CHAPTER I

INTRODUCTION

1. Background of the Research

International human rights law recognizes that everyone has the legal

right to move from one country to another and seek refuge in that country.

The migration process is regulated by each country‘s domestic immigration

and emigration law. The said law requires the migrants to fulfill the legal

requirements of the source, transit and destination countries to move from

one state to another. When regular means of migration are restricted through

the law, people attempt and strive to employ ways and means outside the

legal framework to enter into another country.

Estimates suggest that there are at least fifty million such irregular

migrants in the world. Various factors contribute to irregular migration around

the world. Human smuggling is one of the irregular means used by human

smugglers to transport people beyond borders.

Education, poverty, employment, personal security, ethnic strife and

civil unrest are well known factors that induce people to make a decision to

move beyond their borders by employing both regular and irregular means.

Similarly, factors prevailing in the destination country such as seeking cheap

labour, family ties, social network and social benefits available for asylum

seekers and refugees too encourage them to move beyond their borders.

1
 Apart from the above factors, studies have demonstrated shown that

the enactment of legislations with harsh punishments, mandatory

administrative detention, interdiction in the high seas, mutual agreement with

other states to send off the migrants to detention camps and huge quantities

of expulsions lead to the growth of irregular migration1. Examples of the

impact of such measures are briefly mentioned in the following discussion.

Since the early 1990s, western states have been engaged in a various

measures in an attempt to lower and relieve the fear of illegal migration. New

laws have been introduced by Germany and Great Britain2 that have reduced

the rights of asylum seekers extensively3. This has been accomplished

through a series of amendments beginning in 1999. Italy has amended its

law4 and several moves have been made towards the harmonization in the

European Union on matters of illegal migration and asylum admission5.

Canada has introduced stricter penalties on migration infringements and has

lowered thresholds for deporting permanent residents6. The United States

have increased border and inland scrutiny7. Notably, Australia has

established off shore detention camps in other territories.

1
Philip L. Torrey, ‗Rethinking Immigration‘s Mandatory Detention Regime: Politics, Profit, and
the Meaning of Custody‘, [2015] University of Michigan Journal of Law Reform, 894
2
Catherine Dauvergne, Making People Illegal: What Globalization Means for Migration and
law (Cambridge University Press 2008) 14
3
ibid
4
A new Immigration Act was introduced in 2002 (‗Bossi-Fini‖ Law, No 189 of July30 ,2002
amendment to legislation on immigration and asylum)
5
Anne T. Gallaghar, International Law on Migrant Smuggling (Cambridge University press
2014) 26
6
Immigration and Refugee Protection Act Canada, 2002.
7
Catherine Dauvergne (n 2) 15

2
Catherine Dauvergne states that

‗While on the one hand there is an extension of the law through

defining increasingly larger categories as being outside the law

regulating migration, there has been a growth and increase in illegal

migration8. The states have also stepped up migration enforcement

through new technologies of surveillance‘9.

Intensification of border control personnel by the United States has

noted a rise in the number of irregular migrants10. Although western states

have taken control measures, it could not fully bring down the amount of

irregular arrivals11.

The threat of irregular migration and the legal responses to it are not

limited to one nation. It is a global one and the fact those who seek to migrate

outside the law have access to a broader range of options than in earlier eras.

Human smuggling is a transnational movement through which people

are taken from one state to another. In a broader sense, it comes under the

category of irregular migration. A special terminology is given to the migrants

called the ‗smuggled migrants.‘ In this irregular venture, particular terms are

denoted to the concerned states. They are ‗source country‘, ‗transit country‘

and ‗destination country‘. Source country means, the country from which the

8
Ibid, 16
9
Ibid
10
P. Baker, ‗Bus Set to send Guard to Border; Assignment would be temporary; Critics cite
th
Strain on Troops‘ The Washington Post (15 May , 2006) 1,
David Jackson ‗Bush Plan Calls for thousands of Guard Troops Along border; Conservations
th
maintain Doubts, USA today (16 May , 2006) 7
11
Catherine Dauvergne,(n 2) 16

3
migrants originate. Transit means, a country or countries through which

smugglers take the migrants to the intended destination. Destination means,

the desired station which the migrants want to enter to achieve the purpose of

the journey.

Human Trafficking and Human Smuggling are becoming big business and

increasingly criminality is being introduced into this business. More recently,

human smuggling has acquired a worldwide dimension.

Unsavory and criminalized elements have entered into the business

and operations of human smuggling and trafficking have established an

extensive international network. Catherine Dauvergne has illustrated in her

book that technological advancement in communication has also facilitated

organized crimes including human smuggling12. Notwithstanding the pitfalls

and hazards occurring often under lamentable and distressing conditions,

there has been an increase in the number of persons who with their own

consent are being facilitated to enter into countries using illegal methods.

As noted earlier, human smuggling includes and involves many

countries such as the country of origin, of transit and destination. It affects the

international relations, security and economy of these countries. As a plethora

of problems are being caused to these countries, and exchange of information

12
Catherine Dauvergne, (n 2) 14

4
and the need for coordinated responses among them have become

indispensable and unavoidable13.

Countries of origin, transit and destination are all affected through

human trafficking and smuggling resulting in a serious impact on their

international relations, security and economy. Both trafficking and smuggling,

are systems which facilitate movement from the home country to destination

countries in search of improved incomes and a better lifestyle. There is

however, a marked difference between the two.

1.2 Differences Between Human Smuggling and Human Trafficking

Article 3(a) of the smuggling protocol states that human smuggling

refers to ‗the procurement, in order to obtain, directly or indirectly, a financial

or other material benefit, of the illegal entry of a person into State Party of

which a person is not a national or permanent resident‘14.

Article 3(a) of the trafficking protocol defines the term ‗trafficking‘.

‗Trafficking in persons shall mean the recruitment, transportation,

transfer, harbouring or receipt of persons, by means of the threat or use of

force or other forms of coercion, of abduction, of fraud, of deception, of the

abuse of power or of a position of vulnerability or of the giving or receiving of

payments or benefits to achieve the consent of a person having control over

another person, for the purpose of exploitation. Exploitation shall include, at a

minimum, the exploitation of the prostitution of others or other forms of sexual

13
Y. Mattar, ‗Transnational Legal Responses to Illegal Trade in Human Beings‘ [2013], SAIS
REVIEW , 137,150
14
Human Smuggling Protocol 2000, art. 3 (a)

5
exploitation, forced labour or services, slavery or practices similar to slavery,

servitude or the removal of organs.‘15

These two terms, ‗human trafficking‘ and ‗human smuggling‘, are often

indistinguishable from one another. Many misunderstand that these terms

denote the same meaning. Scholars however have identified the similarities

and differences between these two offences.

This research will only look at the human smuggling operation.

Nevertheless, it is important to note that most of the literature have touched

upon both offences. The term human smuggling is used consistently to

distinguish it from human trafficking and to indicate that the smuggling

activities examined involve only willing participation in the journey.

In smuggling, there are two concerned parties; One is smugglers who

facilitate or organize the journey and the other being the smuggled migrant

who pay the smugglers to get their services. In some situations, the migrants

themselves turn out to be smugglers who facilitate illegal travel entry and/or

regularize upon arrival through family membership, friends, acquaintances

and fee-paying strangers16. The notable example in the Sri Lankan context is

the MV Sunsea and MV Ocean Lady, the two Thai cargo ships which took

nearly five hundred and sixty migrants from Thailand to Canada in 2009 and

2010. The fellow migrants played the part of the smugglers17.

15
Human Trafficking protocol 2000, art.3(a)
16
Ali Nobil Ahmad, Masculinity, Sexuality and Illegal Migration: humans smuggling from
Pakistan to Europe, (Ashgate Publishing 2016) 7
17
Appulonappa V Canada [2015] SCC 59

6
 Human smuggling involves willing participation of an illegal immigrant

whereas the human trafficking involves involuntary participation and is

considered a violation of human rights18. The key factor (in human smuggling)

is the voluntary relationship between the two players whereby a potential

migrant may contract with a smuggler to be moved to a country through illegal

means19.

Sheldon X Zhang notes

‗although it is voluntary in nature, it is possible that the migrants may

experience obnoxious conditions during transportation than he or she

was promised earlier, charged extra fees for or be given a more

stringent payment schedule than the original agreement. News and

government reports have documented many abuses of illegal

immigrants (smuggled migrants) at the hands of their smugglers while

the business arrangement has remained a consensual one.‘ 20

Some scholars have found out that in practice, it is difficult to tell where the

smuggling ends and trafficking begins. Some researchers have found out that

few victims are abducted outright by force from their villages 21.

