Like every other corporation, the Swedish fashion multinational Hennes & Mauritz has the responsibility to make sure that human rights are respected throughout its supply chain. The efforts that are made to respect human rights should also be showcased. This is set out in the United Nations Guiding Principles, the most comprehensive template on Business and Human Rights to date. The publication of H&M’s statement that the company started contracting with manufacturers in Hlaing Thar Yar Township (Myanmar) was fully in line with these principles.
A recent statement from H&M that was published in the Guardian has however shown a very different side of the retailer. This document was issued in response to the claims that were made in the new book Modeslavar by Tobias Andersson Åkerblom and Moa Kärnstrand. The response of H&M reads as follows:
‘When 14- to 18-year-olds are working it is therefore not a case of child labour, according to international labour laws. ILO instead stresses the importance of not excluding this age group from work in Myanmar. H&M does of course not tolerate child labour in any form.’
Without wishing to go into the details of the allegations that were made by the two research journalists, this contribution points out two concerns that make H&M’s statement problematic. The first concern relates to the reference to the International Labour Organisation (ILO). The claim that the ILO would ‘stress the importance’ that children as young as fourteen can work is not correct. The confusing communication seems to build on an exception in Article 2.3 of the ILO’s Minimum Age Convention No. 138 (1973). This exception stipulates that some state parties can declare that the minimum age to be admitted to work is fourteen years. The nature of the exception shows however that the ILO does not support that children as young as fourteen can work. It is an exception that can only be invoked by ‘developing countries whose economy and educational facilities are insufficiently developed’ (Articles 2.4 and 2.5 ILO Convention No. 138). In addition, the exception should be temporarily and fundamentally motivated by the developing country. Moreover, on several occasions, the ILO has explained that even non-hazardous child labour damages the health and development of all persons less than 18 years of age. The ILO declared the effective abolishment of child labour as a core labour standard. This means that this right is declared as a constitutional obligation to all member states of the ILO, even if those member-States have not ratified the relevant conventions.
The second concern addresses the statement’s suggestion that not working would deprive the child (or his/her family) of the income. Why else would the ‘exclusion’ of children from factory work be framed as an issue in the statement? Working from a young age in clothing factories in a township that is notorious for its poor human rights record does not involve the development of many skills. On the contrary, this deprives children of an education. Child labour interferes with the child’s education because of the time it takes and the physical, mental, and emotional demands on the child. This time could have been invested in skills development through education and play. This finding is supported by empirical data that indicate that over 90 % of non-working children attend school, while just 10 % of working children attend school in Myanmar. Others have also asserted that losing the income of a child is a situation to avoid at all costs. While such argument may have some merit when the focus is on certain rights applied to adults, its validity is however questionable when it is applied to children as young as fourteen years old. Poverty is not only a cause but also a consequence of child labour. Working from a young age can have a detrimental impact on the overall development of the child.
Moreover, the interpretation of ‘exclusion of work’ by H&M is neither straightforward at the inter-country nor at the intra-country level. To begin, H&M’s interpretation does not hold water at the inter-country level. H&M started contracting with manufacturers in Hlaing Thar Yar Township only last year, after the European Union lifted many trade sanctions (which were mainly installed for political reasons). The reason is that Myanmar is an attractive country for H&M, a company that made it its mission to offer fashion at the ‘best’ price is Myanmar has a competitive advantage compared to other countries that offer low-skilled factory labour. The labour costs in Myanmar are among the cheapest in the world. This competitive advantage is further strengthened by patchy human rights regulation and little enforcement. For instance, only last year, the minimum age to work was raised from thirteen to fourteen years in the new Minimum Wages Law.
However, the end of compulsory education is still twelve years. This is problematic given the fact that leaving school typically coincides with joining the workforce in Myanmar. An ILO study has also found that Myanmar’s Factories and General Labour Laws Inspection Department imposes regulations that contradict the minimum age principles laid down in ILO Convention. The labour and legal compliance costs are therefore extremely low in Myanmar. The effect can be that workers in similarly low-skilled jobs in other developing and emerging states are driven out of their job, as Myanmar offers unconscionable competition lowering the standard of labour and legal compliance. H&M’s interpretation that children cannot be excluded from work is also flawed at the intra-country level. H&M supports employing children, in spite of high levels of adult unemployment in Myanmar. The real motivation is, of course, that child labour is less costly. The average wage of an adult in a city is Myanmar is three times as high (147500 Kyat or £ 96 per month) as that of a girl of 14 years old (48900 Kyat or £ 32 per month). In sum, the paradoxical outcome of H&M’s statement would be that young children cannot be deprived of an income from work, while more expensive adults – of the same low-skill level – in Myanmar and other countries can.
In sum, instead of denying the existence of child rights as defined in international law, H&M should take up its responsibility and avoid children’s rights being harmed in its supply chain. As long as this does not happen, other actions, such as joining the business for social responsibility’s Myanmar Responsible Sourcing Initiative, are pale in comparison.
