UNHCR Summary Position on the Protocol Against the Smuggling of Migrants by Land, Sea and Air and the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children

1. UNHCR has followed with interest the recent adoption of the UN Convention against Transnational Organized Crime, including the Protocol against the Smuggling of Migrants by Land, Sea and Air ("Protocol against Smuggling") and the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children ("Protocol against Trafficking"). The Office is pleased to be present at the High-Level Political Signing Conference held in Palermo, Sicily, from 12 to 15 December 2000.

2. UNHCR shares the concerns raised by many States that criminal and organized smuggling of migrants, on a large scale, may lead to the misuse of national asylum or immigration procedures. However, given an increasing number of obstacles to access safety, asylum-seekers are often compelled to resort to smugglers. UNHCR is also aware of cases of trafficked persons, particularly women and children, who may, under exceptional circumstances, be in need of international protection. The Office therefore participated in the preparatory work of the Ad Hoc Committee in Vienna, supporting its efforts to elaborate international instruments which would enable governments to combat smuggling and trafficking of persons, whilst upholding their international protection responsibilities towards refugees.

3. The Protocol against Smuggling, for instance, contains a number of provisions which may impact on smuggled asylum-seekers. The authorization to intercept vessels on the high seas, the obligation to strengthen border controls and to adopt sanctions for commercial carriers, or the commitment to accept the return of smuggled migrants may indeed affect those who seek international protection. A number of comparable provisions of the Protocol against Trafficking may have a similar effect.

4. During the sessions of the Ad-Hoc Committee, UNHCR therefore emphasized the need to reconcile measures to combat the smuggling of migrants and the trafficking of persons with existing obligations under international refugee law. The Office welcomes the adoption of a saving clause in both Protocols, designed to safeguard the rights of asylum-seekers and refugees under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, in particular in relation to the principle of non-refoulement.

5. In addition, UNHCR appreciates the adoption of provisions for the protection of smuggled migrants, such as the obligation of States Parties to take appropriate measures to afford smuggled migrants protection against violence and to take into account the special needs of women and children. The Protocol against Smuggling is also clear in that it does not aim at punishing persons for the mere fact of having been smuggled or at penalizing organizations which assist such persons for purely humanitarian reasons.

6. In conclusion, UNHCR hopes that States Parties will respect the international legal framework set out by both Protocols through the adoption of similar safeguards in all bilateral or regional agreements or operational arrangements implementing or enhancing the provisions of these Protocols.

11 December 2000