Smuggling of migrants by land, sea and air — UN protocol

KEY POINTS

Signatory countries must establish the following acts as criminal offences when they are committed intentionally for financial or material gain:

• the smuggling of migrants, i.e. illegally bringing a person into a state of which the person is not a national or a permanent resident;
• when carried out for the purpose of enabling the smuggling of migrants, producing, procuring, providing or possessing fraudulent travel or identity documents;
• enabling a person to remain in a state without complying with the necessary requirements to stay legally;
• attempting, participating in and instigating the committing of these offences.

Signatory countries must also consider the following circumstances as adding to the severity of the criminal act (i.e. aggravating circumstances):

• endangering the lives or safety of the migrants concerned;
• inflicting inhuman or degrading treatment, including for exploitation, of such migrants.

Victims of the smuggling of migrants must not be liable for criminal prosecution.

Scope of application

The protocol applies to:

• the prevention, investigation and prosecution of the above offences (where they are transnational in nature and an organised criminal group is involved);
• the protection of the rights of the victims of these offences.

Measures against the smuggling of migrants by sea

• If a state suspects that a vessel without nationality is smuggling migrants, it can board and search the vessel.
• If a country suspects that a vessel with a foreign registration is smuggling migrants, it must notify the country in which the vessel is registered (flag state) and request both confirmation of registry and authorisation to take action. If suspicions are confirmed, the requesting country:
  • can board and search the vessel, and then take appropriate measures with respect to the vessel and the persons and cargo on board and
  • must ensure the safety and the humane treatment of the persons on board.
• If no imminent danger is found, no additional measures can be taken without the express permission of the flag state.

International cooperation

Countries must work towards strengthening their border controls and are entitled to deny entry to anyone implicated in the smuggling of migrants. Those with common borders or lying on routes used by criminal groups are required to exchange certain information such as the following:

• The departure and destination points used by the smugglers.
• The routes and modes of transportation used.
• The methods and means of:
  • concealment and transportation of persons;
  • misuse of travel or identity documents.

Countries with relevant expertise must provide technical assistance to those that are frequently countries of origin or transit for migrants.

Prevention, protection, assistance and return

Countries are required to take action in a number of ways both to prevent smuggling and to handle victims of smuggling. These include the following:

• Public awareness-raising campaigns and development programmes and cooperation at regional, national and international level to combat the causes of the smuggling of migrants, notably poverty and underdevelopment.
• Measures to protect the rights of migrants who are victims of smuggling, particularly women and children.
• Provide protection against the violence that may be inflicted upon migrants and assistance to those whose lives or safety are endangered as a result of being smuggled.
• Bring about the return of their citizens or persons who have the right of permanent residence in their territory and who have been the object of smuggling.