The Office of the United Nations High Commissioner for Human Rights’ Committee for the Rights of the Child published a new version of its “Guidelines on 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” on September 10. The Committee adopted the guidelines on May 31.
The guidelines refer to both the “Convention on the Rights of the Child” (CRC) treaty adopted in 1989 and the “Optional Protocol on the sale of children, child prostitution and child pornography” (OPSC) treaty adopted under the CRC in 2000.
Section V, “Prohibition of the offences covered by the Optional Protocol,” of the new guidelines document includes the following statement:
” The Committee is deeply concerned about the large amount of online and offline material, including drawings and virtual representations, depicting non-existing children or persons appearing to be children involved in sexually explicit conduct, and about the serious effect that such material can have on children’s right to dignity and protection. The Committee encourages States parties to include in their legal provisions regarding child sexual abuse material (child pornography) representations of non-existing children or of persons appearing to be children, in particular when such representations are used as part of a process to sexually exploit children. “
Under article 2 of the original OPSC document, child pornography is defined 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 for primarily sexual purposes.” The new guidelines specify that the phrase “by whatever means” in this definition reflects “the broad range of material available in a variety of media, both online and offline.”
A previous draft of the new guidelines published earlier this year had specified that the phrase “a broad range of material” would include “visual material such as photographs, movies, drawings and cartoons; audio representations; any digital media representation; live performances; written materials in print or online; and physical objects such as sculptures, toys, or ornaments.”
However, the newly published guidelines do not include those specifications.
The new guidelines explain that the phrase “simulated explicit sexual activities” refers to “any material, online or offline, that depicts or otherwise represents a child appearing to engage in sexually explicit conduct.”
Japan’s Response and Comments on Draft Guidelines
The Ministry of Foreign Affairs of Japan (MOFA) posted a response to the new guidelines on September 18. MOFA stated, “It is disappointing that these guidelines were released without the Committee having carried out sufficient discussion among the countries, including our country, that are affected by the Optional Protocol.” The statement also noted that the guidelines are not legally binding for the States party to the OPSC.
The Japanese government did submit comments to the previous draft of the guidelines in March. In the comments, the government stated, “Japan believes that restriction on freedom of expression should be kept to a minimum and that highly careful consideration needs to be given to the scope of child pornography” and advised that some wording be changed in paragraphs about non-existing children.
ANN reached out to the Comic Book Legal Defense Fund (CBLDF) for comment on the new guidelines, but the organization did not respond by press time. The CBLDF confirmed with ANN in April that it would give the Committee for the Rights of the Child comments on the previous draft guidelines “addressing concerns regarding expressive content.” The company later posted those comments publicly.
History of CRC and OPSC
The CRC was adopted in 1989, and the OPSC was adopted in 2000, when communications technologies and the internet were less developed and less ubiquitous. The Committee has stated that while both the CRC and OPSC are “fully relevant and applicable also in the digital environment, their provisions require an interpretation adapted to today’s realities.”
121 countries have signed the “Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography” treaty, with 176 countries having ratified the treaty. The United States signed the document on July 5, 2000, and ratified the document on December 23, 2002. Japan signed the document on May 10, 2002, and ratified the document on January 24, 2005.