[Congressional Record Volume 148, Number 77 (Wednesday, June 12, 2002)]
[Senate]
[Pages S5453-S5454]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                     EXECUTIVE REPORT OF COMMITTEE

  The following executive report of committee was submitted:

       By Mr. BIDEN, from the Committee on Foreign Relations:

  Treaty Doc. 106-37(B) Optional Protocol No. 2 to Convention on the 
  Rights of the Child on the Sale of Children, Child Prostitution and 
               Child Pornography (Exec. Rept. No. 107-4)

   Text of the Committee-Recommended Resolution of Advice and Consent

       Resolved (two-thirds of the Senators present concurring 
     therein),

     SECTION 1. ADVICE AND CONSENT TO RATIFICATION OF THE OPTIONAL 
                   PROTOCOL TO THE CONVENTION ON THE RIGHTS OF THE 
                   CHILD ON THE SALE OF CHILDREN, CHILD 
                   PROSTITUTION, AND CHILD PORNOGRAPHY, SUBJECT TO 
                   A RESERVATION, UNDERSTANDINGS, A DECLARATION, 
                   AND A CONDITION.

       The Senate advises and consents to the ratification of the 
     Optional Protocol Relating to the Convention on the Rights of 
     the Child on the Sale of Children, Child Prostitution, and 
     Child Pornography, opened for signature at New York on May 
     25, 2000 (Treaty Doc. 106-37; in this resolution referred to 
     as the ``Protocol''), subject to the reservation in section 
     2, the understandings in section 3, the declaration in 
     section 4, and the condition in section 5.

     SEC. 2. RESERVATION.

       The advice and consent of the Senate under section 1 is 
     subject to the reservation, which shall be included in the 
     United States instrument of ratification of the Protocol, 
     that, to the extent that the domestic law of the United 
     States does not provide for jurisdiction over an offense 
     described in Article 3(1) of the Protocol if the offense is 
     committed on board a ship or aircraft registered in the 
     United States, the obligation with respect to jurisdiction 
     over that offense shall not apply to the United States until 
     such time as the United States may notify the Secretary-
     General of the United Nations that United States domestic law 
     is in full conformity with the requirements of Article 4(1) 
     of the Protocol.

     SEC. 3. UNDERSTANDINGS.

       The advice and consent of the Senate under section 1 is 
     subject to the following understandings, which shall be 
     included in the United States instrument of ratification of 
     the Protocol:
       (1) No assumption of obligations under convention on the 
     rights of the child.--The United States understands that the 
     United States assumes no obligations under the Convention on 
     the Rights of the Child by becoming a party to the Protocol.
       (2) The term ``sale of children''.--The United States 
     understands that the term ``sale of children'', as defined in 
     Article 2(a) of the Protocol, is intended to cover any 
     transaction 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 control over the child.
       (3) The term ``child pornography''.--The United States 
     understands the term ``child pornography'', as defined in 
     Article 2(c) of the Protocol, 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.
       (4) The term ``transfer of organs for profit''.--The United 
     States understands that--
       (A) the term ``transfer of organs for profit'', as used in 
     Article 3(1)(a)(i) of the Protocol, does not cover any 
     situation in which a child donates an organ pursuant to 
     lawful consent; and
       (B) the term ``profit'', as used in Article 3(1)(a)(i) of 
     the Protocol, does not include the lawful payment of a 
     reasonable amount associated with the transfer of organs, 
     including any payment for the expense of travel, housing, 
     lost wages, or medical costs.
       (5) The terms ``applicable international legal 
     instruments'' and ``improperly inducing consent''.--
       (A) Understanding of ``applicable international legal 
     instruments''.--The United States understands that the term 
     ``applicable international legal instruments'' in Articles 
     3(1)(a)(ii) and 3(5) of the Protocol refers to the Convention 
     on Protection of Children and Co-operation in Respect of 
     Intercountry Adoption done at The Hague on May 29, 1993 (in 
     this paragraph referred to as ``The Hague Convention'').
       (B) No obligation to take certain action.--The United 
     States is not a party to The Hague Convention, but expects to 
     become a party. Accordingly, until such time as the United 
     States becomes a party to The Hague Convention, it 
     understands that it is not obligated to criminalize conduct 
     proscribed by Article 3(1)(a)(ii) of the Protocol or to take 
     all appropriate legal and administrative measures required by 
     Article 3(5) of the Protocol.
       (C) Understanding of ``improperly inducing consent''.--The 
     United States understands that the term ``improperly inducing 
     consent'' in Article 3(1)(a)(ii) of the Protocol means 
     knowingly and willfully inducing consent by offering or 
     giving compensation for the relinquishment of parental 
     rights.
       (6) Implementation of the protocol in the federal system of 
     the united states.--The United States understands that the 
     Protocol shall be implemented by the Federal Government to 
     the extent that it exercises jurisdiction over the matters 
     covered therein, and otherwise by the State and local 
     governments. To the extent that State and local governments 
     exercise jurisdiction over such matters, the Federal 
     Government shall, as necessary, take appropriate measures to 
     ensure the fulfillment of the Protocol.

