Commonwealth Numbered Regulations Commonwealth Numbered RegulationsPreamble
The States Parties to this Protocol,
Declaring
that effective action to prevent and combat the smuggling of migrants by land,
sea and air requires a comprehensive international approach, including
cooperation, the exchange of information and other appropriate measures,
including socio-economic measures, at the national, regional and international
levels,
Recalling General Assembly resolution 54/212 of 22 December 1999, in
which the Assembly urged Member States and the United Nations system to
strengthen international cooperation in the area of international migration
and development in order to address the root causes of migration, especially
those related to poverty, and to maximize the benefits of international
migration to those concerned, and encouraged, where relevant, interregional,
regional and subregional mechanisms to continue to address the question of
migration and development,
Convinced of the need to provide migrants with
humane treatment and full protection of their rights,
Taking into account the
fact that, despite work undertaken in other international forums, there is no
universal instrument that addresses all aspects of smuggling of migrants and
other related issues,
Concerned at the significant increase in the activities
of organized criminal groups in smuggling of migrants and other related
criminal activities set forth in this Protocol, which bring great harm to the
States concerned,
Also concerned that the smuggling of migrants can endanger
the lives or security of the migrants involved,
Recalling General Assembly
resolution 53/111 of 9 December 1998, in which the Assembly decided to
establish an open-ended intergovernmental ad hoc committee for the purpose of
elaborating a comprehensive international convention against transnational
organized crime and of discussing the elaboration of, inter alia, an
international instrument addressing illegal trafficking in and transporting of
migrants, including by sea,
Convinced that supplementing the United Nations
Convention against Transnational Organized Crime with an international
instrument against the smuggling of migrants by land, sea and air will be
useful in preventing and combating that crime,
"Have agreed as follows":
I.
General provisions
Article 1
Relation with the United Nations Convention
against Transnational Organized Crime
1. This Protocol supplements the United
Nations Convention against Transnational Organized Crime. It shall be
interpreted together with the Convention.
2. The provisions of the Convention
shall apply, mutatis mutandis, to this Protocol unless otherwise provided
herein.
3. The offences established in accordance with article 6 of this
Protocol shall be regarded as offences established in accordance with the
Convention.
Article 2
Statement of purpose
The purpose of this Protocol is
to prevent and combat the smuggling of migrants, as well as to promote
cooperation among States Parties to that end, while protecting the rights of
smuggled migrants.
Article 3
Use of terms
For the purposes of this
Protocol:
( a ) "Smuggling of migrants" shall mean the procurement, in order
to obtain, directly or indirectly, a financial or other material benefit, of
the illegal entry of a person into a State Party of which the person is not a
national or a permanent resident;
( b ) "Illegal entry" shall mean crossing
borders without complying with the necessary requirements for legal entry into
the receiving State;
( c ) "Fraudulent travel or identity document" shall
mean any travel or identity document:
(i) That has been falsely made or
altered in some material way by anyone other than a person or agency lawfully
authorized to make or issue the travel or identity document on behalf of a
State; or
(ii) That has been improperly issued or obtained through
misrepresentation, corruption or duress or in any other unlawful manner; or
(iii) That is being used by a person other than the rightful holder;
( d )
"Vessel" shall mean any type of water craft, including non-displacement craft
and seaplanes, used or capable of being used as a means of transportation on
water, except a warship, naval auxiliary or other vessel owned or operated by
a Government and used, for the time being, only on government non-commercial
service.
Article 4
Scope of application
This Protocol shall apply, except
as otherwise stated herein, to the prevention, investigation and prosecution
of the offences established in accordance with article 6 of this Protocol,
where the offences are transnational in nature and involve an organized
criminal group, as well as to the protection of the rights of persons who have
been the object of such offences.
Article 5
Criminal liability of migrants
Migrants shall not become liable to criminal prosecution under this Protocol
for the fact of having been the object of conduct set forth in article 6 of
this Protocol.
