COMMITTEE ON THE RIGHTS OF THE CHILD REVIEWS REPORTS OF THE UNITED STATES ON CHILDREN IN ARMED CONFLICT AND ON THE SALE OF CHILDREN

The Committee on the Rights of the Child today concluded its consideration of the combined third and fourth periodic report of the United States under the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, and the combined third and fourth periodic report under the Optional Protocol on the sale of children, child prostitution and child pornography.

Theodore Allegra, Chargé d’Affaires, Permanent Mission of the United States to the United Nations Office at Geneva, started by saying that the reports before the Committee documented the legal regimes and policy programmes to combat child exploitation and to protect children from unlawful recruitment or use in armed conflicts.

Richard Visek, Acting Legal Adviser at the United States Department of State, said that a robust system of laws to protect children’s rights, which often served as a model to other States – was in place in the United States, and not having ratified the Convention did not in any way indicate a lack of commitment to protect children.

Susan Coppedge, Ambassador-at-Large to Monitor and Combat Trafficking in Persons, said that Child Protection Compact Partnerships to reduce child trafficking by building effective systems of justice, prevention and protection, had been put in place with Ghana and the Philippines.

Cynthia Coffman, Colorado Attorney General, explained that all states and territories had passed innovative laws aimed at combatting sex and labour trafficking. In Colorado, the law enforcement personnel could use creative investigative means; the ability to listen to and record conversations of traffickers was vital so wiretapping was allowed pursuant to probable cause.

Tara Jones, Policy Adviser, United States Department of Defense, recalled that since 1973, the United States Military had been an all-volunteer force and that through clear rules, training and rigorous oversight mechanisms, the prohibition of entry of any person under the age of 17 into the United States Armed Forces had been successfully implemented.

Alexandra Gelber, National Coordinator for Child Exploitation, Prevention and Interdiction, Department of Justice, said that the second National Strategy for Child Exploitation, Prevention and Interdiction released in 2016 highlighted the emerging threats against children and set forth a response that addressed investigation and prosecution, victim services, outreach and education, and policy and legislation

Jeffrey Rezmovic, Acting Deputy Chief of Staff, Department of Homeland Security, said that last year, over 1,000 cases of human trafficking had been initiated and over 400 victims had been connected to the resources needed for stable and safe recovery.

In the dialogue that ensued on the involvement of children in armed conflict, Committee Experts inquired about the system in place to identify, track and support migrant and refugee children, in particular unaccompanied minors, who had been involved in armed conflict in their country of origin. The delegation was asked to explain how the rights of children detained in places of detention in Afghanistan were protected and how complaints of rights violations were addressed. Experts said that in recent months, the United States had launched counter-terrorist attacks on Yemen, Syria and Afghanistan, and asked about measures undertaken to ensure the safety of children in those locations and the follow-up and support provided to injured children and families of children killed in those attacks.

With regard to the sale of children, child prostitution and child pornography, Experts commended the United States for the progress made in the fight against the trafficking and exploitation of children and remarked that policies and strategies were heavily focused on human trafficking, while other aspects of the phenomenon such as the sale of children for work purposes, organ trafficking, adoption, or the use of children in pornography, were neglected. Experts inquired about prevention strategies geared to avoid the phenomena from occurring in the first place and specific measures to reduce risks for specific categories of children vulnerable to trafficking and exploitation, such as children living in poverty, lesbian, gay, bisexual, transgender and intersex children, and children living in the street. Other issues raised in the discussion involved the sale and trafficking of children for purposes of organ trafficking, sexual tourism, modern forms of slavery and servitude of children, adoption and surrogacy.

In concluding remarks, Mr. Visek said that it was a multi-agency effort to tackle difficult issues. The Committee’s thoughtful questions and feedback were appreciated.

The delegation of the United States included representatives of the Department of State, Department of Homeland Security, Department of Justice, Department of Defense, and the Permanent Mission of United States to the United Nations Office at Geneva.

