PROTOCOL AGAINST THE SMUGGLING OF MIGRANTS BY LAND, AIR
AND SEA, SUPPLEMENTING THE UNITED NATIONS CONVENTIONAGAINST TRANSNATIONAL ORGANIZED CRIME: A TOOL FOR CRIMINALJUSTICE PERSONNEL
Natalia Ollus*
I. INTRODUCTION
This paper will present the main characteristics of the United Nations Protocol against the
Smuggling of Migrants by Land, Air and Sea, supplementing the United Nations Convention against
Transnational Organized Crime. I will focus briefly on the phenomenon of smuggling of migrants andthe background to the Protocol. I will then go into detail with the Protocol and its articles andcomment on the main provisions. Finally, I will briefly discuss some implications for implementation.
II. SMUGGLING OF MIGRANTS
A. Reasons for Smuggling of Migrants
The smuggling of persons involves the illegal movement of migrants across international borders.
The smuggling of migrants is a form of illegal migration.
The smuggling of migrants take place when three basic conditions are met:
• there are persons interested in (or lured into) international migration, be it for economic or otherreasons• who have no legal ways of migrating, hence they contact or are contacted by• one or more persons who organise the movement of these migrants for profit
The reasons for migration include both push and pull factors. These factors are to a large extent
related to the different socio-economic situations as compared between the country of origin of the
migrant and the country of destination. The push factors include e.g. lack of education or job
opportunities, poverty, and the disappearance of traditional livelihoods. The pull factors include e.g.
higher salaries and better job opportunities in the country of destination or existing organised means of
migration. The pull factors also include the possible existence of ethnic groups and communities in the
country of destination into which it is easy for a migrant to integrate.
When the push and pull factors are attractive enough, a person may decide to migrate. In many
instances, however, migration is difficult to undertake. Nation States cautiously regulate and control
the entry and exit of people into or from their territory. This has been the case since nations started topose duties and privileges on their nationals or residents. Although migration can be both positive andnegative it nevertheless disrupts the traditional composition of the nation state. In cases where no
legal means of migration are available, a person interested in migrating will have to take to illegalmeans.
It seems that there is a trend that illegal migrants increasingly use professional smugglers in orderto migrate. It has been estimated that today more than half of all illegal migrants in the world are
assisted by smugglers1.

* Senior Programme Officer,
HEUNI, Helsinki, Finland
1

See Report of the Regional Ministerial Conference on People Smuggling, Trafficking in Persons and Related Transnational
Crime.

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B. Involvement of Organised Criminal Groups and the Development of the Protocol
It seems that illegal migration is increasing in the world today. In the European Union theestimated number of persons smuggled into the territory has increased from about 50 000 entries in1993 to more than 400 000 entries in 1999. These figures are only estimates, based on doubling thenumber of persons caught at border control2.
In the United States, annually more than 500 000 migrants enter the country legally. Additionally,a large number of people enter illegally. For example, the U.S. Coast Guard made over 4000 migrantinterdictions at sea in 2001. This figure only includes undocumented migrants travelling by sea anddoes not include illegal entry across the land border or at airports. Most of the migrants entering
illegally come from the south of the U.S., including from Caribbean countries. There also seems to be anincrease in the number of migrants to the U.S. from Asia, especially from China3.
When control of illegal migration becomes harsher, it opens up the way for organised smuggling of
migrants. When border controls are tightened, the previously simple illegal practice of crossing aborder becomes a complex criminal activity, involving professional smugglers. This is the case, forexample, across the U.S.-Mexican border where the migrant smuggling business is thriving.
The paradox related to the smuggling of migrants is that the more measures there are to prevent
illegal entry, the more the arrangement of illegal entry becomes organised. Under current
circumstances with tightened border control measures and tightened sanctions on illegal residence,
there does not necessarily exist many ways for migrants interested in residence or labour to enter
without the involvement of smuggling organisations.
Some researchers argue that the smuggling of migrants, especially in Europe, does not necessarily
involve highly organised, large criminal groupings. Instead, it seems that the smugglers can consist
only of highly professionalised, loosely grouped individuals4. However, there exists a clear link toorganised criminal activities in human smuggling although not all smuggling organisations are highlyorganised or involved in transnational activities. Many known organised criminal groups, such as the
Chinese, Albanian, North African and Russian organised crime groups, are involved in arranging theillegal smuggling of migrants5.
Migration in search of better prospects is an accepted custom. As long as there is supply in the formof groups of people who wish to migrate and demand fostering migration, people will migrate.
Migration as such is thus not a problem of organised crime or a negative phenomenon as such. But,
since the ways of legal migration are so few, transnational criminal groups are continuing to developmeans to smuggle migrants. These organisations smuggle migrants for large profits, and do notrefrain from exploiting the misery or desperation of the migrants.
Recently there has been increasing focus on the prevention of the illegal practices related tomigration. The new UN Protocol to Prevent the Smuggling of Migrants6 stemmed from the need todevelop measures to combat the organised crime that orchestrate the smuggling of migrants. The
Protocol is criminal justice centred although it recognises that migration itself is not a crime and thehuman rights of the migrants should be protected.
The Declaration adopted at the meeting of the Ministers of Interior and Justice in Naples in 1996
called for actions to combat organised crime. As a result, Poland drafted a first outline for a convention
against organised crime. The first meeting for the development of the convention took place in Warsaw,
Poland in February 1998. Later that year, the General Assembly of the UN founded an Ad-hoc
2

Conference Report of the two Transatlantic Workshops on Human Smuggling.

