Chapter 4

INTERNATIONAL LEGAL
FRAMEWORK AND
OTHER INITIATIVES
 Chapter 4

INTERNATIONAL LEGAL FRAMEWORK

AND OTHER INITIATIVES

To protect our kids, we've given law enforcement

new tools to fight human trafficking.
-Brett Guthrie

Child trafficking involves displacing a child for the purpose of economic

exploitation. In the case of children, force, fraud and coercion do not need to be
demonstrated. It is estimated that 1.2 million children are trafficked each year
(UNICEF, 2009). Like adults, children are trafficked for the purpose of labour and
sexual exploitation.

International laws lay down standards that have been agreed upon by all
countries. By ratifying an international law or convention or a covenant, a country
agrees to implement the same. To ensure compatibility and implementation, the
standards set forth in these international conventions are to be reflected in
domestic law. Implementing procedures are to be put in place as needed and the
treaties must be properly enforced.

The following are the most important International Conventions regarding

trafficking of children:

1. The Convention on the Rights of the Child, 1989.

2. The Optional Protocol to the Convention on the Rights of the Child on the
Sale of Children, Child Prostitution and Child Pornography, 2000.

3. The Convention on the Elimination of All forms of Discrimination against

Women, (CEDAW) 1979.

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 4. The Protocol to Prevent, Suppress and Punish Trafficking in Persons,
Especially Women and Children.

5. Declaration on Social and legal principles relating to the Protection and

Welfare of Children, with special reference to Foster placement and
adoption nationally and internationally, 3rd December, 1986.

6. SAARC Convention on Regional Arrangement for the Promotion of Child

Welfare, 2002.

The detailed legal framework is discussed in the next sections.

4.1 Legal Framework against Trafficking at United Nations Level

The trafficking of women and children is a matter of global concern as it

involves the violation of fundamental human rights. Although numerous separate
abuses are committed during the course of trafficking, which themselves
contravene both national and international law, it is the combination of
displacement from the community and commercialised exploitation that makes
trafficking a violation distinct from its component parts.

There is a large body of existing international and national instruments in

the form of declarations, conventions and resolutions prohibiting trafficking. An
overview of selected international conventions regulating trafficking in human
beings is presented below.

International Convention for the Suppression of the Traffic of the Women

and Children, 1921

The treaty prohibits the enticing or leading away of a woman or girl for
immoral purposes, to be carried out in another country.

Universal Declaration of Human Rights, 1948

Article 4 of the Declaration prohibits all forms of slavery and the slave
trade. Article 13 recognises the right of persons to freedom of movement and
residence and Article 15 recognises the right to nationality.

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Convention for the Suppression of the Traffic in Persons and of the
Exploitation of the Prostitution of Others, 1949:

This convention is a compilation of four previous international

conventions (Conventions of 1904, 1910, 1921 and 1933). This convention made
procurement, enticement, etc. for purposes of prostitution punishable irrespective
of the age of the person involved and his/her consent to the same (Article 1).
Brothel keeping was also denounced to be illegal and punishable (Article 2). The
convention provided for repatriation (Article 19) and rehabilitation (Article20)
measures. However, the 1949 Convention is limited to trafficking for prostitution
and related activities.

Supplementary Convention on the Abolition of Slavery, Slave Trade and

Institutions and Practices of Slavery, 1956 (Slavery Convention):

This convention condemned a variety of slavery-like practices, including

debt bondage and forced marriage. States Parties undertook to establish suitable
minimum ages of marriage and registration of marriages.

Abolition of Forced Labour Convention, ILO, 1957:

Under this convention, States Parties undertook to suppress any form of

forced or compulsory labour as a means of political coercion, economic
development, labour discipline, or racial, social, national or religious
discrimination.

International Covenant on Civil and Political Rights, 1966

Forced labour and slavery are prohibited by Article 8 of the ICCPR.

Article 24 outlines the rights of children.

International Convention on Economic, Social and Cultural Rights

(ICESCR) 1966:

Article 10 of this convention stipulates that States are responsible for

protecting children from exploitation and must lay down the minimum age for
their employment.

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Minimum Age Convention, 1973:

The aim of this convention was to prohibit and regulate child labour and
restrict engagement of children in hazardous work

Convention on the Elimination of all forms of Discrimination against

Women, 1979(CEDAW):

Article 6 of CEDAW requires States Parties to take all appropriate

measures, including legislation, to suppress all forms of traffic in women.

United Nations Convention against Torture and other Cruel, Inhuman or

Degrading Treatment or Punishment, 1984:

The convention provides against the expulsion or return of a person to

another state if there are substantial grounds for deeming her to be in danger of
torture. Victim compensation measures are also stipulated in the convention.

Tourism Bill of Rights and the Tourist Code 1985:

Adopted by the WTO, the Code enjoins that the State should preclude any
possibility of the use of tourism to exploit others for purposes of prostitution.

United Nations Convention on the Rights of the Child, 1989

Article 11 requires States Parties to take measures to combat the illicit

transfer and non return of children abroad. Under Article 34 and 35, States Parties
must take appropriate national, bilateral and multilateral steps to protect the child
from all forms of sexual exploitation and sexual abuse as also to prevent the
abduction, sale of or traffic in children.

