Key Benefits:
The President of the Republic,
On the Prime Minister's Report Minister for Foreign Affairs,
In view of Articles 52 to 55 of the Constitution;
Law No. 2002-1039 of 6 August 2002 authorizing the ratification of the Protocol against the Smugage of Migrants by Land, Sea and Air, supplementing the Convention The United Nations against transnational organized crime;
Given the amended Decree No. 53-192 of 14 March 1953 on the ratification and publication of international commitments entered into by France;
Given the Decree No. 2003-875 of the 8 September 2003 on the publication of the United Nations Convention against Transnational Organized Crime, adopted in New York on 15 November 2000 and signed by France on 12 December 2000,
Clipping:
The Protocol against the Smuggings of Migrants by Land, Sea and Air, supplementing the United Nations Convention against the Transnational Organized Crime, adopted in New York on 15 November 2000 and signed by France on 12 December 2000, will be published in the Official Journal of the French Republic.
The Prime Minister and the Minister for Foreign Affairs shall each have responsibility for the execution of this Decree, which shall be published in the Official Journal of the French Republic.
P R O T O C O L E
AGAINST TRAFFIC ILLICIT TRAFFIC BY LAND, AIR AND SEA, ADDITIONAL TO THE UNITED NATIONS CONVENTION AGAINST ORGANISED TRANSNATIONAL CRIME
Preamble
States Parties to this Protocol,
Declaring that effective action for Preventing and combating the illicit trafficking of migrants by land, air and sea requires a comprehensive and international approach, including cooperation, exchanges of information and other appropriate social and economic measures, including 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 cooperation International migration and development in order to address the root causes of migration, in particular those related to poverty, and to maximize the benefits of migration And encouraged, as appropriate, the interregional, regional and subregional mechanisms to continue to address the issue of migration and development,
Convinced that Migrants with humanity and fully protect their rights,
Taking into account the fact that, despite the work undertaken in other international fora, there is no universal instrument that covers all aspects of illicit trafficking in Migrants and other related issues,
Concerned by the significant increase in the activities of organized crime groups in the illicit trafficking of migrants and other related criminal activities in the present Protocol, which seriously prejudice the States concerned,
Also concerned that the smuggling of migrants is likely to endanger the life or safety of the migrants concerned,
Recalling resolution 53/111 The General Assembly of 9 December 1998, in which the Assembly decided to establish an open-ended ad hoc intergovernmental committee to prepare a comprehensive international convention against transnational organized crime and Consider whether there is a need to develop, inter alia, an international instrument to combat the illicit trafficking and transport of migrants, including by sea,
Convinced that joining the United Nations Convention against Transnational organized crime as an international instrument against the illicit trafficking of migrants by land, air and sea will help to prevent and combat this type of crime,
agreed as follows:
I. -General provisions
Article 1
Relationship to the United Nations
against Transnational Organized Crime
1. This Protocol supplements the United Nations Convention against Transnational Organized Crime. It shall be interpreted in conjunction with the Convention.
2. The provisions of the Convention shall apply mutatis mutandis to this Protocol, unless otherwise provided for in the said
. The offences established in accordance with Article 6 of this Protocol shall be regarded as offences established in accordance with the Convention.
Article 2
Subject
This Protocol shall have as its To prevent and combat the smuggling of migrants, as well as to promote cooperation between States Parties for this purpose, while protecting the rights of migrants who are the object of such trafficking.
Article 3
Terminology
For the purposes of this Protocol:
a) The expression " Smuggling of migrants " Means to ensure, in order to derive, directly or indirectly, a financial advantage or other material advantage, the illegal entry into a State Party of a person who is neither a national nor a permanent resident of that State;
(b) " Illegal entry " Means the crossing of borders when the conditions necessary for legal entry in the host state are not met;
(c) The expression " Fraudulent travel or identity document " Means any travel or identity document:
i) Who has been infringed or substantially altered by anyone other than a person or authority that is legally entitled to establish or issue the travel or identity document on behalf of the person A State; or
(ii) Who has been issued or improperly obtained by way of false declaration, corruption or coercion, or otherwise unlawfully; or
(iii) Who is used by a person other than the lawful owner ;
d) The term " Ship " Means any type of aquatic equipment, including a gear without draught and a seaplane, used or capable of being used as a means of transport on the water, other than a warship, auxiliary warship or other ship Owned or operated by a government, as long as it is used exclusively for a non-commercial public service.
