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International scientific and practical law journal Eurasian Journal of International Law

Тиллабаев М.А., Хамдамова Ф.У.

Оценка международно-правовых основ по искоренению детского труда

Цель:  Анализ и оценка эффективности международных стандартов по искоренению детского труда, выявление причин их неэффективной имплементации.

Методология: В статье применялся формально-юридический и сравнительно-правовой анализ соответствующих международных документов и правовой доктрины.

Результаты: Данная статья посвящена анализу международных стандартов в области искоренения детского труда. Авторы определяют, насколько эти стандарты эффективны и реализуемы на практике. В статье дается обзор соответствующих документов и обязательств, возлагаемых на государства в данном направлении. По мнению авторов, существующая правовая база не обеспечивает эффективные механизмы мониторинга.

Новизна/оригинальность/ценность: Авторы подчеркивают, что неэффективность мер по искоренению детского труда обусловлена не только слабостью системы мониторинга, но и нереальностью достижения целей соответствующих документов в условиях современности. Статья имеет высокую научную ценность, поскольку содержит авторские обобщения и выводы, важные для понимания проблем неэффективности принимаемых мер по искоренению детского труда.

Ключевые слова: детский труд, Конвенции МОТ, Конвенция о правах ребенка (КПР).

Tillabaev M.A., Khamdamova F.U.

Evaluation of the international legal basis on elimination of child labour

Objective: To analyze and evaluate the effectiveness of international standards on the elimination of child labor, defining the reasons for their ineffective implementation.

Methodology: The formal-legal and comparative legal analysis of the relevant international instruments and legal doctrine.

Results: This article is devoted to the analysis of international standards on elimination of child labor. The authors are trying to determine how these standards are effective and realizable in practice. The paper gives an overview of the relevant documents and the obligations imposed upon the states in this direction. According to the authors, the current legal framework does not provide effective mechanisms for monitoring.

Novelty/originality/value: The authors emphasize that the ineffectiveness of measures to eradicate child labor is due to not only the weakness of the monitoring system, but the unreality of achieving the objectives of the relevant documents under the conditions of modernity. The paper has a high scientific value, because it contains the author’s generalizations and conclusions that are important for understanding the ineffectiveness of measures taken to eliminate child labor.

Keywords: сhild labor, the ILO Convention, the Convention on the Rights of the Child (CRC).

One of the basic rights of the children provided in the Convention on the Rights of Child (CRC) is the right to be protected in the field of labour. In particular, article 32 of the Convention recognizes «the right of the child to be protected from economic exploitation and from performing any work that is likely to be hazardous or to interfere with the child’s education, or to be harmful to the child’s health or physical, mental, spiritual, moral or social develop-

ment».

The provisions of the CRC are complemented by the two fundamental ILO Conventions, in particular, No. 138 on the minimum age for admission to employment and No. 182 on the prohibition and immediate elimination of the worst forms of child labour as well as by a number of other legal documents, including soft law. The treaties mentioned above have been ratified by the majority of states. The CRC has been ratified by all nations except the United States and Somalia. As to the ILO Convention No. 138 to date, as to December 2014 the convention had been ratified by 167 out of 185 ILO members. As to the ILO Convention No. 182 to date, as to December 2014 the convention had been ratified by 179 out of 185 ILO members.

The adoption of international standards and their wide recognition is one of the most important achievements in elimination of child labour. It is a ground for all efforts in this regard.

In spite of the solid legal basis on elimination of child labour it is still an issue of much concern. According to the Global report of the ILO Director-General «Accelerating actions against child labour», the experience of many countries illustrates the same result – progress is insignificant and slow. [2] It does pose the question to what extent the legal basis itself is effective and to what extent it is effective implemented.

The aim of the paper is to define to what extent legal basis on elimination of child labour are effective.

Overview of the legal basis

on elimination of child labour.

The right of the child to be protected from exploitation is set forth in the CRC and other legally binding international treaties, in particular, the ILO Conventions No. 138 and No. 182 mentioned above.

In this respect it is noteworthy that the CRC takes into account that the protection of the rights of the child in the field of labour depends on the protection of the other rights, such as right to health, education and social protection and includes a wide range of measures to ensure their protection. It provides a holistic approach to children’s rights. As Craig Scott notes «one right forms a part of another right and may, therefore, be incorporated into that latter right» [3].

As to the ILO Conventions mentioned above they are specifically aimed at elimination of child labour. In this respect it is noteworthy that although Jacqueline Gallinetti argues that there was no strong necessity for the adoption of the ILO Convention 182 as the Convention on the Rights of the Child had already included relevant provisions, the ILO Convention 182 focusing on child labour provides more specific approach to the issue. It is aimed to strengthen the legal basis and responsibility of states for protection children in the sphere of labour as well as to clarify their obligations in this regard [1].

