2006/617/EC: Council Decision of 24 July 2006 on the conclusion, on behalf of the European Community, of the Protocol Against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention Against Transnational Organised Crime concerning the provisions of the Protocol, in so far as the provisions of the Protocol fall within the scope of Part III, Title IV of the Treaty establishing the European Community
Date: 2006-07-24
Institutions: Council of the European Union
Subjects: UN convention, fundamental rights, judicial cooperation, legal cooperation, migrant, organised crime, protocol to an agreement, trafficking in human beings

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COUNCIL DECISION

of 24 July 2006

on the conclusion, on behalf of the European Community, of the Protocol Against the Smuggling
of Migrants by Land, Sea and Air, supplementing the United Nations Convention Against Transna-
tional Organised Crime concerning the provisions of the Protocol, in so far as the provisions of
the Protocol fall within the scope of Part III, Title IV of the Treaty establishing the European Com-
munity

(2006/617/EC)

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Com-
munity, and in particular Article 62 point 2, Article 63 point 3
and Article 66, in conjunction with the first subparagraph of
Article 300(2) and first subparagraph of Article 300(3) thereof,

Having regard to the proposal from the Commission,

Having regard to the opinion of the European Parliament (1),

Whereas:

(1)

(2)

(3)

(4)

(5)

(6)

The elements of the Protocol which are subject to Com-
munity competence were negotiated by the Commission,
with the approval of the Council, on behalf of the Com-
munity.

The Council instructed the Commission to negotiate the
accession of the Community to the international agree-
ment in question.

Negotiations were
successfully concluded and the
resulting instrument was signed by the Community on
12 December 2000 in accordance with Council Decision
2001/87/EC of 8 December 2000 (2).

Some Member States are parties to the Protocol while
the ratification process is under way in other Member
States.

This Decision is without prejudice to the position of the
United Kingdom and Ireland under the Protocol
inte-
grating the Schengen acquis into the framework of the
European Union and under the Protocol on the position
of the United Kingdom and Ireland, annexed to the
Treaty on European Union and the Treaty establishing
the European Community, hence the UK and Ireland are
not bound by this Decision to the extent that it concerns
the exercise of an external power by the Community in
fields where its internal legislation does not bind the UK
and/or Ireland.

This Decision is without prejudice to the position of
Denmark under
the Protocol on the position of
Denmark annexed to the Treaty on European Union and
the Treaty establishing the European Community, hence
Denmark does not take part in its adoption and is not
bound by it.

(7)

(8)

(9)

(10)

(11)

the Community

The conclusion of the Convention was approved on
behalf of
by Council Decision
2004/579/EC of 29 April 2004 (3), which is a condition
for the Community to become a Party to the Protocol,
pursuant to Article 37(2) of the Convention.

The other conditions permitting the Community to
deposit
the instrument of approval provided for in
Article 36(3) of the Convention and Article 21(3) of the
Protocol have been fulfilled.

In so far as the provisions of the Protocol fall within the
scope of Part III, Title IV of the Treaty, the conclusion of
the Protocol should be approved on behalf of the Com-
munity.

In so far as the provisions of the Protocol fall within the
scope of Articles 179 and 181a of
the
conclusion of the Protocol on behalf of the Community
should be approved by means of a separate decision of
the Council (4).

the Treaty,

The Community should, when depositing the instrument
of approval, also deposit a declaration on the extent of
the Community's competence with respect to matters
governed by the Protocol under Article 21(3) of the
Smuggling Protocol,

HAS DECIDED AS FOLLOWS:

Article 1

The Protocol against the smuggling of migrants by land, air
and sea, supplementing the United Nations Convention against
transnational organised crime, as set out in Annex I, is hereby
approved on behalf of the European Community.

The Community's instrument of
comprise
Article 21(3) of the Protocol as set out in Annex II.

formal confirmation shall
to

competence

declaration

according

of

a

(1) Not yet Published In the Official Journal.
(2) OJ L 30, 1.2.2001, p. 44.

