Published in January 2019.
This module is a resource for lecturers
Non-criminal law relevant to smuggling of migrants
Smuggling of migrants, as defined in Module 1, is a form of transnational organized crime and is often managed as a business. Many areas of law are relevant to the prevention and disruption of smuggling of migrants, including, inter alia, criminal law, human rights law and labour law. The application of criminal law is obvious. Addressing migrant smuggling necessarily includes criminalizing smuggling conduct, in accordance with article 6 of the Protocol against the Smuggling of Migrants. Those who commit smuggling offences should be prosecuted and punished.
As highlighted in Module 2, human rights law is essential in ensuring the rights of smuggled migrants are respected, not only as an objective in and of itself, but also to incentivize and facilitate the cooperation of smuggled migrants and other witnesses with national authorities. It is, furthermore, a means of addressing demand for the services offered by smugglers.
Labour laws are also critical in addressing the demand for smuggling services. Many smuggled migrants, as well as irregular migrants who are not smuggled, are employed in the underground economies of destination countries. Properly regulating the labour market and targeting those who take advantage of the vulnerable situation of smuggled migrants, namely to reduce production costs and increase profits, will disrupt the business model of organized criminal groups dedicated to smuggling of migrants.
As noted in Module 1, the legal framework against migrant smuggling needs to incorporate safeguards to ensure that those facilitating illegal entry for humanitarian or solidarity reasons, without any purpose to obtain a financial or other material benefit, should be excluded from the application of smuggling offences as defined in the Protocol against the Smuggling of Migrants. Where States still deem it appropriate to sanction this behaviour, administrative sanctions, outside the realm of criminal law, might be the response chosen.
Laws regarding telecommunications and privacy also have a role to play. They may, for example, be used to prevent the widespread dissemination of advertising for migrant smuggling services, or may be used to facilitate the sharing of data relating to criminal conduct with law enforcement bodies. The application of these laws is noted in Module 3 and it is further analysed in Module 14.
Many aspects of migration law are also relevant, insofar as it aids in preventing, detecting or suppressing smuggling of migrants. For instance, opening up additional avenues for legal migration might lead to a reduction in the demand for smuggling services (see Global Compact for Safe, Orderly and Regular Migration). In addition, because some smuggled migrants are irregular migrants, migration law is relevant to suppressing smuggling by deterring irregular migration. It will likely define, to a significant extent, the entitlements of irregular migrants (or lack thereof), relevant procedures following detection, as well as measures designed to control irregular migration at borders.
Refugee law will not apply to all smuggled migrants, as not all smuggled migrants are refugees or otherwise in need of international protection. Yet, as noted in Module 5, sometimes the services of smugglers are the only available avenue, and indeed the last resort, for refugees and other individuals entitled to international protection. The availability of such protection and the prohibition of refoulement are fundamental principles of international customary law, binding on all States.
Importantly, smuggling of migrants does not occur in a vacuum. It is commonly linked to several enabling elements, such as the presence of well-structured organized criminal groups with sophisticated resources, political and economic factors in countries of origin, a lack of regular avenues for migration and demand for cheap labour in countries of destination. These various factors may each be addressed by certain areas of law, which may in some cases interact. For example, criminal law can target organized criminal groups, an effective refugee system can address some of the demand for smuggling services, while migration and labour law combined may work to open up regular pathways for migration. It should be borne in mind that none of the above-referenced areas of law are by themselves effective in combatting migrant smuggling. Rather, only a coherent, holistic approach that combines different areas of law, policies and practices can ultimately be successful.
Next: Administrative approach
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