Observación (CEACR) - Adopción: 2004, Publicación: 93ª reunión CIT (2005)

With reference to its previous observation, the Committee notes the comments provided by the Government in reply to the matters raised in the communication of the International Confederation of Free Trade Unions (ICFTU) dated 13 March 2002. With reference to its comments under the Forced Labour Convention, 1930 (No. 29), relating to the sale and trafficking of children for sexual exploitation, including prostitution, and as Article 3(a) of the Worst Forms of Child Labour Convention, 1999 (No. 182), provides that the term "the worst forms of child labour" comprises "all forms of slavery or practices similar to slavery, such as the sale and trafficking of children, debt bondage and serfdom and forced or compulsory labour", the Committee considers that the problem of the sale and trafficking of children for sexual exploitation, including prostitution, may be examined more specifically in the context of Convention No. 182. It requests the Government to provide information on the following points.

Article 1 of the Convention. Measures taken to secure the prohibition and elimination of the worst forms of child labour. The Committee notes that the elimination of the worst forms of child labour is one of the Government’s priorities. It notes that it is taking various measures, both at the legislative level and through technical cooperation, to eliminate the worst forms of child labour. It notes in particular that at the end of 1998 the Government established an inter-institutional commission composed of 30 government organizations and civil society with a view to adopting a National Action Plan to prevent and eliminate the commercial sexual exploitation of children. In November 2001, the Government developed a mechanism for national coordination in relation to the prevention, protection and elimination of the commercial sexual exploitation of children (ESCI). The Committee also notes the Government’s indication that an analysis of the legal framework covering the commercial sexual exploitation of children was undertaken in 2002. Based on this analysis, a Bill has been formulated. Furthermore, it notes that the possibility of adopting legislation on the use of young persons for prostitution and pornography was envisaged in 2003. Finally, since the ratification of the Convention, the Government has undertaken national campaigns to raise the awareness of the population, particularly in relation to child pornography and prostitution ("OPEN YOUR EYES" and "OPEN YOUR EYES, BUT DON’T STAY SILENT")and the trafficking of children. The Committee requests the Government to provide information on any progress achieved in relation to the adoption of the above Bill.

Article 3. Worst forms of child labour. Clause (a). Sale and trafficking of children for prostitution. In its observations under Convention No. 29, the Committee noted the comments of the International Confederation of Free Trade Unions (ICFTU) reporting the trafficking of women and young girls within the country and abroad for the purposes of forced prostitution. The Committee noted the Government’s indication that there is no other information supporting the generalizations made by the ICFTU and that it is not therefore possible to ascertain their truth.

The Committee noted that, according to a study carried out in six cities with the support of UNICEF, around 16,000 boys and girls are victims of commercial sexual exploitation. The objective of the study was to identify the role, scope and operational methods of networks of organized crime in the procuring, trafficking and exploitation of boys and girls. The Committee also noted the report submitted by the Special Rapporteur to the United Nations Commission on Human Rights (E/CN.4/2003/85/Add.2, of 30 October 2002) following an official mission carried out in Mexico. In this report, the Rapporteur expressed concern at the "corruption closely linked to transnational organized crime, and in particular gangs engaged in the trafficking and smuggling of persons". The Rapporteur also referred to the General Population Act under which sentences of imprisonment of up to ten years may be imposed and which can also be applied to victims of trafficking and smuggling. The Committee notes that, in its concluding observations on the second periodic report of Mexico in November 1999 (CRC/C/15/Add.112, paragraphs 30 and 32), the Committee on the Rights of the Child, while being aware of the measures taken by the Government concerning "repatriated children" (menores fronterizos), remained particularly concerned that a great number of these children are victims of trafficking networks which use them for sexual or economic exploitation. It also expressed concern about the increasing number of cases of the trafficking and sale of children from neighbouring countries who are brought to Mexico to be engaged in prostitution. In this respect, it recommended that the Government continue taking effective measures on an urgent basis to protect Mexican migrant children, to strengthen law enforcement and to implement its national programme of prevention. In an effort to combat effectively the inter-country trafficking and sale of children, the Committee on the Rights of the Child suggested that the Government increase its efforts in the area of bilateral and regional agreements with neighbouring countries to facilitate the repatriation of trafficked children and encourage their rehabilitation. It also endorsed the recommendations made by the Special Rapporteur on the sale of children, child prostitution and child pornography (E/CN.4/1998/101/Add.2) with regard to the situation of children living in border areas.

