Claim by International Commission of Jurists that Portugal had failed to properly supervise child labour; Interpretation on prohibition of child labour; nature of States’ obligations under European Social Charter; use of statistics as evidence; adequacy of measures taken by State; previous consideration of matter by Committee in periodic reporting procedure.
The International Commission of Jurists (ICJ) alleged that a large number of children in Portugal (estimated at 200,000 children) worked in poor conditions that affected their health. The ICJ claimed that Portugal was violating article 7(1) of the European Social Charter (ESC) by failing to properly supervise child labour. The government disputed the ICJ’s statistics, claiming a maximum of 27,000 children worked and only 2,500 children were paid workers and employed in contravention of the Charter. It noted the measures it had taken to prevent child labour and defended the work of its Labour Inspectorate. The European Committee of Social Rights (Committee) found the complaint admissible and that the situation was not in conformity with the Charter. According to the Committee, the Charter’s prohibition on child labour relates to all work by children, in all economic sectors and types of enterprises, including family businesses, whether paid or not. The only exception is prescribed light work’ which States are obliged to define or, at the very least, draw up a checklist. The Committee also noted its previous findings in the supervision cycle where it established the maximum working hours for children. The Committee welcomed Portugal’s strict legislation – all work by children under 15 is illegal. But on the Government’s own statistics they observed (i) several thousand children performed work in breach of the Charter and Portuguese law (ii) a significant number who did unpaid work worked in sectors, such as agriculture, that naturally gave rise to heavy types of work; and (iii) the duration of the work was frequently excessive. The Committee also found that 2,745 visits to enterprises by the Labour Inspectorate, revealing 191 cases of children working, was modest.
Keywords: International Commission of Jurists v Portugal, No. 1/1998, Labor, Rights
The Committee of Ministers, which is empowered to make recommendations on the basis of the Committee’s legal findings, concluded slightly differently and considered that their previous recommendation, emanating from the supervision cycle, was still in force and recalled that Portugal will present in its next report the measures taken. The Committee then examined the matter again during the XV-2 Supervision Cycle and noted that Portugal had amended the Constitution to prohibit employment of school children, increased the minimum age for employment, legislatively defined light work, strengthened sanctions, increased inspection visits and adopted a plan to eliminate exploitative child labour. But the Committee found though that there was insufficient evidence of the prohibition being applied in practice. In 2005, a Portuguese diplomat to the UN pointed out during a working group discussion that the case had helped the country better tackle the problems of child labour and that the incidence of prohibited child labour had fallen dramatically: from 6.3 instances per 1000 children to 0.05 instances per 1000 in 2003
The case has been referred to frequently in the subsequent case law of the European Committee on Social Rights, particularly the statement that the aim and purpose of the Charter, being a human rights instrument, is to protect rights not merely theoretically, but also in fact’ (para. 32). Nathalie Prouvez, the lead advocate for the ICJ, commented that the case was important since it was not a narrow case; it went beyond traditional labour rights’. The Committee case also established the principle that cases that raised issues covered in the general supervision process were admissible.
Claimant and Advocate: International Commission of Jurists 81A, avenue de Châtelaine – P.O. Box 216 CH-1219 Châtelaine/Geneva – Switzerland Tel : +4122 979 38 00 Fax : +4122 979 38 01 or 04 Email: icj@icj.org Website: www.icj.org Intervener European Trade Union Confederation (ETUC) 5, Boulevard Roi Albert II B-1210 BRUSSELS BELGIUM +32-2-2240-411 Fax: +32-2-2240-454 or +32-2-2240-455 E-mail: ETUC@ETUC.ORG Web: www.etuc.org
