Le Travail des enfants

UNIVERSITY OF NANTES

POLITICAL SCIENCE AND FACULTY OF LAW

CHILD WORK

Memory for the diploma of Thorough Studies of Private Law, mention legal and criminal sciences.

Presented and supported by Aude CADIOU, in June 2002.

Director of research : Mrs. Soizic LORVELLEC.

PART I :
RELATIVE IMPOTENCE OF the INTERNATIONAL COMMUNITY IN FRONT OF the EXTENT OF WORK
CHILDREN

CHAPTER I : Child work : a situation
intolerable

Section I : Extent of the phenomenon of the child work

Paragraph I : A not easily quantifiable phenomenon

Paragraph II : A phenomenon not being limited to the poor countries

Section II : A work being carried out in forms very
any other business

Paragraph I : Child work within a family sphere

Paragraph II : Child work in the formal sector

CHAPTER II : International will of prohibition of the child work: a failure

Section I : Conventions of ILO relating to the work of
children and national impact

Paragraph I : A very prodigal organization as regards regulation of the child work

Paragraph II : An application however limited in the national legislations

Section II : The Convention on the rights of the child and application

Paragraph I : Genesis of the International Convention of the rights of the child

Paragraph II : An ambitious convention but still too recent to measure made progress

PART II :
CHANGE OF POLICY
THE COMMUNITY
INTERNATIONAL

CHAPTER I an international community anxious to include/understand for better fighting

Section I : Causes of the child work taken into account as a whole

Paragraph I : Causes related to the poverty of the families 

Paragraph II : Causes external with the family

Section II : The creation of standards against the «worse shapes of work children»

Paragraph I : Why a new more restricted convention ?

Paragraph II : The contribution of Convention n°182

CHAPTER II the search of more concrete solutions and alternatives to the child work

Section I : To support education : an essential starting point

Paragraph I : To succeed in bringing the children to the school

Paragraph II : To offer to the children an adapted education

Section II : Importance of the social mobilization in the fight against the child work

Paragraph I : The boycott of the products resulting from the child work : a false solution

Paragraph II : The need for creating a broad consensus counters the child work

Since the beginning of the Eighties, the child work causes a new mobilization, in particular on behalf of the international institutions and media. Nevertheless, it is necessary to get along on the expression « child work ». Indeed, when one uses this expression one imagines at once a child working under abominable conditions, on a weaving loom in Bangladesh, or a child of the streets of Rio or pavements of Manila. However, actually the children carry on very diverse activities which can go from beneficial activities reinforcing or supporting the physical or mental development of the child, until an activity obviously destroying or synonymous with exploitation. Between these two poles, one finds vast zones of activity with a work which does not harm inevitably the development of the child. « To regard any economic activity as also unacceptable, it is to throw confusion, to standardize the question and to make even more difficult the elimination of the child work »^1(*). Consequently, it is necessary to establish distinctive criteria between a work which can be beneficial for the child who exerts it and a dangerous work for him ; for that the UNICEF worked out approximately ten years ago a series of criteria to indicate a work which concerns the exploitation. The UNICEF is based then on nine criteria to determine if exerted work concerns the exploitation ; these criteria are : a full-time work at a too early age, too many hours devoted to work, work which exert physical constraints, social and psychological excessive, an insufficient remuneration, the imposition of an excessive responsibility, an employment which blocks the access to education, of the attacks to the dignity and the self-respect of the children, a work which does not facilitate the social and psychological blooming complete of the child. One thus sees through the study of these criteria which work becomes a problem when it involves consequences on the development of the child ; these consequences can be physical (in particular by a degradation of the general state), psychological (attachment with the family, feelings of love and acceptance), social and morals or cognitive (basic competences in reading or writing).

The physical attacks are of course easiest to note but the children are also vulnerable from the psychological point of view : they can suffer frightening damage while living in an environment which degrades them or oppresses them. The self-esteem is as important for the children as for the adults.

Before venturing further in the work study of the children in the world, it should first of all be eliminated the idea that the child work exists only in the poor countries. Of course, they are currently the developing countries, such as the countries of Africa, Asia or Latin America, which shelter the greatest number of children to work. However, even still nowadays certain industrialized countries such as England or Italy also see many young children to work. In France, fatherland of the humans right, even if if today the phenomenon almost disappeared, except in some clandestine workshops of Paris or of south-east, the work children was very a long time widespread and this until rather recent periods.

