overview of the provisions of the united...

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OVERVIEW OF THE PROVISIONS OF THE UNITED NATIONS CONVENTION AGAINST TRANSNATIONAL ORGANIZED

CRIME AND ITS PROTOCOLS

Dimitri Vlassis*

I. THE NEW CONVENTION:A NEW ERA IN INTERNATIONAL

COOPERATION

In December 1998, the United NationsGeneral Assembly established1 an Ad HocCommittee for the elaboration of theUnited Nations Convention againstTransnational Organized Crime andthree additional Protocols addressing:trafficking in persons, especially womenand children; illegal trafficking in andtransporting of migrants; and il licitmanufacturing of and traff icking infirearms, their parts and components anda mmu ni t i on . I n esta bl ish in g th isCommittee, the Assembly took a giantstep toward closing the gap that existedin international cooperation in an areagenerally regarded as one of the toppriorities of the international communityin the 21st century. The Assembly alsol ay t o r est t he un c ert a i nt y an duneasiness that surrounded the endeavorby manifesting the collective political willof all States to tackle conceptual andpolitical problems and find commonlyacceptable solutions. One year later, inDecember 1999, the General Assemblyadopted another resolution2, by which itasked the Ad Hoc Committee to intensifyits work in order to complete it by the endof 2000. The Assembly thus formalized

the deadline under which the Ad HocCommittee had been working since itsestablishment. Apart from the symbolisminvolved , the dead line refle cts theurgency of the needs faced by all States,developed and developing alike, for newtools to prevent and control transnationalorganized crime. It also reflects the needo f s ust a ini ng an d bui l d ing on t hemomentum that made the or ig ina ldecision possib le in order to fosterconsensus while not compromising thequality of the final product.1 2

Th e pr oces s l ead i ng up to th eestablishment of the Ad Hoc Committeemay seem long and arduous. However,the reader is urged to keep in mind thatonly four years passed from the time thatthe idea of a convention first surfaceduntil the official commencement of thenegotiation process. This comparesextremely favourably with other similarinitiatives, especially in areas that are ascomplex as that of criminal justice andthe development of international criminallaw. Further, the Ad Hoc Committeecharged with conducting the negotiationsoperated from the beginning under a self-imposed short deadline3, which is ratherunusual in international negotiations of

* Crime Prevention and Criminal Justice Officer,

Secretary of the AD HOC Committee for the

Elaboration of the United Nations Convention

Against Transnational Organized Crime, United

Nat ions Centre For Interna ti onal Cr ime

Prevention (United Nations)

1 See General Assembly resolution 53/111 of 9

December 1998. In resolution 53/114, also of 9

December 1998, the General Assembly asked the

Ad Hoc Committee to devote sufficient time to the

elaboration of the Convention and the three

additional international legal instruments.2 See General Assembly resolution 54/126 of 17

December 1999.

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this sort, especially in the context of theUnited Nations. This deadline set a veryvigorous pace for the negotiations, whichoften taxed heavily the capacity ofsmaller delegations.

The reader should also keep in mindt ha t th e Ad Hoc Com mit tee w asessentially negotiating in parallel fouri nt ern at ion al leg a l l y b in d in ginstruments. All this notwithstanding,the Convention was finalized in July, afew months ahead of schedule, and two ofthe Protocols were completed within thedeadl ine, in spite of the numerouscomplexities and political concerns theymight have entailed.

Finally, the reader should always bearin mind that the United Nations is ag lobal organization founded on theprinciple of equality. The concerns of allS tat es , b ig o r sma l l , more o r le sspowerful, deserve equal attention andshould be taken into account in all of theactivities in which the United Nations isengaged. The principal strength ofinternational action, especially that of anormative nature, is its universality. Inthe case of an instrument intended toa ddr ess an i s su e a s c omp lex astransnational organized crime, the activeparticipation of both developing anddeveloped countries from all regions ises sen t i a l . Th e v er y n at u re o ftransnational organized crime, with theability of criminal groups to seek the mostfa vou r abl e co nd i t ion s f o r t h e iroperations, demands no weak links in thechain of joint action.

The spirit guiding the negotiations hasbeen one of constructive engagement andsensitivity to the concerns of everyone

involved in the process. Everyone agreesthat the objectives of the negotiationscannot be expediency but consensus,together with conscious and genuinecommitment, which are the cornerstonesof successful action. Consensus has oftenbeen equ ated wit h w eakn es s an dobscurity, especially when it comes tonegotiated texts. It may be true that, atfirst glance, many documents that havebeen the results of prolonged negotiationsmay appear convoluted and inefficient.After all , very often one of the keyelements of compromise is ambiguity.Having said this, however, it is alsoimportant to bear in mind that equallyoften the ideal is far removed from thefeas ib l e . A n i nt ern at ion al l ega linstrument that upholds the higheststandards of clarity and directness oflanguage, and includes s trong andstraightforward obligations is desirableand commendable. It also deservescareful study at the academic level and isan essential component of any course ininternational law. However, i f thisinstrument fails to come into force, or, ifit does, is acceded to and implemented bya handful of countries, its practical utilitybecomes doubtful, to put it mildly, and isdestined to languish in library books andsoon forgotten.

The Ad Hoc Committee operated withthese guiding principles from the time ofits estab lishment. The negot iationprocess was highly participatory. Over125 countries participated in the sessionsof the Ad Hoc Committee. With thegenerous help of Austria, Japan, Norway,Poland and the United States, on average23 of the Least Developed Countries (agroup of 48 countries from Africa, Asiaand Latin America determined by theGeneral Assembly each year) attendedthe sessions. Its members agreed early onthat the quality of the final product wasessential. Other existing Conventions,

3 It should be noted that the General Assembly

made this deadline official with resolution 54/126

of 17 December 1999.

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s u ch as th e 1 988 Vien n a D r ugConvention and the Convention againstTerror ist Bombings4 would provideinspiration, as they had often dealt withsimilar issues. However, the Ad HocCommittee a lso agreed that everyc onsc ious e ff or t would be made toi mpr ove upon t he tex ts o f t hes eConventions, to the extent possible, inorder to meet the needs of the newConvention and to reflect new trends.

Be for e pr oceed in g t o g i v in g anoverview of the text of the Convention, itis important to note a very interestingfeature of the negotiation process. It willbe recalled that, to a large extent, thedriving force behind helping the idea oft he con ve nt ion mat ur e w as th eenthusiasm of developing countries.Faced with the breakneck pace of thenegotiations, several developing countriesbegan complaining that the deadline washaving an impact on their ability to studythe text fully and prepare their positions.These countries felt that keeping thedeadline should not have an adverseimpact on the ability of developingcountries to express their concerns andnegotiate solutions they regarded asacceptable. In addition, as the text wasgradually embellished and enriched withnew proposa ls , several deve lopingcountries started to entertain fears thatde ve lop ed c ou nt r i es v iew ed th eConvention as an opportunity to imposeapproaches and solutions on their lesspowerful counterparts, and this was thereason that the Convention had becomehighly desirable to them.

Cr imin al ju st i c e i s a n i nt egr alcomponent of a country’s soul and, ass uc h, one o f the key at tr i but es o fsovereignty. In a rapidly developing and

very demanding field as action againsttr an sn at ion al c r ime , par t i cu la r l yorganized crime, the tendency to expandjurisdiction at will, in order to respond tospecific exigencies, has been noted andfeared. Further, developing countriesrealized that the new Convention wouldimpose a multitude of obligations, whichwou ld r equ ir e t he in ves tm ent o fconsiderable resources. With limitedresources and competing priorities,especially at present when most effortsare directed towards addressing problemsrelated to infrastructure and meeting thechallenges of globalization, many of thesecountr ies f oresaw the d i f f i cul ty ofmeeting those obligations. This latterdimension of the thinking of those fewcountr ies was a lso a resul t o f twoperceptions.

Firstly, all developing countries andcountries with economies in transitionhad gradually become aware, in a more orless painful way, of the ramifications andpotent ial of modern transnat ionalorganized crime. However, for several ofth em th e pr ob l em ha d n ot c au seddr ama tic c r i ses d omest ic a l l y .Consequently, the new obligations wereviewed as being out of proportion withtheir domestic experiences and theirpolitical agenda at home.

