NATURE AND EXTENT OF INTERNATIONAL CHILD SEX TOURISM

As Robinson stresses,

Such practices are however seen in a very serious light when they involve the sexual exploitation of minors.Footnote ¹⁰

International child sex tourism has an opportunistic facet and a premeditated one. The former involves tourists who do not travel to a foreign destination for sex purposes, but make use of opportunities when they present themselves. The latter involves tourists who do travel to a foreign destination for the main, and often only, purpose of engaging in sex with juveniles.Footnote ¹¹

International child sex tourism has a long history.Footnote ¹² However, the practice has developed substantially during the last few decades as it feeds, in the context of globalization,Footnote ¹³ on poverty, the growth of consumerism, an increase in travel opportunities and internet access,Footnote ¹⁴ weak law enforcementFootnote ¹⁵ as well as racist fantasies on the hypersexual nature of the inhabitants of developing countries.Footnote ¹⁶ The issue rose to political prominence during the 1990sFootnote ¹⁷ as a result, among others, of the public-awareness campaigns mounted by ECPAT,Footnote ¹⁸ a network of organizations and individuals working together to eliminate the commercial sexual exploitation of children.Footnote ¹⁹ It remains nevertheless very difficult to assess exactly how many children are involved. On the one hand, it is clear that the magnitude of the phenomenon has been exaggerated in some instances.Footnote ²⁰ On the other hand, there is little doubt that the victims of child sex tourists constitute a sizeable proportion of the more than one million children that enter the global commercial sex trade every year.Footnote ²¹ South Africa is also affected, with foreign tourists being involved in child sex activitiesFootnote ²² and children being trafficked from, via and into the country for sexual exploitation purposes.Footnote ²³ The most recent publicized case is that of Peter Zimmerman, a 46-year-old Swiss tourist, who was found with a 14-year-old boy from Alexandra township in his Johannesburg hotel room in October 2005.Footnote ²⁴

INTERNATIONAL INSTRUMENTS

The first relevant multilateral treaty was the 1904 Paris Agreement for the Suppression of the White Slave Traffic (1904 Agreement),Footnote ²⁵ which aimed at protecting, among others, female children who were, or had been taken abroad for immoral purposes. This was to be done mainly by states keeping watch at their borders,Footnote ²⁶ exercising supervision over the offices or agencies engaged in finding employment for girls abroad,Footnote ²⁷ and taking responsibility for their repatriation.Footnote ²⁸ The 1904 Agreement was complemented by the 1910 Paris Convention for the Suppression of the White Slave Traffic (1910 Convention),Footnote ²⁹ which aimed at punishing the exploiters. The 1910 Convention made it an offence for anybody to procure, entice or lead away a female under 20 years of age, with or without her consent, in order to gratify the passions of another person, irrespective of the fact that the various acts constituting the offence may have been committed in different countries.Footnote ³⁰ The 1910 Convention compelled the states parties to adopt legislation providing for the necessary steps to punish offenders according to the gravity of the offences.Footnote ³¹ The offences were also deemed to be lawfully included in the list of offences for which extradition may be granted.Footnote ³² Finally, the states parties were expected to communicate to each other the records of convictions whenever the various acts constituting the offences had been committed in different countries.Footnote ³³

At the end of the First World War, trafficking in women and children was seen in such a serious light that the members of the League of Nations entrusted the League with “general supervision over the execution of agreements with regard to the traffic in women and children”.Footnote ³⁴ On that basis, the League's council promptly convened an international conference that resulted in the adoption of the 1921 Geneva Convention for the Suppression of the Traffic in Women and Children (1921 Convention),Footnote ³⁵ which aimed at supplementing the 1904 Agreement and the 1910 Convention.Footnote ³⁶ The 1921 Convention extended the protection offered by the international regime, in that it applied to children of both sexesFootnote ³⁷ as well as to acts preparatory to the commission of the offences specified in the 1910 Convention.Footnote ³⁸ The states parties agreed that, in cases where there were no extradition treaties in force between them, they would take all measures within their power to extradite or provide for the extradition of persons accused or convicted of the offences specified in the 1910 Convention.Footnote ³⁹ The age until which consent is not a defence was raised by the 1921 Convention from 20 to 21.Footnote ⁴⁰ The states parties also agreed that, in case they have not already taken legislative or administrative measures regarding the licensing and supervision of employment agencies and offices engaged in finding employment for girls and boys abroad, they would make such regulations as were required to ensure the protection of children seeking employment in another country.Footnote ⁴¹ Finally, the states parties undertook to ensure that they had in place the administrative and legislative measures required to check the traffic in children, especially at ports of departure and arrival, and to arrange for the exhibition, in railway stations and ports, of notices warning children of the danger of being trafficked and indicating the places where they could obtain accommodation and assistance.Footnote ⁴²

