SMUGGLING OF MIGRANTS IN CONTEMPORARY INTERNATIONAL LAW

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THIS ARTICLE WAS WRITTEN BY L. SANMIHA, A STUDENT OF SAVEETHA SCHOOL OF LAW.

ABSTRACT:

Smuggling of migrants is a crime defined under international law as “the procurement, in order to obtain, directly or indirectly, a financial or other material benefit, of the illegal entry of a person into a State of which the person is not a national or a permanent resident”. The main aim of this paper is to highlight the prevailing confusion between the smuggling of migrants and other forms of organized crime, such as trafficking in persons. This paper considers the information available about the social and educational background of the smuggled migrants, and their role in the smuggling process. Then it examines the relationship between migrants and smugglers and considers the organizational structures and actors involved in the smuggling of migrants.

Then the focus shifts on analysing the initiatives taken by States to Combat Migrant Smuggling such protocols, compacts, etc. It also investigates whether the Protocol against the Smuggling of Migrants contains the necessary rules to fulfil its principal purposes—namely, to combat and prevent migrant smuggling and to protect the rights of smuggled migrants. This paper tries to explicit whether the United Nations Protocol against the Smuggling of Migrants by Air, Land and Sea is compatible with international human rights law. The analysis will be done by carrying out a comparative analysis between the contents of the protocol and the different rules and norms within international human rights law that may intersect or clash with migration control related to the Protocol. To that end, it examines the rules of the Protocol that regulate the legal definition of the smuggling of migrants, the legal features of smuggling organisations, the obligations and rights of States parties, the rights of smuggled migrants and finally the issues challenging the effective implementation of protocol. This paper ends by suggesting measures to combat smuggling of migrants.

INTRODUCTION

Although migrant smuggling is not new it has only recently attracted the attention of the international community, particularly Western governments, after these activities started to become increasingly global, diverse and complex[1]. For instance, Chinese migrants have been smuggled across the Pacific into the US and Afghan migrants into Australia[2].Huge steel ships and large trucks have been used to smuggle large numbers of migrants, sometimes transporting hundreds in a single journey[3]. Hence, the smuggling of migrants has been transformed into an illicit global trade, possibly the second most lucrative after drug trafficking, with profits estimated at between $5 and $10 billion annually[4]. For instance, the price to smuggle a person from India to the UK is £10,000, and from China to the UK between £25,000 and £50,000[5]. The profits from these activities might be used to fund other illegal activities, such as drug trafficking, the arms trade or terrorist activities[6].

DEFINITION

Moreover, as Schloenhardt observes, ‘Migrant smuggling is also both a criminal justice and a human rights issue[7].’Since the activities of migrant smuggling involve the crossing of borders by sea, land or air, they violate immigration laws and the legislation governing the entry and exit of the origin, transit and destination States. These activities challenge the sovereignty of States by undermining their sovereign right to control who crosses their borders and remains within their territory.This makes migrant smuggling a criminal justice issue. What is more, smugglers sometimes fuel corruption[8] by bribing visa-issuing officials and immigration directors to either aid their smuggling of migrants or at least to turn a blind eye to it[9]. When a smuggler was asked whether smugglers pay bribes to immigration police in Thailand, he responded that this was an ‘essential part of the business’[10].

Article 6 of the Smuggling of migrants Protocol, requires States to criminalize both smuggling of migrants and enabling a person to remain in a country illegally in order to obtain, directly or indirectly, a financial or other material benefit, as well as to establish as aggravating circumstances acts that endanger the lives or safety or entail inhuman or degrading treatment of migrants. By virtue of article 5, migrants are not liable to criminal prosecution for the fact of having been smuggled. It is therefore understood that the Protocol aims to target smugglers, not the people being smuggled.

While most researchers refer to the Protocol for a definition of smuggling of migrants, some authors have developed a broader definition referring to the sociological characteristics of the phenomenon. According to Van liempt, a broader definition is necessary in order to properly re ect the changing character of intermediary structures in international migration processes and to shed light on the possible criminal character of smuggling. From a sociological perspective, smuggling of migrants may then include every act on a continuum between altruism and organized crime. Doomernik defines smuggling of migrants as “every act whereby an immigrant is assisted in crossing international borders whereby this crossing is not endorsed by the government of the receiving state, neither implicitly nor explicitly”.