Article 6
Criminalization
1. Each State Party shall adopt
such legislative and other measures as may be necessary to establish as
criminal offences, when committed intentionally and in order to obtain,
directly or indirectly, a financial or other material benefit:
( a ) The
smuggling of migrants;
( b ) When committed for the purpose of enabling the
smuggling of migrants:
(i) Producing a fraudulent travel or identity
document;
(ii) Procuring, providing or possessing such a document;
( c )
Enabling a person who is not a national or a permanent resident to remain in
the State concerned without complying with the necessary requirements for
legally remaining in the State by the means mentioned in subparagraph ( b ) of
this paragraph or any other illegal means.
2. Each State Party shall also
adopt such legislative and other measures as may be necessary to establish as
criminal offences:
( a ) Subject to the basic concepts of its legal system,
attempting to commit an offence established in accordance with paragraph 1 of
this article;
( b ) Participating as an accomplice in an offence established
in accordance with paragraph 1 ( a ), ( b ) (i) or ( c ) of this article and,
subject to the basic concepts of its legal system, participating as an
accomplice in an offence established in accordance with paragraph 1 ( b ) (ii)
of this article;
( c ) Organizing or directing other persons to commit an
offence established in accordance with paragraph 1 of this article.
3. Each
State Party shall adopt such legislative and other measures as may be
necessary to establish as aggravating circumstances to the offences
established in accordance with paragraph 1 ( a ), ( b ) (i) and ( c ) of this
article and, subject to the basic concepts of its legal system, to the
offences established in accordance with paragraph 2 ( b ) and ( c ) of this
article, circumstances:
( a ) That endanger, or are likely to endanger, the
lives or safety of the migrants concerned; or
( b ) That entail inhuman or
degrading treatment, including for exploitation, of such migrants.
4. Nothing
in this Protocol shall prevent a State Party from taking measures against a
person whose conduct constitutes an offence under its domestic law.
II.
Smuggling of migrants by sea
Article 7
Cooperation
States Parties shall
cooperate to the fullest extent possible to prevent and suppress the smuggling
of migrants by sea, in accordance with the international law of the sea.
Article 8
Measures against the smuggling of migrants by sea
1. A State Party
that has reasonable grounds to suspect that a vessel that is flying its flag
or claiming its registry, that is without nationality or that, though flying a
foreign flag or refusing to show a flag, is in reality of the nationality of
the State Party concerned is engaged in the smuggling of migrants by sea may
request the assistance of other States Parties in suppressing the use of the
vessel for that purpose. The States Parties so requested shall render such
assistance to the extent possible within their means.
2. A State Party that
has reasonable grounds to suspect that a vessel exercising freedom of
navigation in accordance with international law and flying the flag or
displaying the marks of registry of another State Party is engaged in the
smuggling of migrants by sea may so notify the flag State, request
confirmation of registry and, if confirmed, request authorization from the
flag State to take appropriate measures with regard to that vessel. The flag
State may authorize the requesting State, inter alia:
( a ) To board the
vessel;
( b ) To search the vessel; and
( c ) If evidence is found that the
vessel is engaged in the smuggling of migrants by sea, to take appropriate
measures with respect to the vessel and persons and cargo on board, as
authorized by the flag State.
3. A State Party that has taken any measure in
accordance with paragraph 2 of this article shall promptly inform the
flag State concerned of the results of that measure.
4. A State Party shall
respond expeditiously to a request from another State Party to determine
whether a vessel that is claiming its registry or flying its flag is entitled
to do so and to a request for authorization made in accordance with paragraph
2 of this article.
5. A flag State may, consistent with article 7 of this
Protocol, subject its authorization to conditions to be agreed by it and the
requesting State, including conditions relating to responsibility and the
extent of effective measures to be taken. A State Party shall take no
additional measures without the express authorization of the flag State,
except those necessary to relieve imminent danger to the lives of persons or
those which derive from relevant bilateral or multilateral agreements.
6.
Each State Party shall designate an authority or, where necessary, authorities
to receive and respond to requests for assistance, for confirmation of
registry or of the right of a vessel to fly its flag and for authorization to
take appropriate measures. Such designation shall be notified through the
Secretary-General to all other States Parties within one month of the
designation.
