A Model Law on Child Protection - International Centre for Missing ...

Expert Panel:
A <strong>Model</strong> <strong>Law</strong> on Child Protection
San José, Costa Rica, June 22-23, 2011
Opening Remarks
Dr. Mohamed Mattar
Senior Professor of <strong>Law</strong> and Executive Director of
The Protection Project at the Johns Hopkins University SAIS
On behalf of The Protection Project at the Johns Hopkins University, I would like to
welcome the distinguished members of this Expert Group Meeting that is designed to
examine, discuss, and debate a <strong>Model</strong> <strong>Law</strong> on Protection of Children from Neglect,
Abuse, Maltreatment, and Exploitation.
And allow me first to extend my very sincere gratitude to the International Centre for
Missing and Exploited Children, especially Sandra Marchenko.
And the idea of a <strong>Model</strong> <strong>Law</strong> is a joined effort between the Centre and the Project. In
2009, the annual meeting of the International Centre for Missing and Exploited
Children took place in Cairo. And the meeting resulted in the Cairo Declaration that
in its first recommendation called upon states to take immediate steps to
“enact new improved legislation and review existing law periodically to ensure
effective redress of any form of exploitation of children.”
And as you all know the Centre has a successful story to tell. A <strong>Model</strong> Legislation that
was enacted on child pornography and a legislative map that is being updated
constantly to examine to what extent do countries have child pornography laws that
criminalize production, distribution, and possession of child pornography.
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The report on the <strong>Model</strong> <strong>Law</strong> in its fifth edition in 2008 concludes that
“combating child pornography at home and abroad is a daunting task and
harmonization of laws is essential in order to effectively address this growing
international phenomenon.”
This is how the idea of a <strong>Model</strong> <strong>Law</strong> on Child Protection was born.
• Implementation of the Cairo Declaration;
• Extension of the good work that is being done on child pornography.
And I am a big believer in model laws, regardless of the area of law they are talking
about.
If you are in the area of trade, investment, and commercial law, there are three main
organizations that work on unification and harmonization of the law.
• The United Nations Commission on International Trade <strong>Law</strong> (UNCITRAL).
One of its most significant accomplishments is the CISG, the Convention on
Contracts for the International Sale of Goods.
Today, there are 76 parties to the Convention.
• The second organization is UNIDROIT, the International Institute for the
Unification of Private <strong>Law</strong>. One of its instrumental works is the UNIDROIT
principles of international commercial contracts, now available in its 3rd
edition, consisting of 211 articles (UNIDROIT Principles 2010).
Today, there are 63 members of UNIDROIT.
• The third organization is HCCH, the Hague Conference on Private <strong>Law</strong>, which
provides standards regarding divorce, child abduction, inter-country adoption
and similar issues of private international law.
Today, there are 72 members of HCCH.
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In the area of human rights, the United Nations just released a <strong>Model</strong> <strong>Law</strong> to Combat
Trafficking in Persons. I was honored to be a member of the expert group who
drafted the law.
The <strong>Model</strong> <strong>Law</strong> includes criminal provisions to prohibit trafficking in persons,
provisions on victims and witness protection, assistance and compensation,
immigration and return, prevention, training, and cooperation.
And in 2007, The Protection Project drafted a <strong>Model</strong> <strong>Law</strong> on Combating Child Sex
Tourism.
This <strong>Model</strong> <strong>Law</strong> provides for:
• the definition and prohibition of “child sex tourism” and “child sex tourism as
a form of trafficking in persons,” establishing “liability of corporate persons,”
and “double criminality” (principle of extraterritoriality);
• preventive measures:
including research into the causes of child sex tourism and the
establishment of initiatives to enhance economic opportunity for victims of
child sex tourism;
• procedural rules:
no statute of limitations, protection of child witnesses, international
cooperation.
And in 2009, I thought about a <strong>Model</strong> <strong>Law</strong> on Combating Violence Against Women,
especially domestic violence and sexual harassment.
The <strong>Model</strong> <strong>Law</strong> consists of the following elements:
• definition, prohibition, and prevention of domestic violence committed against
women;
• rights of the victim:
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to privacy, to be treated with respect and dignity, to get a divorce and live
apart, to be presented and assisted by a lawyer at no charge, to be informed
of all the procedural acts, and to cessation of domestic violence;
• right of the victim and third parties to file a complaint;
• judicial proceedings in domestic violence cases, including procedural rules of
specialized courts;
• protection orders for victims of domestic violence; procedural rules for
application to and issuance of such protection orders and their effects;
• civil claims for damages;
• penalties for committing domestic violence and other violations of the law;
• appeals to decisions of first instance court;
• victims of domestic violence support fund; the sources of money for and the
management of the fund.
