Assistance and Protection of Smuggled Migrants

Whilst the emphasis of the Protocol against the Smuggling of Migrants by Land, Sea and Air is on criminalisation of migrant smuggling, and mutual assistance between States Parties, it does create an obligation to ‘afford appropriate assistance’ to smuggled migrants.  Several provisions under the Protocol identify the minimum standards of protection and assistance States Parties should provide to smuggled migrants.

Assistance to smuggled migrants

Article 16(2) requires States Parties to protect smuggled migrants from physical violence.  Article 16(3) calls on States Parties to ‘afford appropriate assistance to migrants whose lives or safety are endangered by reason of being [smuggled migrants]’.  Article 16(4) recognizes the particular vulnerability of women and children.  The Convention against Transnational Organized Crime also includes a number of provisions requiring States Parties to take measures to assist and protect victims, and to cooperate with other enforcement authorities to offer protection to victims and witnesses.

These provisions under the Protocol and the Convention do not confer any rights upon smuggled migrants, nor do they create new obligations on States Parties beyond those already recognised in international law. Whilst the content of the assistance provisions in the Protocol and Convention are mandatory, the method of implementation remains within the ambit of States’ legislative and procedural discretion.

Protection of the rights of smuggled migrants

Article 16(1) contains a general statement to protect the human rights of smuggled migrants:

In implementing this Protocol, each State Party shall take, consistent with its obligations under international law, all appropriate measures, including legislation if necessary, to preserve and protect the rights of persons who have been the object of conduct set forth in article 6 of this Protocol as accorded under applicable international law, in particular the right to life and the right not to be subjected to torture or other cruel, inhuman or degrading treatment or punishment.

While this paragraph refers to specific rights such as life and protection from torture, cruel, inhuman or degrading treatment or punishment, Article 16(1) is generally seen as emphasizing the protection of all fundamental human rights and freedoms as accorded in relevant international treaties, especially the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social, and Cultural Rights.

Article 16(5) also implies an obligation on States Parties to facilitate communication between a smuggled migrant and their relevant consulate, especially in situations in which the receiving country detains smuggled migrants because of their illegal entry or to facilitate their removal.  Reflecting provisions under the Vienna Convention on Consular Relations, this encompasses assistance measures such as informing the migrant of their right to contact their relevant consulate, notification of a migrant’s request to do so, and facilitation of this communication, in person or otherwise.

Refugee and human rights law

Article 19 of the Protocol against the Smuggling of Migrants preserves the rights of smuggled migrants established under international refugee and human rights law, independently from the Convention and the Protocols.  Article 19(1) draws particular attention to the specific obligations stemming from the Convention and Protocol relating to the Status of Refugees:

Nothing in this Protocol shall affect the other rights, obligations and responsibilities of States and individuals under international law, including international humanitarian law and international human rights law and, in particular, where applicable, the 1951 Convention and the 1967 Protocol relating to the Status of Refugees and the principle of non-refoulement as contained therein.

The Refugee Convention places obligations on States Parties to provide refuge for persons who fear persecution in another country.  The key requirement is that a refugee must neither be expelled nor returned (‘refouled’) to ‘the frontiers of territories where his [or her] life or freedom would be threatened’, pursuant to Article 33 of the Refugee Convention.  A country is in breach of this non-refoulement obligation if its authorities fail to properly identify and protect persons who are entitled to the benefits of refugee status.

This non-refoulement obligation also arises from a number of other international human rights treaties.  Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment expressly prohibits return of a person to places ‘where there are substantial grounds for believing that he [or she] would be in danger of being subjected to torture’.  The obligation is also implicit in Articles 6 and 7 of the International Covenant for Civil and Political Rights, and Articles 6 and 37 of the Convention of the Rights of the Child.

Article 19 further ensures the unimpeded operation of international law generally, including the rights, obligations, and responsibilities provided for in international instruments.  Given the limited protection and assistance measures in the Protocol against the Smuggling of Migrants, the savings clause is integral to safeguarding the rights of smuggled migrants.  In addition, Article 19(2) seeks to ensure that domestic laws pertaining to migrant smuggling are not designed or applied in a manner that discriminates against smuggled migrants or illegal residents by reason of their status as such.