OVERVIEW OF THE PROVISIONS OF THE UNITED NATIONSCONVENTION AGAINST TRANSNATIONAL ORGANIZEDCRIME AND ITS PROTOCOLS
Dimitri Vlassis*
I. THE NEW CONVENTION:
A NEW ERA IN INTERNATIONAL
COOPERATIONIn December 1998, the United Nations
General Assembly established1 an Ad Hoc
Committee for the elaboration of the
U nited N ations Co nven tio n a ga inst
Transna tional Orga nized Crime andthree additional Protocols addressing:trafficking in persons, especially womenand children; illegal trafficking in andtra nsporting of migra nts; and illicit
m anufa cturing of a nd traff icking infirearms, their parts and components andammunition. In establishing thisCommittee, the Assembly took a giant
step toward closing the gap that existed
in international cooperation in an area
generally rega rded as one of the top
priorities of the international community
in the 21st century. The Assembly also
lay to rest the uncertainty anduneasiness that surrounded the endeavor
by manifesting the collective political willof all States to tackle conceptual andpolitical problems and find commonly
acceptable solutions. One year later, in
December 1999, the General Assembly
adopted another resolution2, by which it
asked the Ad Hoc Committee to intensify
its work in order to complete it by the endof 2000. The Assembly thus formalized

the deadline under which the Ad Hoc
Committee had been working since its
establishment. Apart from the symbolism
in v o lv e d , th e d e ad li ne r e f le ct s th e
urgency of the needs faced by all States,
developed and developing alike, for new
tools to prevent and control transnationalorganized crime. It also reflects the needof sustaining and building on them o m e n t u m th a t m a d e t he o r i g in a ld e ci sio n p o s sib le in o r d e r to f o st er
consensus while not compromising thequality of the final product.1 2
The process leading up to theestablishment of the Ad Hoc Committee
may seem long and arduous. However,
the reader is urged to keep in mind that
only four years passed from the time thatthe idea of a convention first surfaced
until the official commencement of thene go tia tion p ro ce ss. T his co m p a re s
extremely favourably with other similar
initiatives, especially in areas that are ascomplex as that of criminal justice andthe development of international criminal
law. Further, the Ad Hoc Committee
charged with conducting the negotiations
operated from the beginning under a selfimposed short deadline3, which is rather
unusual in international negotiations of
1

See General Assembly resolution 53/111 of 9
December 1998. In resolution 53/114, also of 9

* Crime Prevention and Criminal Justice Officer,

December 1998, the General Assembly asked theSecretary of the AD HOC Committee for the

Ad Hoc Committee to devote sufficient time to the

Elaboration of the United Nations Convention

elaboration of the Convention and the three

Against Transnational Organized Crime, United
N a t i o n s C e n t r e F o r I n te r n a ti o n a l C r i m ePrevention (United Nations)452

additional international legal instruments.
2

See General Assembly resolution 54/126 of 17
December 1999.

119TH INTERNATIONAL TRAINING COURSE
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this sort, especially in the context of theUnited Nations. This deadline set a very
vigorous pace for the negotiations, whicho f te n tax e d he av ily t he c a p a c ity o fsmaller delegations.
The reader should also keep in mind
that the Ad Hoc Com mittee was
essentially negotiating in parallel fourinternational
legallybinding
instruments. All this notwithstanding,
the Convention was finalized in July, a
few months ahead of schedule, and two of
the Protocols were completed within thed e ad l in e , in s p it e o f t he nu m e r o u scomplexities and political concerns theymight have entailed.
Finally, the reader should always bearin mind that the United Nations is ag lob a l or ga n iz a tio n f o un d ed o n th e
principle of equality. The concerns of all
S tat es , b ig or sma ll, more or lesspowerful, deserve equal attention andshould be taken into account in all of theactivities in which the United Nations is
e n ga ge d . Th e p ri nc ip a l str e ng th o finternational action, especially that of anormative nature, is its universality. In
the case of an instrument intended toaddress an issue as complex as
transnational organized crime, the active
participation of both developing anddeveloped countries from all regions isessential. The very nature oftransnational organized crime, with theability of criminal groups to seek the mostfavourable co nditions for theiroperations, demands no weak links in the
chain of joint action.
The spirit guiding the negotiations has
been one of constructive engagement andsensitivity to the concerns of everyone
3

It should be noted that the General Assembly
made this deadline official with resolution 54/126
of 17 December 1999.

involved in the process. Everyone agrees
that the objectives of the negotiations
cannot be expediency but consensus,
together with conscious and genuine
commitment, which are the cornerstonesof successful action. Consensus has often
been equated with weakness andobscurity, especially when it comes tonegotiated texts. It may be true that, at
first glance, many documents that havebeen the results of prolonged negotiations
may appear convoluted and inefficient.
A f te r a ll, ve ry o f te n o n e o f the k ey
elements of compromise is ambiguity.
Ha ving said this, how ever, it is a lso
important to bear in mind that equallyoften the ideal is far removed from thefeasible. A n international legal
instrument that upholds the highest
standards of clarity and directness ofla ng u a g e , a n d i nc l ud e s s tr o n g a n dstraightforward obligations is desirable
a nd c om m en d a b l e . I t a l s o d e s e rv e s
careful study at the academic level and isan essential component of any course ininte rn atio na l law . H ow e ve r, if thi s
instrument fails to come into force, or, if
it does, is acceded to and implemented bya handful of countries, its practical utility
becomes doubtful, to put it mildly, and isdestined to languish in library books andsoon forgotten.
The Ad Hoc Committee operated withthese guiding principles from the time ofits e s ta b li sh m e n t. T h e n e go t ia tio nprocess was highly participatory. Over125 countries participated in the sessionsof the Ad H oc C o mm ittee . With thegenerous help of Austria, Japan, Norway,
Poland and the United States, on average
23 of the Least Developed Countries (agroup of 48 countries from Africa, Asiaand Latin America determined by theGeneral Assembly each year) attended
the sessions. Its members agreed early onthat the quality of the final product wasessential. Other existing Conventions,453

RESOURCE MATERIAL SERIES No. 59
such as the 1988 Vienna Drug
Convention and the Convention against
T e rr or ist B om b in gs 4 wo uld pr o vid e
inspiration, as they had often dealt withsimilar issues. However, the Ad Hoc
Committee also agreed that everyc onsc ious effor t would be made to
improve upon the texts of these
Conventions, to the extent possible, ino r de r t o m e e t the ne e d s of the ne w
Convention and to reflect new trends.
Before proceed ing to giving an
overview of the text of the Convention, it
is important to note a very interesting
feature of the negotiation process. It will
be recalled that, to a large extent, thedriving force behind helping the idea ofthe conve ntion mature was theenthusia sm of d eveloping countries.
Faced with the breakneck pace of thenegotiations, several developing countries
began complaining that the deadline washaving an impact on their ability to study
the text fully and prepare their positions.
These countries felt that keeping thedeadline should not have an adverse
im p a c t o n th e ability o f de ve lo p ing
countries to express their concerns andnegotiate solutions they regarded as
acceptable. In addition, as the text was
gradually embellished and enriched withn e w p r o p o s a ls , s e v e r a l d e v e lo p i n g
countries started to entertain fears thatde velop ed countries viewed theConvention as an opportunity to impose
approaches and solutions on their lesspowerful counterparts, and this was thereason that the Convention had become
highly desirable to them.
Criminal justice is an integral
component of a country’s soul and, assuch, one of the key attributes ofsovereignty. In a rapidly developing and4

Adopted by the General Assembly by resolution
52/164.

