27 Optional Protocols 1 and 2 to the Convention on the Rights of the Child and other international standards relating to children

Varalaxmi Moganty

epgp books

 

Table of Contents

  1. Learning Outcomes
  2. Introduction
  3. Optional Protocols to the UN Convention on the Rights of the Child
  4. Global status of child rights
  5. Summary

1. Learning outcomes:

  • This chapter helps one to know about the three Optional Protocols to the Convention on the Rights of the child. The provisions in these protocols are in fact extended and reaffirming provisions offered by the UN Convention for the protection of children from involvement in Armed Conflicts, child prostitution; sale of children and Child pornography.
  • This chapter sensitizes one with the issues discussed and to introspect on the social responsibility to address the child issues.

2. Introduction

The UN General Assembly adopted the Convention and opened it for signature on 20 November 1989 (the 30th anniversary of its Declaration of the Rights of the Child). It came into force on 2 September 1990, after it was ratified by the required number of nations. Currently, 196 countries are party to it, including every member of the United Nations except the United States. Two optional protocols were adopted on 25 May 2000. The First Optional Protocol restricts the involvement of children in military conflicts, and the Second Optional Protocol prohibits the sale of children, child prostitution and child pornography. Both protocols have been ratified by more than 160 states. A third optional protocol relating to communication of complaints was adopted in December 2011 and opened for signature on 28 February 2012. It came into effect on 14 April.

The first, the Optional Protocol on the Involvement of Children in Armed Conflict requires parties to ensure that children under the age of 18 are not recruited compulsorily into their armed forces, and calls on governments to do everything feasible to ensure that members of their armed forces who are under 18 years do not take part in hostilities. This protocol entered into force on 12 July 2002. As of 12 August 2017, 162 states are parties to the protocol and another 14 states have signed but not ratified it.

The second, the Optional Protocol to the Convention on the Sale of Children, Child Prostitution and Child Pornography, requires parties to prohibit the sale of children, child prostitution and child pornography. It entered into force on 18 January 2002. As of 12 August 2017, 171 states are party to the protocol and another nine states have signed but not ratified it.

The third, the Optional Protocol to the Convention on the Rights of the Child on a Communications Procedure is that which would allow children or their representatives to file individual complaints about violation of the rights of children. It was adopted in December 2011 and opened for signature on 28 February 2012. The protocol currently has 50 signatures and 25 ratifications: it entered into force on 14 April 2014 following the tenth ratification three months beforehand.

25 May 2010 was the 10th anniversary of the adoption of the two Optional Protocols to the Convention on the Rights of the Child: On this date, UNICEF joined forces with the Special Representative of the Secretary-General for Children and Armed Conflict, the Special Representative of the Secretary-General on Violence against Children, the Office of the High Commissioner for Human Rights, the Committee on the Rights of the Child, and the Special Rapporteur on the Sale of Children, Child Prostitution and Child Pornography to commemorate this important date and launch a global advocacy campaign promoting the universal ratification for non-States Parties and effective implementation for States Parties of the Optional Protocols. The campaign was launched by the United Nations Secretary-General at UNICEF in New York.

Intervention through 3 Optional Protocols to CRC

 

3. Optional Protocols to the Convention on the Rights of the Child

3.1. Optional Protocol to the Convention on the Rights of The Child on the Involvement of Children in Armed Conflict, 25th May 2000:

Optional Protocol to The Convention On The Rights Of The Child On The Involvement Of Children In Armed Conflict, 25th May 2000 came into force on 12 February 2002. UN Convention on the Rights of the Child, 1989, (CRC) demonstrated its widespread commitment that exists to strive for the promotion and protection of the rights of the child. It wanted to reaffirm the rights of children through special protection. CRC sensed that the improvement of the situation of children without distinction, as well as for their development and education in conditions of peace and security, widespread impact of armed conflict on children and the long-term consequences this has for durable peace, security and development. Especially the targeting of children in situations of armed conflict and direct attacks on objects protected under international law, schools and hospitals, CRC thought of special protocol. CRC thought that definition of child is not specific:

“There is a need to increase the protection of children from involvement in armed conflict, Noting that Article 1 of the Convention on the Rights of the Child specifies that, for the purposes of that Convention, a child means every human being below the age of 18 years unless, under the law applicable to the child, majority is attained earlier”

