The effectiveness of the smuggling protocol in combatting contemporary challenges posed by the smuggling of migrants by sea : a Mediterranean perspective

Abstract

Every year, thousands of vulnerable and desperate smuggled migrants continue to make dangerous sea journeys across the Mediterranean. The smuggling of migrants by sea is a heinous crime, involving border crossing in inhumane conditions, facilitated by networks of professional human smugglers. It presents a global challenge and a major threat to maritime security. In attempting to combat this crime, States are presented with conflicting legal issues relating to sovereignty and security vis-à-vis the protection of the fundamental human rights of migrants. Against this backdrop, this study analyses the legal mechanisms available to prevent and combat the crime of smuggling of migrants by sea, with a particular focus on the situation in the Mediterranean Sea. This study examines the relevant rules found in the 1982 United Nations Convention on the Law of the Sea to prevent and suppress the threat of smuggling of migrants by sea. Whilst the Convention provides the jurisdictional framework within which coastal and flag States can act in the different maritime zones, it does not directly address the threat of smuggling of migrants. Thus, this dissertation focuses on the effectiveness of the Protocol Against the Smuggling of Migrants by Land, Sea and Air, Supplementing the United Nations Convention Against Transnational Organised Crime as the main international treaty to combat the crime within the Mediterranean. The study notes that the cornerstone of the Smuggling Protocol is the duty of States cooperation in the repression of the transnational crime of smuggling of migrants. One way is through the effective implementation of relevant provisions of the Protocol into domestic laws. The dissertation examines the national laws relevant to anti-smuggling operations of three major Mediterranean States which are specially affected by the problem: Malta, Italy, and Greece. The study concludes that the Smuggling Protocol provides a solid foundation for States to combat the crime of smuggling of migrants by sea. Nonetheless, the effectiveness of its rules to prevent and repress the crime depend on full cooperation from States Parties.