FROM BONDAGE TO FREEDOM
E.
84
Overview of the Migrant Smuggling Protocol
The stated purpose of the Migrant Smuggling Protocol is to prevent
and combat migrant smuggling to promote international cooperation
among States Parties and at the same time protect the rights of smuggled
migrants210. Similar to the Convention and the Trafficking in Persons
Protocol, many provisions are intended to ensure that the approaches
taken by the States under their domestic legislative and law enforcement
regimes are as coordinated as possible to make collective international
action efficient.
F.
Key Provisions and Analysis
As in the case with the Trafficking in Persons Protocol, the
Convention provisions apply mutatis mutandis to this Protocol.
Application of the protocol is only limited to situations of international
migrant smuggling involving an organized criminal group.211
“Smuggling of Migrants” is defined as “the procurement, in order
to obtain, directly or indirectly, a financial or other material benefit, of
the illegal entry of a person into a State Party of which the person is not a
national or a permanent resident”212. The reference to “financial or other
material benefit” was included as an element of the definition in order to
ensure that the activities of those who provide support to migrants on
humanitarian grounds or on the basis of close family ties do not come
within the scope of the Protocol213.
States Parties are required to criminalize the smuggling of migrants
as well as related offenses including the production, provision, and
possession of fraudulent travel or identity documents214. The Protocol
includes a detailed section on preventing and suppressing the smuggling
of migrants by sea because of the seriousness and volume of the problem.
Under one of such provisions, States are requested to cooperate to prevent
smuggling of migrants by sea and to take necessary measures when they
suspect that a vessel is engaging in the smuggling of migrants. States
210
Supra note, 5 Art 2.
211
Ibid., Art. 4.
212
Ibid., Art 3(a).
213
Supra note 36,p.88.
214
Supra note 5, Art. 6.
215
Ibid., Art.( 7-9).
216
Ibid., Art. 9(1) (a).