Skip to main content
×
×
Home

Barriers to Ratification of the United Nations Protocol Against the Smuggling of Migrants

  • Andreas SCHLOENHARDT (a1) (a2) and Hamish MACDONALD (a3)
Abstract

The United Nations Protocol Against the Smuggling of Migrants by Land, Sea and Air sets out an ambitious international approach to prevent and combat the smuggling of migrants. Although the Protocol has found widespread adoption worldwide, many countries have not—or not yet—signed and ratified the Protocol. Many critics argue that the Protocol promotes the views of rich, developed destination countries and offers little incentives for developing countries of origin to support the Protocol. This paper examines the reasons why some countries choose not to ratify the Protocol. The paper sheds light on the common concerns and characteristics of the forty-five non-Party States in order to pave the way for wider adoption of the Protocol and for more concerted efforts to combat the smuggling of migrants worldwide.

  • View HTML
    • Send article to Kindle

      To send this article to your Kindle, first ensure no-reply@cambridge.org is added to your Approved Personal Document E-mail List under your Personal Document Settings on the Manage Your Content and Devices page of your Amazon account. Then enter the ‘name’ part of your Kindle email address below. Find out more about sending to your Kindle. Find out more about sending to your Kindle.

      Note you can select to send to either the @free.kindle.com or @kindle.com variations. ‘@free.kindle.com’ emails are free but can only be sent to your device when it is connected to wi-fi. ‘@kindle.com’ emails can be delivered even when you are not connected to wi-fi, but note that service fees apply.

      Find out more about the Kindle Personal Document Service.

      Barriers to Ratification of the United Nations Protocol Against the Smuggling of Migrants
      Available formats
      ×
      Send article to Dropbox

      To send this article to your Dropbox account, please select one or more formats and confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your <service> account. Find out more about sending content to Dropbox.

      Barriers to Ratification of the United Nations Protocol Against the Smuggling of Migrants
      Available formats
      ×
      Send article to Google Drive

      To send this article to your Google Drive account, please select one or more formats and confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your <service> account. Find out more about sending content to Google Drive.

      Barriers to Ratification of the United Nations Protocol Against the Smuggling of Migrants
      Available formats
      ×
Copyright
Footnotes
Hide All
*

Professor of Criminal Law, The University of Queensland, School of Law, Brisbane, Australia; Professorial Research Fellow, University of Vienna, Department of Criminal Law and Criminology, Vienna, Austria.

**

LLB/BA candidate, The University of Queensland, School of Law, Brisbane, Australia. The authors wish to thank the other members of the UQ Migrant Smuggling Working Group for their support and friendship at the time this manuscript was taking shape. For more information, see online: <www.law.uq.edu.au/migrantsmuggling>.

Footnotes
References
Hide All

1. Protocol Against the Smuggling of Migrants by Land, Sea and Air, 12 December 2000, 2241 U.N.T.S. 507 (entered into force 28 January 2004) [Smuggling of Migrants Protocol].

2. Ibid., art. 2.

3. Convention Against Transnational Organized Crime, 12 December 2000, 2225 U.N.T.S. 209 (entered into force 29 September 2003), art. 1.

4. Travaux Préparatoires of the Negotiations for the Elaboration of the United Nations Convention Against Organized Crime and the Protocols Thereto (United Nations, 2006) [Travaux Préparatoires].

5. Smuggling of Migrants Protocol, supra note 1, art. 2.

6. See further, SCHLOENHARDT, Andreas and DALE, Jessica, “Twelve Years on: Revisiting the UN Protocol Against the Smuggling of Migrants by Land, Sea and Air” (2012) 65(1) Zeitschrift für Öffentliches Recht / Journal of Public Law 129 .

7. The terms “smuggling of migrants” and “migrant smuggling” are used interchangeably throughout this paper.

8. Smuggling of Migrants Protocol, supra note 1, art. 6(2)(a)–(c).

9. Ibid., arts. 11, 12, 14, 15(1).

10. Ibid., art. 18.

11. GALLAGHER, Anne, “Migrant Smuggling” in Neil BOISTER and Robert CURRIE, eds., Routledge Handbook of Transnational Criminal Law (London: Routledge, 2015), 187 at 192 .

12. United Nations Treaty Collection, Chapter XVIII 12.b, 1 July 2015, online: <https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XVIII-12-b&chapter=18&lang=en>.