(3) OJ L 261, 6.8.2004, p. 69.
(4) See page 24 of this Official Journal.

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Article 2

This Decision shall apply in so far as the provisions of the
Protocol fall within the scope of Part III, Title IV of the Treaty.

Article 3

is authorised to designate the
The President of the Council
person empowered to deposit the instrument of formal confir-
mation in order to bind the Community.

This Decision shall be published in the Official Journal of the
European Union.

Done at Brussels, 24 July 2006.

For the Council

The President

K. RAJAMÄKI

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ANNEX I

PROTOCOL

against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations
Convention against Transnational Organised Crime

PREAMBLE

THE STATES PARTIES TO THIS PROTOCOL,

DECLARING that effective action to prevent and combat the smuggling of migrants by land, sea and air requires a
comprehensive international approach,
including cooperation, the exchange of information and other appropriate
measures, including socio-economic measures, at the national, regional and international levels,

RECALLING General Assembly resolution 54/212 of 22 December 1999, in which the Assembly urged Member States
and the United Nations system to strengthen international cooperation in the area of international migration and devel-
opment in order to address the root causes of migration, especially those related to poverty, and to maximize the bene-
fits of international migration to those concerned, and encouraged, where relevant, interregional, regional and subre-
gional mechanisms to continue to address the question of migration and development,

CONVINCED of the need to provide migrants with humane treatment and full protection of their rights,

TAKING INTO ACCOUNT the fact that, despite work undertaken in other international forums, there is no universal
instrument that addresses all aspects of smuggling of migrants and other related issues,

CONCERNED at the significant increase in the activities of organised criminal groups in smuggling of migrants and
other related criminal activities set forth in this Protocol, which bring great harm to the States concerned,

ALSO CONCERNED that the smuggling of migrants can endanger the lives or security of the migrants involved,

RECALLING General Assembly resolution 53/111 of 9 December 1998, in which the Assembly decided to establish an
open-ended intergovernmental ad hoc committee for the purpose of elaborating a comprehensive international conven-
tion against transnational organised crime and of discussing the elaboration of, inter alia, an international instrument
addressing illegal trafficking in and transporting of migrants, including by sea,

CONVINCED that supplementing the United Nations Convention against Transnational Organised Crime with an inter-
national instrument against the smuggling of migrants by land, sea and air will be useful in preventing and combating
that crime,

HAVE AGREED AS FOLLOWS:

I. GENERAL PROVISIONS

Article 1

Relation with the United Nations Convention against
Transnational Organised Crime

1.
This Protocol supplements the United Nations Conven-
tion against Transnational Organised Crime. It shall be inter-
preted together with the Convention.

The provisions of the Convention shall apply, mutatis

2.
mutandis, to this Protocol unless otherwise provided herein.

3.
The offences established in accordance with article 6 of
this Protocol shall be regarded as offences established in accord-
ance with the Convention.

Article 2

Statement of purpose

is to prevent and combat the
The purpose of this Protocol
smuggling of migrants, as well as to promote cooperation
among States Parties to that end, while protecting the rights of
smuggled migrants.

Article 3

Use of terms

For the purposes of this Protocol:

(a) ‘smuggling of 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 of which 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;

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(c) ‘fraudulent

travel or identity document’ shall mean any

travel or identity document:

subparagraph (b) of this paragraph or any other illegal
means.

(i) that has been falsely made or altered in some material
way by anyone other than a person or agency lawfully
authorised to make or issue the travel or identity docu-
ment on behalf of a State; or

(ii) that has been improperly issued or obtained through
misrepresentation, corruption or duress or in any other
unlawful manner; or

(iii) that is being used by a person other than the rightful

holder;

(d) ‘vessel’ shall mean any type of water craft, including non-
displacement craft and seaplanes, used or capable of being
transportation on water, except a
used as a means of
warship, naval auxiliary or other vessel owned or operated
by a Government and used, for the time being, only on
government non-commercial service.

