The Effectiveness of the Convention on
the Rights of the Child
- Examined through a legal assessment of Ghana’s implementation of Article 35 concerning Child Trafficking.
Viktoria Tomsson
Swedish title: Effektiviteten av barnkonventionen – undersökt i en rättsvetenskaplig studie av Ghanas implementering av Artikel 35 avseende barnhandel.
Area of Law: Public International Law Master thesis (30 ECTS)
Forewords
This dissertation was part of a minor field study conducted in Ghana, during the months of february-april. Before I chose the topic of this essay, I knew that I wanted to broaden my perspective in human rights. I was fascinated by the fact that human rights, despite its universal approach in many treaties, is interpreted and implemented so differently in practice, from state to state. I wanted to find out the prevalent reasons for these differences in practice, and to explore what in fact makes a convention effective in the first place. That was when I decided to apply for a scholarship at the organization SIDA. I was one of the lucky one’s who received the scholarship, got the chance to attend a preparatory course for the field study in Härnösand, and made a dream come true.
“Knowledge is power,” my beloved grandparents used to say. “With knowledge you can change structures, old norms, and live in a humble presence.” My grandparents are not alive today. But the greatness of their words, and their indisputable love for learning, have followed me until today. In fact, both were well-respected academics in their field. Thank you for always motivating me, dear grandparents. You will always be a part of who I am and what I do. The same goes for my entire family; my mother, father, other grandmother, my sisters and my brothers. Thank you for encouraging me throughout the whole process at law school. Thank you for always bringing me chocolate and support in the late hours, while I was writing this thesis to the end.
And of course; thank you my beloved friends, colleagues and supervisor – Per Ahlin, who have all motivated me throughout the whole process, reminding me the importance of always having someone to exchange ideas with. A special thanks to my Ghanaian friend: Joseph Joses Adom Junior, with whom I have travelled along many roads in Ghana, in order to find the right material to the thesis. You have shown unconditional support throughout the whole journey. In all honesty, I could not expect nor imagine to find such a loyal friend before I arrived in Ghana. Together, we recognized the urgent need to help child victims of trafficking and so, we even started our own charity foundation – Adwoa Brago Foundation.
Abstract
Sammanfattning
Syftet med denna uppsats är att undersöka i vilken utsträckning barnkonvent-ionen (CRC) kan utgöra ett effektivt instrument för en stats ändamål att avskaffa barnhandel. Ett bakomliggande syfte med studien är att utreda vilka faktorer som gör en konvention effektiv generellt sett. Studien baseras på en rättsdogmatisk metod i ljuset av ett rättsociologiskt perspektiv där de normativa aspekterna av lagen undersöks. I detta avseende utvärderas Ghanas implementering av artikel 35 i CRC för att uppnå syftet med studien. Således vilar den rättsliga analysen på det ghananska rättssystemet som grund. I sammanhanget granskas barnkonvent-ionens effektivitet med avstamp i hur de åtaganden som gjorts av Ghana har lett till vidtagande av konkreta åtgärder för att förbättra barns situation vad gäller barnhandel.
En normativ modell tillämpas för att förstå vad begreppen effektivitet och
efter-levnad innebär i sammanhanget. Här klargörs att, för att mäta effektiviteten av en
List of Abbrevations
ACRWC African Charter on the Rights and Welfare of the Child
AHTU Anti-Human Trafficking Unit
CHRAJ Commission for Human Rights and Administrative Justice
CRC Convention on the Rights of the Child
CRC Committee The Committee on the Rights of the Child
DWS Department of Social Welfare
GNCC Ghana National Commission on Children
ILO International Labour Organization
NGO’s Non-Governmental Organizations
TIP Trafficking in Persons
UN United Relations
Content
Forewords ... 3 Abstract ... 6 Sammanfattning ... 7 List of Abbrevations ... 9 1 Introduction ... 15 1.1 Background ... 15 1.2 Purpose ... 16 1.3 Research questions ... 171.4 Theory and methodology ... 17
1.5 Disposition ... 18
1.6 Delimitations ... 19
2 A report on the current state of human trafficking ... 21
2.1 The global phenomenon of human trafficking ... 21
2.1.1 What is the global definition of “human trafficking”? ... 21
2.1.2 What is the definition of child trafficking in the CRC? ... 22
2.1.3 How does trafficking occur and who are the victims? ... 23
2.2 The national phenomenon of child trafficking ... 23
2.2.1 Baseline studies on the overall situation in Ghana ... 24
2.2.2 Child trafficking in Ghana – images of childhood ... 24
2.2.3 Debt bondage – its connection to child trafficking ... 25
2.2.4 The Trokosi system – its connection to child trafficking ... 26
2.2.5 The Kayayei practice – its connection to child trafficking ... 27
2.3 A summary of the current report on child trafficking ... 28
3 The theory of Compliance and Effectiveness ... 29
3.1 The Chosen Approach – the Normative Model ... 29
3.2 The difference between compliance and effectiveness ... 30
3.3 The Three Different but Intertwined Theories ... 31
3.3.1 The Managerial Model ... 31
3.3.2 The Fairness Model ... 31
3.3.3 The Transnational Legal Process Model ... 32
4 A review of children’s rights in the international framework .. 34
4.1 The UN Convention on the Rights of the Child ... 34
4.1.1 The Convention as an instrument of change ... 35
4.1.2 The Convention as a mirror of self-reflection ... 35
4.1.3 The Convention as an extension of children’s rights ... 35
4.2 The effectiveness of Article 35 in the CRC ... 36
4.2.1 An assessment of The General Comment No. 6 ... 36
4.2.2 Which measures are appropriate to take in order to prevent child trafficking? ... 36
4.2.3 How to provide the appropriate assistance for the child ... 37
4.2.4 A Concluding remark on the General Comment ... 38
4.3 An assessment of the Preparatory Works ... 39
4.3.1 The separation of Article 35 and the consequences ... 39
4.3.2 The Confusion of the Terms ... 40
4.3.3 The meaning behind “abduction” ... 40
4.3.4 The meaning behind “Sale of Children” ... 41
4.3.5 The meaning behind “Traffic in Children” ... 42
4.4 Obligations of an Effective Criminal Justice System ... 42
4.5 The African Charter on the Rights and Welfare of the Child ... 43
4.5.1 What differs the ACRWC from the CRC? ... 43
4.6 A summary on the Wording of Article 35 ... 44
5 A review of Children’s Rights in Ghana ... 45
5.1 A few words on the impact of the CRC in the national framework ... 45
5.2 The Ghanaian jurisprudence ... 46
5.2.1 The Republic of Ghana’s Constitution of 1992 ... 46
5.2.2 Acts of Parliament – The Criminal Code 1960 (Act 29) ... 47
5.3 Ghana’s obligations under International Law ... 48
5.3.1 What happened after the ratification of the CRC? ... 48
5.3.2 Part 5 of the Children’s Act – Employment of children ... 49
5.3.3 The Human Trafficking Act (694) ... 49
5.3.4 Is the Ghanaian framework matching the obligations set out in Article 35? ... 50
6 The implementation of the CRC in practice ... 52
6.1.1 International and regional mechanisms ... 52
6.1.2 The Process of Implementation ... 53
6.2 The third, fourth and fifth consolidated periodic report of Ghana ... 53
6.2.1 How does the national legislation correspond to the Convention? 53 6.2.2 How is the principle of the “best-interest-of-the-child” incorporated in practice? ... 54
6.3 The Trafficking in Persons Report – Ghana ... 54
6.3.2 Insufficient law enforcement funds and shelter facilities ... 55
