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An Introduction to Transnational Criminal Law, 2nd Edition by Boister, Neil (19th April 2018)

Part II Crimes, 5 Migrant Smuggling

From: An Introduction to Transnational Criminal Law (2nd Edition)

Neil Boister

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date: 11 July 2020

Migrants, rights — Non-refoulement — Migrants — Statutory limitations

(p. 76) Migrant Smuggling

5.1  From Refugees to Smuggled Migrants

Individuals fleeing persecution have a legal right to claim refugee status under the Refugees Convention1 and the right not to be expelled, or returned to the state from which they fled.2 Providing they present themselves without delay and show good cause for their unauthorized entry into other states to claim this refugee status, they also have immunity from penalization for their unauthorized entry or presence in that state.3 ‘Irregular migration’ in the sense of unauthorized crossing of borders even if in pursuit of asylum raises two questions: whether the movement of individuals whose status as refugees is yet to be determined is a lawful form of migratory movement or not; and whether assisting these individuals to cross borders is lawful or not? In regard to the first question, migrants are legally vulnerable because they may break the law of both the state they leave and that in which they arrive by bribing officials and because they have no papers or visas required for entry. However, the main target of international action is not the migrants themselves—the Refugee Convention prohibits the penalizing of refugees for their illegal entry and their presence4—but taking steps against those who facilitate the unauthorized movement of migrants from one state to another.

The mass migration of people in the late twentieth and twenty-first centuries fleeing from persecution, armed conflict, and collapsing economies to the relative safety and material security of other states, coupled with ever tighter immigration controls in these destination states, has brought the need for actions against migrant smugglers who facilitate this migration sharply into focus. The convergent interest of various states in the maintenance of their borders has led to a series of legal steps being taken against those who smuggle migrants in what has been aptly termed ‘crimmigration’, a hybrid of immigration and criminal law used to control suspect populations in the transnational space.5 Central to this process has been the recharacterization of the refugee as smuggled migrant, which has enabled the relabelling of assisting their flight to asylum as a crime, allowing a shift in focus away from the dilemmas of the migrants to action against the migrant smuggler and the trumping of the Refugees Convention by crime suppression conventions designed to suppress smuggling as a guide to national response.6 It also permits the characterization of migrant smuggling (p. 77) as a security threat which as Gallagher points out serves in turn to ‘justify and explain the growing externalization of border controls and the increased militarization of all aspects of border control—from surveillance to deterrence’.7

5.2  The Nature of Migrant Smuggling

Migrant smuggling ‘is the unauthorized movement of individuals across national borders for the financial or other benefit of the smuggler’.8 Migrant or people smuggling occurs when migrants, prevented from entering a state because of heavily enforced restrictive immigration policies, turn to smugglers for assistance to gain entry. Perversely, the more effective border controls, the greater the demand for the services of smugglers. States have responded by developing policy and law aimed at deterring migrant smugglers by punishing them. In Australia, for example, the large number of ‘suspected irregular entry vessels’ (SIEVs), 849 in the period 2008–2014 carrying more than 50,000 people, has been met with prosecution of the crew and sometimes of those who organize these operations.9

Unlike human trafficking, the primary motivation of the smugglers is not the exploitation of those smuggled but payment—usually part in advance and part on arrival—for their services. In addition, migrant smuggling, unlike human trafficking, occurs with the consent of the migrants and is not carried out with the purpose of their exploitation. And while human trafficking harms individuals, in migrant smuggling the harm is felt by the destination state, particularly in its control of its borders and management of immigration. The distinction blurs, however, when a migrant is subject to coercive exploitation during the course or at the conclusion of their journey such as being made to ‘work’ to pay off their debt.10 If migrants withdraw their consent, they are not necessarily victims of human trafficking because the smugglers may use violence to keep them moving but without the purpose of exploiting them. This places the onus on the migrant who is also a victim of trafficking to establish that they have been trafficked.11 It has also been pointed out that the notion that migrants choose to be smuggled is misleading because they are often forced through poverty, humanitarian crises, and persecution to migrate under the coercive conditions of smuggling.12

