Child labor is a major obstacle to the enjoyment of the most fundamental children’s rights, such as the right to life, health, development, and education. It has been on the international community’s agenda for decades, and the United Nations (“UN”) has declared the elimination of all forms of child labor by 2025 as one of its sustainable development goals.
In 2019, as per the growing legal trend to hold businesses accountable for their human rights impact, the Netherlands became the first state to pass a law on child labor due diligence, which will enter into force in 2022.
Despite national and international efforts, however, child labor is far from being eliminated, especially in developing countries. Turkey has been an example for the developing world regarding its policies and programmes in combatting child labor since the 1990s, which was also acknowledged by the UN Committee on the Rights of the Child (“CRC Committee”). With that said, child labor remains a significant problem in Turkey, especially in the seasonal agriculture and garment industries.
According to the most recent official statistics from the Turkish Statistics Institute (“TÜİK”), 720,000 children between the ages of five and 17, which accounts for over four percent of all children within this age group, are working in Turkey. However, civil society organizations have indicated that the official statistics do not reflect the reality on the ground and the number of children engaged in child labor is far greater than 720,000 because the official statistics exclude Syrian children working in Turkey.
Based on the growing discontent towards child labor at international level and the massive estimated number of child workers in Turkey, domestic and foreign businesses that operate in Turkey or have Turkish third-parties in their supply chain must be aware of the legal risks posed by the unlawful employment of children. This article will first give an overview of the international legal framework on the prohibition of child labor followed by a detailed account of Turkey’s national laws and regulations against child labor.
1. Prohibition of Child Labor in the International Legal Framework
The ILO Minimum Age Convention of 1973 (No. 138), the Convention on the Rights of the Child (“CRC”), and the ILO Worst Forms of Child Labour Convention of 1999 (No. 182) make up the foundation for the international legal framework against child labor. Turkey is a party to all these instruments and frequently partners with the ILO to implement projects in target areas.
ILO Convention No. 138 was drafted as part of the early efforts against child labor and established the minimum age for children to work at 15 years of age and 18 years of age for hazardous work. It is a rather flexible legal instrument in terms of allowing some decisions to be taken at the national level.
The most comprehensive international legal instrument in upholding children’s rights, including the rights affected by child labor, is undoubtedly the CRC. Following a lengthy treaty drafting process, the CRC was adopted in 1989 and has almost universal ratification.
Article 1 of the CRC identifies individuals below the age of 18 as children and Article 32 thereof refers to protecting children from economic exploitation, hazardous work or any kind of work that interferes with the child’s education or is harmful to the child’s development. Moreover, Article 28 of the CRC provides for the right to education, which goes hand in hand with the efforts to eliminate child labor, hence the explicit mention of protecting children from work that “interferes with the child’s education” in Article 32 of the CRC.
Finally, ILO Convention No. 182 was adopted in 1999 which classifies certain forms of child labor as the worst forms of child labor (“WFCL”) such as slavery, sale and trafficking of children, the use of a child for prostitution, and hazardous work. The term hazardous work is the most open-ended classification within these forms of child labor. According to Convention No. 182, each state must determine its own Hazardous Work Lists as per the ILO’s guidance.
These conventions make up the main international legal framework against child labor and oblige state parties to guarantee that children are brought up free from economic exploitation and any work that interferes with their development. In this respect, states have international obligations to establish policies, and to enact legislation and regulations to combat child labor. In the next section, we will focus on how Turkey discharges these international obligations.
2. Turkey’s Law & Practice on Child Labor
Article 50 of the Turkish Constitution lays out the overarching principle prohibiting work that does not fit one’s age. The constitution further states that children shall especially be protected with regards to the conditions of work. Based on this fundamental principle, a number of national laws in Turkey provide the domestic legal framework, mainly the Labor Code (Law no. 4857) and the Regulation on the Procedures and Principles of Employing Child and Young Workers (the “Regulation”).
