Leiden Law Blog

Unaccompanied children travelling by air, a human rights issue

Posted on by Chrisje Sandelowsky in Private Law , 1
Unaccompanied children travelling by air, a human rights issue

Some day-to-day phenomena take time to become recognised as an issue in need of human rights protection. Unaccompanied children travelling by air to the Netherlands seems to be one of those phenomena that is not yet (fully) addressed as a human rights issue. At least not by the relevant actors which are law enforcement authorities, the legislature and airlines. As victims of child trafficking can be transported via unaccompanied travel services offered by airlines, the lack of attention to the potential occurrences of human rights violations is deplorable. Their travel via air may be the only opportunity to save them, before they vanish into a hidden world of exploitation. Airline personnel have eyes and ears in the air and border control guards can observe an unaccompanied travelling child at an airport. They should be aware of the possible human rights violations that may occur when a child is travelling unaccompanied. This blog explains how child trafficking in aviation may work in practice and why it desperately needs to be reframed as a human rights issue, in order for the relevant state agents and private actors to intensify their efforts to combat it.

Magnitude of child trafficking in the Netherlands

Even though airports have been identified by Europol as ‘by far the likeliest’ places to find children being trafficked into the European Union (see Frontex Handbook 2015), reliable statistics regarding child trafficking into the Netherlands (via aviation) are not available (Committee on the Rights of the Child, Concluding Observations on the fourth periodic report of the Netherlands (2015)). While child trafficking is generally hard to detect, it is clear it takes place in the Netherlands (see the report Combating child trafficking and protecting child victims in the Netherlands), presumably also in aviation. That presumption follows not only from the story of the Alaska Airlines stewardess that made major news, but also from the two real-life cases that occurred in the Netherlands, explained in the next paragraph. These cases were shared with the author by a Handling Agent at a Dutch airport, who is responsible for assisting unaccompanied travelling children to the exit of the airport, and a purser working for a Dutch airline. The Handling Agent and purser do not know each other and they shared their stories independently from each other.

Real-life cases

A twelve-year-old girl, travelling alone and appearing withdrawn according to the Handling Agent, arrives at a Dutch airport. Her journey started in Portugal and she has no luggage, except for a tiny children’s backpack. She is greeted by the Handling Agent and tells him that she is visiting her sister in the Netherlands for three months. The person waiting for her at the arrivals hall however is a man she does not seem to recognise according to the Handling Agent.

On another occasion, a purser of a Dutch airline walks an unaccompanied African girl to ‘an uncle’ waiting for her in the arrivals hall. The purser finds the encounter between the girl and the uncle extremely reserved. A week later, the same purser walks a different African girl to that same ‘uncle’. The purser reports the man to the Royal Netherlands Marechaussee as she suspects a case of child trafficking.

The latter two cases could be examples of the use of the unaccompanied travelling service for children via aviation for child trafficking purposes.

Children’s rights infringements

A large number of rights stated in the Convention on the Rights of the Child (CRC) may be involved when an unaccompanied child is trafficked in aviation. As trafficking may lead to sexual exploitation, the right to the enjoyment of the highest attainable standard of health (article 24 CRC) and the right to life, survival and development (article 6 CRC) may be breached. In case children have been exposed to abuse, neglect or exploitation, the right to physical and psychological recovery is at risk (article 39 CRC). When a child is away from home and transported to a foreign country at a young age, the right to maintain contact with family may be severely impacted (articles 9 and 18 CRC) as well as the right to play (article 31 CRC). It may impact upon his or her standard of living (article 27 CRC) as he or she may be deprived of means of survival. Last but not least, if an unaccompanied child is not identified as a victim of child trafficking and merely perceived as an ordinary passenger, the obligation on states to combat and prevent trafficking of children (articles 11 and 35 CRC) may be violated. The CRC however does not contain a definition of child trafficking and lacks detailed instructions on how to combat and prevent child trafficking (in aviation). This may explain why relevant actors on the ground fail to fully address the issue from a human rights perspective and their efforts could be improved to prevent child trafficking in aviation.

Criminalising child trafficking

States such as the Netherlands have generally reacted to child trafficking by criminalising the act as required by various international and regional instruments (the 2000 United Nations Convention against Transnational Organized Crime and its supplementing Protocol to Prevent, Suppress, and Punish Trafficking in Persons, Especially Women and Children (Palermo Protocol), the Directive 2011/36/EU of the European Parliament and of the Council on preventing and combating trafficking in human beings and protecting its victims and the Council of Europe's Convention on Action against Trafficking in Human Beings).

A comprehensive approach to child trafficking in aviation

From a human rights perspective, however, merely penalising child trafficking is not sufficient to combat child trafficking. The (criminal) definition of child trafficking does not appear to apply easily to our case. According to the above mentioned international and regional instruments, the transportation or receipt of a child for the purpose of exploitation is considered 'trafficking in persons'. Because it is likely that the actual exploitation has not yet commenced and the child may not be aware of the trafficking process, the purpose of exploitation when a child is travelling unaccompanied may be impossible to prove. On the Dutch domestic level, research shows that in 'loverboy' cases (meaning cases where a man has forced a girl into sex work), suspects were often acquitted because the intent to exploit could not be established. This may also be problematic in cases of child trafficking in aviation, as this also requires the intent to exploit.

