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VI.  THE RESPONSE OF THE SALVADORAN GOVERNMENT AND THE INTERNATIONAL COMMUNITY

There are very good [child labor] laws, but the problem is the application of the laws by the public institutions.

—Calixto Mejía Hernández, a member of the Legislative Assembly, February 5, 2003

Child labor poses significant challenges for governments.  “Elimination of its worst forms requires an effective programme of poverty alleviation and education, changes in social values and awareness and support from the community and civil society-at-large,” the ILO notes.²⁸⁸  In particular, firing children who are found to be working in hazardous occupations is not an effective strategy to address child labor.  The U.S. Department of Labor observes, “When children are in or entering the worst forms [of child labor] because a better alternative is not known to the family, the consequences of a legal ban on child labor in the worst forms may actually be detrimental because it makes a limited set of choices even smaller.”²⁸⁹  The department suggests that legal strategies “must be complemented by programs and/or services that expand the opportunities available to families.”²⁹⁰

El Salvador is one of five countries in the region to participate in an ILO Time-Bound Programme, an initiative to address the worst forms of child labor.  If this program is to succeed, the government must have an awareness of the worst forms of child labor and must support efforts to eliminate them.  But in interviews with Human Rights Watch, government officials consistently made statements that called into question their understanding and support of the international prohibition on harmful or hazardous child labor.  More generally, labor ministry officials uncritically accept the view that most children who cut cane are only their parents’ “helpers,” a characterization that they erroneously assume removes this form of child labor from official scrutiny.

The Lack of Inspections

Under Salvadoran law, the Labor Inspectorate is charged with “ensuring compliance with statutory labor provisions and basic norms of occupational health and safety.”²⁹¹  The Labor Inspectorate is based in San Salvador, with representatives in a western regional office in Santa Ana and an eastern regional office in San Miguel.  The inspectorate is divided into two departments, the Department of Industry and Business Inspection and the Department of Agriculture Inspection.²⁹²  When Human Rights Watch visited El Salvador in February 2003, there were twenty-seven inspectors in San Salvador, four in Santa Ana, and six in San Miguel.²⁹³  The number of inspectors increased to sixty-two later by the end of 2003, ²⁹⁴  and nine additional inspectors were scheduled to be added in 2004.These inspectors conduct both scheduled and unscheduled worksite visits—the former part of monthly plans of preventive inspections, and the latter usually in response to a request or complaint.²⁹⁵

We asked whether the ministry looked for child labor in cane fields during its inspections.  “In the industrial sector, they are not contracting children.  But in agricultural production, you will see children, and this is where we will want” to intervene, the minister told us.²⁹⁶

The ministry faces several challenges in carrying out its inspection function.  It has begun to address one of these, the low number of personnel available for inspections.  A former labor inspector told us that when he left the ministry in 2002, there were only four inspectors in San Salvador who specialized in agriculture and fisheries, in addition to the regional inspectors who conduct scheduled inspections and respond to complaints in all employment sectors.²⁹⁷  The number of inspectors has increased since that time, but Palacios conceded, “We have limited coverage in agriculture.”²⁹⁸

The work of labor inspectors and other ministry officials is also hampered by problems of infrastructure.  For example, the former labor inspector told us that he was often unable to conduct inspections in the field because of a lack of transport.  Of the two vehicles available to the San Salvador office, only one was used for inspections, he said, telling us that the other was used for the security detail that accompanied the minister of labor.²⁹⁹  Similarly, when we spoke to the head of the ministry’s new Unit for the Eradication of Child Labor, established in 2002, he told us that his office needed more staff, computers, and a vehicle to be able to carry out its mission.³⁰⁰   “It’s a political failing,” said Legislative Assembly deputy Calixto Mejía Hernández of the lack of support given to these institutions.³⁰¹

However, the greatest challenge does not come from a lack of resources.  It is the result of two related misconceptions that we heard from Ministry of Labor officials.  First, some officials, particularly in the labor inspectorate, assumed that sugarcane work by adolescents did not violate the international prohibition on harmful or hazardous child labor despite the official ministry position that sugarcane work by children was prohibited.  “It is considered dangerous,” said Jorge Isidoro Nieto Menéndez, the minister of labor.³⁰²  Similarly, Walter René Palacios, director of health and safety for the Ministry of Labor, told Human Rights Watch, “Cane is one of the worst forms.”  He told us that his office would consider it a violation for children to work in sugarcane, whether they were directly contracted or merely “assisting” others.³⁰³  But José Victor Orlando Orellano Maza, then head of the Labor Directorate in the Ministry of Labor, denied that child labor was a serious problem in sugarcane.  When we asked whether his office knew of children working in sugarcane, he replied, “I don’t believe it.  Cane is so difficult!”  He told us that he did not consider sugarcane work to be hazardous when performed by children fourteen years of age or older, evidently viewing child labor in sugarcane as problematic only if it involved very young children.  “I haven’t seen the case of an eight-year-old who was cutting.  I have seen them collecting [cane], but of the cutting of cane I’ve never seen anything.  I haven’t seen any children less than twelve years old,” he told Human Rights Watch.³⁰⁴ 

