Solicitud directa (CEACR) - Adopción: 2005, Publicación: 95ª reunión CIT (2006)

Convenio sobre las peores formas de trabajo infantil, 1999 (núm. 182) - China (Ratificación : 2002)

The Committee notes the Government’s first report and requests it to supply further information on the following points.

Article 3 of the Convention. Worst forms of child labour. Clause (a). All forms of slavery or practices similar to slavery. 1. Sale and trafficking of children. The Committee observes that section 240 of the Criminal Law of 1997 prohibits the abducting and trafficking of women and children. The terms "abducting and trafficking" refer to abducting, kidnapping, buying, selling, transporting or transhipping women or children (section 240 in fine of the Criminal Law). In this regard, the Committee notes the Government’s indication to the Committee on the Rights of the Child (CRC/C/OPSA/CHN1, 1 September 2005, paragraph 66) that the definition of a child in the criminal law is generally held by judicial authorities, referring to valid judicial interpretations, to be any person under the age of 18.

2. Debt bondage, serfdom and forced or compulsory labour. The Committee observes that, by virtue of section 11 of the Regulations Banning Child Labour of 2002, forced child labour is prohibited. Section 96 of the Labour Act of 1994, read together with section 244 of the Criminal Law, provide that employers who are directly responsible for forcing workers to work, by means of violence, intimidation or illegal restriction of personal freedom, commit a criminal offence. Moreover, section 226 of the Criminal Law prohibits compelling a person to offer or accept services.

3. Forced labour in "re-education camps". The Committee notes that, by virtue of section 17 of the Criminal Law, children from the age of 14 are criminally responsible for certain offences including murder, rape, drug trafficking or poisoning. As from 18 years of age, criminal responsibility is extended to infringement of all penal provisions. It also notes that section 46 of the Criminal Law provides that a person who is sentenced to fixed-term imprisonment or life imprisonment shall execute the sentence in prison or in another organ determined to this end. Section 46 of the Criminal Law also provides that "anyone with the ability to labour shall take part in labour, receive education and undergo reform". The Committee further notes that, according to the summary records of the Public Hearings on the Social Clause held in the Committee on Foreign Affairs, Security and Defence Policy of the European Parliament in 1997, China’s prison system comprises Laogai camps (i.e. reform through labour) and Laojiao (re-education through labour and juvenile criminal camps). The summary records indicate that all prisoners, including persons under 18, are subject to hard labour. The Committee accordingly requests the Government to provide information on the organs, other than the state prison, where convicted persons under 18 may serve their sentence as laid down in section 46 of the Criminal Law. It also asks the Government to indicate whether children sent to Laogai camps or Laojiao camps are systematically sent to these camps after having been sentenced by a court of law.

4. Compulsory recruitment of children for use in armed conflict. The Committee notes that, by virtue of section 12 of the Military Service Law of 1984, male citizens aged 18 years of age are enlisted for active service. The Committee notes, however, that section 12 of that Law also provides that male citizens under 18 may enrol in the armed forces on a voluntary basis and that, under section 30, military institutes and academies may, according to the needs in the building up of the armed forces, enrol cadets from among young students whose age limit may not be the same as that for the active servicemen to be enlisted. The Committee asks the Government to indicate whether those enrolled under sections 12 and 30 of the Military Service Law and who are under 18 years of age can be forced to take part in armed conflict.

Clause (b). 1. Use, procuring or offering of a child for prostitution. The Committee notes that, by virtue of sections 2 and 53 of the Law on the Protection of Minors of 1992, whoever lures, instigates or forces a minor under 18 to engage in prostitution commits an offence. Section 10 imposes a positive duty on parents or guardians of minors under 18 years of age to prevent the minors from engaging in prostitution. It also notes that, by virtue of section 358 of the Criminal Law, it is prohibited to organize the prostitution of a person or to force such person into prostitution. Section 361 of the Criminal Law also prohibits staff of hotels, restaurants, entertainment places, taxi companies to take advantage of their position to organize, force, seduce, or introduce a third person into prostitution. The Committee also notes that it is prohibited to engage in prostitution or visit brothels when one suffers from sexually transmissible diseases (section 360 of the Criminal Law).

