[Senate Treaty Document 106-37]
[From the U.S. Government Publishing Office]



106th Congress                                              Treaty Doc.
                                 SENATE                     
 2d Session                                                    106-37
_______________________________________________________________________

                                     



 
        PROTOCOLS TO THE CONVENTION ON THE RIGHTS OF THE CHILD

                               __________

                                MESSAGE

                                  from

                   THE PRESIDENT OF THE UNITED STATES

                              transmitting

TWO OPTIONAL PROTOCOLS TO THE CONVENTION ON THE RIGHTS OF THE CHILD, 
  BOTH OF WHICH WERE ADOPTED AT NEW YORK, MAY 25, 2000: (1) THE OPTIONAL 
  PROTOCOL TO THE CONVENTION ON THE RIGHTS OF THE CHILD ON INVOLVEMENT OF 
  CHILDREN IN ARMED CONFLICT; AND (2) THE OPTIONAL PROTOCOL TO THE 
  CONVENTION ON THE RIGHTS OF THE CHILD ON THE SALE OF CHILDREN, CHILD 
  PROSTITUTION AND CHILD PORNOGRAPHY, SIGNED ON JULY 5, 2000




 July 25, 2000.--The Protocols were read the first time, and together 
  with the accompanying papers, referred to the Committee on Foreign 
     Relations and ordered to be printed for the use of the Senate

                               __________

                    U.S. GOVERNMENT PRINTING OFFICE
79-118                     WASHINGTON : 2000

                         LETTER OF TRANSMITTAL

                              ----------                              

                                    The White House, July 25, 2000.
To the Senate of the United States:
    With a view to receiving advice and consent of the Senate 
to ratification, I transmit herewith two optional protocols to 
the Convention on the Rights of the Child, both of which were 
adopted at New York, May 25, 2000: (1) The Optional Protocol to 
the Convention on the Rights of the Child on Involvement of 
Children in Armed Conflict; and (2) The Optional Protocol to 
the Convention on the Rights of the Child on the Sale of 
Children, Child Prostitution and Child Pornography. I signed 
both Protocols on July 5, 2000.
    In addition, I transmit for the information of the Senate, 
the report of the Department of State with respect to both 
Protocols, including article-by-article analyses of each 
protocol. As detailed in the Department of State report, a 
number of understandings and declarations are recommended.
    These Protocols represent a true breakthrough for the 
children of the world. Ratification of these Protocols will 
enhance the ability of the United States to provide global 
leadership in the effort to eliminate abuses against children 
with respect to armed conflict and sexual exploitation.
    I recommend that the Senate give early and favorable 
consideration to both Protocols and give its advice and consent 
to the ratification of both Protocols, subject to the 
understandings and declarations recommended in the Department 
of State Report.

                                                William J. Clinton.
                          LETTER OF SUBMITTAL

                              ----------                              

                                       Department of State,
                                         Washington, July 13, 2000.
The President,
The White House.
    The President: I have the honor to submit to you, with the 
recommendation that they be transmitted to the Senate for 
advice and consent to ratification, two Optional Protocols to 
the Convention on the Rights of the Child adopted at New York 
November 20, 1989 (the ``Convention''): (1) the Optional 
Protocol to the Convention on the Rights of the Child on 
Involvement of Children in Armed Conflict (the ``Children in 
Armed Conflict Protocol''); and (2) the Optional Protocol to 
the Convention on the Rights of the Child on the Sale of 
Children, Child Prostitution and Child Pornography (the ``Sale 
of Children Protocol''). On July 5, you signed both Protocols. 
I have also enclosed, for the information of the Senate, 
article-by-article analyses of both Protocols.
    Though styled as Protocols to the Convention, both texts, 
by their terms, will operate an independent multilateral 
agreements under international law. Significantly, States can 
become parties to either or both Protocols without becoming a 
party to the Convention or being subject to its provisions. The 
United States seeks the widest possible acceptance of these two 
Protocols by the community of nations to make it clear that the 
Protocols speak forcefully for the protection of all children. 
It is essential that we work with all of our international 
partners to achieve our common objective: the elimination of 
abuses of the world's children.