454

very demanding field as action against
transnational crime, particularlyorganized crime, the tendency to expand
jurisdiction at will, in order to respond to
specific exigencies, has been noted andfeared. Further, developing countries
realized that the new Convention would
impose a multitude of obligations, which
would require the investm ent ofconsiderable resources. With limited
reso urces a nd com pe ting prio rities,
especially at present when most efforts
are directed towards addressing problems
related to infrastructure and meeting thechallenges of globalization, many of thesecountries foresaw the difficulty ofmeeting those obligations. This latter
dimension of the thinking of those few
countries was also a result of two
perceptions.
Firstly, all developing countries andcountries with economies in transition
had gradually become aware, in a more orless painful way, of the ramifications andpo tential of mo de rn transnationalorganized crime. However, for several ofthem the problem had not caused
dramaticcrisesdomestically.
Consequently, the new obligations wereviewed as being out of proportion with
their domestic experiences and theirpolitical agenda at home.
Secondly, many policy-makers in somedeveloping countries had geared theirthinking towards the short-term, mainly
as a result of pressing needs.
Consequently, the implications of the
expansion of transnational organizedcrime were not included as a parameterin the development of policies for the
future . I n add itio n, this short- te rm
thinking could not capture theramifications of concerted action against
transnational organized crime, using the
new Convention as the framework andmain tool. In other words, the short-term

119TH INTERNATIONAL TRAINING COURSE
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thinking failed to assess the impact of thetendency of organized criminal groups toseek conditions of relative safety when
governmental action increases the risk
and cost of operations. It should be madevery clear that the political commitment
and the conviction about the need for the
C o nv e n t io n a n d t h e d e s ir a b il it y o f
concluding it remained totally
undiminished. The negotiations,however, went through a phase of caution
on the part of several developing
countries and became, as a result, more
intricate.
The new Convention can be divided
into four main areas: criminalisation,interna tional coo peration, technicalcooperation and implementation.
It will be recalled that one of the main
reasons for the initial scepticism waswhether the concept of transnationalorganized crime could be defined in an
appropriate manner, from both the legal
and political perspectives. The
negotiators decided to use a two-pronged
approach to the issue. First, it was agreed
that it would be sounder to define theactors rather than the activities. The
rationale behind this approach was thatthe international community wasem ba rking on negotiating a b inding
international legal instrument for the
future. Organized criminal groups are
known to shift from activity to activity,from commodity to commodity and among
geographical locations, often on the basisof what in the business world would becalled a cost-benefit analysis.
Given this known characteristic, itwould be futile to try and capture in anegotiated legal text everything thatthese groups are known to engage in atpresent or might decide it makes goodbusiness sense to carry out in the future.
In this context, the Convention defines anorganized criminal group as being “astructured group of three or more persons
existing for a period of time and acting inconcert with the aim of committing one ormore se rious crimes or offences
established pursuant to [the] Convention,in order to obtain, directly or indirectly, afinancial or other material benefit.”
Second, the new Convention should
bring about a certain level ofstandardization in terms of offences as
they are codified in national laws, as aprerequisite of international cooperation.
Working on these premises, the Ad Hoc
Committee begun discussing the conceptof serious crime. At the beginning, many
countries expressed doubts as to whether
the term would be appropriate, arguingthat it s igni fie s d if f e re nt t hin gs todifferent systems. It would be useful tobear in mind that this discussion wasclosely linked to the question of whether
the Convention would include a list ofoffences.
The A d H oc Co mm ittee asked theSecretariat to carry out an analytical
study on serious crime and on if and how
the concept was reflected in nationallaws. The study, which was based on the
responses of over 50 States, showed thatthe concept of serious crime was wellunderstood by all, even if thequalification might not necessarily be
used in legislation. The doubts about, orobjections to the use of the term
gradually subsided. Serious crime isd e f in e d a s “c o n d u c t c o n s ti t ut i n g acrim inal offence punishable by amaximum deprivation of liberty of at
le a s t f o u r y e a r s o r a m o r e s e r i o u spenalty.”T h e C o n ve n t io n e st a b li sh e s f o ur
offences: (a) participation in an organizedcriminal group; (b) money laundering; (c)corruption; and (d) obstruction of justice.

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The provision establishing the offenceof participation in an organized criminalgroup is a carefully crafted one, whichbalances the concept of conspiracy in thecommon law system w ith that of thevarious versions of participation as suchversio ns have evolved in various
continental jurisdictions. The aim was topromote international cooperation under
the C onvention by ensuring thecompatibility of the two concepts, without
attempting to fully harmonize them.
The provision on criminalisation ofm oney laundering departs from aprevious similar provision in the 1988
V ienna Drugs C onve ntio n, b ut go esb ey ond by ex pandin g th e s cope ofpredicate offences covered.
The provision on the establishment of
the offence of corruption was the subjectof considerable debate, mainly because it
was deemed a limited effort against am uch broad er phenome non. The
approach finally selected was to include a
provision in the Convention, in view ofthe fact that corruption is one of themethods used, and activities engaged in
by organized criminal groups. This wasdone on the understanding tha t thisConvention could not cover the issue of
corruption in a comprehensive mannera nd a sepa rate convention w ould b eneeded for that purpose. In fact, on therecommendation of the Ad Hoc
Committee and the Commission, theGeneral Assembly adopted a resolution5on this matter. This resolution sets out
the preparatory work, which would need
to be carried out in 2001, for theelaboration of the terms of reference ofth e n eg otia tion of a n ew s epar ate
convention against corruption. Following
the completion of this work, a new Ad Hoc

5

General Assembly resolution 55/61.

456

Committee will be established and asked
to negotiate the text.
Finally, the provision establishing theoffence of obstruction of justice captures
the use of force, intimidation or bribery tointe rf ere with w itnes ses or e xp er ts
offering testimony, as well as with theperformance of the duties of justice or law
enforcement officials.
In the area of international
cooperation, the Convention includes
articles on extradition, mutual legal
assistance, transfer of proceedings andlaw enforcement cooperation.
The provision on extradition adopts theapproach of double criminality to this toolof international cooperation. The article
provides that most of the particulars of
extradition would be essentially left tonational legislation or treaties that exist
or will be concluded between States. It is
for this reason that, with the exception ofa safeguard clause on prosecution orpunishme nt on account of sex, race,
religion, nationality, ethnic origin orpolitical opinions, the article does notcontain grounds for refusal of extradition.
There is an implicit recognition ofnationality as a traditional ground forrefusal of extradition, because this was
identified a s an area where the newConvention could not attempt to bringabout change in national legislation, due
to very strict traditions or constitutional
impediments. The Convention, however,embodies the principle aut dedere aut
judicare when extradition is refused on
the ground o f the na tiona lity of thealleged offend er. The article o n
extradition provides that the offences
covered by the Convention w ould be
deemed to be included as extraditableoffences in any treaty existing between
States Parties, or would be included infuture treaties. States Parties can use the119TH INTERNATIONAL TRAINING COURSE
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Convention for extradition purposes even
if they make extradition conditional on atreaty. Those which do not makeextradition conditional on a treaty willrecognize the offences covered by the
C onve ntio n a s extrad itab le offences
between themselves.
A n othe r im po rta nt fe a ture of th e
article is that it contains an obligation forStates Parties to try and resolve
differences by consultation before theyrefuse an extradition request.
The article on mutual legal assistanceis much more extensive, having beencalled by some a “treaty within a treaty”.
In its 31 paragraphs, the article detailse v e r y a sp e ct o f m u tu a l a s si st a n c e ,in clu d ing gr o und s f o r r ef u sal. I t isimportant to note that, while the article
is largely based on similar provisions inother Conventions, it brings forth theconsiderable evolution of the concept ofmutual legal assistance, as one of the
primary tools of international cooperation
against transnational crime. In this vein,
the article speaks of the use of modern
technology, such as electronic mail for thetransmission of requests, or video link forthe giving of testimony. The Convention
also includes language regarding the
spontaneous provision of information andassistance, without prior request. In thearea of law enforcement cooperation, theC o n v e n ti o n i n c lu d e s p r o v is i o n s o n
e x c ha n ge o f in te l li ge n c e a nd o th e r
operational information and on the use ofmodern investigative methods, with theappropriate safeguards.
P rio r to p rocee ding to the a rea o ftechnical cooperation, it is important tomention that the Convention includes
detailed provisions on the development ofregulatory regimes to prevent and control
money laundering and on confiscation,
including provisions on the sharing ofconfiscated assets. The Convention also
includes provisions for the protection of
w i tn e ss e s, a k e y c o m p o n e n t o f a ny
successful action against organized crime.
The relevant article includes a provisionasking States to consider entering into
agreements with other States for the
relocation of witnesses. Further, and in
the same vein, the Convention includes
a n a r ti cl e o n th e p r o te c t io n o f a n d
assistance to victims and another on
measures to enhance cooperation withlaw enforcement authorities of persons
involved in organized criminal groups(those who have been described in recent
years using the Italian term pentiti).
As mentioned earlier, the involvement
and participation of all countries in thejoin t effor t ag ain st tr an sna tiona lorganized crime lies at the core of thedecision to negotiate a new international
legal instrument. It also inspired thenegotiations throughout the work of the
Ad Hoc Committee. The new Convention
will create numerous obligations forcountries, which range from updating or
adopting new legislation to upgrading thecapaci ty of their law enforcemen t
authorities and their criminal justicesystems in general. Many of the activities
required to meet these obligations areresource intensive and, as a consequence,
will create a considerable burden for thelimited capacities of developing countries.
The spirit of the discussions around thissubject has been very interesting. These
discussions have been based o n theunderstanding that the implementationof the Convention would be in the interestof all countries. Consequently, such
implementation would be theresponsibility of all countries, regardlessof their level of development. Developing
countries would gear their systems andbring their limited resources to bear indischarging this responsibility. However,everyone recognizes that, once this has