Myanmar Minimum Wages Law of March 22, 2016.
UN Doc A/HRC/17/31 Annex (21 March 2013), Commentaries to Guiding Principles 15, 17 and 21.
UN doc CRC/C/15/Add.
UN doc. CRC/C/15/Add.
UN Doc CRC/C/GC/16.
ILO, Convention No. 138 Concerning Minimum Age for Admission to Employment of June 19, 1976.
ILO Convention No. 182 Concerning Worst Forms of Child Labour of June 17, 1999.
ILO, Declaration on Fundamental Principles and Rights at Work and its Follow-Up of June 18, 1998, Record of proceedings No. 20 and 22.
“A Clear Stand Against Child Labour,” H&M, accessed October 17, 2016, http://sustainability.hm.com/en/sustainability/commitments/choose-and-reward-responsible-partners/code-of-conduct/clear-stand-against-child-labour.html.
“H&M Offers Fashion And Quality At The Best Price,” H&M, accessed October 18, 2016, http://www2.hm.com/en_gb/index.html.
Sarah Butler, “H&M factories in Myanmar employed 14-year-old workers,” Guardian, August 21, 2016, accessed September 28, 2016, https://www.theguardian.com/business/2016/aug/21/hm-factories-myanmar-employed-14-year-old-workers.
Paul Collier, The Bottom Billion (Oxford: Oxford University Press 2008).
ILO, World Report on Child Labour 2015: Paving The Way To Decent Work For Young People. Geneva: International Labour Office, 2015. Accessed October 17, 2016. http://www.ilo.org/ipec/Informationresources/WCMS_358969/lang--en/index.htm.
ILO, Marking Progress Against Child labour. Global Estimates And Trends 2000-2012. Geneva: International Labour Office, 2013. Accessed October 17, 2016. http://www.ilo.org/wcmsp5/groups/public/---ed_norm/---ipec/documents/publication/wcms_221513.pdf.
Laura Ediger, Jeremy Prepscius and Chris Fletcher, Child labor in Myanmar’s Garment Sector: Challenges And Recommendations. San Francisco: The Business of a Better World, 2016. Accessed October 3, 2016 https://www.bsr.org/our-insights/report-view/child-labor-in-myanmar-garment-sector.
Sarah Joseph, Blame It On The WTO? A Human Rights Critique (Oxford: Oxford University Press, 2013).
Moa Kärnstrand and Tobias Andersson Åkerblom, Modeslavar (Stockholm: Leopard Förlag, 2016).
Ministry of Labour, Employment, Social Security and the Central Statistical Organization of Myanmar and International Labour Organisation, Myanmar Labour Force, Child Labour And School To Work Transition Survey 2015 Executive Summary Report. Geneva: International Labour Office, 2016. Accessed October 17, 2016, http://www.ilo.org/yangon/whatwedo/publications/WCMS_516117/lang--en/index.htm/
Matthew Mitro, “Outlawing The Trade In Child Labor Products: Why The GATT Article XX Health Exception Authorizes Unilateral Sanctions,” American University Law Review 51 (2002).
Aldo Musacchio and Erick Werker, “Mapping Frontier Economies,” Harvard Business Review (2016).John Ruggie, For the Game. For the World. FIFA and Human Rights. Corporate Responsibility Initiative Report No. 68. Cambridge, MA: Harvard Kennedy School, 2016. Accessed August 28, 2016. https://www.hks.harvard.edu/centers/mrcbg/programs/cri/research/reports/report68.
Jenny Schultz and Rachel Ball, “Trade As A Weapon? The WTO And Human Rights-Based Measures,” Deakin Law Review 12 (2007).
Lee Swepton, A Commentary On The United Nations Convention On The Rights Of The Child, Article 32 (Leiden: Martinus Nijhoff Publishers 2012).
Sakiko Tanaka, Christopher Spohr and Sandra D’Amico, Myanmar Human Capital Development, Employment, And Labor Markets ADB Economics Working Paper Series, Mandaluyong City: Asian Development Bank, 2015. Accessed October 3, 2016 https://www.adb.org/publications/myanmar-human-capital-development-employment-labor-markets
Sai Tip, “The Labor Market In Myanmar” Thai-American Business 5 (2013).
Myron Weiner, “Child Labour In Developing Countries: The Indian Case. Articles 28a, 32 and 36 of the UN Convention On The Rights Of The Child,” The International Journal of Children's Rights 2 (1994).
Anna Zaongollowicz, Myanmar: Child Labour Knowledge, Attitudes And Practices (KAP) Study In Yangon, Ayeyarwady Region and Mon State. Geneva: International Labour Office, 2015. Accessed October 17, 2016. http://www.ilo.org/wcmsp5/groups/public/---ed_norm/---ipec/documents/publication/wcms_221513.pdf.