     SEC. 4. DECLARATION.

       The advice and consent of the Senate under section 1 is 
     subject to the declaration that:
       (1)(A) the provisions of the Protocol (other than Article 
     5) are non-self-executing; and
       (B) the United States will implement Article 5 of the 
     Protocol pursuant to chapter 209 of title 18, United States 
     Code; and
       (2) except as described in the reservation in section 2----
       (A) current United States law, including the laws of the 
     States of the United States, fulfills the obligations of the 
     Protocol for the United States; and
       (B) accordingly, the United States does not intend to enact 
     new legislation to fulfill its obligations under the 
     Protocol.

     SEC. 5. CONDITION.

       The advice and consent of the Senate under section 1 is 
     subject to the condition that the Senate reaffirms condition 
     (8) of the resolution of ratification of the Document Agreed 
     Among the States Parties to the Treaty on Conventional Armed 
     Forces in Europe (CFE) of November 19, 1990 (adopted at 
     Vienna on May 31, 1996), approved by the Senate on May 14, 
     1997 (relating to condition (1) of the resolution of 
     ratification of the INF Treaty, approved by the Senate on May 
     27, 1988).
                                  ____


 Treaty Doc. 106-37(A) Optional Protocol No. 1 to Convention on Rights 
of the Child on Involvement of Children in Armed Conflict (Exec. Rept. 
                               No. 107-4)

   Text of the Committee-Recommended Resolution of Advice and Consent

       Resolved (two-thirds of the Senators present concurring 
     therein),

     SECTION 1. ADVICE AND CONSENT TO RATIFICATION OF THE OPTIONAL 
                   PROTOCOL TO THE CONVENTION ON THE RIGHTS OF THE 
                   CHILD ON THE INVOLVEMENT OF CHILDREN IN ARMED 
                   CONFLICT, SUBJECT TO UNDERSTANDINGS AND 
                   CONDITIONS.

       The Senate advises and consents to the ratification of the 
     Optional Protocol to the

[[Page S5454]]

     Convention on the Rights of the Child on the Involvement of 
     Children In Armed Conflict, opened for signature at New York 
     on May 25, 2000 (Treaty Doc. 106-37; in this resolution 
     referred to as the ``Protocol''), subject to the 
     understandings in section 2 and the conditions in section 3.

     SEC. 2. UNDERSTANDINGS.