Article 4

Scope of application

This Protocol shall apply, except as otherwise stated herein, to
the prevention, investigation and prosecution of the offences
established in accordance with article 6 of this Protocol, where
the offences are transnational in nature and involve an orga-
nised criminal group, as well as to the protection of the rights
of persons who have been the object of such offences.

Article 5

Criminal liability of migrants

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.

Article 6

Criminalisation

1.
Each State Party shall adopt such legislative and other
measures as may be necessary to establish as criminal offences,
when committed intentionally and in order to obtain, directly
or indirectly, a financial or other material benefit:

(a) the smuggling of migrants;

(b) when committed for the purpose of enabling the smuggling

of migrants:

(i) producing a fraudulent travel or identity document;

(ii) procuring, providing or possessing such a document;

(c) enabling a person who is not a national or a permanent
concerned without
resident
complying with the necessary requirements for
legally
remaining in the State by the means mentioned in

to remain in the State

Each State Party shall also adopt such legislative and
2.
other measures as may be necessary to establish as criminal
offences:

(a) subject to the basic concepts of its legal system, attempting
to commit an offence established in accordance with para-
graph 1 of this article;

(b) participating as an accomplice in an offence established in
accordance with paragraph 1 (a), (b) (i) or (c) of this article
and, subject to the basic concepts of its legal system, parti-
cipating as an accomplice in an offence established in
accordance with paragraph 1 (b) (ii) of this article;

(c) organising or directing other persons to commit an offence
established in accordance with paragraph 1 of this article.

3.
Each State Party shall adopt such legislative and other
measures as may be necessary to establish as aggravating
circumstances to the offences established in accordance with
paragraph 1 (a), (b) (i) and (c) of this article and, subject to the
basic concepts of its legal system, to the offences established in
accordance with paragraph 2 (b) and (c) of this article, circum-
stances:

(a) that endanger, or are likely to endanger, the lives or safety

of the migrants concerned; or

(b) that entail inhuman or degrading treatment, including for

exploitation, of such migrants.

4.
Nothing in this Protocol shall prevent a State Party from
taking measures against a person whose conduct constitutes an
offence under its domestic law.

II. SMUGGLING OF MIGRANTS BY SEA

Article 7

Cooperation

States Parties shall cooperate to the fullest extent possible to
prevent and suppress the smuggling of migrants by sea,
in
accordance with the international law of the sea.

Article 8

Measures against the smuggling of migrants by sea

A State Party that has reasonable grounds to suspect that
1.
a vessel that is flying its flag or claiming its registry, that is
without nationality or that, though flying a foreign flag or
refusing to show a flag, is in reality of the nationality of the
State Party concerned is engaged in the smuggling of migrants
by sea may request the assistance of other States Parties in
suppressing the use of the vessel for that purpose. The States
Parties so requested shall render such assistance to the extent
possible within their means.

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2.
A State Party that has reasonable grounds to suspect that
a vessel exercising freedom of navigation in accordance with
international law and flying the flag or displaying the marks of
registry of another State Party is engaged in the smuggling of
migrants by sea may so notify the flag State, request confirma-
tion of registry and, if confirmed, request authorisation from
the flag State to take appropriate measures with regard to that
vessel. The flag State may authorise the requesting State, inter
alia:

(a) to board the vessel;

(b) to search the vessel; and

(c) if evidence is found that the vessel is engaged in the smug-
gling of migrants by sea, to take appropriate measures with
respect to the vessel and persons and cargo on board, as
authorised by the flag State.

3.
A State Party that has taken any measure in accordance
with paragraph 2 of this article shall promptly inform the flag
State concerned of the results of that measure.

4.
A State Party shall respond expeditiously to a request
from another State Party to determine whether a vessel that is
claiming its registry or flying its flag is entitled to do so and to
a request
for authorisation made in accordance with para-
graph 2 of this article.

this
A flag State may, consistent with article 7 of
5.
Protocol, subject its authorisation to conditions to be agreed by
it and the requesting State,
including conditions relating to
responsibility and the extent of effective measures to be taken.
A State Party shall take no additional measures without the
express authorisation of the flag State, except those necessary
to relieve imminent danger to the lives of persons or those
which derive from relevant bilateral or multilateral agreements.

