PROPOSED ILO STANDARDS ON CHILD LABOUR TO BE DISCUSSED IN 1998-99

A. Justification of the new standards

1. The pragmatic approach, the aim of which is to intervene where the situation is really serious and urgent, is characteristic of the technical cooperation provided by the ILO within the IPEC framework. Can the same be said of existing ILO standards on child labour? Are they too designed to focus national priorities on the extreme forms of this labour?

2. A good number of international treaties are relevant to child labour and the protection of children from its most intolerable forms. Foremost among these is the United Nations Convention on the Rights of the Child, 1989 (entry into force: 2 September 1990; 195 ratifications as at 31 July 1996). This Convention is the most comprehensive treaty on the rights of children, whom it defines as persons under the age of 18, unless the age of majority is attained earlier. It obliges ratifying states to adopt measures which protect and promote children's rights, including the right to be protected from economic exploitation and from performing any work that is likely to be hazardous or to interfere with their education, or to be harmful to their health or physical, mental, spiritual, moral or social development (art. 32). It requires States Parties to take legislative, administrative, social and educational measures to ensure implementation and, in particular, to provide for (a) a minimum age or minimum ages for admission to employment, (b) appropriate regulation of the hours and conditions of employment, and (c) appropriate penalties or their sanctions to ensure the effective enforcement of its provisions. The ILO participates in the meetings of the Committee on the Rights of the Child, the treaty body of the United Nations Convention on the Rights of the Child, sending information and disseminating the conclusions and recommendations of the Committee which fall within its mandate to ILO technical departments and field offices to ensure that these are taken into account in programmes established within the framework of the active partnership policy.

3. The other major international instruments relevant to child labour include the International Covenant on Economic, Social and Cultural Rights (entry into force: 3 January 1976, 133 ratifications), some of whose provisions relate to compulsory free primary education, the International Covenant on Civil and Political Rights (entry into force: 23 March 1976, 132 ratifications) which deals with the prohibition of slavery, servitude and forced or compulsory labour and the protection of minors.

4. No ILO Convention has yet been adopted concerning the exploitation of child labour as such. Admittedly, the Forced Labour Convention (No. 29), 1930, which has been ratified by 136 countries, allows the ILO to examine practices in respect of child labour within the meaning of the Convention, namely "all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily". However, recourse to that Convention in order to combat the extreme forms of child labour is limited by its object; in fact, these extreme forms are not confined to forced labour as defined by Article 2 of the Convention.

5. The other major ILO instrument concerning child labour is the Minimum Age Convention (No. 138), 1973. The ratifying countries must undertake to pursue a national policy designed to ensure the effective abolition of child labour and to raise progressively the minimum age for admission to employment or work to a level consistent with the fullest physical and mental development of young persons. This Convention has so far been ratified by 52 member States. This number of ratifications is comparable to that achieved by other Conventions adopted at the same time. It is not so good, however, when compared with the score achieved by other ILO Conventions that are considered fundamental from the point of view of human rights protection - those concerning forced labour, freedom of association and non-discrimination. Admittedly, the results of a recent consultation with governments on the possibility of ratifying core ILO Conventions have shown that the ratification procedure in the case of Convention No. 138 has been initiated, or is about to be initiated, in 19 countries, 13 of which are developing countries, and that in another 14 countries, including 10 developing countries, governments are giving serious consideration to the possibility of ratifying it. However, the International Labour Office does not consider it particularly likely that this Convention will secure, in the foreseeable future, the number of ratifications registered by other core ILO Conventions.