6.3.3 Prevention of child trafficking ... 55
6.4 The Case Study of Child Trafficking in Ghana ... 56
6.4.1 The Case of a parent exploiting her child in the Fishing Area ... 56
6.5 Interview with professionals - Child Trafficking ... 57
6.5.1 The interviewed persons – state and customary authorites ... 57
6.5.2 A summary of the questions and answers ... 57
6.6 A summary of the gap between law and practice ... 60
7 Factors contributing to the (in)effectiveness of the Convention 61 7.1 The nature of the problem – child trafficking ... 61
7.1.1 The Practice of debt-bondage – issue of compliance? ... 62
7.1.2 The Practice of Trokosi/Fiasidi – issue of compliance? ... 62
7.1.3 The Practice of Kayayei – issue of compliance? ... 63
7.2 Clarity and Legitimacy of Rules – Article 35 ... 64
7.2.1 Prevention Versus Protection ... 64
7.2.2 Abduction-, sale-, and trafficking of children ... 65
7.3 Other factors of Norm Internalization in Ghana ... 66
7.3.1 Effectivity of the Criminal Justice System ... 67
7.3.2 Effectivity of the Policy-Making system ... 68
8 Concluding words: to what extent may a convention be regarded as effective? ... 69
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1 Introduction
1.1 Background
While the current focus is on the new epidemia1 that has spread across the world, another form of long-standing issue which has had epidemic proportions, is the phenomenon of human trafficking. According to the United Nations, human trafficking involves the acquisition of individuals by improper means, such as force, fraud or deception, with the aim of exploiting them.2 Moreover, the inter-national community has many times described the phenomenon as a form of modern slavery.3 The International Labour Organization estimated that 40.3 mil-lion of people fell victim to “modern slavery” in 2016, and that children consti-tuted 25 per cent of the total victims.4 In turn, child trafficking has been defined
as one of the gravest crimes and human rights violations of all time; leaving the most vulnerable human beings exploited in many different states and forms.5 In this regard, the Convention on the Rights of the Child (hereinafter: “the CRC” or “the Convention”)6 has been treated as a global instrument to ensure children’s rights for protection against child trafficking. Article 35 of the CRC prescribes that: “States Parties shall take all appropriate national, bilateral and multilateral measures to prevent the abduction of, the sale of or traffic in children for any purpose or in any form.”7
On that account, Ghana (hereinafter: “the State”) became the first country in the world to ratify the CRC on 5th February 1990 – committing to adopt it into
1 Covid-19, Ghana Health Service, <https://ghanahealthservice.org/covid19/about.php>,
checked 24 May 2020.
2 Resolution adopted by the General Assembly, fifty-fifth session, Agenda item 105,
A/RES/55/25M, Article 3, 8 january 2001, p. 32.
3 Anti-Slavery organization, What is modern slavery?, Slavery Today, <
https://www.antislav-ery.org/slavery-today/modern-slavery/>, checked 24 May 2020; Unseen UK, Modern Slav-ery/What is Human Trafficking?, < https://www.unseenuk.org/modern-slavery/human-traffick-ing>, checked 24 May 2020; Hodal, Kate, One in 200 people is a slave. Why? – Slavery affects more than
40 million people worldwide – more than any other time in history, The Guardian, 25 February 2019,
< https://www.theguardian.com/news/2019/feb/25/modern-slavery-trafficking-persons-one-in-200>, checked 24 May 2020.
4 ILO: A Global Alliance Against Forced Labour, Report of the Director-General, International
Labour Conference, 93rd Session, Geneva, 2005.
5 UNICEF Innocenti Research Centre, Child Trafficking in West Africa: Policy Responses, UNICEF
Regional Office for West and Central Africa, April 2002, Forewords.
6 Convention on the Rights of the Child, Adopted and opened for signature, ratification and
ac-cession by General Assembly Resolution 44/25 of 20 November 1989 entry into force 2 September 1990, in accordance with article 49.
16
national law. In 1995, the process of law reform began and the draft on the chil-dren’s bill was prepared in conformity with existing legislation andCRC. As a result, the bill was passed by the State’s parliament as: “The Children’s Act (Act 560)” in June 1998.8
Meanwhile, there have been global concerns on the existence of child traffick-ing in the State, both by non-governmental organizations and states. The United Nations Office on Drugs and Crime has stated that trafficking of children is one of the biggest challenges in the State.9 In this context, the CRC Committee has
pointed out that the legal measures to address child trafficking in Ghana remain insufficient.10 Furthermore, in the eighteenth annual Trafficking in Persons (TIP)
Report, it was assessed that the State did not reach the minimum standards for the elimination of human trafficking.11 Thus, despite the adoption of the CRC,
and the efforts made in its implementation, an evident gap exists between what is prescribed by international law and what is practiced as far as the issue of child trafficking in Ghana is concerned. This raises the queston: to what extent may a convention, such as the CRC, improve the sphere of human rights in a state, in practice?
As will be shown, there are different, and to a certain extent – intertwined factors which intervene in the effectiveness of a convention. Not least the soci-ocultural and the legal systematic aspects of a state, but also the clarity and legit-imacy of rules in the articles of the convention.12 Nevertheless, there is a need to gain a deeper insight into the perplexing dimensions of child trafficking and its manifestation in a certain state, in order to understand the extent to which the CRC may be regarded as effective in practice.
1.2 Purpose
The broader purpose of this essay is to evaluate the extent to which a convention may be regarded as effective in general, with regards to the change it may inflict on a state’s practice, in the light of certain factors that influence its effectiveness. In this particular case, the aim is to examine the extent to which the Convention on the Rights of the Child may be regarded as an effective instrument to abolish child trafficking in Ghana, as it pertains to Article 35 of the CRC. The study is based on a doctrinal method with a legal sociological perspective, 8 Ame, Kwame et. al., Children’s Rights in Ghana: Reality or rhetoric?, Mot Just Limited, 2012, p. 142. 9 Johansen, Raggie, The United Nations Office on Drugs and crimes, Child Trafficking in Ghana,
<https://www.unodc.org/unodc/en/frontpage/child-trafficking-in-ghana.html>, checked 24 May 2020.
10 Committee on the Rights of the Child, Consideration of reports submitted by States Parties
under article 44 of the Convention, Consolidated third to fifth periodic reports of States Parties due in 2011, Ghana, CRC/C/GHA/3-5.
11U.S. Embassy in Ghana, Ghana improves to Tier 2 Ranking in 2018 Trafficking in Persons Report,
https://gh.usembassy.gov/ghana-improves-to-tier-2-ranking-in-2018-trafficking-in-persons-re-port/, checked October 15 2019.
12 See: the discussion about which factors contribute to the effectiveness of the convention in
17
examining the normative aspects of the law. In order to examine the effectiveness of the CRC in this regard, the aim is to review how the Ghanaian legal framework complies to Article 35 of the CRC in the first place. Thereinafter, the intention is to measure the effectiveness of the CRC by the extent to which the commit-ments made by Ghana, have led to the adoption of concrete measures to improve the rights of the children, as it pertains to child trafficking.
