The United States violates multiple provisions of international treaties in its treatment of farmworker children. The failure to protect farmworker children equally with nonfarmworker children violates the right to equal protection of the law, found not only in the United States Constitution but also in the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child. The United States also is in violation of provisions requiring the protection of children from economic exploitation and from dangerous or otherwise harmful working conditions.
Additional international standards are violated by the failure of the U.S. to enforce its laws that do purport to protect children working in agriculture. These various infractions of international law are discussed below.
Violation of International Non-Discrimination Laws
United States law-which sets a lower standard of protection for child farmworkers than for children working in other occupations-violates various international treaties forbidding discriminatory laws and practices. Article 26 of the International Covenant on Civil and Political Rights (ICCPR) states that "[a]ll persons are equal before the law and are entitled without any discrimination to the equal protection of the law. . . ." The United States has been a State Party to the ICCPR since 1992. Article 2 of the Convention on the Rights of the Child requires States Parties (which the U.S. is not, having signed but not ratified the Convention) to respect and ensure all rights enumerated in the convention-which include several applicable to child farmworkers (see below)-without discrimination of any kind. Among those bases of discrimination explicitly forbidden are race, color, language, and national, ethnic or social origin.
ILO Convention Concerning the Prohibition and Immediate Elimination of the Worst Forms of Child Labour (Worst Forms of Child Labor Convention)
In 1999, the International Labour Organization adopted a convention calling for all ratifying Member States "to secure the prohibition and elimination of the worst forms of child labour as a matter of urgency."245 The United States ratified this convention on December 2, 1999. Prior to adoption of the convention, the United States government spoke strongly in its favor, urging ILO Members to "join together and to say there are some things we cannot and will not tolerate."246
Unfortunately, the United States itself witnesses and tolerates extreme forms of child labor that undoubtedly fall within the intended purview of the Worst Forms of Child Labour Convention.
Under the convention, "the worst forms of child labour" include, among others, "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."247 Exactly what constitutes such types of work is left to be determined by Member States, in consultation with employer and worker organizations and in consideration of international standards, particularly the ILO Worst Forms of Child Labour Recommendation.248 This Recommendation, adopted in 1999 in conjunction with the convention of the same name, states that:
In determining the types of work referred to under Article 3(d) of the Convention [the "worst forms of child labour" definition], 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.249
As seen in this report, children working in agriculture in the United States-who number in the hundreds of thousands-face the risks outlined in subparagraphs (c) through (e): 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, female farmworkers may face the danger of subparagraph (a) (exposure to sexual abuse).
It is apparent, then, that farm work in the U.S. sometimes runs a high risk of harming the health and safety of children, and does in many cases meet the definitional requirements of the "worst forms of child labor." Consequently, as a ratifying member state of the Worst Forms of Child Labour Convention, the United States is under an affirmative obligation to take immediate and effective steps to ascertain what forms and conditions of child labor in agriculture violate the convention and then eliminate them.
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.250
Far from acknowledging the danger of farm work 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.
Even worse, the United States government mistakenly contends that the United States is already in full compliance with the Worst Forms of Child Labour Convention. While eager to point out abusive child labor practices in Guatemala, Brazil, Pakistan, and other developing countries,251 the United States is myopic when it comes to domestic abuses. In announcing U.S. ratification of the Convention, the White House declared that ratification "would require no changes in U.S. law and practice. U.S. law already prohibits the worst forms of child labor, and law enforcement and social service programs are in place to implement the requirements of the Convention."252
This conclusion was the work of "a Presidential advisory group of labor, business, and government experts."253 This "advisory group" appears to fall substantially short of the broad-spectrum consultative process called for in article 4 of the Convention and mentioned above. The "advisory group" utilized is a standing advisory panel, the Tripartite Advisory Panel on International Labor Standards.254 It consists of attorneys representing the following:
· the United States Secretary of Labor;
· the United States Secretary of State;
· the United States Secretary of Commerce;
· the President of the AFL-CIO (American Federation of Labor and Congress of Industrial Organizations);
· the President of the U.S. Council for International Business.255
Legal counsel for the Presidential Advisors on National Security and Economics also participate.0
In other words, the U.S. "advisory group," consisted of five people appointed from government, one from business, and one from labor-a lopsided arrangement at best.
