CELEX: 52015PC0291
Language: en
Date: 2015-06-15
Title: Proposal for a COUNCIL DECISION on the signing, on behalf of the European Union, of the Additional Protocol to the Council of Europe Convention on the Prevention of Terrorism (CETS No. 196)

EUROPEAN
                         COMMISSION
                                                   Brussels, 15.6.2015
                                                   COM(2015) 291 final
                                                   2015/0130 (NLE)
                                      Proposal for a
                                  COUNCIL DECISION
   on the signing, on behalf of the European Union, of the Additional Protocol to the
    Council of Europe Convention on the Prevention of Terrorism (CETS No. 196)
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 ---pagebreak---                                    EXPLANATORY MEMORANDUM
   1.        CONTEXT OF THE PROPOSAL
   On 24 September 2014, the UN Security Council adopted Resolution 2178(2014) on foreign
   terrorist fighters (FTF) under Chapter VII of the UN Charter (UNSCR 2178(2014)).
   In October 2014, the Council called upon the Commission to explore ways to overcome
   possible shortcomings of the Framework Decision on Terrorism (Framework Decision
   2002/475/JHA on combating terrorism as amended by Framework Decision 2008/919/JHA;
   “Framework Decision on Terrorism”) in light of, in particular, the UNSCR 2178(2014)1. In
   the Joint Statement after the Riga JHA Council, Ministers agreed on the importance to
   consider possible legislative measures to establish a common understanding of terrorism
   offences in light of UNSCR 2178(2014).2 In its Resolution of 11 February 2015, the European
   Parliament stressed the need to inter alia harmonise criminalisation of foreign-fighter-related
   offences and avoid prosecution gaps by updating the Framework Decision on terrorism.3
   On 21 January 2015, the Committee of Ministers of the Council of Europe (CoE) established
   the Committee on Foreign Terrorist Fighters and Related Issues (COD-CTE). Under the
   authority of the Committee of Experts on Terrorism (CODEXTER), the COD-CTE was
   tasked to prepare an Additional Protocol to the CoE Convention on the Prevention of
   Terrorism (CETS No. 196).
   Following three rounds of discussions within the COD-CTE (23-26 February 2015, 9-12
   March 2015 and 23-26 March 2015), CODEXTER discussed and eventually approved the
   Additional Protocol on 10 April 2015 at its 28th plenary meeting.
   The Parliamentary Assembly of the Council of Europe gave its opinion on the Additional
   Protocol at the session of 20-24 April. The Additional Protocol has been preliminarily
   approved by the Committee of Ministers on 12 May 2015 with a view to final adoption on 19
   May 2015. It will be opened for signature at a later date.
   2.        LEGAL ELEMENTS OF THE PROPOSAL
   2.1       The aim and content of the Additional Protocol
   The Additional Protocol aims at facilitating the swift, coordinated and effective
   implementation of certain aspects of the UNSCR 2178 (mainly those related to preventing and
   pursuing the departure of foreign terrorist fighters), furthering a common understanding of
   and response to foreign terrorist fighter-related offences, more broadly facilitating
   investigations and prosecutions of acts of a preparatory nature having the potential and danger
   of leading to the commission of terrorist offences and facilitating international cooperation
   through enhanced information exchange.
   The Additional Protocol thus provides for the criminalisation of the following acts:
   Participation in an association or group for the purpose of terrorism (Article 2), receiving
   training for terrorism (Article 3), travelling or attempting to travel for terrorist purposes
   (Article 4), providing or collecting funds for such travels (Article 5) and organising and
   1
           Council Conclusions of its meeting of 9-10 October 2014, "Foreign fighters: follow-up on the
           Conclusions of the European Council of 30 August 2014", Brussels 13 October 2014, Doc. No.
           14160/14, point 3, 6th bullet point.
   2
           Riga Joint Statement following the informal meeting of Justice and Home Affairs Ministers in Riga on
           29 and 30 January, last bullet point of the conclusions.
   3
           European Parliament Resolution of 11 February 2015 on anti-terrorism measures (2015/2530(RSP)),
           point 26.