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Some of the key differences between trafficking and smuggling include:

Human trafficking is a crime against a person. The criminal purpose is to exploit a person. Victims of trafficking are accorded a number of assistance and protection rights.
Migrant smuggling is a crime against a state; it is not in itself a human rights violation. The criminal purpose is financial or material benefit for the smuggler. The offence may be aggravated when it is perpetrated in a way that endangers lives or safety, or entails ill-treatment of migrants. The rights to protection and assistance are linked to the circumstances endured by migrants in this context, including due to other crimes committed against them by abusive smugglers or other actors.
Transnationality – smuggling is always transnational, whereas trafficking may not be. Trafficking can occur regardless of whether victims move between states or within a state’s borders.
Source of criminal income – the profits of migrant smuggling are derived from the fee for transportation or facilitation of the irregular entry in another country, while in human trafficking, profits are derived from exploitation, including for sexual exploitation, forced labour or slavery- like practices.
Consent – trafficking victims have never consented to the intended exploitation. Consent issues can be difficult to define in situations of smuggling. While smuggling initially involves some consent of the migrant, smuggled migrants may also retract their consent en route but may be forced to continue, for example, below deck in overcrowded smuggling vessels.

There are also similarities between both crimes. A key commonality is that neither smuggled migrants nor trafficked persons are the criminal focus of the definition of either crime. Criminals may both smuggle and traffic people, employing the same routes and methods of transportation, with the work of migrant smugglers often benefiting human traffickers. Because of the unequal power relationship, smuggled migrants are particularly vulnerable to being trafficked at various points of their journey, including the starting point as well as at their destination. Crucially, both crimes may endanger the lives and safety of the individuals concerned. Both smuggled migrants and trafficked people may have protection and assistance needs.

CONTEMPORARY FORMS OF SLAVERY

While the notion of contemporary forms of slavery is not defined in international law, it is linked to a variety of human rights violations, including traditional slavery, forced labour, debt bondage, servile forms of marriage and the exploitation of children[11].

There is a complex link between slavery and trafficking in persons, with slavery and slavery-like practices, servitude and forced labour being exploitative purposes for which a person might be trafficked.

Some migration-related policies, such as prohibiting migrant workers from changing their employers, can inadvertently play a role in creating situations of vulnerability to exploitation, including through human trafficking, forced labour and slavery.

NORMATIVE FRAMEWORK

International instruments provide the core framework for addressing trafficking in persons and smuggling of migrants, including the Trafficking in Persons Protocol and the Smuggling of Migrants Protocol. Several other international and regional frameworks and related guidance are relevant to building comprehensive responses to trafficking and smuggling[12].

Given the complexities of these crimes, sustained implementation of these frameworks requires the dedication of resources and a more comprehensive response to adequately prevent trafficking, reduce the reliance on smuggling and protect the rights of migrants.

GLOBAL PATTERNS OF MIGRANT SMUGGLING

Trends in global patterns of migrant smuggling are difficult to assess. A range of factors such as the lack of regular migration channels, high visa fees, the often lengthy bureaucratic procedures and increasingly restrictive entry requirements, coupled with a demand for the various contributions migrants make and services they provide, may create the conditions and incentives for migrants to engage the services of smugglers.

While there is insufficient data available to estimate the global magnitude of migrant smuggling, Europol, for example, has estimated that 90% of the irregular crossing of borders into the European Union through 2015 was facilitated by smugglers[13].

Smuggled migrants can be vulnerable to violence, abuse and exploitation due to the unequal power relationship with smugglers, an inability or unwillingness to seek protection from the state and the lack of options with regard to exit strategies.[14] They are at a high risk of victimization through other crimes, including extortion, kidnapping, sexual and gender-based violence, deprivation of food and water, and even homicide.[15]

Migrants may also be the victims of collusion between smugglers and local moneylenders who provide loans to pay for the journey and then claim family land or property as collateral[16]. In addition, they may be adversely affected by border control measures, such as dangerous interception practices at sea.[17]

Smuggled migrants can also be at risk of extortion and abuse by state officials, such as border authorities or police officers, who, in some instances, have facilitated migrant smuggling or at least turned a blind eye to it in exchange for a bribe or a share of the profits generated[18]

Reports of acts of intimidation and criminal charges against civil society organizations and volunteers who, without any material benefit, provide aid and humanitarian assistance to irregular migrants are of great concern and may leave these migrants without life-saving assistance.