       The advice and consent of the Senate under section 1 is 
     subject to the following understandings, which shall be 
     included in the United States instrument of ratification of 
     the Protocol:
       (1) No assumption of obligations under the convention on 
     the rights of the child.--The United States understands that 
     the United States assumes no obligations under the Convention 
     on the Rights of the Child by becoming a party to the 
     Protocol.
       (2) Implementation of obligation not to permit children to 
     take direct part in hostilities.--The United States 
     understands that, with respect to Article 1 of the Protocol--
       (A) the term ``feasible measures'' means those measures 
     that are practical or practically possible, taking into 
     account all the circumstances ruling at the time, including 
     humanitarian and military considerations;
       (B) the phrase ``direct part in hostilities''--
       (i) means 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; and
       (ii) does not mean indirect participation in hostilities, 
     such as gathering and transmitting military information, 
     transporting weapons, munitions, or other supplies, or 
     forward deployment; and
       (C) any decision by any military commander, military 
     personnel, or other person responsible for planning, 
     authorizing, or executing military action, including the 
     assignment of military personnel, shall only be judged on the 
     basis of all the relevant circumstances and 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.
       (3) Minimum age for voluntary recruitment.--The United 
     States understands that Article 3 of the Protocol obligates 
     States Parties to the Protocol to raise the minimum age for 
     voluntary recruitment into their national armed forces from 
     the current international standard of 15 years of age.
       (4) Armed groups.--The United States understands that the 
     term ``armed groups'' in Article 4 of the Protocol means 
     nongovernmental armed groups such as rebel groups, dissident 
     armed forces, and other insurgent groups.
       (5) No basis for jurisdiction by any international 
     tribunal.--The United States understands that nothing in the 
     Protocol establishes a basis for jurisdiction by any 
     international tribunal, including the International Criminal 
     Court.

     SEC. 3. CONDITIONS.

       The advice and consent of the Senate under section 1 is 
     subject to the following conditions:
       (1) Requirement to deposit declaration.--The President 
     shall, upon ratification of the Protocol, deposit a binding 
     declaration under Article 3(2) of the Protocol that states in 
     substance that--
       (A) the minimum age at which the United States permits 
     voluntary recruitment into the Armed Forces of the United 
     States is 17 years of age;
       (B) the United States has established safeguards to ensure 
     that such recruitment is not forced or coerced, including a 
     requirement in section 505(a) of title 10, United States 
     Code, that no person under 18 years of age may be originally 
     enlisted in the Armed Forces of the United States without the 
     written consent of the person's parent or guardian, if the 
     parent or guardian is entitled to the person's custody and 
     control;
       (C) each person recruited into the Armed Forces of the 
     United States receives a comprehensive briefing and must sign 
     an enlistment contract that, taken together, specify the 
     duties involved in military service; and
       (D) all persons recruited into the Armed Forces of the 
     United States must provide reliable proof of age before their 
     entry into military service.
       (2) Interpretation of the protocol.--The Senate reaffirms 
     condition (8) of the resolution of ratification of the 
     Document Agreed Among the States Parties to the Treaty on 
     Conventional Armed Forces in Europe (CFE) of November 19, 
     1990 (adopted at Vienna on May 31, 1996), approved by the 
     Senate on May 14, 1997 (relating to condition (1) of the 
     resolution of ratification of the INF Treaty, approved by the 
     Senate on May 27, 1988).
       (3) Reports.--
       (A) Initial report.--Not later than 90 days after the 
     deposit of the United States instrument of ratification, the 
     Secretary of Defense shall submit to the Committee on Foreign 
     Relations and the Committee on Armed Services of the Senate a 
     report describing the measures taken by the military 
     departments to comply with the obligation set forth in 
     Article 1 of the Protocol. The report shall include the text 
     of any applicable regulations, directives, or memoranda 
     governing the policies of the departments in implementing 
     that obligation.
       (B) Subsequent reports.--
       (i) Report by the secretary of state.--The Secretary of 
     State shall submit to the Committee on Foreign Relations and 
     the Committee on Armed Services of the Senate a copy of any 
     report submitted to the Committee on the Rights of the Child 
     pursuant to Article 8 of the Protocol.
       (ii) Report by the secretary of defense.--Not later than 30 
     days after any significant change in the policies of the 
     military departments in implementing the obligation set forth 
     in Article 1 of the Protocol, the Secretary of Defense shall 
     submit a report to the Committee on Foreign Relations and the 
     Committee on Armed Services of the Senate describing the 
     change and the rationale therefor.

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