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Explanatory Report to the OPSC Guidelines Explanatory Report to the Guidelines regarding the implementation of the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography Interagency Working Group September 2019 Written by Susanna Greijer and Jaap Doek With input from the “Interagency Working Group on the OPSC Guidelines” English original, September 2019 September 2019 Copyright ECPAT International ECPAT International 328/1 Phayathai Road Rachathewi, Bangkok 10400 Thailand Tel: +66 2 215 3388 Fax: +66 2 215 8272 Email: [email protected] Website: www.ecpat.org From the United Nations Official Documents System (CRC/C/156). © United Nations, 2019. Reprinted with the permission of the United Nations The views expressed in the Explanatory Report attached to the “Guidelines regarding the implementation of the Optional Protocol to the Convention on the Rights of the Child on the sale of children, prostitution and child pornography” (CRC/C/156) are those of the authors and do not necessarily reflect the views of the United Nations Graphic design: SO Graphiste Freelance Explanatory Report to the Guidelines regarding the implementation of the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography Preface On 30 May 2019, during its 81st session, the UN Committee on the Rights of the Child (the Committee) adopted its first ever Guidelines for the implementation of one of the legal instruments included under its monitoring mandate. The Guidelines regarding the implementation of the Optional Protocol to the CRC on the Sale of children, child prostitution and child pornography (OPSC Guidelines or Guidelines) are aimed to make it easier for States parties to understand the provisions contained in the OPSC as well as what is expected of them in terms of implementation and compliance. In 2017, the Committee invited ECPAT International to submit a draft of the OPSC Guidelines which would be discussed with a dedicated working group of the Committee. Such a working group was established in 2018 and composed of members of the Committee. In early 2018, ECPAT International also established an Interagency Working Group (IWG) to provide expert advice from a broad range of stakeholders working on children’s rights and child protection. ECPAT International served as the Secretariat to the IWG and supported the research and drafting process. The IWG met for the first time in Geneva in May 2018, and convened twice more before the adoption of the Guidelines a year later. The IWG was composed of representatives from 19 organisations and chaired by Professor Jaap Doek whilst the project coordination and drafting were expertly led by Dr Susanna Greijer, both Senior Legal Advisors to ECPAT International. An Explanatory Report During the drafting process of the OPSC Guidelines, the Committee was challenged with the official word limit on any document adopted by the UN monitoring bodies. This meant that source references or extracts from relevant sources could not be included in the text, and neither could concrete examples of good practice, which would provide guidance to States not only on what is expected of them to implement and comply with the OPSC, but also how to do so. In an effort to fill the gap and provide details that could not be included in the OPSC Guidelines, the Committee, in consultation with ECPAT International and others, decided on the preparation of the present Explanatory Report. The Report aims to serve as a tool for States and other stakeholders working against the sale and sexual exploitation of children and is published as a complement to the OPSC Guidelines. Preface 4 Explanatory Report to the OPSC Guidelines In order to facilitate a joint reading of the two, the Explanatory Report follows the structure and includes the integral text of the OPSC Guidelines. For each paragraph of the Guidelines, additional information is added regarding the different issues raised, and references are included to international and regional standards linked to the issues covered under the OPSC, the Committee’s relevant General Comments, and recommendations by other similar bodies, such as the Committee of the Parties to the Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse, also known as the “Lanzarote Committee”. Lastly, concrete examples of good practice from national legislation and policy as well as resources of child protection organisations are included. To the extent possible, good practice provided by States during the open call for submissions held by the Committee during the drafting process of the OPSC Guidelines have been included into this Explanatory Report. We believe that both the OPSC Guidelines and this