Observation (CEACR) - adoptée 2008, publiée 98ème session CIT (2009)

Convention (n° 182) sur les pires formes de travail des enfants, 1999 - Chine (Ratification: 2002)

The Committee takes note of the Government’s report. It also notes the detailed discussions that took place at the 96th session of the Conference Committee on the Application of Standards in June 2007 concerning the application by China of Convention No. 182.

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. In its previous comments, the Committee had noted that section 240 of the Criminal Law of 1997 prohibits the abducting and trafficking of women and children. It had noted the allegations of the International Confederation of Free Trade Unions, now the International Trade Union Confederation (ITUC), that China is a source, transit and destination country for international human trafficking in women and children for sex exploitation and the entertainment industry. The Committee had noted with interest that the Government had taken a number of measures to combat trafficking, including major activities of cooperation with the ILO and public education campaigns in relation to some typical cases involving trafficking. It had also noted that two projects were implemented: the ILO/IPEC “Preventing trafficking in girls and young women for labour exploitation within China” project (CP-TING project), in collaboration with the All-China Women’s Federation (ACWF), and the “Mekong Sub-regional Project to Combat Trafficking in Children and Women”, in which the Ministry of Public Security (MPS) took an active part.

The Committee notes the Government’s statement that China continues to improve its policies and regulations concerning trafficking in women and children. First and foremost, it notes that, on 14 December 2007, the State Council approved a new National Plan of Action against Trafficking in Women and Children. The National Plan acknowledges the need to address all aspects of trafficking (policy, prevention, prosecution and protection) and signals a conceptual shift from “combating trafficking” to “anti-trafficking”. The Committee further notes that, according to the technical progress report of December 2007 for the CP-TING project, the MPS set up an anti-trafficking office at the beginning of July 2007 in order to promote legislative work and strengthen the combating of all kinds of trafficking. According to that technical report, the direct assistance provided in the framework of the CP-TING project benefited, among others, 250 migrant girls who had dropped out of school or were about to drop out and who were helped to continue their education; 10,000 migrant girls and young women who just arrived in target cities and received information on trafficking prevention; and 107,000 girls through awareness-raising activities. Furthermore, a National Anti-Trafficking Children’s Forum hosted by the ACWF was held in Beijing in coordination with the ILO in which more than 20,000 children participated. The Committee also notes the Government’s statement that public security organs have further enhanced efforts in building an anti-trafficking mechanism by elaborating the “Working Regulations for Public Security Organs on Combating the Abduction and Trafficking of Women and Children”, which specifies the roles and functions of various departments of public security and police forces and standardizes the procedures of operation for prevention, intervention, investigation and repatriation in child trafficking cases.

The Committee takes due note of this information. However, the Committee notes that, in the technical report for the CP-TING project, it is indicated that at the National Anti-Trafficking Children’s Forum, Yin Jianzhong, an anti-trafficking official from the Investigative Bureau of the MPS stated that, at present, the phenomenon of trafficking for the purposes of forced physical labour and prostitution is worsening. Indeed, according to the Worker members at the Conference Committee on the Application of Standards, recent internal migration in China was the largest in human history. In 2005, there were 140 million migrants, with 40 million in the Guangdong province alone. The Committee therefore requests the Government to redouble its efforts to ensure that children under 18 years are prevented from being engaged in trafficking for labour and sexual exploitation. It requests the Government to provide information on the impact of the National Plan in this regard, and the results achieved.

2. Forced labour. The Committee had previously observed that China’s prison system comprises Laogai camps (reform through labour) and Laojiao (re-education through labour and juvenile criminal camps). The Committee had noted that the records indicate that all prisoners, including persons under 18, are subject to hard labour. It had noted the ITUC’s allegations that, although Chinese criminal law calls for separate places for minors, in practice, due to limited spaces available, many minors are incarcerated with the adult population. The ITUC indicated that China has several procedures inside the criminal justice system which deal with minors. Pursuant to these procedures, children may be sent to special “work-study” schools, or to labour camp re-education programmes, through “custody and education” schemes.