6.
Each State Party shall designate an authority or, where
necessary, authorities to receive and respond to requests for
assistance, for confirmation of registry or of the right of a
vessel to fly its flag and for authorisation to take appropriate
measures. Such designation shall be notified through the Secre-
tary-General to all other States Parties within one month of the
designation.

A State Party that has reasonable grounds to suspect that
7.
a vessel is engaged in the smuggling of migrants by sea and is
without nationality or may be assimilated to a vessel without
nationality may board and search the vessel.
If evidence
confirming the suspicion is found, that State Party shall take
appropriate measures in accordance with relevant domestic and
international law.

Article 9

Safeguard clauses

(a) ensure the safety and humane treatment of the persons on

board;

(b) take due account of the need not to endanger the security

of the vessel or its cargo;

(c) take due account of the need not to prejudice the commer-
cial or legal interests of the flag State or any other inter-
ested State;

(d) ensure, within available means, that any measure taken

with regard to the vessel is environmentally sound.

2. Where the grounds for measures taken pursuant
to
article 8 of this Protocol prove to be unfounded, the vessel
shall be compensated for any loss or damage that may have
been sustained, provided that the vessel has not committed any
act justifying the measures taken.

Any measure taken, adopted or implemented in accord-
3.
ance with this chapter shall take due account of the need not
to interfere with or to affect:

(a) the rights and obligations and the exercise of jurisdiction of
coastal States in accordance with the international law of
the sea; or

(b) the authority of the flag State to exercise jurisdiction and
control in administrative, technical and social matters invol-
ving the vessel.

4.
Any measure taken at sea pursuant to this chapter shall
be carried out only by warships or military aircraft, or by other
ships or aircraft clearly marked and identifiable as being on
government service and authorised to that effect.

III. PREVENTION, COOPERATION AND OTHER MEASURES

Article 10

Information

1. Without prejudice to articles 27 and 28 of the Conven-
tion, States Parties, in particular those with common borders or
located on routes along which migrants are smuggled, shall, for
this Protocol,
the purpose of achieving the objectives of
exchange among themselves, consistent with their respective
domestic legal and administrative systems, relevant information
on matters such as:

(a) embarkation and destination points, as well as routes,
carriers and means of
transportation, known to be or
suspected of being used by an organised criminal group
engaged in conduct set forth in article 6 of this Protocol;

1. Where a State Party takes measures against a vessel in
accordance with article 8 of this Protocol, it shall:

(b) the identity and methods of organisations or organised
suspected of being

criminal groups known to be or
engaged in conduct set forth in article 6 of this Protocol;

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(c) the authenticity and proper form of

travel documents
issued by a State Party and the theft or related misuse of
blank travel or identity documents;

6. Without prejudice to article 27 of the Convention, States
Parties shall consider strengthening cooperation among border
control agencies by,
inter alia, establishing and maintaining
direct channels of communication.

(d) means and methods of concealment and transportation of
persons, the unlawful alteration, reproduction or acquisi-
tion or other misuse of travel or identity documents used
in conduct set forth in article 6 of this Protocol and ways
of detecting them;

(e) legislative experiences and practices and measures

to
prevent and combat the conduct set forth in article 6 of
this Protocol; and

(f) scientific and technological information useful to law enfor-
cement, so as to enhance each other's ability to prevent,
detect and investigate the conduct set forth in article 6 of
this Protocol and to prosecute those involved.

Article 12

Security and control of documents

Each State Party shall take such measures as may be necessary,
within available means:

(a) to ensure that travel or identity documents issued by it are
of such quality that they cannot easily be misused and
cannot readily be falsified or unlawfully altered, replicated
or issued; and

2.
A State Party that receives information shall comply with
any request by the State Party that transmitted the information
that places restrictions on its use.