2. Use, procuring or offering of a child for the production of pornography or for pornographic performances. The Committee notes that, by virtue of section 37 of the Law Safeguarding Women’s Rights and Interests, it is prohibited to hire or keep a woman to engage in obscene activities with others. Section 363 of the Criminal Law prohibits the production, reproduction, publication, sale or dissemination of obscene materials for the purpose of making profits. "Obscene materials" refer to erotic books, magazines, motion pictures, videotapes, audiotapes, pictures and other obscene materials that graphically describe sexual intercourse or explicitly publicize pornography (according to section 367 of the Criminal Law). The Committee requests the Government to confirm that the use, procuring or offering of both girls and boys under 18 for the production of pornography or for pornographic performances is prohibited under section 363 of the Criminal Law.

Clause (c). Use, procuring or offering of a child for illicit activities, in particular for the production and trafficking of drugs. The Committee notes that section 347 in fine of the Criminal Law states that whoever uses or urges a youngster to traffic, transport, manufacture, or sell drugs to youngsters commits an offence. The Committee also notes that, by virtue of sections 2 and 53 of the Law on the Protection of Minors, it is prohibited to instigate a minor under 18 years of age to commit criminal offences.

Article 3, clause (d) and Article 4. Hazardous work. 1. Self-employed children. The Committee notes that the Labour Act of 1994 and the Ministerial Regulation on special protection of juvenile workers which prohibit the employment of juveniles under 18 in hazardous occupations apply only to labourers engaged in a contractual relationship. It consequently notes that self-employed workers do not benefit from the protection laid down in the Labour Act and the regulations based on it. The Committee accordingly requests the Government to provide information on the measures taken or envisaged to ensure the protection of self-employed workers under 18 years of age from work which, by its nature or the circumstances under which it is carried out, is likely to harm their health, safety and morals.

2. Determination of hazardous work. The Committee observes that, by virtue of sections 58 and 64 of the Labour Act, juvenile workers under 18 years of age shall not work in mines, undertake work that is poisonous or harmful in nature, or strenuous as stipulated by the State. Section 65 of the Labour Act requires employing units to provide regular physical examinations to juvenile workers under 18 years of age. Section 28 of the Law on the Protection of Minors provides that any organization or individual that recruits minors aged 16-18 shall, in respect of the types of work, working hours and intensity of labour and protective measures comply, with the relevant regulations and shall not assign them to any over strenuous, poisonous, harmful or dangerous work. Section 7 of the Rules for the Administration of Employment of Foreigners in China of 1996 states that foreigners who seek employment in China shall be at least 18 years of age.

The Committee notes that section 3 of the Ministerial Regulation on the protection of juvenile workers provides a list of 17 activities that workers under 18 shall not perform. It also notes that, by virtue of sections 2 and 23 of the Law on the Protection of Minors, persons under 18 years of age shall not be admitted in commercial dancing halls. It further notes the Government’s indication that the types of work that are likely to harm the health, safety or morality of minors will be revised in light of scientific and technological progress and social development. Noting that night work does not appear to be prohibited for children under 18 years of age, the Committee draws the Government’s attention to Paragraph 3 of the Worst Forms of Child Labour Recommendation, 1999 (No. 190), and trusts that, when reviewing, in consultation with the organizations of employers and workers concerned, the list of the types of hazardous work, it will take into consideration the types of work enumerated in Paragraph 3 of Recommendation No. 190, in particular with regard to night work. It accordingly asks the Government to provide information on any developments in this regard.

Article 5. Monitoring mechanisms. Labour inspectorate. The Committee notes the Government’s indication that the labour inspectorate is responsible for monitoring the implementation of the provisions concerning child labour. Section 5 of the Regulations Banning Child Labour provides that the Labour Protection Authorities shall be responsible for monitoring the implementation of these regulations. Section 86 of the Labour Act states that labour inspectors are entitled to enter and inspect undertakings. If a labour inspector finds a juvenile worker working in contravention of the law, it shall impose a fine on the employer, request the employer to end the infringement, and may revoke the employer’s business licence (section 94 of the Labour Act). The Committee asks the Government to provide information on the activities of labour inspectors, including the number of workplaces investigated per year, and on the findings with regard to the extent and nature of violations detected concerning children involved in the worst forms of child labour. It also asks the Government to provide information on the mechanisms designated to monitor the implementation of the penal provisions giving effect to the Convention.