(i)        Forced labour at “work-study” schools

The Committee had noted that the ITUC indicated that the work-study schools are designed to reform children through work and study. Notwithstanding that the system forms a part of the compulsory nine years of education, this model has also become the basis of a form of school-run factories under the programme of “Diligent Work and Economical Study” (qingong jianxue) which allows for the exploitation of child labour. The Committee had also noted that, in its concluding observations of 13 May 2005, the Committee on Economic, Social and Cultural Rights considered that the “Diligent Work and Economical Study” programme constitutes exploitative child labour, in contradiction with the provisions of Convention No. 182 (E/C.12/1/Add.107, paragraph 23).

(ii)       Forced labour in re-education through labour
camps – “custody and education”

The Committee had also noted the ITUC’s allegation that children between 13 and 16 years can be sent to custody and re-education programmes by the local public security bureaux without recourse to the criminal justice system. The ITUC also stated that children working in re-education through labour camps have little safeguards against overwork and poor conditions. Moreover, the Committee had noted that, in its concluding observations of 13 May 2005, the Committee on Economic, Social and Cultural Rights stated that it was gravely concerned about the use of forced labour as a corrective measure, without charge, trial, or review, under the “Re-education through labour” (laodong jiaoyang) programme (E/C.12/1/Add.107, paragraph 22).

(iii)      Forced labour through school-related or
contracted work programmes

The Committee had further noted that the ITUC referred to the phenomenon of many schools which force children to work in order to make up school budgets. Under the work study programmes, pupils are obliged to work to “learn a skill”, but often they are put to perform regular work in labour intensive unskilled positions for longer periods of time where they do not learn any skill. In parts of the country, children are found to be working, during school hours, in assembling fireworks, beadwork, or other cottage industry-type production, as well as harvesting the yearly cotton harvest. Teachers and children reported that they were pressured to meet daily quotas and face possible fines if they fail to meet them.

The Committee notes that, at the Conference Committee on the Application of Standards, the Worker and Employer members expressed deep concern at the phenomena of re-education through labour and school-run factories operated in work-study schools where children are sent and detained without due process. More specifically, the Worker members recalled that, in fact, local security bureaux send children aged 13 to 16 to custody and re-education programmes without recourse to the criminal justice system. The Worker members further expressed their concern about the system in which schoolchildren are forced to work to make up school budgets, including factory and agricultural work with arduous long hours of picking cotton, quotas to be filled and fines for missed targets. The Committee notes that the Conference Committee on the Application of Standards emphasized the seriousness of such violations of Convention No. 182 and urged the Government to take measures, as a matter of urgency, to ensure that children are not subjected to forced labour in any situation and to provide information on developments in this respect in its next report to the Committee of Experts.

The Committee notes the Government’s statement that, under China’s Prison Law, juvenile delinquent rehabilitation institutions are established for young delinquents under the age of 18 who meet the conditions of re-education through labour. Since 2006, the juvenile rehabilitation institutions strengthened their efforts in education by increasingly conducting teaching in classroom format, enhancing training in vocational skills and emphasizing supervision of law enforcement. The Government indicates that under the relevant legislation, such as the Criminal Law, Prison Law and Law on the protection of minors, any form of forced labour involving juvenile delinquents is banned. To give effect to the provisions of the Prison Law, the Ministry of Justice promulgated the Regulations on the administration of juvenile delinquent rehabilitation institutions, according to which children under the age of 16 are afforded special protection and are exempted from participation in productive labour. The Government indicates that juvenile delinquents follow work-study programmes to learn skills which are low in labour intensity, such as flower arrangement and embroidery. In 2007, the Ministry of Justice issued the Platform on re-education and reform of prisoners, section 26 of which provides that “Labour for juvenile delinquents shall focus primarily on study of knowledge and acquisition of skills; the duration of labour shall not exceed four hours per day or 20 hours per week.” The Committee also notes the Government’s information that the Provisional Rules of the State Council on work-study programmes for middle and primary schools prohibit hard work and heavy labour for middle and primary school students in the work-study process. The Government adds that the types of work performed by the students are all within their capacities and primarily centre around social work and community services.

