Observation (CEACR) - adopted 2006, published 96th ILC session (2007)

The Committee notes the Government’s report. It also notes the communication of the International Confederation of Free Trade Unions (ICFTU) dated 31 August 2006. It requests the Government to provide information on the following points.

Article 3. Worst forms of child labour. Clause (a). All forms of slavery or practices similar to slavery. 1. Sale and trafficking of children. The Committee had previously noted that section 240 of the Criminal Law of 1997 prohibits the abducting and trafficking of women and children. The Committee notes the ICFTU’s allegations 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 ICFTU points out that allegedly there are an increasing number of young women and girl children trafficked out of China to work as sex workers in Australia, Burma, Canada, Malaysia, Japan, Taiwan, the Philippines, the Middle East, Europe and the United States. The ICFTU also mentions the phenomenon of the trafficking of girls from Tibet, which allegedly involves the Chinese authorities. It is reported that the local Chinese authorities, police, and owners of bars and nightclubs, collude with each other in recruiting these Tibetan sex workers. The ICFTU stresses that China should take appropriate measures to address the root cases of child trafficking, namely the one child policy and discriminatory attitudes towards girls and women, and should strengthen the existing legislation as well as the enforcement mechanisms.

The Committee notes with interest that the Government has taken a number of measures to combat trafficking. It notes the Government’s information that the major activities of cooperation with the ILO include: (i) an in-depth study on trafficking, irregular migration and forced labour in China (November 2004 to March 2005); (ii) a study tour to Japan and Australia on the problem of trafficking (January 2005); (iii) holding in Beijing of a national high-level workshop on trafficking and forced labour (April 2005) and a provincial workshop in the province of Jilin (August 2005); and (iv) field research in the provinces of Yunnan, Hunan and Fujian (June, August 2005). It also notes the Government’s information that it has taken measures to increase, on a continued basis, its efforts to combat the crimes of trafficking in women and children. Moreover, in recent years, the local public security organs have put more efforts into carrying out public education campaigns in relation to some typical cases involving trafficking and other infringements against children. The Ministry of Public Security has also taken an active part in the legal and educational campaign on preventing trafficking launched by the General Office of the State Council Commission for Women and Children Affairs, Ministry of Civil Affairs and All-China Women’s Federation. The Committee notes the Government’s information that the project “Preventing trafficking in girls and young women for labour exploitation within China”, jointly carried out between the All-China Women’s Federation and the ILO, started on May 2004 and will end in 2008. The Ministry of Public Security took an active part in this project and in the “Mekong Sub-regional Project to Combat Trafficking in Children and Women”. The Committee also notes that a number of action programmes have been launched in various provinces of China in 2005, aimed at preventing trafficking. These programmes especially target children, migrant girls, young women working, and ethnic minority girls.

The Committee takes note of the comprehensive information provided by the Government. It welcomes the measures taken to prevent the trafficking of children, especially girls, for labour and sexual exploitation. However, it notes that, although the national legislation appears to prohibit the sale and trafficking of children under 18 years, the trafficking of children, especially girls, under 18 years for labour and sexual exploitation remains an issue of concern in practice. It requests the Government to continue to provide information on the measures taken to prevent and combat the trafficking of children under 18 years for labour and sexual exploitation and the results achieved.

2. Forced labour. The Committee had previously noted that, by virtue of section 11 of the Regulations banning child labour of 2002, forced labour is prohibited. Furthermore, 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. It had noted that section 46 of the Criminal Law states that a person who is sentenced to imprisonment, shall carry out the sentence in a prison or in another organ determined to this end. Moreover, anyone with the ability to labour shall take part in labour, receive education and undergo reform. The Committee had observed 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 of 1997, China’s prison system comprises Lagoi camps (reform through labour) and Laojiao (re-education through labour and juvenile criminal camps). The records indicate that all prisoners, including persons under 18, are subject to hard labour.