2.1. The Domestic Legal Framework
Article 71 of the Labor Code prohibits the employment of children who have not turned 15. This primary rule has two exceptions:
i. Children who have turned 14 and completed their primary education can engage in light work (as defined under the Regulation) which does not hamper their physical, mental, social, and moral development and does not interfere with the education of those who continue to study after primary education.
ii. Children who have not turned 14 can engage in art, culture, and advertising work, provided that (i) their development is not hampered, (ii) a written contract is signed, and (iii) permission is obtained for each work activity.
In the Regulation, children that fall under the first exception above are defined as child workers (“Child Worker”), and children who have turned 15 but are below the age of 18 are defined as young workers (“Young Worker”). In this respect, the Regulation provides three annexes in which it stipulates permitted work for different age groups. Based on this:
i. Child Workers are permitted to undertake kinds of light work stipulated under Annex-1,
ii. All Young Workers are permitted to undertake kinds of work stipulated under Annex-1 and Annex-2, and
iii. Young Workers who have turned 16 but are younger than 18 are permitted to undertake kinds of work stipulated under Annex-1, Annex-2, and Annex-3.
An exception to the Regulation and its annexes is found in the Vocational Education Code (Law no. 3308). According to this law, Young Workers who are 16 and who have graduated from vocational or technical education institutions are allowed to work in jobs, in line with their expertise and vocation, without being limited to the work listed in the Regulation annexes.
Further restrictions on the conditions of work that children can undertake are laid out in the Labor Code and the Regulation. These include restrictions on working hours, resting hours, annual leave, the prohibition of underground or underwater work, and the prohibition of night work.
Moreover, employers are obliged to conduct risk assessments as per Article 10/1 of the Occupational Health and Safety Code (Law no. 6331) and monitor employees' health according to Article 15/1 of the same code. In such risk assessments and monitoring activities, due regard must be given to the special protection that Children and Young Workers require to undertake work.
2.2. Legal Consequences of Unlawfully Employing Children under Turkish Law
The Ministry of Family, Work and Social Services (the “Ministry”) is the relevant national authority to oversee the implementation of child labor provisions. Official labor inspectors are mandated to conduct inspections and issue fines upon finding the unlawful employment of children in workplaces. Such inspections can be performed both ex officio or upon receiving complaints.
Article 104 of the Labor Code stipulates administrative fines for employers who breach the above restrictions when employing children. In this regard, a breach of Articles 71, 72, and 73 of the Labor Code would result in an administrative fine of TRY 3,064 for every child unlawfully employed.
In cases where an employer fails to conduct the necessary risk assessment stipulated under Article 10/1 of the Occupational Health and Safety Code, administrative fines can go up to TRY 23,037 for a single breach and continue to be issued at TRY 34,556 every month if the violation persists. In cases of failure to monitor the health of children workers, fines are TRY 11,508.
In 2019, the Ministry announced that 416 employers had been fined since 2010 for unlawfully employing children and the monetary value of these administrative fines amounted to TRY 571,190.
Finally, if an unlawfully employed child has an occupational accident, the employer’s liability for damages would arise as per the relevant civil law provisions and if the accident is severe enough to constitute a crime, the criminal liability of the employer would arise as per the applicable provisions of the Turkish Penal Code (Law no. 5237).
3. Comment: Inconsistencies, Regulatory Gaps and Risks for Businesses
As addressed above, the Turkish domestic legal framework on child labor provides some guarantees against children's exploitation. But it also contains inconsistent norms and regulatory gaps that undermine the implementation of the law.
A major inconsistency in law is that as part of Turkey's recent educational reform, years spent in compulsory education increased from eight years to 12 years, which means that a child would typically complete mandatory education at age 18. This creates a normative contradiction since children between the age of 15-18 can be employed in light work but must also attend compulsory education. The CRC Committee identified this issue in its concluding observations and called for Turkey to bring the minimum age of child employment in line with the age at which children typically complete compulsory education.
In terms of regulatory gaps, Article 22 of the Labor Inspection Statute allows for a period given to employers by labor inspectors to correct a breach of labor legislation before issuing a fine. If the violation is not corrected within this period, only then is an administrative fine issued in practice, even though there is no such rule in the child labor provisions under the Labor Code. This flexible approach creates a regulatory gap and encourages breaches of child labor regulations.