At the international level, the Convention on the Rights of the Child

(CRC) was approved by the General Assembly of the United Nations on 20
November 1989 (the thirtieth anniversary of the adoption of the Declaration of the
Rights of the Child). This Convention was formally opened for signature and
ratification on 26 January 1990, and various nations vied to be the first to sign and

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ratify, a race that was won by Ghana when the Secretary General of the United
Nations received that country‟s instrument of ratification on 5 February 1990.
Previous United Nations human rights treaties had taken several years to receive
the minimum number of ratifications necessary for their entry into force. The
CRC had behind it the full resources of UNICEF which, having decided that the
Convention was in the best interest of the child, determined to achieve the target
of universal ratification as a top priority. Allied with UNICEF in this effort was a
worldwide network of non-governmental organisations, focussed in the NGO
Group on the Convention. These included Save the Children Alliance, which had
a long standing claim of priority in the field of child rights, and Defence for
Children International, which chaired the NGO Ad-hoc Group that worked on the
negotiation of the Convention. Many of the proposals made by the NGO Ad-hoc
Group for the Convention were adopted by the Government representatives on the
Working Group, and are reflected in the final text of the Convention. The resultant
effect of all this was that in virtually every country there was a coherent and
concerted pressure for ratification applied by UNICEF, from the outside, and by
national non-governmental coalitions or coordinating committees for child rights,
from the inside. The net outcome was that, by 2 September 1990, just over 8
months after the Convention had been opened for signature, the twentieth
ratification had been received and the Convention came into effect – more quickly
than any other human rights treaty. The previous record for this kind was held by
the Convention on the Elimination of All Forms of Discrimination Against
Women (CEDAW), which also had a strong non-governmental lobby pushing for
its ratification in many countries, but it took almost three times as long as the
CRC to come into effect.

When a country ratifies a UN Convention, it becomes law within its

territory. To monitor progress achieved in the realisation of children‟s rights, the
CRC has established an international expert body, the Committee on the Rights of

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the Child, which provides awareness and understanding of the principles and
provisions of this treaty. The CRC Committee consists of ten experts which
ensure that the law is being enforced. The Government of India ratified the CRC
on 11 December 1992. As of now, except for Somalia and the United States of
America, all the countries around the world have ratified the CRC.

The latter, however, has signed the Convention, thereby indicating general
support for its principles and an intention not to take actions that would actively
undermine those principles.

The CRC is “the most complete statement of child rights ever made”. It
takes the ten principles of the 1959 Declaration of the Rights of the Child, and
expands them to 54 articles, of which 41 relate specifically to the rights of
children, covering almost every aspect of a child‟s life. It is indeed an innovative
document in overall human rights theory and practice. In fact, it is the first United
Nations human rights instrument since the UDHR which brings together as
inextricable elements of the life of an individual human being the full range of
civil and political rights, and economic, social and cultural rights. It can do this
because it treats children as complete individuals, rather than as elements in an
economic or socio-political system. The Convention aims to create a balance
between the rights of children and those of the parents or adults responsible for
their survival, development and protection. This is achieved by according children
the right to participate in decisions concerning them and their future. It is, thus, a
holistic document for each article is intertwined with the others. Not only this, the
various articles exert an influence on the interpretation and implementation of
each other. In other words, the rights defined in the Convention are
interdependent; as none of the articles can be dealt in isolation. They have to be
applied and implemented simultaneously if at all the rights of every child is to be
respected. The articles of the CRC could be seen at a glance is given below:-

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 CRC at a Glance
Preamble

Part I Operational Articles

Article 1 Defines child as a person who is below the age of 18 years.

Article 2 Non-discrimination

Article 3 Best interest of the child

Article 4 Measures for implementation of rights

Article 5 Parents, family, community rights and responsibilities

Article 6 Right to life

Article 7 Right to name and nationality

Article 8 Preservation of identity

Article 9 Non-separation from parents

Article 10 Family reunification

Article 11 Illicit transfer and non-return of children abroad

Article 12 Expression of opinion

Article 13 Freedom of expression and information

Article 14 Freedom of thought, conscience and religion

Article 15 Freedom of association and peaceful assembly

Article 16 Privacy, honour, reputation

Article 17 Access to information and media

Article 18 Parental responsibility

Article 19 Abuse and neglect (while in family or in care)

Article 20 Protection of child who is deprived (temporarily or permanently) of

family environment

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Article 21 Adoption

Article 22 Refugee children

Article 23 Disabled children

Article 24 Health care

Article 25 Periodic review of children in care

Article 26 Social security

Article 27 Standard of living

Article 28 Education

Article 29 Aims of education

Article 30 Children of minorities, indigenous children

Article 31 Play, recreation and participation in cultural life and the arts

Article 32 Economic exploitation

Article 33 Protection from narcotic and psychotropic substances abuse

Article 34 Sexual exploitation

Article 35 Abduction/sale/trafficking of children

Article 36 Other forms of exploitation

Article 37 Torture, capital punishment, deprivation of liberty

Article 38 Armed conflicts

Article 39 Recovery and reintegration (following abuse, torture, armed conflicts

etc.)