3

http://www.uscg.mil/hq/g-o/g-opl/mle/amiostats1.htm#2000

http://usinfo.state.gov/regional/ea/chinaaliens/puleostory.htm
4

Conference Report of the two Transatlantic Workshops on Human Smuggling.

5

Bruggeman, W. (2002).

6

Henceforth the United Nations Protocol against the Smuggling of Migrants by Land, Air and Sea, supplementing the United
Nations Convention against Transnational Organized Crime is referred to as “the Protocol”.

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Committee with the aim to elaborate the international convention against transnational organised
crime and three additional international legal Protocols. Austria and Italy presented a joint draft of the
Migrants Protocol at the first session of the Ad Hoc Committee in Vienna in January 1999. The
instrument was elaborated as one of the three optional Protocols to the UN Convention against
Transnational Organised Crime7.
The Committee convened at the United Nations in Vienna eleven times. Some 120 countries
participated in the negotiations together with representatives of civil society. The negotiations for the
Migrants Protocol were finalised in October 2000. The General Assembly of the United Nations
adopted the Convention together with the Migrants Protocol and the Trafficking Protocol on 15
November 20008. The Migrants Protocol was opened up for signatories at the Signing Conference inPalermo, Italy in December 2000. Some eighty states signed the Protocol at that occasion. Currently(as of 15 August 2002) there are 102 signatories to the Protocol and 13 ratifications. The Protocol
enters into force when forty Member States have ratified it.
C. Difference Between the Smuggling of Migrants and Trafficking in Persons
Smuggling of migrants and trafficking in persons are both forms of illegal migration. There arethus both some basic similarities and differences between the two concepts.
The similarities between trafficking and smuggling are that both involve recruiting andtransportation arranged by criminal networks9. Both phenomena include e.g. recruiters who promise
better lives in countries of destination, ways of transport that utilise weak links in border control
measures, corruption, and links between local and international organisers. The same organisations
can be involved in both smuggling and trafficking and they often co-operate both nationally andinternationally in order to facilitate their activities.
The main difference between smuggling of migrants and trafficking in persons is that trafficking is
by definition for exploitative purposes. Trafficking is thus a more long-lived criminal activity than isthe smuggling of migrants. The profit of smuggling in migrants comes mainly from the organisation ofentry into another country while the profit of trafficking comes from both the transportation of theperson being trafficked, and from the exploitation the person is subjected to. It is this long-term
exploitation that yields the largest profit. Persons being smuggled often share a mutual interest with
their smugglers, i.e. they wish to enter another country. This is, however, sometimes also the case intrafficking. Although the victim of trafficking might originally have consented to the trafficking, it isthe exploitative characteristics that differentiates trafficking from smuggling. Trafficking in persons isthus a crime against a person, while smuggling can be regarded as a crime against state sovereignty.
III. OUTLINE OF THE PROTOCOL ON SMUGGLING OF MIGRANTS10The Protocol covers the illegal migration talking place through sea, land or air. The aim of theProtocol is to prevent illegal migration and to punish the procurers. The Protocol, however, does not
aim at limiting the free movement of people, nor does it regulate the legal entry of people. The Protocol
does not either aim at criminalising the illegal migrants for being the object of smuggling.
The Protocol is divided into three main parts besides the preamble:

7

The three Protocols are: the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children,
supplementing the United Nations Convention against Transnational Organized Crime; the Protocol against the Smuggling of
Migrants by Land, Air and Sea, supplementing the United Nations Convention against Transnational Organized Crime; and,the Protocol against the Illicit Manufacturing of and Trafficking in Firearms, Their Parts and Components and Ammunition,
supplementing the United Nations Convention against Transnational Organized Crime

8
9

The Firearms Protocol was adopted in May 2001.
For further comparison, see e.g. the International Human Rights Network’s joint NGO submission to the eight session of the
Ad-Hoc Committee on the Elaboration of a Convention against Transnational Organised Crime.