Article 4
Scope
This Protocol applies, except To the contrary, to the prevention, investigation and prosecution of offences established in accordance with Article 6, where such offences are transnational in nature and an organised criminal group is involved, as well as to the Protection of the rights of persons who have been the subject of such offences.
Article 5
Criminal liability of migrants
Migrants do not become subject to criminal prosecution under Of this Protocol as they have been the subject of the acts set out in Article 6.
Article 6
Criminalization
1. Each State Party shall adopt such legislative and other measures as may be necessary to establish the character of a criminal offence, where the acts have been committed intentionally and to derive, directly or indirectly, a financial or other benefit Material advantage:
a) Illicit trafficking in migrants;
b) When the acts were committed in order to permit the smuggling of migrants:
i) To make a fraudulent travel or identity document;
ii) By Provide, provide or possess such a document;
(c) In order to allow a person, who is neither a national nor a permanent resident, to remain in the State concerned, without satisfying the conditions necessary for the legal stay in By the means referred to in paragraph b of this paragraph or by any other illegal means.
2. Each State Party shall also adopt the legislative and other measures necessary to confer the character of a criminal offence:
(a) Subject to the fundamental concepts of its legal system, in an attempt to commit an offence established in accordance with paragraph 1 of this article;
(b) The surrender of an offence established in accordance with Subparagraph (b) (i) or subparagraph 1 (c) of this Article and, subject to the fundamental concepts of its legal system, to the surrender of an offence established in accordance with paragraph 1 (b) (ii) of the Section;
(c) Organizing the commission of an offence established in accordance with paragraph 1 of this article or instructs other persons to commit it.
3. Each State Party shall adopt such legislative and other measures as may be necessary to confer the aggravating circumstance of the offences established in accordance with subparagraphs (a), (b) (i) and (c) of this article and, subject to Fundamental concepts of its legal system, of the offences established in accordance with paragraph 2 (b) and (c) of this article:
a) The danger or danger of endanginglife or security of migrants Concerned; or
(b) Inhumane or degrading treatment of such migrants, including exploitation.
4. Nothing in this Protocol shall prevent a State Party from taking action against a person whose acts constitute an offence under its domestic law.
II. -Illegal traffic of migrants by sea
Article 7
Cooperation
States Parties shall cooperate to the maximum extent possible with a view to preventing and suppressing the illicit trafficking of migrants by sea, in accordance with the law International Seas.
Article 8
Measures against illegal trafficking of migrants by sea
1. A State Party which has reasonable grounds to suspect that a ship flying its flag or registering on its register, without nationality, or possessing in reality the nationality of the State Party in question, although it beats a Foreign flag or refuse to fly its flag, is engaged in the illicit traffic of migrants by sea may ask other States Parties to assist it in ending the use of the said vessel for that purpose. The States Parties so requested shall provide such assistance to the extent possible taking into account the means at their disposal.
2. A State Party with reasonable grounds to suspect that a ship exercising freedom of navigation In accordance with international law and flying the flag or bearing the registration marks of another State Party to the illicit traffic of migrants by sea may notify it to the flag State, request confirmation of registration And, if confirmed, request authorisation from that State to take the appropriate measures in respect of that ship. The flag State may, inter alia, authorise the requesting State to:
(a) Arreason the ship;
(b) Visit the ship; and
(c) If there is evidence that the ship is engaged in the smuggling of migrants by sea, take the appropriate measures In respect of the ship, persons and cargo on board, as the flag State has authorized to do so.
