The urgency for a more comprehensive and rights-based response to child trafficking has been demonstrated not least by findings of GRETA in 2015: when analysing the biggest gaps in anti-trafficking efforts in Europe from 2011–2014, identifying and assisting child victims ranked as the number one challenge, with 89% of 35 countries urged to address child trafficking immediately.10
The ongoing struggle with definitions
Despite the adoption of the Palermo Protocol11 in 2000, and the “euphoria of securing an internationally agreed-upon definition”,12 many legal and practical matters remain to be fully considered. The definition in Article 3 of the Protocol follows a three element approach, consisting of: an action (e.g., recruitment, transportation); the use of supportive means (ranging from deception, to abuse of power or vulnerability, to threat/use of force, and abduction); with an intention to exploit a person, explaining that:
Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.13
Regarding children, a significant distinction has been made. The drafters of the Protocol basically considered any moving of children into exploitation as child trafficking;14 with legal capacity of children considered limited in general, Article 3(c) has removed the entire second ‘means’ element:
The recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitation shall be considered “trafficking in persons” even if this does not involve any of the means set forth in subparagraph (a) of this article.15
Other international and regional instruments adopted subsequently followed this approach, including the 2005 Council of Europe Convention on Action against Trafficking in Human Beings, the 2011 EU Directive 2011/36/EU on preventing and combating trafficking in human beings and protecting victims, and, most recently, the 2015 ASEAN Convention Against Trafficking in Persons, Especially Women and Children.16
However, this reduced two-element only variant of the trafficking definition in the case of children leads to difficulties in defining the scope of child trafficking because, in general, the distinct concept of trafficking entails a focus on creating and maintaining situations of dependency – either through deceit, or brute force, or any other means of manipulation of the free will of a person – in order to make exploitation possible. While the Palermo Protocol’s trafficking definition declares any consent to the intended exploitation given from the side of the victim irrelevant,17 the ‘means’ element of the general definition nevertheless remains an important factor in establishing the offence in relation to the trafficker’s side, requiring a prosecutor to prove that the perpetrator has actually employed one of the means listed in Article 3(a) to create such a situation of dependency, allowing for the exploitation of the person. However, by skipping the entire second ‘means’ element in the case of children, this important indicator of a trafficking-enabling situation of dependency is lost. Now, does any recruitment of children to work at factories and farms, or any form of child labour, constitute child trafficking?18 Should online grooming in chat-rooms be considered child trafficking? How can we prevent inflationist interpretations of child trafficking, which blur the lines further between exploitation and violence against children, or which might lead to criminalisation of marginalised groups, and thus make the identification of underlying causes and appropriate responses even more difficult?19
It is against this background that commentators have voiced concerns about an “overly broad interpretation of the definition of trafficking, designed to take advantage of the political and legal momentum around this issue for purposes of advancing a particular policy agenda”.20 Gallagher, for instance, refers to “pornography” as one such example, which should not by default be considered simply as another form of trafficking.21 Not all practices that involve exploitation should necessarily be treated as trafficking.
Consequently, a restrictive interpretation of child trafficking is advocated here, based on the rights of the child at stake. Child trafficking can be understood as preparatory actions for the exploitation of children – the recruitment/movement of children with exploitative intention which receives a penalty; the exploitation of children, itself, usually carries its own, separate penalty, and this distinction should be maintained. If children are sexually abused and exploited through pornographic images taken and distributed, then it should be called that: sexual abuse and exploitation – not trafficking. If children are forced to work in quarries, it should be called forced labour and a worst form of economic exploitation/child labour of children – not trafficking. However, the more criminal energy has been invested by perpetrators into the creation of a situation of dependency, the more investigations should be directed towards establishing the offence of child trafficking.
