Illegal migration: Legal Challenges and
Perspectives in International Law
Elda Belja
IMO International Maritime Law Institute
The GoldenVenture
The Golden Venture freighter, overflowing with illegal immigrants,
after running aground off the Rockaway peninsula June 6, 1993.
The GoldenVenture
• 286 Chinese migrants crowded ‘like animals’ had paid (or
committed to pay) up to $40,000;
• vessel deliberately run aground off the cost of NewYork;
• 10 died of drowning or hypothermia, and most survivors
deported back to China;
• several migrants detained for years in US jails;
• few received asylum;
• more than 20 were prosecuted for their involvement in the
incident including ‘Sister Ping’, the alleged mastermind of ‘a
conglomerate built upon misery and greed’ who had
amassed over $ 40 millions from migrant smuggling.
The Issue
• People seem prepared to take huge risks and pay extortionist
prices demanded of them by professional smugglers to flee
their countries;
• With Governments tightening their border controls and the
increased difficulty of gaining access to the destination
countries, migrants are forced to make use of criminal
organizations to achieve their aims;
• They are usually transported in unseaworthy vessels, often in
atrocious conditions, exposed to life threatening risks,
without adequate provisions, on long voyages which result in
many fatalities every year;
• The deaths are caused by a number of scenarios, including
drowning, suffocation, starvation, and even murder.
The Issue
The crime of migrant smuggling by sea needs to consider a
number of inter-related issues:
• The interdiction of vessels carrying migrants usually
occurs either unilaterally or under treaties;
• Due to the subject of the crime being people, as
opposed to commodities as in other maritime crimes,
this necessarily incorporates considerations of human
rights, humanitarian law and refugee law into the fold;
• Since unseaworthy vessels are usually used, obligations
regarding the rescue of vessels in distress at sea and
safety of life at sea must also be considered.
The Response
The international community has sought to respond to this
threat through various means including the use of a number
of multilateral and bilateral initiatives. This presentation
reviews briefly:
• The United Nations Convention on the Law of the Sea
(UNCLOS);
• The main instrument addressing the threat of migrant
smuggling by sea, i.e. the Protocol against the Smuggling
of Migrants by Land, Sea and Air (Migrant Smuggling
Protocol);
• Regional approaches.
UNCLOS
Territorial Sea
Passage of a foreign ship shall be considered to be prejudicial to the
peace, good order or security of the coastal State if in the territorial
sea it engages in any of the following activities:
(g)the loading or unloading of any commodity, currency or person contrary to
the customs, fiscal, immigration or sanitary laws and regulations of the
coastal State; (art. 19 (2))
A coastal State is entitled to enact laws and regulations, in
conformity with international law, regarding innocent passage
through the territorial sea, in order to prevent infringement of
immigration laws (art. 21(1) (h)).
UNCLOS
Article27
1.
The criminal jurisdiction of the coastal State should
not be exercised on board a foreign ship passing through the
territorial sea to arrest any person or to conduct any
investigation in connection with any crime committed on board
the ship during its passage, save only in the following cases:
(a)
if the consequences of the crime extend to the coastal
State;
(b)
if the crime is of a kind to disturb the peace of the
country or the good order of the territorial sea;
UNCLOS
Contiguous Zone
1.
In a zone contiguous to its territorial sea, described as
the contiguous zone, the coastal State may exercise the control
necessary to:
(a)
prevent infringement of its customs, fiscal,
immigration or sanitary laws and regulations within its territory
or territorial sea;
(b)
punish infringement of the above laws and regulations
committed within its territory or territorial sea. (art. 33)
UNCLOS
High Seas
1. Except where acts of interference derive from powers
conferred by treaty, a warship which encounters on the
high seas a foreign ship, other than a ship entitled to
complete immunity in accordance with articles 95 and
96, is not justified in boarding it unless there is reasonable
ground for suspecting that:
(d) the ship is without nationality; (art. 110)
Migrant Smuggling Protocol
• The main instrument addressing the threat of migrant
smuggling by sea is the Migrant Smuggling Protocol;
• Not an independent treaty but a Protocol to the United
Nations Convention against Transnational Organized
Crime;
• Several of the provisions of the Convention apply mutatis
mutandis to the Protocols making them complementary
and thus setting out the necessary international
cooperation for the suppression and criminalization of
migrant smuggling.
United Nations Convention
Transnational Organized Crime
against
The Convention represents a major step forward in the
fight against transnational organized crime and signifies
the recognition by Member States of the seriousness of
the problems posed by it, as well as the need to foster
and enhance close international cooperation in order to
tackle those problems.
United Nations Convention against
Transnational Organized Crime
States that ratify this instrument commit themselves to taking a
series of measures against transnational organized crime,
including:
• The creation of domestic criminal offences (participation in an
organized criminal group, money laundering, corruption, and
obstruction of justice);
• The adoption of new and sweeping frameworks for extradition,
mutual legal assistance and law enforcement cooperation; and
• The promotion of training and technical assistance for building
or upgrading the necessary capacity of national authorities.
