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Newly Adopted Protocols to the Convention on the Rights of the Child

Published online by Cambridge University Press:  27 February 2017

Michael J. Dennis
Michael J. Dennis*
Affiliation:
U.S. Department of State
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Extract

On May 25,2000, the United Nations General Assembly adopted by consensus two Protocols to the Convention on the Rights of the Child: the Protocol on the Involvement of Children in Armed Conflict (Children in Armed Conflict Protocol) and the Protocol on the Sale of Children, Child Pornography and Child Prostitution (Sale of Children Protocol).1 These instruments represent major advances in the international effort to strengthen and enforce norms for the protection of the most vulnerable children, who desperately need the world's attention. The Children in Armed Conflict Protocol deals realistically and reasonably with the difficult issues of minimum ages for compulsory recruitment, voluntary recruitment, and participation in hostilities. The Protocol raises the age for military conscription to eighteen from fifteen years, as stipulated under existing international law; obliges states parties to raise the minimum age for voluntary recruitment to an age above the current fifteen-year international standard; and requires states parties to take all feasible measures to ensure that personnel in their national armed forces who are not yet eighteen do not take a direct part in hostilities.

Type
Current Developments
Information
American Journal of International Law , Volume 94 , Issue 4 , October 2000 , pp. 789 - 796
Copyright
Copyright © American Society of International Law 2000

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References

1 Protocol on the Involvement of Children in Armed Conflict, Protocol on the Sale of Children, Child Pornography and Child Prostitution, GA Res. 54/263, Annexes I, II, respectively (May 25, 2000), S. Treaty Doc. No. 106–37 (2000); see also Sean D., Murphy, Contemporary Practice of the United States, 94 AJIL 677 (2000)Google Scholar.

2 Children in Armed Conflict Protocol, supra note 1, Arts. 1–3.

3 Id., Art. 4.

4 Sale of Children Protocol, supra note 1, Art. 2.

5 Id., Arts. 3, 6.

6 Id., Arts. 4–5.

7 Children in Armed Conflict Protocol, supra note 1, Art. 7; Sale of Children Protocol, supra note 1, Art. 10.

8 Children in Armed Conflict Protocol, supra note 1, Art. 9(2); Sale of Children Protocol, supra note 1, Art. 13(2). The Convention on the Rights of the Child, Nov. 20, 1989, 1577 UNTS 3, 28 ILM 1448, 1468 (1989), with 191 states parties, is the most widely ratified human rights instrument. Only the United States and Somalia are not parties to the Convention. See The Convention on the Rights of the Child <http://www.unicef.org/crc/convention.htm> (visited Oct. 19, 2000).

9 Convention Concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour (No. 182),June 17, 1999, 38 ILM 1215 (1999); see also Michael J., Dennis, The ILO Convention on the Worst Forms of Child Labor, 93 AJIL 943 (1999)Google Scholar. The Protocols also expand the protections provided in Articles 25(d), 32, 34, and 38 of the Convention on the Rights of the Child, supra note 8.

10 See Working Group on Involvement of Children in Armed Conflict, Report on Its Sixth Session, UN Doc. E/CN.4/2000/74, paras. 23–32, 57–63, 101–09 [hereinafter Sixth Session Report].

11 Sec Working Group on Involvement of Children in Armed Conflict, Report on Its Second Session, UN Doc. E/CN.4/1996/102, para. 22 [hereinafter Second Session Report]; Wendy Lubetkin, U.S. Believes Agreement Within Reach on Child Soldiers Protocol, Washington File (Jan. 11, 2000) <http://www.usia.gov.admin.009/aef206.htm>.

12 See Statements by the United Kingdom (Derek Walton) and the United States (Ambassador E. Michael Southwick) (Jan. 13, 2000) (on file with author).

13 Both Article 38(3) of the Convention on the Rights of the Child, supra note 8, and Article 77(2) of the Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, opened for signature Dec. 12, 1977, 1125 UNTS 3 [hereinafter Geneva Protocol I], prohibit recruitment below the age of 15. Article 8(2) (b) (xxvi) (international conflicts) and Article 8(2) (e) (vii) (noninternational conflicts) of the Rome Statute of the International Criminal Court, July 17, 1998, UN Doc. A/CONF.183/9*, reprinted in 37 ILM 999 (1998), define war crimes as including “[c]onscripting or enlisting children under the age of fifteen years . . . or using them to participate actively in hostilities.” For the U.S. proposal, see UN Doc. E/CN.4/2000/WG.13/2/Add.1, at 3, 8.

14 Article 3(5) also provides that military schools are exempt from the requirements of this provision, regardless of whether individuals attending that facility are members of the armed forces.

