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ILO-en-strap

87th Session
Geneva, June 1999


Report IV (1)

Child labour

Fourth item on the agenda


International Labour Office  Geneva

ISBN 92-2-110810-4
ISSN 0074-6681


CONTENTS

Introduction

Proposed texts


INTRODUCTION

On 18 June 1998 the International Labour Conference, meeting in Geneva at its 86th Session, adopted the following resolution:

Following this resolution and under article 39, paragraph 6, of the Standing Orders of the Conference, the Office is required to prepare, on the basis of the first discussion by the Conference, the texts of a proposed Convention and Recommendation. These texts are to be sent to governments and are to reach them not later than two months from the closing of the 86th Session of the Conference. The purpose of this report is to send to governments these texts.

Governments are asked to reply within three months, after consulting the most representative organizations of employers and workers, and to state whether they have any amendments to suggest or comments to make. Under the Standing Orders of the Conference, any amendments or comments on the proposed texts should be sent as soon as possible, and should reach the Office in Geneva no later than 30 November 1998.

Governments which have no amendments or comments to make are asked to inform the Office by the same date whether they consider that the proposed texts are a satisfactory basis for discussion by the Conference at its 87th Session in June 1999.

Governments are requested to indicate which organizations of employers and workers they consulted before they finalized their replies pursuant to article 39, paragraph 6, of the Standing Orders. Such consultation is also required by Article 5(1)(a) of the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144), for countries which have ratified this Convention. The results of the consultation should be reflected in the governments' replies.

PROPOSED TEXTS

The texts of a proposed Convention and Recommendation concerning the prohibition and immediate elimination of the worst forms of child labour are given below. These texts are based on the Conclusions(1) adopted by the International Labour Conference following the first discussion at its 86th Session.

In accordance with the practice established in 1988, the report of the Committee appointed by the Conference to consider this item is being sent to member States in its entirety, together with the record of the discussion in plenary session (see Provisional Record Nos. 19 and 22, attached).

A number of drafting changes have been incorporated in the proposed instruments in the interest of greater clarity, to bring the two official languages of the texts into line with one another or to harmonize certain provisions.

In addition, in response to requests from the Committee to review the drafting of several points, the Office invites comments on several proposed formulations to clarify the text. The Office also invites comments on several questions related to issues that the Committee indicated would be particular subjects for the second discussion in June 1999.

Proposed Convention

Preamble

(Points 3 to 7 of the Conclusions)

The texts of Points 3 and 4 — reflected in the two preambular paragraphs of the proposed Convention beginning "Considering ..." — were revised by amendments in the Committee. The compromise reached on the language of the Preamble in the Conclusions was to refer to new instruments "for the prohibition and for immediate and comprehensive action for the elimination of the worst forms of child labour", rather than to the "immediate elimination" of such forms. In the next preambular paragraph it was stated that "effective elimination of the worst forms of child labour requires comprehensive action, taking into account the importance of basic education and the need for the removal from work and the rehabilitation and social reintegration of the children concerned". There is thus an element of duplication in that both paragraphs refer to the need for "comprehensive action", a need which (according to the second of the two paragraphs) stems from the need for "effective elimination".

The Office was invited to review the drafting of these paragraphs.(2) In doing so, the Office has kept the references to "effective elimination" and "prohibition and immediate and comprehensive action" that had been decided upon by the Committee. The first of the two paragraphs now refers to the need for new instruments "for the prohibition and effective elimination of the worst forms of child labour" as the main priority for national and international action, and the second explains what is entailed by "effective elimination", namely "immediate and comprehensive action, taking into account the importance of basic education and the need to remove the concerned children from work and to provide for their rehabilitation and social reintegration".

The end of the first of the paragraphs has also been revised as follows: "... the Convention and Recommendation concerning Minimum Age for Admission to Employment, 1973, which remain the fundamental instruments with a view to achieving the total abolition of child labour". The purpose is to align the text with the Preamble to the Minimum Age Convention, 1973 (No. 138).