The child work in family goes up at the oldest ages : their participation in the behavior of the household and the agricultural work is attested in all the rural companies. During the centuries marked by a very short life expectancy, such as during the Middle Ages, childhood remains one short period and the child is quickly regarded as a young adult. The young girls receive an early formation with the domestic life and are married to fourteen or fifteen years. In fact, as soon as its physical capacities allow him, the child cultivates the garden and maintains the house with his mother or ensures of menus work in the workshop of his father craftsman, learning his trade little by little. The child takes part then in the family economy, each mouth to be nourished in front of making itself useful. At one time of raised mortality, it is also essential that the child is early able to mitigate the failure of an adult, because of a disease or of a death, but also to ensure its future. These requirements continue still today to model the daily newspaper of the families of the Third World. With the Middle Ages, there is already a childish labor, coming from the poor families which pain to nourish their offspring and which seek for their children an assumption of responsibility and a future outside. The request, it, emanates employers eager to have inexpensive, flexible and hard workers with the task. The young girls of the campaigns are placed as maidservants, and the young boys as agricultural workers or farmhands. Work concerns only the children of the people, since those of the nobility do not have to be concerned with their subsistence or their future. The education, exempted by the clergy or some schools of village, profits especially with the easy categories, nobility or middle-classes, but not with wire of peasants. Moreover, with the Middle Ages, the training in the medieval corporations is very widespread (tanners, clothiers, carpenters, masons, dyers, goldsmiths) and the placement in training lasts two to three years, starting from the twelve years age. Actually, the motivation of the employers is very simple : to have a labor which, n the other hand of the time spent to its formation, is not remunerated or much less than would be to it an adult. It is the same motivation that one finds today in the employers of the small workmen of the factories of Asia which are paid than the adults.

It is thus seen that the child work whom one thinks held today of the developing countries, was practiced very a long time in France, where it even developed at the XIXème century. Indeed, after the French revolution, still very few poor children go to the school but their wages are essential to the family because it covers at least what the child costs in food, and is used as auxiliary income at one time when all the means are good to relieve poverty. During the Industrial revolution, the workmen have dramatically low incomes and thus incite their children to return in the factory ; the workers of the textile bring their children to manufacture to supervise them and while growing, those are incorporated little by little in work of the workshop. According to investigations' carried out by historians, the children would have constituted a good third of the labor attached to the machines of the spinning mills in France, and about 1840 one estimates that 12% of the workmen of industry are children. In 1847, the general Statistics of France count 130.000 children of less than thirteen years in the establishments of more than ten paid and the census of 1896 book the figure of 602.000 children and teenagers in industry and the trade^2(*). Lastly, it should not be forgotten that the children are also engaged numbers some in the coal mines : in 1890, out of 116.000 paid coal basins of France, one counts 8300 children from twelve to sixteen years . On the surface, they sort, target and wash the ore and underground in the mine, they are charged to handle the carriages, all the day. At that time, the industrial middle-class considers that the employment of the young people is a factor of social peace, because it avoids the delinquency, and a manner of helping the families of the poor or the poor ones. To justify it, employers spreads even the idea that their small size is essential for certain phases of manufacture, which nobody thinks at the time disputing.

However, little by little, and owing to the fact that the child will leave his quasi-invisibility inside the family circle, to work within a visible framework, the public opinion will start to be moved. In France, since 1830, inspectors, doctors, prefects and local councillors evoke the working conditions of the children and the accidents of which they are frequently victims. In literature, works of Charles Dickens, former working child as of the twelve years age, and Emile Zola forge the vision of a social plague. The regulation however will be initially timid since a decree of 1813 prohibits the descent at the bottom of the mines only to the children of less than ten years. But since 1837, the doctor and statistician Louis-Rene Villermé will seize the State of « too long duration of the child work in much of manufactures ». The legislation then will advance step by step, by prohibiting the recruiting of children of less than eight years in industry, then in 1874, the recruiting before twelve years and limit work at twelve hours per day up to ten eight years... makes the regulation of It could be effective only thanks to the launching of a policy of state education. In 1881 and 1882, Jules Ferry imposes the obligatory primary school for the two sexes, from six to thirteen years and creates the certificate of primary studies. The schooling is free, and this exemption from payment is fundamental because the school thus manages to modify the social perception of poor childhood : it will be increasingly normal that the children of the modest families attend the school, and not the factory. The compulsory schooling up to sixteen years since 1959 allied with the generalization of the family benefits will contribute to withdraw the children of work gradually to arrive at the total disappearance of this phenomenon, at least in its visible form. Indeed, work in family, such as work with the farm or the house work of the young girls, will remain still tardily in France, but this time while yielding with the schedules of the school. In the campaigns, the school absenteeism will remain very important for the periods of harvest until the inter-war period, but technological progress will make disappear this absenteeism. Today, the child work very largely disappeared in France, but as we will see it later on, there still remains in industrialized countries like England, Italy, Spain or the United States. It is thus seen that in France the situation of the children, and in particular the development of standards concerning their rights, developed very gradually ; we thus should see whether the situation developed in the same way at international Community level.