In the wake of the Second World War, France's facilitating functions under the 1904 Agreement and the 1910 Convention were transferred to the United Nations.Footnote ⁴³ At the same time, the 1949 Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others (1949 Convention)Footnote ⁴⁴ was adopted to consolidate and extend the scope of the 1904 Agreement as well as the 1910 and 1921 Conventions.Footnote ⁴⁵ The states parties to the 1949 Convention undertook to punish any person who procures, entices or leads away another person, for purposes of prostitution, even with the consent of that person;Footnote ⁴⁶ any person who exploits the prostitution of another person, even with the consent of that person;Footnote ⁴⁷ any person who keeps or manages, or knowingly finances or takes part in the financing of a brothel;Footnote ⁴⁸ and any person who knowingly lets or rents a building or other place or any part thereof for the purpose of the prostitution of others.Footnote ⁴⁹ The 1949 Convention expected those offences to be defined, prosecuted and punished in accordance with the domestic law of the states concerned.Footnote ⁵⁰ States parties also undertook, but only to the extent that their domestic laws allowed them to do so, to punish both attempts to commit the above offencesFootnote ⁵¹ and international participation in those acts,Footnote ⁵² as well as to take into account previous convictions pronounced in foreign states for the purpose of establishing recidivism or disqualifying the offender from the exercise of civil rights.Footnote ⁵³ The 1949 Convention did not prohibit prostitution, but the states parties agreed to take or to encourage measures for the prevention of prostitution and for the rehabilitation and social adjustment of the victims of prostitution.Footnote ⁵⁴ The 1949 Convention reiterated that the above offences must be regarded as extraditable offences in any extradition treaty which has been or may be concluded between any of the states parties, and that the parties that do not make extradition conditional on the existence of a treaty must recognize those offences as cases for extradition.Footnote ⁵⁵ All the states parties were also required to establish and/or maintain a service responsible, firstly, for the coordination and centralization of the results of the investigation of convention offences and, secondly, for disseminating both domestically and across borders the information necessary to facilitate the prevention and punishment of convention offences.Footnote ⁵⁶ Furthermore, the states parties undertook to adopt and/or maintain the immigration and emigration measures required to check the traffic in persons for the purpose of prostitution.Footnote ⁵⁷ Once foreign nationals who were prostitutes had been identified, the states parties were, in accordance with the conditions laid down by their domestic law, to take declarations from them to establish their identity and civil status and to discover who had caused them to leave their state of origin. That information had to be communicated to the authorities of the state of origin in order to facilitate the repatriation of those nationals.Footnote ⁵⁸ However, the states parties were only compelled to repatriate persons who desired to be repatriated and those claimed by persons exercising authority over them. Repatriation was only to take place once agreement had been reached with the state of origin as to the identity and nationality of the persons concerned as well as to the place and date of their arrival in that state.Footnote ⁵⁹ Moreover, the 1949 Convention reiterated that states were to ensure that employment agencies were supervised in such a way as to prevent persons seeking employment from being exposed to the danger of prostitution.Footnote ⁶⁰ Finally, so far as enforcement is concerned, the 1949 Convention merely required states parties to communicate to the UN Secretary General the laws and regulations in force when the convention was adopted and, thereafter, to report annually on relevant legislative developments.Footnote ⁶¹ In 1974, the UN Economic and Social Council (ECOSOC) decided that the states' reports should be submitted to the UN Commission on Human Rights' Sub-commission on the Prevention of Discrimination and the Protection of Minorities.Footnote ⁶² That body unfortunately does not have the power to take action on those reports.Footnote ⁶³

Half a century later, the 1949 Convention had proved unsuccessful and a renewed attempt was made to deal with human trafficking. This was “due in part to the large number of people involved and its enormous financial impact”.Footnote ⁶⁴ The framework used is that of the 2000 Convention against Transnational Organized Crime (2000 Convention),Footnote ⁶⁵ the purpose of which is to promote international cooperation to prevent and combat transnational organized crime more effectively.Footnote ⁶⁶ The 2000 Convention defines an organized criminal group as a structured group of three or more persons existing for a period of time and acting in concert with the aim of committing serious crimes for financial or other material benefit.Footnote ⁶⁷ An offence is transnational if it is committed in more than one state, if it is committed in one state but substantially prepared, planned, directed or controlled in another state, if it involves an organized criminal group that engages in crime in more than one state, or if it is committed in one state but has substantial effects in another state.Footnote ⁶⁸ The 2000 Convention is supplemented by a number of protocols including the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (2000 Protocol).Footnote ⁶⁹ This protocol for the first time defines “trafficking in children” as the recruitment, transportation, transfer, harbouring or receipt of persons under 18 years of age, for the purpose of exploitation, which includes the exploitation of the prostitution of children or other forms of sexual exploitation.Footnote ⁷⁰ The 2000 Protocol compels states parties to adopt such legislative and other measures as may be necessary to make trafficking in persons a criminal offence.Footnote ⁷¹ It also requires states parties to give assistance and protection to victims of trafficking.Footnote ⁷² States parties must either permit victims of trafficking to remain in their territory, temporarily or permanently,Footnote ⁷³ or facilitate and accept the return of victims of trafficking to their state of nationality or residence without undue or unreasonable delay.Footnote ⁷⁴ The 2000 Protocol goes further by placing an obligation upon states parties to establish comprehensive policies, programmes and other measures both to prevent and combat trafficking in persons, and to protect victims of trafficking from revictimization.Footnote ⁷⁵ The government authorities of states parties must exchange information with one another.Footnote ⁷⁶ States parties must provide or strengthen training in the prevention of trafficking in persons for law enforcement, immigration and other relevant officials.Footnote ⁷⁷ States parties are also expected to strengthen such border controls as may be necessary to prevent and detect trafficking in persons.Footnote ⁷⁸ The 2000 Protocol has been criticized for not viewing trafficking in the context of migrationFootnote ⁷⁹ and not sufficiently protecting the rights of the victims of trafficking.Footnote ⁸⁰ The latter concern was addressed to some extent by the appointment in 2004 by the UN Commission on Human Rights of a Special Rapporteur on Trafficking in Persons, Especially Women and Children.Footnote ⁸¹ In her first report, the rapporteur confirmed that the commission had requested her “to focus on the human rights aspects of trafficked persons”. She also pointed out that her actions would be guided by two principles: “(a) that the human rights of trafficked persons shall be at the centre of all efforts to combat trafficking and to protect, assist and provide redress to those affected by trafficking; and (b) that anti-trafficking measures should not adversely affect the human rights and dignity of the persons concerned”.Footnote ⁸² In her second report, the rapporteur rejected “the assumed premise that men have a human right to engage in the use of prostituted persons”. She argued that a human-rights approach to sex trafficking implies that, “[w]here the human rights of trafficking victims conflict with the legal rights granted to prostitute-users, the human rights of trafficking victims must prevail”.Footnote ⁸³