While taking note of this information, the Committee shares the concern expressed by the Conference Committee on the Application of Standards about the situation of children under 18 performing forced labour either in work-study programmes, as part of re-educational and reformative measures or through school-related programmes. This concern is further reinforced by the fact that the Regulations on the administration of juvenile delinquent rehabilitation institutions only exempt children under 16 years of age from productive labour. The Committee reminds the Government that, by virtue of Article 3(a) of the Convention, forced labour is considered to be a worst form of child labour in which children under 18 years of age may not be engaged. The Committee therefore once again urges the Government to take immediate measures to ensure that children under 18 years of age are not forced to work, whether in the framework of re-educational or reformative measures or at school, or in any other situation, and to provide information on the progress made in this regard. The Committee also urges the Government to take measures to ensure that the Regulations on the administration of juvenile delinquent rehabilitation institutions exempt children between 16 and 18 years from productive labour.

Article 5. Monitoring mechanisms. Labour inspectorate. The Committee had previously noted that the labour inspectorate is responsible for monitoring the implementation of the provisions concerning child labour. It had noted the ITUC’s allegations that children are reportedly employed in some hazardous types of work, such as the firework industry, brick kilns and glass-making industries. The ITUC had observed that, given the shortage of labour inspectors, the chances of discovering children illegally working were slim. Therefore, although China does possess national legislation banning child labour and its worst forms, there remains a serious gap between legislation and implementation and monitoring. The Committee had noted the comments of the All-China Federation of Trade Unions (ACFTU) that the present system of laws and regulations on the prohibition of the use of child labour is sound and complete, but that the illegal use of child labour still exists.

The Committee notes that the Conference Committee on the Application of Standards welcomed the expanded authority of the labour inspectorate in enforcing the law. However, the Worker members noted that the labour inspectorate required increased capacity and access to all workplaces, including the informal economy, where trafficked children are more likely to work.

The Committee notes the Government’s information that a labour supervisory framework, consisting of three-tiered organizations at the provincial, municipal and county levels, has been established. By the end of 2007, this labour supervisory framework consisted of 3,271 organs of labour security and inspection and employed 22,000 full-time labour inspectors. In addition, 28,000 inspectors from the regular system of security inspection were designated as part-time or concurrent labour inspectors in the labour supervisory framework. Furthermore, the Government indicates that, in 2008, the Ministry of Human Resources and Social Security established a specialized Labour Inspection Bureau to provide leadership over labour inspection across China. The Government indicates that the departments of labour inspection have worked hard to fulfil their duties, including:

(a)   supervising the recruitment activities of employers in a more vigorous manner;

(b)   regularly checking for child labour by means of routine or ad hoc inspections, written requests, in-focus examinations, investigation of complaints and verification of cases reported by informants;

(c)   raising awareness about labour legislation and rules in order to improve law enforcement.

The Government indicates that, in June 2007, the case of the illegal employment of children in brick factories in Shanxi was exposed. The competent authority in Shanxi carried out province-wide investigations in enterprises: more than 86,000 employers were subject to inspections, involving 1.92 million employees. As a result, 13 illicit brick yards without business licenses were found exploiting 15 child labourers in violation of the law. The perpetrators were prosecuted and eight of them were sentenced to prison terms ranging from one to three years. The Committee finally notes the Government’s information that it is studying and elaborating an integrated mechanism to further improve the monitoring of labour regulations and employment practices in the rural areas of China. The Committee strongly encourages the Government to continue to strengthen the capacity and reach of the labour inspectorate. In this regard, it requests the Government to provide information on progress made in the elaboration of the integrated mechanism to improve monitoring in the rural areas of China. It also requests the Government to supply, with its next report, extracts of the inspection reports specifying the extent and nature of violations detected involving children and young persons engaged in the worst forms of child labour, both in the formal and the informal sectors.

