Protocols to the Convention on the Rights of the ChildSenate Consideration of Treaty Document 106-37
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[Senate Treaty Document 106-37] [From the U.S. Government Printing Office] 106th Congress Treaty Doc. SENATE 2d Session 106-37 _______________________________________________________________________ PROTOCOLS TO THE CONVENTION ON THE RIGHTS OF THE CHILD __________ MESSAGE from THE PRESIDENT OF THE UNITED STATES transmitting TWO OPTIONAL PROTOCOLS TO THE CONVENTION ON THE RIGHTS OF THE CHILD, BOTH OF WHICH WERE ADOPTED AT NEW YORK, MAY 25, 2000: (1) THE OPTIONAL PROTOCOL TO THE CONVENTION ON THE RIGHTS OF THE CHILD ON INVOLVEMENT OF CHILDREN IN ARMED CONFLICT; AND (2) THE OPTIONAL PROTOCOL TO THE CONVENTION ON THE RIGHTS OF THE CHILD ON THE SALE OF CHILDREN, CHILD PROSTITUTION AND CHILD PORNOGRAPHY, SIGNED ON JULY 5, 2000 July 25, 2000.--The Protocols were read the first time, and together with the accompanying papers, referred to the Committee on Foreign Relations and ordered to be printed for the use of the Senate __________ U.S. GOVERNMENT PRINTING OFFICE 79-118 WASHINGTON : 2000 LETTER OF TRANSMITTAL ---------- The White House, July 25, 2000. To the Senate of the United States: With a view to receiving advice and consent of the Senate to ratification, I transmit herewith two optional protocols to the Convention on the Rights of the Child, both of which were adopted at New York, May 25, 2000: (1) The Optional Protocol to the Convention on the Rights of the Child on Involvement of Children in Armed Conflict; and (2) The Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography. I signed both Protocols on July 5, 2000. In addition, I transmit for the information of the Senate, the report of the Department of State with respect to both Protocols, including article-by-article analyses of each protocol. As detailed in the Department of State report, a number of understandings and declarations are recommended. These Protocols represent a true breakthrough for the children of the world. Ratification of these Protocols will enhance the ability of the United States to provide global leadership in the effort to eliminate abuses against children with respect to armed conflict and sexual exploitation. I recommend that the Senate give early and favorable consideration to both Protocols and give its advice and consent to the ratification of both Protocols, subject to the understandings and declarations recommended in the Department of State Report. William J. Clinton. LETTER OF SUBMITTAL ---------- Department of State, Washington, July 13, 2000. The President, The White House. The President: I have the honor to submit to you, with the recommendation that they be transmitted to the Senate for advice and consent to ratification, two Optional Protocols to the Convention on the Rights of the Child adopted at New York November 20, 1989 (the ``Convention''): (1) the Optional Protocol to the Convention on the Rights of the Child on Involvement of Children in Armed Conflict (the ``Children in Armed Conflict Protocol''); and (2) the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography (the ``Sale of Children Protocol''). On July 5, you signed both Protocols. I have also enclosed, for the information of the Senate, article-by-article analyses of both Protocols. Though styled as Protocols to the Convention, both texts, by their terms, will operate an independent multilateral agreements under international law. Significantly, States can become parties to either or both Protocols without becoming a party to the Convention or being subject to its provisions. The United States seeks the widest possible acceptance of these two Protocols by the community of nations to make it clear that the Protocols speak forcefully for the protection of all children. It is essential that we work with all of our international partners to achieve our common objective: the elimination of abuses of the world's children. background On May 25, 2000, the United Nations General Assembly adopted both the Children in Armed Conflict Protocol and the Sale of Children Protocol. Adoption of these Protocols greatly strengthens international efforts to define and enforce norms to protect the most vulnerable children. These children desperately need the full attention of the United States and the world. (A) The Children in Armed Conflict Protocol The Children in Armed Conflict Protocol deals realistically and reasonably with the difficult issue of minimum ages for compulsory recruitment, voluntary recruitment, and participation in hostilities, while fully protecting the military recruitment and readiness requirements of the United States. The Protocol raises the age for military conscription to 18 years; international law had previously set this at only 15 years. The Protocol also calls for governments to set a minimum age for voluntary recruitment above the current international standard of 15 years and to report on measures to ensure that recruitment is truly voluntary. States must take ``all feasible measures'' to ensure that members of their armed forces who are not yet 18 do not take a ``direct'' part in hostilities. States that become party to the Protocol also agree to ``take all feasible measures to prevent'' the recruitment and use of persons younger than 18 in hostilities by non-governmental armed groups, including by adopting legal measures to prohibit and criminalize such practices. Another important provision of the Protocol is its promotion of international cooperation and assistance in the rehabilitation and social reintegration of children who have been victimized by armed conflict. No implementing legislation would be required with respect to U.S. ratification of the Children in Armed Conflict Protocol because current U.S. law meets the standards in the Protocol. The United States does not permit compulsory recruitment of any person under 18 for any type of military service. While inactive, the selective service system remains established in law and provides for involuntary induction at and after age 18. The United States also does not accept voluntary recruits below the age of 17 pursuant to 10 U.S.C. Sec. 505(a) (1994). Additionally, the United States will take ``all feasible measures'' to ensure that members of its armed forces do not take ``a direct part in hostilities'' without