Observation (CEACR) - adoptée 2010, publiée 100ème session CIT (2011)

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

The Committee notes the Government’s report and the communication of the International Trade Union Confederation (ITUC) dated 1 September 2010.

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 noted that section 240 of the Criminal Law of 1997 prohibits the trafficking of women and children. It also noted the allegations of the International Confederation of Free Trade Unions, now the ITUC, that China is a source, transit and destination country for international human trafficking in women and children. The Committee noted the implementation of 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 Subregional Project to Combat Trafficking in Children and Women” (TICW Project). The Committee also noted that the State Council approved a new National Plan of Action against Trafficking in Women and Children (2008–12) (NPAT 2008–12) in 2007. However, the Committee noted the indication from several sources that the phenomenon of trafficking for the purposes of forced physical labour and prostitution was worsening.

The Committee notes the ITUC’s allegations that there has been an increasing number of girls trafficked out of China to work as sex workers in Australia, Burma, Canada, Malaysia, Japan, Taiwan, the Philippines, the Middle East and the United States.

The Committee notes the Government’s statement that the NPAT 2008–12 has been implemented in an effective manner, and has contributed to the reduction of the trafficking of women and children at the grassroots level. In this regard, the Government indicates that, in October 2008, the first Anti-Trafficking
Inter-Ministerial Joint Meeting (IMJM) took place and that, in March 2009, the Ministry of Public Security, and other departments and agencies jointly issued the “Rules for the Implementation of the NPAT (2008–12)”. The Committee further notes the ILO–IPEC information that the TICW Project Phase II was completed in 2008, and that its remaining activities were incorporated into the CP-TING Project. In this regard, the Committee notes that phase II of the CP-TING Project was launched on 17 March 2010. Phase II includes concrete actions to strengthen the implementation of provincial Plans of Action against trafficking, equip vulnerable youth with life skills before they migrate for work, set up trafficking prevention mechanisms and safe migration services and support referral services for vulnerable women and children. The Committee nonetheless notes the information in the report entitled “Child Trafficking in East and South-East Asia: Reversing the Trend”, published by the UNICEF East Asia and Pacific Regional Office in August 2009 (UNICEF Trafficking Report) that trafficking occurs in every province in China, with most victims trafficked to the provinces of Guangdong, Shanxi, Fujian, Henan, Sichuan, Guangxi and Jiangsu (page 31). The UNICEF Trafficking Report further indicates that internal trafficking is more prevalent than cross-border trafficking, although the Committee notes the information in another UNICEF document (entitled “Protection and Community Services”, available on the UNICEF website (www.unicef.org)) (UNICEF Protection Report) that cross-border trafficking appears to be on the rise. The Committee therefore requests the Government to redouble its efforts, within the framework of the NPAT 2008–12, to combat and eliminate both internal and cross-border trafficking of persons under 18. It requests the Government to continue to provide information on the measures taken in this regard, and on the results achieved.

2. Forced labour. (i) Forced labour in re-education through labour camps. The Committee previously observed that China’s prison system includes re-education through labour and juvenile criminal camps, and noted that records indicate that all prisoners, including persons under 18, are subject to hard labour. It noted the ITUC’s allegations that, although the legislation 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, pursuant to procedures inside the criminal justice system, children may be sent to labour camp re-education programmes. The Committee noted that the Committee on Economic, Social and Cultural Rights expressed grave concern about the use of forced labour as a corrective measure, without charge, trial or review, under the “Re-education through labour” programme (E/C.12/1/Add.107, paragraph 23) and that the Conference Committee on the Application of Standards emphasized the seriousness of such violations of Convention No. 182. In this regard, the Committee noted the Government’s statement that, under the relevant legislation, any form of forced labour involving juvenile delinquents is banned. The Government indicated that, since 2006, the juvenile delinquent rehabilitation institutions have made efforts to increasingly conduct teaching in a classroom format and enhance training in vocational skills. In this regard, section 26 of the “Platform on re-education and reform of prisoners” of 2007 provides that the labour performed should focus on the acquisition of skills, and that the duration of labour shall not exceed four hours per day or 20 hours per week. In addition, the Ministry of Justice promulgated the “Regulations on the administration of juvenile delinquent rehabilitation institutions” which provide that children under the age of 16 are exempt from participation in productive labour. The Committee expressed its concern that these Regulations only exempt children under 16 years of age from productive labour.

The Committee notes the statement in the ITUC communication that there is little concrete evidence available on the new direction of this re-education through labour institutions (pursuant to section 26 of the “Platform on re-education and reform of prisoners”), such as low labour intensity activities and a maximum number of hours a week, and that statistics on the activities in these schools remain minimal. However, the ITUC does indicate that the number of these re‑education-through-labour institutions is being reduced. The ITUC states that there appear to be no specific regulations which guide the exact procedures through which minors are sent to these schools, and expresses the view that the use of these schools is in contravention of the Convention.