EN                                                         2                                                    EN
 ---pagebreak---    facilitating such travels (Article 6). Finally, Article 7 aims at enhancing information exchange
   by obliging Parties to designate a contact point to provide or treat requests for available
   information in a timely manner.
   Article 2 is considered as an important instrument in effectively investigating and prosecuting
   those contributing with their activities to the commission of terrorist offences by terrorist
   groups. Article 3 provides for the criminalisation of acts of a preparatory nature, i.e. receiving
   terrorist training, complementing the existing offence of providing training as defined in
   Article 7 of the Convention CETS No. 196. At the same time, the provision in Article 3
   enhances legal certainty and the effectiveness of Articles 4 – 6 of the Additional Protocol in
   that it provides for a definition of receiving terrorist training which is mentioned as one of the
   purposes of the travel. Finally, Articles 4 to 6 are meant to transpose operative paragraph 6 a)
   – c) of UNSCR 2178(2014). They expand the scope of criminalisation to other acts of a
   preparatory nature going beyond those already covered by the Convention CETS No. 196 (i.e.
   public provocation, training and recruitment to terrorism).
   With the provision on enhanced information exchange/contact points in Article 7, the
   Additional Protocol responds to a call in operative paragraph 3 of the UNSCR 2178(2014) for
   more international cooperation while more specifically facilitating the prevention and
   investigation of departures to third countries with the purpose of committing terrorist offences
   or participating in terrorist training activities.4
   2.2         The legal basis for the proposed decision
   It is established case-law that the choice of legal basis for an EU measure must rest on
   objective factors that are amenable to judicial review; these include the aim and the content of
   the measure.5 If examination of a European Union measure reveals that it pursues a twofold
   purpose or that it has a twofold component and if one of those is identifiable as the main or
   predominant purpose or component, whereas the other is merely incidental, the measure must
   be founded on a single legal basis, namely that required by the main or predominant purpose
   or component.6
   The predominant purpose of the Additional Protocol is to introduce criminal offences related
   to terrorism, for which the Union has competence based on Article 83(1) TFEU. The legal
   basis for signing the Additional Protocol must therefore include Article 83(1) TFEU.
   No additional legal basis is required. In particular, Article 7 (on enhanced information
   exchange through designation of contact points) aims to facilitate the detection, prevention
   and investigation of those traveling or attempting to travel and thus faciltates the practical
   application of Article 4 of the additional protocol.7 It is therefore of an ancillary nature.
   2.3         The necessity of the proposed decision
   Article 3(2) TFEU provides that the Union has exclusive competence “for the conclusion of
   an international agreement ... in so far as its conclusion may affect common rules or alter
   their scope.” An international agreement may affect common rules or alter their scope where
   the area covered by the agreement overlaps with Union legislation or is covered to a large
   4
            See also point 63 of the explanatory report to the Additional Protocol.
   5
        See, for instance, Case C-490/10 Parliament v Council, EU:C:2012:525, paragraph 44, and the case-law
        cited.
   6
        Case C-490/10 Parliament v Council, paragraph 46.
   7
            See points 64-68 of the explanatory report to the Additional Protocol.
EN                                                          3                                                EN
 ---pagebreak---    extent by Union law.8 Moreover, to assess whether an area is covered to a large extent by
   Union law account must be taken not only of Union law as it currently stands in the area
   concerned, but also of its future development, in so far as that is foreseeable.9
   The Union has already adopted measures in the area covered by the Additional Protocol,
   including substantive criminal law provisions as well as a provision on enhanced information
   exchange.
   The EU legal framework governing criminal offences related to terrorism is laid down in the
   Framework Decision on Terrorism. The Additional Protocol widens the scope of the offences
   that must be criminalised10 or introduces offences similar to those already contained in the
   Framework Decision11.
   The relevant Union instruments related to police cooperation are notably:
   (a) the Council Framework Decision 2006/960/JHA of 18 December 2006 on simplifying the
   exchange of information and intelligence between law enforcement authorities of the Member
   States of the European Union12,
   (b) the Council Decision 2008/615/JHA of 23 June 2008 on the stepping up of cross-border
   cooperation, particularly in combatting terrorism and cross-border crime (Prüm-Decision), 13
   and
   (c) the Council decision 2005/671/JHA on the exchange of information and cooperation
   concerning terrorist offences14.
