Summary: By its resolution 1994/91, the
Commission on Human Rights,
established a working
group to elaborate a draft optional
protocol to the CRC, using the
preliminary draft optional protocol on
involvement of children in armed
conflicts (E/CN.4/1994/91) submitted
by the Committee on the Rights of
the Child.
Economic and Social Council
E/CN.4/1995/96
10 February 1995
COMMISSION ON HUMAN RIGHTS
Fifty-first session
Item 24 of the provisional agenda
RIGHTS OF THE CHILD
Report of the working group on a draft optional protocol to
the Convention on the Rights of the Child on involvement of
children in armed conflicts
Chairman-Rapporteur: Mr. Nils Eliasson (Sweden)
CONTENTS
Paragraphs
Introduction 1 - 2
I. ORGANIZATION OF THE SESSION 3 - 13
A. Opening and duration of the session 3
B. Election of the Chairman-Rapporteur 4
C. Participation 5 - 10
D. Documentation and organization of work 11 -
13
II. GENERAL DISCUSSION 14 - 33
III. PROPOSALS PRESENTED ON THE PRELIMINARY
DRAFT OPTIONAL PROTOCOL 34
A. Preamble 34 - 74
B. Article 1 75 - 87
C. Article 2 88 - 126
D. Article 3 127 - 128
E. Article 4 129 - 132
F. Article 5 133 - 134
G. Article 6 135 - 136
H. Article 7 137 - 138
I. Article 8 139 - 140
J. Article 9 141 - 144
K. Article 10 145 - 146
L. Other proposals 147 - 194
Annex: Draft optional protocol to the Convention on the Rights of
the Child on involvement of children in armed conflicts.
Introduction
1. The Commission on Human Rights, by its resolution 1994/91,
decided to establish an open-ended inter-sessional working
group of the Commission to elaborate, as a matter of priority, a
draft optional protocol to the Convention on the Rights of the
Child, using as one basis for its discussions the preliminary draft
optional protocol on involvement of children in armed conflicts
(E/CN.4/1994/91) submitted by the Committee on the Rights of
the Child.
2. The Economic and Social Council, in its resolution 1994/10,
authorized an open-ended working group to meet for a period of
two weeks prior to the fifty-first session of the Commission on
Human Rights.
I. ORGANIZATION OF THE SESSION
A. Opening and duration of the session
3. The first session of the working group was opened by the
Assistant Secretary-General for Human Rights, who made a
statement. During the session the Working Group held 19
meetings from 31 October to 11 November 1994 and on 9
February 1995.
B. Election of the Chairman-Rapporteur
4. At its 1st meeting, on 31 October 1994, the working group
elected Mr. Nils Eliasson (Sweden) Chairman-Rapporteur.
C. Participation
5. The representatives of the following States members of the
Commission attended the meetings of the working group, which
were open to all members of the Commission: Angola, Austria,
Australia, Brazil, Bulgaria, Canada, Chile, China, Côte d'Ivoire,
Cuba, Cyprus, Ecuador, Finland, France, Germany, India, Italy,
Japan, Kenya, Mexico, Netherlands, Nigeria, Pakistan, Peru,
Poland, Republic of Korea, Romania, Russian Federation, Sri
Lanka, Syrian Arab Republic, Tunisia, United Kingdom of Great
Britain and Northern Ireland, United States of America.
6. The following States, non-members of the Commission, were
represented by observers: Algeria, Argentina, Croatia, Czech
Republic, Denmark, Egypt, El Salvador, Greece, Iraq, New
Zealand, Morocco, Nicaragua, Norway, Philippines, Senegal, South
Africa, Slovakia, Sudan, Sweden, Thailand.
7. The following non-member States of the United Nations were
also represented by observers: Holy See, Switzerland.
8. The following United Nations bodies were represented by
observers: United Nations Children's Fund and the United Nations
High Commissioner for Refugees.
9. The International Committee of the Red Cross was also
represented by observers.
10. The following non-governmental organizations were
represented by observers at the meetings: African Commission
for Health and Human Rights Promoters (CAPSDH), Baha'i
International Community, Defence for Children International,
Friends World Committee for Consultation (Quaker), International
Federation Terre des Hommes, International Fellowship of
Reconciliation, International Save the Children Alliance.
D. Documentation and organization of work
11. The working group had before it the following documents:
E/CN.4/1994/WG.13/1 Provisional agenda
E/CN.4/1994/WG.13/2 and Add.1-3 Report of the Secretary-
General prepared pursuant to paragraph 16 of Commission
resolution 1994/91: comments on the preliminary draft optional
protocol.
E/CN.4/1994/91 Note by the secretariat (containing the
preliminary draft optional protocol prepared by the Committee on
the Rights of the Child).
12. The working group adopted its agenda, as contained in
document E/CN.4/1994/WG.13/1, at its 1st meeting, on 31
October 1994.
13. At the 16th meeting, on 9 November 1994, a statement on
behalf of Ms. Graça Machel, expert appointed pursuant to General
Assembly resolution 48/157 to undertake a study on the impact
of armed conflicts on children, was delivered to the working
group.
II. GENERAL DISCUSSION
14. At its 1st and 2nd meetings, on 31 October 1994, the working
group, at the invitation of the Chairman-Rapporteur, held a
general discussion on various questions relating to the task of
drafting an optional protocol to the Convention on the Rights of
the Child on involvement of children in armed conflicts.
15. It was generally felt that the practice of the use of children as
soldiers should be eradicated and that, as one of the means to
achieve this purpose, the minimum age for recruitment of persons
into armed forces should be raised.
16. Various views were expressed with regard to the mandate of
the working group and the contents of the future optional
protocol.
17. Some participants insisted on the necessity to implement the
principle that the best interests of the child were to be a primary
consideration in all actions concerning children. They declared
their willingness to adopt without delay an optional protocol in
which the minimum age of recruitment should necessarily be set
at 18 years and stressed that it was imperative to set such a
threshold. Some delegations recalled the request which had been
made by the World Conference on Human Rights to the
Committee on the Rights of the Child "to study the question of
raising the minimum age of recruitment into armed forces"
(A/CONF.157/24 (Part I, chap. III, sect. II), para. 50). It was
stated in this connection that the preliminary draft optional
protocol submitted by the Committee on the Rights of the Child
constituted an excellent basis for the work and should not
require prolonged discussion.
18. It was, however, argued by some other participants that
while all efforts should be made to protect children to the
maximum extent from involvement in armed conflicts, the raising
of the age limit for recruitment was not the only way to achieve
this goal. Reference was made by several delegations to their
national legislation allowing, under certain conditions and in
certain circumstances, the recruitment of persons below the age
of 18 years into their armed forces. It was therefore felt that such
national laws would inevitably be in conflict with the provisions of
the protocol if it was to be drafted along the lines proposed by
the Committee on the Rights of the Child. It was also pointed out
that a protocol would not immediately remedy the existing
situation of children in armed conflicts.
19. Other representatives stated that national legislation should
not be presented as an obstacle to the elaboration of new and
more advanced international standards, and that the working
group should concentrate on how to draft the protocol most
expeditiously. The view was also expressed that the working
group should endeavour to draft an instrument which could be
widely adhered to, rather than a specific one which would not
attract many ratifications.
20. Some delegations expressed their concern about the
interrelationship between an optional protocol and some of the
already established principles and norms of international
humanitarian law, and the need for the provisions of the draft
optional protocol to be consistent with those principles and
norms. It was also mentioned in this connection that article 38 of
the Convention on the Rights of the Child, which this working
group was seeking to develop, had been inspired by pertinent
provisions of the 1977 Protocols Additional to the Geneva
Conventions.