(b) to ensure the integrity and security of travel or identity
documents issued by or on behalf of the State Party and to
prevent their unlawful creation, issuance and use.

Article 11

Border measures

1. Without prejudice to international commitments in rela-
tion to the free movement of people, States Parties shall
strengthen, to the extent possible, such border controls as may
be necessary to prevent and detect the smuggling of migrants.

Article 13

Legitimacy and validity of documents

At the request of another State Party, a State Party shall, in
accordance with its domestic law, verify within a reasonable
time the legitimacy and validity of travel or identity documents
issued or purported to have been issued in its name and
suspected of being used for purposes of conduct set forth in
article 6 of this Protocol.

2.
Each State Party shall adopt legislative or other appro-
priate measures to prevent, to the extent possible, means of
transport operated by commercial carriers from being used in
the commission of the offence established in accordance with
article 6, paragraph 1 (a), of this Protocol.

Article 14

Training and technical cooperation

3. Where appropriate, and without prejudice to applicable
include estab-
international conventions, such measures shall
lishing the obligation of commercial carriers,
including any
transportation company or the owner or operator of any
means of
to ascertain that all passengers are in
possession of the travel documents required for entry into the
receiving State.

transport,

4.
in
Each State Party shall take the necessary measures,
accordance with its domestic law, to provide for sanctions in
cases of violation of the obligation set forth in paragraph 3 of
this article.

States Parties

shall provide or
immigration and other

strengthen specialised
1.
training for
in
relevant officials
preventing the conduct set forth in article 6 of this Protocol
and in the humane treatment of migrants who have been the
object of such conduct, while respecting their rights as set forth
in this Protocol.

States Parties shall cooperate with each other and with
2.
competent international organisations, non-governmental orga-
nisations, other relevant organisations and other elements of
civil society as appropriate to ensure that there is adequate
personnel training in their territories to prevent, combat and
eradicate the conduct set forth in article 6 of this Protocol and
to protect the rights of migrants who have been the object of
such conduct. Such training shall include:

Each State Party shall consider taking measures that
5.
permit, in accordance with its domestic law, the denial of entry
or revocation of visas of persons implicated in the commission
of offences established in accordance with this Protocol.

(a) improving the security and quality of travel documents;

(b) recognizing and detecting fraudulent

travel or

identity

documents;

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(c) Gathering criminal intelligence, relating in particular to the
identification of organised criminal groups known to be or
suspected of being engaged in conduct set forth in article 6
of this Protocol, the methods used to transport smuggled
migrants, the misuse of travel or identity documents for
purposes of conduct set forth in article 6 and the means of
concealment used in the smuggling of migrants;

(d) improving procedures for detecting smuggled persons at
conventional and non-conventional points of entry and
exit; and

(e) the humane treatment of migrants and the protection of

their rights as set forth in this Protocol.

3.
States Parties with relevant expertise shall consider
providing technical assistance to States that are frequently
countries of origin or transit for persons who have been the
object of conduct set forth in article 6 of this Protocol. States
Parties
to provide the necessary
resources, such as vehicles, computer systems and document
readers, to combat the conduct set forth in article 6.

shall make every effort

Article 15

Other prevention measures

1.
Each State Party shall take measures to ensure that it
provides or strengthens information programmes to increase
public awareness of the fact that the conduct set forth in
article 6 of this Protocol is a criminal activity frequently perpe-
trated by organised criminal groups for profit and that it poses
serious risks to the migrants concerned.

2.
In accordance with article 31 of the Convention, States
Parties shall cooperate in the field of public information for the
purpose of preventing potential migrants from falling victim to
organised criminal groups.

Each State Party shall promote or strengthen, as appro-
3.
priate, development programmes and cooperation at
the
national, regional and international levels, taking into account
the socio-economic realities of migration and paying special
attention to economically and socially depressed areas, in order
to combat the root socio-economic causes of the smuggling of
migrants, such as poverty and underdevelopment.