10 For the full document as well as for the interpretative notes and reports of the ad-hoc group, please visit the website of theUnited Nations Office of Drug Control and Crime Prevention at: www.odccp.org

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Part I - General provisions (articles 1-6)
• relation with the Convention on organised Crime (art. 1)• purpose (art. 2)• terminology and definition (art. 3)• scope of application (art. 4)• criminal liability of migrants (art. 5)• criminalisation (art. 6)
Part II - Smuggling of migrants by sea (articles 7-9)
• co-operation (art. 7)• measures against the smuggling of migrants by sea (art. 8)• safeguard clauses (art. 9)Part III - Prevention, co-operation and other measures (articles 10-18)• information (art. 10)• border measures (art. 11)• security and control of documents (art. 12)• legitimacy and validity of documents (art. 13)• training and technical co-operation (art. 14)• other prevention measures (art. 15)• protection and assistance measures (art. 16)• agreements and arrangements (art. 17)• return of smuggled migrants (art. 18)
The final part (art. 19-25) of the Protocol deals with the technicalities of the document.
IV. PRESENTATION OF THE PROTOCOL11
A. General Provisions (articles 1-6)
The first article of the Protocol deals with the relation between the Convention on organised Crimeand the Protocol. This relation is the same for all three optional Protocols to the Convention12.
1)The Protocol supplements the Convention and shall be interpreted together with the Convention2)The provisions of the Convention shall apply, mutatis mutandis, to this Protocol unless otherwise
provided herein3)The offences established in article 6 of the Protocol shall be regarded as offences as established inaccordance with the Convention
The Protocol is implemented together with the Convention. The principle of mutatis mutandis
means that the criminalisations that are covered by the Protocol shall be applied as such, e.g.
regardless of whether they fulfil the definitions of organised crime as stated in the Convention. In
implementing the Protocol, the Convention is thus subordinate to the Protocol if the Protocol states
something additional to the Convention.
The purpose of the Protocol as stated in article 2 is to prevent and combat the smuggling of
migrants, promote co-operation among States Parties to that end, while protecting the rights ofsmuggled migrants. Similarly to the Trafficking Protocol, the Protocol on Illegal Migrants contains a
special reference to the protection of the human rights of illegal migrants.

11 For the full document as well as for the interpretative notes and reports of the ad-hoc group, please visit the website of theUnited Nations Office of Drug Control and Crime Prevention at: www.odccp.org
12 In order to become a party to the Protocol, a State must first be a party to the Convention (Convention article 37).

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During negotiations of the Protocol, State Parties underwent discussions on the aim of the Protocol.
Some States were of the opinion that the main aim of the Protocol should be to prevent crime and not topromote human rights. However, other participants stated that some reference to the protection of
migrants should be included. Especially human rights advocates were worried about the human rights
violations that may face migrants in vulnerable positions. As a consequence, the Protocol includes theneed to protect the rights of the migrants. However, a major difference between trafficking in persons
and smuggling of migrants can be spotted in the second article. The Trafficking Protocol puts equal
weight on the need to prevent the crime of trafficking and the need to protect the victims. The Migrants
Protocol, on the other hand, mainly aims at preventing crime. Additionally, it does not refer to “victims”
but to “smuggled migrants”.
Article 3 outlines the use of terms of the Protocol.
3 a) “Smuggling in 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 ofwhich 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.
The Protocol thus defines illegal migration as gaining benefit through the procuring from the illegal
entry of a person into a State of which the person is not a national or a permanent resident. The
definition only includes “illegal entry” as a ground for defining the smuggling of migrants. Originallysome States wanted to include also “illegal residence” in the definition. The definition of smuggling of
migrants was therefore thoroughly discussed during negotiations for the Protocol. It can be difficult toprove illegal entry of a person afterward, especially if the documents of entry have been destroyed after
entry. In such cases illegal residence would be easier to prove. However, it was agreed that it is theillegal entry into, not the stay in, another State that forms the basis for the understanding of smugglingof migrants.
The criminalisation only covers those who gain profit from organising smuggling. Theinterpretative notes for the official records of the negotiations highlight that the criminalisation ofgaining financial or other material benefit referred to in article 3 should not cover family-members or
non-governmental or religious groups who support migrants for humanitarian reasons.
Article 3 also defines “fraudulent travel or identity documents”. The fraudulent travel or identity
document includes documents that have been falsely made or altered, documents that have been
improperly issued, or used by someone else than the rightful holder. During negotiations there was alsoa discussion on the need to include only documents meant for international travel. However, thecurrent definition includes all types of documents that are required for entering or leaving a State, or
documents used for identifying a person in a State. According to the interpretative notes the fraudulent
documents shall also include the filling in of stolen blank documents, forged documents and documentsthat were validly issued but are used by someone else than the lawful holder.
Article 4 deals with the scope of application of the Protocol and is similar to article 4 of the
Trafficking Protocol.
4. The Protocol shall apply, except as otherwise stated herein, to the prevention,
investigation, and prosecution of the offences as established in accordance with article 6 of thisProtocol, where those offences are transnational in nature and involve an organised criminal group,
as well as to the protection of the rights of persons who have been the object of such offences.
The Protocol shall be used for preventing illegal migration and for punishing those who procure it.
Similarly to the Trafficking Protocol, the Protocol on Illegal Migrants highlights the need tosimultaneously protect the rights of the persons who are the object of these offences. However, contrary
to the Trafficking Protocol, the persons who are smuggled are not defined as victims, but as “objects ofoffences”. During negotiations it was agreed that it is not necessary to define the persons as victims,