(p. 78) 5.3  Background to the Migrant Smuggling Protocol

Prior to resort to transnational criminal law, an existing web of human rights law, specialist refugee law, laws of the sea, and migration control treaties regulated this area.13 Concerns about increased flows of illicit migrants led to calls by Italy and Austria for the development of an instrument aimed at coordinating efforts to suppress those who facilitate the flow through the use of the criminal law.14 Italy proposed a convention to the International Maritime Organization specifically to interdict migrant smuggling at sea but it was the Austrian proposal for a UN General Assembly Convention criminalizing migrant smuggling which ultimately bore legal fruit.15 The problem identified by supporters of criminalization was the rationale that underpins all criminal law: without criminalization in all countries smugglers were free to operate as they please and were not open to extradition.16 The problem was taken up during the negotiation of the UN Convention against Transnational Organized Crime (UNTOC) because of the perception that opportunities for financial gain through migrant smuggling were being exploited by organized criminals.17 In 1999, the UN General Assembly, which had in 1993 resolved that smuggling of aliens was an issue of ‘transnational concern’ deserving of multilateral response,18 asked the intergovernmental ad hoc committee established to negotiate the UNTOC to consider further instruments, one being to address specifically, the smuggling of migrants.19 The end result, the Protocol against the Smuggling of Migrants by Land, Sea and Air, Supplementing the United Nations Convention against Transnational Organized Crime,20 is the principal legal instrument directed at the suppression of people smuggling. Its stated purpose is to ‘prevent and combat the smuggling of migrants’, ‘while protecting the rights of smuggled migrants’.21 In order to serve as the anchor point for a range of law enforcement measures,22 the Migrant Smuggling Protocol requires each party to criminalize three distinct forms of conduct, each built around the definition of ‘smuggling of migrants’.

5.4  Crimes

5.4.1  Smuggling migrants

Article 6(1)(a) is the focal offence. It requires criminalization of the key conduct of ‘smuggling of migrants’, which article 3(a) defines as ‘the procurement, in order to (p. 79) obtain, directly or indirectly, a financial or other material benefit, of the illegal entry of a person into a State Party of which the person is not a national or a permanent resident’. In terms of article 3(b) ‘illegal entry’ is defined as ‘crossing borders without complying with the necessary requirements for legal entry into the receiving State’. Illegal entry thus implies smuggling into a state.23 Thus while human trafficking may take place entirely within a state, migrant smuggling must be transnational in this limited sense. This appears to contradict the requirement in article 34(2) of the UNTOC that offences in the Convention and its Protocols must be established in domestic law independently of transnationality. Although the United Nations Office on Drugs and Crime’s Legislative Guide to implementing the UNTOC and the Protocols clarifies that ‘[i]n the case of smuggling of migrants, domestic offences should apply even where transnationality and the involvement of organized criminal groups does not exist or cannot be proved’,24 this general rule does not apply to the illegal entry offence. As the Legislative Guide notes somewhat contradictorily, ‘[s]muggling, on the other hand, contains a necessary element of transnationality, which requires illegal entry from one country to another’.25 While the offence depends on illegal entry, parties have expanded the scope of the offence to include individuals on their way to the destination state prior to entry, although how early in their journey this extends to before it becomes mere preparation for the offence is difficult to say.26

The requirement that entry must be ‘illegal’ excludes from the scope of the offence procurement of the entry of nationals or those with rights of residence. The offence was not designed to be used in cases where a valid document is used improperly and the entry was technically legal.27 In R v Konsaijan28 the New Zealand High Court held that an entry into New Zealand is not ‘unauthorized’ for the purposes of section 98C of the Crimes Act 1961, which implements the article 6(1)(a) offence, if the migrant enters with a valid visitor’s visa even if they intend to work. Some parties have clarified that the scope of the offence in their legislation does include procurement of the illegal entry of individuals who may have a valid claim to asylum. This is the case, for example, in section 228B(2) of Australia’s Migration Act 1958, which explains that the offence includes smuggling of non-citizens who do not hold a valid (p. 80) entry visa including those ‘seeking protection or asylum (however described), whether or not Australia has, or may have, protection obligations in respect of the non-citizen because the non-citizen is or may be a refugee, or for any other reason’. Schloenhardt and Stacey note:

Persons brought to Australia with the assistance of migrant smugglers (or ‘people smugglers’) are generally referred to as unauthorised arrivals or, in reference to s 14 of the Migration Act 1958 (Cth), as unlawful non-citizens, that is, persons with no valid travel authority to enter into (or remain in) Australia.29

It follows that all the prosecution has to show is that the smuggled individuals did not have valid visas for entry into Australia, and implies that Australian immigration law dictates how an individual may exercise their rights to claim refugee status from Australia; if they engage others to facilitate their migration to Australia outside of these channels their rights under international law do not clothe the actions of the individuals who smuggle them in legality.