Article 40 Juvenile Justice

Article 41 Rights in other national or international instruments

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Part II Enforcement

Article 42 Dissemination of the principles and provisions of the Convention

Article 43 Establishment of the Committee

Article 44 Reports from States Parties

Article 45 Method of work of the Committee

Part III Administrative Issues

Article 46 Signature

Article 47 Ratification

Article 48 Accession

Article 49 Entry into force

Article 50 Amendments

Article 51 Reservations

Article 52 Denunciation

Article 53 Depositary

Article 54 Authentic texts

As can be seen from the above, the Convention not only provides for
monitoring of the performance of States Parties at the international level but also
what is being done for children at the national level. Article 43 sets out the criteria
for the establishment of the United Nations Committee on the Rights of the Child,
which receives and reviews reports prepared by States Parties about their progress
in implementing the Convention as required by Article 44. Unlike other
international initiatives that have been taken on behalf of children, in particular,
the Declaration and Plan of Action that emerged out of the World Summit for
Children that was held at New York in September 1990, there is no requirement
per se that the Convention is to be fully implemented by all countries within a

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stipulated date. Instead, all countries are required to make constant progress
towards its implementation, but at a rate that suits their economic and political
situation within the resources that are available to them. In nutshell, the CRC does
not have a time limit nor does it have an expiry date. The obligations on countries
to live up to the rights of children will not cease, but will continue to require
action and attention of each one of us, including the Government, to take the onus
of protecting and respecting rights of children not because of an international
agreement but because “that‟s just the way children are to be treated”. A Special
Rapporteur has also been appointed on the Sale of Children, Child Prostitution
and Child Pornography by the United Nations General Assembly who analyses
instances of sexual exploitation of children in various countries.

At the international front, the World Conference on Human Rights was

held in Vienna in the year 1993. The Vienna Declaration and Programme of
Action urged States to ratify and implement promptly the CRC and the CEDAW.
Taking a cue from all these developments, the Government of India submitted
India‟s Initial State Party Report on CRC to the Committee on the Rights of the
Child in March 1997. This Report was due for submission in 1995. In the year
1995, however, a four Member team of the CRC Committee visited India in
October to make on the spot assessment about the specific problems of children in
India. The CRC Committee as mentioned above is made up of ten independent
experts.

Governments that ratify the Convention must report to the Committee,

first within two years of ratification, and then every five-year. The Committee has
circulated detailed guidelines to States Parties as to what their reports should
cover as the process of reporting involves a rigorous review of actions taken by
them.

It encourages “popular participation and public scrutiny of Government

policies”, which goes on to show that States Parties are publicly and
internationally accountable for the treatment meted out to their children.

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Convention on Protection of Rights of Migrant Workers, 1990

This Convention seeks to put an end to the illegal or clandestine

recruitment and trafficking of migrant workers and lays down binding
international standards for their treatment, welfare and human rights.

Convention on Protection of Rights of Migrant Workers, 1990

This Convention seeks to put an end to the illegal or clandestine

recruitment and trafficking of migrant workers and lays down binding
international standards for their treatment, welfare and human rights.

The ILO Convention 182 on the Worst Forms of Child Labour (1998)

Article 3 of this Convention defines the worst forms of child labour

comprising all manifestations of slavery or practices similar to slavery, such as the
sale and trafficking of children, debt bondage and servitude and forced or
compulsory labour, etc.

UN Protocol to Prevent, Suppress and Punish Trafficking in Persons,

Especially Women and Children, 2000

The UN Trafficking Protocol seeks to create a global language to define

trafficking in persons, especially women and children, assist victims of
trafficking, and prevent trafficking in persons. It supplements the United Nations
Convention against Transnational Organised Crime, 2000. Article 3(a) of the
Protocol defines „trafficking in persons‟ as “the recruitment, transportation,
transfer, harbouring or receipt of persons, by means of 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”.

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 This victim-friendly protocol provides for preventive measures (Art. 9),
victim compensation and privacy protection (Art. 6), repatriation (Art. 8) and
strengthened border control measures (Art. 11 & 12).

Optional Protocols to the Convention on the Rights of the Child

In 2000, the UN General Assembly also adopted two optional protocols to

strengthen the Convention. One protocol required governments to increase the
minimum age for recruitment into the armed forces from 15 years and to ensure
that members of their armed forces under the age of 18 do not take a direct part in
armed conflict.

The other protocol provided detailed requirements for governments to end

the sexual exploitation and abuse of children. It also protects children from being
sold for non-sexual purposes, such as other forms of forced labour, illegal
adoption and organ donation.

The UN Trafficking Protocol

Article 3 of the UN Trafficking Protocol contains a definition of human

trafficking which applies to cases of both transnational and internal trafficking
(although the Protocol supplements a convention about transnational crimes). The
definition is different for adults and children (whom the Protocol specifies as
anyone under 18 years of age, whatever the age of adulthood specified by national
law). It addresses a range of forms of exploitation (for which people are said to be
trafficked), including “the exploitation of the prostitution of others” and “other
forms of sexual exploitation”.

Article 3 of the UN Protocol to Prevent, Suppress and Punish Trafficking in

Persons, Especially Women and Children (2000)

(a) ”Trafficking in persons” shall mean 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

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 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 minimum, the
exploitation of the prostitution of others or other forms of sexual
exploitation, forced labour or services, slavery or practices similar to
slavery, servitude or the removal of organs;

(b) The consent of a victim of trafficking in persons to the intended

exploitation set forth in subparagraph (a) of this article shall be
irrelevant where any of the means set forth in subparagraph (a) have
been used;

(c) The recruitment, transportation, transfer, harbouring or receipt of a

child for the purpose of exploitation shall be considered “trafficking
in persons” even if this does not involve any of the means set forth in
subparagraph (a) of this article;

(d) “Child” shall mean any person under eighteen years of age. Paragraph
(c) means that, when a child is recruited or transported in order to be
exploited, the improper means mentioned in paragraph (a) (“…the
threat, or use of force or other forms of coercion…” etc.) do not have
to occur for the case to constitute child trafficking.

