On the ratification of the Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime

Home / RLA / On the ratification of the Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime

Law of the Republic of Kazakhstan dated June 4, 2008 No. 38-IV

To ratify the Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime, adopted in New York on November 15, 2000.

President of the Republic of Kazakhstan N. Nazarbayev

PROTOCOL AGAINST THE SMUGGLING OF MIGRANTS BY LAND, SEA AND AIR, SUPPLEMENTARY TO THE UNITED NATIONS CONVENTION AGAINST TRANSNATIONAL ORGANIZED CRIME ORGANIZED CRIME

UNITED NATIONS 2000

PROTOCOL AGAINST THE SMUGGLING OF MIGRANTS BY LAND, SEA AND AIR, SUPPLEMENTARY TO THE UNITED NATIONS CONVENTION AGAINST TRANSNATIONAL ORGANIZED CRIME ORGANIZED CRIME

The preamble

The States Parties to this Protocol, declaring that effective measures to prevent and combat the smuggling of migrants by land, sea and air require a comprehensive international approach, including cooperation, information exchange and other appropriate measures, including socio-economic measures, at the national, regional and international levels, 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 field of international migration and development in order to help address the root causes of migration, especially those related to poverty, and maximize the benefits of international migration for those affected, and recommended, as appropriate, interregional, regional regional and subregional mechanisms should continue to address the issue of migration and development, Convinced of the need to ensure humane treatment and full protection of migrants' rights, bearing in mind that, despite the work carried out in other international forums, there is no universal document that addresses all aspects of migrant smuggling and other related issues, Concerned about the significant expansion of the activities of organized criminal groups in relation to smuggling migrants and other related criminal activities specified in this Protocol, which causes great harm to the States concerned, and is also concerned that the smuggling of migrants may endanger the lives or safety 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 to elaborate a comprehensive international convention against transnational organized crime and discuss the issue of about the development, in particular, Convinced that the addition of the United Nations Convention against Transnational Organized Crime to the international instrument against the Smuggling of migrants by Land, Sea and Air will contribute to the prevention and combating of such crimes, agreed as follows:

I. General provisions

Article 1 Relationship with the United Nations Convention against Transnational Organized Crime

1. This Protocol supplements the United Nations Convention against Transnational Organized Crime. It is interpreted in conjunction with the Convention.

2. The provisions of the Convention shall apply mutatis mutandis to this Protocol, unless it provides otherwise.

3. The offences established in accordance with article 6 of this Protocol shall be considered as offences established in accordance with the Convention.

Article 2 Purpose

The purpose of this Protocol is to prevent and combat the smuggling of migrants, as well as to promote cooperation among States Parties in achieving these goals while ensuring the protection of the rights of smuggled migrants.

Article 3 Terms

For the purposes of this Protocol:

(a) "Smuggling of migrants" means ensuring, for the purpose of obtaining, directly or indirectly, any financial or other material benefit, the illegal entry into a State Party of any person who is not its national or does not permanently reside in its territory;

(b) "Illegal entry" means crossing borders without meeting the necessary requirements for legal entry into the receiving State;

(i) Have been forged or altered in any material way by any person or institution other than those legally authorized to produce or issue an entry/exit document or identity card on behalf of the State; or

(ii) Have been improperly issued or obtained through misrepresentation, corruption or coercion, or in any other illegal manner; or

iii) are used by a person other than the legal owner;

(d) "Vessel" means floating vehicles of any type, including non-displacement vessels and seaplanes, which are or may be used as a means of transportation by water, with the exception of warships, auxiliary naval vessels or other vessels owned or operated by the State and used, at the relevant time, only on State-owned a non-profit service.

Article 4 Scope of application

This Protocol, unless otherwise specified, applies to the prevention, investigation and prosecution of crimes established in accordance with article 6 of this Protocol, if these crimes are transnational in nature and committed with the participation of an organized criminal group, as well as to the protection of the rights of persons who have become the target of such crimes.

Article 5 Criminal prosecution of migrants

This Protocol does not apply to the criminal prosecution of migrants solely because they have been the subject of the acts referred to in article 6 of this Protocol.

