I. INTRODUCTION
In 2012, Europe proclaimed its three-year strategy on the rights of the child aimed at the overall goal of ‘building a Europe for and with children’.Footnote 1 One of the principal strategic objectives of that strategy is that of ‘guaranteeing the rights of children in vulnerable situations.Footnote 2 While the nature and extent of vulnerable situations faced by children is vast, one specific locus of vulnerability is that of child labour—a phenomenon traditionally most prevalent in less developed countries in Sub-Saharan Africa and Asia.Footnote 3 Recently, however, the European Commissioner for Human Rights has raised concerns about the limited attention being paid to child labour in Europe, its exponential rise in the wake of the economic crisis and the need for concrete measures and initiatives to avert it.Footnote 4 Specific action in this sphere faces a range of challenges including the often hidden nature of the work in question, cultural attitudes and gendered constructions of the role of children especially in domestic settings. Human rights bodies have a particularly vital role to play in placing the issue of child labour in a human rights, child-centred context, by laying down clear standards for legislative and policy interventions by governments. With this theme in mind, this Article presents an overview of the complexities of child labour as a social and cultural phenomenon and international standards aimed at combatting it. It culminates in an analysis of recent case law of the European Court of Human Rights which, it is argued, has drawn somewhat erratically on its standard interpretive methodologies (including the comparative technique), thus producing mixed results when seeking to provide guidance to European States in the specific context of child labour.
II. CHILD LABOUR
The term ‘child labour’ is used to denote children who are working outside the international legal framework specifically envisaged for children in employment.Footnote 5 It can involve many types of work, including work in the agricultural, construction, industrial, manufacturing and retail sectors as well as in domestic service.Footnote 6 At the global level, it is estimated that around 167 million children aged 5–17 are involved in child labour.Footnote 7 Over half of these children live in the Asia-Pacific region, while in Sub-Saharan Africa the incidence of child labour and participation in hazardous types of work is highest.Footnote 8 Statistics in this field, however, are invariably unreliable due to the illegal and often hidden nature of the work and the powerlessness of those affected.Footnote 9 In Europe, statistical data is even more elusiveFootnote 10—a fact that has been attributed partly to the lack of social sensitivity to this issue.Footnote 11 Whereas in other parts of the world international campaigns aimed at the elimination of the worst forms of child labour are of long-standing, ‘social perception in Europe is not alarmed for this reason’.Footnote 12 On the other hand, the evidence suggests that far from being a non-issue in Europe, child labour is on the rise, particularly in Eastern and Central Europe since the transition to market economies;Footnote 13 and child labour reportedly takes place in all European Union States, with oppressive forms of work being considered acceptable in some States as a source of family income.Footnote 14 While economic hardship may be a generic factor predisposing the entry of children into the labour force,Footnote 15 migration and child trafficking are further factors that have placed the spotlight on Europe as a destination zone for forced labour and exploitation of children.Footnote 16
One particular form of child labour that is gaining increasing attention is that of child domestic labour. Involving as it does the use of children by third parties or employers to perform domestic tasks that are exploitative, this form of child labour is notoriously most difficult to track because of the often hidden context in which it takes place. Recent attempts to gauge the number of children engaged in domestic work globally have put the figure at approximately 15.5 million (almost half of whom are aged 5–14).Footnote 17 Research also suggests that the number of children being forced into domestic work is on the rise, in contrast to the statistic for child labour in other sectors.Footnote 18 Cultural variation in perceptions of what is acceptable ‘work’ for children,Footnote 19 combined with patriarchal attitudes towards domestic work as ‘women's work’, are reflected in the fact that the majority of child domestic workers are girls.Footnote 20 Employers sometimes actively seek out children as employees on the basis that they are ‘easier to control and can be paid less’.Footnote 21 Domestic work can include a range of activities including ‘doing domestic chores, caring for children, tending the garden, running errands and helping their employers run small businesses, amongst other tasks’.Footnote 22 What might be innocuous, even beneficial, when performed to a very limited degree in a supportive context, can be transformed into a worst form of child labour or slavery depending on the age of the child, the nature and hours of the work, the working and living conditions and treatment meted out. The ILO has distinguished child domestic labour from ‘helping-hand tasks’ in the following way:
In every country of the world, children lend a helping hand in their own home, maybe by preparing the meals or washing the dishes after dinner before going out to play. They may make the bed, for example, hang out the washing, mow the lawn, baby-sit a younger sibling, pick fruit on the family allotment, milk the goat or feed the chickens. In moderation and in particular as long as they do not interfere with the children's education or time to play, such ‘helping hand’ tasks can be positive experiences … This is not child domestic labour.Footnote 23
By contrast, children engaged in domestic labour may find themselves:
carrying heavy loads and doing dangerous tasks, using hazardous substances such as cleaning fluids, cooking meals for a whole family and washing their clothes, being woken in the middle of the night to service the master's needs, toiling seven days a week, every week of the year. They are exposed to physical and sexual abuse. They may be confined to the house at all times, have to sleep on the floor in the kitchen, suffer beatings when they are tired and slow, be denied access to family, friends, health-services and decent food, even be deprived of a name, known only by the local word for ‘servant’. This is the reality of the lives of many children in child domestic labour … .Footnote 24
Child domestic workers, therefore, are particularly vulnerable to a range of associated rights abuses including physical, psychological and sexual abuse, inhuman and degrading living conditions and denial of access to health care.Footnote 25 They are also typically, but not necessarily, deprived of an education.Footnote 26 Even where access to education is nominally permitted, children in domestic labour often experience difficulties with engagement due to the burden of domestic work outside school hours.Footnote 27
III. INTERNATIONAL LEGAL STANDARDS RELEVANT TO CHILD LABOUR