Secondly, many policy-makers in somedeveloping countries had geared theirthinking towards the short-term, mainlyas a r esu l t o f pr ess in g n eeds .Consequently, the implications of theexpansion of transnational organizedcrime were not included as a parameterin the development of policies for thefuture. In addition, this short-termth in k in g cou ld n o t ca ptu r e th eramifications of concerted action againsttransnational organized crime, using thenew Convention as the framework andmain tool. In other words, the short-term

4 Adopted by the General Assembly by resolution

52/164.


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thinking failed to assess the impact of thetendency of organized criminal groups toseek conditions of relative safety whengovernmental action increases the riskand cost of operations. It should be madevery clear that the political commitmentand the conviction about the need for theConvent ion and the des irab il ity o fc on cl ud i ng i t r ema in ed t o ta l lyu n d imi ni sh ed . Th e neg ot i at i ons ,however, went through a phase of cautionon t he pa rt o f sev er a l dev e lop in gcountries and became, as a result, moreintricate.

The new Convention can be dividedinto four main areas: criminalisation,international cooperation, technicalcooperation and implementation.

It will be recalled that one of the mainreasons for the initial scepticism waswhether the concept of transnationalorganized crime could be defined in anappropriate manner, from both the legala nd po l i t i c a l per spec t i ves . Th enegotiators decided to use a two-prongedapproach to the issue. First, it was agreedthat it would be sounder to define theactors rather than the activities. Therationale behind this approach was thatt he in ter na t ion al c ommu n ity w asembarking on negotiating a bindinginternational legal instrument for thefuture. Organized criminal groups areknown to shift from activity to activity,from commodity to commodity and amonggeographical locations, often on the basisof what in the business world would becalled a cost-benefit analysis.

Given this known characteristic, itwould be futile to try and capture in anegotiated legal text everything thatthese groups are known to engage in atpresent or might decide it makes goodbusiness sense to carry out in the future.In this context, the Convention defines an

organized criminal group as being “astructured group of three or more personsexisting for a period of time and acting inconcert with the aim of committing one ormor e se r i ous c r i mes or o f f en c esestablished pursuant to [the] Convention,in order to obtain, directly or indirectly, afinancial or other material benefit.”

Second, the new Convention shouldbr in g ab out a c er ta i n lev e l o fstandardization in terms of offences asthey are codified in national laws, as aprerequisite of international cooperation.Working on these premises, the Ad HocCommittee begun discussing the conceptof serious crime. At the beginning, manycountries expressed doubts as to whetherthe term would be appropriate, arguingthat it s igni fies dif ferent things todifferent systems. It would be useful tobear in mind that this discussion wasclosely linked to the question of whetherthe Convention would include a list ofoffences.

The Ad Hoc Committee asked theSecretariat to carry out an analyticalstudy on serious crime and on if and howthe concept was reflected in nationallaws. The study, which was based on theresponses of over 50 States, showed thatthe concept of serious crime was wellun der st ood b y a l l , ev en i f th equalification might not necessarily beused in legislation. The doubts about, orob j ect ion s to th e u se o f t he te r mgradually subsided. Serious crime isdef ined as “conduct consti tut ing acr im in al o f f enc e pu n is ha ble by amaximum deprivation of liberty of atleast four years or a mor e ser iou spenalty.”

The Convent ion estab lishes fouroffences: (a) participation in an organizedcriminal group; (b) money laundering; (c)corruption; and (d) obstruction of justice.


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The provision establishing the offenceof participation in an organized criminalgroup is a carefully crafted one, whichbalances the concept of conspiracy in thecommon law system with that of thevarious versions of participation as suchv er s io ns h av e ev o lv ed i n va ri ouscontinental jurisdictions. The aim was topromote international cooperation undert he C onv en t ion by ens u ri ng th ecompatibility of the two concepts, withoutattempting to fully harmonize them.

The provision on criminalisation ofm oney lau n deri ng depar ts f rom aprevious similar provision in the 1988Vienna Drugs Convention, but goesb ey ond by ex pandin g th e s cope o fpredicate offences covered.

The provision on the establishment ofthe offence of corruption was the subjectof considerable debate, mainly because itwas deemed a limited effort against am uc h br oad er ph enome non . Th eapproach finally selected was to include aprovision in the Convention, in view ofthe fact that corruption is one of themethods used, and activities engaged inby organized criminal groups. This wasdone on the understanding that thisConvention could not cover the issue ofcorruption in a comprehensive mannerand a separate convention would beneeded for that purpose. In fact, on ther ec ommen dat ion o f t he Ad H ocCommittee and the Commission, theGeneral Assembly adopted a resolution5

on this matter. This resolution sets outthe preparatory work, which would needt o b e c ar r ied out in 200 1 , f o r th eelaboration of the terms of reference ofth e n eg ot ia t ion o f a n ew s epar ateconvention against corruption. Followingthe completion of this work, a new Ad Hoc

Committee will be established and askedto negotiate the text.

Finally, the provision establishing theoffence of obstruction of justice capturesthe use of force, intimidation or bribery tointerfere with witnesses or expertsoffering testimony, as well as with theperformance of the duties of justice or lawenforcement officials.

In th e a rea o f in ter n at i ona lcooperation, the Convention includesarticles on extradition, mutual legalassistance, transfer of proceedings andlaw enforcement cooperation.

The provision on extradition adopts theapproach of double criminality to this toolof international cooperation. The articleprovides that most of the particulars ofextradition would be essentially left tonational legislation or treaties that existor will be concluded between States. It isfor this reason that, with the exception ofa safeguard clause on prosecution orpunishment on account of sex, race,religion, nationality, ethnic origin orpolitical opinions, the article does notcontain grounds for refusal of extradition.There is an impl ic i t recognition ofnationality as a traditional ground forrefusal of extradition, because this wasidentified as an area where the newConvention could not attempt to bringabout change in national legislation, dueto very strict traditions or constitutionalimpediments. The Convention, however,embodies the principle aut dedere autjudicare when extradition is refused onthe ground of the nationality of thea l l eged o f f end er . Th e ar t i c le o nextradition provides that the offencescovered by the Convention would bedeemed to be included as extraditableoffences in any treaty existing betweenStates Parties, or would be included infuture treaties. States Parties can use the5 General Assembly resolution 55/61.


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Convention for extradition purposes evenif they make extradition conditional on at rea ty . Th ose wh ic h do no t ma keextradition conditional on a treaty willrecognize the offences covered by theConvention as extraditable offencesbetween themselves.

Another important feature of thearticle is that it contains an obligation forS tat es Pa rt ies t o t r y a nd r es o lv edifferences by consultation before theyrefuse an extradition request.

The article on mutual legal assistanceis much more extensive, having beencalled by some a “treaty within a treaty”.In its 31 paragraphs, the article detailsevery aspect of mutual assistance,including grounds for refusal. It isimportant to note that, while the articleis largely based on similar provisions inother Conventions, it brings forth theconsiderable evolution of the concept ofmutual legal assistance, as one of theprimary tools of international cooperationagainst transnational crime. In this vein,the article speaks of the use of moderntechnology, such as electronic mail for thetransmission of requests, or video link forthe giving of testimony. The Conventionalso includes language regarding thespontaneous provision of information andassistance, without prior request. In thearea of law enforcement cooperation, theConvention inc ludes provis ions onexchange o f intel ligence and o theroperational information and on the use ofmodern investigative methods, with theappropriate safeguards.

Prior to proceeding to the area oftechnical cooperation, it is important tomention that the Convention includesdetailed provisions on the development ofregulatory regimes to prevent and controlmoney laundering and on confiscation,including provisions on the sharing of

confiscated assets. The Convention alsoincludes provisions for the protection ofwitnesses, a key component of anysuccessful action against organized crime.The relevant article includes a provisionasking States to consider entering intoagreements with other States for therelocation of witnesses. Further, and inthe same vein, the Convention includesan arti cle on the protect ion of andassistance to victims and another onmeasures to enhance cooperation withlaw enforcement authorities of personsinvolved in organized criminal groups(those who have been described in recentyears using the Italian term pentiti).

As mentioned earlier, the involvementand participation of all countries in thejo in t e f fo r t ag ain st t r an sna t iona lorganized crime lies at the core of thedecision to negotiate a new internationallegal instrument. It also inspired thenegotiations throughout the work of theAd Hoc Committee. The new Conventionwill create numerous obligations forcountries, which range from updating oradopting new legislation to upgrading thecapaci ty of the ir law enforc emen tauthorities and their criminal justicesystems in general. Many of the activitiesrequired to meet these obligations areresource intensive and, as a consequence,will create a considerable burden for thelimited capacities of developing countries.The spirit of the discussions around thissubject has been very interesting. Thesediscussions have been based on theunderstanding that the implementationof the Convention would be in the interestof all countries. Consequently, suchimpl emen tat ion w ou ld be th eresponsibility of all countries, regardlessof their level of development. Developingcountries would gear their systems andbring their limited resources to bear indischarging this responsibility. However,everyone recognizes that, once this has


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been done, there will be many areaswhere developing countries and countrieswith economies in transition wouldrequire significant assistance until theyare able to bring all their capacities up toa common standard.