Article 16

Protection and assistance measures

In implementing this Protocol, each State Party shall take,
1.
law, all
consistent with its obligations under international
to
appropriate measures,
preserve and protect the rights of persons who have been the
object of conduct set forth in article 6 of this Protocol as
accorded under applicable international law, in particular the

including legislation if necessary,

right to life and the right not to be subjected to torture or
other cruel, inhuman or degrading treatment or punishment.

2.
Each State Party shall take appropriate measures to afford
migrants appropriate protection against violence that may be
inflicted upon them, whether by individuals or groups, by
reason of being the object of conduct set forth in article 6 of
this Protocol.

3.
Each State Party shall afford appropriate assistance to
migrants whose lives or safety are endangered by reason of
this
being the object of conduct set
Protocol.

forth in article 6 of

4.
In applying the provisions of this article, States Parties
shall take into account the special needs of women and chil-
dren.

5.
In the case of the detention of a person who has been the
object of conduct set forth in article 6 of this Protocol, each
State Party shall comply with its obligations under the Vienna
Convention on Consular Relations, (1) where
applicable,
including that of
informing the person concerned without
delay about
the provisions concerning notification to and
communication with consular officers.

Article 17

Agreements and arrangements

States Parties shall consider the conclusion of bilateral or
regional agreements or operational arrangements or under-
standings aimed at:

(a) establishing the most appropriate and effective measures to
prevent and combat the conduct set forth in article 6 of
this Protocol; or

(b) enhancing the provisions of this Protocol among them-

selves.

Article 18

Return of smuggled migrants

1.
Each State Party agrees to facilitate and accept, without
undue or unreasonable delay, the return of a person who has
been the object of conduct set forth in article 6 of this Protocol
and who is its national or who has the right of permanent resi-
dence in its territory at the time of return.

Each State Party shall consider the possibility of facili-
2.
tating and accepting the return of a person who has been the
object of conduct set forth in article 6 of this Protocol and who
had the right of permanent residence in its territory at the time
of entry into the receiving State in accordance with its domestic
law.

(1) Ibid., vol. 596, Nos 8638 to 8640.

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3.
At the request of the receiving State Party, a requested
State Party shall, without undue or unreasonable delay, verify
whether a person who has been the object of conduct set forth
in article 6 of this Protocol is its national or has the right of
permanent residence in its territory.

In order to facilitate the return of a person who has been
4.
the object of conduct set forth in article 6 of this Protocol and
is without proper documentation, the State Party of which that
person is a national or in which he or she has the right of
permanent residence shall agree to issue, at the request of the
receiving State Party, such travel documents or other authorisa-
tion as may be necessary to enable the person to travel to and
re-enter its territory.

Each State Party involved with the return of a person
5.
who has been the object of conduct set forth in article 6 of this
Protocol shall take all appropriate measures to carry out the
return in an orderly manner and with due regard for the safety
and dignity of the person.

States Parties may cooperate with relevant international

6.
organisations in the implementation of this article.

7.
This article shall be without prejudice to any right
afforded to persons who have been the object of conduct set
forth in article 6 of this Protocol by any domestic law of the
receiving State Party.

8.
This article shall not affect the obligations entered into
under any other applicable treaty, bilateral or multilateral, or
any other applicable operational agreement or arrangement
that governs, in whole or in part, the return of persons who
have been the object of conduct set forth in article 6 of this
Protocol.

IV. FINAL PROVISIONS

Article 19

Saving clause

1.
Nothing in this Protocol shall affect the other rights, obli-
gations and responsibilities of States and individuals under
international law, including international humanitarian law and
international human rights law and, in particular, where applic-
able, the 1951 Convention and the 1967 Protocol relating to
the Status of Refugees and the principle of non-refoulement as
contained therein.

2.
The measures set forth in this Protocol shall be inter-
preted and applied in a way that is not discriminatory to
persons on the ground that they are the object of conduct set
forth in article 6 of this Protocol. The interpretation and appli-
cation of those measures shall be consistent with internation-
ally recognised principles of non-discrimination.

