latin America: Approaches to Administration, Integration and Protection', in Buffalo Law Review, vol. 27, No. 4, Fall 1978.

International Labour Standards and the Protection of the Land Rights of Indigenous and Tribal Populations (with Roger Plant), International Labour Review, Vol. 124, No.1 (1985).

'Indigenous and tribal populations: A return to centre stage', International Labour Review, Vol. 126, No. 4 (1987).

'A New Step in the International Law on Indigenous and Tribal Peoples: ILO Convention No. 169 of 1989', in City University Law Review, Vol. 15, No. 3, Fall 1990.

'The Adoption of the Indigenous and Tribal Peoples Convention, 1989 (No. 169)', in Law and Anthropology: Internationales Jahrbuch für Rechtsanthropologie, vol 5, 1990.

'The ILO and Indigenous and Tribal Peoples', in L. van de Fliert, Indigenous Peoples and International Organizations, with Manuela Tomei (Spokesman, Nottingham, 1994).

A Guide to ILO Convention No. 169, with Manuela Tomei (ILO, Geneva, 1995) 'Protection of Vulnerable Groups by the International Labour Organisation', in The Living Law of Nations, ed. Alfredsson & Macalister-Smith (Engel, Kehl, 1996).

'Latin American approaches to the 'Indian Problem', International Labour Review, No. 117 (1978).

EXHIBIT B APPENDIX OF NATIONAL LEGISLATION ON MINIMUM AGE FOR EMPLOYMENT OF CHILDREN

1. Argentina1

It is forbidden to employ children under the age of 14 in any kind of activity. The public authority may, however, authorize these children to work in enterprises where members of the family are employed, provided the enterprise is not engaged in arduous, unhealthy or hazardous activity. It is not permitted to employ children above the age of 14 who have not completed compulsory schooling, except when the public authority has expressly authorized the minor to perform work, provided the child’s work is indispensable for his or her maintenance or that of his or her family, and further provided that he or she has completed a minimum of number of years in school. It is forbidden to employ workers under the age of 18 for arduous, unhealthy, or hazardous work.

2. Australia2

The Children (Care and Protection) Act 1987 (NSW) prohibits the employment of children under 15 in a limited number of industries and where “the child’s physical or emotional well-being is put at risk”. Western Australian legislation prohibits the full-time employment of children under the age of 15 and for indecent purposes, but permits restricted employment outside school hours. Children younger than school-leaving age in the Australian Capital Territory are prohibited from being employed, except in light work and family businesses: Children and Young People Act 1999 (ACT). Victorian law requires persons employing children under the age of 15 to obtain a fixed-term permit (Community Services Act 1970 (Vic) pt 3, div 9).

3. Bangladesh3

Existing legislation is antiquated and fragmented and deals only with children working in the formal sector. There is no single code or law dealing with this area. However, currently there are efforts underway between the Ministry of Labor and Employment and the ILO's International Program on the Elimination of Child Labor (IPEC) to review of existing child labor laws with a view to removing anomalies, fixing a uniform minimum age for admission to work at 14 years (18 years for hazardous occupations), and

1 National Labor Law Profile of , ILO, available at http://www.ilo.org/public/english/dialogue/ifpdial/info/national/arg.htm

2 National Labor Law Profile of , ILO, available at http://www.ilo.org/public/english/dialogue/ifpdial/info/national/aus.htm

3 Child Labor and Responses in South Asia (Bangladesh), ILO, available at http://www.ilo.org/public/english/region/asro/newdelhi/ipec/responses/bangladesh/nation al.htm prohibiting the employment of children in hazardous operations in shops and other establishments.

Currently, there are a number of statutes, which stipulate the minimum age at which children can legally work in certain sectors. These are:

· Mines (Mines Act 1923) - 15 years (with medical certificate of fitness);

· Shops and other commercial establishments (Shops and Establishments Act, 1965): 12 years;

· Factories (Factories Act, 1965): 14 years (with medical certificate of fitness);

· Railways and ports (Employment of Children Act, 1938): 15 years;

· Workshops where hazardous work is performed (Employment of Children Act, 1938): 12 years;

· Tea gardens (Tea Plantation Labor Ordinance, 1962): 15 years.

4. Ethiopia4

Under Article 89 of the Labor Proclamation, the statutory minimum age for young workers is 14 years. Beyond the age of 14 years, no person may employ a child for work that is inappropriate or that endangers his or her life or health (Article 89 (2) and (3)). Special measures of protection of young workers (e.g., work in transport, night work, work in arduous, hazardous or unhealthy activities, such as mining) may be taken by the Minister. Work performed under the regime of a vocational training course is exempted from this protection (Article 89 (5)).