Explanatory Report will be effective instruments for States and others working against the sale and sexual exploitation of children worldwide, and provide the guidance needed to improve implementation of the Committee’s recommendations on the ground in Member states. Our sincere thanks go out to the Committee, the IWG and all those who contributed to the finalisation of the OPSC Guidelines and the Explanatory Report Robbert van den Berg ECPAT International 26 September 2019 Preface 5 Acknowledgements This Explanatory Report is the result of collaboration among many individuals and institutions. ECPAT International wishes to thank all those who contributed with their time, expertise and energy, in particular: Mary Harvey and Dorothy Rozga (Centre for Sports and Human Rights), Ilaria Paolazzi and Olivia Solari (Child Rights Connect), Gioia Scappucci and Elda Moreno (Council of Europe – Lanzarote Committee Secretariat), Velina Todorova and Clarence Nelson (Committee on the Rights of the Child), Marie-Laure Lemineur, Anita Goh and Andrea Varrella (ECPAT International Secretariat), Adem Arkadas-Thibert (Global Child), Jacqueline Hazzan (International Centre for Missing and Exploited Children), Mike Tunks (Internet Watch Foundation), Yoshie Noguchi and Ben Smith (International Labour Office), Carla Licciardello (International Telecommunications Union), Monica Nascimento, Allegra Franchetti, Shushan Khachyan and Dorian Hall (Office of the High Commissioner for Human Rights), Annette Lyth and Ann-Kristin Vervik (Office of the UN Special Representative of the Secretary General on Violence against Children), Anya Gass (Plan International), Nina Vaaranen-Valkonen and Alen Zaimovic’ (Save the Children), Laura Chello (Terre des Hommes), Anne Grandjean (UNICEF), Maud de Boer-Buquicchio (UN Special Rapporteur on the sale and sexual exploitation of children), Frédérique Seidel and Jennifer Philpot-Nissen (World Council of Churches), Philip Wilkinson (World Vision). We acknowledge the financial support of Sida, Oak Foundation and UNICEF in producing this publication. Interagency Working Group Joined in 2018 • Child Rights Connect • Council of Europe, Children’s Rights Division – Secretariat of the Lanzarote Committee • Office of the High Commissioner for Human Rights – CRC Committee Secretariat • ECPAT International • Global Child • International Centre for Missing and Exploited Children (ICMEC) • Internet Watch Foundation • International Labour Office • International Telecommunications Union • PLAN International • Save the Children • Terre des Hommes • UNICEF • UN Special Rapporteur on the sale and sexual exploitation of children • UN Special Representative of the Secretary-General on Violence against Children • World Council of Churches • World Vision Joined in 2019 • Centre for sports and human rights • Lumos Table of Contents I. INTRODUCTION 10 II. OBJECTIVES OF THE GUIDELINES 18 III. GENERAL MEASURES OF IMPLEMENTATION 20 IV. PREVENTION OF THE SALE OF CHILDREN, CHILD PROSTITUTION AND CHILD PORNOGRAPHY 44 V. PROHIBITION OF THE SALE OF CHILDREN, CHILD PROSTITUTION AND CHILD PORNOGRAPHY 54 VI. SANCTIONS 76 VII. JURISDICTION AND EXTRADITION 81 VIII. THE CHILD VICTIM’S RIGHT TO ASSISTANCE AND PROTECTION IN LEGAL PROCEEDINGS 87 IX. THE CHILD VICTIM’S RIGHT TO RECOVERY, FAMILY AND SOCIAL REINTEGRATION AND COMPENSATION 96 X. MUTUAL LEGAL ASSISTANCE AND INTERNATIONAL COOPERATION 100 I. Introduction A. Recent developments related to the sale and sexual exploitation of children 1 The Convention on the Rights of the Child, adopted in 1989, and the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography, adopted in 2000, are the most comprehensive international legal instruments that promote and safeguard the rights of the child and protect children from sale, sexual exploitation and sexual abuse. However, these treaties were adopted at a time when information and communications technology (ICT)1 and social media were much less developed and less widespread, and when sexual offences against children did not have the close linkage to the digital environment that is often present today. While the Convention and the Optional Protocol are fully relevant and applicable also in the digital environment, their provisions require an interpretation adapted to today’s realities. 1 The term “ICT” encompasses any communication device or application, including radio, television, cellular telephones and computer and network hardware and software. It is important to clarify that neither the CRC nor the OPSC should be seen, in any way, as outdated legal instruments which have no relevance. Quite the contrary, the CRC remains, to this day, the most
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