The consequence of a patchwork framework of international law addressing child trafficking is that each international instrument has a restricted scope. Individual States face difficulties in their implementation of anti-child trafficking measures as they have to navigate a patchwork
framework where most of these instruments are not even concerned with child trafficking in particular. Moreover, the establishment of a holistic approach against child trafficking is hindered as each instrument is concerned with fulfilling one particular purpose, whether it is law
enforcement, the protection of human rights or others.
For instance, the Trafficking Protocol is primarily a law enforcement instrument, not a human rights instrument. Several factors contribute to this inference. First, the Trafficking Protocol is attached to the United Nations Convention against Transnational Organized Crime and falls under the responsibility of the United Nations Office on Drugs and Crime (UNODC).179 Also, the United Nations Crime Commission, a law enforcement body, developed this Protocol with the main purpose of targeting specific types of crime, evidenced by the fact that the Trafficking Protocol was established at the same time as the Protocol against the Smuggling of Migrants by Land, Sea and Air.180
178
Refer to Chapter One for more information and further discussion on the differences between trafficking in adults and children.
179
The website of the United Nations Office on Drugs and Crime can be found at <http://www.unodc.org> at September 20, 2010.
180 Protocol against the Smuggling of Migrants by Land, Sea and Air, (supplementing the United Nations
Convention against Transnational Organized Crime), G.A. Res. 55/25, Annex III, U.N. Doc A/Res/55/25/Annex III (Nov. 15 , 2000) [hereinafter Smuggling Protocol 2000].
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Furthermore, the first obligation of State Parties in the Trafficking Protocol is to criminalize the trafficking of human beings and recognize it as a serious and specific crime.181 Also, the inclusion of the definition of human trafficking in the Trafficking Protocol seems to read more like a criminal offense and not a human rights violation. Although the Trafficking Protocol does refer to the protection of the human rights of trafficking victims, the effect of its restricted scope is that trafficking victims are given protection under national law only when they assist in the criminal justice process.182 In addition, the Trafficking Protocol does not refer to other international instruments, such as the CRC, as support for the fulfillment of its purposes. Thus it can be argued that the Trafficking Protocol’s scope of application revolves solely around criminalization of trafficking in persons and the criminal justice process.
Most of the other international instruments, such as the CRC, OPSC, OPAC and the ILO C182, are not even particularly concerned with addressing issues from a child trafficking perspective. Even though the provisions in the CRC are used as guiding principles, by the Special Rapporteur on Trafficking in Persons, Especially Women and Children (SRT)183 and the UNHCR,184 in all works involving children, the CRC itself does not contain any provision which obligates States to protect the human rights of trafficked children. This diminishes the effectiveness of the CRC in the establishment and execution of anti-child trafficking measures when the CRC is primarily concerned with protecting the human rights of children in general and does not call for specific focus to the issues special to trafficked children.
In addition, the OPSC, OPAC and ILO C182 are concerned with the criminalization and prohibition of the different forms of exploitation of children. They are not specifically concerned with addressing exploitation resulting from and contributing to the increase of trafficking in children. For instance, neither the ILO C182 nor the OPAC even acknowledges the occurrence of the trafficking in children for the purposes of child labour and armed conflict. Notably, the OPSC does
181
Article 5 of the Trafficking Protocol 2000.
182 For instance, the United States offers protection and sanctuary to victims of trafficking via the
immigration system through the T-Visa but assistance to the criminal justice process is a condition attached to the grant of this visa.
183 International Standards, Special Rapporteur on Trafficking in Persons, Especially Women and Children,
Office of the United Nations High Commissioner for Human Rights accessed at
<http://www2.ohchr.org/english/issues/trafficking/standards.htm> at October 5, 2011.
184 Evaluation and Policy Analysis Unit, Meeting the Rights and Protection Needs of Refugee Children: An
Independent Evaluation of the Impact of UNHCR’s Activities, May 2002, United Nations High Commissioner for Refugees accessed at <http://www.unhcr.org/3cd6363aa.html> at October 5, 2011.
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acknowledge in its Preamble that the trafficking in children is a “contributing factor” to the sale of children, child prostitution and child pornography and that its increase is a “grave concern.”185 However this is only in the Preamble of the OPSC and does not form part of the obligations of States who are party to this treaty. Accordingly, measures which deal with the demand aspect of child trafficking would be hampered by the fact that these measures make no distinction between trafficked children and the rest of the children. As a result, the special needs and interests of children who are trafficked for these forms of exploitation would not be sufficiently addressed and data analysis, which is critical to the improvement of anti-child trafficking measures, would be even more inaccurate.
It is clear that the patchwork framework of international law does not benefit the fight against child trafficking because of the restricted scopes of most of the international instruments. The primary anti-trafficking treaty, the Trafficking Protocol, is primarily concerned with law
enforcement which results in its efforts to protect the human rights of trafficking victims being limited to such protection only given during the criminal justice process. Furthermore, as most of these instruments are not particularly concerned with child trafficking, the issues special to child trafficking victims are not adequately or effectively addressed. As a result, the holistic approach sought by international law against child trafficking is not successfully established.