Trafficking creates apprehension and anxiety not only because of the

manner in which a person enters into a country but also because of his/her

18
Sheldon X. Zhang, Chinese human Smuggling Organizations families, Social Networks,
and Cultural Imperatives (Stanford University Press 2008), 21
19
Ibid
20
Sheldon X. Zhang (n18),
21
Ibid

7
working conditions and whether he/she has consented to irregular entry and

the working conditions. Trafficking is prompted by a sense of desperation and

marked by severe forms of labour exploitation and also commercial sexual

abuse22.

Smuggling is to facilitate and promote the illegal crossing of a country‘s

border stealthily. Smugglers will therefore, often be present and participate

actively during the recruitment and transport processes. In contrast, trafficking

involves a long-term relationship between the trafficker and the trafficked

person. It usually involves the trafficker or associates, subjecting the trafficked

person(s) to exploitative labour environments through the removal of identity

documents, withholding of payment, abuse and ill-treatment and the continual

threat of exposure to authorities and deportation23. Often during the smuggling

process, human rights become the casualty.

According to Jacoline Bhaba, accessible proof recommends most

smuggled migrants consenting in some way to an initial proposition to travel,

but, on the way or on landing in the intended country , the conditions often

change.24. He further notes that human smuggling and human trafficking differ

in their hierarchical elements, their structures, and their voluntary or

22
. Cleo J. Kung, ‗Supporting the Snakeheads: Human Smuggling from China and the 1996
Amendment to the U.S. Statutory Definition of Refugee‘, [Summer 2000] Journal of Criminal
Law and Criminology, 1271, 1289
23
John Salt, ‗Trafficking and Human Smuggling: A European perspective‘ [2000] International
Migration, 31, 35
24
Jacoline Bhabha, Trafficking, Smuggling and Human Rights, [2005] Harvard University
<[Link] > accessed 10
August 2018

8
involuntary in nature. Nevertheless, smuggled migrants might be liable to the

same problems as victims of human trafficking.

UNODC notes that smuggling is clearly concerned with the manner in

which a person enters a country and with the association of third parties who

facilitate him or her in active entry25. A migrant enters into a contract with a

smuggler to pay a fee to the smuggler.

Some authors argue that there is a difficulty in making a difference between

these two offences26. Some contest that smuggled illegal migrants are often

exposed to similar cases of danger or discomfort during the long journeys as

trafficked victims27.

Alison Mountz expressed that human smuggling is, from multiple points

of view, a routine like different sorts of movement. Human smuggling is

additionally a chronicled phenomenon that has existed for a considerable

length of time as long as country states have affirmed the control of versatility

along their borders, individuals have utilized help to cross them. However,

profoundly unmistakable interception attempts of smuggling activities will in

general be happened as a contemporary emergency. Because of the play of

stories about human smuggling and human enthusiasm in the security of

national borders, media reports declare these occasions as a crisis.28.

25
UNODC, Global Study on Smuggling of Migrants,
<[Link]
th
analysis/glosom/GLOSOM_2018_web_small.pdf> accessed on 10 August 2018
26
UNODC, Smuggling of Migrants, A Global Review and Annotated Bibliography of Recent
Publications (UNODC) <[Link]
smuggling/Smuggling_of_Migrants_A_Global_Review.pdf > accessed 5 December 2017
27
Ibid
28
Alison Mountz, Seeking Asylum, Human Smuggling and Burecracy at the border ( University
of Minnesota Press 2010) 19

9
 Some scholars contend that general migration is growing with human

smugglers basically fulfilling a greater need while others contend that more

stricter immigration controls have in actuality impelled the expanded work of

human smugglers.29 Alison Mountz says that the contradicting positions have

turned out to be progressively entrenched with the lack of empirical evidence.

Hence, more research should be done investigating such relationship30.

Moreover, it gives off an impression of being in the short term interest of

states to avoid set of plans with respect to these issues instead of choosing

for provisional arrangements.

Government officials facilitate human smugglers both locally and

internationally and traffickers in getting forged travel documents, false job

offers, false passports, false husbands, wives or fiancé(e)s and false family

members through corruption and bribery.

1.3 Varying Obligations Under these Two Protocols31

Both Trafficking and Smuggling Protocols require state parties to criminalize

the acts of traffickers or smugglers to establish and implement domestic law

enforcement mechanisms and to cooperate with other states to strengthen

international prevention and punishment of these activities. Both protocols

emphasize that the migrants themselves should not be targeted as violators of

law. Both instruments oblige the state parties to address the root causes of

smuggling and trafficking32.

29
ibid, 20
30
ibid
31
Trafficking N(15 and Human Smuggling (n14)
32
Trafficking (n 29) art. 9(4) , smuggling (n14 art. 15(3)

10
 The Trafficking Protocol requires the states to take measures in

ensuring the protection of trafficked victims. These requirements are optional.

However, the phrases used in the text of the relevant articles are ‗each state

shall consider implementing... in appropriate cases... and ... shall endeavor to

provide‘.

Art. 6(3) in particular requires the states to consider ‗implementing

measures to provide for the physical, psychological, and social recovery of

victims of trafficking in persons.‘ These measures include shelter, medical,

employment and protection from human rights violations. It also requires the

states to consider adopting a legislation to enable trafficking victims to remain

in their country ‗temporarily or permanently, in appropriate cases.33.

In contrast, the Smuggling Protocol refers to the marginal protection

needs of smuggled persons. The preamble of the protocol enumerates ‗the

need to provide migrants with humane treatment and full protection of their

rights,‘ and expresses concern that ‗the smuggling of migrants can endanger

the lives or security of the migrants involved.‘

Unlike the Trafficking Protocol the Smuggling Protocol requires

international pledge to an essential dimension of protection. It requires the

states to ‗ensure the safety and humane treatment of the persons on board‘,

33
Trafficking (n29) art 7

11
vessels that are searched34 and to implement their obligations under

international law to protect the rights of the smuggled migrants.

State parties are likewise required to set out on a scope of prevention

measures including fortifying local data projects to build open public

awareness of the risks confronted by migrants and teaming up with different

states to prohibit enrollment of migrants by criminal groups.35. As in the

Trafficking Protocol, there are no arrangements in regards to medical,

psychological or social recovery which include help with housing,

employment, and job training36.

States should ‗take appropriate measures to afford the migrants‘

appropriate protection‘ against violence from smugglers and where their lives

are in danger. Anne. T. Gallagher reprimands that the term 'appropriate ' is

too ambiguous and there is no instruction about what the suitable measures

are. Further, the Protocol explicitly enables the states to detain the smuggled

migrants provided they are offered the imperative consular access. It likewise

permits to return them back to their countries of origin quickly. Consequently,

in terms of security, the trafficked migrants are in a superior position than the

smuggled migrants.

Furthermore, another drawback identified by Anne.T. Gallagher is that

both protocols do not impose a mandate on the states to provide any

34
Ibid, art. 9 and art. 6(1)).
35
Ibid, art. 15
36
<[Link] (4 of 7)12/3/2007 [Link]
PM Migration Information Source> accessed 24 July 2018

12
particular immigration benefits for the victims to regularize or expand lawful

access to their territory or to address the protracted mismatch between the

supply and demand37.

1.4 Evolution of Legal Regime on Human Smuggling

As per Anne T. Gallaghar, at a national dimension, fewer have looked

into the occurrence of migrant smuggling until the late 1980s38. The United

States have started initiatives in the mid1960s with the cessation of a ‗guest

worker programme between Mexico and the US‘39. In 1965, the INS Act has

shaped the foundation of the current US migration system 40. This reform is

described as ‗a bad match for the structural forces that were already taking

hold of the US migration system‘41 which incorporates major financial and

social changes in Mexico and Central America; an intense decrease in the

expense of long-distance transportation and a confound between supply and

demand for low cost labor in the US42.

As a result of this particular legal reform, illegal alien problem has

become a serious concern for the policy makers. The congress held 25 days

of hearings on illegal immigration between 1971-1973, and presidents

convened task forces to contemplate the issues and spend on migration

control expanding five-fold between 1970 -198543. In the 1980s and 1990s,

37
Jacoline Bhaba (n 24 )
38
Anne T. Gallagar, (n 5) 26
39
ibid
40
ibid
41
<[Link]
accessed 10 August 2017.
42
Anne T. Gallagar (n 5) 2
43
Ibid, 44

13
this issue had been elevated to the highest level and a presidential

proclamation declared ‗illegal immigration to be a serious national problem

detrimental to the interest of the United States‘ and promised that ‘the

attempted entry of irregular migrants from the high seas to United States

waters would be prevented by firm intervention‘44.

