A comparative study in human rights compliance in Bolivia and Argentina by Marie Skłodowska-Curie Fellow Lorenza Fontana and Jean Grugel.
by Lorenza Fontana and Jean Grugel
When we think about child labor, what often comes to mind are images of dirty, poorly dressed children—digging in mountains of trash, carrying heavy loads of bricks or crops, or disappearing in dark mine tunnels. Yet working children are a heterogeneous group that also includes children helping out in domestic labor, family shops, or subsistence agriculture, and adolescents undertaking their first steps into the labor market.
While child labor is generally perceived as bad for children and efforts toward its elimination are pursued by the international communities, in certain contexts—and particularly in countries of the Global South—this is a culturally accepted and sometimes prized practice, considered fundamental for basic household production. In certain countries, working children themselves have created unions and mobilized to ask for fairer labor conditions and greater protections rather than child labor elimination. These gaps between international and domestic views on child labor have made the task of regulating the issue under human rights law particularly challenging for international organizations.
International human rights agreements have proliferated since the 1990s. They seek to encourage states to behave in ways that respect human rights and they play a major role in shaping ideas about how to conduct world politics. But despite their proliferation, we still have an incomplete understanding of how states respond to internationally agreed-upon charters of rights, why they respond the way they do, the circumstances under which rights treaties make a difference, and what that difference might be. Compliance tends to be understood in this debate in an either/or fashion: states either come into line with international human rights law or not. Legal anthropology and constructivist approaches to international relations sought to document the ‘translation’ or ‘socialization’ of human rights that shapes domestic compliance—by which they mean how international norms become attached to local issues that allow communities to ‘make sense’ of the norm—but they have not challenged the assumption that ‘compliance’ implies an alignment between domestic practices and international agreements.
Deviant and Over-Compliance
What happens when governments accept the underlying rights principle associated with an international rights norm but disagree with its application? Will they take steps to implement the international agreement or will they promote an alternative interpretation of the underlying rights principle that is thought to more adequately reflect domestic views?
In a recent article published in Human Rights Quarterly, we offer some answers to these questions in relation to a set of international norms that seek to exclude children and young people from the labor market until they reach a certain age, usually fourteen, and protect them from hazardous work. We draw on two examples from Latin America—Bolivia and Argentina. Focusing on these two cases allows us to compare compliance politics on opposite ends of the spectrum, yet in a similar macro-political and economic framework—namely during the “pink wave” of leftist government victories in most of South America. Our research relies on intensive fieldwork conducted between July 2013 and September 2014 in both Bolivia and Argentina, where we interviewed representatives of national and international organizations, civil society organizations, trade unions (including children’s organizations), and the private sector.
In Bolivia, child labor has recently drawn considerable international attention following the July 2014 approval of a new Children’s and Adolescents’ Code (Law 548) that allows children to work from age ten in self-employment (shoe shining, selling goods on the street, for example) and at age twelve to work for others, if authorized by the Child Ombudsman Office. The Code was accompanied by promises from the government to eliminate the exploitation of children in the workplace and forced child labor.
Nevertheless, despite these steps to ensure that children’s rights in the workplace would be upheld, several NGOs, including Human Rights Watch and Anti-Slavery International, have condemned the new Code. The policy has also been denounced by the UN’s International Labour Organization (ILO) as a violation of the Minimum Age Convention, amid calls for the government to amend the law.
Indeed, it is hard to deny that the Code represents a deviation from strict compliance with ILO agreements. But the Bolivian response, we argue, is not the result of the country’s unwillingness to comply with the Convention; rather, it reflects an alternative interpretation of children’s rights and best interests in a way that more adequately reflect domestic views. It is, in other words, a form of what we call “deviant compliance.”
In contrast to Bolivia, in Argentina the internal debates about state obligations with regard to child labor were considerably less acrimonious. The outcome was also remarkably different, with the government introducing measures that far exceeded ILO recommendations with respect to both the minimum age for work and the elimination of all forms of hazardous labor. In 2008, the government increased the minimum working age from fourteen to sixteen and created a unit to protect working adolescents (Law 26.390).