Finally, one of a number of regional instrumentsFootnote ⁸⁴ is the Convention on Action against Trafficking in Human BeingsFootnote ⁸⁵ adopted by the Council of Europe in 2005 “to strengthen the protection afforded by [existing] instruments and to raise the standards which they lay down”.Footnote ⁸⁶ This is indeed necessary because, for instance, the 2000 Protocol does not apply in principle to domestic trafficking and to individual traffickers.Footnote ⁸⁷ This convention is intended to apply mainly in European states.Footnote ⁸⁸ Unfortunately, its success in Europe may result in an increase in child sex tourism in South Africa, because the majority of non-African inbound tourists originate from western Europe.Footnote ⁸⁹

Slavery instruments are also useful in the fight against child sex tourism.Footnote ⁹⁰ The 1926 Convention on Slavery, Servitude, Forced Labour and Similar Institutions and Practices (1926 Convention)Footnote ⁹¹ defined slavery as “the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised”.Footnote ⁹² It also defined the term “slave trade” as including “all acts involved in the capture, acquisition or disposal of a person with intent to reduce him to slavery; all acts involved in the acquisition of a slave with a view to selling or exchanging him; all acts of disposal by sale or exchange of a slave acquired with a view to being sold or exchanged, and, in general, every act of trade or transport in slaves”.Footnote ⁹³ In many instances, traffickers and victims of trafficking for sexual purposes do fall within those definitions.Footnote ⁹⁴ They should then be affected by the measures that states parties have to take under the 1926 Convention, which include the imposition of severe penalties.Footnote ⁹⁵ Unfortunately, the 1926 Convention suffers from the same weaknesses with regard to enforcement as the 1949 Convention.Footnote ⁹⁶ The 1926 Convention was immediately complemented by the 1930 International Labour Organization (ILO) Forced Labour Convention (no 29) (ILO 1930 Convention).Footnote ⁹⁷ All states ratifying the ILO 1930 Convention undertook “to suppress the use of forced or compulsory labour in all its forms within the shortest possible period”.Footnote ⁹⁸ Child sex exploitation is a form of forced or compulsory labour to the extent that it constitutes “work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself [or herself] voluntarily”.Footnote ⁹⁹ The ILO 1930 Convention's supervision and enforcement mechanisms are stronger than those of the 1926 Convention. As in the latter's case, states parties must submit annual reports to the International Labour Office on the measures which they have taken to give effect to the provisions of the convention.Footnote ¹⁰⁰ Those measures include giving effect to the convention in municipal law and practice.Footnote ¹⁰¹ A summary of the information submitted is then tabled at the meetings of the general conference of representatives of states members.Footnote ¹⁰² States parties must also submit copies of their reports to the organizations representing employees and employers at the ILO.Footnote ¹⁰³ These organizations may make their own observations on the implementation by states parties of the ILO conventions, and “States are requested to supply information in their reports on any such observations received”.Footnote ¹⁰⁴ The annual reports, together with relevant legislation and the information contained in the comments made by the representative organizations, are also reviewed by the ILO's Committee of Experts on the Application of Conventions and Recommendations. This committee, which has labelled the use of children for prostitution as “one of the worst forms of forced labour, which must be fought energetically and punished severely”,Footnote ¹⁰⁵ makes comments mainly in the form of “observations” communicated to the state concerned and the ILO conference. The committee may also “initiate direct contact with governments”.Footnote ¹⁰⁶

After the Second World War, the 1948 Universal Declaration of Human RightsFootnote ¹⁰⁷ proclaimed that “[n]o one shall be held in slavery or servitude” and that “slavery and the slave trade shall be prohibited in all their forms”.Footnote ¹⁰⁸ The 1926 Convention was then amended to take into account the demise of the League of Nations and the creation of the UN.Footnote ¹⁰⁹ It was however felt that, while the 1926 Convention remained operative, further steps should be taken to tackle slavery. To that end, states adopted the 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery (1956 Convention).Footnote ¹¹⁰ The 1956 Convention compels all states parties to take “all practicable and necessary legislative and other measures to bring about progressively and as soon as possible the complete abolition or abandonment of … [a]ny institution or practice whereby a child or young person under the age of 18 years, is delivered by either or both of his natural parents or by his guardian to another person, whether for reward or not, with a view to the exploitation of the child or young person or of his labour”.Footnote ¹¹¹ “Unfortunately, the enforcement provisions of the 1956 Convention are as weak as those of the 1949 Trafficking Convention”.Footnote ¹¹² The ILO reacted to the 1956 Convention by adopting the 1957 Abolition of Forced Labour Convention (no 105),Footnote ¹¹³ which compels states parties to take effective measures to secure the immediate and complete abolition of forced or compulsory labour.Footnote ¹¹⁴

During the following decade, the 1966 International Covenant on Civil and Political RightsFootnote ¹¹⁵ reiterated the prohibition of slavery,Footnote ¹¹⁶ as did article 5 of the 1981 African Charter on Human and Peoples' Rights.Footnote ¹¹⁷ Meanwhile the International Court of Justice confirmed in Barcelona Traction, Light and Power Company Limited that the prohibition of slavery enjoyed the status of ius cogens [a peremptory norm of general international law].Footnote ¹¹⁸ At the same time, the ILO adopted the 1973 Minimum Age Convention (no 138),Footnote ¹¹⁹ which provides for a minimum age for admission to employment of 15 yearsFootnote ¹²⁰ subject to certain exceptions.Footnote ¹²¹