21. According to another view, the draft optional protocol was not
in contradiction with international humanitarian law but rather
could supplement the existing instruments in this field. It was
also emphasized that the protocol should be seen as a human
rights instrument and that obligations for States parties should
be clearly spelled out.
22. Other issues raised during the general debate included the
distinction between direct and indirect participation in hostilities,
voluntary versus compulsory recruitment into armed forces,
recruitment of children by rebel groups and other irregular armed
forces, status of children enlisted or admitted into military schools
and some other questions such as admissibility of reservations to
the protocol which were subsequently discussed again by the
working group in connection with its consideration of particular
articles of the draft optional protocol.
23. Thus, with regard to the issue of the distinction between
direct and indirect participation in hostilities, the view was
expressed that in the field there was often very little difference
between these two forms and that the prohibition on
participation should be broadly construed to prevent children
from taking part in hostilities both directly or indirectly. For this
reason, it was felt by some delegations that the draft protocol
should not qualify the participation of children in hostilities.
24. As a large portion of children currently involved in armed
conflicts are not dependent on regular armed forces, but on other
groups and forces, it was generally felt that the prohibition
against recruitment and participation of children in hostilities
should be in relation to both governmental armed forces and
other armed groups, including irregular armed forces, rebel
groups, etc., and that a separate article in the optional protocol
should call for such a prohibition.
25. Some delegates expressed doubts concerning the possibility
of imposing obligations on non-State actors, being non-parties to
the Convention and the Protocol.
26. Many speakers emphasized that while drafting a separate
article on the prohibition against recruitment and participation of
children in hostilities relating to forces other than those of the
State, care should be taken to avoid that armed groups would be
equated with States parties to the Convention on the Rights of
the Child and the proposed protocol. In this respect, it was
underlined that human rights instruments primarily address
States.
27. Several delegations referred to the specific situation and age
limits of children who were admitted as students to various
military schools and similar educational institutions in their
respective countries. It was stated in this connection that the
general prohibition of the recruitment of children below 18 years
of age should not apply to children who are enlisted in or
admitted to such schools or otherwise recruited only for the
purpose of education and military training.
28. The attention of the working group was drawn to different
meanings which the term "recruitment" had in different
languages. Alternative terms proposed for eventual use in the
draft optional protocol
included "conscription", "enlistment", "enrolment" as well
as "admission" and "registration". It was also stressed that a
consistent terminology of human rights and of humanitarian law
was vital in the drafting process in order to avoid
misinterpretation in the future.
29. In addition to the proposed text for an optional protocol by
the Committee on the Rights of the Child, some members of the
working group felt that new articles were needed to address
issues such as the physical and psychological reintegration of
child victims of armed conflicts; conditions of peace and security
as essential prerequisites to protect children; obstacles for the
protection of children in armed conflicts; the need to broaden the
ability of the Committee on the Rights of the Child to seek further
clarification from States Parties in case reliable information is
received on the recruitment or use of children practised in the
territory of a State party.
30. With regard to the proposal for a new article to be inserted
after article 5, many delegations opposed the consideration of
the present text on the grounds that it went beyond the
mandate given by Commission on Human Rights resolution
1994/91 and modified substantive issues, and was thus not in
keeping with article 50 of the Convention. Other delegations
proposed that consideration of the text should be deferred to a
later meeting.
31. One delegation suggested that the envisaged role of the
Committee on the Rights of the Child could be made conditional
on a declaration by each State party concerned, along the lines of
article 41 of the International Covenant on Civil and Political
Rights, that it recognizes the competence of the Committee in
this regard.
32. Some delegations welcoming any effort which could
strengthen the work of the Committee on the Rights of the Child,
strongly supported the proposed new article.
33. Discussion took place concerning the intention of the protocol.
Some delegations expressed the view that it was to strengthen
the rights of the child, while others believed that the rights of the
child are already present in the Convention and that the intention
of the protocol is to strengthen the protection of children and the
implementation of their rights, as proposed by the Committee.
III. PROPOSALS PRESENTED ON THE PRELIMINARY DRAFT
OPTIONAL PROTOCOL
34. At its 2nd meeting, on 31 October 1994, the working group
began its general consideration of the preliminary draft optional
protocol to the Convention on the Rights of the Child on
involvement of children in armed conflicts (E/CN.4/1994/91,
annex) prepared by the Committee on the Rights of the Child,
which was the only draft formally submitted to the working group.
Various proposals relating to the preamble and the operative
part of this document were considered by the working group.
A. Preamble
Title
35. At its 3rd meeting, on 1 November 1994, the Working Group
began its consideration of the title and the preambular part of
the preliminary draft optional protocol and continued to do so at
its 5th meeting, on 2 November 1994 and at its 17th meeting, on
10 November 1994. The title read as follows:
"PRELIMINARY DRAFT OPTIONAL PROTOCOL ON INVOLVEMENT OF
CHILDREN IN ARMED CONFLICTS"
36. At the 5th meeting, on 2 November 1994, it was proposed by
the Chairman-Rapporteur that the title of the draft optional
protocol should include a reference to the Convention on the
Rights of the Child.
37. At the 17th meeting, on 10 November 1994, the Working
Group agreed with the proposal of the Chairman-Rapporteur to
insert, after the words "optional protocol", the words "to the
Convention on the Rights of the Child" in the title of the draft
optional protocol.
First preambular paragraph
38. The first preambular paragraph read as follows:
"Encouraged by the fact that an unprecedented number of States
have to date become parties to the Convention, thereby
demonstrating the widespread commitment that exists to strive
for the promotion and protection of the rights of the child,"
39. At the 5th meeting, on 2 November 1994, following the
suggestion of the delegations of Nigeria, the United States of
America and the Netherlands that the reference to "an
unprecedented number of States" should be replaced by another
wording, the representative of India proposed to replace the
words "the fact that an unprecedented number of States have to
date become parties to" by "the overwhelming support for".
40. The representative of China proposed using the full title of
the Convention on the Rights of the Child.
41. At its 17th meeting, on 10 November 1994, the working group
agreed to the proposal of India and to the proposal of the
Chairman-Rapporteur to delete the word "thereby".
Second preambular paragraph
42. The second preambular paragraph read as follows:
"Reaffirming that the rights of children require special protection
and call for continuous improvement of the situation of children all
over the world, as well as for their development and education in
conditions of peace and security,"
43. At the 17th meeting, on 10 November 1994, the working
group agreed to the proposal of Mexico to replace the words "all
over the world" by "without distinction".
Third preambular paragraph
44. The third preambular paragraph read as follows:
"Considering that to further implement the rights recognized in
the Convention on the Rights of the Child, there is need to
strengthen the protection of children involved in armed conflicts,"
45. At its 5th meeting, on 2 November 1994, the following
proposals were made:
(a) The representatives of New Zealand, El Salvador and the
Netherlands suggested that the word "implement" should be
replaced by "strengthen", and the word "strengthen" be replaced
by the word "augment";
(b) The representative of the Netherlands favoured the deletion
of the word "involved";
(c) The representative of Canada, supported by El Salvador,
proposed to insert the words "in situations of" before "armed
conflicts";
(d) The representative of China proposed to insert the words "in
hostilities" before the words "in armed conflicts";
(e) The representative of the Russian Federation proposed to
replace the words "involved in" by "affected by";
(f) The representative of the Philippines proposed to replace the
words "to strengthen the protection of children involved in armed
conflicts" by "to protect children from involvement in armed
conflicts/hostilities".