The Committee notes that section 205 of the Federal Penal Code provides for a sentence of imprisonment of from five to 12 years and a fine of from 100 to 1,000 days for any person who encourages, misleads or procures a person to be engaged in prostitution within or outside the national territory. Under section 366III of the Federal Penal Code, any person who deprives a young person under 16 years of age of her or his freedom with a view to removing her or him outside the national territory and obtaining gain from her or his sale or session shall be liable to a sentence of imprisonment of between 25 and 50 years and a fine of between 4,000 and 8,000 days. It also notes that, under section 366ter of the Federal Penal Code, any person who, with the consent of an ascendant exercising parental authority or an individual responsible for bringing up a young person, transfers illicitly the young person to a third party with a view to undue economic gain shall be liable to a sentence of imprisonment of between two and nine years and a fine of from 200 to 500 days. The Committee further notes that section 2V of the Federal Act against organized crime provides that, in cases where three or more persons agree or organize themselves to commit, permanently or repeatedly, acts for the purpose or with the result of the commission of the offences set out in section 366 (abduction) and section 366ter (trafficking of persons) of the Federal Penal Code shall be penalized as members of an organized group. Section 29 of the Federal Labour Act prohibits the use of young persons under 18 years of age for the provision of services outside the Republic.

The Committee draws the Government’s attention to the fact that, under the terms of Article 1 of the Convention, each Member which ratifies the Convention shall take immediate and effective measures to secure the prohibition and elimination of the worst forms of child labour in respect of persons under the age of 18 years. The Committee notes that section 366III of the Federal Penal Code covers young persons under 16 years of age. It also notes the Government’s indication that, with regard to section 366ter of the Federal Penal Code, the term "young person" means a person under 16 years of age. The Committee notes that, although the Government has adopted several measures to combat the sale and trafficking of children, particularly for sexual exploitation, the problem persists. Indeed, there is abundant information reporting the trafficking of persons, including persons under 18 years of age, for sexual exploitation. The Committee therefore requests the Government to increase its efforts to secure the protection of children against sale and trafficking for sexual exploitation, including prostitution. It also asks the Government to take the necessary measures to extend the prohibition of the sale and trafficking of young persons to all girls and boys under 18 years of age. It further requests the Government to provide information on the imposition of penalties in practice, by providing, among other information, reports on the number of convictions.

Clause (c). Use, procuring or offering of a child for illicit activities. In its communication, the ICFTU indicated that certain children are engaged in begging. The Committee recalls that, under Article 3(c) of the Convention, the use, procuring or offering of a person under 18 years of age for illicit activities, including begging, is considered to be one of the worst forms of child labour. The Committee notes that section 201 of the Federal Penal Code provides for a sentence of imprisonment of between three and five years and a fine of between 50 and 200 days for any person who compels or encourages another person to engage in begging. It requests the Government to provide information on the application in practice of section 201 of the Penal Code.

Clause (d). Types of hazardous work. In its communication, the ICFTU indicated that most working children are engaged in agriculture or in informal urban activities, such as trading. The Committee notes the study of the national system for the integral development of the family (DIF) undertaken in 100 cities in Mexico. This study shows that 114,497 young persons under 17 years of age work and live in the streets. It is estimated that, solely in the city of Mexico, a city which is not covered by the study, there are 140,000 young persons working in the streets. The study adds that 90 per cent of the girls, boys and young persons working in the streets, markets, transport terminals, squares, parks and kiosks work on their own account and provide for the subsistence of their families.

