Convention on Worst Forms of Child Labour readied

by Chakravarthi Raghavan

Geneva, 14 June -- A conference committee of the International Labour Organization was due to adopt Monday its report to the current 87th session of the Conference for adoption by the Conference of a Convention and Recommendations on the Worst Forms of Child Labour.

A subject of intense debate at the Conference, the key provisions of the Convention and Recommendations were hammered out in a small informal group of key representatives of governments, employers and workers, and adopted as a package.

The Convention requires ratifying States to take immediate and effective measures to secure the prohibition and elimination of the worst forms of child labour as a matter of urgency and defines a child as one below 18.

The Convention specifies certain "forms" of child labour as the "worst forms" to be eliminated, but leaves, for national legislation, some other forms which by the nature or circumstances in which it is carried out is likely to harm the health, safety or morals of children.

Abandoning the unrealistic objective of abolishing such worst forms by legislation immediately, the Convention rather requires ratifying countries "to take immediate and effecgive measures" towards this end. A separate provision requires each Member to design and implement programmes of action to eliminate as a priority the worst forms of child labour - with such programs being designed and implemented in consultation with relevant government institutions, employers and workers organizations, and taking into consideratiion views of other concerned groups as appropriate.

Some of these worst forms are set out in a Recommendation and these are to be taken into account by the competent authorities of a state, after consultations with employers and workers organization, in determining the particular categories to be formulated through national laws and regulations.

Taking the issue beyond the arena of civil and political rights, a preamble to the Convention recognizes that "child labour is to a large extent caused by poverty and that the long-term solution lies in sustained economic growth leading to social progress, in particular poverty aleviation and universal education."

An article of the Convention, Article 8, requires Member states "shall take appropriate steps to assist one another in giving effect to the provisions of this Convention through enhanced international cooperation and/or assistance including support for social and economic development, poverty eradication programmes and universal education." The emphasis on the socio-economic aspects of the evil of child labour and need for enhanced international cooperation was written into the Convention as a result of the workers group and the developing country governments joining hands.

A number of industrialized country governments, including several who contribute to aid programmes, resisted the idea and particularly of the call for "enhanced" cooperation, but ultimately gave way.

Insisting on the provisions for "enhanced" cooperation and identifying poverty as a cause, the Worker members confirmed that they had sought the strong language to underscore the need for global and international action against the worst forms of child labour. "Poverty anywhere constitute a danger to prosperity everywhere," the Workers representative said, in stressing the need to combine national and international actions.

In further discussions on the nature of the obligations of the various Articles of the Convention (in a response to some of the industrialized country members who implied that the provision about enhanced international cooperation was less of an obligation for them) the government of India said that the obligations were the same for each Article and that it was India's understanding that "there was an obligation under the Convention for Members to assist each other."

Another Article, Art. 7 requires all States to take all necessary measurs to ensure the effective implementation and enforcement of the provisions giving effect to the Convention including provision and application of penal sanctions or, as appropraite other sanctions.

Members are also asked to take into account the importance of education in eliminating child labour and take effective and time-bound measures:

* to prevent engagement of childen in the nworst forms of child labour,

* to provide the necessary and appropriate direct assistance for the removal of children frm the worst forms of child labour and for their rehabilitation and social integration,

* to ensure access to free basic education, and, wherever possible and appropriate, vocational training, for all children removed from the worst forms of child labour,

* identify and reach out to children at special risk, and

* take account of the special situation of girls.

The industrialized governments (from North America and Europe) had sought to bring within the ambit of prohibited worst forms of child labour, the failure of governments to provide access to education in accordance with applicable compulsory education requirements established by national laws or regulatons.

However, several of the developing country governments rejected this and had the amendment dropped as a part of the overall package. Netherlands said they were giving up this provision reluctantly as they would have preferred definition of hazardous work to include denial of access to basic education for children.

But India countered that while it attached a great deal of importance to free, basic education, the amendment would have made the Convention unimplementable and unratifiable, since it would have extended the scope of the Convention to almost all working children since many could not attend school if they were at work. To include such a provision would have been tantamount to sanctions on poverty "as economic and social rights such as free basic education were achievable only progressively."

The draft report of the Committee that became available Monday morning showed some arguments of casuistry about the links between poverty and child labour, with the United States for e.g. arguing that the "inter-relationship between poverty and child labour was complex and still not well-understood" and that the proposed amendments (to the preamble) did not capture that complexity.

As a result principally of the US government's opposition, the proposed Convention would not rule out use of all children, under age 18, in situations of armed conflict, but would bring under the Convention's ambit only the "forced or compulsory recruitment of children for use in armed conflict."

A number of governments, in particular many in Latin America and Africa and in Europe too, tried to bring into the ambit of the convention use of those under 18 in any armed conflict, but ultimately had to give way.

However, it was still not clear whether the practice of the US and a few others to "voluntarily" recruit into the armed forces those under 18 (it is 17 year olds in the US), while legal under the Convention, would still fall foul of it if such "soldiers" under 18 being sent into armed conflict, and whether the requirement to nationally legislate on some of the hazardous work would be attracted.

The ILO Deputy Legal Advisor gave an opinion that seemed to bear out the US view the article of the convention would not apply to 16- and 17-year olds being recruited into the armed forces.

However, the legal advisor did not provide a clear opinion on the specific question, posed by Australia, about the implications of the provisions of Art 3 (a) of the proposed convention on forced or compulsory recruuitment of children in armed conflict "for member States which allowed non-compulsory military service as of the age of 17, particularly in the event of armed conflict or military intervention."

According to the draft report, the Deputy Legal Advisory viewed the question as "a very hypothetical question" and that the purpose of the provision in the Convention was to cover forced or compulsory recruitment of chidlren for use in armed conflict and "this was all that could be said from a legal point of view".

As for the status of such advice, visavis other provisions of international law on interpretation, the deputy Legal Advisor merely said the ILO Legal Advisor "served the Conference exclusively" during the Conference and the standing orders provided for a conference motion to ask for the opinion of the Legal Advisory.

But the report does not indicate that the advice was provided by him on such a motion. The US government twice asked the Conference to provide such an understanding, but the report does not indicate this was done. (SUNS4455)

The above article first appeared in the South-North Development Monitor (SUNS) of which Chakravarthi Raghavan is the Chief Editor.

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