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although it was agreed to be necessary to include specific reference to the safeguarding of their humanrights.
Furthermore, according to article 4 the Protocol is applied in a manner similar to the Trafficking
Protocol. That is, the Protocol is applied to cases that involve transnational crimes and organised
criminal groups according to the definition of the Convention on Organized Crime13. However, article 1of the Protocol defines that the Protocol is applied mutatis mutandis to the Convention. Thus thecriminalisations in the Protocol are applicable in their own right. When it comes to the criminalisationof the smuggling of migrants, State Parties can in their domestic legislation implement a broader scopeof criminalisation and also criminalise acts that are committed by single persons within the boundaries
of one State, without the involvement of any organised criminal group or transnational nature of thecrime. However, when it comes to the application of the Protocol in international co-operation, State
Parties can ask for assistance and co-operation from other State Parties only if the conditions oftransnationality and involvement of an organised criminal group are met.
Article 5 clearly states that the illegal migrants themselves must not be held responsible for thecrime of smuggling that they are object to:
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.
This article was included to make it explicit that no-one who has been illegally smuggled should be
penalised with reference to this Protocol for the fact that they are objects of smuggling. However, theProtocol leaves it open for States in their domestic legislation to cover the possibility of criminalisingsmuggled migrants. The smuggled migrants themselves should not be accused of the specific crime of
smuggling as defined in this Protocol. Instead, it is the smugglers who should be faced with thatcharge. However, most domestic legislation criminalize, for example illegal entry, use of falsified
documents, possession of falsified documents, or illegal residence. A smuggled migrant can, and in
most cases will, be charged domestically based on these domestic criminalisations14. However, themain problem of interpretation will arrive if a smuggled migrant is charged, for example, for aiding in
the offence of smuggling or for inciting to commit the offence of smuggling. In these situations theactive role of the migrant in the smuggling has to be assessed - as the safeguarding of the migrant inarticle 5 only defines the smuggled migrant as an object of smuggling. Once the Protocol is ratified wewill have more information on how this article is implemented in practice.
Article 6 defines the scope of criminalisation, including:• The smuggling of migrants;• Producing, procuring, providing or possessing a fraudulent travel or identity document for the
purpose of smuggling of migrants;• Enabling a person to remain illegally
Although smuggling of migrants is defined only as the illegal entry into, not the stay in, anotherState, article 6 also criminalises the enabling of a person to remain illegally. Hence, the organisation or
procuring of the offence of smuggling covers not only entry but also illegal stay. The interpretative notes
highlight that the offences set forth in article 6 should be seen as being part of the activities oforganised criminal groups. In this respect, the Protocol follows the precedent of subparagraph 34.2 of
the Convention which outlines that offences “shall be established independently of the transnational
nature or the involvement of an organized criminal group”. Furthermore the Protocol does not
13 The definition of transnational in nature, and organised criminal group can be found in articles 2 and 3 of the Convention on

Organised Crime. An organised criminal group is a structured group of three or more persons (also 2 is enough) with the aim ofcommitting one or more serious offences in order to gain financial or other material benefit. A transnational offence should becommitted in more than one State, or planned in more than one State, or involving an organised criminal group, or has effects
in another State.
14 It is important to note here that the reference to the criminalisation of possession of falsified documents in the Protocol only

covers the act of smuggling of migrants, not illegal entry as such.