Following extensive discussion, theConvention includes two articles ontechnical cooperation, one intended tocover cooperation to develop specifictraining programmes and the other todeal with technical assistance in the moretradi tional sense of the term, i .e . ,involving financing of activities at thebilateral level or through internationalorganizat ion s , s uch as the UnitedNations. The latter provision foreseesthat States Parties will make concreteefforts to enhance their cooperation withdeveloping countries with a view tostrengthening the capacity of the latter toprevent and combat t ransnationalorganized crime.

States Part ies are a lso asked toen h an ce f i na nc ia l an d ma ter ia lassistance to developing countries inorder to support efforts to implement theC onv en t ion s uc c ess ful ly . For th eprovision of technical assistance todeveloping countries and countries witheconomies in transition, the Conventionforesees that States Part ies wouldendeavour to make adequate and regularfinancial contributions to an accountspecifically designated for that purpose ina United Nations funding mechanism.The Ad Hoc Committee decided that thisaccount will be operated for the timebeing within the Crime Prevention andCriminal Justice Fund, a mechanism setup to receive voluntary contributions forthe technical cooperation activities of theC ent re f o r In ter n at ion al Cr im ePrevention.

In the resolution by which it adoptedthe Convention, the General Assemblyestablished this special account under theCrime Prevention and Criminal JusticeFund. It is interesting to note that almostimmediately, donor countries begunmaking contributions to that account,demonstrating the seriousness withwhich they regard the matter of providingassistance to developing countries andcountries with economies in transition,even at the pre-ratification stage.

On implementation, the Conventionhas taken a very interesting course. TheConvention will establish a Conference ofthe Parties, which will have the dual taskof improving the capacity of StatesP ar t i es t o c omba t t r an sn at i ona lorganized crime and to promote andrev iew t he impl em enta t ion of t heConvention.

The Conference of the Parties willaccomplish these tasks by (a) facilitatingthe activities of States Parties foreseenun der th e ar t i c les on te c h ni ca lcooperation, including by mobilizingresources; (b) facilitating the exchange ofinformation among States Parties onpatterns and trends in transnationalorganized cr ime and on success fulpractices for combating it; (c) cooperatingwith relevant international and non-gov er nm ent a l o rg an iz at i ons ; (d )exa min in g per i od ic a l l y th eimplementation of the Convention bySt ates Pa rt ies ; an d ( e ) ma k in gre comm end at i ons t o i mpr ove th eConvention and its implementation. Therelevant article goes on to say that theConference of the Parties will acquire thenecessary knowledge on the measuresta ken b y t he Sta tes Par t i es i nimplementing the Convention and on thedifficulties encountered by them in doingso by the States Parties themselves, and


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through such supplementa l reviewmechanisms as it may establish.

The mechanism set up i s a c learmov emen t f o r wa rd f r om pr eviou spractices in the field of implementation ofinternational conventions, at least in thecontext of the United Nat ions. Theprovision establishes a dual form ofreview. On the one hand, it preserves themore traditional obligation, found in mostother Conventions, for States Parties tofile regular reports on the progress theyhave made in implementation. This issupplemented by additional reviewmechanisms, which the Conference mayestablish. This is an indirect reference toa system of “peer review”, which has beendeveloped in various forms in recenty ear s i n t h e con tex t o f reg ion alinstruments. Another important featureof the provision is that the Conference ofthe Parties will not only function as areview body. It will pay equal attention toserv ing as a f o ru m for deve lop ingcountries and countries with economiesin transition to explain the difficultiesthey encounter with implementation ands eek t h e a ss is t an c e n ec ess ar y t oovercome such difficulties. This linkbetween implementation and technicalcooperation and assistance reinforces thec o l l e ct iv e w i l l th at g u ided th enegotiations to take into account allconcerns and needs and address themjointly in order to achieve the commongoals embodied in the new Convention.

Another innovative feature of the newConvention is an article on prevention.The provision is designed not only toi nt rodu c e f o rm al l y th e c onc ept o fprevention, which is relatively new inaction against transnational organizedc r ime , b ut a lso to in c lu de in th eConvention some of the results of thelatest thinking in this field. The languageo f th e ar t i c l e i s per mis s iv e , t hu s

reflecting the novelty of the concept andthe fact that it still needs to mature inorder to be treated more as an obligation.However, given that States generallyinterpret even permissive provisions tomerit the best possib le efforts, theimportance of the article is significant.The provision transfers to the global levelefforts already discussed or undertakenat the regional level. It is designed toencourage countries to take appropriatelegislative, administrative or othermeasures to shield their legal marketsfrom the infiltration of organized criminalgroups. Some of the measures foreseenare the promotion and development ofstandards and procedures designed tosafeguard the integrity of public andprivate entities, as well as codes ofconduct for relevant professions and theprevention of the misuse of legal personsby organized criminal groups.

Perhaps the most interesting feature ofthe Convention is its scope of application.Its analysis was left last because of thelong debate its finalization required, butalso because it conditions the entire textof the Convention.

The Convention will apply “to theprevention, investigation and prosecutiono f (a ) th e o f f en ces est ab l ish ed inaccordance with [the Convention]; and (b)ser iou s cr im e as de f i ned [by th eCon ven t i on] , w hen th e o f f en ce i stransnational in nature and involves anorganized criminal group.” However, thecriminalisation obligations that countrieswill undertake, regarding the offencesth ey wou ld ha ve to es ta bl i sh inaccordance with the Convention, wouldbe “independent”. This means that Stateswill legislate to establish as criminalof f en ces the four types o f conduc tdescribed in the Convention, regardless ofwhether they are transnational or involvean organized criminal group.


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The Con ven t ion a lso de f i nest ra ns n at i ona l i t y . A n o f f en c e i stransnational in nature if it is committedin more than one State; it is committed inone State but a substantial part of itspreparation , planning, direction orcontrol takes place in another State; it iscommitted in one State but involves anorganized criminal group that engages incriminal activities in more than oneState; or it is committed in one State buthas substantial effects in another State.

In ad d i t i on , th e prov is ion s onextradition and mutual legal assistanceconta in specif ic and very carefullynegotiated language to permit applicationof these articles in order to establish boththe transnationality and the involvementof an organized criminal group. Solutionsto these matters were based on thede mons tr at ed po l i t i c a l w i l l o f a l lcountries involved in the process toconclude a Convention that meets alltheir concerns. Such solutions were alsobased on the shared desire to reachagreement without diminishing thefunctionality and quality of the newinstrument.

II. THE THREE PROTOCOLS

A. The Protocol Against Trafficking in Persons, Especially Women and Children

1. General Provisions (Articles 1–5)Article 1 sets out the relationship

between the Convention and the Protocol,c ompl emen t in g Art i c le 37 o f th eConvention. The same text appears inArticle 1 of the Protocol against thesmuggling of Migrants and has beenadded as Article 1 of the revised draftProtocol against the Illicit Trafficking inFirearms. The Protocol supplements theConvention, and provisions of the twos h oul d be i nt er pre t ed t oge t her .

Provisions of the Convention apply to thePr otoco l mu tat i s mutan dis un les sotherwise specif ied or the Protocolcontains provisions which specificallyvary or are inconsistent with those of theConvention. All Protocol offences are alsoregarded as Convention offences, whichmakes all Convention provisions (e.g.,legal assistance, applicable to caseswhich involve only Protocol offences. TheConference of States Parties, which isest ab l is hed b y A rt i c le 3 2 o f th eConvention, will have similar functionsfor each protocol by the application ofArticle 32 to the protocol in question,mutatis mutandis.

Artic les 2 and 4 set out the basicpurpose and scope of the Protocol. TheProtocol is intended to “prevent andcombat” t raff i cking in persons andfacilitate international co-operationagainst such trafficking. It applies to the“pr ev ent ion , i nv est ig at i on an dprosecution” of Protocol offences, but onlywhere these are “transnational in nature”and involve an “organized cr iminalgroup”, as those terms are defined by theConvention.