Before turning to a specific analysis of European approaches to child labour, it is important to note that normative action aimed at eliminating child labour has intensified at the international level in the past two decades, driven largely by the prioritization of this issue by the ILO as part of its Decent Work Agenda.Footnote 28 While children were largely ignored in the 1926 Slavery Convention aimed at abolishing the discrete concept of slavery,Footnote 29 this lacuna was initially addressed in the 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery,Footnote 30 Article 1(d) of which specifically prohibited the ‘exploitation’ of children for their labour.Footnote 31 Arguably, this provision deliberately set the bar lower, initially, in international law than that which was applicable to adult forms of slavery and slavery-like practices, which were conceptualized as involving concepts of ownership and mandatory residence.Footnote 32 Later developments in the field of international labour law have resulted in an impressive array of treaty provisions aimed at clarifying the minimum age for children at workFootnote 33 and the boundaries between prohibited practices and regulation of acceptable work vis-à-vis children. In particular, the Worst Forms of Child Labour Convention, C182, (1999)Footnote 34 prohibits 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’.Footnote 35 Crucially, Convention C182 moves beyond a bare prohibition on such forms of child labour, by mandating the taking of positive measures by States for prevention and removal of children from the worst forms of child labour and their rehabilitation.Footnote 36 More recently, the ILO has turned its attention specifically to the issue of domestic work by adopting Convention No 189, Concerning Decent Work for Domestic WorkersFootnote 37 and Supplementing Recommendation 201.Footnote 38 The Convention acknowledges at the outset that domestic work continues to be ‘invisible’ and is mainly carried out by women and girls, many of whom are migrant workers or members of disadvantaged communities and as such, are particularly vulnerable to human rights abuses.Footnote 39 As regards children, the Convention obliges all States to take measures to ensure the effective elimination of child labourFootnote 40 and to ensure that all domestic workers are afforded a safe and healthy working environment,Footnote 41 decent working conditions and if they reside in the household, decent living conditions that respect their privacy.Footnote 42
Legal prohibition of child labour and the development of responses to it must also take account of the development of international law in regard to the wider phenomenon of human trafficking. Indeed, child trafficking has been identified as the cause of the worst forms of child labour.Footnote 43 The special vulnerability of children in respect of trafficking is reflected in the governing instrument on this issue, the Palermo Protocol 2000.Footnote 44 Whereas the overarching definition of trafficking in the Protocol requires that coercive or deceptive means are involved to qualify a situation as ‘trafficking’,Footnote 45 the Protocol expressly drops the latter requirement where children are concerned.Footnote 46 In other words, all that needs to be shown to demonstrate a case of child trafficking is that the child has been recruited, transported, transferred or kept by a person for the purpose of exploitation.Footnote 47 The Protocol goes on to oblige States parties to adopt legislative and other measures to criminalize trafficking,Footnote 48 to put in place policies and programmes to prevent itFootnote 49 and to consider measures of protection for victims.Footnote 50
The growing recognition of the child as a ‘rights holder’ within the domain of international human rights law has resulted in a further layer of normative protection for children with the recognition of positive obligations on States where child labour and trafficking is concerned.Footnote 51 Not surprisingly, the Convention on the Rights of the Child (CRC), 1989 is at the apex of all instruments dealing with the subject of child labour, embodying as it does the most child-centred approach to the issue.Footnote 52 Rather than emphasizing distinctions between types of prohibited practices (as was the focus in earlier instruments), the CRC takes a much wider approach by prohibiting all forms of ‘exploitation’ and by articulating specific obligations of protection and prevention for children as ‘rights holders’. While the term ‘exploitation’ is not itself defined, Article 32 of the CRC requires States parties to 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.Footnote 53 The duty to protect the child from abuse and exploitation in the home is explicitly provided for in Article 19 which obliges the States parties to establish effective procedures for the identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment and, as appropriate, for judicial involvement.Footnote 54
The specificity of the range of obligations placed on States by the CRC in the matter of child exploitation is buttressed by the ‘best interests principle’ in Article 3(1) of the Convention.Footnote 55 Broadly stated, the ‘best interests principle’ requires that the child's interests ‘must be the subject of active consideration’ and that in all actions concerning children … it needs to be demonstrated that children's interests have been explored and taken into account as a primary consideration’.Footnote 56 Article 3(2) expands on the provisions of paragraph 1 by obliging the States parties to the Convention to undertake to ensure the child ‘such protection and care as is necessary for his or her well-being’, taking into account the rights and duties of parents and others legally responsible for him or her. As to the scope of actions involved, it is clear that the principle must be read expansively as applying to ‘all actions’ concerning the child, including decisions ‘not to take action’. Thus, as recognized by the Committee on the Rights of the Child which monitors the implementation of the Convention by the States parties, ‘inaction or failure to take actions and omissions are also ‘‘actions’’ … when social welfare authorities fail to take action to protect children from neglect or abuse’.Footnote 57 In the context of its General Comments addressed to all of the States parties, the Committee has reminded States that cooperation is also needed to address child protection issues which may cut across national borders, putting children at risk of harm, including trafficking for the purposes of labour exploitation; and that specific legislation, policies, programmes and partnerships may be required to protect children affected by such cross-border, child protection issues.Footnote 58
The CRC is by no means the only treaty body to have drawn attention to the issue of child labour. Most notably, the Committee on the Elimination of All Forms of Discrimination against Women (CEDAW)Footnote 59 has expressed concern on numerous occasions about the exploitation of children (especially girls) in all forms of labour, including domestic work and has urged States parties to put in place legislative and regulatory frameworks for their protection.Footnote 60 In monitoring implementation of Article 10(3) of the International Covenant on Economic, Social and Cultural Rights,Footnote 61 the Committee on Economic, Social and Cultural Rights has also identified persistent problems of child labour and exploitation of socially vulnerable children in a range of settings, including domestic service.Footnote 62 In its recommendations to States, it has stressed the importance of strengthening legislation to combat these problems, establishing labour inspection mechanisms and providing assistance to victims.Footnote 63 Article 8 of the International Covenant on Civil and Political Rights (ICCPR) also speaks directly to the issue by prohibiting slavery, servitude and forced or compulsory labour. In the specific context of child labour, Article 8 is buttressed by the general terms of Article 24 ICCPR which guarantees the right of every child to special measures of protection. In Faure v Australia, the Human Rights Committee indicated that it would take into account whether the specific labour being assessed for its compatibility with Article 8 involves a ‘degrading or dehumanizing aspect’.Footnote 64 The Committee clearly conceptualizes the right in Article 8 as involving a range of positive obligations on States in the matter of elimination, prevention and protection.Footnote 65
IV. EUROPEAN LEGAL STANDARDS ON CHILD LABOUR