1.3 Research questions
In view of the stated background, the primary research question in this thesis is:
To what extent may the Convention on the Rights of the Child be regarded as an effective instrument for a state’s aim to abolish child trafficking?
The research question will be answered pursuant to the following sub-questions: 1. Has the Convention been incorporated into Ghana’s law system, including
Ghana’s public policy?
2. If so, what children’s laws and policies have been enacted with regards to child trafficking since Ghana ratified the Convention?
3. Do these potential laws and policies concerning child trafficking incorpo-rate the standard set out in Article 35 of the Convention and if so, how? 4. If the implementation of Article 35 in the CRC proves to be ineffective in
practice, what are the prevalent factors for that?
1.4 Theory and methodology
The essay is based on a doctrinal method with a focus upon the law itself, through a legal sociological perspective. The so called doctrinal method, consists of clar-ifying the meaning and significance of legal rules, emanating from its own con-tent.13 As the essay pertains to public international law, the traditional sources of
law to apply, is those set out in Article 38(1) of the Statute of the International Court of Justice. Herein, the primary sources constitute of international conven-tions, international custom and the general principles of law, while the secondary sources comprise of judicial decisions and legal doctrine.14
In turn, the legal sociological perspective requires seeking answers to ques-tions about the origin of law; how the law emanated on one hand and what its
13 Petrov A.V et al., Formal-Dogmatic Approach in Legal Science in Present Conditions, Journal of Siberian
Federal University, 2018, p.
18
effects and functions are on the other hand.15 Here, a normative model is chosen
to measure the effectiveness of the CRC, as will be presented in chapter 3. The first part of the theoretical approach consists of examining how Ghana’s legal system complies with the CRC, specifically in terms of Article 35. Herein, there is a focus on Ghana’s incorporation of Article 35 of CRC in the light of the wording of the article. The second part of the approach is a measure of how effective the Convention is when put in practice; how the law on child trafficking manifests in practice, in relation to the expected norms of an effective implemen-tation of Article 35.
In detail, the material includes national legislation and different international instruments, as pertaining to the CRC, aswell as reports from the Committée on the rights of the child and other stakeholders, regarding the situation of child trafficking in Ghana. Also, the thesis includes preparatory works of the CRC and reports by the General Assembly as to examine how the terms in Article 35 were interpreted by the drafters in the first place. Moreover, a case concerning child trafficking, issued by the Circuit Court of Accra, is applied.
Since the legal sociological perspective also embodies the broader picture of how law is put into practice, empirical material is applied to contextualize the law.16 Herein, a summary of interviews with relevant officials in Ghana is
pre-sented, to provide a more nuanced picture of the challenges concerning the im-plementation of child trafficking law. In this sense, the qualitative approach in-cludes interviewing state- and traditional authorities on what the key barriers are to effective implementation of the CRC.
Furthemore, the qualitative method involves a form of purposive sampling technique, whereas a deliberate selection of interviewees is made due to the qual-ities he/she possesses.17 In this case, that would be: an advocate for children’s
rights in Ghana, the head of the Social Welfare Unit in Kumasi, and two police officers; one from the Anti-Trafficking Unit of the Ghana police and the other from the Domestic Violence Victim Support Unit of the Ghana police. In this regard, two representatives from the Fiasidi-system are also chosen as interview-ees, as to enlighten the matter of child trafficking in the customary law system; the assemblyman of the local arbitration court “Torgbui Lawoe Agbenyezi Ashipodi XXII” and the chief-priest of the “Torgbui Adzima” shrine.
1.5 Disposition
The study is structured in nine chapters in total. The first chapter consists of an introduction of the research objectives, purpose, scope, methodology and data collection, which is the basis and material used for the analysis of the research. 15 Zamboni, M. et al., Juridisk metodlära, Studentlitteratur, 2017, p. 209.
16 Sandgren, C, Rättsvetenskap för uppsatsförfattare; ämne, material, metod och argumentation, Norstedts
Ju-ridik AB, 2006, p. 39.
17 Herbert J. et al., Qualitative Interviewing: The Art of Hearing Data, Chapter 3: Anticipating the Type
19
In order to broaden the picture in which child trafficking law is based upon, the second chapter provides a current update on the phenomenon of human traf-ficking, both in global and in national terms. Chapter three then presents the theory that permeates the essay as a whole – the normative approach. This ap-proach is applied in order to understand the aspects of what makes a convention effective and in relation to what parametres the effectiveness may be measured. As Article 35 of the CRC is the chosen subject of examination, chapter four includes the presentation of how international framework operates in the area of child trafficking, and in particular, how Article 35 is expected to be interpreted, in the light of its preparatory works, general comments and general reports.
Correspondively, chapter five includes a legal review of the Ghanaian juris-prudence, in order to understand how Ghana has complied to Article 35 of the CRC and serves a basis for examining how effective the CRC may be in terms of preventing child trafficking in states. Thereby, chapter six provides the results of the research on how the CRC is being implemented in practice – that is, in Ghana’s legal system. Chapter seven then, based on the results, summarizes all the factors which might have had an impact on the extent of the effectiveness of the CRC in terms of abolishing child trafficking. The different factors are ana-lyzed in the light of the premisses of the normative theories, which are presented in chapter three. At last, chapter eight comprises a discussion in two parts; how the effectiveness of a convention may vary on a micro-level, depending on the chosen state and the rights that are to be protected, and to what extent a conven-tion may be effective on the macro-level in terms of the general expectaconven-tions of the impact of a convention. The bibliography of the essay, may be found in chap-ter 9.
1.6 Delimitations
It shall be noted that “effectiveness” and “compliance” may be imprecise terms that can be interpreted in multiple ways. Thus, the essay is limited to measuring the effectiveness of a convention by examining to what extent its article(s) are implemented in practice, compared to the expected results. Moreover, a certain part of the state’s practice must be chosen for examination; both because of time limit and for the sake of concentration. In this case, child trafficking is chosen as the subject area as it is covered by many international treaty instruments and is universally acknowledged as one of the gravest human rights violations. Thus, the thesis is limited to measuring the Ghanaian implementation of Article 35 of the CRC concerning child trafficking.
20
21
2 A report on the current state of human
trafficking
2.1 The global phenomenon of human trafficking
This chapter provides a review of previous work on the phenomenon of human trafficking; from the global situation - to the national case of Ghana. The aim is to map out the broader picture in which the international framework is built upon. Regarding the discussion of literature related to child trafficking, the sources of material include research from global policy institutions, as well as academic research works and publications in the media. These sources are valu-able for the dissertation in order to understand the various dimensions of the phenomenon of child trafficking.
Human trafficking has been considered as a grave violation of human rights, considering that it is a complex phenomenon that includes several different com-pounds and elements.18 Children being subjected to trafficking are in an even more vulnerable position than adults. Still, there does not exist a coherent defi-nition on child trafficking. Thus, it will be described how the phenomenon of child trafficking has certain dimensions to the crime, which urges for a new def-inition, in order to make space for the perspective of the child.
