International attempts to conclude a convention to combat illegal migration

International Journal of Refugee Law

Volumn 10, Issue 4, 1998, Pages 662-674

  Kirchner, Andree ^a,c   Di Pepe, Lorenzo Schiano ^b,c  

^a UNIVERSITY OF HAMBURG   (Germany)

^b UNIVERSITY OF GENOA   (Italy)

^c International Maritime Organization   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

ILLEGAL IMMIGRANT; IMMIGRATION POLICY; UNITED NATIONS;

EID: 0032321154     PISSN: 09538186     EISSN: None     Source Type: Journal    
DOI: 10.1093/ijrl/10.4.662     Document Type: Article

References (55)

1. The term 'smuggling of illegal migrants' is used with regard to the definition of the International Organization for Migration (IOM) and can be said to exist, if the following conditions are met: an international border is crossed; an intermediary (the trafficker) is involved in the movement of the migrant; entry and/or stay in the country of destination is illegal. The migrant may completely avoid contact with authorities during border crossing, present either fraudulent documents or genuine documents which have been altered, or misrepresent his or her intentions regarding, for example, intended length of stay or economic activity; and the trafficker profits from such activities in terms of economic or other personal gain: IOM, Trafficking in migrants: IOM policies and activities, Geneva 1997, 1.
2. ECOSOC doc. E/CN.15/1996/4 (21 March 1996) 'Measures to combat the smuggling of illegal migrants', 3, para. 5.
3. IOM, Trafficking in migrants: Organized Crime moves into Migrant Trafficking, No. 11, June 1996, 2.
4. Sometimes boards are removed to make the vessel even lower in the water in order to avoid radar detection. These ships rarely have radar, flares or lifejackets, but they often carry extra fuel, which makes them even more dangerous (MacSwan, Dominicans smuggled into Puerto Rico, Reuter, 16 Oct. 1996).
5. Trafficked migrants have suffocated to death, for example, in closed containers. The detection of human beings in containers is difficult, though a detecting method has been tested in Canada and known as 'Human Occupancy Detector AMC-CD-2' (The Nautical Institute, Crime at Sea, London 1996, 92).
6. 1951 United Nations Convention relating to the Status of Refugees: 189 UNTS 150; 1967 Protocol: 606 UNTS 267; 137 States are party to one or both of these instruments.
7. A. Pruginer, Nationalité, migrations et relations internationales in: B. Badie, et al. (eds.), Le défi migratoire, Paris 1994, 105; 124ff.
8. UNGA res.48/102, 20 Dec. 1993, 'Prevention of alien smuggling', para. 9.
9. IOM, Identifying Core Rights of Concern to Migrants, background paper of the Regional Consultation Group on Migration at the Seminar on Human Rights and Migrants held in Washington D.C., 23-24 Apr. 1998, 8.
10. For example the European Regional Preparatory Meeting for the 9th UN Congress, Vienna, 28 Feb.-4 March 1994: UN doc. A/CONF.169/RPM.3; the Conference on Uncontrolled Migration over the Baltic Sea, Stockholm, 25-26 Jan. 1994; the 5th Conference of European Ministers Responsible for Migration Affairs by the Council of Europe (CE), Athens, 18-19 Nov. 1993 and the meeting of the CE on Justice and Internal Affairs in November 1993; IOM, Trafficking in Migrants, No. 2, March 1994.
11. For example the European Regional Preparatory Meeting for the 9th UN Congress, Vienna, 28 Feb.-4 March 1994: UN doc. A/CONF.169/RPM.3; the Conference on Uncontrolled Migration over the Baltic Sea, Stockholm, 25-26 Jan. 1994; the 5th Conference of European Ministers Responsible for Migration Affairs by the Council of Europe (CE), Athens, 18-19 Nov. 1993 and the meeting of the CE on Justice and Internal Affairs in November 1993; IOM, Trafficking in Migrants, No. 2, March 1994.
12. For example the European Regional Preparatory Meeting for the 9th UN Congress, Vienna, 28 Feb.-4 March 1994: UN doc. A/CONF.169/RPM.3; the Conference on Uncontrolled Migration over the Baltic Sea, Stockholm, 25-26 Jan. 1994; the 5th Conference of European Ministers Responsible for Migration Affairs by the Council of Europe (CE), Athens, 18-19 Nov. 1993 and the meeting of the CE on Justice and Internal Affairs in November 1993; IOM, Trafficking in Migrants, No. 2, March 1994.
13. For example the European Regional Preparatory Meeting for the 9th UN Congress, Vienna, 28 Feb.-4 March 1994: UN doc. A/CONF.169/RPM.3; the Conference on Uncontrolled Migration over the Baltic Sea, Stockholm, 25-26 Jan. 1994; the 5th Conference of European Ministers Responsible for Migration Affairs by the Council of Europe (CE), Athens, 18-19 Nov. 1993 and the meeting of the CE on Justice and Internal Affairs in November 1993; IOM, Trafficking in Migrants, No. 2, March 1994.