Article 20

Settlement of disputes

States

Parties

1.
disputes
concerning the interpretation or application of this Protocol
through negotiation.

endeavour

settle

shall

to

2.
Any dispute between two or more States Parties
concerning the interpretation or application of this Protocol
that cannot be settled through negotiation within a reasonable
time shall, at the request of one of those States Parties, be
submitted to arbitration. If, six months after the date of the
request for arbitration, those States Parties are unable to agree
on the organisation of the arbitration, any one of those States
Parties may refer the dispute to the International Court of
Justice by request in accordance with the Statute of the Court.

3.
Each State Party may, at the time of signature, ratification,
acceptance or approval of or accession to this Protocol, declare
that it does not consider itself bound by paragraph 2 of this
article. The other States Parties shall not be bound by para-
graph 2 of this article with respect to any State Party that has
made such a reservation.

4.
Any State Party that has made a reservation in accordance
with paragraph 3 of this article may at any time withdraw that
reservation by notification to the Secretary-General of
the
United Nations.

Article 21

Signature, ratification, acceptance, approval and accession

This Protocol shall be open to all States for signature
1.
from 12 to 15 December 2000 in Palermo, Italy, and thereafter
at United Nations Headquarters in New York until 12 December
2002.

2.
This Protocol shall also be open for signature by regional
economic integration organisations provided that at least one
member State of such organisation has signed this Protocol in
accordance with paragraph 1 of this article.

is subject

This Protocol

3.
to ratification, acceptance or
approval. Instruments of ratification, acceptance or approval
shall be deposited with the Secretary-General of the United
Nations. A regional economic integration organisation may
deposit its instrument of ratification, acceptance or approval if
at least one of its Member States has done likewise. In that
instrument of ratification, acceptance or approval, such organi-
sation shall declare the extent of its competence with respect to
the matters governed by this Protocol. Such organisation shall
also inform the depositary of any relevant modification in the
extent of its competence.

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4.
This Protocol is open for accession by any State or any
regional economic integration organisation of which at least
one Member State is a Party to this Protocol. Instruments of
accession shall be deposited with the Secretary-General of the
United Nations. At
its accession, a regional
economic integration organisation shall declare the extent of its
competence with respect to matters governed by this Protocol.
Such organisation shall also inform the depositary of any rele-
vant modification in the extent of its competence.

the time of

Article 22

Entry into force

This Protocol shall enter into force on the 90th day after
1.
the date of deposit of
the 40th instrument of ratification,
acceptance, approval or accession, except that it shall not enter
into force before the entry into force of the Convention. For
the purpose of this paragraph, any instrument deposited by a
regional
integration organisation shall not be
counted as additional to those deposited by member States of
such organisation.

economic

For each State or regional economic integration organisa-
2.
tion ratifying, accepting, approving or acceding to this Protocol
after the deposit of the 40th instrument of such action, this
Protocol shall enter into force on the 30th day after the date of
deposit by such State or organisation of the relevant instrument
or on the date this Protocol enters into force pursuant to para-
graph 1 of this article, whichever is the later.

Article 23

Amendment

1.
After the expiry of five years from the entry into force of
this Protocol, a State Party to the Protocol may propose an
amendment and file it with the Secretary-General of the United
Nations, who shall
thereupon communicate the proposed
amendment to the States Parties and to the Conference of the
Parties to the Convention for the purpose of considering and
deciding on the proposal. The States Parties to this Protocol
meeting at the Conference of the Parties shall make every effort
to achieve consensus on each amendment.
If all efforts at
consensus have been exhausted and no agreement has been
reached, the amendment shall, as a last resort, require for its
adoption a two-thirds majority vote of the States Parties to this
Protocol present and voting at the meeting of the Conference
of the Parties.

2.
Regional economic integration organisations, in matters
within their competence, shall exercise their right to vote under
this article with a number of votes equal to the number of their
Member States that are Parties to this Protocol. Such organisa-
tions shall not exercise their right to vote if their member
States exercise theirs and vice versa.