2.1.1 What is the global definition of “human trafficking”?
The answer to this question is a debatable topic. In short, there is no compre-hensive agreement on the definition of human trafficking, but the most agreeable definition by the states, is the one stipulated in the “Trafficking Protocol”.19
Ghana ratified the Trafficking Protocol in 2012. Article 3(a) of this protocol de-fines “trafficking in persons” as:
the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a
18 OHCHR, Human Rights and Human Trafficking, Fact Sheet No. 36, 2014, p. 9.
19 Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and
22
minimum, the exploitation of the prostitution of others or other forms of sexual ex-ploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.
Thus, the definition of trafficking comprises of three elements:
(i) An action (recruitment, transportation, transfer, harbouring or receipt of persons)
(ii) A means (threat or use of force or other forms of coercion, abduction, fraud, deception, abuse of power, or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the con-sent of a person having control over another person); and
(iii) A purpose (exploitation).
2.1.2 What is the definition of child trafficking in the CRC?
Unfortunately, there is no definition on child trafficking to be found in the CRC, other than that States shall take measures to prevent it, as stated in the back-ground. On the other hand, the CRC Committee has accepted a wide range of exploitative practices to fall within Article 35, such as; sexual exploitation20, forced and exploitative labour21, begging22, forced and “temporary marriage23, and domestic servitude24. Moreover, while the CRC Committée has focused particu-larly on sexual and labour exploitation of migrant children, it has also pointed out that trafficking extends to exploitation occurring within the whole state – so called “internal trafficking”.25Also, the CRC Committee has highlighted the need for states to ensure that the definition of human trafficking laid out in the Trafficking Protocol complies with the definition set in domestic law.26 Notwithstanding, there does not exist
20See eg: CO Malta, CRC/C/MLT/CO/2 paras 61–62; CO Afghanistan, CRC/C/AFG/CO/1
para 72; CO Denmark, CRC/C/DNK/CO/4 para 61; CO Angola, CRC/C/AGO/CO/2-4 para 69; CO Mexico, CRC/C/15/Add.112 para 32.
21See eg: CO Albania, CRC/C/ALB/CO/2-4 para 82; CO Liberia, CRC/C/LBR/CO/2-4 para
83; CO Cambodia, CRC/C/KHM/CO/2-3 paras 73–74; CO Belgium, CRC/C/BEL/CO/3-4 para 80.
22See eg: CO Albania, CRC/C/ALB/CO/2-4 para 82; CO Afghanistan, CRC/C/AFG/CO/1
para 72; CO Ecuador, CRC/C/ECU/CO/4 para 76.
23See eg: CO Bosnia and Herzegovina, CRC/C/BIH//CO/2-4 paras 72–73; CO Syrian Arab
Republic, CRC/C/SYR/CO/3-4 paras 82–83; CO Pakistan, CRC/C/PAK/CO/4 paras 95–96.
24 See eg: CO Bosnia and Herzegovina, CRC/C/BIH//CO/2-4 para 72; CO Liberia,
CRC/C/LBR/CO/2-4 paras 82–83; CO Madagascar, CRC/C/MDG/CO/3-4 para 63; CO Togo, CRC/C/TGO/CO/3-4 para 71; CO Burkina Faso, CRC/C/BFA/CO/3-4 para 74.
25See eg: CO Guinea-Bissau, CRC/C/GNB/CO/2-4 para 67; CO Togo,
CRC/C/TGO/CO/3-4 para 72.
26See eg: CO Namibia, CRC/C/NAM/CO/2-3 para 72; CO Costa Rica, CRC/C/CRI/CO/4
23
any definition for child trafficking, in particular. In this regard, the Special Rap-porteur on trafficking in persons, has identified different state obligations con-cerning child trafficking, that differs from the components in human trafficking. One of the recognized measures for states is to ensure adequate and appropriate training for persons working with trafficked children. Moreover, the principle of the best-interests-of-the-child is addressed as it pertains to child trafficking.27 Hereby, it is clear that the phenomenon of child trafficking requires specific ob-ligations to be prescribed, as far as children are concerned, in order for the vio-lation to be fully addressed. It has been argued that the main group having been affected by international and national regulations on human trafficking is the trafficked people, while traffickers have tended to escape punishment. Thus, there are tensions that surround the interpretation of the definition of child traf-ficking and as far as nothing is done to address the problem, the issue remains the same.28
2.1.3 How does trafficking occur and who are the victims?
The global nature of the trafficked victims includes men, women and children all the same, according to ILO. Still, women and children form a greater proportion of total victims of trafficking because of their social, cultural or economical vul-nerabilities.29 Moreover, trafficking may occur nationally or across borders. To achieve the goal of preventing these exploitations in practice, the ILO has af-firmed that states must have comprehensive understanding of trafficking activi-ties in the country. With that said, the states shall comprehend the source, transit and destinations dynamics of this phenomenon in their country. Some of the points to clarify by states is where the child victims are recruited from and how the children are transported to areas of exploitation, in order to facilitate control measures.30
2.2 The national phenomenon of child trafficking
Since the focus of the thesis is on the situation of child trafficking in Ghana, the further subsection refers to this phenomenon in Ghana, in particular. In order to provide an insight of the complexity of the phenomenon of child trafficking in Ghana, different international reports and statistics are presented herein.
27Report of the Special Rapporteur on trafficking in persons, especially women and children,
Hu-man Rights Council, Thirty-eighth session, 6 July 2018 (A/HRC/38/45), p. 12, section 43.
28 Hussein, RA, The existing tensions in the defining of human trafficking at a UK and international level: A
critical overview, 39(2) International Journal of Comparative and Applied Criminal Justice 129–38,
2015.
29 ILO: Action Against Trafficking in Human Beings. Geneva: ILO Cataloguing in Publication
Data, 2008, p. 3.
30 ILO: Training Manual to Fight Trafficking in Children for Labour, Sexual and Other forms of
24
Though, it shall be noted that the statistics may not be accurate since the esti-mated figure may depend on the reporting system in Ghana, and due to the se-cretive nature of trafficking overall.31
2.2.1 Baseline studies on the overall situation in Ghana
A country may serve either as a source, transit and/or destination of trafficked victims. With regards to countries in the West African subregion, and thereby Ghana, they serve not only as main sources or origin of child victims, but also as transits and destinations.32 In Ghana, internal trafficking is the most prevalent
form of child trafficking. Both Ghanaian boys and girls are exposed to trafficking in the areas of forced labour: fishing, street hawking, domestic service, portering begging, artisanal gold mining, quarrying, herding, and agriculture. In this regard, Ghanaian girls, and to a lesser extent boys, are also subjected to sex trafficking. Concerning sex trafficking, it exists nation-wide but is most prevalent in the Volta Region and is also increasing in the oil-producing Western Region.33
In 2016, a baseline study was conducted by an NGO: “Free the Slaves” in 20 communities around the Volta and Central Regions. The study showed that, across all 20 communities, in 35.2 % of the households, children had been sub-jected to trafficking and 18 % of those had been exploited primarily in the fishing industry. At the same time, 10 % of these children had been subject to trafficking through domestic servitude and 1 % of them through early and forced marriage. Additionally, the incidence rates across these communities varied widely, where over 20 % of the surveyed households, reported that more than one child had been trafficked there. In Northern Ghana, where agriculture is prominent among the jobs, as much as 80 % of children do not attend school because of their commitment to generate income for the survival of the family.34
Moreover, through a review of 254 community members across 10 districts around Lake Volta in Ghana, it was found that 42 % of respondents indicated that children are being trafficked by parents/relatives.35 This indicates a close re-lationship between child victims of trafficking in Ghana and the contribution of the parents/relatives to their situation.