The Committee notes the ICFTU’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 ICFTU indicates 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 child labour at “work-study” schools

The ICFTU indicates that the work-study schools are designed to reform children through work and study. The majority of inmates are children who have committed minor public disorders, and the majority of female children are there for sexually-related offences. Notwithstanding that the system forms 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. In fact, some of these school-run factories have focused more on using labour (for not less than 12 hours a week) than providing education and are de facto detainment facilities, as children are not allowed to leave schools, make phone calls or receive visits. The administrative nature of the punishment means that children are detained without due process of law and there appear to be no regulations which guide the exact procedures under which minors are sent to these schools.

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

The ICFTU points out that children between 13 and 16 years can be sent to custody and re-education programmes by the local public security bureaux with recourse to the criminal justice system. Generally placed in re-education through labour camps, there is little avenue for appeals except to the public security bureau itself. The ICFTU indicates that there is a lack of due process involved in the system of custody and education. The Law on the protection of minors states that it is not a criminal penalty, but it is included in the Law on prevention of juvenile delinquency and the criminal Law. It is difficult to assess why this system is used and not the criminal juvenile justice system. The ICFTU also states that children working in re-education through labour camps have little safeguards against overwork and poor conditions.

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

The ICFTU refers to the phenomenon of many schools which force children to work in order to make up school budgets. Large numbers of rural schools have contracted out classes of students to work in factories or in the fields. 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 other parts of the country, children are found to be working, during school hours, in assembling fireworks, beadwork, or other cottage industry-type production. The ICFTU also refers to reports of school children forced to work harvesting the yearly cotton harvest. It adds that the situation in the Xinjiang Uyghur autonomous region of China (XUAR) is unique. Apart from the lack of training facilities, the picking period of various cotton districts in Xinjiang is concentrated in September and October, thus the work-study programme has to be carried out mainly during this time. The teachers and children have reported that they were pressured to meet daily quotas and face possible fines if they fail to meet them. Moreover, children generally worked from 7 a.m. until dark with half an hour for lunch. Children performing these school programmes are vulnerable to accidents and young girls to sexual assaults.

The Committee notes the Government’s information that, according to section 74 of the Prison Law, criminals under 18 years of age serve their terms at the supervision and education house of juvenile delinquents. However, criminals under the age of 18 whose terms of prison remaining to be served are less than one year can serve their terms at the detention houses according to section 15(2) of the Prison Law. The Committee notes the Government’s information that, as a result of its cooperation with the ILO, an in-depth study on forced labour in China has been carried out (November 2004 to March 2005), as well as various national and provincial workshops. Finally, the Government indicates that, although children are prohibited from carrying out hazardous work, they are allowed to take part in the work-study programmes and public interest activities that are within their capacity and suitable to their own nature.

The Committee notes that, in its concluding observations (E/C.12/1/Add.107, 13 May 2005, paragraphs 23 and 52), 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. It had encouraged the State party to consider withdrawing the programme of “Diligent work and economical study” (qingong jianxue) from its school curriculum. Moreover, it had 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.

The Committee expresses its concern at the situation of children under 18 years performing forced labour not only in the framework of re-educational and reformative measures, but also in regular work programmes at school. Although the national legislation appears to prohibit the forced labour of children under 18 years, it remains an issue of concern in practice. The Committee reminds the Government that, by virtue of Article 3(a) of the Convention, forced labour is considered as one of the worst forms of child labour and that, by virtue of Article 1 of the Convention, member States are required to take immediate and effective measures to secure the prohibition and elimination of the worst forms of child labour as a matter of urgency. The Committee urges the Government to take measures to ensure that children under 18 years of age are not forced to work whether within the framework of re-educational or reformative measures or at school, or in any other situation, and to provide information on any further measures adopted or envisaged for this purpose.

