Optional
Protocol to the Convention on the Rights of the Child on the sale of children,
child prostitution and child pornography
The States
Parties to the present Protocol,
Considering
that, in order further to achieve the purposes of the Convention on the Rights
of the Child and the implementation of its provisions, especially articles 1,
11, 21, 32, 33, 34, 35 and 36, it would be appropriate to extend the measures
that States Parties should undertake in order to guarantee the protection of
the child from the sale of children, child prostitution and child pornography,
Considering
also that the Convention on the Rights of the Child recognizes the right of the
child to be protected from economic exploitation and from performing any work
that is likely to be hazardous or to interfere with the child's education, or
to be harmful to the child's health or physical, mental, spiritual, moral or
social development,
Gravely
concerned at the significant and increasing international traffic in children
for the purpose of the sale of children, child prostitution and child
pornography,
Deeply
concerned 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,
Recognizing
that a number of particularly vulnerable groups, including girl children, are
at greater risk of sexual exploitation and that girl children are
disproportionately represented among the sexually exploited,
Concerned about
the growing availability of child pornography on the Internet and other
evolving technologies, and recalling the International Conference on Combating
Child Pornography on the Internet, held in Vienna in 1999, in particular its
conclusion calling for the worldwide criminalization of the production,
distribution, exportation, transmission, importation, intentional possession
and advertising of child pornography, and stressing the importance of closer
cooperation and partnership between Governments and the Internet industry,
Believing that
the elimination of the sale of children, child prostitution and child
pornography will be facilitated by adopting a holistic approach, addressing the
contributing factors, including underdevelopment, poverty, economic
disparities, inequitable socio-economic structure, dysfunctioning families,
lack of education, urban-rural migration, gender discrimination, irresponsible
adult sexual behaviour, harmful traditional practices, armed conflicts and
trafficking in children,
Believing also
that efforts to raise public awareness are needed to reduce consumer demand for
the sale of children, child prostitution and child pornography, and believing
further in the importance of strengthening global partnership among all actors
and of improving law enforcement at the national level,
Noting the
provisions of international legal instruments relevant to the protection of
children, including the Hague Convention on Protection of Children and
Cooperation in Respect of Intercountry Adoption, the Hague Convention on the
Civil Aspects of International Child Abduction, the Hague Convention on
Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect
of Parental Responsibility and Measures for the Protection of Children, and
International Labour Organization Convention No. 182 on the Prohibition
and Immediate Action for the Elimination of the Worst Forms of Child Labour,
Encouraged by
the overwhelming support for the Convention on the Rights of the Child,
demonstrating the widespread commitment that exists for the promotion and
protection of the rights of the child,
Recognizing the
importance of the implementation of the provisions of the Programme of Action
for the Prevention of the Sale of Children, Child Prostitution and Child
Pornography and the Declaration and Agenda for Action adopted at the World
Congress against Commercial Sexual Exploitation of Children, held in Stockholm
from 27 to 31 August 1996, and the other relevant decisions and
recommendations of pertinent international bodies,
Taking due
account of the importance of the traditions and cultural values of each people
for the protection and harmonious development of the child,
Have agreed as
follows:
Article
1
States Parties
shall prohibit the sale of children, child prostitution and child pornography
as provided for by the present Protocol.
Article
2
For the
purposes of the present Protocol:
(a) Sale of children means any act or transaction
whereby a child is transferred by any person or group of persons to another for
remuneration or any other consideration;
(b) Child prostitution means the use of a child in
sexual activities for remuneration or any other form of consideration;
(c) Child pornography means any representation, by
whatever means, of a child engaged in real or simulated explicit sexual
activities or any representation of the sexual parts of a child for primarily
sexual purposes.
Article
3
1. Each State
Party shall ensure that, as a minimum, the following acts and activities are
fully covered under its criminal or penal law, whether such offences are
committed domestically or transnationally or on an individual or organized
basis:
(a) In the context of sale of children as defined
in article 2:
(i) Offering,
delivering or accepting, by whatever means, a child for the purpose of:
a. Sexual exploitation of the
child;
b. Transfer of organs of the
child for profit;
c. Engagement of the child in
forced labour;
(ii) Improperly
inducing consent, as an intermediary, for the adoption of a child in violation
of applicable international legal instruments on adoption;
(b) Offering, obtaining, procuring or providing a
child for child prostitution, as defined in article 2;
(c) Producing, distributing, disseminating,
importing, exporting, offering, selling or possessing for the above purposes
child pornography as defined in article 2.
2. Subject to
the provisions of the national law of a State Party, the same shall apply to an
attempt to commit any of the said acts and to complicity or participation in
any of the said acts.
3. Each State
Party shall make such offences punishable by appropriate penalties that take
into account their grave nature.
4. Subject to
the provisions of its national law, each State Party shall take measures, where
appropriate, to establish the liability of legal persons for offences
established in paragraph 1 of the present article. Subject to the legal
principles of the State Party, such liability of legal persons may be criminal,
civil or administrative.