The lack of sufficient safe and accessible regular pathways for migration and admission, including via family reunification, labour mobility at all skills levels, and opportunities to study that are accessible to migrants, have increased the demand for services of smugglers.

For instance, with legal or practical obstacles restricting or delaying family tracing and reunification, many migrants, including children, are induced to take dangerous irregular routes and rely on smugglers to unite with their families.[19]

Adequate identification of, and protection and assistance to migrants in vulnerable situations in the context of smuggling and victims of trafficking and contemporary forms of slavery.

States have made considerable progress in developing measures to protect victims of trafficking and migrants in vulnerable situations in the context of smuggling. For instance, in some cases identified victims of trafficking have access to temporary or permanent residency and work permits, safe accommodation, medical and psychological support and integration opportunities. However, trafficked persons who no longer have authorization to stay – for example, because their temporary residency permit attached to criminal proceedings has expired – are often not afforded the opportunity to apply for permission to remain[20].

It can be difficult and resource-intensive to identify victims of trafficking, smuggled migrants with protection needs (such as migrants who have suffered violence or trauma), and other potential victims of abuse and exploitation. Research suggests that a proportion of victims of abuse and exploitation avoid seeking protection and assistance because, for example, they fear deportation on account of their irregular status. Similarly, the services available are still too often dependent on factors such as age, sex, nationality, migration status, type of exploitation, location of exploitation and who identified the victim.

It is therefore crucial that states increase their capacity to properly identify and subsequently protect and assist victims. In many countries, this will require increasing identification and referral capacities among a wide variety of front-line responders to migrants, notably at locations where there are large numbers of migrants such as reception and detention centers.

A number of entities, including the Global Migration Group (GMG), have developed guidance designed to assist states and other stakeholders to protect migrants facing situations of vulnerability, including in situations of abuse experienced when resorting to the use of smugglers or exploitative facilitators[21].

MAINSTREAMING CHILD PROTECTION AND GENDER RESPONSIVE MEASURES

Strong national child protection and social protection systems in origin, transit and destination countries can contribute to effectively prevent, identify, refer and address related cases of child violence, abuse and exploitation, including trafficking in children. Social outreach work to provide assistance to and monitor children who are in situations of particular vulnerability along migratory routes and at destination, including those who are unaccompanied, can assist in early identification and prevention of any further harm[22].

NON-CRIMINALIZATION OF HUMANITARIAN ACTORS AND SMUGGLED MIGRANTS

The Smuggling of Migrants Protocol criminalizes only those acts of smuggling of another person that are carried out for a financial or other material gain. Thus it is not a basis for criminally prosecuting persons who facilitate the irregular border crossing of migrants or refugees for humanitarian reasons or on the basis of close family ties, as opposed to profit or material gain[23]. The Protocol further provides that states shall adopt measures to establish as aggravating circumstances actions that endanger the lives or safety of migrants, or entail their ill-treatment.

The Protocol also provides that smuggled migrants shall not be liable to criminal prosecution for having been smuggled, and that those whose lives or safety are endangered should be afforded assistance and protection. The Protocol also indicates that nothing in the instrument shall prevent states from taking measures against a person whose conduct constitutes an offence under its domestic law. Yet, measures to criminalize irregular migration may be counterproductive as they may not have any impact on migrant smuggling and can further stigmatize and marginalize migrants, thereby creating the conditions that increase xenophobia against migrants.

THE RIGHTS OF SMUGGLED MIGRANTS UNDER THE PROTOCOL

Since smuggled migrants are implicitly regarded as ‘potential victims’ within the Migrant Smuggling Protocol, as shown above, it will be argued that under the Protocol they have a number of rights that address the violations resulting from the smuggling process or its implications, such as detention and deportation. Before examining these rights in detail, it is important to recognise the views of others about the nature and extent of the rights of smuggled migrants under the Migrant Smuggling Protocol.