2.2.2 Child trafficking in Ghana – images of childhood
Ever since the CRC was implemented; its universalistic approach may be re-garded as being very influential and visible in the legislative and political language concerning the image of childhood in contemporary Ghana. By politicizing the image of childhood in Ghana, public awareness has been raised on children’s
31 Ghana: Trafficking in Persons Report 2016, United States Department of State. 32 UNODC: Global Report on Trafficking in Persons, 2016 p. 44-47.
33 Ghana: Trafficking in Persons Report 2016, United States Department of State. 34 Ame, K. et al., Children’s rights in Ghana - reality or rhetoric?, 2012, p. 129.
35 International Justice Mission, Child Trafficking into Forced Labor on Lake Volta, Ghana, A
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rights. However, even though the children have come “from street to stage”, there are indiciations that children’s lives and everyday experiences have not changed.36
In order to understand the context in which the legal framework on children’s rights operate, there is a need to have a sociological understanding on how child-hood is depicted in Ghana: which images of children prevail in the Ghanaian society and what the underlying are reasons for this.
Thus, a summary will be made on the different aspects of trafficking that Gha-naian children are subjected to and how this affects their rights, in the light of the factors which affect their childhood. In particular; customary norms, debt bondage and poverty will be highlighted. Notwithstanding, the author wants to underline that she does not make any value on a “good” or “bad” childhood through the legal sociological perspective – she merely brings forth the facts in the present case insofar they may be associated with children’s rights. After all, child trafficking is a global problem, and not only a Ghanaian.
2.2.3 Debt bondage – its connection to child trafficking
While we see computerized child pornography being more prevalent in some countries, other types of child exploitation such as agricultural labour and debt
bondage, are the main issues in other countries.37
Debt bondage, includes the situation whereby children are used as workers in repayments of debts owed by parents and caregivers. In this sense, children are being seen through the objectified lense of their parents, taking away their fun-damental rights.38 Reports are showing that children are sent by their parents to the fishing or mining areas of Ghana, where they are involved with hazardous work. While the majority of the child workers are boys, in some cases there are girls working in the mines aswell. These girls face the additional risk of being subjected to sexual harassment, sexual exploitation and rape.39
In this regard, the Constitution of the Republic of Ghana states that, parents have a responsibility to carry out their obligation of care, maintenance and up-bringing of their children. Moreover, it is underlined that parents have a natural parental right in co-operation with state institutions in a sense which ensures that the wellbeing of the child is paramount in all cases.40 Even if debt-bondage is undesirable according to law, and despite the fact that Ghana has made some efforts to address child labour in these areas, the situation has been reported to
36 Ame, K. et al., Children’s Rights in Ghana: Reality or Rhetoric? 2012, p. 22-23. 37 ILO: Global Estimates of Child Labour, Results and Trends, 2012-2016, p. 37.
38 O’Connell Davidson, J. Moving Children? Child trafficking, child migration, and child rights. Critical
so-cial policy 31.3, 2011, p. 454–477.
39 Human Rights Watch, Masterwille D., Precious Metal, Cheap Labour – Child Labour and Corporate
Responsibility in Ghana’s Artisanal Gold Mines, 10th June 2015.
26
remain the same since the systems to monitor and eliminate child labour in Ghana function poorly.41
2.2.4 The Trokosi system – its connection to child trafficking
One type of debt bondage that has existed, and still exists today in certain areas of West Africa, including Ghana, is the system of Trokosi. The Trokosi system is outsourced from traditional African practices and includes practices such as child labour, servile marriage, debt bondage, forced prostitution and not least – slavery-like conditions. For the sake of this thesis, only the aspects of Trokosi related to child trafficking, will be examined. This traditional system is built on the rules that a teenage (virgin) girl, or in rare cases – a young man, is to be sent to a “fetish” priest of a traditional shrine, in order to pay for a misdeed/crime of a fellow family member.42The aim is to appease the dieties/spirits, who the traditionalists believe will cause calamaties to the family if the families do not follow the order. In that sense, believers of the system uphold the philosophy that sees justice and ishment as communal; an individual with no connection to a crime may be pun-ished to spare others. Another slightly different practice to the Trokosi, is the “Fiasidi”-practice. Both practices stem from the ethnic language Ewe and while Trokosi means “slave of God” in translation, Fiasidi means “fit to be the wife of a chief/diety”. The main difference between these two is that in the Fiasidi-sys-tem, the woman is perceived to be more respected, since her virginity must be kept by her parents and priests, until marriage, which normally happens to be with the priest.43
The conditions under which shrine priests keep Trokosi/Fiasidi-bonded per-sons, has been reported to meet the definition of trafficking in perper-sons, as pro-vided by both the UN international and several African regional instruments.44 Since the families with full consent and will, “sacrifice” their child in exchange for “the gods’ forgiveness”, they give away their child to the priest for sexual and economic exploitation, which is a practice that markedly falls under the extended definition of human trafficking.45
After the Ghana Law Reform Commission and the call of human rights law-yers representing the International Women Lawlaw-yers (FIDA), certain sections of the Criminal Code was amended, as to include customs that enslave people and 41 Gyamfi Dapaah, G, International responsens to human trafficking: The Ghanaian experience, Academic
Journal, University of Professional Studies, Accepted 26 October 2016, p. 62.
42 Ame, K. et al., Children’s rights in Ghana - reality or rhetoric?, 2012 p. 107-113.
43 Niagia S., Ghana: Atoning The Sins of Others Children, All Africa, 16 February 2000, <
https://al-lafrica.com/stories/200002160255.html>, checked 24 May 2020.
44The United Nations Protocol to Prevent, Suppress, and Punish Trafficking in Persons,
Es-pecially Women and Children; The United Nations Convention against Transnational Organized Crime; See generally E.K. Quasigah, Religious Freedoms and Vestal Virgins: The Trokosi Prac-tice in Ghana, 10 AJICL 193 (1998); A.S. Bilyeau, Trokosi-The PracPrac-tice of Sexual Slavery in Ghana: Religious and Cultural Freedom vs Human Rights, 9 IND. INT’L & COMP. L. REV. 457 (1989-99).
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subject them to enforced labor. Though, it was not until in 1998 that the “Trokosi law” was enacted, which criminalizes Trokosi and other ritual or customary prac-tices.46 Moreover, it is clearly stated in the Constitution (1992) that any law which contradicts the human rights and freedoms of the Constitution, is declared null and void, including those of customary laws.47
However, despite the fact that the Trokosi-/Fiasidi system goes against Con-stitutional rights and Ghana has criminalized the practice and other harmful tra-ditional practices, under the Criminal Code, there is no record of anybody being prosecuted for their role in any negative traditional practice.48 Nevertheless, the harmful practice remains and this brings us to the question: how effective is the CRC when put into practice, as it pertains to child trafficking?
