Prioridad Aplicativa del Convenio de Empresa: Artículo 84 ET

The Trafficking Protocol is a supplement to the United Nations Convention against Transnational Crime. Due to this connection, the scope of application of the child trafficking definition in the Trafficking Protocol is restricted to transnational child trafficking in the context of organized crime carried out by at least three or more persons.96

Article 4 of the Trafficking Protocol states that the Protocol shall apply “where those offences are

transnational in nature and involve an organized criminal group” (emphasis added).

As this Protocol supplements the United Nations Convention against Transnational Organized Crime and is meant to be interpreted together with the Convention97,the meanings of the terms “transnational” and “organized criminal group” are found in Articles 2(a) and 3.2 of the

Convention.

Article 2(a) of the Convention states that an “organized criminal group shall mean a structured group of three or more persons, existing for a period of time and acting in concert with the aim of committing one or more serious crimes or offences established [by] the Convention [or Trafficking Protocol], in order to obtain, directly or indirectly, financial or other material benefit” (emphasis added).

96

Alice Edwards, ‘Traffic in Human Beings: At the Intersection of Criminal Justice, Human Rights, Asylum/Migration and Labor’, (2007) 36 Denv. J. Int'l L. & Pol'y 9, 15.

97

Article 1 of the Trafficking Protocol and Article 37.4 of the UN Convention against Transnational Organized Crime.

31

Article 3.2 of the Convention provides that an offence is transnational in nature if: (a) It is committed in more than one State;

(b) It is committed in one State but a substantial part of its preparation, planning , directing or control takes place in another State;

(c) It is committed in one State but involves an organized criminal group that engages in criminal activities in more than one State; or

(d) It is committed in one State but has substantial effects in another State.(emphasis added)

Thus, transnational trafficking of children involves the movement of children between countries of origin, transit and destination. The 2008 UNICEF publication, Child Trafficking in Europe, A Broad Vision to Put Children First, provides definitions for these terms: 98

(i) Country of origin

Country where a person is first recruited or abducted for trafficking. Usually, it is the home country of the trafficked person but it also may be the country of residence or the country to which the trafficked person has migrated before being recruited by traffickers.

(ii) Transit country

Country through which the trafficking route leads, for geographic or logistic reasons, before reaching the destination country.

(iii) Country of destination

Country to which a trafficked person is brought for the purpose of exploitation.

However, the trafficking of children from one place to another is not only transnational but can also happen within borders. The same 2008 UNICEF publication provides a definition of this process described as “internal trafficking”:

“Trafficking which occurs within a country’s own borders and the country is considered both a country of origin and destination.”99

98

UNICEF, Child Trafficking in Europe, A Broad Vision to Put Children First (2008) at 9.

99

32

This type of trafficking is not a minor issue. In fact, the internal trafficking of children is an increasingly rampant phenomenon. For instance, in Sierra Leone, it has been reported that a “significant proportion of...trafficked persons appear to be trafficked internally, primarily from rural areas to towns and cities.”100 In China, it has been reported that there is a “significant” number of internally trafficked children for sexual and labour exploitation estimating from 10,000 to 20,000 each year.101 Also, there are reports that there are more indications of an increase of internal trafficking within the Western Balkans.102

Internal trafficking of children is increasing because it involves less risk compared to transnational child trafficking. Internal trafficking reduces the opportunity and ability of law enforcement to identify victims to subsequently detect the trafficker.103 Also, there is less expense involved in the transportation of the child when the trafficking is within a country’s borders and there is also no need to provide false travel and/or identity documents for the victim.104 Therefore, internal trafficking is a growing concern and even more so when it is often not recognized as trafficking, as in Sierra Leone.105

A 2005 UNICEF assessment of child trafficking in Sierra Leone found that there was much

confusion amongst civil society, government and the population in general over what did and did

100

Rebecca Surtees, Child Trafficking in Sierra Leone (2005) UNICEF at 22

<http://www.nexusinstitute.net/publications/pdfs/Child%20Trafficking%20in%20Sierra%20Leone.pdf> accessed at 21 June 2011.