‘Procurement’ of illegal entry is a very broad term drafted to cover the full range of migrant smuggling services from leading them across physical land and sea borders to expensive forged visa-based smuggling. The requirement that the accused smuggler’s conduct must be intentional, implies a requirement that the smuggler know they are procuring the illegal entry of a migrant into a state. For example, in the Australian case PJ v The Queen30 a Court in Victoria held that the individual concerned must know that the destination was Australia (ie another country to which their passengers had no lawful right of entry). In practice, parties have lowered the threshold. The Netherlands, for example, only requires that the alleged people smuggler ‘knows or has serious reason to suspect’31 while English law only requires that they have knowledge or a ‘reasonable cause to believe’.32

In addition, the smuggler must procure this illegal entry for the specific purpose of obtaining ‘a financial or other material benefit’. The motivations of the smugglers might be pecuniary or non-pecuniary (sexual favours, labour, etc) but the offence excludes humanitarian or familial motivations. It requires an intention to profit, excluding from the scope of the offence the conduct of those NGOs which support migrants for humanitarian reasons or individuals who do so on the basis of close family ties.33 Individuals who act out of necessity by providing transport, food, medical care, clothing, and temporary accommodation, or by rescuing wrecked migrants, may in fact serve to foster the unauthorized entry of migrants (p. 81) into another state but they do so without the necessary venal intentions. The absence of this profit motive in article 1 of the 2002 EU Directive on Facilitation of Unauthorized Entry, Transit and Residence34 which requires only intentional assistance, and in some domestic legislation, is considered a fundamental flaw by critics because it permits the prosecution of those who help migrants for entirely altruistic reasons.35 It contrasts with the Canadian Supreme Court decision in R v Appulonappa36 where the court found Canada’s law criminalizing smuggling, section 117 of the Immigration and Refugee Protection Act, to be inconsistent with the Protocol’s object of protecting the rights of smuggled migrants by allowing prosecution of those who provide support for humanitarian or familial reasons, was over broad and should be ‘read down … as not applying to persons providing humanitarian aid to asylum-seekers or to asylum-seekers who provide each other mutual aid (including aid to family members)’. The EU Directive does suggest in article 1(2) that member states may decide not to impose sanctions but leaves it to them. Unfortunately, there is nothing in article 5 of the Migrant Smuggling Protocol preventing this more comprehensive criminalization and indeed, article 34(3) of the parent convention, the UNTOC, provides explicit permission to parties to adopt more strict or severe measures. Many states do not require a profit motive as an element of the crime and do prosecute individuals who help migrants for humanitarian reasons.37 France, for example, only treats a financial motive as an aggravating factor, not as an essential element of the offence.38 Other states do, however, explicitly require a financial motive. Germany requires an intention to achieve a ‘pecuniary advantage’39 and in Austria convictions for smuggling have been overturned for want of such an intention.40 Some states have a hybrid approach. There is thus no such requirement in the offence of ‘assisting unlawful immigration’ in section 25 of the UK’s Immigration Act 1971, but the offence of ‘helping asylum seekers’ in section 25A must be done for ‘gain’.

(p. 82) 5.4.2  Document fraud

Article 6(1)(b) makes similar provision for offences involving document fraud. It requires criminalization of (i) producing or (ii) procuring, providing, or possessing a fraudulent travel or identity document. Article 3(c) defines a ‘fraudulent travel or identity document’ as any travel or identity document:

  1. (i)  That has been falsely made or altered in some material way by anyone other than a person or agency lawfully authorized to make or issue the travel or identity document on behalf of a State; or

  2. (ii)  That has been improperly issued or obtained through misrepresentation, corruption or duress or in any other unlawful manner; or

  3. (iii)  That is being used by a person other than the rightful holder.

The phrase ‘falsely made or altered in some material way’ can be interpreted as including not only the making of fake documents but also the modification of genuine documents and the filling in of blank stolen documents. It would include forged documents and authentic documents being used by someone other than the lawful holder.41 The production of such a document can be achieved, for example, through complete forgery or through alteration of a signature. ‘Procuring’ a document involves obtaining it, ‘providing’ involves giving it, and ‘possession’ must be for the purposes of smuggling migrants, not possession by a smuggled migrant for their own unauthorized entry.42

In regard to the mental element of criminal liability, these document offences must also be committed intentionally but with (i) the specific purpose of ‘financial or other material benefit’ in terms of article 3(a) (which again excludes altruistically motivated actions) and (ii) with the further specific purpose of enabling the smuggling of migrants, so as to avoid too broad an offence.