6. One of the major difficulties concerning ratification of Convention No. 138 is apparently its very general scope. It covers all sectors of economic activity and all types of employment, regardless of whether the children are employed for wages. In its global approach to child labour, this Convention does not set priorities, confining itself instead to establishing a higher basic minimum age (18 instead of 15) for types of work likely to jeopardize the health, safety or morals of children. Thus, it says nothing about the priority to be given to measures designed to remove children from work situations that jeopardize their development or are contrary to human rights, or about measures to be taken to make removal permanent. Admittedly, the Convention allows the authorities of a member State whose economy and administrative facilities or educational institutions are insufficiently developed initially to exclude temporarily from the scope of the Convention certain sectors of activity, certain types of enterprise and certain limited categories of employment or work. However, these possibilities seem to have been dictated by the practical difficulties of implementing the Convention's provisions in these types of activity, enterprise or employment, rather than by a concern to focus national endeavours first and foremost on the most intolerable forms of child labour. It is now well known that the risk of exploitation and abuse are far from non-existent in the categories that may be exempted.

7. A cause for concern could be that new instruments might duplicate existing standards. In this connection it should be noted that a Convention whose explicit aim would be the immediate abolition of the most intolerable forms of child labour would enable more direct and effective action against the most exploitative and dangerous types of child labour to be taken, precisely because it would focus specifically on this objective and because it would clearly specify the obligations of the parties to the Convention. The new instrument(s) would be in line with article 32, paragraph 2 of the Convention on the Rights of the Child since they would define the concept of exploitation. Moreover, Convention No. 138 remains one of the pillars of a concerted policy in the fight against child labour at national level. The measures to be taken in accordance with the new instruments would be part of a more comprehensive and long term perspective, as set forth in article 1 of Convention No. 138

8. It is for the above reasons that the ILO Governing Body decided to include the child labour issue on the agenda for the 1998 session of the International Labour Conference, with a view to adopting new standards prohibiting child labour in its extreme forms. The Office believes that should the Conference decide to adopt a Convention, it would have a very good chance of being ratified by a large number of both industrialized and developing countries, precisely because it would concern only the most intolerable forms of child labour. Furthermore, the Office considers that such a Convention would also strengthen the Organization's authority in respect of combating child labour, in energizing national and international action against this scourge, and in assigning clear guidance to technical cooperation.

B. Brief survey of the content of the proposed instruments
9. The purpose of Workshop No. 3 is to facilitate an exchange of views on the questionnaire prepared by the Office as the initial stage in the standard-setting procedure planned by the ILO regarding extreme forms of child labour. The questionnaire gives an idea of the content of the proposed new instruments as the Office sees it at present. This final section will therefore confine itself to emphasizing a few points in the questionnaire, which are considered to be particularly important.

10. In respect of item 3, it will be noted that the proposed new standards are not intended to replace the provisions of the Minimum Age Convention (No. 138), 1973, but are on the contrary designed as a means of contributing to the latter's ultimate objective, which is the total abolition of child labour. The Office considers the fixing of a statutory minimum age for admission to employment or work to be one of the pillars of a coherent national policy to combat child labour, and that Convention No. 138 is for this reason a basic ILO instrument. Furthermore, The Office intends to increase the provision of technical advice to governments with a view to their better understanding of the Convention's provisions and the flexibility clauses it contains.

11. Item 7 of the questionnaire is the focal point of the proposed new standards. It lists in paragraphs a), b) and c) the extreme forms of child labour to be prohibited immediately. The use of the word "including" in the opening sentence shows that the Office is not sure that it has covered all those situations that can be defined as extreme forms of child labour. It hopes that Workshop No. 3 will provide more in-depth information on this subject.

12. Item 9 (2) refers to provision for both preventive and removal and rehabilitation measures against extreme forms of child labour. This approach is necessary, because, as the technical report prepared by the Office for the Amsterdam Conference points out, it is not enough to free children from these forms of labour and rehabilitate them. It is also necessary to prevent children who are not yet working from being forced to work under the same conditions.

13. Item 10 of the proposed Convention, together with the corresponding items 24 and 25 of the proposed Recommendation, is an innovative provision, since it envisages the commitment of ILO member States to affording each other assistance in giving effect to the Convention's provisions. The basic document submitted by the ILO to the Amsterdam Conference stresses that violations of human rights, democracy and social justice caused by certain exploitative child labour situations cry out to the international community, compelling it to intervene so as to encourage and support countries in which such situations exist, and which are endeavouring to remedy them. The Office hopes that Workshop No. 3, like Workshop No. 1 will provide useful lessons on the appropriate content of international assistance in this field.