                               background


    On May 25, 2000, the United Nations General Assembly 
adopted both the Children in Armed Conflict Protocol and the 
Sale of Children Protocol. Adoption of these Protocols greatly 
strengthens international efforts to define and enforce norms 
to protect the most vulnerable children. These children 
desperately need the full attention of the United States and 
the world.
(A) The Children in Armed Conflict Protocol
    The Children in Armed Conflict Protocol deals realistically 
and reasonably with the difficult issue of minimum ages for 
compulsory recruitment, voluntary recruitment, and 
participation in hostilities, while fully protecting the 
military recruitment and readiness requirements of the United 
States.
    The Protocol raises the age for military conscription to 18 
years; international law had previously set this at only 15 
years. The Protocol also calls for governments to set a minimum 
age for voluntary recruitment above the current international 
standard of 15 years and to report on measures to ensure that 
recruitment is truly voluntary. States must take ``all feasible 
measures'' to ensure that members of their armed forces who are 
not yet 18 do not take a ``direct'' part in hostilities. States 
that become party to the Protocol also agree to ``take all 
feasible measures to prevent'' the recruitment and use of 
persons younger than 18 in hostilities by non-governmental 
armed groups, including by adopting legal measures to prohibit 
and criminalize such practices.
    Another important provision of the Protocol is its 
promotion of international cooperation and assistance in the 
rehabilitation and social reintegration of children who have 
been victimized by armed conflict.
    No implementing legislation would be required with respect 
to U.S. ratification of the Children in Armed Conflict Protocol 
because current U.S. law meets the standards in the Protocol. 
The United States does not permit compulsory recruitment of any 
person under 18 for any type of military service. While 
inactive, the selective service system remains established in 
law and provides for involuntary induction at and after age 18. 
The United States also does not accept voluntary recruits below 
the age of 17 pursuant to 10 U.S.C. Sec. 505(a) (1994). 
Additionally, the United States will take ``all feasible 
measures'' to ensure that members of its armed forces do not 
take ``a direct part in hostilities'' without necessitating any 
change in U.S. law. U.S. law already prohibits insurgent 
activities by non-government actors against the United States, 
irrespective of age, under 18 U.S.C. Sec. 2381, et seq.
    The Department does recommend, however, that the Senate's 
advice and consent to ratification of the Children in Armed 
Conflict Protocol be subject to three understandings and a 
declaration, as follows.
    First, as noted above, the United States considers the 
Children in Armed Conflict Protocol to operate by its very 
terms as an independent international agreement. As such, by 
ratifying the Protocol, the United States understands that it 
would not become a party to the Convention or assume any rights 
or obligations under the Convention. The following 
understanding is recommended to accompany the U.S. instrument 
of ratification:

          The United States understands that the Protocol 
        constitutes an independent multi-lateral 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.

    Second, as detailed in the enclosed article-by-article 
analysis, the United States views the obligation in Article 1 
to take all ``feasible measures'' to ensure that members of its 
armed forces who have not attained the age of 18 years do not 
take a ``direct part'' in hostilities as reflecting standards 
whose meanings are well grounded in international law and which 
the United States can meet while fully protecting its military 
recruitment and readiness requirements without harming its 
force readiness. The following understanding concerning the 
meaning of these standards is recommended to accompany the U.S. 
instrument of 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 casual 
        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. The United States further understands that 
        any decision by any military commander, military 
        personnel, or any other person responsible for 
        planning, authorizing, or executing military action 
        shall only be judged on the basis of that person's 
        assessment of the information reasonably available to 
        the person at the time the person planned, authorized, 
        or executed the action under review, and shall not be 
        judged on the basis of information that comes to light 
        after the action under review was taken.