The Ethiopian Constitution gives children general protection from exploitative labor practices (Art. 36).

4 National Labor Law Profile of Ethiopia, ILO, available at http://www.ilo.org/public/english/dialogue/ifpdial/info/national/eth.htm

2 5. Fiji5

The Employment Act defines a “child” as a person who has not attained the age of 15 and “young person” as one who is over the age of 15 but under the age of 18. Section 63 bans the employment of children in any industrial undertaking. Section 59 also prohibits the employment of children under the age of 12, except where the child is engaged in light work in a family agricultural undertaking.

Section 61 protects against children working in occupations which are dangerous, unsuitable or injurious to health.

6. Finland6

According to the Young Workers’ Act (1993), a valid may be concluded by a person with 15 years of age on condition that he or she is no longer liable to compulsorily attend school.

The Decree on the Protection of Young Workers (1986, as amended) contains an enumeration of jobs considered unsuitable for persons under the ages of 18 or 16. These jobs include work involving risk of exposure to detrimental radiation, work performed under risk of violence, work with psychiatric patients etc. However, the competent labor protection authority may grant exceptions from these rules on condition that such an exception is deemed necessary and the young person in question will work under proper surveillance. Exceptions from the rules on minimum age may also be granted for cases where a child under 14 is occupied as a performing artist or an assistant in an artistic or cultural performance.

7.

The employment of children is forbidden under the Young Workers Protection Act. This applies to children under 15 years and to those who are older but still obliged to attend full-time schooling (ss 5(1) and 2(1) and (3)), in accordance with ILO Convention No. 138. In very exceptional cases, these children can be employed, for instance for the purpose of occupational therapy (s 5(2)). However, the type of work must be suitable for the child. The employment of children is supervised by the industrial inspectorate of each State.

5 National Labor Law Profile of Fiji, ILO, available at http://www.ilo.org/public/english/dialogue/ifpdial/info/national/fiji.htm

6 National Labor Law Profile of Finland, ILO, available at http://www.ilo.org/public/english/dialogue/ifpdial/info/national/fin.htm

3 Workers under the age of 18 may perform an apprenticeship or traineeship. The employer then must observe a special protection procedures set out in the above Act. There is a ban on dangerous work and underground mining work.

8. Ghana7

The minimum for entering the labor market is 16 years. Sections 58 to 61 of the Labor Act prohibit the employment of young persons in hazardous work, which is defined to include work likely to expose the person to physical or moral hazard. A young person is defined as a person who is above 18 years of age but below 21 years. The Minister for Labor may determine the exact types of work that constitute hazardous work. Section 58(3) specifies that an employer must not employ a young person in underground mining work. Registers of young persons employed in undertakings must be maintained.

9. Guyana8

The statutory minimum age for employment is 15 years. Where any work is likely to jeopardize the health, safety and morals of young persons, the age of employment shall not be less than 18 years. Persons under 18 shall not be employed during the night.

10. India9

The Constitution of , through various articles enshrined in the Fundamental Rights and the Directive Principles of State Policy, states that:

§ No child below the age of 14 years shall be employed to work in any factory or mine or engaged in any other hazardous employment (Article 24);

§ The State shall direct its policy towards securing that the health and strength of workers, men and women and the tender age of children are not abused and that they are not forced by economic necessity to enter vocations unsuited to their age and strength (Article 39-e);

7 National Labor Law Profile of Ghana, ILO, available at http://www.ilo.org/public/english/dialogue/ifpdial/info/national/ghana.htm

8 National Labor Law Profile of Guyana, ILO, available at http://www.ilo.org/public/english/dialogue/ifpdial/info/national/guy.htm

9 Child Labor and Responses in South Asia (India), ILO, available at http://www.ilo.org/public/english/region/asro/newdelhi/ipec/responses/india/national.htm

4 § Children shall be given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and shall be protected against moral and material abandonment (Article 39-f);

§ The State shall endeavor to provide within a period of 10 years from the commencement of the Constitution for free and for all children until they complete the age of 14 years (Article 45).

A number of legislative initiatives have been undertaken in respect of child labor at both the federal and state levels, including:-

§ The Child Labor (Prohibition and Regulation) Act, 1986: This prohibits the employment of children below the age of 14 years in 13 occupations and 57 processes that are hazardous to the children's lives and health10. These occupations and processes are listed in the Schedule to the Act;

§ The Factories Act, 1948: This prohibits the employment of children below the age of 14 years. An adolescent aged between 15 and 18 years can be employed in a factory only if he or she obtains a certificate of fitness from an authorized medical doctor. The Act also prescribes four and a half hours of work per day for children aged between 14 and 18 years and prohibits their working during night hours.

