¹ The text of Convention No. 182, as adopted by the ILC, is found in Report of the Committee on Child Labour, International Labour Conference, Record of Proceedings, 87th Sess. (1999) [hereinafter Committee Report], and is reprinted in 38 ILM 1215 (1999). Portions of the text are also reproduced in Contemporary Practice, 93 AJIL 896 (1999). The ILC is the annual meeting of the International Labour Organization (ILO). The ILO is a tripartite body made up of representatives of government, labor and business from 174 countries. It was established in 1919, its Constitution forming a part of the Treaty of Versailles. In 1946 the ILO became the first specialized agency of the United Nations. See New Zealand Ministry of Foreign Affairs and Trade, United Nations Handbook 211–20 (1998).

² Convention No. 182, Art. 3. Article 1 of the Convention specifically obligates ratifying states to “take immediate and effective means to secure the prohibition and elimination of the worst forms of child labor” as defined in Article 3.

³ Id., Art. 2.

⁴ See List of Ratifications by Convention and Country, Report III (Part 2), International Labour Conference, 87th Sess. (1999). Neither the United States nor the United Kingdom is a party to Convention No. 138. Article 32 of the Convention on the Rights of the Child, GA Res. 44/25, annex, UN GAOR, 44th Sess., Supp. No. 49, at 166, 167, UN Doc. A/44/49 (1989), reprinted in 28 ILM 1448, 1468 (1989), which has been ratified by 191 states, refers in cursory fashion to the child’s need for protection from exploitation, hazardous work and work that interferes with education, and to the need to regulate minimum age, hours and conditions of employment.

⁵ See Committee Report, supra note 1, para. 23 (statement of the government delegate of the Netherlands on behalf of governments of the Industralized Market Economies Group, which includes the United States).

⁶ See id., paras. 168 (African government and worker member amendments), 169 (amendment proposed by government members of Canada, Denmark, France, Italy, Mexico, Norway, Spain and Uruguay). Under the procedures of the ILO, unlike those of other international organizations, tripartite national delegations made up of representatives of the government, employers and workers, all with independent voting rights, examine and adopt the Conventions. See ILO Const. Art. 17.

⁷ See Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, opened for signature Dec. 12, 1977, Art. 77, 1125 UNTS 3 (drawing a distinction between children who have not attained the age of 15 for purposes of recruitment and taking a direct part in hostilities and persons who have not attained the age of 18 for purposes of application of the death penalty) [hereinafter Geneva Protocol I]; Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 UST 3516, 75 UNTS 287 (providing explicit references to children under 15 in Articles 14, on hospital and safety zones; 23, on free passage of relief consignments; and 24 and 38(5), on measures relating to child welfare); International Committee of the Red Cross, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, at 898–900 (Yves Sandoz, Christophe Swinarski & Bruno Zimmermann eds., 1987) [hereinafter Commentary].

⁸ Convention No. 182, Art. 3. See Committee Report, supra note 1, para. 156 (original amendment submitted by government members of Australia, Austria, Belgium, Finland, Germany, Hungary, Ireland, Luxembourg, the Netherlands, New Zealand, Portugal, San Marino, Sweden, Turkey, the United Kingdom and the United States).

⁹ Both Article 38(3) of the Convention on the Rights of the Child, supra note 4, and Article 77(2) of Geneva Protocol I, supra note 7, further provide that states shall refrain from recruiting any person who has not attained the age of 15 into their armed forces. Article 8(2)(b)(xxvi) (international conflicts) and Article 8(2)(e)(vii) (noninternational conflicts) of the recently negotiated Rome Statute of the International Criminal Court, July 17, 1998, UN Doc. A/CONF.183/9*, reprinted in 37 ILM 999 (1998), define war crimes as including “[c]onscripting or enlisting children under the age of fifteen years … or using them to participate actively in hostilities.”