As UNICEF has pointed out, “The consent of a child victim of trafficking

to the intended exploitation is irrelevant even if none of the…illicit means have
been used: force or other forms of coercion, abduction, fraud, deception,” etc. 1 In
summary, as far as children are concerned, the UN Trafficking Protocol defines as
trafficking any case in which someone is responsible for the recruitment,
transportation, transfer, harbouring or receipt of a child for the purpose of
exploitation.

1 UNICEF. Guidelines on the Protection of Child Victims of Trafficking. Technical Notes, p. 9.

New York. September 2006. Accessed on 29 July 2008 from: http://www.unicef.org/
ceecis/0610-Unicef_Victims_Guidelines_en.pdf. Accessed 15/10/18

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 Although the discussions preceding the adoption of the UN Trafficking
Protocol did not spell out what was meant by „sexual exploitation‟, it includes the
use of children to make pornography. It may also refer to cases where children are
trafficked into forced marriage.

In a forced marriage case girls or boys are persuaded by an agent to

accompany them on a false understanding that they will be placed in a job, but are
handed over to a man or woman whom they are forced to marry. The agent
concerned makes a profit, even if the person who is forced to marry is not
subjected to commercial exploitation. Virtually all the cases of this sort reported
since 2001 have involved girls.

The UN Optional Protocol on the sale of children, child prostitution and child
pornography

The other international instrument adopted in 2000 was the Optional

Protocol to the Convention on the Rights of the Child on sale of children, child
prostitution and child pornography2.

Although the title does not mention trafficking, the Optional Protocol‟s
preamble expresses concern at “the significant and increasing international traffic
in children for the purpose of the sale of children, child prostitution and child
pornography”.

The Optional Protocol requires States Parties to prohibit forms of abuse

associated with trafficking, whether they are “committed domestically or
transnational or on an individual or organized basis” (Article 3). Article 3.1
specifies the acts that States Parties are required to prohibit by their criminal or
penal law and Article 3.2 requires States Parties to make it an offence to attempt
to commit any of these acts and to punish complicity or participation.

2 The text of the Optional Protocol to the Convention on the Rights of the Child on the sale of
children, child prostitution and child pornography was accessed on 1 October 2008 from:
http://www2.ohchr.org/english/law/crc-sale.htm. Article 2 defines “sale of children”, “child
prostitution” and “child pornography”. Accessed 17/10/2018

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 In effect, the Optional Protocol requires States to criminalise many of the
same acts as the UN Trafficking Protocol. While the UN Trafficking Protocol
refers to “the exploitation of the prostitution of others” (i.e., a pimp or other third
person receiving remuneration from someone who pays for sex with a child, either
directly from the person who pays or via the child) and to “other forms of sexual
exploitation”, the Optional Protocol bans any practice in which a person
remunerates a child in exchange for sexual activities, whether a third person
profits or not.

While the provisions of the UN Trafficking Protocol on protecting and

assisting victims require States only to “consider implementing measures to
provide for the physical, psychological and social recovery of victims”3, Article
9.3 of the Optional Protocol requires States Parties to “take all feasible measures”
to ensure all appropriate assistance to children who are victims of offences
mentioned in the Protocol, “including their full social reintegration and their full
physical and psychological recovery”. States do not seem to have taken action on
the basis of this and other comparatively strong provisions relating to protection
and recovery when adopting regulations on assistance for child victims.

The ILO’s Convention No. 182 on the Worst Forms of Child Labour

As the legislation against child trafficking adopted in some countries is

based on ILO Convention No. 182, it is also relevant to this paper. In 1999, the
International Labour Conference adopted Convention No. 182 concerning the
Prohibition and Immediate Action for the Elimination of the Worst Forms of Child
Labour. This mentions “the sale and trafficking of children” as one of the
“unconditional” worst forms of child labour 4 , categorising them as “forms of

3 UN Trafficking Protocol, Art. 6.3. Entered into force December 2003. Accessed on 24 July
2008 from: http:// www.unodc.org/documents/treaties/UNTOC/Publications/ TOC%2
0Convention/TOCebook-e.pdf. Accessed 19/10/2018
4 International Labour Office (ILO). A Future without Child Labour. Global Report under the
Follow-up to the ILO Declaration on Fundamental Principles and Rights at Work, p. x.
Geneva. 2002.

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slavery or practices similar to slavery”.5 Other unconditional worst forms of child
labour include, “the use, procuring or offering of a child for prostitution, for the
production of pornography or for pornographic performances” and “the use,
procuring or offering of a child for illicit activities…”. States are required to
prohibit the involvement of any child (below 18 years of age) in any of the worst
forms of child labour6.