The key definition, “trafficking inpersons”, appears in Article 3. This term,which is being defined for the first time,is intended to include a range of caseswhere human beings are exploited byorganized crime groups where there is ane lemen t o f du r ess i nv o lv ed an d atr ans nat iona l aspec t , s uc h as t hemovement of people across borders ortheir exploitation within a country by atransnational organized crime group. Thedefinition is broken down into three listsof elements: criminal acts, the meansused to commit those acts, and goals(forms of exploitation) . At least oneelement from each of these three groupsis required before the definition applies.


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Thus, to constitute “trafficking inpersons”, there must be:

• an act of “recruitment, transportation,transfer, harbouring or receipt ofpersons”;

• by means of “the threat or use offorce or other forms of coercion, ofabduction, of fraud, of deception, ofthe abuse of power or of a position ofvulnerability or of the giving orreceiving of payments or benefits toachieve the consent of a personhaving control over another person”;

• for the purpose of exploitation,which includes, at a minimum, “...theexploitation of the prostitution ofo thers o r other f orms of sexu alexploitation, forced labour or services,slavery or practices similar to slavery,servitude or the removal of organs.”

The question of whether a victim couldconsent to trafficking was a major issuein the negotiations. In many traffickingc as es , th ere i s i n i t ia l c on sen t o rc ooper at ion be tw een v ic t ims a n dtr af f i ckers f ol lowed later by mor ec oer c i ve , abu s ive an d exp lo i t iv ecircumstances. Some States, and manyNGOs felt that incorporating an elementof consent in the definition or offenceprovisions would make enforcement andprosecution difficult because such earlyconsent would be raised by traffickers asa defence. Other States felt that someelement of consent was needed to limitthe scope of the offence, distinguishtrafficking from legitimate activities andfor constitutional reasons. To resolve theissue, paragraph (b) of the definitionclarifies that consent becomes irrelevantw he nev er an y o f th e “mea ns ” o ft ra f f i c k in g h as been u sed . Th iscompromise addressed the concerns ofboth positions. To further clarify therelationship between consent, the offenceand criminal defences, it was agreed that

the travaux preparatoires would drawatt en t ion to Ar t i c le 1 1 (6 ) o f th eCon vent ion, w hich app l ies to th isProtocol mutatis mutandis, and whichensures that existing criminal defences indomestic law are preserved.

2. Protection of trafficked persons (Articles 6–8)

The negot iat ion o f the Protocolsagainst Trafficking in Persons and theSmuggling of Migrants both found itnecessary to deal with the fact that theprimary subject-matter, while oftentreated as a commodity by smugglers andtraffickers, consists of human beingswhose rights must be respected and whomust be protected from various forms ofharm. The te rms “smugg l ing” and“trafficking”, have acquired differentdefinitions from those traditionallyassociated with narcot ic drugs, forexample. The need for an appropriatebalance between crime-control measuresand measures to support or protectsmu ggled migrants and v ic tims o ftrafficking arose in two primary places ineach Protocol: the provisions dealing withthe return of persons to their countries oforigin, and provisions expressly providingfor protection, support. These provisionsare similar in some respects, but they arenot identical. The language of the twoinstruments also takes account of the factthat there are critical differences betweenmig ra nt s , wh o ha ve c ons ent ed tosmuggling and for whom repatriationgenerally poses no significant risks, andvictims of trafficking, who have beensubjected to various forms of coercion andwh o fa ce s ig n i f i c an t r i sks o f r e -victimisation or retaliation if they aresent home, particularly if they haveassisted law enforcement in prosecutingtheir traffickers.

Art i c le 6 o f the Pro toco l againstTrafficking in Persons contains a series of


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general protection and support measuresfor victims. Paragraphs 1 and 2 requireStates Parties to take basic measures,subject to constitutional or similarconstraints, which include shielding theidentities of victims and providing accessand input into legal proceedings. Whilethe physical safety of victims cannotabsolutely guaranteed, States Parties arerequired to endeavour to do so by Article6(5), as well as by Artic les 24(2)(a)(witnesses) and 25(1) (victims) of theConvention. Further measures in Articles6(3) and 7 of the Protocol are subject tothe discretion of States Parties. Theseinclude a list of social support benefitssuch as counselling, housing, education,medical and psychological assistance(Art. 6(3)) and an opportunity for victimsto obtain legal status allowing them toremain in the receiving State Party,either temporarily or permanently (Art.7). The provisions of Convention Articles24 and 25 may also apply in such cases.Where victims have also been witnesses,for example, the relocation provision ofArticle 24(2)(a) may apply.

The return of victims of trafficking totheir countries of origin is dealt with inArticle 8 of the Protocol, which is similarbut not identical to the correspondingprovision (Art. 18) of the Protocol againstthe Smuggling of Migrants. A majorconcern with the return of traffickingv ic t ims is tha t i t may l eave th emvulnerable to being trafficked all overagain, or in some cases, vulnerable toretaliation from traffickers for having co-oper ated with law enfor cemen t o rprosecution authorities. Another concernis that in some cases, victims have beensent home while criminal or other legalproceedings in which they have aninterest are still ongoing. To respond tothese concerns, the text requires allStates Parties involved to have dueregard for the safety of the victim and for

th e s ta tu s o f a ny on g o in g lega lproceedings (Art. 8(1), (2)). Returns maybe carried out involuntarily, but the textstates that the process “...shall preferablybe voluntary” (Art. 8(2)). This reflects acompromise between concerns that givingvictims any concrete formal legal statusor right to remain in destination statesmight provide further incentives andopportunities for traffickers on one hand,while excessive or rapid returns mightunnecessarily expose victims to furtherhardship and risk on the other. The textdoes not make any special provision forvictims who are also witnesses, but theadditional safeguards for witnesses foundin Article 24 of the Convention wouldapply in such cases. More generally,Articles 24 (witnesses) and 25 (victims) ofthe Convention will generally apply totrafficking victims.

The negotiation of the provisionsgoverning the repatriation or return ofsmuggled migrants and tra ffi ckingvictims in both Protocols also faced theneed to specify the legal preconditions onwhich the right of destination States toreturn individuals and the obligations ofcountries of origin to facilitate and acceptthe return, should be based. There wasgeneral agreement that States Partiesshould be required to accept the return oftheir own nationals and permanentresidents, but views differed on whetherthe status of a smuggled migrant ortrafficking victim should be determinedat the time of entry into the State seekingto return the person or at the time of theactual return itself. The former optionprecludes States from revoking status asa national or resident to prevent thereturn, whereas the latter does not.

Different language was used to addressth is q ues t i on in ea ch o f t he t woinstruments. In the case of victims oftrafficking, countries are obliged to accept


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the return of any person who is a nationalat the time of the return or who had aright of permanent residence at the timehe or she entered the destination State(Art. 8(1)). In the case of smuggledmigrants, the obligation is only to acceptthose who are nationals or have a right ofpermanent residence at the time of thereturn (Art. 18(1)), although StatesParties are also required to consider thereturn of migrants who had permanentresidency rights at the time of entry intothe destinat ion State. The travauxpreparatoires for the Protocol against theSmuggling of Migrants also record theunderstanding of the Ad Hoc Committeethat States Parties “...would not deprivepersons of their nationality contrary tointernational law, thereby renderingthem stateless.” This acknowledges thatnationality can be taken away for cause,but should not be taken away exclusivelyto prevent repatriation.

Apart from these dif ferences, theobligations placed on States concerningreturn or repatriation are the same inboth instruments. The basic obligation onStates Parties is to “facilitate and accept”the return of nationals or specif iedpermanent residents without unduedelay and to verify without delay whetherillegal migrants in other countries are infact their nationals or residents (Art. 8(1),(3)). This includes the obligation to issueany necessary travel documents such aspassports, entry or transit visas (Art.8(4)).

3. Prevention, Co-operation and Other Measures (Articles 9–13)

G ener a l ly , t he law en forc ementagencies of countries which ratify theProtocol would be required to co-operatewith such things as the identification ofoffenders and trafficked persons, sharingin format i on about th e meth ods o fo f f en der s an d t h e tr a ini ng o f

investigators, enforcement and victim-support personnel (Art. 10). Countrieswould also be required to implementsecurity and border controls to detect andprevent tra ff i cking. These inc ludestrengthening their own border controls,imposing requirements on commercialcarriers to check passports and visas (Art.11), setting standards for the technicalquality of passports and other traveldocuments (Art. 12), and co-operation inestablishing the validity of their owndocuments when used abroad (Art. 13).Social methods of prevention, such asresearch, advertising, and social oreconomic support are also provided for,both by governments and in collaborationwith non-governmental organisations aredealt wi th both in Arti cle 9, whichsupports Article 31 of the Convention6.