   These instruments regulate on the one hand information exchange for the purpose of criminal
   investigations in terrorist related matters and the establishment of contact points for the
   exchange of information on the other. Europol in particular supports the police cooperation
   between Member States and amongst Member States and selected Third States, to adequately
   respond to the phenomenon of foreign terrorist fighters.
   The conclusion of the Additional Protocol may therefore affect common rules or alter their
   scope.
   Moreover, as regards the foreseeable future development of Union law, following calls by the
   Council to explore ways to overcome possible shortcomings in the existing legal framework,
   discussions are currently ongoing on a possible revision of the Framework Decision in
   particular in light of UNSCR 2178(2014).
   As announced in the European Agenda on Security, the Commission will launch an impact
   assessment in 2015 with a view to updating the Framework Decision on Terrorism in 2016,
   taking into account the negotiations on an Additional Protocol to the Council of Europe
   Convention on the Prevention of Terrorism.15
   8
           Case 22/70 Commission v Council [1971] ECR 263, so-called ERTA case
   9
           Case C-66/13, Green Network, EU:C:2014:2399, paragraphs 61-64, and case law cited therein.
   10
           Articles 3 to 6 of the Additional Protocol.
   11
           Article 2 of the Additional Protocol criminalising the participation in activities of a terrorist group
           which is similar to Article 2 of the Framework Decision on Terrorism.
   12
           OJ L386/9 of 29/12/2006
   13
           OJ L 210/1 of 06/06/2008
   14
           OJ L 253/22 of 29/09/2005
   15
           Communication from the Commission to the European Parliament, the Council, the European
           Economic and Social Committee and the Committee of the Regions, The European Agenda on Security,
           COM(2015) 185 final of 28 April 2015, not yet published in the OJ.
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 ---pagebreak---    The proposed decision is therefore necessary, as the Additional Protocol must be signed on
   behalf of the Union..
   3.       TERRITORIAL APPLICATION
   In accordance with Protocol 22 of the Treaty of the European Union, the Additional Protocol
   signed and eventually concluded by the European Union is binding upon and applies in all EU
   Member States with the exception of Denmark.
   In accordance with Protocol 21 of the Treaty of the European Union, the Additional Protocol
   signed and eventually concluded by the European Union is binding upon and applies in the
   United Kingdom only insofar as this Member State notifies the Council of its wish to take part
   in the adoption and application of this instrument.
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 ---pagebreak---                                                            2015/0130 (NLE)
                                              Proposal for a
                                        COUNCIL DECISION
       on the signing, on behalf of the European Union, of the Additional Protocol to the
        Council of Europe Convention on the Prevention of Terrorism (CETS No. 196)
   THE COUNCIL OF THE EUROPEAN UNION,
   Having regard to the Treaty on the Functioning of the European Union, and in particular
   Article 83(1), in conjunction with Article 218(5) thereof,
   Having regard to the proposal from the European Commission,
   Whereas:
   (1)     On 1 April 2015 the Council authorised the Commission to open negotiations for the
           Additional Protocol to the Council of Europe Convention on the Prevention of
           Terrorism (CETS No. 196).
   (2)     The Additional Protocol aims at facilitating the implementation of United Nations
           Security Council Resolution 2178(2014) on Foreign Terrorist Fighters and, in
           particular, at establishing criminal offences for certain acts identified in operative
           paragraph 6 of that Resolution.
   (3)     A common understanding of foreign terrorist fighter related offences and criminal
           offences of a preparatory nature with the potential to lead to the commission of
           terrorist acts, would contribute to further enhancing the effectiveness of the criminal
           justice instruments and cooperation at Union and international level.
   (4)     The Additional Protocol should therefore be signed on behalf of the European Union
   (5)     [In accordance with Article 3 of Protocol (No 21) on the position of the United
           Kingdom and Ireland in respect of the Area of Freedom, Security and Justice, annexed
           to the Treaty on European Union and to the Treaty on the Functioning of the European
           Union, the United Kingdom has notified its wish to take part in the adoption and
           application of this Decision.]
