International human rights law can provide guidance to State parties on international standards and, accordingly, help them enact adequate laws, notify relevant policies and design necessary programmes to curb violence against children committed through the use of ICT, in line with relevant international best practices.
Convention on the Rights of the Child (CRC), 1989
The CRC, is the most widely ratified international human rights treaty, sets out the civil, political, economic, social and cultural rights of children. Pakistan ratified the Convention in 1990. The Convention protects children from all forms of violence, exploitation, and abuse, and from discrimination of any kind, and ensures that the best interests of the child should be a primary consideration in all matters affecting him or her. Article 34 of the CRC requires States Parties to take all appropriate measures to protect children from all forms of sexual exploitation and abuse, including measures to prevent the exploitative use of children in pornographic performances and materials.
General Comment No. 25 (2021) on Children’s Rights in relation to the Digital Environment
The CRC does not explicitly mention the online protection of children from abuse and exploitation. Therefore, on 24 March 2021, the United Nations Committee on the Rights of the Child adopted General Comment No. 25 on children’s rights in relation to the digital environment. This General Comment supports the assertion that children’s rights apply online as well as offline. The General Comment No. 25 provides guidance on how States Parties should interpret and implement the Convention on the Rights of the Child through legislative, policy and other measures to ensure that States fully comply with their obligations under the Convention on the Rights of the Child. In the context of the digital environment, the GC No. 25 places particular emphasis on the rights to freedom of expression, privacy, and non-discrimination. It also identifies the need for children to have access to digital literacy education and safe online spaces, and the importance of protecting children from OCSEA.
Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography (OPSC), 2000
The OPSC is one of the most important international legally binding instruments containing provisions obliging States Parties to criminalise illegal acts related to child sexual abuse material. Child sexual abuse material (CSAM) is referred to as “child pornography” in Article 2 of the OPSC and 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 (Art. 2 (c))
Article 3 (1) (a) of the OPSC states that each State Party shall ensure that, as a minimum, the acts of producing, distributing, disseminating, importing, exporting, offering, selling, or possessing for the above purposes child pornography (now referred to as CSAM) as defined in Article 2 of the OPSC shall be fully covered under “its criminal or penal law”, whether such offences are committed domestically or transnationally or on an individual or organized basis.
Article 3 (1) (c) of the OPSC requires State Parties to criminalise acts related to child pornography whether committed domestically or transnationally, on an individual or organised basis including producing, distributing, disseminating, importing, exporting, offering, selling child pornography (now referred to as CSAM) or possessing it for the purpose of production, distribution, dissemination, importation, exportation, offer, or sale.
Article 3 (3) of the OPSC obliges State Parties to make such offences punishable by appropriate penalties that take into account their grave nature. Article 3 (4) of the OPSC mandates State Parties to take measures, whether appropriate, to establish liability of legal persons for offences established in its Article 3 (1), subject to the provisions of their national laws and such liability may be criminal, civil, or administrative.
Article 4 (2) of the OPSC stipulates that a State Party may take such measures as may be necessary to establish extraterritorial jurisdiction over the offences referred to in Article 3 (1) in one of the following cases: (a) when the alleged offender is a national of that State or a person who has habitual residence in its territory; or (b) when the victim is a national of that State.
Article 7 (a) of the OPSC states that State Parties shall, subject to the provisions of their national law, take measures to provide for: (i) the confiscation of assets used to commit or facilitate offences under the present protocol; and (ii) the confiscation of proceeds derived from such offences.
Pakistan ratified the OPSC in 2011 and is thus obliged to implement these instruments and report on progress to the UN Committee on the Rights of the Child in Geneva every five years. The first report, due in 2013, was submitted by Pakistan in September 2019. As of December 2023, the Committee has not yet released its concluding observations.
Committee on the Rights of the Child issued Guidelines regarding the Implementation of the OPSC
The Committee on the Rights of the Child has long been concerned that many States Parties are not properly implementing the OPSC and that the Protocol needs to be adapted to cover online exploitation. In response, the Committee released a new set of guidelines in 2019 to provide concrete advice to States on how to effectively protect children from OCSEA. These guidelines take into account various current trends and issues, such as:
- The OPSC guidelines offer suggestions to State parties on how to deal with the increasing number of sexually explicit images/videos produced by children themselves. It is emphasised that children should never be held responsible for the disclosure of these materials.
- The new guidelines emphasise the need for stronger and more effective education programmes to help children access support groups and should include the use of tech-friendly platforms to educate children, parents, school teachers and caregivers about online abuse.
- The guidelines provide recommendations on how states can improve their legal systems to ensure that sexually exploited children are treated as victims and not as criminals.
- These guidelines also highlight the pivotal role that businesses play in combating the sexual abuse and exploitation of children. Banks must work to stop payments, internet service providers should block illegal sites and increase their cooperation with law enforcement, the travel and tourism industry should work to prevent their services from being abused by criminals, to name a few.
- Other issues raised in the guidelines include gender-sensitive victim support programmes, especially for boys, and more attention should be paid to protecting vulnerable groups of children.
An Inter-agency Working Group has produced an Explanatory Report which supplements the Guidelines and provides more detailed information and specific examples of the implementation of certain provisions of the OPSC. The Explanatory Report follows the structure and includes the integral text of the OPSC Guidelines. For each paragraph of the Guidelines, additional information is added regarding the different issues raised, and references are included to international and regional standards linked to the issues covered under the OPSC, the Committee’s relevant General Comments, and recommendations by other similar bodies. The report is detailed and useful for States in establishing sound child protection systems.