The developments in international law outlined above provide important guidance for European States in tackling the rise of child labour in their jurisdictions. In addition to widespread ratification of these instruments, European States are also subject to a range of further obligations agreed by the EU and the Council of Europe institutions.Footnote 66 Of obvious significance here is the Council of Europe's European Social Charter (Revised),Footnote 67 the terms of which offer clear potential as an advocacy tool for challenging the economic exploitation of children.Footnote 68 The Revised Charter contains a wide range of labour rights, including a detailed ‘core’ obligation to provide for the right of children and young persons to protection from economic exploitation. Specifically, Article 7(1) obliges States parties to establish a minimum age of admission to employment as 15 years, subject to exceptions for children employed in ‘light work without harm to their health, morals or education’. Article 7(3) obliges them further to ensure that children who are still subject to compulsory education shall not be employed in such work as would deprive them of the full benefit of their education.Footnote 69
Through its monitoring functions under the Charter, the European Committee of Social Rights (ECSR) has provided detailed guidance on the implications of these Articles for the Contracting States. It has indicated that the aim of Article 7(1) in particular is to ensure the protection of children from the risks associated in performing work which may have negative repercussions on their health, their moral welfare and their education.Footnote 70 As regards the specific issue of domestic work, the Committee has elaborated that whether particular work constitutes ‘light work’ will be assessed on the facts of each case, but the nature of the work will be a determining factor.Footnote 71 Clearly, the Committee will assess the physical effort involved, working conditions and the possible psychological repercussions on the child, all of which ‘may have harmful consequences not only on the child's health and development, but also on its [sic] ability to obtain maximum advantage from schooling and, more generally, its potential for satisfactory integration in society’.Footnote 72 Where the work involves excessive hours, it ceases to be light work. As a general guideline, the committee has stated that a situation in which a child of less than 15 years of age is working for 20–25 hours per week during school term or three hours per school day and six to eight hours at weekends is contrary to the Charter.Footnote 73 States must not only put in place specific legislation defining the types of work which may be considered light, the conditions under which it may be performed and the maximum permitted working hours, they must also put in place effective supervisory structures to ensure that such legislation is respected and that Article 7 is effectively implemented.Footnote 74 Moreover, the duty of protection is a collective one, extending beyond the level of a general Labour Inspectorate but also involving educational and social services.Footnote 75 Thus, in assessing whether Article 7 has been complied with in carrying out its reporting functions under the Charter, the Committee routinely questions States on how the conditions under which it is performed are supervised in practice.Footnote 76
The Council of Europe and the European Union (EU) have each generated further instruments in the field of human trafficking that are relevant to the issue of child labour and exploitation. The Council of Europe's 2005 Convention on Action against Trafficking in Human Beings,Footnote 77 for example, has broken new ground by being the first international convention to adopt a human rights approach to trafficking.Footnote 78 Rather than focusing almost exclusively on prosecution and prevention like the Palermo Protocol, the Council of Europe Trafficking Convention includes legally binding obligations on States to assist victimsFootnote 79 in their physical, psychological and social recovery. These include obligations to provide appropriate and secure accommodation, psychological and material assistance,Footnote 80 counselling and information,Footnote 81 and access to education for children.Footnote 82 Implementation of the Convention is monitored by the Group of Experts on Action against Trafficking in Human Beings (GRETA)Footnote 83 by means of a reporting exercise.Footnote 84 Through its monitoring work, GRETA has urged States to pay heightened attention to prevention and protection measures which address the particular vulnerability of children to trafficking and to ensure that the best interests of the child are fully taken into account.Footnote 85
The EU has, in turn, adopted Directive 2011/36/EUFootnote 86 which in general terms, has been judged to be ‘cautious’ concerning assistance to victims of trafficking and as providing ‘tentative progress’ only beyond the criminal justice approach to human trafficking.Footnote 87 In regard to child-victims, however, the Directive does recognize the heightened vulnerability of children to human traffickingFootnote 88 and requires Member States to take enhanced measures of assistance, support and protection, including the requirement for a guardian to be appointed as soon as a child is identified as a victim of trafficking.Footnote 89 Further, Member States are enjoined to ensure that the best interests of the child are a primary consideration in the application of the DirectiveFootnote 90 and that States should give the benefit of the doubt where there is a doubt as regards age.Footnote 91
At a broader level, the Charter of Fundamental Rights of the European Union has been given binding force since the entry into force of the Treaty of Lisbon in 2009.Footnote 92 The Charter requires the EU institutions and the Member States (when implementing EU law) to act in conformity with its provisions.Footnote 93 Those provisions include a general prohibition on slavery, servitude, forced labour and human trafficking;Footnote 94 the ‘best interests of the child’ principle;Footnote 95 and a specific provision prohibiting child labour and requiring the protection of ‘young people’ at work.Footnote 96 Though the latter provision in particular is expressed as a principle, rather than a right, there is no doubt that these provisions collectively go some way in placing the spotlight on child labour as a phenomenon to be tackled in the EU generally.Footnote 97
There can be little doubt that the standards set forth in the European Social Charter regarding child labour, together with those provided for in the Council of Europe Trafficking Convention, provide important benchmarks for other international standards and supervisory bodies in the field of child labour and exploitation.Footnote 98 However, despite the clarity of these standards, and in common with other international instruments outlined above, the instruments' powers of compliance are necessarily limited, based as they are largely on the recommendations of the principal monitoring bodies.Footnote 99 The fruits of the EU Directive for child trafficking victims specifically, will likely be context-dependent given the nature of EU directives to leave a wide amount of discretion to the Member States in transposing and implementing their terms.Footnote 100 The power of the Court of Justice of the European Union to apply the provisions of the Charter of Fundamental Rights of the European Union to the Member States when implementing EU law undoubtedly brings with it possibilities for heightening standards in this field, though its potential on the particular issue of child labour has yet to be tested.Footnote 101 This is why attention inevitably turns to recent developments in this area arising from the Council of Europe's European Convention on Human Rights (ECHR) with its powerful implementation machinery, involving judicial determinations on State compliance by the European Court of Human Rights. The remainder of this Article critiques the extent to which that Court has done its homework on the phenomenon of child labour and applied its standard interpretive methodologies so as to develop the clear potential of the Convention to bolster existing standards in the field.