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 notes the ICFTU’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 ICTFU observes that, given the shortage of labour inspectors, the chances of discovering children illegally working are 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 notes the Government’s information that section 10 of the Regulations on labour protection inspection spells out the duties of the labour protection administration in the area of labour inspection and section 11 spells out the specific areas of inspection with regard to the employing entity. It notes that, amongst others, the labour inspectors supervise compliance of regulations prohibiting the use of child labour. Moreover, labour inspection takes the form of routine inspection rounds, examination of the regulatory written material submitted by the employing entities, and receiving complaints or tips on offences. In 2005, the labour protection administrations at various levels carried out 1,185 million unit-times of inspections, including routine inspection rounds and the annual labour protection inspections. The Committee notes the comments made by the All-China Federation of Trade Unions contained in the Government’s report, according to which, in July-August 2006, a special law enforcement inspection on the implementation of the Regulations on the prohibition of the use of child labour was conducted in the whole country. Regarding the results of this inspection, the present system of laws and regulations on the prohibition of the use of child labour is sound and complete, but the illegal use of child labour still exists. The existence of this phenomenon is mainly due to the following factors: (1) the inadequate power of the labour inspection enforcement; (2) difficulty in obtaining sufficiently convincing evidence; and (3) prevalence of fraudulent affidavits, which makes it difficult to identify child labour.

The Committee encourages the Government to strengthen the role of labour inspection and requests the Government to provide information on its activities, especially regarding the monitoring of hazardous work performed by children under 18 years of age, both in the formal and informal sectors. The Committee also asks 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.

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). The Committee notes the ICFTU’s allegation that, allegedly, 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. The problem is compounded by insufficient punishment for the buyers of trafficked children: under Chinese law the buyers can be sentenced for up to three years’ detention if they purchase a trafficking victim, but the vast majority are not prosecuted. Moreover, the Department of Public Security and other agencies are hampered by under-funding and lack of specialist staff, while law enforcement organs must have sufficient resources to combat trafficking. Therefore, for the ICFTU, the problem lies primarily in the implementation of the law and not in the legislation itself.

The Committee notes the Government’s information that, in 2005, the public security organs all over the country resolved 1,173 cases involving the trafficking of children, rescuing 1,945 child victims. Moreover, from June 2004 to May 2006, the Office of the Public Prosecutor prosecuted criminal cases and suspects of trafficking in children, purchasing trafficked children and abduction of children: 1,217 cases involved 2,578 persons; 7 cases involved 27 persons and 241 cases involved 346 persons. During the same period, Chinese courts have sentenced 4,938 criminals for the crimes of trafficking in women and children. 3,210 of these have been sentenced to imprisonment or the death penalty, which amounts to 65 per cent. According to the Government, this has sent shock waves through the criminal elements trafficking in women and children and effectively contained the upward trend in such crimes. Moreover, as a result of the participation of leaders in the investigation of major cases and coordinated regional operations, large cases involving the trafficking of women and children have been resolved in some priority areas known for the repeated occurrence of such crimes. The Committee welcomes the efforts made by the Government in this domain and requests it to continue to ensure that persons engaged in the trafficking of children for labour or sexual exploitation are prosecuted and that sufficiently effective and dissuasive penalties are imposed. The Committee also asks the Government 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 notes the ICFTU’s allegation that it is particularly concerned about the lack of implementation of the laws relevant for the elimination of the worst forms of child labour. It also notes the Government’s information that the project carried out in cooperation with the ILO – “Forced labour and trafficking. The role of labour institutions in law enforcement and international cooperation” – has included studies, meetings, and investigations aimed at strengthening the law enforcement abilities of the Government officials concerned. It further notes that, according to the Government, from June 2004 to May 2006, the courts in the country sentenced 118 offenders for the crimes of forcing employees to work and engaging child labour for dangerous or heavy work. The Government adds that the quality of the trials in these cases was monitored according to the criminal procedural law. In addition, the relevant Government bodies, the section for minors’ protection of the Communist Youth League and the trade unions, all pay great attention to such trials.