Migrant Smuggling Protocol
• It deals with the growing problem of organized criminal
groups who smuggle migrants, often at high risk to the
migrants and at great profit for the offenders.
• The Protocol aims at preventing and combating the
smuggling of migrants, as well as promoting cooperation
among States parties, while protecting the rights of smuggled
migrants and preventing the worst forms of their
exploitation which often characterize the smuggling process.
Migrant Smuggling Protocol
Article 3(a)‘Smuggling of migrants’ shall mean the
procurement, in order to obtain, directly or indirectly, a
financial or other material benefit, of the illegal
entry of a person to a State Party of which the person is
not a national or a permanent resident.
Article 3(b) ‘Illegal entry’ shall mean crossing borders
without complying with necessary requirements for legal
entry into the receiving State.
Migrant Smuggling Protocol
Article 4 This Protocol shall apply, except as otherwise stated
herein, to the prevention, investigation and prosecution of the
offences established in accordance with Article 6 of this
Protocol, where those offences are transnational in nature
and involve an organized criminal group, as well as to the
protection of victims of the rights of persons who have been the
object of such offences.
*
The terms organized criminal group and offences which
are transnational in nature are defined in the main Convention.
Migrant Smuggling Protocol
Article 5 specifically provides that migrants shall not
become liable to criminal prosecution under the
Protocol for the fact of having been the object of conduct
set forth in Article 6.
6 (4) Nothing in this Protocol shall prevent a State Party
from taking measures against a person whose conduct
constitutes an offence under its domestic law.
Migrant Smuggling Protocol
Article 6 Criminalization
When committed intentionally and in order to obtain, directly or
indirectly, a financial or other material benefit, the following are
to be considered as criminal offences:
(a) The smuggling of migrants;
(b) When committed for the purpose of enabling the smuggling of
migrants:
(i) Producing a fraudulent travel or identity document;
(ii) Procuring, providing or possessing such a document;
(c) Enabling a person who is not a national or a permanent resident to
remain in the State concerned without complying with the necessary
requirements for legally remaining in the State by the means mentioned
in subparagraph (b) of this paragraph or any other illegal means.
Migrant Smuggling Protocol
The Protocol then also obliges State Parties to criminalize
inchoate offences related to those in Article 6(1), such as
the attempting to commit an offence, participating as an
accomplice, or inciting others to commit an offence listed,
as well as establishing the necessary measures providing for
aggravating circumstances to the crimes.
Smuggling of Migrants by Sea
Part II of the Protocol is dedicated to Smuggling of Migrants
by Sea
Article 7 Cooperation
States Parties shall cooperate to the fullest extent possible to
prevent and suppress the smuggling of migrants by sea, in
accordance with the international law of the sea.
Smuggling of Migrants by Sea
Article 8 Measures against the smuggling of
migrants by sea
If a flag State has reasonable grounds to believe that a vessel
flying its flag, claiming its registry without authorization or
is without nationality and is engaged in the smuggling of
migrants by sea, the flag State may request the assistance of
other State Parties in order to prevent the use of the vessel
for migrant smuggling. State Parties are under an obligation
to give such assistance as is possible within their means.
Smuggling of Migrants by Sea
Article 8(2) permits a State Party which has reasonable
grounds to suspect that a vessel flying the flag of another
State Party is engaged in migrant smuggling by sea, to
request confirmation of registry, and upon confirmation
request authorization to take appropriate measures necessary.
These may ‘inter alia’ include authorization from the flag
State to board and search the vessel, and if evidence of
migrant smuggling by sea is found, to take any suitable
actions necessary with respect to the vessel, the cargo and the
people on board.
Smuggling of Migrants by Sea
State Parties must respond to any request for a confirmation
of registry, a determination if the vessel is entitled to fly its
flag, or any authorization requested by another State Party
expeditiously according to Article 8(4).
A State Party that has taken any measure in accordance with
paragraph 2 of Article 8 shall promptly inform the flag State
concerned of the results of that measure.
Smuggling of Migrants by Sea
Para 5 retains the principle of exclusive flag State
jurisdiction while endeavouring to facilitate cooperation
between the requesting State and the flag State. It grants
the flag State the right to subject any authorization given
to conditions which must be mutually agreed.
Smuggling of Migrants by Sea
Para 7 allows a State Party that has reasonable grounds to
suspect that a vessel is engaged in the smuggling of migrants
by sea and is without nationality or may be assimilated to a
vessel without nationality to board and search the vessel. If
evidence confirming the suspicion is found, that State Party
shall take appropriate measures in accordance with
relevant domestic and international law.
Smuggling of Migrants by Sea
Article 9 Safeguard
Specific safeguard provisions are found in Article 9 of the
Protocol which require the boarding State to ensure the humane
treatment and safety of persons aboard and that any measures
taken are environmentally sound.
Compensation will be due for any loss or damage that occurs
during any measures taken under Article 8.
Para 3 ensures that the boarding procedure remains in
conformity with the international law of the sea and preserves
the general principle of the primacy of flag State authority.