13. Status of Adherence to the United Nations Convention Against Transnational Organized Crime and the Protocols Thereto as at 10 September 2014, Conference of the States Parties to the Convention Against Transnational Organized Crime, UN Doc. CTOC/COP/2014/CRP.1 (2014).

14. See further, Migrant Smuggling in Asia: Current Trends and Related Challenges (UNODC, 2015).

15. Convention Against Transnational Organized Crime, supra note 3, art. 37.

16. United Nations Treaty Collection, Chapter XVIII Penal Matters, 12.b Protocol Against the Smuggling of Migrants by Land, Sea and Air, Supplementing the United Nations Convention Against Transnational Organized Crime, 3 February 2015, online: <https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XVIII-12-b&chapter=18&lang=en>.

17. Note that while reservations excluding the compulsory jurisdiction of the ICJ are concerns over a loss of national sovereignty, the optional nature of that provision means that it has not been considered as evidence of state sovereignty concerns.

18. Chapter XVIII Penal Matters, 12.b Protocol Against the Smuggling of Migrants by Land, Sea and Air, Supplementing the United Nations Convention Against Transnational Organized Crime, supra note 16.

19. Ibid.

20. Ibid.

21. Ibid.

22. Resolution on Transnational Organized Crime, UN Doc. A/RES/53/111 (1998).

23. Travaux Préparatoires, supra note 4.

24. Cf. ibid., at 478, 482.

25. Ibid., at 482.

26. Ibid., at 511.

27. Ibid., at 520, 524.

28. Report of Ad Hoc Committee on the Elaboration of a Convention Against Transnational Organized Crime, UN Doc. A/AC.254/9 (1999) at 5, para. 17.

29. UN Department for General Assembly and Conference Management, United Nations Regional Groups of Member States, 9 May 2014, online: <http://www.un.org/depts/DGACM/RegionalGroups.shtml>.

30. The Cook Islands are an “associate state” of New Zealand. At the request of the Cook Islands government, New Zealand can act on behalf of the Cook Islands in foreign affairs matters. The Cook Islands is not a member of the United Nations, but has full treaty-making capacity recognized by the United Nations Secretariat.

31. Niue is an “associate state” of New Zealand. At the request of the Niue government, New Zealand can act on behalf of Niue in foreign affairs matters. Niue is not a member of the United Nations, but has full treaty-making capacity recognized by the United Nations Secretariat.

32. Since November 2012, Palestine is a non-Member State of the United Nations. Although Palestine is a member of several UN agencies, it is not considered a sovereign state for the purpose of this paper.

33. Human Development Index (2014), online: <http://hdr.undp.org/en/content/human-development-index-hdi>.

34. Ibid.

35. Ibid.

36. See further, CAHILL, Miles B., “Is the Human Development Index Redundant?” (2005) 31 Eastern Economic Journal 1 .

37. Unofficial List of Small Island Developing States (2013), online: <http://unctad.org/en/pages/aldc/Small%20Island%20Developing%20States/UNCTAD%C2%B4s-unofficial-list-of-SIDS.aspx>.

38. ANDREAS, Peter and NADELMAN, Ethan, Policing the Globe: Criminalization and Crime Control in International Relations (New York: Oxford University Press, 2006) at 105 ; DELMAS-MARTY, Mireille, Ordering Pluralism: A Conceptual Framework for Understanding the Transnational Legal World (Oxford: Hart Publishing, 2009) at 107 ; BOISTER, Neil, “The Concept and Nature of Transnational Criminal Law” in Neil BOISTER and Robert CURRIE, eds., Routledge Handbook of Transnational Criminal Law (London: Routledge, 2015), 11 at 23 .

39. Gallagher, , supra note 11 at 188 .

40. See, for example, Migrant Smuggling in Asia: Current Trends and Related Challenges (UNODC, 2015) at 179–320

41. Global Trends 2013 (UNHCR, 2013) 16; UNHCR, Statistical Yearbook 2012 (UNHCR, 2013) 31 at 74–6; Statistical Yearbook 2011 (UNHCR, 2012) 28 at 64–7; Statistical Yearbook 2010 (UNHCR, 2011), 27 at 66–9; Statistical Yearbook 2009 (UNHCR, 2010), 23 at 61-4; Statistical Yearbook 2008 (UNHCR, 2009), 28 at 69–72; Global Trends 2013 (UNHCR, 2014) Annexes; Global Trends 2014 (UNHCR, 2015) Annexes.