This ILO convention otherwise known as the „Worst Forms of Child

Labour Convention‟ defines children in line with the CRC as anyone under the
age of 18. It is relevant to this issue since it reinforces the abolishment of harmful
child labour established by ILO convention 138 and requires states parties to take
urgent and immediate action to eliminate the „worst forms of child labour‟. Article
3 of the convention stipulates that these include: “all forms of slavery or practices
similar to slavery, such as the sale and trafficking of children, debt bondage and
serfdom and forced or compulsory labour; the use, procuring or offering of a child
for prostitution, for the production of pornography or for pornographic
performances; the use, procuring or offering of a child for illicit activities, in
particular for the production and trafficking of drugs.” It also includes more
generally “work which is likely to harm the health, safety or morals of children.” 7

United Nations Convention on the Elimination of All Forms of

Discrimination against Women (CEDAW) 1979

CEDAW is an important convention, that has been ratified by all the

SAARC countries and that specifically deals with state obligations to eliminate
discrimination on the basis of gender. As mentioned above, gender discrimination

5 Along with debt bondage, serfdom and forced/compulsory labour. ILO Convention No. 182,
Art. 3.a. Entered into force November 2000. Accessed on 24 July 2008 from:
http://www.ilo.org/ilolex/english/convdisp2.htm. Accessed 52/10/2018
6 The ILO has a broader interpretation of what constitutes „exploitation‟ than the UN
Trafficking Protocol. It considers the term „trafficked‟ to apply to any child who is moved to
get involved in any of the worst forms of child labour or in any work if the child is below the
minimum age specified by the ILO‟s Convention No. 138 on the minimum age for admission
to employment (1973).
7 Ibid, article 3.

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has been identified as a serious root cause of child trafficking. CEDAW
specifically outlines a series of measures that states are obliged to take to ensure
equality within different spheres including the family, workplace, healthcare
settings, education etc. Article 6 also specifically addresses trafficking requiring
all States Parties to “take all appropriate measures, including legislation, to
suppress all forms of traffic in women and exploitation of prostitution of
women.”8 CEDAW has generally been interpreted to be applicable to both girls
and adult women and to complement rights outlined in the CRC.9

Other relevant UN initiatives

The report of the independent expert for the UN Study on Violence against
Children, Paulo Sérgio Pinheiro, was submitted to the UN General Assembly in
2006, making several recommendations specific to trafficked children. 10 He called
for efforts to protect all children from trafficking and sexual exploitation to be
strengthened, mentioning that,

“[s]strategies should range from primary prevention (i.e. changing the

conditions that make children vulnerable to trafficking) to law enforcement
targeting traffickers, and should ensure that victims of trafficking and all forms of
related exploitation are not criminalized.”

In particular, he expressed concern about trafficked children involved in

the criminal justice system, drawing the attention of States to the UN Guidelines
on Justice in Matters involving Child Victims and Witnesses of Crime (2005).

8 Convention on the Elimination of all Forms of Discrimination against Women, Article 6. Full
text available at http://www.un.org/womenwatch/ daw/cedaw/ cedaw.htm Accessed
27/10/2018
9 IRC, 2009. P.15.
10 Pinheiro, Paulo Sérgio. Report of the independent expert for the United Nations study on
violence against children, paras 112 & 114. UN General Assembly. 29 August 2006.
Accessed on 20 October 2008 from: http://www. violencestudy.org/IMG/pdf/English.pdf.

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SAARC Convention on Preventing and Combating Trafficking in Women

and Children for Prostitution, 2002

The aim of this convention is to promote cooperation amongst member

states to effectively deal with various aspects of prevention, interdiction and

suppression of trafficking in women and children; repatriation and rehabilitation

of victims of trafficking and preventing the use of women and children in

international prostitution networks, particularly where the SAARC member

countries (Bangladesh, Bhutan, India, Maldives, Nepal, Pakistan and Sri Lanka)

are the countries of origin, transit and destination. The convention is legally

binding on its signatory parties and is the first regional anti-trafficking treaty to

emerge from the Asian continent. As of March 2004, the convention has been

ratified by all member countries except Nepal and Sri Lanka.

The SAARC Convention defines „child‟, „prostitution‟, „trafficking‟,

„traffickers‟ and „persons subjected to trafficking‟ under Article 1. It provides for

„aggravating circumstances‟, which are factual circumstances that enhance the

gravity of the offence (Art. 4). It also provides for the protection of victims (Art.

5), mutual legal assistance (Art. 6), training and sensitisation of enforcement

officials (Art. 8), rehabilitation of victims (Art. 9). Offences under the Convention

are extraditable (Art. 7). Article 8(3) requires the States Parties to establish a

Regional Task Force comprising officials from the Member States, to facilitate

implementation of the provisions of this Convention and to undertake periodic

reviews. The main criticism levied against the SAARC Convention is its narrow

definition of trafficking, which is limited to prostitution; also that it makes no

distinction between women and children. Trafficking has been defined to include

the moving, selling or buying of a person, but does not include recruitment,

labour, transfer or receipt that does not essentially constitute buying or selling.

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Convention on Regional Arrangement for the Promotion of Child Welfare,

2002

This Convention seeks to create regional arrangements among SAARC

countries in order to promote understanding and awareness of the rights, duties

and responsibilities of children and to develop the full potential of the South Asian

child.

4.2 Legal Framework against Trafficking in South Asian Countries

The legal frameworks in the South Asian countries are given below -

1. Bangladesh

The Bangladesh Constitution guarantees equal rights and equal

protection to all regardless of gender. The fundamental principle of state policy
requires the state to prevent prostitution. Article 34 (1) prohibits all forms of
forced labour.

The Penal Code of 1860 deals with the laws for sheltering girls forced
into prostitution and punishment for offenders procuring minor girls, both from
within and outside the country. Sections 364 A, 366 A and 373 provide protection
to women who are victims of sexual offences of illicit intercourse, by punishing
the kidnapper or abductor.

The Code of Criminal Procedure, 1898 outlines the procedural law in

criminal matters. The police is vested with the powers to arrest without warrant on
grounds of suspicion (Section 54).

