Cómo aumentar la eficacia de la IDE

Member States of the U.S. need to comply both with federal legislation222 and with any international treaties ratified by the U.S.223 However, that does not apply to either the Minimum Age Convention or the CRC, which still await ratification. As mentioned earlier, the only International Instruments relating to children the U.S. has ratified are the ILO Worst Forms o f Child Labour Convention and the two Optional Protocols to the CRC. In addition, the U.S. has undertaken to implement the Stockholm Agenda for Action.

Despite the participation of the United States in the two world conferences on Commercial Sexual Exploitation of children at Stockholm and Yokohama,224 the United States has failed to formulate a national plan of action to combat the commercial sexual exploitation of children.225 Activities aimed at combating CSEC are as yet

222 States have the constitutional power of passing stricter child labour provisions than the federal ones, therefore where stricter, the standard of the state where a child is in employment prevails, FLSA, s. 218:29 C.F.R. ss 570.50(a), 570.129.

223 The relationship between federal and state law has been cited as an obstacle to the ratification of multilateral human rights treaties, Stentzel, L. L. II. (1990). 'Federal-State Implications of the Convention'. Children's Rights in America: U.N. Convention on the Rights of the Child Compared with United States Law. C. Price Cohen and H. A. Davidson, American Bar Association Center on Children and the Law and Defense for Children International-USA, p. 57. According to the Supremacy Clause of the Constitution (Art. VI,

§2) treaty laws and federal laws would be of equal weight. It has been argued that a limited number of reservations or declarations would be needed only where U.S.

provisions differ from those of the CRC, Limber, S. P. and B. L. Wilcox (1996) 'Application of the U.N. Convention on the Rights of the Child to the United States.' American Psychologist vol. 51(12),December 1996, pp. 1247, 1250, whilst the state-federal complication of the 'adoption of a treaty by central government (which would be] binding on its constituent units for international law purposes' could be resolved by a 'federal-state' clause, Stentzel, L. L. II (1990). 'Federal-State Implications of the Convention', p. 57.

224 "The United States is very proud of its record of addressing the commercial sexual exploitation of children at both the federal and state levels. Even prior to the Stockholm Conference, all of our 50 states and territories had laws outlawing child pornography, prostitution, and exploitation, Malcolm. J. G. (Deputy Assistant Attorney General Criminal Division, United States Department of Justice) (2001 ). Opening Session Statement.

Second World Congress on the Commercial Sexual Exploitation of Children, Yokohama, December 17-20, 2001 http://www.usdoj.gov/criminal/ceos/2WC_Opening_Statemt.pdf, P 2.

225 Ecpet International (2001 ). Five Years alter Stockholm; The Fifth Report on the Implementation of the Agenda for Action adopted at the First World Congress against Commercial Sexual Exploitation of Children In Stockholm, Sweden, 28 August 1996.

Bangkok, Ecpat International, http://www.ecpat.net, pp. 67-68, confirmed by Ecpat 140

limited to the publication of reports of prostitution and trafficking of children,226 which U.S. practices.231 However, the complacent attitude of the U.S. Government has been questioned. For instance, a comment from the Tripartite Advisory Panel on International Labor Standards, that no change in U.S. practices would be necessary, has been challenged by Human Rights W atch.232 Even within the U.S. Administration,

International (2001-2002). 6th ECPAT Report on the Implementation of the Agenda for Action against the Sexual Exploitation of Children, http://www.ecpat.net/eng/index.asp.

226 Ecpat International (2001 ). Five Years after Stockholm; The Fifth Report on the Implementation of the Agenda for Action adopted at the First World Congress against Commercial Sexual Exploitation of Children in Stockholm, Sweden, 28 August 1996, p. 69.

227 Communication from the Executive Director of Ecpat-USA, 19“’ May 2003.

226 The U.S. and Mexican proposals ignored it altogether“, Ecpat International (2001-2002).

Ecpat Report on the Implementation of the Agenda for Action against the Commercial Sexual Exploitation of Children (2001-2002). http://www.ecpat.ent, p. 19. Also; " No one in this country, even teachers, people who work with youth, empowerment, etc. talk about the CRC or the Optional Protocol," communication from the Executive Director of Ecpat-USA, 20/05/2003.