42. Global Report 2013 (UNHCR, 2014) at 88; Global Report 2012 (UNHCR, 2013) at 84; Statistical Yearbook 2012 (UNHCR, 2013) at 70–2; Statistical Yearbook 2011 (UNHCR, 2012) at 25, 60–2; Statistical Yearbook 2010 (UNHCR, 2011) at 25, 62–5; Statistical Yearbook 2009 (UNHCR, 2010) at 22, 57–60; Statistical Yearbook 2008 (UNHCR, 2009) at 27, 65–8; Global Trends 2013 (UNHCR, 2014) Annexes; UNHCR, Global Trends 2014 (UNHCR, 2015) Annexes.

43. Global Trends 2014 (UNHCR, 2015) Annexes; Global Trends 2013 (UNHCR, 2014) Annexes; Statistical Yearbook 2012 (UNHCR, 2013) at 70–6; Statistical Yearbook 2011 (UNHCR, 2012) at 25, 60–6; Statistical Yearbook 2010 (UNHCR, 2011) at 62–9; Statistical Yearbook 2009 (UNHCR, 2010) at 57–64; Statistical Yearbook 2008 (UNHCR, 2009) at 65–72.

44. Convention Relating to the Status of Refugees, 28 July 1951, 189 U.N.T.S. 150 (entered into force 22 April 1954) [Refugee Convention].

45. See further, DOUGLAS, Joseph H. and SCHLOENHARDT, Andreas, “Combating Migrant Smuggling with Regional Diplomacy: An Examination of the Bali Process”, The University of Queensland Migrant Smuggling Working Group, University of Queensland, Research Paper, February 2012 , online: <http://www.law.uq.edu.au/ms-regionalcooperation>.

46. The Bali Process on People Smuggling, Trafficking in Persons and Related Transnational Crime, “First Regional Ministerial Conference on People Smuggling, Trafficking in Persons and Related Transnational Crime” (February 2002), online: <http://www.baliprocess.net/files/ConferenceDocumentation/BRMC1.pdf> at 3–4.

47. Ibid., at 7.

48. Ibid., at 8–13.

49. Ibid., at 19.

50. The observer countries to the Bali Process are Austria, Belgium, Canada, Denmark, European Commission, Finland, Germany, Italy, the Netherlands, Norway, Poland, Romania, Russian Federation, South Africa, Spain, Sweden, Switzerland, the United Kingdom, and the United States. See The Bali Process on People Smuggling, Trafficking in Persons and Related Transnational Crime, “Membership”, online: <http://www.baliprocess.net/membership>.

51. Including: International Centre for Migration Policy Development (ICMPD); United Nations Development Programme; United Nations Office on Drugs and Crime; International Labour Organization; Inter-governmental Asia-Pacific Consultations on Refugees, Displaced Persons and Migrants (APC); Inter-Governmental Consultations on Migrants, Asylum and Refugees (IGC).

52. The Bali Process on People Smuggling, Trafficking in Persons and Related Transnational Crime, “Membership”, online: <http://www.baliprocess.net/membership>.

53. Budapest Process Secretariat, ICMPD, “About the Budapest Process” (2014), online: <https://www.budapestprocess.org/about>.

54. See International Organization for Migration (IOM), “Budapest Process”, online: <http://www.iom.int/cms/en/sites/iom/home/what-we-do/regional-processes-1/rcps-by-region/budapest-process.html>.

55. OBERDORSTER, Uta, “Why Ratify? Lessons from Treaty Ratification Campaigns” (2008) 61(2) Vanderbilt Law Review 681 at 694 .

56. HATHAWAY, Oona, “Between Power and Principle: An Integrated Theory of International Law” (2005) 72(2) University of Chicago Law Review 469 at 508509 ; CHINEN, Mark, “Game Theory and Customary International Law: A Response to Professors Goldsmith and Posner” (2001) 23 Michigan Journal of International Law 143 at 160 ; HENKIN, Louis, How Nations Behave (New York: Columbia University Press, 1979); Oberdorster, , supra note 55 at 686 .