A question was raised in the Committee’s Drafting Committee about the meaning of "removal from work" in the second of the two paragraphs. This is discussed below under subparagraph (b) of Article 7, paragraph 2.

Article 3

(Point 10 of the Conclusions)

Subparagraph (c) came about from an amendment in the Committee, which moved the reference to illegal activities from clause (b) in the proposed Conclusions into a new separate clause. At the same time, the specific example of using, procuring or offering a child for the production and trafficking of drugs was added. After considerable discussion in the Committee, a definition of drugs to which the provision applies was based on the wording of article 33 of the United Nations Convention on the Rights of the Child, that is "narcotic drugs and psychotropic substances as defined in the relevant international treaties". Some members questioned whether there was an obligation on States to make the production and trafficking of such drugs illegal, while other members of the Committee maintained that the illegal or illicit nature was understood for two reasons. First, the phrase was an example of illegal activities, and second, trafficking implied illegality.

Nevertheless, an activity of trafficking that had not actually been prohibited by the national law of a ratifying country might, especially in criminal proceedings, be considered to fall outside the scope of subparagraph (c). On the other hand, a theatrical production for children that involved a breach of copyright, for example, might be considered an "illegal" activity. For these reasons, the Office proposes that reference be made to "illicit" (which has a more moral connotation) rather than to "illegal" activities. This would, in addition, align the English and French texts. It is also consistent with the wording of United Nations drug treaties(3) and the Convention on the Rights of the Child which refers to the prevention of the "use of children in the illicit production and trafficking" of the mentioned drugs. The "in particular" phrase could also be simplified to read as follows: "in particular for the illicit production and trafficking of drugs as defined in the relevant international treaties". Members may wish to comment on these proposals.

The Committee extensively discussed the issue of explicitly mentioning children in armed conflicts, as combatants, as child soldiers or in military activities, as constituting one of the worst forms of child labour. Because of the wide range of opinions, the Committee decided to defer further consideration of the subject until the second discussion. As the proposed Convention is drafted, the Office understands that the participation of children in military services, armed forces or in armed conflicts would be contrary to the Convention if the determination is made under Article 4 that the work or activity in which they are engaged is likely to jeopardize their health, safety or morals. It may be assumed that participation in armed conflict would necessarily jeopardize their health, safety or morals. Participation in military activities might also be covered by other provisions of Article 3, for example, if it is forced or compulsory labour. The Office invites comments on the issue, including whether an explicit reference should be made to the subject as constituting one of the worst forms of child labour.

Article 4

(Point 11 of the Conclusions)

A drafting change has been introduced in paragraph 2 by inserting "list of the" types of work or activity determined.

The Office was invited to review the drafting of paragraph 1(4) as the result of an amendment in the Committee which added "and identify their existence". The original text provided the process for determining which work or activity was likely to jeopardize the health, safety or morals of children referred to under Article 3(d). An amendment was adopted to provide that not only did the types of work or activity need to be determined, but the actual existence of such work or activity needed to be identified in the country so that action could be taken. The Committee thus kept the determination of the types of work or activity and added that their existence had to be identified. However, as now drafted, the references to the functions of national laws and regulations and competent authorities are somewhat mixed and unclear. It is assumed that only competent authorities, after the required consultations, would identify the existence of the work and activities determined, since this would not be a legislative act.

To reflect the wishes of the Committee more clearly, the Office invites Members to consider and comment on an alternative formulation for Article 4 as follows:

The Office understands that the purpose of this Article now is to provide for three separate processes: first, to determine the types of work or activity which are likely to jeopardize the health, safety or morals of children, and to list them in national legal provisions; second, to see where these are actually carried out by children so that the measures required by the Convention can be appropriately targeted; and third, to re-examine periodically the determination. Members might also wish to comment on whether "identify the existence of" the types of work or activity is a clear statement of the intended obligation to be undertaken.

It is noted that the identification required in paragraph 1 (paragraph 2 of the proposed alternative formulation) applies only to the worst forms of child labour referred to in subparagraph (d) of Article 3.

