CHAPITRE II :
INTERNATIONAL WILL OF
PROHIBITION CHILD WORK: A FAILURE
In this field as in so much of others, a solid tallies legal A
a role essential to play to support the changes. It must define what is
acceptable and what is not it in the world of work and to fix the executives in
which a relation of employment right and equitable can be established. It is
indeed particularly important to provide the children, a strict legal framework
and the protection which accompanies it, because they do not have any capacity
of negotiation on the labor market and are thus consequently, ready to be
protected from the exploitation. However, to be effective, and to offer a true
protection to the million children likely to profit from it, these national and
especially international standards, must applicable and be applied. Indeed,
nothing can carry reached any more to the credibility of a legal rule than the
absence or the insufficiency of the mechanisms of application.
A great number of conventions of the International Labor
Organization as of other international treaties relate to the child work and
the protection of those against the exploitation. We will thus recall briefly
the contents of those (Section I), before seeing the fundamental text as
regards rights of the child who is the International Convention relating to the
rights of the child adoptive by the General meeting of the United Nations
(Section II).
SECTION I :
Conventions of ILO relating to the child work and
national impact
The International Organization creates in 1919, with leaving
the First World War, had the principal role to enact international standards of
work in order to ensure peace in the world. For this reason, this organization
very quickly was interested in work of the children, and in did one of its
priorities. From 1919 until today, ILO regularly drew the attention of the
international community to the gravity of the situation of the children, by
regularly adopting International Conventions intended to fight against the
child work. However in spite of a constant normative activity in order to
eliminate work from the children (Paragraph I), the impact on the national
legislations of these conventions was not with the height of the hopes of ILO
(Paragraph II).
Paragraphe I :
An organization
lavishes as regards regulation
child work
Since its creation, ILO adopted several conventions relating
specifically to the child work. This organization mainly fixed a minimum age of
admission at employment or work, either for a particular sector of the economy
or for the whole of the economic sectors, while allowing certain exceptions.
ILO adopted its first convention on the child work in 1919, the year of its
foundation. It is about convention n°5 on the minimum age in the industry
adopted by the International Labor Conference at its first session and ratified
by 72 countries, it prohibits the child work of less than 14 years in the
industrial plants. It was the first international effort to regulate the
participation of the children in work. Thereafter, the Organization will adopt
nine sectoral conventions on the minimum age of admission to employment in the
branches or following professions : industry, agriculture, soutiers and
drivers, maritime work, nonindustrial work, underground fishing and work.
The instruments of ILO most recent and most complete on the
child work are convention n° 13818(*) and the recommendation n°146 on the minimum age,
going back to 1973. This convention replaces all the former instruments
applicable to limited economic sectors. It makes obligation in the States
started from specify a minimum age of admission to employment and work and to
continue a national policy aiming at ensuring the effective abolition of the
child work19(*). The
recommendation n°146 which accompanies it fixes the framework of action
and measurements essential to implement to prevent and eliminate work from the
children. This convention and the recommendation which accompanies it
constitutes the important advanced ones in the field of the international
standards on the child work. They are indeed the first to have recognized the
need for integrating the legislation fixing a minimum age at an overall
national policy having for goal to abolish the child work completely. It is
however more exact to speak about minimum ages, in the plural, because the
fixed age varies according to the nature of employment or work.
Convention establishes a fundamental principle according to
which, the minimum age of admission to employment or work should not be lower
than that to which cease compulsory schooling, nor in any case at 15 years. It
also provides that the minimum age should be gradually high on a level making
it possible to the teenagers to reach the most complete physical and mental
development. It allows, however, the employment of the teenagers from 13 to 15
years with light work, i.e. work which is likely neither to carry damage to
their health or their development, nor to harm their school assiduity, with
their participation in programs of orientation or vocational training, with
their aptitude to be profited from the received instruction.
