First post, let’s not sugar coat it, let’s dive straight in with the real issues. Trafficking is an abhorrent violation of anyone’s human rights, let alone a vulnerable child. It might not be the shortest post but we’ll give such an important issue the time it deserves. Read on to unpack the realities of our legal system and the effect on the trafficking of migrant children.
The ‘Refugee Crisis’, a term bounced around our media since 2015, but what does it mean? The current Refugee Crisis refers to the sudden and large influx of migrants crossing European borders as triggered by the increasingly in-habitable environments in Syria, South Sudan and Iraq to name but a few. Consequently, there has been mounting pressure on European states to accept those seeking refuge and assist them. This pressure on the states, as we have recently seen reach breaking point in Italy, makes the term Refugee Crisis two fold. Firstly, it is a crisis because of the conditions that the refugees are fleeing in their home states. Secondly, it is a crisis because of the insurmountable pressure being piled onto European states, putting a strain on resources and funds.
As time goes on and the number of migrants attempting to cross into Europe increases, resources become more and more stretched and the conditions to which they arrive in Europe rapidly deteriorate. As one can imagine, such factors are not conducive to a safe environment for children. When we combine increasingly cramped and unsafe environments, with overloaded European governments and a lack of protective legal provisions, it is no surprise that it has become a breeding ground for the trafficking of migrant children.
“Europe is the world’s most dangerous destination for “irregular” migration”. – International Organization for Migration
The very fact that these children are placed at risk of trafficking through no fault of their own tugs at my heart strings. As if they haven’t already been through enough? They are a refugee by virtue of the fact they are fleeing persecution of some kind in their home country, not by choice. Yet, they are greeted in Europe with another form of persecution (albeit complex to prove under the Refugee Convention), which may be equally as horrifying as the one they were running from in the first place.
So, why is trafficking on the rise? Of course there are many angles from which we could approach this, however we will proceed from a legal perspective. Look away now if brief descriptions of legal instruments is not your thing.
“No one chooses to be a refugee”. — United Nations
Europe has several legal provisions in place, both international and regional, for the protection of refugees and children.
•The Refugee convention, designed to protect those seeking asylum but not necessarily set up for the protection of children.
•The Convention on the Rights of the Child, the pinnacle of child protection whose principles infiltrate all other instruments when residing over a child.
•The Palermo Protocol, formulated to ‘Prosecute, Protect, and Prevent’ human trafficking.
•The European Convention on Human Rights, a regional instrument which in an evolutive interpretation of Article 4 (The Prohibition of Slavery, Servitude and Forced or Compulsory Labour) has been found to also prohibit trafficking.
•The Council of Europe Convention Against Trafficking in Human Beings, designed to supplement the gaps in the Palermo Protocol.
•The Dublin Regulation III, the latest recast to the Dublin Regulations which dictate where an asylum seeker will have their claim reviewed. Most recently, Dublin Regulation III was altered to benefit children who may now have their claim heard in the country they are presently in, not the state of first entry.
These provisions are just a selection of the laws and practises in place to protect refugees and children, so theoretically Europe appears very well equipped to protect children from trafficking. Yet, trafficking is on the rise so something must be going wrong somewhere.
Lack of Enforcement
Put simply, we know that the human rights legal instruments exist, so their ineffectiveness is largely due to a lack of compliance with them from European states. It appears that states have ratified legal frameworks to benefit themselves, to retain a favourable reputation on the international plain, yet in reality possess an unwillingness to follow through with protective obligations.
For example, states are required to assess the best interest of the child (Art 3 Convention on the Rights of the Child) arriving at its borders. This would require them to accept them across the border and to conduct a comprehensive assessment of their needs. However, states are increasingly implementing non-entrée provisions, denying child asylum seekers access to their jurisdiction. Consequently, the child faces a potential return journey where they remain susceptible to interception from traffickers at sea, or in their home state. How can this be in compliance with enforcing the best interest of the child in any way, shape or form? By doing this states are clearly not enforcing several of their obligations under human rights law, and are encouraging an increasing correlation between refugee movements and trafficking!
We should however note that despite the clear correlation occurring due to lack of enforcement, it may not be done out of malice or selfishness. The pressure on the states to accept migrants may simply be rendering them incapable of helping every migrant that arrives at their borders. That however, remains a whole other topic for a blog post!
Ineptness of legal provisions to address the issue of trafficking
Unfortunately, the legal provisions that are in place are not best formulated to deal with victims of human trafficking. The Refugee Convention for example does not allow children who may be trying to escape trafficking in their home state as a result of the turmoil unfolding there, to readily fall within the ambit of the conventions protection. There are stringent tests they must pass regarding the interpretation of the wording of the convention, which can be complex and make it difficult to afford victims of human trafficking protection. Thus, denying them the protection which the Refugee Convention can bestow upon an individual, and placing them at risk of being re-trafficked when denied refuge.
What about protecting those already within the borders of Europe, living in camps or travelling across it? The Palermo Protocol previously mentioned has been implemented to deal with this. Its three tier structure to ‘Prosecute, Protect and Prevent’ sounds encouraging. However, it has been heavily criticised for being implemented with a law enforcement approach instead of a human rights one. State practice has shown that states give more effect and prioritisation to the prosecution of such offences than the prevention or protection. Of course, prosecution of those who are trafficking is of the utmost importance, but it causes a tendency to surpass the protective and preventative elements. By focusing on law enforcement, it does not address the crux of the matter. The crux being that we want the human rights of the children to be upheld in the first place, not just recognised after the violation has occurred.
The refugee crisis is an unfamiliar and escalating situation. To effectively decrease the trafficking of children within European borders, the legal instrument and the enforcers implementation of it needs to evolve. More emphasis is needed on the protection of the vulnerable children’s rights, and preventative measures need to be stepped up, all whilst maintaining the prosecution of offenders in place already. Until Europe can do this, the crisis is providing a pool of open opportunities for traffickers to target children mixed up in the chaos, and at present they are doing just that.
These two examples are two of many which demonstrate the inadequacy of legal provisions to properly protect those vulnerable to trafficking in this crisis, both inside and outside the European borders. It is often an issue which gets overlooked as media attention is directed toward more urgent life threatening matters such as the lack of food, shelter or sanitary conditions which trouble the refugees.
It is now 2018, and as asylum seekers continue to flood our borders, this issue will only get worse. As states become more fatigued under the pressure to assist, they are unlikely to begin complying with their legal obligations that could help protect children. In addition the unsuitableness of the legal instruments to deal with and address trafficking allow a perpetual cycle of trafficking to unfold. A serious re-think of the laws in Europe, alongside the practises and capabilities of states needs to be had if the issue is to stop escalating. Trafficking of vulnerable children violates many human rights laws, and more attention needs to be afforded to the issue to prevent the atrocities of the crime from being endured by anymore.
For a more in depth and academic discussion on this issue visit the Essay section of the blog to read the essay titled ‘Assess the Impact of Recent Refugee Movements into Europe on the Human Trafficking of Children: An Analysis of Legal Instruments’.