CONFIGURACIÓN FINAL Y DESARROLLO DE LA IDEA para su utilización práctica.

As indicated earlier, international human rights treaties could also impose certain obligations in relation to the protection of trafficking victims‟ rights.279

International human rights law generally supports a relatively higher standard of protection and support for trafficked children, a standard that takes into account their special vulnerabilities, rights and needs. The obligation to protect victims of trafficking, for example, can be inferred from a general duty to secure, ensure, or restore rights, and to provide remedies.280 Perhaps the most significant advantage that a human rights approach offers is the ability to hold States accountable for how they treat their nationals and other individuals under their control.281 Addressing child trafficking as a human rights issue has appeared in a variety of legal instruments of varying binding effect, at both international and regional levels. The discussion below demonstrates how the development of a human rights approach to trafficking has helped in setting much higher

277 _{ibid guideline 3.9.1.} 278 _{ibid guideline 3.7.} 279 Obokata (n 138) 391 and 396. 280 _ibid.

281 _{Elizabeth Bruch, „Models Wanted: The Search for an Effective Response to Human Trafficking‟ (2004) 40}

standards than those contained in the Trafficking Protocol, and thus formulated new State obligations with respect to child trafficking.

In the context of the protection of child victims of trafficking, Article 2 of the CRC is very important because it allows positive action to be taken in relation to particularly disadvantaged or vulnerable groups,282 of which trafficked children are included. Furthermore, Article 3(1) emphasises the principle of acting in the „best interests of the child‟. In General Comment No 6, the CRC Committee considered the application of the „best interests‟ principle in the context of unaccompanied or separated children (a group that can be expected to include most if not all child victims of trafficking).283 From the Islamic perspective, one of the main principles of the OIC Child Covenant is to „attach high priority to the rights, interests, protection, and development of children‟.284

Article 16 of the OIC Covenant provides for the care of a disabled child or one with special needs, including education, rehabilitation and training; providing medical, psychological, social and educational services to enable him/her to be integrated into society.285 A trafficked child can be included under such group. Therefore, all rights are applicable to them.

There are a number of provisions that are directly relevant to the protection of child victim of trafficking, such as Articles 32, 34, 36 and 39. These provide protection to children from economic, sexual or any other kinds of exploitation, and further recognise the right of children to physical and psychological recovery and social reintegration in cases where they have been subjected to exploitation or abuse. Similar provisions are provided by the OIC Child Covenant. Articles 15, 17 and 18 provide for the same rights under the CRC. In this sense, Islamic States, which have all ratified the CRC, are not only under an international legal duty but also under a religious obligation to respect and ensure children rights guaranteed under both conventions. In broad sense, this demonstrates that the international instrument (CRC) and the regional instrument (OIC Covenant) are both compatible, in terms of child victims protection.

The CRC Committee, in the light of the abovementioned articles, has made many references to child trafficking in the recommendations and observations of its reports to States Parties. Among the comments in relation to the protection of victims, there are recommendations

282 _{CommRC, „General Comment No 5, General measures of implementation of the CRC‟ UN Doc}

CRC/GC/2003/5.

283 _{CommRC, „General Comment No 6‟ UN Doc CRC/GC/2005/6, para 19-22.} 284 _{OIC Covenant (n 146) art 3(3).}

for States Parties to strengthen their efforts to identify the trafficking of children: „[e]stablish an effective screening process to identify child victims of trafficking; and ensure that they are neither detained nor deported and that they are provided with adequate recovery and social reintegration services and programmes‟.286

It is worth noting that such provisions are missing in the Trafficking Protocol.