Article 6. Programmes of action to eliminate the worst forms of child labour. Forced labour. The Committee notes that the ILO’s Special Action Programme to Combat Forced Labour (SAP-FL) initiated, in August 2004, a one-year programme entitled "Forced labour and trafficking: The role of labour institution in law enforcement and international cooperation". It notes, that under the procedures of the Declaration on Fundamental Principles and Rights at Work, the Government requested ILO assistance to prepare the ground for the ratification of the ILO Conventions on forced labour. The programme aims at: (i) strengthening the law and policy framework on forced labour and trafficking for labour exploitation; (ii) providing specific training and capacity building to law enforcement officials on forced labour and trafficking for labour exploitation; (iii) involving employers’ and workers’ organizations in the identification of forced labour and trafficking for labour exploitation; and (iv) addressing the situation of victims of internal and cross-border trafficking. The Committee asks the Government to provide information on the concrete measures taken under this programme and its impact on eliminating forced child labour.

Article 7, paragraph 1. 1. Penalties. The Committee notes that the Criminal Law provides for sufficiently effective and dissuasive penalties for the violation of the provisions prohibiting the sale and trafficking of children (section 240), the use, procuring or offering of a child for prostitution (sections 358, 359 and 362), the use, procuring or offering of a girl for pornographic performances (section 51 of the Law on Safeguarding Women’s Rights and Interests and section 160 of the Criminal Law) and the production of pornographic material (section 363 of the Criminal Law), as well as for the use, procuring or offering of a child for the production and trafficking of drugs (section 347 of the Criminal Law). The Committee notes that, by virtue of sections 2 and 53 of the Law on the Protection of Minors, whoever instigates a minor under 18 years of age to commit criminal offences shall be given heavier punishments according to the law. The Committee asks the Government to provide information on the penalties provided by the Law for the infringement of section 53 of the Law on the Protection of Minors, and penalties imposed in practice.

2. Forced labour. The Committee notes that, according to section 244 of the Criminal Law, whoever employs a person as a forced labourer is liable to a maximum of three years’ imprisonment or criminal detention or a fine or both. The Committee observes, however, that a person found guilty of violating section 244 of the Criminal Law may be sentenced to a fine only. The Committee reminds the Government that, by virtue of Article 7, paragraph 1, of the Convention, it shall take all necessary measures to ensure the effective implementation of its provisions including the provision and application of the penal sanction of imprisonment. The Committee accordingly requests the Government to consider an additional penalty of imprisonment for an offence as serious as one involving forced labour.

3. The employment of children in hazardous occupations. The Committee notes that, by virtue of section 244(a) of the Criminal Law as amended in 2002, whoever employs minors under the age of 16 in strenuous work or to undertake underground work or to manipulate explosive, inflammable, radioactive, poisonous substances and in other dangerous conditions is liable to a maximum of three years’ imprisonment and a fine. Whereas a person who employs a child under 18 in violation of the relevant labour provisions prohibiting the employment of children under 18 in hazardous work is liable to a maximum fine of 3,000 yuan RMB for each child employed in violation of the relevant legal provisions (section 12 of the Ministerial Regulation on the issuance of the measures of administrative punishment in violation of the labour law). The Committee encourages the Government to extend the penalties applicable for the violation of the prohibition to employ children under 16 years of age in hazardous work to those violating the prohibition on employing children aged 16-18 in hazardous occupations.

Article 7, paragraph 2. Time-bound measures. The Committee notes the absence of the following effective and time-bound measures: (b) providing the necessary and appropriate direct assistance for the removal of children from the worst forms of child labour, and for their rehabilitation and social integration; and (c) ensuring access to free basic education for all children removed from the worst forms of child labour. The Committee requests the Government to supply information on the time-bound measures taken or envisaged, as required under Article 7(2)(b) and (c) of the Convention.

Clause (a). Preventing the engagement of children in the worst forms of child labour. 1. Access to education. The Committee notes that sections 2 and 5 of the Compulsory Education Law of 1986 provide that the State shall institute a system of nine years compulsory education and that all children who have reached 6 years of age shall enrol and receive compulsory education. Section 18 of the Education Law of 1995 also provides for a system of nine years of compulsory education. Section 10 of the Compulsory Education Law also provides that the State shall not charge tuition for students receiving compulsory education and shall establish a system of grants to support the school attendance of children from poor families. Section 11 of the Compulsory Education Law, section 18 of the Education Law and section 9 of the Law on the Protection of Minors, 1991, provides that the legal guardians of minors (i.e. persons under 18 according to section 2) shall ensure that school-age children enjoy compulsory schooling. It also observes that, by virtue of section 10 of the Education Law of 1995, the State shall support the development of education facilities in poor areas.