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RESOURCE MATERIAL SERIES No. 59b een done, there will be many a reas
where developing countries and countries
with ec ono m ie s in transition wo uld
require significant assistance until they
are able to bring all their capacities up to
a common standard.
Following extensive discussion, theC onve ntio n includes tw o a rticles ontechnical cooperation, one intended tocover cooperation to develop specifictraining programmes and the other todeal with technical assistance in the moret r a d i ti o n a l se n s e o f t h e t e r m , i . e . ,involving financing of activities at thebilateral level or through internationalorganization s, s uch as the United
Nations. The latter provision foreseesthat States Parties will make concrete
efforts to enhance their cooperation withd evelop ing countries with a view tostrengthening the capacity of the latter top r e v e n t a n d c o m b a t t r a n s n a ti o n a lorganized crime.
States Parties are also aske d toenhance financial and material
assistance to developing countries inorder to support efforts to implement theConvention successfully. For thep ro vision of te chnic al assistan ce todeveloping countries and countries witheconomies in transition, the Convention
f o re s e e s th a t S t a t e s P a rt ie s w o ul dendeavour to make adequate and regularfinancial contributions to an accountspecifically designated for that purpose ina United Nations funding mechanism.
The Ad Hoc Committee decided that thisaccount will be operated for the time
being within the Crime Prevention andCriminal Justice Fund, a mechanism set
up to receive voluntary contributions forthe technical cooperation activities of theC entre fo r International Crim ePrevention.

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In the resolution by which it adopted
the Convention, the General Assembly
established this special account under the
Crime Prevention and Criminal JusticeFund. It is interesting to note that almost
imm edia tely, do nor countries begun
making contributions to that account,dem onstrating the seriousness withwhich they regard the matter of providing
assistance to developing countries andcountries with economies in transition,even at the pre-ratification stage.
On implementation, the Convention
has taken a very interesting course. The
Convention will establish a Conference of
the Parties, which will have the dual taskof im pr ovin g th e ca p a city o f S ta te sParties to combat transnationalorganized crim e a nd to promote andrev iew t he impl em enta tion of t heConvention.
The Conference of the Parties willaccomplish these tasks by (a) facilitating
the activities of States Parties foreseen
under the articles on technicalcooperation, including by mobilizing
resources; (b) facilitating the exchange of
information among States Parties onpatterns and trends in transnationalo r g a n iz e d c r im e a n d o n s u c c e s s f u lpractices for combating it; (c) cooperatingwith relevant international and nongovernm ental organiz ations; (d)examining
periodicallytheimplementation of the Convention by
States Parties; and ( e) making
re comm end ations to improve theConvention and its implementation. The
relevant article goes on to say that theConference of the Parties will acquire thenecessary knowledge on the measures
ta ken b y t he Sta tes Parti es i n
implementing the Convention and on the
difficulties encountered by them in doing
so by the States Parties themselves, and119TH INTERNATIONAL TRAINING COURSE
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mechanisms as it may establish.
T he m e c h a n i sm se t u p i s a c le a r
movement forward from previous
practices in the field of implementation ofinternational conventions, at least in thec on te xt o f t he U n ite d N a t io ns. T h eprovision esta blishes a d ua l form o freview. On the one hand, it preserves themore traditional obligation, found in mostother Conventions, for States Parties tofile regular reports on the progress they
have made in implementation. This issu p ple m e nte d b y a d d itio na l re vie w
mechanisms, which the Conference may
establish. This is an indirect reference toa system of “peer review”, which has beendeveloped in various forms in recent
years in the context of regional
instruments. Another important featureof the provision is that the Conference of
the Parties will not only function as areview body. It will pay equal attention toserv ing as a foru m for developing
countries and countries with economies
in transition to explain the difficulties
they encounter with implementation andseek the assistance necessary to
overcome such difficulties. This link
between implementation and technicalcooperation and assistance reinforces thecollective will that guided thenegotiations to take into account allconcerns and needs and address themjointly in order to achieve the common
goals embodied in the new Convention.
Another innovative feature of the newConvention is an article on prevention.
The provision is designed not only tointroduce form ally the concept ofprevention, which is relatively new inaction against transnational organizedcrime, but also to include in theConvention some of the results of thelatest thinking in this field. The languageof the article is permissive, thus

reflecting the novelty of the concept andthe fact that it still needs to mature inorder to be treated more as an obligation.
However, given that States generallyinterpret even permissive provisions tom e rit th e be st p o ssib le e f f o rt s, t heimportance of the article is significant.
The provision transfers to the global level
efforts already discussed or undertaken
at the regional level. It is designed toencourage countries to take appropriate
le gisla tive , ad m inistr ative o r o thermeasures to shield their legal markets
from the infiltration of organized criminalgroups. Some of the measures foreseen
are the promotion and development ofstandards and procedures designed tosafeguard the integrity of public andpriva te e ntities, as w ell a s cod es ofconduct for relevant professions and theprevention of the misuse of legal persons
by organized criminal groups.
Perhaps the most interesting feature of
the Convention is its scope of application.
Its analysis was left last because of thelong debate its finalization required, butalso because it conditions the entire textof the Convention.
The Convention will a pply “to theprevention, investigation and prosecutionof (a) the offences established inaccordance with [the Convention]; and (b)serious crim e as defined [by theConvention], when the offence istransnational in nature and involves anorganized criminal group.” However, thecriminalisation obligations that countries
will undertake, regarding the offences
they would have to establish inaccordance with the Convention, would
be “independent”. This means that States
will legislate to establish as criminal
offen ces the four types of conduc t
described in the Convention, regardless ofwhether they are transnational or involvean organized criminal group.

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The Convention also definestransnationality. A n offence istransnational in nature if it is committed
in more than one State; it is committed in
one State but a substantial part of its
p r ep a r a tion , p la nnin g, d ire c tion o rcontrol takes place in another State; it iscommitted in one State but involves anorganized criminal group that engages incriminal activities in more than one
State; or it is committed in one State but
has substantial effects in another State.
In ad dition, the provisions on
extradition and mutual legal assistancec o n ta in s p e c if ic an d v e ry c a r e f u lly
negotiated language to permit applicationof these articles in order to establish boththe transnationality and the involvementof an organized criminal group. Solutions
to th ese m a tte rs w ere ba se d o n th ede monstrated political will of all
co untrie s involve d in the process toconclude a Convention that meets all
their concerns. Such solutions were alsob a se d on the share d de sire to re ach
agre em ent witho ut d im inishing thefunctionality and qua lity of the new
instrument.
II. THE THREE PROTOCOLS
A. The Protocol Against Trafficking
in Persons, Especially Womenand Children
1. General Provisions (Articles 1–5)
Article 1 sets out the rela tionshipbetween the Convention and the Protocol,
complementing Article 37 of theConvention. The same text appears in
A rticle 1 of the Protocol against thesmuggling of Migrants and has been
added as Article 1 of the revised draft
Protocol against the Illicit Trafficking in
Firearms. The Protocol supplements theConvention, and provisions of the twoshould be interpreted together.
460

Provisions of the Convention apply to theProtocol mu tatis mutan dis un les so th er w ise sp e c if ie d o r th e P ro to c o lcontains provisions which specificallyvary or are inconsistent with those of theConvention. All Protocol offences are also
regarded as Convention offences, whichmakes all Convention provisions (e.g.,legal a ssistance, applicable to cases
which involve only Protocol offences. The
Conference of States Parties, which isestablished by A rticle 32 of theConvention, will have similar functions
for each protocol by the application of
Article 32 to the protocol in question,
mutatis mutandis.
A rt ic le s 2 a nd 4 s e t out t he b a s ic
purpose and scope of the Protocol. The
Protocol is intended to “prevent a nd
co m b a t” t ra f f i ck in g in p e rs o ns a nd
facilita te international co-op era tio nagainst such trafficking. It applies to the“prevention, investigation andprosecution” of Protocol offences, but only
where these are “transnational in nature”
and in vo lv e an “or ganize d cr im inalgroup”, as those terms are defined by theConvention.
The key definition, “trafficking inpersons”, appears in Article 3. This term,
which is being defined for the first time,is intended to include a range of cases
where human beings are exploited byorganized crime groups where there is anelement of duress involved and atransnational aspect, such as the
movement of people across borders or
their exploitation within a country by atransnational organized crime group. The
definition is broken down into three listsof elements: criminal acts, the means
used to commit those acts, and goals(form s o f exploitatio n) . At least one
element from each of these three groups
is required before the definition applies.