Article 5

(Point 12 of the Conclusions)

A drafting change has been introduced to replace "aimed at" with "for". "Aimed at" was originally used when the expression was "suppression". This change has been made throughout the text of the instruments.

The Office also suggests that the Article be revised to read as follows: "Each Member shall establish or designate appropriate mechanisms to monitor the application of the provisions giving effect to the Convention", rather than to monitor "provisions for the prohibition and immediate elimination of the worst forms of child labour". This Article was initially in the proposed Conclusions with a view to a Recommendation. It referred to "provisions for the prohibition and immediate elimination of the worst forms of child labour", rather than to the Convention, so that the Recommendation would not be read solely in relation to the Convention. If a country had not ratified the Convention, it could still have provisions for the prohibition and elimination of the worst forms of child labour. In the Convention, however, it might be simpler to refer to "provisions giving effect to the Convention".

Article 7

(Point 14 of the Conclusions)

Paragraph 1

A slight drafting change has been made to avoid repeating "Each Member which ratifies the Convention". After the first usage of the phrase it is only necessary to say "Each Member". It is understood that references thereafter to Members are to those which have ratified the Convention. It should also be kept in mind that no obligations can arise under a Convention except for countries which have ratified the Convention. In addition, the reference is made to the effective implementation and enforcement of "the provisions giving effect to" the Convention, rather than of the Convention itself since such enforcement is at the national rather than the international level.

The Office also invites views on the intent of the phrase "including the provision and application of penal and other sanctions, as appropriate". It could be understood to mean that measures would not necessarily include sanctions, but that penal and other sanctions would be included among the measures, if appropriate. If, as the Office understood from the Committee’s discussions, the intent is that there have to be sanctions but that the types of sanctions could be, as appropriate, penal or other sanctions, the phrase might preferably read: "including the provisions and application of penal sanctions or, as appropriate, other sanctions".

Paragraph 2

An amendment was adopted in the Committee to insert "time-bound" measures. There was concern among some members of the Committee that there is now an inherent contradiction with earlier provisions, in particular Article 1, which requires measures to secure the prohibition and immediate elimination of the worst forms of child labour. Time-bound generally is understood to mean within a specified time and is so translated in the French version ("dans un délai déterminé"). Within the overall context and purpose of this Convention, particularly the basic obligation stated in Article 1, there would have to be an urgency to the time-frame.

Further, to avoid an inconsistency, the use of "time-bound" in this paragraph would have to be interpreted so that there was a distinction between "measures to secure the immediate elimination" in Article 1 and those in this paragraph. Time-bound might have a longer time-frame when speaking of building up an infrastructure for prevention in subparagraph (a), for example, or for measures of rehabilitation and reintegration in subparagraph (b), which are to include access to free basic education, which would eventually be in place for all children taken out of work, including its worst forms. However, even with the lack of such an infrastructure in place, measures must be found that can be implemented immediately. Again, the idea behind the new Convention is to address those types of work that warrant immediate elimination and to provide immediately for the removal of children from such work and for their rehabilitation and social reintegration. Even within "time-bound" measures, therefore, there must be some that can be implemented to achieve immediate elimination of the worst forms of child labour.

Members may wish to comment on the use of the term "time-bound" in this paragraph.

Subparagraph (b), paragraph 2

The Office seeks the views of the Members concerning the concept of "removal from work" in subparagraph (b), as well as in the third preambular paragraph.

Subparagraph (b) refers to the "removal from work" of the children "engaging in the worst forms of child labour" (referred to in subparagraph (a)). The work from which the children should be removed will thus be one of those worst forms. But the proposed Conclusions (14(2)(b)) did not refer to their "removal from such work", and the intention could well have been that such children should not only be removed from the child labour in which they are now engaged, but in addition they should be excluded from any kind of work (so as to facilitate their rehabilitation and basic education) until the age of 18.

