Non-Criminalization of Smuggled Migrants: Rights, Obligations, and Australian Practice Under Article 5 of the Protocol Against the Smuggling of Migrants by Land, Sea, and Air

International Journal of Refugee Law, 25 1: 39-64, 2013

Posted: 19 Jun 2015

See all articles by Andreas Schloenhardt

Andreas Schloenhardt

The University of Queensland - T.C. Beirne School of Law

Hadley Hickson

University of Queensland, T.C. Beirne School of Law, Students

Date Written: 2013

Abstract

Article 5 of the United Nations Protocol against the Smuggling of Migrants by Land, Sea, and Air, to which Australia is a state party, requires states not to criminalize migrants for being the object of migrant smuggling. This international obligation raises questions about Australia’s response to migrant smuggling and its treatment of asylum seekers. This article examines the principle that smuggled migrants should not be punished for seeking refuge through illegal entry to a receiving state. It explores the extent of the obligations created by article 5, and, on that basis, assesses the compatibility of Australia’s legislative and practical responses to the smuggling of migrants.

JEL Classification: k00

Suggested Citation

Schloenhardt, Andreas and Hickson, Hadley, Non-Criminalization of Smuggled Migrants: Rights, Obligations, and Australian Practice Under Article 5 of the Protocol Against the Smuggling of Migrants by Land, Sea, and Air (2013). International Journal of Refugee Law, 25 1: 39-64, 2013, Available at SSRN: https://ssrn.com/abstract=2620043

Andreas Schloenhardt (Contact Author)

The University of Queensland - T.C. Beirne School of Law ( email )

The University of Queensland
St Lucia
4072 Brisbane, Queensland 4072
Australia

Hadley Hickson

University of Queensland, T.C. Beirne School of Law, Students ( email )

St Lucia
Australia

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