¹⁰ See Children under Arms, Economist, July 10,1999, at 19; Katherine Southwick, Child Soldiers in Uganda, Yale J. Hum. Rts., Spring 1999, at 4; Frances Williams, ILO’s Child Labour Treaty Set for Adoption, Fin. Times (London), June 15, 1999, at 8.

¹¹ See Commentary, supra note 7, at 900–01; Michael Bothe, Karl Josef Partsch & Waldemar A. Solf, New Rules for Victims of Armed Conflicts 476–77 (1982) (both discussing the negotiating history of Article 77 of Geneva Protocol I concerning “feasible measures”).

¹² See Working Group on the draft optional protocol concerning children in armed conflict, Report to the Commission on Human Rights on its fourth session, UN Doc. E/CN.4/1998/102; Working Group on the draft optional protocol concerning children in armed conflict, Report to the Commission on Human Rights on its fifth session, UN Doc. E/CN.4/1999/73. The draft protocol, inter alia, would expand on the protection provided under Article 38(2) of die Convention on the Rights of the Child, requiring that parties to a conflict take all feasible measures to ensure that persons who have not attained the age of either 17 or 18 years take no direct part in hostilities (instead of a lower limit of 15 years of age, as provided for in the Convention).

¹³ For this reason, UK law specifies a minimum age of 16 for voluntary enlistment, whereas U.S. law specifies 17 as the minimum age, with parental consent. See 10 U.S.C. §§505(a), 4346(a), 6958(a), 9346a) (1994). Both 17-year-old U.S. and UK soldiers participated in the recent military operations in Bosnia and Kosovo, and in Operation Desert Storm.

¹⁴ See Committee Report, supra note 1, paras. 151–52, 160 (government delegate, United States), 401 (government delegate, United Kingdom). It appears that a significant number of other governments engage in similar practices. See Working Group on the draft optional protocol concerning children in armed conflict, Report to the Commission on Human Rights on its second session, UN Doc. E/CN.4/1996/102, at 5 (reporting that a UN survey had found that only 99 countries maintained a minimum age for military recruitment, and in 29 of them that age was 17 or less).

¹⁵ See Committee Report, supra note 1, para. 176.

¹⁶ In response to a question posed by the government member of Australia, the ILO Deputy Legal Adviser explained for the record that “Article 4, paragraph 1, provided flexibility in that the determination of the types of work was left to the discretion of member States subject to two procedural requirements, namely consultation with employers’ and workers’ organizations concerned and the need to take into consideration relevant international standards.” He further clarified that “the latter would not imply any obligation to ratify or respect the relevant standards.” Id., paras. 135, 143. The United States has already made such determinations pursuant to the Fair Labor Standards Act (FLSA), 29 U.S.C. §201, and the Occupational Safety and Health Act, 29 U.S.C. §651 (1994).

¹⁷ See Committee Report, supra note 1, paras. 172–73 (statements by employer and worker spokesmen). The employer and worker members on whose behalf they spoke constituted a two-thirds majority of the delegates negotiating die Convention. See Standing Orders of the International Labour Conference, Art. 65 (method of voting), ILO, Constitution of the International Labour Organization and Standing Orders of the International Labour Conference (1978). Other government delegates confirmed the identical understanding. See Committee Report, supra note 1, paras. 400 (Pakistan), 403 (United States). This clarification was an important issue for the United States since the FLSA, supra note 16, 29 U.S.C. §213c(2), exempts work by children on their parents’ farms. To clarify the domestic application of the provision, the administration proposed the following understanding in transmitting the Convention to the Senate for advice and consent to ratification: “The United States understands that Article 3(d) of Convention 182 does not encompass situations in which children are employed by a parent or by a person standing in the place of a parent on a farm owned or operated by such parent or person.” See Letter of Transmittal to the Senate (Aug. 5, 1999) <http://www.pub.whitehouse.gov>.

¹⁸ See Committee Report, supra note 1, paras. 170 (proposed amendment by worker members), 178 (proposed amendment by government delegates of Austria, Belgium, Canada, Denmark, Finland, France, Germany, Ireland, Italy, Luxembourg, the Netherlands, New Zealand, Norway, San Marino, Spain, Sweden, Switzerland, Turkey, the United Kingdom and the United States).