The aforementioned General Comment No 6 on the treatment of unaccompanied and separated children who are outside their country of origin provides important guidance which is relevant to child victims of trafficking.287 To begin with, unaccompanied children are those children „who have been separated from both parents and other relatives and are not being cared for by an adult who, by law or custom, is responsible for doing so‟.288

Similarly, separated children are the ones „who have been separated from both parents, or from their previous legal or customary primary caregivers, but not necessarily from other relatives‟.289

The Committee has clearly recognised in this general comment that child trafficking is one of many dangers faced by unaccompanied or separated children, and that this crime is a threat to the fulfilment of their right to life, survival and development. The Committee continues by stating that „the appointment of a competent guardian who considers and implements the best interests of an unaccompanied or separated child is essential,290 and urges the States to appoint one accordingly.291 Further, CRC General Comment No 6 provides that:

[I]n developing policies on unaccompanied or separated children, including those who are victims of trafficking … States should ensure that such children are not criminalized solely for reasons of illegal entry or presence in the country.292

This provision, which is missing in the Trafficking Protocol, recognises that victims of human trafficking require protection rather than prosecution due to their unwilling involvement in criminal activities. As noted in the previous chapter, this is also one of the basic principles of Islamic law.

286 _{CommRC, „Concluding Observations: Oman‟ (24 June 2009) UN Doc CRC/C/OPSC/OMN/CO/1, para 30;}

CommRC (n 282) para 96.

287

CommRC, „General Comment No. 6, in Notes by the Human Rights Treaty Bodies‟ (8 May 2006) UN Doc HRI/GEN/1/Rev.8, 407. 288 _{ibid 411, 7.} 289 ibid 8. 290 _{CommRC (n 283) para 21.} 291 _{ibid para 33.} 292 _{ibid para 62.}

Moving on to the protection provisions contained in the CRC OP on Sale of Children, it requires States to adopt appropriate measures to protect the rights and interests of child victims at all stages of the criminal justice process under Article 8, which include:

(a) Recognising the vulnerability of child victims and adapting procedures to recognise their special needs, including their special needs as witnesses;

(b) Informing child victims of their rights, their role and the scope timing and progress of the proceedings and of the disposition of their cases;

(c) Allowing the views, needs and concerns of child victims to be presented and considered in proceedings where their personal interests are affected, in a manner consistent with the procedural rules of national law;

(d) Providing appropriate support services to child victims throughout the legal process; (e) Protecting, as appropriate. the privacy and identity of child victims;

(f) Providing, in appropriate cases, for the safety of child victims, as well as that of their families and witnesses on their behalf from intimidation and retaliation;

(g) Avoiding unnecessary delay in the disposition of cases and the execution of orders or decrees granting compensation to child victims.293

The OP on Sale of Children requires that appropriate training, in particular legal and psychological training, be given to people who are to work with child victims of trafficking and exploitation.294 In addition, States must take all feasible measures to provide all appropriate assistance to victims.295 States must also provide adequate procedures to victims in order to enable them to claim, without discrimination, compensation for damages from those legally responsible.296

Considering the above analysis, it is evident that the wide gaps in the Trafficking Protocol, with respect to protection and assistance to child victims of trafficking, can be filled by the CRC and its OP on Sale of Children provisions, and States Parties‟ implementation of these measures is monitored by the Committee of the CRC, unlike the Trafficking Protocol which does not have an independent monitoring mechanism at moment. Consequently, these instruments can contribute effectively towards improving the standard of protection contained in the Trafficking Protocol and monitor States‟ compliance with its provisions.

The standards developed by the ILO conventions supplement those of the human rights conventions discussed above and therefore they may contribute to shape the protection framework to which the victims of child trafficking are entitled. This is especially as the aim of the ILO Minimum Age Convention is to protect children from abuse and exploitation. This

293 _{CRC OP on Sale of Children (n 187) art 8.} 294 _{ibid art 8(4).}

295 _{ibid art 9(3).} 296 _{ibid art 9(4).}

Convention has often been referred to in relation to the protection of child labourers from exploitation and hazardous activities.297 In addition, under Convention No 182, States Parties shall design and implement programmes of action to eliminate child engagement in the worst forms of child labour.298 Article 7 is important as it not only obliges States to prohibit these practices but also to implement measures for the prevention and protection of children. States Parties shall adopt measures to prevent the worst forms of child labour, taking into consideration the important role of education, provide assistance to remove children from a condition of exploitation and guarantee their rehabilitation and social integration.299 States Parties shall also ensure access to free basic education and, whenever possible, to vocational training of all the children illegally employed in the worst forms of child labour. They shall identify those children who are at risk and take into special consideration the situation of girls.300