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criminalise any humanitarian support groups or family members, only organised criminal groups
acting for profit.
The criminalisation of possession of fraudulent documents shall apply only to the organisers of
smuggling, not to smuggled migrants who might hold fraudulent documents in order to enable his or
her own smuggling.
Subparagraph 6.2 includes additional acts that shall be established as criminal offences attempting,participating as an accomplice, organising or directing others to commit an offence established inaccordance with paragraph 1 of this article.
In some countries attempt can be understood as acts perpetrated in preparation for an offence, andalso those acts carried out in an unsuccessful attempt to commit the offence, when those acts arepunishable under domestic law. The implementation of article 6 should simultaneously consider therights of the migrants as outlined in article 5. With reference to the earlier discussion on the possible
criminalisation of the smuggled migrant, it is necessary to note that “participating as an accomplice”
should not, ideally, criminalise the participation of the smuggled person as merely an object in thesmuggling operation.
Subparagraph 6.3 deals with aggravating circumstances to the smuggling offences. These include
circumstances that:• endanger or are likely to endanger the lives or safety of the migrants concerned• entail inhumane or degrading treatment, including for exploitation
The aggravating factors refer to not only the principal offence of smuggling of migrants but also to
the producing of fraudulent travel documents, and to enabling a person to remain illegally in a State.
During negotiations for the Protocol, a number of State Parties wished to include exploitation of the
migrants as an aggravating factor. This was thoroughly discussed, as exploitation is so closely linked tothe definition of trafficking in persons and the scope of the Trafficking Protocol. As a compromise,
exploitation was included through referring to inhuman or degrading treatment, including certain
forms of exploitation. This exploitation can be interpreted to include e.g. sexual violence targeted at
female migrants which takes the form of exploitation. The exploitation is supposedly short-term and isperhaps not as systematic as the exploitation taking place in trafficking crimes. It was agreed that theinclusion of exploitation should be without prejudice to the exploitation outlined in the Trafficking
Protocol. In some situations it might be difficult to establish the difference between exploitation of
smuggled migrants and trafficking. However, States combating the smuggling of migrants will most
likely also work towards the prevention of trafficking in persons. Hence both Protocols can and will be
implemented in parallel.
The final paragraph of article 6 states that State Parties shall have the right to take measuresagainst persons who commit acts that are offences in domestic law. Hence also smuggled migrants can,and will, be charged for crimes that are defined as a crime in the domestic legislation. This provision
thus recognises that States have the right to act on their own territory according to domestic
legislation. The interpretative notes furthermore highlight that the measures should be interpreted toinclude both criminal and administrative sanctions.
B. Part II - Smuggling of Migrants by Sea (articles 7-9)
Part II of the Protocol deals extensively with measures related to the smuggling of migrants by sea.
The smuggling of migrants by sea is often more unsafe and risky for migrants than other forms oftransportation. On sea, hygiene can be poor and the vessels may lack sufficient reservoirs of drinking
water and food. Additionally, the treatment of the migrants by the smugglers or operators can be very
violent. The smuggling by sea also places States in difficult situations when they try to take measures
towards cases of smuggling. Border control for migrants arriving via land is easier as there are control
points at both sides of the border. When migrants arrive by sea, the control is only in the hands of thereceiving state. Furthermore, migrants may land anywhere, not just at formal points of bordercrossings. Additionally, in dealing with migration by sea, states must consider and respect several

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international laws and regulations. The second part of the Protocol hence obliges States to adopt newprovisions dealing particularly with smuggling of migrants by sea.
Articles 7, 8 and 9 in the second part of the Protocol are largely based on the Convention against
Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 1988 and the interim measures forcombating unsafe practices associated with the trafficking or transport of migrants by sea of theInternational Maritime Organization (IMO). The negotiations for this section of the Protocol focusedlargely on maritime law and the articles were scrutinised by experts in maritime law15.
One of the main aims of the Protocol is to facilitate and encourage international co-operation so thatthe smuggling of migrants can be prevented and combated. This co-operation is especially necessary
when dealing with smuggling by sea. According to article 7 States shall co-operate to the fullest extent
possible to prevent and suppress the smuggling of migrants by sea in accordance with international
maritime legislation.
Article 8 deals with direct measures against the smuggling of migrants by sea. This provision
covers both indirect and direct smuggling. Thus also larger ships that transport migrants on the open
sea and later transfer them to smaller vessels that take them to the shore shall be included within thisparagraph. This is often the case, for example, in the U.S. where there are several instances ofsmuggling where the migrants are transferred from larger ships to smaller pick up vessels offshore forthe final ride to the U.S.
States can ask for assistance from other states in stopping a vessel which is under its flag, being
used or suspected of being used for the smuggling of migrants. Furthermore, if a State suspects that a
vessel under some other State’s flag is engaged in the smuggling of migrants it can notify the flag Stateand if authorised, it can board and search the vessel and take measures with respect to the vessel andpersons and cargo on board. Similarly, if a vessel is without nationality, State Parties may board andsearch the vessel.
The meaning of the word “board a vessel” was discussed at the negotiations for the Protocol as somedelegates wondered whether it authorises the boarding of a vessel against the will of the person in
charge of it. The Protocol does allow the boarding of a vessel against the will of the person in charge if
the flag state authorises the measure. However, in implementing article 8 it is crucial to observe article
9 dealing with safeguard clauses.
The rest of article 8 deals with different duties, such as the duty to inform about any measurestaken, the duty to respond immediately to requests concerning the registry of vessels, and the duty not
to take any unauthorised measures. However, states may take measures to relieve imminent danger tothe migrants themselves, or the crew members on board and the boarding parties. The use of force is
excluded from this paragraph as delegations could not reach consensus. It was also feared that thereference to use of force would encourage rather than limit the use of force.
Article 9 deals with the safeguard clauses related to the measures taken in accordance with article
8 of the Protocol. Article 9 is important for ensuring that the measures are humane and legal.
The actions shall:• ensure the safety and humane treatment of the persons on board• take due account of the need not to endanger the security of the vessel or its cargo• take due account of the need not to prejudice any commercial or legal interests• ensure that any measure taken with regard to the vessel is environmentally sound.
Thus when boarding and searching a vessel in accordance with the Protocol, the persons on board
shall be guaranteed their human rights. This should apply to all persons on board, regardless of
15 The interpretative notes outline that these provisions of the Protocol should not prejudice the principles, rights, obligations or

responsibilities under international instruments of maritime law.