119TH INTERNATIONAL TRAINING COURSE
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Thus, to constitute “trafficking inpersons”, there must be:•••an act of “recruitment, transportation,transfer, harbouring or receipt of
persons”;
by means of “the threat or use offorce or other forms of coercion, of
abduction, of fraud, of deception, of
the abuse of power or of a position ofvu lne rability o r of the giving o r
receiving of payments or benefits toa ch ie ve t h e c o ns e n t o f a p e r s o nhaving control over another person”;
for the purpose of exploitation,
which includes, at a minimum, “...the
exploitation of the prostitution ofo th e r s o r o t h e r f o r m s o f s e xu a l
exploitation, forced labour or services,slavery or practices similar to slavery,
servitude or the removal of organs.”

The question of whether a victim could
consent to trafficking was a major issue
in the negotiations. In many trafficking
cases, there is initial consent orcooperation between victims andtr affick ers follo we d later by mor e
coercive, abusive and exp loitive
circumstances. Some States, and many
NGOs felt that incorporating an elementof consent in the definition or offence
provisions would make enforcement andprosecution difficult because such early
consent would be raised by traffickers as
a defence. Other States felt that someelement of consent was needed to limit
the scope of the offence, distinguishtrafficking from legitimate activities andfor constitutional reasons. To resolve theissue, paragraph (b) of the definition
clarifies that consent becomes irrelevant
whe never any of the “means” oftrafficking has been used. This
compromise addressed the concerns ofboth positions. To further clarify the
relationship between consent, the offence
and criminal defences, it was agreed thatthe travaux preparatoires would draw
attention to Article 11(6) of the
Con vention, w hich applies to th is
Protocol mutatis mutandis, and which
ensures that existing criminal defences indomestic law are preserved.
2. Protection of trafficked persons(Articles 6–8)
The negotiation o f the Proto cols
against Trafficking in Persons and the
Smuggling of Migrants both found it
necessary to deal with the fact that theprim ary subject-ma tter, while of ten
treated as a commodity by smugglers andtraffickers, consists of human beings
whose rights must be respected and who
must be protected from various forms ofharm. The terms “smuggling” and“trafficking”, have acquired differentde finitions f rom those trad itiona lly
a ss oc ia t e d w ith na r c ot ic d r ug s, fo r
example. The need for an appropriatebalance between crime-control measuresa nd m ea sure s to supp o rt o r p ro tec ts m u g g l e d m i g r a n t s a n d v i c ti m s o f
trafficking arose in two primary places ineach Protocol: the provisions dealing withthe return of persons to their countries oforigin, and provisions expressly providing
for protection, support. These provisions
are similar in some respects, but they are
not identical. The language of the two
instruments also takes account of the factthat there are critical differences between
migrants, who have consented tosmuggling and for whom repatriation
generally poses no significant risks, andvictims of trafficking, who have been
subjected to various forms of coercion andwho face significant risks of revictimisation or retaliation if they aresent home, particularly if they ha ve
assisted law enforcement in prosecuting
their traffickers.
A r t i c le 6 o f t h e P r o to c o l a g a i n s t
Trafficking in Persons contains a series of461

RESOURCE MATERIAL SERIES No. 59
general protection and support measuresfor victims. Paragraphs 1 and 2 require
States Parties to take basic measures,s ubje ct to c on stituti on al o r sim ilar
constraints, which include shielding theidentities of victims and providing accessand input into legal proceedings. While
the physical safety of victims cannot
absolutely guaranteed, States Parties are
required to endeavour to do so by Article
6 ( 5 ), a s w e l l a s b y A rt ic le s 2 4 ( 2 )( a )(witnesses) and 25(1) (victims) of theConvention. Further measures in Articles
6(3) and 7 of the Protocol are subject tothe discretion of States Parties. These
include a list of social support benefits
such as counselling, housing, education,
medical and psychological assistance(Art. 6(3)) and an opportunity for victims
to obtain legal status allowing them toremain in the receiving State Party,
either temporarily or permanently (Art.
7). The provisions of Convention Articles
24 and 25 may also apply in such cases.
Where victims have also been witnesses,
for example, the relocation provision of
Article 24(2)(a) may apply.
The return of victims of trafficking totheir countries of origin is dealt with in
Article 8 of the Protocol, which is similar
but not identical to the corresponding
provision (Art. 18) of the Protocol against
the S muggling of Migrants. A ma jor
concern with the return of trafficking
victims is that it may leave themvulnerable to being trafficked all overagain, or in some cases, vulnerable toretaliation from traffickers for having cooperated with law enforcemen t orprosecution authorities. Another concern
is that in some cases, victims have been
sent home while criminal or other legalp r o c e e d in gs in w h ich th e y h a v e a ninterest are still ongoing. To respond tothese concerns, the text req uires all
S tates Pa rtie s involved to ha ve d ue
regard for the safety of the victim and for462

the status of any ongoing legal
proceedings (Art. 8(1), (2)). Returns may
be carried out involuntarily, but the text
states that the process “...shall preferably
be voluntary” (Art. 8(2)). This reflects acompromise between concerns that giving
victims any concrete formal legal status
or right to remain in destination statesmight provide further incentives andopportunities for traffickers on one hand,
while excessive or rapid returns might
unnecessarily expose victims to further
hardship and risk on the other. The text
does not make any special provision forvictims who are also witnesses, but theadditional safeguards for witnesses foundin Article 24 of the Convention would
apply in such cases. More generally,
Articles 24 (witnesses) and 25 (victims) of
the Convention will generally apply totrafficking victims.
T he ne gotia tion of th e pr ovision s
governing the repatriation or return ofs m u gg le d m igr a nt s a n d t ra ff i ck i n gvictims in both Protocols also faced theneed to specify the legal preconditions on
which the right of destination States toreturn individuals and the obligations ofcountries of origin to facilitate and accept
the return, should be based. There was
general agreement that States Parties
should be required to accept the return oft heir o w n na t i ona l s a nd pe rma ne nt
residents, but views differed on whether
the sta tus of a smuggled migra nt or
trafficking victim should be determinedat the time of entry into the State seeking
to return the person or at the time of theactual return itself. The former option
precludes States from revoking status asa national or resident to prevent thereturn, whereas the latter does not.
Different language was used to address
this question in each of the two
instruments. In the case of victims of
trafficking, countries are obliged to accept

119TH INTERNATIONAL TRAINING COURSE
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the return of any person who is a nationalat the time of the return or who had aright of permanent residence at the time
he or she entered the destination State( A rt. 8 (1 ) ). I n t he ca s e o f s m uggle dmigrants, the obligation is only to accept
those who are nationals or have a right ofpermanent residence at the time of the
return (A rt. 18 (1 )), altho ugh S tates
Parties are also required to consider the
return of migrants who had permanent
residency rights at the time of entry intot he d e sti na t io n S ta te . T he t ra v a u x
preparatoires for the Protocol against the
Smuggling of Migrants also record theunderstanding of the Ad Hoc Committeethat States Parties “...would not deprive
persons of their nationality contrary tointernational law, thereby rendering
them stateless.” This acknowledges thatnationality can be taken away for cause,
but should not be taken away exclusively
to prevent repatriation.
A p a rt f rom the se dif fe renc es, th e
obligations placed on States concerning
return or repatriation are the same inboth instruments. The basic obligation on
States Parties is to “facilitate and accept”
the r etur n o f nation als or sp ec if iedpe rm anent reside nts without undue
delay and to verify without delay whether
illegal migrants in other countries are infact their nationals or residents (Art. 8(1),(3)). This includes the obligation to issue
any necessary travel documents such as
passports, entry or transit visas (Art.
8(4)).
3. Prevention, Co-operation and Other
Measures (Articles 9–13)
Generally, the law enforcement
agencies of countries which ratify theProtocol would be required to co-operatewith such things as the identification of
offenders and trafficked persons, sharing
in formati on about th e meth ods ofoffenders and the training ofinvestigators, enforcement and victimsupport personnel (Art. 10). Countries
would also be required to implement
security and border controls to detect andp r e v e n t t r a f f i c k i n g. T h e s e in c l u d estrengthening their own border controls,
imposing requirements on commercial
carriers to check passports and visas (Art.
11), setting standards for the technicalquality of passports and other travel
documents (Art. 12), and co-operation inestablishing the validity of their own
documents when used abroad (Art. 13).
Social methods of prevention, such as
resea rch, a dve rtising, a nd socia l or
economic support are also provided for,both by governments and in collaboration
with non-governmental organisations ared e alt wi th bo t h in A rti cle 9, wh ich
supports Article 31 of the Convention6.
B. The Protocol Against the
Smuggling of Migrants by Land,
Air and Sea
1. General Provisions (Definitions,
Criminalisation, Scope and Purpose,
Articles 1–6)
Article 1 sets out the relationshipbetween the Convention and the Protocol,
com plementing Article 37 of theConvention. The same text appears in
Article 1 of the Protocol against
Trafficking in Persons and has b een
added as Article 1 of the revised draft
Protocol against the Illicit Trafficking in
Firearms. The Protocol supplements theConvention, and provisions of the twoshould be interpreted together.
Provisions of the Convention apply to thePr otoc ol mu tatis mu tan dis un les so the r w i se sp e c if ie d o r th e P ro to c o l
6

See in particular Article 31(5) (public awarenessc a m p a i gn s ) a n d 3 1 ( 7 ) ( p r o j e c t s a i m e d a t
alleviating the circumstances which make certain
groups vulnerable to transnational organizedcrime).