5.4.3  Enabling a person to remain clandestinely or otherwise illegally

Article 6(1)(c) is aimed at suppressing the actions of those individuals who facilitate the ability of migrants who may enter legally but who remain in the host country clandestinely or otherwise illegally.43 It requires the criminalization of enabling a person who is not a national or a permanent resident to remain in a state without complying with the necessary requirements for legally remaining in the state. The conduct of enabling itself must occur by the means outlined in article 6(1)(b), that is producing, procuring, providing, or possessing a fraudulent travel or identity document or ‘any other illegal means’ defined as illegal by domestic law. Again, the offence must be committed intentionally with the purpose of obtaining some ‘financial or material benefit’, thus excluding altruistically motivated actions.44

(p. 83) 5.4.4  Attempts, secondary parties, organizing and directing, corporate liability

Article 6(2) obliges parties to criminalize attempts, accomplice liability, and organizing or directing other persons to engage in article 6(1) offences. This provision expands the scope of criminality considerably reaching individuals who not only try to commit these offences, but who both assist and arrange these offences. Not all states criminalize inchoate offences like attempt, hence the obligation in regard to attempts is subject to the ‘basic concepts’ of the party’s legal system. So too is the obligation under article 6(1)(b)(ii) because of the difficulty associated with being an accomplice to ‘possessing’ a fraudulent travel or identity document.45 Domestic offences such as ‘facilitation’ of migrant smuggling under section 232A of Australia’s Migration Act in a sense transform secondary liability into stand-alone offences, which can, for example, apply to a migrant who voluntarily acts as an interpreter between migrant smugglers and other passengers.46 Finally, while corporate liability is not specifically referred to in article 6, it has been suggested that following the UNTOC provision for corporate criminal liability should also be made for people smuggling offences.47

5.4.5  Limitation of international cooperation to transnational migrant smuggling by an organized criminal group

Like the Human Trafficking Protocol, article 4 of the Migrant Smuggling Protocol limits international cooperation in the prevention, investigation, and prosecution of its offences to those which are transnational in nature and involve an organized criminal group. These conditions are not included in the definition of most of the offences (except the transnational aspect in article 6(1)(a)), and it may be that the latter will present a major obstacle to effectively suppressing migrant smuggling where, for example, only the crew of a boat are apprehended and they are less than three in number (thus not qualifying as an organized criminal group in terms of the UNTOC).

5.4.6  Punishment

The only provision which refers directly if partially to punishment in the Protocol is article 6(3), which obliges parties to establish as aggravating, circumstances ‘(a) that endanger, or are likely to endanger, the lives or safety of the migrants concerned; or (b) that entail inhuman or degrading treatment, including for exploitation, of such migrants’. It applies to all article 6(1) offences except those in article 6(1)(b), that is producing, procuring, providing, or possessing a fraudulent travel or identity document.

These aggravating circumstances are of two kinds. Endangering the lives of or safety of migrants may include, for example, setting to sea in an unseaworthy boat, (p. 84) forced journeys in desert terrain with no water, or smuggling in shipping containers without adequate heating, cooling, food, water, or fresh air. Interestingly, a Greek court decided that the aggravating factor of endangering the lives of the migrants had to be derived causally from the smuggler’s conduct itself and could not arise out of his attempts to avoid police interception by driving recklessly (he crashed the car transporting them while attempting to get away).48 Inhuman or degrading treatment includes a broad range of forms of abuse, which if it is exploitative in nature may overlap with human trafficking. A recent Spanish decision involved, for example, enforced prostitution to pay for the cost of the smuggling.49

States can implement this aggravation in two ways—as a separate aggravated offence or as aggravating factors to be taken into consideration on sentence.50 Australia has adopted the former option, with some domestic tailoring. The punishment for people smuggling under section 233A of Australia’s Migration Act is, for example, a maximum of ten years. It can, however, be aggravated to twenty year maximum in two ways: under s 233B where the smuggler subjects the smuggled migrant to ‘cruel inhuman or degrading treatment’ or their actions give ‘rise to a danger of death or serious harm to the victim’ and the smuggler is ‘reckless’ in that regard, or under s 233C by smuggling five or more individuals (it carries a mandatory minimum sentence of five years or eight years for repeat offenders51). While the former implements article 6(3) of the Protocol, the latter is driven by Australia’s domestic anti-migrant smuggling stance. Severe penalties are imposed. A prominent Iranian people smuggler responsible for sending five unseaworthy vessels to Australia, one of which foundered off Christmas Island with the loss of fifty lives, was, for example, given a fourteen-year sentence under the latter form of aggravation and his appeal against sentence failed.52

