Child labour prohibition and international law

Child labour can be defined as, putting the child in hazardous conditions in regards to physical, ethical and educational development¹. The modern definition comes from the International Labour Organisation (ILO)².

The United Nations (UN) can be described as the ultimate authority on child labour in international law, in both legal aspects; human rights, labour law. Although regional treaties also exist (e.g. in the European Union, the Convention for the Protection of Human Rights and Fundamental Freedoms3)³.

In human rights, article 32 of the UN Convention on the Rights of the Child states that the member nations recognise the right of the child to be protected from the above mentioned conditions that constitute child labour⁴. A treaty ratified by most countries in the world thus creating a unified human rights framework. In labour law ILO holds the authority with the most important instruments being International Labour Convention 138⁵ (minimum a minimum age) and 182⁶ (definition of child labour).

Critics claim that the current system has many flaws; the most basic one being the voluntary nature of International law⁷ (e.g. India has yet to ratify convention 182⁸). Furthermore ILO has been criticised for the red tape involved in claims of breach⁹ and the lack of power to punish the non conforming member states¹⁰. There have also, been allegations of ILO being susceptible to political considerations¹¹ (e.g. ignoring violations¹²). Moreover ILO conventions have been criticised as being written in vague language¹³.

To conclude, while an international framework exists, there are problems that stem back to the problematic nature of international law and national sovereignty. It should be noted that, over the last years child labour has been in marginal decline, an indication that the system works but its is still far from perfect.

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1. 'About child labour' (International Labour Organization)

http://www.ilo.org/ipec/facts/lang--en/

2. Convention concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour

http://www.ilo.org/ilolex/cgi-lex/convde.pl?C182

3. Charter of Fundamental Rights of the European Union (as amended 364/01)

http://www.europarl.europa.eu/charter/pdf/text_en.pdf

4. Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) UNGA Res 44/25

http://www2.ohchr.org/english/law/crc.htm

5. Convention concerning Minimum Age for Admission to Employment

http://www.ilo.org/ilolex/cgi-lex/convde.pl?C138

6. see n2

7. M. N. Shaw, International Law (5th edn, CUP 2004) p. 90

8. 'India and the ILO' (Indian Ministry of Labour)

http://labour.nic.in/ilas/indiaandilo.htm

9 . Kimberly Ann Elliott, 'The ILO and Enforcement of Core Labour Standards' [2000] volume 6, International Economics Policy Briefs

http://www.iie.com/publications/pb/pb00-6.pdf

10.see n8

11. Steven Simpson, 'Enforcement of Human Rights through ILO Machinery' [1995] Human Rights Brief

http://www.wcl.american.edu/hrbrief/v3i1/ilo31.htm

12. Daya Gamage,' United States violates ILO Convention 182 allowing child labour' (Asian Tribune 12 July 2010)

http://www.asiantribune.com/news/2010/07/12/united-states-violates-ilo-convention-182-allowing-child-labor-%E2%80%93-investigative-repor

13. Guy Standing, 'The ILO: An Agency for Globalization?' [2008] Development and Change

http://www.unhistory.org/pdf/StandingILO.pdf

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Quick follow up on the current currency war

Interesting developments on the ongoing currency war that I reported in my previous post, as the FED (i.e. the US Federal Reserve Bank ) has pumped 6 billion dollars more to fight unemployment. As a result the dollar value has fallen even more,compared to half a month ago that reached the lowest in 15 years, with an adverse effect on all import prices in the US market. In the meanwhile I am still looking for a report by WTO on the current event but they have yet to issue any thing. And the war goes on...

Meanwhile the rest of the world is starting to react to the current US economic policy... (especially developing countries that are starting to feel the pain of pricey exports)

WTO on state protectionism

About a month ago, I came across a very interesting article¹ in the Guardian about the latest developments in international commercial law, specifically about the World Trade Organisation (WTO) in this brave new world of economic depression.

Unemployed men during the great depression (circa 1935)

In the article, Pascal Lamy², WTO's director-general, commented on the current trend of governments to employ protectionism regulations, regarding their export-import ratios and the employment of tariffs³, as means of protection against the current global economic crisis. He draws similarities of this trend with the big recession of the 1930s⁴ where both devaluation of currency and the erection of import tariffs was employed to boost the domestic economies, but with a detrimental effect to foreign markets. He furthermore notes the current 'currency' war between the United States and China⁵(one of the few economic giants not to be part of WTO).

The big deal can be described as a form of state protectionism though as it turned out, helped the people more by providing employment than actualy helping the economy

WTO, GATT and protectionism

So why is the director-general condemning the protectionism policies of the 30's? The answer is found within the essence of WTO and GATT. Fifty years ago when the GATT was drafted, it had  a single aim. The progressive abolition of tariffs in the international commercial market. So essentially here we have two conflicting policies; one being the states trying to raise their shambled economies back on their feet and on the other hand the international commercial law framework based regulated by GATT and the WTO based on the economical liberal policies of Friedman and Hayek⁶ where state intervention, the employment of tariffs and in our current situation currency manipulation⁷ creates an uneven field. Thus turning the international market an unfriendly place to invest.