14. For example the European Regional Preparatory Meeting for the 9th UN Congress, Vienna, 28 Feb.-4 March 1994: UN doc. A/CONF.169/RPM.3; the Conference on Uncontrolled Migration over the Baltic Sea, Stockholm, 25-26 Jan. 1994; the 5th Conference of European Ministers Responsible for Migration Affairs by the Council of Europe (CE), Athens, 18-19 Nov. 1993 and the meeting of the CE on Justice and Internal Affairs in November 1993; IOM, Trafficking in Migrants, No. 2, March 1994.
15. The convention establishing IMO (formerly IMCO) was adopted in Geneva in 1948 and came into force on 17 Mar. 1958; at 31 Dec. 1997, it had 155 Member States and two Associate Members. IMO provides a forum for member Governments and interested organizations to exchange information and endeavour to solve problems connected with technical, legal and other questions concerning shipping and the prevention of marine pollution by ships. As a result of such discussions, IMO has drafted a number of conventions and recommendations (UN Department of Public Information, Basic Facts about the United Nations, New York 1995, 293ff). The Organization consists of an Assembly (which is the supreme governing organ), a Council and five Committees (Marine Environment Protection Committee, Maritime Safety Committee, Facilitation Committee, Legal Committee and Technical Co-operation Committee). For further references, see http://www.imo.org. 12 IMO doc. LEG 76/11/1, 1 Aug. 1997, 'Proposed multilateral convention to combat illegal migration by sea', 5ff.
16. The convention establishing IMO (formerly IMCO) was adopted in Geneva in 1948 and came into force on 17 Mar. 1958; at 31 Dec. 1997, it had 155 Member States and two Associate Members. IMO provides a forum for member Governments and interested organizations to exchange information and endeavour to solve problems connected with technical, legal and other questions concerning shipping and the prevention of marine pollution by ships. As a result of such discussions, IMO has drafted a number of conventions and recommendations (UN Department of Public Information, Basic Facts about the United Nations, New York 1995, 293ff). The Organization consists of an Assembly (which is the supreme governing organ), a Council and five Committees (Marine Environment Protection Committee, Maritime Safety Committee, Facilitation Committee, Legal Committee and Technical Co-operation Committee). For further references, see http://www.imo.org. 12 IMO doc. LEG 76/11/1, 1 Aug. 1997, 'Proposed multilateral convention to combat illegal migration by sea', 5ff.
17. Ibid., 2ff.
18. IMO doc. LEG 76/WP.3, 16 Oct. 1997, 'Draft report of the legal committee on the work of its seventy-sixth session'.
19. Cf. IMO doc. A 20/5(b)/2 Annex 1, 26 Nov. 1997, 'Reports of other committees - Report of the Technical Committee to the Plenary', 22ff.
20. IMO Res. A.867(20), 27 Nov. 1997, 'Combatting unsafe practices associated with the trafficking or transport of migrants by sea'.
21. The 21st Session of the Assembly (IMO) will be held in 1999.
22. IMO doc. A 20/5(b)/2, 26 Nov. 1997, 'Reports of other committees - Report of the Technical Committee to the Plenary', 23.
23. Ibid., 22 (Nos. 1-3).
24. IMO doc. A 18/Res.773, 17 Nov. 1993, 'Enhancement of safety of life at sea by the prevention and suppression of unsafe practices associated with alien smuggling by ships'.
25. IMO doc. MSC 69/21/2, 29 Dec. 1997, 'Combatting unsafe practices associated with the trafficking or transport of migrants by sea', Annex: 'Draft Guidelines for the prevention and suppression of unsafe practices associated with the trafficking or transport of migrants by sea', 2.
26. Ibid., 2, para. 8. For the work of the Facilitation Committee, see IMO doc. FAL 25/7/1, 20 Jan. 1997, 'Prevention of unlawful acts on or against ships: Facilitation aspects'.
27. Ibid., 2, para. 8. For the work of the Facilitation Committee, see IMO doc. FAL 25/7/1, 20 Jan. 1997, 'Prevention of unlawful acts on or against ships: Facilitation aspects'.
28. Established in Feb. 1992 by the Economic and Social Council: ECOSOC res. 1992/1, 6 Feb. 1992, 'Establishment of the Commission on Crime Prevention and Criminal Justice' as one of its functional bodies, pursuant to UNGA res. 46/152. It provides policy guidance to the UN in the field of crime prevention and criminal justice, develops, monitors and reviews implementation of the UN crime prevention program and mobilizes support for it on the part of Member States. The Commission is mandated by UNGA res. 51/62, 12 Dec. 1996 on 'Measures for prevention of the smuggling of aliens' to devise instruments to encourage international co-operation against this offence.