In fact, the original Office text referred to "removal from such labour" meaning from the worst forms. An amendment submitted by the Worker members proposed several changes including separating the references by putting prevention in one clause and removal, rehabilitation and social reintegration into another clause. The relevant part of the amendment read: "remove from all work those under the minimum working age, and ...". Another major issue in the amendment was the introduction of "time-bound" measures and the addition of a reference to "access to basic education", which were the main subjects of the Committee’s discussion. The Committee considered several subamendments before adopting a final text. The final text contained the following reference: "provide the necessary and appropriate direct assistance for their removal from work".

Proposed Recommendation

Paragraph 2

(Point 17 of the Conclusions)

Clause (c)(i)

Clause (c)(i) provides that special attention in programmes of action should be given to younger children. The phrase that follows: "taking account of the extreme impact of the worst forms of child labour on their development" is explanatory, rather than normative, and could be interpreted the wrong way — namely that the special attention to be given to younger children shall vary according to the identification of the extreme impact on their development. It is thus suggested that the phrase "taking account of the extreme impact of the worst forms of child labour on their development" be deleted.

Clause (c)(ii)

A comma has been inserted after "work situations" so that it is clear that all hidden work situations are meant, but that it is girls that are at special risk in such situations. Without the comma, the relative clause "in which girls are at special risk" would be understood as defining the situations, i.e. as referring only to those hidden work situations in which girls are at special risk.

Paragraph 4

(Point 19 of the Conclusions)

This point has been divided into two subparagraphs for greater clarity, without changing the meaning.

The second subparagraph refers to "statistical data ... disaggregated by ... status in employment". The French translation of this term had been "situation dans la profession", consistent with the Labour Statistics Recommendation, 1985 (No. 170), but was changed by the Drafting Committee to "statut professionnel" on the clear understanding that it did not change the meaning, but was a better reflection of what was meant. In this connection, the Office will note any relevant discussions and their outcome on the appropriate French translation, when the Sixteenth International Conference of Labour Statisticians meets in October 1998.

Paragraph 8

(Point 23 of the Conclusions)

"National" has been inserted before "provisions" to be consistent with Paragraph 7.

Paragraph 9

(Point 24 of the Conclusions)

A similar provision was removed from the Convention and this Paragraph was added to the Recommendation. However, as drafted it seems to require Members to make the obvious determination that all persons should comply with national laws and regulations. If the intent is to determine, not who has to comply with the law, but rather who will be responsible, especially in the case of non-compliance, it is suggested that wording similar to that of Article 9, paragraph 2, of Convention No. 138(5) be used: "National laws or regulations or the competent authority should define the persons responsible for compliance with national provisions for the prohibition and immediate elimination of the worst forms of child labour." In the majority of countries, the law holds the employer responsible for violations of child labour laws. Some laws hold parents or legal guardians of the children concerned responsible for certain matters such as compulsory schooling or certain violations related to their employment and, in some countries, parents, guardians and caretakers are criminally liable for causing or allowing a child to engage in prostitution.

Paragraph 11

(Point 26 of the Conclusions)

Concerning the references to drugs in clause (c), see the comments above under Article 3(c).

Proposed Convention concerning the prohibition and
immediate elimination of the worst forms of child labour

adopts this           day of June of the year one thousand nine hundred and ninety-nine the following Convention, which may be cited as the Immediate Abolition of the Worst Forms of Child Labour Convention, 1999:

Article 1

Each Member which ratifies this Convention shall take measures to secure the prohibition and immediate elimination of the worst forms of child labour.

Article 2

For the purposes of this Convention, the term "child" shall apply to all persons under the age of 18.

Article 3

For the purposes of this Convention, the expression "the worst forms of child labour" comprises:

Article 4

1. National laws or regulations or the competent authority shall, after consultation with the organizations of employers and workers concerned, determine the types of work or activity referred to under Article 3(d) and identify their existence, taking into account relevant international standards.

2. The list of the types of work or activity determined under paragraph 1 of this Article shall be periodically examined and revised as necessary by the competent authority after consulting the organizations of employers and workers concerned.

Article 5

Each Member shall establish or designate appropriate mechanisms to monitor the application of provisions for the prohibition and immediate elimination of the worst forms of child labour.

