Published in May 2019
This module is a resource for lecturers
Protecting smuggled and trafficked children: The international legal framework
Modules 2 and 8 explain the human rights and protection needs of smuggled migrants and victims of trafficking respectively. Each Module sets out assistance and protection measures in the Protocols against Smuggling of Migrants and Trafficking in Persons, as well as human rights and good practice standards derived from international law more broadly. The various measures and rights apply to children as well. The content of this Module should be read in conjunction with Modules 2 and 8.
Nonetheless, international law recognizes a distinction between children and adults and requires that children be granted a greater level of protection. This is explicit in both the Protocols and other international treaties and materials. The foremost international source of children's rights is the legally binding Convention on the Rights of the Child, which, as its name indicates, specifically concerns children (defined under article 1 as "every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier"). Articles of the Convention especially relevant to smuggled and trafficked children are discussed after a brief analysis of how children are addressed in the Protocols. This section also examines some international guidance and good practice on the treatment of smuggled and trafficked children.
Protection under the Protocols
References to children in the Protocols against Smuggling of Migrants and Trafficking in Persons are somewhat limited (see Lelliott 2017 for an analysis of protection measures for children under both Protocols,). Article 16(4) of the Protocol against Smuggling of Migrants contains the sole mention of children in that Protocol. It requires that States consider the "special needs" of children. While these "special needs" are not further explained in the Protocol itself, Module 9 of the Basic Training Manual on Investigating and Prosecuting the Smuggling of Migrants (p. 8), published by UNODC, gives some guidance. It recommends that, at a minimum, children should:
- Be removed, immediately, from the source of any danger
- Not be allowed further contact with any suspects
- Be seen by a medical professional (for health issues but also for possible evidential issues)
- Be provided with additional clothing or nappy changes (if required), fed, given refreshments and if old enough, given at least a pencil and paper to provide them with something to do
- Be dealt with thereafter by trained officers.
In contrast to the Protocol against Smuggling of Migrants, the Protocol against Trafficking in Persons contains more references to the protection needs of children, not least in its full title. Importantly (and as explained in Module 6), the definition of trafficking itself is modified where a child victim is involved. The omission of the "means" element in such cases acknowledges that children are "unable to consent to certain types of activities" regardless of the means used (UNODC 2014, pp. 7 and 21). It further recognizes the special rights of children and the special vulnerabilities of child victims of trafficking (Gallagher 2001, p. 989).
When implementing assistance and protection measures under article 6 of the Trafficking in Persons Protocol, States must consider, under article 6(4), the age of victims and the "special needs of children, including appropriate housing, education and care". Supplementary materials to the Protocol encourage the appointment of a specially trained guardian for child victims until a durable solution for their protection has been implemented and, in cases where the age of a victim of trafficking is uncertain, victims should be treated as children until their age is verified. Where children are involved in legal proceedings against their traffickers, safeguards and protection measures must be "strongly emphasized, with steps taken to guarantee their safety" (Legislative Guides, pp. 289-290).
As noted in Modules 2 and 8, both Protocols contain saving clauses which operate to preserve the rights of smuggled and trafficked persons under international refugee, human rights and humanitarian law. While the principle of non-refoulement is highlighted in each Protocol's saving clause, these clauses have a wide ambit. Given the limited protection granted by the Protocols (and their parent Convention), it is in the wider international framework that the most significant protection for smuggled and trafficked children is found (Schloenhardt and Lelliott 2018, pp. 130-131).
The Convention on the Rights of the Child
Adopted in 1989, and enjoying unparalleled acceptance internationally (all 193 Member States of the United Nations but one are parties to it), the Convention on the Rights of the Child is the principal international instrument detailing the rights of children. It is, thus, fundamental to the protection of smuggled and trafficked children.