Anne. T. Gallaghar points out that since the major European countries

were in need of migrant cheap labour at that time, they did not take any

serious attempt in regulating irregular migration as in the US45.

The issue of migrant smuggling was brought into the international

agenda in 1993 when a Chinese vessel, the ‗Golden Venture‘, reached the

shore of New York. The then US President had released a presidential action

plan for combat alien smuggling46. The primary global response to human

smuggling originated from the IMO. After the ‗Golden Venture‘ incident, the

US submitted a draft resolution on the ‘enhancement of safety of life at sea by

the Prevention and Suppression of Alien Smuggling by Ship‘ to the IMO

Assembly47. This was adopted by the IMO in November, 1993 which called on

the member states ‗to cooperate in suppressing unsafe practices associated

with alien smuggling by sea, develop agreements and procedures to facilitate

such cooperation, share information on ships believed to be engaged in such

practices and either undertake or authorize inspection of their own ships

suspected of being engaged in unsafe practices associated with migrants

44
Ibid
45
Ibid, 2
46
Presidential Decision directive NSC-9 on alien Smuggling, The white house Washington.
th
18 June 1993.
47
Anne T. Gallagher, (n 5) 30

14
smuggling and take appropriate action against stateless vessels engaged in

alien smuggling‘. These arrangements later shaped the premise of Article 8 of

the human smuggling Protocol.48.

As a further step, the US has submitted a similar resolution as

submitted to the IMO to the UN Commission on crime prevention and criminal

justice on the ‗Prevention of Alien Smuggling‘. It has moved to the UNGA and

shortly after that, UNGA passed a resolution in 1993 on ‗prevention of

smuggling of aliens‘49. This resolution also concerns the risks and discomfort

encountered by the smuggled migrants. It calls the states to prevent root

causes. Subsequently, UNGA added the issue in the annual agenda of the

Commission on Crime Prevention and Criminal justice.

Western and Central Europe, North America and other countries have

had experienced a significant increase in the number of unauthorized

arrivals50. So, parallel development took place in Europe that strengthened

the international efforts. The Council of Europe adopted texts at the EU on

uncontrolled migration51. Gradually, all states started working towards a global

action52.

In 1997, the government of Austria made a proposal to develop

organized crime as a new crime as well as measures related to investigation,

48
Ibid
49
UNODC (n 25 )
50
Ibid, 28
51
ibid
52
D. McClean Transnational Organized crime ; A commentary on the UN Convention and Its
Protocols (2007) 21

15
prosecution, and extradition53. Austria noted in the proposal that organized

crime is a threat to the international community and emphasized on the need

of special attention. Italy too made proposals concerning trafficking of

migrants by sea and a multilateral convention to fight illegal migration by sea.

Finally, both Austria and Italy jointly pushed for an international instrument. As

a next move, an ad-hoc committee was established to draft an instrument.

The IMO issued a circular in 1998 mainly for the safety of life on a sea

perspective.

1.5 First Ever International Instruments to Respond to Human

Smuggling

The major steps were the adoption of the UN Convention on

Transnational Crime (UNCTOC) and the Protocol. The Protocol and UNCTOC

contain provisions in criminalizing the acts as well as in protecting the rights of

smuggled migrants.

The human smuggling Protocol has defined the smuggling of migrants

as ‗the procurement, in order to obtain, directly or indirectly, a financial or

other material benefit, of the illegal entry of a person into a State Party of

which the person is not a national or a permanent resident‘54.

Both these instruments require the states to take appropriate legal and

other measures to achieve the stated objectives of the instruments. The

Protocol defines human smuggling and urges states to enact laws to punish

53
Gallaghar (n 5) 33
54
Smuggling (n14) art. 3

16
human smugglers and protect the irregular migrant. A model law has been

prepared by the UN taking into consideration the various worldwide domestic

laws in incorporating punitive provisions for smugglers. The model law also

covers awareness creation about risks and international cooperation on

resource sharing, exchange of information, rights to assistance and protection

for smuggled migrants.

Besides the UN mechanism, bilateral agreements between countries

have also been signed. Resource and information sharing and mutual legal

assistance are now in place. However, studies have shown that there are

limitations in these mechanisms. At present, the gaps have been sought to be

filled through other human rights instruments.

1.6 Theoretical Approach to Human Smuggling

Sanne Taekema55 emphasizes on the importance of theoretical

approaches in academic fields. He expresses that the theoretical structure

gives the background of research and gives the theoretical basis. In this

background, this study has attempted to analyze the theoretical approach to

human smuggling.

Theorde Baird argues that even though there is a large amount of

literature available on human smuggling, the literature lacks on a systematic

review of the major theoretical and conceptual approaches56. He has

55
Sanne Taekema, The Concept of Ideals in Legal Theory, (Kluwer Law International 2003)
56
Theorde Baird, ‗Theoretical Approaches to Human Smuggling‘, (2013) DISS Working paper
2013 :10 <,[Link]
10_ted%20baird_human%20smuggling_web.pdf> accessed 12 October .2017

17
organized the diversity of theoretical approaches used in the study of migrant

smuggling57. To have a further theoretical understanding on human smuggling

attempts, an overview is provided of the existing models in Chapter II. The

core of the discussion on theoretical understanding of human smuggling is

summarized below.

Global literature available on human smuggling analyses the issues

under different theoretical models. These can be categorized as the Business

Model, Human Rights Based Model, Organizational, Criminological and

Network Approach Model, Estimates of Flow, Mode of the Crossing and the

Likelihood of Apprehension Models, Gender Approach, Global Comparative

and Structural Approach, Labour Demand and Supply, and Deterrence

Theory Model. Theoretical approaches have been developed through

empirical evidence available around the world.

John Salt & Jeramy Stain58 and Cleo J. Kung 59

perceive human

smuggling as a business. They claim that this model theorizes human

smuggling as a business composed of legitimate and illegitimate markets in

which actors pursue profit and commercial gain. Cleo .[Link] summarizes

that human smuggling is a profit-making business and the beneficiaries are

the destination country employers, smugglers and officials from source

countries60. Veronika Bilger and others 61

extend this model to the

57
Ibid,
58
Salt and S. Jeremy, (n 23 ) , 49
59
Cleo [Link] (n22 ) 1273
60
[Link] (n 22) 1279

18
transnational service industry. In this model, the smugglers are perceived as

service providers and the migrants as clients. Emma Herman62 has added a

familial model to this theory saying smuggling is also facilitated by family,

friends and relative circles.

63
According to John Salt and Jeramy Stain , the Organized Criminal

Model shows human smuggling as a criminal activity committed by well-

organized networks with links to the trafficking of women, other goods and
64
services such as weapons or drugs. Cleo [Link] argues that the most

affected party in this model are the smuggled migrants.

According to Tom Obakaoto65, the Human Rights Model discusses the

obligations to ensure the rights of smuggled migrants irrespective of their

status. The model theorizes that individuals have a right to leave their country,

but are denied the corresponding right to enter another. Abdelnaser Aljahani66

too emphasizes that the Human Rights Approach should be taken into

account when dealing with smuggled migrants.

The Deterrence Approach Model is based on the nexus between the

punishment imposed on human smuggling related offences and the result of

61
Veronika Bilger, Martin Hofmann, and Michael Jandl, ‗Human Smuggling as a
Transnational Service Industry: Evidence from Austria‘ , [2006] 59, IOM , International
Migration Vol. 44 (4) 2006
62
Emma Herman, ‗Migration as Family Business, the role of personnel networks in the
mobility phase of migration‘ (2006) 44(4) International Migration, 197
63
Jeramy Salt, (n 23 ) 43-44
64
Cleo [Link] (n 22 ) 1282
65
Tom Obakato ‗Smuggling of Human Beings from a Human Rights Perspective: Obligations
of Non-State and State Actors under International Human Rights Law‘, [2005] Int J Refugee
Law 394-415.
66
Abdelnaser A Aljahani, ‗The Legal Definition of the Smuggling of Migrants in Light of the
Provisions of the Migrant Smuggling Protocol‘, [2015]. Journal of Criminal Law,

19
such punishment; i.e. whether the punishment is lower than the smuggling

offences. Andrew Trotter and Matt Garozzo argue whether deterrence has an

effect on bringing down the offences67.

The Gender Approach Model theorizes how men and women are

exploited in human smuggling. This theory finds women being more

vulnerable to human rights abuses. Sometimes failed smuggling ventures

may use the women in trafficking68.

Estimates of Flow, Mode of Crossing and Likelihood of Apprehension

Models see the smuggled migrants‘ data collected through modus operandi

E.g. How many boats are intercepted by border control officials?