Article 6

1. Each Member shall design and implement programmes of action to eliminate as a priority the worst forms of child labour.

2. Such programmes of action shall be designed and implemented in consultation with relevant government institutions and employers’ and workers’ organizations.

Article 7

1. Each Member shall take all necessary measures to ensure the effective implementation and enforcement of the provisions giving effect to this Convention including the provision and application of penal and other sanctions, as appropriate.

2. Each Member shall, taking into account the importance of education in eliminating child labour, take effective and time-bound measures to:

3. Each Member shall designate the competent authority responsible for the implementation of the provisions giving effect to this Convention.

Article 8

Members shall take steps, as appropriate, to assist one another in giving effect to the provisions of this Convention through international cooperation or assistance.

Proposed Recommendation concerning the prohibition
and immediate elimination of the worst forms of child labour

adopts this           day of June of the year one thousand nine hundred and ninety-nine the following Recommendation, which may be cited as the Immediate Abolition of the Worst Forms of Child Labour Recommendation, 1999:

1. The provisions of this Recommendation supplement those of the Immediate Abolition of the Worst Forms of Child Labour Convention, 1999 (hereafter referred to as "the Convention"), and should be applied in conjunction with them.

I. Programmes of action

2. The programmes of action referred to in Article 6 of the Convention should be designed and implemented in consultation with relevant government institutions, employers’ and workers’ organizations and, as appropriate, other concerned groups. They should aim at, inter alia:

II. Hazardous work

3. In determining the types of work or activity referred to under Article 3(d) of the Convention, and in identifying their existence, consideration should be given, as a minimum, to:

III. Implementation

4.(1) Detailed information and statistical data on the nature and extent of child labour should be compiled and kept up to date to serve as a basis for determining priorities for national action for the abolition of child labour, in particular for the prohibition and immediate elimination of its worst forms.

(2) As far as possible and with due regard for the right to privacy, such information and statistical data should include data disaggregated by sex, age group, occupation, branch of economic activity and status in employment.

5. Members should compile and update relevant data concerning violations of national provisions for the prohibition and immediate elimination of the worst forms of child labour.

6. The information compiled under Paragraphs 4 and 5 should be communicated to the International Labour Office.

7. Members should establish or designate appropriate national mechanisms to monitor the application of national provisions for the prohibition and immediate elimination of the worst forms of child labour after consulting employers’ and workers’ organizations and, as appropriate, other concerned groups.

8. Members should ensure that the competent authorities which have responsibilities for implementing national provisions for the prohibition and immediate elimination of the worst forms of child labour cooperate and coordinate their activities.

9. Members should determine the persons who should comply with the provisions of national laws or regulations.

10. Members should, in so far as it is compatible with national law, cooperate with international efforts aimed at the prohibition and immediate elimination of the worst forms of child labour by:

11. Members should provide that the following worst forms of child labour are criminal offences:

12. Members should ensure that penalties including, where appropriate, criminal penalties are applied for violations of the national provisions for the prohibition and immediate elimination of any type of work or activity referred to in Article 3(d) of the Convention.

13. Members should also provide for other remedies, where appropriate, to ensure the effective enforcement of national provisions for the prohibition and immediate elimination of the worst forms of child labour.

14. Other measures aimed at the prohibition and immediate elimination of the worst forms of child labour might include the following:

15. International cooperation or assistance among Members for the prohibition and immediate elimination of the worst forms of child labour should include:


1. The proposed Conclusions appearing in Provisional Record No. 19 were adopted by the Conference without change.

2. Paras. 330 and 334 of Provisional Record No. 19.

3. The Office views the relevant treaties as the Single Convention on Narcotic Drugs, 1961; Convention on Psychotropic Substances, 1971; Protocol amending the Single Convention on Narcotic Drugs, 1972; and the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988.

4. Para. 330 of Provisional Record No. 19.

5. Art. 9, para. 2, of Convention No. 138 reads as follows: "National laws or regulations or the competent authority shall define the persons responsible for compliance with the provisions giving effect to the Convention."


Updated by HK. Approved by RH. Last update: 26 January 2000.