The second misconception, shared by many ministry officials, was the view that child “helpers” were not workers with the right to the protections of the labor code.  “It’s a problem because they’re not contracted by the employer.  It’s helping the father.  It’s the same case as a mother who has four kids and takes them out to sell fuel and oil and goes to the street and the children are also selling the same things as the mother.  It’s the mother who is putting them to work,” said Orellana Maza.  “It’s not a legal problem but a social problem.”  We asked him what an inspector would do if he or she saw a ten-year-old child working with his father in the field but not on the employment rolls.  “The thing is to advise the fathers, but it is not a violation because there is not a contract,” he replied.  “What happens if I say, ‘Don’t bring the child?’  Then the father is without work because he can’t leave the children and he won’t have any way to support them for the rest of the year.”³⁰⁵

This characterization insulates employers from scrutiny or legal liability—in effect, employers and ministry officials are either suggesting that unpaid work is not subject to the protections of the labor laws or that child workers are “subcontracted” by their parents, who bear sole responsibility for any labor law violations that result.  Either characterization is unsustainable as a matter of Salvadoran law.  With regard to the first interpretation, the labor code defines a worker as “anyone who renders a service or carries out work”³⁰⁶ and clarifies that when two or more individuals perform the work, all are entitled to the protections of the labor code as long as at least one of them has entered into a verbal or written contract to perform the work in exchange for payment.³⁰⁷

With regard to the second, the existence of a parent-child relationship does not mean that parents subcontract their children when they work together in the fields.  Even if there were instances in which parents were acting as subcontractors, the distinction does not insulate plantations from responsibility:  The labor code provides that contractor and subcontractor are jointly responsible for the obligations that result when a worker provides services.³⁰⁸  As the former labor inspector told Human Rights Watch, “Even if they do not appear on the lists, they are workers.  They are providing services to the employer.  They have all of the characteristics of a worker. . . .  They are workers—invisible workers.”³⁰⁹    Finally, these efforts to characterize all children as merely “helpers” ignores the fact that Human Rights Watch interviewed many children under the age of eighteen, including some as young as fourteen, who are paid directly by their employers.³¹⁰

El Salvador is a party to the ILO Convention 129, concerning Labour Inspection in Agriculture, which obligates member states to “maintain a system of labour inspection in agriculture.”³¹¹  Under article four of the convention, “[t]he system of labour inspection in agriculture shall apply to agricultural undertakings in which work employees or apprentices, however they may be remunerated and whatever the type, form or duration of their contract.”³¹²

The Ministry of Labor is not the only government body that can exercise oversight of child labor issues.  For example, the Legislative Assembly has a committee that deals with labor issues.  This committee cannot enforce the labor laws, as enforcement is the responsibility of the labor ministry, but the committee can develop policy and initiate reforms of the law.  Even so, a member of the committee told us that it rarely addressed child labor issues.  “Child labor should be part of the Labor Committee, but children have been abandoned,” said Mejía Hernández.³¹³

The International Community

El Salvador is one of five Latin American countries to participate in an ILO Time-Bound Programme, an initiative to reduce hazardous child labor in specific sectors within a period of five to ten years.³¹⁴  Sugarcane work is one of the sectors identified by the Salvadoran government for its Time-Bound Programme.  A collaborative effort of the Ministry of Labor, the Salvadoran Sugar Association, Fundazúcar, and other nongovernmental organizations, the sugarcane component of the Time-Bound Program has produced the rapid assessment study prepared in 2002 and a baseline study completed in 2003.  Since October 2003, the program has provided school supplies and improved teacher training in the principal areas of sugarcane cultivation in the country, IPEC national coordinator Italo Cardona told Human Rights Watch.  “This project has benefited a significant number of children linked directly and indirectly with sugarcane,” he said.³¹⁵  The sugarcane program also includes a literacy program targeting adult sugarcane workers and a small pilot project working with twelve to fifteen adults in San Vicente who make paper from the unused parts of the sugarcane plant.³¹⁶

Neither UNICEF nor USAID, which is working with the Salvadoran government on several education projects, was addressing child labor issues in El Salvador at the time of our visit.³¹⁷  A USAID project provides school materials and works to encourage parents to enroll their children, according to Dorita Gutiérrez.³¹⁸  UNICEF funds similar programs.