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RESOURCE MATERIAL SERIES No. 59
contains provisions which specificallyvary or are inconsistent with those of theConvention. All Protocol offences are also
regarded as Convention offences, whichmakes all Convention provisions (e.g.,lega l assistance, a pplica ble to ca ses
which involve only Protocol offences. The
Conference of States Parties, which isestablished by Article 32 of theConvention, will have similar functions
for each protocol by the application of
Article 32 to the protocol in question,
mutatis mutandis.
Article 2 expresses three purposes:
preventing and combatting smuggling,promoting cooperation among States
P artie s a nd p rotecting the rights o f
smuggled migrants. The scope of
application of the instrument (Art. 4)
applies both to combatting smuggling andp rotecting rights, but limits both too ffe nces w hi ch a re t ra ns na t i ona l i nnature and involve an organized criminalgroup as defined by the Convention. The
Protocol applies only to the prevention,
investigation or prosecution of suchoffences and the protection of the rights ofpersons who have been the objects of suchoffences. The phrase “persons who havebeen the object of such [i.e.: trafficking]o ff ence s” in this a nd other Pro to colprovisions is intended to clarify that
smuggled migrants, while sometimes
exploited or endangered by smugglers,
are not “victims” of the primary Protocol
offence.
The criminalisation provision, Article
6, requires States Parties to criminalise
the smuggling of migrants as defined in
Article 3, and enabling a person who is
not a national or permanent resident of aState to remain there illegally.
P rod ucing, p rocur in g, p ro vid ing, or
possessing fraudulent travel or identity
documents must also be made an offence,but only where these acts are committed

464

for the purpose of smuggling migrants.
This will generally apply to smugglers
with out als o in clu di ng th e ill eg al
migrants who m a y o nly po ssess the
documents for the purpose of use in theirown smuggling. A major political andlegal concern during negotiations was thegeneral agreement among participantsthat the Protocol should criminalise thesm uggling of migrants without
crim inalising m ere migration or the
migrants themselves. This was difficult
because illegal migrants have generallycommitted offences relating to illegal
entry or residence in most countries, andwould usually be complicit in their own
sm ug gling wi tho ut lang uage in the
Protocol and any implem enting
legislation to the contrary. The solution,found in Article 5 and Article 6(4) is that
the Protocol specifies that the provisionsof the Protocol and its implementing
legislation should criminalise smuggling
but not create any liability for having
been smuggled (Art. 5), while providingthat offences or other measures adopted
or applied by States Parties on their own
au th o rit y c o ul d sti ll ap p ly t o m e rem ig r a n t s . A s n o t e d , th e d o c u m e n t
offences of Article 6(1)(b) also apply only
to those who commit them for the purposeof smuggling others and not for their own
migration.7
In recognition that smuggling is often
dangerous, and to increase protection for
migrants, States Parties are also required
to make smuggling in circumstances
which endanger the migrants’ lives orsaf e ty, o r wh ich e n tail inh um a n or
degrading treatment a s aggrava tingcircumstances to the Protocol offences(Art. 6(3)).

7

See the note in the travaux preparatoires to Art.
6(1)(b) on this point.

119TH INTERNATIONAL TRAINING COURSE
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2. Smuggling of Migrants by Sea(Articles 7–9)
While all of the Protocol applies to all
forms of smuggling by land, sea or air, it
was f elt nec essar y to m a k e sp ecif ic
provision for smuggling by sea because oft h e se r i o u s n e s s a n d vo l u m e o f t h e
problem, and the body of international
maritime law already in existence. Manyof the specific provisions of this Part wered rawn f rom or d evelop ed based onprovisions from three earlier sources
dealing with the boarding and searchingof vessels and related safeguards: Article
110 of the 1988 U.N. Convention on the
Law of the Sea, Article 17 of the 1988
U.N. Convention against Illicit Traffic in
Narcotic Drugs and Psychotropic
Substances, and a more recent (1988)
Circular from the International Maritime
Organization titled Interim Measures for
Combatting unsafe practices associatedw it h t he tr a ff i c k i ng o r t ra n sp o rt o f
migrants by sea.
Generally, the provisions of Part II are
intended to give states which encounterships which are believed to be smuggling
migrants sufficient powers to take actions
to app rehend the m igrants andsmugglers and to preserve evidence,
while respecting the sovereignty of thestates (if any) to which the ships are
flagged or registered. A major factor for
most delegations in striking a balance
between sovereignty and effective powers
to intervene was the fact that, in manycases, vessels used to smuggle migrants
are decrepit or unsound to the point
where fast action could be essential topreserving the safety of any migrants onboard.
The general rule for taking actions
against a ship at sea is that this can only
be done with the approval of the State
whose flag the ship flies or with whom it
is registered. The Protocol requires States

Parties to co-operate “to the fullest extent
possible” in accord ance with the“international law of the sea”, which term
includes both the 1988 U.N. Convention
and o ther instruments (Art. 7 ). The
taking of measures against ships at sea isgoverned by Article 8, which provides
separately for three basic cases:•••

States seeking assistance against
ships they believe to be their own(Art. 8(1));
States seeking permission to act
against ships believed to be flagged orregistered to another State (Art. 8(2));
andStates taking action against ships
believed to be without nationality(Art8(7)).

The remaining provisions of Article 8
deal with the mechanisms whereby thenationality of ships can be establishedand other relevant information can betransmitted from one interested State
Party to another. Under Article 8(1), a
state which believes that one of its ships,
or a ship which is flying its flag, is being
used for smuggling may call upon otherStates Parties to take action to suppress
this, and those States are required torender such assistance as necessary,
within available means. Under Article
8(2), a State which believes that a ship
registered or flagged to another State is
involved in smuggling may check theregistry, and ask the registry state forauthorisation to board, inspect, and if
evidence of smuggling is found, to takeother actions. The responding state must
answer the requests expeditiously, but
may place limits or conditions on whatm a y b e d o n e ( A rt . 8 ( 4 ) , ( 5 ) ) . S u chconditions must be respected, except
where there is imminent danger to lives
or safety, or where there a bilateral or
multilateral agreement b etween thestates involved says otherwise (Art. 8(5)).

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RESOURCE MATERIAL SERIES No. 59
Where there is no apparent nationality or
registry cannot be determined, the shipm ay be board ed and insp ected asnecessary (Art. 8(7)).
The other provision of Part II, Article 9
contains “safeguard clauses” which limit
the powers of States Parties to act underA r t i cle 8 , en s ur e t ha t f und a m e nt a linterests such as the safe and humane
treatment of persons found on board
vessels and the security of vessels andother cargoes are protected, preserve theexisting jurisdictions of coastal states andthe flag states of vessels, and provide forcompensation in cases where the grounds
for having taken measures against av e ss e l la t e r p r o ve u nf o u nd e d . A s afurther safeguard, Art. 9(4) also requiresthat any vessel or aircraft used by a State
Party to take actions under Part II must
be a warship, military aircraft or othership or aircraft clearly marked to identify
it as being on government service when
the action is taken.
3. Prevention, Co-operation and Other
Measures (Articles 10–18)
As with the provisions of Articles 27–
2 9 o f t h e C o nv e n t io n, t h e P r o to c o lprovides for the exchange of information
which may range from general researchor legislative information which would
assist others in implementing theProtocol or combatting smuggling in moregeneral terms to much more specific andsensitive info rm atio n a bo ut specif ic
smuggling cases or more general means
and methods being used by smugglers(A rt. 1 0). As in the Protocol against
Trafficking in Persons, specific legal anda d m in istr a tive m e a sure s to co m ba t
smuggling which involves commercial
carriers are also required, “to the extent
possible” (Art. 11). These include
penalties where carriers found carrying
sm uggle d m igra nts a re co mp licit or
negligent and requirements that carriers