Over 100 countries still do not have a comprehensive law on violence against women.
As you all know, CEDAW or the UN Convention on the Elimination of All Forms of
Discrimination against Women, is silent on the issue of violence against women.
And in 1993, the UN adopted a Declaration on Combating Violence against Women.
But I still cannot report to you a success in the area of violence against women as we
had in the area of human trafficking.
Today, 67 countries have a comprehensive anti-trafficking act and 95 countries have a
trafficking criminal provision.
And that brings me to the issue we are gathered today to examine. A <strong>Model</strong> <strong>Law</strong> on
Protection of Children from Exploitation.
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The <strong>Model</strong> <strong>Law</strong> that we would like to discuss with you is currently in its 3rd draft.
The way we work with the <strong>Model</strong> <strong>Law</strong> is to have a set of articles that cover child
protection and run with it in different countries.
The 1st draft of the <strong>Model</strong> <strong>Law</strong> had 45 articles. We discussed it at an Expert Panel in
Singapore from April 28-29, 2010 with 17 child protection experts from governments,
other national child protection authorities, international organizations, and from civil
society organizations, including child protection organizations and universities in
Australia, Cambodia, India, Indonesia, Japan, Malaysia, New Zealand, Philippines,
Singapore, Sri Lanka, Thailand.
The <strong>Model</strong> <strong>Law</strong> was then amended based on these discussions.
For example, an emphasis on the role of the private sector/corporate social
responsibility was added:
Article 1 (2): In order to give effect to this <strong>Law</strong>, all members of society are called
upon to participate in the protection of children. Child protection shall be a primary
objective in all legislative, judicial, and administrative proceedings. The private sector
shall be encouraged to advance the protection of children by developing rules of
corporate social responsibility and voluntary codes of conduct. All efforts aimed at
protecting children shall bear in mind the growing threat of new technologies,
especially the internet, and their potential use to exploit children.
Article 11 (g): The encouragement of private-sector initiatives to prevent child neglect,
abuse, maltreatment, and exploitation, including the enactment of codes of conduct;
And the 2nd Draft was presented in Alexandria, Egypt, on October 19-20, 2010. It
was debated by 37 child protection experts from law faculties at universities, from
legislative divisions, governmental departments, and judicial institutions relating to
child and family protection, and social workers representing Algeria, Bahrain, Egypt,
Iraq, Jordan, Lebanon, Oman, Qatar, Saudi Arabia, Yemen, including 3
representatives from the League of Arab States.
Again, we amended the <strong>Model</strong> <strong>Law</strong> based on the outcomes of these discussions. Here
are three examples:
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1. Establishment of a victim compensation fund (Article 20) and clarification of the
means of enforcement of the child’s right to full compensation which is not subject to
a statute of limitation.
2. Recognition of international law as a source for the interpretation and application
of the <strong>Model</strong> <strong>Law</strong>.
Article 5 – International <strong>Law</strong>.
The protection of children under this <strong>Law</strong> shall at a minimum guarantee all the rights
provided by the Convention of the Rights of the Child and other international
conventions ratified by this State. In case of doubt about the interpretation of this
<strong>Law</strong>, international law can be used as a source of interpretation.
3. Protection of children from exploitation in sporting events
Article 27 (2) (Leisure and Play)
Any forcible or harmful involvement or the misuse of children for political or
religious activities, and any forcible or harmful involvement in social, cultural, and
sporting events and in contests in which the child’s appearance is evaluated shall be
prohibited.
Article 35 (Prohibition of the Abduction, Sale of, and Traffic in Children).
(4) Trafficking in children shall mean the recruitment, transportation, transfer,
harboring or receipt of children… for the purpose of exploitation, including the
following – (i) Purpose of economic exploitation, forced labor, including child
begging, forced participation in sporting events, and slavery as defined in Chapter 6 of
this <strong>Law</strong>…
So, we have 64 provisions, based on the 54 provisions of the CRC, the Rights of the
Child Convention of 1989.
And the good news is that there is an international consensus that children must be
protected.
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Except for the United States and Somalia, every state is a party of the CRC. And the
good news also is that these ratifications are without reservations. There is no place
for Swiss cheese in the area of child protection.
The few reservations that are made are very minor and specific. Of course, Saudi
Arabia always goes for a general reservation stating that any article in the CRC that is
in conflict with the provisions of Islamic law shall not be honored.
And there are only two basic issues that may seem to contradict with Islamic Shari’a.
One is adoption. And Article 20 to my knowledge is the only international provision
that made reference to Islamic Shari’a when it defines child care to include adoption
for its functional equivalent kafalah of Islamic law.