46. At its 17th meeting, on 10 November 1994, the following
proposals were made:
(a) The representative of China repeated its earlier proposal (see
para. 45 (d));
(b) With reference to its proposal (see para. 45 (a)), the observer
for Norway proposed to replace the words "in hostilities" by the
words "in hostilities and armed conflicts";
(c) The representative of Australia proposed to delete the
word "involved";
(d) The observer for New Zealand proposed to replace the
word "strengthen" by "increase", while the observer for Norway
proposed to replace this word by "enhance";
(e) The representative of China proposed to replace the
word "involved" by the words "from the involvement";
47. The Working Group then agreed to put in square brackets, as
competing proposals, the words "implement" and "strengthen",
and the words "strengthen" and "increase". The Group also
agreed that the final part of the third preambular paragraph
should read as follows: "... the protection of children from
involvement in armed conflicts".
Fourth preambular paragraph
48. The fourth preambular paragraph read as follows:
"Believing that the involvement in hostilities of persons who have
not attained the age of 18 years is harmful for them physically
and psychologically and affects the full implementation of the
Rights of the Child including the right to life,"
49. At the 3rd meeting, on 2 November 1994, the representative
of the Philippines and the observer for Norway proposed to
delete the fourth preambular paragraph.
50. At the 17th meeting, on 10 November 1994, upon the
proposal of the representative of Australia as well as earlier
proposals, the working group agreed to delete the fourth
preambular paragraph.
Fifth preambular paragraph
51. The fifth preambular paragraph read as follows:
"Noting that article 1 of the Convention recognizes every human
being below the age of 18 years to be a child, unless under the
law applicable to the child, majority is attained earlier,"
52. At its 17th meeting, on 10 November 1994, the
representatives of Japan, France, the Russian Federation and the
observer for New Zealand proposed that the exact wording of
article 1 of the Convention on the Rights of the Child should be
cited if the fifth preambular paragraph was to be retained.
53. The representative of Australia proposed that the fifth
preambular paragraph be deleted.
54. The representative of Cuba proposed to replace "Noting"
by "Reaffirming".
55. The representative of Mexico proposed a new text for this
preambular paragraph, reading as follows:
"Reaffirming that, for the purposes of the present Protocol, a child
means every human being below the age of 18 years unless,
under the law applicable to the child, majority is attained earlier".
56. Upon the proposal of the representatives of Australia and the
Netherlands, the working group agreed to place the text of the
fifth preambular paragraph in square brackets.
Sixth preambular paragraph
57. The sixth preambular paragraph read as follows:
"Recognizing that article 38 of the Convention admits recruitment
of persons into armed forces and their direct participation in
hostilities after the attainment of the age of 15 years,"
58. At the 3rd meeting, on 2 November 1994, the representative
of the Philippines proposed to delete the sixth preambular
paragraph.
59. At the 5th meeting, on 2 November 1994, the observers for
Norway, Sweden, Argentina and the representative of the
Russian Federation proposed to delete the sixth preambular
paragraph.
60. The representative of India proposed to merge the sixth and
seventh preambular paragraphs.
61. At the 17th meeting, on 10 November 1994, following the
proposals of the representative of Australia as well as earlier
proposals, the working group agreed to delete the sixth
preambular paragraph.
Seventh preambular paragraph
62. The seventh preambular paragraph read as follows:
"Taking into account that many States Parties to the Convention
have expressed their determination, including through unilateral
declarations upon signature or ratification, not to recruit into their
armed forces persons below the age of 18 years,"
63. At the 3rd meeting, on 2 November 1994, the representative
of the Philippines proposed to delete the seventh preambular
paragraph.
64. At the 5th meeting, on 2 November 1994, the deletion of the
seventh preambular paragraph was proposed by the
representatives of Mexico and Argentina.
65. At its 17th meeting, on 10 November 1994, the working group
agreed to delete the seventh preambular paragraph.
Eighth preambular paragraph
66. The eighth preambular paragraph read as follows:
"Convinced that an optional protocol to the Convention, raising
the age of possible recruitment of persons into armed forces [and
their direct participation in hostilities] to 18 years, will contribute
effectively to the implementation of the principle that the best
interests of the child are to be a primary consideration in all
actions concerning children, while giving States Parties which find
themselves in a position to do so the possibility to adhere to such
a protocol,"
67. At the 17th meeting, on 10 November 1994, the
representative of Japan proposed to introduce into this
paragraph a formula similar to that proposed by him (para. 94
below) with regard to article 2, which would read as follows: "as
combatants taking a direct part in hostilities".
68. The working group agreed to place the original text of the
eighth preambular paragraph in square brackets.
New preambular paragraphs
69. At the 5th meeting, on 2 November 1994, the representative
of Cuba proposed a new preambular paragraph reading as
follows:
"Convinced that military invasions, foreign occupations, the use
or the threat of the use of force, colonialism, the denial of the
right to development and of the right of peoples to self-
determination constitute the greatest obstacles to the realization
of the rights of the child, in particular for the protection of children
in armed conflicts."
70. The representatives of the United Kingdom, Poland, the
Russian Federation, Germany, India and New Zealand expressed
opposition to this proposal.
71. The working group agreed with the proposal of the Chairman-
Rapporteur to put the proposed new preambular paragraph in
square brackets.
72. At the 11th meeting, on 7 November 1994, the representative
of India proposed a new preambular paragraph reading as
follows:
"Recognizing with grave concern the growing trend towards
recruitment, training and use of children in hostilities by armed
groups."
73. At its 17th meeting, on 10 November 1994, with regard to a
new preambular paragraph proposed by India the representative
of Pakistan proposed to delete the words "by armed groups".
74. A clear majority of speakers expressed support for the
paragraph proposed by India, bearing in mind, however, the
need to continue the consideration of the paragraph in the light
of the drafting of the new article placed after article 2. The
representative of Pakistan explained that the trend was towards
the use of children in all hostilities and not just their recruitment
by armed groups.
B. Article 1
75. At its 2nd meeting, on 31 October 1994, the Working Group
began its consideration of article 1 of the preliminary draft
optional protocol which read as follows:
"States Parties shall take all feasible measures to ensure that
persons who have not attained the age of 18 years do not take
part in hostilities."
76. At the same meeting, the following proposals were submitted
with regard to article 1:
(a) The observer for Sweden proposed to delete the words "take
all feasible measures to";
(b) The representative of Japan proposed to insert the words "a
direct" before the words "part in hostilities";
(c) The observer for the Friends World Committee for
Consultation (Quakers) made the following suggestions:
(i) The present article 1 should become paragraph 1 of a new
article 3 which, with further modifications, would read as follows:
"1. States Parties to the present Protocol shall take all feasible
and appropriate measures, including legislation, to ensure that
children are neither recruited into armed forces nor allowed to
participate in hostilities".
(ii) A new article 1 would read as follows:
"Children who have not attained the age of 18 shall neither be
recruited into armed forces nor be allowed to take part in
hostilities directly or in the performance of any task or function
that would otherwise qualify the child as a combatant".
77. At the 3rd meeting, on 1 November 1994, the working group
continued its consideration of article 1. The following proposals
were made:
(a) The representative of the United States of America proposed
to insert "[17]" after the words "the age of 18". This proposal
was supported by the representative of Pakistan at the 14th
meeting, on 8 November;
(b) The representative of China proposed to add, at the end of
article 1, the words "in armed conflicts.";
(c) The observer for the International Committee of the Red Cross
proposed an amendment to a new article 1 presented by the
Friends World Committee for Consultation (Quakers) at the 2nd
meeting. The amendment sought to delete all words after the
word "hostilities". Another amendment to this text was proposed
by the representative of Nigeria who suggested that the
words "with the exception of the recruitment of students into
military schools" should be added at the end of the article.
78. The observer for the Friends World Committee for
Consultation (Quakers) accepted the amendment proposed by
the observer for the ICRC on condition that the words "in any
auxiliary capacity" are added at the end of the article after the
word "hostilities".
79. At the 4th and 5th meetings, on 1 and 2 November 1994, the
working group continued its consideration of article 1.
80. The observer for Sweden proposed the following text for
article 1:
"1. Children who have not attained the age of 18 years shall not
[be allowed to] take part in hostilities.