466

check b asic tra vel documents bef ore
transporting persons across international
borders.
The use of false or fraudulent
passports and other travel documents is
an important element of smuggling, anddocuments are often taken from migrants
upon arrival so that they can be re-usedby the smugglers over and over again. To
address this part of the problem, Article
12 requires the use of travel documentsthat cannot easily be used by a person
other than the legitimate holder, and ofsuch quality that they cannot easily befalsified, altered or replicated, and Article
13 requires States Parties to verify thelegitimacy and validity of any documents
purported to have been issued by them. A
number of delegations noted thatcountries which became parties to theProtocol against Trafficking in Persons as
w e l l a s t h is P r o t o c o l w o u l d f i n d i tnecessary to implement the parallel
provisions on travel documents jointly,
since it would not be practicable to adopt
or apply different rules for smuggling andt r a f f ic k i n g c a s e s . A s a r e s u l t , t h erequirements of Articles 12 and 13 are
identical in both instruments.
State s Pa r tie s ar e ca lle d u po n toundertake training activities (Art. 14)
and adopt general preventive measures(Art. 15). Training under Article 14 forofficials can be domestic or in cooperation with other States Parties whereappropriate. It must include not only
methods and techniques for investigatinga n d p r o s e c u t in g o f f e n c e s , b u t a ls oback gr ou nd in te llige nce - gath er ing,
crime-prevention, and the need to provide
humane treatment and respect for thebasic human rights of migrants.
Adequate resources are called for, withthe assistance of other Sta tes w here
domestic resources or expertise are notenough (Art. 14(3)). Based on the

119TH INTERNATIONAL TRAINING COURSE
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as sumpti on that a key elemen t ofp re ve nt io n is th e d is s e m i n a t io n o f
information about the true conditions
during smuggling and after arrival to
discourage potential migrants, Article 15
requires the creation or strengthening of
programmes to gather such information,transmit it from one country to another,and ensure that it is made available to
the general public and potential
migrants. This supports Article 37 of theConvention which calls for information
campaigns directed at groups who areparticularly vulnerable to the activities oftransnational organized crime, which
would include regional or ethnic groups
likely to be solicited or recruited as
potential migrants.
Part II of the Protocol also contains
provisions which deal with the protection,
assistance and return of migrants. As
with the Protocol against Trafficking in
Persons, these provisions take account ofth e f a c t tha t m i gra nts, wh ile o f te ntreated as a commodity by smugglers, arehuman beings w hose rights m ust b e
respected and who must be protectedfrom various forms of harm. Articles 16( p ro t e c ti o n a nd a s s i s ta n ce ) a n d 1 8(return) provide for the basic assistanceo f s m u g g le d m i g r a n t s , t a k i n g i n t oacco unt the fac t that they are notgenerally victims of crime and are in far
less jeopardy of retaliation fromtraffickers, but also considering the factthat smuggling is often conducted incircumstances which endanger their lives
or safety.
Several provisions of the Protocol areintended to ensure that the basic humanrights of migrants are protected from
infringement, whether by traffickers,
go ve rnm en t o ff icia ls o r o the rs. Th e
primary provision is Article 16, which
requires appropriate legislative or othermeasures to “preserve and protect” therights of smuggled migrants. Article
14(2)(e) also requires the training of
officials in “the humane treatment of
migrants and the protection of theirrights”, and Article 19 ensures that any
rights (e.g., for migrants who are also
refugee s) unde r other interna tiona lhumanitarian and human rights law are
not affected by the Protocol. Article 16(5)requires conformity with the provision of
the V ie nna C onve ntion on C onsular
Relations which requires States Parties
to that instrument to inform
apprehended migrants of their rights to
consular access.8
Other provisions address concerns
about the fact that migrants are in manycases subjected to dangerous conditions,degrading conditions or physical violencein the course of smuggling. Article 16(2)requires the adoption of appropriate
measures to afford migrants protection
against violence. Article 6(3) requires
States Parties to make the existence of
circumstances which endanger lives orsafety or entail inhuman or degrading
treatment in the course of smuggling an
aggravating circumstance to the basic
smuggling offence, and Article 16(3)r e q u i re s a p p r o p r ia te a s si st a n c e t om ig r a n ts w h o se l iv e s o r sa f e ty a r e
e n d a n g e r e d i n t h e c o u r s e o f b e in g
smuggled.
The return of smuggled migrants totheir countries of origin is dealt with in
Article 18 of the Protocol, which is similar
but not identical to the corresponding
provision (Art. 6) of the Protocol against
Trafficking in Persons. Since migrants
8

The relevant provision is Article 36 of the Vienna
Co n ve nti o n, 5 9 6 UN TS 8 6 3 8– 8 6 40 . I n t hediscussion of this provision, it was pointed outthat as conventional international law, theConvention, and hence the obligation to provide
consular access, was binding on all States.

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RESOURCE MATERIAL SERIES No. 59
are less likely to be witnesses intransnational organized crim ep ro ce ed ings, th e Pro toc ol m a k es nos p e c if ic p r o vi sio n f o r p r o te c tio n o r
p a r ti c i p a ti o n in su c h p r o c e e d in g s ,a lt h o u gh m i g ra n ts w ho a r e i n t h is
position would still be covered by Articles
24 and/or 25 of the Convention,
depending on the exact circumstances of
their cases. The only protections peci fic ally provided for retur ned
migrants is found in Art. 18(5), which
requires all of the States Parties involved
in return of a migrant to ensure that it iscarried out “...in an orderly manner andw it h d u e r e ga rd f o r th e sa f e ty a n ddignity...” of the migrant.
The n ego tiatio n o f the p ro visions
governing the repatriation or return ofs m ug gle d m ig ra nts a nd tr a f f ic ki ng
victims in both Protocols also faced theneed to specify the legal preconditions on
which the right of destination States toreturn individuals and the obligations ofcountries of origin to facilitate and accept
the return, should be based. There was
general agreement that States Parties
should be required to accept the return of
the ir ow n na tio na ls and p erm a nent
residents, but views differed on whether
the status of a smuggled migrant or
trafficking victim should be determinedat the time of entry into the State seeking
to return the person or at the time of theactual return itself. The former option
precludes States from revoking status asa national or resident to prevent thereturn, whereas the latter does not.
Different language was used to address
this question in each of the two
instruments. In the case of victims of
trafficking, countries are obliged to accept
the return of any person who is a nationalat the time of the return or who had aright of permanent residence at the time
he or she entered the destination State

468(A rt. 8 ( 1 )) . In t he c a s e of s m ugg le dmigrants, the obligation is only to accept
those who are nationals or have a right ofpermanent residence at the time of theret urn (Art. 1 8( 1) ), a lt hough S ta te sParties are also required to consider the
return of migrants who had permanent
residency rights at the time of entry intoth e d e s tin a tio n S ta te . T h e tr a v a ux
preparatoires for the Protocol against the
Smuggling of Migrants also record theunderstanding of the Ad Hoc Committeethat States Parties “...would not deprive
persons of their nationality contrary tointernational law, thereby rendering
them stateless.” This acknowledges thatnationality can be taken away for cause,
but should not be taken away exclusively
to prevent repatriation.
A pa rt fro m these d iff ere nce s, theobligations placed on States concerning
return or repatriation are the same inthis instrument as in the Protocol against
Tra fficking in Persons. The ba sic
obligation on States Parties is to“f acilitate a nd accept” the return ofnationals or specified residents without
undue delay and to verify without delay
wh eth er illegal migrants in oth er
countries are in fact their nationals or
residents (Art. 18(1), (3)). This includes
the obligation to issue any necessary
travel documents such a s passports,
entry or transit visas.
C. Protocol Against the Illicit
Manufacturing of or Trafficking
in Firearms
1. Status
Many provisions of the Protocol against
the Illicit Manufacturing of andTrafficking in Firearms were finalised at
the 11th session of the Ad Hoc
Committee, but several key issues had
no t b e e n r es olve d , a nd th e G e ne ra l
Assembly called upon the A d Hoc