Even more remarkably, in 2013, Argentina criminalized the employment of children—parents and guardians excepted—in Article 148bis of the Penal Code, making it punishable with up to four years in prison. This, we argue, is an example of “over-compliance.” The government has indeed accepted the rightness of both the international agreement and the underlying principles with such enthusiasm that its response has gone significantly beyond that required under international law.
Misalignments and Domestic Politics
Both Argentina and Bolivia take children’s rights—and the debate about how best to protect the rights of working children have—quite seriously. Equally, governments and civil societies in both countries evidently regard the international conventions that govern child labor as an important starting point for domestic debate. Yet in neither country have governments simply aligned domestic law with the international rights agreement. Instead, they have sought—in radically different ways—to adjust international child labor norms and shape them in ways that reflect domestic perceptions of children’s rights in relation to work. These are, then, different models of compliance. Examining each country’s domestic politics is central to understanding both why and how they adopt such different strategies of compliance with international human rights norms. In fact, the really interesting feature of Bolivia and Argentina’s compliance with international child labor agreements is not so much why—we would expect generally rights-respecting democratic countries to do so—but how.
In Argentina and Bolivia, patterns of civil society and state interaction have been crucial for shaping outcomes in relation to child labor. Both countries have highly mobilized civil societies and active trade union movements. However, the nature of this mobilization differs considerably between the two countries. In Argentina, major trade unions took a leadership role in consolidating an anti-child labor coalition (mirroring what has generally happened in Western countries and at the international level). But in Bolivia, the unions stayed at the margins. The working children movements, or niños, y adolescentes trabajadores (NATs), led the debates in demanding the right to work, with the support of international NGOs and donors.
State attitudes are also fundamental for explaining outcomes. Argentina is an example of how strong leadership by state institutions—supported by long-term administrators and a relatively efficient bureaucracy—led to the definition of a coherent strategy, at least at the national level.
This was not the case in Bolivia, where different state institutions and ministries have adopted conflicting and changing stands on child labor. The lack of leadership within the state apparatus, as well as the fragmented and volatile nature of Bolivian public administration, partially explains their fragmented interpretation. Because Bolivian actors, and perhaps especially Bolivian children, drove the debate, the state finally took a view in support of what has come to be seen internally as the most appropriate strategy, but also one that asserts the right of Bolivia to “be different” from the international norm. Outcomes are in part the result, then, of the extent to which governing elites and coalitions of civil actors leading the discussion collaborate.
Beyond the underlying relationships and resources of state and civil society, and the contingent political processes associated with them, domestic views on the adaptability of international child labor norms are also important. The difficulties of embedding international human rights norms—which tend to reflect a particular morality associated with the West and the European enlightenment—in contexts that do not share the same cultural background, are well known. These difficulties are accentuated when the international norms set out to prescribe daily family life and familial political economies.
Attitudes and practices of child labor have historic and contextual roots in each country. In Bolivia, family agriculture is a century-long tradition, and today about 50 percent of working children are in the agriculture sector. With no experience with industrialization, and no history of child exploitation as seen in the West, Bolivia has no reason to see the elimination of child labor as a moral imperative. Argentina, though more industrialized, was deeply affected by the 2001 economic crisis when large numbers of impoverished children were forced into living on the streets, a devastating image that was regarded as a failure of the state. While one perspective might see work as part of a child’s life and growth, another can view child labor as deleterious to educational aspirations.
In one sense, the debate on child labor is an exceptionally moral dispute, with only a limited degree of pragmatism. It tends to ignore the difficulty of defining what constitutes child labor in much of the Global South; many activities cannot be clearly categorized as either exploitation and abuse or as “helping out,” such as part-time self-employment or family agriculture.
Stories of Extremes
Finally, distinctive Bolivian and Argentinian responses have emerged in a changing geopolitical context. It is certainly the case that the Latin America region is, arguably, rights-respecting and has been an enthusiastic backer of the creation of international human rights standards. For example, both countries recognize the nearly universal norm of giving children minor status until the age of eighteen, at which point they are accorded certain rights such as voting.