The rights contained in the Convention must be applied without discrimination to all children. As in other international human rights treaties (see Module 8), rights cannot be denied to children on any basis, unless in the pursuit of a "legitimate aim" and in accordance with "international human rights norms and standards" (Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families and UN Committee on the Rights of the Child 2017, para. 22). In particular, minors' migration status, ethnicity, nationality, documentation status, reason for migration and means of migrating cannot be a basis for differential treatment. Smuggled and trafficked children, whatever their legal status, have the same rights as any other child within a State's jurisdiction.
Convention on the Rights of the Child
"States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child's or his or her parent's or legal guardian's race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status".
Best interests of the child
The "best interests" principle, enshrined in article 3 of the Convention on the Rights of the Child, is a legal doctrine that mandates that:
[i]n all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration (Convention on the Rights of the Child, article 3(1)).
For smuggled and trafficked children, this means that States must consider the best interests of a child, in any decision affecting them, including, for example, immigration procedures, housing and repatriation and deportation.
The best interests principle has been subject to extensive analyses by international bodies and experts. It is widely seen as a threefold concept: as a substantive right, a fundamental interpretative legal principle and a rule of procedure. The use of both the singular and plural "child" in article 3(1) means that the principle is both a collective and singular right. In addition, the word "actions" in article 3(1) does not only encompass positive acts; it also extends to omissions (i.e. failures to act). This means that where a State fails, for example, to provide appropriate nutrition to a child this would be a failure to act in the child's best interests (Zermatten 2010). Importantly, it is in the best interests of children to enjoy all the rights they are entitled to under the Convention on the Rights of the Child (Tobin 2006, p. 287).
While the best interest of the child is framed as "a" primary consideration, rather than the paramount or only consideration, it has generally been argued that the best interests of a child can only be overridden - in rare cases - by other exclusively rights-based considerations (UNHCR 2008). Experts have noted that considerations such as migration control or deterrence of migrant smuggling cannot displace States' obligation to take actions that are in the best interests of children. For example, the United Nations Committee on the Rights of the Child has stated in its General Comment No. 6, in the context of return procedures:
[e]xceptionally, a return to the home country may be arranged, after careful balancing of the child's best interests and other considerations, if the latter are rights-based and override best interests of the child. Such may be the case in situations in which the child constitutes a serious risk to the security of the State or to the society. Non-rights-based arguments such as those relating to general migration control, cannot override best interests considerations.
Implementation of the best interests principle in practice is discussed further in the section 'Best interests determinations and assessments'.
Rights to care and support
Children must be guaranteed minimum standards of care and support. Numerous rights in the Convention on the Rights of the Childare relevant in this respect, including rights in articles 19, 24, 27 and 28 (among others).
Convention on the Rights of the Child
"States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse."
"States Parties recognize the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health. States Parties shall strive to ensure that no child is deprived of his or her right of access to such health care services."
"States Parties recognize the right of every child to a standard of living adequate for the child's physical, mental, spiritual, moral and social development."
"States Parties recognize the right of the child to education, and with a view to achieving this right progressively and on the basis of equal opportunity, they shall, in particular: (a) Make primary education compulsory and available free to all."
Underpinning these and other rights is the fundamental right to life in article 6 of the Convention, which requires States to ensure "to the maximum extent possible the survival and development of the child". Pursuant to article 12, children should also be permitted to express their views as to care arrangements and with regard to other decisions made affecting them. Their views must be given appropriate weight by decision makers, "in accordance with the age and maturity of the child".
To ensure adequate welfare for all children, protection measures must take into account their individual backgrounds and characteristics, in particular their age, gender, culture, religion or disabilities. Physical and emotional care must be a primary goal in a setting that encourages "general development" (UN Committee on the Rights of the Child 2005, para. 40). Accommodation should be provided in accordance with article 27 of the Convention, which obligates States to provide a standard of living sufficient for minors' physical, mental, spiritual, moral and social development, and take appropriate measures to provide assistance with particular regard to "nutrition, clothing and housing". Article 20 of the Convention requires that, where children are unaccompanied or separated from their parents and other legal guardians, they should be placed in suitable alternative care. Such children are also "entitled to special protection and assistance provided by the state".