229 'Ratification of New York Treaties against the Sale, Trafficking, and Prostitution of Children and against the Use of Children In Combat1 (Senate - June 21, 2002); ratified 23/12/2002.

236 'Current United States law and practice satisfy the requirements of Convention No. 182.

Ratification of this Convention, therefore, should not require the United States to alter In any way its law or practice in this field' Removal of Injunction of Secrecy-Treaty Document No. 106-5 (Senate - August 05, 1999), Congressional Record S10533.

See also comment from the Tripartite Advisory Panel on International Labor Standards:

'after a thorough legal review, it has been determined that ratification of Convention 182 would not in any way require a change In current United States law and practice'. Yet it is applicable to cases of juvenile prostitution and trafficking of children to the U.S., both which are known to occur, see e.g.

http://www.stopchildlabor.org/USchildlabor/childlaborUS.htm.

231 DECLARATION

(2) except as described In the reservation in section 2

-(A) 'Current United States law, Including the laws of the States of the United States, fulfils the obligations of the Protocol for the United States, and (B) accordingly, the United States does not intend to enact new legislation to fulfil its obligations under the Protocol, Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography-Treaty Document No. 106-37B - (Senate - June 18, 2002).

232 "That there would be no need for the U.S. government to formally consult with worker and employer organizations to Identify, where the worst forms of child labor exist (as required by Article 4(2)) because "(ejmployer and worker organizations, along with the general

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its has been recognised, that present practices are inadequate, as shown by a Department of Justice estimate of the extent of CSEC in the U.S.233 Neither the ratification of the ILO Convention nor the Optional Protocols has received any attention in the California Congress. In addition, any publicity concerning the ratification of the optional Protocol has been minimal among NGOs engaged in combating the sexual and economic exploitation of children.234

Comparison o f domestic law with provisions o f the CRC

The failure by the U.S. to accede to the CRC has on several occasions motivated American lawyers to compare domestic law with the provisions of the CRC.235 With a few notable exceptions, the contributors to a 1990 collection of essays, edited by Cohen and Davidson, concluded that ratification of the CRC would advance the cause of children. It was argued, for instance, that serious shortcomings in U.S.

social policy has resulted in deprivation, lack of basic health coverage and a crisis in education, resulting in the 'cultural illiteracy' of many young people.236 Although 'U.S.

public, have regular access to the Department of Labor and other government agencies,'' Report of the Tripartite Advisory Panel on International Labor Standards, p. 20, cited by Human Rights Watch, http://www.hrw.org/reports/2000/frmwrkr/frmwrk006-06.htm, footnote 1.

233 "At least 100,000 children involved in the sex trade in the United States in any given year,"

quoted in the Senate on the occasion of acceptance of the Optional Protocols, 'Ratification of New York Treaties against the Sale, Trafficking, and Prostitution of Children and against the Use of Children in Combat' -- (Senate - June 21,2002); See also Reeves, T. 'Harvest of Danger: The Child Farmworker in the United States.' Human Rights Brief; A Legal Resource for the International Human Rights Community vol. 8(2),

http://www.wcl.american.edu/hrbrief/08/2childfarmwork.cfm concerning the failure of U.S.

labour law to protect children working in agriculture.

334 With the exception of Ecpat-USA, the websites of leading NGOs in the field, such as the Child Labor Coalition, and Children of the Night, make no mention of the ratification of the Optional Protocol 'On the Sale of Children' (last visited 21/05/2003).

236 Cohen, C. and Davidson, Eds. (1990). Children's Rights In America: UN Convention on the Rights of the Child compared with United States Law. Washington, American Bar Association; American Bar Association (1998). ‘ABA Briefing Paper: Project on the U.N.

Convention on the Rights of the Child.' Georgetown Journal on Fighting Poverty, Summer, 1998, pp. 241-249; Limber, S. P. and B. L. Wilcox (1996). 'Application of the U.N.

Convention on the Rights of the Child to the United States'.

236 Bitensky, S. H. (1990). 'Educating the Child for a Productive Life'. Children's Rights In America: U.N. Convention on the Rights of the Child Compared with United States Law. C.

