Le Travail des enfants

Paragraphe II  :
The contribution of Convention n°182

Twenty years after having adopted convention n°138, of general interest, the International Labor Office thus changes strategy, by estimating that it would be unrealistic to want to act on all fronts with time. It thus seemed preferable to him to offer a certain room for maneuver to the States, in their proposer in the immediate future to treat only part of the child work ; nevertheless, the bet of the International Labor Office is to thus open the way with a process of elimination in the long term touching all the forms of work.

This convention was discussed during the International Labor Conference in June 1998^41(*), and the great questions which were discussed there related to primarily the obligation of elimination « immediate » of the worst shapes of work children, the definition of these forms, and the role of the nongovernmental organizations and other groups concerned with convention. The text of the project of this convention examined during the conference used the expression « the extreme shapes of work children », but the hard-working members suggested replacing the term « extremes » by the term « worse » estimating that that Ci would be more comprehensible for general public and would translate the idea that the certain shapes of work children are worse than others. Others deputy estimated as for them that the term « worse » was too vague and that mention « extremes » would offer a more solid base to operate judgments and to take care that all work being of an extreme nature is resumed. The Conference was finally appropriate to retain the expression « the worse shapes of work children », and to define its significance and its context in Convention.
The members of the Conference, had then to agree on the form which this project was to take ; they decided that there would be a convention together with a recommendation which would supplement the basic instruments of ILO as regards child work, namely convention and the recommendation about the minimum age of 1973. Many interventions stressed the need for adopting a short, precise convention and comprising guiding principles likely to be ratified and actually applied in the countries developed as well as under development. Taking into account the gravity of the problem, and urgency to intervene, a distinct preference was expressed for a juridically constraining convention and a complementary recommendation which could facilitate the implementation of convention and offer more detailed hot lines as for practical measurements.

The Conference also made important decisions with regard to the definition of the worst forms of work, formulated so as to include all the forms of slavery of the children, use of the children for purposes of prostitution or illicit activities, and dangerous work which puts in danger health, the safety and the morality of the children. The mention of illicit activities was preferred with that of illegal activities, in order to align itself on the treaties of the United Nations on the narcotics^42(*). Moreover, in spite of the will of hundreds of organizations of workers and certain governments, convention does not quote specific types of dangerous work and does not integrate in the convention of specific criteria allowing to determine dangerous work. Indeed, if the list of convention were too precise, it could restrictive and quickly be exceeded, or not to hold account adequately levels different of technology and practices as regards safety in the various countries. Consequently, its effectiveness could then be threatened, because of an overzealousness of its writers.

The Conference of 1998 concluded that consultations should take place with the organizations of employers and workers for better specifying dangerous work at the national level and to define and implement the action plans which convention claims.

The general Conference of the International Labor Organization thus adopted on June 17, 1999 convention n°182 on the worst shapes of work children. It recalls to it in preamble, « need for adopting new instruments aiming at the prohibition and the elimination of the worst shapes of work children », and that the effective elimination of the worst forms of the child work requires an immediate overall action. One sees as of the preamble, that this convention does not claim to be a miracle solution with the problem of the child work, because this one is « to a large extent caused by the poverty and that the long-term solution lies in the constant economic growth leading to the social progress, and in particular with the attenuation of poverty and universal education » but nevertheless, it will be used to define the intolerable forms of the child work who will have to be immediately prohibited^43(*). As for the other International Conventions, the term of child will apply to any old person of less than 18 years and convention must be applied to them even if the national legislation provides that childhood finishes earlier. Article 3 enumerates the various intolerable shapes of work children, namely : « all forms of slavery (...), such as the constraint for debts and the forced labor ; the use, the recruitment or the offer of a child at ends of prostitution (...)or of illicit activities, in particular production or traffic of narcotics ( ...) ; and finally work which by their nature, or the conditions under which they are exerted, been likely to harm health, the safety or the morality of the child ». This last intolerable form of work, being a rather vague concept, will have to be precisely defined by the national legislation. Convention thus enumerates some of the worst forms of the child work by leaving at the national level a certain latitude to determine which are the dangers which make than a work concerns the category of the worst forms.