Detention of children
The Convention on the Rights of the Child, and international law more broadly, places strict limits on the detention of children, including in the context of migration. Article 37 states that, while detention of children is not completely prohibited, it must be a last resort, must be maintained for the shortest appropriate period of time, must be justified according to an appropriate aim and must not be imposed arbitrarily. Detention is arbitrary where it is unlawful, unpredictable, unjust, disproportionate or not carried out for a legitimate purpose. Where the purpose of detention is border protection and immigration control, it can only be used for documentation and registration purposes. UNHCR's (2017) position is that immigration-related purposes - including deterrence of migrant smuggling (and irregular migration generally) - are not legitimate purposes for the detention of children.
International norms require a high standard of care for detained children, and their release from detention must be a state's immediate priority. The United Nations Committee on the Rights of the Child has discussed the requirements when children (especially unaccompanied minors) are detained.
United Nations Committee on the Rights of the Child (2005), General Comment No 6 (para 63)
"Facilities should not be located in isolated areas where culturally-appropriate community resources and access to legal aid are unavailable. Children should have the opportunity to make regular contact and receive visits from friends, relatives, religious, social and legal counsel and their guardian. They should also be provided with the opportunity to receive all basic necessities as well as appropriate medical treatment and psychological counselling where necessary. During their period in detention, children have the right to education which ought, ideally, to take place outside the detention premises in order to facilitate the continuance of their education upon release. They also have the right to recreation and play [and] shall be provided with prompt and free access to legal and other appropriate assistance."
Where children are separated from their parents or other family members, article 10(1) of the Convention on the Rights of the Childrequires States to treat applications for family reunification by children or their parents in a "positive, humane and expeditious" manner. Article 10(2) obliges States to respect the right of children, or their parents, to enter their country for the purpose of family reunification. Furthermore, in accordance with article 9, a separated child must be reunited with his or her parents where possible. This obligation may only be displaced where reunification would not be in the best interests of the child (for example, where there has been abuse or neglect of the child by family members), or in exceptional circumstances where, for example, the child poses a serious risk to the security of the State. As with the best interests principle, considerations related to migration control will not override the obligation (UN Committee on the Rights of the Child 2005, paras. 81-85).
International Guidance and Good Practice
Beyond international treaties, there is also a voluminous quantity of international materials affirming and guiding the application of rights to children, in a general sense as well as in the context of migration, smuggling and trafficking. A few of these are highlighted in this section.
First, it is worth noting that the 2016 New York Declaration for Refugees and Migrants and the 2018 Global Compact for Safe, Orderly, and Regular Migration both emphasize States' international obligations to children in the context of migration. This is in addition to numerous resolutions by the United Nations General Assembly, including, for example:
- Resolution 71/177 on the Rights of the Child (30 January 2017); and
- Resolution 69/187 on Migrant Children and Adolescents (11 February 2015).
New York Declaration for Refugees and Migrants (para 59)
"We reaffirm our commitment to protect the human rights of migrant children, given their vulnerability, particularly unaccompanied migrant children, and to provide access to basic health, education and psychosocial services, ensuring that the best interests of the child is a primary consideration in all relevant policies."
2018 Global Compact for Safe, Orderly, and Regular Migration (para 23)
"We commit to respond to the needs of migrants who face situations of vulnerability, which may arise from the circumstances in which they travel or the conditions they face in countries of origin, transit and destination, by assisting them and protecting their human rights, in accordance with our obligations under international law. We further commit to uphold the best interests of the child at all times, as a primary consideration in situations where children are concerned, and to apply a gender-responsive approach in addressing vulnerabilities, including in responses to mixed movements.
To realize this commitment, we will draw from the following actions: (…)
(e) Account for migrant children in national child protection systems by establishing robust procedures for the protection of migrant children in relevant legislative, administrative and judicial proceedings and decisions, as well as in all migration policies and programmes that impact children, including consular protection policies and services, as well as cross-border cooperation frameworks, in order to ensure the best interests of the child are appropriately integrated, consistently interpreted and applied in coordination and cooperation with child protection authorities.
