May 5, 2010

X. International Legal Obligations

United States law and practice concerning farmworker children are in violation of or are inconsistent with international conventions on the rights of children. International Labor Organization Covention No. 182 on the Worst Forms of Child Labor, ratified by the United States in 1999, prohibits children from engaging in dangerous or harmful work. The Convention on the Rights of the Child, to which the United States is a signatory but not a party, seeks to protect children from economic exploitation, and also from work that is hazardous or otherwise harmful. The failure of the United States to enforce existing laws and regulations that purport to protect children working in agriculture further violate the international legal obligations of the United States. 

ILO Convention on Worst Forms of Child Labor

In 1999, the International Labor Organization (ILO) adopted Convention No. 182 Concerning the Prohibition and Immediate Elimination of the Worst Forms of Child Labor (Worst Forms of Child Labor Convention). It obliges all ratifying states “to secure the prohibition and elimination of the worst forms of child labour as a matter of urgency.”[340] The United States on December 2, 1999, became one of the first states to ratify this convention. Since then, it has become one of the most widely ratified labor conventions, with 171 states parties.

Prior to adoption of the convention, the US government spoke strongly in its favor, urging ILO member states to “join together and to say there are some things we cannot and will not tolerate.”[341] In November 2009 the Obama administration affirmed that “The US Government remains committed to ensuring full US compliance with ILO Convention No. 182.”[342]

Under the convention, “the worst forms of child labour” include “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.”[343] Exactly what constitutes such types of work is left to be determined by states parties, in consultation with employer and worker organizations and in consideration of international standards, particularly the ILO Worst Forms of Child Labor Recommendation.[344] This Recommendation, adopted in 1999 in conjunction with the convention of the same name, states that in defining the “worst forms of child labour” and in identifying where they exist, consideration should be given, as a minimum, to:
(a) work which exposes children to physical, emotional or sexual abuse;
(b) work underground, under water, at dangerous heights or in confined
spaces;
(c) work with dangerous machinery, equipment and tools, or which involves the manual handling or transport of heavy loads;
(d) work in an unhealthy environment which may, for example, expose children to hazardous substances, agents or processes, or to temperatures, noise levels, or vibrations damaging to their health;
(e) work under particularly difficult conditions such as work for long hours or during the night or work which does not allow for the possibility of returning home each day.[345]

The findings of this report show that children working in agriculture in the United States—who number in the hundreds of thousands—face the risks outlined in subparagraphs (c) through (e). They work with dangerous machinery, equipment, and tools; work in an unhealthy environment, including exposure to hazardous substances, notably pesticides; and work for long hours, during the night, or without the possibility of returning home each day. In addition, the nature of farmwork places female farmworkers at an added risk of the dangers set out in subparagraph (a), exposure to sexual abuse.

Accordingly, farmwork in the United States can run a high risk of harming the health and safety of children, and appears in many cases to meet the definitional requirements of the “worst forms of child labor.” As a state party to  the Worst Forms of Child Labor Convention, the United States is obligated to take immediate and effective steps to ascertain what forms and conditions of child labor in agriculture violate the convention and then eliminate them.[346]

The convention further calls on member states to:  prevent children from engaging in the worst forms of child labor; provide direct assistance for the removal of children already engaged in the worst forms of child labor; identify and reach out to children at risk; and take account of the special situation of girls.[347]

Far from acknowledging the danger of farmwork to children and taking these appropriate steps, the United States by law permits children to engage in agricultural labor with fewer restrictions than children working in other areas. This includes permitting children to engage in hazardous agricultural work.

The US government, in response to the ILO Committee of Experts 2008 observations on the Application of Conventions and Recommendations, acknowledged in 2009 that the FLSA allows children ages 16 and 17 “to perform all work,” and that it excludes certain farmworker children from minimum age provisions and hours of work limitations.[348] The government noted that “[t]here are currently no separate health and safety standards under federal law for child farm workers ages 16 or 17 engaging in hazardous work,” and that it “has no special training or instructional requirements at the federal level specifically for 16- and 17-year-old agricultural workers engaged in hazardous labor.”  