The Committee notes the information in the Government’s report that section 75 of the prison law states that the execution of criminal punishments on juvenile delinquents shall be based on education and reform, that this labour shall conform to the characteristics of minors, and the main objective of this labour is to acquire an elementary education. The Government expresses the view that the labour assigned to juvenile delinquents is not forced labour, but a kind of skills training and education. The Government indicates that, by the end of 2008, there were 74 special schools for the purpose of education and rectification, with 9,631 students nationwide. Pursuant to section 25 of the Law on the Protection of Minors, students are only sent to these schools for continued education if disciplinary measures in regular schools (or by guardians) prove ineffective in rectifying undesirable behaviour. Section 25 states that the staff of these schools shall show concern and provide good care for students, and that these schools shall provide an ideological and cultural education, including education in vocational skills. The Government states that this labour and vocational and technical training aims to improve the employability and earning capacity of the juveniles, to avoid recidivism. The Government further states that juveniles are housed separately from adult inmates, in reformatories that attend to the psychological and physiological needs of the minors and that all provinces have established separate juvenile delinquent rehabilitation institutions, which provide classroom education, psychological services, vocational and technical education (following the completion of compulsory schooling) and family visits. The Committee notes the Government’s statement that juvenile delinquent institutions consist of juveniles who shall be rehabilitated through education (those under 16) and juveniles who will be re-educated through labour (those between 16 and 18).

(ii) Forced labour in work–study programmes (school-related or contracted work programmes). The Committee previously noted the ITUC statement that many schools force children to work in order to make up school budgets. Under these programmes, pupils are obliged to work to “learn a skill”, but often they perform regular work in labour-intensive unskilled positions for long periods of time. 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 (particularly in the Xinjiang Uyghur autonomous region). However, the Committee noted the Government’s indication that the “Provisional Rules of the State Council on work–study programmes for middle and primary schools” prohibited hard work and heavy labour for middle and primary school students in the work–study context, and that the types of work performed by the students were within their capacities. The Committee nonetheless echoed the concern expressed by the Conference Committee on the Application of Standards about the situation of children under 18 performing forced labour through work–study programmes.

The Committee notes the information in the ITUC communication that large numbers of rural schools have contracted out classes of students to work in factories or in the fields in labour-intensive tasks for long periods of time. The ITUC indicates that schools from the poorer inland provinces make direct contacts with the factories to send the students who work (during breaks as well as during term time) to raise funds, and that the majority of the children involved are between the ages of 11 and 15. The ITUC indicates that, following the 2006 government directive on safety standards, some children in the Xinjiang Uyghur autonomous region were directed to marginally less taxing types of work, such as harvesting of beetroots, tomatoes and other vegetables on state farms and the collection of recycling. In 2008, the local education department prohibited children between the ages of 6 and 14 from participating in the cotton harvest, and provided increased funding to the schools that had previously harvested cotton. However, the ITUC states that this directive was not enforced at the local level and children were still forced to participate in the 2008 harvest. The ITUC reiterates that participation in this harvest is mandatory, that children may face fines for working too slowly or failing to meet production quotas, and that the behaviour during the harvest is reflected in school marks.

The Committee notes the Government’s statement in its report submitted under the Minimum Age Convention, 1973 (No. 138) that it attaches great importance to the safety of work in primary and middle schools, but observes an absence of information on measures taken to protect children engaged by their schools in external enterprises, or measures taken to address mandatory participation in these types of work. However, the Committee notes the statement in the UNICEF Trafficking Report that reports indicate that several schools force students to work in factories under the veil of “work–study”.

Therefore, the Committee expresses its serious concern at the compulsory nature of the work performed by children under 18 in re-education through labour programmes and by schoolchildren under the age of 18 within the context of work–study programmes. The Committee reminds the Government that, by virtue of Article 3(a) of the Convention, all forms of forced or compulsory labour are considered to be among the worst forms of child labour in which persons under 18 years of age may not be engaged and that, pursuant to Article 1 of the Convention, governments must take immediate and effective measures to secure the prohibition and elimination of the worst forms of child labour as a matter of urgency. Accordingly, the Committee strongly urges the Government to take immediate and effective measures to ensure that children under 18 years of age are not, under any circumstance, forced to work within the framework of
re-education through labour programmes or work–study programmes. With regard to re-education through labour programmes, the Committee urges the Government to take the necessary measures to ensure that the “Regulations on the administration of juvenile delinquent rehabilitation institutions” are extended to exempt children between 16 and 18 years from productive labour in these institutions. The Committee further requests the Government to provide information on the concrete steps taken to eradicate these types of forced or compulsory labour, and on the results achieved.