Smuggling of Migrants by Sea
Part III of the Migrant Smuggling Protocol deals with the
issues of prevention, cooperation and other measures. It
implements several necessary support provisions including
provisions related to information, border measures, security
and control of documents, legitimacy and validity of
documents, training and technical cooperation, as well as
considering the conclusion of bilateral and regional
arrangements to combat migrant smuggling by sea and
enhance the provisions of this Protocol, among others.
EU Action Plan against Migrant Smuggling
(2015 - 2020)
The European Agenda on Migration, which was adopted by the
European Commission on 13 May 2015, identified the fight
against migrant smuggling as a priority, to prevent the
exploitation of migrants by criminal networks and reduce
incentives to irregular migration. The Agenda set the goal to
transform migrant smuggling networks from 'low risk, high
return' operations into 'high risk, low return' ones.
EU Action Plan against Migrant Smuggling
(2015 - 2020)
The European Agenda on Security, adopted by the Commission
on 28 April 2015, also singled out cooperation against the
smuggling of migrants inside the EU and with third countries as
a priority in the fight against organized crime networks.
The Action Plan against Migrant Smuggling sets out the specific
actions necessary to implement the two Agendas in this area, and
incorporates the key actions already identified therein.
EU Action Plan against Migrant Smuggling
(2015 - 2020)
Revision of EU Legislation on Migrant Smuggling
In 2002, the EU adopted rules to crack down on migrant
smuggling, the so-called 'Facilitators Package' which is
composed of Directive 2002/90/EC establishing a common
definition of the offense of facilitation of unauthorised entry,
transit and residence, and Framework Decision 2002/946/JHA
on the strengthening of the penal framework to prevent the
facilitation of unauthorised entry, transit and residence.
EU Action Plan against Migrant Smuggling
(2015 - 2020)
Revision of EU Legislation on Migrant Smuggling
The Commission however will make, in 2016, proposals to
improve the existing EU legal framework to tackle migrant
smuggling, which defines the offence of facilitation of
unauthorized entry and residence, and strengthen the penal
framework. It will seek to ensure that appropriate criminal
sanctions are in place while avoiding risks of criminalisation of
those who provide humanitarian assistance to migrants in
distress.
EU Action Plan against Migrant Smuggling
(2015 - 2020)
Identifying, capturing and disposing of vessels
To prevent and clamp down on migrant smuggling by sea,
systematic efforts will be undertaken to identify, capture and
dispose of vessels intended to be used by smugglers. A list of
suspicious vessels likely to be used in the Mediterranean will be
set up. This will include, for instance, registered vessels at the
end of their lifetime and foreseen for scrapping. The
Commission and the relevant EU Agencies, in particular
Frontex, will provide to the Member States financial and
technical support to tow boats to the shores and scrap them.
EU Action Plan against Migrant Smuggling (2015 2020)
Other Specific Actions
• IMPROVED GATHERING AND SHARING
INFORMATION;
OF
• The Commission will evaluate, in 2016, and consider a possible
revision of the existing EU legislation on Information Liaison
Officers to enhance their ability to obtain and share relevant
information.
• ENHANCED PREVENTION OF SMUGGLING AND
ASSISTANCE TOVULNERABLE MIGRANTS;
• The Commission will launch a consultation, in 2016, and impact
assessment on the possible revision of Directive 2004/81/EC on
residence permits issued to victims of trafficking in human
beings and to smuggled migrants cooperating with authorities.
EU Action Plan against Migrant Smuggling (2015 2020)
Other Specific Actions
• STRONGER COOPERATIONWITH THIRD COUNTRIES;
• Close co-operation with third countries along the entire
smuggling route is essential for targeting migrant smuggling and
for ending impunity through effective investigation and
prosecution.
• The EU aims to encourage partner countries to become Parties
to the Convention on Transnational Organised Crime and the
Migrant Smuggling Protocol. To this end, the Commission will
provide funding for projects supporting third countries in
enacting legislation in line with the Protocol.
Regional Strategy for Combating Trafficking in
Persons and Smuggling of Migrants 2015-2020
• The Central and West Africa regions are considered points of
origin, transit and destination for victims of human trafficking
and smuggling of migrants;
• UNODC Executive Director Yury Fedotov highlighted the low
conviction rate reflecting the impunity still associated with
these crimes and called for a global synergy among
stakeholders, whether they are members of Governments,
parliamentarians, prosecutors or representatives from civil
society and the private sector.
• The new Regional Strategy aims to assist the affected countries
in dismantling the criminal networks while at the same time
protecting the victims of these crimes.
Regional Strategy for Combating Trafficking in
Persons and Smuggling of Migrants 2015-2020
It includes the following goals:
• Improving national and regional coordination and cooperation;
• Enhancing information and data, and ensuring this is kept upto-date;
• Strengthening the involved States' legal frameworks and public
policies;
• Building the capacity of the region's criminal justice systems;
• Providing support to victims of human trafficking and
smuggling of migrants; and
• Raising awareness on these issues in the region.