A. The European Convention on Human Rights
In considering the phenomenon of child labour, the most obvious Article of the ECHR to consider is the right to be free from slavery, servitude and forced labour found in Article 4 which, in the view of the European Court of Human Rights, ‘enshrines one of the fundamental values of democratic societies’.Footnote 102 Sitting alongside Article 3 (which prohibits torture, inhuman and degrading treatment or punishment), Article 4 was included in the Convention as one of the classic rights relating to physical integrity and security of the person.Footnote 103 Its inclusion was uncontentious for two reasons: Firstly because of the pre-existing recognition of the prohibition in other international law instruments, including the Universal Declaration of Human Rights on which much of the drafting of the ECHR was based; and secondly, by reason of the ideological focus of the drafters of the ECHR to ensure that the atrocities committed during the second world war (including the existence of mass concentration camps) would be guarded against in the drive to create a new European order.Footnote 104 In line with the drafting style common to most of the Convention's provisions, Article 4(1) sets forth the general statement of the right that ‘No one shall be held in slavery or servitude’—a right that may be classed as an absolute right in view of its non-derogable status under the terms of Article 15(2). Article 4(2) goes on to provide further that ‘No one shall be required to perform forced or compulsory labour’. None of the terms ‘slavery’, ‘servitude’ or ‘forced labour’ are defined in the Convention, although in the case of ‘forced labour’ a measure of clarity is provided by statements of what is not ‘forced labour’, as opposed to a positive definition of what it is.Footnote 105 Other than this, the three classifications of prohibited practices were left wide open by the drafters of the Convention for interpretation by the European Court of Human Rights.
Before examining the Court's case law on Article 4 of the ECHR in cases of child labour, it should be recalled that in interpreting the rights in the Convention, the Court routinely draws on a variety of methodological approaches. These approaches are well-known and include the standard rules relating to treaty interpretation,Footnote 106 the principle of effectivenessFootnote 107 (which emphasizes the importance of giving effect to the ‘object and purpose’ of the treaty making the rights contained therein ‘practical and effective’) and the evolutive or ‘living instrument’ approach.Footnote 108 This latter technique was most famously introduced by the Court in the case of Tyrer v United Kingdom, when it stated that the Convention is a ‘living instrument which … must be interpreted in the light of present-day conditions’.Footnote 109 It is used by the Court as a response to the reality that the Convention does not operate in a static environment, tied to standards operating decades ago when it was drafted. Accordingly, it enables the Court to shepherd and copper-fasten evolving developments in the Contracting States in a legal context where legislative action (available in domestic settings) is not a realistic option.Footnote 110
Further, the Court has recognized that in some cases, a relative approach must be taken in interpreting and applying the Convention's terms. Thus, in Ireland v United Kingdom, the Court held that in applying Article 3 its assessment of whether treatment at issue falls within the scope of Article 3 will be a relative one, ie ‘it depends on all the circumstances of the case, such as the nature and context of the treatment, its duration, its physical and mental effects and, in some instances, the sex, age and state of health of the victim’.Footnote 111A good example of the application of this approach to cases involving children is the case of V v United Kingdom, in which the Court held that in order to comply with the requirements of a ‘fair trial’ in Article 6 of the Convention, trial proceedings must take full account of the age, level of maturity and intellectual and emotional capacities of the child in question; and steps must be taken to promote his or her ability to understand and participate in the proceedings.Footnote 112 The value of this approach in cases involving children cannot be gainsaid, particularly because the Convention itself makes relatively few distinctions as regards the special vulnerability of children in its terms.Footnote 113
In a similar vein, the Court has recognized that many of the rights in the Convention have horizontal effect and give rise to positive, as well as negative obligations.Footnote 114 This approach has also been utilized by the Court to great effect in cases dealing with vulnerable groups, Footnote 115 including children. For example, the Court engaged this approach in the case of Z v United Kingdom, which concerned the failure of the respondent State's social services to take reasonable steps to protect children from long-term abuse meted out by their parents. In finding a violation of Article 3 of the Convention, the Court held that the positive measures envisaged by the general terms of Article 3 ‘should provide effective protection, in particular, of children and other vulnerable persons and include reasonable steps to prevent ill-treatment of which the authorities had or ought to have had knowledge’.Footnote 116
The Court has drawn on each of the above principles, sometimes on their own or in combination, to aid it in the interpretive task of delineating the reach of the Convention's provisions or breathing normative life into its more opaque or imprecise terms.Footnote 117 In drawing on them, the Court has garnered a reputation in some quarters of being an impressive hub of doctrinal innovation.Footnote 118 But at the same time, their deployment has also produced tensions occasionally within the Court itself and to criticism of overt judicial activism and illegitimate ‘over-reaching’.Footnote 119 This is particularly so in regard to the evolutive approach, the application of which can be perceived to be unscientific where a thorough-going analysis of contemporary legal developments in the Contracting States is lacking.Footnote 120 Likewise, application of the principle of effectiveness and the doctrine of positive obligations can be disparaged where they serve merely as strategies for judicial policy-making, capable of use without any empirical constraint.Footnote 121
Interestingly, and perhaps in response to these criticisms, in recent years the Court has increasingly drawn on a further method to buttress its basic repertoire of approaches; one that if deployed correctly, can provide a clear empirical basis for extending positive obligations, grounding evolutive and effectiveness approaches and which is capable of justification in its own right on practical and principled grounds. That is an approach which looks to other international instruments and the views of authoritative human rights bodies as an aid to interpreting the Convention. In the case of Loizidou v Turkey, the Court explained that the rationale for this approach was based on its view that:
the principles underlying the Convention cannot be interpreted and applied in a vacuum. Mindful of the Convention's special character as a human rights treaty, [the Court] must also take into account any relevant rules of international law when deciding on disputes concerning its jurisdiction.Footnote 122