The Committee will next meet in public on Wednesday, 17 May at 10 a.m., when it is scheduled to start the consideration of the combined third to fifth periodic report of Bhutan under the Convention (CRC/C/BTN/3-5), as well as its initial reports under the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography (CRC/C/OPSC/BTN/1) and under the Optional Protocol on the involvement of children in armed conflict (CRC/C/OPAC/BTN/1).

Reports

The combined third and fourth periodic report of the United States under the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict can be accessed here: CRC/C/OPAC/USA/3-4, and the combined third and fourth periodic report under the Optional Protocol on the sale of children, child prostitution and child pornography here: CRC/C/OPSC/USA/3-4.

Presentation of the Reports

THEODORE ALLEGRA, Chargé d’Affaires, Permanent Mission of the United States to the United Nations Office at Geneva, started by reminding the Committee that the United States had a robust legal framework to protect children from exploitation and said that its reports under the Optional Protocols documented the legal regimes and policy programmes in place to combat child exploitation, and to ensure that children were not unlawfully recruited or used in armed conflict.

RICHARD VISEK, Acting Legal Adviser to the United States Department of State, reiterated the commitment to protecting human rights and fundamental freedoms domestically through the operation of a comprehensive system of laws, policies and programmes at all levels of government – federal, state, local, insular and tribal. The United States valued its engagement with the international human rights community, including civil society. The United States had not ratified the Convention on the Rights of the Child as it had a robust system of laws to protect children’s rights which often served as a model to other States; not having ratified the Convention did not in any way indicate a lack of commitment to protect children.

SUSAN COPPEDGE, Ambassador-at-Large to Monitor and Combat Trafficking in Persons, said that the first United States Advisory Council of Human Trafficking had been appointed in December 2015 as a formal platform for survivors to advise the President’s Interagency Task Force on human trafficking. The Child Protection Compact Partnerships had been initiated to reduce child trafficking by working bilaterally with partner governments to build effective systems of justice, prevention and protection. The first such partnership had been agreed in 2015 with Ghana where the programme had developed standards for child victim identification and screening, a plan to refurbish a children’s shelter, and had removed 68 children from labour trafficking situations. Last month, the second agreement had been signed with the Philippines to increase prevention efforts and protection of children victims of online sexual exploitation and forced labour, and hold the perpetrators accountable.

CYNTHIA COFFMAN, Colorado Attorney General, said that five years ago, the National Association of Attorneys General had formed a Special Committee on Human Trafficking which fostered alliances with partner agencies to eliminate the sale of children and servitude. All states and territories had passed innovative laws aimed at combatting sex and labour trafficking; Colorado’s Attorney General had successfully sponsored legislation allowing law enforcement personnel to use creative means in investigation. The ability to listen to and record conversation was vital and because traffickers operated in the shadows, wiretapping was allowed pursuant to probable cause.

TARA JONES, Policy Adviser, United States Department of Defense, recalled that since 1973, the United States Military had been an all-volunteer force. The United States Army professional recruiters were highly-trained and served as military ambassadors in their community; their demeanour and integrity were of great importance to the government. Through clear rules, training and rigorous oversight mechanisms, the prohibition of entry of any person under the age of 17 into the United States Armed Forces had been successfully implemented. The Department of Defense and each military service had policies in place to ensure that all feasible measures were taken and that no one under the age of 18 engaged directly in hostilities.

ALEXANDRA GELBER, National Coordinator for Child Exploitation Prevention and Interdiction, Department of Justice, said that the second National Strategy for Child Exploitation Prevention and Interdiction released in 2016 highlighted the emerging threats against children and set forth a response that addressed investigation and prosecution, victim services, outreach and education, and policy and legislation. Next month, the Department would host the Child Enforcement Training on Child Exploitation which would be attended by more than 1,300 federal, state, tribal and local law enforcement, prosecutors, digital investigative analysis, and victim service providers. The specialized training would focus on technology-facilitated crimes against children, and best practices for working with victims and for prevention.