The Committee considers 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 reminds 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. It requests 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. The Committee also requests the Government to take the necessary measures to ensure that persons who force children under 18 years of age to work are prosecuted and that effective and dissuasive penalties are applied. It finally requests the Government to continue providing information on any relevant impact of the “Forced labour and trafficking. The role of labour institutions in law enforcement and international cooperation” project on strengthening the law enforcement abilities of the Government officials concerned.

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 notes the ICFTU’s allegation that, from August 2003 through the end of June 2004, police picked up 80,000 child beggars nationwide. However, the number of child beggars may be much higher. The village of Gongxiao has had professional beggars for decades, but began to use disabled children as a means of producing a greater return. Locals estimated that 60 per cent of Gongxiao’s residents beg with the help of disabled children. Farmers are often tricked into renting their children for 300-500 yuan a month, while a professional beggar’s income may be as much as ten times that of a farmer. The Committee notes the Government’s information that, in January 2006, the “Opinions on strengthening the work on adolescent vagrants” (MC[2006]11) have been jointly issued by 18 departments, including the Ministry of Civil Affairs, the Steering Unity on the Prevention of Juvenile Delinquency, and the All-China Women’s Federation. This document spells out the duties of various departments and organs in combating the phenomenon of child begging and protecting and rehabilitating homeless or begging minors. According to this document, the public security organs should severely attack the criminal acts of organizing, manipulating and inciting minors, especially disabled minors, to commit such unlawful acts as tramping or begging. They should also, when they discover homeless or begging children, rescue them during anti-crime operations, immediately escort such children to centres for homeless minors and help the organs in charge to identify them. The educational administration should be responsible for the education of homeless minors and minors who have been repatriated to their places of origin for resettlement. The department of labour protection should be responsible for vocational training programmes for homeless minors. The judiciary department should emphasize the principles of giving priority to the interest of the minors in dealing with cases involving the rights of homeless minors, while the security organs, the Office of the Public Prosecutor and people’s courts should severely pursue and punish those who organize, manipulate and abet the minors, especially disabled minors, to tramp and beg. The Committee requests the Government to provide information on any relevant results of the measures applied by the abovementioned organs on protecting child beggars and homeless children from the worst forms of child labour and providing for their rehabilitation and social integration.

Article 8. International cooperation. Trafficking. The Committee notes with interest the Government’s information that it adopted a number of measures aimed at strengthening cooperation with neighbouring countries in order to combat trafficking in women and children. As an example, China-Viet N am anti-trafficking cooperation has carried out campaigns on the prevention of trans-border trafficking and endeavoured to raise the anti-trafficking consciousness of the law enforcement officers. The following results have been achieved: (a) the setting up of large bulletin boards at the major thoroughfares and entry ports; the distribution of anti-trafficking materials and artefacts; the conduct of a number of campaigns, in order to raise the anti-trafficking awareness of the population of the Sino-Vietnamese border area; (b) the organization of joint training courses in Thailand, Viet Nam and China for law enforcement cooperation against trafficking; (c) the exchange of information on a continued basis between the public security organs of China and Viet Nam; (d) meetings between criminal investigations and public security organs of China and Viet Nam; (e) a two-month long special operation against the trans-border trafficking in women and children organized by the Ministry of Public Security and involving the public security forces of the two border provinces of Guangxi and Yunnan. The Committee notes the Government’s information that this operation succeeded in: cracking 38 cases involving the trafficking in Vietnamese women and children or forcing the Vietnamese women to engage in prostitution; rescuing 132 trafficked Vietnamese women and children; capturing 53 suspected criminals (among whom 20 were Vietnamese suspects); crushing 15 criminal gangs; and repatriating 115 Vietnamese women and children. The Committee requests the Government to continue providing information on the implementation of anti-trafficking agreements to eliminate the trafficking of children and the results achieved.

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