Jacqueline Gallinetti notes that the purpose of the ILO Convention No. 182 to eliminate child labour immediately is unrealistic and unattainable. In addition, it does not provide strong monitoring mechanisms [1]. However, criticizing the Convention, its «unachieveable» purpose and the absence of strong international mechanisms for its implementation, we cannot diminish or ignore its significance. The Convention serves as an important ideological ground for international cooperation and movement aimed at elimination of child labour. Although it has not resulted in immediate eradication of child labour, it provides gradual improvement of the situation and helps to prevent further increase of child labour.

The problem of child labour depends on many factors, including economic ones. Given that it is difficult to regulate the issue through legally-binding treaties, a number of soft law sources refer to the issue of child labour. Their non-legally binding nature does not diminish their significance. They served as a ground for the adoption of legally binding provisions. In particular, the ILO Recommendations No. 146 on the minimum of age for admission to employment and No. 190 concerning the prohibition and immediate action for the elimination of the worst forms of child labour as well as the ILO Declaration on fundamental principles and rights at work. It is noteworthy that the Declaration proclaimed prohibition of child labour as one of the basic principles of the ILO.

The UN treaty bodies also made significant contribution in this regard. In particular, the CRC Committee. The CRC Committee has not adopted any General Comments specifically devoted to child labour. However, its General Comment No. 5 on general measures of implementation of the CRC is related to all provisions of the Convention, including article 32. The Committee also refers to child labour in its General Comment No. 1 on the aims of education. In addition, the Committee provides specific recommendations with respect to child labour in its Concluding observations on the results of consideration of states’ periodic reports submitted to the Committee in line with article 44 of the Convention.

Other UN treaty bodies refer to the problem as well. Child labour is mentioned in a number of CESCR General Comments. In particular, General Comment No. 11 on plan of action for primary education emphasizes that the lack of educational opportunities for children often cause forced child labour and other forms of exploitation. General Comment No. 13 on the right to education provides similar provisions. Moreover, it underlines that States parties have an obligation «to ensure that communities and families are not dependent on child labour». General Comment No. 18 on the right to work stresses the need to protect children and young people against any form of economic exploitation or forced labour and the role of education in this respect. It also notes that states shall adopt effective measures to ensure that the prohibition of child labour will be fully respected.

Therefore, international law provides necessary legal basis to eliminate child labour.

The strength of this legal basis is that it includes both legally binding treaties and soft law such as the ILO Recommendations and the Declaration, mentioned above and UN treaty bodies General Comments.

As discussed above, the ILO Recommendations and the Declaration provided a ground for the adoption of legally binding treaties on elimination of child labour while the UN treaty bodies provided a better understanding and comprehensive interpretation of states’ obligations with respect to the right of the child to be protected from exploitation. In addition, this legal basis is widely recognized by states.

The weakness of the legal basis, as discussed above, is that its aim is considered unattainable and it does not provide strong monitoring mechanisms.

Overview of states’ obligations

on elimination of child labour.

Legal sources mentioned above provide a wide range of measures. Firstly, article 4 of the CRC provides that states shall take all appropriate legislative, administrative, and other measures for the implementation of all rights set forth in the Convention. Secondly, with regard to economic, social and cultural rights article 4 obligates States «to undertake such measures to the maximum extent of their available resources and, where needed, within the framework of international co-operation». It means that the CRC takes into account factors such as a lack of resources which may impede its implementation.

It is also noteworthy that para 5 of Vienna Declaration and Program of Actions says that «all human rights are universal, indivisible, interdependent and interrelated». It means that effective implementation of one right laid down in the CRC Convention depends on implementation of other rights. For that reason, effective elimination of child labour depends on effective implementation of other provisions of the CRC Convention as well. Thus, the more effective all provisions of the CRC Convention will be implemented the sooner child labour will be eliminated.

With respect to child labour specifically, the CRC, in particular, article 33, para 2, provides that states that States shall take legislative, administrative, social and educational measures to ensure the implementation of the present article. Compared with article 4, it specifically mentions educational and social measures as well. It proves one more time the role of education in elimination of child labour as well as interdependence of all human rights as mentioned above.

Article 33 also obligates states to

(a) provide for a minimum age or minimum ages for admission to employment;

(b) provide for appropriate regulation of the hours and conditions of employment;

(c) provide for appropriate penalties or other sanctions to ensure the effective enforcement of the present article.