CRC also took this due to the following recommendations in this context from the following bodies and institutions. These are:

  1. Adoption of Statute of the International Criminal Court and, in particular, and its inclusion as a war crime of conscripting or enlisting children under the age of 15 years or using them to participate actively in hostilities in both international and non-international armed conflicts.
  2. The twenty-sixth International Conference of the Red Cross and Red Crescent in December 1995 recommended, inter alia, that parties to conflict take every feasible step to ensure that children under the age of 18 years do not take part in hostilities.
  3. International Labour Organization(June 1999) Convention No. 182 on the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour prohibits, inter alia, forced or compulsory recruitment of children for use in armed conflict.
  4. The twenty-sixth International Conference of the Red Cross and Red Crescent in December 1995 recommended, inter alia, that parties to conflict take every feasible step to ensure that children under the age of 18 years do not take part in hostilities.

CRC was thus convinced of the need to strengthen international cooperation in the implementation of this Protocol for the physical and psychosocial rehabilitation and social reintegration of children who are victims of armed conflict.

 

The Optional Protocol to Convention on the rights of the child on the involvement of children in conflict has 13 Articles to provide for this. Article 1 insists that State Parties shall take all feasible measures to ensure that members of their armed forces who have not attained the age of 18 years do not take a direct part in hostilities. Article 2 held that States Parties should ensure that persons who have not attained the age of 18 years are not compulsorily recruited into their armed forces. Article 3 states that state parties shall raise the minimum age as per the Article 38 of CRC that set for the voluntary recruitment of persons into armed forces. It also insists certain safeguards for such recruitment. These are:

  • Such recruitment is genuinely voluntary;
  • Such recruitment is done with the informed consent of the person’s parents or legal guardians;
  • Such persons are fully informed of the duties involved in such military service and
  • Such persons provide reliable proof of age prior to acceptance into national military service

Article 4 deals with that aspect that armed groups that are distinct from the armed forces of a State should not, under any circumstances, recruit or use in hostilities, persons under the age of 18 years. Article 6 insists that Each State Party shall take all necessary legal, administrative and other measures to ensure the effective implementation and enforcement of the provisions of this Protocol within its jurisdiction. State Parties undertake to make the principles and provisions of the present Protocol widely known and promoted by appropriate means, to adults and children alike. State Parties shall take all feasible measures to ensure that persons within their jurisdiction recruited or used in hostilities contrary to this Protocol are demobilized or otherwise released from service. State Parties shall, when necessary, accord to these persons all appropriate assistance for their physical and psychological recovery and their social reintegration. Article 7 provides for rehabilitation and reintegration and cooperation of state parties for implementation of the protocol. It also provides for assistance for such in consultation with the relevant International organization. Article 8 obligates the state parties to submit a report within two years of the entry as a state party to the protocol. Article 9 provides for an open signature to the protocol by any nations. Article 10 deals with the entry of a state into force a three months after the deposit of the tenth instrument of ratification. Article 12 invites proposals for an amendment and to file it with Secretary- General of the United Nations.

Article 12 provides for transmission of certified copies to all states that have signed the Convention.

3.2. Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child prostitution and Child Pornography, 25th May 2000:

UN Convention on the Rights of the Child, 1989(we can call this UNCRC or CRC hereafter) claimed to further the impact of the relevant articles of a convention such as Articles 1, 11, 21, 32,33,34,35 and 36 and to guarantee the protection of the child from the sale of children. Convention wanted to take measures against such practices like child prostitution, sex tourism, children vulnerability; and a greater risk to girl children due to such practice and growing availability of child pornography.

Isn’t it alarming to see these children in such a vulnerable state?

The UN enforced this protocol to obligate the state parties to guarantee these rights to children. UN convention was initiated and encouraged by following International legal instruments and other conventions to enforce this optional protocol 2000.

  1. Hague Convention on Protection of Children and cooperation in respect of Intercountry Adoption
  2. Hague Convention on the Civil Aspects of International Child Abduction
  3. The Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures
  4. International Labour Organization Convention No.182 on prohibition and Immediate action for the elimination of Worst Forms of Child Labour and
  5. Agenda for Action by World Congress Committee against Sexual Exploitation of Children, 1996

Furthermore, taking into consideration of cultural values of each people for protection and harmonious development of the Child UN CRC evolved this protocol.