ANNEX I: ILO QUESTIONNAIRE ON CHILD LABOUR
I. Form of the international instrument or instruments
1. Should the International Labour Conference adopt a new instrument or instruments concerning the elimination of child labour?

2. If so, should the instrument or instruments take the form of:

(a) a Convention only?
(b) a Recommendation only?
(c) a Convention supplemented by a Recommendation?

4. Should the Preamble note the provisions of the United Nations Convention on the Rights of the Child and other relevant United Nations instruments?

5. Should the Preamble refer to the activities carried out by the organs and specialized agencies of the United Nations and other intergovernmental organizations, such as those concerned with offenses against children, and to the need for interagency cooperation and coordination?

III. Content of a Convention
6. Should the Convention apply to all children under the age of 18, consistent with other relevant international instruments?

7. Should the Convention provide that each ratifying Member should suppress immediately all extreme forms of child labour including:

(a) all forms of slavery or practices similar to slavery, sale and trafficking of children, forced or compulsory labour including debt bondage and serfdom?

(b) the use, engagement or offering of a child for prostitution, production of pornography or pornographic performances, production of or trafficking in drugs or other illegal activities?

(c) the use or engagement of children in any type of work which, by its nature or the circumstances in which it is carried out, is likely to jeopardize their health, safety, or morals?

9. (1) Should the Convention provide that all necessary measures should be taken to ensure the effective enforcement of the provisions of the Convention, including, as appropriate, the provision and strict enforcement of adequate criminal penalties?

(2) Should the Convention provide that Members should take effective measures to prevent children from entering or returning to any form of child labour referred to in question 7 above and to provide them with necessary and appropriate direct assistance?

(3) Should the Convention provide that Members should designate the competent authority or authorities responsible for the implementation of the provisions giving effect to the Convention?

(4) Should the Convention provide that national laws or regulations or the competent authority should define the persons who should be responsible for compliance with the provisions giving effect to the Convention?

10. Should the Convention encourage Members to assist each other in giving effect to the provisions of the Convention by means of international judicial and technical assistance or other types of cooperation? If so, which types?

IV. Content of a Recommendation
NATIONAL PROGRAMMES OF ACTION
11. (1) Should the Recommendation provide that Members should, as appropriate, within the framework of a national policy for the elimination of child labour, design and implement national programmes of action to eliminate all extreme forms of child labour?

(2) Should the Recommendation provide that such national programmes of action should be designed and implemented in consultation with relevant government institutions, employers' and workers' organizations, and other concerned groups?

12. Should the Recommendation provide that, as part of national programmes of action referred to in question 11 above, Members should promote and support programmes which:

(a) identify and denounce all extreme forms of child labour?

(b) prevent children from entering or returning to, and remove them from, all such forms of child labour; protect them from reprisals; provide them with direct assistance and services including education; provide, as appropriate, for their rehabilitation through measures which address their physical, emotional and psychological needs; and provide for their social integration?

(c) inform, sensitize and mobilize public opinion and interested groups through targeted campaigns?

(d) identify and reach out to communities where children are at special risk in order to take preventive and remedial measures?

(e) give special attention to children under age 12?

(f) take account of the special problems of girls?

(g) other? Please specify.

(a) be made in consultation with the organizations of employers and workers concerned, where such exist, and, to the extent possible, with experts such as medical, child development, and occupational safety and health professionals?

(b) take full account of relevant international labour standards?

(c) take full account of the physical and psychosocial development of the child?

(d) be examined periodically and revised as necessary?

(a) which exposes children to physical, emotional or sexual abuse?

(b) which is done underground, under water, and at dangerous heights?

(c) with dangerous machinery, equipment and tools?

(d) in an unhealthy environment which may, for example, involve exposure to hazardous substances, agents and processes, or to extreme temperatures, noise levels, and vibrations?