¹⁹ See id., para. 179 (statement by government delegate, India). UNICEF has reported that the regional rates of survival to the fifth grade range from 90% in Latin America, the Caribbean, the Middle East and North Africa, to 67% in sub-Saharan Africa, and 59% in South Asia. Additionally, it estimates that there are now more than 150 million children, including adolescents, who have entered school but have dropped out before acquiring literacy and numeracy. United Nations Children’s Fund, Progress, challenges and future strategies in basic education, UN Doc. E/ICEF/1999/14, para. 7 (1999).

²⁰ International Covenant on Economic, Social and Cultural Rights, Dec. 16, 1966, 993 UNTS 3. The United States has signed but not ratified the Covenant.

²¹ See Committee Report, supra note 1, para. 391 (government delegate, India); Conference Provisional Record [Conf. Prov. Rec] 26, at 26/12 (government delegate, Germany).

²² The 1990 Jomtien World Conference on Education for All adopted a World Declaration on Education for All: Meeting Basic Learning Needs and a Framework for Action to Meet Basic Learning Needs, which define the concept of basic education in such broad terms. Subsequendy, both UNICEF and UNESCO confirmed a similar understanding of the term. United Nations Children’s Fund, UNICEF strategies in basic education, UN Doc. E/ICEF/1995/16; see also Report IV (2A), International Labour Conference, 87th Sess. 66–67 (1999).

²³ Committee Report, supra note 1, paras. 218, 388 (statements of employer and worker spokesmen); Conf. Prov. Rec. 26, at 26/4 (statement of worker vice chairperson), 26/9 (employer delegate, United States), and 26/16 (worker delegate, United Kingdom).

²⁴ See U.S. Dep’t of Education, National Center for Education Statistics, Digest of Education Studies, 1998, Table 41, Enrollment in Public Elementary and Secondary Schools by Grade and State: Fall 1996. In the United States, individual states, not the federal Government, establish systems of free public education. The President proposed the following understanding in transmitting the Convention to the Senate for advice and consent to ratification: “the United States understands that the term ‘basic education’ in Article 7 of Convention 182 means primary education plus one year: eight or nine years of schooling, based on curriculum and not age.” Letter of Transmittal, supra note 17.

²⁵ Committee Report, supra note 1, paras. 234–35 (emphasis added).

²⁶ See id., para. 236.

²⁷ See id., paras. 242–43.

²⁸ IPEC is the world’s largest technical cooperation organization on child labor. Last year, in the fiscal year 1999 budget, President Clinton, with bipartisan support in Congress, increased U.S. support to $30 million a year for IPEC and other international child labor activities. Additionally, in the spring of 1999, the Department of Labor announced that the United States would provide $7.5 million to fund programs to eliminate exploitative child laborin Africa. U.S. Dep’t of Labor, ILAR Press Release (Mar. 17, 1999). Also, on June 12, 1999, President Clinton signed an executive order directing all agencies to ensure they were not buying any products made with abusive child labor. Exec. Order No. 13,126, 64 Fed. Reg. 32,383 (1999).

²⁹ 35 Weekly Comp. Pres. Doc. 1117, 1120 (June 18, 1999).

³⁰ The President sent the Convention to the Senate on August 5, 1999, after the Tripartite Advisory Panel on International Labor Standards of the President’s Committee on the ILO (TAPILS) concluded that ratification would not require any change in existing U.S. law and practice. In addition to government agencies, TAPILS also includes legal experts from the AFL-CIO and the U.S. Council for International Business, respectively the U.S. labor and business representatives to the ILO. See Alice Ann Love, Child Labor Treaty Goes to Senate, AP, Aug. 6, 1999 <http://wire.ap.org>.

³¹ 145 Cong. Rec. S7419, S7422–23 (daily ed. June 22, 1999).