   (6)     OR: [In accordance with Articles 1 and 2 of Protocol (No 21) on the position of the
           United Kingdom and Ireland in respect of the Area of Freedom, Security and Justice,
           annexed to the Treaty on European Union and to the Treaty on the Functioning of the
           European Union, and without prejudice to Article 4 of that Protocol, the United
           Kingdom is not taking part in the adoption of this Decision and is not bound by it or
           subject to its application.]
   (7)     In accordance with Articles 1 and 2 of Protocol (No 22) on the position of Denmark,
           annexed to the Treaty on European Union and to the Treaty on the Functioning of the
           European Union, Denmark is not taking part in the adoption of this Decision and is not
           bound by it or subject to its application,
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 ---pagebreak---    HAS ADOPTED THIS DECISION:
                                               Article 1
   The signing of the Additional Protocol to the Council of Europe Convention on the
   Prevention of Terrorism (CETS No. 196) is hereby approved on behalf of the European
   Union, subject to the conclusion of the said Protocol. The text of the Additional Protocol to be
   signed is attached to this Decision.
                                               Article 2
   The Council Secretariat General shall establish the instrument of full powers to sign the
   Protocol, subject to its conclusion, for the person(s) indicated by the negotiator of the
   Protocol.
                                               Article 3
   This Decision shall enter into force upon its adoption.
   Done at Brussels,
                                                 For the Council
                                                 The President
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 ---documentbreak---                          EUROPEAN
                         COMMISSION
                                                  Brussels, 15.6.2015
                                                  COM(2015) 291 final
                                                  ANNEX 1
                                        ANNEX
                                         to the
                                      Proposal for a
                                  COUNCIL DECISION
   on the signing, on behalf of the European Union, of the Additional Protocol to the
    Council of Europe Convention on the Prevention of Terrorism (CETS No. 196)
EN                                                                                    EN
 ---pagebreak---                                                 ANNEX
                                                  to the
                                             Proposal for a
                                        COUNCIL DECISION
        on the signing, on behalf of the European Union, of the Additional Protocol to the
         Council of Europe Convention on the Prevention of Terrorism (CETS No. 196)
         Additional Protocol to the Council of Europe Convention on the Prevention of
                                      Terrorism (CETS No. 196)
   The member States of the Council of Europe and the other Parties to the Council of Europe
   Convention on the Prevention of Terrorism (CETS No. 196), signatory to this Protocol,
   Considering that the aim of the Council of Europe is to achieve greater unity between its
   members;
   Desiring to further strengthen the efforts to prevent and suppress terrorism in all its forms,
   both in Europe and globally, while respecting human rights and the rule of law;
   Recalling human rights and fundamental freedoms enshrined, in particular, in the Convention
   for the Protection of Human Rights and Fundamental Freedoms (ETS No. 5) and its protocols,
   as well as in the International Covenant on Civil and Political Rights;
   Expressing their grave concern about the threat posed by persons travelling abroad for the
   purpose of committing, contributing to or participating in terrorist offences, or the providing
   or receiving of training for terrorism in the territory of another State;
   Having regard in this respect to Resolution 2178 (2014) adopted by the Security Council of
   the United Nations at its 7272nd meeting on 24 September 2014, in particular paragraphs 4 to
   6 thereof;
   Considering it desirable to supplement the Council of Europe Convention on the Prevention
   of Terrorism in certain respects,
   Have agreed as follows:
   Article 1 – Purpose
   The purpose of this Protocol is to supplement the provisions of the Council of Europe
   Convention on the Prevention of Terrorism, opened for signature in Warsaw on 16 May 2005
   (hereinafter referred to as “the Convention”) as regards the criminalisation of the acts
   described in Articles 2 to 6 of this Protocol, thereby enhancing the efforts of Parties in
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 ---pagebreak---    preventing terrorism and its negative effects on the full enjoyment of human rights, in
   particular the right to life, both by measures to be taken at national level and through
   international co-operation, with due regard to the existing applicable multilateral or bilateral
   treaties or agreements between the Parties.
   Article 2 – Participating in an association or group for the purpose of terrorism
   1.        For the purpose of this Protocol, “participating in an association or group for the
             purpose of terrorism” means to participate in the activities of an association or group
             for the purpose of committing or contributing to the commission of one or more
             terrorist offences by the association or the group.