15 See 10 U.S.C. §505(a) (1994); Lynch, Colum, President Signs U.N. Pacts for Children, Wash. Post, July 6, 2000, at A15 Google Scholar.

16 See Working Group on Involvement of Children in Armed Conflict, Report on Its Fourth Session, UN Doc. E/CN.4/1998/102, para. 65; Sixth Session Report, supra note 10, paras. 57–59.

17 See Working Group on Involvement of Children in Armed Conflict, Report on Its First Session, UN Doc. E/CN.4/1995/96, paras. 20–21; Second Session Report, supra note 11, paras. 27, 30, 45.

18 This definition is used in Article 3(10) of the Protocol to the 1980 Conventional Weapons Convention Concerning the Use of Mines, Booby-Traps and Other Devices [Protocol II], Oct. 10, 1980, amended May 3, 1996, 35 ILM 1206 (1996). A number of states (e.g., Canada, Germany, Ireland, Italy, the Netherlands, Spain, and the United Kingdom) also included such a definition of “feasible” in understandings that accompanied their instruments of ratification to Geneva Protocol I.

19 See International Committee of the Red Cross [ICRC], Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 at 516 (Yves Sandoz, Christophe Swinarski, & Bruno Zimmermann eds., 1987) [hereinafter Commentary]; ICRC, Statement on the Draft Convention on the Rights of the Child, UN Doc. E/CN.4/1987/WG.1/WP.4, at 2 (“[I]t can reasonably be inferred from the present Article 20 of the Draft Convention [ultimately Article 38] that indirect participation, for example gathering and transmitting military information, transporting weapons, munitions and other supplies is not affected by the provision.”).

20 See, e.g., Sixth Session Report, supra note 10, paras. 106, 116, 121–22, 135, 143, 148 (statements by the ICRC, Italy, Belgium, Ethiopia, the Russian Federation, and Portugal). Indeed, in the negotiations with respect to Article 77(2) of Protocol I and Article 38(2) of the Convention on the Rights of the Child, various delegations, as well as the ICRC, similarly attempted to replace “all feasible measures” with “necessary” or a variant thereof and to remove the reference to “direct” with respect to the age-15 standard utilized therein. See, e.g., Commentary, supra note 19, at 900–02; Report of the Working Group on a Draft Convention on the Rights of the Child, UN Doc. E/CN.4/1988/28, paras. 72–74; id., UN Doc. E/CN.4/1989/48, paras. 600–16.

21 Statement on the Geneva Protocol on Child Soldiers, 35 Weekly Comp. Pres. Doc. 130 (Jan. 24, 2000).

22 See Lynch, supra note 15.

23 Sixth Session Report, supra note 10, para. 131. Additionally, the President proposed the following understanding in transmitting the Protocol to the Senate for advice and consent to 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 causal 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.

S. Treaty Doc. No. 106–37, supra note 1, at VII.

24 See Working Group on Involvement of Children in Armed Conflict, Report on Its Third Session, UN Doc. E/CN.4/1997/76, para. 45 [hereinafter Third Session Report].

25 See, e.g., Second Session Report, supra note 11, paras. 31–32, 118–24.

26 Children in Armed Conflict Protocol, supra note 1, Art. 4(2). Article 4(1) also provides that armed groups distinct from the armed forces of a state “should” not recruit or use persons under the age of 18 in hostilities.

27 See Third Session Report, supra note 24, paras. 36–37, 51–53; Sixth Session Report, supra note 10, paras. 35–40. In conformity with Article 4(2) of the Protocol, U.S. law precludes insurgent activities by nongovernmental actors against the United States, irrespective of age. 18 U.S.C. §§2381–83 (1994).

28 See, e.g., Working Group on the Sale of Children, Child Prostitution and Child Pornography [hereinafter Sale of Children Working Group], Report on Its Fifth Session, UN Doc. E/CN.4/1999/74, paras. 29–44.

29 Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption, May 29, 1993, S. Treaty Doc. No. 105–51 (1998); see Contemporary Practice of the United States, 92 AJIL 734, 735 (1998).

30 See Sale of Children Working Group, Report on Its Sixth Session, UN Doc. E/CN.4/2000/75, paras. 46–47 [hereinafter Sale of Children Sixth Report]. The President proposed a substantially identical understanding in transmitting the Protocol to the Senate for advice and consent to ratification. S. Treaty Doc. No. 106–37, supra note 1.at IX.

31 See 146 Cong. Rec. S8934 (daily ed. Sept. 21, 2000).

32 See id.; id. at H7690–95 (daily ed. Sept. 18, 2000); Intercountry Adoption Convention Implementation Act of 1999, S. 682, 106th Cong. §404; Intercountry Adoption Act of 2000, H.R. 2909, 106th Cong. §404.

