The phrase “Exploitation is to be identified by State Parties in accordance with Article (insert) of this Convention” is included as an obligation in this definition to ensure that this definition of child trafficking is adaptable to country-specific child trafficking situations. The phrasing of the current definition of child trafficking in the Trafficking Protocol, where a non-exclusive list of acts
constitute “exploitation” is given at the end after the definition, implies that the listed
exploitative acts are only meant to function as examples of forms of exploitation and not to oblige individual States to identify or criminalize those forms of exploitation. However, the differences between trafficking in children and trafficking in adults, as discussed in Chapter 1, necessitates that the definition of child trafficking ensures that individual States identify the forms of exploitation children are trafficked for in order for these States to formulate appropriate responses. The words “in accordance with Article (insert) of this Convention” is to provide a timeline for States to carry out this particular obligation by tying this with their reporting obligation, as discussed later on in this chapter as part of the new enforcement system established by a new international agreement.
Notably, it is difficult to identify every single form of exploitation that children are trafficked for. Even so, the fact that there is an obligation for such identification in the new definition of child
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trafficking will not only assist States in the appropriate implementation of anti-child trafficking measures but also will assist in the correct identification of victims, situations of child trafficking and the subsequent prosecution and punishment of perpetrators.
In sum, the new definition of child trafficking is not written for the singular purpose of criminal justice, as is the current definition, but it is also written to protect the victims of child trafficking. Also, by adopting a definition of child trafficking separate from the definition of the trafficking in adults, the international community will send a strong message to all those perpetrating the trafficking in children that this phenomenon will no longer be tolerated; perpetrators will be punished and victims will be protected. Additionally, the new definition addresses the complexity of the phenomenon by being adaptable to country-specific situations of child trafficking, thus allowing targeted efforts to be made against each unique type of child trafficking. Therefore, this new definition which was modified accordingly in response to the discussions earlier will serve well in a new international agreement established specifically to address child trafficking and all its related issues. Even so, this new definition is just the first step to combating child trafficking effectively. The new international agreement must also contain provisions which establish stronger prevention, protection and punishment measures than those currently existing.
6.2 New and Improved Obligations
The trafficking in children should no longer be treated as an afterthought to the trafficking in adults, especially in the promotion and providence of prevention and protection measures. Continuing in this manner will have increasing detrimental effects on the victims of child
trafficking as the trafficking in children continues to grow in number and intensity. Therefore, the current patchwork system, which forces States to draw from different instruments to establish a regime combating child trafficking, is a weak response to the severity of the phenomenon. This is exemplified in the problems of national implementation of current international obligations addressing child trafficking, discussed in Chapter 4. These problems are not unique to any one individual State. Instead, they reflect the weaknesses of the existing patchwork framework of international law set up to combat child trafficking.
A new holistic international agreement focused specifically on child trafficking will not only send out a strong message to perpetrators that there is a global effort to eradicate the trafficking in children, but will also bring together all the existing patchwork pieces in the current international
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law regime combating child trafficking and create a new structure with strengthened, targeted purposes resolving all the existing gaps. Therefore, there must first be an acknowledgement of existing relevant treaties and soft law instruments in order to avoid overlaps, clashes or confusion when individual States attempt to implement their new obligations. This acknowledgement should be in the form of a provision stating that the provisions in this new international agreement shall prevail over any inconsistencies with other prior existing international instruments where it concerns the trafficking in children.416
In addition to this acknowledgement and to the establishment of a new definition of child trafficking, there should also be established new and improved provisions or obligations. These new provisions will be discussed in three separate sections: the prevention of child trafficking; the protection of the victims of child trafficking; and the punishment of the perpetrators of child trafficking. It must be noted that these new provisions or obligations are merely a starting point from which this new treaty must be developed and thus this discussion is focused upon the key obligations to be established. To improve the prevention of child trafficking, the establishment of a strong network of international collaboration to enhance border control systems and
relationships with non-governmental organizations (NGOs), in replacement of the current
discretionary obligations pertaining to international cooperation and communication, is essential. The establishment of provisions which further define current idealistic principles relating to the human rights of children for better national implementation into national asylum systems, rehabilitation and protection services is also necessary. Additionally, this new international agreement must include new provisions for more effective punishment measures through the establishment of a standard for penalties to be imposed upon perpetrators and universal jurisdiction. Lastly, a financial mechanism must be established by this new treaty to assist developing country States in fulfilling their obligations under this new treaty.