December 20, 2005

X. Child Labor in International Law

Under international law, child labor in itself is not prohibited, in recognition of the potential benefits of some forms of work and of the realities that require many children to enter the workforce to support their own or their families' basic needs. Instead, international treaties address the circumstances under which children may work and require states to set minimum ages for employment. In addition, children who work do not give up the basic human rights that all children are guaranteed; in particular, they continue to enjoy the right to education.

Minimum age for employment

As already noted, the ILO Minimum Age Convention, ratified by Morocco, sets the minimum age for admission to employment at fifteen.The convention further states that national laws "may also permit the employment or work of persons who are at least 15 years of age but have not yet completed their compulsory schooling" provided the work "is not likely to be harmful to their health or development," and does not prejudice their attendance at school or participation in vocational training programs. [153] Moreover, for such children, the convention requires states to "determine activities in which employment is permitted and [to] prescribe the number of hours during which and the conditions in which such employment or work may be undertaken." [154]

The prohibition on economic exploitation and harmful or hazardous labor

The CRC obligates Morocco to protect children from "all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child." [155] It guarantees all children under eighteen the right "to be protected from economic exploitation and from performing any work that is likely to be . . . harmful to the child's health or physical, mental, spiritual, moral or social development." [156] Moreover, states parties to the convention are obligated to regulate the hours and conditions of employment and to ensure that children have adequate time for rest, leisure, and play. [157] While the treaty does not define economic exploitation, Human Rights Watch believes that this threshold is crossed when, as described in this report, child domestics are required to work extremely long hours without adequate rest, leisure, and play, for wages far below the lowest minimum wage set in law for other categories of workers. [158]

The Worst Forms of Child Labour Convention, ratified by Morocco on January 26, 2001, develops the prohibition on harmful or hazardous work. Under that Convention, some forms of child labor are flatly prohibited, including "slavery or practices similar to slavery, such as the sale and trafficking of childrenand forced or compulsory labor." [159] Other types of work are prohibited if they constitute "work which, by its nature or the circumstances in which it is carried out, is likely to harm the health, safety or morals of children." [160] States parties determine what constitutes prohibited hazardous work in consultation with workers' and employers' organizations, considering "relevant international standards, in particular the Worst Forms of Child Labour Recommendation." [161] Among other factors, the recommendation calls for consideration of the extent to which the work "exposes children to physical, psychological or sexual abuse" or involves "particularly difficult conditions such as work for long hours or during the night or work where the child is unreasonably confined to the premises of the employer." [162]

The Worst Forms of Child Labour Convention further obligates states parties to implement programs of action to eliminate as a priority the worst forms of child labor, including taking effective and time-bound measures to provide direct assistance for the removal of children from the worst forms of child labor and for their rehabilitation and social integration, to identify and reach out to children at special risk, and to take into account the special situation of girls. [163] The Worst Forms of Child Labour Recommendation in particular urges states to give "special attention" to "the problem of hidden work situations, in which girls are at special risk." [164]

The Worst Forms of Child Labour Recommendation also sets out detailed steps states should take in implementing the Convention. Among these steps are the collection of detailed, disaggregatedinformation and statistical data on the nature and scope of child labor, the creation of mechanisms to monitor implementation, and the coordination and cooperation of the responsible national authorities. [165]

Forced labor

Forced labor is among the worst forms of child labor and is prohibited for all children under eighteen. The ILO Forced Labour Convention, ratified by Morocco in May 1957, defines forced labor as "all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily." [166]

In determining whether particular working conditions constitute forced labor, the ILO Committee of Experts has said that the "menace of any penalty need not be in the form of penal sanctions, but might take the form also of a loss of rights or privileges." [167] In its 2005 Global Report on forced labor, the ILO discusses "the often subtle forms of coercion" that characterize forced labor, and sets out "the main elements or characteristics that can be used to identify forced labour situations in practice." Examples of menace of penalty include: physical violence against worker or family or close associates, sexual violence, threat of supernatural retaliation, imprisonment or physical confinement, financial penalties, denunciation to police or immigration authorities and deportation, dismissal from current employment, exclusion from future employment, exclusion from community and social life, removal of rights or privileges, deprivation of food, shelter or other necessities, shift to even worse working conditions, and loss of social status. Example of lack of consent include: physical confinement in the workplace, psychological compulsion, physical abduction, deception or false promises about types of work and terms of work, withholding or nonpayment of wages, retention of identity documents, birth/descent into slave or bonded status, sale of person into the ownership of another, and induced indebtedness. [168]