The ILO’s Committee of Experts in 2010 strongly criticized children’s involvement in hazardous agricultural work. It urged the US government “to take immediate and effective measures to comply” with the convention “to prohibit children under 18 years of age from engaging in hazardous and dangerous work in agriculture.”[349] The Committee of Experts requested the government to follow-up on NIOSH’s recommendations for changing the existing hazardous orders and adopt those amendments. Commenting on exemptions for farms with 10 or fewer employees, it urged the government “to ensure that the necessary monitoring mechanisms are in place so that all farms are inspected and monitored, regardless of the number of persons they employ.”[350]

Convention on the Rights of the Child

The United States has signed but not ratified the Convention on the Rights of the Child (CRC).[351] As a signatory to the CRC, the United States is obliged to refrain from acts that would defeat the treaty’s object and purpose.[352] The CRC sets out the minimum protections to which children—defined as persons under age 18—are entitled. In additional to CRC protections relating to health and education, article 32 of the CRC is of particularly relevance to farmworker children. It provides specifically that children have a right “to be protected from economic exploitation and from performing any work that is likely to be hazardous or to interfere with the child's education, or to be harmful to the child's health or physical, mental, spiritual, moral or social development.” The article requires governments to take appropriate legislative, administrative, social and educational measures in this regard, and especially to provide for a minimum age of employment, appropriate regulation of work hours and conditions of employment, and appropriate sanctions to ensure enforcement of the article.[353]

Convention on the Elimination of Racial Discrimination

The burden of weaker labor law protections for agricultural workers compared to non-agricultural workers in the United States falls overwhelming on Hispanic American citizens and immigrants, and amounts to discrimination under international law.

Most hired crop workers in the United States are Hispanic: 83 percent of hired crop workers identified themselves as members of a Hispanic group in 2001-2002, the most recent year for which data are available.[354] When all employed “miscellaneous agricultural workers,” including livestock workers, are considered, 45 percent identify as Hispanic. [355] By comparison, 14 percent of all US civilian workers described themselves as Hispanic in 2008. [356]

The term “Hispanic” generally refers to ethnicity; persons who identify as Hispanic may also identify themselves as “white,” “black,” “indigenous,” or another race. No data is available on the ethnicity of child workers compared with adults; indeed, the data exclude younger workers: NAWS does not count child workers under age 14; the Bureau of Labor Statistics does not count child workers under 16.

International law binding on the United States, notably the International Covenant on Civil and Political Rights (ICCPR) and the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), affirms the equality of all persons before the law and prohibits governments from discriminating in policy or practice on ethnic grounds. [357] Not all distinctions made by governments, however, constitute impermissible discrimination. The Human Rights Committee, which monitors compliance with the ICCPR, has observed that differentiation in treatment will not constitute discrimination if the criteria for such differentiation “are reasonable and objective and if the aim is to achieve a purpose” that is legitimate under the ICCPR. [358]

While US constitutional prohibitions focus on discriminatory intent, [359] the ICERD defines prohibited discrimination as any race-based distinction, exclusion, restriction or preference that has “the purpose or effect” of curtailing human rights and fundamental freedoms. [360] The specific reference to “purpose or effect” makes clear that discrimination can exist in the absence of an intent to harm members of a particular race or ethnicity.

The Committee on the Elimination of Racial Discrimination (the “Committee”), which monitors state compliance with the ICERD, has interpreted the convention to prohibit laws or policies that have “an unjustifiable disparate impact” on racial and ethnic minorities.[361] It has called on states to eliminate laws or practices that may be race-neutral on their face, but that unjustifiably have significant racial disparities in their impact even in the absence of racial animus.[362] Labor laws and policies that have a racially disparate impact and are not reasonably designed to achieve a legitimate state purpose violate the international human right to be free from discrimination.

The Committee has twice informed the United States that ICERD prohibits discrimination in all its forms, including practices with unintentional discriminatory effect. In 2001, the Committee recommended that the United States take appropriate measures to review legislation and policies to “ensure effective protections against any form of racial discrimination and any unjustifiably disparate impact.”[363] In 2008, the Committee again concluded that the United States should ensure that racial discrimination is prohibited in all its forms, including laws and practices “that may not be discriminatory in purpose, but in effect.” It stated that “indirect—or de facto—discrimination occurs where an apparently neutral provision, criterion or practice would put persons of a particular racial, ethnic or national origin at a disadvantage compared with other persons, unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.” The committee called on the government “to take all appropriate measures” to review existing laws policies to “ensure the effective protection against any form of racial discrimination and any unjustifiable disparate impact.”[364]

[340] International Labor Organization Convention Concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labor (Worst Forms of Child Labor Convention), adopted June 17, 1999, 38 ILM 1207 (entered into force November 19, 2000), art. 1.

[341] Office of the Press Secretary, The White House, "Remarks by the President to the International Labor Organization Conference," June 16, 1999.

[342] US Department of Labor, “Report for the period of September 1, 2007 to August 30, 2009, made by the Government of the United States of America, in accordance with Article 22 of the Constitution of the International Labor Organization, on the measures taken to give effect to the provisions of the Worst Forms of Child Labor Convention, 1999 (No. 182) ratification of which was registered on December 2, 1999,” sec. III.

[343] Worst Forms of Child Labor Convention, art. 3(d).

