Protocol against the Smuggling of Migrants by Land

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

International framework on migrant smuggling The United Nations Convention on Transantional Organized Crime (UNTOC) is supplement by 3 Protocols: – Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children – Protocol against the Smuggling of Migrants by Land, Sea and Air – Protocol against the Illicit Manufacturing and Trafficking in Firearms, Their Parts and Components and Ammunition

Objectives of the Migrant Smuggling Protocol • Prevent and combat the smuggling of migrants • Protect the rights of smuggled migrants • Promote cooperation between states (Art. 2)

Criminalization - Art. 6 of the Migrant Smuggling Protocol requires States to criminalize migrant smuggling (as defined in Art. 3) - “Smuggling of migrants” shall mean: the procurement of the illegal entry of a person into a State Party of which the person is not a national or a permanent resident, in order to obtain a financial or other material benefit - In addition, article 6 requires States to criminalize the following conduct: Ø Enabling a person to illegally remain in a country for financial or other material benefit Ø Producing, procuring, providing or possessing fraudulent travel or identity documents for the purpose of migrant smuggling Ø Attempting, participating, organizing or directing others to commit Protocol offences

Non-Criminalization • THE SMUGGLING PROTOCOL DOES NOT INTEND: • To criminalize family-members or other groups, who smuggle a person for non-profit reasons; • To criminalize irregular migration as such; • In this regard, article 5 states that the migrants themselves must not be held responsible for the crime of smuggling only because of having been smuggled.

Aggravating Circumstances § Article 6 requires States to adopt legislative measures to establish aggravating circumstances, including those that: – Endanger or are likely to endanger the lives or safety of the migrants concerned or – Entail inhuman or degrading treatment, including exploitation of the migrants. § Examples of such circumstances include (but are not limited to): – Connections with other crimes such as drug smuggling and trafficking in persons; for instance, migrants may be compelled to carry drugs when they are themselves smuggled. – Conditions in which migrants are smuggled: was the boat, bus or car particularly hot, cold, wet, dry or crowded? Was the current at sea particularly strong?

Assistance, protection and repatriation Ø Provide assistance to smuggled migrants Ø Return shall be done in an orderly manner and with due regard for the safety and dignity of the person Ø “Non-refoulement” and illegal entry to a State shall not negatively affect a person’s claim for asylum (with specific reference to 1951 Convention and the 1967 Protocol (Art. 16, 18 and 19)

Migrant smuggling by sea Smuggling Protocol Art. 7 -9: Ø Cooperate to the fullest extent possible to prevent the smuggling of migrants by sea Ø Render assistance to a State that has the right to board a vessel flying its state flag Ø Inform the flag State if it has boarded its vessel Ø Respond expeditiously to a request for determination if a vessel is entitled to claim that State as the State of its registry Ø Respond expeditiously to a request for authorization to board, search and take other measures with respect to a vessel flying its flag Ø Designate an authority to assist or respond to requests for assistance concerning such vessels Ø When carrying out measures aboard vessels, States shall: Ø Ensure the safety and humane treatment of passengers Ø Compensate the vessel for any loss or damage where enforcement grounds for measures against the vessel prove to be unfounded

Prevention Ø Implement social and economic measures to address the root causes of smuggling such as poverty and lack of economic opportunities Ø Undertake public information campaigns Ø Ensure that commercial carriers check their passengers’ travel documents. Ø Enhance the effectiveness of border controls Ø Improve the security of travel documents, and Ø Speed up bilateral cooperation in verifying if a travel document is valid or not. Ø Train law enforcement, immigration and other relevant officials (Art. 11, 12, 13, 14 and 15)

Information exchange and cooperation Ø Exchange information with other States Ø Cooperate with international organizations and NGOs (Art. 6, 9 and 10)