In 1999, the ILO adopted the Convention (no 182) Concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour (ILO 1999 Convention).Footnote ¹²² This convention includes among the worst forms of child labour the sale and trafficking of children, child prostitution and any other work “which, by its nature or the circumstances in which it is carried out, is likely to harm the health, safety or morals of children”.Footnote ¹²³ The ILO 1999 Convention not only compels states parties to take immediate and effective measures to secure the prohibition and elimination of the worst forms of child labour as a matter of urgency.Footnote ¹²⁴ It also requires states parties to take all necessary measures to ensure the effective implementation and enforcement of the municipal provisions giving effect to the convention, including the provision and application of penal sanctions or, as appropriate, other sanctions.Footnote ¹²⁵ The ILO 1999 Convention was complemented by the 1999 Recommendation (no 190) Supplementing the Worst Forms of Child Labour Convention.Footnote ¹²⁶ This instrument enjoinsFootnote ¹²⁷ ILO member states to make criminal offences the sale and trafficking of children, as well as the use, procuring or offering of a child for prostitution.Footnote ¹²⁸ It also calls upon members to provide as a matter of urgency for other criminal, civil or administrative remedies, where appropriate, to ensure the effective enforcement of national provisions for the prohibition and elimination of the worst forms of child labour, such as special supervision of enterprises which have used the worst forms of child labour and, in cases of persistent violation, consideration of the temporary or permanent revocation of permits to operate.Footnote ¹²⁹

Girls subjected to sexual exploitation also benefit from the protection afforded by instruments protecting the rights of women. The 1979 Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)Footnote ¹³⁰ compels all states parties to take “all appropriate measures, including legislation, to suppress all forms of traffic in women and exploitation or prostitution of women”,Footnote ¹³¹ including minors.Footnote ¹³² A committee on the elimination of discrimination against women was established to consider the progress made in implementing the convention (CEDAW Committee).Footnote ¹³³ In its 1992 general recommendation no 19,Footnote ¹³⁴ the CEDAW Committee confirmed that “[p]overty and unemployment increase opportunities for trafficking in women” as well as “new forms of sexual exploitation, such as sex tourism … . These practices are incompatible with the equal enjoyment of rights by women and with respect for their rights and dignity. They put women at special risk of violence and abuse”.Footnote ¹³⁵ Poverty and unemployment also “force many women, including young girls, into prostitution. Prostitutes are especially vulnerable to violence because their status, which may be unlawful, tends to marginalize them. They need the equal protection of laws against rape and other forms of violence”.Footnote ¹³⁶ Another problem resides in wars, armed conflicts and the occupation of territories, which “often lead to increased prostitution, trafficking in women and sexual assault of women, [and] which require specific protective and punitive measures”.Footnote ¹³⁷ States parties are expected to submit reports on the legislative, judicial, administrative or other measures which they have adopted to give effect to the provisions of CEDAW, as well as on the progress made in this respect.Footnote ¹³⁸ In its first report submitted in 1998,Footnote ¹³⁹ the South African government acknowledged that the country did not have any “explicit legislation controlling ‘sex tourism’ or trafficking in women across [the] borders of South Africa”.Footnote ¹⁴⁰ In its concluding observations on the report,Footnote ¹⁴¹ the CEDAW Committee regretted “that insufficient attention was being devoted to trafficking in women”, and recommended that “both the legal situation and the reality with regard to trafficking in women be addressed”.Footnote ¹⁴²

In 1999, the UN General Assembly adopted an Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women.Footnote ¹⁴³ This instrument allows communications to be submitted by or on behalf of individuals or groups of individuals, who are under the jurisdiction of a state party to the protocol and who claim to be victims of a violation by that state party of any of the rights set forth in CEDAW.Footnote ¹⁴⁴ The protocol also allows the CEDAW Committee, after it has received reliable information indicating grave or systematic violations by a state party of rights set forth in the CEDAW, to invite that state party to cooperate in the examination of the information and, to this end, to submit observations with regard to the information concerned.Footnote ¹⁴⁵ Finally, a Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa was adopted in 2003.Footnote ¹⁴⁶ This protocol confirms that every womanFootnote ¹⁴⁷ is entitled to respect for her life and the integrity and security of her person, and that all forms of exploitation and cruel, inhuman or degrading treatment are prohibited.Footnote ¹⁴⁸ Furthermore, it compels states parties to take appropriate and effective measures to enact and enforce laws to prohibit all forms of violence against women including unwanted or forced sex, as well as prevent and condemn trafficking in women, prosecute the perpetrators of such trafficking and protect those women most at risk.Footnote ¹⁴⁹

In recent years, international instruments have also been adopted to protect the rights of children.Footnote ¹⁵⁰ The 1989 Convention on the Rights of the Child (CRC)Footnote ¹⁵¹ defines a child as any “human being below the age of eighteen years unless, under the law applicable to the child, majority is attained earlier”.Footnote ¹⁵² States parties must take measures to combat the illicit transfer and non-return of children abroad.Footnote ¹⁵³ They must also take all appropriate legislative, administrative, social and educational measures to protect children from persons under whose care they are, and who allow them to be sexually exploited.Footnote ¹⁵⁴ States parties undertake further to protect children from all forms of sexual exploitation and sexual abuse,Footnote ¹⁵⁵ and must take all appropriate national, bilateral and multilateral measures to prevent the abduction of, the sale of or traffic in children for any purpose and in any form.Footnote ¹⁵⁶ A Committee on the Rights of the Child (CRC Committee) was established for the purpose of examining the progress made by states parties in realizing the obligations undertaken in the CRC.Footnote ¹⁵⁷ One of the functions of the CRC Committee is to consider reports submitted by states parties on the measures they have adopted which give effect to the rights recognized in the CRC as well as on the progress made on the enjoyment of those rights.Footnote ¹⁵⁸ In its first report submitted in 1999,Footnote ¹⁵⁹ the South African government pointed out that South Africa acceded to the 1980 Hague Convention on the Civil Aspects of International Child AbductionFootnote ¹⁶⁰ and acknowledged, as it had done in its 1998 CEDAW report, that South African criminal law and criminal procedure were to a large extent inappropriate and ineffective.Footnote ¹⁶¹ In its concluding observations on the report,Footnote ¹⁶² the CRC Committee expressed its appreciation for the efforts made by South Africa in the area of legal reform.Footnote ¹⁶³ It also acknowledged the challenges faced by South Africa

