An analysis of the human smuggling: Trade and the protocol against the smuggling of migrants by Land, Air and Sea (2000) from a refugee protection perspective

This paper provides an analysis of the worldwide human smuggling trade and the Protocol Against the Smuggling of Migrants by Land, Air and Sea (the 'Smuggling Protocol'), which supplements the Convention Against Transnational Organized Crime 2000. Since this paper is written from a refugee protection perspective, it therefore examines who refugees are, why they resort to the use of people smugglers, and the dangers they face in doing so. It also considers the subsequent challenge for the international community to safeguard the rights of smuggled refugees and asylum seekers within the broader context of migration management, particularly in regard to the right of non-refoulement and access to protection. Here, two 'challenges' appear to have arisen: firstly the manner by which states differentiate between refugees and asylum seekers and undocumented migrants (or so-called 'economic migrants'), who also resort to, or are exploited by, people smugglers and traffickers; and secondly, the procedures and methods states develop to prevent their asylum systems from being abused for immigration purposes. Accordingly, the Smuggling Protocol is examined to ascertain whether it can and will solve these aforementioned difficultiess, and especially whether it adequately safeguards refugee rights. This paper concludes that whilst the Smuggling Protocol has the potential to do such, its application (and the extent of that application) ultimately depends on the will of the State Parties, and thus could amount to nothing more than a list of 'good intentions'. This paper also examines whether even if the Smuggling Protocol is a positive step in combating the 'crime' of people smuggling, it is nonetheless a 'band aid mechanism' - highlighting the dire need for the international community to re-examine how it can best invest its money, resources, and energy into stopping social inequities and situations of misery and violence, poverty and persecution, which compel people to leave their homelands to begin with. Such a conclusion could be considered presumptuous but, in light of the recent terrorist attacks on the United States, it seems necessary for 'the West' to refocus its energy on how to rid poorer, war torn, alienated, and more desperate regions of the world from such afflictions: afflictions responsible for impelling people to leave their homes creating the demand for people smugglers; afflictions responsible for refugee crises; afflictions responsible for creating terrorist breeding grounds; and afflictions which, in an interconnected world, ultimately impinge on the entire community of nation states