JEFFREY REZMOVIC, Acting Deputy Chief of Staff, Department of Homeland Security, reminded the Committee that the mission of the Department was a simple one: to safeguard the American people, their homeland and their values. Combatting the exploitation of children was a key aspect in implementing this mission, whether it was at an airport, along the land or maritime borders, in the aftermath of a disaster, in the administration of the immigration system, or online. Last year alone, over 1,000 cases of human trafficking had been initiated and over 400 victims had been connected to the resources needed for stable and safe recovery. The Department worked closely with communities, participated in 91 human trafficking task forces across the country, and adopted a victim-centred approach to combatting human trafficking.

Consideration of the Report under the Optional Protocol on the Involvement of Children in Armed Conflict

Questions from the Country Rapporteurs

AMAL ALDOSERI, Committee Expert and Rapporteur for the Optional Protocol on the involvement of children in armed conflict, asked the delegation to explain the report preparation process and to inform on the progress achieved in establishing a national human rights institution that would receive complaints from children.

How was the Optional Protocol on the involvement of children in armed conflict disseminated in the country, including to army recruits? How did the United States make sure that recruits and their parents or guardians fully understood the provisions of the Optional Protocol? Could parents or guardians annul the application of their children for army recruitment?

What system was in place to track all children who entered the United States and who might have been involved in armed conflict in their counties of origin - including unaccompanied children - and what support was being provided to those children?

A good percentage of recruits were 17 years old, which was not in violation of the Optional Protocol, but in order to provide the maximum level of protection to children, would the United States consider raising the age of recruitment to 18 years, as the Committee had already recommended in its previous concluding observations?

Currently, Army recruiters could access personal data of children above the age of 17 in high schools without specific consent of the parents. Would the United States legally protect personal data of all children and only allow access to recruiters with specific permission from the parents?

Who was in charge of monitoring the National Cadet Academy, which was a private institution that controlled the content of education, and ensure that they were in line with the law and the Optional Protocol and not in violation of children’s rights?

What recovery and rehabilitation programmes were available for those released from Guantanamo Bay prison or to those transferred to other prisons?

How did the United States ensure the rights of Afghani’s children detained in Afghani’s places of detention and how were all complaints of rights violations being dealt with?

In recent months, the United States had launched counter-terrorist attacks on Yemen, Syria and Afghanistan. What measures were being taken to ensure the safety of the children in those locations? How many children had been injured in the attacks? What follow up was being provided to the reports of killed or injured children?

BENYAM MEZMUR, Committee Expert and Co-Rapporteur for the United States, asked the delegation to explain the nuances concerning the restrictive definition of “participation in hostilities”.

What were the reasons explaining the low age of recruitment, which in the United States was set at 17 years of age?

With regard to the Child Soldiers Accountability Act, which was mainly geared to holding people accountable for child recruitment outside of the United States territory, Mr. Mezmur inquired about limitations to the implementation of the law, particularly in countries where birth data was lacking.

Mr. Mezmur raised concern that the application of Presidential waivers – for example in matters of arms sales -might lead to the violation of the obligations under the Optional Protocol in countries such as Iraq, Yemen, Afghanistan and others. The delegation was asked to provide concrete examples where presidential waivers had been used as diplomatic tools to ensure the implementation of the child soldiers accountability act.

Responses by the Delegation

Responding to the questions and comments, the delegation said that the United States had signed the Convention on the Rights of the Child in 1995 but had not ratified it for a number of reasons, including that it raised important questions of federalism. There were no plans for its ratification at the moment.

With regard to the definition of “direct hostilities”, the delegation said that it did not include indirect participation in hostilities, such as intelligence gathering. Private security contractors employed by the United States abroad were subject to prosecution under the extraterritorial military jurisdiction when they operated under the mandate of the Department of Defense or in support of the mission of the Department. Otherwise, various criminal laws would apply but the question of criminal jurisdiction was a complex issue.

A delegate explained how the reports were prepared, saying that the process had involved consultations with a large number of governmental agencies, as well as with civil society.

There was no national human rights institution in the United States, but there was a robust law protection mechanism on each level, including the local level, through which compliance with the Optional Protocol was ensured and complaints could be filed.

