Handbook on the Optional Protocol on the Sale of Children, Child Prostitution, and Child Pornography

Handbook on the Optional Protocol on the Sale of Children, Child Prostitution, and Child Pornography

Handbook on the Optional Protocol on the Sale of Children, Child Prostitution, and Child Pornography

This handbook aims to promote understanding and effective implementation of the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography (OPSC). It describes the genesis, scope and content of the Protocol, and provides examples of measures taken by States Parties to fulfil their obligations under this instrument. The handbook is addressed principally to public officials and others who work with and for children, and whose duties and activities can help to enhance the protection of children from exploitation, whether on the national or local level.

The content is based largely on the experience of the Committee on the Rights of the Child, the treaty monitoring body established by the Convention on the Rights of the Child (CRC) to review progress made by States Parties on implementing the CRC and its Optional Protocols. The handbook also draws from the reports of the Special Rapporteur on the sale of children, child prostitution and child pornography and from a 2009 discussion paper by Ugo Cedrangolo titled ‘The Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography and the Jurisprudence of the Committee on the Rights of the Child’. Data are also taken from studies by non-governmental organizations (NGOs) that tackle the issues addressed in this handbook. The text is also informed by research done by other United Nations bodies and by UNICEF, particularly studies done by the UNICEF Innocenti Research Centre on the general measures of implementation of the CRC, child trafficking and the exploitation of children in travel and tourism.

Every child has the right to protection from all forms of exploitation. Many states have taken legal and other measures to prevent the sale of children, child prostitution and child pornography, to punish offenders and ensure that child victims are rehabilitated and reintegrated. An increasing number of states have made formal legal commitments to take measures in cooperation with other states, including by becoming parties to relevant international instruments, such as the Convention on the Rights of the Child and its Optional Protocols.

When the Convention was adopted in 1989, it was believed that the provisions concerning child protection, notably articles 19, 32 and 34−36, provided a sufficient framework to protect children from all forms of exploitation. With the 1996 World Congress against Commercial Sexual Exploitation of Children, it became increasingly clear that additional efforts were needed to address the true extent of sexual exploitation, including the extraordinary and devastating impact of globalization and accelerated human mobility on the protection of children’s rights.

Modern technologies have also led to new challenges and concerns, with disconcerting worldwide dimensions. The explosion of these technologies, particularly the Internet, has brought many benefits to humanity, but the consequences of their misuse are now evident. At the dawn of the 1990s, the exchange of files on the Internet was just beginning. As widespread and uncontrolled online access became commonplace, countless paedophile websites appeared, and child pornography made its way into the global and connected world on the screens of personal computers.

The exploitation of children has taken on a transnational character, frequently involving organized criminal groups and networks. Today, the most profitable activities of international organized crime are trafficking of arms, drugs and human beings, including children. Trafficking of children is most often connected to the sale of children, child prostitution and child pornography, as well as to child labour, child soldiering, illegal adoption and other forms of exploitation.

As a result of the growing globalization of child exploitation, the international community took immediate action. Using the same information technologies that facilitate the exploitation of children, people dedicated to child protection have attempted to increase global awareness. The explosive growth in circulation of information about old and new forms of child exploitation led to an innovative global movement to fight the practice.

Concurrently, a process of dialogue began among international and national experts and concerned individuals. It reflected on the potential to build upon the solid normative child rights framework to ensure the protection of children from exploitation. It was agreed that the best course of action would be to adopt a protocol to the CRC that would enhance the protection of children from sale, prostitution and child pornography. The main premises of the OPSC are that all children must be protected, that such exploitation is criminal in nature, and that the perpetrators must be identified and punished.

The OPSC builds on and enhances both the general principles of the CRC and its specific rights, such as those dealing with separation from parents, the illicit transfer of children and the issue of non-return. The Protocol also reinforces other provisions of the CRC, including articles 19, 32 and 34−36. It should be viewed holistically, as part of a web of interrelated legal obligations and as part of States’ accountabilities for children’s rights.

The Optional Protocol also draws inspiration from earlier human rights conventions, such as the following:

  • 1921 International Convention for the Suppression of the Traffic in Women and Children, and its Protocol
  • 1926 Slavery Convention
  • 1950 Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others
  • 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery
  • 1979 Convention on the Elimination of All Forms of Discrimination against Women
  • 1993 Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption

In turn, the Optional Protocol influenced the development of new international instruments, such as the following:

  • 1999 ILO Convention concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour (‘Worst Forms of Child Labour Convention’, No. 182)
  • 2000 Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention Against Transnational Organized Crime (‘Palermo Protocol’).