Trafficking of children for forced labor

The most widely accepted definition of child trafficking is that of the Trafficking Protocol of the Convention against Transnational Organized Crime, which defines child trafficking as the recruitment, transportation, transfer, harboring, or receipt of a child for the purposes of sexual or labor exploitation, forced labor, or slavery. [169] Unlike the CRC's Optional Protocol on the Sale of Children, the Trafficking Protocol applies even if a parent or guardian did not receive payment or other consideration to move a child to a situation of exploitation. [170] Although Morocco has not signed or ratified the Trafficking Protocol, it has ratified the Convention on the Worst Forms of Child Labour, which includes forced labor and child trafficking for forced labor among the worst forms of child labor. Governments have an affirmative obligation to prevent the worst forms of child labor. [171]

The ILO considers a child to be trafficked into domestic service when she is "obliged to leave herhome village to go to the city to find work and who is recruited into domestic service where the conditions are exploitative (for example, the child is 'paid' in food and lodging rather than receiving a wage)." [172] The ILO explains that even if the relocation element of trafficking is voluntarily, if the domestic service is exploitative and satisfies any of the criteria for the worst forms of child labor, then the child is considered to be trafficked, and the employers are traffickers under international law. [173]

Human Rights Watch believes that the testimonies of three of the fifteen domestics profiled in this report may be consistent with the international definition of trafficking of children into forced labor. They are the testimonies of Zahra H., whose employer beat her when she didn't do what she was told to do but who, at age eight, was too young to leave by herself and who didn't receive visits from her family at her place of employment; Rasha A., whose employer locked her inside the house when the employer went out, beat her when she did work poorly, and threatened her with more beatings if she complained to her family during visits the employer supervised; and Salwa L., whose employer refused to pay money owed her when she said she wanted to quit and threatened to bring the police to beat her to extract additional money.

In addition to these three cases, one other case we investigated has elements that suggest forced labor: Samira M., whose employer required her to work eighteen-hour days, beat her if she was slow bringing things, threatened to bring police to beat her, and didn't let her go out "except to take out the garbage." [174]

The right to education

Under international law, the right to education is guaranteed in the CRC and the International Covenant on Economic, Social and Cultural Rights. These instruments dictate that primary education must be "compulsory and available free to all." [175] Secondary education, including vocational education, must be "available and accessible to every child," and states parties must "take appropriate measures, such as the introduction of free education and offering financial assistance in case of need." [176] In addition, the CRC obligates states parties "to take measures to encourage regular attendance at school and the reduction of drop-out rates." [177] States parties to the Convention for the Elimination of All Forms ofDiscrimination against Women are obligated to end discrimination against girls in education, including access to schooling, reduction of female student dropout rates, and programs for girls who have left school prematurely. [178] Both primary and secondary education must include elements of "availability, accessibility, acceptability and adaptability." [179] The Committee on Economic, Social and Cultural Rights defines availability to mean "functioning educational institutions and programmesto be available in sufficient quantity within the jurisdiction." [180] Educational institutions must be accessible to all without discrimination, to be "within safe physical reach," and to be "affordable to all." [181] The Committee elaborated that although primary education should be "free to all," state parties are "required to progressively introduce free secondary and higher education." [182]

The CRC explicitly guarantees children the right to be protected from "performing any work that is likely to interfere with the child's education." [183] The Worst Form of Child Labour Convention highlights "the importance of education in eliminating child labour" and calls on states 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." [184]

[153]Minimum Age Convention, art. 7(1-2).

[154]Ibid., art. 7(3). ILO Recommendation 146 concerning the Minimum Age for Employment instructs that, for children above the minimum age of employment and who have not completed compulsory education, governments should ensure that these children: receive "fair remuneration bearing in mind equal pay for equal work"; have strict limits on hours of daily and weekly work, including a prohibition on overtime to enable adequate time for education and training (including time for homework), rest during the day, and for leisure activities; a minimum consecutive period of twelve hours a night for rest and weekly rest days; annual holiday with pay for at least four weeks, not shorter than that granted to adults; coverage by social security schemes, including workplace injury, medical care, and sickness benefit schemes, whatever the conditions of employment or work may be; and the maintenance of satisfactory safety and health standards. ILO Recommendation concerning Minimum Age for Admission to Employment, ILO No. 146, June 26, 1973, para. 13(1).