3.
An amendment adopted in accordance with paragraph 1
of this article is subject to ratification, acceptance or approval
by States Parties.

4.
An amendment adopted in accordance with paragraph 1
of this article shall enter into force in respect of a State Party
90 days after the date of the deposit with the Secretary-General
of the United Nations of an instrument of ratification, accep-
tance or approval of such amendment.

5. When an amendment enters into force, it shall be binding
on those States Parties which have expressed their consent to
be bound by it. Other States Parties shall still be bound by the
provisions of this Protocol and any earlier amendments that
they have ratified, accepted or approved.

Article 24

Denunciation

1.
A State Party may denounce this Protocol by written noti-
fication to the Secretary-General of the United Nations. Such
denunciation shall become effective one year after the date of
receipt of the notification by the Secretary-General.

2.
A regional economic integration organisation shall cease
to be a Party to this Protocol when all of its member States
have denounced it.

Article 25

Depositary and languages

The Secretary-General of the United Nations is designated

1.
depositary of this Protocol.

The original of

2.
this Protocol, of which the Arabic,
Chinese, English, French, Russian and Spanish texts are equally
authentic, shall be deposited with the Secretary-General of the
United Nations.

IN WITNESS WHEREOF,
the undersigned plenipotentiaries,
being duly authorised thereto by their respective Governments,
have signed this Protocol.

22.9.2006

EN

Official Journal of the European Union

L 262/43

ANNEX II

Declaration concerning the competence of the European Community with regard to matters governed by the
Protocol Against the Smuggling of Migrants by Land, Air and Sea, supplementing the United Nations
Convention Against Transnational Organised Crime

Article 21(3) of the Protocol provides that the instrument of accession of a regional economic integration organisation
shall contain a declaration specifying the matters governed by the Protocol in respect of which competence has been
transferred to the organisation by its Member States which are Parties to the Protocol.

The Protocol against the smuggling of migrants by land, air and sea shall apply, with regard to the competences trans-
ferred to the European Community, to the territories in which the Treaty establishing the European Community is
applied and under the conditions laid down in that Treaty, in particular Article 299 thereof and the Protocols annexed
to it.

This declaration is without prejudice to the position of the United Kingdom and Ireland under the Protocol integrating
the Schengen acquis into the framework of the European Union and under the Protocol on the position of the United
Kingdom and Ireland, annexed to the Treaty on European Union and the Treaty establishing the European Community.

This declaration is equally without prejudice to the position of Denmark under the Protocol on the position of Denmark
annexed to the Treaty on European Union and the Treaty establishing the European Community.

Pursuant to Article 299, this declaration is also not applicable to the territories of the Member States in which the said
Treaty does not apply and is without prejudice to such acts or positions as may be adopted under the Protocol by the
Member States concerned on behalf of and in the interests of those territories. In accordance with the provision referred
to above, this declaration indicates the competence that the Member States have transferred to the Community under
the Treaties in matters governed by the Protocol. The scope and the exercise of such Community competence are, by
their nature, subject to continuous development as the Community further adopts relevant rules and regulations, and the
Community will complete or amend this declaration, if necessary, in accordance with Article 21(3) of the Protocol.

The Community points out that it has competence with regard to the crossing of external borders of the Member States,
regulating standards and procedures when carrying out checks on persons at such borders and rules on visas for
intended stays of no more than three months. The Community is also competent for measures on immigration policy
regarding conditions of entry and residence and measures to counter illegal immigration and illegal residence, including
repatriation of illegal residents. Moreover, it can take measures to ensure cooperation between the relevant departments
of the administrations of the Member States, as well as between those departments and the Commission, in the afore-
mentioned areas. In these fields the Community has adopted rules and regulations and, where it has done so, it is hence
solely for the Community to enter into external undertakings with third States or competent international organisations.

In addition, Community policy in the sphere of development cooperation complements policies pursued by Member
States and includes provisions to prevent and combat smuggling of migrants.