Most of the dissemination of the Optional Protocol happened at the state and local levels, but there were federal initiatives to further human rights and civic education throughout the country. Many schools and programmes at state and local levels included human rights in their curricula and the United States made efforts to disseminate the information about international treaties at state and local levels.

The child soldier prevention act was consistent with the Optional Protocol, but it was not required by the Optional Protocol as it related to issues of child protection and child soldiers overseas. The Government tried to connect the use of the Presidential waivers with the implementation of this law, for example in the Democratic Republic of the Congo or in Chad where the Governments had put in place effective plans to eliminate the use of child soldiers under pressure from the United States. Also in Somalia and Nigeria, the assistance provided was attached to the measures by the Government to eliminate the use of child soldiers.

With regard to the ability of the Government to identify unaccompanied children who might have been involved in armed conflict in their country of origin, the delegation said that once a child appeared at the United States border, there was a shared responsibility between the Departments of Homeland, Defense, and Human Health and Human Services to provide the child with the support needed as set forth by the Flores Settlement Agreement, which provided for the care and custody of unaccompanied children. Each child was interviewed individually, during which the officials sought to establish their special needs, including on the basis of their participation in armed conflict. Migration and border control officers were regularly trained in the identification of vulnerable children.

Individuals engaging in armed resistance were generally barred from entry to the United States, and this applied to both voluntary and involuntary actions in this context, but state officials had the power to exempt individuals from this provision; as of late 2016, more than 22,000 such exemptions had been granted after detailed security checks had been conducted.

Prosecution for conduct overseas was always a challenging issue, especially if it involved extradition: the American system required the accused to be present in court and no prosecution could be undertake in absentia. Another challenge was that of witnesses: according to the law, witnesses had to give their testimony in person and the United States did not have a system to compel foreign individuals to come to the United States and testify.

The United States Department of Defense had a very serious understanding of the Optional Protocol on the involvement of children in armed conflict and its own obligations arising from it.

Each military recruiter was fully trained in the provisions of the laws on trafficking in persons and the child soldier prevention act. Each 17-year-old who entered into service was fully briefed on the terms of the contract signed with the United States Government; parents were also fully informed of all terms and conditions. Parents could also put a stop to the recruitment until the child reached the age of majority.

The delegation explained the different stages of the military recruitment process, noting that military recruiters had to shift through large amounts of data and interview many individuals before identifying one who qualified for service; the speaker stressed that the first question in the interview was about the age of the applicant. There had been no reports about children under the age of 17 being recruited in the military service. The rigorous training given to military recruiters combined with the careful oversight system ensured that the quotas that each recruiter had to meet did not lead to violations of laws.

Parental opt-out was a system in place which allowed parents not to share their children personal data; at the beginning of a school year, parents would receive documentation with opt-out forms which they then filled in as deemed fit.

The delegation explained the purposes and aims of the Junior Reserve Officer Training Corps (JROTC) programme which was implemented in some 36,000 high schools in the country. The programme taught personal integrity, encouraged young people to graduate high school and informed the student body of opportunities in the military.

The United States had no desire to detain juveniles longer than necessary in the context of armed conflict; when juveniles recruited by armed groups to fight the United States were detained, tremendous efforts were taken to promote their recovery and reintegration, and to provide them with medical, psychological, educational and other services. In Iraq, for example, there were cases in which children in detention were actually able to complete their education and obtain high school graduation diplomas.

The United States assisted the Government of Afghanistan, including through building capacity and sharing best practices in law enforcement. The Afghan Government was encouraged to consider the special needs of detainees under the age of 18.

The United States military took seriously the commitment to mitigate the risk of civilian casualties in armed conflict and to ensure that all military operations complied with the law on armed conflict. The United States was steadfastly committed to the protection of civilians and the humanitarian principles. No country went through the lengths that the United States went through to mitigate civilian casualties of conflict. The Presidential Order of January 2016 specified the robust process in the conduct of military strikes, which started from the legal assessment of the legality and proportionality of the attack and the military assessment of the application of the principles of humanity and distinction.