necessitating any change in U.S. law. U.S. law already prohibits insurgent activities by non-government actors against the United States, irrespective of age, under 18 U.S.C. Sec. 2381, et seq. The Department does recommend, however, that the Senate's advice and consent to ratification of the Children in Armed Conflict Protocol be subject to three understandings and a declaration, as follows. First, as noted above, the United States considers the Children in Armed Conflict Protocol to operate by its very terms as an independent international agreement. As such, by ratifying the Protocol, the United States understands that it would not become a party to the Convention or assume any rights or obligations under the Convention. The following understanding is recommended to accompany the U.S. instrument of ratification: The United States understands that the Protocol constitutes an independent multi-lateral treaty, and that the United States does not assume any obligations under the Convention on the Rights of the Child by becoming a party to the Protocol. Second, as detailed in the enclosed article-by-article analysis, the United States views the obligation in Article 1 to take all ``feasible measures'' to ensure that members of its armed forces who have not attained the age of 18 years do not take a ``direct part'' in hostilities as reflecting standards whose meanings are well grounded in international law and which the United States can meet while fully protecting its military recruitment and readiness requirements without harming its force readiness. The following understanding concerning the meaning of these standards is recommended to accompany the U.S. instrument of ratification: With respect to Article 1, the United States understands that the term ``feasible measures'' are those measures which are practical or practically possible taking into account all circumstances ruling at the time, including humanitarian and military considerations. The United States understands the phrase ``direct part in hostilities'' to mean immediate and actual action on the battlefield likely to cause harm to the enemy because there is a direct casual relationship between the activity engaged in and the harm done to the enemy. The phrase ``direct participation in hostilities'' does not mean indirect participation in hostilities, such as gathering and transmitting military information, transporting weapons, munitions and other supplies, or forward deployment. The United States further understands that any decision by any military commander, military personnel, or any other person responsible for planning, authorizing, or executing military action shall only be judged on the basis of that person's assessment of the information reasonably available to the person at the time the person planned, authorized, or executed the action under review, and shall not be judged on the basis of information that comes to light after the action under review was taken. Third, under Article 3(1), States Parties to the Children in Armed Conflict Protocol are required to raise the minimum age for voluntary recruitment into their national armed forces from that set out in Article 38(3) of the Convention. Article 38(3) of the Convention provides a minimum age of 15 years, which reflects the minimum age currently provided for in international humanitarian law. To make clear the nature of the obligation assumed under Article 3(1) of the Protocol, the following understanding is recommended to accompany the U.S. instrument of ratification: The United States understands that Article 3 obliges States Parties to raise the minimum age for voluntary recruitment into their national armed forces from the current international standard of 15. Fourth and finally, Article 3(2) requires each State Party to the Children in Armed Conflict Protocol to deposit a binding declaration upon ratification setting forth the minimum age at which it will permit voluntary recruitment into its national armed forces and a description of the safeguards it has adopted to ensure that such recruitment is not forced or coerced. In order to satisfy this requirement, the following understanding is recommended to accompany the U.S. instrument of ratification: Pursuant to Article 3(2) of the Protocol, the United States declares that the minimum age at which it will permit voluntary recruitment into its armed forces is 17. The United States has a number of safeguards in place to ensure that such recruitment is not forced or coerced, including a requirement in U.S. law, Title 10, United States Code, Section 505(a), that no person under 18 years of age may be originally enlisted without the written consent of his or her parent or guardian, if he or she has a parent or guardian entitled to his or her custody and control. Moreover, each person recruited into the military receives a comprehensive briefing and must sign an enlistment contract which, together, specify the duties involved in military service. All recruits must provide reliable proof of age before their entry into the military service. B. The Sale of Children Protocol The Sale of Children Protocol takes a vital step forward in our efforts to combat crimes of trafficking in children. Those who traffic in children prey on the most vulnerable children, who are most in need of legal and other protections. The Protocol is the first international instrument to define the terms ``sale of children,'' ``child pornography,'' and ``child prostitution.'' The Protocol requires these offenses to be treated as criminal acts, and provides law enforcement and cooperation tools to help guarantee that offenders will not go unpunished. Additionally, the Protocol establishes stronger, clearer grounds for jurisdiction and extradition, to better ensure that offenders can be prosecuted regardless of where they are found. Moreover, its extensive provisions on prevention and cooperation will help child victims receive protection and assistance. It was especially important for the United States that the Protocol contain effective and practical strategies to prosecute and penalize those who commit crimes involving child prostitution, child pornography and trafficking in children. The administration is committed to ensuring that no child is subjected to these crimes. It is recommended that the Senate's advice and consent to ratification of the Sale of Children