B. The Protocol Against the Smuggling of Migrants by Land, Air and Sea

1. General Provisions (Definitions, Criminalisation, Scope and Purpose, Articles 1–6)

Article 1 sets out the relationshipbetween the Convention and the Protocol,com plemen t i ng Ar t i c l e 3 7 o f th eConvention. The same text appears inAr t ic le 1 o f t h e Pr o toc o l ag a in s tTrafficking in Persons and has beenadded as Article 1 of the revised draftProtocol against the Illicit Trafficking inFirearms. The Protocol supplements theConvention, and provisions of the twosh oul d be in ter pr e ted t oge t h er .Provisions of the Convention apply to thePr otoc o l mu tat is mu tan dis un les sotherwise specif ied or the Protocol

6 See in particular Article 31(5) (public awareness

cam pai gn s) an d 31 (7) (proje cts a im ed a t

alleviating the circumstances which make certain

groups vulnerable to transnational organized

crime).


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contains provisions which specificallyvary or are inconsistent with those of theConvention. All Protocol offences are alsoregarded as Convention offences, whichmakes all Convention provisions (e.g.,legal assistance, applicable to caseswhich involve only Protocol offences. TheConference of States Parties, which ises ta bl i sh ed by Ar t i c l e 32 o f th eConvention, will have similar functionsfor each protocol by the application ofArticle 32 to the protocol in question,mutatis mutandis.

Article 2 expresses three purposes:preventing and combatting smuggling,promoting cooperation among StatesParties and protecting the rights ofs mu gg led mig ra nt s . Th e s cope o fapplication of the instrument (Art. 4)applies both to combatting smuggling andprotecting rights, but limits both tooffences which are transnational innature and involve an organized criminalgroup as defined by the Convention. TheProtocol applies only to the prevention,investigation or prosecution of suchoffences and the protection of the rights ofpersons who have been the objects of suchoffences. The phrase “persons who havebeen the object of such [i.e.: trafficking]offences” in this and other Protocolprovisions is intended to clarify thatsmuggled migrants, while sometimesexploited or endangered by smugglers,are not “victims” of the primary Protocoloffence.

The criminalisation provision, Article6, requires States Parties to criminalisethe smuggling of migrants as defined inArticle 3, and enabling a person who isnot a national or permanent resident of aS ta te t o r emai n th ere i l l ega l ly .Producing, procuring, providing, orpossessing fraudulent travel or identitydocuments must also be made an offence,but only where these acts are committed

for the purpose of smuggling migrants.This will generally apply to smugglerswith out a ls o in c lu di ng th e i l l eg almigrants who may only possess thedocuments for the purpose of use in theirown smuggling. A major political andlegal concern during negotiations was thegeneral agreement among participantsthat the Protocol should criminalise thesm ug gl in g o f mig ra n ts w ith ou tcriminalising mere migration or themigrants themselves. This was difficultbecause illegal migrants have generallycommitted offences relating to illegalentry or residence in most countries, andwould usually be complicit in their ownsmuggling without language in theProt oc o l an d an y i mplem ent in glegislation to the contrary. The solution,found in Article 5 and Article 6(4) is thatthe Protocol specifies that the provisionsof the Protocol and its implementinglegislation should criminalise smugglingbut not create any liability for havingbeen smuggled (Art. 5), while providingthat offences or other measures adoptedor applied by States Parties on their ownauthority could sti l l app ly to meremigr ants . As no ted , th e documentoffences of Article 6(1)(b) also apply onlyto those who commit them for the purposeof smuggling others and not for their ownmigration.7

In recognition that smuggling is oftendangerous, and to increase protection formigrants, States Parties are also requiredto make smuggling in circumstanceswhich endanger the migrants’ lives orsafety, or which entail inhuman ordegrading treatment as aggravatingcircumstances to the Protocol offences(Art. 6(3)).

7 See the note in the travaux preparatoires to Art.

6(1)(b) on this point.


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2. Smuggling of Migrants by Sea (Articles 7–9)

While all of the Protocol applies to allforms of smuggling by land, sea or air, itwas felt necessary to make specif icprovision for smuggling by sea because ofthe ser iousness and vo lume of theproblem, and the body of internationalmaritime law already in existence. Manyof the specific provisions of this Part weredrawn f rom or developed based onprovisions from three earlier sourcesdealing with the boarding and searchingof vessels and related safeguards: Article110 of the 1988 U.N. Convention on theLaw of the Sea, Article 17 of the 1988U.N. Convention against Illicit Traffic inNar c o t i c D r ug s and P s ych o t r op icSubstances, and a more recent (1988)Circular from the International MaritimeOrganization titled Interim Measures forCombatting unsafe practices associatedwith the traff icking or transport ofmigrants by sea.

Generally, the provisions of Part II areintended to give states which encounterships which are believed to be smugglingmigrants sufficient powers to take actionst o app reh en d th e m ig ra nt s a n dsmugglers and to preserve evidence,while respecting the sovereignty of thestates (if any) to which the ships areflagged or registered. A major factor formost delegations in striking a balancebetween sovereignty and effective powersto intervene was the fact that, in manycases, vessels used to smuggle migrantsare decrepit or unsound to the pointwhere fast action could be essential topreserving the safety of any migrants onboard.

The general rule for taking actionsagainst a ship at sea is that this can onlybe done with the approval of the Statewhose flag the ship flies or with whom itis registered. The Protocol requires States

Parties to co-operate “to the fullest extentposs ib l e ” in ac c ord an ce wi th th e“international law of the sea”, which termincludes both the 1988 U.N. Conventionand other instruments (Art. 7). Thetaking of measures against ships at sea isgoverned by Article 8, which providesseparately for three basic cases:

• States seeking assistance againstships they believe to be their own(Art. 8(1));

• States seeking permission to actagainst ships believed to be flagged orregistered to another State (Art. 8(2));and

• States taking action against shipsbelieved to be without nationality(Art8(7)).

The remaining provisions of Article 8deal with the mechanisms whereby thenationality of ships can be establishedand other relevant information can betransmitted from one interested StateParty to another. Under Article 8(1), astate which believes that one of its ships,or a ship which is flying its flag, is beingused for smuggling may call upon otherStates Parties to take action to suppressthis, and those States are required torender such assistance as necessary,within available means. Under Article8(2), a State which believes that a shipregistered or flagged to another State isinvolved in smuggling may check theregistry, and ask the registry state forauthorisation to board, inspect, and ifevidence of smuggling is found, to takeother actions. The responding state mustanswer the requests expeditiously, butmay place limits or conditions on whatmay be done (Art . 8 (4) , (5 )) . Suchconditions must be respected, exceptwhere there is imminent danger to livesor safety, or where there a bilateral ormultilateral agreement between thestates involved says otherwise (Art. 8(5)).


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Where there is no apparent nationality orregistry cannot be determined, the shipm ay be boa rd ed an d in sp ect ed asnecessary (Art. 8(7)).

The other provision of Part II, Article 9contains “safeguard clauses” which limitthe powers of States Parties to act underArticle 8, ensure that fundamentalinterests such as the safe and humanetreatment of persons found on boardvessels and the security of vessels andother cargoes are protected, preserve theexisting jurisdictions of coastal states andthe flag states of vessels, and provide forcompensation in cases where the groundsfor having taken measures against avessel later prove unfounded. As afurther safeguard, Art. 9(4) also requiresthat any vessel or aircraft used by a StateParty to take actions under Part II mustbe a warship, military aircraft or othership or aircraft clearly marked to identifyit as being on government service whenthe action is taken.

3. Prevention, Co-operation and Other Measures (Articles 10–18)

As with the provisions of Articles 27–29 of the Convent ion, the Pro tocolprovides for the exchange of informationwhich may range from general researchor legislative information which wouldass ist others in implement ing theProtocol or combatting smuggling in moregeneral terms to much more specific andsensitive information about specif icsmuggling cases or more general meansand methods being used by smugglers(Art. 10). As in the Protocol againstTrafficking in Persons, specific legal andadministrative measures to combatsmuggling which involves commercialcarriers are also required, “to the extentposs ib le ” (Ar t . 11 ) . These in c lu depenalties where carriers found carryingsmuggled migrants are complicit ornegligent and requirements that carriers

check basic travel documents beforetransporting persons across internationalborders.