29. UNGA res. 48/102, 20 Dec. 1993, 'Prevention of alien smuggling'.
30. The report (UN doc. A/49/350, 30 Aug. 1994), 'Measures to combat alien-smuggling -Report of the Secretary-General' was prepared by the Secretary-General and contained a comprehensive overview on the problem of alien smuggling and information, submitted by many Member States and IGOs, namely, Antigua and Barbuda, Austria, Bahrain, Belarus, Bulgaria, Burkina Faso, Canada, China, Costa Rica, Czech Republic, Denmark, Finland, Hungary, Japan, Jordan, Luxembourg, Malta, Monaco, Norway, Panama, Sweden, Switzerland, Syrian Arab Republic, Turkey, Ukraine, United States of America, Office of the UNHCR, ICAO, IMO and IOM. The Addendum (UN doc. A/49/350/Add. 1, 1 Nov. 1994) 'Measures to combat alien-smuggling -Report of the Secretary-General' contained replies by Australia, Denmark, Madagascar, Mexico, Myanmar, Philippines, Saudi Arabia and the Centre for Human Rights of the UN Office at Geneva.
31. On 10 Feb. and 9 Jun. 1994.
32. ECOSOC res. 1994/14, 25 Jul. 1994, 'Criminal justice action to combat the organized smuggling of illegal migrants across national boundaries'.
33. Ibid., 28, para. 11.
34. Ibid., 28, para. 1.
35. UN doc. A/49/748, annex; cf. also UN doc. E/CN.15/1996/2/Add.1, 'Recommendation of the regional ministerial workshop on follow-up to the Naples Political Declaration and Global Action Plan against Organized Transnational Crime, held in Buenos Aires from 27 to 30 November 1995'.
36. ECOSOC res. 1995/10, 24 Jul. 1995, 'Criminal justice action to combat the organized smuggling of illegal migrants across national boundaries'.
37. On 21 Aug. and 23 Nov. 1995.
38. The second report (ECOSOC doc. E/CN.15/1995/3, 26 Apr. 1995, 'Additional information on measures to combat alien-smuggling') contained information from Barbados, Brunei Darussalam, Cuba, France, Germany, Malawi, Nepal, Oman, Spain, Syrian Arab Republic and IOM. The third report (ECOSOC doc. E/CN.15/1996/4, 21 Mar. 1996, 'Measures to combat the smuggling of illegal migrants') contained information from Belgium, El Salvador, Greece, Holy See, Italy, Lebanon, Portugal, Romania, Slovakia, Sudan and the United Kingdom. The Addendum (ECOSOC doc. E/ CN.15/1996/4/Add. 1, 21 May 1996, 'Measures to combat the smuggling of illegal migrants') contained replies by Tunisia and the United States of America. The fourth report (ECOSOC doc. E/CN.15/1997/8, 18 Feb. 1997, 'International cooperation in combating transnational crime: smuggling of illegal migrants') contained additional information on criminal law and other action taken or envisaged in Belarus, Colombia, Croatia, Cyprus, Czech Republic, Estonia, Finland, Iceland, India, Italy, Lebanon, Morocco, Niger, St Lucia, Spain, Tunisia, Turkey and the United States of America. The Addendum (ECOSOC doc. E/CN.15/1997/8/Add. 1, 8 Apr. 1997, 'International cooperation in combatting transnational crime: smuggling of illegal migrants') contained replies by Colombia, Cook Islands, Cuba, Egypt, Kuwait, Republic of Korea, Slovakia, Spain and from three IGOs, namely, IMO, IOM and OECD.
39. ECOSOC doc. E/CN.15/1997/8, 18 Feb. 1997, 'International cooperation in combating transnational crime: smuggling of illegal migrants', 9, para. 42.
40. Ibid., 9, para. 44.
41. UN doc. A/52/357, 17 Sept. 1997, 'Letter dated 16th September 1997 from the Permanent Representative of Austria to the United Nations addressed to the Secretary General', Annex: 'Draft international convention against the smuggling of illegal migrants', 4ff. However, a draft resolution, calling for acts to combat the smuggling, including simplified procedures for inspections of vessels suspected of such activities within the territorial sea, had already been proposed by the United States of America to the UN in 1996, but withdrawn to allow for extended discussion of other items. See ECOSOC Press Release SOC/CP/192, 5 Jun. 1996, 'Fifth Session of Commission on Crime Prevention and Criminal Justice, Vienna 21-31 May 1996'.
42. UN doc. A/52/357, 17 Sept. 1997, 'Letter dated 16th September 1997 from the Permanent Representative of Austria to the United Nations addressed to the Secretary General', 2, para. 3.
43. Cf. UN doc. E/CN.15/1997/7/Add.1, 'Views of States on the elaboration of an international convention against organized transnational crime'; and Add.2 'Report of the informal meeting on the question of the elaboration of an international convention against organized transnational crime'.
44. IOEIG/1998/1 'Comparative study on the elaboration of a preliminary draft of a comprehensive international convention against organized transnational crime'.