2.2.5 The Kayayei practice – its connection to child trafficking
A kayayoo (pl. kayayei) is a term in the Ga language that defines girls/ women who carry goods and wares on their head for shoppers and traders in and around commercial centers for a petty fee. Many Kayayei are lured to migrate from the Northern regions of Ghana in order to earn a sure income for themselves. They are promised good job opportunities and on arrival their job turns out to be the act of carrying headloads of over 30 kg.49In many cases, because of claims of a good life in Accra, parents in the rural areas voluntarily send out their children to traffickers and are oftentimes given an advance payment for the child. These parents are commonly told that the children will receive food, shelter and training/education. Instead, the children end up in slum areas in Accra, where the rooms usually consist of temporary wooden structures owned by men who exchange shelter for sexual favours. Of-ten, the girls are forced by circumstances to engage in the sex trade at night.50
Also, the children who grow up with mothers who work as Kayayei, are not able to afford the school fees, and as a result also end up as kayayoo at alarmingly young ages.51 This indicates that there exists a large amount of Ghanaian children who are found in the streets not only working – but also living there, sleeping at night outside shop fronts and markets. As a consequence, these children are vul-nerable to sexual abuse and exploitation, aswell as other forms of violence.52
46 Ame, K. et al., Children’s rights in Ghana - reality or rhetoric?, 2012 p. 116, See also: Section 314 of
Act 29 of the Criminal Code.
47 E.S. Nwausche, The Constitutional Challenge of the Integration and Interaction of Customary and the Received
English common Law in Nigeria and Ghana, 2010, p. 53-54.
48 Ame, K. et al., Children’s rights in Ghana - reality or rhetoric?, 2012 p. 117 49 Ibid, p. 129.
50 Dr A. Atugba R, International Labour Office Geneva, Human Trafficking in Ghana: A Review
of Legislation, Action Programme Against Forced Labour And Trafficking In West Africa, p. 32.
51 Ibid.
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2.3 A summary of the current report on child trafficking
The phenomenon of human trafficking is global, grave and includes various of dimensions to the crime. Even though there does not exist a coherent definition of neither human- nor child trafficking, many states have agreed upon the defi-nition laid out in the Trafficking Protocol. However, tensions surrounding the definition still prevail and it becomes even more urgent to customize a definiton based on the rights of the child, as the phenomenon pertains to the specific vul-nerabilities of the child. Thus, there is a need to examine how states address child trafficking and how the lack of its definition affects the state’s implementation of Article 35 of the CRC.
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3 The theory of Compliance and Effectiveness
Before an in-depth analysis is made of the international framework on child traf-ficking, and specifically the Childrens right’s Convention, a theory will be pre-sented as a guiding light throughout the essay. In order to understand what makes a Convention effective, one needs to understand its driving forces, what compels the states to even make a difference through law in the first place and in regards to what measuring scale these differences are seen. These are all important ques-tions not only due to the assessment of human righs treaties, but also for lawyers to understand the effects of international law in general. After all, the questions depend on whether a state acts primarily in pursuit of their self-interest or if their actions are shaped by the persuasive power of legitimate legal obligations. In turn, these factors will also differ depending on how clear and extensive a convention is or how the socio-economic factors vary between the states53, which will be the
focus of the analysis. Nevertheless, the following chapter is limited to examining
how a State complies to a Convention, and not why it chooses to do so.
3.1 The Chosen Approach – the Normative Model
First, it is to be noted that the reluctance of the international community to tackle the efficacy of international law is nowhere more evident, or more complex, than in the field of human rights law. Comparing to the the competitive market forces pressing for compliance in international economical law, there are no such in the former field. Moreover, the costs of vengeful compliance are almost non-existent, since a nation’s actions (or non-actions) against its own citizens do not precisely threaten or harm other states.54 Nevertheless, it is to be highlighted that there are two dividing schools with regards to the matter of compliance and ef-fectiveness in international law: the rational actor models and the normative model.55
While the theories of the rational actor models, state that compliance only occurs if it furthers the self-interest of the parties, through for example improve-ment of reputation or geopolitical power56, the normative theories argue that state decisions cannot be explained simply by calculations of geopolitical or economic 53 Hathaway O., Do Human Rights treaties make a difference, The Yale Law Journal, 2002, p. 1938-1939. 54 Ibid.
55 Ibid, p. 1941-1942. See also: O. Keohande, International relations and International Law: Two Optics,
38 HARV. INT’L L.J. 487 (1997).
56 Do Human Rights Treaties Make a Difference? Oona A. Hathaway, , Vol. 111, No, 8, Jun, 2002,
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interests. Instead, the normative models embrace a complete description of state action in the international realm, including the importance of ideas and norms.57
Thus, the normative model approach is chosen throughout the essay for the sake of its extensive scope to calculating the effectiveness of a Convention through legal sources in relation to normative factors. Since the starting point is that states obey conventions due to its normative obligation that arises when signing and ratifying a Convention, the dissertation will not focus on whether the state has self-interest when implementing a convention, thus excluding the ra-tional actor models.
3.2 The difference between compliance and effectiveness
The application of the mentioned theory first requires an understanding of the difference and relationship between compliance and effectiveness. Compliance, in the present context, refers to: “a state of conformity or identity between an actor’s behavior and a specified rule”.58 Effectiveness has been described as directly re-lated to, but different from compliance. In this regard, a state may comply with a treaty in a way where its actions conduct itself to the requirement of the treaties, but the treaty is still ineffective since it does not change the state’s practices.59 In other words: compliance is correlated to effectiveness – in regard to the extent to which the rule impacts change with consideration to the underlying problem. Also, there is usually a high level of correlation between compliance with inter-national legal rules and implementation; meaning the process of putting legal com-mitments into effects.60
Thus, in order to measure the effectiveness of a Convention, it is first required to investigate if the State’s legal system complies to the Convention in place. Thereby, the first part of the theoretical approach is to find out in what way Ghana’s legal system complies with the CRC, specifically in terms of Article 35. In this sense, the examination will focus on Ghana’s incorporation of the CRC and its background in children’s rights. The second part of the approach is to measure how effective the Convention is when put in practice; examining to what extent the implementation of Article 35 may inflict change on the phenomenon of child trafficking in Ghana.
At last, I chose the subject area of child trafficking for examination since it is a global phenomenon with certain subjective elements to it, which adds a specific complexity to the issue of compliance and effectiveness of a convention.
57 Ibid, p. 1955.
58 K. Raustiala et. al., “International Law, International Relations and Compliance,” in W. Carlnaes,
T. Risse and B.A. Simmons eds., The Handbook of International Relations 538, 2002.
59 Do Human Rights Treaties Make a Difference? Oona A. Hathaway, The Yale Law Journal, 2002,
p. 1965.
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3.3 The Three Different but Intertwined Theories
There are three main varieties of the Normative Theory; the managerial model, the fairness model, and the transnational process model. These three theories affirm that non-compliance occurs due to insufficient information or capacity on the part of the state.