The ILO Convention No 182 complements and clarifies this list of measures. In particular, it provides the following measures:

– to identify the worst forms of child labour;

– to establish or designate appropriate mechanisms to monitor the implementation of the provisions giving effect to this Convention;

– to design and implement programmes of action to eliminate as a priority the worst forms of child labour;

– to ensure the effective implementation and enforcement of the provisions giving effect to this Convention including the provision and application of penal sanctions or, as appropriate, other sanctions;

– to ensure access to free basic education, and, wherever possible and appropriate, vocational training, for all children removed from the worst forms of child labour;

– to designate the competent authority responsible for the implementation of the provisions giving effect to this Convention; to assist one another in giving effect to the provisions of this Convention through enhanced international cooperation and/or assistance including support for social and economic development, poverty eradication programs and universal education.

Thus, international law provides a wide range of measures to eliminate child labour. It is noteworthy that the international treaties discussed above have been ratified by the majority of states. Their provisions have been implemented into domestic law. It provided the adoption of legislative measures to eliminate child labour.

Secondly, as mentioned above, this legal basis takes into account a lack of resources. For that reason they call for states to develop international cooperation. It means that the legal basis unite states’ efforts in this regard and provide a ground for international cooperation aimed at elimination of child labour.

Thus, the legal basis on elimination of child labour considered was effective to some extent.

Uzbekistan and elimination of child labour.

Uzbekistan has ratified and has taken up obligations on the performance of the United Nations Convention on the rights of the child; it has signed the Optional Protocols to the Convention on the Rights of the Child.

Having ratified the ILO conventions №138 about the minimum age of for admission to employment and №182 about the worst forms of child labour, Uzbekistan has consistently realizing the National Plan of Actions in this area.

Within the framework of its obligations under these treaties mentioned above the following measures have been taken:

Firstly, the laws «On guarantees of the rights of the child», «On the counteraction against human trafficking», «On the preventive maintenance of neglect and offences among minors», «On family entrepreneurship» were adopted, the laws on introducing the addenda and amendments to the Labour code and the law «On the employment of population», including additional guarantees for the employment of the graduates of educational institutions, victims of a human trafficking, other persons that are not capable of competing in the labour market on equal terms were approved in the first reading;

Secondly, the Labour code provides the minimum age for employment – 16, in exceptional cases, with the permission of parents or persons replacing them – 15. For working persons below 18 the employers are obliged to provide necessary conditions for combination of work with study and privileged terms for work and rest, to ensure the observance of the labour safety norms, including prevention from the dangerous types of labour;

Thirdly, the system of the state institutions on elimination the worst forms of child labour was created. At the Cabinet of Ministers the special Commission on affairs of the minors, headed by the General public prosecutor of Republic Uzbekistan has been functioning, whose competence includes practically all issues, concerning the position of children in a society, including the control for elimination of the worst forms of child labour.

Besides, in system of the Ministry of Labour and Social Protection of the population the state legal inspections of labour and the inspections on labour safety are effectively operating, carrying out the state control for prevention of infringements of the labour legislation. With the decision of the Cabinet of Ministers on the 24th of March, 2011 the Interagency working group on preparation and presentation of the information on the performance of the ratified ILO conventions was formed.

With a view of elimination of forced labour and the worst forms of child labour in Uzbekistan the complex of the measures was developed and has been consistently realized, that is connected with creation of about one million of workplaces annually, by ensuring of the employment of population, first of all not less than 500 thousand graduates of the vocational colleges that are for the first time entering the labour market.

On the 29th of July, 2009, the Ministry of Justice registered the new edition of «The List of jobs with adverse working conditions on which the application of labour of persons below 18 is forbidden» (№1990), that is developed by the Ministry of Labour and Social Protection of population and the Ministry of health, according to the Labour code and the decision of the Cabinet of Ministers №207 of September, 12th, 2008.

With a view of realisation of effective measures on elimination of forced labour and the worst forms of child labour, the practice of parliamentary hearings of actual directions of labour and social development was introduced.

The concrete work is done in rising the awareness among workers of the relevant ministries, agencies and public organizations as well as foreign organizations, such as the ILO, UNDP, UNICEF about the measures adopted by the Republic of Uzbekistan with the end top implement the ratified ILO conventions.

References

1. Gallinetti J.S. An Assessment of the Significance of the International Labour Organisation’s Convention 182 in South Africa with specific reference to the Instrumental Use of Children in the Commission of Offences as a Worst Form of Child Labour. Thesis (PhD). University of the Western Cape, 2007. – P. 152.

2. ILO Global report, 2010. UP:30/04/2012-09:07:59 WM:30/04/2012-09:08:19 M:LW998-7-FY A:11a1 R:1100579 C:58F8445A01C5F76F2F1AE64D17AD7D24563C9CF6.

3. Scott C. The interdependence and permeability of human right norms: towards a partial fusion of the international covenants on human rights. 27 Osgoode Hall Law Journal 769. 1989. – P. 780.

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