In the case of civilian casualties, condolence payments to the local population were paid; credible reports of civilian casualties were investigated and if any criminal wrongdoings were suspected, a separate criminal investigation would be undertaken by the entities within the Department of Defense to ensure accountability.

Follow-up Questions and Responses

In a series of follow-up questions, Committee experts stressed the importance of prohibiting in the law the recruitment of children under the age of 18 and asked whether the United States laws contained such a provision. They also asked the delegation to explain the support offered to migrant children who had been forcibly recruited in their country of origin, for example children from the Democratic Republic of the Congo or Colombia.

The delegation said that the current criminal statute applied to children under the age of 15 and the recruitment of children between ages 15 and 18 was lawful with parental consent. It would not be possible to prosecute in the United States a person who recruited children between the ages of 15 and 18 into armed groups abroad. In terms of the interpretation of article 4 of the Optional Protocol, a delegate explained that “armed groups” was meant to be non-governmental armed groups, particularly those involved in non-international conflicts.

It was true that Presidential waivers under the child soldiers protection act were used to enable the United States to provide training and assistance to armed forces in countries where the recruitment of children into armed groups was practiced. The United States did not want to preclude its intervention to professionalize armed forces, but also for other purposes, for example, it did not want to preclude its assistance to the Iraqi armed forces in the context of the fight against ISIS because of the issue of child soldiers.

Another Expert said, concerning the statement by the delegation that there were no armed groups in the United States, that the Committee had reports about the existence of militias in the United States which taught children how to use weapons.

The delegation responded that armed groups, as defined by the Optional Protocol, were prohibited by the law and their activities were criminalized; forced recruitment of children under the age of 15 was also criminalized. The United States was a vast country with more than 300 million people who were proud of speaking their mind.

Afghanistan was a sovereign nation and the United States was there at the request of the Government, but the Afghan Government was responsible for its own conduct. That said, there was a mechanism in place – diplomatic or military - to raise issues about practices, allegations, or credible information about violations. Furthermore, Afghanistan had a relationship with the International Committee of the Red Cross which had the mandate to visit individuals in detention.

There was no intention to raise the age of recruitment to 18 years, simply because students graduated high school between the ages of 17 and 18 and those that did not go on to college, needed to be provided with employment opportunities.

Consideration of Report under the Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography

Questions from the Country Rapporteurs

JORGE CARDONA, Committee Expert and Co-Rapporteur for the United States, commended the United States for the progress made in the fight against the trafficking and exploitation of children but remarked that the system in place to combat the phenomenon was fragmented. The lack of complete and disaggregated data hampered the adoption of a comprehensive policy and the agreement on definitions and terms used by various agencies.

Mr. Cardona noted with concern that the policies and strategies in place in the United States were heavily focused on human trafficking, while other aspects of the phenomenon which were prohibited by the Optional Protocol, such as sale of children for work purposes, organ trafficking, adoption, or the use of children in pornography, were neglected. Could the delegation explain how it addressed those phenomena in awareness raising, training and specific prevention and suppression measures? What concrete measures were being taken to reduce demand in those areas?

Were investments made in addressing trafficking in, and sale and exploitation of children effective, and how was their effectiveness assessed?

What measures were being taken to ensure that all children, including immigration children, had access to a lawyer?

Turning to prevention, Mr. Cardona inquired about primary and secondary prevention, before children became victims, noting that children living in poverty were extremely vulnerable to trafficking and exploitation. What risk reduction measures were in place for children and youth with particular vulnerabilities, such as lesbian, gay, bisexual, transgender and intersex children or children living in the street?

The Committee was deeply concerned that the Senate did not approve the law on the suppression of organ trafficking – what measures were being taken to prevent trafficking in human organs?

Sex tourism was one of the priorities in the United States, but efforts at prevention were lacking – could the delegation inform about what was being done in this regard, including training in the Optional Protocol on the sale of children, child prostitution and child pornography?

Another issue of concern was adoption and the fact that payments were involved in the adoption process: what was the purpose of those payments and were biological parents paid? What system was in place governing surrogacy, and adoption by persons from abroad?