3. A State Party which has taken one of the measures in accordance with paragraph 2 of this Article shall without delay inform the flag State concerned of the results of that
. A State Party shall, without delay, respond to an application by another State Party with a view to determining whether a vessel which registers on its register or which beats its flag is entitled to it, as well as to an application for authorisation In accordance with paragraph 2 of this Article.
5. A flag State may, to the extent compatible with Article 7 of this Protocol, make its authorisation subject to conditions laid down by mutual agreement between it and the requesting State, in particular with regard to liability and Extent of effective action to be taken. A State Party shall not take any further measures without the express authorisation of the flag State, with the exception of those necessary to avert an imminent danger to the lives of persons or those resulting from agreements Relevant bilateral or multilateral.
6. Each State Party shall designate one or, where appropriate, several authorities entitled to receive requests for assistance, confirmation of registration on its register or the right to fly its flag, as well as requests for authorisation from Take appropriate action and respond to it. The Secretary-General shall notify all other States Parties of the authority designated by each of them within one month of that
. A State Party which has reasonable grounds to suspect that a ship is engaged in the smuggling of migrants by sea and that the ship is without nationality or may be assimilated to a ship without nationality may boarding and visit it. If the suspicion is confirmed by evidence, that State Party shall take appropriate measures in accordance with domestic law and relevant international law.
Article 9
Protection Clauses
1. When taking measures against a ship in accordance with Article 8 of this Protocol, a State Party:
(a) Ensure the safety and human treatment of persons on board;
(b) duly take into account the need not to Endanger the safety of the ship or its cargo;
(c) duly take into account the need not to prejudice the commercial interests or the rights of the flag State or any other State concerned;
(d) Standby, according to its means, To ensure that any measure taken in respect of the ship is environmentally sound.
2. Where the grounds for the measures taken pursuant to Article 8 of this Protocol are unfounded, the ship shall be compensated for any loss or Any damage, provided that it has not committed any act justifying the measures taken.
3. Where a measure is taken, adopted or applied in accordance with this Chapter, due account shall be taken of the need not to affect or hinder:
(a) The rights and obligations of coastal States and the exercise of their competence Under international law of the sea; or
b) The power of the flag State to exercise its jurisdiction and control over administrative, technical and social matters concerning the ship.
4. Any measure taken at sea pursuant to this Chapter shall be carried out only by warships or military aircraft, or from other ships or aircraft to that duly authorized, carrying visibly an outer and identifiable mark As serving the state.
III. -Prevention, cooperation and other measures
Article 10
Information
1. Without prejudice to Articles 27 and 28 of the Convention, States Parties, in particular those that have common borders or are located on routes taken for the illicit traffic of migrants, to achieve the objectives of the present Protocol, exchange, in accordance with their respective legal and administrative systems, relevant information concerning in particular:
a) Boarding and destination points as well as routes, carriers and means Of transport that is known or suspected to be used by an organized criminal group committing the acts set out in article 6 of this Protocol;
(b) The identity and methods of organized criminal organizations or groups It is known or suspected that they commit the acts set out in Article 6 of this Protocol;
(c) The authenticity and characteristics of travel documents issued by a State Party, as well as the theft of travel or identity documents Blank or unclean use that is made of it;
(d) Means and methods of concealing and transporting persons, unauthorized alteration, reproduction or acquisition or other improper use of travel or identity documents Used in the acts set out in Article 6 of this Protocol, and the means of detecting them;
e) Legislative experience and practices and measures to prevent and combat the acts set out in Article 6 of the Present Protocol; and
(f) Scientific and technical questions of utility for detection and enforcement, in order to reinforce each other's capacity to prevent and detect acts set out in Article 6 of this Protocol, to To investigate and prosecute such acts.
2. A State Party which receives information shall comply with any request by the State Party submitting its use to restrictions.