"2. States Parties shall take all feasible measures, including
legislation, to ensure that this prohibition is respected".
81. The representative of Nigeria proposed an amendment to this
text which consisted of adding, at the end of paragraph 1, the
following words:
"directly or in the performance of any task that would qualify the
child as a combatant. This does not include the children that are
in military academies.";
82. The observer for the Friends World Committee for
Consultation (Quakers) proposed a new text for article 1 reading
as follows:
"Every child has the right to be free from participation in armed
forces or hostilities".
83. The representative of Mexico proposed, on behalf of some
members of the Latin American Group, the following new article 1:
"In armed conflicts and without prejudice to international
humanitarian law, States Parties shall take all feasible measures
to ensure that persons who have not attained the age of 18
years do not take part in hostilities, unless under the law
applicable to the child, majority is attained earlier".
84. At the 7th meeting, on 3 November 1994, the working group
continued its consideration of article 1.
85. The representative of Nigeria proposed a new article 1
reading as follows:
"1. Every child has the right to be free from direct participation in
hostilities.
"2. In armed conflict and without prejudice to international
humanitarian law, persons who have not attained the age of 18
years shall not take a direct part in hostilities. In this regard,
State Parties shall take all feasible measures to ensure that
persons who have not attained the age of 18 years do not take a
direct part in hostilities."
86. At the same meeting, the representative of Cuba proposed a
new article 1 which read as follows:
"States Parties shall take all feasible measures to ensure that
persons who have not attained the age of 18 years do not take a
direct part in hostilities, unless under the law applicable an earlier
age is established in accordance with article 38 of the
Convention."
87. At the 9th meeting, on 4 November 1994, the observer for
New Zealand proposed to amend article 1 by inserting the
following phrase between the words "all feasible measures"
and "to ensure": "taking into account the operational
requirements of particular services".
C. Article 2
88. At its 2nd meeting, on 31 October 1994, the Working Group
began its consideration of article 2 of the preliminary draft
optional protocol, which read as follows:
"States Parties shall refrain from recruiting any person who has
not attained the age of 18 years into their armed forces."
89. At the same meeting, the representative of the United States
of America proposed to replace the word "recruiting" by the
words "involuntary induction of".
90. The representative of the Netherlands proposed to replace
the word "recruiting" by the words "compulsory conscription".
91. The representative of the United Kingdom proposed to
replace the word "recruiting" by the word "conscripting".
92. The representative of France proposed to insert the
words "with the exception of the recruitment of students of
military schools" at the end of the article.
93. The representative of Cuba proposed to insert, at the end of
the article, the words "unless, by virtue of the applicable law, he
has attained majority before".
94. The representative of Japan proposed to insert, at the end of
the article, the words "as a combatant that takes direct part in
hostilities."
95. The observer for the Friends World Committee for
Consultation (Quakers) proposed a new article 2 reading as
follows:
"For the purposes of this Protocol,
'recruit' includes both compulsory conscription and voluntary
enlistment or participation;
'armed forces' includes regular and irregular government armed
forces, government paramilitary or civil defence forces, and any
other militia, armed force or group, private or public, operating in
or from a State Party to this Protocol; and
'hostilities' includes all situations of armed conflict, whether the
conflict is international or wholly or partially internal, and
whatever the level of conflict."
96. The representative of Nigeria proposed to amend this text by
inserting, at the end of the first paragraph, the words ", with the
exception of the recruitment of students into military schools;".
97. At the same meeting, the observer for the Quakers proposed
the following new wording for article 2:
"States Parties to the present Protocol shall take all feasible and
appropriate measures, including legislation, to ensure that
children are neither recruited into armed forces nor allowed to
participate in hostilities."
98. At the same meeting, the representative of the United States
of America proposed to insert "/[17]" after the words "the age of
18".
99. At the 5th meeting, on 2 November, the observer for Sweden
proposed the following new wording for article 2:
"Children who have not attained the age of 18 years shall not be
recruited into armed forces for purposes where they could be
obliged to take a direct part in hostilities."
100. At the same meeting, the representative of Mexico proposed
the following new wording for article 2:
"States Parties shall only be able to recruit persons under 18
years of age for educational purposes and for military training."
101. At the 7th meeting, on 3 November, the representative of
Australia proposed the following text:
"States Parties shall refrain from recruiting any person who has
not attained the age of 15 years into their armed forces. Further,
States Parties shall only be able to recruit persons between the
ages of 15 and 18 years of age into their armed forces for
educational purposes and for military training."
102. At the same meeting, the representative of France proposed
the following text:
"Children under the age of 18 shall not be recruited into the
armed forces under circumstances in which they might be obliged
to take part, without their consent, in hostilities."
103. At the same meeting, the representative of Cuba made the
following proposal:
"States Parties shall only be able to recruit persons under the
age of 18 years for educational and training purposes and for
military service in armed forces."
104. At the 8th meeting, on 3 November, the representative of
Australia proposed a possible paragraph 2 of article 2:
"States Parties shall ensure that every child who, of his or her
own free will, chooses to enlist in their armed forces before
reaching the age of 18, does so with the full and informed
consent of his or her parents, legal guardians or other individuals
legally responsible for him or her, and, to this end, shall take all
appropriate legislative and administrative measures."
105. At the 10th meeting, on 4 November, the following
amendments were made with respect to this proposal:
(a) The representative of the United Kingdom proposed to insert
the words ", if appropriate" after the words "legal guardians or";
(b) The representative of Mexico proposed to insert the words "or
institutions" after the words "other individuals";
(c) The observer for the Philippines proposed to insert the
words ", as appropriate." at the end of the paragraph.
106. At the 9th meeting, on 4 November, the observer for
Sweden proposed the following text:
"States Parties shall refrain from conscripting any person who
has not attained the age of 18 years into their armed forces."
107. At the 10th meeting, on 4 November, the representative of
Australia proposed the following new paragraph 3 of article 2:
"States Parties shall refrain from the forced or compulsory
recruitment of any person who has not attained the age of 18
years into their armed forces. This provision shall not preclude
persons subject to compulsory recruitment at the age of 18 from
electing, in conformity with article 2.2, to commence their military
service at an earlier date."
108. The following amendments to this text were proposed:
(a) The representative of the United States proposed to replace
the word "forced" by the word "involuntary";
(b) The representative of the Netherlands proposed to delete the
words "forced or";
(c) The observer for Sweden proposed to replace the
word "forced" by the word "mandatory";
(d) The observer for South Africa proposed to replace the
word "date" by the word "age".
109. During the same meeting, the representative of Cuba
proposed the following new wording for article 2:
"1. States Parties shall take all feasible measures to ensure that
persons who have not attained the age of 18 are not recruited
into their armed forces.
"2. States Parties shall only be able to recruit persons under 18
years of age for educational, training purposes and for regular
programmes of enrolment in armed forces".
110. The representative of Australia proposed the following new
paragraph 1 to article 2:
"States shall refrain from recruiting any person who has not
attained the age of 18 years into their armed forces, except for
educational purposes, military training [or for community service].
In recruiting among those persons who have attained the age of
15 years but have not attained the age of 18 years, States
Parties shall endeavour to give priority to those who are oldest".
111. With reference to this proposal the representative of Poland
proposed to replace the word "recruiting" by the
word "enrolling".
112. During the same meeting, the representative of Nigeria
proposed to replace the words "except for educational purposes"
by the words "except for the purposes of education".
113. The representative of the United Kingdom proposed the
following new wording for paragraphs 1 and 2 of the proposal of
Australia:
"1. States Parties shall ensure that persons who have not
attained the age of 18 years are not subject to compulsory
recruitment into their armed forces.