The Child Marriage Restraint Act, 1929 prohibits the marriage of girls
under the age of 18 and boys under the age of 21 and punishes parents/guardians
who violate this prohibition.

The Suppression of Immoral Traffic Act of 1933 protects all children up

to the age of 18 from sexual exploitation.

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 The Vagrancy Act, 1943 provides the definition of a vagrant and his/her
arrest and detention and rehabilitation.

Under the Emigration Ordinance of 1982, registered recruiting agents for

overseas employment can lose their licenses and forfeit their security deposit if
they are found to have violated the ordinance or to have been guilty of other
misconduct (including coercion or fraud in inducing someone to migrate).

The Cruelty to Women (Deterrent Punishment) Ordinance, 1983

increased the punishment to life imprisonment and death penalty, for kidnapping
or abducting women, trafficking of women and children, attempt to cause death,
acid throwing, rape, etc. Abduction of women and children was designated
„terrorism‟ under the Anti-terrorism Ordinance of 1992.

The Suppression of Immoral Traffic Act of 1993 provides punishment

for forcing girls into prostitution and detaining girls below the age of 18 years
against their will, in any house, room or place in which prostitution is carried out.

The Children (Pledging of Labour) Act, 1993 prohibits the making of

agreements to pledge the labour of children under the age of 15 years and the
employment of such children whose labour has been pledged.

The Women and Children Repression (Special Provision) Act, 1995

prescribes death or life-long imprisonment for unlawful importation, exportation
or sale of children (S.12).

The same punishment is stipulated in the Cruelty to Women and

Children (Special Provision) Act, 1995.

The Women and Children Repression Prevention Act, 2000 provides

for stringent penalties against trafficking, kidnapping, collecting ransom, rape,
sexual oppression of women and children and against damage or deformation of
any part of a child‟s body with intent to engage him or her in begging. These
provisions also apply to both internal and cross-border trafficking. Special

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tribunals may place the woman/child victim with an NGO or individual custodian
during trial. It also provides for victim compensation.

The Public Security Act, 2000 protects women and children from
extortion. The National Policy for Children, 1994 aims to integrate the
principles of the Convention on the Rights of the Child with national
development activities, and the National Policy for Women includes a five-year
plan for improvement of the situation of women. The National Plan for Children
explicitly addresses child trafficking.

In Bangladesh, the Women and Children Repression Prevention Act,

2000 recognises the different motives for trafficking and provides several victim
and witness protection measures and compensation. It also authorises the Special
Tribunals to rehabilitate victims with the help of

NGOs and empowers magistrates to hear depositions wherever required.

However, on the downside, Section 54 CrPC of Bangladesh confers broad powers
on the police to arrest on mere grounds of suspicion. Health services are often
denied to a woman on the sole basis that she is a prostitute.

Under the Constitution, an individual is entitled to choose her occupation.

Persons above the age of 18 years, on execution of an affidavit signifying volition,
can prostitute themselves. Such a provision endangers the vulnerable segment of
women and girls whose human rights can be trampled upon by vested interests.
The rape laws discriminate against sex workers because they are classified as
„habituated‟ to sexual intercourse, thereby making conviction near impossible.

2. Bhutan

There is very little information available on the laws of Bhutan relating to

trafficking. In 2001, the committee on the Rights of the Child considered Bhutan‟s
initial report and made certain concluding observations. The Committee noted the
absence of legislation on the minimum age for admission to employment. There is

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insufficient data and awareness regarding the sexual exploitation of children. The
committee has proposed that a national study on the nature and extent of sexual
exploitation and child labour should be undertaken. It has also suggested that new
laws should be promulgated and existing laws suitably amended to address these
grave issues.

3. Maldives

The law bars children less than 14 years of age from “places of waged
work and from work that is not suitable for that child‟s age, health or physical
ability or that might obstruct the education or adversely affect the mentality or
behaviour of the child”. The law also prohibits government employment of
children under the age of 16. Forced or bonded labour by children is not
specifically prohibited. However, there are no official reports that such practices
occur. The law does not prohibit trafficking in persons. There are no reports of
persons being trafficked to, from or within the country. Following nationwide
consultations, the government has drawn up a National Plan of Action on the
basis of the Beijing Platform for Action and the Commonwealth Plan of Action
on Gender and Development.

4. Nepal

The Constitution of Nepal enshrines the principles of equality and justice

to every citizen without any discrimination on the basis of race, caste, sex, creed,
etc. and safeguards the human rights of all citizens. Under Article 20, it forbids
the trafficking, and sale of women and children and other forms of slavery.

The Muluki Ain, 1963 (Code of Law), contains provisions against inter-
state and domestic trafficking. Section 1 decrees prison sentences of 20 years for
international trafficking and 10 years imprisonment for attempted sale, plus fines
equivalent to the amount of transaction.

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 The Open Border Agreement of 1950 allows Indian and Nepali nationals
to travel freely between countries, without display of passports or visas.

The Human Trafficking (Control) Act of 1986 (HTCA) establishes

territorial jurisdiction for offences committed outside Nepal. Anybody with
information that human trafficking is about to take place or is in progress can file
a complaint at any police post with whatever evidence is available [S.5(1)].

The Labour Act of 1992, under Section 5 (1), prohibits the employment
of a child under the age of 14 in any enterprise.

The Children’s Act of 1992 contains provisions to prevent the use of any
child in an immoral profession as also other forms of sexual exploitation; use of a
child for begging; sale of girl children as religious offerings to temple deities; or
for child labour.