Since the middle of the Eighties, one attends a keen demand of protection of the children on behalf of the public opinion. However the concern to give rights to the children and especially to oblige the States, which do not do it yet, to respect them, date completion of the years 1910.Les sufferings caused with the children following the First World War pushed the international company to be interested more closely in the fate of these vulnerable beings which are the children and to create by the means of the Company of Nations (SDN) a Committee of child welfare in 1919. The international Union of help to the children writes in 1923 a text called Déclaration of Geneva or Declaration of the rights of the child adoptive by the Parliament of the SDN in 1924. This text represents in fact the first attempt at coding of the basic rights of the child ; one finds there the ideas which will be taken up later by the United Nations for the International Convention of the rights of the child, and which preach the right to a normal development, materially and spiritually, as well as the right to be put able to earn its living and to be protected from any exploitation. Because of the harmful consequences that one knows today of the Second world war on the children, the idea is started again in 1946 by the Economic and Social Council of the United Nations (ECOSOC) which asks for the development of new standards going in the direction of the Declaration of Geneva. When on December 10, 1948 the General meeting of the United Nations adopts the universal Declaration of the humans right, the rights of the child are implicitly included there since it states in her article 25 subparagraph 2 : « Maternity and the child are entitled to a special help and an assistance ». The international community thus recognizes the need for a child welfare and it is the commission of the social questions which will submit to the Commission humans right a project of declaration which will become after some deteriorations the Declaration of the rights of the child^3(*). This Declaration states essential principles which can be summarized thus : the child is entitled to education, with a special protection, to receive protection and help, to be protected from any form from negligence, cruelty or exploitation...

However, these texts were insufficient to protect the unit from the children of the world population and very quickly the need was felt to adopt another more complete, and broader international instrument. For that, the Organization of Work played a great part by adopting several fundamental conventions in particular as regards child work, such as Convention n°138 in 1973 relating to the minimum age. Nevertheless, the situation of the children was long much in improving and it is thus for this reason that the United Nations then attempted to create the International Convention relating to the rights of the child, of which we will study the genesis and the contents later on but of which we can already notice that it is today the international instrument most complete as regards rights of the to date existing child.

As regards fight against the child work, an organization had a dominating role since its creation : it is about the International Labor Organization (ILO) .La creation of ILO is the result of a whole movement of ideas in favor of an international regulation of the work which occurred as of first half of the 19th century, but which really continued only at the beginning of 20th. The called upon argument is that of international competition, summarized perfectly in the preamble to the Constitution of ILO : « Waited until the not-adoption by an unspecified nation of a really human operating speed range makes obstacle with the efforts of the other nations eager to improve the lot of the workers in their own countries » ; but at the end of the First World War, this idea of social justice is especially considered from the point of view of its contribution to the safeguarding of peace. Thus, the preamble to the Constitution of ILO underlines it as of its first sentence, that « a universal and lasting peace cannot be founded that on the basis of social justice. »

The sacrifices authorized by the workers to the effort of war and the fears caused by the Russian revolution of 1917 reinforced the influence of the organized labor. It is thus under their pressure that the governments taking part in the Conference of peace in January 1919, two months after the armistice, decided to include in the treaty of Versailles part XIII devoted to creation of ILO. This part XIII defines the objectives, the structure and the means of action of ILO.

Instituted in 1919 by the treaty of Versailles, the International Labor Organization (ILO) thus has for objective essential to promote social justice, and by-there same, to contribute to world peace. Based on the principle of the three-party government, it brings together representatives of the governments, workers and employers. Its action falls under the continuation of a humanistic ideal founded on the respect of the humans right and on the dignity of the living and working conditions. From this point of view, it works out international standards which relate to all the aspects of work and which have vocation to guide the social policies of the Member States. Contained in conventions and recommendations, these standards constitute a unit which is often indicated by the term of international Code of work. Until the bursting of the Second World war, ILO was the only active international organization in the social field. However, after the end of this one, its activities practically ceased development control of the standards, as well as action on the ground. But an intense deliberation, which was continued, in particular led to the adoption of the Declaration of Philadelphia, in 1944, concerning the goals and objectives of ILO. Little time after the creation of the United Nations, in 1945, ILO became the first of the specialized agencies, in 1946. But, little by little, with the creation of other specialized agencies and the fall of the Berlin Wall in 1989 and the role more and more invading of the United Nations, ILO saw to weaken its role of « social pillar » of the international organizations.