Optional Protocol to the Convention on the Rights of the Child on a Communications Procedure
The Optional Protocol on a Communications Procedure (OPCP) recognises that children have the right to appeal to an international mechanism specific to them when national mechanisms are unable to address violations effectively. Pakistan has not ratified this Optional Protocol by Jan 2024.
ILO Convention on the Worst Forms of Child Labour, 1999 (No. 182)
In 1999, the International Labour Organization (ILO) adopted the Convention on the prohibition and immediate action to eliminate the worst forms of child labour. Pakistan ratified this Convention on 11 October, 2001. Articles 1 and 3 (b) of the Worst Forms of Child Labour Convention, 1999 (No. 182) require States Parties to take immediate and effective steps to ensure the prohibition and elimination of the use, procuring, or offering of a child for the production or performance of pornography.
Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children supplementing the United Nations Convention against Transnational Organized Crime
In November 2022, Pakistan has ratified the Protocol to Prevent, Suppress and Punish Trafficking in persons Especially Women and Children, supplementing the UN convention against Transnational Organized Crime (UN Trafficking Protocol) with two reservations. The Protocol establishes the first common international definition of trafficking in persons”. It aims to prevent and combat this crime and facilitate international cooperation against it. The Protocol also highlights the problems associated with trafficking in persons, which often leads to inhumane, degrading and dangerous exploitation of trafficked persons.
ECOSOC Resolution 2011/33
The UN Economic and Social Council issued a resolution entitled “Economic and Social Council Resolution 2011/33 on prevention, protection and international cooperation against the use of new information technologies to abuse and/ or exploit children”. The resolution emphasises that new information and communication technologies and applications are being misused to commit crimes of child sexual abuse and exploitation. Furthermore, the ECOSOC resolution highlights that technological developments have enabled the emergence of crimes such as the production, distribution, or possession of child sexual abuse images, audio or video, exposure of children to harmful content, grooming, harassment, and sexual abuse of children, and cyber-bullying.
Budapest Convention
The Convention on Cybercrime (“Budapest Convention”) is considered to be a comprehensive and coherent intergovernmental instrument on cybercrime and electronic evidence dealing with computer-assisted offences in the area of child pornography. The treaty is open for accession by any country. Pakistan has not adopted the Budapest Convention.
It serves as a guide for all countries developing domestic legislation on cybercrime and as a framework for international cooperation among States Parties to this Convention. Article 9 of the Cybercrime Convention contains provisions that criminalize child pornography offences committed through the use of a computer system, provided that such commission is intentional and unauthorized. The Budapest Convention provides for the criminalization of conduct – ranging from illegal access, data and system interference to computer-related fraud and child pornography, as well as procedural powers to investigate cybercrime and secure electronic evidence related to any crime and for efficient international cooperation.
The Convention is supplemented by a First Additional Protocol on the criminalization of acts of a racist and xenophobic nature committed through computer systems (CETS 189) and a Second Additional Protocol on enhanced international cooperation and disclosure of electronic evidence (CETS 224) which was opened for signature on 12 May 2022.
Lanzarote Convention
The Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse (also known as the Lanzarote Convention) contains provisions on offences related to child pornography (Article 20) and online grooming (Article 23). Lanzarote Convention is open for ratification by Council of Europe member states. Additionally, this Convention is open for accession by non-member States of the Council of Europe.
Rio de Janeiro Pact to Prevent and Stop Sexual Exploitation of Children and Adolescents
The World Congress III against the Sexual Exploitation of Children and Adolescents was held in Rio de Janeiro, Brazil, from 25to 28 November 2008 to review the development and actions taken following the Stockholm Declaration and Agenda for Action (1996) and the Yokohama Global Commitment (2001). A document entitled “Rio de Janeiro Pact to Prevent and Stop Sexual Exploitation of Children and Adolescents” (“Rio de Janeiro Pact”) was produced. Although this document is not an international legally binding instrument, it addresses measures to be taken at national level to prevent, prohibit and criminalize certain forms of sexual exploitation of children and adolescents. A particular focus is on the abuse of children and young people through the Internet and related technologies, including activities related to child sexual abuse material and grooming of children committed through the use of the Internet and new technologies.
Sustainable Development Goals (SDGs)
The 2030 Agenda for Sustainable Development (the 2030 Agenda) is a set of international development goals for the period from 2016 to 2030, adopted at the UN Sustainable Development Summit in September 2015, building on the success of the Millennium Development Goals (MDGs). The Sustainable Development Goals 2016-2030 provide a framework for action by governments in their efforts to protect children from offline and online abuse and exploitation. This global commitment, to which the Government of Pakistan has agreed, provides for the protection of children from all forms of violence under Goal 16.2 and other related goals, i.e. 5.2 and 8.7. This includes abuse, exploitation, trafficking, harmful practices and neglect or negligent treatment.
There are a number of challenges in applying the international human rights framework domestically, particularly in the protection of privacy and the regulation of content, which can lead to inconsistencies in approaches to protecting children online from OCSEA. Regulations for digital service and platform providers are inconsistent and each country applies its own national laws when assessing reported content, which can be easily exploited by perpetrators, and a fragmented regulatory landscape can exacerbate these risks by making it easier for perpetrators to evade detection and prosecution. Additionally, the complexity of cybercrimes, evolving technology and the challenges of international co-operation further complicate the development of enforceable international laws to combat OCSEA.