57. KEOHANE, Robert, “Realism, Neorealism, and the Study of World Politics” in Robert KEOHANE, ed., Neorealism and its Critics (New York: Columbia University Press, 1986), 1 at 7 ; BRUNNEE, Jutta and TOOPE, Stephen, “International Law and Constructivism: Elements of an Interactional Theory or International Law” (2000) 39 Columbia Journal of Transnational Law 19 at 27 .

58. Hathaway, supra note 56 at 498.

59. See, for example, Smuggling of Migrants Protocol, supra note 1, arts. 11(1)–(2), 12.

60. Legislative Guides for the Implementation of the United Nations Convention Against Transnational Organized Crime and the Protocols Thereto (United Nations, 2004) [Legislative Guides] at 330.

61. Ibid., at 329.

62. Gallagher, supra note 11 at 188.

63. Andreas, and Nadelman, , supra note 38 at 105 ; Gallagher, supra note 11 at 189; BOISTER, Neil, “The Concept and Nature of Transnational Criminal Law” in Neil BOISTER and Robert CURRIE, eds., Routledge Handbook of Transnational Criminal Law (London: Routledge, 2015), 11 at 23 .

64. BGH, 21 February 1980 (1980) 29 NJW 1574–6.

65. See further, SCHMOLLER, Kurt, “‘Schlepperei’ und ‘Ausbeiterische Schlepperei’—Zwei neue Deliktstypen im österreichischen Strafrecht”, in Gerard WOLF, ed., Kriminalität im Grenzgebiet, Band 2: Wissenschaftliche Analysen (New York: Springer Publishing, 1998), 33 at 35 .

66. HATHAWAY, Oona, “Do Human Rights Treaties Make a Difference?” (2002) 111 Yale Law Journal 1935 at 1958 .

67. See further, SCHLOENHARDT, Andreas and HICKSON, Hadley, “Non-criminalization of Smuggled Migrants: Rights, Obligations, and Australian Practice Under Article 5 of the Protocol Against the Smuggling of Migrants by Land, Sea and Air” (2013) 25 International Journal of Refugee Law 39 at 3950 .

68. SCHLOENHARDT, Andreas and BEVAN, Ellen, “To Ratify or not to Ratify? Exploring the Barriers to Wider Ratification of the Trafficking in Persons Protocol” (2011) 9 New Zealand Yearbook of International Law 161 at 177 .

69. KOSER, Khalid “Irregular Migration, State Security and Human Security”, University College London, Paper prepared for the Policy Analysis and Research Programme of the Global Commission on International Migration, September 2005 at 10 .

70. MARTIN, Susan and ABIMOURCHED, Rola, “Migrant Rights: International Law and National Action” (2009) 47(5) International Migration 115 at 133 .

71. CHOLEWINSKI, Ryszard and TOUZENIS, Kristina, “Irregular Migration Into and Through Southern and Eastern Mediterranean Countries: Legal Perspectives” (2009), online: <http://cadmus.eui.eu/handle/1814/11296>.

72. Legislative Guides, supra note 60 at 331.

73. Ibid., at 323.

74. HATHAWAY, James C., “Why Human Smuggling is Vital”, National Post (13 September 2010), online: <http://fullcomment.nationalpost.com/2010/09/13/james-c-hathaway-why-human-smuggling-is-vital/>.

* Professor of Criminal Law, The University of Queensland, School of Law, Brisbane, Australia; Professorial Research Fellow, University of Vienna, Department of Criminal Law and Criminology, Vienna, Austria.

** LLB/BA candidate, The University of Queensland, School of Law, Brisbane, Australia. The authors wish to thank the other members of the UQ Migrant Smuggling Working Group for their support and friendship at the time this manuscript was taking shape. For more information, see online: <www.law.uq.edu.au/migrantsmuggling>.

Recommend this journal

Email your librarian or administrator to recommend adding this journal to your organisation's collection.

Asian Journal of International Law
  • ISSN: 2044-2513
  • EISSN: 2044-2521
  • URL: /core/journals/asian-journal-of-international-law
Please enter your name
Please enter a valid email address
Who would you like to send this to? *
×

Metrics

Altmetric attention score

Full text views

Total number of HTML views: 141
Total number of PDF views: 313 *
Loading metrics...

Abstract views

Total abstract views: 452 *
Loading metrics...

* Views captured on Cambridge Core between September 2016 - 16th August 2018. This data will be updated every 24 hours.