11. Ireland11

The statutory minimum age is 16 years old, except for

combined work training and placement/in plant training schemes, ·

light work not interfering with school/training program and cultural, ·

artistic, sports and advertising activities. ·

Children between the ages of 16 and 18 are protected under the Protection of Young Persons (Employment) Act 1996. This establishes strict limits with respect to night work

10 The Child Labor (Prohibition and Regulation) Act, 1986 available at http://www.kerala.gov.in/dept_lab/act9.pdf [hereinafter Child Labor Act]

11 National Labor Law Profile of Ireland, ILO, available at http://www.ilo.org/public/english/dialogue/ifpdial/info/national/ire.htm

5 for children and young persons, and it obliges employers to ensure that young people have working conditions which suit their age, including protection against economic exploitation. Also, employers are obliged to ensure that young persons are not engaged in work likely to harm safety, health or development/education.

12. Japan12

The Japanese Constitution bans child labor (Art. 27(3)) and the Labor Standards Law (LSL) stipulates that children under the age of 15 must not be employed, except for those working for motion picture production and theatrical performances (Art. 56). Children under age 18 may be employed outside of school hours in light labor that is not dangerous or harmful. Underground work is also forbidden.

13. Jordan13

No minor under 17 can be employed for work involving danger, hardship or health hazards. Such types of work are defined by decisions issued by the Minister upon consultation with the competent official bodies.

14. Kenya14

The Employment Act, in part IV, accords special protection to juveniles. Under section 2 a “juvenile” is defined as a “child or young person”; and “child” means an individual who has not attained the age of 16, whereas “young person” means a person who has not attained the age of 18 years.

With the adoption of the Children Act, 2001, a new and conflicting definition has been established of which defines "child" as any human being under the age of 18 years.

The regulations for juveniles, minors under 18, under the Employment Act, are as follows:

12 National Labor Law Profile of , ILO, available at http://www.ilo.org/public/english/dialogue/ifpdial/info/national/jp.htm

13 National Labor Law Profile of Jordan, ILO, available at http://www.ilo.org/public/english/dialogue/ifpdial/info/national/jo.htm

14National Labor Law Profile of , ILO, available at http://www.ilo.org/public/english/dialogue/ifpdial/info/national/ken.htm

6 Children under 16 should not be employed in any industrial undertaking or deal with machinery, unless they are apprentices. “Industrial undertaking” means any of the following: any activity which relates to surface or underground extraction (such as mines and quarries), any factory and any form of construction and installation (such as buildings, railways, roads, tunnels, bridges, canals, sewers, drains, gas work, telegraphic, telephonic or electrical installations, or water works), and to transportation and handling of passengers or goods by road, rail or inland waterway. This covers most of the potentially hazardous working conditions.

15. Republic of Korea15

The employment of children under the age of 15 is generally banned (Art. 62 (1) of Labor Standards Act (“LSA”)). There may be exceptions made on a case-by-case basis with the permission of the Ministry of Labor, as long as compulsory education is not affected (Art. 62(2) of the LSA). Children under age 18 cannot be employed at night or in dangerous or hazardous workplaces (Arts. 63 and 68 of the LSA).

16. Latvia16

Under section 37 of the Labor Law, it is prohibited to employ a person under the age of 15 or one who is still acquiring basic education (up to the age of 18) in a permanent position. These persons are children within the meaning of the Labor Law. However, there are several exceptions from this general rule. In exceptional cases, children from the age of 13, provided their parents (or guardians) have given written consent, may be employed outside of school hours to do light work which is not harmful to the safety, health, morals and development of the child.

The Cabinet of Ministers determines the jobs in which it is permitted to employ children. The Labor Law stipulates that where one of the parents (or guardian) has given written consent and the State Labor Inspection Committee has granted a permit, a child may be employed in cultural, artistic, sporting and advertising activities as long as such employment is not harmful to the safety, health, morals and development of the child. Such employment however shall not interfere with the education of the child.