Finally, article 6(4) of the Protocol does provide that nothing in the Protocol ‘shall prevent a state from taking measures against a person whose conduct constitutes an offence under its domestic law’, which has been interpreted to include both administrative and criminal sanctions.53

5.5  The Protection of Migrants’ Human Rights

5.5.1  General

Article 2 of the Protocol provides that one of its purposes is to protect the rights of smuggled migrants, who are vulnerable to life-threatening modes of transport, exploitation, deception, threats and violence from smugglers, dangerous conditions of arrest (p. 85) (particularly at sea), and poor conditions of detention.54 Some of these protections relate to the protection from others including smugglers and some of these protections relate to restraint of the behaviour of the state from which they leave or their destination state. Most of the provisions protecting rights in the Protocol refer to the parties’ existing obligations under other international laws. Of particular importance in this regard is the savings clause in article 19:

Nothing in this Protocol shall affect the other rights, obligations and responsibilities of States and individuals under international law, including international humanitarian law and international human rights law and, in particular, where applicable, the 1951 Convention and the 1967 Protocol relating to the Status of Refugees and the principle of non-refoulement as contained therein.

This means, for example, that nothing contained in the Protocol affects the principle of non- refoulement, even when it operates extra-territorially because the migrant falls under the effective control of the destination state. Thus nothing in the Protocol could justify push-back operations where states send undocumented migrants and asylum seekers intercepted at sea back to the country of departure without processing them or examining the potential human rights abuses they face on return, a policy condemned by the European Court of Human Rights in Hirsii Jamaa et al v Italy55 as inter alia a violation of the prohibition against protection from torture and inhuman or degrading treatment under article 3 of the European Convention on Human Rights.

Crucially, however, the human rights provisions in the Protocol flesh out these general human rights obligations with specific content relevant to the activity of migrant smuggling, which provides a specific framework for action where parties to the Protocol are either not party to the relevant human rights or refugee convention or have not implemented their general human rights and refugee law obligations.

5.5.2  Migrants’ immunity from prosecution for Protocol offences

Migrants have in the past been subject to harsh penalties and detention even where they have had legitimate claims to asylum.56 The offences in the Protocol are, however, aimed at traffickers, not migrants. It follows that in terms of Article 5 migrants shall not be criminally liable ‘under this Protocol’ for being the ‘object of the conduct’ set out in article 6. Article 2 of Egypt’s Law on Combating Illegal Migration and Smuggling of Migrants, for example, provides that ‘smuggled migrants bear no criminal responsibility’.57 It has been argued that under the Protocol migrants may face criminal prosecution for an offence unrelated to migrant smuggling, such as criminal damage or harming other migrants.58 The ability to impose liability under some other law is retained through operation of article 6(4), which clarifies that ‘[n]othing in this (p. 86) Protocol shall prevent a State Party from taking measures against a person whose conduct constitutes an offence under its domestic law’.

One area of difficulty is whether prosecution by a party of a migrant who themselves engages in facilitation of the smuggling of migrants is in some way a violation of article 5. A migrant who fixes the engine of a boat in which they are a passenger would not necessarily fall foul of an offence that directly transcribed article 5 with its specific intention of material benefit into domestic law, but would definitely fall foul of a people smuggling offence that did not require this direct intention.59

The scope of the immunity offered by article 5 is narrower than in the Refugees Convention which gives a broad protection from penalization to asylum seekers,60 but it is broader in the sense that it is offered to all smuggled migrants and not just to those claiming refugee status, and does not impose any further conditions for immunity such as coming directly from a territory where their life or freedom was threatened or showing good cause for their entry.61 It has been argued that article 5’s protection should be extended through a good faith interpretation of article 5’s purposes beyond prohibiting criminalization to prohibiting the application of administrative measures as a disguised form of punishment and deterrent to smugglers.62 An example of this is the mandatory detention of all ‘unlawful non-citizens’ under the Australian Migration Act.63