Article 11
Border Measures
1. Without prejudice to international commitments on the free movement of persons, States Parties shall, to the extent possible, strengthen border controls necessary to prevent and detect the smuggling of migrants
2. Each State Party shall adopt such legislative or other measures as may be appropriate to prevent, as far as possible, the use of means of transport operated by commercial carriers for the commission of the offence established In accordance with paragraph 1 (a) of Article 6 of this
. Where applicable, and without prejudice to applicable international conventions, such measures shall include, inter alia, providing for the obligation of commercial carriers, including any transport company or owner or operator of a Any means of transport, to verify that all passengers are in possession of the travel documents required for entry into the receiving
. Each State Party shall take the necessary measures, in accordance with its domestic law, to impose sanctions on the obligation set out in paragraph 3 of this
. Each State Party shall consider taking measures which permit, in accordance with its domestic law, to refuse entry of persons involved in the commission of offences established in accordance with this Protocol or to cancel their
. Without prejudice to article 27 of the Convention, States Parties shall consider enhancing cooperation between their border control services, including through the establishment and maintenance of direct channels of communication.
Article 12
Security and Document Control
Each State Party shall take the necessary measures, in accordance with the available means:
(a) To ensure that travel or identity documents Issues are of such quality that they cannot be easily used and falsified or altered, reproduced or unlawfully issued; and
(b) To ensure the integrity and security of travel documents or Identity issued by him or her name and to prevent them from being unlawfully created, issued and used.
Article 13
Legitimacy and validity of documents
At the request of another State Party, a State Party shall verify, in accordance with its domestic law and within a reasonable period of time, the legitimacy and validity of travel or identity documents issued or purported to have been issued on its behalf and suspected of being used To commit the acts set out in Article 6 of this Protocol.
Article 14
Training and technical cooperation
1. States Parties shall ensure or strengthen the specialized training of immigration officers and other relevant agents in the prevention of acts set out in Article 6 of this Protocol and in the human treatment of such migrants
States Parties shall cooperate with each other and with international organizations, non-governmental organizations and other relevant organizations. As well as with other elements of civil society, as appropriate, to ensure adequate training of personnel in their territory, with a view to preventing, combating and eradicating the acts set out in Article 6 of this Protocol and Protect the rights of migrants who are the subject of such acts. This training includes:
a) Improving the security and quality of travel documents;
b) Recognition and detection of fraudulent travel or identity documents;
c) Intelligence activities at Criminal law, in particular as regards the identification of organised crime groups known or suspected to commit the acts set out in Article 6 of this Protocol, the methods used to transport migrants The object of illicit traffic, the improper use of travel documents or identity documents to commit the acts set out in Article 6 and the means of concealing used in the smuggling of migrants;
(d) Improvement of the procedures of Detection, at traditional and non-traditional ports of entry and exit, of smuggled migrants; and
e) The human treatment of migrants and the protection of rights recognized in this Protocol.
3. States Parties with appropriate expertise shall consider providing technical assistance to States which are frequently countries of origin or transit for persons who have been the subject of the acts set out in Article 6 of this Protocol. States Parties shall make every effort to provide the necessary resources, such as vehicles, computer systems and document readers, to combat the acts set out in Article 6.
Article 15
Other Prevention measures
1. Each State Party shall take measures to establish or strengthen information programmes to raise public awareness of the fact that the acts set out in article 6 of this Protocol constitute a criminal activity frequently perpetrated Organised crime groups in order to make a profit and pose serious risks to the migrants concerned.
2. In accordance with Article 31 of the Convention, the States Parties shall cooperate in the field of information in order to Prevent potential migrants from becoming victims of organized crime groups.
3. Each State Party shall promote or strengthen, as appropriate, development programmes and cooperation at the national, regional and international levels, taking into account the socio-economic realities of migration, and by granting a Special attention to economically and socially disadvantaged areas, in order to address the underlying socio-economic causes of migrant smuggling, such as poverty and underdevelopment.