There is no consensus in the academic literature on the nature and extent of the rights of smuggled migrants within the Protocol. Broadly speaking, there are two conflicting views. On the one hand, Gallagher, Koser and Obokata point out that the Protocol contains minimal or limited reference to the protection needs of smuggled migrants[24]. This view suggests that the Protocol is deficient from the perspective of the rights of smuggled migrants. However, this view seems somewhat exaggerated in its criticism, as it will be argued later on that there are in fact a number of rights within the Protocol that need to be inferred. In other words, they exist within the Protocol implicitly. Since human rights are often couched in general and broad language, these rights inevitably need to be interpreted in practice.[25] This rule applies equally to the rights in the Migrant Smuggling Protocol. Thus, the rights of smuggled migrants should not be limited or restricted by those rights that have been mentioned explicitly in the Protocol. The interpretative notes to Article 16 confirm this view. They state that listing certain rights in the Protocol – such as the right to life and the right not to be subjected to torture or to cruel, inhuman or degrading treatment or punishment – should not be interpreted as excluding or derogating from any other rights that are not specifically listed[26]. In the same context, Article 19(1) of the Protocol states that nothing in the Protocol shall affect the obligations and responsibilities of States under international law, including human rights law.

On the other hand, there is a view that has commended the Protocol for protecting human rights. For example, Mallia states that through the provisions of the Protocol it can be noticed that there is a firm intention to protect the rights of smuggled migrants[27]. Dixon also argues that Article 16(3) of the Protocol grants to smuggled migrants the necessary rights to protect their lives and dignity, including the right to safe transport[28]. This view, which implies that the Protocol has a full framework for the protection of migrants, is arguably misguided. The reason for this is that the fundamental rights in the Protocol and other provisions that can be used to infer additional rights should not be interpreted broadly. This argument takes its cue from the attitude of the drafters of the Protocol, who apparently lacked the will to include any explicit protection for smuggled migrants. During the codification history of the Protocol, many States were hesitant to support any provision that would generate an obligation on the part of States to take positive measures in relation to the protection and assistance of smuggled migrants. As mentioned earlier, these States observe that the smuggled migrants are not themselves victims of the offence of migrant smuggling. Consequently, there were no references to protection or assistance for smuggled migrants in the original draft versions of the Migrant Smuggling Protocol[29]. The current provisions on protection are incorporated within the existing text of the Protocol as a result of pressure by an ‘Inter-Agency Group’, comprising UNHCR, IOM, and UNICEF[30]. The drafters of the Protocol were only interested in crime control, rather than the protection of smuggled migrants[31]. A senior member of one of the leading delegations expresses this clearly:

[T]his is not like torture. It’s not even about human rights. We governments are not the villains here. Traffickers are just criminals. We can’t be responsible for what they are doing. In fact, if it wasn’t that we needed the cooperation of other countries to catch them, I wouldn’t even be here[32].

Any attempt to identify the actual rights of smuggled migrants in the Migrant Smuggling Protocol must take into account the legal character of smuggled migrants as potential victims’ under the Protocol. The provisions of the Protocol regarding the rights of smuggled migrants must be interpreted in such a way that the necessary rights for addressing violations resulting from the smuggling process or its implications can be established. On this basis, the following subsections argue that smuggled migrants have under the Protocol rights related to non-prosecution, rights related to life and dignity, rights related to detention and rights related to return.

However, it will be argued also in the following subsections that the protection of the rights of smuggled migrants, which is one of the Protocol’s explicit purposes under Article 2, cannot in fact be achieved by the level of protection afforded by the Protocol. This is because the aforementioned necessary rights of smuggled migrants are not comprehensive in the Protocol[33]. These necessary rights require, as mentioned above, a degree of interpretation of the relevant provisions of the Protocol and the relevant human rights instruments. It is to be expected that not all the States parties to the Protocol will protect smuggled migrants’ rights given the vagueness and need for complex interpretation of the Protocol and the relevant human rights instruments. In particular, there is a widespread view among States that smuggled migrants are not victims and are not deserving of protection.