According to Petrous. M69, human smuggling is seen as the result of

political, economic ,legitimate, and social variables which differ across globe

and time making room for comparisons. This is called the Global and

Comparative Structural Model. This model emphasizes the diversity of or-

ganizational forms, causes and consequences of human smuggling in

different places at different times across the globe.

67
Andrew Trotter and Matt Garozza ‗Mandatory Sentence of People Smuggling: Issues of law
and Policy [2012]. Melbourne University Law Review ,553
<[Link] accessed 9 September
2017
68
Anne.T. Gallghar (n 5) 552
69
Petros, M.(2005). The costs of human smuggling and trafficking. Global Migration
Perspectives, Report No. 31, April 2005. Geneva: Global Commission on International
Migration (GCIM).

20
 Another is the Labor Demand and Supply Model. According Cleo
70
[Link] , the availability of labour with low wages in destination countries is

a push factor for human smuggling.

1.7 Responses of Destination Countries

As discussed previously, any country‘s counter measuring on human

smuggling should aim at punishing the smugglers and protecting the rights of

the smuggled migrants. State parties to the UNCTOC and the human

smuggling Protocol have taken legal measures in order to address the first

one and not much on the latter. Notably, the Australian Migration Act, 1958,

Criminal Code and the Anti-People Smuggling Act, 2010 have stipulated

people smuggling offences and the relevant punishment. Further, smuggled

migrants are mandatorily detained in off shore detention camps which is

contrary to the second objective of the Protocol that says smuggled migrants

should not be targeted as offenders on the principle of presumption of

innocence. Further, Australia intercept the boats at high sea and send them

back to the country of origin without considering whether the boat migrants

include genuine refugee claimants or not71. This act violates the principle of

non- refoulment under international refugee law.

Canada addresses organized crime under the Immigration and

Refugee Protection Act, 2001. Although the degree of the detention varies, as

70
Cleo (n 22) 1291
71
Natalie Klein, Assessing Australia's Push back the boats Policy under
International law: Legality and Accountability for Maritime Interceptions of
Irregular Migrants [2014] , 15 Melbourne J. of Int'l Law 1

21
in the case of Australia, Canada too practices immigration detention72.

Immigration and Naturalization Act, 1986 penalizes human smuggling as an

offence. The US has started the immigration detention practice from 199073.

The EU has taken regional measures issues connected to human

smuggling74. In 2015, the EU action plan against migrant smuggling

developed a mechanism to enhance the assistance to migrant victims.

Furthermore, countries like Belgium, Italy and France have exclusive penal

provisions to address human smuggling. Country specific measures are being

taken with regard to migrant victims.

Certain countries fall under the category of both destination and transit.

Example: As a transit destination, Malaysia‘s Anti-Smuggling of Migrants Act,

2007 includes provisions for various crimes with punishment from 5 years to

15 years. Except for very few states, others deal with the rights of the

smuggled migrants under international human rights law regime. These states

have taken regional, bilateral and intergovernmental measures with regard to

arresting intelligence gathering, evidence, extradition and mutual legal

assistance.

1.8 Responses of Source Countries

It is important to consider that source countries around the globe are

hesitant to make laws regarding this offence. They generally consider human

72
Benjamin Perrin, "Migrant Smuggling: Canada's Response to a Global Criminal Enterprise"
[2013] International Journal of Social Science Studies 144
73
Centre for Immigration Studies: historical Overview of Immigration Policy.<
th
[Link] accessed on 15 December 2018
74
Khalid Koser, Irregular migration, state security and human security (2005) Global
Commission on International Migration , A paper prepared for the Policy Analysis and
Research Programme

22
smuggling as an ordinary crime75. It is dealt under immigration laws.

Exceptionally, however, there are examples to say that few source countries

have taken legal measures in this regard.

Until May, 2018, none of the South Asian countries have taken a

special counter legal measure on human smuggling. As a progressive move,

Pakistan is the first South Asian country which has brought Anti Human

Smuggling Act in 2018. It is also worthy of noting that although Pakistan is not

a state party to both the UNCTOC and Protocol, it has enacted a piece of

legislation with the help of the UNODC. The act is in line with international

legal regime in terms of definition, range of offences, punishment, nature of

the crime and the rights of smuggled migrants.

In Sri Lanka, the only law that is applicable is the Immigrants &

Emigrants Act 1948 as amended76. There is no definition on human

smuggling. Facilitation of illegal departure and entry were made an offence in

2006. The maximum punishment is up to five years of imprisonment. Bail can

be granted to this offence by the High Court which is not the case in some

countries77. These amendments came into existence in consideration of Italy‘s

request. In Sri Lanka, the victims of human smuggling are also targeted as

offenders which is in contrast to the Smuggling Protocol which states that they

should be considered as victims. Sri Lanka does not consider smuggled

migrants as victims.

75
According the Human Smuggling Protocol, it is serious crime punishable by more than 4
years‘ imprisonment.
76
Immigrants & Emigrants Act 1948
77
Ibid, section 47(1)

23
1.9 Statement of Problem

Continuously expansion of human smuggling is becoming a serious

issue. It is connected to multifaceted problems such as other transnational

organized crimes, terrorism, national security of states, maritime security,

protection of territorial border, unlawful labour practices by the employers and

violations of the smuggled migrants.

Sri Lanka is no exception to this problem. The genesis of human

smuggling and its accentuation in Sri Lanka may be attributed to several

factors. There has always been a search for more attractive and lucrative

opportunities in countries outside your own. Policy failures in the post-colonial

era with lack of employment creation and a protracted conflict had caused

uncertainties about the future which have generated the desire for leaving the

country. Even after the end of the war, a delay in post conflict settlement and

a return to normal life have created an uncertainty about the future. Besides

these reasons, from the country of origin, the craving for cheap labour in

destination countries has also caused human smuggling78.

Canada, Italy, UK, US and Australia seem to be the most attractive

destinations and among these, Australia appears to be most favored by

migrants79. A rapid increase in Sri Lankan illegal migrants to Australia through

78
<[Link]
1288877981391/Migration&Development-Ratha-GFMD_2010a.pdf> accessed 5 April 2017
79
<[Link]
th
[Link]> accessed on 25 December 2014

24
boats has been recorded during 2008 to 201380. Irrespective of Australia‘s

enhancement punishment and policy changes, the attempts by the human

smugglers have never come to an end till date.

The technique of human smuggling is being increasingly used for

persons to obtain illegal entry into other countries. Sri Lankan migrants are

subject to prolonged mandatory / administrative detention in the countries

where they are detained. They are often denied of employment, food, water

and other basic needs. Since 2001, there have been proposals on enhancing

and reforming legal provisions or introducing new laws to meet this situation 81.

This was however, kept in abeyance. In 2006, two notable amendments have

been brought in to penalize facilitation of illegal entry and departure. It was

expected that with the end of the conflict in 2009, the reasons for asylum

seeking would have decreased. However, far from diminishing, there had only

been an escalation82. Various sources specify that human smuggling related

offences have increased at the same pace as that of the increase in irregular

migration. Smuggling occurs through two modus operandi, namely, air and

sea. The most hazardous is the one by sea. There are deaths of smuggled

migrants and disappearances that thave been recorded. Migrants are

80
According to media reports and Australian official‘s records and statistics of the Australian
Department of Immigration and Citizenship (ADIC), 2009 - (1413 Sri Lankans were
apprehended by Australian officials during the first six months of this year. According to
reports, 211 people were said to have arrived in Australia in 2011, 579 in 2010, and 739 in
2009.)
81
A. Schloenhardt‘ Trafficking in Migrants: Illegal Migration and Organized Crime in Australia
and the Asia Pacific Region‘ [2001] International Journal of the Sociology of Law , 377
82
Immigrants and Emigrants Act 1948, sec. 45, 45A and 45C as amended in 1961, 1993,
1998 and 2006 remain the relevant provisions. According to sec.45 (c) of the Act(a)any
person who organizes one or more persons to leave Sri Lanka (b) attempts or does any act
preparatory to or aids and abets any other person to so organize under paragraph a shall be
guilty of an offence. Any person guilty of an offence under the section shall be punished with
imprisonment of not less than one year and not more than a 5 years‘ term. It is a non bailable
offence

25
vulnerable to human rights abuses before, during, after departure and even

after return. It is a threat to the national security of Sri Lanka and it also

affects the relationship among several states.

In 2012, once again, discussions were held on the need of introducing

new legal provisions83. It has been with the legal draftsman for a long time84.

It is said that the new law will include a definition with provision for enhanced

punishment. However, so far, this has been at the discussion

stage. Therefore, there is a need not only to pick up the threads, but also to

seriously engage in a dialogue to enhance and strengthen the existing laws

and to enact new legislations where necessary in conformity with international

standards.