119TH INTERNATIONAL TRAINING COURSE
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Committee to conclude the Protocol at an
add itional sessio n. 9 The C omm itte e
decided to apply a narrow, conventional
definition of “firearm”, excluding otherf o rm s o f d e structiv e de vic e such a s
rocket-launchers and explosive devices. It
also developed language for Article 4(1)and (2) which excludes legitimate Stateto-State and national security-related
activities from the application of theProtocol while ensuring that theexclusion is not so broad as to opt out
virtually any activity. The languaged e v el op e d f o r A r tic le s 4 a nd 8 a ls oensures that all firearms, even thosemade for government purposes, will bema rked at m anufa cture, allaying
concerns about unmarked governmentf i r e a r m s l a t e r s to l e n o r o t h e r w i s ediverted into illicit traffic. The languaged e velo p ed fo r A rtic le 8 e nsu re s th eunique marking of each firearm with“alpha-numeric” characters, but allows
countries which have previously used
“simple geometric” markings as part oftheir marking systems to maintain thispractice. Based on these agreements, theentire Protocol was agreed by the Ad Hoc
Committee on consensus. It was thenreferred to the General Assembly, which
a dopted it on 31 M a y 2 001 . 10 Under
Article 17 of the Protocol, it is open for
signature at U.N. Headquarters in New
York from 2 July 2001 until 12 December
2002.11
2. Relation with the U.N. Convention
A rticle 1 sets out the relationshipbetween the Convention and the Protocol,
complementing A rticle 37 of theConvention. The same text appears in
Arti cl e 1 of the Protocols against
Trafficking in Persons and the Smugglingof Migrants. The Protocol supplements

the Convention, and provisions of the twoshould be interpreted together.
Provisions of the Convention apply to thePr otoc ol mu tatis mu tan dis un les so the r w i se sp e c if ie d o r th e P ro to c o lcontains provisions which specificallyvary or are inconsistent with those of theConvention. All Protocol offences are also
regarded as Convention offences, whichmakes all Convention provisions (e.g.,legal a ss istance, a ppli ca bl e to cas es
which involve only Protocol offences. The
Conference of States Parties, which isestablished by A rticle 32 of theConvention, will have similar functions
for each protocol by the application of
Article 32 to the protocol in question,
mutatis mutandis.
3. Purpose, Scope and Application
The purpose provision (Art. 2) was
concluded at the 12th session. It was
decided to make the language consistent
with that of the other instruments, giving
the purpose as: “to promote, facilitate andstrengthen coo pera tion...to p revent,com bat and eradicate the illicit
ma nuf acturing of a nd traf fick ing infirearms, their parts and components,
and ammunition.”
As noted above, Article 4, dealing withscope of applicat ion , was also notconcluded until the 12th session. Therewas general agreement that all types oftransfer, transaction and firearm should
11 Since the adoption of the Protocol by the General

Assembly was too late for the Palermo signingconference at which the other instruments wereopened for signature, conventional language
concerning signature was added to Art. 17 during
the final drafting session. The instrument opens
for signature somewhat later than those adopted
earli er, b ut i t was decided to close al l 4

9

GA/Res/55/25.

10 GA/Res/55/255. For

see A/55/383/Add.3.

instruments on the same date, 12 December 2002,
travaux preparatoires notes,

which is the 2-year anniversary of the opening of
the initial 3 instruments.

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RESOURCE MATERIAL SERIES No. 59
be prima facie included in the Protocol,
p r ov ide d that the re is so m e link too ffe nces w hi ch a re t ra ns na t i ona l i nnature and involve an organized criminalgroup in some way as required by Article
3 of the Convention itself. There was also
general agreement that the Protocol,
which deals with individual criminality
and not disarmament or State activities,
should not app ly to “S ta te-to-S ta te”
transactions. The issues not resolved
until the final session involved activities
which directly involved either only one orno States, but which were neverthelessseen as raising legitima te “national
security” concerns on the part of one ormore States Parties. This was eventually
addressed using language which opts out“national security” transfers, provided
that this is consistent with the United
Nations Charter (Art. 4(2). The agreed
text of Article 4 also included all illicit“manufacturing” of firearms (Art. 4(1)),
while only excluding “transactions” and“transfers” (Art. 4(2)). The effect is toensure that all firearms must be marked,
addressing concerns about the problem offirearms which might otherwise be madewithout m arking for legitimate
government or national security purposes
and then subsequently diverted, creatinga supply of untraceable illicit firearms.
4. Definitions (Article 2)“Firearm”
The question of subject-matter is dealt
with in the definition provision (Art. 2). It
was agree d that the ter m “fire ar m”
should include any “barrelled weapon
which expels a shot, bullet or projectile by
the action of an explosive”, with the
exception of some antique firearms. To
address concerns that this applied to verylarge “firearms”, such as artillery-pieces,
the word “portable” was added,
accompanied by a note in the travaux
preparatoires to the effect that “portable”
itself was intended to mean portable by470

one person without mechanical or otherassistance. After discussion at several
sessions, the C om m itte e u ltim ate ly
decided not to apply the Protocol to otherso-called “destructive devices”.
“Illicit manufacturing”
The agreed definition of illicit
manufacturing includes three distinct
activities: m anufacturing without alicense, manufacturing from illicit (i.e.,
trafficked) parts, and manufacturing
w i th o u t m a r k in g . E a c h o f t h e s e i sintended to address a major source ofdiverted or trafficked f irearms.
Unlicensed manufacture would include
illegal factories and firearms made in alegal factory, but of a type or quantity thepr od uce r wa s not lic ense d to m ak e.
Assembling from trafficked parts would
address schemes in which stages of the
manufacturing process were split among
several jurisdictions to avoid committing
offences in any of them. Manufacturing
w i th o u t m a r k i n g r e q u i r e s t h a t a l lfirearms be marked a t manufacture,
which ensures that unmarked firearms
cannot be diverted before being marked
at a later stage. There is some overlap
between the definitions of illicit
manufacturing and illicit trafficking,since each includes an element (a ndhence an offence) relating to the
manufacture and transfer of firearms
without the necessary markings.
“Illicit trafficking”
The agreed definition of “illicit
trafficking” is the core of the Protocol. As
defined, “Illicit trafficking” would include
any transaction or transfer in which af ir e a r m m o ve s f ro m o n e co u nt ry toanother where the exporting, importing,a nd t ra ns it Sta t es, i f a ny, ha ve no tlicensed or authorized it. This must beread in conjunction with Article 5(1)(a),which requires illicit trafficking to bemade a domestic criminal offence, and119TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
11(2), which precludes the issuance ofany export lice nse until thecorresponding import and transit license
has already been issued. The combined
effect is t o commit States Parties
criminalise the export of any firearms,
parts, components or ammunition unlessthe subsequent import is authorized.
5. Criminalisation Requirements(Article 5)
The structural approach taken to thecriminalisation of illicit trafficking andillicit manufacturing is similar to those of
the other instrum ents: the d eta ile dspecification of conduct or activities to becriminalised is set out in the definitional
provisions, and then merely criminalised
by cross-references back to the definition.
S ta t e s P a r ti es a re a l s o re q u i r e d t o
c r i m i n a li s e a t te m p t i n g t o c o m m it ,participating as an accomplice in, ororganizing or directing others to commit
any Protocol offence, although theseobligations are subject to limits thatmake criminalising some of these things
impossible in some legal systems (Art.
5(2)).
I n s ub s ta n c e , S t a te s P a r t ie s a r erequired to criminalise the two basic
activities against which the Protocol isdirected, illicit manufacturing and illicit
trafficking. They are also required toc r e a t e o n e s u p p o r t in g o f f e n c e , t h eobliteration, removal or alteration of theserial numbers or other markings on a
firearm (Art. 5(1)(c)). It was not necessary
to criminalise failing to mark a firearm ortransferring an unmarked firearm per se,
because these activities are included in
the definitions and general offences ofillicit m anufacturing and illicit
trafficking. Further offences relating to
the financing of illicit trafficking anddom estic possession or misuse of
trafficked firearms and the breach ofarms-embargoes had been proposed, butwere ultimately dropped because they
were redundant either with theConvention itself or domestic criminal
law or beyond the scope of the Protocol.
6. Confiscation Seizure and Disposal(Article 6)
The subject of confiscation, forfeitureand disposal is dealt with in Convention
Articles 12–14, which deal with bothproceeds of crime and instrumentalities
of crime, and which apply to the Protocol,
mutatis mutandis. These w ould also
apply to firearms which have been usedin crime as instru mentalities andfirearms which have been trafficked as acommodity as proceeds. The Conventiond e f in i t io n o f “ p r o c e e d s ” ( A r t . 2 ( e ) )includes “...any property derived from or
obtained, directly or indirectly, throughthe commission of an offence.” This wasseen as problem atic, because thecustomary method of disposal forpr oceeds an d ins tru men talities is
ge ne ra ll y to s e l l t h e m a n d u se th e
resulting f und s f or le gitima te State
purp oses or to pa y co mp ensa tio n or
restitution to victims. Where firearms areconcerned, many States felt that thebetter course was to simply destroy them,
thereby ensuring that they could neverenter illicit commerce or be used in crime.
As a result, Article 6 of the Protocol
cre a tes a n e xce p tio n to the ge ne ra l
principle established by the Convention,
providing that, in the case of firearms
parts, components or ammunition, theproperty should be disposed of either bydestruction, or by other disposal only
where officially authorised and where theitems have been specifically marked andthe disposal recorded.
7. Record Keeping (Article 7)
C r i t ic a l t o th e o v e r a ll c o n t r o l o f
trafficking in firearms is the marking of
firearms (Art. 8) to ensure that they canbe uniquely identified, and the keeping of471