33 See, for example, Muntarbhorn, Vitit, Extraterritorial Criminal Laws Against Child Sexual Exploitation 23 (UNICEF 1998)Google Scholar:

Ireland protects those under 17. Australia, Belgium, the Nedrerlands, New Zealand, Switzerland, and the United Kingdom accord protection to those under 16. The Nordic countries, such as Denmark and Sweden, and France opt for 15 as the age under which the child is protected. Austria and Germany protect those under 14 . . . .

See also the statement of Denmark, Comments on the Guidelines for a Possible Draft Optional Protocol, UN Doc. E/CN.4/1996/WG.14/2/Add.2, at 2:

Although children in Denmark generally attain majority at the age of 18, it should be noted that the age of consent in sexual matters is 15. Consequently the word “child” in the Danish provision on child pornography (sect. 235 of the Danish Criminal Code) only includes persons under the age of 15.

. . . If the depicted child is 15 years or older and has consented to the act, no sexual crime has been committed.

34 See, e.g., Sale of Children Working Group, Report on Its Fourth Session, UN Doc. E/CN.4/1998/103, paras. 42–43, annex at 22. Article 34 of the Convention on the Rights of the Child, supra note 8, requires only that states take “appropriate” measures to prevent “the exploitative use of children in prostitution or other unlawful sexual practices” (emphasis added).

35 Sale of Children Protocol, supra note 1, Art. 2. U.S. law is consistent with the requirements of the Protocol. Child prostitution is not legal anywhere in the United States. See 18 U.S.C. §§2421–24 (1994) (Mann Act). With respect to the definition of pornography, a number of delegations, including those of the United States, the European Union, and Japan, stated their understanding that the term “any representation” meant “visual representation.” Delegations, including the U.S. delegation, also stated the understanding that the term “sexual parts” meant “genitalia.” Sale of Children Sixth Report, supra note 30, paras. 23–26. The President proposed a substantially identical understanding in transmitting the Protocol to the Senate for advice and consent to ratification. S. Treaty Doc. No. 106–37, supra note 1, at IX. With this understanding, U.S. law is also consistent with the obligations of the Protocol with respect to child pornography. See 18 U.S.C. §§2251–52(A), 2260 (1994).

36 UN Office of Legal Affairs, Substance of the Opinion (Jan. 18, 2000) (on file with author).

37 Id.; see also Sixth Session Report, supra note 10, para. 82. On November 1, 1968, the United States acceded to the Protocol Relating to the Status of Refugees, Jan. 31, 1967, 19 UST 6223, 606 UNTS 267, notwithstanding that it was not, and did not at the same time become, party to the Convention.

38 See Sale of Children Sixth Report, supra note 30, paras. 32–34, 53, 60.

39 Id., paras. 38, 42, 55–59.

40 Id., paras. 61–62.

41 The President proposed the following common understanding in transmitting the Protocols to the Senate for advice and consent to 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.” S. Treaty Doc. No. 106–37, supra note 1, at 30, 45.

42 See Schwartz, Eric, Senior Director of the National Security Council for Multilateral and Humanitarian Affairs, Press Briefing (July 5, 2000)Google Scholar (stating the administration’s position on the Convention on the Rights of the Child), obtainable from <http://www.pub.whitehouse.gov>. Schwartz stated that the administration had not submitted that treaty to the Senate for advice and consent, since many senators had expressed strong concerns that the Convention would infringe on U.S. sovereignty, rights of parents, and state and local law. Additionally, the administration has stated that it would need to treat with care the Convention’s potential impact on U.S. law and practice, especially as many of the rights covered by the Convention are matters of state and local law.

43 The United States was the third country to ratify the Convention (Dec. 2, 1999). For ratifications as of Oct. 1, 2000, see <http://ilolex.ilo.ch:1567/public/english/50normes/infleg/iloeng/index.htm>.

44 S. Treaty Doc. No. 106–37, supra note 1; see also Crossette, Barbara, Clinton Signs Agreements to Help Protect Children, N.Y. Times, July 6, 2000, at A11 Google Scholar; Lynch, supra note 15. Even before the Protocols arrived, the Senate and the House had unanimously adopted a concurrent resolution expressing strong support for the Children in Armed Conflict Protocol. See 146 Cong. Rec. S4650–51, H5762–63 (daily eds. June 7, July 11, 2000).

45 Remarks by the President at Protocol Orders Signing Ceremony at the United Nations, White House Press Release (July 5, 2000), obtainable from <http://www.pub.whitehouse.gov/WH/Publications/html/Publications.html>.