ISSUES

The topic of migrant smuggling is enormously complex. As a multi-layered criminal industry, migrant smuggling encompasses various issues such as irregular migration, human rights violations and border management. Migrant smuggling endangers the lives of migrants and negatively impacts origin, transit and destination countries. Knowledge and information about migrant smuggling is extremely difficult to obtain due to the covert and rapidly changing nature of the crime. There is an especially sizeable gap in migration policy research and data, particularly in relation to migration patterns and processes involved in migrant smuggling, including its impact on migrants (particularly vulnerability, abuse and exploitation) as well as its impact on irregular migration flows (increasing scale, geography and profile of migrants).[34] The adaptability of smugglers and smuggling organizations is high, and organizers shift routes in response to law enforcement countermeasures.

The Declaration of the UN General Assembly Second High Level Dialogue on International Migration and Development held in October 2013 highlighted the need for concrete measures to enhance coherence and cooperation at all levels[35]. It reiterated the international community’s commitment to prevent and combat migrant smuggling, protect migrants from exploitation and other abuses and implement relevant international instruments on preventing and combating trafficking in persons and smuggling of migrants. The Report of the Secretary-General dated April 2016 (In Safety and Dignity: Addressing Large Movements of Refugees and Migrants) emphasized that the failure to reinforce international law and improve common responses to address large migrant movements will lead to greater loss of life, heighten tensions between States and communities, and increase the growth of criminal migrant smuggling networks[36].

A number of issues challenge the effective implementation of the Protocol, including: “(a) insufficient prevention and awareness; (b) lack of data and research; (c) lack of legislation; (d) inadequate policies and planning; (e) weak criminal justice system responses; (f) inadequate protection of the rights of smuggled migrants; and (g) limited international cooperation”.[37]

SUGGESTED ACTION

The September 2016 New York Declaration for Refugees and Migrants recognises that UN Member States should, “with full respect for our obligations under international law, vigorously combat human trafficking and migrant smuggling with a view to their elimination”[38]. In the suggested preliminary content of the Global Compact the following element is included: “combating trafficking in persons, smuggling of migrants and contemporary forms of slavery”.

The complex and evolving nature of migrant smuggling demands a comprehensive and coordinated approach to effectively counter smuggler networks and reduce smuggling operations.[39] Without proper detection and investigation of the players involved, the criminal industry responsible for migrant smuggling continues to operate unopposed. Without addressing the causes of irregular migration and the demand for migrant smugglers, increasing border control will merely result in alternative smuggling paths. Without creating safe and regular migration pathways, migrants will continue to lose their lives en route.

WAYS FORWARD – RECOMMENDATIONS

While the international community has long condemned the abuses and exploitation suffered by migrants, and many states have considerably strengthened their efforts to prevent and prosecute trafficking in persons, contemporary forms of slavery and smuggling of migrants, and to identify, protect and assist affected migrants, much more remains to be done.

The following represent a non-exhaustive list of principled, practical and action-oriented commitments, in line with the New York Declaration for Refugees and Migrants, the 2030 Agenda for Sustainable Development and existing frameworks, which could be made by states and other stakeholders within the global compact for safe, orderly and regular migration:

Identifying, protecting and assisting migrants in vulnerable situations in the context of smuggling and victims of trafficking and contemporary forms of slavery:

Establish and effectively implement national legal frameworks to protect and assist migrants in vulnerable situations in the context of smuggling and victims of trafficking in persons and contemporary forms of slavery, irrespective of their migration status, in compliance with international law and drawing upon the guidance provided in the GMG Principles and Guidelines on the human rights protection of migrants in vulnerable situations.
Establish national mechanisms to adequately identify vulnerabilities and protection needs and ensure referrals, including to legal, medical and psychological services that are gender and age sensitive.
Establish “firewalls” between immigration enforcement, criminal justice and service providers, to ensure that migrant victims of abuse and exploitation can access justice and assistance.

ENHANCING RESPONSES TO MIGRANT SMUGGLING:

Open or diversify effective and accessible regular migration channels including timely family reunification, labour mobility at all skills levels, education opportunities, and humanitarian admission schemes. Strengthen information dissemination about these pathways.
Review national legal and policy frameworks to ensure:

i)legislation and enforcement target the activities of organized criminal groups acting for profit, and do not criminalize those who support migrants for humanitarian or familial reasons or migrants resorting to smugglers or who are compelled to smuggle others.

ii)prioritizing responses to aggravated smuggling, which endangers the lives or safety of migrants or entails ill-treatment, including for their exploitation.