(f) Protect unaccompanied and separated children at all stages of migration through the establishment of specialized procedures for their identification, referral, care and family reunification, and provide access to health care services, including mental health, education, legal assistance and the right to be heard in administrative and judicial proceedings, including by swiftly appointing a competent and impartial legal guardian, as essential means to address their particular vulnerabilities and discrimination, protect them from all forms of violence, and provide access to sustainable solutions that are in their best interests."
The Principles and Guidelines, Supported by Practical Guidance, on the Human Rights Protection of Migrants in Vulnerable Situations, published by OHCHR and the Global Migration Group in 2018, state, in Principle 10, that the rights of all children in the context of migration must be guaranteed. In particular:
- All legislation and policies on such children must be based on "international human rights law, and in particular the principles of non-discrimination, the best interests of the child, the full participation of all children, and the survival and physical, mental, spiritual, moral and social development of migrant children and children of migrants". (p. 42).
- "The child's best interests should always take precedence over migration management objectives or other administrative considerations. Children in the context of migration must be treated first and foremost as children. All children, regardless of age, should enjoy equal standards of protection." (p. 42).
UNICEF and OHCHR have also published principles and guidelines on the specific protection of child victims of trafficking.
"The particular physical, psychological and psychosocial harm suffered by trafficked children and their increased vulnerability to exploitation require that they be dealt with separately from adult trafficked persons in terms of laws, policies, programmes and interventions. The best interests of the child must be a primary consideration in all actions concerning trafficked children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies. Child victims of trafficking should be provided with appropriate assistance and protection and full account should be taken of their special rights and needs."
"All actions undertaken in relation to child victims shall be guided by applicable human rights standards and in particular by the principles of protection and respect for children's rights as set out in the United Nations Convention on the Rights of the Child (CRC).
State obligations under the CRC apply to each child within the State's territory and to all other children subject to its jurisdiction. Therefore, the enjoyment of rights stipulated in the Convention is not limited to children who are citizens of a State, but must also be available to all children - including trafficked children - irrespective of their nationality, immigration status or statelessness.
The involvement of child victims in criminal activities shall not undermine their status as both a child and a victim, or their related rights to special protection.
States are required not only to refrain from measures infringing on children's rights, but also to take positive measures to ensure the enjoyment of these rights without discrimination.
Obligations deriving from the Convention apply to all branches of government, including executive, legislative and judicial. They include the obligation to establish national legislation and administrative structures; and the necessary research, information, data compilation and comprehensive training activities to support such measures."
Also worth emphasizing are various guidelines pertaining to the rights and protection of children who are asylum seekers, are stateless, or who have other sources of vulnerability; for example where they are persons with disabilities or victims of other human rights abuses (such as torture).
Regarding smuggled and trafficked children seeking asylum, of particular pertinence are:
- UNHCR's Guidelines on International Protection: Child Asylum Claims under Articles 1(A)2 and 1(F) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees;
- UNHCR's Guidelines on Policies and Procedures in Dealing with Unaccompanied Children Seeking Asylum; and
- UNHCR's Guidelines on International Protection: The Application of Article 1A(2) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees to Victims of Trafficking and Persons at Risk of being Trafficked.
While it is beyond the scope of this Module to examine refugee law in detail, as a general point, where an asylum seeker is a child, the provisions of the 1951 Convention on the Status of Refugees should be interpreted in a child-sensitive manner, with substantive and procedural aspects of refugee determinations tailored to meet the needs and vulnerabilities of children. For example, children should be afforded a greater benefit of the doubt as to the existence of a well-founded fear, which should be assessed from a child's perspective. UNHCR (2009, para. 13) also states that persecution should be interpreted in a child-sensitive manner, and that '[i]ll-treatment which may not rise to the level of persecution in the case of an adult may do so in the case of a child'. Further, detailed analysis of children's refugee claims can be found in Pobjoy (2017).
Protection in practice