Article 1 of the convention insists the state parties to the convention prohibit the sale of children, child prostitution, and child pornography. As per Article 2 of the Optional Protocol, the State parties shall prohibit the sale of children or any act of transaction of a child by any person or group of persons for the sake of remuneration. Child prostitution means the use of a child in sexual activities for remuneration. Article 3 obligates the state parties to take legal measure through its criminal law or penal law for such offences for sale of children; sexual exploitation of the child; engagement of forced labour; adoption of a child in violation applicable in the International legal instrument. The UN optional protocol insists state parties to take penal measures against offences such as offering, obtaining, procuring or providing a child for prostitution. It also insists penal measures for producing, distributing, disseminating, importing, exploring, offering, selling or possessing child pornography (representation of child engaged in a real or simulated explicit sexual activities or any representation of the sexual parts of a child for primarily sexual purposes as described in Article 2 of the present protocol). Article 4 insists to establish jurisdiction required to take the penal measure. Article 6 provides for the greatest measure of assistance for criminal extradition proceedings between state parties. Article 7 insists state parties take measures based on their national law seizure and confiscation of goods, materials that facilitate their offences and also for the closure of the premises use to make such offences. Article 8 insists on state parties to take measures to protect the rights like protecting their privacy and identity, and victims of the practices prohibited under the protocol. This Article 8 also looks for appropriate legal and psychological training of persons working with victims of offences prohibited. Article 9 insists state parties to implement and disseminate measures to prevent offences. Article 10 provides for international cooperation, Article 12 for submission of the report to the Committee on Child rights within two years after the entry of present protocol into force for the state party. Article 13 for open entry to the protocol and Article 16 invites proposals for an amendment and files it with Secretary-General of the United Nations.

 

This article is very important as it deals with the rights and best interests of children who have been victim to any of the crimes covered in the OPSC. This article provides for cautions to deal with child victims throughout the legal/justice process.

  • Making sure legal procedures are sensitive to the special needs of the child victims and that the procedures take into account how scary instance, authorities should make rooms available that are nice and friendly for children to tell their story.
  • An audio or video recording of the child victim’s story could be made, so the child doesn’t have to repeat the story many times or tell it when the criminal is in the same room.
  • Making sure child victims know about their rights and that they are aware of everything that is happening with their own case.
  • Making sure the child victim’s voice and concerns are heard and considered during the procedure.
  • Giving the child victim support throughout the legal process.
  • Making sure the privacy and identity of the child victim is protected (for instance, to ensure the child’s name and the picture does not appear in newspapers or on TV).
  • Protecting child victims, their family and other witnesses and keeping them safe from people who may try to scare them or hurt them for telling their story.
  • Making sure the procedures do not take too long.
  • Guaranteeing the safety of the people and organizations that help prevent the crimes, protect children and support the child victims on their way towards recovery and healing.
  • Ensuring that training is offered to people who work with child victims Ensuring that training is offered to people who work with child victims (such as police officer, lawyers, social worker, judges and more

3.3. Optional Protocol to the Convention on the Rights of the Child on a communications procedure, 19 December 2011:

Optional Protocol to the Convention on the Rights of the Child on a communications procedure, 19 December 2011 came into force on 14 April 2014. This protocol is a reaffirmation of rights mentioned in the UN Convention on the rights of the child, 1989. The CRC is convinced with that all the state parties recognize the rights mentioned in the CRC without discrimination of any kind, irrespective of the child’s or his or her parent’s or legal guardian’s race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status. This protocol also came to reaffirm the universality of human rights; recognizes the child’s right to dignity. Most importantly the present protocol CRC through its protocol aims to reinforce and complement national and regional mechanisms allowing children to submit complaints about violations of their rights. CRC also aims to reinforce the role of national human rights institutions and national mechanisms to implement the Convention and Optional Protocol on the sale of children, child prostitution and child pornography and on the involvement of children in armed conflict and to enable the Committee on the Rights of the Child.

This protocol is divided into three parts. Part I deals with the general provisions. It recognizes the competence of Committee provided by the protocol, and it insists that identity of any individual or group should not be revealed. Part II deals with communication procedure. Article 5 provides for individual communications on behalf of an individual or group of individuals claiming to be victims of a violation by that state party. Article 6 insists state take interim measures to avoid possible irreparable damage to victims. At the same time, Article 7 states that some communications which are anonymous; which is not in writing, wherein all available domestic remedies have not been exhausted and where such communication is ill-found and as such are admissible. Through provisions of Article 11, the Committee may invite the State Party to submit further information about any measure taken in response to the views of the Committee.