The Committee notes that, in its concluding observations on the second periodic report of Mexico in November 1999 (CRC/C/15/Add.112, paragraphs 30 and 32), the Committee on the Rights of the Child, while welcoming the fact that measures have been taken for the elimination of child labour, noted with concern that economic exploitation remains one of the major problems affecting Mexican children. It expressed particular concern that only "street children" are categorized as "working children". It considered that this misconception affected the scope and perception of this social phenomenon. In this regard, it expressed particular concern that a large number of children are still involved in labour activities, especially in the informal economy and in agriculture, as well as at the insufficient law enforcement and the lack of adequate monitoring mechanisms. The Committee on the Rights of the Child recommended that the Government reconsider its position regarding the issue of child labour. The situation of children involved in hazardous labour, especially in the informal sector, deserves special attention. It also recommended that the legislation on child labour should be enforced, the labour inspectorate strengthened and penalties imposed in cases of violation.

The Committee notes likewise that, under the terms of sections 7, 8 and 20, among others, of the Federal Labour Act, the Act only applies to relations between employers and workers. The Committee considers that children working on their own account, such as street children, could be at special risk. It is very concerned at the number of working children in the agricultural sector, in informal urban activities, such as trading, and those working on their own account. It therefore requests the Government to provide information on the measures taken or envisaged to ensure that young persons under 18 years of age working on their own account, such as street children, are not engaged in types of work which, by their nature or the circumstances in which they are carried out, are likely to harm their health, safety or morals. It also requests the Government to provide a copy of the study on working girls, boys and young persons carried out by the DIF.

Article 6. Programmes of action to eliminate the worst forms of child labour. 1. Commercial sexual exploitation. The Committee notes that the national system for the integral development of the family (DIF) has taken measures to provide assistance to girls, boys and young persons who are victims of commercial sexual exploitation and to eliminate this phenomenon. For example, the National Coordination Unit for the Prevention and Elimination of the Commercial Sexual Exploitation of Children has been established. A Plan of Action for the prevention and elimination of the commercial sexual exploitation of children has also been formulated. Furthermore, a Bilateral San Diego/Tijuana Committee to address this problem was created in November 2001. The Committee notes the progress and action taken by the Government, and particularly the formulation by the Ministry of Labour and Social Insurance, in collaboration with ILO/IPEC, of a Programme of action to combat the commercial sexual exploitation of children and to protect victims of this form of exploitation. The Programme commenced on 30 September 2002 and will be completed on 31 March 2005. The Committee requests the Government to provide information on the activities of the Bilateral San Diego/Tijuana Committee. It also requests it to provide information on the impact of the Programme of action to combat the commercial sexual exploitation of children and to protect victims of this form of exploitation and the results achieved.

2. Various programmes to prevent and eliminate child labour in the marginalized urban sector. The Committee notes the Government’s indication that the Ministry of Labour and Social Insurance has implemented various programmes to prevent and eliminate child labour in the marginalized urban sector and daily work by young persons in the agricultural sector, including the Programme of assistance and prevention for boys, girls and young persons living in the streets; the Programme to prevent, address and eliminate child labour in the marginalized urban sector; and the Programme for compliance with the rights of girls and boys who are children of daily workers in the agricultural sector and for the prevention of child labour (PROCEDER). The Committee requests the Government to provide information on the impact of these programmes in eliminating the worst forms of child labour, and particularly the manner in which they ensure that young persons under 18 years of age working on their own account, such as street children, are not engaged in the worst forms of child labour.