7. A State Party that has reasonable grounds to suspect that a
vessel is engaged in the smuggling of migrants by sea and is without
nationality or may be assimilated to a vessel without nationality may board
and search the vessel. If evidence confirming the suspicion is found, that
State Party shall take appropriate measures in accordance with relevant
domestic and international law.
Article 9
Safeguard clauses
1. Where a
State Party takes measures against a vessel in accordance with article 8 of
this Protocol, it shall:
( a ) Ensure the safety and humane treatment of the
persons on board;
( b ) Take due account of the need not to endanger the
security of the vessel or its cargo;
( c ) Take due account of the need not
to prejudice the commercial or legal interests of the flag State or any other
interested State;
( d ) Ensure, within available means, that any measure
taken with regard to the vessel is environmentally sound.
2. Where the
grounds for measures taken pursuant to article 8 of this Protocol prove
to be unfounded, the vessel shall be compensated for any loss or damage that
may have been sustained, provided that the vessel has not committed any act
justifying the measures taken.
3. Any measure taken, adopted or implemented
in accordance with this chapter shall take due account of the need not to
interfere with or to affect:
( a ) The rights and obligations and the
exercise of jurisdiction of coastal States in accordance with the
international law of the sea; or
( b ) The authority of the flag State to
exercise jurisdiction and control in administrative, technical and social
matters involving the vessel.
4. Any measure taken at sea pursuant to this
chapter shall be carried out only by warships or military aircraft, or by
other ships or aircraft clearly marked and identifiable as being on government
service and authorized to that effect.
III. Prevention, cooperation and other
measures
Article 10
Information
1. Without prejudice to articles 27 and 28
of the Convention, States Parties, in particular those with common borders or
located on routes along which migrants are smuggled, shall, for the purpose of
achieving the objectives of this Protocol, exchange among themselves,
consistent with their respective domestic legal and administrative systems,
relevant information on matters such as:
( a ) Embarkation and destination
points, as well as routes, carriers and means of transportation, known to be
or suspected of being used by an organized criminal group engaged in conduct
set forth in article 6 of this Protocol;
( b ) The identity and methods of
organizations or organized criminal groups known to be or suspected of being
engaged in conduct set forth in article 6 of this Protocol;
( c ) The
authenticity and proper form of travel documents issued by a State Party and
the theft or related misuse of blank travel or identity documents;
( d )
Means and methods of concealment and transportation of persons, the unlawful
alteration, reproduction or acquisition or other misuse of travel or identity
documents used in conduct set forth in article 6 of this Protocol and
ways of detecting them;
( e ) Legislative experiences and practices and
measures to prevent and combat the conduct set forth in article 6 of this
Protocol; and
( f ) Scientific and technological information useful to law
enforcement, so as to enhance each other's ability to prevent, detect and
investigate the conduct set forth in article 6 of this Protocol and to
prosecute those involved.
2. A State Party that receives information shall
comply with any request by the State Party that transmitted the information
that places restrictions on its use.
Article 11
Border measures
1. Without
prejudice to international commitments in relation to the free movement of
people, States Parties shall strengthen, to the extent possible, such border
controls as may be necessary to prevent and detect the smuggling of migrants.
2. Each State Party shall adopt legislative or other appropriate measures to
prevent, to the extent possible, means of transport operated by commercial
carriers from being used in the commission of the offence established in
accordance with article 6, paragraph 1 ( a ), of this Protocol.
3. Where
appropriate, and without prejudice to applicable international conventions,
such measures shall include establishing the obligation of commercial
carriers, including any transportation company or the owner or operator of any
means of transport, to ascertain that all passengers are in possession of the
travel documents required for entry into the receiving State.
4. Each State
Party shall take the necessary measures, in accordance with its domestic law,
to provide for sanctions in cases of violation of the obligation set forth in
paragraph 3 of this article.
5. Each State Party shall consider taking
measures that permit, in accordance with its domestic law, the denial of entry
or revocation of visas of persons implicated in the commission of offences
established in accordance with this Protocol.
