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Abstract

Application of sections 52 to 55 of the Constitution. The Convention on the Rights of the Child was adopted on 20 November 1989 by resolution 44/25 of the General Assembly of the United Nations, and entered into force on 2 September 1990. France signed it on 26 January 1990 and ratified it on 2 July 1990. The prohibition of the sexual exploitation of children, their sale and trafficking is expressly provided for in Articles 34 and 35 of the Convention. Following a Latin American initiative, supported by France, in favour of a convention to combat the sexual exploitation of children, the United Nations Commission on Human Rights established an ad hoc working group in 1994. "To prepare the broad outlines of a possible optional protocol" on the sale of children, child prostitution and child pornography. At the sixth meeting of the Working Group (25 January-4 February 2000) a compromise text was prepared and adopted by resolution 54/263 of the United Nations General Assembly on 25 May 2000. This protocol is a repressive text which encourages States Parties to criminalise certain behaviour related to the sale of children, child prostitution and child pornography. First, it includes a definition of concepts (art. 2) followed by the conduct of States to criminalize (article 3) and a series of provisions relating to criminal jurisdiction, cooperation between States and measures for the prevention and protection of the rights of child victims (Sections 4 to 10). The negotiations on the definitions and the conduct to be incriminated proved difficult because of the opposition between the delegations as to the scope of the protocol. Some countries were in favour of limiting the protocol to the fight against the sale of children for the purpose of sexual exploitation, while others wished to include the sale of organs, illegal adoption, forced labour. With regard specifically to illegal adoption, a number of countries whose France did not wish to incriminate parents as potential managers of a sale of children, but limit the criminalisation to intermediaries. This position was finally followed and a compromise could be found by inserting in Article 3 a paragraph, separate from the incriminations, which implicitly refers to the Hague Convention of 29 May 1993 on the protection of children and the Cooperation on international adoption and Article 21 of the Convention on the Rights of the Child. The drafting of Article 4, relating to the criminal territorial jurisdiction of States, inspired by the Convention against Torture of 10 December 1984, has been profoundly amended, in particular by reason of the widening of the scope of the Protocol. The extra-territorial jurisdiction provided for in the Protocol, which allows the author of an offence to be prosecuted solely as a national of the State or because of his residence, even though the offence was committed outside the territory Of that State, constitutes a mere option for States Parties. In these circumstances, the ratification of this Protocol does not require the adoption of legislative adaptation measures. This protocol represents a significant step forward in the fight against the most serious attacks on children. To date, it is the only universal instrument to criminalize and prosecute such offences. Contrary to the Convention against Transnational Organised Crime and its Protocol to Combat Trafficking in Human Beings adopted on 15 November 2000, which presuppose to be applicable, the existence of a group This Protocol shall apply even if the offence is committed by a single individual. In addition, the widespread criminalisation of pornography makes it possible to apprehend child pornography on the Internet, the important development of which is of concern to both States and public opinion. To date, this protocol has 105 signatories and 48 States Parties. This text entered into force on 18 January 2002 after the deposit of the 10th instrument of ratification (Article 14 (1) of the Protocol). The ratification of this protocol was authorised by Act No. 2002-272 of 26 February 2002. The French instrument of ratification was deposited on 5 February 2003. Entered into force on 05-03-2003.

Keywords

FOREIGN AFFAIRS, INTERNATIONAL AGREEMENT, RATIFICATION, OPTIONAL PROTOCOL, CONVENTION, RIGHTS OF THE CHILD, CHILD PROTECTION, SALE, PROSTITUTION, PORNOGRAPHY, INTERNATIONAL CONVENTION ON THE RIGHTS OF THE CHILD, CIDE

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JORF No. 0096 of April 24, 2003 page 7303
Text No. 1



Order No. 2003-372 dated April 15, 2003, for the publication of the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography, New York, May 25, 2000 (1)

NOR: MAEJ0330014D ELI: https://www.legifrance.gouv.fr/eli/decret/2003/4/15/MAEJ0330014D/jo/texte
Alias: https://www.legifrance.gouv.fr/eli/decret/2003/4/15/2003-372/jo/texte

The President of the Republic,
On the report of the Prime Minister and the Minister for Foreign Affairs,
Having regard to Articles 52 to 55 of the Constitution;
Given the Law No. 2002-272 of 26 February 2002 authorising the ratification of the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography, in New York 25 May 2000;
In light of the amended Decree No. 53-192 of 14 March 1953 on the ratification and publication of international commitments entered into by France;
In view of Decree No. 90-917 of 8 October 1990 on the publication of the Convention On the Rights of the Child, signed in New York on January 26, 1990,
Describes:

Article 1

Protocol Optional to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography, made in New York on 25 May 2000, will be published in the Official Gazette of the Republic French.