The Part II of the Protocol deals with the inquiry procedure. Accordingly, through Article 13 in case of receipt of reliable information on the sale of children, child prostitution and child pornography CRC will invite the State party and requests to cooperate in the examination of the information. As per Article 14 of the protocol after the end of six months of the procedure, the Committee may ask to inform the committee of the measures taken in response to the inquiry. Article 14 provides for submission of the report by Committee to the General Assembly. Article 18 provides for open entry by any Nation to the Protocol. Article 20 deals with the violations occurred after the entry into force. It states: “..the obligation of the State vis-à-vis the Committee shall relate only to violations the rights set forth in the Convention or the first two Optional protocols …” Article 21 invites proposed amendments to the present protocol from the state parties and to submit to the General Assembly.

4. Global status of Children affected due Armed Conflicts and Sexual Offences:

In the Convention on the Rights of the Child, Articles 34 and 39, Member States have undertaken to both – protect children from all forms of sexual exploitation, including the exploitative use of children in pornographic materials, and to promote their physical and psychological recovery and social reintegration. There is a worldwide gap between the declaration expressed in these Articles and reality.

Sexual Offences against Children:

  • Worldwide, more than two million children work in the sex industry. The physical and emotional damage to these children is huge. Girls are often still virgins when they meet their first customer. Within a few months, many are infected with the HIV. The increase in the number of (child) sex tourists continues to compound the problem
  • An estimated 1.2 million children are trafficked each year
  • Most of them (girls and boys) are trafficked for sexual exploitation
  • As many as 2 million children are sexually exploited around the world annually
  • The trafficking industry generates 12 billion dollars annually (ILO)
  • The largest number of children and women trafficked worldwide are in or from Asia. (Under) estimations range from 250,000 to 400,000 (30% of the global estimated number)
  • All countries are affected – domestic/cross-border/overseas trafficking and originating, transiting or receiving countries

Offences against children in Armed Conflicts:

  • In 2014, hundreds of children had been kidnapped from their schools or on their way to school. Tens of thousands have been recruited or used by armed forces and groups. Attacks on education and health facilities and use of schools for military purposes have increased in many places.
  • In the Central African Republic, 2.3 million children are affected by the conflict, up to 10,000 children are believed to have been recruited by armed groups over the last year, and more than 430 children have been killed and maimed – three times as many as in 2013
  • In Gaza, 54,000 children were left homeless as a result of the 50-day conflict during the summer that also saw 538 children killed, and more than 3,370 injured.
  • In Syria, with more than 7.3 million children affected by the conflict including 1.7 million child refugees, the United Nations verified at least 35 attacks on schools in the first nine months of the year, which killed 105 children and injured nearly 300 others. In Iraq, where an estimated 2.7 million children are affected by conflict, at least 700 children are believed to have been maimed, killed or even executed this year. In both countries, children have been victims of, witnesses to and even perpetrators of increasingly brutal and extreme violence.
  • In South Sudan, an estimated 235,000 children under five are suffering from severe acute malnutrition. Almost 750,000 children have been displaced, and more than 320,000 are living as refugees. According to UN verified data, more than 600 children have been killed, and over 200 maimed this year, and around 12,000 children are now being used by armed forces and groups.
  • “This has been a devastating year for millions of children,” said Anthony Lake, UNICEF Executive Director. “Children have been killed while studying in the classroom and while sleeping in their beds; they have been orphaned, kidnapped, tortured, recruited, raped and even sold as slaves. Never in recent memory have so many children been subjected to such unspeakable brutality.

5. Summary:

Human rights deprived for children are human wrongs; a child undergoes prostitution is not offence it is an offence of the society to children, and a child is a victim of human wrongs. It is not only a dishonour to the family it is a national crime and a national shame and global shame to be insensitive to such heinous offences. These are not crimes against children but crimes committed to children. The issues discussed on children on armed conflict, Child prostitution, the sale of children and children used in pornography are in fact related to the issues related to many social and economic factors. Education, parental literacy, economic and social status; social attitudes, the role of media – all play a significant role in the development and protection of children.