Even though I am not a proponent(on the contrary it is my belief that the current crisis is a product of  neoliberal economic policies) of the free market I concur that the director-general does have a point; the world economy is quite different in comparison to the 30s, with economic globalization being a central aspect of it. Thus there is the possibility of a domino effect that could bring the whole world to its knees, if the major economies choose to adapt a protectionism policy that favours only themselves. Also worth of notice is the effect that this will have in the recognition of WTO as an international organisation regulating international trade, with the result being the disdain of both the organisation and the system based on GATT (i.e. creating a legal anarchy in the field of international commercial law). As Keynes⁸ accurately stated capital must flow⁹ and in today's globalised economy, the statement applies more than ever.

ps. once again I stress my belief that a free market without any regulation is not the answer to either the current crisis or to solve more fundamental problems like unemployment or socioeconomic equity...and anyway in both a free market and a protectionism regime it is still the big companies that profit while most of the citizens have to bear in both situations the weight of their mistakes.

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1. http://www.guardian.co.uk/business/2010/oct/14/pascal-lamy-wto-1930s-protectionism
2. http://www.wto.org/english/thewto_e/dg_e/dg_e.htmTariff
3. http://scm.ncsu.edu/public/trade/4tariffs.html
4. http://www.ingrimayne.com/econ/EconomicCatastrophe/GreatDepression.htm
5. http://247wallst.com/2010/03/21/us-currency-wars-with-china-looms/
6. M. Friedman F. Hayek
7. http://blogs.forbes.com/streettalk/2010/04/06/currency-manipulation/
8. http://en.wikipedia.org/wiki/John_Maynard_Keynes
9. http://www.questia.com/googleScholar.qst;jsessionid=18FFF04566A0912620F50E0CF9A7DEAA.inst2_1b?docId=5000322441

Further Reading

1.Free trade versus protectionism

2.The current currency war explained

3.Currency wars and economic recovery

4.An example of WTO in it fight for the abolition of tariffs

5. An in depth look at GATT and state protectionism by two economists of the Dallas FED (can get quite technical at times so take a deep breath before proceeding)

Fairtrade Presentation

Click here to view our team's presentation slides on Fairtrade, I hope you will enjoy our hard work (damn you powerpoint and your complex settings) as much as we enjoyed making them.

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A brief introduction to GATT and the World Trade Organisation (WTO)

In this post I will try to briefly explain what WTO does as well as its importance in shaping and regulating international commercial law. As I started to write a post, about the current situation of WTO and its fight against the rising state protectionism, I realised that first we need to look at what is the WTO to illuminate the issue at hand. To sum up, this post is sort of an introduction to my next one.

A brief history of General Agreement on Tariffs and Trade (GATT)¹ and the birth of WTO²

The GATT, was created in 1947³ as a result of failed United Nations convention to create a world trade organisation for the advancement and regulation of an international trade legal framework. As the name suggests its main function is regulating  the tariffs in international trade, with subsequent conventions adding more pivotal rules such as, the laws of antidumping⁴ in 1964, international, intellectual property rules in 1986⁵ etc. In 1993 the final amendment of pre WTO-GATT called for the creation of a world trade organisation and thus WTO was born. 

WTO membership map

The WTO, officially established under GATT 1994⁶, is an international institution to facilitate and regulate international trade agreements using the amended GATT as a foundational authority in the judicial evolution that followed. WTO had quite a wider range of jurisdiction as it now also drafted treaties and agreements on services, goods,  international investment regulation, even creating its own international, commercial dispute resolution tribunal. Also worth of mention, is the establishment of a reviewing body on state trade policies and regulations.  WTO is ruled by a ministerial conference⁷, where the GATT ratifying member states meet to discuss amendments and new agreements usually every two-three years. Finally it should also be noted that from the creation of GATT, up till today there is a chronological arrangement of amendments and treaty ratifications separated in negotiating rounds⁸.

As a conclusion, I can only stress the fact that WTO is the only "pure" international body competent of creating and regulating an international commercial law framework with most of the countries of the world on board. Thus one of the most important authorities when in assessing the current situation of international trade and its governing laws.

ps. stay tuned for my next post on the current situation of the WTO framework and the rising trend of state protectionism in the international commercial market...

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1.      http://www.law.duke.edu/lib/researchguides/gat

2.      http://www.wordiq.com/definition/WTO

3.      http://www.worldtradelaw.net/uragreements/gatt.pdf

4.      http://www.cato.org/pub_display.php?pub_id=3637

5.      http://www.ladas.com/IPProperty/wto_gatt/gatt.html

6.      http://www.unctad.org/en/docs/edmmisc232add33_en.pdf

7.      http://www.wto.org/english/thewto_e/whatis_e/tif_e/org1_e.htm

8.      http://www.wto.org/English/thewto_e/whatis_e/tif_e/fact4_e.htm

Further reading

1.What is WTO (in the words of WTO)

2. Official WTO website  

3.A brief guide of GATT

Alternative international dispute resolution and international private law

In this post I will be exploring, yet another interesting aspect of international commercial law; Alternative Dispute Resolution (ADR), the practice of dispute resolution using private mediation rather than a court of law.