HATEM KOUTRANE, Committee Expert and Co-Rapporteur for the United States, congratulated the United States for the progress achieved, including in establishing an institutional framework, adopting national plans and strategies, and adopting new laws such as the 2015 law on the rights of victims of trafficking.

The United States was focused on human trafficking and not so much on the sale of children, remarked Mr. Koutrane and noted that the legal framework used rather restrictive definitions, while the provisions of the Optional Protocol were interpreted differently by different federal states.

What measures were being taken to ensure that the definition of the sale of children, which was similar but not identical to trafficking in persons, conformed to the way it was defined by the Optional Protocol?

What was being done to prevent the sale of children for labour exploitation and to define and prohibit modern forms of slavery and servitude of children?

The definition of child pornography did not conform to the Optional Protocol – what was being done in this regard and what steps were being taken to decriminalize child prostitution?

Turning to trafficking in organs, Mr. Kotrane said that the act was included in several criminal laws but the sale of organs and sale of children for purposes of organ trafficking was not specifically criminalized.

The delegation was asked to explain the system in place to provide all children victims of infractions under the Optional Protocol with necessary rehabilitation and reintegration services. What was being done to guarantee that all such children, regardless of their consent, were considered victims of crimes?

Could the delegation inform the Committee on the options available to punish an American citizen who committed a crime under the Optional Protocol abroad? Was the Optional Protocol a sufficient basis for extradition?

Responses by the Delegation

The delegation explained the federalist system in the United States, noting that the federal Constitution and federal statutes provided the framework for the protection of human rights throughout the country and said that states were free to offer their citizens even greater protections. The majority of criminal laws, including offences related to human trafficking and the sale of children, were established by states’ legislation, enforced by states’ law enforcement and adjudicated by states’ courts.

The definition of the sale of children was very broad. The federal law defined “child pornography” as any visual representation of sexually explicit conduct involving a minor; non-visual materials, including sounds, could be prosecuted as obscenity under a different law.

Bilateral treaties were required for extradition for violations of the provisions of the Optional Protocol. Extradition would be possible between the United States and another country which was a party to the Optional Protocol even if offences under the Optional Protocol were not listed in the treaty as extraditable offences.

In follow-up questions, a Committee Expert expressed concern about the definition of the sale of children and said that illicit traffic in organs in itself should be of concern on its own and not only whether it involved the sale of children. Trafficking in children was present in the United States, and it was a matter of concern that only one case of trafficking of children for organs had been reported in the last several years.

The delegation responded that the United States federal law provided protection against the sale of human organs for profit. This was not a problem in the United States because the medical industry was heavily regulated and the doctors showed a high degree of ethnics and integrity.

Many states allowed surrogacy and developed their own rules and regulations; surrogacy in principle did not involve issues of sale and exploitation that the Optional Protocol was concerned with. The United States prohibited child buying for purposes of adoption and all adoption providers had to comply with very strict accreditation regulations for both Hague and non-Hague adoptions; the law allowed remittances for purposes of covering reasonable expenses and various pre-natal costs as long as they were not used as a condition for the release of a child.

The United States strongly believed that human trafficking included sale of children for purposes of exploitation and it worked in partnership with non-governmental organizations, communities and the private sector to identify vulnerable categories. Prevention was crucial and the 2016 report on human trafficking focused on continuing challenges in preventing trafficking and how to ensure that those vulnerable to trafficking could have tools and mechanisms to protect themselves from the risk. A lot of education and awareness happened at the state level, but there were also federal-level initiatives, such as the widely-disseminated guide released in 2015 to help schools protect students, identify victims, and help with prosecution.

In terms of preventing sexual tourism, the delegation said that the tourism code of conduct in the United States, also called the child protection code of conduct, was a voluntary set of principles by the travel and tourism industry that was uniquely positioned to identify cases of trafficking and sexual exploitation, identify the victims, and raise awareness among the employees.