ILO is initially characterized by its three-party government, since with the difference of the other public international organizations, it includes/understands, not only representatives of the governments, but also of the representatives of the workers and employers. The three-party government is it « claim to fame » of ILO, since it allows to the representatives workers and employers to take part, on an equal footing with those of the governments, with the discussions and the decisions of the Organization. The proportion retained for the majority of the deliberating bodies, and in particular for the Conference and the Board of directors, is of two representatives of the governments for a representative of the workers and a representative of the employers. Its operation rests on three essential bodies : the International Labor Conference, an annual general assembly ; the Board of directors and the International Labor Office.

The International Labor Conference is the supreme body of ILO, the general assembly of the Member States. Since 1949, it always meets in Geneva, once per annum, in June, during three weeks. She initially has the role of discussing and of adopting conventions and recommendations which define the international standards of work and of controlling the application of ratified conventions. But the debates which it devotes to the discussion of the Report/ratio of the general manager of the International Labor Office are also essential.

The Board of directors is the executive body, the pivot of all the activities of ILO ; it is him which establishes the agenda of the Conference and other meetings and fixes the broad outline of the program of work of the International Labor Office.

The International Labor Office (the ILO) is the permanent secretariat of ILO, it is at the same time the body of execution of the decisions of the Conference and the Board of directors, a resource center and a laboratory of ideas from where emanate from important publications and the projects which are subjected to the various authorities of ILO. It is him which prepares conventions and recommendations subjected to the Conference then follows the application of those which were adopted.

As regards fight against the child work, the action of ILO was done in several forms : a normative action that we will develop later on, and who was of first importance, a technical assistance with the developing countries consisting in sending advisory missions in the countries which wish to receive councils for the application of certain standards and in order to help them to measure the extent of the problem and of its consequences, improving their legislation on work of the children and his application, but also thanks to creation in 1991 of the international Program for the abolition of the child work
(IPEC) which rests on the reinforcement of the capacity of the countries to attack this problem and on the creation of a world movement to fight it. In front of the width of its mission, the IPEC concentrates, initially, on the eradication of the most abusive and intolerable shapes of work children. However, certain actions to undertake to fight the major causes of this phenomenon falling within the competence of other international organizations, ILO must act as dialog with those, and in particular with UNO, the United Nations for education, science and culture (UNESCO), the World Bank and the world Organization of the trade.

As regards fight against the child work, the International Labor Organization must thus act as dialog with other organizations and in particular with UNESCO and the Funds of the United Nations for childhood (UNICEF).

The UNICEF was creates at the end of the second World war because the famine and the disease threatened the children of Europe : this organization was instituted by the General meeting of the United Nations on December 11, 1946^4(*) in favor of the cause of the children all over the world. In the Fifties, Europe recovering from the war, certain countries estimated that the UNICEF had made its time but the General meeting widened the role of the organization which will work from now on for the children and the families of the developing countries. In 1953, the UNICEF becomes a Safety and Health Committee of the United Nations of which the mission is to deal with the questions such as the food aid, education and training and since 1989 to take care of the application of the International Convention of the rights of the child.

UNESCO was creates by a convention adopted by the Conference of London in November 1945^5(*) and counts 188 Member States today. Its principal objective is to contribute to the maintenance of peace and safety in the world while tightening by education, science, the culture and the communication, the co-operation between nations, in order to ensure the natural respect of justice, the law, the humans right and of fundamental freedoms for all.