Article 5. Monitoring mechanisms. Labour inspectorate. The Committee previously noted that the labour inspectorate is responsible for monitoring the implementation of the provisions concerning child labour. It noted the ITUC’s allegations that despite national legislation banning child labour and its worst forms, there remained a serious gap between legislation and implementation, and that children worked in hazardous types of work, such as the fireworks industry, brick kilns and glass-making industries. The All-China Federation of Trade Unions (ACFTU) also stated that, while the legislation prohibiting the use of child labour is complete, the illegal use of child labour still exists. The Committee further noted the establishment of a labour supervisory framework, consisting of three-tiered organizations at the provincial, municipal and county levels.

The Committee notes the statement in the ITUC communication that, while the increase in the number of labour inspectors is a significant step towards adequate enforcement, there remains not enough labour inspectors to properly monitor the number of enterprises in the country. Furthermore, the ITUC reiterates that the detection of child labour is unlikely, due to this shortage of labour inspectors and the extensive collusion between private enterprises and local officials. The ITUC indicates that it is quite common for factory owners to receive advance warning concerning upcoming inspections, allowing these owners to hide working children or give these children the day off, which renders these inspections meaningless. The ITUC states that the commonplace practice of advance warning of labour inspections indicates the almost endemic nature of official corruption at the local level, and that increased resources in anti-corruption efforts have not decreased this problem. The ITUC communication states that the existence of child labour, including the worst forms of child labour, remains high, due in part to the lack of proper enforcement of legislation. However, the ITUC communication also references progress in some areas, stating that authorities have increased efforts to improve safety in the fireworks industry, and to address the use of child labour in this industry. The ITUC also states that the increase in detection of cases of forced labour (and the sale of children for this purpose) may be due to increased investigations in this area (but that it may reflect a rise in this phenomenon).

The Committee notes the information in the Government’s report that, by the end of 2009, the labour supervisory framework had grown to include 3,291 organs of labour security and inspection (an increase in 20 units since 2007), and employed 23,000 full-time labour inspectors (1,000 more inspectors than in 2007), and 25,000 part-time inspectors. The Government also indicates that, in collaboration with the ACFTU and other institutions, it launched nationwide supervision operations on, inter alia, rectifying illicit employment and combating related criminal activities, in addition to inspections focused on the implementation of legislation related to the prohibition of child labour. The Government further states that joint inspection activities have been undertaken with the departments of public security and occupational safety and health, and that the briefing of these multi-department efforts has been published and disseminated. The Committee further notes the Government’s indication that labour inspections have been reorganized to be carried out based on a grid system. The Government indicates that this system has permitted the gradual expansion of the coverage of labour inspections, including to rural areas. The Committee welcomes the Government’s efforts to strengthen and expand the capacity of the labour inspectorate, but must express its concern regarding allegations of endemic corruption and collusion between labour inspectors and private businesses, which compromise the functioning of labour inspection and the detection of child labour, including its worst forms. The Committee accordingly urges the Government to take the necessary measures to strengthen the functioning and the capacity of the labour inspection system with regard to the detection of cases of child labour and its worst forms. In this regard, the Committee requests the Government to redouble its efforts to address the corruption within the labour inspection system, to eliminate the practice of advance warnings and to ensure thorough investigations into possible cases of the worst forms of child labour. The Committee requests the Government to provide information on concrete measures taken in this regard in its next report.

Article 7(1). Penalties. 1. Trafficking. The Committee previously noted that section 240 of the Criminal Law provides penalties for the sale and trafficking of children. It also noted the ITUC’s allegation that, despite efforts by the Chinese authorities to stem the problem of trafficking in women and children, grassroots authorities had generally failed to take effective action, emphasizing that the problem lay in the implementation of the law and not in the legislation itself.

The Committee notes the ITUC’s statement that domestic laws do not provide adequate sanctions for trafficking-related crimes. The ITUC states that, while buying trafficked children carries a sentence of three years’ imprisonment, the vast majority of buyers are not prosecuted, particularly if the child is not harmed and the buyer cooperates with the police. The ITUC’s allegations also indicate that, in some cases, factory personnel who employ trafficked juveniles do not receive administrative or penal sanctions following the rescue of the children. The ITUC also indicates that there is a lack of transparency in reporting and investigations. Furthermore, the ITUC states that Chinese police and local authorities collude with traffickers in the Tibet Autonomous Region near the Nepal border, to recruit girls and women to work as escorts and prostitutes, resulting in approximately 10,000 sex workers in the city of Lhasa. In addition, the ITUC communication indicates that the corruption of officials, and their collusion with criminal groups (despite anti-corruption measures taken) has severely hindered anti-trafficking efforts.