Price Cohen and H. A. Davidson, American Bar Association Center on Children and the Law end Defense for Children International-USA., p. 167. For a definition of cultural literacy, see Hirsch, E. D. (1987). Cultural literacy: what every American needs to know.

Boston, Houghton Mifflin, p. xili.

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education law was found to be largely consistent with Arts. 28 and 29 of the CRC, the paper on education draws attention to several legal obstacles, such as the lack of 'recognition of a right to education', which might conceivably be used to exclude undocumented children. Bitensky also argued that ratification would promote the 'perception of the U.S. as a nation fully-committed to educating its children'.237

The contribution to the volume by Cohen and Davidson on the subject of economic exploitation claimed, that ratification would not make any difference, as U.S child labour legislation already met the standards of the CRC.238 This view ignores the fact, that child work in the entertainment industry, agriculture and newspaper delivery is not subject to any restrictions, whilst also glossing over the sexual exploitation of juveniles239 and abuses in agriculture.240 The author discussing the compatibility of American provisions in the field of 'rest and leisure' in the same volume, which acknowledged the interdependence of Arts. 28, 31 and 32,241 reported U.S.

compliance with the CRC concerning leisure time and night-rest.242 In this case 'leisure' was conceived as a function of the available leisure activities, such as access

237 Bitensky, S. H. (1990). 'Educating the Child for a Productive Life', p. 183.

238 Boskey, J. B. (1990). 'Preventing Exploitation of the Child'. Children's Rights In America:

U.N. Convention on the Rights of the Child Compared with United States Law. C. Price Cohen and H. A. Davidson, American Bar Association Center on Children and the Law and Defense for Children International-USA. p. 314.

239 Weisberg, D. K. ( 1985). Children of the Night: a study of adolescent prostitution.

Lexington, Lexington Books; Flores, R. (1996). Overviews of Child Prostitution: Child Prostitution In the United States. Forced Labour: the Prostitution of Children; Symposium co-sponsored by the US Department of Labor, Washington US Department of Labor, http://www.usis.usemb.se/chlldren/Child_Labor3.PDF.

240 Taylor, R. B. (1973). Sweatshops In the sun: child labour on the farm. Boston, Beacon Press; Human Rights Watch (2000). Fingers to the Bone: United States Failure to Protect Child Farmworkers, ed. Lee Tucker. Human Rights Watch.

http://www.hrw.org/reports/2000/frmwrkr/.

241 Guggenheim, M. (1990). 'The Child's Access to Diverse Intellectual, Artistic and Recreational Resources'. Children's Rights In America: U.N. Convention on the Rights of the Child Compared with United States Law. C. Price Cohen and H. A. Davidson, American Bar Association Center on Children and the Law and Defense for Children Intemational-USA, pp. 290, 295

242 Guggenheim. M. (1990). ‘The Child's Access to Diverse Intellectual, Artistic and Recreational Resources', p. 295, citing N.Y. Ed. Law §§ 3215-3230 which prohibits work for sixteen-year olds between midnight and 6 a.m. See, however, Section 7.6.2. ’Night rest.

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to television or engaging in organised leisure pursuits.243 However, the paper did not ask, whether the material on offer was of social and cultural benefit to the child244 nor did it comment on the highly commercialised nature of many of the TV programmes.245 Reports to Treaty Bodies

The first U.S. report to the CEACR (ILO Committee of Experts on the Application of Conventions and Recommendations), submitted at the end of year 2002, was preceded by a report from the International Confederation of Free Trade Unions (ICFTU). The ICFTU report drew attention to the extent of illegal child labour in the U.S., the underfunding of the labour inspectorate and levels of fines too low to deter abuse, based on a Federal Government survey from 1997.246 The Government questioned the validity of the ICFTU report of the estimates of children working illegally, due to lack of high-quality data for children below fourteen. Apart from the Government's response to the ICFTU's allegations, the report provides an overview of the existing child labour and health and safety legislation. The CEACR criticised U.S.

practice of legally permitting children to working in agriculture at younger ages, in more hazardous occupations, and for longer periods than in other industries. Another criticism from the CEACR concerned the fact, that children do not fall under the protection of the 'hazardous occupations orders' relating to the employment of children younger than sixteen, when working on farms owned by their parents.247