"2. States Parties may recruit persons on a voluntary basis into
their armed forces who have attained the age of 16 years but
have not attained the age of 18 years for educational purposes
and military training".
114. The representative of Cuba proposed a new paragraph 3 for
article 2:
"For the above-mentioned purposes, States Parties shall not
recruit any person below the age of 16."
115. At the 11th meeting, on 7 November, the representative of
Australia proposed the following new wording for paragraph 3 of
article 2:
"States Parties shall refrain from recruiting any person who has
not attained the age of 16 years into their armed forces".
116. At the same meeting, the representative of Australia
proposed the following new article 2:
"1. States Parties shall ensure that persons who have not
attained the age of 18 years are not subject to compulsory
recruitment into their armed forces.
"2. States Parties may recruit persons on a voluntary basis into
their armed forces who have attained the age of 16 years but
who have not attained the age of 18 years. States Parties shall
ensure that every child who, of his or her own free will, chooses
to enlist in their armed forces before reaching the age of 18, does
so with the full and informed consent of his or her parents, legal
guardians or, if appropriate, other individuals or institutions
legally responsible for him or her.
"[3. States Parties shall refrain from recruiting any person who
has not attained the age of 16 years into their armed forces.]"
117. The following amendments to this proposal were suggested:
(a) The representative of the United Kingdom proposed to insert
the words "inter alia" after the words "States Parties may";
(b) The representative of Japan proposed to replace the
figure "16" by the figure "15";
(c) The representative of China proposed to delete the words "for
educational purposes and for military training";
(d) The representative of Poland proposed to delete paragraph 2
of article 2.
118. During the same meeting the representative of Poland
proposed the following wording:
"Circumstances described in article 2 (2) may not be interpreted
as a possible derogation from article 1."
119. The representative of Mexico proposed to merge the
proposed paragraphs 1 and 3 as follows:
"States Parties shall ensure that persons who have not attained
the age of 18 years are not subject to compulsory recruitment
into their armed forces and shall refrain from recruiting any
person who has not attained the age of 16 years into their
armed forces."
120. The observer for the Philippines proposed to amend this
proposal by inserting the words "even on a voluntary basis" after
the word "recruiting".
121. The representative of the Russian Federation proposed the
following wording for paragraph 2 of article 2:
"States Parties may, inter alia, recruit persons on a voluntary
basis who have not attained the age of 18 years for educational
purposes and for military training."
122. At the 12th meeting, on 7 November, the representative of
Australia submitted the following new article 2:
"1. States Parties shall ensure that persons who have not
attained the age of 18 years are not subject to compulsory
recruitment into their
armed forces. Further, States Parties shall refrain from recruiting,
even on a voluntary basis, any person who has not attained the
age of 16 years into their armed forces.
"2. States Parties shall ensure that every child who, of his or her
own free will, chooses to enlist in their armed forces before
reaching the age of 18 does so with the full and informed consent
of his or her parents, legal guardians or, if appropriate, other
individuals or institutions legally responsible for him or her.
"[3. States Parties may only recruit persons who have not
attained the age of 18 years into their armed forces for
educational purposes and for military training.]"
123. The following amendments to paragraph 3 of this proposal
were suggested:
(a) The representative of Mexico proposed to replace the
word "may" by the word "shall";
(b) The representatives of Canada and France proposed to place
the word "only" in brackets or to replace it by the words "inter
alia";
(c) The representatives of Germany and the United States
proposed to amend the proposal by inserting the words "inter
alia" after the words "armed forces for";
(d) The representatives of Nigeria and the United States
proposed to delete the brackets around paragraph 3 of article 2.
124. During the same meeting the representative of Nigeria
proposed the following new paragraph 3 of article 2:
"States Parties shall ensure that persons who are above 15
years of age, but who have not attained the age of 18 years may
be recruited into the armed forces purely for educational
purposes and for military training, in keeping with the wishes of
their parents, or in the absence of parents, of those responsible
for their care."
125. During the same meeting the representative of China
proposed the following new paragraph 3 of article 2:
"Persons who have not attained the age of 18 years may receive
military training, as appropriate, in accordance with the laws of
their respective countries."
126. At the 18th meeting, on 11 November 1994, the
representative of Japan proposed to put in square brackets the
words "16 years" in paragraph 1 of article 2 as contained in the
annex.
D. Article 3
127. At its 2nd meeting, on 31 October 1994, the Working Group
began its consideration of article 3 of the preliminary draft
optional protocol, which read as follows:
"Nothing in the present Protocol shall be construed so as to
preclude provisions in the law of a State Party or in international
instruments and international humanitarian law which are more
conducive to the realization of the rights of the child."
128. During the session of the working group no formal
amendments were submitted to this article.
E. Article 4
129. At its 2nd meeting, on 31 October 1994, the Working Group
began its consideration of article 4 of the preliminary draft
optional protocol, which read as follows: "No reservation is
admissible to the present Protocol."
130. At the 8th meeting, on 3 November, the representative of
France, supported by the representative of Mexico, proposed to
follow the wording of article 51 (2) of the Convention on the
Rights of the Child.
131. At the 13th meeting, on 8 November, the representative of
Canada proposed to substitute the words "to the" by the
words "to articles ... and ... of".
132. At the same meeting, the representative of Cuba proposed
the following new wording for article 4:
"No reservation incompatible with the object and purpose of the
present Protocol shall be permitted."
F. Article 5
133. At the 2nd meeting, on 31 October, the working group took
up consideration of article 5 of the preliminary draft optional
protocol, which read as follows:
"The States Parties to the present Protocol shall include in the
reports they submit to the Committee on the Rights of the Child,
in accordance with article 44 of the Convention, information on
the measures that they have adopted to give effect to the
present Protocol."
134. During the session of the working group, no formal
amendments to this article were submitted.
G. Article 6
135. At the 2nd meeting, on 31 October 1994, the working group
took up consideration of article 6 of the preliminary draft optional
protocol, which read as follows:
"The provisions of the present Protocol shall apply to the States
Parties instead of article 38, paragraphs 2 and 3, of the
Convention."
136. During the session of the working group, no formal
amendments to this article were submitted.
H. Article 7
137. At the 2nd meeting, on 31 October 1994, the working group
took up consideration of article 7 of the preliminary draft optional
protocol, which read as follows:
"1. The present Protocol is open for signature by any State which
is a party to the Convention or has signed it.
"2. The present Protocol is subject to ratification or open to
accession by any State which has ratified or acceded to the
Convention. Instruments of ratification or accession shall be
deposited with the Secretary-General of the United Nations.
"3. The Secretary-General of the United Nations in his capacity as
the depositary of the Convention and the Protocol shall inform all
States Parties to the Convention and all States which have
signed the Convention of each instrument of ratification or
accession to the Protocol."
138. During the session of the working group, no formal
amendments to this article were submitted.
I. Article 8
139. At the 2nd meeting, on 31 October 1994, the working group
took up consideration of article 8 of the preliminary draft optional
protocol which read as follows:
"1. The present Protocol shall enter into force three months after
the deposit of the tenth instrument of ratification or accession.
"2. For each State ratifying the present Protocol or acceding to it
after its entry into force, the present Protocol shall enter into
force one month after the date of the deposit of its own
instrument of ratification or accession."
140. At the same meeting the representative of the United States
proposed to replace, in paragraph 1, the word "tenth" by the
word "twenty-fifth".
J. Article 9
141. At the 2nd meeting, on 31 October 1994, the working group
took up consideration of article 9 of the preliminary draft optional
protocol, which read as follows:
"Any State Party may denounce the present Protocol at any time
by written notification to the Secretary-General of the United
Nations, who shall thereafter inform the other States Parties to
the Convention and all States which have signed the Convention.
Denunciation shall take effect one year after the date of receipt
of the notification by the Secretary-General of the United
Nations."