5. States
Parties shall take all appropriate legal and administrative measures to ensure
that all persons involved in the adoption of a child act in conformity with
applicable international legal instruments.
Article
4
1. Each State
Party shall take such measures as may be necessary to establish its
jurisdiction over the offences referred to in article 3, paragraph 1,
when the offences are committed in its territory or on board a ship or aircraft
registered in that State.
2. Each State
Party may take such measures as may be necessary to establish its jurisdiction
over the offences referred to in article 3, paragraph 1, in the
following cases:
(a) When the alleged offender is a national of that
State or a person who has his habitual residence in its territory;
(b) When the victim is a national of that State.
3. Each State
Party shall also take such measures as may be necessary to establish its
jurisdiction over the aforementioned offences when the alleged offender is
present in its territory and it does not extradite him or her to another State
Party on the ground that the offence has been committed by one of its
nationals.
4. The present
Protocol does not exclude any criminal jurisdiction exercised in accordance
with internal law.
Article
5
1. The offences
referred to in article 3, paragraph 1, shall be deemed to be included
as extraditable offences in any extradition treaty existing between States
Parties and shall be included as extraditable offences in every extradition
treaty subsequently concluded between them, in accordance with the conditions
set forth in such treaties.
2. If a State
Party that makes extradition conditional on the existence of a treaty receives
a request for extradition from another State Party with which it has no
extradition treaty, it may consider the present Protocol to be a legal basis
for extradition in respect of such offences. Extradition shall be subject to
the conditions provided by the law of the requested State.
3. States Parties
that do not make extradition conditional on the existence of a treaty shall
recognize such offences as extraditable offences between themselves subject to
the conditions provided by the law of the requested State.
4. Such
offences shall be treated, for the purpose of extradition between States
Parties, as if they had been committed not only in the place in which they
occurred but also in the territories of the States required to establish their
jurisdiction in accordance with article 4.
5. If an extradition
request is made with respect to an offence described in article 3,
paragraph 1, and the requested State Party does not or will not extradite
on the basis of the nationality of the offender, that State shall take suitable
measures to submit the case to its competent authorities for the purpose of
prosecution.
Article
6
1. States
Parties shall afford one another the greatest measure of assistance in
connection with investigations or criminal or extradition proceedings brought
in respect of the offences set forth in article 3, paragraph 1,
including assistance in obtaining evidence at their disposal necessary for the
proceedings.
2. States
Parties shall carry out their obligations under paragraph 1 of the present
article in conformity with any treaties or other arrangements on mutual legal
assistance that may exist between them. In the absence of such treaties or
arrangements, States Parties shall afford one another assistance in accordance
with their domestic law.
Article
7
States Parties
shall, subject to the provisions of their national law:
(a) Take measures to provide for the seizure and
confiscation, as appropriate, of:
(i) Goods,
such as materials, assets and other instrumentalities used to commit or
facilitate offences under the present protocol;
(ii) Proceeds
derived from such offences;
(b) Execute requests from another State Party for
seizure or confiscation of goods or proceeds referred to in subparagraph (a);
(c) Take measures aimed at closing, on a temporary
or definitive basis, premises used to commit such offences.
Article
8
1. States
Parties shall adopt appropriate measures to protect the rights and interests of
child victims of the practices prohibited under the present Protocol at all
stages of the criminal justice process, in particular by:
(a) Recognizing the vulnerability of child victims
and adapting procedures to recognize their special needs, including their
special needs as witnesses;
(b) Informing child victims of their rights, their
role and the scope, timing and progress of the proceedings and of the
disposition of their cases;
(c) Allowing the views, needs and concerns of child
victims to be presented and considered in proceedings where their personal
interests are affected, in a manner consistent with the procedural rules of
national law;
(d) Providing appropriate support services to child
victims throughout the legal process;
(e) Protecting, as appropriate, the privacy and
identity of child victims and taking measures in accordance with national law
to avoid the inappropriate dissemination of information that could lead to the
identification of child victims;
(f) Providing, in appropriate cases, for the safety
of child victims, as well as that of their families and witnesses on their
behalf, from intimidation and retaliation;
(g) Avoiding unnecessary delay in the disposition
of cases and the execution of orders or decrees granting compensation to child
victims.
2. States
Parties shall ensure that uncertainty as to the actual age of the victim shall
not prevent the initiation of criminal investigations, including investigations
aimed at establishing the age of the victim.
3. States
Parties shall ensure that, in the treatment by the criminal justice system of
children who are victims of the offences described in the present Protocol, the
best interest of the child shall be a primary consideration.
4. States
Parties shall take measures to ensure appropriate training, in particular legal
and psychological training, for the persons who work with victims of the
offences prohibited under the present Protocol.
5. States
Parties shall, in appropriate cases, adopt measures in order to protect the
safety and integrity of those persons and/or organizations involved in the
prevention and/or protection and rehabilitation of victims of such offences.