These are primarily the two organizations which contributed to create the world dash in favor of the children who mobilizes today strongly the international opinion on the problem of the child work. One can only be delighted by this formidable dash since as extremely precisely said it, Philip Alston, famous lawyer specialized in the rights of the children : « In last analysis, only the broad and repeated expression popular indignation will impose the adoption of right policies. » One has indeed seen developing for a few years, the demonstrations against the child work like walk against the child work. This walk was creates on the initiative of an Organization nongovernmental Indian working with the daily newspaper with the fight against the child work ; the purpose of it is of « to mobilize forces in the whole world to protect and promote the rights of all the children, in particular with a free education and of quality, not to be exploited economically, not to be constrained to carry out a work which is harmful for its physical development, mental, spiritual, moral or social »^6(*). An extraordinary session of the United Nations in favor them children was to be taken place in September 2001 but it was shifted because of the attacks undergone by America a few days before its opening. This extraordinary session thus took place May the 9, and 10 2002 in New York. It gathered Heads of State and government, nongovernmental Organizations, defenders of the rights of the child and children themselves. At the end of these two days of debates, sometimes surging, the General meeting of the United Nations adopted a world action plan in 21 points for the next decade. The document entitled « A world worthy of the children » determines four priorities : health, education, protection counters the abuses, the exploitation and violence; and the fight counters the AIDS. With the exit of this extraordinary session, several nongovernmental organizations, were declared disappointed by the final project, considered to be too timid. One can notice that these commitments had already been undertaken, ten years ago at the world Top for the children, and that the situation of the hard-working children, hardly developed since. However, it should be hoped that this time the rich countries will keep to their commitments to help the developing countries.

In this study, we will see in detail the various types of work which the children are brought to make today ; however, two types of work will be not considered, not because they are not dangerous for the children who exert them, on the contrary even, or that they do not relate to enough children to be explained in detail, but on the contrary because the study of this work could make the study of two additional studies. They are the childish prostitution and the children soldiers. The sexual exploitation of the children at commercial purposes became, these last years, a world problem which tends to develop. More and more, of the children are sold and are the subject of an international draft. According to a ratio of 1996 of the special Rapporteur of the United Nations charged to examine the questions referring to the sale of children, the prostitution of the children and the pornography implying of the children, approximately a million children of Asia are victims commercial of the sex^7(*). It is estimated today that thirty million children are victims of sexual violences to the hands of traffickers of share the world. The mercantile sexual exploitation is one of the most brutal forms of the violence which is exerted against the children. The victims undergo traumatisms physical, psychic and emotional irreversible and sometimes mortals. The girls risk early pregnancies, know a high rate of maternal mortality and sexually transmitted diseases (in particular due to the HIV). The traumatisms are so deep that in many cases, the return to a normal life is impossible and that many victims die before the adulthood. It thus appeared impossible to to me to treat this form of exploitation, particularly odious, in this talk because of complexity and of the extent of the phenomenon today. The same reflection results in also excluding from the field of this study the case of the children soldiers. Indeed, the number of children taking part in wars as a soldier, servants, spies or shields human is estimated at 300.000 in the world. Recruited or removed, these children who have sometimes less than ten years assist or take part in acts of violence, often perpetrated against their own family or their community. The military chiefs are useful themselves of these very young children bus they are more flexible, easier to exploit or mislead.

Vis-a-vis these two forms of exploitation, the General meeting of the United Nations adopted two texts called « Optional protocols » with the Convention on the rights of the child on May 25, 2000. The optional Protocol on the participation of the children in the wars fixes at 18 years the minimum age of the direct participation of a child in hostilities or the enrôlement obligatory one in the armed forces. The optional Protocol on the sale of children, the prostitution of the children and the pornography implying of the children requires of the States to take legal steps and administrative to prevent the sale, the traffic and the sexual exploitation of the children and to make these offenses liable to continuations. It recommends moreover an international co-operation to fight against this criminality without borders.

Other than the sexual exploitation of the children and their participation in the wars, we will thus consider in this study all the other forms of exploitation whose children are victims daily with the four corners of the world. In spite of great efforts to cure the unbearable situation that the extent of the child work constitutes, the international community still did not succeed in damming up this plague. It is thus necessary to recognize the relative impotence of the international community in front of the extent of the child work (Left I). However, the international institutions decided to react to improve the situation of the children in the world, situation which worsened ineluctably with the wire of the decades. The international community thus decided to change policy, in 1999 to try to answer concretely the problem arising from the economic exploitation of the children (Left II).

* ¹ Report/ratio UNICEF  «  The situation of the children in the world 1997  »

* ² PIERRARD P., Children and working young people of France, XIXe and XXe centuries, Working Editions, Paris, 1987.

* ³ Declaration of the rights of the child adoptive and proclaimed by the resolution on 1386 (XIV) November 20, 1959.

* ⁴ In 1946, this organization had as a name «  Funds international of help to childhood  » (UNICEF).

* ⁵ Convention come into effect on November 4, 1949 after ratification of 20 States.

* ⁶ Internet site  : http://www.globalmarch.ch/marche/marche.html

* ⁷ The United Nations, Commission of the humans right  : Rights of child (Geneva, Doc. n°E/CN.4/January 1996,/100,17 1996) p.8