Nevertheless, there is a growing sense in both countries that it is time for rights standards to be set at the national level. Increasing relevance of the domestic context can at least partially explain why, even in contexts characterized by similar macro-political processes and with a shared concern for children’s rights, models of compliance can lead to very different policy outcomes that diverge significantly from international conventions and guidelines.
In this sense both Bolivia and Argentina are stories of extremes. Both countries take the norm seriously as well as their commitment to a rights-based agenda. And both countries move beyond a responsive model of compliance—albeit in different directions. Bolivia and Argentina are not ignoring human rights law, nor are they trying to avoid the costs of “translation.” For Bolivia, there are political costs in taking a deviant compliance approach because of the international condemnation that has followed. Argentina, meanwhile, has embarked on a costly eradication strategy, which requires investments in both the judiciary and the regulatory system. Ultimately, these cases speak to the need for a more nuanced understanding of what compliance means and the recognition of domestic inputs in its formulation.
—Lorenza Fontana, Marie Skłodowska-Curie Fellow, Weatherhead Scholars Program, Weatherhead Center for International Affairs; and Jean Grugel, professor of development politics, University of York.
Marie Skłodowska-Curie Fellow Lorenza Fontana is part of the Weatherhead Scholars Program at the Weatherhead Center for International Affairs. She is also a research associate in the Politics Department at Newcastle University. This blog post summarizes her recent journal article with Jean Grugel “Deviant and Over-Compliance: The Domestic Politics of Child Labor in Bolivia and Argentina,” from Human Rights Quarterly. She is also coeditor of the book, Demanding Justice in the Global South: Claiming Rights (Palgrave Macmillan, 2017).
- Ilias Bantekas and Lutz Oette. International Human Rights Law and Practice. Cambridge: Cambridge University Press (2013).
- Abram Chayes and Antonia Handler Chayes. "On compliance." International Organization 47, no. 2: 175-205, 176 (1993).
- Sonia Cardenas, Conflict and Compliance: State Responses to International Human Rights Pressure. Philadelphia, PA: University of Pennsylvania Press (2007).
- Sally Engle Merry, Human Rights and Gender Violence: Translating International Law into Local Justice. Chicago: University of Chicago Press (2006).
- Lorenza B. Fontana and Jean Grugel. "Deviant and Over-Compliance: The Domestic Politics of Child Labor in Bolivia and Argentina." Human Rights Quarterly 39.3: 631-656 (2017).
- Jean Grugel and Enrique Peruzzotti, "The Domestic Politics of International Human Rights Law: Implementing the Convention on the Rights of the Child in Ecuador, Chile, and Argentina." Human Rights Quarterly 34.1: 178-198 (2012).
- Emilie M. Hafner‐Burton and Kiyoteru Tsutsui, "Human Rights in a Globalizing World: The Paradox of Empty Promises." American Journal of Sociology 110, no. 5: 1373-1411 (2005).
- Thomas Risse "International norms and domestic change: Arguing and communicative behavior in the human rights area." Politics & Society 27.4: 529-559 (1999).
- Beth A. Simmons, Mobilizing for Human Rights: International Law in Domestic Politics. Cambridge: Cambridge University Press (2009).
- A young shoe shiner looks up at a client while polishing his shoes. Jay Koppelman / Alamy Stock Photo
- Bolivia, Cochabamba, street kid cleaning car windscreens. Florian Kopp / Getty Images
- International Labour Conference 2017. More than 5,000 delegates representing governments, employers and workers gather at the #ilo International Labour Conference, the largest global gathering dedicated to the world of work. Inside ILO Flickr, A. Belopopsky, CC BY-NC-SA 2.0.
- Lima, Peru: A group of children who carry fruit at Lima's Fruit Market participate in the Global March Against Child Labor 25 March to claim their right to work. According to official figures some 1,425,000 Peruvian children between six and 17 years old work to help support their families, of those 15,000 work in life-threatening conditions. The Global March has been in Brazil, Uruguay, Argentina, Chile, Bolivia and will be in Ecuador, Colombia, Central America, the United States and will finish in Geneva in June. EDUARDO VERDUGO / AFP / Getty Images