At the same time, the CRC Committee expressed its concern at the high incidence of commercial sexual exploitation, and recommended that South Africa undertake studies with a view to designing and implementing appropriate policies and measures, including care and rehabilitation, to prevent and combat the sexual exploitation of children.Footnote ¹⁶⁵ The CRC Committee was also concerned about the increasing incidence of the sale and trafficking of children, particularly girls, and the lack of adequate measures to enforce legislative guarantees and to prevent and combat this phenomenon. In order to address this issue, the CRC Committee recommended that South Africa take effective measures to strengthen law enforcement, and seek to establish bilateral agreements with neighbouring countries to prevent the sale, trafficking and abduction of children and to facilitate their protection and safe return to their families.Footnote ¹⁶⁶

In 2000, the CRC was supplemented by an Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography.Footnote ¹⁶⁷ In the preamble to the protocol, states parties express their deep concern “at the widespread and continuing practice of sex tourism, to which children are especially vulnerable, as it directly promotes the sale of children, child prostitution and child pornography”. The protocol places an obligation upon states parties to “promote the strengthening of international cooperation in order to address the root causes, such as poverty and underdevelopment, contributing to the vulnerability of children to … child sex tourism”.Footnote ¹⁶⁸ States parties must promote international cooperation to assist child victims in their physical and psychological recovery, social reintegration and repatriation.Footnote ¹⁶⁹ States parties must also take all necessary steps to strengthen international cooperation by multilateral, regional and bilateral arrangements for the prevention, detection, investigation, prosecution and punishment of those responsible for acts involving child sex tourism.Footnote ¹⁷⁰ The protocol itself improves international law enforcement co-operation with provisions on jurisdiction, extradition, assistance in investigations and criminal or extradition proceedings, as well as the seizure and confiscation of assets.Footnote ¹⁷¹ The special rapporteur of the Commission on Human Rights on the sale of children, child prostitution and child pornography visited South Africa in 2002. He recommended in his report that “[t]he good level of commitment to children's concerns by the police and judiciary in the main cities must be emulated throughout South Africa, and training provided to these sectors working in less developed and more isolated areas”.Footnote ¹⁷² The rapporteur also recommended that “[t]he judicial process for dealing with crimes of a sexual nature must be speeded up, particularly in rural areas”.Footnote ¹⁷³

The African Charter on the Rights and Welfare of the Child (African Charter) was adopted immediately after the CRC.Footnote ¹⁷⁴ A number of factors led African states to adopt their own instrument. Among them are: (a) the critical situation of most African children, due to the unique factors of their socio-economic, cultural, traditional and developmental circumstances, natural disasters, armed conflicts, exploitation and hunger; and (b) the virtues of the African cultural heritage, the African historical background and the values of the African civilization which should inspire and characterize African reflection on the concept of the rights and welfare of the child.Footnote ¹⁷⁵ Under the African Charter, states parties undertake to protect children from all forms of sexual exploitation and sexual abuse, and must in particular take measures to prevent the inducement, coercion or encouragement of a child to engage in any sexual activity, as well as the use of children in prostitution or other sexual practices.Footnote ¹⁷⁶ An African Committee of Experts on the Rights and Welfare of the Child was established within the Organization of African Unity (OAU) to promote and protect the rights and welfare of the child.Footnote ¹⁷⁷ One of the committee's tasks is to monitor the implementation of, and ensure the protection of, the rights enshrined in the African Charter.Footnote ¹⁷⁸ The committee does so by examining state reportsFootnote ¹⁷⁹ and communications received from any person, group or non-governmental organization recognized by the OAU, a member state or the UN,Footnote ¹⁸⁰ as well as by investigating any matter falling within the ambit of the African Charter, and requesting from states parties any information relevant to the implementation of the charter.Footnote ¹⁸¹ The committee is confronted with a huge task with regard to abduction, as the UN High Commissioner for Human Rights recently reported.Footnote ¹⁸²

Finally, child sex tourism has prompted a number of specific steps.Footnote ¹⁸³ For instance, the General Assembly of the World Tourism Organization (UNWTO) adopted in 1995 a statement on the prevention of organized sex tourism,Footnote ¹⁸⁴ in which it denounced and condemned child sex tourism, considering it a violation of article 34 of the CRC which requires strict legal action by countries sending and receiving tourists. The assembly requested governments of both tourist sending and receiving countries to establish and enforce, where applicable, legal and administrative measures to prevent and eradicate child sex tourism, in particular through bilateral agreements to facilitate, inter alia, the prosecution of tourists engaged in any unlawful sexual activity involving children and juveniles. A few years later, the UN General Assembly endorsed the 1999 UNWTO Global Code of Ethics for Tourism.Footnote ¹⁸⁵ This codeFootnote ¹⁸⁶ states that tourism activities should promote the individual rights of children.Footnote ¹⁸⁷ More specifically, the code stresses that the sexual exploitation of children “conflicts with the fundamental aims of tourism and is the negation of tourism”. For that reason, it should be “energetically combated with the cooperation of all states concerned, and penalized without concession by the national legislation of both the countries visited and the countries of the perpetrators of these acts, even when they are carried out abroad”.Footnote ¹⁸⁸ The code is not legally binding, but provides for a World Committee on Tourism Ethics to which stakeholders in tourism development are enjoined to refer their disputes concerning the application or interpretation of the code.Footnote ¹⁸⁹ At its fourth meeting in 2006, the committee constituted its Task Force Against the Sexual Exploitation of Children Through Tourism as one of its advisory bodies.Footnote ¹⁹⁰ The task force, originally established in 1997, is “a global action platform of tourism-related key-players from the government and the tourism industry sectors, international organizations and non-governmental organizations (NGOs), and media associations whose aim is to prevent, uncover, isolate and eradicate the sexual exploitation of children in tourism”.Footnote ¹⁹¹ At the regional level, South Africa's main non-African inbound market, the European Union, has developed a series of measures since 1996.Footnote ¹⁹² These include the 2003 Council Framework Decision on Combating the Sexual Exploitation of Children and Child Pornography.Footnote ¹⁹³ In Africa, the 2003 Dakar Declaration on the Protection of Children from Sexual Exploitation in TourismFootnote ¹⁹⁴ urges African governments to “adopt and strengthen national legislation against the sexual exploitation of children in tourism, including extra-territorial laws and regulations allowing the prosecution of nationals for child sex offences committed abroad, and to ensure strict enforcement of these laws”.Footnote ¹⁹⁵ The declaration also strongly recommends African states to “[f]urther intensify their regional cooperation on the protection of children from sexual exploitation in tourism”.Footnote ¹⁹⁶

