Caso Perú: Tumbes accesible

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“Forced labour or services” is a reference to an ILO Convention (No. 29) adopted in 1930 to prohibit forced labour, whatever types of force are used or threatened. “Slavery or practices similar to slavery” and “servitude” refer to similar situations involving coercion. The UN’s

Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery (1956) prohibits various forms of ‘servile status’, notably debt bondage (also known as bonded labour), the practice of requiring someone to work to pay off a loan – when the value of their work greatly exceeds the value of the original loan. As migrant children or their families often seek a loan to finance their trip, this is a very common form of restriction imposed on people who are trafficked. Many trafficked children are told by their exploiters that they must continue working until they have paid off a debt which is said to have been incurred to whoever paid the costs of transporting them in the first place. In other cases, the parents of a child leaving home to work accept a payment for the child’s wages in advance, and it is this advance that ‘bonds’ the child to his or her employer.

The practice of bonded child labour is particularly common in South Asians countries, where there is little distinction between trafficking as now defined by the UN Trafficking Protocol and the recruitment of bonded children who are working away from home. The term ‘trafficking’ is still used in South Asia to refer primarily to cases of commercial sexual exploitation.

asylum, they set out a set of basic procedures to be followed in the cases of all unaccompanied children who come into the custody of law enforcement or other government agencies in a country other than their own and set a minimum standard by which children believed to have been trafficked should be treated. They cover issues such as identification, registration and document- ation, appointment of a guardian or adviser, initial inter- views, age assessment, interviewers, interpreters, consultation, confidentiality, tracking and keeping

statistics in considerable detail. They also suggest how the authorities should respond when children are

accompanied by an adult who is not their parent. On the question of assessing a person’s age and deciding whether to consider them under 18 years old, the Guidelines suggest that “The child should be given the benefit of the doubt if the exact age is uncertain” … “The guiding principle is whether an individual demonstrates an ‘immaturity’ and vulnerability that may require more sensitive treatment”.

UN High Commissioner for Human Rights’ Recommendations and Guidelines on Human Trafficking

In May 2002 the UN High Commissioner for Human Rights issued a set of Recommended Principles and Guidelines

several inter-governmental organisations representing particular continents or regions have adopted their own conventions and declarations on human trafficking. In the cases of the Organization of American States (OAS) and the Organization for African Unity (OAU), the precursor of today’s African Union, the provisions are important because they cover intercountry adoption as well as other forms of child trafficking

The OAS Inter-American Convention on International Traffic in Minors was adopted in March 1994 and entered into force in 1997. It defines international traffic in minors to in- clude “the abduction, removal or retention, or attempted abduction, removal or retention, of a minor for unlawful purposes or by unlawful means”. By considering all cases that involve “unlawful purposes” or “unlawful means” to be trafficking, this Convention clearly covers trafficking for adoption, where the aim may be legal but the means are fraudulent. However, so far the Convention has been signed or ratified by only 12 of the OAS’ 34 Member States and not by either Canada or the US, the main coun- tries in the OAS region receiving children for adoption, nor by many of the countries supplying children, such as El Salvador and Guatemala.

The OAU’s African Charter on the Rights and Welfare of the Child, adopted in 1990, deals with trafficking for both ex- ploitation and adoption. Article 24, dealing with adoption, requires governments to “take all appropriate measures to ensure that in inter-country adoption, the placement does not result in trafficking or improper financial gain for those who try to adopt a child”. Article 29 requires gov- ernments to prevent children from being victims of “Sale, Trafficking and Abduction” and also to prevent “the use of children in all forms of begging”.

INTERNATIONAL GUIDELINES ON HOW TRAFFICKED CHILDREN SHOULD BE TREATED

The international conventions and protocols mentioned so far in this chapter focus mainly on what should not hap- pen and what activities should constitute a crime in dom- estic law, but pay little attention to the rights that child- ren (or adults) have once they have been trafficked. In contrast, a great deal of attention has been paid by several UN agencies to the techniques and procedures necessary to ensure that the rights of children who find themselves alone in a foreign country are respected, both trafficked children and unaccompanied minors more generally.