So, Muslim countries made reservations to Article 21.
The other article is Article 14 which allows a child to change his or her religion. And
as you know, if you are a Muslim and you change your religion, you are no good.
So, our idea of a <strong>Model</strong> <strong>Law</strong> is based on consensus. And therefore, I do not see
problems or reservations made by any country when we go and say, here is a <strong>Model</strong>
<strong>Law</strong>, take a look at it and learn from it and amend your law.
And this is important, that every legal system is on the same page: “Protect our
children.”
But the challenge was to decide, what do you mean by child protection, and what are
the elements of a child protection law?
The <strong>Model</strong> <strong>Law</strong> that we drafted has eight main chapters. These are designed to cover
various forms of child abuse, neglect, maltreatment, and exploitation:
• exploitation in the family and community;
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• sexual exploitation;
• economic exploitation;
• exploitation in armed conflict and other situations of emergency;
• and exploitation by the justice system.
The provisions as drafted are based on international standards which are derived from
the CRC and its two Optional Protocols.
In addition, the <strong>Model</strong> <strong>Law</strong> is based on comparative models. Up to now, we studied
111 child protection laws from 65 countries. So, two questions must be addressed at
the outset.
What are these international child protection standards? And what are some of the
best practices from comparative models?
Let us start with the definition of a child:
Article 1 of the CRC.
Article 2 of the ILO 182 Convention on the worst forms of child labor.
Article 3 of the UN Protocol on Trafficking.
The age of criminal liability, the age of marriage, the age of employment and the age
of consent are all problematic.
And the CRC is based on 4 general principles:
• non-discrimination;
• the best interests of the child;
• the right to life and development;
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• the views of the child to be taken into consideration, including his or her right
to be heard in court.
The general principles are agreed upon although in practice and in many countries
existing laws may contradict a general principle.
Let me give you an example of child custody laws. In many countries, they are based
on a mechanical formula. The mother has the first right to a child, up to a certain age,
and then the custody is transferred to the father. Such a rule may be in conflict with
the principle of the best interests of the child.
In many countries, existing laws of marriage discriminate between a male and a
female. The age of marriage is defined differently, therefore raising the question of the
quality of the implementation of the principle of non-discrimination.
And in many countries, existing laws do not afford a child’s testimony the full weight
that it should be given. We are still suffering from a culture of disregard of the views
of the child. And this is reflected in many of our laws.
And in many countries, existing laws are not designed to fulfill the full development
of the child. You can take death penalty as an example of a law that denies a child’s
right to life (in Iran, Yemen, Saudi Arabia, Pakistan).
Let me conclude before the coffee break by inviting all of you to be part of the
drafting process. What we have today is a set of provisions, 64 of them. And I
welcome comments, suggestions, and proposals for amendments, changes, and
improvement.
And hopefully by the end of this two-day expert group meeting, we will improve on
the <strong>Model</strong> <strong>Law</strong>. Then, we will take it to another location. Valencia, Spain, will be our
next stop in July, and another stop will be in the United States. Hopefully, after that
we will feel comfortable to finalize the <strong>Model</strong> <strong>Law</strong> and introduce it to countries that
are in the process of drafting child protection laws.
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Then, we would like to begin to focus on implementation:
1- Identify all countries with draft laws in order to try to influence the legislation.
Send <strong>Model</strong> <strong>Law</strong> (3rd Draft) to all countries who are currently in the process of
drafting child protection laws.
2- Translate final version of Mode <strong>Law</strong> into Arabic, French, Russian, and Spanish.
3- Reach out to child protection committees in countries all over the world and
send them the <strong>Model</strong> <strong>Law</strong>.
4- Expand work to the international level. Send <strong>Model</strong> <strong>Law</strong> to League of Arab
States. Contact the UN Committee on the Rights of the Child - Global Action
Plan.
5- Create a database of court cases involving children’s issues covered by the 64
articles of the <strong>Model</strong> <strong>Law</strong>, including a brief commentary on the cases.
6- Draft Parliamentarian Handbook that guides legislators on drafting and
implementing child protection legislation based on the provisions of the <strong>Model</strong>
<strong>Law</strong>.
7- Hold workshops for NGOs to train them on drafting and submitting shadow
reports to the UN CRC Committee.
8- Publish an overview of the concluding remarks of the UN CRC Committee:
“The Protection Project Report on the Status of Child Protection Legislation
Around the World”
I hope that you can be with us during all these upcoming stages of finalizing the
<strong>Model</strong> <strong>Law</strong> and beginning its implementation.
Thank you.
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