The migrant smuggling protocol and the search for a rights-based response to irregular maritime migration

Abstract

Every year thousands of persons resort to the services of migrant smugglers to cross seas in order to seek asylum or to pursue their dreams. Maritime migrant smuggling is considered as a growing transnational organised crime, which poses a serious threat to the global maritime security and a challenge to the longstanding State prerogative to decide who enters its territory. States have attempted to suppress this phenomenon by increasing border security and emphasising their right to control irregular maritime migration. However, at the heart of this illegal activity lie persons, who are exposed to very risky journeys and blatant breaches of their most fundamental human rights. Smuggled migrants, even though they have consented to migrate illegally, have important human rights which have to be safeguarded, irrespective of the illegality which this practice is surrounded with. This thorny conflict between State security interests and human rights principles is at the heart of this thesis. The focus of this thesis lies in identifying the ways how the international community can respond to migrant smuggling through a rights-based approach. The Migrant Smuggling Protocol is the specific international legislative instrument which tackles this crime, and it sets the vital principles which are crucial in its suppression. However the Protocol needs to be accompanied with the fulfilment of important State duties, deriving from maritime law, human rights law and refugee law, together with developing responses which are in line with the attendant human rights considerations, notably the non-refoulement protection. A number of recommendations are also made, for the local and the international order, which can promote a rights-based response to maritime migrant smuggling. The overriding challenge remains in establishing effective State cooperation which works towards achieving operative solidarity in sharing the burdens of migrant smuggling.