In subsequent cases, the Court has more typically relied on other international instruments, not as a means of expanding its own jurisdiction, but rather as an aid to interpreting the scope of particular rights in the Convention and their application to particular factual circumstances.Footnote 123 Thus, in Demir and Baykara v Turkey, in response to an objection by Turkey to the prospect of the Court relying on international instruments other than the Convention to flesh out the precise contents of the right to freedom of association in Article 11, the Grand Chamber of the Court responded that in defining the meaning of terms in the text of the Convention, the Court could and must take into account elements of international law other than the Convention, their interpretation by competent organs and the practice of European States reflecting their common values'.Footnote 124 Clearly perceiving this comparative approach to be a logical corollary of its evolutive and purposive methodologies, the Court justified its reliance on the international law background to the legal question before it as follows:
Being made up of a set of rules and principles that are accepted by the vast majority of states, the common international or domestic law standards of European states reflect a reality that the Court cannot disregard when it is called upon to clarify the scope of a Convention provision that more conventional means of interpretation have not enabled it to establish with a sufficient degree of certainty.Footnote 125
Further, the Court affirmed that such reliance can even occur in circumstances where the instruments being drawn on have not been ratified by the particular respondent State or indeed by a majority of Council of Europe States generally:
It will be sufficient for the Court that the relevant international instruments denote a continuous evolution in the norms and principles applied in international law or in the domestic law of the majority of Member States of the Council of Europe and show, in a precise area, that there is common ground in modern societies.Footnote 126
Clearly, the legitimacy of this latter position is more compelling where the instruments being relied upon have indeed been ratified by a majority of Council of Europe States.Footnote 127 Extrapolating from Waldron's principled arguments in favour of the comparative method where domestic courts are concerned, such an approach lends itself to consistency and coherence.Footnote 128 It makes sense that like cases are treated alike or as Bell explains, that there is ‘a common enterprise between legal systems’Footnote 129 or in this case, between international legal instruments.Footnote 130
The comparative approach and the principle of effectiveness in particular are mutually reinforcing methodologies. Even in cases where apparently contradictory instruments are simultaneously applicable, the Court will strive to achieve a ‘combined and harmonious’ interpretation of those instruments, together with the Convention, provided that the Court can, in so doing, achieve an interpretation of the Convention that is practical and effective.Footnote 131 In this respect, Helfer and Slaughter have commented that the Court's policy of ‘thoughtful convergence’Footnote 132 has enhanced its authority and helps to contribute to a ‘global community of law’ that is better equipped to insulate itself from political interference.Footnote 133
The trend of reliance on related international law and human rights instruments has been especially marked in regard to cases dealing with the rights of the child, particularly those dealing with access and custody in interpreting Article 8 of the ECHR.Footnote 134 Although some uncertainties prevail as regards the weighting of the best interests principle in the Court's case law, it has continuously applied the principle that in all cases concerning children, their best interests must be paramount.Footnote 135 As Van Beuren notes, all of the States parties to the ECHR are simultaneously parties to the CRC, making the latter Convention a natural candidate for providing ‘an additional instrument of legitimacy and guidance with which to protect the human rights of children’.Footnote 136 Given the depth and range of rights in the CRC, together with the best interests principle, its use as a reference point by the Court in interpreting the ECHR can manifestly influence a positive outcome in cases involving children. With these observations in mind, it is worth testing whether this approach has helped the Court to adapt the hitherto dormant provisions of Article 4 to cases dealing with child labour.
1. Child labour and the European Court of Human Rights
For many years, Article 4 of the ECHR lay bereft of interpretation, reflecting the hidden nature of many of the practices which were yet to emerge as modern manifestations of the traditional notions of slavery and labour abuse that it was intended to address. Initial case law of the former European Commission on Human Rights was concerned mainly with testing the limits of permissible work obligations for adults in professional fields of employment.Footnote 137 It was not until the case of Siliadin v France that the European Court of Human Rights had to assess the application of Article 4 to any case concerning a child.Footnote 138 In that case, the applicant was a 15-year-old Togolese girl who had been brought to France with the consent of her family to work as a housemaid and to look after four children for 15 hours a day, seven days a week, without pay for several years. She claimed before the European Court of Human Rights that Article 4 ECHR had been violated in her case since the only penalty imposed on her employers was a civil one to pay compensation.
The Court held unanimously that there had been a violation of Article 4 by reason of the State's failure to put in place criminal law legislation sufficient to protect the applicant child from treatment which amounted to servitude and forced labour. As such, the ruling was a welcome first step in elucidating the relevance of Article 4 to domestic service involving children. Arguably, however, the Court's failure to apply the various interpretive methodologies described above in a coherent manner resulted in a judgment that failed to fully maximize the reach of the Convention to the facts at hand. On the one hand, the Court applied its comparative approach to deduce positive obligations from the text of Article 4 to adopt criminal law provisions to protect minors in Siliadin's situation. But as Cullen notes, the Court appears to have been reluctant to ensure that the positive obligations extended beyond the adoption of criminal law measures to ensuring compensation for victims.Footnote 139 A fuller engagement with the range of positive obligations envisaged by the gamut of international instruments described above might have prompted the Court precisely in that direction. In particular, a consideration of the wide spectrum of positive obligations identified by the European Committee on Social Rights (ECSR) implicit in the Convention's sister instrument —the European Social Charter—as well as those identified by the Committee on the Rights of the Child in regard to the CRC would have greatly illuminated the possibilities for similar development of Article 4 of the Convention.