Article 2

The Prime Minister and the Minister for Foreign Affairs shall each be responsible for The execution of this Decree, which will be published in the Official Journal of the French Republic.

Annex

OPTIONAL PROTOCOL

TO THE CONVENTION ON THE RIGHTS OF THE CHILD CONCERNING THE SALE OF CHILDREN, THE PROSTITUTION OF CHILDREN AND THE PORNOGRAPHY OF CHILDREN
The States Parties to this Protocol,
Considering that, in order to In the implementation of the aims of the Convention on the Rights of the Child (1) and the implementation of its provisions, in particular articles 1, 11, 21, 32, 33, 34, 35 and 36, it would be appropriate to extend the measures that States Parties Should take to ensure the protection of the child against the sale of children, child prostitution and child pornography;
Considering also that the Convention on the Rights of the Child devotes the The right of the child to be protected from economic exploitation and not to be engaged in work involving risks or likely to endanger his or her education or to harm his or her health or physical, mental, spiritual and moral development Or social;
Noting with deep concern that the international trafficking of children for the sale of children, child prostitution and child pornography is of considerable proportions and Increasing;
Deeply concerned about the widespread and persistent practice of sex tourism to which children are particularly exposed, as it directly promotes the sale of children, child prostitution and child prostitution. Child pornography;
Conscious that a number of particularly vulnerable groups, including girls, are more at risk of sexual exploitation, and that there is an abnormally high number of Girls among the victims of sexual exploitation;
Concerned about the growing supply of child pornography on the Internet and other new technological materials, and recalling that, in its conclusions, The International Conference on Combating Child Pornography on the Internet (Vienna, 1999) called for criminalization throughout the world of production, distribution, export, import, Transmission, intentional possession and advertising of pornographic material involving children, and underlining the importance of closer cooperation and partnership between public authorities and Internet professionals ;
Convinced that the elimination of the sale of children, child prostitution and child pornography will be facilitated by the adoption of a comprehensive approach taking into account the factors contributing to these phenomena, Underdevelopment, poverty, economic disparities, inequity in socio-economic structures, family dysfunction, lack of education, rural depopulation, gender-based discrimination, sexual behaviour Irresponsible adults, harmful traditional practices, armed conflict and child trafficking;
Considering that public awareness action is necessary to reduce the demand that led to the sale Children, child prostitution and child pornography, and that it is important to strengthen the global partnership between all actors and improve enforcement at the national level;
Taking note of the provisions of the Relevant international legal instruments on the protection of children, including the Hague Convention on the Protection of Children and Cooperation in Respect of Intercountry Adoption, the Hague Convention on Civil Aspects International Child Abduction, the Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibilities and Child Protection Measures, and the Convention No. 182 of the ILO on the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour;
Encouraged by the overwhelming support of the Convention on the Rights of the Child, which translates into existence A general desire to promote and protect the rights of the child;
Considering the importance of implementing the provisions of the Programme of Action for the Prevention of the Sale of Children, Child Prostitution and the Child Prostitution Child pornography (3) and the Declaration and Programme of Action adopted in 1996 at the World Congress against Commercial Sexual Exploitation of Children, held in Stockholm from 27 to 31 August 1996 (4), as well as other Relevant decisions and recommendations of relevant international organizations;
Taking due account of the importance of the traditions and cultural values of each people for the protection of the child and its harmonious development,
have agreed as follows:

Article 1

States Parties shall prohibit the sale of children, child prostitution and child pornography in accordance with Provisions of this Protocol.

Article 2

For the purposes of this Protocol:
a) Sale of children means any act or transaction under which a child is given by any person Person or group of persons to another person or group of persons against remuneration or other benefit;
(b) Child prostitution means the use of a child for the purpose of sexual activity against remuneration; or Any other form of benefit;
(c) Child pornography means any representation, by any means, of a child engaged in explicit, actual or simulated sexual activities, or any representation Sexual organs of a child for primarily sexual purposes.

Article 3

1. Each State Party shall ensure that, at a minimum, the following acts and activities are fully covered by its criminal law, whether these offences are committed internally or transnational, by an individual or in an organised manner:
(a) In the Framework for the sale of children as defined in section 2:
i) the offering, giving or accepting of a child, regardless of the means used, for the purposes of:
a. Sexual exploitation of the child;
b. Transfer of the child's organs for consideration;
c. Submitting the child to forced labour;
(ii) Inappropriately, as an intermediary, obtaining consent to the adoption of a child, in violation of international legal instruments relating to adoption;
(b) Offering, Obtain, procure or provide a child for the purposes of prostitution, as defined in section 2;
(c) Producing, distributing, distributing, importing, exporting, offering, selling or holding for the purposes described above Child pornography, as defined in Article 2.
2. Subject to the domestic law of a State Party, the same provisions apply in the case of an attempt by the Committee of any of these acts, of complicity In its commission or participation in it.
3. Each State Party shall make such offences punishable by appropriate penalties, taking into account their
. Subject to the provisions of its domestic law, any State Party shall, where appropriate, take the necessary measures in order to establish the liability of legal persons for the offences referred to in paragraph 1 of this article. According to the legal principles of the State Party, this responsibility may be criminal, civil or
. States Parties shall take all appropriate legal and administrative measures to ensure that all persons involved in the adoption of a child act in accordance with the provisions of international legal instruments Applicable.