3.3.1 The Managerial Model
The Managerial model concludes that non-compliance occurs because of am-bigutity and indeterminacy of treaty language, limitations of the capacity of state parties to carry out their undertakings or simply lack of time to adapt to the changing conditions.61 The managerial method will be tested in the essay as to
examine in which ways the CRC proves to be ambiguous and indeterminative with regards to the implementation of Article 35. Moreover, it will be highlighted what limitations the State might have had when complying fully with the CRC and its requirements regarding Article 35.
3.3.2 The Fairness Model
In turn, the fairness model adds the view that compliance depends upon the legiti-macy of the norms and rules that compose them.62 Specifically, it is claimed that
four primary factors regulate the legitimacy of a rule and thus a state’s compliance with it. Alike the previously described theory, there must be “determinacy” so that the requirements of the rule are transparent and its fairness may manifest. Secondly, the rule must exhibit characteristics that signal that it is an important part of a system of social order, labeled as “symbolic validation”. Thirdly, the rule must display coherence, meaning that it treats like cases alike and that it relates to other rules of the same system in a consistent manner. At last, the rule must be interconnected with the secondary rules of process used to interpret and apply rules of international obligation.63
The secondary rules can for example be found in the interpretations made by the committees of certain conventions, such as the Human Rights Committee or the Children’s Rights Committee.64 Thus, the fairness model will be applied
throughout the essay by comparing the general comments on interpretation and the specific guidelines by the CRC Committee on Article 35, in relation to how Ghana has followed the interpretations in practice.
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3.3.3 The Transnational Legal Process Model
Lastly, the Transnational Legal Process Model is the most recent addition to this framework, highlighting that voluntary norm-internalization is the essential key to compliance. According to this theory, norm internalization undergoes three phases; in the first one, one or more transnational actors give rise to an interac-tion with each other, which arouses enunciainterac-tion of the norm applicable to the interaction. Eventually, the interaction produces a legal rule that can be applied to guide future transnational interactions. In time, a series of norms are created to become internalized, and in turn, this repetitive process leads to the reestab-lishment of the interests and identities of the parties.65
Consequently, the transnational legal process theory is focused on the process of compliance through norm-internalization, where norms become entrenched values and become standardized in national institutions and practices. In this sense, the model gives the clue that compliance does not merely occur when international law becomes domestic law merely by means of an official act of legislation. Instead, the model highlights that a collective effort is needed for compliance, involving both transnational and domestic actors via foreign policy, but also civil society through public opinion.66
As a result, compliance is measured in terms of the extent to which a state’s practice concerning an issue has changed, following the process of internalizing a certain norm from the convention. In this regard, domestic internalization of the norms may occur in different ways; all from social and political process via policy making, to judicial interpretation of the norms in the domestic courts.67 This theory will prove essential for measuring the Convention’s effectiveness through the legal sociological perspective, highlighting how (in)effective norm-internalization may prove to be an obstacle for the effectiveness of a convention. In this regard, the enforcement mechanisms and the policy-making system of Ghana will be evaluated, in the light of this model.
3.4 A Concluding Remark on the Normative Theories
As a concluding remark for the theories gathered under the normative concept, human rights treaties may make a difference in countries’ human rights practices, as long as the states have the sufficient information and capacity to comply. Moreover, a state’s compliance of a treaty depends upon the legitimacy, clarity, coherence and fairness of the rules in the treaty. Thus, in order to understand to what extent a convention may be regarded as effective, there is a need to examine if a state complies and may comply with the norms laid out in the convention in the first place. The effectiveness may, in turn, measured against the extent to
65 Ibid, 1960.
66 Tannenwald N., Assessing the Effects and Effectiveness of the Geneva Conventions, Mechanisms of
Com-pliance, September 2017, p. 23.
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4 A review of children’s rights in the
international framework
Since the phenomenon of child trafficking is a human rights problem, the review further describes child trafficking in the light of human rights and dwells upon the provisions set out in the CRC. In this sense, the starting point of the discus-sion about child trafficking in Ghana is the human rights perspective of the CRC, in relation to other legislations enacted by international, regional and national agencies. The presentation of the international framework, will serve as a com-paratory basis for the review of the national framework in chapter 5; the Chil-dren’s Act (1998), the Human Trafficking Act (2005) and the Criminal Act (1960). But firstly, the functions of the CRC will be studied, in order to provide a basis for the answer to the research question: to what extent the the Convention on the Rights can the Child be regarded as an effective instrument for a state’s aim to abolish/eradicate child trafficking. In this regard, the Managerial Model and the Fairness Model will be applied more intensively, since they pertain to the wording of conventions, and in turn, its articles. The wording in Article 35 is interpreted through a variety of legal sources, in the light of the measuring points: clarity, ambiguity, determinacy, symbolic validity and coherence. The premiss is that: the more transparent, inambiguous, determined, symbolical and coherent the wording an Article is – the more effectively may the CRC be implemented by the states in practice.
4.1 The UN Convention on the Rights of the Child
The UN Convention on the Rights of the Child was adopted by the General Assembly 20th November 1989 and opened the door to what became the most
widely ratified human rights treaty in the world. A key contribution of the CRC is that it highlights the rights of the child in the framework of human rights, at the same time as it enlightens the gray areas of children’s rights. Furthermore, the Convention enriches human rights standards globally, through the sanctity of the child.68 In the following context, it will be shown how the Convention makes impact on three different levels; as an instrument of change, as a mirror of states’ self-reflection and as an extension on children’s rights.
68 Liefaard T et al., The United Convention on the Rights of the Child – Taking Stock after 25
35
4.1.1 The Convention as an instrument of change
The CRC has been regarded as an instrument of change, since many countries have witnessed law reforms aimed at raising standards in order to comply with the Convention. The implementation of the CRC by the states has also resulted in the fact that the perspective of the child has been changed to a certain extent. The change has contributed to that children are being viewed as subjects of rights rather than objects of duties. Moreover, the non-discrimination principle that permeates the CRC has been standardized – all actions must be tested through the prism of addressing not only nationals of a Member State but also non-na-tionals and stateless persons.69 This principle is very much relevant to the legal study of child trafficking, since the case is beyond nationality.
4.1.2 The Convention as a mirror of self-reflection
The Committée on the Rights of the Child further works with monitoring the implementation of the Convention by States Parties. As a process, the body re-ceives periodic reports from States regarding their implementation measures and, thereby issues recommendations in form of Concluding observations. The mon-itoring mechanism exists in order to ensure the effectiveness of the States’ ac-tions. In this regard, statistics and reports serve as adequate material to reveal challenges with regards to the State’s implementation process, and thereby shows to what extent the Convention is effective. Insofar, UNICEF’s reports have proven to complement those of the CRC.70
4.1.3 The Convention as an extension of children’s rights
The CRC has also extended the rights of the child through complementairy Pro-tocols. In this regard, the Protocol on the prohibition of the sale of children, child prostitution and child pornography is of relevance.71 The CRC has a close relationship with the ILO regarding child labour standards. Whereas the CRC has not laid out the exact minimum age of work, the threshold is stipulated and provided by the Minimum Age Convention under ILO72. Therein, the age of 15 years is the minimum age of work, whereas the ILO conventions prohibit the worst forms of child labour, for eg. Child prostitution and hazardous work, for those who are under 18 years.73
69 Ibid, p. 19. 70 Ibid, p. 21.
71 Optional Protocol of the CRC on the Sale of Children, Child prostitution and Child
Pornogra-phy, Adopted and opened for signature, ratification and accession by General Assembly resolution A/RES/54/263 of 25 May, entered into force on 18 January 2002.