Article 6 Criminalization

1. Each State Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences the following acts when committed intentionally and with the aim of obtaining, directly or indirectly, financial or other material benefits:

(a) Smuggling of migrants;

(b) When they are committed in order to create conditions for the smuggling of migrants:

i) production of a forged entry/exit document or identity card;

(ii) The acquisition or provision of such a document or its possession;

(c) Providing any person who is not a national of the State concerned or does not permanently reside in its territory with the opportunity to stay in that State without meeting the necessary requirements for legal residence by using the methods referred to in subparagraph (b) of this paragraph or any other illegal means.

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

(a) Subject to compliance with the basic principles of its legal system, an attempt to commit an offence established in accordance with paragraph 1 of this article;

(b) Participation as an accomplice in the commission of an offence established in accordance with paragraph 1 (a), (b) (i) or (c) of this article, and, subject to the basic principles of its legal system, participation as an accomplice in the commission of an offence established in accordance with paragraph 1 (a), (b) (i) or (c) of this article. as such in accordance with paragraph 1 (b) (ii) of this article;

(c) Organizing 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 recognize as aggravating circumstances the offences established in accordance with paragraph 1 (a), (b) (i) and (c) of this article and, subject to the basic principles of its the crimes established in accordance with paragraph 2 (b) and (c) of this article, the circumstances of:

(a) Who endanger or are likely to endanger the life or safety of the migrants concerned; or

(b) Which involve inhuman or degrading treatment of such migrants, including for the purpose of exploitation.

4. Nothing in this Protocol shall prevent a State Party from taking measures against any person whose act is criminalized under its domestic law.

II. Smuggling of migrants by sea

Article 7 Cooperation

The Participating States shall cooperate to the maximum extent possible in order to prevent and suppress the smuggling of migrants by sea in accordance with international maritime law.

Article 8 Measures to counteract the illegal importation of migrants by sea

1. A State Party that has reasonable grounds to suspect that a vessel that either flies its flag or claims to be registered in that State, or has no nationality, or, although it carries a foreign flag or refuses to display the flag, actually has the nationality of that State Party, participates in an illegal when importing migrants by sea, may request the assistance of other Participating States in preventing the use of this vessel for this purpose. The Participating States to which such a request is addressed shall provide such assistance, to the extent possible, within the limits of available means.

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 of another State Party or bearing its registration marks in such a State is involved in the smuggling of migrants by sea may notify the flag State, request confirmation of registration and, in the case of to confirm, to request the permission of the flag State to take appropriate measures in relation to this vessel. The flag State may allow the requesting State, in particular:

a) disembark this vessel;

(b) To inspect the vessel; and

(c) If evidence is found of the vessel's involvement in the smuggling of migrants by sea, take appropriate measures against the vessel, as well as the persons and cargo on board, in accordance with the procedure authorized by the flag State.

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

4. A State Party shall promptly respond to a request received from another State Party to determine whether a vessel claiming to be registered in that State or flying its flag is eligible to do so, as well as a response to a request for authorization made in accordance with paragraph 2 of this article.

5. The flag State may, in accordance with article 7 of this Protocol, accompany its authorization with conditions to be agreed between it and the requesting State, including conditions regarding responsibility and the extent of effective measures to be taken. A State Party shall not take additional measures without the express permission of the flag State, except for those necessary to eliminate an immediate threat to human life or those resulting from relevant bilateral or multilateral agreements.

6. Each State Party shall designate an authority or, if necessary, authorities to receive requests for assistance, confirmation of registration or the right of a vessel to fly its flag, as well as authorization to take appropriate measures and respond to such requests. Notification of such appointment shall be sent through the Secretary-General to all other Participating States within one month of the appointment.

7. A State Party that has reasonable grounds to suspect that a vessel is involved in the smuggling of migrants by sea and has no nationality or may be equated to a vessel without nationality may board and inspect the vessel. If evidence is found confirming this suspicion, such State Party shall take appropriate measures in accordance with the relevant provisions of domestic and international law.

Article 9 Protective provisions

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

(a) Ensures the safety of persons on board and the humane treatment of them;

(b) Takes due account of the need not to endanger the safety of the ship or its cargo;

(c) Takes due account of the need not to prejudice the commercial or legal interests of the flag State or any other interested State;

(d) Ensure, to the extent possible, that any measure taken with respect to the vessel is consistent with environmental safety considerations.

