ABSTRACT
The term ‘migrant smuggling’ refers to the unauthorized movement of individuals across national borders for the financial or other benefit of the smuggler. While aspects of illegally facilitated migration are established criminal offences in many countries, migrant smuggling itself was not the subject of international legal regulation until very recently. The origins of this shift can be traced back to the late 1980s and early 1990s when the imposition of tighter immigration controls to the preferred destinations, at a time when demand for such migration was rising rapidly, led to the increased involvement of third party facilitators. A focus on those facilitators of irregular migration, rather than just the migrants themselves, was widely viewed as a critical element in any effective response to irregular migration. The development of an international legal regime around transnational organized crime provided concerned States with the opportunity to internationalize the ‘problem’ of migrant smuggling, thereby encouraging the international cooperation that was considered essential to its effective resolution. The new specialist legal framework to emerge from that process comprises the Protocol against the Smuggling of Migrants by Land, Sea and Air1 (Migrant Smuggling Protocol) and its parent instrument the United Nations Convention against Transnational Organized Crime2 (UNTOC). In addition to defining smuggling, the Protocol and Convention detail a wide range of obligations on States: from criminalizing migrant smuggling and related offences to cooperating in the exchange of information, evidence and intelligence.
