Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution
and child pornography
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Adopted and opened for signature, ratification and accession by General Assembly resolution A/RES/54/263
of 25 May 2000
entered into force on 18 January 2002
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 commited 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.
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