[344] Ibid., art. 4.

[345] International Labor Organization Recommendation Concerning the Prohibition and Immediate Elimination of the Worst Forms of Child Labor, para. 3.

[346] Worst Forms of Child Labor Convention, arts. 1, 4, 6, and 7.

[347] Ibid., art. 7.

[348] US Department of Labor, “Report for the period of September 1, 2007 to August 30, 2009, made by the Government of the United States of America, in accordance with Article 22 of the Constitution of the International Labor Organization, on the measures taken to give effect to the provisions of the Worst Forms of Child Labor Convention, 1999 (No. 182) ratification of which was registered on December 2, 1999,” sec. III.

[349] International Labor Office, “Report of the Committee of Experts on the Application of Conventions and Recommendations,” International Labour Conference, 99th Sess., no. III (1A), 2010, p. 386, http://www.ilo.org/wcmsp5/groups/public/---ed_norm/---relconf/documents/meetingdocument/wcms_123424.pdf (accessed April 15, 2010).

[350] Ibid., p. 387.

[351] Convention on the Rights of the Child (CRC), G.A. res. 44/25, annex, 44 U.N. GAOR Supp. (No. 49) at 167, U.N. Doc. A/44/49 (1989), entered into force Sept. 2, 1990.

[352] See Vienna Convention on the Law of Treaties, concluded May 23, 1969, 1155 U.N.T.S. 331, entered into force January 27, 1980, art. 18.

[353] CRC, art. 32.

[354] US Department of Labor, “Findings from the National Agricultural Workers Survey (NAWS) 2001-2002,” Research Report no. 9, March 2005, http://www.doleta.gov/agworker/report9/chapter1.cfm#ethnicity (accessed November 20, 2009). NAWS, which is performed under contract with the US Department of Labor, is the only national level source of information on the employment, demographic, and health characteristics of hired crop farm workers, but does not count working children under age 14. The information is collected in face-to-face interviews with farmworkers in three cycles throughout the year to reflect the seasonality of agricultural work and employment.

[355] Bureau of Labor Statistics, US Department of Labor, “Labor Force Statistics from the Current Population Survey, Labor Force Characteristics By Race and Ethnicity 2008, Table 6. Employed persons by detailed occupation, race, and Hispanic or Latino ethnicity, 2008 annual averages,” http://www.bls.gov/cps/race_ethnicity_2008_6.htm (accessed April 22, 2010)..

[356] Ibid.

[357]International Covenant on Civil and Political Rights, G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force March 23, 1976, art. 26 (prohibiting discrimination on “any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status"); International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), 660 U.N.T.S. 195, entered into force Jan. 4, 1969 (prohibiting unlawful discrimination “based on race, colour, descent, or national or ethnic origin”), art. 1.  The US ratified the ICCPR in June 1992 and ICERD in October 1994.

[358]Human Rights Committee, General Comment No. 18,"Nondiscrimination," 37th Sess., 1989, para. 13.

[359]See, for example, Amelia Parker, Racial Disparities in U.S. Public Education and International Human Rights Standards: Holding the U.S. Accountable to CERD, Human Rights Brief, vol. 14, p. 27 (2007).

[360]ICERD, art. 1(1).

[361]Committee on the Elimination of Racial Discrimination, General Comment No. 14, para. 2. In its concluding observations on the implementation of the ICERD in the US in 2001, the Committee stated:

While noting the numerous laws, institutions and measures designed to eradicate racial discrimination affecting the equal enjoyment of economic, social and cultural rights, the Committee is concerned about persistent [racial and ethnic] disparities in the enjoyment of, in particular, the right to adequate housing, equal opportunities for education and employment, and access to public and private health care.

A/56/18/380-407, August 14, 2001, 398.

[362]See Committee on the Elimination of Racial Discrimination, General Recommendation XIV(42), on art. 1, para. 1 of the Convention, U.N. GAOR, 48th Sess., Supp. No. 18, at 176, U.N. Doc. A/48/18 (1993). See also, Theodor Meron, "The Meaning and Reach of the International Convention on the Elimination of All Forms of Racial Discrimination," American Journal of International Law, vol. 79, 1985, pp. 287-88.

[363] Committee on the Elimination of Racial Discrimination, “Concluding Observation of the Committee on the Elimination of Racial Discrimination: United States of America,” CERD/C/Misc. /56/18, paras. 380-407, August 2001, para. 14. The Committee made the observations after considering the initial, second and third periodic reports of the US, which were combined into one report.

[364] Committee on the Elimination of Racial Discrimination, Consideration of Reports Submitted by State Parties under Article 9 of the Convention: Concluding Observations, United States of America, CERD/C/USA/CO/6, 2 para. 10.