101

China, HumanTrafficking.org <http://www.humantrafficking.org/countries/china> accessed at 21 June 2011.

102 _{Trafficking of Women and Children for Sexual Exploitation in the EU: The Involvement of Western}

Balkans, Organised Crime (2006), EUROPOL at 6

<http://www.europol.europa.eu/publications/Serious_Crime_Overviews/Western_Balkans_THB_Threat_As sessment.PDF> accessed at 21 June 2011.

103

Trafficking of Women and Children for Sexual Exploitation in the EU: The Involvement of Western Balkans, Organised Crime (2006), EUROPOL at 6

<http://www.europol.europa.eu/publications/Serious_Crime_Overviews/Western_Balkans_THB_Threat_As sessment.PDF> accessed at 21 June 2011.

104

Trafficking of Women and Children for Sexual Exploitation in the EU: The Involvement of Western Balkans, Organised Crime (2006), EUROPOL at 21

<http://www.europol.europa.eu/publications/Serious_Crime_Overviews/Western_Balkans_THB_Threat_As sessment.PDF> accessed at 21 June 2011.

105 _{Rebecca Surtees, Child Trafficking in Sierra Leone (2005) UNICEF at 21}

<http://www.nexusinstitute.net/publications/pdfs/Child%20Trafficking%20in%20Sierra%20Leone.pdf> accessed at 21 June 2011.

33

not constitute trafficking.106 Many of the reported cases of sexual assault, street children and child labour were also cases of child trafficking but were not recognized as such whereas many cases of migration were classified as trafficking cases even where there was no clear evidence of exploitation.107 Various surveys also revealed that the general population, even those who are more likely to have had encounters with child trafficking experiences, have limited knowledge on what constitutes child trafficking.108 This confusion and limited knowledge is even more

pronounced when it comes to the internal trafficking of children as it does not involve any aspect of migration or border-crossing.

Also, internal traffickers of children are less likely to be organized crime groups and are more likely to be smaller groups or individual perpetrators.109 As discussed in chapter one, these perpetrators can even include family members.110

Therefore, there is arguably a strong need for a change when it comes to defining child trafficking, both transnational and internal. The fact that the Trafficking Protocol definition of child trafficking omits internal trafficking and fails to recognize that children could be trafficked by one or two persons, including family members, is a major weakness. The harm that arises from the trafficking of children is just as destructive to the victims and to society, no matter whether it is done by individual traffickers or organized criminal groups, internationally or internally. Therefore, regardless of the number of perpetrators involved and whether the trafficking was internal or international, the international law regime’s definition of child trafficking should encompass these types of child trafficking.111 The Trafficking Protocol’s restricted scope of application to

106

Rebecca Surtees, Child Trafficking in Sierra Leone (2005) UNICEF at 21

<http://www.nexusinstitute.net/publications/pdfs/Child%20Trafficking%20in%20Sierra%20Leone.pdf> accessed at 21 June 2011.

107 _{Rebecca Surtees, Child Trafficking in Sierra Leone (2005) UNICEF at 21}

<http://www.nexusinstitute.net/publications/pdfs/Child%20Trafficking%20in%20Sierra%20Leone.pdf> accessed at 21 June 2011.

108

Rebecca Surtees, Child Trafficking in Sierra Leone (2005) UNICEF at 21

<http://www.nexusinstitute.net/publications/pdfs/Child%20Trafficking%20in%20Sierra%20Leone.pdf> accessed at 21 June 2011.

109

Trafficking of Women and Children for Sexual Exploitation in the EU: The Involvement of Western Balkans, Organised Crime (2006), EUROPOL at 21

<http://www.europol.europa.eu/publications/Serious_Crime_Overviews/Western_Balkans_THB_Threat_As sessment.PDF> accessed at 21 June 2011.

110 _{Refer to Chapter One at 1.2.1} 111

Ann D. Jordan, The Annotated Guide to the Complete UN Trafficking Protocol, May 2002 (Updated August 2002) 13.

34

transnational trafficking by organized criminal groups limits the effectiveness of the Trafficking Protocol in addressing internal trafficking in children.