Article 7, paragraph 1. Penalties. 1. Trafficking. The Committee had previously noted 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). It had noted the ITUC’s allegation that despite strong efforts by the Chinese authorities to stem the problem in areas severely affected by trafficking in women and children, grass roots authorities have generally failed to take effective action. For the ITUC, the problem lies primarily in the implementation of the law and not in the legislation itself. The Committee had noted the statistics provided by the Government on the number of prosecutions in cases of trafficking in children in the years 2004–06 which, according to the Government has sent shockwaves through the criminal elements trafficking women and children.

The Committee notes from the Government’s report that, from June 2006 through June 2008, the Office of the Public Prosecutor prosecuted several criminal cases and suspects of trafficking in children: 2,173 persons in 988 cases were prosecuted for abducting and trafficking children; 53 persons in 12 cases were prosecuted for buying abducted children; 401 persons in 277 cases were prosecuted for abducting children; and one person was prosecuted for assembling a crowd to impede the rescue of bought women and children. During the same period, Chinese courts have sentenced 4,289 criminals for these crimes: 314 criminals were sentenced for abducting children.

However, the Committee notes that, at the Conference Committee on the Application of Standards, the Worker members indicated that, with such rapid economic and demographic change in China, the trafficking challenge has grown and that law enforcement, particularly concerning trafficking, requires effective inter-agency cooperation between the various public authorities. In this regard, while reports indicated political will in central government in tackling trafficking, evidence reflected a lack of enforcement at the local level. The Worker members also expressed deep concern at reports of poor local enforcement and collusion between local authorities, the police and bar and nightclub owners in the recruitment of Tibetan sex workers. The Committee urges the Government to continue to take measures to ensure that persons engaged in the trafficking of children for labour and sexual exploitation are prosecuted and that sufficiently effective and dissuasive penalties are imposed, at the local level. It requests the Government to provide information on the progress made in this regard and to continue providing information on the number of infringements reported, investigations, prosecutions, convictions and penal sanctions applied.

2. Forced labour. The Committee had previously noted that, according to section 244 of the Criminal Law, the persons who are directly responsible for the offence of forced labour shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention and shall also, or shall only, be fined. It had noted that, according to this provision, a person committing the offence of forced labour, may be sentenced to a fine only. The Committee had considered that the penalties provided for in section 244 of the Criminal Law for the offence of forced labour are not sufficiently dissuasive to the extent that the penalty applied may merely consist of a fine. It had reminded the Government that, by virtue of Article 7, paragraph 1, of the Convention, the Government shall take the necessary measures to ensure the effective implementation and enforcement of the provisions giving effect to the Convention, including the provision and application of the penal sanction of imprisonment. The Committee notes with regret the lack of information in the Government’s report on this point. It urges the Government to take the necessary measures to ensure the application of the penalty of imprisonment for an offence as serious as one involving forced labour, to ensure that persons who force children under 18 years of age to work are prosecuted and that effective and dissuasive penalties are applied, as a matter of urgency.

Article 7, paragraph 2. Effective and time-bound measures. Clause (d). Identifying and reaching out to children at special risk. Beggars and homeless children.  The Committee had previously noted the ITUC’s allegation that, from August 2003 through the end of June 2004, police picked up 80,000 child beggars nationwide, but that the number of child beggars may be much higher. It had noted that the village of Gongxiao has had professional beggars for decades, but began to use disabled children as a means of producing a greater return. The Committee had noted the Government’s information that the “Opinions on strengthening the work on adolescent vagrants”, jointly issued by 18 departments, spells out the duties of various departments and organs in combating the phenomenon of child begging and protecting and rehabilitating homeless or begging minors.