Sri Lanka's Ambassador and Leader of the Sri Lanka Delegation to the

UN in Geneva, Ravinath Ariyasinha, has observed during the interactive

dialogue on 15th June, 2015, at the 29th Session of the Human Rights

Council85, that, ‗Sri Lanka is aware of the importance of looking at the issues

related to irregular migrants in a nuanced manner and the need to develop a

coherent national policy, as well as additional capacity and resources required

…‘

83
<[Link]/law/foreign-news/.../sri-lanka-plan-in-place-to-revise-immigration-law/>
th
accessed on 12 June 2015
84 th
Information provided by the Legal draftsman on 12 July 2018
85
Colombo Telegraph SrI lanka take Action against Traffickers <
[Link]/[Link]/sri-lanka-takes-action-against-traffickers> accessed 10
September 2015

26
 Although there is considerable evidence to indicate that there is a

continuing escalation of human smuggling, the present laws have shown a

gross inadequacy in enforcement measures. This is clearly reflected in the

relatively small number of cases that have been put on trial and the increase

of irregular migrants.

The international legal regime aims to criminalize smuggling as a

serious offence and assure the protection of the rights of the smuggled

migrants. It has called the states to come forward and take counter measures

to that end.

In view of the transnational nature of the offense, the international legal

regime needs to be consulted in order to achieve coordination. This has to be

done through raising legal awareness and introducing adequate and

appropriate laws, together with concrete measures for implementation.

The importance of addressing the issues and the obligation of states

have been reiterated by Sri Lanka in the UN Human Rights Council, Bali

Process and national forums. Further, Sri Lanka has been asked to promise in

the same forums to look at the human smuggling in a nuanced manner.

Although Sri Lanka fully understands the intricacies of the problem of human

smuggling, it has not taken any concrete legal measures so far. The

Immigrants and Emigrants Act, 1948 partially covers the problem. But, the

core objectives of the UNCTOC and Protocol cannot be achieved with the

existing law.

27
 Smuggled migrants are vulnerable to human rights abuses before,

during, after departure and even after return. It is a threat to the national

security of Sri Lanka and affects the relationship with several states.

Therefore, a firm commitment by Sri Lanka has become an imperative need.

An effective legal framework becomes all the more necessary to penalize the

human smuggling and address the untold problems and hardships caused to

the migrants who are being subjected to human rights abuse, discrimination,

marginalization and exclusion86 and problems that persist even after returning

to the country of origin.

1.10 Review of Literature

Emily Howie‘s special article on ‗Illicit Migration to Australia by Boats

from Sri Lanka‘87:- The findings of the study is based on both qualitative and

quantitative data. The article provides a detailed understanding of the causes

of human smuggling from Sri Lanka. This article does not have reference to

any legal measures of source county or destination either.

Research Study on Human Smuggling in Sri Lanka: ‗Windows for

intervention by the International Organization for Migration‘88- This is a small-

scale three-month study. The study is based on quantitative and qualitative

86
Smuggling (n14) art. 6
87
Emily Howie, ‗Illicit Migration to Australia by Boats from Sri Lanka‘ Economic and Political
Weekly [2013] EPW ,Aug31
88
Danesh Jayatilake, ‗Research Study on Human Smuggling in Sri Lanka: ‗Windows for
intervention by the International Organization for Migration‘ (2010)<
[Link]
[Link] > accessed 10 November 2014

28
data that consist of both informal and structured interviews. It is based on a

convenient sampling method. But there is no systematic method that has

been adopted. This paper provides a description on the history of smuggling,

legislation, occurrences of smuggling, destinations, mapping of recruitment

and route processes, causes of migration and construction of a victim profile.

The researcher has highlighted that the Sri Lankan legislation is weak, and

also that smuggling is a technical offence. Therefore, the arrests and

convictions are low. He further says that a weak state‘s penal system acts as

a serious impediment in combatting human smuggling. Even though the study

indicates that the Sri Lankan legal framework regarding human smuggling is

weak, the findings have not been supported by concrete evidence.

A teaching guide on ‗Human Trafficking, Smuggling and Forced

Labour: An introduction to the legal and normative framework‘ has been

prepared by the International Labour organization89. This guide explains the

difference between trafficking and smuggling. It gives an overview of the

national legal framework of Sri Lanka in dealing with both offenses. It also lists

out the international legal framework for both trafficking human smuggling.

One section is allotted for the rights of the victims although the reading is

basic enough to understand the domestic legal provisions relating to human

smuggling in Sri Lanka. This guide has not attempted in performing an in-

depth analysis.

89
ILO, A teaching guide on Human Trafficking, Smuggling and Forced Labour : An
introduction to the legal and normative framework(2010)

29
 Maritime security concerns in the Indian Ocean; Sri Lanka‘s perception

of overcoming challenges90:- This article speaks of the challenges faced by

Sri Lankans in regulating maritime related activities such as illegal fishing,

maritime piracy, arms smuggling, human trafficking and smuggling. He has

drawn the attention to Sri Lanka being identified as a transit point by human

smugglers. The author suggests that there are hurdles for the navy to

proactively act in combatting the illegal activities.

A growing concern on human smuggling and human trafficking has led

to a panel discussion organized by the Press Council of Sri Lanka in 2012 91.-

This discussion indicates that the Immigrants Act of Sri Lanka, 1948 captures

the essence of smuggling. But it does not detail the provisions to show how

human smuggling is incorporated compared to international law. The opinion

is self-contradictory because in the same discussion, the ILO has expressed

the view that a detailed study has not been conducted on human smuggling

since it is mandatory to confine to the rights of the migrant workers and not

really with smuggled migrants per se. Hence, the opinion made by the ILO

with regard to human smuggling needs an in-depth study to prove whether the

provisions of the IME Act are adequately covered by the essence of human

smuggling.

90
Admiral R. C. Wijegunarathne, ‗ Maritime Security concerns in the Indian Ocean: Sri
Lanka‘s Perception of overcoming Challenges , <
[Link]
[Link]> accessed 10 December 2016
91
<[Link]
trafficking-in-sri-lanka-interview-with-ilo/> accessed 10 December 2015

30
 Migrant smuggling in South Asia currently trends and challenges a

report by the UNODC in 2015. -This report illustrates the number of Sri

Lankan smuggled migrants apprehended in transit and destination states from

2008 to 2012. This report also indicates the places where fraudulent

documents were produced in Sri Lanka. It also mentions the official

corruption in document preparation. This report suggests that national law

should be strengthened to penalize smuggling offences and protect the rights

of the smuggled migrants. Therefore, there is a need of legal responses.

Transnational Organized Crime and New Terrorism in Sri Lanka; A

nexus? -A master thesis.92 – This thesis refers to human smuggling as one

of the TOC that takes place in Sri Lanka. It explains how the LTTE carried out

human smuggling operations including fraudulent document preparation. This

thesis found out that most Tamil migrants were smuggled from Sri Lanka. Sri

Lanka is a transit route as well. The involvement of the Navy in human

smuggling to Australia is explained. Another finding is that smuggling is

carried out due to a lapse in international network law enforcements and

corruption in the state apparatus undermining national efforts to combat the

TOC. Internal and external politicization, lack of effective strategies and

resources and bureaucratic inefficiency and corruption have seriously

undermined the effectiveness of the law enforcement institutions. This study

indicates that the lack of legislative changes in prosecution is a hindrance to

address transnational organized crime. It recommends a new legislation to be

introduced to tackle the TOC. Further, the study also makes reference to the
92
Panditha, Wickramasekara Ajith, ‗Transnational Organized Crime and New Terrorism in Sri
Lanka: a nexus?‘ A (Master thesis, Naval post Graduate School Monterey, California 2017
) < [Link] >accessed 12 September 2018

31
establishment of new agencies and need to employ new technologies. This

study is on a defense perspective.

An article titled ‗Irregular Migration as a Potential Source of Malaria

Reintroduction in Sri Lanka and Use of Malaria Rapid Diagnostic Tests at

Point-of-Entry Screening‘93 is based on a case study of a 42-year-old male

Tamil smuggled migrant from Sri Lanka who was diagnosed with Malaria

while returning from West Africa (transit route to Canada) along with a group

of smuggled migrants. Although this study is not directly relevant to my study,

it gives background information on the relevant problem. This shows the

sufferings of the smuggled migrant at the transit point and failure on the part

of the smugglers in providing due basic and medical facilities irrespective of

the fact that they are charged a large sum form the migrants. One death

occurred and all of them returned to Sri Lanka. It mainly highlights the failure

on the part of medical authorities in Sri Lanka in providing timely medical

treatment.

