On 12 December 2000, in Palermo, the Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime, is opened for signature. Signature remains open in Palermo until 15 December, then at United Nations Headquarters in New York until 12 December 2002. It is not the Convention itself, opened the same days, and not the Protocol to Prevent, Suppress and Punish Trafficking in Persons.

The General Assembly had adopted the Protocol in New York on 15 November 2000, by resolution 55/25. Article 2 states the purpose: to prevent and combat the smuggling of migrants, to promote cooperation among States Parties and to protect the rights of smuggled migrants. Article 1 ties it to the Convention: it shall be interpreted together with the Convention, and the offences in article 6 are offences established in accordance with the Convention. The authentic texts are Arabic, Chinese, English, French, Russian and Spanish. The depositary is the Secretary-General.

Article 3 defines smuggling of migrants as the procurement, in order to obtain a financial or other material benefit, of the illegal entry of a person into a State Party of which the person is not a national or a permanent resident. Article 4 applies the Protocol to the prevention, investigation and prosecution of the article 6 offences where they are transnational and involve an organized criminal group, and to the protection of the rights of persons who have been the object of such offences. Article 5 provides that migrants shall not become liable to criminal prosecution under this Protocol for the fact of having been the object of conduct set forth in article 6.

Article 6 requires criminalization, when committed intentionally and in order to obtain a financial or other material benefit, of the smuggling of migrants, of producing, procuring, providing or possessing a fraudulent travel or identity document for that purpose, and of enabling illegal residence. Aggravating circumstances include endangering the lives or safety of the migrants and inhuman or degrading treatment, including for exploitation. Articles 7 to 9 require cooperation, in accordance with the international law of the sea, to prevent and suppress smuggling by sea, including measures against suspect vessels flying a Party's flag.

Article 16 requires each State Party, consistent with its obligations under international law, to preserve and protect the rights of persons who have been the object of article 6 conduct, in particular the right to life and the prohibition of torture. Parties shall afford protection against violence and assistance when life or safety is endangered, taking into account the special needs of women and children. Article 18 provides for facilitating and accepting the return of nationals and permanent residents without undue or unreasonable delay. Article 19 leaves unaffected obligations under refugee law, including the principle of non-refoulement, and requires non-discriminatory application.

Article 21 also opens the Protocol to regional economic integration organizations, provided that at least one member State has signed. Article 22 provides that the Protocol shall enter into force on the ninetieth day after the fortieth instrument is deposited, except that it shall not enter into force before the Convention. Those conditions were later met; the Protocol entered into force on 28 January 2004. Article 25 deposits the original with the Secretary-General.

It is not the Firearms Protocol of 31 May 2001 and not the 1951 Refugee Convention as such, to which article 19 refers. It is not resolution 55/25 of 15 November as the event of the day, but the opening for signature in Palermo.

Image: Teatro Massimo, Palermo; Vinpao, 25 June 2017; CC BY-SA 4.0, Wikimedia Commons. Cropped to 16:9.

Source consulted: Protocol Against the Smuggling of Migrants by Land, Sea and Air. Treaty text: Protocol against the Smuggling of Migrants by Land, Sea and Air, Palermo, 12 December 2000.