Article 16
Protection and assistance measures
1. When applying this Protocol, each State Party shall, in accordance with its obligations under international law, take all appropriate measures, including, where appropriate, legislative measures, to safeguard and To protect the rights of persons who have been the subject of the acts set out in Article 6 of this Protocol, such as those rights granted to them under applicable international law, in particular the 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 provide migrants with adequate protection against any violence that may be inflicted on them, also The fact that they have been the subject of the acts set out in section 6 of this Protocolle.
3. Each State Party shall provide appropriate assistance to migrants whose life or security is endangered by the fact that they have been the subject of the acts set out in Article 6 of this
. When applying the provisions of this article, States Parties shall take into account the special needs of women and
. In the event of the detention of a person who has been the subject of the acts set out in article 6 of this Protocol, each State Party shall comply with its obligations under the Vienna Convention on Consular Relations, in cases Applicable, including the obligation to inform the data subject without delay of the provisions relating to notification and communication with consular officials.
Article 17
Agreements and Arrangements
States Parties shall consider the conclusion of bilateral or regional agreements, operational arrangements or agreements to:
(a) Establish the most appropriate and effective measures to prevent and Combat the acts set out in Article 6 of this Protocol; or
b) Develop the provisions of this Protocol between them.
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 subject of an act set out in article 6 of this Protocol and who is his national or has the right to reside in title
State Party shall examine the possibility of facilitating and accepting, in accordance with its domestic law, the return of a person who has been the subject of an act set out in Article 6 of this Protocol Which had the right to reside permanently in its territory at the time that person entered the territory of the receiving State.
3. At the request of the receiving State Party, a requested State Party shall verify, without undue or unreasonable delay, whether a person who has been the subject of an act set out in Article 6 of this Protocol is his national or has the right to reside in title On its territory.
4. In order to facilitate the return of a person who has been the subject of an act set out in Article 6 of this Protocol and not having the required documents, the State Party of which that person is a national or in which the person has the right to reside Shall, at the request of the receiving State Party, issue travel documents or any other authorization necessary to enable the person to surrender and be admitted to his territory.
5. Each State Party concerned by the return of a person who has been the subject of an act set out in Article 6 of this Protocol shall take all appropriate measures to organize such return in an orderly manner and with due regard for security and The dignity of the person.
6. States Parties may cooperate with relevant international organizations for the purposes of this
. This Article shall be without prejudice to any right granted by any law of the receiving State Party to persons who have been the subject of an act set out in Article 6 of this
. This Article shall not affect the obligations entered into under any other applicable bilateral or multilateral treaty or any applicable operational agreement or arrangement governing, in whole or in part, the return of the Persons who have been the subject of an act set out in Article 6 of this Protocol.
IV. -Final provisions
Article 19
Backup clause
1. Nothing in this Protocol affects the other rights, obligations and responsibilities of States and individuals under international law, including international humanitarian law and relative international law And in particular, where applicable, the 1951 Convention and the 1967 Protocol relating to the Status of Refugees and the principle of non-refoulement set out therein.
2. Protocol shall be interpreted and applied in such a way that persons are not discriminated against on the ground that they are the subject of the acts set out in Article 6 of this Protocol. The interpretation and application of these measures is consistent with internationally accepted principles of non-discrimination.
Article 20
Dispute Settlement
1. States Parties shall endeavour to settle disputes concerning the interpretation or application of this Protocol by negotiation.
2. Any dispute between two or more States Parties concerning the interpretation or application of the Protocol which cannot be settled by negotiation within a reasonable period of time shall, at the request of one of those States Parties, be submitted to arbitration. If, within six months of the date of the request for arbitration, the States Parties cannot agree on the organization of the arbitration, any one of them may refer the dispute to the International Court of Justice in In accordance with the Statute of the Court.
3. Each State Party may, at the time of signature, ratification, acceptance or approval of this Protocol 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 paragraph 2 of this article with respect to any State Party that has issued such a
. Any State Party that has issued a reservation under paragraph 3 of this article may withdraw it at any time by sending a notification to the Secretary-General of the United Nations.
