The International Law of Migrant Smuggling

Abstract

Whether forced into relocation by fear of persecution, civil war, or humanitarian crisis, or pulled toward the prospect of better economic opportunities, more people are on the move than ever before. Opportunities for lawful entry into preferred destinations are decreasing rapidly, creating demand that is increasingly being met by migrant smugglers. This companion volume to the award-winning The International Law of Human Trafficking presents the first-ever comprehensive, in-depth analysis into the subject. The authors call on their experience of working with the UN to chart the development of new international laws and to link these specialist rules to other relevant areas of international law, including law of the sea, human rights law, and international refugee law. Through this analysis, the authors explain the major legal obligations of States with respect to migrant smuggling, including those related to criminalization, interdiction and rescue at sea, protection, prevention, detention, and return.

The Humanitarian War Against Migrant Smugglers at Sea

“…the border violence that characterizes visa regulations and access to international protection. As Anna Gallagher and Fiona David (:12) remark, “the politics of migrant smuggling are also, very much, the politics of asylum” since in order to access Europe, asylum seekers have to resort to being ferried by smugglers.…”

“…The Protocol is part of the “UN Convention against Transnational Organized Crime” (adopted by the General Assembly resolution 55/25 on 15 November 2000) where the smuggling economy is officially characterized as a transnational crime activity. During the 2000s, the EU started planning to fight the migrant smuggling economy (Gallagher and David ).…”

Bifurcation of people, bifurcation of law: externalization of migration policy before the EU Court of Justice

“…But humanitarian actors are involved as well-think of the UNHCR, the Red Cross and the Jesuit Refugee Service running asylum-seeker reception in the Balkans and elsewhere; non-governmental organizations (NGOs) such as MSF engaging in search and rescue in the Mediterranean in a way that is very similar to that of the Italian coast guard and navy (Cuttitta 2014(Cuttitta , 2016; the way in which European states seek to instrumentalize third countries so as to do their border work (Alpes 2015). 3. securitization: policies rely increasingly on criminal sanctions, high-tech equipment (Dijstelbloem and Meijer 2009;Wisman 2012) and militarized Bifurcation of people, bifurcation of law 217 means; examples are criminal sanctions against airlines (Scholten 2015), against human smuggling and trafficking (Palermo Protocols) (Gallagher and David 2014), against employers (Verschueren 2016), the use of huge databases (Brouwer 2008), reconceptualizing migration as a security issue (Zureik and Salter 2005;Baldaccini and Guild 2006;Guild and Minderhoud 2006;Mallia 2009), as well as the interoperable radar, infrared and video systems assembling information for use by air force, navy and coast guard (such as Eurosur) (Rijpma and Vermeulen 2015); the deployment of EUNavForMed (aka Operation Sophia) on the basis of UNSC Resolution 2240(2015) of 9 October 2015 (Butler and Ratcovich 2016) and the deployment of NATO in the Aegean Sea. 1 Together, these three changes in migration law and policy have led to a shift from migration control (reactive, orientation on individuals) to migration management (proactive, orientation on populations) constituting a new migration regime Pecoud 2010, 2012).…”

The 2015 Andaman Sea Boat ‘Crisis’: Human Rights and Refugee Law Considerations

“…42 There can be little doubt that interdiction of a ship which involves conduct such as boarding the vessel or pushback operations fall within this test. 43 Coercive actions that threaten or result in loss of life whether deliberate (such as the pushback of an unseaworthy vessel) or accidental would appear to be in violation of the positive obligation attached to the right to life in Article 6. Where migrants are subject to deteriorating conditions on board, pushback operations could also be a violation of Article 7.…”