2. If the reasons for the measures taken in accordance with article 8 of this Protocol turn out to be unfounded, the ship shall receive compensation for any loss or damage caused, provided that the ship has not committed any act justifying the measures taken.

3. Any measure adopted or implemented in accordance with this chapter shall duly reflect the need not to impede or prejudice:

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

(b) The authority of the flag State to exercise jurisdiction and control over administrative, technical and social matters related to the ship.

4. Any measure taken at sea in accordance with this chapter shall be carried out only by warships or military aircraft, or by other ships or aircraft which have clear external markings allowing them to be identified as being in public service and which are authorized for this purpose.

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 States Parties that have common borders or are located on routes through which migrants are smuggled, in order to achieve the objectives of this Protocol, shall exchange, in accordance with their domestic legal and administrative systems, relevant information on such matters as:

(a) Points of departure and destination, as well as routes, carriers and vehicles that are known or suspected to be used by an organized criminal group involved in the commission of acts referred to in article 6 of this Protocol;

(b) Information on organizations or organized criminal groups that are known or suspected to be involved in the commission of the acts referred to in article 6 of this Protocol and the methods they use;

(c) Distinguishing features of the authenticity and proper form of entry/exit documents issued by the State Party, and information about stolen forms of entry/exit or identity documents or their subsequent misuse;

(d) The means and methods of concealment and transportation of persons, the illegal modification, reproduction or acquisition or misuse of entry/exit documents or identity cards used in the commission of the acts referred to in article 6 of this Protocol, and the methods of their detection;

(e) Legislative experience, as well as practices and measures aimed at preventing and combating the acts referred to in article 6 of this Protocol; and

(f) Scientific and technical information useful for the activities of law enforcement agencies in order to enhance their capacity to prevent, identify and investigate acts referred to in article 6 of this Protocol and to prosecute those involved.

2. The State Party that receives the information shall comply with any request from the State Party providing the information that imposes restrictions on its use.

Article 11 Border control measures

1. Without prejudice to international obligations regarding the free movement of persons, Participating States shall, to the extent possible, establish such border control measures as may be necessary to prevent and detect the smuggling of migrants.

2. Each State Party shall adopt legislative or other appropriate measures to prevent, as far as possible, the use of vehicles operated by commercial carriers in the commission of an offence established in accordance with paragraph 1 (a) of article 6 of this Protocol.

3. Where appropriate, and without prejudice to applicable international conventions, such measures include the obligation for commercial carriers, including any transport company or owner or operator of any means of transport, to ensure that all passengers have the entry/exit documents required to enter the host State.

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

5. Each State Party shall consider taking measures that make it possible, in accordance with its domestic law, to deny entry to persons involved in the commission of offences established in accordance with this Protocol or to revoke their visas.

6. Without prejudice to article 27 of the Convention, the Participating States shall consider strengthening cooperation between border control authorities, including through the establishment and maintenance of direct communication channels.

Article 12 Reliability of documents and control over them

Each State Party shall take, to the extent possible, such measures as may be necessary to:

(a) Ensuring the quality of the entry/exit documents or identity cards issued by them, which would make it as difficult as possible for their misuse and forgery or illegal modification, reproduction or issuance; and

(b) To ensure the security and reliability of entry/exit documents or identity documents issued by or on behalf of that State Party, as well as to prevent their illicit manufacture, issuance and use.

Article 13 Legality and validity of documents

A State Party shall, at the request of another State Party, verify, within a reasonable period of time, in accordance with its domestic law, the legality and validity of entry/exit documents or identity cards issued or allegedly issued on its behalf, which are suspected of being used for the purpose of committing acts referred to in article 6. of this Protocol.

Article 14 Training and technical cooperation

1. States Parties shall provide or improve specialized training for staff of migration and other relevant authorities on the prevention of acts referred to in article 6 of this Protocol and the humane treatment of migrants who have been the subject of such acts, while ensuring respect for their rights set out in this Protocol.