    Third, under Article 3(1), States Parties to the Children 
in Armed Conflict Protocol are required to raise the minimum 
age for voluntary recruitment into their national armed forces 
from that set out in Article 38(3) of the Convention. Article 
38(3) of the Convention provides a minimum age of 15 years, 
which reflects the minimum age currently provided for in 
international humanitarian law. To make clear the nature of the 
obligation assumed under Article 3(1) of the Protocol, the 
following understanding is recommended to accompany the U.S. 
instrument of ratification:

          The United States understands that Article 3 obliges 
        States Parties to raise the minimum age for voluntary 
        recruitment into their national armed forces from the 
        current international standard of 15.

    Fourth and finally, Article 3(2) requires each State Party 
to the Children in Armed Conflict Protocol to deposit a binding 
declaration upon ratification setting forth the minimum age at 
which it will permit voluntary recruitment into its national 
armed forces and a description of the safeguards it has adopted 
to ensure that such recruitment is not forced or coerced. In 
order to satisfy this requirement, the following understanding 
is recommended to accompany the U.S. instrument of 
ratification:

          Pursuant to Article 3(2) of the Protocol, the United 
        States declares that the minimum age at which it will 
        permit voluntary recruitment into its armed forces is 
        17. The United States has a number of safeguards in 
        place to ensure that such recruitment is not forced or 
        coerced, including a requirement in U.S. law, Title 10, 
        United States Code, Section 505(a), that no person 
        under 18 years of age may be originally enlisted 
        without the written consent of his or her parent or 
        guardian, if he or she has a parent or guardian 
        entitled to his or her custody and control. Moreover, 
        each person recruited into the military receives a 
        comprehensive briefing and must sign an enlistment 
        contract which, together, specify the duties involved 
        in military service. All recruits must provide reliable 
        proof of age before their entry into the military 
        service.
B. The Sale of Children Protocol
    The Sale of Children Protocol takes a vital step forward in 
our efforts to combat crimes of trafficking in children. Those 
who traffic in children prey on the most vulnerable children, 
who are most in need of legal and other protections. The 
Protocol is the first international instrument to define the 
terms ``sale of children,'' ``child pornography,'' and ``child 
prostitution.'' The Protocol requires these offenses to be 
treated as criminal acts, and provides law enforcement and 
cooperation tools to help guarantee that offenders will not go 
unpunished. Additionally, the Protocol establishes stronger, 
clearer grounds for jurisdiction and extradition, to better 
ensure that offenders can be prosecuted regardless of where 
they are found. Moreover, its extensive provisions on 
prevention and cooperation will help child victims receive 
protection and assistance.
    It was especially important for the United States that the 
Protocol contain effective and practical strategies to 
prosecute and penalize those who commit crimes involving child 
prostitution, child pornography and trafficking in children. 
The administration is committed to ensuring that no child is 
subjected to these crimes.
    It is recommended that the Senate's advice and consent to 
ratification of the Sale of Children Protocol be subject to 
five understandings and a declaration, as follows:
    First, as noted above, the United States considers the 
Sales of Children Protocol, by its very terms, to operate as an 
independent international agreement. As such, by ratifying the 
Protocol, the United States understands that it would not 
become a party to the Convention or assume any rights or 
obligations under the Convention. The following understanding 
is recommended to accompany the U.S. instrument of 
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.

    Second, Article 2(a) of the Protocol defines the term 
``sale of children'' in general as ``any act or transaction 
whereby a child is transferred by any person or group of 
persons to another for remuneration or other consideration.'' 
To further clarify the meaning of the term ``sale of 
children,'' the following understanding is recommended to 
accompany the U.S. instrument of ratification:

          The United States understands that the definition of 
        ``sale of children'' in Article 2(a) is intended to 
        reach transactions in which remuneration or other 
        consideration is given and received under circumstances 
        in which a person who does not have a lawful right to 
        custody of the child thereby obtains de facto authority 
        to exercise control over the child.

