Chapter 5 articulates recommendations for responding to orphanage trafficking as a form of child trafficking. The chapter advocates for a comprehensive multi-sector framework that focuses on both anti-trafficking and child protection mechanisms to combat orphanage trafficking using the three pillars for addressing human trafficking that are found in the Trafficking Protocol: prosecution, prevention and protection. Using this framework, the chapter recommends that countries respond to orphanage trafficking through criminalising and prosecuting orphanage trafficking as a form of child trafficking; preventing orphanage trafficking through addressing vulnerability, demand, corruption and complicity; and providing protection and assistance for child victims and survivors of orphanage trafficking focusing on identification, reintegration and access to remedies. The chapter advocates that a child-rights-based approach with a focus on prevention and protection, as opposed to just prosecution, must be at the centre of implementation of this framework.

Chapter 4 situates the process of orphanage trafficking as a form of child trafficking under international law. The chapter applies the international framework on child trafficking to the process of orphanage trafficking including the Convention on the Rights of the Child and the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography. The chapter argues that the process of orphanage trafficking should be recognised as a form of child trafficking under the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime 2000. The definition of child trafficking has two elements: the act element and the purpose element. The chapter then turns to applying the definition of child trafficking found in article 3 of the Trafficking Protocol to the process of orphanage trafficking, establishing that the act element is present. It also demonstrates how the exploitation that paper orphans experience meets the purpose element of the child trafficking definition in the Trafficking Protocol.

The introduction highlights the significance of this book. It provides a brief overview of orphanage trafficking and outlines the central arguments put forward.

The chapter examines the evolution over the past twenty years of a complex transnational legal order or TLO around the 2000 Palermo Protocol on Trafficking. It elaborates on why despite the Protocol’s high rates of ratification, the anti-trafficking TLO is poorly institutionalized attributing it to the various phases of the TLO’s development, the discursive and ideological issues that are at its core, the factors for its institutionalization relating to concordance and issue alignment, and the varied regulatory fields that it has implicated. Paradoxically however, the criminal justice approach to trafficking inherent in the Palermo Protocol remains hegemonic. This hegemony however cannot be simply attributed to the unidirectional influence and dissemination of transnational (and Western) ideas about how to address the problem. Rather, using the example of the India, the chapter shows how national legal contexts are crucial to when and how the logic of criminalization is pursued. The recursive nature of the trafficking TLO is therefore significant and helps explain the normative basis for the authority of transnational law.