45. ECOSOC doc. E/CN.15/1998/5, 18 Feb. 1998, 'Report of the inter-sessional open-ended intergovernmental group of experts on the elaboration of a preliminary draft of a possible comprehensive international convention against organized transnational crime (Warsaw, 2-6 February 1998)'.
46. UNHCR was established on 1 Jan. 1951, initially for a three-year period: UNGA res. 319(IV), 3 Dec. 1949 and 428(V), 14 Dec. 1950; its mandate has since then been renewed at five-year intervals. The Executive Committee of the High Commissioner's Programme (ECOSOC res. 672 (XXV), 30 Apr. 1958) now has 53 Member States.
47. The IOM was established on 5 Dec. 1951 in Brussels, following the International Migration Conference, initially as the Provisional Intergovernmental Committee for the Movement of Migrants from Europe. It changed its name in 1952 to the Intergovernmental Committee for European Migration (ICEM) and in 1980 to the Intergovernmental Committee for Migration (ICM). On 14 Nov. 1989 a new constitution (text in 4 IJRL 597 (1989) and in Goodwin-Gill, G.S., The Refugee in International Law, 2nd ed., 1996, 419) entered into force and its current name was adopted. The International Organization for Migration has 52 Member States. See further http://www.iom.org. UN doc. A/49/350, 30 Aug. 1994, 'Measures to combat alien-smuggling - Report of the Secretary-General', 18ff, paras. 86-90; 'UNHCR also participates in numerous international meetings to discuss ways and means in which States can respond to illegal migration while at the same time ensuring that persons in need of international protection can obtain the protection they require': para. 90.
48. The IOM was established on 5 Dec. 1951 in Brussels, following the International Migration Conference, initially as the Provisional Intergovernmental Committee for the Movement of Migrants from Europe. It changed its name in 1952 to the Intergovernmental Committee for European Migration (ICEM) and in 1980 to the Intergovernmental Committee for Migration (ICM). On 14 Nov. 1989 a new constitution (text in 4 IJRL 597 (1989) and in Goodwin-Gill, G.S., The Refugee in International Law, 2nd ed., 1996, 419) entered into force and its current name was adopted. The International Organization for Migration has 52 Member States. See further http://www.iom.org. 43 UN doc. A/49/350, 30 Aug. 1994, 'Measures to combat alien-smuggling - Report of the Secretary-General', 18ff, paras. 86-90; 'UNHCR also participates in numerous international meetings to discuss ways and means in which States can respond to illegal migration while at the same time ensuring that persons in need of international protection can obtain the protection they require': para. 90.
49. For example the 11th IOM Seminar on migration, on the 'International Response to Trafficking in Migrants and the Safeguarding of Migrants Rights', Geneva, 26-28 Oct. 1994 (IOM doc. MC/ 1827); a first sub-regional forum, held in Panama in Oct. 1995, which provided the opportunity for dialogue and co-operation between governments, IGOs and NGOs in regard to the smuggling in Central America and Regional Conferences on Migration held in Puebla in 1996 and in Panama in March 1997. The Conference agreed upon a Plan of Action, to be implemented before the 3rd Regional Meeting, held in Ottawa in 1998; two intergovernmental regional seminars, in Manila in Dec. 1996 and Dec. 1997 on irregular migration and migrant trafficking; the 12th IOM Seminar on migration, Geneva, Apr. 1997, which focused on managing international migration in developing countries; a EU Conference in Vienna in June 1996 and in co-operation with the International Institute of Humanitarian Law IOM hosted a Round Table entitled the Effective Respect for the Rights and Dignity of Migrants: New Needs and Responses, in Feb. 1996.
50. Cf. IOM doc. MC/1842, 9 May 1995, 'IOM Strategic Planning: Toward the Twenty-First Century', 4ff.
51. Gramegna, 'Trafficking in migrants: A contemporary form of slavery', Statement at the IOM Sub-Commission of Discrimination and Protection of Minorities, 15-29 Aug. 1997, agenda item 6.
52. IOM, Trafficking in migrants: IOM policies and activities, Geneva 1997, 1.
53. ECOSOC Press Release SOC/CP/198, 12 May 1997, 'Commission on Crime Prevention and Criminal Justice concludes Sixth Session, Vienna 28 April-9 May 1997'.
54. ECOSOC Press Release SOC/CP/183, 23 May 1996, 'Central Repository of Measures against Organized Transnational Crime called for by Speakers in Crime Commission'.
55. UN doc. A/49/350, 30 Aug. 1994, 'Measures to combat alien-smuggling - Report of the Secretary-General', 3, para. 4.