6. Without prejudice to article
27 of the Convention, States Parties shall consider strengthening cooperation
among border control agencies by, inter alia, establishing and maintaining
direct channels of communication.
Article 12
Security and control of
documents
Each State Party shall take such measures as may be necessary,
within available means:
( a ) To ensure that travel or identity documents
issued by it are of such quality that they cannot easily be misused and
cannot readily be falsified or unlawfully altered, replicated or issued;
and
( b ) To ensure the integrity and security of travel or identity
documents issued by or on behalf of the State Party and to prevent their
unlawful creation, issuance and use.
Article 13
Legitimacy and validity of
documents
At the request of another State Party, a State Party shall, in
accordance with its domestic law, verify within a reasonable time the
legitimacy and validity of travel or identity documents issued or purported to
have been issued in its name and suspected of being used for purposes of
conduct set forth in article 6 of this Protocol.
Article 14
Training and
technical cooperation
1. States Parties shall provide or strengthen
specialized training for immigration and other relevant officials in
preventing the conduct set forth in article 6 of this Protocol and in the
humane treatment of migrants who have been the object of such conduct, while
respecting their rights as set forth in this Protocol.
2. States Parties
shall cooperate with each other and with competent international
organizations, non-governmental organizations, other relevant organizations
and other elements of civil society as appropriate to ensure that there is
adequate personnel training in their territories to prevent, combat and
eradicate the conduct set forth in article 6 of this Protocol and to
protect the rights of migrants who have been the object of such conduct. Such
training shall include:
( a ) Improving the security and quality of travel
documents;
( b ) Recognizing and detecting fraudulent travel or identity
documents;
( c ) Gathering criminal intelligence, relating in particular to
the identification of organized criminal groups known to be or suspected of
being engaged in conduct set forth in article 6 of this Protocol, the methods
used to transport smuggled migrants, the misuse of travel or identity
documents for purposes of conduct set forth in article 6 and the means of
concealment used in the smuggling of migrants;
( d ) Improving procedures for
detecting smuggled persons at conventional and non-conventional points of
entry and exit; and
( e ) The humane treatment of migrants and the protection
of their rights as set forth in this Protocol.
3. States Parties with
relevant expertise shall consider providing technical assistance to States
that are frequently countries of origin or transit for persons who have been
the object of conduct set forth in article 6 of this Protocol. States Parties
shall make every effort to provide the necessary resources, such as vehicles,
computer systems and document readers, to combat the conduct set forth in
article 6.
Article 15
Other prevention measures
1. Each State Party shall
take measures to ensure that it provides or strengthens information programmes
to increase public awareness of the fact that the conduct set forth in article
6 of this Protocol is a criminal activity frequently perpetrated by organized
criminal groups for profit and that it poses serious risks to the migrants
concerned.
2. In accordance with article 31 of the Convention, States Parties
shall cooperate in the field of public information for the purpose of
preventing potential migrants from falling victim to organized criminal
groups.
3. Each State Party shall promote or strengthen, as appropriate,
development programmes and cooperation at the national, regional and
international levels, taking into account the socio-economic realities of
migration and paying special attention to economically and socially depressed
areas, in order to combat the root socio-economic causes of the smuggling of
migrants, such as poverty and underdevelopment.
Article 16
Protection and
assistance measures
1. In implementing this Protocol, each State Party shall
take, consistent with its obligations under international law, all appropriate
measures, including legislation if necessary, to preserve and protect the
rights of persons who have been the object of conduct set forth in
article 6 of this Protocol as accorded under applicable international
law, in particular the right to life and the right not to be subjected to
torture or other cruel, inhuman or degrading treatment or punishment.
2. Each
State Party shall take appropriate measures to afford migrants appropriate
protection against violence that may be inflicted upon them, whether by
individuals or groups, by reason of being the object of conduct set forth in
article 6 of this Protocol.
3. Each State Party shall afford appropriate
assistance to migrants whose lives or safety are endangered by reason of being
the object of conduct set forth in article 6 of this Protocol.
4. In applying
the provisions of this article, States Parties shall take into account the
special needs of women and children.