(e) which is done under particularly difficult conditions such as for long hours, during the night, or without the possibility of returning home each day?

(f) other? Please specify.

16. Should the Recommendation provide that Members should compile and update relevant data concerning violations of the provisions of the Convention, including criminal offenses and their victims?

SUPERVISION AND ENFORCEMENT
17. Should the Recommendation provide that appropriate national machinery should be established to monitor provisions giving effect to the Convention?

18. Should the Recommendation provide that there be cooperation and coordination among competent authorities which have responsibilities for implementing provisions of the Convention and for enforcing applicable national laws and regulations?

19. Should the Recommendation provide that Members should, in giving effect to the provisions of the Convention, cooperate with international efforts to:

(a) gather and exchange information concerning criminal offenses, including those involving international networks?

(b) detect and prosecute those involved in the sale and trafficking of children, child prostitution, child pornography and the use of children in illegal activities?

(c) register perpetrators of such offenses?

21. Should the Recommendation provide that national laws and regulations should also provide criminal penalties for serious and repeated violations of the prohibitions referred to in question 7(c) above?

22. Should the Recommendation also provide for other measures to ensure the effective enforcement of the provisions of the Convention such as:

(a) providing compensation to the children affected to be paid by persons found guilty of violations?

(b) closing down establishments or suspending or revoking authorizations to operate?

(c) other? Please specify.

23. Should the Recommendation provide that other measures to eliminate all extreme forms of child labour should include the following:

(a) informing and sensitizing national and local political leaders, parliamentarians and the judiciary?

(b) involving employers' and workers' organizations as well as community and civic organizations?

(c) targeting inspection and enforcement measures on extreme forms of child labour?

(d) appropriate training for inspectors, law enforcement officials, public prosecutors, members of the judiciary, national and local government officials, health professionals, educators and other concerned individuals and organizations?

(e) adoption of laws allowing for the prosecution of those who commit offenses in a country other than their own in violation of the provisions giving effect to the Convention?

(f) simplification of legal and administrative procedures?

(g) arrangements for giving publicity to child labour provisions in relevant languages or dialects?

(h) as appropriate, establishment of special complaints procedures, help lines, and ombudspersons?

(i) other? Please specify.

25. Should the Recommendation provide that cooperation and assistance could include:

(a) mobilizing resources for national and international programmes for the elimination of child labour?

(b) exchanging information?

(c) other? Please specify.

V. Special problems
26. (1) Are there any particularities of national law and practice, which, in your view, are liable to create difficulties in the practical application of an international instrument or instruments as conceived in this report?

(2) If so, how would you suggest that those difficulties be met?

27. (Federal States only.) Do you consider that, in the event of a Convention being adopted, the subject-matter would be appropriate for federal action or, wholly or in part, for action by the constituent units of the federation?

28. Are there, in your view, any other pertinent problems not covered by the present questionnaire which ought to be taken into consideration when the instrument or instruments are being drafted? If so, please specify.

ANNEX II: Standard-setting in the ILO
1. One of the most important tools available to the ILO for improving the legislation and practice of member States in matters within its province is the adoption and supervision of international labour Conventions and Recommendations.

2. The questionnaire drawn up by the International Labour Office with a view to preparing, on the basis of the replies to it by governments and employers' and workers' organizations, the text of the conclusions that the International Labour Conference will examine in 1998 raises the question of the form that the proposed new standards should take. Should there be a Convention only, a Recommendation only or a Convention supplemented by a Recommendation? (item 2). It might be worth while at this stage to recall the difference between and the complementarity of, these two types of instrument. A Convention is binding on ILO member States once they have ratified it. A member State may or may not ratify a Convention, but once it has decided to do so, it is obliged to incorporate its provisions into its legislation and to implement them in national practice. On the other hand, as its name indicates, a Recommendation simply recommends that member States take certain action, often with a view to facilitating the implementation of a Convention adopted on the same issue.