SOUTH AFRICAN INSTRUMENTS

The ConstitutionFootnote ¹⁹⁷ is the supreme law of South Africa.Footnote ¹⁹⁸ As a result, the Bill of Rights applies to all the organs of stateFootnote ¹⁹⁹ and, whenever applicable, to all natural and juristic persons.Footnote ²⁰⁰ The Bill of Rights does not refer explicitly to child sex tourism or, more generally, the sexual exploitation of children.Footnote ²⁰¹ It entrenches however the right of children to be protected from abuse and not to be required or permitted to provide services that are inappropriate to their age, or place at risk their “well-being, education, physical or mental health or spiritual, moral or social development”.Footnote ²⁰² This right, which must be interpreted in the light of international lawFootnote ²⁰³ including the CRC and the African Charter,Footnote ²⁰⁴ is not absolute,Footnote ²⁰⁵ but may only be limited by a provision of the ConstitutionFootnote ²⁰⁶ or “in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom”.Footnote ²⁰⁷ This is also the case of the rights: to human dignity;Footnote ²⁰⁸ to be free from all forms of violence;Footnote ²⁰⁹ to bodily and psychological integrity;Footnote ²¹⁰ not to be treated in a cruel, inhuman or degrading way;Footnote ²¹¹ and not to be subjected to slavery, servitude or forced labour.Footnote ²¹² To that extent, the state is compelled not only to respect, but also to protect, promote and fulfil those rights,Footnote ²¹³ keeping in mind that a child's best interests are of paramount importance in all matters concerning that child.Footnote ²¹⁴

Parliament passed the Children's Act 2005 (Children's Act),Footnote ²¹⁵ to give effect to some of the rights entrenched in the ConstitutionFootnote ²¹⁶ as well as to the relevant international instruments to which South Africa is bound.Footnote ²¹⁷ This concluded a consultative review of the Child Care Act 1983,Footnote ²¹⁸ which was embarked upon in 1997.Footnote ²¹⁹ The Children's Act does not deal specifically with child sex tourism. However, it ensures that the 1980 Hague Convention on the Civil Aspects of International Child Abduction continues to have force in South AfricaFootnote ²²⁰ and, as a result, its provisions are law in the country, subject to the provisions of the Children's Act.Footnote ²²¹ The actFootnote ²²² retains as South Africa's central authority for convention purposes the chief family advocate appointed by the minister of justice and constitutional development under the Mediation in Certain Divorce Matters Act 1987.Footnote ²²³ But the Children's Act innovates by providing that the High Court, on the one hand, “may, prior to the making of an order for the return of the child, order interim protective relief for the child, the applicant or the defendant” and, on the other hand, must, in considering an application “for the return of a child, afford that child the opportunity to raise an objection to being returned and in so doing must give due weight to that objection, taking into account the age and maturity of the child”.Footnote ²²⁴

The Children's Act also gives force in South Africa to the 2000 UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, thereby making its provisions law in the country, subject to the provisions of the Children's Act.Footnote ²²⁵ The act makes it an offence for any natural or juristic person and any partnership to “traffic a child or allow a child to be trafficked” in South Africa,Footnote ²²⁶ and for a South African citizen or permanent resident, or a juristic person or partnership registered under South African law to commit such an act outside South Africa.Footnote ²²⁷ A person convicted of such an offence “is, in addition to a sentence for any other offence of which he or she may be convicted, liable to a fine or imprisonment for a period not exceeding 20 years or to both a fine and such imprisonment”.Footnote ²²⁸ The Children's Act provides that it is no defence to a child trafficking charge that the child who is a victim of trafficking or a person having control over that child consented to the intended exploitation, or that the intended exploitation did not occur.Footnote ²²⁹ The act further provides that the conduct of an employee or agent of, or any other person acting on behalf of, a tourism employer or principal, for instance, may be attributed to the employer or principal if that person is acting within the scope of his or her employment, or within the scope of his or her actual or apparent authority, or with the express or implied consent of a director, member or partner of the employer or principal.Footnote ²³⁰ Such a court finding constitutes a ground for revoking the licence or registration of the employer or principal to operate.Footnote ²³¹ The act also makes it an offence for any natural or juristic person and any partnership knowingly to lease or sublease or allow any room, house, building or establishment in South Africa to be used for the purpose of harbouring a child who is a victim of trafficking;Footnote ²³² and for a person who is the owner, lessor, manager, tenant or occupier of any premises on which the commercial sexual exploitation of a child has occurred, to fail, on gaining information of that occurrence, promptly to take reasonable steps to report the occurrence to the South African police.Footnote ²³³ It is further an offence to advertise, publish, print, broadcast, distribute or cause the advertisement, publication, printing, broadcast or distribution in South Africa of information that suggests or alludes to trafficking by any means, including the use of the internet or other information technology.Footnote ²³⁴ In all those instances, the person convicted is liable to a fine or to imprisonment for a period not exceeding ten years, or to both a fine and such imprisonment.Footnote ²³⁵ The Children's Act compels the state to facilitate the return to South Africa of children who are South African citizens or permanent residents, and who are victims of trafficking.Footnote ²³⁶ With regard to victims found in South Africa, the act makes it mandatory for such children to be referred to social workers for investigation,Footnote ²³⁷ and allows those children to be placed in temporary safe care pending such an investigation.Footnote ²³⁸ Should a children's court ruling upon the outcome of that investigation find that an illegal foreign child who is a victim of trafficking is a child in need of care and protection,Footnote ²³⁹ that finding “serves as authorisation for allowing the child to remain in the Republic for the duration of the children's court order”.Footnote ²⁴⁰ The court may also orderFootnote ²⁴¹ that the child be assisted in applying for asylum under the Refugees Act 1998.Footnote ²⁴² The Children's Act forbids the state to return an illegal foreign child “to his or her country of origin or the country from where the child has been trafficked without giving due consideration to: (a) the availability of care arrangements in the country to which the child is to be returned; (b) the safety of the child in the country to which the child is to be returned; and (c) the possibility that the child might be trafficked again, harmed or killed”.Footnote ²⁴³ The expenses of an escort must be borne by the state, unless “the parent, guardian, care-giver or other person who has parental responsibilities and rights in respect of the child” has sufficient financial means.Footnote ²⁴⁴ A further weapon against child sex tourism created by the Children's Act is the national child protection register.Footnote ²⁴⁵ This contains, inter alia, all convictions of all persons on charges involving the abuse of a child, which includes: “(a) sexually molesting or assaulting a child or allowing a child to be sexually molested or assaulted; (b) encouraging, inducing or forcing a child to be used for the sexual gratification of another person; (c) using a child in or deliberately exposing a child to sexual activities or pornography; or (d)  procuring or allowing a child to be procured for commercial sexual exploitation or in any way participating or assisting in the commercial sexual exploitation of a child”.Footnote ²⁴⁶ That information may be released in limited instances, including for the purpose of protecting the interests, safety or well-being of a specific child; or for the purpose of facilitating an investigation by the South African police following a criminal charge involving abuse or deliberate neglect of a specific child.Footnote ²⁴⁷ The register will also contain a record of persons who are unsuitable to work with children, to be used in order to protect children in general against abuse from these persons.Footnote ²⁴⁸