6. Nothing in
the present article shall be construed to be prejudicial to or inconsistent
with the rights of the accused to a fair and impartial trial.
Article
9
1. States
Parties shall adopt or strengthen, implement and disseminate laws,
administrative measures, social policies and programmes to prevent the offences
referred to in the present Protocol. Particular attention shall be given to
protect children who are especially vulnerable to such practices.
2. States
Parties shall promote awareness in the public at large, including children,
through information by all appropriate means, education and training, about the
preventive measures and harmful effects of the offences referred to in the
present Protocol. In fulfilling their obligations under this article, States
Parties shall encourage the participation of the community and, in particular,
children and child victims, in such information and education and training programmes,
including at the international level.
3. States
Parties shall take all feasible measures with the aim of ensuring all
appropriate assistance to victims of such offences, including their full social
reintegration and their full physical and psychological recovery.
4. States
Parties shall ensure that all child victims of the offences described in the
present Protocol have access to adequate procedures to seek, without
discrimination, compensation for damages from those legally responsible.
5. States
Parties shall take appropriate measures aimed at effectively prohibiting the
production and dissemination of material advertising the offences described in
the present Protocol.
Article
10
1. States
Parties shall 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 the sale of children, child prostitution, child pornography and
child sex tourism. States Parties shall also promote international cooperation
and coordination between their authorities, national and international
non-governmental organizations and international organizations.
2. States
Parties shall promote international cooperation to assist child victims in
their physical and psychological recovery, social reintegration and
repatriation.
3. States
Parties shall 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 the sale of children, child prostitution,
child pornography and child sex tourism.
4. States
Parties in a position to do so shall provide financial, technical or other
assistance through existing multilateral, regional, bilateral or other
programmes.
Article
11
Nothing in the
present Protocol shall affect any provisions that are more conducive to the
realization of the rights of the child and that may be contained in:
(a) The law of a State Party;
(b) International law in force for that State.
Article
12
1. Each State
Party shall, within two years following the entry into force of the present
Protocol for that State Party, submit a report to the Committee on the Rights
of the Child providing comprehensive information on the measures it has taken
to implement the provisions of the Protocol.
2. Following
the submission of the comprehensive report, each State Party shall include in
the reports they submit to the Committee on the Rights of the Child, in
accordance with article 44 of the Convention, any further information with
respect to the implementation of the present Protocol. Other States Parties to
the Protocol shall submit a report every five years.
3. The
Committee on the Rights of the Child may request from States Parties further
information relevant to the implementation of the present Protocol.
Article
13
1. The present
Protocol is open for signature by any State that is a party to the Convention
or has signed it.
2. The present
Protocol is subject to ratification and is open to accession by any State that
is a party to the Convention or has signed it. Instruments of ratification or
accession shall be deposited with the Secretary-General of the United Nations.
Article
14
1. The present
Protocol shall enter into force three months after the deposit of the tenth
instrument of ratification or accession.
2. For each
State ratifying the present Protocol or acceding to it after its entry into
force, the Protocol shall enter into force one month after the date of the
deposit of its own instrument of ratification or accession.
Article
15
1. Any State
Party may denounce the present Protocol at any time by written notification to
the Secretary-General of the United Nations, who shall thereafter inform the
other States Parties to the Convention and all States that have signed the
Convention. The denunciation shall take effect one year after the date of
receipt of the notification by the Secretary-General.
2. Such a
denunciation shall not have the effect of releasing the State Party from its
obligations under the present Protocol in regard to any offence that occurs
prior to the date on which the denunciation becomes effective. Nor shall such a
denunciation prejudice in any way the continued consideration of any matter
that is already under consideration by the Committee on the Rights of the Child
prior to the date on which the denunciation becomes effective.
Article
16
1. Any State
Party may propose an amendment and file it with the Secretary-General of the
United Nations. The Secretary-General shall thereupon communicate the proposed
amendment to States Parties with a request that they indicate whether they
favour a conference of States Parties for the purpose of considering and voting
upon the proposals. In the event that, within four months from the date of such
communication, at least one third of the States Parties favour such a
conference, the Secretary-General shall convene the conference under the
auspices of the United Nations. Any amendment adopted by a majority of States
Parties present and voting at the conference shall be submitted to the General
Assembly of the United Nations for approval.
2. An amendment
adopted in accordance with paragraph 1 of the present article shall enter
into force when it has been approved by the General Assembly and accepted by a
two-thirds majority of States Parties.
3. When an
amendment enters into force, it shall be binding on those States Parties that
have accepted it, other States Parties still being bound by the provisions of
the present Protocol and any earlier amendments they have accepted.
Article
17
1. The present
Protocol, of which the Arabic, Chinese, English, French, Russian and Spanish
texts are equally authentic, shall be deposited in the archives of the United
Nations.
2. The
Secretary-General of the United Nations shall transmit certified copies of the
present Protocol to all States Parties to the Convention and all States that
have signed the Convention.