ENHANCING RESPONSES TO TRAFFICKING IN PERSONS AND CONTEMPORARY FORMS OF SLAVERY:

Ensure that victims of trafficking and contemporary forms of slavery are not punished for offences committed as a direct consequence of having been victims of these crimes.
Ensure that protection and assistance to victims of trafficking and contemporary forms of slavery are not made conditional upon cooperation with the authorities against suspected criminals.
Expand entitlements of victims of trafficking and contemporary forms of slavery to remedies, including compensation, provision of temporary or permanent residency and work permits in the country of transit or destination.

CAPACITY-BUILDING

Strengthen capacity of front line actors, criminal justice practitioners, labour inspectors, asylum authorities, social service providers, medical personnel, law enforcement and border authorities as relevant to:

o more effectively prevent, identify and respond to exploitation and abuse in the context of smuggling, trafficking and contemporary forms of slavery with particular attention to gender and age required responses.

o more effectively combat and prosecute the crimes of migrant smuggling and trafficking in persons through provision of technical assistance in areas such as international law and practice, intelligence gathering, risk analysis, investigative skills and interviewing.

INCREASING KNOWLEDGE AND COOPERATION:

Enhance collection, sharing, and analysis of disaggregated data, including on the modus operandi and economic models and conditions driving smuggling and trafficking networks, the number of migrant victims of trafficking in persons and other crimes, the factors that entice and allow criminals to target migrants, and the impacts of anti-trafficking and counter-smuggling measures.
Set up bilateral and multilateral mechanisms among judicial authorities, law enforcement, border control agencies and other relevant actors to share information, coordinate operational activities, and support investigation and prosecution efforts to tackle transnational organized crime.

CONCLUSION

Smuggled migrants are not victims of the offence of the smuggling of migrants per se, but they are ‘potential victims’ of violations that might occur because of the process of migrant smuggling or its implications, such as detention and deportation. However, the Migrant Smuggling Protocol has failed to offer a clear stand-alone and comprehensive framework of rights that can address these possible violations.

On the one hand, the rights of the smuggled migrants based on the Protocol per se are questionable. The right of smuggled migrants not to be prosecuted for illegal leaving in Article 5 of the Protocol can be undermined by Article 6(4) of the Protocol, which grants parties to the Protocol the authority to punish smuggled migrants for conduct that constitutes an offence under domestic law, with illegal leaving from a State possibly being one such domestic offence. Furthermore, smuggled migrants have implied rights under the Protocol, such as the right to be rescued at sea, the right to physical and psychological care and the right to non-refoulement outside the Refugee Convention. These rights derive from the right to life and the right not to be subjected to torture or other cruel, inhuman or degrading treatment or punishment in Article 16(1) of the Protocol, and therefore they require a level of interpretation in order to be established. However, it is unlikely that States will deduce these rights because they will lead to the creation of additional obligations on States in favour of smuggled migrants, who are generally ill regarded by States. Nevertheless, even if parties to the Protocol conclude that these rights exist, there remain a number of practical problems that would affect implementation of these rights in the context of migrant smuggling. For example, the international law of rescue at sea does not identify a place of disembarkation, and the Protocol has not filled this gap—a gap that is of particular relevance to cases of the migrant smuggling by sea. This weakness can undermine the right of smuggled migrants to be rescued at sea.

On the other hand, the existing rights in international human rights law that are of direct relevance to migrants and migration-related situations – such as Article 12(4) of the ICCPR regarding the right to return and Article 9 of ICCPR or Article 5 of the ECHR related to detention – are dispersed and fragmented.

ACKNOWLEDGMENT

I would like to offer particular thanks to my Research Guide, Mrs. Girija Anil, for her support, encouragement and advice. This work would not have been possible without the benefit of her guidance and careful supervision.

I am greatly indebted to all of my friends who discussed and offered feedback on chapters of the work. I would also like to thank Director of Academics Mr. Deepak for giving this wonderful opportunity to cherish my knowledge.

A special word of thanks is owed to my sister and my parents. My parents have never wavered in their faith in me. I thank them for their support, love and encouragement throughout this project and it is my great pleasure to dedicate this article to them.