According to the Labor Law, it is prohibited to employ adolescents (persons between the age of 15 and 18 who are not considered children) in jobs in special conditions, which are

15 National Labor Law Profile of Republic of Korea, ILO, available at http://www.ilo.org/public/english/dialogue/ifpdial/info/national/kor.htm

16 National Labor Law Profile of , ILO, available at http://www.ilo.org/public/english/dialogue/ifpdial/info/national/lat.htm

7 connected with increased risk to their safety, health, morals and development. The Cabinet of Ministers determines the jobs in which the employment of adolescents is prohibited and exceptions when employment in such jobs is permitted in connection with occupational training of the adolescent.

17. Lithuania17

A person acquires full legal capacity in labor relations when he or she reaches the age of 16 years. The recruitment of persons under the age of 16 is allowed with the written consent of the school and of one of the child’s parents or his or her statutory representative, as well as with the permission of his or her attending pediatrician (Art.104 (3) of the Labor Code).

Persons under the age of 16 shall be assigned to perform easy works that are not hazardous and do not affect their physical and psychological development. Upon the employment of a person under the age of 16, employers are obliged to notify the Office of Labor Inspectorate.

Employment of persons who are under 18 years of age shall be prohibited in respect of:

Work that is beyond their physical and psychological capacity; ·

Work involving exposure to toxic, carcinogenic agents causing genetic mutation · or which are harmful to health;

Work involving possible exposure to ionising radiation or other harmful and/or · dangerous agents;

Work that have a higher risk of accidents or occupational hazards and work which · a young person might not be able to perform safely due to lack of experience or attention to safety.

17 National Labor Law Profile of , ILO, available at http://www.ilo.org/public/english/dialogue/ifpdial/info/national/li.htm

8 18. Malta18

Schooling is compulsory in until the age of 16, although a person may at any time obtain permission from the Education Division to forego schooling and seek employment due to particular family reasons.

The legal provisions in place also prohibit from working in situations where the work is objectively beyond their physical or psychological capacity, involves harmful exposure to a variety of agents and chemicals – including toxins, carcinogens, biological agents and radiation - involves risk of accident which finds youths particularly ill- prepared, and involves health risks because of extreme cold or heat or from noise or vibration. Derogations from any such prohibitions are possible only in cases where such exposures are indispensable and are certified by vocational training.

19. Pakistan19

Article 11(3) of Pakistan’s Constitution expressly prohibits the employment of children below the age of 14 in any factory, mine or other hazardous employment. In addition, the Constitution makes it a Principle of Policy of the State of Pakistan to protect the child, to remove illiteracy and provide free and compulsory education within the minimum possible period and to make provision for securing just and human conditions of work, ensuring that children and women are not employed in vocations unsuited to their age or sex.

The Factories Act, 1934 allows for the employment of children between the ages of 14 and 18 years provided that each adolescent obtains a certificate of fitness from a certifying surgeon. Under section 52 of the Act, a child or adolescent who wishes to work in a factory, or, his or her parent or guardian, or the factory in which such person wishes to work, may apply for the person to be examined to ascertain his or her fitness for such work.

20. Russia20

18 National Labor Law Profile of Malta, ILO, available at http://www.ilo.org/public/english/dialogue/ifpdial/info/national/mal.htm

19 National Labor Law Profile of Pakistan, ILO, available at http://www.ilo.org/public/english/dialogue/ifpdial/info/national/pak.htm

20 National Labor Law Profile of the Russian Federation, ILO, available at http://www.ilo.org/public/english/dialogue/ifpdial/info/national/rus.htm

9 The employment of persons under 18 years of age in hazardous or dangerous conditions, in the underground, as well as in jobs that harm their moral development and health (gambling business, cabarets and night clubs, in production cycles, transportation and sale of alcoholic beverages, tobacco goods, narcotic and toxic compounds) is prohibited. It is prohibited for minors to carry or move workloads in excess of the limits set for them. The list of jobs at which work of persons under 18 years of age is prohibited, as well as allowable workload norms for them, is established by the Government of the Russian Federation with due account for consultations with All- associations and All-Russia associations of employers.

21. Sri Lanka21

Under the Constitution of Sri Lanka, 1978, Article 27(13), Directive Principles of State Policy and Fundamental Duties, the State pledges to 'promote with special care the interest of children and youth so as to ensure their full development, physical, mental, moral, religious, and social, and to protect them from exploitation and discrimination'.

In addition, Article 22 of the Draft Constitution (August 2000), entitled Special Rights for Children, gives constitutional guarantees to the right of a child to be protected from abuse and to not be employed in any hazardous activity. It also defines conclusively a child as a person under the age of 18 years.