The process of Sri Lankan migration to Australia focusing on irregular

migrants seeking asylum:94 -This article considers the overall irregular

migration which includes irregular migrants who seek the assistance of the

smugglers. The researchers interviewed two human smugglers and four

93
Wickramage K, Galappaththy GN, Dayarathne D, et al. ‗Irregular Migration as a Potential
Source of Malaria Reintroduction in Sri Lanka and Use of Malaria Rapid Diagnostic Tests at
Point-of-Entry Screening.‘ [2013] Case Rep Med. 52
94
Graeme Hugo and Lakshman Dissanayake, ‗The process of Sri Lankan migration to
Australia focusing on irregular migrants seeking asylum‘ , [2010] Occasional Paper Series10
<
[Link]/publication/321650677_The_process_of_Sri_Lankan_migration_to_Au
stralia_focusing_on_irregular_migrants_seeking_asylum> accessed 12 December 2016

32
facilitators. This paper indicates that mostly Tamil migrants from Jaffna,

Batticaloa and Trincomalee get the services of the smugglers. A considerable

number of Sinhalese also employ this method. It suggests that legal avenues

should be strengthen to streamline the legal migration. But it did not detail

how it should be done.

Available literature with regard to human smuggling in relation to Sri

Lanka highlights the seriousness of human smuggling and connected

problems thereto. However, so far, there is no single in-depth study on law

governing human smuggling.

1.11 Significance of the Study

As pointed out in the literature review, it is clear that there is gap in

legal studies in relation to human smuggling. Further, the destination states

repeatedly request Sri Lanka to enhance the punishment of human smuggling

and Sri Lanka too has made a commitment at international and regional

forums to take counter measures on human smuggling.

There is thus a need for a new coordinated commitment to develop a

new applicable legal framework which will (1) define the specific crime of

human smuggling (2) enhance the penalties/punishment for offences (3)

provide protection for the victims and witnesses.

Among the first steps that are necessary is the introduction of a

legislation enabling and supporting the prosecution of specific offenses.

33
Before that, it is necessary to identify the research gaps in existing literature

with particular reference to Sri Lanka. The researcher has identified the gap

by reviewing the above literature and understood there is a need for this

study. This research study will enable to formulate a policy, initiate dialogues

and enrich knowledge and also assist Sri Lanka to establish a comprehensive

counter smuggling legal framework.

1.12 Hypotheses

 The existing Sri Lankan domestic legal framework with regard to

human smuggling has not adequately incorporated the core objectives

set out in the United Nations Convention on the Transnational

Organized Crime and the Protocol to prevent and combat the

smuggling of migrants and protect the rights of the smuggled migrants.

 As a result of the non-incorporation of the stated objectives of the

above instruments in domestic legal framework, the smugglers have

escaped from punishments that are proportionate to the crimes that

they have committed and the violation of the rights of the smuggled

migrants are not effectively remedied.

34
1.13 Research Objectives

To test the hypotheses, this study probes into the following objectives:

As stated earlier, various theoretical models have been developed by

different scholars to understand the problem of human smuggling. These

models provide a clear picture on different facets surrounding the issue of

human smuggling. To respond to the issue of human smuggling, it is

important to understand the different theoretical approaches before

recommending any concrete legal measures. Keeping this in mind, the first

objective of the study is to identify and analyze the theoretical frameworks that

are underpinning the issue of human smuggling to clarify the different facets

that are connected to the problem.

Human smuggling has been identified as a transnational organized

crime and specific binding legal instruments have been developed by the

international community. These instruments require the states to understand

the gravity of the issue and call the states for meaningful legal measures

against the transnational organized crime. They set out specific objectives to

be achieved both by the international community and states at an individual

level. Therefore, it is necessary to have a clear understanding about these

instruments to make any suggestion to Sri Lanka with regard to legal

responses. In this respect, the researcher‘s second objective of the study is to

critically analyze how far the stated objectives of the UNCTOC and the

Protocol have been effective in the international framework on human

smuggling.

35
 There are few small-scale studies that have been conducted on this

issue. The UNODC and other regional and global reports have noted that Sri

Lanka is a hub for transnational crime. There are studies on transitional

crime; again which covers trafficking, money laundering, drug trafficking and

human smuggling. Further, the Protocol specifically states that the root

causes of the human smuggling should be addressed by the country of origin

and the victims of human smuggling should be protected. These are legal

obligations of the country. Based on these two grounds, the researcher ‗s third

objective of the study is to describe the magnitude of the problem of human

smuggling in Sri Lanka by analyzing the profile of the migrants, causes of

human smuggling, process of the smuggling, its impacts and the trends.

As mentioned previously, the Immigrant and Emigrant Act 1948 does

not punish the culprits of human smuggling as offenders of serious crime

lightly. Sri Lanka is under obligation of the UNCTOC to address the

transnational organized crime including human smuggling. Taking this

situation into account, the researcher enumerates the fourth objective as to

assess to what extent the existing domestic legal framework penalizes

migrant smuggling and protect the rights of the smuggled migrants as

required by the international legal framework.

Mere legal provisions are not adequate to solve a legal issue. The

meaningful translation of these substantial provisions into practical application

gives a dramatic solution to any legal issue. Considering the importance of

36
effective law enforcement is crucial in bringing down the offences and

protecting the rights of the smuggled migrants. The fifth objective of the study

is stated as assessing how the best law enforcement mechanisms have been

adopted in Sri Lanka and other selected source, transit and destination states

to translate the stated objectives of the UNCTOC and the Protocol into

domestic sphere.

1.14 Research Questions

Based on the hypotheses and objectives, the research questions that have

been addressed in this study are;

1. What are the theoretical frameworks so far developed with regard to

human smuggling?

2. How far the international legal framework has achieved the stated

objectives of the UNCTOC Protocol, namely criminalizing migrant

smuggling, protecting the rights of smuggled migrants as well as

promoting international cooperation among the states to that end?

3. What is the magnitude of the human smuggling in Sri Lanka?

4. How far the domestic laws are in conformity with the international legal

regime? Both with respect to penalizing human smuggling and

protecting the rights of the smuggled migrants.

5. Is the current law enforcement mechanism available in Sri Lanka

adequate both with respect to combatting human smuggling and

protecting the rights of the smuggled migrants?

37
 6. How can Sri Lanka strengthen the implementation of mechanisms

while learning the best practices from selected jurisdictions?

7. How can international and regional cooperation be developed both with

regard to legal provisions and implementation?

1.15 Justification for selection of different jurisdiction for a

comparative study

1.15.1 China

China is a source country which produces large number smuggled

migrants. The following reasons are given to justify that Sri Lanka can learn

lessons from China in order to tackle the human smuggling problem in Sri

Lanka. According to various sources, the first Chinese migrant smuggling

incident which provoked the international community to develop a legal

regime, particularly concerning on the plight of the migrants who are taken

through maritime borders. Secondly, most of the theoretical models such as

the Business Model, Organized Criminal Model and Labor Demand and

Supply Model have been developed by the Chinese scholars based on the

smuggling activities by Chinese networks. Further, China and the US are

working together around four decades to address the issues connected with

human smuggling. Some studies indicate that the Chinese measure on law

enforcement has significantly reduced the number of smuggling ventures. In

this context, the researcher wants to learn the best practices from Canada.

38
1.15.2 Pakistan

Firstly, Pakistan is a South Asian country. Both Sri Lanka and Pakistan

share a common economic status in the South Asian context. Both countries

are part of the Bali Process on tackling human smuggling. Thirdly, Pakistan is

the first country in South Asia to adopt a special law in 2018 related to human

smuggling. In this context, Sri Lanka is able think of relevant laws in line with

Pakistan Act. Further suitable law enforcement mechanisms can be adopted

in SL.

1.15.3 Australia

Both Australia and SL come under the category of Commonwealth

Countries. Both are part of the Bali Process which address the issue of

human smuggling. Since 2008, a number of smuggled migrants from SL to

Australia had been increased. As a result, a number of joint measures have

been taken by both countries in sharing expertise, information, intelligence

gathering mutual legal assistance and extradition. Therefore, it is appropriate

to study the law and the law enforcement mechanism of Australia.

1.15.4 Canada

Canada is one of the most favourite destinations for Sri Lankan Tamil

smuggled migrants. Sri Lankan maritime boat smuggling to Canada in 2009

and 2010 paved the way to Canada to bring major changes in human

smuggling related laws in 2012. Further, Canada has established a CBSA

liaison office in Sri Lanka to give capacity training to the law enforcement

officers in Sri Lanka with regard to irregular migration.

39
1.15.5 The Unites States

The US is the first country which took an initiative concerning the

maritime smuggled migrants. It has successfully convicted leading heads of

human smuggling networks. Hence, Sri Lanka can adopt much from the

United States.