Article 4

1. Each State Party shall take the necessary measures to establish its jurisdiction for the purpose of knowing the offences referred to in Article 3, paragraph 1, where such offences have been committed on its territory or on board ships or aircraft
State Party may take the measures necessary to establish its jurisdiction for the purposes of knowing the offences referred to in paragraph 1 of Article 3, in the following cases:
(a) Where the alleged perpetrator of the The offence is a national of that State or has his habitual residence in the territory of that State;
(b) Where the victim is a national of that
. Each State Party shall also take measures to establish its jurisdiction for the purposes of the offences referred to above, where the alleged offender is present in its territory and does not extradite him to another State Party Reason that the offence was committed by one of its nationals.
4. This Protocol shall not exclude the exercise of any criminal jurisdiction exercised in accordance with national laws.

Article 5

1. The offences referred to in article 3, paragraph 1, shall be fully included in any extradition treaty in force between the States Parties and shall be included in any extradition treaty to be concluded at a later date between them, in accordance with
a State Party which makes extradition conditional on the existence of a treaty is seized of a request for extradition by another State Party with which it is not bound by an extradition treaty, it may To consider this Protocol as constituting the legal basis for extradition in respect of such offences. Extradition shall be subject to the conditions laid down in the law of the requested
. States Parties which do not make extradition conditional on the existence of a treaty shall recognize such offences as extraditable offences between themselves under the conditions laid down by the law of the requested
. Between States Parties, such offences shall be considered for the purposes of extradition as having been committed not only in the place of their commission, but also in the territory under the jurisdiction of the States required to establish their jurisdiction in Section 4.
5. If an extradition request is made on the grounds of an offence referred to in article 3, paragraph 1, and the requested State does not extradite or wish to extradite, on the grounds of the nationality of the offender, that State shall take the measures For prosecution.

Article 6

1. States Parties shall afford the widest possible support for any investigation, criminal procedure or extradition procedure relating to the offences referred to in article 3, paragraph 1, including for the purposes of obtaining evidence
States Parties shall fulfil their obligations under paragraph 1 of this article in accordance with any treaty or mutual legal assistance agreement that may exist between them. In the absence of such a treaty or agreement, the States Parties shall accord themselves such assistance in accordance with their domestic law.

Article 7

Subject to the provisions of their domestic law, States Parties:
(a) Take appropriate measures to enable seizure and confiscation, as appropriate:
(i) property such as documents, assets and other material used to commit the offences referred to in this Protocol or facilitate the commission thereof;
(ii) the proceeds of such offences;
(b) Give effect to requests for the seizure or confiscation of the goods or products referred to in the paragraph from another State Party;
(c) Take measures To temporarily or permanently close the premises used to commit such offences.

Article 8

1. States Parties shall adopt at all stages of the criminal procedure the measures necessary to protect the rights and interests of the child victims of the practices prohibited by this Protocol, in particular:
(a) Recognizing the Vulnerability of child victims and adapting procedures to take account of their particular needs, including as witnesses;
(b) By keeping child victims informed of their rights, role and scope, The timing and conduct of the proceedings and the decision rendered in their case;
(c) In allowing the views, needs or concerns of child victims to be presented and examined in the course of the proceedings when their Personal interests are at stake, in a manner consistent with the rules of procedure of domestic law;
(d) Providing appropriate assistance to child victims at all stages of court proceedings;
(e) By protecting, where appropriate, The private life and identity of child victims and by taking measures in accordance with domestic law to prevent the dissemination of any information leading to their identification;
(f) Ensuring, where appropriate, that children Victims, as well as their families and witnesses, are safe from intimidation and reprisal;
g) Avoiding undue delay in the adjudication and enforcement of orders or decisions granting compensation Child victims.
2. States Parties shall ensure that uncertainty about the actual age of the victim does not prevent the initiation of criminal investigations, including investigations to determine this
. States Parties shall ensure that, in the manner in which the criminal justice system treats child victims of the offences described in this Protocol, the best interests of the child shall be the primary
. States Parties shall take measures to provide appropriate training, in particular in the legal and psychological fields, to persons caring for the victims of the offences referred to in this
. States Parties shall, where appropriate, ensure the safety and integrity of persons and/or organizations for the prevention and/or protection and rehabilitation of victims of such
. Nothing in this Article shall affect the right of the accused to a fair and impartial trial or is incompatible with that right.