Article 21
Signature, ratification, acceptance, approval and membership
1. This Protocol shall be open for signature by all States from 12 to 15 December 2000 in Palermo, Italy, and thereafter at United Nations Headquarters in New York, until 12 December 2002.
2. Also open for signature by regional economic integration organizations provided that at least one member State of such an organization has signed this Protocol in accordance with paragraph 1 of this
. This Protocol shall be subject 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 organization may deposit its instruments of ratification, acceptance or approval if at least one of its member states has done so. In this instrument of ratification, acceptance or approval, this Organization shall declare the extent of its competence in matters governed by this Protocol. It shall also inform the depositary of any relevant changes in the scope of its
. This Protocol shall be open for accession by any State or regional economic integration organization 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 the time of accession, a regional economic integration organization shall declare the extent of its competence in matters governed by this Protocol. It shall also inform the depositary of any relevant changes in the scope of its competence.
Article 22
Entry into force
1. This Protocol shall enter into force on the ninetieth day after the date of deposit of the fortieth instrument of ratification, acceptance, approval or accession, on the understanding that it will not enter into force before the Convention Does not enter into force. For the purposes of this paragraph, none of the instruments deposited by a regional economic integration organization shall be considered an instrument in addition to the instruments already deposited by the member States of that organization.
2. For each State or regional economic integration organization ratifying, accepting, approving or acceding to this Protocol after the deposit of the fortieth relevant instrument, this Protocol shall enter into force on the thirtieth day Following the date of deposit of the relevant instrument by that State or organization or on the date on which it enters into force pursuant to paragraph 1 of this Article, whichever is later.
Article 23
Amendment
1. Upon expiry of a period 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. The latter shall then communicate the proposed amendment to the States Parties and to the Conference of the Parties to the Convention for the consideration of the proposal and the adoption of a decision. The States Parties to this Protocol meeting at the Conference of the Parties shall make every effort to reach a consensus on any amendment. If all efforts to that effect have been exhausted without agreement, it will be necessary, as a last resort, for the amendment to be adopted, a vote by a two-thirds majority of the States Parties to this Protocol present at the Conference of Parties and voicing their vote.
2. Regional economic integration organizations shall have, in order to exercise, under this Article, their right to vote in matters falling within their competence, with a number of votes equal to the number of Their member States Parties to this Protocol. They do not exercise their right to vote if their member states exercise theirs, and vice
. An amendment adopted in accordance with paragraph 1 of this article shall be subject to ratification, acceptance or approval by the States
. An amendment adopted in accordance with paragraph 1 of this article shall enter into force for a State Party ninety days after the date of deposit by that State Party with the Secretary-General of the United Nations of a Instrument of ratification, acceptance or approval of the said
. An amendment which has entered into force is binding on the States Parties which have expressed their consent to be bound by it. The other States Parties shall remain bound by the provisions of this Protocol and any previous amendments which they have ratified, accepted or approved.
Article 24
Denunciation
1. A State Party may denounce this Protocol by written notification addressed to the Secretary-General of the United Nations. Such denunciation shall take effect one year after the date of receipt of the notification by the Secretary-General.
2. A regional economic integration organization shall cease to be a Party to this Protocol when all its member States have Denounced.
Article 25
Depositary and Languages
1. The Secretary-General of the United Nations is the depositary of this Protocol.
2. The original of this Protocol, of which the Arabic, Chinese, English, French and Russian texts are equally authentic, shall be deposited with the Secretary-General of the United Nations.
In witness whereof, the undersigned plenipotentiaries, Authorized by their respective governments, have signed this Protocol.
Done at Paris, May 19, 2004.
Jacques Chirac
By the President of the Republic:
Prime Minister,
Jean-Pierre Raffarin
The Minister for Foreign Affairs,
Michel Barnier