The Committee notes however that, according to the Education for All Global Monitoring Report of 2003-04 (UNESCO, pages 1 and 4), primary education was almost universal in 1990 with a net enrolment ratio of 97 per cent, but by 2000 the figure had fallen to 93 per cent, doubling the number of out-of-school children in the East Asia and the Pacific Region, from 7.1 to 14 million, of whom 57 per cent are in China. The report adds that primary school fees continue to be charged despite legally guaranteed free education.

The Committee also notes that, according to the report submitted by the Special Rapporteur to the United Nations Commission on Human Rights (E/CN.4/2004/45/Add.1, 21 November 2003, paragraphs 11 and 13), "the official statistics on school enrolment conflict with reports of large numbers of children who cannot afford to go to school". It adds that the cost of public education is the primary reason for student drop-outs or non-enrolments. The Rapporteur further states that "the increasing costs of education have created ‘new illiterates’, which was confirmed by the official statistics that placed the number of illiterates in 2001 at 85 million". The Committee nevertheless notes that, according to the ILO/IPEC progress report on the project "Preventing Trafficking of Girls and Women for Labour Exploitation within China", January 2005, page 2), the Government’s total investment in rural education increased by 72 per cent in 2004 compared to 2003. The report reveals that an initial 24 million primary and junior middle school children of poor rural families in the central and western regions were given free textbooks, subsidies for lodging expenses and were exempted from miscellaneous expenses as from the autumn of 2004; all children of poor rural families will be covered by 2007. The Committee further notes the Government’s indication that the State Council adopted in September 2003 a "Decision on further strengthening the work of the education in rural areas". Considering that education contributes to preventing children from engaging in the worst forms of child labour, the Committee asks the Government to pursue its efforts to ensure that primary education is free for all children especially for those living in rural areas or with poor families.

2. Education of migrant children. The Committee notes that, according to the Special Rapporteur to the United Nations Commission on Human Rights (E/CN.4/2004/45/Add.1, 21 November 2003, paragraph 27), an unknown number of migrant children are denied their right to education and that those allowed into school are required to pay a "temporary schooling fee" of 20,000 yuan RMB in Beijing which is beyond the reach of most migrants. The Committee also notes the Government’s indication that the State Council adopted in September 2003 an "Opinion on improving the work of compulsory education for the children of peasants entering cities for work", according to which local authorities shall provide financial support to children of migrant peasant workers so that these children have access to compulsory schooling. The Committee requests the Government to continue to provide information on the concrete measures taken to ensure access to compulsory education for migrant children and the results achieved.

3. Manual work at school. The Committee notes that, according to the Special Rapporteur to the United Nations Commission on Human Rights (E/CN.4/2004/45/Add.1, 21 November 2003, paragraph 14), manual labour by school-age children (qingong jianxue) is permitted. The report reveals that in 2001 children had to produce firecrackers to compensate for the shortage of funds for their schooling; 42 schoolchildren and their teachers were officially reported dead as a result of an explosion in a school in Hebei (Juangxi Province). The Committee accordingly asks the Government to provide information on the effective and time-bound measures taken or envisaged to prevent school-age children from performing hazardous work in school.

Clause (d). Identifying and reaching out to children at special risk. Child domestic workers. The Committee observes that China participates in an ILO/IPEC subregional project entitled "Preventing and eliminating exploitative child domestic work through education and training in South-East and East Asia" (i.e. Cambodia, China, Indonesia, Lao People’s Democratic Republic, Mongolia, Philippines, Thailand and Viet Nam). The project was launched in 2002 and renewed for a two-year period in 2004. It aims at strengthening national efforts in order to: (i) provide direct support to child domestic workers; (ii) raise awareness on the working conditions of child domestic workers; (iii) build the capacity of key actors to take action against the exploitation of child domestic workers; and (iv) create an enabling environment to eliminate exploitative child domestic labour. The Committee observes that, according to the ILO/IPEC project outline, the lack of data in China constitutes an obstacle to action. The Committee accordingly asks the Government to provide information on the concrete measures taken to identify the number of child domestic workers and their working conditions. It also asks the Government to provide information on the measures taken or envisaged to protect child domestic workers from hazardous work.