5.5.3  Reinforcing existing protections

Article 16(1) of the Migrant Smuggling Protocol obliges parties to take appropriate measures ‘to preserve and protect the rights of persons’ smuggled, ‘in particular, the right to life and the right not to be subjected to torture or other cruel inhuman or degrading treatment of punishment’. Although this provision does not confer any rights on smuggled migrants beyond those already recognized in international human rights or humanitarian law,64 it would, for example, oblige parties to take positive action in certain situations such as ensuring the rescue of migrants abandoned in the desert by smugglers or wrecked in heavy seas, and to provide them with emergency food, shelter, and medical care, in order to respect the right to life in article 6(1) of the ICCPR.65

Article 16(2) obliges parties to ensure the protection of migrants from violence perpetrated by ‘individuals or groups’, which would include violence perpetrated by the smugglers, vigilantes, and local populations who resent the entry of smugglers or prey on them, or even law enforcement officers. No further guidance is provided as to what this might entail, and parties are left to take ‘appropriate’ measures.

Article 16(3) provides for an obligation to ‘afford appropriate assistance’ to ‘migrants whose lives or safety are endangered’ by reason of being the object of the Protocol (p. 87) crimes, while article 16(4) requires parties to ‘take into account the special needs of women and children’. Article 16(5) reinforces the obligation under the Vienna Convention on Consular Relations66 of informing smuggled persons ‘without delay about the provisions concerning notification to and communication with consular officers’. This implies a duty to enable contact between the smuggled migrants and their consular authority. Article 18 obliges parties to accept the safe return of smuggled nationals or those with residence. As noted above, efforts made during the negotiations to ensure that illegal entry into a party would not bar a migrant from claiming asylum bore fruit in article 19, which provides that the Protocol leaves unaltered the obligations of states and the rights of individuals under the Refugees Convention. Implementation of this protection and assistance does not appear to prevent deportation in the case of a failed claim to asylum.67

5.5.4  Criticisms of the human rights protections in the Protocol

While the Protocol thus reaffirms the right of refugees not to be returned, and gives smuggled migrants specific protections in the conditions they may face including protection from prosecution, the Protocol offers slimmer specific protection to migrants than the Human Trafficking Protocol offers trafficking victims, mainly because it does not view migrants as victims of this crime but rather objectifies them as contraband like illicit drugs or tobacco.68 It is not clear to what extent if any this shift in emphasis has encouraged policies like Australia’s processing of migrants on offshore detention centres where their rights might be endangered, in what is essentially an exercise in punitive pre-emption of their right to asylum.69 The Protocol also ignores the rights of the smugglers themselves. A controversial issue in the prosecution of Indonesian smugglers in Australia has been ascertaining their age in order to ensure that those who are actually juveniles are not prosecuted as adults, because of the absence of an accurate biomedical marker.70

5.6  Conclusion

The crime of migrant smuggling arises from supply-side concerns and the preoccupations of wealthy states with border and immigration control. Migrants are referred to as the ‘objects’ of this process. Yet they, like the victims of trafficking, have struggled to escape being tainted by smuggling. The effectiveness of the criminalization of migrant smuggling has also been questioned. Schloenhardt and Craig point out that (p. 88) prosecutions in Australia have not deterred individuals from engaging in the business of migrant smuggling.71 One reason for this is that most of those prosecuted have been the crews of smuggling vessels. Of the 305 people convicted of smuggling in Australia from 1 June 2010–20 October 2014, 294 were crew and only ten organizers (3.3%).72 Reaching organizers who do not enter the destination state’s jurisdiction is not as effective as taking action against smugglers or their vessels because it depends on the vicissitudes of international cooperation. The likely response is, however, ever more severe measures against migrant smuggling rather than addressing its underlying causes.


1  Article 1(A)(2) of the Convention Relating to the Status of Refugees, 28 July 1951, 189 UNTS 150; in force 22 April 1954. See also, article 7 of the International Covenant on Civil and Political Rights (ICCPR), the right not to be returned to a country where they may be ‘subjected to torture or to cruel, inhuman or degrading treatment or punishment’.

2  Article 32 and 33.

3  Article 31.

4  Article 16.

5  J Stumpf, ‘The Crimmigration Crisis: Immigrants, Crime and Sovereign Power’ 56(2) American Studies Law Review (2006) 367.

6  S Pickering, ‘Transnational Crime and Refugee Protection’ 34(2) Social Justice (2007) 47, 50–2.

7  AT Gallagher, ‘Migrant Smuggling’ in N Boister and R Currie (eds), The Routledge Handbook of Transnational Criminal Law (Abingdon: Routledge, 2015), 187, 188.