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whether they are organisers of smuggling or smuggled migrants. The environmentally sound measuresthat should be taken can be interpreted to refer, for example to situations where the vessel is worn-out
and there is risk that it may sink, thus causing not only environmental hazards (e.g. oil leakage) but
also a risk to sea traffic.
The further safeguard clauses outline the right to compensation for vessels that are damaged whenno justification for the measures taken can been found (para 9.2). The responsibility of compensation
should be understood to lie on the State that took the measure that damaged the vessel.
Furthermore, the measures taken in accordance with article 9 shall not interfere or affect:• the rights and obligations of coastal States in accordance with the international law of the sea• the authority of the flag State to exercise jurisdiction and control in administrative, technical andsocial matters involving the vessel
Hence, although another State can take penal action against the illegal smuggling of migrants, theflag State keeps any other authority and obligations over the vessel, its passengers and crew.
Finally, subparagraph 9.4 determines that any measures taken at sea in accordance to thesmuggling of migrants by sea shall be carried out only by warships or military aircraft, or by otherships or aircraft clearly marked and identifiable as being on government service.
C. Part III - Prevention, Co-operation and Other Measures (articles 10-18)
The third part of the Protocol deals mainly with measures directed towards immigration and bordercontrol. This focus is due to the fact that the smuggling of migrants is most efficiently exposed andstopped at immigration.
Article 10 deals extensively with the information duties of State Parties in order to facilitate theprevention of smuggling of migrants. Those States with common borders or located on routes along
which migrants are smuggled, shall exchange relevant information on:• Embarkation and destination points and routes, carriers and means of transportation• Identity and methods of organisations engaged or suspected of being engaged in smuggling• Authenticity and proper form of travel documents• Means and methods of concealment and transportation of persons, including unlawful alterationof travel documents• Legislative experiences and practices• Scientific and technological information useful to law enforcement
Additionally, States shall comply with any restrictions placed on information they receive fromother States (para 10.2).
Article 11 of the Illegal Migrants Protocol deals with border measures. The wording is almost
exactly the same as in the Trafficking Protocol.
Without prejudice to international commitments in relation to the free movement of people,
State Parties shall strengthen, to the extent possible, such border controls as may be necessary to
prevent and detect the smuggling of persons.
The implementation of this paragraph calls for a careful balance between freedom of movement andborder controls. While States strengthen border control measures to detect the smuggling of migrants,
it should not happen at the expense of people’s rights of freedom of movement. Nor should it
compromise the human rights of migrants or other people moving across borders. At the same time,
however, border control is the spot where States have the greatest chance of revealing cases of migrants
smuggling. Thus States need to improve measures to detect the smuggling of migrants and to hinder
the crime while simultaneously avoiding any unnecessary inconveniences to people moving across39

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borders, or any human rights infringements. One key to improved practice in this regard is increased
and continuous training of officials.
Article 11 furthermore requires States to adopt measures to prevent transport operated bycommercial carriers. States shall also oblige such commercial carriers or companies to ascertain thatall passengers have necessary travel documents and provide for sanctions in case of violations of thisobligation. States can also permit the denial of entry or revocation of visas of persons involved inorganising smuggling. Finally, States shall consider strengthening co-operation among border control
agencies by establishing and maintaining direct channels of communication.
The interpretative notes to the Protocol highlight that commercial carriers only have an obligation
to determine whether the passengers have valid travel documents, not to judge the validity orauthenticity of the documents. Additionally, in implementing these regulations, carriers shall notoverly hinder the free movement of legitimate passengers.
Article 12 deals with the security and control of documents, and similarly to the Trafficking
Protocol, it obliges States to ensure that their travel or identity documents cannot easily be misused,falsified or unlawfully altered, replicated or issued and to ensure the integrity and security of these
documents and to prevent their unlawful creation, issuance and use.
Article 13 of the Protocol deals with the legitimacy and validity of documents. At the request ofanother State, a State Party shall verify within a reasonable time the legitimacy and validity of travelor identity documents issued or purported to have been issued in its name and suspected of being used
for smuggling of migrants.
Article 14 covers training of authorities and technical co-operation between States. First of all,specialised training shall be directed to immigration and other officials. The aim of the training is bothto prevent smuggling and to make sure that the officials respect the rights of the migrants and treat
them in a humane way (para 14.1). As already noted, this is important in the implementation of theborder measures. Additionally, States shall co-operate with each other and with other organisations
and civil society to ensure that the training is adequate. The training itself is quite technical and shall
include:• Improving the security and quality of travel documents• Recognising and detecting fraudulent travel or identity documents• Gathering criminal intelligence - on identifying criminal groups, methods of transportation used,misuse of travel documents and means of concealment used
• Improving procedures for detecting smuggled persons• The humane treatment of migrants and the protection of their rights as set forth in this Protocol
The training for preventing and combating the smuggling of migrants largely focuses on
immigration related measures and on measures of the criminal justice system. The humane treatmentof migrants is included at the very end. Contrary to the Trafficking Protocol, the Migrants Protocol
does not in this article highlight the need for gender- or childsensitive training and treatment. This
reflects the understanding that the smuggling of migrants is not, contrary to trafficking, a problem thatspecifically affects women and children. However, it is important to note that women migrants might
have special needs, e.g. medical needs, that should be covered in both the training and treatment of the
migrants.
The final provision of article 14 declares that those States that have relevant expertise in the fieldof combating the smuggling of migrants shall consider providing technical assistance to countries oforigin or transit. This provision reflects the idea that the fight against human smuggling is a sharedglobal problem which requires international co-operation and sharing of expertise.
In article 15 the Protocol deals with other preventive measures besides those focusing on border andimmigration control. Similarly to the Trafficking Protocol, the Migrants Protocol calls for awarenessraising among the public. The awareness-raising shall focus on informing the public about the criminal