So what is ADR?

ADR, also called arbitration or mediation, is as the names suggest an alternative method of resolving disputes between parties without the use of judicial process (i.e. going to a court of law)¹. ADR usually utilises an impartial person known as the mediator or arbitrator to render a decision on the dispute.

Types of ADR²

I. Negotiation, where parties interact with each other in order to resolve their dispute with the help of a mediator. In occasion the negotiation process is part of a larger ADR scheme; the first stage where the parties agree on various elements of the scheme as for example the participants and the subject of the dispute.

II. Mediation³, where a mediator (playing the part of an impartial negotiator) tries to achieve a resolution of the dispute in a private and flexible informal environment.

III. Expert determination, where a field expert (as the name suggests) is called to determine a dispute with technical issues. The outcome can be binding based on contract law or act as a formal recommendation.

IV. Arbitration,  the most utilised and used form of commercial ADR where the parties voluntarily agree to submit their dispute to an arbitrator or several (called an arbitration tribunal), where a decision is binding and the parties are usually obliged to agree not to pursue the said dispute into a court of law.

The problematic environment of International private law

So why is ADR such a popular tool in settling international disputes, even if it is essentially outside the boundaries of the established judicial system (although it is noteworthy that, ADR employs contract law, as a way to bind the parties and enforce the decision).

The answer is found within the nature of international private law...or as its called by scholars and lawyers alike, 'laws of conflict'⁴. The name tells us a story it self; there is no international court for civil action, there are no treaties establishing a unified system of international private law, to judge and enforce decisions. Essentially international private law is nothing more than a mechanism of finding which jurisdiction has the right to judge a civil case. Also in cases of domestic courts decisions, examining the validity of judgements by other domestic legal systems.  

It becomes obvious that ADR provides a better alternative in many cases of international commercial disputes, in comparison to established judicial systems. Even before the case an international private law case is judged, there is a need to establish which court is has the jurisdiction to precede over, sometimes with both systems claiming jurisdiction over the dispute. In the commercial world where money and time is of the essence, such procedures are simply anti-economical, usually causing damage to both parties involved in the dispute.

So there you have it; ADR is a flexible and economical alternative to the rigid and archaic legal systems, that are not fit to serve the needs of the modern international commercial market⁵. Also on a personal note, I cant help but notice the similarities between ADR and the medieval practices of Lex Mercatoria that covered in an older post.

ps. I know its a big post...

King Solomon, supposedly judged each case that was brought before him only by the merits and the facts of the case, employing many of the principles that modern arbitrators use.

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1.http://www.hg.org/adr.html

2. http://www.wipo.int/copyright/en/ecommerce/ip_survey/chap4.html

3. http://www.aaamediation.com/faces/index.jspx;jsessionid=63AFFD98624518192DDBC76FAA6E45FA

4. http://topics.law.cornell.edu/wex/Conflict_of_laws

5. http://www.nysscpa.org/cpajournal/2004/304/essencials/p62.htm

Further reading

1. An outline of procedures under ADR

2. A brief history of ADR

3. Collection of treaties and international instruments concerning arbitration

4. Hague Convention on jurisdiction and decision enforcement by foreign courts

Letter of credit briefly explained (or at least what I make of it)

As our first block is coming to an end and we are getting ready to plunge ourselves into the uncertain and complex world of international trade law, I took a sneak peek into our syllabus. Between many commercial concepts prescribed, I noticed the letter of credit, a very interesting mechanism employed in international commercial transactions especially in the carriage of goods by sea.

A typical letter of credit

A letter of credit is essentially a warranty of payment. Both a sign of financial competence for the international buyer and a safe heaven for the seller, in case that the buyer defaults. To get more specific a letter of credit is actually...a letter; issued by the buyers bank and guaranteeing payment (by a transaction from the buyers to the sellers bank) of an agreed sum , in case the buyer is unable to pay the commercial transaction himself. To get the letter, the buyer usually needs to either deposit the agreed sum of money in the bank that is issuing the letter or to take a loan from the bank. One of the most important aspects of the letter is that it has a termination date, meaning that if the buyer fails to pay up in the prescribed time (a certain date) the seller can ignore the buyer and go directly to his bank to collect what he is owed.

In an international market where a transaction can be affected by a large number of unforeseen factors (e.g. pirates, natural disasters, fall of regimes, and stock market crashes) a letter of credit provides much needed safety, essentially creating a protective barrier and guaranteeing that no matter  what happens, the agreed transaction will go through. Further more the letter of credit also deters fraud, a matter difficult to deal with in an international environment with many jurisdictions and little judicial control (especially if the fraudster is in the other side of the world).  

Further facts about the letter of credit

1.Understanding and Using Letters of Credit 

2.A sample of a letter of credit

ps. still writing child labour essay...I now can confidently say that international labour law should be called international bureaucracy law...so much red tape so many committees...so little action...