5. In the case of the detention of a
person who has been the object of conduct set forth in article 6 of this
Protocol, each State Party shall comply with its obligations under the Vienna
Convention on Consular Relations, where applicable, including that of
informing the person concerned without delay about the provisions concerning
notification to and communication with consular officers.
Article 17
Agreements and arrangements
States Parties shall consider the conclusion of
bilateral or regional agreements or operational arrangements or understandings
aimed at:
( a ) Establishing the most appropriate and effective measures to
prevent and combat the conduct set forth in article 6 of this Protocol; or
(
b ) Enhancing the provisions of this Protocol among themselves.
Article 18
Return of smuggled migrants
1. Each State Party agrees to facilitate and
accept, without undue or unreasonable delay, the return of a person who has
been the object of conduct set forth in article 6 of this Protocol and who is
its national or who has the right of permanent residence in its territory at
the time of return.
2. Each State Party shall consider the possibility of
facilitating and accepting the return of a person who has been the object of
conduct set forth in article 6 of this Protocol and who had the right of
permanent residence in its territory at the time of entry into the receiving
State in accordance with its domestic law.
3. At the request of the receiving
State Party, a requested State Party shall, without undue or unreasonable
delay, verify whether a person who has been the object of conduct set forth in
article 6 of this Protocol is its national or has the right of permanent
residence in its territory.
4. In order to facilitate the return of a person
who has been the object of conduct set forth in article 6 of this Protocol and
is without proper documentation, the State Party of which that person is a
national or in which he or she has the right of permanent residence shall
agree to issue, at the request of the receiving State Party, such travel
documents or other authorization as may be necessary to enable the person to
travel to and re-enter its territory.
5. Each State Party involved with the
return of a person who has been the object of conduct set forth in article 6
of this Protocol shall take all appropriate measures to carry out the return
in an orderly manner and with due regard for the safety and dignity of the
person.
6. States Parties may cooperate with relevant international
organizations in the implementation of this article.
7. This article shall be
without prejudice to any right afforded to persons who have been the object of
conduct set forth in article 6 of this Protocol by any domestic law of the
receiving State Party.
8. This article shall not affect the obligations
entered into under any other applicable treaty, bilateral or multilateral, or
any other applicable operational agreement or arrangement that governs, in
whole or in part, the return of persons who have been the object of conduct
set forth in article 6 of this Protocol.
IV. Final provisions
Article 19
Saving clause
1. Nothing in this Protocol shall affect the other rights,
obligations and responsibilities of States and individuals under international
law, including international humanitarian law and international human rights
law and, in particular, where applicable, the 1951 Convention and the 1967
Protocol relating to the Status of Refugees and the principle of
non-refoulement as contained therein.
2. The measures set forth in this
Protocol shall be interpreted and applied in a way that is not discriminatory
to persons on the ground that they are the object of conduct set forth in
article 6 of this Protocol. The interpretation and application of those
measures shall be consistent with internationally recognized principles of
non-discrimination.
Article 20
Settlement of disputes
l. States Parties
shall endeavour to settle disputes concerning the interpretation or
application of this Protocol through negotiation.
2. Any dispute between two
or more States Parties concerning the interpretation or application of this
Protocol that cannot be settled through negotiation within a reasonable time
shall, at the request of one of those States Parties, be submitted to
arbitration. If, six months after the date of the request for arbitration,
those States Parties are unable to agree on the organization of the
arbitration, any one of those States Parties may refer the dispute to the
International Court of Justice by request in accordance with the Statute of
the Court.
3. Each State Party may, at the time of signature, ratification,
acceptance or approval of or accession to this Protocol, declare that it does
not consider itself bound by paragraph 2 of this article. The other States
Parties shall not be bound by paragraph 2 of this article with respect to any
State Party that has made such a reservation.
4. Any State Party that has
made a reservation in accordance with paragraph 3 of this article may at any
time withdraw that reservation by notification to the Secretary-General of the
United Nations.
Article 21
Signature, ratification, acceptance, approval and
accession
1. This Protocol shall be open to all States for signature from 12
to 15 December 2000 in Palermo, Italy, and thereafter at United Nations
Headquarters in New York until 12 December 2002.