UN High Commissioner for Refugees Guidelines

The UN High Commissioner for Refugees (UNHCR) is- sued a set of Guidelines on Policies and Procedures in dealing with Unaccompanied Children Seeking Asylum in 1997. While these focus especially on under-18-year-olds seeking

on Human Rights and Human Trafficking.38 _{These apply to}

both adults and children who are trafficked. Most of the 17 Principles recommended by the High Commissioner apply as much to children as to adults. They stress that “the human rights of trafficked persons” should be “at the centre of all efforts to prevent and combat traffick- ing, and to protect, assist and provide redress to victims” (Principle 1). They point out that care must be taken to ensure that anti-trafficking measures do not have an adverse effect on the human rights and dignity of either trafficking victims, or of other migrants, internally dis- placed persons, refugees or asylum-seekers.

Two of the Principles concern the action that govern- ments must take once children or adults are suspected of being trafficking victims. These provisions are rarely implemented at the moment. Principle 7 stresses that a person who has been trafficked should not be detained, charged or prosecuted for the illegality of their entry or residence in a country of transit or destination, or “for their involvement in unlawful activities to the extent that such involvement is a direct consequence of their situation as trafficked persons”. Principle 11 concerns the possible repatriation of adults or children who have been trafficked, stressing that their return to their country of origin must be safe and, if possible, voluntary. It stresses that if repatriation might pose a serious risk to them or their families (for example, if a trafficked child might fall back into the hands of her or his traffickers), they “shall be offered legal alternatives to repatriation”. Principle 10 focuses on children, insisting that “Their best interests shall be considered paramount at all times”. A more detailed Guideline spells out what this entails, emphasising that all agencies or institutions must make the best interests of the child their primary consider- ation when deciding on what to do with a child who has been trafficked, whether they are “public or private social welfare institutions, courts of law, administrative

authorities or legislative bodies.” Children who have been trafficked must “be provided with appropriate physical, psychosocial, legal, educational, housing and health-care assistance” and efforts must be made to protect their privacy and identity, notably “to avoid the dissemination of information that could lead to their identification”. Guideline 8 also addresses situations in which it may not be safe or possible for children to return home, or in their best interests to do so; in such cases governments and others are required to make “adequate care arrangements that respect the rights and dignity of the trafficked child”.

UNICEF’s Guidelines for Protection of the Rights of Children Victims of Trafficking

The UN’s specialist agency for children, UNICEF, has developed a set of Guidelines for Protection of the Rights of Children Victims of Trafficking concerned specifically with

trafficked children. These were drafted with respect to children trafficked in Southeast Europe and formally approved in April 2003 by an inter-governmental organisation focusing on Southeast Europe, the Stability Pact Task Force on Trafficking in Human Beings. While prepared with Southeast Europe in mind, the Guidelines themselves are of universal relevance. They cover 11 issues in considerable detail:

1. identification;

2. appointing a guardian for each trafficked child;

3. questioning by the authorities;

4. referral to appropriate services and inter- agency coordination;

5. interim care and protection;

6. regularisation of a child’s status in a country other than their own;

7. case assessment and identification of what is called a ‘durable solution’;

8. implementing a durable solution, including possible return to a child’s country of origin; 9. access for children to justice;

10. protection of the child as a victim and poten- tial witness;

11. and training for government and other agen- cies dealing with child victims.

Point 2 of UNICEF’s Guidelines calls for a guardian to be appointed for every child who is suspected of having been trafficked, in order “to accompany the child throughout the entire process until a durable solution in the best interests of the child has been identified and

implemented”. The Guidelines suggest the guardian should be present whenever police or law enforcement personnel question a child victim about their trafficking experience.39