1.15.6 EU

EU countries are also targeted destinations of SL migrants. EU, as a

region, has taken legal measures to handle this criminal venture. Some of the

EU countries have developed effective counter measures and countered the

criminal activities. In this background, Sri Lanka too could adopt law

enforcement measures from the EU countries.

1.16 Primary and Secondary Data

National law, International law and case law have been used as

primary data. In addition, responses from the smuggled migrants and the key

informant‘s interview answers were also used as primary data. Books. Book

chapters, journal articles, government reports, reports of regional forums,

INGOs and NGOs small scale studies and working papers have been

constant sources of reference as secondary data. A wide range of material

have been reviewed in relation to the theoretical approach of human

smuggling. This includes books, book chapters, journal articles and working

papers. These materials have shaped Chapter Two of the thesis.

40
 A comprehensive literature review of the international instruments,

national legislative provisions and case law of selected jurisdictions, individual

petitions to the human rights committee, international reports and journal

articles in the field of human smuggling have been referred mainly while

writing chapter III. This chapter essentially concentrates on the international

legal framework. In this chapter, the primary importance has been given to the

UNCTOC 2000, Protocol against the migrants, 2000 and UN Model law on

Human Smuggling 2006. Other international instruments namely UNCLOS

1982, UNCAC 2003, CSR1951 UDHR1948 ICCPR1966, ICESR1966 and

UNCAT1984 were also discussed quite extensively.

The above literature was important to assess the international legal

framework for combatting human smuggling. Moreover, it helped the

researcher to assess the international standards and it ultimately headed the

researcher to find the lacuna in domestic legal framework and find new ways

and mechanisms to strengthen the national law with regard to human

smuggling.

Responses from the smuggled migrants have been analyzed and the

finding are described in tables. The researcher has interpreted the results.

Further, the researcher has also made reference to literature which support

similar and dissimilar findings. In relation to routes, the researcher has used

various maps from Google and due acknowledgement has been made.

Review of Constitution of Sri Lanka 1978, IME Act 1948 , Bail Act 1997,

Bribery Act 1993 and Witness and Victim Protection Act 2015, Mutual legal

41
Assistance in Criminal Matters Act 2002, Extradition Law 1997, Criminal

procedure Act 1979 and Sri Lankan case law are critically analyzed in

Chapter V. Effective implementation of all the above laws are pertinent in

penalizing human smuggling related offences and protecting the rights of the

smuggled migrants.

A comprehensive review of literature related to legal provisions, law

enforcement procedures and the role of relevant state authorities in selected

destination, transit and source countries have been analyzed to outline

Chapter VI. The Migration Act 1958 (Australia), IRPA 2001 (Canada) INS Act

(the US) and EU Policy Directive have been mainly considered as important

literature. This literature review facilitated the researcher to learn the best

practices and lacuna in different legal systems. This analysis too supported in

coming up with a proposal to strengthen the existing legal framework in Sri

Lanka. In addition, studies conducted in Sri Lanka, government reports,

reports of NGOs and INGOs were also reviewed.

This research thesis has made significant reference to legal literature

dealing with bilateral agreements in relation to the MLA, extradition and other

regional arrangements, consultation workshops, various reports of expert

groups. This analysis was very crucial in finding out to what extent

international and regional cooperation has been employed in addressing the

issues relating to smuggling specially identification, prosecution and

conviction. This analysis also helped to suggest mechanisms that can

strengthen the regional and international cooperation to address the issue.

42
1.17 Research Method and Methodology

This study has undertaken both doctrinal and non-doctrinal

methodology. Under doctrinal methodology, descriptive, interpretative,

analytical and comparative approaches have been adopted. A quantative and

qualitative study have been adopted under no-doctrinal methodology.

1.17.1 .Doctrinal methodology

[Link] Analytical Approach95

A conceptual analysis is used to, (a) describe the indispensable

meaning of a concept, (b) postulate different meanings of a concept, or to (c)

describe the appropriate usage of a concept in specific instances. The

Second Chapter and Chapter V , have used this methodology.

Interpretative and analytical approach – Provisions of national laws and

international treaties and agreements with respect to human smuggling have

been interpreted and analyzed. The main objective of the study is interpreting

the relevant provisions and critically analyzing them to say what is lacking in

law and what should be done in the future. In order to achieve these

purposes, interpretative and analytical approached have been employed.

Chapter V and III are mainly based on this methodology.

1.17. 1. 2 Descriptive approach

Descriptive research has been defined as ‗a research method that

describes the characteristics of the population or phenomenon that is being

95 th
McMillian, J. and Schumacher, S. Research in education: A conceptual introduction (5 ed
]. New York: Harpers Collins College Publishers 2001}

43
studied and it mainly focuses on describing the nature of a demographic

segment without focusing on ‗why a certain phenomenon occurs‘ 96. This

methodology is mostly used to collect quantifiable information to be used for

statistical analysis of the population sample. A descriptive methodology has

been employed in Chapter IV of the thesis to analyze the responses obtained

from succeeded smuggled migrants.

1.17.2 Comparative methodology.

These days, comparative methodology has turned out to be well known

in legal studies. It is appropriate study to learn lessons from other

jurisdictions97. Mark Van Hoecke notes that in France, it was emphasized on

comparative law predominantly being an instrument for improving domestic

law and legal doctrine98. Many legal scholars deliberate comparative law to be

the essential instrument for a harmonization of law. This research mainly

focuses on legal responses to a transnational crime. Hence, comparative

analysis of law and law enforcement mechanism of selected jurisdictions have

paved the way to make suggestions in improving the domestic legal system

by learning about good practices of other countries. The comparative analysis

has been used in both Chapters three and six.

96
John. [Link], Research Design, Qualitative, Quantative and Mixed Method
th
Approaches [4 ed, Sage publication , 2014)
97
Mark Van Hoecke, Methodology of Comparative Legal research, available at
<[Link]
accessed on 20.12.2016
98
ibid

44
1.17.2 Non-doctrinal study

[Link] Qualitative study - Interview method

The interview method has been used to collect data from a set of key

informants in Manitoba, Toronto (Canada) and Colombo (Sri Lanka), in areas

covering academia, law enforcement and assistance and protection for

migrants.

The following table depicts the list of key informants included in the interview.

A semi-structured questionnaire was used for interviewing.

Sri Lanka Num Name Canada Num Name Australia

denoted denoted
Criminal 1 CID1 Canadian Border 2 CBSA 1 Interpreter
investigation Services Agency CBSA2 in inland
department immigration
Immigration and 1 IRB1 detention 1
Department of DIE 1 Refugee Board
Immigration – 2 DIE 2 Canada – Ausi 1
CRS 1
Sri Lanka Center for refugee 1
Navy - 1 SLN 1 Studies, York -
University – YK 1

Attorney 1 AG1 Osgoode Hall Law 1

General School, York UOM 1
Department- University UOM 2

Robson Hall Law 2

Private bar 10 PT 1 faculty - University SLM 1
Lawyers – TO of Manitoba
PT10
House for 1 HRT1
International 1 IOM 1 Trafficked Victims
organization -

45
for Migration
Centre For Victims 1 HRV 1
of Human Rights
Violation -

Table 1

[Link] .[Link] definition of “Key informants”

In this study, key informants mean ‗those who possess special

knowledge or who can provide valuable information on causes about the

smuggled migrants, smugglers, the law and the law enforcement process‘.

[Link] Why key informants have been included?

Those who work in the area of human smuggling was able to give an

idea about the problems such as causes for human smuggling, issues faced

by victims before, during transit, at the destination and after return. Further,

problems connected to witnesses and victims and how they impact the

identification of smugglers, prosecution and conviction.

[Link] Why interview method was selected to obtain information

from the key informants?

It is unlikely to get responses through structured questionnaires.

Therefore, the researcher employed unstructured questions and noted down

the answers then and there. Interviews with the academics, law enforcement

officials and activists have provided a picture about the profile of the migrants,

causes of human smuggling, issues faced by the smuggled migrants during

46
the human smuggling process, gaps in substantial law, procedural law and

other practical constraints in law enforcement. The summary of the

information provided by the key informants are included in the relevant

chapters.

[Link].1 Questionnaire method

The questionnaire method has been employed to get the responses

from the smuggled migrants. Prior to the commencement of the field work the

researcher established contacts with immigration lawyers. As per their

information, the researcher has selected six districts from which a vast

number of smuggled migrants have originated. Lawyers helped in getting

research assistants.