8  ibid, 187.

9  A Schloenhardt and C Craig, ‘Prosecution of People Smugglers in Australia 2011–14’ 38 Sydney Law Review (2016) 49, 52.

10  See A Schloenhardt, ‘The UN Protocol against the Smuggling of Migrants by Land, Sea and Air 2000’ in P Hauck and S Peterke (eds), International Law and Transnational Organized Crime (Oxford: OUP, 2016), 169, 176.

11  A Gallagher, ‘Human Rights and the New UN Protocols on Trafficking and Migrant Smuggling: A Preliminary Analysis’ 23 Human Rights Quarterly (2001) 975, 1001.

12  T Obokata, ‘Smuggling of Human Beings from a Human Rights Perspective: Obligations of Non-State and State Actors under International Human Rights Law’ 17 International Journal of Refugee Law (2005) 394, 397 et seq.

13  See generally A Gallagher and F David, The International Law of Migrant Smuggling (Cambridge: CUP, 2014), 23 et seq.

14  See Schloenhardt, above n 10, 169–73.

15  IMO Legal Committee, ‘Proposed Multilateral Convention to Combat Illegal Migration by Sea’, IMO Doc LEG 76/11/1, 1 August 1997; ‘Letter dated 16 September 1997 from the Permanent Representative of Austria to the United Nations addressed to the Secretary-General’, UN Doc A/52/357, 17 September 1997.

16  Gallagher, above n 7, 187–88.

17  ‘Measures to Combat Alien Smuggling: Report of the Secretary-General’, UN DOC A/49/350, 30 August 1994.

18  GA Res 48/102 of 8 March 1994, adopted 20 December 1993.

19  GA Res 53/111, 20 January 1999, adopted 9 December 1998.

20  15 November 2000, 2241 UNTS 507; in force 28 January 2004. 

21  Article 2.

22  Article 4. These cooperation provisions are found in Articles 11, 12, and 15. Articles 7–9 deal with the specific problem of smuggling of migrants by sea.

23  Section 57 of Singapore’s Immigration Act 1989, which criminalizes smuggling out of Singapore, thus extends beyond the scope of the Protocol obligation. See Mohd Hazwan bin Moh Muji v Public Prosecutor [2012] SGHC 203.

24  UNODC, Legislative Guide for the Implementation of the United Nations Convention against Transnational Organised Crime and the Protocols Thereto (Vienna: UN, 2004), 333.

25  ibid, 341.

26  See section 233A of Australia’s Migration Act. An earlier version of this section has been authoritatively interpreted as including the smuggling of migrants who have not yet crossed the boundary into Australia—see R v Ahmad (2012) 31 NTLR 38, 43–44 [17]. New Zealand avoids this problem by specifically allowing in section 98C of the Crimes Act 1961 for the prosecution of a smuggler who brings a migrant to New Zealand or arranges for them to enter New Zealand even when in fact the migrant did not enter or was not brought to New Zealand.

27  Legislative Guide, above n 24, 341.

28  [2012] NZHC 2293. A similar point was made in BGH 4 StR 142/12 (Bundesgerichtshof, 25 September 2012) where the German Court distinguished between migrant smuggling which involves illegal entry and situations where migrant enters lawfully but has no permit to work.

29  A Schloenhardt and KL Stacey, ‘Assistance and Protection of Smuggled Migrants: International Law and Australian Practice’ 35 Sydney Law Review (2013) 53, 66.

30  (2012) 36 Victoria 402, 405 [50] interpreting section 233C of the Migration Act.

31  Article 197a of the Criminal Code.

32  Section 25 of the Immigration Act 1971. See Kapoor and Others [2012] EWCA Crim 435.

33  UNGA, ‘Report of the Ad Hoc Committee on the Elaboration of a Convention against Transnational Organized Crime on the work of its first to eleventh sessions; Addendum: Interpretative notes for the official record (travaux préparatoires) of the negotiations for the United Nations Convention against Transnational Organized Crime and the Protocols thereto’, UN doc A/55/383/Add.1, 3 November 2000, para 88.

34  Council Directive 2002/90/EC of 28 November 2002 defining the facilitation of unauthorised entry, transit and residence, OJ L 32/17, 12 May 2002. See also Council Framework Decision 2002/946/JHA of 28 November 2002 in the strengthening of the penal framework to prevent the facilitation of unauthorized entry, transit and residence, OJ L 328/1, 5 December 2002.