The same is true as regards the Court's application of the comparative approach to elucidate the core content of each of the terms prohibited by Article 4. By reference to the 1926 Slavery Convention, the Court notoriously decided that the applicant had not been subjected to slavery because the couple who employed and exercised control over her did not have “a genuine right of legal ownership over her, thus reducing her to the status of an ‘object’”.Footnote 140 With reference to the Supplementary Convention on the Abolition of the Slave Trade, the Court held that Siliadin had been a victim of servitude as prohibited by Article 4 which it held consists of an obligation to provide one's services by the use of coercion, as opposed to legal ownership.Footnote 141 Further, it entails the obligation of a ‘serf’ to live on another's property and the impossibility of changing his or her status, as was the case in regard to the applicant.Footnote 142 Finally, the Court held that she had also been subjected to forced labour by reference to the definition in the 1930 Forced Labour Convention, viz. ‘all work or service which is exacted from a person, involuntarily and under the menace of any penalty’. Using that definition, the Court held that she had satisfied the double requirement to show that she had been doing the work against her will and that she had effectively been under a menace of penalty since the threat about her immigration status was always in the atmosphere and referred to by the perpetrators.Footnote 143
Far from raising concerns about overt judicial activism, the judgment in Siliadin evidences a remarkable level of judicial restraint to the interpretation of the concepts in Article 4. While it mentions the fact that the Convention is a living instrument which must be interpreted in the light of present-day conditions, the judgment fails to apply the evolutive method with reference to current data available on the nature and scale of domestic labour abuse. Further, the court's application of the comparative method is also deficient in that the substantive judgment makes no mention of the Palermo Protocol or the (admittedly newly drafted) Council of Europe Trafficking Convention, despite the fact that the facts of the case had all the hallmarks of a child-trafficking situation (where the question of consent is irrelevant). Likewise, no reference is made to the 1999 ILO Convention on the Worst Forms of Child Labour which, as outlined above, contains examples of slavery like practices that could have informed the reasoning of the Court in its interpretation of the terms.Footnote 144 Rather, the Court indulges in an almost mechanical invocation of definitions of slavery, servitude and forced labour forged in instruments drafted decades ago.Footnote 145
It is submitted that a better approach to interpreting the concepts in Article 4 would have been to adopt similar reasoning to that which the Court routinely adopts in interpreting Article 3 of the Convention. In that context, the Court has long since based its consideration of whether ill-treatment constitutes ‘torture’, ‘inhuman’ or ‘degrading’ treatment or punishment by reference to the severity of the treatment in tandem with the relative assessment of the particular circumstances approach outlined above. In Selmouni v France, the Court combined this reasoning with its ‘living instrument’ approach in holding that certain acts which were classified in the past as ‘inhuman and degrading treatment’ as opposed to ‘torture’ could be classified differently in future.Footnote 146 This was so because the increasingly high standard required in regard to human rights protection ‘correspondingly and inevitably requires greater firmness in assessing breaches of the fundamental values of democratic societies’.Footnote 147 Moreover, in Article 3 cases, the fact that treatment is meted out to children is consistently regarded as a factor that will tip the balance in deciding whether it violates Article 3 and the extent to which it violates that Article. By analogy, therefore, a logical approach for the Court in analysing Article 4 cases would be to conceptualize slavery, servitude and forced labour along a spectrum of actual control exercised by the perpetrator together with a consideration of the severity of exploitation at issue. Such a spectrum test should be supplemented by a relative assessment of the individual characteristics of the victim.
Applying this spectrum test in combination with the relative assessment approach to the facts of Siliadin, it is submitted that the virtual imprisonment of a 15-year-old girl in a household, performing myriad household chores, 15 hours a day, seven days a week would more readily be imagined as a modern form of slavery. The conclusion that the Court pays insufficient attention in fact to the status of an applicant as a child in these cases is fortified by its subsequent decision in CN v United Kingdom.Footnote 148 This case involved very similar facts to those arising in Siliadin, save that the applicant in this case was an adult female. In analysing whether there had been a violation of Article 4 of the Convention by reason of the failure of the State to investigate properly her situation, the Court held that there had been a credible suspicion that the applicant had, like Siliadin, also been held in domestic servitude.Footnote 149 Surely the status of an applicant as a child should make a material difference to the court's determination in these cases? Applying the spectrum/relative assessment approach and taking account of prevailing standards in Europe, the acute loss of power and agency of the vulnerable child logically warrants the more condemnatory designation of slavery.
The shortcomings identified in the Court's judgment in Siliadin were to a large extent ameliorated by its subsequent judgment in the case of Rantsev v Cyprus and Russia. Footnote 150 Although not dealing with child labour (but rather with the plight of a young, Russian woman who became the victim of human trafficking in Cyprus) the Court took the opportunity in that case to expand greatly on the first steps taken in Siliadin to develop the potential influence of Article 4 of the Convention in preventing modern forms of slavery and protecting its victims.Footnote 151 Combining all of the principal methodologies outlined above—the principle of effectiveness, the evolutive method and the comparative approach—the Court concluded that human trafficking (as defined in the Palermo Protocol and the Council of Europe Anti-Trafficking Convention) fell within the scope of Article 4 of the ECHR, without considering it necessary to specify whether the trafficking about which the applicant had complained actually constituted ‘slavery’, ‘servitude’ or ‘forced and compulsory labour’.Footnote 152 While it would undoubtedly have been more helpful if the Court had identified which particular concept specified in Article 4 had been breached on the facts, the statement that it was unnecessary to do so indicates that the Court does not necessarily equate trafficking essentially with slavery, as argued by Allain.Footnote 153 Rather, it indicates that the Court understands the potential for trafficking to take shape in many different guises and levels of egregiousness. It is unfortunate that the Court did not take the opportunity in Rantsev to articulate such manifestations in accordance with the spectrum test advocated above.Footnote 154
More significantly, the Rantsev case emphatically builds on Siliadin by expanding on the range of positive obligations inherent in the terms of Article 4 as regards victims and potential victims of trafficking.Footnote 155 Taking into account evidence of the nature and proliferation of human trafficking, previous case law on Articles 2 and 3 of the Convention, as well as the provisions of the Palermo Protocol, the Court held that in addition to criminal law provisions, Article 4 ECHR requires States to take operational measures to protect victims of trafficking or potential victims.Footnote 156 Amongst those obligations identified by the Court that have potentially wider application than the specific crime of trafficking include the observation by the Court that the obligation to take action arises where the State authorities are aware or ought to be aware of the circumstances giving rise to a credible suspicion that an identified individual has been, or is at a real and immediate risk of being exploited.Footnote 157 The authorities are then obliged to take appropriate measures to remove the individual from that situation of risk.Footnote 158 These measures include ensuring the physical safety of victims and officials must be trained in this area. Further, Article 4 also entails procedural obligations to investigate allegations of trafficking (and by inference, other infractions of Article 4), according to the same investigative obligations as have been identified with respect to Articles 2 and 3.Footnote 159 This obligation does not necessarily have to be triggered by a complaint from a victim or next of kin; once the matter has come to the attention of the authorities, they must act on their own motion.Footnote 160 Recognizing the often cross-border nature of the phenomenon, the Court also held that States are obliged under Article 4 to cooperate with the relevant authorities of other States concerned in the investigation of events occurring outside their territories;Footnote 161 while countries of origin, in particular (in this case, Russia) are obliged specifically to investigate the operation of networks on their territories engaged in the recruitment of victims.Footnote 162