With regard to data collection, the delegation recognized the value of having a national database in providing a general picture about human trafficking and the sale and exploitation of children. Such a database was not a precondition for the implementation of policies and strategies and it was not mandated by the Optional Protocol. Within the United States, there were 3,400 judicial criminal district, and this did not include courts in territories, tribal courts, family courts and juvenile courts; feeding data from all those into a national database would be extremely challenging. That said, the United States Government had a number of important data sources, including the National Centre for Missing and Exploited Children which was a veritable data mine able to provide data, information and trends.

In terms of measures to reduce demand, the Department of Justice was very aggressive in bringing cases against customers in child exploitation cases, and there were public awareness raising activities going on at the federal and state levels, which also targeted children. The “For Youth By Youth” initiative had been launched to design materials and tools for public awareness campaigns.

Follow-up Questions and Answers

In their follow-up questions, Committee Experts asked whether the possession of child pornography was criminalized and also inquired about the possibility to prosecute offences under the Optional Protocol even if it was not a crime in the country of the commission of the act.

The delegation said that in each state, the possession of child pornography was illegal. The statute which prohibited child sex tourism allowed for the prosecution of acts in violation of the Optional Protocol and which were not criminal in a country where the act had occurred.

With regard to surrogacy, a Committee Expert noted that this was a rapidly growing phenomena worldwide which raised a number of concerns; one such concern was the fact that it was a purely contract-based transaction: the parties made a pre-birth, or even a pre-conception contract, from which the surrogate mother could not withdraw, and there was no post-birth assessment of the welfare of the child. Was this a problem in the current thinking in the United States and what kind of regulation of the surrogacy process could be envisaged?

The delegation agreed that the surrogacy issue was a complex issue and said that surrogacy in the United States was not considered to involve any of the elements prohibited by the Optional Protocol. Surrogacy was being dealt with at the state level which developed rules governing surrogacy agreements, which touched on issues of marital status of the couple, the age of the couple, the consent, compensation, and a host of other issues. Some states criminalized surrogacy, other banned surrogacy contracts, and states which permitted surrogacy treated it as a family matter. Surrogacy was a complex area which was going to be addressed outside the Optional Protocol.

In terms of the protection of vulnerable populations from trafficking, the delegation said that the “Defending Childhood Policy” initiative had been developed to mitigate the impact of violence on Native American and tribal children, while there were a number of training activities geared toward raising awareness about the vulnerability to human trafficking of Native American populations.

Experts asked how children victims of child pornography could access support services and legal aid, and how the law treated offenders who were children themselves, for example in case of sexting – were they prosecuted?.

The delegation responded by saying that juveniles in principle were never prosecuted in the federal court, so it was the states that prosecuted such juvenile offenders. The momentum in the United States was moving away from prosecuting juveniles for this offence; some states chose the path of decriminalization whereby it was no longer punishable for children to be involved in prostitution, others chose diversion whereby child offenders would first be directed towards child protection services, etc.

There was a US$ 2 million programme which provided services to child victims, who were also entitled to compensation and could seek restitution from the defender for costs incurred by the trauma.

Another delegation explained the role and function of Attorneys General in states and stressed their independence from the executive; there were differences between an Attorney General in one state from that in another, and those differences also explained why the laws and penalties for crimes were different between the states.

The focus in the United States indeed was on tertiary prevention, rather than on primary or secondary prevention, as the culture in the United States was such that it was easier to dedicate resources to reaction and recovery rather than allocating money for education, awareness raising and training. In Colorado, in the search for a primary prevention programme for teen suicide, a Sources of Strength programme had been launched to teach children how to improve relationships and so prevent suicide. In terms of secondary prevention, efforts were being made to strengthen the early identification of victims and to address misconceptions surrounding child trafficking, such as “trafficking does not happen in our communities” or to how victims of trafficking looked like – “it is the foreign-born children, not Americans”. Most victims of trafficking were American citizens.

The “Not Buying It” was a campaign to raise awareness that prostitution was not a victimless crime, that there were many economic and social dimensions to it; “She looked 18” was a public awareness campaign to remind people that the age is in the eye of beholder; and the “Game Plan to Fight Human Trafficking” aimed at raising awareness about trafficking and prostitution before big sporting events.