Article 9

1. States Parties shall adopt or reinforce, apply and disseminate laws, administrative measures, policies and social programmes to prevent the offences referred to in this Protocol. Special attention is paid to the protection of children who are particularly exposed to such practices.
2. By information using all appropriate means, education and training, States Parties raise awareness of the Measures to prevent the practices prohibited by this Protocol and the harmful effects thereof. In order to fulfil their obligations under this article, States Parties shall encourage the participation of the community and, in particular, children and child victims, in such information, education and training programmes,
3. States Parties shall take all practicable measures to ensure appropriate assistance to the victims of the offences referred to in this Protocol, including their full social reintegration, and their full recovery Physical and psychological.
4. States Parties shall ensure that all child victims of the offences described in this Protocol have access to procedures enabling them, without discrimination, to claim compensation for the harm suffered by persons legally
5. States Parties shall take appropriate measures to effectively prohibit the production and dissemination of materials which advertise the practices prohibited in this Protocol.

Article 10

1. States Parties shall take all necessary measures to strengthen international cooperation through multilateral, regional and bilateral agreements aimed at preventing, identifying, prosecuting and punishing those responsible for acts related to Sale of children, child prostitution, pornography and paedophile tourism, as well as to investigate such acts. States Parties shall also promote international cooperation and coordination between their authorities, national and international non-governmental organizations and international organizations.
2. States Parties Encourage international cooperation to assist the physical and psychological recovery of child victims, their social reintegration and repatriation.
3. States Parties are committed to strengthening international cooperation to eliminate the main factors, including poverty and underdevelopment, that make children vulnerable to the sale, prostitution, pornography and Paedophile tourism.
4. States Parties in a position to do so shall provide financial, technical or other assistance under existing, multilateral, regional, bilateral or other programmes.

Article 11

None of the provisions of this Protocol shall affect the provisions which are more conducive to the realization of the rights of the child, which may be included:
(a) In the legislation of a State Party;
(b) In international law in force for This state.

Article 12

1. Each State Party shall submit, within two years of the entry into force of this Protocol, a report to the Committee on the Rights of the Child containing detailed information on the measures taken to give effect to the
the submission of its detailed report, each State Party shall include in its reports to the Committee on the Rights of the Child, in accordance with article 44 of the Convention, all new information Concerning the application of this Protocol. The other States Parties to the Protocol report every five years.
3. The Committee on the Rights of the Child may ask the States Parties for further information on the application of this Protocol.

Article 13

1. This Protocol shall be open for signature by any State which is a Party to the Convention or has signed it.
2. This Protocol shall be subject to ratification and shall be open for accession by any State which is a Party to the Convention or which has Signed. Instruments of ratification or accession shall be deposited with the Secretary-General of the United Nations.

Article 14

1. This Protocol shall enter into force three months after the date of the deposit of the tenth instrument of ratification or accession.
2. For each State ratifying or acceding to this Protocol after its entry into force, the Protocol Enter into force one month after the date of the deposit of its instrument of ratification or accession.

Article 15

1. Any State Party may, at any time, denounce this Protocol by written notification addressed to the Secretary-General of the United Nations, who shall inform the other States Parties to the Convention and all States that have signed it. Denunciation shall take effect one year after the date on which the notification has been received by the Secretary-General of the United Nations.
2. Denunciation does not relieve the State Party of its obligations under it The Protocol with regard to any infringement that occurred before the date on which the denunciation takes effect, nor does it impede in any way the continuation of the consideration of any matter before the Committee before that date.

Article 16

1. Any State Party may propose an amendment and file it with the Secretary-General of the United Nations. The Committee shall then communicate the proposed amendment to the States Parties, asking them to inform them whether they are in favour of convening a Conference of the States Parties for the consideration of the proposal and its vote. If, within four months from the date of this communication, at least one third of the States Parties favour the convening of such a conference, the Secretary-General shall convene the conference under the auspices of the Organization The United Nations. Any amendment adopted by a majority of the States Parties present and voting at the Conference shall be submitted to the General Assembly for approval.
2. Any amendment adopted in accordance with the provisions of paragraph 1 of this Article shall enter into Adopted by the General Assembly of the United Nations and accepted by a two-thirds majority of the States Parties.
3. When an amendment enters into force, it shall be binding on the States Parties which have accepted it, the other States Parties remaining bound by the provisions of this Protocol and any previous amendments accepted by them.

Article 17

1. This Protocol, of which the Arabic, Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited in the archives of the United Nations.
2. The Secretary-General of the United Nations shall transmit one Certified copy of this Protocol to all States Parties to the Convention and to all States that have signed it.

Done at Paris, 15 April 2003.

Jacques Chirac

By the President of the Republic:

Prime Minister,

Jean-Pierre Raffarin

The Minister for Foreign Affairs,

Dominique de Villepin

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