72 Article 2, C138 - Minimum Age Convention 1973 (No. 138).
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4.2 The effectiveness of Article 35 in the CRC
Insofar, some of the functions and the aims of the CRC have been presented. The focus in this section is to review how effective the CRC is as an instrument to combat child trafficking, in the light of how Article 35 is manifested in prac-tice. One approach to examine the Convention’s effectiveness, is to study how clear the wording in Article 35 is and how it was aimed to be interpreted in prac-tice. In its entirety, the Convention shall be seen as a tool for understanding and responding to the trafficking and related exploitation of children. The Articles regarding the definition of a child, children’s identity and dignity are critical in order to understand which components make up trafficking-related exploitation and how it shall be addressed. Also, the provisions related to non-discrimination, consent, power, maturity, the child’s best interests etc. all contribute to the frame-work within which Article 35 is to be understood and applied.74 Thus, the section will provide answers to which anti-trafficking measures are attunded to those of the best interests of the child.
4.2.1 An assessment of The General Comment No. 6
In Article 35 of the CRC, it is stated that each State Party shall take all appropriate national, bilateral and multilateral measures to prevent the abduction of, the sale of or traffic in children for any purpose or in any form.75 This leads us to the question: which measures are to be considered appropriate by a state in order to pre-vent the trafficking of children? And how shall the State provide the appropriate assistance for the child in question?
At first glance, the article is vague since the wording indicates that each state is left at deciding on which measures are to be considered as appropriate for this issue. To fill out this gap, we may regard the General Comment No. 676 as a matter of understanding the standard set out in the Convention.
4.2.2 Which measures are appropriate to take in order to prevent
child trafficking?
In section V, regarding the response to general and specific protection needs of a child, it is stated that77, that necessary measures include identifying unaccompa-nied and separated children; regularly inquiring as to their whereabouts; and con-ducting information campaigns that are age-appropriate, gender-sensitive and in a language and medium that is understandable to the child. Also, it is added that
74 Tobin J., Art.35 Protection against the Abduction, Traffic, and Sale of children, Oxford
Schol-arly Authorities on International Law, 2019, under section B.
75 Article 35, CRC.
76 General Comment no. 6. (2005), CRC/GC/2005/61, Treatment of Unaccompanied and separated children outside their country of origin.
37
adequate legislation shall be in place and effective mechanisms of enforcement be
estab-lished with respect to labour regulations and border crossing.
Furthermore, it is underlined that practical measures could include: priority procedures for child victims of trafficking, the prompt appointment of guardians, the provision of information to children about the risks they may encounter, and establishment of measures to provide follow-up to children particularly at risk. At last, it is stated in the same paragraph that such measures shall be regularly evaluated to ensure their effectiveness.78
Overall, in a more immediate and practical sense, what may be an “appropriate measure” in a particular situation, may not be appropriate in another situation. Each case will require consideration of the facts of the case and surrounding circumstances; including the particular situation of the state and its (potential) role in the trafficking-related spectrum; and also its capacity to respond and pre-vent. In the particular situation of a child – what is “appropriate” for a trafficked boy, may not be appropriate for a trafficked girl, at the same time as a child sold into sexual exploitation may require specific protection and support measures.79
4.2.3 How to provide the appropriate assistance for the child
While Article 35 makes it clear that measures must be taken to prevent the traf-ficking, sale, and abduction of children, it provides no guidance on how that shall manifest in practice. However, recent developmens in international law have filled out the substantive content of that provision. In the UN Trafficking Prin-ciples and Guidelines for ex. it is highlighted that: “The particular physical, psy-chological and psychosocial harm suffered by trafficked children and their in-creased vulnerability to exploitation requires that they be dealt with separately from adult trafficked persons in terms of laws, policies, programmes and inter-ventions (…).80Moreover, it is also highlighted that unaccompanied/separated children are particularly vulnerable to exploitation. The main challenges with these children is that they are at risk of being “re-trafficked” – meaning that the child who has already been a victim of trafficking, is subject to trafficking again. Thus, in the light of the principle of the best-interests of the child, it is underlined that such children who are at risk of being re-trafficked upon return, shall not be returned to their country of origin, if it is not in their best interests. 81 Instead, such victims shall receive assistance as victims of a serious human rights violation.82 In this regard, it is emphasized that the State shall accord the individual the benefit of the doubt – if there is any possibility that the individual is a child, she/he shall
78 Under subparagraph d.) regarding the right to life, survival and development in Article 6, 79 Tobin J., The UN Convention on the Rights of the Child: A Commentary, Art. 35, Protection
against the Abduction, Traffic, and Sale of Children, p. 1356.
80Recommended Principles and Guidelines on Human Rights and Human Trafficking, UN. 81 CO Denmark, CRC/C/DNK/CO/4 para 62(g). See also CRC GC 6 (n 84) para 53.
82 General Comment No. 6. (2005), CRC/GC/2005/61, Treatment of Unaccompanied and
38
be treated as such. 83 These principles are also affirmed by the General Assembly, giving specific recommendations on how to treat unaccompanied/separated children. For ex., the General Assembly holds that states shall initiate a necessary initial assessment process upon the child’s arrival, registrating the child’s background, in a way where the physical integrity and human dignity of the child is respected. The registration shall include: reasons for why the child is separated and, an evaluta-tion of the particular vulnerabilities and protecevaluta-tion needs of the child. This is for the reason of determining if there exists a need for international protection, due to for ex. a well-founded fear of persecution for some reason. The General As-sembly holds that, even if space exists for states to displace the best interests of the trafficked child, in order to privilege other considerations such as immigra-tion control or public order, the state shall not do so without due consideraimmigra-tion.84
4.2.4 A Concluding remark on the General Comment
As the General Assembly and the CRC Committee have stated in their reports, in the previous section, the principle of the best interests of the child must be a guiding point in all circumstances regarding the victims of child trafficking. How-ever, this principle is not evident in Article 35, as pertaining to the prevention of child trafficking. In this regard, a transformation of Article 35 in order to include the term “protection” as an obligation for states to take measures on, would ben-efit the state parties. The authorities might then address the vulnerability of chil-dren to a greater extent – understanding the need for special treatment in relation to trafficked children. In this sense, every possible measure must be considered, in order to ensure that the child’s persective is being taken into account.85
Also, the CRC could be more effective if it included that children of traffick-ing have the same rights to treatment of trauma and right to education as other children, considering the fact that not all trafficked children are nationals, in ac-cordance with the principle of non-discrimination. Moreover, the protection measures could include that victims of child trafficked that are involved in a legal process, shall have a right to an effective remedy, with specialized staff.86 These are all factors that are directly linked to the principle of the best interests- and the non-discrimination of the child.
83 Ibid.
84General Comment No 6: Treatment of Unaccompanied and Separated Children Outside their
Country of Origin’ (1 September 2005) CRC/GC/2005/6 paras 19–22 (‘CRC GC 6’).
85 Liefaard T et al., The United Nations Convention on the Rights of the Child, Taking Stock after
25 Years and Looking Ahead, Brill, 2016, p. 449-450.