2. States Parties shall cooperate with each other and with competent international organizations, non-governmental organizations, other relevant organizations and other elements of civil society, as appropriate, in providing adequate training in their territories for the prevention, suppression and eradication of acts referred to in article 6 of this Protocol, as well as the protection of the rights of migrants. who have become the object of such acts. The specified training includes:

a) improving the reliability and quality of entry/exit documents;

b) detection and identification of forged entry/exit documents or identity cards;

(c) Collecting operational information on crimes related, in particular, to the identification of organized criminal groups that are known or suspected to be involved in the commission of acts referred to in article 6 of this Protocol, methods used to transport illegally imported migrants, the misuse of entry/exit documents or identity cards in order to commit acts referred to in article 6 of this Protocol and methods of concealment used in the smuggling of migrants;

(d) Improving procedures for detecting illegally imported persons at designated and unidentified entry and exit points; and

(e) Humane treatment of migrants and protection of their rights set forth in this Protocol.

3. States Parties that have the appropriate expertise and experience should consider providing technical assistance to States that are often countries of origin or transit for persons who have been the target of acts referred to 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, for the purpose of combating the acts referred to in article 6.

Article 15 Other preventive measures

1. Each State Party shall take measures to ensure the creation or improvement of information programmes aimed at increasing public awareness of the fact that the acts referred to in article 6 of this Protocol constitute criminal activities often carried out by organized criminal groups for mercenary purposes and which pose a serious threat to the migrants concerned.

2. In accordance with article 31 of the Convention, States Parties shall cooperate in the field of public information in order to prevent potential migrants from becoming victims of organized criminal groups.

3. Each State Party shall promote the development of development programmes and cooperation at the national, regional and international levels or, where appropriate, enhance such programmes and cooperation, taking into account the socio-economic realities of migration and paying particular attention to economically and socially disadvantaged areas, with a view to combating indigenous socio-economiceconomic reasons for migrant smuggling, such as poverty and low levels of development.

Article 16 Protection and assistance measures

1. In implementing this Protocol, each State Party shall take, in accordance with its obligations under international law, all appropriate measures, including, if necessary, in the field of legislation, to respect and protect the rights of persons who have been the subject of acts referred to in article 6 of this Protocol, as provided for by applicable norms. 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 appropriate protection from violence to which they may be subjected by individuals or groups because they have been the subject of acts referred to in article 6 of this Protocol.

3. Each State Party shall provide appropriate assistance to migrants whose lives or safety are at risk because they have been the subject of acts referred to in article 6 of this Protocol.

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

5. In the event of the detention of a person who has been the subject of acts referred to in article 6 of this Protocol, each State Party shall comply with its obligations under the Vienna Convention on Consular Relations, where applicable, including the obligation to promptly inform that person of the provisions concerning notifications to consular officials and communications with by such officials.

Article 17 Agreements and arrangements

The Participating States shall consider the possibility of concluding bilateral or regional agreements or operational arrangements or understandings aimed at:

(a) Taking the most appropriate and effective measures to prevent and combat the acts referred to in article 6 of this Protocol; or

(b) The development of the application of the provisions of this Protocol in the relations between them.

Article 18 Return of illegally imported migrants

1. Each State Party agrees to facilitate the return and to receive, without undue or unreasonable delay, a person who has been the object of the acts referred to in article 6 of this Protocol and who is its national or who has the right to reside permanently in its territory at the time of return.

2. Each State Party shall consider, in accordance with its domestic law, the possibility of facilitating the return and reception of a person who has been the subject of acts referred to in article 6 of this Protocol and who had the right to reside permanently in its territory at the time of entry into the receiving State.

3. At the request of the receiving State Party, the requested State Party shall, without undue or unreasonable delay, verify whether the person who has been the object of the acts referred to in article 6 of this Protocol is its national or has the right to reside permanently in its territory.

4. In order to facilitate the return of a person who has been the subject of acts referred to in article 6 of this Protocol and does not have proper documents, the State Party of which such person is a national or in whose territory such person has the right to reside permanently agrees to issue, at the request of the receiving State Party, such entry/exit documents or other permits that may be required for the return of this person to his territory.

5. Each State Party involved in the return of a person who has been the subject of acts referred to in article 6 of this Protocol shall take all appropriate measures to carry out such return in an orderly manner and with due regard to the safety and dignity of that person.

6. The Participating States may cooperate with relevant international organizations on the implementation of this article.

7. This article is without prejudice to any right granted to persons who have been the subject of acts referred to in article 6 of this Protocol by virtue of any provision of the domestic law of the receiving State Party.