States worked with vulnerable populations, one of those was the lesbian, gay, bisexual and transgender population and particularly the children among them whose vulnerability was usually increased by the exclusion, stigmatisation and social marginalization they suffered. Colorado had another vulnerable population – the two Native American tribes, one of which was extremely poor and whose youth suffered substance abuse and suicide.

The United States had robust training and awareness programmes for human trafficking and the delegate noted that vulnerabilities that put a person at risk of trafficking were also those that put them at risk of sexual, labour or other forms of exploitation. The Anti-Trafficking Coordination Team Initiative was in place to provide comprehensive advanced training and federal grants for agents and prosecutors on human trafficking cases that featured real-time feedback. The impact of the initiative was very clear: in the first phase of the initiative, there had been a 114 per cent increase in the number of defendants charged with the crime of human trafficking and an 86 per cent increase in the number of convictions.

A delegate explained that every year labour inspections were conducted in order to establish whether employers applied regulations regarding child labour.

On the issue of preventing sex tourism, it was stated that the United States was absolutely committed to identifying those who engaged in such heinous activities. The prosecution of sex offenders was one of the best ways to prevent such acts. The most significant achievement was the 2016 passage of the International Megan’s Law, which provided for giving notifications to foreign countries on offenders’ international travel. Customs and border protection placed posters in all major ports of entry to alert travellers of United States sex tourism prohibitions. Airline employees helped by identifying possible trafficked or abused children.

The United States strongly supported the goals of the International Labour Organization Convention 138, but it was difficult for the United States to ratify it because the country allowed for children to work in agriculture if it was not hazardous and outside of school hours. A strong monitoring mechanism was in place to ensure the compliance of employers with the existing laws.

Further Questions from the Experts

A Committee Expert asked whether the United States informed other countries about the movement of convicted sex offenders when they left the country.

Another Expert noted that the International Labour Organization Convention 138 did not prohibit child labour under 18, but rather under 15. He wanted to know about children exposed to difficult and dangerous work in agriculture.

In terms of international adoptions, a question was asked about dangerous situations that the current practice could lead to, and a clarification was requested. The Expert also asked about vulnerabilities of Native American and lesbian, gay, bisexual and transgender children.

An Expert inquired whether a child victim needed to appear as a witness in court. How did the best interest of the child and the interest of defence combine?

Responses by the Delegation

In response to the issues raised by the Experts, the delegation said that the requirement to inform foreign countries of sex offenders’ travel was strengthened by the International Megan’s Law; offenders needed to inform of their travel 21 days in advance.

The Department of Labour had inspectors who could check on places of work in agriculture.

Every year, thousands of American citizens adopted children from overseas. The Government was obliged to take measures to ensure that such adoptions were conducted in the best interest of the child. The law distinguished between legitimate and illegitimate payments related to international adoption. A petition for adoption had to be denied when prospective parents provided payment to the child’s biological parents or agent outside of prescribed norms. The State Department ran an intra-agency working group dedicated to preventing abuse of the system.

A number of federal agencies were engaged in raising awareness on trafficking, including of vulnerable groups of children. The campaign “Look Beneath the Surface” targeted social workers, vulnerable children and the general public, among others. It had led to an increase in referrals to service providers.

The United States Constitution gave defendants the right to confront witnesses, which was why testifying in person was needed. Some federal measures allowed for testifying through a close-circuit television, but that could lead to the reversal of decisions on appeal, which would lead to the worst possible outcome – the victim needing to testify again. Even if the United States were to eventually ratify the Convention on the Rights of the Child, the Constitution would still have precedence, stressed the delegation.

Concluding Remarks

JORGE CARDONA LLORENS, Committee Expert, encouraged the United States to consider ratifying the Convention.

RICHARD VISEK, Acting Legal Adviser at the Department of State, said that it was a multi-agency effort to tackle difficult issues. The Committee’s thoughtful questions and feedback were appreciated.

RENATE WINTER, Committee Chairperson, stated that the Committee was collecting information from all countries, including on surrogacy, with the view of defining and sharing best practices, which was why the discussion on surrogacy had been so long.



For use of the information media; not an official record

CRC17/016E