Taking the current Palermo Protocol definition of child trafficking, both the action element and the exploitative purposes element should be used as entry points for such restrictive interpretation. Concerning actions, particular attention should be paid to child-focused patterns of bringing children into situations of dependency, e.g., recruitment of unaccompanied children in the context of migration or of faking romantic relationships.22 As far as types of exploitation are concerned, emphasis should be on intentions regarding serious forms of exploitation. As Gallagher has asserted, “[m]ost activists and scholars appear to accept the validity of some kind of a ‘seriousness’ threshold”23 as a first indicator to draw a line between trafficking-related exploitation and other, less severe, forms of exploitation of children, such as child labour. Accordingly, Dottridge and Jordan recommend focusing on the worst situations:
The definition should not suggest that all children recruited into child labor … or that all children recruited into any of the worst forms of child labor are ‘trafficked’. Without condoning other harmful situations in which children work, confine the use of the term ‘trafficking’ to the most abusive cases, in which the appropriate remedy is to move the child or adolescent out of the control of the abuser, rather than to improve the young person’s working conditions.24
Guidance for interpretation can be taken from the examples listed in the trafficking definition itself. This may include cases “in which a child accepts money or any other consideration in return for acts of sex and passes this on to another person who thereby exploits the child’s prostitution”;25 other possible forms of sexual exploitation, such as early/forced marriage; exploitation through forced labour, which would include “forced or compulsory recruitment of children for use in armed conflict”;26 slavery and slavery-like practices, including bonded labour of children; and trafficking of children for the removal of organs. Article 2(3) of the 2011 EU Anti-Trafficking Directive explicitly includes forced begging and forced criminality (e.g., exploiting children through the commission of petty crimes or involvement in drug dealing) within its definition of ‘exploitation’. Such focus on more serious forms of child exploitation to qualify as trafficking allows for setting apart these cases from situations of lesser forms of exploitation (and preparatory acts thereto), such as minor infringements of regulations on youth employment/vocational training (which should, nevertheless, of course be addressed by labour courts or through administrative sanctions).
Some controversy exists on the question of to what extent illegal inter-country adoption of children may constitute trafficking of children. This may, however, only be the case in situations when, for instance, young pregnant mothers below the age of 18 are transferred for the sale and adoption of their baby by third parties,27 or if the adoption has the purpose of exploiting the adopted child sexually or through forced labour.28 In other cases, where existing international29 and domestic standards on adoption are violated, they should be treated as such breaches, possibly leading, however, also to questions concerning the ‘commodification’ and ‘sale of children’.
I
n this regard, further clarification in relation to child trafficking is needed as well. In 2000, the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution, and child pornography was adopted (OPSC). Article 2 defines “[s]ale of children” as: “any act or transaction whereby a child is transferred by any person or group of persons to another for remuneration or any other consideration”. Here, the focus lies not on further exploitation, but on the immediate personal gain – the remuneration for the transfer of a child to another person – which links it to slavery-like situations: i.e., exerting ownership rights over human beings. Clearly, trafficking and the ‘sale’ of children are inter-related but distinct phenomena, and, while recruitment of children for exploitation may constitute child trafficking, it may take place without the ‘sale’ of the child.30
A distinct child rights-based framework for anti-trafficking responses
The complexities at stake clearly demonstrate that anti-trafficking responses must reach beyond migration control or crime prevention. Instead, an approach protecting the human rights of children provides for a comprehensive framework to address child trafficking.31
General human rights principles of universality, indivisibility, interdependence, and interrelatedness of rights lay the foundation for a holistic application of these rights to trafficked children. Trafficking is not something happening just between private individuals, criminal groups, or exploitative companies unrelated to State concerns – on the contrary, international law provides for clear State obligations in respect of trafficked persons.32 This includes obligations to respect human rights, e.g., refraining from interference with the integrity, personal liberty, and privacy of trafficked persons; obligations to fulfil those rights in relation to the right holders, e.g., through setting up appropriate structures and mechanisms for identification and assistance for trafficked persons; and obligations to protect individuals from interference with their rights by other individuals, especially through the establishment of a framework to criminalise trafficking and to effectively investigate such cases.33 A rights-based approach follows a double strategy of empowering right holders to benefit from their rights, and building capacity for the duty bearers to effectively be held accountable.
Child rights and trafficking on the international level
The international cornerstone for child rights protection is marked by the UN Convention on the Rights of the Child (CRC) of 1989.34 Entering into force already less than one year later, it has been ratified now by all countries in the world except the USA. Whatever the bleak contrasting reality in practice, this near-universal acceptance of the Convention still not only means commitment (and accountability) of States, but also adds critical legitimacy to child rights-based interventions, including when responding to child trafficking.
The CRC starts from the recognition of children as distinct bearers of human rights, irrespective of the status of parents or other legal guardians. As mentioned earlier, a ‘child’ is defined as any person below the age of 18 (Article 1, CRC). Still, this is no homogeneous social group, and all policies and actions need to be adapted to their age and development, while taking into account other crosscutting dimensions, such as gender. Moreover, child-specific assistance needs may not suddenly disappear when a person reaches 18 years of age; thus, child rights principles should inform the general human rights framework even beyond the CRC age limit.