The minimum age for employment of children was raised from 12 to 14 years in December 1999 by an amendment to the Employment of Women, Young Persons and Children Act (No. 47), 1956. At present, the minimum age of employment in all sectors other than the plantation sector is 14 years.

22. South Africa22

The Basic Conditions of Employment Act (BCEA) makes it a criminal offence to employ a child under the age of 15 or under the minimum school-leaving age, if this is older. Even beyond the age of 15 years, no person may employ a child for work that is inappropriate or that place his or her well-being, education, physical or mental health or spiritual, moral or social development in jeopardy.

21 Child Labor and Responses in South Asia (Sri Lanka), ILO, available at http://www.ilo.org/public/english/region/asro/newdelhi/ipec/responses/srilanka/national.h tm

22 National Labor Law Profile of South Africa, ILO, available at http://www.ilo.org/public/english/dialogue/ifpdial/info/national/sa.htm

10 23. Trinidad & Tobago23

The Children Act, states that a child under the age of 12 cannot be employed, while a person under the age of 14 shall not be employed in an industrial undertaking or vessel, and may only be employed in a family undertaking.

The Children (Amendment) Act, 2000, amending the Children Act, changed the definition of a “child” from a person under the age of 14 to a person under the age of 18. It defines a “young person” as a child over the age of 14 and under the age of 18.

The Occupational Safety and Health Act24 prohibits the employment of young persons on dangerous machines.

A Tripartite Committee is currently considering the ratification of Convention No. 138 concerning the minimum age for admission to employment. Until such time, technically the minimum age for employment in remains at age 14.

24. United States

In the US, work that is detrimental to children’s well-being is called “oppressive child labor” under the Fair Labor Standards Act (“FLSA”) of 1938. The FLSA is the main legal instrument ensuring the safety and protection of child workers.

The FLSA sets 14 as the minimum age for most non-agricultural work. In respect of agricultural employment, FLSA states that the minimum age for employment during school hours is 16, while the minimum age outside school hours is 14.25 However, in respect of hazardous occupations in agriculture, the FSLA provides that the minimum age is 16.

There is a myriad of state child labor laws that set the minimum age for employment and minimum age for employment in hazardous occupations. The following table summarizes the minimum ages set in the various state child labor legislation:-

23 National Labor Law Profile of Trinidad & Tobago, ILO, available at http://www.ilo.org/public/english/dialogue/ifpdial/info/national/tt.htm

24 This statute has been assented to on 30 January 2004 but is awaiting proclamation

25 US Department of Labor, available at http://www.dol.gov/elaws/faq/esa/flsa/026.htm

11 State Minimum Age M i n i m u m A g e f o r Hazardous Occupations During School Outside School (“HO”) Hours Hours 16 14 18 16 14 16 16 14 16 18 12 16 16 if not required to attend school 16 12 18 16 14 18 (separate agriculture child labor law) - 14 18 18, 16 if not legally 14, 16 required to attend 15 for pineapple school harvesting 10 in coffee harvesting 16 - - Illinois 12 10 - - 12 - 16 14, 12 migratory 18 generally, 16 are labor (younger with considered covering permit from Labor migrant labor where Commissioner applicable upon court order) 16 unless excused - - by superintendent (14 if in direct of schools contact with hazardous machinery or substances) Massachusett 16 - 16 s 16 13 18 16 12 18 for some HO and 16 for others 16 14 16 14 - - New18, 16 if not 12 16 Hampshire enrolled in school

12 16 12 18 for some HOs and 16 for some HOs New 16, 14 in hardship - 16 New York 16 14, 12 in some 16 agriculture cases 14 - Law specifies that minors under 16 are not prohibited from doing ordinary farm work or from operating farm machinery 16 14 16 16 12, 9 if picking 18 (16 with certificate of berries or beans for training) intrastate use with parental consent - - Seasonal farm - worker under 14 not to be required to work South16 14, 12 with parental 16 Carolina approval - - - 16 12, no limit with 18 parental consent 16, 14 with -16 certification 16 14, 12 with parental 18 (several HOs), 16 (a consent few) 18 1 4 , 1 2 h a n d 18 (some) and 16 (some) harvesting or cultivating crops during non-school week 18 12 16

26 Table 127

26 The law exempts part-time work in agriculture (less than 20 hours a week when school is not in session and less than 14 hours a week while school is in session) It covers all migratory labor. Further the law exempts work in the production of seed, limited to removal of off-type plants, corn tassels and hand-pollinating during June, July and August for children 14 and over.

27 US Department of Labor, available at http://www.dol.gov/esa/programs/whd/state/agriemp2.htm

13