[1] David Kyle and Rey Koslowski (eds), Global human smuggling: Comparative perspectives (Johnes Hopking University Press 2001) 5; Georgios A Antonopoulos and John Winterdyk, ‘The Smuggling of Migrants in Greece an Examination of its Social Organization’ (2006) 3 E J Crim 439; Anne Gallagher, The International Law on Human Trafficking (Cambridge University Press 2010) 1.

[2] Friedrich Heckmann and others, ‘Transatlantic Workshop on Human Smuggling’ (2000) 1 Geo Immigr LJ 167; Andreas Schloenhardt, ‘Migrant Smuggling and Organised Crime in Australia: Research Paper’ (The University of Queensland, Migrant Smuggling Working Group 2011) 6.

[3] Rebecca Tailby, ‘Organised Crime and People Smuggling/Trafficking to Australia’ (Australian Institute of Criminology 2001).

[4] Philip Martin, ‘Smuggling and Trafficking: A Conference Report’ (2000) 34 Intl Migration Rev 969.

[5] Sarah Webb and John Burrows, ‘Research Report 15: Organised Immigration Crime: A Post-Conviction Study’ (Home Office, July 2009) 24.

[6] Andree Kirchner and Lorenzo Schiano di Pepe, ‘International Attempts to Conclude a Convention to Combat Illegal Migration (1998) 10 Intl JRL 662,663; Nilufer Narli, ‘Human Trafficking and Smuggling: The Process, the Actors and the Victim Profile’ in Nilufer Narli (ed), Trafficking in Persons in South East Europe – A Threat to Human Security (National Defence Academy and Bureau for Security Policy at the Austrian Ministry of Defence 2006) 24.

[7] Andreas Schloenhardt, Migrant Smuggling: Illegal Migration and Organised Crime in Australia and the Pacific Region (Martinus Nijhoff Publishers 2003) 5.

[8] United Nation Office on Drugs and Crime, ‘Migrant Smuggling’

[9] Marika McAdam and others, ‘Issue Paper: Migrant Smuggling by Air’ (UNDOC 2010)11.

[10] Ko-Lin Chin, ‘The Social Organisation of Chinese Human Smuggling’ in Kyle and Koslowski (n1) 228.

[11] The legal framework on slavery includes the 1926 Slavery Convention and 1956 Supplementary Convention. The mandate of the Special Rapporteur on contemporary forms of slavery has made recommendations regarding responses to the vulnerability of migrants to contemporary forms of slavery in situations of domestic servitude (A/HRC/15/20), forced labour in supply chains (A/HRC/30/35) and debt bondage (A/HRC/33/46).

[12] These include the International Labour Organization (ILO) Conventions, such as Convention No. 105 on the Abolition of Forced Labour (1957); Convention No. 29 on Forced or Compulsory Labour (1930), the Protocol to the Forced Labour Convention (2014), and Convention No. 182 on the Worst Forms of Child Labour (1999). Furthermore, the Convention on the Rights of the Child, and the Optional Protocol on the Sale of Children, Child Prostitution, and Child Pornography, prohibit trafficking in children for any purpose, including for exploitive and forced labour, and contain a number of provisions that underpin a child-rights approach. The Convention of the Elimination of All Forms of Discrimination Against Women (CEDAW) calls on states to address all forms of trafficking of women and girls. Also of relevance is the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, the Refugees Convention and 1967 Protocol thereto, as well as the International Law of the Sea framework.

[13] According to Europol, in most cases, these services were provided by criminal groups, with criminal networks involved in migrant smuggling estimated to have had a turnover of between EUR 3-6 billion in 2015.

[14] OHCHR, Situations of migrants in transit (A/HRC/31/35), paras 55-58.

[15] UNHCR Tracks, Abandoned at Sea, Stories of refugees and aid workers, 2015.

[16] IOM, Thematic Paper, Combatting trafficking in persons and contemporary forms of slavery, 2017

[17] OHCHR, Promotion and protection of the human rights of migrants in the context of large movements (A/HRC/33/67), p. 21.

[18] UNODC, Issue paper, Corruption and the smuggling of migrants, 2013.

[19] UNHCR, Family reunification in Europe, 2015.

[20] Report of the Special Rapporteur on trafficking in persons (A/HRC/29/38), para. 28.