Stoyanova is critical of the Court in Rantsev for adopting the human trafficking context as a frame of reference in analysing and adjudicating on the alleged violations at hand, rather than simply examining whether the particular factual circumstances of the case amounted to a violation of Article 4.Footnote 163 In her view, the adoption of the trafficking lens inevitably led the Court to apply an anti-immigration and anti-prostitution agenda, eschewing in the process substantive engagement with the meaning of the concepts articulated in Article 4.Footnote 164 She argues that the Court should have discarded the trafficking lens, clarified the scope of the existing concepts and assessed whether the regulatory framework in place in Cyprus offered the necessary protection and assistance, especially in regard to vulnerable migrant workers.Footnote 165 Moreover, she speculates that the trafficking lens led the Court to impose a more demanding test on States in terms of their positive obligations in respect of Article 4, ie that a violation may be established where it can be shown that the authorities knew or ought to have known of a ‘credible suspicion’ of a real and immediate risk of trafficking rather than an actual risk of this occurring.Footnote 166 While agreeing that a greater focus on the material content of the concepts in Article 4 would undoubtedly have been more helpful in elucidating the material scope of Article 4, the alternative perspective offered here is that the adoption of a trafficking lens is a form of ‘relative assessment’ that was crucial to the identification of the legal obligations inherent in Article 4. By recognizing the special vulnerability of the applicant as a victim of human trafficking, the Court went on to elaborate highly specific positive obligations which are vital in tackling the hidden nature of that phenomenon. Human trafficking in all its guises (including for the purposes of labour exploitation) is notoriously difficult to detect, precisely because of the physical and/or psychological power exerted over victims by their traffickers. As Gallagher notes, detection is exponentially more difficult prior to the actual exploitation phase,Footnote 167 thus making the obligation to investigate and identify situations of human trafficking and the adoption of the ‘credible suspicion’ standard all the more important. This is particularly true in cases of child trafficking where the victim herself might have no conception that she is a ‘victim’ of trafficking, much less of any crime proper.Footnote 168 Moreover, had the trafficking lens not been adopted, it is doubtful that the Court would have been inspired to extend the positive obligations of investigation to the State of origin (Russia) or to consider the importance of cross-border cooperation between States in combatting the phenomenon.
These observations are put in sharp relief on close analysis of the Court's most recent judgment in CN and V v France involving children in domestic labour.Footnote 169 The case concerned two sisters from Burundi who were ‘brought’ as children to France by their aunt after the civil war which had claimed the lives of their parents. At the time of their arrival in France, the children were aged 16 and 10 respectively. Their aunt was married to a former government minister from Burundi who was working in the diplomatic service. The couple had seven children, one of whom was disabled. When the girls arrived, they were housed ‘in deplorable conditions of hygiene in an unheated, insalubrious basement’ in circumstances where they had no access to a bathroom and had to fetch a pail of water from the kitchen to wash themselves.Footnote 170 Both girls were forced to work as housemaids to varying degrees. The first applicant was never sent to school. She spent all day doing housework and looking after the couple's disabled child.Footnote 171 The second applicant was sent to primary school, but when she got home from school, she would have to help her sister with domestic chores. Both were unpaid and not given any days off.Footnote 172 The aunt constantly threatened the girls with being sent back to Burundi and each alleged that she had been physically and verbally abusive to them on a daily basis. The second applicant claimed further that the work she had to do for the couple led her into difficulties at school; that she had suffered from the neglect of her health and development; and that she had been deprived of all the leisure, games and other activities normally enjoyed by children her age.Footnote 173 An initial investigation by the child police protection services a year after the girls' arrival resulted in no action being taken.Footnote 174 Action was finally taken by the Nantes public prosecutor some three years later, following representations by an NGO.Footnote 175 The couple's diplomatic immunity was lifted and they were eventually prosecuted and convicted by the domestic criminal court for treatment contrary to human dignity and further, in the aunt's case, of aggravated wilful violence against the second applicant. While the latter conviction was upheld, the former conviction against both parties was later overturned on appeal.Footnote 176 Relying on Article 4 of the ECHR, the applicants claimed that France had failed in its positive obligations to protect them from being held in servitude and subjected to forced or compulsory labour at the hands of their aunt and uncle. While neither child argued before the Court that they had been subjected to slavery, they did put forward the claim that their situation had all the hallmarks of human trafficking.Footnote 177
Bearing in mind the foregoing analysis of the range of interpretive techniques available to the Court, contextual information and even the progression in the Court's own case law from Siliadin to Rantsev, the judgment in CN and V v France represents a very unfortunate step backwards for the plight of children in hidden situations of domestic abuse and particularly so for those who are trafficked for this purpose. This is so because of the reasoning of the Court in deciding whether each of the two applicants had been subjected to servitude and forced labour within the meaning of Article 4 ECHR and because of the limited reach of its analysis in respect of the positive obligations inherent in that provision. As to the first issue, it is striking that despite the applicants' arguments, the Court declined to conceptualize the case as one of human trafficking on the basis that it had more in common with the Siliadin case than with Rantsev, concerning as it did ‘activities related to ‘‘forced labour’’ and ‘‘servitude’’, legal concepts specifically provided for in the Convention’.Footnote 178 Accordingly, the Court began its analysis with the categorization of ‘forced labour’ and ‘servitude’ which it had applied in the earlier case of Siliadin. Reasoning that the type and amount of work involved helps to distinguish between ‘forced labour’ and a ‘helping hand’ which can reasonably be expected of family members, the Court held that while the older child had been subjected to forced labour, the treatment of the younger girl was not sufficiently excessive to amount to forced labour within the meaning of Article 4.Footnote 179 This conclusion appears to be noticeably at odds with the reality of the younger child's situation as accepted by the domestic courts. What is particularly striking is that there is hardly a mention of the child's status as a minor (aged at the time of the events between 10 and 14 years of age). There is no allusion at all to the CRC or relevant international instruments outlined above in regard to acceptable conditions of work for children. Clearly, the application of a relative/child-centred lens in combination with a fuller appreciation of the legal and factual context of human trafficking for the purposes of domestic labour would have alerted the Court to the hidden nature of this phenomenon and more importantly to prevailing standards in the field. These include, as noted earlier, an outright ban on work of any description for children under the age of 13.