Th e u se o f f a ls e o r f r au du len tpassports and other travel documents isan important element of smuggling, anddocuments are often taken from migrantsupon arrival so that they can be re-usedby the smugglers over and over again. Toaddress this part of the problem, Article12 requires the use of travel documentsthat cannot easily be used by a personother than the legitimate holder, and ofsuch quality that they cannot easily befalsified, altered or replicated, and Article13 requires States Parties to verify thelegitimacy and validity of any documentspurported to have been issued by them. Anu mber o f de leg at i ons no t ed t ha tcountries which became parties to theProtocol against Trafficking in Persons aswel l as this Protocol would f ind i tnecessary to implement the parallelprovisions on travel documents jointly,since it would not be practicable to adoptor apply different rules for smuggling andtraf f ic kin g c ases . As a resul t , therequirements of Articles 12 and 13 areidentical in both instruments.

States Parties are called upon toundertake training activities (Art. 14)and adopt general preventive measures(Art. 15). Training under Article 14 forof f i c ia ls c an be domest i c o r in co -operation with other States Parties whereappropriate. It must include not onlymethods and techniques for investigatingand prosecut ing o ff ences , but a lsobackground intelligence-gathering,crime-prevention, and the need to providehumane treatment and respect for theba s ic h u man r i gh ts o f mig ra nt s .Adequate resources are called for, withthe assistance of other States wheredomestic resources or expertise are notenoug h (Art . 14 (3 ) ) . Ba sed on t he


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as sumpti on that a key e lemen t o fprevent ion is the disseminat ion o finformation about the true conditionsduring smuggling and after arrival todiscourage potential migrants, Article 15requires the creation or strengthening ofprogrammes to gather such information,transmit it from one country to another,and ensure that it is made available tot he gen er a l pub l i c a n d po t ent ia lmigrants. This supports Article 37 of theConvention which calls for informationcampaigns directed at groups who areparticularly vulnerable to the activities oftransnational organized crime, whichwould include regional or ethnic groupslikely to be solicited or recruited aspotential migrants.

Part II of the Protocol also containsprovisions which deal with the protection,assistance and return of migrants. Aswith the Protocol against Trafficking inPersons, these provisions take account ofthe fact that migrants, while oftentreated as a commodity by smugglers, arehuman beings whose rights must berespected and who must be protectedfrom various forms of harm. Articles 16(protection and assis tance) and 18(return) provide for the basic assistanceo f smuggled migrants , taking intoaccount the fac t that they are notgenerally victims of crime and are in farl ess j eopar dy o f r e ta l ia t ion f romtraffickers, but also considering the factthat smuggling is often conducted incircumstances which endanger their livesor safety.

Several provisions of the Protocol areintended to ensure that the basic humanrights of migrants are protected frominfringement, whether by traffickers,government off icials or others. Theprimary provision is Article 16, whichrequires appropriate legislative or othermeasures to “preserve and protect” the

rights of smuggled migrants. Article14(2)(e) also requires the training ofofficials in “the humane treatment ofmigrants and the protection of theirrights”, and Article 19 ensures that anyrights (e.g., for migrants who are alsorefugees) under other internationalhumanitarian and human rights law arenot affected by the Protocol. Article 16(5)requires conformity with the provision ofthe Vienna Convention on ConsularRelations which requires States Partiesto th at in st r umen t to in for mapprehended migrants of their rights toconsular access.8

Other provisions address concernsabout the fact that migrants are in manycases subjected to dangerous conditions,degrading conditions or physical violencein the course of smuggling. Article 16(2)requires the adoption of appropriatemeasures to afford migrants protectionagainst violence. Article 6(3) requiresStates Parties to make the existence ofcircumstances which endanger lives orsafety or entail inhuman or degradingtreatment in the course of smuggling anaggravating circumstance to the basicsmuggling offence, and Article 16(3)requires appropriate assistance tomigrants whose l ives or sa fety areendanger ed in the cour se of be ingsmuggled.

The return of smuggled migrants totheir countries of origin is dealt with inArticle 18 of the Protocol, which is similarbut not identical to the correspondingprovision (Art. 6) of the Protocol againstTrafficking in Persons. Since migrants

8 The relevant provision is Article 36 of the Vienna

Convention, 596 UNTS 8638–8640. In the

discussion of this provision, it was pointed out

that as conventional international law, the

Convention, and hence the obligation to provide

consular access, was binding on all States.


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a re l e ss l ike l y t o be w it nes ses int ra ns n at i ona l o r g an ized cr im eproceedings, the Protocol makes nospecif ic provision for protection orpar ti c ipation in such proceed ings ,a lthough migrants who are in thisposition would still be covered by Articles2 4 an d /or 25 o f th e C onv en t ion ,depending on the exact circumstances oft he i r c ases . Th e on ly pr o t ect ions peci f i c a l ly provided f o r re tur nedmigrants is found in Art. 18(5), whichrequires all of the States Parties involvedin return of a migrant to ensure that it iscarried out “...in an orderly manner andwith due regard for the sa fety anddignity...” of the migrant.

The negotiation of the provisionsgoverning the repatriation or return ofsmuggled migrants and traff ickingvictims in both Protocols also faced theneed to specify the legal preconditions onwhich the right of destination States toreturn individuals and the obligations ofcountries of origin to facilitate and acceptthe return, should be based. There wasgeneral agreement that States Partiesshould be required to accept the return oftheir own nationals and permanentresidents, but views differed on whetherthe status of a smuggled migrant ortrafficking victim should be determinedat the time of entry into the State seekingto return the person or at the time of theactual return itself. The former optionprecludes States from revoking status asa national or resident to prevent thereturn, whereas the latter does not.

Different language was used to addresst hi s qu est ion i n eac h o f th e tw oinstruments. In the case of victims oftrafficking, countries are obliged to acceptthe return of any person who is a nationalat the time of the return or who had aright of permanent residence at the timehe or she entered the destination State

(Art. 8(1)) . In the case of smuggledmigrants, the obligation is only to acceptthose who are nationals or have a right ofpermanent residence at the time of thereturn (Art. 18(1)), although StatesParties are also required to consider thereturn of migrants who had permanentresidency rights at the time of entry intothe destination State. The travauxpreparatoires for the Protocol against theSmuggling of Migrants also record theunderstanding of the Ad Hoc Committeethat States Parties “...would not deprivepersons of their nationality contrary tointernational law, thereby renderingthem stateless.” This acknowledges thatnationality can be taken away for cause,but should not be taken away exclusivelyto prevent repatriation.

Apart from these differences, theobligations placed on States concerningreturn or repatriation are the same inthis instrument as in the Protocol againstTra f f i cki ng in Person s . The ba s icob l i ga t ion on St ates Par t i es i s to“facilitate and accept” the return ofnationals or specified residents withoutundue delay and to verify without delaywh eth er i l l egal migr ants in o th ercountries are in fact their nationals orresidents (Art. 18(1), (3)). This includesthe obligation to issue any necessarytravel documents such as passports,entry or transit visas.