Convention
prescribes to fix this age at 18 years for any dangerous work,
i.e., « any type of work which, by its nature or the conditions
of exercise, is likely to compromise health, the safety or the morality of the
teenagers »20(*). Convention also lays out that the types of
employment or work concerned will be determined by the national legislation or
the proper authority, thus leaving with each country the care of this decision.
The recommendation accompanying this convention proposes criteria of
determination stating, that it is advisable to take into account international
standards of work relevant, for example, those relating to the dangerous
substances or toxic agents or processes, the transport of heavy loads and work
underground. It lays out moreover that the list of the types of employment or
work in question should be re-examined periodically with the light in
particular advances in knowledge and technique, in consultation with the
organizations of employers and workers. The minimum age, for the types of work
concerned, should be 18 years. The recommendation reinforces this principle by
indicating that, when the minimum age is still lower than 18 years, of
measurements should be taken, without delay, to carry it on this level.
However, convention lays out, that this age can be lowered to 16 years provided
that health, the safety and the morality of the children are fully guaranteed
and that they received in the branch of corresponding activity, a specific and
adequate instruction or a vocational training.
It is also advisable to mention another instrument of the
International Labor Organization, convention n° 29 on the labor forced,
1930, adopted by the general Conference of the Organization on June 28, 1930.
Its role is primarily to protect the children against the worst forms from
exploitation. It aims at removing the recourse to the forced or obligatory
labor, i.e. with « work or service required of an individual under
the threat of an unspecified sorrow and for which the aforementioned individual
did not offer himself of full liking » .Etant21(*) applicable to any person,
whatever her age, it protects the children against the forced or obligatory
labor and is applied to the certain most unacceptable shapes of work children,
such as the constraint and the exploitation of the latter in particular at ends
of prostitution or pornography. This convention is one of the fundamental
instruments of ILO and one of was most largely ratified : 149 States for
convention n°29 and 130 States ratified convention n°105 on the
abolition of the labor forced into 1957 which supplements convention
n°29.
Today only 49 countries ratified the convention n°138,
including only 21 but any country developing country of Asia, continent where
are however more half of all the children who work . Indeed, certain
Member States of ILO, consider this convention too complex and too difficult to
apply in detail ; the organization thus endeavors to offer technical
councils and to make play the clauses of flexibility contained in Convention
n°138.
The legal arsenal is thus extended, but its range remains
limited. Indeed, the sanctions laid down in conventions are not sufficiently
constraining. The States left must periodically give a report on the progress
implemented either at the commissions of the ILO or at the committees of UNO
which then confront the relationship with those of ONG. However, the violations
of the rules are the examination procedure object very long followed by
recommendations, but on the ground, these procedures often remain without
effect. Even in the industrialized countries, the methods of control remain
insufficient. In the developing countries, the child work is of such a width
that the respect of the laws passes by a prerequisite : modification of
the socio-economic context. The national plans of action launched in several
countries thus have only few results. The instruments of control and sanctions
(factory inspectorate, organizes), exist sometimes. Certain countries like
Pakistan, the Philippines or Turkey set up special units, and targeted
inspection campaigns, but everywhere effective and average remain dramatically
insufficient taking into consideration million farms and establishments which
would have to be inspected. Much country is thus cut off behind this lack from
means to affirm that convention n°138 is too difficult to apply.
The respect of the law also runs up against the absence of
political good-will and general resignation. South Asian Coalition one Child
Servitude blames absence of the real and honest political good-will and notes
that the deputies themselves have domestic children. Most of the company judges
normal that a poor child works and ONG Indians show the successive governments
to have lowered the arms.
Implementation the effective of the legal arsenal thus proves
very difficult in the developing countries, in particular because of
inefficiency of the sanctions ; the application of the International
Conventions in the national legislations thus is very limited.
* 18 Convention n°138
adopted 26.06.1973 ; go back to entry into force the 19.06.1976
* 19 Article 1 and 2 of
Convention n°138.
* 20 Article 3 subparagraph 1
of Convention n°138
* 21 Article 2 subparagraph 1
Convention n°29 concerning the labor forced come into effect on May 1,
1932.
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