   2.        Each Party shall adopt such measures as may be necessary to establish “participating
             in an association or group for the purpose of terrorism”, as defined in paragraph 1,
             when committed unlawfully and intentionally, as a criminal offence under its
             domestic law.
   Article 3 – Receiving training for terrorism
   1.        For the purpose of this Protocol, “receiving training for terrorism” means to receive
             instruction, including obtaining knowledge or practical skills, from another person in
             the making or use of explosives, firearms or other weapons or noxious or hazardous
             substances, or in other specific methods or techniques, for the purpose of carrying
             out or contributing to the commission of a terrorist offence.
   2.        Each Party shall adopt such measures as may be necessary to establish “receiving
             training for terrorism”, as defined in paragraph 1, when committed unlawfully and
             intentionally, as a criminal offence under its domestic law.
   Article 4 – Travelling abroad for the purpose of terrorism
   1.        For the purpose of this Protocol, “travelling abroad for the purpose of terrorism”
             means travelling to a State, which is not that of the traveller’s nationality or
             residence, for the purpose of the commission of, contribution to or participation in a
             terrorist offence, or the providing or receiving of training for terrorism.
   2.        Each Party shall adopt such measures as may be necessary to establish “travelling
             abroad for the purpose of terrorism”, as defined in paragraph 1, from its territory or
             by its nationals, when committed unlawfully and intentionally, as a criminal offence
             under its domestic law. In doing so each Party may establish conditions required by
             and in line with its constitutional principles.
   3.        Each Party shall also adopt such measures as may be necessary to establish as a
             criminal offence under, and in accordance with, its domestic law the attempt to
             commit an offence as set forth in this article.
   Article 5 – Funding travelling abroad for the purpose of terrorism
   1.        For the purpose of this Protocol, “funding travelling abroad for the purpose of
             terrorism” means providing or collecting, by any means, directly or indirectly, funds
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 ---pagebreak---             fully or partially enabling any person to travel abroad for the purpose of terrorism, as
            defined in Article 4, paragraph 1, of this Protocol, knowing that the funds are fully or
            partially intended to be used for this purpose.
   2.       Each Party shall adopt such measures as may be necessary to establish the “funding
            of travelling abroad for the purpose of terrorism”, as defined in paragraph 1, when
            committed unlawfully and intentionally, as a criminal offence under its domestic law.
   Article 6 – Organising or otherwise facilitating travelling abroad for the purpose of
   terrorism
   1.       For the purpose of this Protocol, “organising or otherwise facilitating travelling
            abroad for the purpose of terrorism” means any act of organisation or facilitation that
            assists any person in travelling abroad for the purpose of terrorism, as defined in
            Article 4, paragraph 1, of this Protocol, knowing that the assistance thus rendered is
            for the purpose of terrorism.
   2.       Each Party shall adopt such measures as may be necessary to establish “organising or
            otherwise facilitating travelling abroad for the purpose of terrorism”, as defined in
            paragraph 1, when committed unlawfully and intentionally, as a criminal offence
            under its domestic law.
   Article 7 – Exchange of information
   1.       Without prejudice to Article 3, paragraph 2a, of the Convention and in accordance
            with its domestic law and existing international obligations, each Party shall take
            such measures as may be necessary in order to strengthen the timely exchange
            between Parties of any available relevant information concerning persons travelling
            abroad for the purpose of terrorism, as defined in Article 4. For that purpose, each
            Party shall designate a point of contact available on a 24-hour, seven-days-a-week
            basis.
   2.       A Party may choose to designate an already existing point of contact under paragraph
            1.
   3.       A Party’s point of contact shall have the capacity to carry out communications with
            the point of contact of another Party on an expedited basis.
   Article 8 – Conditions and safeguards
   1.       Each Party shall ensure that the implementation of this Protocol, including the
            establishment, implementation and application of the criminalisation under Articles 2
            to 6, is carried out while respecting human rights obligations, in particular the right
            to freedom of movement, freedom of expression, freedom of association and freedom
            of religion, as set forth in, where applicable to that Party, the Convention for the
            Protection of Human Rights and Fundamental Freedoms, the International Covenant
            on Civil and Political Rights and other obligations under international law.