C. Protocol Against the Illicit Manufacturing of or Trafficking in Firearms

1. StatusMany provisions of the Protocol against

th e I l l i c i t Ma nu fa ct ur in g o f an dTrafficking in Firearms were finalised atth e 1 1th s ess ion o f t h e Ad HocCommittee, but several key issues hadnot been resolved, and the GeneralAs semb ly c a l led u pon t he A d Hoc


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Committee to conclude the Protocol at anadditional session.9 The Committeedecided to apply a narrow, conventionaldefinition of “firearm”, excluding otherforms of destructive device such asrocket-launchers and explosive devices. Italso developed language for Article 4(1)and (2) which excludes legitimate State-to-State and national security-relatedactivities from the application of thePr o toc o l w h i le en su r in g th at th eexclusion is not so broad as to opt outvirtually any activity. The languagedeveloped for Artic les 4 and 8 alsoensures that all firearms, even thosemade for government purposes, will bema r ked at m an ufa ct u re , a l lay in gconcerns about unmarked governmentf i rearms later s to len or otherwisediverted into illicit traffic. The languagedeveloped for Artic le 8 ensures theunique marking of each firearm with“alpha-numeric” characters, but allowscountries which have previously used“simple geometric” markings as part oftheir marking systems to maintain thispractice. Based on these agreements, theentire Protocol was agreed by the Ad HocCommittee on consensus. It was thenreferred to the General Assembly, whichadopted it on 31 May 2001.10 UnderArticle 17 of the Protocol, it is open forsignature at U.N. Headquarters in NewYork from 2 July 2001 until 12 December2002.11

2. Relation with the U.N. ConventionArticle 1 sets out the relationship

between the Convention and the Protocol,c ompl emen t in g A rt i c le 37 o f th eConvention. The same text appears inAr t i c l e 1 o f th e Pr o toc o ls ag a in stTrafficking in Persons and the Smugglingof Migrants. The Protocol supplements

the Convention, and provisions of the twosh oul d be in ter pr e ted t oge t h er .Provisions of the Convention apply to thePr otoc o l mu tat is mu tan dis un les sotherwise specif ied or the Protocolcontains provisions which specificallyvary or are inconsistent with those of theConvention. All Protocol offences are alsoregarded as Convention offences, whichmakes all Convention provisions (e.g.,legal assistance, applicable to caseswhich involve only Protocol offences. TheConference of States Parties, which isest ab l ish ed b y A rt i c le 32 o f th eConvention, will have similar functionsfor each protocol by the application ofArticle 32 to the protocol in question,mutatis mutandis.

3. Purpose, Scope and ApplicationThe purpose provision (Art. 2) was

concluded at the 12th session. It wasdecided to make the language consistentwith that of the other instruments, givingthe purpose as: “to promote, facilitate andstrengthen cooperation...to prevent,com bat a nd er ad i ca te th e i l l i c i tmanufacturing of and trafficking infirearms, their parts and components,and ammunition.”

As noted above, Article 4, dealing withscope o f app l i cat ion , was a lso no tconcluded until the 12th session. Therewas general agreement that all types oftransfer, transaction and firearm should

9 GA/Res/55/25.10 GA/Res/55/255. For travaux preparatoires notes,

see A/55/383/Add.3.

11 Since the adoption of the Protocol by the General

Assembly was too late for the Palermo signing

conference at which the other instruments were

opened for signature, conventional language

concerning signature was added to Art. 17 during

the final drafting session. The instrument opens

for signature somewhat later than those adopted

ear l i er , b ut i t was dec ided to c lose al l 4

instruments on the same date, 12 December 2002,

which is the 2-year anniversary of the opening of

the initial 3 instruments.


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be prima facie included in the Protocol,provided that there is some link tooffences which are transnational innature and involve an organized criminalgroup in some way as required by Article3 of the Convention itself. There was alsogeneral agreement that the Protocol,which deals with individual criminalityand not disarmament or State activities,should not apply to “State-to-State”transactions. The issues not resolveduntil the final session involved activitieswhich directly involved either only one orno States, but which were neverthelessseen as raising legitimate “nationalsecurity” concerns on the part of one ormore States Parties. This was eventuallyaddressed using language which opts out“national security” transfers, providedthat this is consistent with the UnitedNations Charter (Art. 4(2). The agreedtext of Article 4 also included all illicit“manufacturing” of firearms (Art. 4(1)),while only excluding “transactions” and“transfers” (Art. 4(2)). The effect is toensure that all firearms must be marked,addressing concerns about the problem offirearms which might otherwise be madew it hou t m ar k in g f o r leg i t i mat egovernment or national security purposesand then subsequently diverted, creatinga supply of untraceable illicit firearms.

4. Definitions (Article 2)“Firearm”

The question of subject-matter is dealtwith in the definition provision (Art. 2). Itwas agreed that the term “firearm”should include any “barrelled weaponwhich expels a shot, bullet or projectile bythe action of an explosive”, with theexception of some antique firearms. Toaddress concerns that this applied to verylarge “firearms”, such as artillery-pieces,t he wor d “ por tab le ” wa s a dded ,accompanied by a note in the travauxpreparatoires to the effect that “portable”itself was intended to mean portable by

one person without mechanical or otherassistance. After discussion at severalsessions, the Committee ultimatelydecided not to apply the Protocol to otherso-called “destructive devices”.

“Illicit manufacturing”Th e a gr eed de f in i t ion o f i l l i c i t

manufacturing includes three distinctactivities: manufacturing without alicense, manufacturing from illicit (i.e.,trafficked) parts, and manufacturingwithout mark ing. Each of these i sintended to address a major source ofd iv er ted or t r a f f i cked f i r ear ms.Unlicensed manufacture would includeillegal factories and firearms made in alegal factory, but of a type or quantity theproducer was not licensed to make.Assembling from trafficked parts wouldaddress schemes in which stages of themanufacturing process were split amongseveral jurisdictions to avoid committingoffences in any of them. Manufacturingwithout marking requires that a l lfirearms be marked at manufacture,which ensures that unmarked firearmscannot be diverted before being markedat a later stage. There is some overlapbet ween t he de f in i t ion s o f i l l i c i tmanufacturing and illicit trafficking,since each includes an element (andhen c e a n o f f en c e ) r e la t in g t o th emanufacture and transfer of firearmswithout the necessary markings.

“Illicit trafficking”Th e a gr eed de f in i t ion o f “ i l l i c i t

trafficking” is the core of the Protocol. Asdefined, “Illicit trafficking” would includeany transaction or transfer in which af irearm moves from one country toanother where the exporting, importing,and transit States, i f any, have notlicensed or authorized it. This must beread in conjunction with Article 5(1)(a),which requires illicit trafficking to bemade a domestic criminal offence, and


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11(2), which precludes the issuance ofa ny expor t l i ce ns e u n t i l th ecorresponding import and transit licensehas already been issued. The combinede f fec t i s t o commit States Part iescriminalise the export of any firearms,parts, components or ammunition unlessthe subsequent import is authorized.

5. Criminalisation Requirements (Article 5)

The structural approach taken to thecriminalisation of illicit trafficking andillicit manufacturing is similar to those ofthe other instruments: the detailedspecification of conduct or activities to becriminalised is set out in the definitionalprovisions, and then merely criminalisedby cross-references back to the definition.States Parties are also required tocr iminalise at tempting to commit ,participating as an accomplice in, ororganizing or directing others to commitany Protocol offence, although theseobligations are subject to limits thatmake criminalising some of these thingsimpossible in some legal systems (Art.5(2)).

In substance, States Part ies arerequired to criminalise the two basicactivities against which the Protocol isdirected, illicit manufacturing and illicittrafficking. They are also required tocreate one support ing o ff ence, theobliteration, removal or alteration of theserial numbers or other markings on afirearm (Art. 5(1)(c)). It was not necessaryto criminalise failing to mark a firearm ortransferring an unmarked firearm per se,because these activities are included inthe definitions and general offences ofi l l i c i t m an ufa ct u ri ng a nd i l l i c i ttrafficking. Further offences relating tothe financing of illicit trafficking anddom est ic pos ses s io n or mis u se o ftrafficked firearms and the breach ofarms-embargoes had been proposed, but

were ultimately dropped because theywer e r edu nd an t e i th er wi th th eConvention itself or domestic criminallaw or beyond the scope of the Protocol.

6. Confiscation Seizure and Disposal (Article 6)

The subject of confiscation, forfeitureand disposal is dealt with in ConventionArticles 12–14, which deal with bothproceeds of crime and instrumentalitiesof crime, and which apply to the Protocol,mutatis mutandis. These would alsoapply to firearms which have been usedin c r ime as instru mental i t ie s andfirearms which have been trafficked as acommodity as proceeds. The Conventiondef ini t ion of “proceeds” (Art . 2 (e ))includes “...any property derived from orobtained, directly or indirectly, throughthe commission of an offence.” This wasseen as pr ob lem at i c , b eca us e th ecu st oma ry met hod o f d is posa l f o rpr oceeds an d ins tru men tal i t ie s i sgenera lly to sel l them and use theresulting funds for legitimate Statepurposes or to pay compensation orrestitution to victims. Where firearms areconcerned, many States felt that thebetter course was to simply destroy them,thereby ensuring that they could neverenter illicit commerce or be used in crime.As a result, Article 6 of the Protocolcreates an exception to the generalprinciple established by the Convention,providing that, in the case of firearmsparts, components or ammunition, theproperty should be disposed of either bydestruction, or by other disposal onlywhere officially authorised and where theitems have been specifically marked andthe disposal recorded.