On child trafficking, the CRC contains only a rather general provision: Article 35 obliges parties to “take all appropriate national, bilateral and multilateral measures to prevent the abduction of, the sale of or traffic in children for any purpose or in any form”. Considering the context of this norm (Articles 32–36 deal with forms of exploitation), Article 35 acts as a “fail-safe” and additional “double-protection” provision,35 addressing, specifically, movement (“traffic”)36 as well as ‘commodification’ aspects (“sale”) of exploitation of children.37 In addition, Article 19, CRC links exploitation to safeguards on prevention and protection from violence against children, calling for a comprehensive child protection system. Furthermore, the CRC has been complemented by the OPSC,38 with specific standards on criminalisation of these practices, investigation, mutual legal assistance, and international co-operation, as well as protection rights to assistance, safety, and privacy. Apart from the exploitation-focused provisions, the CRC contains a broad range of rights covering civil, political, economic, social, and cultural rights of children, offering trafficked children access to adequate accommodation, health, including recovery from trauma, and education, as well as protection of their personal integrity and liberty.39
In terms of interpretation of child rights standards, the UN Committee on the Rights of the Child, as its independent expert monitoring body, has declared four General Principles40 as relevant for an understanding of all CRC provisions, including the Optional Protocols: Article 6, on the right of the child to life and full development of the child’s personality and capacities; Article 2, prohibiting discrimination against children; Article 3(1), declaring the “best interests of the child” to be “a primary consideration” in “all actions concerning children” undertaken by any State or private institutions; and Article 12(1), complementing this principle by providing for direct involvement of children in such best interests determination. This child right to participation41 may be regarded as the anchor and entry port for concepts of agency and self-organisation of children, underlining the empowering and emancipatory potential of children’s rights.42 The UN CRC Committee recommends that children’s expertise “should be considered in decision-making, policymaking and preparation of laws and/or measures as well as their evaluation”.43 The recent EU Study on High-risk Groups for Trafficking in Human Beings also advocated to “[s]trengthen the voice of the child (Article 12 CRC) within all services and support systems for children, and particularly those who fall within the high-risk groups for trafficking”, including through training for professionals and funding for testing of child protection systems.44 Similarly, research could benefit from stronger direct involvement of (former) trafficked children, which remains rather an exception in the field of trafficking.45 At the same time, any participation of children having undergone traumatic experiences of trafficking and exploitation must be based on clear ethical guidelines and child safeguarding standards.46
Child rights-based anti-trafficking standards in the regions
Only to a very limited extent have rights-based binding standards on child trafficking been established regionally. In Asia, no human rights anti-trafficking treaty exists; those established follow instead the Palermo Protocol approach, covering prevention and protection, but without individual entitlements.47 The 1999 African Charter on the Rights and Welfare of the Child offers general child rights standards. Article 29 covers “sale, trafficking and abduction”,48 closely modelled along Article 35 of the CRC, with two noteworthy differences: it makes explicit mention of parents or legal guardians as potential perpetrators of these offences; and it addresses the prevention of the use of children in begging. The Arab Charter on Human Rights addresses trafficking in Article 10, prohibiting it both in the context of slavery and of forced labour.49 In the Americas, the Inter-American Convention on International Traffic in Minors was adopted in 1994.50 Without granting individual rights, the focus lies on co-operation of authorities – trafficking being considered only in its cross-border dimension (“international traffic”), defined as: “the abduction, removal or retention, or attempted abduction, removal or retention, of a minor for unlawful purposes or by unlawful means”.51 Interestingly, and unique in comparison to other anti-trafficking treaties, this convention not only deals with “penal aspects”, but also with “civil aspects” of co-operation. For this purpose, Central Authorities have to be designated, for communication on cross-border co-operation regarding locating and returning children to the country where they “habitually reside”.
In Europe, s
everal organisations have made trafficking in persons, including children, a key matter of political concern, especially the EU, the Council of Europe, the OSCE,52 and the Council of the Baltic Sea States.53 Only the first two have developed legally binding standards relevant to child trafficking. EU Directive 2011/36/EU54 aims to specifically improve victim assistance, including of trafficked children. The trafficking definition follows the Palermo Protocol model, but explicitly also includes exploitation through forced begging and criminal activities. In relation to children, Article 13 refers to the best interests of the child as overall guidance; furthermore, the Directive addresses age assessment, child-focused standards for protection and assistance, child participation, guardianship, and further provisions specifically on unaccompanied children, child victim protection at court, and prevention of child trafficking.55 There are no provisions on residence status, as this has been left to be dealt with only by the earlier Directive 2004/81/EC56 –which, however, makes such residence permits for third-country nationals dependent on their willingness to co-operate with police, which in practice often creates obstacles for trafficked persons seeking assistance.57 Moreover, the 2004 Directive led to inconsistent application in relation to trafficked children. On the policy level, child trafficking is also addressed in the EU Strategy towards the Eradication of Trafficking in Human Beings (2012–2016) –Action A.3 asks for the creation of child protection systems for trafficked children and model standards for guardianship, for instance.58
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