PROTOCOL AGAINST THE SMUGGLING OF MIGRANTS BY LAND. SEAAND AIR SUPPLEMENTING THE UNITED NATIONS CONVENTION AGAINST TRANSNATIONAL ORGANIZED CRIME Advance copy of the authentic text. The copy certified by the Secretary-General will be issued at a later time UNITED NATIONS 2000
PROTOCOL AGAINST THE SMUGGLING OF MIGRANTS BY LAND, SEA AND AIR, SUPPLEMENTING THE UNITED NATIONS CONVENTION AGAINST TRANSNATIONAL ORGANIZED CRIME UNITED NATIONS 2000 Advance copy of the authentic text. The copy certified by the Secretary-General will be issued at a later time
PROTOCOL AGAINST THE SMUGGLING OF MIGRANTS BY LAND, SEA AND AIR SUPPLEMENTING THE UNITED NATIONS CONVENTION AGAINST TRANSNATIONAL ORGANIZED CRIME Preamble 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 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
PROTOCOL AGAINST THE SMUGGLING OF MIGRANTS BY LAND, SEA AND AIR, SUPPLEMENTING THE UNITED NATIONS CONVENTION AGAINST TRANSNATIONAL ORGANIZED CRIME Preamble 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 eneral provisions Article l Relation with the United Nations Convention against Transnational Organized Crime 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 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
– 2 – 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 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
– 3 – (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 nondisplacement 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 I(a),(b)(i)or(c)of this article and, subject the basic concepts of its legal system, participating as an accomplice in offence established in accordance with paragraph l(b)(ii)of this article (c) Organizing or directing other persons to commit an offence established in accordance with paragraph l 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 (b) That entail inhuman or degrading treatment, including for exploitation, of such migrants Nothing in this Protocol shall prevent a State Party from taking measures against a person whose conduct constitutes an offence under its domestic law Il 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 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
– 4 – 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