Due to constitutional constraints, the Children's Act will only come into effect after parliament has passed the Children's Amendment Bill 2006,Footnote ²⁴⁹ which provides, inter alia, for the insertion of a provision forbidding the takingFootnote ²⁵⁰ or sendingFootnote ²⁵¹ of a child out of South Africa without the consent of a court or the “persons holding relevant parental responsibilities and rights in respect of that child”.Footnote ²⁵² Other provisions forbid the employing of a child who is under the age of 15 yearsFootnote ²⁵³ as well as the use, procuring, offering or employing of a child for purposes of commercial sexual exploitation.Footnote ²⁵⁴ Until then, the Child Care Act 1983, continues to apply, as amended by the Child Care Amendment Act 1999,Footnote ²⁵⁵ so that it is already an offence for any person to participate or be involved in the commercial sexual exploitation of a child,Footnote ²⁵⁶ to abduct a child,Footnote ²⁵⁷ to employ or provide work to any child under the age of 15 yearsFootnote ²⁵⁸ or, when an owner, lessor, manager, tenant or occupier of property on which the commercial sexual exploitation of a child occurs, to fail to report such occurrence at a police station within a reasonable time of gaining information of such occurrence.Footnote ²⁵⁹

Parliament is also in the process of adopting the Criminal Law (Sexual Offences and Related Matters) Amendment Bill 2003 (Sexual Offences Amendment Bill),Footnote ²⁶⁰ which will amend the Sexual Offences Act 1957,Footnote ²⁶¹ among other things to take into account that “children, being particularly vulnerable, are more likely to become victims of sexual offences, including … sexual exploitation”.Footnote ²⁶² The bill includes a whole chapter on sexual offences against children.Footnote ²⁶³ One of those offences is the offence of “sexual exploitation of a child”. In order to commit that offence, a person must unlawfully and intentionally engage the services of the childFootnote ²⁶⁴ who is the alleged victim of the offence, with or without the consent of that child, for financial or other reward, favour or compensation to that child or to a third person, (a) for the purpose of engaging in a sexual act with that child, irrespective of whether the sexual act is committed or not, or (b) by committing a sexual act with that child.Footnote ²⁶⁵ Another of those offences is that of “being involved in the sexual exploitation of a child”. In this case, a person must unlawfully and intentionally offer the services of the child who is the alleged victim of the offence to a third person, with or without the consent of that child, for financial or other reward, favour or compensation to either the offender, the child or another person: (a) for purposes of the commission of a sexual act with the child by that third person; (b) by inviting, persuading or inducing the child to allow that third person to commit a sexual act with the child; (c) by participating in, being involved in, promoting, encouraging or facilitating the commission of a sexual act with the child by that third person; (d) by making available, offering or engaging the child for purposes of the commission of a sexual act with the child by that third person; or (e) by detaining the child, whether under threat, force, coercion, deception, abuse of power or authority, for purposes of the commission of a sexual act with the child by that third person.Footnote ²⁶⁶ A further offence is that of “furthering the sexual exploitation of a child”. A person will be guilty of such an offence if either: (a) s/he intentionally allows or knowingly permits the commission of a sexual act by a third person with the child who is the alleged victim of the offence, with or without the consent of that child, while being a primary care-giver,Footnote ²⁶⁷ parent or guardian of the child; or (b) owns, leases, rents, manages, occupies or has control of any movable or immovable property and intentionally allows or knowingly permits such movable or immovable property to be used for purposes of the commission of a sexual act with that child by that third person.Footnote ²⁶⁸ The offence of “benefiting from the sexual exploitation of a child” requires a person intentionally to receive financial or other reward, favour or compensation from the commission of a sexual act with the child who is the alleged victim of the offence by a third person.Footnote ²⁶⁹ On the other hand, a person will be guilty of an offence of “living from the earnings of the sexual exploitation of a child” if that person intentionally lives wholly or in part on rewards, favours or compensation for the commission of a sexual act with a child who is the alleged victim of an offence by a third person.Footnote ²⁷⁰ Moreover, a natural or juristic person will be guilty of the offence of “promoting child sex tours” if that person: (a) makes or organizes any travel arrangements for or on behalf of a third person, whether that other person is resident within or outside South Africa, with the intention of facilitating the commission of any sexual act with a child, irrespective of whether that act is committed or not; or (b) prints or publishes, in any manner, any information that is intended to promote or facilitate conduct that would constitute a sexual act with a child.Footnote ²⁷¹ Finally, the bill makes it an offence for a person who has knowledge that a sexual offence has been committed against a child not to report such knowledge immediately to a police official.Footnote ²⁷²