The Child Labour (Prohibition and Regulation) Act of 2000 expands

the list of hazardous industries in which children less than 16 years of age are
banned from working.

The Foreign Employment Act of 1985 requires that employment

agencies that recruit workers for foreign jobs be licensed (S.3). Section 4 specifies
the countries that may recruit Nepalese workers and empowers the government to
cancel the licenses of employment agencies for violations.

The Human Trafficking Control Bill, 2000 has a wider definition of

trafficking than the one under HTCA, 1986, and includes buying a human being
for any reason, enslaving a human being for bonded labour, indulging in
prostitution, kidnapping children and all other forms of exploitation not covered in
the 1963 Muluki Ain. The operation of brothels and leasing of property to known
traffickers is prohibited. Victim protection and compensation measures are
included in the pending bill.

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 The National Action Plan against trafficking in children and their sexual
exploitation contemplates intervention in six areas – rescue and reintegration;
income and employment generation; awareness creation; advocacy; networking
and social mobilisation; health and education; legislation and enforcement; and
policy research and institutional development.

In Nepal, the Muluki Ain, 1986 stipulates punishments for the purchaser
and the seller of women and children, holding both equally liable. The Act has
extra-territorial jurisdiction, with equal penalties for offences committed within or
outside Nepal. The law facilitates complaints of human trafficking by anybody to
any police force, with whatever evidence available. When a woman is taken
outside Nepal by anybody other than a close relative for sale or compulsion into
prostitution, the burden of proof to disapprove the charge rests on the accused.
This is a victim friendly provision. In the new bill, proposed in the year 2000,
more victim-friendly procedures like in-camera trials, non-requirement of a
restatement by the victim in court, if it has already been recorded, etc., have been
included. It also provides for specific rehabilitative efforts, rehabilitation centres,
etc.

The Children’s Act, 1992 of Nepal, under Section 20 (1), empowers

NGOs to initiate cases in favour of children in the district courts. However, the
HTCA has a strong undercurrent of morality and is, therefore, not oriented to a
human rights perspective. There are no specific measures to protect the rights of
the victims.

The National Plan of Action is also criticised as not projecting a human

rights perspective because there is no specific requirement for ensuring the
protection of women‟s rights and child rights during rescue and rehabilitation. The
existing rape laws discriminate against women, in that, if the rapist can prove the
victim to have been a prostitute, he can get away with a very minimal punishment.

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 The provision in the Trafficking in Human Beings (Control) Bill, 2000
holding voluntary engagement in sex work as synonymous with trafficking, has
also been widely held to be in violation of human rights. Moreover, such a view is
likely to trivialise the serious violations that are committed during trafficking.
Further, the anti-trafficking laws in Nepal do not provide for integration or
rehabilitation with rescue.

5. Pakistan

One of the country‟s major problems is the smuggling of Pakistani

children to Gulf countries for camel racing. Law enforcement agencies and the
immigration department feel that increasingly high profits and lessening fear of
harsh punishment have bolstered syndicates of human traffickers across Asia, the
Middle East and Europe.

The Zina Hudood Ordinance (1979) criminalises Zina (extra-marital

sex, including adultery or fornication), Zina-bil-jabr (rape outside of a valid
marriage), and selling, hiring, buying or disposal of any person for the purpose of
prostitution (Section 13, 14). The punishment for these acts is life imprisonment.

The Foreigners Act of 1949 and Foreigners Order of 1951 does not
permit foreigners to enter Pakistan except from designated areas and in a specified
manner. New laws relating to illegal immigrants (1996) lay down a jail term of up
to 10 years for unauthorised entry into the country.

The Employment of Children Act lowered the minimum age for

employment from 15 to 14 in mining, factories, shops and other commercial and
industrial establishments.

The Child Labour Act, 1991 allows children to be employed in

„hazardous‟ occupations if they are carried out with the help of family members or
in a government-recognised formal school.

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 The Prevention and control of Human Trafficking Ordinance, 2002
has been promulgated to deal with all types of human trafficking. It is a
comprehensive legislation the first of its kind in the SAARC region. However, the
legislation suffers from certain limitations. There is no specific attention to child
trafficking as distinct from others. The role of NGOs has neither been identified
nor assigned. Legislation is focused on trans-border trafficking and not on
domestic trafficking.

The Prevention and Control of Human Trafficking Ordinance, 2002 of

Pakistan defines human trafficking to include trafficking for any purpose, viz.
prostitution, forced labour and services, etc. This ordinance takes into
consideration even mental injury of a person as an act of exploitation and provides
for harsher sentences for serious violations. It also takes into consideration the
organised nature of the crime and casts a vicarious liability on each member of the
group by providing stringent punishment. The ordinance also includes provisions
for compensation to the victims.

Under Pakistani law, the level of proof for ‘Zina’ (extra-marital sex) and
‘Zina-bil-jabr’ (rape outside of a valid marriage), which is liable to ‘hadd’,
requires either a confession or at least four Muslim male witnesses. If this high
evidentiary requirement cannot be satisfied, then the crime of Zina or Zina-jal-
jabr is liable to tazir, which does not require four Muslim male witnesses.

If unable to prove rape, the court takes the rape victim‟s statement as a
confession of adultery, which results in the punishment of the rape victim.

Under the Child Labour Act, 1991, children may be employed in

hazardous places if the work is carried out with the help of female family
members or any schools recognised by the government. This leaves ample scope
for violations of the human rights of such children.