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character of smuggling of migrants and about the impacts of organised criminal groups who smuggle
for profit. The awareness-raising should also outline the risks such smuggling poses to the migrants
themselves. The main aim with the awareness-raising is to prevent potential migrants from falling
victim to organised criminal groups. It should not aim at preventing migration as such.
Article 15 also reflects some views presented during the negotiations that the problem of illegal
migration should be combated at its origin. Hence countries are asked to strengthen co-operation andprogrammes, especially in deprived areas, to combat the socio-economic causes of the smuggling of
migrants, such as poverty and underdevelopment.
The provisions on the protection of and assistance to migrants are perhaps the most interesting
paragraphs of the Protocol. Article 16.1 declares that all State Parties shall take all appropriate
measures to preserve and protect the rights of persons who have been the object of smuggling. Morespecifically, migrants shall have the right to life and the right not to be subjected to torture or othercruel, inhumane or degrading treatment or punishment. The right for protection only refers to thosemigrants that have been the object of smuggling as outlined in the Protocol. It excludes any othermigrants. However, the Protocol should not be interpreted to exclude any existing obligations or rightsthat are not explicitly listed in the Protocol. Hence the Protocol does not limit any other obligations
that States have towards the protection of migrants as outlined in other international agreements.
Additionally, States shall protect migrants from violence that may be inflicted upon them. After all,there is the danger that the organisers of the smuggling might inflict violence on migrants who, forexample, reveal who was responsible for the smuggling. This provision should also include theprotection from violence by state officials.
Similarly to the Trafficking Protocol, States shall give appropriate assistance to migrants whose
lives or safety are endangered. This protection clause is thus not as broad as the protection clause in
the Trafficking Protocol according to which protection should be offered to any victims of trafficking.
Additionally, States shall take into account the special needs of women and children in implementing
these measures of protection and assistance. During negotiations, some non-governmentalorganisations called for the need to recognise the specific protection needs of smuggled women andchildren. Although the Protocol does include women and children in this subparagraph, the focus isquite weak. In implementing all provisions of the Protocol it would thus be important to cover the
special needs of children and women as smuggled migrants.
The final provision of article 16 refers to the Vienna Convention on Consular Relations as a
guideline for dealing with smuggled persons who have been detained. According to this Convention,
States must always inform the consular authority of the State of the detained person about themeasures taken.
Additionally, States shall also utilise bilateral and regional agreements to prevent and combat thesmuggling of migrants and enhance the Protocol (article 17).
In addition to protection of smuggled persons and assistance, the Protocol deals with repatriation of
smuggled migrants. The Protocol facilitates the repatriation of migrants through article 18. EachState Party agrees to facilitate and accept, without undue or unreasonable delay, the return of asmuggled person who is a national or has the right of permanent residence in its territory at the time of
return (para 18.1). Contrary to the Trafficking Protocol, the Migrants Protocol does not cater for
smuggled persons to stay in the country of destination or transit. According to general understanding,established during negotiations of the Protocol, migrants are not regarded as victims in the samemanner as trafficked persons are.
Furthermore, States shall, when possible, facilitate and accept the return of smuggled migrants
who had the right of permanent residence in the country of origin at the time of entry in the receiving
State (para 18.2). The difference between paragraphs 1 and 2 is that the former deals with persons who
still have the nationality or permanent residence of a State upon return. The latter deals with the caseof a person who had the right upon entry to the receiving State but no longer has it.

