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The smuggling of migrants involves the movement of human beings whose life, freedom, and safety are frequently at risk and who are vulnerable to exploitation by their smugglers and others.  In many instances, smuggled migrants are found in situations of emergency, exposed to the elements, dehydration, suffocation, and drowning.  When apprehended by authorities, they may be in urgent need of shelter, food, and basic medial care.  Smuggled migrants are particularly vulnerable if they reside in the host country illegally or clandestinely and if they do not speak the local language and are unfamiliar with local procedures and customs.  

For these reasons, it is important that international and domestic frameworks protect the fundamental rights and liberties of smuggled migrants, and that any action taken against the smuggling of migrants adheres to the principles of international human rights law.

Assistance and Protection Under International Law

Whilst the emphasis of the Protocol Against the Smuggling of Migrants by Land, Sea and Air is on mutual assistance between States Parties in the criminalisation of migrant smuggling, 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.  TheConvention 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 humanitarian law. Whilst the content of the obligation is mandatory, the method by which it is achieved remains within the ambit of the State’s legislative and procedural discretion.

Protection of the rights of smuggled migrants

Article 16(1) contains a general statement to protect the basic 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

Articles 2 and 19 of the Protocol Against the Smuggling of Migrants operate to preserve the rights of smuggled migrants established under international refugee and human rights law, independently from the Convention and the Protocols.  Article 2 identifies the protection of the rights of smuggled migrants as complementary to the criminal justice purpose of the Protocol, whilst Article 19 operates as a saving clause.

Article 19(1) recognizes existing international humanitarian law concerning migrant or illegal residents who are also asylum seekers.  The paragraph draws particular attention to the specific obligations stemming from theConvention 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 Refugeesand 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’: 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, including Article 7 of the International Covenant for Civil and Political Rights and Article 45 of the 1949 Geneva Convention relative to the Protection of Civilians in Time of War.  Also, the 1984 Convention against Torture and other Cruel or Degrading Treatment or Punishment states in Article 3(1) that no one shall be returned to a country ‘where there are substantial grounds for believing that he [or she] would be in danger of being subjected to torture’.  A similar provision can be found in Article 22 of the 1989 Convention of the Rights of the Child.  Although not binding, Article 3(1) of the 1967 Declaration on Territorial Asylum and Article 14 of the Universal Declaration of Human Rights provide that every person has a right to seek and enjoy in other countries asylum from persecution, respectively.

Article 19 of the Protocol against the Smuggling of Migrants seeks to ensure that the obligations under relevant international treaties are not infringed by any provisions contained in the Protocol (in countries that are States Parties to the Protocol as well as the other international instruments).  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.

Assistance and Protection of Smuggled Migrants in Australia

Australia has no specific, separate legislative or administrative regime to provide assistance and protection to smuggled migrants; in fact, in Australia, use of the term smuggled migrant is not commonplace at all.  Australian law refers to the phenomenon of smuggling of migrants as ‘people smuggling’ and relevant legislative provisions are limited to a range of criminal offences in Division 73 of the Criminal Code (Cth).  Instead, persons brought to Australia with the assistance of migrant smugglers (or ‘people smugglers’) are generally referred to as unauthorised arrivals or, in reference to s 14 of the Migration Act 1958 (Cth), as unlawful non-citizens, i.e. persons with no valid travel authority to enter into (orremain in) Australia. 

A research paper completed by the Migrant Smuggling Working Group in January 2012 conceptualises smuggled migrants in the Australian context and analyses the assistance and protection afforded to them, especially to those accommodated in various forms of immigration detention.  The paper also assesses Australian practice against the standards articulated in the Protocol against the Smuggling of Migrants and other international guidelines.

The full report has been published in: Andreas Schloenhardt & Kate Stacey ‘Assistance and Protection of Smuggled Migrants: International Law and Australian Practice’ (2013) Sydney Law Review (forthcoming)