142. At the same meeting, the observer for the ICRC proposed to
insert, at the end of the paragraph, the following text: "If,
however, on the expiry of that year the denouncing Party is
engaged in one of the situations referred to in article 1, the
denunciation shall not take effect before the end of the armed
conflict."
143. At the 13th meeting, on 8 November 1994, the
representative of Australia proposed to substitute the text as
proposed by the ICRC by the following text and to add a new
paragraph 2 to article 9:
"If, however, on the expiry of that year the denouncing State
Party is engaged in armed conflict, the denunciation shall not
take effect before the end of the armed conflict.
"2. Such a denunciation shall not have the effect of releasing the
State Party from its obligations under this Protocol in regard to
any act which occurs prior to the date at which the denunciation
becomes effective. Nor shall such denunciation prejudice in any
way the continued consideration of any matter which is already
under consideration by the Committee prior to the date at which
the denunciation becomes effective."
144. At the 16th meeting, on 9 November 1994, the
representative of Finland proposed to insert the words "on the
Rights of the Child" after the word "Committee" with respect to
the text as proposed by the representative of Australia.
K. Article 10
145. At the 2nd meeting, on 31 October 1994, the working group
took up consideration of article 10 of the preliminary draft
optional protocol which read as follows:
"1. The present 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 together with the
Convention on the Rights of the Child.
"2. The Secretary-General of the United Nations shall transmit
certified copies of this Protocol to all States Parties to the
Convention and all States which have signed the Convention."
146. During the session of the working group, no formal
amendments to this article were submitted.
L. Other proposals
New article
147. At the 2nd meeting, on 31 October 1994, the representative
of Cuba proposed the following new article:
"States parties shall take all necessary measures for the physical
and psychological rehabilitation and social reintegration of any
child who is a victim of armed conflict, especially measures
designed to guarantee medical care and adequate nutrition."
148. At the 11th meeting, on 7 November 1994, the following
amendments were proposed with reference to the proposed new
article:
(a) The representative of Australia proposed to include the
words "to promote" after the words "measures";
(b) The observer for Sweden proposed to include the words "or is
involved in" after the words "child who is a victim of";
(c) The observer for El Salvador proposed to put a full stop after
the words "armed conflict". She also proposed to draft a new
paragraph on the significance of international cooperation.
149. The inclusion of this new article was opposed by the
representative of Canada.
150. At the 16th meeting, on 9 November 1994, the
representative of Nigeria proposed to insert the words "inter
alia" before the words "medical care and adequate nutrition".
151. At the same meeting, the representative of Cuba proposed
the following paragraph 2 to this new article:
"2. For the purposes contained in this article, international
cooperation should be strengthened."
New article
152. At the 3rd meeting, on 1 November 1994, the representative
of Cuba proposed the following new article:
"Conditions of peace and security based on unconditional respect
of the purposes and principles contained in the Charter of the
United Nations are an indispensable prerequisite for the
protection of the child."
153. At the 16th meeting, on 9 November 1994, the
representatives of Australia, India and Poland and the observer
for Sweden proposed that the idea contained in this paragraph
be reflected in the preambular part.
154. At the same meeting, the representative of Mexico proposed
to insert the words "States Parties shall promote" before the
words "Conditions of peace".
New article
155. At the 8th meeting, on 3 November 1994, the representative
of Australia proposed the following new article 3 to be placed
after article 2 as contained in the preliminary draft optional
protocol:
"[The provisions of articles 1 and 2 of this Protocol shall apply
equally to dissident armed forces or other organized armed
groups [which, under responsible command, exercise such control
over a territory as to enable them to carry out sustained and
concerted military actions].]"
156. At the 11th meeting, on 7 November 1994, the
representative of Australia proposed the following new version of
this article:
"[In the case of an armed conflict not of an international
character involving organized armed groups [under responsible
command], this Protocol shall apply equally to all parties to such a
conflict. The application of this Protocol to such a conflict shall not
affect the legal status of the parties to the conflict or the
territories in question.]"
157. At the same meeting, the representative of Nigeria
proposed the following text:
"1. In the case of irregular armed forces and without prejudice to
articles 1 and 2 above, children who have not attained the age of
18 years shall neither be recruited into irregular (or dissident)
armed forces or groups nor be allowed to take part in hostilities.
"2. States offering safe haven to dissident armed groups shall
ensure the strict observance of paragraph 1 of this Article.
"3. States Parties shall apply effective legal sanctions to persons
committing or ordering to be committed a breach of paragraph 1
of this article."
158. The representative of India proposed to replace paragraph
2 proposed by Nigeria as follows:
"2. States Parties shall take all necessary/feasible measures to
prevent the use of their territory to encourage, instigate,
organize or engage in the perpetration of such activities/for such
activities."
159. At the 12th meeting, on 7 November 1994, the
representative of Nigeria proposed the following revised text:
"1. In the case of armed groups, children who have not attained
the age of 18 years shall neither be recruited nor be allowed to
take part in hostilities.
"2. State Parties shall take all feasible measures to prevent the
use of their territories to encourage, instigate, organize or
engage in the perpetration of such activities.
"3. States Parties shall apply effective legal sanctions to persons
committing or ordering to be committed a breach of paragraph 1
of this article."
160. The representative of Nigeria revised further paragraph 2 of
his revised proposal by adding, at the end of the paragraph, the
words "by armed groups".
161. At the 14th meeting, on 8 November 1994, the observer for
Colombia proposed to amend paragraph 2 of the article proposed
by Nigeria by replacing the words "their territories to encourage,
instigate, organize or engage in the perpetration of such
activities" with the words "children in activities carried out by
armed groups".
162. At the same meeting, the observer for Colombia proposed to
further amend the paragraph by inserting the words "commit
themselves to" between the word "shall" and the word "take".
163. At the 12th meeting, on 7 November 1994, the
representative of Mexico proposed the following text for
paragraph 1 of a new article:
"States Parties shall apply the provisions contained in articles 1
and 2 of the present Protocol to all parties in armed conflicts
regarding the involvement of children, according to applicable
international humanitarian law."
164. At the same meeting, the observer for the ICRC proposed
the following text:
"The duties deriving from articles 1 and 2 must be respected by
armed forces, armed groups and armed units even if they do not
depend from a High Contracting Party.
"Nothing in this Protocol shall be invoked for the purpose of
affecting the sovereignty of a State or the responsibility of the
Government, by all legitimate means, to maintain or re-establish
law and order in the State or to defend the national unity and
territorial integrity of the State."
165. The representative of Australia proposed to amend
paragraph 1 of the article proposed by the ICRC by replacing the
words "depend from a High Contracting Party" with the
words "belong to a State Party".
166. The representative of the Netherlands proposed to further
amend paragraph 1 of the article amended by Australia by
adding, at the beginning of the paragraph, the words "States
Parties shall take all legislative and other measures to ensure
that".
167. At the same meeting, the observer for the Philippines
proposed the following text as paragraph 1 of the article:
"1. Armed dissident groups shall be responsible to the Committee
on the Rights of the Child in their activities which are violative of
the provisions of this Protocol."
168. At the 14th meeting, on 8 November 1994, the
representative of Australia proposed that the second paragraph
proposed by the ICRC (see para. 164 above) be incorporated into
the article proposed by the representative of Nigeria (see para.
157 above) as a new paragraph 2.
169. At the same meeting, the representative of Poland proposed
the following text for the article:
"The States Parties shall ensure to the extent possible, including
through legal measures, that the provisions of articles 1 and 2 of
the present Protocol are respected by other - non-governmental -
armed groups operating within their territories. Non-
governmental armed groups, parties to the armed conflicts or
hostilities shall be responsible for the full observance of the
prohibition indicated/contained in article 1; the provisions of this
article shall not affect the legal status of the non-governmental
parties to the conflict or hostilities."
