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Protocol against the Smuggling of Migrants by Land, Air and Sea

ACT

Council Decisions 2006/616/EC and 2006/617/EC of 24 July 2006 on the conclusion of the Protocol against the Smuggling of Migrants by Land, Air and Sea, supplementing the United Nations Convention against Transnational Organised Crime.

SUMMARY

The purpose of these Decisions is to prevent and combat the smuggling of migrants. The Council recalls that the smuggling of migrants can endanger the lives or security of the migrants concerned, and invites the States that are party to the Protocol to cooperate with each other and with international (UN) organisations to prevent and suppress these activities. Its aims include:

  • attacking the root causes of migration (e.g. poverty);
  • demonstrating the many advantages of legal migration;
  • encouraging interregional, regional and subregional mechanisms to address questions of development and migration.

These Decisions apply to the prevention of, enquiry into and prosecution of acts committed for the purpose of financial or material advantage and concerning:

  • the smuggling of migrants, that is, procuring the illegal entry of a person into a State of which he is not a national or a permanent resident;
  • producing, procuring, providing or possessing fraudulent travel or identity documents, that is, documents that have been falsely made or altered by anyone other than those lawfully authorised to make or issue them;
  • the use of a document by a person other than the rightful holder;
  • enabling a person to remain in a country without complying with the necessary requirements.

The States that are parties to the Protocol will cooperate with a view to adopting legislative measures to establish the related criminal offences and aggravating circumstances. These latter include endangering the lives or safety of the migrants and treating them in an inhuman or degrading manner.

Measures against the smuggling of migrants by sea

If a State that is party to the Protocol has reasonable grounds to suspect that a ship that is without nationality, that is flying its flag or claiming its registry, or that although flying a foreign flag or refusing to show a flag is of its nationality, is smuggling migrants it can request the assistance of other States Parties to suppress the use of the vessel for that purpose. If a State suspects that a ship without nationality is smuggling migrants, it can board and search the vessel.

If a State suspects that a ship with a foreign registration is smuggling migrants, it notifies the flag State and requests confirmation of registry and authorisation to take appropriate measures. The flag State must respond promptly to such a request. The requesting State can then board and search the vessel, and if evidence is found that the vessel is indeed engaged in the smuggling of migrants, it can take appropriate measures with respect to the vessel and the persons and cargo on board. A State Party can, however, take no additional measures without the express authorisation of the flag State, except to relieve imminent danger. Each State designates an authority to receive and respond to requests for assistance, confirmation of registry and authorisation to take appropriate measures.

Only ships clearly marked as being on government service are authorised to board and search vessels, and they must in any case:

  • ensure the safety of the persons on board, the vessel and its cargo;
  • not prejudice the commercial or legal interests of the flag State;
  • ensure that any measures taken are ecologically sound.

Promoting international cooperation

The States Parties will work towards strengthening their borders and are entitled to deny entry to persons implicated in the smuggling of migrants. States with common borders or lying on routes used by criminal groups are required to exchange information relating to:

  • the embarkation and destination points they use;
  • routes, carriers and means of transportation;
  • their identity and methods;
  • the authenticity, proper form, alteration and illegal reproduction of travel or identity documents;
  • means and methods of concealment and transportation of migrants;
  • legislative experience;
  • technological information.

The States will provide specialised training for immigration officials in preventing the smuggling of migrants, in the humane treatment of such persons and in protecting their rights. Those with relevant expertise and appropriate technical resources should help States that are frequently countries of origin or transit for migrants. They agree to cooperate with each other and with competent international organisations and other elements of civil society to assure adequate personnel training in:

  • improving the security and quality of travel documents;
  • detecting fraudulent documents;
  • gathering criminal intelligence;
  • the methods used to transport smuggled migrants;
  • improving procedures for detecting smuggled persons;
  • the humane treatment of migrants and the protection of their rights.

Prevention, protection, assistance and return

The States will provide public awareness-raising campaigns and promote development programmes and cooperation on the regional, national and international level to combat the root causes of this traffic, notably poverty and underdevelopment.

They will take measures to protect migrants' right to life and their right not to be subjected to inhuman or degrading treatment, taking into account the special needs of women and children.

The States agree to facilitate the return of individuals who have been the object of smuggling and who are its nationals, including by providing the necessary documents, and with due regard for their dignity and safety.

Final provisions

Nothing in this Protocol affects the other rights, obligations and responsibilities of the States. Disputes concerning the interpretation or application of the Protocol should be settled through negotiation and, failing that, through arbitration. If no agreement is reached, the dispute is referred to the International Court of Justice. States may declare that they do not consider themselves bound by this paragraph; this reservation may be withdrawn by notification made to the Secretary General of the United Nations (UNO).

After five years from the entry into force of this Protocol, a State Party may propose an amendment to the Secretary General of the United Nations, who communicates it to the Parties for the purpose of considering and deciding on it. If there is no consensus, the amendment is adopted by a two-thirds majority vote of the States Parties.

REFERENCES

Act Entry into force - Date of expiry Deadline for transposition in the Member States Official Journal
Decisions 2006/616/EC and 2006/617/EC 24.7.2006 - OJ L 262 of 22.9.2006

RELATED ACTS

Council Decisions 2006/618/EC and 2006/619/EC of 24 July 2006 on the conclusion, on behalf of the European Community, of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, supplementing the United Nations Convention against Transnational Organised Crime.

This Protocol aims at preventing and combating trafficking in persons, especially women and children, and at protecting and helping the victims, particularly by promoting international cooperation.

Last updated: 11.12.2007
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