Each of these texts makes a unique contribution to child protection. They also demonstrate the international community’s recognition of the need for a strong position on the issue of child exploitation. The OPSC responded to this realization, becoming a centrepiece of international action to protect children from exploitation.

The sale of children, child prostitution and child pornography are, justifiably, emotionally loaded concepts. Moreover, the realities of child protection are complex, making it difficult to identify and establish the parameters of criminal behaviour. They also make it difficult to define these parameters in legal terms, to prosecute exploitative behaviour towards children and, above all, to prevent it from occurring in the first place.

Based on its review of reports by States Parties on implementation of the OPSC, the Committee on the Rights of the Child has made several observations:

  • Many national authorities recognize the scope and extent of these crimes and attempt to address situations as soon as they are known.
  • Some authorities, however, deny the very existence of the problem, or minimize the seriousness or incidence of these practices and their impact on children.
  • Some authorities pride themselves on prevention efforts, yet they experience difficulties implementing effective and efficient measures against transnational criminal networks that take advantage of weak national laws and frequently operate hidden from public view.

The bitter reality is that, despite the CRC’s pledge of protection for the child as a subject and a rights holder, children are still too often seen as objects and commodities. They are treated as merchandise rather than as persons whose rights must be respected and protected. Resolving this contradiction is the challenge that lies at the heart of implementing the OPSC.

A law is only effective when it takes into account the root causes of the problem it addresses. The crimes targeted in the OPSC are often associated with poverty, inequitable socio-economic structures, dysfunctional families, lack of education, rural-urban migration, gender discrimination, irresponsible adult sexual behaviour, harmful traditional practices and armed conflicts. The presence of these causes does not excuse the crimes committed, but the causes need to be understood if preventive and responsive efforts are to work and to last.

In many parts of the world, countries are facing an enormous strain on resources associated with high birth rates, along with devastating child morbidity and mortality rates and the inability to guarantee children’s universal access to food, health care and education. This presents enormous challenges for those working to ensure children receive the broadest possible protection.

The modern global economy favours the free circulation of capital and commodities and has also led to increased migration. Some of those who are ‘on the move’ are young people. The consequences of these population flows raise dramatic challenges for families and for the protection of children’s rights.

Ill-perceived notions of ‘cultural diversity’ are also an obstacle to effective action against child exploitation. Child domestic labour and sexual initiation of teenagers are sometimes explained as traditional practices. However, they compromise the realization of children’s rights and demand a process of social change.

Although child pornography and child prostitution are often economically motivated, these children are not ‘working’ – they are being exploited. They are being treated as objects rather than as people. The fatalistic acceptance of exploitation because ‘this has always existed’ and ‘there is nothing new under the sun’ is the enemy of effective action. This is especially true where protection measures are weak, where families are complicit and where officials condone or even profit from such abuse.

The history of childhood should not be written as one immutable storyline of exploitation, leaving no hope for change. The Convention on the Rights of the Child and its Optional Protocol on the sale of children, child prostitution and child pornography are a central chapter of this story, and they provide objective reasons to believe in the capacity for evolution and improvement. The OPSC makes a forceful statement: Every child is entitled to protection and has the right to respect for privacy, integrity and identity. Every child has the right to be considered a person in his or her own right.

The notion of the child as a full subject of rights is recent and has broken new ground. The child is no longer considered as a ‘becoming adult’, but as a person with his or her own rights. There is no ambiguity in this, and it represents a considerable step forward in history. Releasing children from their traditionally perceived status as ‘minors’ and ‘dependents’ is a decisive change in the perception of childhood.

The reporting and monitoring processes of the OPSC should promote a global vision of child protection. They require acting in a parallel and simultaneous way, in particular through:

  • Prevention activities among the most deprived populations, who sometimes assert that they have no alternatives, and calling the attention of the authorities to the living conditions of these easily identifiable at-risk populations.
  • Urging governments to improve laws and procedures for the prosecution of offenders as well as the care and protection of children identified as victims, to prevent their double victimization.
  • Reinforcing procedures for transnational cooperation.
  • Improving the quality of care in institutions for children who have been abused and exploited, and ensuring that staff are trained and aware of the importance of safeguarding children’s rights.
  • Providing psychological and social counselling for abused and exploited children, offering them assistance in a skilled, patient and respectful way.
  • Identifying and prosecuting the perpetrators of these crimes against children.
  • Encouraging the media to raise awareness of child exploitation in communities, to respect children’s privacy and to avoid exploitative images and reporting.

The Optional Protocol is a valuable instrument. It has a unique potential to decisively enhance the protection of children from exploitation and fight the impunity of perpetrators. Its efficiency will increase if all States ratify it and act to implement its provisions effectively.

Our hope is that this handbook will help make this a reality!

Read more here.