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Additionally, States shall verify the nationality or residenceship upon request (para 18.3), issue
travel documents for persons without proper travel documents who are being returned (para 18.4), andcarry out the return of a person in an orderly, safe and decent manner (para 18.5). Additionally, States
may co-operate with relevant international organisations in implementing article 18.
Finally, the savings clause (article 19) states that the Protocol shall not affect any other rights,
obligations or responsibilities of States and individuals under international law, including
humanitarian, human rights and refugee laws. Many asylum seekers, also those with genuine claims
for asylum, are being transported by means that are covered by this Protocol. Hence they enter theState illegally, and are thus covered by, for example, the measures of repatriation as outlined in the
Protocol. At the request of mainly human rights organisations the notion of non-refoulement was
included in the Protocol16. That is, illegal entrance to a State shall not negatively affect a person’s
claim for asylum in that State. Furthermore, the Protocol shall not be interpreted in a way that is
discriminatory to smuggled migrants. During negotiations it was also agreed that the Protocol shall notcover the status of refugees.
The final articles cover the usual provisions, including settlement of disputes, ratification measures,
entry into force, amendment, and denunciation.
V. REQUIREMENTS AND SUMMARY
A. Main Ratification Requirements
The four main requirements for ratification of the Migrants Protocol involve the following:
State parties shall:• Criminalise the smuggling of migrants and the other acts outlined in article 6• Undertake legislative or other measures to prevent the misuse of commercial carriers for thesmuggling of migrants (article 11)• Give legal obligation for commercial carriers to check passenger travel documents (article 11)• Prepare travel documents that are difficult to misuse, falsify, alter or replicate (articles 12-13)
B. Summary of the Aims
The main aims of the Protocol are to:•

While not compromising the human rights of the smuggled migrants, to• prevent and combat the smuggling of migrants through:• hindering the smuggling of migrants through commercial carriers• guaranteeing the quality and security of travel and identity documents• providing information to the public to prevent potential migrants of falling victim to organised
criminal groups, and•increase co-operation among States in:• preventing smuggling by sea• improving exchange of information• verifying travel documents• training officials• providing technical assistance, and• enhancing the underlying socio-economic causes of migration.

16 See the International Human Rights Network’s joint NGO submission to the eight session of the Ad-Hoc Committee on the

Elaboration of a Convention against Transnational Organised Crime.

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In order to prevent and combat the smuggling of migrants it is thus necessary to reveal more casesof smuggling and to sanction the smugglers. Although there are many good examples of sharing of
information there is need for intensified co-operation among law enforcement agencies to combat theuse and producing of falsified documents. There is also the need for prosecution guidelines andmultiagency working groups, both nationally and internationally.
As to the preventive measures, economic incentives and information campaigns can have an effectin preventing the smuggling of migrants in the first place. Some argue that legal immigration
programmes could be one solution for curbing smuggling. There are different experiences of thisapproach. In Germany, there exists very little smuggling of persons from Poland as compared to othercountries in the vicinity of Germany. Polish citizens can obtain legal entry quite easily in German.
However, counter arguments from the U.S. and Canada claim that despite means of legal migration,these two countries continue to attract large numbers of illegal migrants17.
In implementing the Protocol it is crucial to focus both on the organisations procuring thesmuggling, and the people being smuggled. We can all agree that organised crime must be combatedsince it poses a national security problem to all states. However, the smuggling of migrants is not just a
problem of transnational organised crime, but also a problem of human security, that is, of the securityof the persons being smuggled18. Hence any criminal justice measures need to, ideally, also recognise
the point of view of the persons being smuggled. The major global threat is not the high number ofpotential migrants being smuggled. The major threat is instead the organised criminal networks that
operate around the globe. With delicate implementation of the Protocol to Prevent the Smuggling of
Migrants the international community can both ward off some of the threats of transnational organised
crime, and protect the security of those who are less fortunate.
REFERENCES
Bruggeman, Willy (2002). The Fight Against Organised Crime: Possibilities, Problems andOpportunities, with a Special Focus on the EU. In Arbrecht, H-J. and Fijnaut, C. (eds). The
Containment of Transnational Organized Crime. Comments on the UN Convention of December 2000.
Krimonologische Forschungsberichte 108. Max-Planck-Institut fur Auslandishes und Internationales
Strafrecht.
Goodey, Jo (2000). Keeping ‘Undesirables’ at Bay: The EU’s Response to Organised Crime and Its
Victims. Paper presented at the American Society of Criminology meeting, San Fransisco, 15-18
November 2000.
International Human Rights Network’s joint NGO submission to the eighth-session of the Ad-Hoc
Committee on the Elaboration of a Convention against Transnational Organised Crime.
www.december18.net/jointsubVienna.htm
Report of the Regional Ministerial Conference on People Smuggling, Trafficking in Persons andRelated Transnational Crime, Bali, Indonesia, 26-28 February 2002.
http://www.dfat.gov.au/illegal_immigration/people_on_the_move_global.html
Conference Report of the two Transatlantic Workshops on Human Smuggling, organised by The
European Forum for Migration Studies at the University of Bamberg and the Institute for the Study ofInternational Migration at Georgetown University. Complied by Heckmann, F., Wunderlich, T., Martin,S., and McGrath, K.
http://www.uni-bamberg.de/projekte/humsmug/

17 Conference Report of the two Transatlantic Workshops on Human Smuggling.
18 See Goodey, J. (2000).

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