RESOURCE MATERIAL SERIES No. 59
records based on the markings in order tomake it possible to distinguish between
legitimate and illicit activities and to
facilitate investigations when atransaction subsequently proves to havebeen illicit or where firearms are diverted
to illicit hands in the course of alegitimate, authorized transaction ortransfer. Some delegations had concerns
about the need for keeping records withrespect to legitimate activities, but it wasu ltimately agreed that legiti ma teactivities must be scrutinised in order to
identify and suppress illicit activities.
Article 7 requires States Parties toeither keep records themselves, or torequire others (e.g., the actual parties toeach import/export transaction) to do so,for a period of ten years, the period being
a compromise between the need to limit
the administrative burdens on States
Parties and the fact that firearms are
durable goods which can surface many
years after having been transferred. The
means whereby States “shall ensure” thek e e p in g o f re c o rd s b y o th e rs i s no t
addressed by the Protocol, but would in
most cases involve a legal requirementthat those involved in import/exporttransactions create and preserve thenecessary records. It is open to States
Parties to create additional offences toc o m p e l th e k e e p i n g o f a p p r o p r ia t e
records, but the Protocol does not require
it. T he re co rd- k ee ping re q uire m ent
extends to records of transactions inparts, components and/or ammunition
only “where appropriate and feasible”.
This recognizes the practical difficulties
in dealing with smaller parts an dcomponents, which may be impossible tomark and are difficult to identify andinspect. Creating and verifying acomplete record of parts and components
might require the disassembly of eachfirea rm in a shipment t o record andinspect each of its parts, for example. In

472

the ca se o f a mm u nitio n, in div idu a lmarking and record keeping was also
seen as impracticable because of the verylarge numbers of individual cartridges inmost shipments. One option for keeping
records “where appropriate and feasible”
in such cases is for States Parties torequire the keeping of records which
describe shipments or batches of parts or
ammunition, but not individual elementsof each.
The actual substance of the records
which must be kept consists of whateverin f o rm a tio n is ne e d e d to t ra ce a n didentify the items involved. This mustin cl ud e th e se r ia l nu m b er o r o the rmarkings on the firearm and specified
information relating to the source, transit
and destination countries in internationaltransfers, but the list is indicative andnot exhaustive. Since there is no overall
co-ordination of the marking schemes ofmanufacturers or countries, markings are
only uniq ue w hen other inform ation
about a firearm is also known. In mostcases, to permit identification and tracing
as required, States Parties will therefore
find it necessa ry to ke ep ad ditiona l
information about a firearm, such as its
manufacturer, model, type or calibre.
8. Marking (Article 8)
As noted, the marking requirements
were also not finalised until the 12th
session of the Ad Hoc Committee. Therewas general agreement that firearms
should be marked in a way which would
permit unique identification, but theactual content of markings varies fromcountry to country and manufacturer tomanufacturer. Some delegations alsosought to exempt firearms made for Stateagencies, but this was se en as
problematic because of the large numbersof State firearms later transferred ordiverted to private hands, whether bylegitimate or illicit means, which would

119TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
provide a substantial source of
untraceable illicit firearms. The
identification of the content of “unique”
markings was also complicated by thefact that firearm manufacturers employ
serial numbers or other markings which
are generally only unique when combinedwith other characteristics of the firearmin question, such as type, calibre and theplace, country or factory where it was
made. A handgun made in the UnitedStates might well have the same serial
number as a rifle made in Germany, forexample, and ensuring that this could
never occur would prove difficult for thec o u n tr i e s a n d c o m p a n ie s i nv o l ve d .
Ultimately, it was decided to require“unique” marking using the “...name of
the manufacturer, the country or place of
manufacture, and the serial number” butt o a l lo w c o u n tr i e s a l r e a d y u s in g a
combination of numeric, alpha-numericand simple geom etric symbols tomaintain their existing practices.
9. Deactivation of Firearms (Article 9)
In most countries, records tracking
f ir e a r m s a r e p u r g e d w h e n e v e r t h efirearm s to which they apply arethemselves destroyed. Problems havearisen in some cases where firearms are
not completely destroyed if the records
are purged and the firearms are
sub se q ue ntly re sto red an d use d fo r
criminal purposes. Firearms which havebeen “deactivated” in ways which makethem inoperable but leave them intactfrom a standpoint of outward appearance
are popular as display items, and thisprocess is often used to preserve wart ro p h ie s w hi ch w o u ld o th e rw ise b eprohibited by domestic laws. To deal withthe problem of reactivation, Article 9 of
the Protocol contains technical standards
w h ic h e ns ur e t ha t f i re a rm s a re n ot
considered to have been destroyed for the
purposes of a State Party’s licensing andre cord -ke ep ing p ra ctice s unle ss thep r o c e ss is e s se nt ia ll y i r re ve r s ib le .
Paragraph 9(a) also requires essential
parts to be disabled and incapable ofremoval from the deactivated firearm,which precludes any re-circulation ofindividual parts, or the assembly of new
firearms using parts from deactivatedones.
10. Import-Export Requirements(Article 10)
As noted, the of fence of “illicit
trafficking” consists of internationaltransfer without the legal authorisationof all of the states concerned. To support
this, Article 10 contains the requirementthat exporting States verify that
subsequent transit and im port isauthorized by the States involved before
they license the export itself (Art. 10(2))
Art icl e 1 0 als o provi des sta ndard
requirements for the documents involved,
which provide information about thetransaction and identify the firearms
involved for purposes of record keeping
and a ny subsequent tracing or otherinvestigative inquiries. After extensive
discussion about whether to require theauthorization of “transit” States and how
to define “transit” for the purposes of
imposing such a requirement, a simpler
approach was adopted in this Article. The
sim plified schem e requires that
documents identify any transit states andthat such States be notified in advance ofthe transit (Art. 10(3)). If a transit State
does not give written notice that it does
not object, the exporting State cannot
issue an export permit for the transaction(Art. 10(2)(b)). To address concerns about
the application of the Protocol toindividuals who import or export firearms
for temporary use for occupational orrecrea tiona l purpo se s, Article 10 (6 )provides for “simplified procedures” insuch cases.

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11. Security and Preventive Measures(Article 11)
Some illicitly trafficked firearms arem anufactured directly for the illicit
market, but most are firearms originallym ade for lawful purposes andsubsequently diverted into crim inal
hands. To address this, Article 11 calls forsecurity measures to prevent theft ordiversion at every stage of the
manufacturing, storage, import, export,
transit and distribution process.
12. Information and Tracing (Article 12)
As with Articles 27–28 of theConvention, Article 12 of the Protocol
c ov er s the e xc ha ng e o f inf o rm a tio nranging from very general scientific or
forensic information about firearms tospecific and potentially sensitive
information about organized criminalgroups, their means and methods andinformation about specific legal or illegaltransactions. Information about specificindividuals or companies involved in thefirearms trade can only be provided on acase by case basis (Art. 12(1)).
Information about the means andmethods of offenders can be requested ona more general basis (Art. 12(2)). Article
12(3) contains the third core obligation of
the Protocol, the obligation of States
Parties to assist one another as necessary
in the tra cing of firearms. The term“tracing” itself is defined in paragraph3(f).
13. Brokers and Brokering (Article 15)
During negotiations, there was
extensive discussion about whether the
brokering of firearms transactions was aseparate activity from trafficking itself,
and if so whether it required regulation
under separate provisions of the Protocol.
A further issue, given the fact that mostbrokers operate in many jurisdictions,
was which of the jurisdictions involveds ho u ld r eg u la te a b ro k e r a nd w ha t474

s p e c if i c l ic e n s i n g , r e c o r d - k e e p in g ,security and other requirements shouldbe imposed. It was ultimately decided toadopt a flexible provision which leaves
these matters to the discretion of eachState Party. Where a State Party does
impose requirements on brokers, Article
15(1) contains an indicative list of whatshould be included: basic licensing andregistration, and a requirement thatbrokers identify themselves and state
their involvement on import, export andtransit documents. Article 15(2) further
urges States Parties to keep records withrespect to brokering and to exchange suchinformation with other States Parties
under Article 12. Article 7, which statesthat States Parties “shall ensure thema intenance...” of record s, d oes not
specify by whom such records would be
kept. This means that States Parties
could impose a requirement on brokers
within their jurisdiction to keep therecords of transactions in which they are
involved.