    Third, Article 2(c) defines child pornography as ``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, the dominant characteristic of 
which is depiction for a sexual purpose.'' To clarify the 
meaning of the term further, the following understanding is 
recommended to accompany the U.S. instrument of ratification:
    The United States understands the definition of child 
pornography in Article 2(c) to mean the visual representation 
of a child, engaged in real or simulated sexual activities, or 
of the genitalia of a child where the dominant characteristic 
is depiction for a sexual purpose.''
    Fourth, Article 3(1)(a)(i) requires States Parties to 
ensure that, in the context of sale of children, the offering, 
delivering, or accepting of a child for the purpose of 
``transfer of organs of the child for profit'' is fully covered 
under its criminal law. To clarify the scope of the obligation 
to criminalize the transfer of organs in Article 3, the 
following understanding is recommended to accompany the U.S. 
instrument of ratification:

          With respect to Article 3(1)(a)(i), the United States 
        understands that the ``transfer of organs for profit'' 
        in the context of the sale of a child is not intended 
        to reach situations in which a child donates an organ 
        pursuant to lawful consent, which could never arise in 
        the context of such a sale. Moreover, the United States 
        understands that ``profit'' does not extend to the 
        lawful payment of reasonable payments associated with 
        such transfer, for example for expenses of travel, 
        housing, lost wages, and medical costs arising 
        therefrom.

    Fifth, Article 3(1)(a)(ii) requires States Parties to 
ensure that, in the context of sale of children, ``improperly 
inducing consent, as an intermediary for adoption in violation 
of applicable international legal instruments on adoption'' is 
fully covered under its criminal law. In order to clarify the 
nature of United States obligations under Article 3(1)(a)(ii), 
the following understanding is recommended to accompany the 
U.S. instrument of ratification:

          The United States understands the reference to 
        ``applicable international legal instruments'' in 
        Article 3(1)(a)(ii) of the Protocol to mean the 
        Convention on Protection of Children and Co-operation 
        in respect of Intercountry Adoption (the ``Hague 
        Convention''). Since the United States is not currently 
        a party to the Hague Convention, it understands that it 
        is not obligated to criminalize conduct prohibited 
        therein. The United States further understands the term 
        ``improperly inducing consent'' in Article 3(1)(a)(ii) 
        to mean knowingly and willfully inducing consent by 
        offering or giving compensation for the relinquishment 
        of parental rights.

    Sixth, and finally, Article 4(1) obligates every State 
Party to take ``such measures as may be necessary'' to 
establish jurisdiction over the offenses referred to in Article 
3(1), when the offenses are committed in its territory or on 
board a ship or aircraft registered in that State. U.S. law 
provides a broad range of bases on which to exercise 
jurisdiction over offenses covered by the Protocol that are 
committed ``on board a ship or aircraft registered in'' the 
United States [emphasis added]. U.S. jurisdiction in such cases 
is not uniformly stated for all crimes covered by the Protocol, 
nor is it always couched in terms of ``registration'' in the 
United States. Therefore, the reach of U.S. jurisdiction may 
not be co-extensive with the obligation stipulated by this 
article. The following declaration is recommended to accompany 
the U.S. instrument of ratification:

          Subject to the declaration that, to the extent that 
        the domestic law of the United States does not provide 
        for jurisdiction over an offense referred to in Article 
        3(1) of the Protocol when the offense is committed on 
        board a ship or aircraft registered in the United 
        States, the obligation of the United States with 
        respect to jurisdiction over that offense shall be 
        suspended. The suspension shall terminate when the 
        United States informs the Secretary-General of the 
        United Nations that its domestic law is in full 
        conformity with the requirements of Article 4(1) of the 
        Protocol.


                               conclusion


    The Children in Armed Conflict and Sale of Children 
Protocols constitute historic advances in efforts to strengthen 
and enforce norms to protect millions of vulnerable children, 
who desperately need the world's full attention. Subject to the 
recommended understandings and declarations described above, 
both Protocols are consistent with U.S. law. Ratification by 
the United States will reaffirm the tradition of U.S. 
leadership in efforts to improve the protection of children.
    The Department of Defense for the Children in Armed 
Conflict Protocol, and the Department of Justice for the Sale 
of Children Protocol join me in favoring ratification of these 
Protocols, subject to the conditions previously described.
    Respectfully submitted,
                                                       Alan Larson.
    Enclosures: As stated.
    
    
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