Importantly, the bill provides that a child may not be convicted of the offence of benefiting from the sexual exploitation of a child, or the offence of living from the earnings of the sexual exploitation of a child, or the offence of failing to inform the police, if that child is not guilty of the offences of sexual exploitation of a child or of being involved in the sexual exploitation of a child.Footnote ²⁷³ Another innovation is the creation of the offences of sexual grooming of a child, promoting the sexual grooming of a child, exposing or displaying or causing the exposure or display of pornography to a child, using a child for child pornography, benefiting from child pornography, compelling or causing a child to witness a sexual offence, compelling or causing a child to witness a sexual act, compelling or causing a child to witness self-masturbation, and exposing or displaying or causing the exposure or display of genital organs, anus or female breasts to a child.Footnote ²⁷⁴ The bill also addresses a number of concerns raised about the common-law offence of rape. In future, any person, male or female, who unlawfully and intentionally commits an act of sexual penetration with a male or female child will be guilty of the offence of rape if the child did not consent, or statutory rape if the child was under 16 years of age and did consent.Footnote ²⁷⁵ On the other hand, any person, male or female, who unlawfully and intentionally sexually violatesFootnote ²⁷⁶ a male or female child will be guilty of the offence of sexual assault if the child did not consent, or statutory sexual assault if the child was under 16 years of age and did consent.Footnote ²⁷⁷

The bill makes provision for a national register of sex offenders.Footnote ²⁷⁸ It also provides for extra-territorial application, to the extent that the South African courts will have jurisdiction when the act alleged to constitute an offence occurred outside South Africa, irrespective of whether that act constitutes an offence at the place of its commission, if the person to be charged: (a) is a South African citizen; (b) is ordinarily resident in South Africa; (c) was arrested in South Africa, in its territorial waters or on board a South African ship or aircraft at the time the offence was committed; (d) is a South African company; or (e) committed the offence against a child who is a South African citizen or ordinarily resident in South Africa, was found in South Africa and is not being extradited.Footnote ²⁷⁹

A number of other pieces of South African legislation also exist to combat international child sex tourism. The Domestic Violence Act 1998Footnote ²⁸⁰ supplements the Children's Act in an important way in view of the high incidence of domestic violence in South African society, by making provision for the issue of protection orders in cases where any conduct that abuses, humiliates, degrades or otherwise violates the sexual integrity of a child takes place in a domestic relationship.

The Prevention of Organised Crime Act 1998Footnote ²⁸¹ is also crucial in the fight against child sex tourism in view of the widespread involvement of criminal groups.Footnote ²⁸² This act makes it an offence, among others, for any person who actively participates in, or is a member of, a criminal gangFootnote ²⁸³ wilfully to aid and abet any criminal activity committed for the benefit of, at the direction of, or in association with that gang.Footnote ²⁸⁴ More generally, the act makes it an offence for any person to perform any act which is aimed at causing, bringing about, promoting or contributing towards a pattern of criminal gang activity.Footnote ²⁸⁵ The act also provides for the recovery of the proceeds of unlawful activity and for the civil forfeiture of criminal assets that have been used to commit an offence or assets that are the proceeds of unlawful activity.Footnote ²⁸⁶ Related pieces of legislation are the Extradition Act 1962Footnote ²⁸⁷ and the International Co-operation in Criminal Matters Act 1996Footnote ²⁸⁸ which facilitates the provision of evidence and the execution of sentences in criminal matters, as well as the confiscation and transfer of the proceeds of crime between South Africa and other states.Footnote ²⁸⁹ Also related, in view of the link between child sex tourism and internet child pornography, is the Films and Publications Act 1996.Footnote ²⁹⁰ This makes the exploitative use of children on the internet punishable by making it an offence for any person to create, produce, import, procure, obtain, access, distribute or be in possession of a film or publication that contains child pornography, or that advocates, advertises or promotes child pornography or the sexual exploitation of children.Footnote ²⁹¹ This act also compels all internet service providers to take all reasonable steps to prevent the use of their services for the hosting or distribution of child pornography.Footnote ²⁹² Providers who become aware that their services are being used for the hosting or distribution of child pornography must report its presence to the police and take all reasonable steps to keep the evidence and to prevent access to the child pornography by any person.Footnote ²⁹³ The Films and Publications Amendment Bill 2006Footnote ²⁹⁴ extends the reach of the act to interactive computer games as well as mobile cellular telephones,Footnote ²⁹⁵ and grants extensive powers to compliance officers.Footnote ²⁹⁶ The admissibility and evidential value of computer-related evidence are governed by the Electronic Communications and Transactions Act 2002.Footnote ²⁹⁷ This act provides that the rules of evidence must not be applied so as to deny the admissibility of a data message in evidence on the mere grounds that it consists of electronic data or that it is not in its original form, if it is the best evidence that the person adducing the evidence could reasonably be expected to obtain.Footnote ²⁹⁸ It also provides for cyber inspectors with extensive powers including inspection, search and seizure.Footnote ²⁹⁹ The Regulation of Interception of Communications and Provision of Communication-Related Information Amendment Bill 2006Footnote ³⁰⁰ provides for service providers to keep updated information about SIM cards and cellular phones.Footnote ³⁰¹

Finally, the Basic Conditions of Employment Act 1997Footnote ³⁰² prohibits all forced labourFootnote ³⁰³ and makes it an offence to employ a child who is under 15 years of age.Footnote ³⁰⁴ This act also makes it an offence to employ a child who is 15 years of age or older if that employment is inappropriate for a person of that age, or places at risk the child's well-being, education, physical or mental health, or spiritual, moral or social development.Footnote ³⁰⁵