Analyzing huuman smuggling as human rights issue: critical appraisal of prototcol against the human smuggling of migrants, 2000

Abstract

Migrant smuggling is the process of making money by assisting a person to enter or stay in a country without having a legal permission to do so. Although, the smuggled migrants enter another country through illegal means but in most of the cases of migrant smuggling they are potential victims of the crime. The Protocol adopted to curb the activity of migrant smuggling has lacunae to protect the rights of the smuggled migrants. As it is obvious from codification history of the Protocols, that the states were hesitant to support any provision that would generate any obligation, to protect the migrants, on part of the states. The primary purpose of the study is to look at the problem of human smuggling as a human rights concern rather than the security driven approach. The study employed doctrinal research methodology to analyze the Protocol against smuggling and found out significant lacunae in the Protocol regarding the protection of smuggled migrants. The researcher has found that, although, the Protocols provide number of protections to the smuggled migrants in the shape of rights related to non-prosecution, rights related to detention, right to be rescued at sea and rights related to return. However, the protections of the rights of smuggled migrants provided by the Protocol cannot be achieved by the level of safeguards thus provided. This is because of the superficial and non-comprehensive nature of the rights provided in the Smuggling Protocols. In short there are lacunae in the current Protocol on the basis of human right approach. To align the Protocol in accordance with the human rights based approach regarding smuggling of migrants certain amendments are necessary in the substantive rules of the Protocol such as addition of right to leave, addition of right to be rescued at sea etc.