Moreover, labor inspections can only be conducted in workplaces that fall under the scope of the Labor Code, which excludes, inter alia, (i) marine and air transportation works, (ii) agriculture and forestry works that employ less than 50 workers, (iii) handcrafts, (iv) home services, (v) athletes, and (vi) apprentices. As the Turkish Obligations Code (Law no. 6098) governs these types of work activities, children who are employed under these conditions would not be protected by labor inspections. Given that many child workers are employed in seasonal agriculture, which falls under the “agriculture and forestry works” heading above, the lack of inspections creates a significant regulatory gap and fuels the problem of child labor in Turkey.
Despite the room for improvement in Turkish domestic legislation, however, businesses operating in Turkey or that source goods and services from Turkey are not excused from acting in a prudent and reasonable way to combat child labor as per their international obligations to respect human rights. Child labor is a significant problem in Turkey, and this requires all enterprises to be extra vigilant and conduct human rights due diligence in an ongoing basis to identify, prevent, and mitigate their adverse human rights impact in relation to child labor in Turkey. It is crucial for foreign companies that have Turkey in their third-party supply chain to recognize these legal risks and act proactively before such risks actualize to harm their business.
 UN SDG Target 8.7: “Take immediate and effective measures to eradicate forced labour, end modern slavery and human trafficking and secure the prohibition and elimination of the worst forms of child labour, including recruitment and use of child soldiers, and by 2025 end child labour in all its forms.”
 Anneloes Hoff, “Dutch child labour due diligence law: a step towards mandatory human rights due diligence”, Oxford Human Rights Hub Blog, 10 June 2019, available at http://ohrh.law.ox.ac.uk/dutch-child-labour-due-diligence-law-a-step-towards-mandatory-human-rights-due-diligence.
 The UN CRC Committee, Concluding Observations: Turkey, CRC/C/TUR/CO/2-3, at para. 62 (2012).
 Bianet, “TurkStat’s Child Labor Survey is Not Realistic as it Does Not Cover Syrian Children’’, 2 April 2020, available at https://bianet.org/english/children/222335-turkstat-s-child-labor-survey-is-not-realistic-as-it-does-not-cover-syrian-children
 For projects, please see: bit.ly/iloprojects
 14 years of age for developing countries.
 For instance, Article 5 of Convention No. 138 allows developing countries to exclude some sectors from the minimum age requirement before ratification, though commercial agriculture cannot be excluded.
 Article 1 of the CRC: “For the purposes of the present Convention, a child means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier.”
 It is important to mention here that not all work activities performed by children are classified as child labour if such work does not interfere with the enjoyment of the child’s rights it is not prohibited under the CRC. Nevertheless, state parties are under the obligation to protect children, as per Article 32 of the CRC, from any form of labour that interferes with their right to education. [B. İren Yıldızca, Migrant Child Labour in Turkey: A critical analysis of multilevel governance targeting migrant child labour in Turkey, 2019, at 8.]
 Other international and regional rules in the same direction include Article 10/3 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) and Article 7 of the European Social Charter.
 Annex-1: (1) Fruit, vegetable, and flower picking work, except for those that require working in a way that may pose a risk of falling or injury, (2) auxiliary work in poultry breeding and silk farming, (3) sales work alongside tradespeople and artisans, (4) auxiliary work in office services, (5) distribution and sales of newspapers, magazines or printed matter (excluding weight handling and stacking), (6) work performed as a bellboy and salesperson in bakeries, patisseries, greengrocers, buffets and restaurants that do not sell alcohol, (7) labelling goods for sale and packaging them by hand, (8) auxiliary work in libraries, fairs, and exhibitions (excluding weight handling and stacking), (9) auxiliary work in sports facilities, (10) flower sales and arrangement work.