   2.       The establishment, implementation and application of the criminalisation under
            Articles 2 to 6 of this Protocol should furthermore be subject to the principle of
            proportionality, with respect to the legitimate aims pursued and to their necessity in a
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 ---pagebreak---             democratic society, and should exclude any form of arbitrariness or discriminatory or
            racist treatment.
   Article 9 – Relation between this Protocol and the Convention
   The words and expressions used in this Protocol shall be interpreted within the meaning of the
   Convention. As between the Parties, all the provisions of the Convention shall apply
   accordingly, with the exception of Article 9.
   Article 10 – Signature and entry into force
   1.       This Protocol shall be open for signature by Signatories to the Convention. It shall be
            subject to ratification, acceptance or approval. A Signatory may not ratify, accept or
            approve this Protocol unless it has previously ratified, accepted or approved the
            Convention, or does so simultaneously. Instruments of ratification, acceptance or
            approval shall be deposited with the Secretary General of the Council of Europe.
   2.       This Protocol shall enter into force on the first day of the month following the
            expiration of a period of three months after the deposit of the sixth instrument of
            ratification, acceptance or approval, including at least four member States of the
            Council of Europe.
   3.       In respect of any Signatory which subsequently deposits its instrument of ratification,
            acceptance or approval, this Protocol shall enter into force on the first day of the
            month following the expiration of a period of three months after the date of the
            deposit of the instrument of ratification, acceptance or approval.
   Article 11 – Accession to the Protocol
   1.       After the entry into force of this Protocol, any State, which has acceded to the
            Convention, may also accede to this Protocol or do so simultaneously.
   2.       In respect of any State acceding to the Protocol under paragraph 1 above, the
            Protocol shall enter into force on the first day of the month following the expiration
            of a period of three months after the date of the deposit of the instrument of
            accession with the Secretary General of the Council of Europe.
   Article 12 – Territorial application
   1.       Any State or the European Union may, at the time of signature or when depositing its
            instrument of ratification, acceptance, approval or accession, specify the territory or
            territories to which this Protocol shall apply.
   2.       Any Party may, at any later time, by declaration addressed to the Secretary General
            of the Council of Europe, extend the application of this Protocol to any other territory
            specified in the declaration. In respect of such territory the Protocol shall enter into
            force on the first day of the month following the expiration of a period of three
            months after the date of receipt of the declaration by the Secretary General.
   3.       Any declaration made under the two preceding paragraphs may, in respect of any
            territory specified in such declaration, be withdrawn by a notification addressed to
            the Secretary General of the Council of Europe. The withdrawal shall become
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 ---pagebreak---             effective on the first day of the month following the expiration of a period of three
            months after the date of receipt of such notification by the Secretary General.
   Article 13 – Denunciation
   1.       Any Party may, at any time, denounce this Protocol by means of a notification
            addressed to the Secretary General of the Council of Europe.
   2.       Such denunciation shall become effective on the first day of the month following the
            expiration of a period of three months after the date of receipt of the notification by
            the Secretary General of the Council of Europe.
   3.       Denunciation of the Convention automatically entails denunciation of this Protocol.
   Article 14 – Notifications
   The Secretary General of the Council of Europe shall notify the member States of the Council
   of Europe, the European Union, the non-member States which have participated in the
   elaboration of this Protocol as well as any State which has acceded to, or has been invited to
   accede to, this Protocol of:
   a.         any signature;
   b.         the deposit of any instrument of ratification, acceptance, approval or accession;
   c.         any date of entry into force of this Protocol in accordance with Articles 10 and 11;
   d.         any other act, declaration, notification or communication relating to this Protocol.
   In witness whereof the undersigned, being duly authorised thereto, have signed this Protocol.
   Done at Brussels, this 19th day of May 2015, in English and in French, both texts being
   equally authentic, in a single copy which shall be deposited in the archives of the Council of
   Europe. The Secretary General of the Council of Europe shall transmit certified copies to each
   member State of the Council of Europe, to the European Union, to the non-member States
   which have participated in the elaboration of this Protocol, and to any State invited to accede
   to it.
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