The European Court of Human Rights confirmed in Rantsev v. Cyprus and Russia that only a comprehensive approach to trafficking is effective in combatting trafficking in persons. This means that states not only have to punish traffickers (i.e. penalise trafficking and prosecute the traffickers) but also have to take measures to prevent trafficking and to protect its victims (para. 285). This means that measures should be taken to find and protect victims of child trafficking, even if they are not yet known as victims to law enforcement officers. In the context of aviation, one could think of rules that would require airlines to adopt certain safeguards to prevent child trafficking and protect its victims. In addition, border control guards could be instructed to verify the identity of a person that picks up a child from the airport before that person is allowed to take the child with him or her and trained to recognise the subtle signs pointing to a case of child trafficking.

The need for safeguards

There certainly is a need for such measures. To this day, the services that airlines offer to facilitate the travel of unaccompanied children by air, as far as combating child trafficking is concerned, are unregulated in the Netherlands. Unaccompanied children can travel by air using what is known as an  unaccompanied minor service (UM service). This UM service entails that the airline keeps an eye on the child during the flight and the child will be assisted by airline personnel prior to departure and after arrival. Airline policies regarding the designated age of children that may travel unaccompanied vary, but they generally apply to children aged between five and twelve (see IATA’s Cabin Operations Safety Best Practices Guide 2017). IATA (the trade organisation for airlines, representing 83% of total air traffic) suggests that airlines use a form when the UM service is requested. Such a form should include the name, age, contact details and native language of the child as well as the name and contact details of the person dropping off the child at departure and picking the child up after arrival. As IATA is a private organisation, which merely suggests airlines use this form, the forms used by airlines for their UM services vary greatly. Although IATA suggests including a declaration on the form that must be signed by a parent or legal guardian, entailing that he or she arranged for the persons mentioned on the form to accompany the child to the airport and to meet the child upon arrival, many forms do not include such a declaration. Someone unknown and/or unrelated to the child may therefore book a UM service, bring the child to the airport and pick up the child upon arrival, irrespective of the views of the parents and the child. As long as these persons are mentioned on the form, they are allowed to take the child with them after arrival. The forms are not stored in a database and it is highly likely that they may only be checked by border control guards when a flight from outside the European Union is concerned (since children travelling unaccompanied on intra-EU flights are not subject to a border check after landing (article 22 Schengen Borders Code 2016). Therefore, usually no red flags will be spotted by airlines or border control guards when the same person is involved in the unaccompanied travel of a child multiple times, except in those highly accidental circumstances when a purser – as mentioned above – recognises the person waiting for a child from a previous occasion.

It may be argued that strict requirements for airlines to obtain the consent of the parents or legal guardians of the child for the UM service, registration (in a database) of the information of the persons that drop the child off and pick it up from the airport and verification of their information by border control guards, would deter child traffickers. Border control guards should also be notified when the same person pops up multiple times in the system to accompany a child. As no such safeguards are implemented in the Netherlands, airlines may be unintentionally facilitating child traffickers. Criminals think in opportunities. According to some authors, preventing the 'environmental problems' surrounding trafficking is more effective than repressing a particular group of criminals (J. Daniel-Wrabetz & R. Penedo in: Guia 2015, 13.). The Dutch legislature could therefore contemplate implementing these kind of safeguards and border control guards should be aware that UM services may be abused by child traffickers, even when a child does not look distressed (yet) and comes across as an ‘ordinary passenger’. Hopefully then, the aviation industry will become less susceptible to child traffickers.

Requiring airlines to assist the state in certain matters that may be unintentionally facilitated by their business is not new. Airlines in the Netherlands are for example heavily involved in border controls to prevent illegal migration through a duty of care. When they transport an alien into the Netherlands, they are obliged to take the necessary measures and to monitor that he or she does not enter the Netherlands without a valid passport and visa (art. 4(1) Vreemdelingenwet 2000). 

Corporate responsibility

Dutch airlines do not have to wait for the Dutch legislature or border control guards to take action. They have a responsibility of their own to prevent their services from being abused by child traffickers if they are involved in the UN Global Compact. UNICEF, the UN Global Compact and Save the Children developed the Children’s Rights and Business Principles (CRBP), promoting corporate responsibility to respect and support children’s rights. Principle 5(e) of the CRBP states that this responsibility includes ‘seeking to prevent and eliminate the risk that their services could be used to abuse, exploit or otherwise harm children in any way’. 

1 Comment

Tiffany Porter-Carpenter
Posted by Tiffany Porter-Carpenter on January 10, 2018 at 00:22

It is very heartening to see the Netherlands take such an in-depth interest in promoting this airline child trafficking problem.  Sandelowsky did a fine job of research in assessing the areas of concern and possible remedies which airlines themselves could adopt to eliminate the potential for young children vanishing into the hands of predators.

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