7. Record Keeping (Article 7)Cri t ica l to the overa ll control of

trafficking in firearms is the marking offirearms (Art. 8) to ensure that they canbe uniquely identified, and the keeping of


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records based on the markings in order tomake it possible to distinguish betweenlegitimate and illicit activities and tofa c i l i t at e in v est iga t i ons w hen atransaction subsequently proves to havebeen illicit or where firearms are divertedt o i l l i c i t h an ds in th e cou r se o f alegitimate, authorized transaction ortransfer. Some delegations had concernsabout the need for keeping records withrespect to legitimate activities, but it wasu l t imate ly agr eed that leg i t i ma teactivities must be scrutinised in order toidentify and suppress illicit activities.

Article 7 requires States Parties toeither keep records themselves, or torequire others (e.g., the actual parties toeach import/export transaction) to do so,for a period of ten years, the period beinga compromise between the need to limitthe administrative burdens on StatesParties and the fact that firearms aredurable goods which can surface manyyears after having been transferred. Themeans whereby States “shall ensure” thekeeping of records by others i s notaddressed by the Protocol, but would inmost cases involve a legal requirementthat those involved in import/exporttransactions create and preserve thenecessary records. It is open to StatesParties to create additional offences tocompel the keeping of appropriaterecords, but the Protocol does not requireit. The record-keeping requirementextends to records of transactions inparts, components and/or ammunitiononly “where appropriate and feasible”.This recognizes the practical difficultiesin deal ing with smal ler parts an dcomponents, which may be impossible tomark and are difficult to identify andi ns pec t . Cr eat i ng an d ver i fy in g acomplete record of parts and componentsmight require the disassembly of eachfirearm in a shipment to record andinspect each of its parts, for example. In

the case of ammunition, indiv idualmarking and record keeping was alsoseen as impracticable because of the verylarge numbers of individual cartridges inmost shipments. One option for keepingrecords “where appropriate and feasible”in such cases is for States Parties torequire the keeping of records whichdescribe shipments or batches of parts orammunition, but not individual elementsof each.

The actual substance of the recordswhich must be kept consists of whateverinformation is needed to trace andidentify the items involved. This mustinclude the ser ia l number or othermarkings on the firearm and specifiedinformation relating to the source, transitand destination countries in internationaltransfers, but the list is indicative andnot exhaustive. Since there is no overallco-ordination of the marking schemes ofmanufacturers or countries, markings areonly unique when other informationabout a firearm is also known. In mostcases, to permit identification and tracingas required, States Parties will thereforefind it necessary to keep additionalinformation about a firearm, such as itsmanufacturer, model, type or calibre.

8. Marking (Article 8)As noted, the marking requirements

were also not finalised until the 12thsession of the Ad Hoc Committee. Therewas general agreement that firearmsshould be marked in a way which wouldpermit unique identification, but theactual content of markings varies fromcountry to country and manufacturer tomanufacturer. Some delegations alsosought to exempt firearms made for Stateag enc ies , bu t t hi s w as se en a sproblematic because of the large numbersof State firearms later transferred ordiverted to private hands, whether bylegitimate or illicit means, which would


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pr ov ide a s ub st an t ia l sou rc e o fu n tr ac eabl e i l l i c i t f i r ear ms . T h eidentification of the content of “unique”markings was also complicated by thefact that firearm manufacturers employserial numbers or other markings whichare generally only unique when combinedwith other characteristics of the firearmin question, such as type, calibre and theplace, country or factory where it wasmade. A handgun made in the UnitedStates might well have the same serialnumber as a rifle made in Germany, forexample, and ensuring that this couldnever occur would prove difficult for thecountr ies and companies involved.Ultimately, it was decided to require“unique” marking using the “...name ofthe manufacturer, the country or place ofmanufacture, and the serial number” butto a l low countr ies a lready us ing acombination of numeric, alpha-numerica nd s impl e geom etr ic sy mbo l s t omaintain their existing practices.

9. Deactivation of Firearms (Article 9)In most countries, records tracking

f irearms are purged whenever thef i rea rm s to wh ic h t hey a pp ly ar ethemselves destroyed. Problems havearisen in some cases where firearms arenot completely destroyed if the recordsa re pu r ged an d th e f i r ear ms ar esubsequently restored and used forcriminal purposes. Firearms which havebeen “deactivated” in ways which makethem inoperable but leave them intactfrom a standpoint of outward appearanceare popular as display items, and thisprocess is often used to preserve war-trophies which would otherwise beprohibited by domestic laws. To deal withthe problem of reactivation, Article 9 ofthe Protocol contains technical standardswhich ensure that f irearms are notconsidered to have been destroyed for thepurposes of a State Party’s licensing andrecord-keeping practices unless the

process is essent ia lly i rrevers ib le .Paragraph 9(a) also requires essentialparts to be disabled and incapable ofremoval from the deactivated firearm,which precludes any re-circulation ofindividual parts, or the assembly of newfirearms using parts from deactivatedones.

10. Import-Export Requirements(Article 10)

As no t ed , t h e o f f enc e o f “ i l l i c i ttrafficking” consists of internationaltransfer without the legal authorisationof all of the states concerned. To supportthis, Article 10 contains the requirementth at ex por t in g S ta tes v er i fy t ha tsu bs equ ent tr a ns i t an d im por t i sauthorized by the States involved beforethey license the export itself (Art. 10(2))Art i c l e 1 0 a ls o pr ovi des s ta ndar drequirements for the documents involved,which provide information about thetransaction and identify the firearmsinvolved for purposes of record keepingand any subsequent tracing or otherinvestigative inquiries. After extensivediscussion about whether to require theauthorization of “transit” States and howto define “transit” for the purposes ofimposing such a requirement, a simplerapproach was adopted in this Article. Thes im pl i f ied sc hem e r equ ir es t ha tdocuments identify any transit states andthat such States be notified in advance ofthe transit (Art. 10(3)). If a transit Statedoes not give written notice that it doesnot object, the exporting State cannotissue an export permit for the transaction(Art. 10(2)(b)). To address concerns aboutth e app l i c at i on o f t he Pr o t oco l toindividuals who import or export firearmsfor temporary use for occupational orrecreational purposes, Article 10(6)provides for “simplified procedures” insuch cases.


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11. Security and Preventive Measures (Article 11)

Some illicitly trafficked firearms aremanufactured directly for the ill icitmarket, but most are firearms originallym ade f o r law fu l pu r poses an dsubsequently diverted into criminalhands. To address this, Article 11 calls forsecurity measures to prevent theft ord i ver s ion at ev er y s t ag e o f th emanufacturing, storage, import, export,transit and distribution process.

12. Information and Tracing (Article 12)As wi th Ar t i c les 27 –28 o f th e

Convention, Article 12 of the Protocolcovers the exchange of informationranging from very general scientific orforensic information about firearms tos pec i f i c a nd po ten t i a l l y s en s i t iv einformation about organized criminalgroups, their means and methods andinformation about specific legal or illegaltransactions. Information about specificindividuals or companies involved in thefirearms trade can only be provided on ac as e by c as e b as i s (Ar t . 12 (1 ) ) .In format ion abou t th e mean s an dmethods of offenders can be requested ona more general basis (Art. 12(2)). Article12(3) contains the third core obligation ofthe Protocol, the obligation of StatesParties to assist one another as necessaryin the tracing of firearms. The term“tracing” itself is defined in paragraph3(f).

13. Brokers and Brokering (Article 15)Du r in g neg ot i at i ons , th er e w as

extensive discussion about whether thebrokering of firearms transactions was aseparate activity from trafficking itself,and if so whether it required regulationunder separate provisions of the Protocol.A further issue, given the fact that mostbrokers operate in many jurisdictions,was which of the jurisdictions involvedshould regulate a broker and what

specif i c l icens ing, re cord -keep ing,security and other requirements shouldbe imposed. It was ultimately decided toadopt a flexible provision which leavesthese matters to the discretion of eachState Party. Where a State Party doesimpose requirements on brokers, Article15(1) contains an indicative list of whatshould be included: basic licensing andregistration, and a requirement thatbrokers identify themselves and statetheir involvement on import, export andtransit documents. Article 15(2) furtherurges States Parties to keep records withrespect to brokering and to exchange suchinformation with other States Partiesunder Article 12. Article 7, which statesthat States Parties “shall ensure themaintenance...” of records, does notspecify by whom such records would bekept. This means that States Partiescould impose a requirement on brokerswithin their jurisdiction to keep therecords of transactions in which they areinvolved.

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