The Secretary of Labor shall provide by regulation or by order that the employment of employees between the ages of fourteen and sixteen years in occupations other than manufacturing and mining shall not be deemed to constitute oppressive child labor if and to the extent that the Secretary of Labor determines that such employment is confined to periods which will not interfere with their schooling and to conditions which will not interfere with their health and well-being. (29 U.S.C.S. 201 § (3)(l).
Chinese law is theoretically as strict about prohibiting child labor as American law is. Under the Regulations on Prohibition of Child Labor, which was adopted by the State Council in 2002, employers are prohibited from hiring children under the age of 16. Moreover, "The regulation stipulates that employers will be fined 5,000 yuan ($720) for every child laborer they hire for one month. If they continue to do so, authorities will rescind their licenses" (Xiaofeng & Qian, 2008). In addition to laws specifically addressing child labor, China has a compulsory education law, which requires each child in China to attend nine years of school, which should prevent many young children from being able to enter into the workforce (Xiaofeng & Qian, 2008).
Both the United States and China were members of the United Nations' Convention on the Rights of the Child. In that document, the member nations agreed to several key issues about children, many of which relate to the issue of child labor. For example, in Article 27 of the Convention on the Rights of the Child, which addresses a child's right to an adequate standard of living, the United Nations (UN) provides that:
1. States Parties recognize the right of every child to a standard of living adequate for the child's physical, mental, spiritual, moral and social development.
2. The parent(s) or others responsible for the child have the primary responsibility to secure, within their abilities and financial capacities, the conditions of living necessary for the child's development.
3. States Parties, in accordance with national conditions and within their means, shall take appropriate measures to assist parents and others responsible for the child to implement this right and shall in case of need provide material assistance and support programmes, particularly with regard to nutrition, clothing and housing (1989).
In Article 28, which addresses a child's right to an education, which is compromised when a child becomes a member of the workforce, the UN provides that:
1. States Parties recognize the right of the child to education, and with a view to achieving this right progressively and on the basis of equal opportunity, they shall, in particular:
(a) Make primary education compulsory and available free to all;
(b) Encourage the development of different forms of secondary education, including general and vocational education, make them available and accessible to every child, and take appropriate measures such as the introduction of free education and offering financial assistance in case of need;
(c) Make higher education accessible to all on the basis of capacity by every appropriate means;
(d) Make educational and vocational information and guidance available and accessible to all children;
(e) Take measures to encourage regular attendance at schools and the reduction of dropout rates (1989).
Article 29 specifically addresses the nature of a child's education and provides that:
1. States Parties agree that the education of the child shall be directed to:
(a) the development of the child's personality, talents and mental and physical abilities to their fullest potential;
(b) the development of respect for human rights and fundamental freedoms, and for the principles enshrined in the Charter of the United Nations
(d) the preparation of the child for responsible life in a free society, in the spirit of understanding, peace, tolerance, equality of sexes, and friendship among all peoples (United Nations, 1989).
Article 31 discusses a child's right to leisure time, and provides that:
1. States Parties recognize the right of the child to rest and leisure, to engage in play and recreational activities appropriate to the age of the child and to participate freely in cultural life and the arts.
2. States Parties shall respect and promote the right of the child to participate fully in cultural and artistic life and shall encourage the provision of appropriate and equal opportunities for cultural, artistic, recreational and leisure activity (United Nations,1989).
Finally, Article 32 specifically addresses the issue of child labor and provides that:
1. States Parties recognize the right of the child to be protected from economic exploitation and from performing any work that is likely to be hazardous or to interfere with the child's education, or to be harmful to the child's health or physical, mental, spiritual, moral or social development.
2. States Parties shall take legislative, administrative, social and educational measures to ensure the implementation of the present article. To this end, and having regard to the relevant provisions of other international instruments, States Parties shall in particular:
(a) Provide for a minimum age or minimum ages for admissions to employment;
(b) Provide for appropriate regulation of the hours and conditions of employment;
(c) Provide for appropriate penalties or other sanctions to ensure the effective enforcement of the present article (United Nations, 1989).
While the above-described laws certainly appear aimed at eliminating exploitative child labor practices, it is clear that they are not adequate to do so. The international community has failed to include any penalties for countries that outsource their labor to countries where child labor is a frequent practice. For example, examining U.S. law, it is clear that the law is drafted to permit foreign child labor. The Fair Labor Standards Act specifically states that "No producer, manufacturer, or dealer shall ship or deliver for shipment in commerce any goods produced in an establishment situated in the United States," making no provision for goods produced in an establishment outside of the United States (29 U.S.C.S. 201 §(12)(a). There is absolutely nothing in domestic U.S. law prohibiting products created by oppressive child labor from entering into the domestic market, as long as such products are not produced domestically.
Furthermore, even though the United Nations' Convention on the Rights of the Child specifically addresses child labor, it does so in a manner that places the onus of preventing child labor on the country where such labor is performed. In Article 32(2), the UN directs State Parties to provide for minimum ages for employment, regulate hours and conditions of employment, and provide for penalties and sanctions when such laws are violated (United Nations, 1989). However, the UN Convention fails to place any burden on the countries utilizing non-domestic child labor. Because outsourcing countries generally have greater economic power than the countries where such labor is performed, it would probably be more appropriate to create laws aimed at punishing companies who utilize oppressive child labor, whether that labor is foreign or domestic.
Finally, there do not appear to be any loopholes in China's anti-child labor laws, which provide for economic sanctions and other penalties against employers utilizing child laborers. However, the reality is that China is an immensely huge country where a large proportion of the people live in poverty, and the Chinese government has a tremendous burden to meet to enforce such laws. Moreover, while the fines may seem tremendous, a fine of $720 a month for every discovered minor worker, even combined with that worker's daily salary is still less than what it would cost Nike to pay an American worker minimum wage to engage in the same work. The same holds true for any American country outsourcing labor to China. Therefore, while there is no real loophole in China's anti-child labor laws, they are not sufficiently stringent to discourage American corporations from utilizing child laborers in their sweatshops. .
Legality of using child labor
Nike's use of child labor in Chinese sweatshops is clearly illegal. It violates China's anti-child labor laws, which prohibit the employment of children under 16 in such working conditions. Moreover, Nike's use of child labor in Chinese sweatshops violates an international treaty, to which the United States and China are both signatory parties. However, there is no real provision in the law to punish Nike or similar countries. Nike uses independent contractors for production, so that Nike itself escapes financial or criminal liability for the legal violations that occur in China. Moreover, because U.S. laws only penalize the introduction of the products of domestic child labor into the market, Nike cannot be subject to civil or criminal penalties for that practice in the United States. Therefore, while engaging in a practice that is clearly illegal in its host country, Nike has established a system that insulates it from liability for this illegal…