 Annex-2: (1) Fruit and vegetable canning, vinegar, pickles, tomato paste, jam, marmalade, fruit and vegetable juice production, (2) fruit and vegetable drying and processing, (3) halva, batter, wax, pekmez production, (4) auxiliary work in butchers, (5) tea processing, (6) preparation of nuts, (7) auxiliary work in sheep breeding, (8) broom and brush manufacturing, (9) making buttons, combs, pictures, mirrors, frames, glass and similar articles out of wood carving by hand, bone, horn, amber, meerschaum, Erzurum stone and other raw materials, (10) sales, labelling and packaging work in wholesale and retail stores, (11) office work and auxiliary work in offices, (12) flower growing except using pesticides and fertilizers, (13) work in the service sector excluding places serving alcohol and cookery services, (14) walking sticks and umbrella manufacturing, (15) manufacturing and treatment of various foods, (16) manufacturing quilts, tents, bags, and similar articles except manufacturing by weaving, (17) manufacturing boxes, barrels and similar packaging materials, and baskets and similar articles made out of cork, reed and straw, (18) work related to the manufacturing of bowls, pottery, tiles, porcelain and ceramics (excluding work with ovens or work that disseminates silisium and quarts dust), (19) flyer distribution work, (20) production of glass, bottle, optic and similar material in workshops (excluding work with ovens, heat treatment, colouring and chemicals or work that disseminates silisium and quarts dust), (21) production of vegetable and animal oils and their by-products (except extraction of certain oils that involve flammable or irritating solvents such as carbon sulphur), (22) certain spinning mill and weaving preparation work of Cotton, flax, wool, silk and similar materials, (23) work in the fish market, (24) work helping with the preparation for production in sugar factories, (25) bagging, barrelling, stacking and similar work that does not require lifting more than 10 kg without a vehicle, (26) water-based glue, gelatine and cola production work, (27) manufacturing and repair of boats and similar small marine vessels (except paint and varnishing work).
 Annex-3: (1) Tile, brick, firebrick works and pipe, pot, pipe and similar construction and architectural material work produced by baking the soil, (2) drying and bonding, plywood, artificial wood manufacturing, (3) paraffin goods manufacturing, (4) cleaning, pinching, separating of bird and animal hair and similar work, (5) forming and manufacturing plastic goods (except for PVC manufacturing work), (6) manufacturing goods out of textiles (curtains, home textiles, automobile products etc.), (7) paper and wood pulp production, (8) cellulose production, (9) work manufacturing all kinds of goods and materials made of paper and paper products. (10) jobs in grain warehouses, flour and paddy factories, (11) production of all kinds of ink and goods containing ink.
 For Child Workers who have completed their primary education, working hours can be maximum seven hours a day and 35 hours a week. For Child Workers who are continuing their education working hours are limited to two hours a day and 10 hours a week. For Young Workers, working hours can be extended to a maximum of eight hours a day and 40 hours a week.
 As per Article 6/2 of the Regulation, employers are obliged to provide for 14 continuous hours of rest for child and young workers in every 24 hours.
 As per Article 53 of the Labor Code, annual paid leave of workers below the age of 18 cannot be less than 20 days.
 As per Article 72 of the Labor Code, it is forbidden to employ males under the age of eighteen and females of all ages in underground or underwater jobs such as mining, cable laying, sewer and tunnel construction.
 As per Article 73 of the Labor Code, it is forbidden to employ child and young workers under the age of eighteen at night in industrial work.
 As per Article 26/1-ç of the Occupational Health and Safety Code.
 As per Article 26/1-f of the Occupational Health and Safety Code.
 Gazete Duvar, “416 işyerine çocuk işçi cezası”, 22 April 2019, available at https://www.gazeteduvar.com.tr/ekonomi/2019/04/22/416-isyerine-cocuk-isci-cezasi
 The UN CRC Committee, Concluding Observations: Turkey, CRC/C/TUR/CO/2-3, 2012, at para. 63.
 Published in the Official Gazette numbered 16738 and dated 28 August 1979.
 Özkan Bilgili, “Child Labour Inspection”, Journal of Social Security, Volume 8, Issue 2, December 2018, at 202.
 Canan Ünal, “Çocukların Korunması Hakkı Kapsamında Çocuk İşçiliği Sorunun Çözümü ve Çözümsüzlüğü”, Sosyal İnsan Hakları Ulusal Sempozyumu VI Bildiriler, 2014, at 289-305.