3. The ILO possesses machinery for supervising the application of international labour standards. In accordance with the Constitution of the International Labour Organisation, each member is obliged to make periodic reports to the International Labour Office on the measures it has taken to give effect to the provisions of Conventions to which it is a party, and to report, at appropriate intervals as requested by the Governing Body, on the position of its law and practice regarding certain non-ratified Conventions or Recommendations. These reports are examined by a committee of independent experts, which makes to the member States such recommendations as it deems necessary on the application of their international commitments. Each year, this committee presents the Committee on the Application of Conventions and Recommendations, appointed by the ILO General Conference and composed of representatives of governments, employers and workers, with a report drawing its attention to serious and repeated violations of ratified Conventions. The member States concerned are requested to give public explanations about the breaching of the international commitments which they had freely entered into, and they are urged by the Conference to rectify the situation. In its supervision of the application of the Forced Labour Convention (No. 29), 1930, this Conference Committee has thus in recent years repeatedly denounced the placing of children in bondage for their parents' debts and the trafficking in children for employment or prostitution, which continue to prevail in several countries. The adoption of a new Convention on child labour, focusing on the elimination of its most intolerable forms, would give the ILO supervisory bodies a further opportunity to examine and propose measures designed to prevent not only the forced labour of children, but also their exploitation in other degrading types of work and in work situations likely to jeopardize their health, safety or morals.

4. The new child labour standards will be adopted in accordance with the traditional double-discussion procedure. This relatively lengthy procedure requires numerous consultations with governments and the most representative organizations of employers and workers at national level. It started in April 1996, immediately after the ILO Governing Body had decided at its March Session to include this issue on the agenda of the 1998 Session of the International Labour Conference. It will not be completed until the end of June 1999, when the Conference will adopt one or more international instruments. The long period involved will allow for intense consultations with the ILO constituents in all member States. An initial consultation will be conducted, by correspondence, with regard to the questionnaire prepared by the ILO. This was sent to governments in September 1996. They were invited to convey to the International Labour Office, before 30 June 1997 at the latest, their reasoned replies, which they will have prepared after consultation with the most representative employers' and workers' organizations. Then, the ILO constituents will examine the conclusions proposed by the Office on the basis of the replies to the questionnaire at a meeting of a tripartite technical committee specially appointed by the ILO General Conference. A new consultation will be conducted by correspondence between August and November 1998. It will concern the draft instrument or instruments prepared by the Office on the basis of the conclusions adopted by the Conference in June 1998. The final examination will take place in June 1999, again at a meeting of a tripartite technical committee appointed by the Conference, to examine the draft instrument or instruments as revised by the Office on the basis of comments from governments and the most representative national employers' and workers' organizations. The draft instrument or instruments, as amended by this committee, will be presented at the plenary session of the Conference with a view to their adoption by a two-thirds majority of the votes of delegates present and entitled to vote.

5. It will be noted that the procedure described above provides for consultation with the ILO constituents only. However, there is nothing to prevent other non-governmental organizations with experience of action against child labour from seeking to influence the replies and statements of governments and national employers' and workers' organizations by conveying to them, at various stages in the procedure, their comments on the questionnaire or the draft instruments.

6. The initial period of standard-setting, i.e. the period preceding the first discussions at the International Labour Conference, requires that the International Labour Office be able to produce a text, in this case the conclusions proposed for the first discussion, giving the widest possible consideration to the expectations and interests of the three groups represented at the Conference, and constituting a reasonably acceptable compromise for each group. The Office's task during this period is also an extremely delicate one. Experience has shown, in fact, that the text of the proposed conclusions usually has considerable influence on the content of the draft instrument or instruments ultimately adopted. This task requires in-depth thinking, reinforced as far as possible by the knowledge and experience of specialists and experts. This is why the Amsterdam Conference is so valuable from Office's point of view. It should also be valuable for the government, employer and worker delegates attending it, since it will give them an excellent opportunity for an exchange of views before collaborating, at home in their respective countries, in the preparation of the replies to the ILO questionnaire.