New guidelines refer to optional protocol under "Convention on the Rights of the Child" treaty adopted in 1989

This article has been updated with a statement from the Comic Book Legal Defense Fund.

The Office of the United Nations High Commissioner for Human Rights' Committee for the Rights of the Child is currently calling for comments on a new draft for "Guidelines on the implementation of the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography."

The guidelines refer to both the "Convention on the Rights of the Child" (CRC) treaty adopted in 1989 and the "Optional Protocol on the sale of children, child prostitution and child pornography" (OPSC) treaty adopted under the CRC in 2000.

Under article 2 of the original OPSC document, child pornography is defined as "any representation, by whatever means, of a child engaged in real or simulated explicit sexual activities or any representation of the sexual parts of a child for primarily sexual purposes." The new guidelines specify that the phrase "by whatever means" in this definition reflects "a broad range of material" including "visual material such as photographs, movies, drawings and cartoons; audio representations; any digital media representation; live performances; written materials in print or online; and physical objects such as sculptures, toys, or ornaments."

On this point, the Committee refers readers to the "Luxenbourg Guidelines" or the "Terminology Guidelines for the Protection of Children from Sexual Exploitation and Sexual Abuse," which "is an initiative by 18 international partners to harmonise terms and definitions related to child protection." The Luxenbourg Guidelines give the same examples for the range of materials in the definition of child pornography, adding, "There remain significant variations in the national laws of States Parties to the OPSC with regard to the kinds of representations included in the criminalisation of 'child pornography'."

The new Guidelines draft also states that the Committee "urges States parties to prohibit, by law, child sexual abuse material in any form ... including when such material represents realistic representations of non-existing children." (Note: the underlined words were underlined in the guidelines document and are not ANN's added emphasis.)

The Committee added a paragraph regarding "simulated explicit sexual activities," stating regarding realistic or virtual depictions of children engaged in sexual activity, "such depictions contribute to normalising the sexualisation of children and fuels the demand of child sexual abuse material."

Under article 3 of the original OPSC treaty, States party to the agreement must ensure that prohibited acts (or attempts to commit prohibited acts) are criminalized "whether committed domestically or transnationally." The new guidelines draft also specifies that States party to the guidelines must establish criminal jurisdiction over all offenses mentioned in the document, "when they are committed in their territory, including on board of a ship or aircraft registered in their countries, regardless of the location of said ship or aircraft." The guidelines recommend that States should also establish "extraterritorial jurisdiction ... in case offences covered by the OPSC are committed outside its territory."

The Committee stated it invites "all interested parties" to comment on any aspect of the draft guidelines, and the Committee will decide on the contents of final version of the guidelines based on the comments provided. Comments must be in one document in English, Spanish, or French; must point out the paragraphs being commented on; must not be more than five pages in length; and must be submitted as a Word document to [email protected] Comments are due by March 31.

History of CRC and OPSC

The Committee explained in the guidelines draft document that the CRC was adopted in 1989, and the OPSC was adopted in 2000, when communications technologies and the internet were less developed and less ubiquitous. The Committee stated that while both the CRC and OPSC are "fully relevant and applicable also in the digital environment, their provisions require an interpretation adapted to today's realities to ensure that concrete measures taken to implement them are easily adaptable and up to date with current and evolving practices."

121 countries have signed the "Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography" treaty, with 175 countries having ratified the treaty. The United States signed the document on July 5, 2000, and ratified the document on December 23, 2002. Japan signed the document on May 10, 2002, and ratified the document on January 24, 2005.

Japan's Stance on the Definition in OPSC

Tarō Yamada, a former member of the House of Councillors for the Japanese government and current representative for the Protection of Freedom of Expression Association, stated in a Twitter post on February 16 that since the guidelines presented in this draft document are guidelines, they are not legally binding. He added that if the treaty were changed and re-ratified, the National Diet would need to approve those changes.

Yamada also submitted a question to the National Diet in February 2016 about this very issue, asking what the government's position was on treaties it is bound to that include "nonexistent children" in definitions of child pornography. The National Diet answered Yamada's question in March 2016. In the answer, the Diet confirmed that the OPSC and the Convention on Cybercrime are the only international treaties Japan is subject to in regard to child pornography. The government additionally stated that it understands the definition of child pornography in the OPSC to refer to real children only and not to nonexistent children (although the government stated it understands the definition put forth in the Convention on Cybercrime in articles 9.2.b and 9.2.c to mean both the depiction of real and nonexistent children).

The National Diet's response also stated that Japan has no obligation in either treaty to impose restrictions on the depictions of nonexistent children (the Convention of Cybercrime treaty states that countries can choose not to apply the articles that refer to the depiction of nonexistent children).

Update: ANN reached out to the Comic Book Legal Defense Fund (CBLDF) for questions and comments on this story, and the organization did confirm that it is aware of the proposed guidelines and plans to submit comments "addressing concerns regarding expressive content."

The organization also provided the following statement to ANN:

We applaud all efforts to protect children from exploitation and abuse, and think there are many aspects of the new proposed guidelines that could be helpful in achieving those goals. Unfortunately, the proposed guidelines also conflate expressive content with criminal behavior in an unproductive way. Prosecuting expressive content in the ways described in these draft guidelines would ultimately divert law enforcement resources away from protecting actual victims and towards prosecuting readers and distributors of expressive content who are not guilty of any child abuse crimes. Ultimately, these guidelines are not laws, but are intended to influence laws. For countries with strong free expression protections in place, these suggestions will not be impactful. For instance, the First Amendment to the US Constitution would override these guidelines in terms of law in the United States. That said, CBLDF routinely combats initiatives to broaden laws restricting free expression. For instance, we are currently monitoring a set of Florida bills that include provisions to broaden the definition of child pornography to include any visual or textual depiction of minors engaged in sexual activity. These proposed Florida laws are fatally overbroad and would wipe out not just vast swaths of manga, but also a good deal of mainstream prose fiction. CBLDF tackles these sorts of proposed laws with great frequency. Their impact, if passed, would be much more immediate upon the anime and manga community. It's important that members of the international anime and manga community speak up for their rights when guidelines like this materialize, while acknowledging that governments do have a compelling interest in curbing child abuse. It's even more important that we all get involved in supporting the organizations that are protecting free expression in our home countries. Attempts to restrict expressive content are ongoing, and changes are most acutely felt in each local environment. We must be vigilant in protecting our rights wherever we live, while standing together internationally in solidarity to protect the right to free expression.

Update 2: The CBLDF has posted the comments it sent to The Office of the United Nations High Commissioner for Human Rights' Committee for the Rights of the Child on its website regarding the proposed guidelines. The organization also detailed its thoughts on how these guidelines might affect the United States.

Sources: United Nations' Committee on the Rights of the Child's website via Yurukuyaru, My Game News Flash