The Legal Features of Smuggling Organisations in Light of the Provisions of the Migrant Smuggling Protocol

摘要

This article seeks to explore the legal features in international law of actors who carry out the operations of migrant smuggling. The legal features of smuggling organisations have not been considered by the Migrant Smuggling Protocol (the Protocol); the Protocol simply does not include a provision that defines the concept. Nonetheless, this article argues that a number of these features can be ascertained through the combined reading of Article 4 of the Protocol and Article 2(a) of the Convention against Transnational Organised Crime (UNCTOC). The former article creates a link between an organised criminal group and the application of the Protocol, while the latter article actually defines the concept of an organised criminal group. A number of deficiencies can be identified in the concept of an organised criminal group, given the features that characterise the actors who engage in the smuggling of migrants. Otherwise, the criterion of the structured group of three persons or more in the concept of an organised criminal group poses an obstacle to combating migrant smuggling. Therefore, this article suggests a number of amendments to this criterion.