The Committee notes the information in the Government’s report that between June 2008 and May 2010, courts at all levels sentenced 5,308 persons in 3,266 cases for trafficking in women and children, and 217 persons in 137 cases for buying trafficked women and children. The Committee observes that the Government does not provide information on whether criminal sanctions were imposed on those convicted. The Committee reminds the Government that, by virtue of Article 7(1) of the Convention, the Government is required to take all necessary measures to ensure the effective implementation and enforcement of the provisions giving effect to the Convention, including the application of penal sanctions. The Committee expresses its deep concern at allegations of complicity of law enforcement officials with human traffickers and accordingly urges the Government to take immediate measures to ensure that thorough investigations and robust prosecutions of perpetrators of the trafficking of children (including the buyers of persons under 18), and complicit government officials, are carried out and that sufficiently effective and dissuasive penalties are imposed in practice. In this regard, it requests the Government to provide information on the number of persons (including governmental officials) investigated, convicted and sentenced for cases of trafficking involving victims under the age of 18, and the penal sanctions imposed.

2. Forced labour. The Committee previously observed that, pursuant to section 244 of the Criminal Law, a person committing the offence of forced labour may be sentenced only to a fine. The Committee considered that this penalty was not sufficiently dissuasive to the extent that it may merely consist of a fine. It reminded the Government that, by virtue of Article 7(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 the information in the ITUC’s allegations that, following the discovery of the forced labour of children in the Shanxi brick kilns, authorities indicated that dozens of officials would be punished. However, only six lower level officials were subsequently punished, receiving only warnings or demotions, and no criminal charges were laid. The ITUC states that the failure of the Government to properly bring the perpetrators of the crime of forced labour to justice does not bode well for the eradication of this worst form of child labour. The ITUC further indicates that the charges brought against the brick kiln owners were primarily based on the issues of poor working conditions and lack of pay, as opposed to charges of slavery and forced labour.

The Committee once again 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(2). Effective and time-bound measures. Clause (d). Identifying and reaching out to children at special risk. Beggars and homeless children. The Committee previously noted the issuance of the “Opinions on strengthening the work on adolescent vagrants” which stipulates the duties of various departments in combating the phenomenon of child begging and protecting and rehabilitating homeless or begging minors. The Committee also noted that the Criminal Law was amended in 2006 to prohibit any person from organizing, by means of violence and coercion, disabled persons or minors under 14 years of age, to beg. However, the Committee echoed the observation of the Conference Committee on the Application of Standards that large numbers of child beggars still exist.

The Committee notes the statement in the ITUC’s allegations that some abducted women and children in the country are forced to engage in begging. The ITUC indicates that, in 2009, 20 children (between the ages of 8 and 16) who had been abducted and forced into pickpocket gangs in southern China were rescued. These children were forced to beg, and were physically punished when they failed to earn the amount expected.

The Committee notes the detailed information in the Government’s report regarding its recent initiatives to reach vagrant children. The Government indicates that between 2008 and 2010, the Government invested 470 million yuan renminbi (CNY) for the construction of 327 homeless relief and protection centres, through the implementation of the “Eleventh Five-Year Plan on the Establishment of a Relief and Protection System for Vagrant Minors”. The Ministry of Civil Affairs will additionally invest over CNY30 million in the construction of 40 relief and protection centres. The Government indicates that it has worked to implement the “Basic Norms on Relief and Protection Institutions for Homeless Children”, which requires that these children receive services including daily life care, education, skills training, psychological counselling and behavioural correction, to promote the permanent removal of these children from vagrancy. The Government further indicates that, between June 2008 and June 2010, the Ministry of Civil Affairs held ten workshops for staff of relief and protection agencies, on themes such as relief for (and protection of) vagrant minors, informal education and aid for homeless children. In 2009, the Ministry of Civil Affairs compiled a “Guide on Aid and Protection of Vagrant Children”, which summarized best practices on the protection of these children. Lastly, the Committee notes that, in September 2009, the Ministry of Public Security, the Ministry of Civil Affairs and the Ministry of Health launched a special rectification operation against child begging and forced juvenile delinquency.

Nonetheless, the Committee notes the information from the UNICEF Protection Report that the number of China’s urban street children is growing and that, based on the number of children passing through protection centres, the Ministry of Civil Affairs estimates that there are around 150,000 such children. The UNICEF Protection Report states that many of these children come from migrant families, or migrated by themselves from rural areas, and that these children are particularly vulnerable to risks. While noting the numerous measures taken by the Government, the Committee recalls that street children are particularly vulnerable to the worst forms of child labour. It accordingly urges the Government to pursue its efforts to protect homeless children and child beggars from these worst forms and to provide for their rehabilitation and social integration and to ensure that programmes are open to child participation. The Committee requests the Government to continue providing information on the progress made in this regard, and the results achieved.

The Committee is raising other points in a request addressed directly to the Government.