[155]Convention on the Rights of the Child, art. 19(1).

[156]Convention on the Rights of the Child, art. 32(1).

[157]Convention on the Rights of the Child, arts. 31-32.

[158]For a fuller discussion of economic exploitation of children, see the Committee on the Rights of the Child, Report on the Fourth Session of the Committee on the Rights of the Child, CRC/C/20, October 25, 1993, paras. 186-196 and Annexes V-VI.

[159] Worst Forms of Child Labour Convention, art. 3(a).

[160] Worst Forms of Child Labour Convention, art. 3(d).

[161] Worst Forms of Child Labour Convention, art. 4(1).

[162]Worst Forms of Child Labour Recommendation, art. 3.

[163]Worst Forms of Child Labour Convention, arts. 6-7.

[164]Worst Forms of Child Labour Recommendation, art. 2(c).

[165]Worst Forms of Child Labour Recommendation,Arts. 5(1) 5(2), 8, 9.

[166]ILO Convention No. 29 concerning Forced or Compulsory Labour, 39 U.N.T.S. 55 (entered into force May 1, 1930, ratified by Morocco on May 20, 1957), art. 2.

[167]International Labour Conference, 1979 General Survey of the Reports relating to the Forced Labour Convention, 1930 (No. 29) and the Abolition of Forced Labour Convention, 1975 (No. 105), Report of the Committee of Experts on the Application of Conventions and Recommendations, 65th Session, Geneva, 1979, Report III, para. 21.

[168]ILO, A Global Alliance Against Forced Labour: Global Report under the Follow-up to the ILO Declaration on Fundamental Principles and Rights of Work (Geneva: ILO, 2005), pp. 5-6, Box 1.1.

[169]Exploitation includes "at a minimum, the exploitation of or the prostitution of others or other forms of sexual exploitation, forced labor or services, slavery or practices similar to slavery, servitude or the removal of organs."Where children, as opposed to adults, are concerned, trafficking can exist in the absence of coercion, abduction, fraud, or deception. Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention Against Transnational Organized Crime (Trafficking Protocol), G.A. Res. 25, annex II, U.N. GAOR, 55th Sess. Supp. No. 49, at 60, U.N. Doc. A/45/49 (Vol. I) (2001) (entered into force December 25, 2003), art. 3.

[170]Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography ("Optional Protocol on the Sale of Children"), G.A. Res. A/RES/54/263, May 25, 2000 (entered into force January 18, 2002, ratified by Morocco on October 2, 2001.

[171] Convention on the Rights of the Child, art. 32, 35-36; Worst Forms of Child Labour Convention, art. 3.

[172]ILO-IPEC, Helping Hands, pp.10-11.

[173]Ibid., p. 12.

[174] Human Rights Watch interview with Samira M., Casablanca, May 17, 2005.

[175]Convention on the Rights of the Child, art. 28(1)(a); Universal Declaration of Human Rights, art. 26(1); International Covenant on Economic, Social and Cultural Rights, adopted December 16, 1966, 993 U.N.T.S. 3 (entered into force January 2, 1976), art. 13(2)(a). Morocco ratified the treaty on May 3, 1979.

[176]Convention on the Rights of the Child, art. 28(1)(b). Article 13 of the International Covenant on Economic, Social and Cultural Rights provides that secondary education, including vocational education, "shall be generally available and accessible to all by every appropriate means, and in particular by the progressive introduction of free education."

[177]Convention on the Rights of the Child, art. 28(1)(e).

[178]Convention for the Elimination of All Forms of Discrimination against Women, adopted December 18, 1979, 1249 U.N.T.S. 13 (entered into force September 3, 1981, ratified by Morocco on June 21, 1993),art. 10.

[179] Committee on Economic, Social and Cultural Rights, General Comment No. 13: The Right to Education, U.N. Doc. E/C.12/1999/10, December 8, 1999, para. 6.

[180]Ibid., para. 6(a).

[181]Ibid., para. 6(b).

[182]Ibid.

[183]Convention on the Rights of the Child, art. 32.

[184]Worst Forms of Child Labour Convention, art. 7(2).