On servitude, the Court held that the fundamental distinguishing feature between it and forced labour lay in the feeling induced in the victim that their condition is permanent and unlikely to change. While this can be based on objective factors (such as the obligation to live on another's property) it can be sufficient if the feeling ‘is brought about or kept alive by those responsible for the situation’.Footnote 180 In this sense, the Court appears to have moved in the direction of a spectrum test by characterizing ‘servitude’ as an ‘aggravated’ form of forced or compulsory labour without the rigid categorization given to it ‘to live on another's land’ applied in Siliadin.Footnote 181 Applying this reasoning to the facts at hand, however, the Court held that while the older child had accordingly been kept in a state of servitude, the younger child had not, since she had attended school and her activities had not been as confined as that of her older sister.Footnote 182 Again, the failure to take a child-centred view and to consult relevant international instruments in the field resulted in a conclusion that falls far short of those standards as they have been applied by other human rights bodies, including the Court's sister body, the ECSR. Clearly, the ability to attend school is not the distinguishing factor in that Committee's view, but rather whether the work involved is detrimental to the child's health and development and her ability to obtain maximum advantage from schooling and to integrate satisfactorily in society.Footnote 183 The maximum guideline of 20–25 hours per week envisaged by the ECSR for ‘light work’ seems easily to have been exceeded in this case as regard of the second applicant, though the Court appears to have paid little attention to the precise hours involved.
The Court's findings in regard to the positive obligations owed by the State were equally truncated by its failure to fully explore the legal and factual context of the case at hand. On this front, it held that the domestic law in place was the same as in the Siliadin case, as a result of which there had been a violation of Article 4 in regard to the first applicant as regards the State's obligation to put in place a legal and administrative framework to effectively combat servitude and forced labour.Footnote 184 While this is a positive result on the facts, the judgment fails to engage substantially with the realities of child domestic labour and trafficking by neglecting to specify the need for States to lay down standards for permissible ‘light work’ involving children. Indeed, the only other explicit obligation even considered by the Court was whether the State had failed to investigate fully a situation of potential exploitation. In this respect, despite pointers given by the third party interveners regarding the special measures and procedures required by the Council of Europe Trafficking Convention to identify child victims of trafficking,Footnote 185 the Court merely applied the principles set forth in Rantsev regarding measures of investigation. Taking account of the investigations that had been carried out, it held that there was no evidence of unwillingness on the part of the authorities to identify and prosecute the offenders, particularly in view of the applicants' personal failure to alert them to the full extent of their situation.Footnote 186 This focus on the perceived lassitude of the victims is strikingly at odds with contemporary understanding of the range of reasons why abuse victims (especially foreign born child victims of trafficking) may be reluctant or even incapable of self-identifying.Footnote 187 This is presumably the reason why other human rights bodies, such as the Committee on the Rights of the Child, the ECSR and GRETA have stressed the best interests of the child principle in interpreting analogous provisions and have emphasized the need for States to put in place effective and coordinated supervisory structures extending beyond the level of a general Labour Inspectorate but also involving educational and social services. As numerous case studies have shown, training of law enforcement officers and immigration officials at border entry points is also particularly important to improve identification of children being trafficked across borders for the purposes of exploitation.Footnote 188 Had the Court applied a child-centred lens and fully taken account of the challenges faced and procedures necessary to identify child victims of labour abuse in all its various guises, it might have recognized the potential for reading child-specific obligations into the text of Article 4 in that respect.
The unfortunate result of the CN & V v France case is that it constituted a missed opportunity for the Court to build on the Rantsev judgment by taking a far tougher stand in respect of what would appear to have been a classic case of the type of domestic child labour exploitation happening in Europe and identified at the outset of this Article. The Rantsev case demonstrated that when account is taken of the extent and nature of a particular problem as well as the full range of comparative instruments designed to tackle it, the resulting analysis by the European Court of Human Rights leads to more extensive and context-specific outcomes. A similar observation can be made in regard to cases dealing with the phenomenon of domestic violenceFootnote 189 and reception conditions for asylum seekers.Footnote 190 The failure to situate the facts of the case in the particular context of child labour as well as to take account of other international instruments aimed at combatting it probably contributed to what appears to be a wholly inadequate response to the situation of the younger child and to limited obligations generally. This is particularly regrettable given the Court's influence in shaping substantive law and policy in Europe and beyond.
V. CONCLUSION
Writing in 1979, Judge O'Donoghue in the case of Ireland v United Kingdom observed in relation to the interpretation of Article 3 of the ECHR that: ‘One is not bound to regard torture as only present in a mediæval dungeon where the appliances of rack and thumbscrew or similar devices were employed.’Footnote 191 Apparently, the Court has heeded that advice, as interpretation of the latter provision has been explicitly adjusted to reflect a very high standard of protection against the full spectrum of ill-treatment envisaged by its terms and particularly as regards children. Clearly, the Court has had less opportunity to consider the terms of Article 4 so that interpretation of its concepts and material scope is still evolving. As the foregoing analysis has demonstrated, however, recent case law has been erratic in its response to the phenomenon of child labour—an increasingly common but clandestine practice in Europe, often linked to the rise of human trafficking. In view of its role and capacity as the region's principal human rights court, the European Court of Human Rights has the capacity to greatly influence law and policy in Europe in tackling this phenomenon. In order to do so, the Court needs to be conscious of the phenomenon at large and to draw on the full range of interpretive tools at its disposal so as to give contemporary relevance to the concepts and parameters of Article 4. In this respect, it has been argued that the Court should draw more systematically on its comparative method by taking comprehensive account of specific provisions identified in relevant international instruments regarding children as well as their interpretation by other authoritative human rights bodies. Further, the Article has argued by analogy with the development of Article 3 case law, that there is great scope for developing the content of Article 4 in a more coherent manner by adopting a spectrum test in combination with a relative assessment approach. Such a double-edged approach would undoubtedly help to bring to the fore the particular vulnerability of children to labour exploitation and to a higher standard of protection in their case.