[21] GMG Principles and practical guidance on the protection of the human rights of migrants in vulnerable situations (A/HRC/34/31); GMG, Exploitation and abuse of international migrants, particularly those in an irregular situation: A human rights approach, 2013; UNHCR, ‘Migrants in vulnerable situations’: UNHCR’s perspective, 2017.

[22] Gaps in the child protection system can expose children to the risk of exploitation. UNICEF France and UNICEF UK, Neither Safe nor Sound: Unaccompanied children on the coastline of the English Channel and the North Sea, 2016, p. 85. Also see: UNICEF, UNHCR, IRC, The way forward to strengthened policies and practices for unaccompanied and separated children in Europe, 2017.

[23] UNODC, The Concept of “Financial or Other Material Benefit” in the Smuggling of Migrants Protocol, 2017. In this regard, the Travaux Preparatoires of the Smuggling of Migrants Protocol indicate that the reference to “a financial or other material benefit” as an element of the definition “was included in order to emphasize that the intention was to include the activities of organized criminal groups acting for profit, but to exclude the activities of those who provided support to migrants for humanitarian reasons or on the basis of close family ties. It was not the intention of the protocol to criminalize the activities of family members or support groups such as religious or non-governmental organizations”, pp. 469 and 689

[24] Anne Gallagher, ‘Human Rights and the New UN Protocols on Trafficking and Migrant Smuggling: A Preliminary Analysis’ (2001) 23 HRQ 975, 1003-04; Khalid Koser, ‘Strengthening Policy Responses to Migrant Smuggling And Human Trafficking: Discussion paper prepared for the Civil Society Days of the Global Forum on Migration and Development’ (Manila 2008) 2; Obokata, ‘Smuggling of Human Beings from a Human Rights Perspective 397-98.

[25] Johannes Knorz, ‘The Theory and interpretation of Human Rights in Australia and Germany: A Comparative Analysis’ (1997) 1997 Aus Intl LJ 34, 37.

[26] Travaux préparatoires of the Protocol (n5) 541.

[27] Patricia Mallia, Migrant Smuggling by Sea: Combating a Current Threat to Maritime Security through the Creation of a Cooperative Framework (Martinus Nijhoff Publishers 2010)118.

[28] Rosalind Dixon, ‘Human Smuggling: the Rights of Smuggled and Trafficked Migrants under International Human Rights Law’ (International Council on Human Rights Policy 2005).

[29] UNGA Ad Hoc Committee on the Elaboration of a Convention against Transnational Organised Crime, ‘Draft elements for an international legal instrument against illegal trafficking and transport of migrants’ UN Doc A/AC.254/4/Add.1(15 December 1998).

[30] Gallagher, ‘Human Rights and the New UN Protocols’; Obokata, ‘The Legal Framework Concerning the Smuggling of Migrants at Sea’

[31] Jarrod Jolly, ‘Fighting Crime or a Fight for Rights? Assessing the Human Rights Value of the UN Protocols on Trafficking in Persons and Migrant Smuggling’ (2011) 4 QLS Rev 103,116; Erick Gjerdingen, ‘Suffocation Inside a Cold Storage Truck and Other Problems with Trafficking as ‘Exploitation’ and Smuggling as ‘Choice’ Along the Thai-Burmese Border’ (2009) 26 Arizona J Intl & CL 716.

[32] Anne Gallagher, The International Law on Human Trafficking (Cambridge University Press 2010) 2.

[33] Pia Oberoi and others ‘Irregular Migration, Migrant Smuggling and Human Rights: Towards Coherence’ (International Council on Human Rights Policy 2010)71 and 73. See also, Jolly (n33) 116

[34] McAuliffe, M. and Lazcko, F. (eds) Migration Smuggling Data and Research: A global review of the evidence base. IOM: Geneva.

[35] United Nations General Assembly, High-level Dialogue on International Migration and Development, Making Migration Work, 3-4 October 2013.

[36] United Nations General Assembly, Report of the Secretary-General, In safety and dignity: addressing large movements of refugees and migrants, A/70/59, (New York, 2016).

[37] UNODC, International Framework for Action to Implement the Smuggling of Migrants (New York, 2011), p.7.

[38] United Nations General Assembly, New York Declaration for Refugee and Migrants, A/RES/71/1, (New York, 2016).

[39] IOM, IOM’s Comprehensive Approach to Counter Migrant Smuggling (Geneva, 2016).