Clause (e). Special situation of girls. 1. Trafficking in girls. The Committee notes that the ILO/IPEC launched, in April 2004, a four-year project entitled the "CP-TING" project to prevent the internal trafficking in girls and women for labour exploitation. The project aims at mobilizing key stakeholders to: (i) prevent the trafficking in girls and women for labour exploitation; (ii) provide direct assistance to female victims of trafficking for labour exploitation; and (iii) strengthen national policy frameworks and implementation capacity to prevent trafficking. The Committee also notes that, according to the ILO/IPEC progress report of January 2005, a lot of progress has been made in improving conceptual understanding and raising awareness, a broad range of stakeholders has been mobilized, and sufficient proxy were collected to enable the selection of target counties (in sending provinces) and target cities (in receiving provinces). The Committee asks the Government to provide information on the concrete measures taken or envisaged under the abovementioned project to eliminate the internal trafficking of girls for labour exploitation and the results achieved.

2. Education. The Committee notes that, according to the report submitted by the Special Rapporteur to the United Nations Commission on Human Rights (E/CN.4/2004/45/Add.1, 21 November 2003, paragraphs 11 and 26), the rising cost of education mostly affects girls who are estimated to form the majority of the 85 million new illiterates. The report also reveals that female illiteracy increased in the 1990s from 68 per cent to 71 per cent. Girls have overtaken boys in primary education with 50.6 per cent, but are lagging behind at the university level with 38.2 per cent. The Committee notes that the Special Rapporteur recommended "the adoption of a comprehensive strategy for attaining gender equality both in and through education at the highest level of the Government". Considering that education contributes to preventing girls from engaging in the worst forms of child labour, the Committee asks the Government to take the necessary measures to facilitate girls’ access to education.

Article 7, paragraph 3. Competent authority responsible for the implementation of the measures giving effect to the Convention. The Committee notes the Government’s indication that the Education Department, Labour Protection Department, Public Security and Judicial Department are responsible for implementing the provisions giving effect to the Convention. The Committee accordingly asks the Government to provide information on the concrete measures taken by the abovementioned bodies to implement the provisions giving effect to the Convention.

Article 8. 1. International cooperation. The Committee notes that China is a member of Interpol which helps cooperation between countries in the different regions especially in the fight against trafficking of children. It also observes that the Government ratified the Convention on the Rights of the Child in 1992, ratified the Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography in 2002 and signed the Protocol on the Involvement of Children in Armed Conflict in 2001.

2. Regional cooperation. Trafficking of children. The Committee notes that ILO/IPEC launched a Mekong Subregional Project to Combat Trafficking in Children and Women (TICW) in Cambodia, Yunnan Province of China, Lao People’s Democratic Republic, Thailand and Viet Nam in 1999. The second phase of the project was launched in May 2003, and will last five years. According to ILO/IPEC, the number of victims trafficked for sexual exploitation is increasing rapidly. The majority of the 1,000 female victims of cross-border trafficking each year are sent to Thailand, via Lao People’s Democratic Republic and Myanmar. The Committee observes that, according to the ILO report on the TICW project (December 2004), trafficking from Yunnan Province in China to Thailand primarily involves girls and women for sexual exploitation. The Committee asks the Government to provide information on the concrete measures taken under the second phase of the TICW project, as well as their impact on the elimination of the cross-border trafficking of children for labour and sexual exploitation.

3. Poverty reduction. The Committee notes that in 1994 the Government introduced a "8-7 Plan" (National Plan for Poverty Reduction). According to the World Bank report entitled "Shanghai Poverty Conference: Case Study Summary, China’s 8-7 National Poverty Reduction Programme", the number of poor people with less than US$1 a day, is estimated to have dropped from about 490 million in 1981 to 88 million in 2002. The Committee asks the Government to provide information on any notable impact of the National Plan for Poverty Reduction towards eliminating the worst forms of child labour.

Part III of the report form. The Committee notes the Government’s indication that no decisions have been given by courts of law involving questions of principle relating to the application of the Convention. However, it notes that, according to the ILO/IPEC project overview of the TICW in Yunnan Province, a gang comprising 28 traffickers of women and children from 17 cities was caught in March 2003. Five traffickers were sentenced to death, three were sentenced to life imprisonment, 17 to 15 years’ imprisonment and the others to three to 12 years’ imprisonment. The Committee accordingly asks the Government to provide information on any other cases concerning the application of the legal provisions giving effect to the Convention, and the penalties imposed.

Part V of the report form. The Committee asks the Government to provide information on the worst forms of child labour, including for example copies or extracts from official documents including inspection reports, studies and inquiries, and information on the nature, extent and trends of those forms of child labour, the number of children covered by the measures giving effect to the Convention, the number and nature of infringements reported, investigations, prosecutions, convictions and the penalties imposed. To the extent possible, all information provided should be disaggregated by sex.