Article 7, paragraph 2. Effective and time-bound measures. Clause (a). Prevent the engagement of children in the worst forms of child labour. In its communication, the ICFTU indicated that the Government, in cooperation with UNICEF, has undertaken to address the problem of child labour, particularly in the urban informal economy, by facilitating access to education. In 1992, the number of years of compulsory schooling rose from six to nine. Nevertheless, the scope of the problem remains immense. At the present time, only six out of ten children complete their elementary education. The ICFTU referred to a report by the national education administration indicating that 1.7 million children of school age are unable to receive education as poverty makes it imperative for them to work. The ICFTU also indicated that, in the specific case of indigenous children, access to education is difficult as teaching is normally provided only in Spanish and many indigenous families only speak their mother tongue. Child labour is relatively higher among the indigenous population than in non-indigenous groups.

The Committee notes the information provided by the Government. It notes in particular that the Ministry of Public Education is developing various strategies and actions to promote greater equity in education. Among others, it has implemented the Programme for the education of migrant girls and boys and the Programme to encourage innovation in basic education. Furthermore, it envisages educational assistance for street children. The Government adds that the Ministry of Social Development, in the context of the "Contigo" strategy, has developed the "Opportunities" social and human development programme. This programme adopts the approach that, to prevent school failure and engagement in the worst forms of child labour, it is necessary, among other measures, to provide children and young persons living in conditions of poverty with free and full access to education and to health services. The "Opportunities" programme recently extended its coverage to urban areas so as to emphasize child labour in the informal economy. According to recent evaluations, the "Opportunities" programmehas contributed, through the provision of grants, to decreasing child labour by 14 per cent for boys and 15 per cent for girls.

The Committee also notes that, under the terms of article 3 of the Constitution, every person is entitled to receive an education. The State - the federation, the states, the federal district and the municipalities - has to provide pre-school, primary and secondary education, which constitutes the compulsory basic education. It also notes that under article 3 of the Constitution and section 6 of the General Education Act, the education provided by the State is free of charge. Furthermore, under section 22 of the Federal Labour Act, it is prohibited to employ young persons between 14 and 16 years of age who have not completed their compulsory schooling.

The Committee takes due note of the efforts made by the Government in the field of education, which appear to have resulted in a decrease in child labour. The Committee is of the view that education contributes to eliminating the worst forms of child labour. It encourages the Government to continue its efforts in this field and requests it to provide information on the effective and time-bound measures taken to ensure that access to basic education and vocational training is used as an effective means of preventing the engagement of children in the worst forms of child labour. The Committee also requests the Government to provide additional information on the "Opportunities" programme and to supply statistical data on the school attendance rate in Mexico.

Clause (b). Assistance for the removal of children from the worst forms of child labour. The Committee notes that one of the four strategic components of the Programme of action to combat the commercial sexual exploitation of children and to protect victims of this form of exploitation is to provide direct assistance to 300 boys, girls and young persons who are victims of commercial sexual exploitation or at risk in the cities of Acapulco, Guadalajara and Tijuana. Furthermore, special measures are envisaged for the families of these 300 children. The Committee requests the Government to provide information on the impact of this programme on the rehabilitation and social integration of the children following their removal from work.

Article 8. Enhanced international cooperation and/or assistance. The Government indicates that, with a view to combating the trafficking of young persons and the commercial sexual exploitation of children, the national central Office of Interpol in Mexico, attached to the Federal Investigation Agency of the Attorney-General of the Republic, exchanges information with the member States of the Organization relating to the identification and location of young persons, the criminal records of foreign nationals involved in illicit activities involving young persons in Mexico and the provisional detention of nationals who have committed offences and are to be extradited. It adds that the General Directorate for the Prevention of Crime and Community Services of the Attorney-General of the Republic is also taking measures to combat the trafficking of young persons and the commercial sexual exploitation of children. With a view to locating lost or absent boys, girls and young persons more easily, the Directorate distributes identification cards and establishes community collaboration committees to prevent the trafficking of young persons and their commercial sexual exploitation. The Government adds that the World Bank has financed several programmes, including projects on basic education (1999-2001). Noting the information provided by the Government, the Committee requests it to provide further information on technical cooperation projects, including support for social and economic development, poverty eradication programmes and universal education, as well as bilateral and international cooperation relating to the trafficking of children.

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