This convention was adopted unanimously of the 174 Member States of the International Labor Organization and came into effect on November 19, 2000. The Recommendation on the worst forms of the child work which accompanies Convention exhorts the Member States to make worse forms of work of the children enumerated in convention, the penal infringements and to take penal sanctions. This recommendation defines dangerous work as « work which exposes the children to physical maltreatments, psychological or sexual ; work which is carried out under ground, water, with dangerous heights or in confined spaces ; work which is carried out with machines, material or tools dangerous or which implies to handle or carry heavy loads ; work which is carried out in an unhealthy medium being able, for example, to expose children to substances, agents or processes dangerous, or in conditions of temperature, of noise or vibrations prejudicial with their health ; work which is carried out under particularly difficult conditions, for example during long hours, or the night, or for which the child is retained in an unjustified way in the buildings of the employer ».

Mr Somavia, General manager of the International Labor Office, in amusing of the adoption of this convention, estimated that with this one, the Office « from now on the means of making urgent eradication of the worst shapes of work children a new world cause had » and that « this cause should from now on be translated, not by words but by acts, not by speeches but by policies and laws ». Indeed, this convention n°182 on the worst shapes of work children, is of a binding nature for the States signatories, but not the recommendation which supplements it. However, one can notice that the injunction made in the States set up the worst shapes of work children in penal infringements and take penal sanctions against those which are made guilty from there, is not inside the convention which it leaves the free choice between penal sanctions or « if necessary, other sanctions »^44(*), but in the recommendation. Consequently, this very important, and even essential obligation for implementation the effective of an effective policy of fight against the child work, does not have vocation to be obligatory for the States signatories what one can deplore.

This convention n° 182 thus comes to supplement the legal arsenal available to the international community to fight against the child work, and in particular convention n° 138 on the minimum age. Convention n° 182 is centered on part of the child work whose treat convention n° 138 and also, to a lesser extent, convention n° 29 on the forced labor, as well as other international instruments aiming at the abolition of slavery and the similar practices, and on the Convention of the United Nations relating to the rights of the child. However, it further goes and is more precise than convention n° 138 on certain aspects : for example, it is more specific as for the types of work the children who are prohibited for less than 18 years, in what it enumerates explicitly, like the worse shapes of work children, slavery and the recruitment or the offer of children at ends of illicit activities. Moreover, contrary to convention n°138, convention n° 182 does not comprise exception for certain sectors of the economy. Consequently, the worst shapes of work children must be prohibited and eliminated in all the branches of industry, which is in conformity with the wish to treat types of work which are intolerable for all the countries, whatever their level of development and their specificity of production. Lastly, this new convention also differs from convention n° 138 in what it requires the immediate elimination of the worst shapes of work children in explicit provisions centered to concrete measures, in particular those which impose the definition and the implementation of action plans, of measurements of prevention, the withdrawal of the children at worst the forms of work, readjustment and social rehabilitation, and in what it asks that measures are taken to found a co-operation and an international assistance within the framework of the elimination of the worst shapes of work children^45(*).

However, even if this convention is too much recent, so that one has an idea of his concrete application, it seems difficult to believe and hope that these terms will be respected with the letter by States which already signed International Conventions, but which still do not have the means of applying them. It is necessary this convention parallel to, to continue to act on the ground to improve the situation of the children.

* ⁴¹ The ILO, the Abolition of the extreme shapes of work children, file of information, Geneva, 1998.

* ⁴² Single convention on the narcotics, 1961  ; Convention of the United Nations against the illicit traffic of narcotics and psychotropic substances, 1988.

* ⁴³ Article 1 convention n°182 on the worst shapes of work children, 1999.

* ⁴⁴ Article 7 subparagraph 1 Convention n° 182 on the worst shapes of work children.

* ⁴⁵ Article 7 Convention n° 182 on the worst shapes of work children.