[Link].2 Sample frame and sampling -Selection of districts

Ethnic group District

Large number of Tamil smuggled migrants Jaffna, Batticaloa and

Trinco

Large number of Sinhalese smuggled migrants Galle, Tangalle

Large number of Muslim smuggled migrants Puttalam and Batticaloa

Table 2

Map 1

47
 Based on the information provided by the lawyers, the Criminal

Investigation Department and the literature review99, considering Sri Lanka as

a multi ethnic country, the selection of the sample districts has been done100.

[Link].3 Selection of returned smuggled migrants – Random

Sampling

In this study, the term ‗Returned Smuggled Migrant‘ (RSM) is defined

as anyone who has moved or attempted to move out of Sri Lanka through

irregular means and was either arrested at the point of departure/ mid sea by

country of origin or arrested and deported from transit/ destination country.

99
Graeme Hugo and Lakshman Dissanayake (n 94) 202
100
Based on multi ethnicity (Sinhala, Tamils and Muslims)

48
 The researcher has contacted twenty lawyers who deals with

immigration matters in the above six districts. Out of their clients, names and

contact details of ten RSM from each lawyer have been selected. The total

number of RSM was two hundred. Six research assistants were appointed in

the six districts.

The study was conducted among hundred and sixty RSM from six

districts. Initially, two hundred questionnaires were planned to used. However,

only hundred and sixty respondents answered. A mixed type questionnaire

(Closed ended, open ended and multiple-choice questions and contingency

questions) was employed to obtain information from the smuggled migrants.

Responses have been analyzed using the SPSS software. This was very

useful in gathering information on the migrants‘ profiles, causes of human

smuggling, sources of information regarding smuggling, level of awareness

about the law, modus operandi, issues during the journey, case process

details and behavioral data.

One of the objectives of this study is to assess the magnitude of the

problem and try to find a solution through legal mechanisms. When the

Parliament enacts a law, it is necessary to know the views of the parties who

are most concerned about the law. In order to suggest a legal framework, it is

necessary to get the responses from the most affected parties in the human

smuggling process. Moreover, successful prosecution is based on the witness

and victim‘s cooperation. In view of these things, smuggled migrants‘ views

are valuable data.

49
[Link].4 Sample Description

A majority of the RSMs were male. They make up of a ninety-two

percentage. Among the ethnic groups, Sri Lankan Tamils are the most

vulnerable community who has sought the services of smugglers. Migrants

are largely between the ages of twenty to fifty. The income level of the group

is between Rupees five thousand to forty thousand (LKR). The education level

is generally up to Secondary Education (Year One to Year Eleven).

[Link].5 Justification of the Empirical study

In understanding the magnitude of the human smuggling problem in Sri

Lanka, in order to suggest legal resorts, semi structured questionnaire and

structured questionnaires were used to collect responses from cornered

respondents.

1.18 Scope and Limitation of the Study

Although the act of human smuggling and human trafficking have

some common features it has to be recognized that they have each their

distinct characteristics. While noting the overlaps and common features this

study concentrates and focuses its attention in depth on all aspects of human

smuggling.

While human smuggling is connected with other transnational

organized crimes such as corruption and money laundering this

study examines the crime of human smuggling and has

50
made minimal reference to these crimes within the larger scope of

international and domestic legal framework. Reference has been made only

when it is relevant.

Most of the scholarly studies around the world reflect the perspective of

the destination countries relative importance of understanding the problem the

outlook of the source nations is not given due consideration. The researcher

had access to few studies regarding source countries. However, it has to be

seen as a major limitation of the study.

Reports and other notes of UNODC cover the global and regional

perspective of the problems in which references to source countries are also

presented. However, data and other facts relevant to Sri Lanka is highly

limited and considerably minimal.

When come into domestic literature concerning SL, there is no single

in-depth study on the legal perspective in relation to the area of my research.

Few scholarly works have been carried out on economic, social and health

perspective. Considering this situation, the researcher relied upon regional

reports and government reports from Australia and Sri Lanka, newspaper

articles, speeches made by Sri Lankan delegates in the international and

domestic forums regarding human smuggling. Further, opinions of the key

informants from SL were very much helpful to understand the procedural

issues connected with arrest/ deportation/ punishment of perpetrators and

returned migrants. Although the number of key informants was not a

51
representative sample, these opinions were useful to arrive at some

recommendations. Further, the said opinions in this study do not provide a

complete picture of the problem concerned because the opinions were not

systematically analyzed using any criteria.

Although the researcher had a plan to interview the judges the JSC of

Sri Lanka did not give permission to conduct the interview.

Researcher had to face difficulties in getting the filled questionnaire

back from migrants. RSMs were not interested in responding. Almost one

and half year was spent to collect 160 questionnaires from six districts.

RTI Act came into effect in 2016. The government officials are not fully

aware of the Act, especially, the importance of providing information, timelines

set out for acknowledging the receipt of the application and providing

information. In this background, after several telephone calls and reminders

the researcher has managed to collect information. Almost one and half years

was spent for this exercise.

1.19 Citation

The Researcher has adopted the Oxford standard for the citation of

Legal Authorities(OSCOLA) 4th edition 2012.

52
1.20 Chaptarization

Based on the hypotheses and research questions, this research has

been organized on the basis of the following Chapters.

First chapter is titled ‗Introduction‘. This chapter has provided a

comprehensive description of the research area chosen. The background of

the research, literature review, research problem, hypotheses, research

objectives, research questions, justification of the study and the research

methodology are elucidated in detail.

The second chapter is titled ‗Theoretical Approach to Human

Smuggling: An Overview‘ Different models of human smuggling have been

described. This Chapter describes the available theoretical models namely,

Business Model, Organizational, Criminological and Network Approach

Model, Human Rights Based Model, r Demand and Supply Model, Deterrence

Theory Based Model, Gender Approach Based Model, Estimates of Flow,

Mode of Crossing and Likelihood of Apprehension Model and Global and

Comparative Structure Model.

The third chapter is titled ‗Iinternational Legal Regime in Human

Smuggling: A Critical Study‘. The main scope of this chapter is discussing the

international legal instruments in dealing with combating human smuggling.

The United Nations Convention against transnational organised crime, the

Protocol against people smuggling via sea, land and air and the Model Law

against human smuggling have been analysed in depth. Apart from these two

53
significant international instruments, this Chapter looks at the UN Model Law

on Human Smuggling, the UN Convention on the law of the Sea, the Mutual

Legal Assistance Treaties, the UN Convention Against Corruption, the

International Covenant on Civil, Political, Economic and Social Rights, the

Convention on the rights of the child and the UN Convention against torture

and international conventions relating to the status of refugees.

The Fourth Chapter is ‗Magnitude of Human Smuggling in Sri Lanka

with particular Focus to Narrative of Field Study‘. In this Chapter, a special

focus was given to Sri Lanka. Smuggling through air and sea, the ethnic

composition of the smuggled migrants, causes, routes and the violation of

rights of the migrants have been discussed under diverse subtopics.

Responses from 160 migrants have been analysed using the SPPS and they

are included in this Chapter. Furthermore, opinion of the key informants also

summarised and presented.

The Fifth Chapter is titled ‗Domestic Legal Framework: A Critical

Analysis‘. This Chapter has given primary importance to the Constitution of

1978, Sri Lanka, Immigrants and Emigrants Act 1948, Mutual Assistance in

Criminal Matters Act 2002, Victim and Witness Protection Act 2015, Bail

Act1997 and Bribery Act 1993. A large number of case laws has been cited.

Besides, it explains the nature of the international legal obligations as well as

their implementation at the national level.

54
 The sixth chapter is titled ‗Law Enforcement Mechanisms in Sri Lanka :

A Comparative Analysis with Selected Jurisdictions‘. This chapter has

especially discussed the responses of the law enforcement in different

destinations, transit and source countries. Australia, Canada, Europe and the

US have been identified as destination states. China, Pakistan and Sri Lanka

have been are considered as source and transit destinations. It is to be stated

that although Europe is considered a region, some of the good practices in

the selected European countries are also being discussed. These countries

are Italy, Belgium and France. In this Chapter, mechanisms of institutional

and other implementations and levels of awareness of law enforcement are

discussed. An attempt is made to explain the issues involved in identification

of human smugglers, investigation process and prosecution. This Chapter

further analyzes the international and regional cooperation in handling cases

such as mutual legal assistance. Moreover, this Chapter mainly concentrates

on special legal and institutional arrangement measures adopted by Sri Lanka

in relation to human smuggling and protecting the rights of irregular migrants

after their return. This chapter also included the opinion of the key informants

from SL and abroad.

The Seventh Chapter has concluded the study with few

recommendations to strengthen the existing legal framework of human

smuggling in Sri Lanka at an international standard.

55