8. This article does not affect the obligations assumed under any other applicable treaty, whether 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 subject of acts referred to in article 6 of this Protocol.

IV. Final provisions

Article 19 Exclusion clause

1. Nothing in this Protocol affects other rights, obligations and responsibilities of States and individuals under international law, including international humanitarian and human rights 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, as set out in them.

2. The measures provided for in this Protocol shall be interpreted and applied in such a way that it does not discriminate against persons on the grounds that they have been the subject of acts referred to in article 6 of this Protocol. The interpretation and application of these measures are carried out in accordance with internationally recognized principles of non-discrimination.

Article 20 Dispute settlement

1. The Participating States shall seek to settle disputes concerning the interpretation or application of this Protocol through negotiations.

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 period of time shall, at the request of one of these States Parties, be submitted to arbitration. If, within six months from the date of the request for arbitration, these Participating States are unable to agree on its organization, any of these Participating States may refer the dispute to the International Court of Justice by filing an application 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 upon accession thereto, declare that it does not consider itself bound by paragraph 2 of this article. The other States Parties are not bound by paragraph 2 of this article in respect of 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 addressed to the Secretary-General of the United Nations.

Article 21 Signature, ratification, acceptance, approval and accession

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. This Protocol shall also be open for signature by regional economic integration organizations, provided that at least one of the member States of such organization has signed this Protocol in accordance with paragraph 1 of this article.

3. This Protocol is 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 instrument of ratification, acceptance or approval if at least one of its member States has done the same. In this instrument of ratification, acceptance or approval, such organization shall declare the scope of its competence with respect to matters governed by this Protocol. Such an organization shall also inform the depositary of any relevant change in the scope of its competence.

4. This Protocol is open for accession by any State or any regional economic integration organization, at least one of whose member States is a Party to this Protocol. The instruments of accession shall be deposited with the Secretary-General of the United Nations. Upon accession, a regional economic integration organization shall declare the scope of its competence with respect to matters governed by this Protocol. Such an organization shall also inform the depositary of any relevant change 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, but it shall not enter into force before the entry into force of the Convention. For the purpose of this paragraph, any such instrument deposited by a regional economic integration organization shall not be considered as additional to the instruments deposited by the member States of such organization.

2. For each State or regional economic integration organization that ratifies, accepts, approves, or accedes to this Protocol after the deposit of the fortieth instrument of ratification or instrument of such action, this Protocol shall enter into force on the thirtieth day after the date of deposit by such State or organization of the relevant instrument or instrument or on the date of entry into force. This Protocol shall enter into force in accordance with paragraph 1 of this article, whichever is later.

Article 23 Amendments

1. Five years after the entry into force of this Protocol, a State Party to this Protocol may propose an amendment and transmit it to the Secretary-General of the United Nations, who shall then transmit 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 participating in the Conference of the Parties shall make every effort to reach consensus on each amendment. If all efforts to reach consensus have been exhausted and no agreement has been reached, the amendment shall, as a last resort, require 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. In matters within their competence, regional economic integration organizations shall exercise their right to vote in accordance with this article, having a number of votes equal to the number of their member States that are Parties to this Protocol. Such organizations do not exercise their right to vote if their member States exercise their right to vote, and vice versa.

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

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

5. When an amendment enters into force, it becomes binding on those States Parties that have expressed their consent to be bound by it. The other States Parties shall continue to be bound by the provisions of this Protocol and any amendments previously ratified, accepted or approved by them.

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 this Protocol.

Article 25 Depositary and languages

1. The Secretary-General of the United Nations is appointed as the Depositary of this Protocol.

2. The original of 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 authorized thereto by their respective Governments, have signed this Protocol.

I hereby certify that this text is a true copy from a certified copy of the Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime of November 15, 2000.

Advisor to the International Legal Department of the Ministry of Foreign Affairs of the Republic of Kazakhstan N. Sakenov

The RCPI's note. The text of the Protocol is attached in Arabic, Chinese, English, French, and Spanish.

I hereby certify that this text is a true copy of the certified copy of the Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime, dated November 15, 2000.

Head of the International Law Department of the Ministry of Foreign Affairs of the Republic of Kazakhstan Zh. Bukhbantaev

President

Republic of Kazakhstan

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