Trafficking in human beings: human rights and ... - unesdoc - Unesco

epresent confusion or disagreement. Each international instrument relates to the place
the organisation of reference occupies in the international multilateral structure — be it
a crime-focused or rights focused body. As a result, what might at fi rst seem an uneven
handling of traffi cking issues across organisations is actually more a question of approach
and context than a difference of intent. 274 Historically the traffi cking debate has focused
on distinctions between a criminal and a human rights/protection-based approach. The
Protocol confi rms the need to recognize these as being essential rather than exclusive, and
that both preventive and responsive activities need to be linked and integrated in order
to combat traffi cking.
Pertinent to traffi cking of women and children the convention calls on states to take appropriate
measures against all forms of traffi cking in women.
The Convention on the Rights of the Child and its OPII contains very relevant articles on traffi cking.
The explicit protection against traffi cking in the CRC is found in Article 35 Art 35 provides that
“States Parties shall take all appropriate, national, bilateral and multilateral measures to prevent the
abduction of, the sale of or traffi c in children for any purpose or in any form”. The article does not
elaborate the terms but the words “for any purpose or in any form” suggest that it is to be interpreted
broadly. The responsibil ity for taking measures to avoid traffi cking is placed clearly on the State,
which implies a State responsibility if it does not succeed in prosecuting offenders, thus making
the international obligation applicable at the “traffi cker-level”. In accordance with Article 35 States
Parties should take appropriate measures to prevent such traffi cking. Necessary measures include
identifying unaccompanied and separated children; regularly inquiring as to their whereabouts; and
conducting information campaigns which are age-appropriate, gender-sensitive and in a language and
medium that is understand able to the child. Adequate legislation should also be passed and effective
mechanisms of enforcement be established with respect to labour regulations and border crossing.
This implies that Ar ticle 35 obliges States to prevent traffi cking not only with criminal measures,
but with a full range of rights-based measures. Article 2 of the Optional Protocol to the Convention
on the Rights of the Child on the sale of children, child prostitution and child pornography, (OP II)
which has entered into force as part of the CRC for the ratifying States helps clarify the defi nition of
traffi cking in Article 35, defi ning the sale of children as “...any act or transaction whereby a child is
transferred by any person or group of persons to another for remuneration or any other consideration”.
A very important article in this Pro tocol is Article 3, which provides that States Parties shall ensure the
defi nition of the following acts as a crime, irrespective of whether they are committed domestically
or trans-nationally, on an individual or organised basis: Offering, delivering or accepting, by whatever
means, a child for the purpose of Sexual exploitation of the child; Transfer of organs of the child for profi t;
Engagement of the child in forced labour. The OP II thus extends jurisdiction over adults involved in
the “sale” of children and it strengthens existing CRC provisions regarding the sexual exploitation of
minors. The Protocol only refers directly to child traffi cking in the Preamble, where it is said that States
Parties are “gravely concerned at the signifi cant and increasing international traffi c in children for the
purpose of the sale of children, child prostitution and child por nography”. Many forms of traffi cking
fi t into the defi nition of “sale of children”, and it must be borne in mind that very often the purpose
for which children are sold coincide with the pur pose for which they are traffi cked, which falls within
the scope of Article 2. Again States have to undertake all efforts to prevent or eliminate child traffi cking
on the basis of the CRC, and they can be held accountable for not doing so.
274 ILO and IPEC: Unbearable to the Human Heart – child traffi cking and actions to eliminate it. ILO
2002. p. 5.
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