35  See Gallagher and David, above n 13, 392 et seq; A Schloenhardt and H Hickson, ‘Non-Criminalization of Smuggled Migrants: Rights, Obligations, and Australian Practice under Article 5 of the Protocol against Smuggling of Migrants by Land, Sea, and Air’ 25 International Journal of Refugee Law (2013) 39, 56, commenting on the Australian offence.

36  [2015] 3 SCR 754, para 44, 85.

37  See D Dzananovic, ‘European Courts and Citizens Struggle to do “What’s Right” Amidst Reactionary Migration Law and Policy’, Center for Migration Studies, Radbouts University, available at <http://cmsny.org/publications/dzananovic-eu-courts-and-citizens/> visited 28 April 2017.

38  Code de l’Entrée et du Séjour des Étrangers et du Droit d’Asile (Code on the entry and stay of foreigners and the right of asylum) (CESEDA), Article L622-1.

39  German Law on the residence, employment and the integration of foreigners in the federal territory, Bundesgesetzblatt Teil I, 2014-12-31, vol. 64, 2439, section 96.

40  Case 14Os91/12g (OGH, 25 September 2012). This contrasts with the Australian decision in Ahmadi v The Queen (2011) 254 FLR 174 where a conviction was confirmed despite the motive being to help the migrants out of religious conviction because of the absence of such a requirement in Australian law.

41  Legislative Guide, above n 24, 343–45.

42  Interpretative Notes, above n 33, para 93.

43  Legislative Guide, above n 24, 342–43.

44  In terms of article 3(a).

45  D McClean, Transnational Organized Crime: A Commentary on the UN Convention and its Protocols (Oxford: OUP, 2007), 395.

46  See Kadem v The Queen (2002) 129 A Crim R 304, [2002] WASCA 133, discussed in Schloenhardt and Hickson, above n 35, 58.

47  See Schloenhardt, above n 10, 181–82.

48  Court of First Instance of Thesprotia (in Council), Case Reference 16/2008, in a prosecution under article 88(1)(c) of Law 3386/2005, available at <https://www.unodc.org/cld/case-law-doc/migrantsmugglingcrimetype/grc/court_of_first_instance_of_thesprotia_in_council_162008.html?lng=en&tmpl=sherloc> visited 19 April 2017.

49  Resolucion 807/2016, of 27 October 2016, available at <https://www.unodc.org/cld/case-law-doc/migrantsmugglingcrimetype/esp/2016/resolucion_8072016.html?lng=en&tmpl=sherloc> last visited 19 April 2017.

50  See Schloenhardt, above n 10, 182.

51  Section 236B.

52  Heydarkhani v The Queen (2014) 240 A Crim R 195, 203, paras 52–53.

53  Legislative Guide, above n 24, 351.

54  For the background on the controversy surrounding introduction of these human rights concerns see Schloenhardt and Stacey above n 29, 56–58.

55  App No 27765/09, ECtHR 23 February 2012.

56  See Schloenhardt and Hickson, above n 35, 44.

57  Law no 82 for 2016.

58  See McClean, above n 45, 389.

59  As was the situation in the Australian case SRBBBB and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1066, [19] discussed in Schloenhardt and Hickson, above n 35, 50.

60  Article 31.

61  See Schloenhardt and Hickson, above n 35, 47.

62  See ibid, 48 et seq.

63  In terms of sections 178 and 179 of the Migration Act.

64  Interpretative notes, above n 30, 20, para 109.

65  See Schloenhardt and Stacey, above n 29, 59.

66  24 April 1963, 596 UNTS 261, in force 19 March 1967.

67  See articles 25–27 of Egypt’s Law on Combating Illegal Migration and Smuggling of Migrants, Law no 82 of 2016, which speaks specifically of facilitating ‘safe return’.

68  See Schloenhardt and Stacey, above n 29, 65, and authors cited there.

69  See generally L Weber, ‘Policing the Virtual Border: Punitive Preemption in Australian Offshore Migration Control’ 34(2) Social Justice (2007) 108.

70  Australian Human Rights Council, An Age of Uncertainty: Inquiry into the Treatment of Individuals Suspected of People Smuggling Offences Who Say That They Are Children (2012), 48, available at <https://www.humanrights.gov.au/sites/default/files/document/publication/an_age_of_uncertainty.pdf> visited 18 April 2017.

71  Schloenhardt and Craig, above n 9, 50.

72  ibid, 58.