6. Sri Lanka

In-country trafficking is one of Sri Lanka‟s major problems. Sri Lanka

prohibits the employment of children under the age of 12, although there are

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reports that child labour is still widespread. In Sri Lanka, child exploitation is
reported to be closely linked to pornography. Section 360 of the Penal Code deals
with the offence of trafficking, defined as the act of buying or selling or bartering
of any person for money or for any other consideration. Those assisting, arranging
the travel, recruiting, falsifying birth records, and impersonating or engaging in
the procurement of children for adoption are also liable for prosecution. In 1998,
the code was amended again to provide for offences against children, such as
causing or procuring children to beg, or hiring children for sexual intercourse. In
addition, a provision was inserted for their protection from pornography.

The Amendment of the Adoption of Children Ordinance, 1992 decreed

that the custody and care of a child for adoption must be entrusted to a person in
charge of a registered government orphanage (for a period of five years). This
means that no child from a private home can be legally adopted.

The Evidence (Special Provisions) Act, 1999 amends the Evidence

Ordinance to make it sensitive to the vulnerabilities of a child witness, for
instance, by permitting admission of a video recording of a preliminary interview
between an adult and the child witness with respect to an offence relating to child
abuse as evidence.

The National Child Protection Authority Act, 1998 focuses on

prevention of child abuse and protection and treatment of children who are
victims of such abuse. A National Child Protection Authority was established
under this Act to monitor implementation and advise the government on the
related issues.

In Sri Lanka, in order to protect children from pornography, Section 286 A

of the penal court makes it mandatory for developers of photographs and films to
report any indecent or obscene film or photographs to the police station.

The Evidence (Special Provisions) Act, 1999 enables a court to receive a

child‟s evidence without causing oath. It also provides admission of videotaped
evidence of an earlier interview between the victim and others.

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 The National Child Protection Authority is a landmark initiative in
preventing child abuse and protecting the rights of children.

7. Thailand

Owing to the increase in the number of foreign nationals in Thai brothels,

the Anti-Trafficking Act was passed in 1928. Section 7 of the Act states that
women and girls who have been trafficked into Thailand will be exempted from
imprisonment and/or fines.

The Suppression of Prostitution Act of 1960 intended to eliminate

prostitution (defined as “an act promiscuously rendering sexual services for
remuneration”) by making it an illegal activity. The Act stipulated that convicted
prostitutes should be reformed through medical treatment.

The Entertainment Places Act of 1966 was designed to pave the way for
brothels to be legalised in the guise of massage parlours, bars, nightclubs,
teahouses, etc. The Act defines various kinds of entertainment places and allows
such places to operate only under a license to be obtained from the local police
station and sets 18 years as the minimum age for women to work in such
establishments.

Under the Penal Code of 1956, prostitution is not illegal, but procurement
for the same is. This act stipulates harsh punishment for abuses against girls
forced into prostitution. The nature and severity of the punishment is in direct
relation to the age of the victim.

The Thai Immigration Act of BE 2522 (1979) prohibits entry into the
kingdom of Thailand, of foreigners who are deemed, on reasonable grounds, to be
motivated to enter the kingdom for the purposes of engaging in prostitution or in
the trafficking of women and children and ordains the withdrawal of permits
where the individual is suspected of indulging in such acts.

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 The Prevention and Suppression of Prostitution Act of 1996 continues
to maintain prostitution as illegal but considerably reduces the penalties for the
prostitute. In addition, if the prostitution is forced, then the prostitute is not
deemed to have committed an offence. Sex with children under 18 years of age is
a crime and the customer may face a very heavy fine. All those involved, like
procurers, traffickers, pimps etc., are punishable by imprisonment and a fine.

The Measures in Prevention and Suppression of Trafficking in Women

and Children Act, B.E. 2540 (1997) extends coverage to both boys and girls
under 18 years of age. It defines as a crime, the conspiracy to commit an offence
involving the trafficking of women and children.

The Penal Code Amendment Act (no. 14), B.E. 2540 (1997) covers
those who procure, lure or traffic, both boys and girls, adult males and females for
the sexual gratification of another person. The nationality and location of the
offender is irrelevant in such a case.

The Criminal Procedure Amendment Act (No. 20), B.E. 2542 (1999)
was aimed at making the Act child-friendly. In the revised Act, videotape
recordings shall be used to take the statement of the child victim or witness in
order to protect the child from repeated victimisation. Other initiatives include
efforts towards total elimination of the entry into commercial sex of children, both
boys and girls, under the age of 18.

Thailand has set up “The National Secretariat on Trafficking in Women

and Children in the Mekong Sub-Region” to coordinate work with countries in the
Mekong sub-region. It has joined the Association of Southeast Asian Nations
(ASEAN) to develop and implement an ASEAN plan of action to prevent and
combat trafficking in women. In order to support cooperation between the
government and NGOs, a MoU has been drafted between the Royal Thai
Government and NGOs, on the framework for cooperation and implementation of
activities for the eradication of trafficking in women and children. This is

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supplemented by two other MoUs, one between the various government
departments of Thailand and another between the various NGOs working on
related issues. However, there is a need for a national monitoring agency or a Task
Force to ensure the implementation of these MoUs.

From the above discussion it is observed that large number of legal

framework has been designed to solve the problem of child trafficking. The UN
and the other nations are serious for child trafficking. A social and legal
coordination can stop the child trafficking.

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