It is worth mentioning here the role of UN Convention on the Rights of the Child, 1989 through its elaborative measures and other steps taken through optional protocols. When we look at the impact of the convention, we find many countries have used the convention to strengthen their national legislation and adopted new policies to improve the lives of children. Although the convention is only a contributing factor, children are better off now in many ways than 25 years ago. Greater attention to children’s right to health has meant that those born today are more than twice more likely to reach their fifth birthday than a child born 25 years ago. The obligation of countries to provide free primary education has meant that children are much more likely to attend school. In 1990, only 53 percent of children in the least developed countries were enrolled in school; today it’s 81 percent.

With greater restrictions placed on employing children, child labour rates have dropped. In the 1990s, nearly 1 in 4 children under 15 were working; today it is fewer than 1 in 8. Girls are one-third less likely to be subject to female genital mutilation than a generation ago. Now 42 countries prohibit all forms of corporal punishment against children, compared with only 4 in 1989, when the convention was adopted.

The Optional Protocols should be ratified by the maximum number of Member States to strengthen their acceptance as a normative standard and enhance the protective environment for children.

To raise understanding among children and young people on the optional protocols, child-friendly versions of the Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography (OPSC) and the third Optional Protocol on the Communication Procedure to CRC (OPCP)—which entered into force in 2014—have been published by the Office of the Special Representative of the UN Secretary-General on Violence against Children (OSRSG-VAC)

Social Action as against social tolerance is the need of the hour: Najat Maalla M’jid, the Special Rapporteur on the sale of children, child prostitution and child pornography, as she presented her final report to the 25th session of the Human Rights Council held in 2014:

“Social tolerance and impunity, persistent demand and the lucrative aspect of this trade for global criminal networks are only some of the factors that make children increasingly vulnerable.” She added: “The ongoing development of new technologies has made access to children in all parts of the world easier and increased exploitation. The availability of child pornography online is growing. “Child victims of online sexual exploitation are younger and younger, and the images are more and more horrific.”

Caution in using Internet Technology: ECPAT International (2009) opines that this technology is of course by itself morally neutral – has also facilitated the creation of criminal communities that transcend all of the same traditional limitations to community building. The result is the proliferation of criminal communities of unprecedented scope, size and durability. The troubling implications for those vulnerable to victimization are obvious.

How are we to respond to this new challenge? Since mental health professionals may have more opportunities for interaction with at-risk youth, we suggest that mental health organizations, with youth input, work to develop prevention materials that can be used by practitioners with such populations, individually or in small groups – contends.

Adequate Support and Therapy:

The UN Convention on the Rights of the Child states that every child that has been sexually exploited or abused has the right to physical and psychological recovery. This is not the case in any country at present. It is important to have therapeutic support, but only after the child feels safe and has a home to go to; otherwise not even the best therapy in the world will work. That is the first recommended action that all children have a safe place to go to. When safety is ensured, therapy can work. The second recommended action is to start research programmes to gain knowledge and clinical experiences to develop better methods of treatment for the victimized children. The third step we recommend is to develop national training programmes for professionals who might get in contact with the victimized children. All countries have to work from their capacity and resources based on the status of knowledge today and what is possible.

And further, children taking the lead is the ultimate step; they can form committees and disseminate children of their rights and measures from law and help of society. For, children feel more comfortable with children than with adults to share their views and problems.

you can view video on Optional Protocols 1 and 2 to the Convention on the Rights of the Child and other international standards relating to children

Reference

  1. Raising Understanding OPSC at http://srsg.violenceagainstchildren.org/sites/default/files/children_corner/RaisingUnderstanding_OP SC.pdf on 24/8/2016
  2. UN Treaty Collection: https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-11-c&chapter=4&lang=en
  3. UN Human Rights Office of High Commissioner, The first, the Optional Protocol on the Involvement of Children in Armed Conflict from UNICEF: http://www.ohchr.org/Documents/ProfessionalInterest/crc-conflict.pdf
  4. Optional Protocol to the convention on the Sale of Children, Child Prostitution and Child Pornography: http://www.ohchr.org/Documents/ProfessionalInterest/crc-sale.pdf on
  5. ECPAT International(September, 2009), Compendium of Articles : Research Findings on Child Abuse Images and Sexual Exploitation of Children, From Preface to the book available at http://www.ecpat.org/wp-content/uploads/legacy/ecpat_journal_sept_2009_full_0.pdf