The migrant smuggling protocol and the need for a multi-faceted approach : inter-sectionality and multi-actor cooperation

Abstract

Migrant smuggling is at the forefront of news from the Mediterranean. The European Union (eu)’s response to the tragedies since April 2015 has focused on being harsh on smuggling and combatting migrant smugglers. This has brought to the fore the Smuggling Protocol and its relevance for addressing the current ‘refugee and migration crisis’. In line with the ‘comprehensive approach’ advocated in this volume, the central claim made in this chapter is that maritime migrant smuggling is a multi-faceted phenomenon which requires action at various levels, addressing various, sometimes conflicting, concerns and interests. In this light, it is argued that the Migrant Smuggling Protocol, although laudable as an initiative in combating organised crime, is alone insufficient to deal with issues of maritime migration on a global level and leaves much to be desired in terms of regional arrangements for cooperation. The law enforcement aspect is only one of the various facets required to adequately regulate and suppress maritime migrant smuggling. This is apparent when one examines issues of context and necessity, of definition and scope. The discussion engages with the ‘human element’ of migrant smuggling, arguing for an approach to combatting smuggling that respects the human rights of all involved. Such an approach requires a balance between the various priorities in the management of State borders; controlling irregular migration, combatting maritime migrant smuggling and protecting the rights of persons onboard, including, but not limited to, the principle of non-refoulement and the right to seek asylum. Central to both law enforcement activities and the human element of migrant smuggling is the need for international cooperation and the requirement that efforts to combat migrant smuggling do not provide a pretext for circumventing States’ human rights obligations. A running theme throughout the discussion is the inter-sectionality of the concept, that is, the need to read and apply the Smuggling Protocol in the light of the various other legal obligations that converge in the context of international maritime migration. This spills over into other areas as well, including human rights law and the law of the sea. Migrant smuggling cannot be effectively tackled from any one angle alone. We are conscious of the context in which this chapter is being written. As we write, thousands of persons are crossing the Mediterranean fleeing conflicts and human rights violations. The eu has proposed measures to combat smuggling within a broader framework of measures intended to fight undocumented migration. EU Member States, Frontex, and ‘private’ search and rescue providers are actively engaged in rescue operations across the Mediterranean, the eu has agreed on a relocation scheme for migrants after much resistance by a number of Member States yet progress in its implementation remains critically slow. A contentious deal was struck with Turkey that allows for the repatriation of individuals crossing to Greece. The flows are no longer focused primarily on the Mediterranean or even the Aegean, but also on the land borders, not least the Serbian-Hungarian border. This chapter is organised as follows: Section 1 provides an introduction to the various concepts at play, as well as differentiating migrant smuggling from other crimes and offences it is often conflated with. It then briefly introduces the context in which efforts in combatting migrant smuggling are being implemented. Section 2 introduces the Smuggling Protocol, as the key international instrument regulating global efforts against the crime. In line with the theme of the present volume, the focus remains on maritime smuggling, as well as a discussion of how the Protocol addresses the human element of maritime smuggling. Section 3 deals with the issue of inter-sectionality and multi-actor cooperation, whilst Section 4 focuses on the European Union’s current response within the context of the broader ‘refugee and migrant crisis’. Section 5 concludes with some overarching reflections.