The Committee notes the Government’s information on the several measures it has taken to protect children from begging. Among other things, the Government indicates that relief and protection institutions all over the country pay much attention to protecting the rights and safety of minors in difficult situations, including vagrant children, by providing daily life care, education, skill development, employment assistance, psychological counselling and behaviour correction. There are presently 1,351 relief stations and 152 relief and protection centres for homeless children in China. Since 2003, the cumulative number of child vagrants relieved has amounted to 588,000. The Committee further notes that, in November 2006, the MPS issued the “Work Programme on Special Operations against Crimes of Forcing and Alluring Minors into Vagrancy and Begging as well as Crimes of Forcing and Abducting Deaf and Dumb Youth for Illegal Activities”, which was implemented by police organs all over the country during the period of late December 2006 to August 2007. In the framework of these operations, where police forces consisted of 260,000 persons, some 110,000 places in key regions were raided, 3,600 cases of various types were investigated, more than 5,000 criminals were arrested and over 8,000 minors were rescued. The Government also indicates that section 17 of the amendments to the Criminal Law of 29 June 2006 provides for a new clause in the Criminal Law which prohibits any person from organizing, by means of violence and coercion, disabled persons or minors under 14 years of age, to beg.

The Committee takes note of this information. However, it observes, like the Conference Committee on the Application of Standards, that large numbers of child beggars still exist and requests the Government to continue its efforts to protect homeless children and child beggars from the worst forms of child labour and to provide for their rehabilitation and social integration. The Committee requests the Government to continue providing information on the progress made in this regard, and the results achieved.

Article 8. International cooperation. Trafficking. Following its previous comments, the Committee notes the Government’s information that, since 2006, under Phase II of the ILO/IPEC project “Reducing labour exploitation of children and women: Combating trafficking in the Greater Mekong Sub-region”, Chinese trainees have actively participated in the anti-trafficking programme in a school of Khon Kaen, Thailand. The Committee also notes the Government’s statement that China has enhanced cooperation in international anti-trafficking programmes and has vigorously promoted international anti-trafficking judicial and police collaboration. Furthermore, in December 2007, the MPS, in collaboration with the Office of Women and Children Affairs Committee of the State Council, Ministry of Foreign Affairs and Ministry of Commerce, successfully organized the second Ministerial Consultation and fifth Senior Official Meeting of the Mekong Subregion on combating abducting and trafficking in women and children. The conference culminated in the Joint Declaration of the “Mekong Sub-regional Cooperation in the Anti-trafficking Process”, by ministers from the countries of China, Cambodia, Laos, Myanmar, Vietnam and Thailand. The Government also indicates that, to cope with rising crimes in transnational human trafficking at the border areas, the public security organs in China have strengthened law enforcement cooperation with neighbouring countries, resulting in substantial achievements. Joint special operations against abduction and trafficking were carried out in 2006, during which 13 criminal gangs were disbanded, 73 cases of trafficking of foreign women and children were solved, 95 suspects were arrested (47 of foreign nationality) and 193 abducted foreign women and children were rescued. Moreover, three liaison offices were established along the China-Vietnam border area and one along the China-Myanmar border area, which facilitated cooperation in the exchange of information, repatriation of victims and transfer of suspects. The Committee further notes that China formally launched the China-Myanmar Anti-trafficking Cooperation Programme (2007–10), building on the continued China-Vietnam Anti-trafficking Cooperation Programme. The Committee notes that, at the Conference Committee on the Application of Standards, the Worker members, given the commitment they heard from the Government, urged it to study and ratify the Protocol to prevent, suppress and punish trafficking in persons, especially women and children (the Palermo Protocol) and to examine the new European Convention on Action against Trafficking in Human Beings, which stresses the rights of victims. The Committee accordingly encourages the Government to consider ratifying the Palermo Protocol and to examine the European Convention against Trafficking in Human Beings. It also requests the Government to continue providing information on the impact of international and regional anti-trafficking agreements and programmes, and of cooperation in law enforcement, in combating the trafficking of children, and the results achieved.

The Committee is also addressing a direct request to the Government concerning other points.