Protocol be subject to five understandings and a declaration, as follows: First, as noted above, the United States considers the Sales of Children Protocol, by its very terms, to operate as an independent international agreement. As such, by ratifying the Protocol, the United States understands that it would not become a party to the Convention or assume any rights or obligations under the Convention. The following understanding is recommended to accompany the U.S. instrument of ratification: The United States understands that the Protocol constitutes an independent multilateral treaty, and that the United States does not assume any obligations under the Convention on the Rights of the Child by becoming a party to the Protocol. Second, Article 2(a) of the Protocol defines the term ``sale of children'' in general as ``any act or transaction whereby a child is transferred by any person or group of persons to another for remuneration or other consideration.'' To further clarify the meaning of the term ``sale of children,'' the following understanding is recommended to accompany the U.S. instrument of ratification: The United States understands that the definition of ``sale of children'' in Article 2(a) is intended to reach transactions in which remuneration or other consideration is given and received under circumstances in which a person who does not have a lawful right to custody of the child thereby obtains de facto authority to exercise control over the child. Third, Article 2(c) defines child pornography as ``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, the dominant characteristic of which is depiction for a sexual purpose.'' To clarify the meaning of the term further, the following understanding is recommended to accompany the U.S. instrument of ratification: The United States understands the definition of child pornography in Article 2(c) to mean the visual representation of a child, engaged in real or simulated sexual activities, or of the genitalia of a child where the dominant characteristic is depiction for a sexual purpose.'' Fourth, Article 3(1)(a)(i) requires States Parties to ensure that, in the context of sale of children, the offering, delivering, or accepting of a child for the purpose of ``transfer of organs of the child for profit'' is fully covered under its criminal law. To clarify the scope of the obligation to criminalize the transfer of organs in Article 3, the following understanding is recommended to accompany the U.S. instrument of ratification: With respect to Article 3(1)(a)(i), the United States understands that the ``transfer of organs for profit'' in the context of the sale of a child is not intended to reach situations in which a child donates an organ pursuant to lawful consent, which could never arise in the context of such a sale. Moreover, the United States understands that ``profit'' does not extend to the lawful payment of reasonable payments associated with such transfer, for example for expenses of travel, housing, lost wages, and medical costs arising therefrom. Fifth, Article 3(1)(a)(ii) requires States Parties to ensure that, in the context of sale of children, ``improperly inducing consent, as an intermediary for adoption in violation of applicable international legal instruments on adoption'' is fully covered under its criminal law. In order to clarify the nature of United States obligations under Article 3(1)(a)(ii), the following understanding is recommended to accompany the U.S. instrument of ratification: The United States understands the reference to ``applicable international legal instruments'' in Article 3(1)(a)(ii) of the Protocol to mean the Convention on Protection of Children and Co-operation in respect of Intercountry Adoption (the ``Hague Convention''). Since the United States is not currently a party to the Hague Convention, it understands that it is not obligated to criminalize conduct prohibited therein. The United States further understands the term ``improperly inducing consent'' in Article 3(1)(a)(ii) to mean knowingly and willfully inducing consent by offering or giving compensation for the relinquishment of parental rights. Sixth, and finally, Article 4(1) obligates every State Party to take ``such measures as may be necessary'' to establish jurisdiction over the offenses referred to in Article 3(1), when the offenses are committed in its territory or on board a ship or aircraft registered in that State. U.S. law provides a broad range of bases on which to exercise jurisdiction over offenses covered by the Protocol that are committed ``on board a ship or aircraft registered in'' the United States [emphasis added]. U.S. jurisdiction in such cases is not uniformly stated for all crimes covered by the Protocol, nor is it always couched in terms of ``registration'' in the United States. Therefore, the reach of U.S. jurisdiction may not be co-extensive with the obligation stipulated by this article. The following declaration is recommended to accompany the U.S. instrument of ratification: Subject to the declaration that, to the extent that the domestic law of the United States does not provide for jurisdiction over an offense referred to in Article 3(1) of the Protocol when the offense is committed on board a ship or aircraft registered in the United States, the obligation of the United States with respect to jurisdiction over that offense shall be suspended. The suspension shall terminate when the United States informs the Secretary-General of the United Nations that its domestic law is in full conformity with the requirements of Article 4(1) of the Protocol. conclusion The Children in Armed Conflict and Sale of Children Protocols constitute historic advances in efforts to strengthen and enforce norms to protect millions of vulnerable children, who desperately need the world's full attention. Subject to the recommended understandings and declarations described above, both Protocols are consistent with U.S. law. Ratification by the United States will reaffirm the tradition of U.S. leadership in efforts to improve the protection of children. The Department of Defense for the Children in Armed Conflict Protocol, and the Department of Justice for the Sale of Children Protocol join me in favoring ratification of these Protocols, subject to the conditions previously described. Respectfully submitted, Alan Larson. Enclosures: As stated.