In its report, this advisory panel concluded that there would be no need for the U.S. government to formally consult with worker and employer organizations to identify where the worst forms of child labor exist (as required by Article 4(2)) because "[e]mployer and worker organizations, along with the general public, have regular access to the Department of Labor and other government agencies . . ."1
The Convention on the Rights of the Child
The United States has signed but not ratified the Convention on the Rights of the Child (CRC). (The only other country that has not ratified the convention is Somalia, which has no functioning government.) Notwithstanding the failure of the U.S. to ratify it, the convention provides strong guidance as to the minimum protections to which children-defined as all those under the age of eighteen-are entitled. Several provisions of the convention apply to farmworker children.
The United States' violation of article 32 is the most glaring of its violations and is implicated directly by the findings of this report. This article addresses exploitation in employment. It states 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 calls on 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.
Article 24 recognizes the right of all children to a high standard of health and to healthcare facilities, and calls on governments "to ensure the provision of necessary medical assistance and health care to all children." Compliance with this standard is compromised in the U.S. by the spotty availability of health care and medical clinics for farmworking children (as well as all children-farmworkers and otherwise-of agricultural laborers). Farmworkers don't usually earn enough to pay for health care out-of-pocket, and rarely can afford health insurance. According to a spokesperson for the National Center for Farmworker Health, almost all farmworker children are eligible for Medicaid,2 but difficulties in enrollment and the lack of state-to-state portability, however, mean that relatively few are able to utilize it.3 Less than 15 percent of farmworkers have access to federally-subsidized health clinics.4
Article 28 of the convention recognizes the right of all children to education. It instructs governments to make education "available and accessible to all," and to "[t]ake measures to encourage regular attendance at schools and the reduction of drop-out rates." In the United States, the school drop-out rate among farmworker children is 45 percent.
Finally, article 3 of the Convention on the Rights of the Child states that "In all actions concerning children . . . the best interests of the child shall be a primary consideration."
245 International Labour Organization Convention Concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour (Worst Forms of Child Labor Convention), Article 1.
246 Office of the Press Secretary, The White House, "Remarks by the President to the International Labor Organization Conference," June 16, 1999.
247 Worst Forms of Child Labor Convention, Article 3(d).
248 Ibid., Article 4.
249 International Labour Organization Recommendation Concerning the Prohibition and Immediate Elimination of the Worst Forms of Child Labour, paragraph 3.
250 Worst Forms of Child Labour Convention, Article 7.
251 See, for example, Office of the Press Secretary, the White House, "Remarks by the President at Signing of ILO Convention 182," December 2, 1999.
252 Office of the Press Secretary, the White House, "President Clinton Ratifies the New ILO Convention on the Worst Forms of Child Labor: Promoting Core Labor Standards Around the World," December 2, 1999.
254 Human Rights Watch telephone interview with Charlie Spring, Director for the Office of the International Labor Organization, Washington, D.C., February 1, 2000.
255 Report of the Tripartite Advisory Panel on International Labor Standards to the President's Committee on the International Labor Organization Regarding Convention No. 182 on the Worst Forms of Child Labor, T.Doc. 106-005-S1P-99-3, p. 2.
0 Human Rights Watch telephone interview with Charlie Spring, Director for the Office of the International Labor Organization, Washington, D.C., February 1, 2000.
1 Report of the Tripartite Advisory Panel on International Labor Standards, p. 20. Article 4(2) of the Worst Forms of Child Labor Convention states that "The competent authority, after consultation with the organizations of employers and workers concerned, shall identify where the types of work so determined exist."
2 Medicaid is a federally-subsidized health insurance program for low-income people.
3 Human Rights Watch telephone interview with Gina Rose Lombardi, Public Information Coordinator, National Center for Farmworker Health, March 22, 1999. States may take up to forty-five days to process Medicaid applications; a worker's eligibility must be re-validated every one to six months; and only some states reciprocate on Medicaid eligibility. National Advisory Council on Migrant Health, Losing Ground: The Condition of Farmworkers in America (Bethesda, MD: Department of Health and Human Services, 1995), pp. 8-9.
4 National Advisory Council on Migrant Health, Losing Ground: The Condition of Farmworkers in America (Bethesda, MD: Department of Health and Human Services, 1995), p. 10.