The Committee of Experts on the Application of Conventions and Recommendations (ILO Committee),301 which monitors the implementation of ILO instruments, has made important observations with regard to the „3P‟ obligations that specifically relate to child trafficking and exploitation. In respect to victims‟ protection, for example, the Committee expressed its concern regarding Oman‟s „lack of assistance provided to child victims of trafficking, and asked the government to take measures which include repatriation, family reunification and support for former child victims of trafficking, in cooperation with the child‟s country of origin‟.302 The Committee also asked Bahrain to strengthen its efforts in providing the

necessary and appropriate direct assistance for the identification and removal of child victims of trafficking, and for their rehabilitation and social integration.303 These comments show some example of relevant protection obligations imposed upon States under the ILO Conventions

297 _{Rachel Hodgkin and Peter Newell (eds), Implementation Handbook on UN Convention of the Child (UNICEF}

1998) art 32, 427-431.

298 _{ILO Convention No 182 (n 209) art 6.} 299 _{ibid art 7(2)(a) and (b).}

300

ibid art 7(2)(c), (d) and (e).

301 _{ILO Constitution (adopted 1 April 1919, entered into force 28 June 1919) art 22 states that: „Each of the}

Members agrees to make an annual report to the International Labour Office on the measures which it has taken to give effect to the provisions of Conventions to which it is a party. These reports shall be made in such form and shall contain such particulars as the Governing Body may request.‟

302 _{ILO, „Direct Request (CEACR): Oman‟ (adopted 2009)}

<http://www.ilo.org/dyn/normlex/en/f?p=1000:13100:0::NO:13100:P13100_COMMENT_ID:2310578> accessed 2 April 2015.

303 _{ILO, „Direct Request (CEACR): Bahrain‟ (adopted 2010)}

<http://www.ilo.org/dyn/normlex/en/f?p=1000:13100:0::NO:13100:P13100_COMMENT_ID:2333962> accessed 7 May 2015.

analysed above. It is clear that the ILO conventions‟ obligation in relation to child victims‟ protection complements the Trafficking Protocol.

Having identified States‟ obligations under international human rights treaties, it is now useful to turn the focus to the relevant instrument at the regional level. Although the Arab Charter on human rights does not explicitly refer to protection and assistance for victims of trafficking, it contains a number of provisions that can be applied in these cases. For instance, the right to life;304 the right to liberty and security;305 the right to privacy;306 and Article 12 provides that everyone has „the right to seek a legal remedy before courts of all levels‟.307

The Charter also provides for the right of victims to compensation.308 Another important provision regarding the child‟s best interests is provided by Article 33(3).309

The Arab Committee established under the charter, which monitors the implementation of the charter among State Parties, has expressed its concerns in relation to action against human trafficking and the protection of its victims. For example, it stressed the importance of victims‟ protection and the need to amend the Anti- Trafficking Law No 51 of 2006 of the UAE to include a comprehensive protection framework for victims of trafficking.310 It can be observed that the Arab Charter incorporates the international standards, for instance, Article 33 reflects Article 8 of the CRC OP on Sale of Children.311 This shows that there is no conflict between international law and regional law when it comes to child trafficking. In this sense, it appears that children rights are protected under both international and regional human rights standards. Therefore, States must meet their obligations and ensure that such rights are guaranteed at the national level for all child victims, including those victims of human trafficking.

To summarise the protection section, it is observed that international human rights treaties as well as regional ones clearly complement the provisions of the Trafficking Protocol aimed at child victims‟ protection. Additionally, it is also clear that there are not conflict between international law and regional law when it comes to child trafficking. It is also noted that both

304 _{Arab Charter (n 98) art 5.} 305 ibid art 14. 306 _{ibid art 2.} 307 _{ibid art 12.} 308 _{ibid art 8(2).} 309 _{ibid art 33(3).}

310 _{AHRC, „Concluding Observations: UAE‟ (Session 5, 21-26 December 2013) para 14.} 311 _{CRC OP (n 187) art 8(3).}

are in compliance with Shariah. Therefore, Islamic States should fully implement their provisions.