170. At the same meeting, the representative of Mexico proposed
the following text for paragraph 1 of the article:
"1. All parties in armed conflicts should respect the provisions
contained in articles 1 and 2 of the present Protocol regarding
the involvement of children therein in accordance with applicable
international humanitarian law."
171. At the same meeting, the observer for the Philippines,
supported by the observer for El Salvador, suggested to put a full
stop after the words "involvement of children therein".
172. At the same meeting, the observer for Norway proposed to
amend paragraph 1 of the article proposed anew by Mexico by
either deleting the words after the words "the present Protocol"
or deleting the words "articles 1 and 2 of" and the words after
the words "the present Protocol".
173. At the same meeting, the representative of India proposed
the following text for paragraph 1 of the article:
"1. All parties to any armed conflicts shall neither recruit, train nor
allow the use of children who have not attained the age of 18
years to take part in hostilities."
174. At the same meeting, the representative of China proposed
the following text for paragraph 1 of the article:
"1. Parties to all armed conflicts other than States shall respect
and observe the rule that children who have not attained the age
of 18 years should not be recruited nor allowed to take part in
hostilities."
175. At its 15th meeting, on 9 November 1994, the observer for
Sweden proposed the following text for article 3:
"1. With due respect to the provisions contained in articles 1 and
2, children who have not attained the age of 18 years shall
neither be used in hostilities, nor recruited by any party to an
armed conflict other than a State."
"2. To this end, States Parties shall undertake effective measures
and apply effective legal sanctions."
176. At the same meeting, the representative of Australia
proposed to amend paragraph 2 of the proposal by Sweden, by
replacing the word "effective" with the words "all feasible".
177. The observer for Norway proposed to delete paragraph 2 of
the proposal by Sweden. She also proposed to amend paragraph
1 by replacing "an armed conflict" by "any armed conflict".
178. The observer for the Friends World Committee for
Consultation proposed to add at the end of paragraph 2 of the
proposal by Sweden the words "to prevent the use of their
territories for such purposes".
179. The representative of India proposed to further amend the
amendment proposed by Australia in paragraph 2 of the proposal
by Sweden, by adding, after the words "all feasible measures",
the words "including effective legislative measures and effective
legal sanctions to prevent the use of their territories for this
purpose".
180. The representative of the Netherlands proposed to replace
paragraph 2 by the following text:
"States Parties shall take all feasible measures to ensure the
application of this article".
181. The representatives of Canada and the Netherlands
proposed to replace, in paragraph 1, the word "children" by the
word "persons".
182. The representative of the Netherlands proposed to delete,
in paragraph 1, the words "With due respect to the provisions
contained in articles 1 and 2".
183. The observer for Egypt proposed to delete from paragraph 1
the words "other than a State".
184. The representative of the United Kingdom proposed to
insert, in paragraph 1, after the words "armed conflict" the
words "occurring in the territory (territories) of a State Party
(States Parties)."
185. The representative of Nigeria proposed, in paragraph 1, to
put in square brackets the words "With due respect to the
provisions contained in articles 1 and 2" and the words "other
than a State". In addition, he proposed to put in square brackets
the entire proposal by Sweden as amended.
186. The representative of the United States proposed to replace
the words "With due respect to the provisions contained in
articles 1 and 2" by the words "Except under conditions specified
in articles 1 and 2".
187. At the same meeting, the representative of France proposed
the following text as article 3:
"States Parties shall take all appropriate measures to ensure
that the provisions of the present Protocol are also given effect in
respect of all children, including those involved in armed conflicts
or recruited by non-governmental parties to armed conflicts
taking place on their territories."
188. The observer for Sweden modified her earlier proposal, in
order to take into account most of the comments made, as
follows:
"1. [Children] [Persons] who have not attained the age of 18
years shall [should] neither be used in hostilities, nor recruited by
any party to any armed conflict [other than a State].
"2. States Parties shall take all feasible measures to ensure the
application of this article."
New article
189. At the 8th meeting, on 3 November 1994, the representative
of Poland proposed the following new article:
"1. If the Committee receives reliable information which appears
to it to contain well-founded indications that recruitment of
children, contrary to the provisions of the present Protocol, is
being practised in the territory of a State Party, the Committee
may request the observations of the State Party with regard to
the information concerned.
"2. Taking into account any observations which may have been
submitted by the State Party concerned, as well as any other
relevant information available to it, the Committee may:
(a) Seek further clarification, information or comments from any
source, including where applicable the source(s) of the original
information;
(b) Hold hearings in order to clarify the situation.
"3. The Committee may initiate a confidential inquiry, which may
include a visit of its members (2-3) to the territory of the State
Party concerned:
(a) Such a visit could take place only with the consent/after the
invitation of the State Party concerned;
(b) If an inquiry is made in accordance with the present
paragraph the Committee shall cooperate with the State Party
concerned.
"4. After examining the findings of its inquiry, made in accordance
with paragraph 2 and 3 of this article, the Committee shall
transmit these findings to the State Party concerned together
with any comments or recommendations which seem appropriate
in view of the situation.
"5. All the proceedings of the Committee referred to in
paragraphs 1 to 4 of this article shall be confidential. After such
proceedings have been completed with regard to an inquiry made
in accordance with paragraph 3, the Committee may decide to
include a summary account of the results of the proceedings in its
annual report."
190. At the 12th meeting, on 7 November 1994, the
representative of Australia suggested that the text proposed by
Poland could become a part of article 5 of the draft optional
protocol as submitted by the Committee on the Rights of the
Child.
191. At the 16th meeting, on 9 November 1994, the observer for
Sweden suggested that this new article should be a separate
one rather than combined with article 5.
192. The observer for Sweden also made the following proposals:
(a) In paragraph 1, to insert, after the word "recruitment", the
words "or use of children in hostilities";
(b) In paragraph 3 (a), to replace the words "invitation by" by the
words "consultation with".
193. At the same meeting, the representative of Mexico,
supported by the representative of China, proposed that
paragraphs 1 and 2 of the text as proposed by Poland be
substituted by the wording of article 44 of the Convention on the
Rights of the Child.
194. Because of lack of time, the working group was not in a
position to complete its debate on this new paragraph and
decided that the proposed text should be bracketed in the
annex.
Annex
DRAFT OPTIONAL PROTOCOL TO THE CONVENTION ON THE
RIGHTS OF THE CHILD ON INVOLVEMENT OF CHILDREN IN ARMED
CONFLICTS
The States Parties to the present Protocol,
Encouraged by the overwhelming support for the Convention on
the Rights of the Child, demonstrating the widespread
commitment that exists to strive for the promotion and protection
of the rights of the child,
Reaffirming that the rights of children require special protection
and call for continuous improvement of the situation of children
without distinction, as well as for their development and
education in conditions of peace and security,
Considering that to further [implement] [strengthen] the rights
recognized in the Convention on the Rights of the Child, there is
a need [to strengthen] [to increase] the protection of children
from involvement in armed conflicts,
[Noting that article 1 of the Convention recognizes every human
being below the age of 18 years to be a child, unless under the
law applicable to the child, majority is attained earlier,]
[Convinced that an optional protocol to the Convention, raising
the age of possible recruitment of persons into armed forces [and
their direct participation in hostilities] to 18 years, will contribute
effectively to the implementation of the principle that the best
interests of the child are to be a primary consideration in all
actions concerning children, while giving States Parties which find
themselves in a position to do so the possibility to adhere to such
a protocol],
[Convinced that military invasions, foreign occupations, the use or
the threat of the use of force, colonialism, the denial to the right
to development and of the rights of peoples to self-determination
constitute the greatest obstacles to the realization of the rights
of the child, in particular for the protection of children in armed
conflicts],
Recognizing with grave concern the growing trend towards
recruitment, training and use of children in hostilities by armed
groups,
Have agreed as follows:
Article 1
States Parties shall take all feasible measures to ensure that
persons who have not attained the age of [18] [17] years do not
take [a direct] part in hostilities [in armed conflicts].