2. This Protocol shall also
be open for signature by regional economic integration organizations provided
that at least one member State of such organization has signed this Protocol
in accordance with paragraph 1 of this article.
3. This Protocol is subject
to ratification, acceptance or approval. Instruments of ratification,
acceptance or approval shall be deposited with the Secretary-General of the
United Nations. A regional economic integration organization may deposit its
instrument of ratification, acceptance or approval if at least one of its
member States has done likewise. In that instrument of ratification,
acceptance or approval, such organization shall declare the extent of its
competence with respect to the matters governed by this Protocol. Such
organization shall also inform the depositary of any relevant modification in
the extent of its competence.
4. This Protocol is open for accession by any
State or any regional economic integration organization of which at least one
member State is a Party to this Protocol. Instruments of accession shall be
deposited with the Secretary-General of the United Nations. At the time of its
accession, a regional economic integration organization shall declare the
extent of its competence with respect to matters governed by this Protocol.
Such organization shall also inform the depositary of any relevant
modification in the extent of its competence.
Article 22
Entry into force
1. This Protocol shall enter into force on the ninetieth day after the date of
deposit of the fortieth instrument of ratification, acceptance, approval or
accession, except that it shall not enter into force before the entry into
force of the Convention. For the purpose of this paragraph, any instrument
deposited by a regional economic integration organization shall not be counted
as additional to those deposited by member States of such organization.
2.
For each State or regional economic integration organization ratifying,
accepting, approving or acceding to this Protocol after the deposit of the
fortieth instrument of such action, this Protocol shall enter into force on
the thirtieth day after the date of deposit by such State or organization of
the relevant instrument or on the date this Protocol enters into force
pursuant to paragraph 1 of this article, whichever is the later.
Article 23
Amendment
1. After the expiry of five years from the entry into force of this
Protocol, a State Party to the Protocol may propose an amendment and file it
with the Secretary-General of the United Nations, who shall thereupon
communicate the proposed amendment to the States Parties and to the Conference
of the Parties to the Convention for the purpose of considering and deciding
on the proposal. The States Parties to this Protocol meeting at the Conference
of the Parties shall make every effort to achieve consensus on each amendment.
If all efforts at consensus have been exhausted and no agreement has been
reached, the amendment shall, as a last resort, require for its adoption a
two-thirds majority vote of the States Parties to this Protocol present and
voting at the meeting of the Conference of the Parties.
2. Regional economic
integration organizations, in matters within their competence, shall exercise
their right to vote under this article with a number of votes equal to the
number of their member States that are Parties to this Protocol. Such
organizations shall not exercise their right to vote if their member States
exercise theirs and vice versa.
3. An amendment adopted in accordance with
paragraph 1 of this article is subject to ratification, acceptance or approval
by States Parties.
4. An amendment adopted in accordance with paragraph 1 of
this article shall enter into force in respect of a State Party ninety days
after the date of the deposit with the Secretary-General of the United Nations
of an instrument of ratification, acceptance or approval of such amendment.
5. When an amendment enters into force, it shall be binding on those States
Parties which have expressed their consent to be bound by it. Other States
Parties shall still be bound by the provisions of this Protocol and any
earlier amendments that they have ratified, accepted or approved.
Article 24
Denunciation
1. A State Party may denounce this Protocol by written
notification to the Secretary-General of the United Nations. Such denunciation
shall become effective one year after the date of receipt of the notification
by the Secretary-General.
2. A regional economic integration organization
shall cease to be a Party to this Protocol when all of its member States have
denounced it.
Article 25
Depositary and languages
1. The Secretary-General
of the United Nations is designated depositary of this Protocol.
2. The
original of this Protocol, of which the Arabic, Chinese, English, French,
Russian and Spanish texts are equally authentic, shall be deposited with the
Secretary-General of the United Nations.
IN WITNESS WHEREOF, the undersigned
plenipotentiaries, being duly authorized thereto by their respective
Governments, have signed this Protocol.