OR
[In armed conflicts and without prejudice to international
humanitarian law, States Parties shall take all feasible measures
to ensure that persons who have not attained the age of 18
years do not take part in hostilities, unless under the law
applicable to the child, majority is attained earlier.]
OR
[States Parties shall take all feasible measures to ensure that
persons who have not attained the age of 18 years do not take a
direct part in hostilities, unless under the law applicable an earlier
age is established in accordance with article 38 of the
Convention.]
Article 2
1. States Parties shall ensure that persons who have not
attained the age of 18 years are not subject to compulsory
recruitment into their armed forces. Further, States Parties shall
refrain from recruiting, even on a voluntary basis, any person
who has not attained the age of 16 years into their armed forces.
2. States Parties shall ensure that every child who, of his or her
own free will, chooses to enlist in their armed forces before
reaching the age of 18 years does so with the full and informed
consent of his or her parents, legal guardians or, if appropriate,
other individuals or institutions legally responsible for him or her.
[3. States Parties may [shall] only recruit persons who have not
attained the age of 18 years into their armed forces for
educational purposes and for military training.]
OR
[States Parties shall ensure that persons who are above 15
years of age, but who have not attained the age of 18 years may
be recruited into the armed forces purely for educational
purposes and for military training, in keeping with the wishes of
their parents, or in the absence of parents, of those responsible
for their care.]
OR
[States Parties shall only be able to recruit persons under the
age of 18 years for educational and training purposes and for
military service in armed forces.]
OR
[1. States Parties shall take all feasible measures to ensure that
persons who have not attained the age of 18 are not recruited
into their armed forces.
2. States Parties shall only be able to recruit persons under 18
years of age for educational, training purposes and for regular
programmes of enrolment in armed forces.]
New Article
[1. In the case of armed groups, children who have not attained
the age of 18 years shall neither be recruited nor be allowed to
take part in hostilities.
2. Nothing in this Protocol shall be invoked for the purpose of
affecting the sovereignty of a State or the responsibility of the
Government, by all legitimate means, to maintain or re-establish
law and order in the State or to defend the national unity and
territorial integrity of the State.
3. States Parties shall take all feasible measures to prevent the
use of their territories to encourage, instigate, organize or
engage in the perpetration of such activities.
4. States Parties shall apply legal sanctions to persons
committing or ordering to be committed a breach of paragraph 1
of this article.]
OR
[All parties in armed conflicts should respect the provisions
contained in articles 1 and 2 of the present protocol regarding
the involvement of children therein in accordance with applicable
international humanitarian law.]
OR
[1. [Children] [Persons] who have not attained the age of 18
years [shall] [should] neither be used in hostilities nor recruited
by any party to any armed conflict [other than a State].
2. States Parties shall take all feasible measures to ensure the
application of this article.]
OR
[The States Parties shall ensure to the extent possible, including
throughout legal measures, that the provisions of articles 1 and 2
of the present Protocol are respected by other - non-
governmental - armed groups operating within their territories.
Non-governmental armed groups, parties to the armed conflicts
or hostilities shall be responsible for the full observance of the
prohibition indicated/contained in the article 1; the provisions of
this article shall not affect the legal status of the non-
governmental parties to the conflict or hostilities.]
Article 3
Nothing in the present Protocol shall be construed so as to
preclude provisions in the law of a State Party or in international
instruments and international humanitarian law which are more
conducive to the realization of the rights of the child.
New Article
[1. States Parties shall take all necessary measures for the
physical and psychological rehabilitation and social reintegration
of any child who is a victim of armed conflict, especially measures
designed to guarantee, inter alia, medical care and adequate
nutrition.
2. For the purposes contained in this article, international
cooperation should be strengthened.]
New Article
[Conditions of peace and security based on unconditional respect
of the purposes and principles contained in the Charter of the
United Nations are an indispensable prerequisite for the
protection of the child.]
Article 4
[No reservation is admissible to the present Protocol.]
OR
[No reservation is admissible to articles ... and ... of the present
Protocol.]
OR
[A reservation incompatible with the object and the purpose of
the present Protocol shall not be permitted.]
Article 5
The States Parties to the present Protocol shall include in the
reports they submit to the Committee on the Rights of the Child,
in accordance with article 44 of the Convention, information on
the measures that they have adopted to give effect to the
present Protocol.
New Article
[1. If the Committee receives reliable information which appears
to it to contain well-founded indications that recruitment or use of
children in hostilities, contrary to the provisions of the present
Protocol, is being practised in the territory of a State Party, the
Committee may request the observations of the State Party with
regard to the information concerned.
2. Taking into account any observations which may have been
submitted by the State Party concerned, as well as any other
relevant information available to it, the Committee may:
(a) seek further clarification, information or comments from any
source, including where applicable the source(s) of the original
information;
(b) hold hearings in order to clarify the situation.
3. The Committee may initiate a confidential inquiry, which may
include a visit of its members (2-3) to the territory of the State
Party concerned:
(a) such a visit could take place only with the consent/after the
consultation with the State Party concerned;
(b) if an inquiry is made in accordance with the present
paragraph the Committee shall cooperate with the State Party
concerned.
4. After examining the findings of its inquiry, made in accordance
with paragraph 2 and 3 of this article, the Committee shall
transmit these findings to the State Party concerned together
with any comments or recommendations which seem appropriate
in view of the situation.
5. All the proceedings of the Committee referred to in paragraphs
1 to 4 of this article shall be confidential. After such proceedings
have been completed with regard to an inquiry made in
accordance with paragraph 3, the Committee may decide to
include a summary account of the results of the proceedings in its
annual report.]
Article 6
The provisions of the present Protocol shall apply to the States
Parties instead of article 38, paragraphs 2 and 3, of the
Convention.
Article 7
1. The present Protocol is open for signature by any State which
is a party to the Convention or has signed it.
2. The present Protocol is subject to ratification or open to
accession by any State which has ratified or acceded to the
Convention. Instruments of ratification or accession shall be
deposited with the Secretary-General of the United Nations.
3. The Secretary-General of the United Nations in his capacity as
the depositary of the Convention and the Protocol shall inform all
States Parties to the Convention and all States which have
signed the Convention of each instrument of ratification or
accession to the Protocol.
Article 8
1. The present Protocol shall enter into force three months after
the deposit of the [tenth] [twenty-fifth] instrument of ratification
or accession.
2. For each State ratifying the present Protocol or acceding to it
after its entry into force, the present Protocol shall enter into
force one month after the date of the deposit of its own
instrument of ratification or accession.
Article 9
1. Any State Party may denounce the present Protocol at any
time by written notification to the Secretary-General of the United
Nations, who shall thereafter inform the other States Parties to
the Convention and all States which have signed the Convention.
Denunciation shall take effect one year after the date of receipt
of the notification by the Secretary-General of the United Nations.
If, however on the expiry of that year the denouncing State Party
is engaged in armed conflict, the denunciation shall not take
effect before the end of the armed conflict.
2. Such a denunciation shall not have the effect of releasing the
State Party from its obligations under this Protocol in regard to
any act which occurs prior to the date at which the denunciation
becomes effective. Nor shall a such denunciation prejudice in any
way the continued consideration of any matter which is already
under consideration by the Committee prior to the date at which
the denunciation becomes effective.
Article 10
1. The present 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 together with the
Convention on the Rights of the Child.
2. The Secretary-General of the United Nations shall transmit
certified copies of this Protocol to all States Parties to the
Convention and all States which have signed the Convention.
Owner: Economic and Social Council