Anti-smuggling and Anti-trafficking Measures: Are they compatible with the EU Charter of Fundamental Rights?

Research output: Book/ReportReport

Abstract

Combatting human smuggling and human trafficking has been one of the priority objectives of the EU and its Member States in their efforts to decrease the number of migrants arriving in EU territory. The development of strong cooperation with third-countries has been considered indispensable to the effectiveness of what is often described in EU documents as the ‘fight’ against human trafficking and smuggling. As part of this cooperation, third countries control movement, contain people and prevent their departures. These measures are undertaken with the expressed objectives of preventing migrants from losing their lives and becoming victims of human traffickers or of unscrupulous smugglers.
This Delmi report examines the compatibility of the EU measures against human smuggling and human trafficking with the EU Charter of Fundamental Rights. The measures that are part of the EU’s externalisation and outsourcing of migration control to third countries are not new. However, since 2016 the EU has been prioritising these forms of controls by providing incentives to third countries to restrict the movement of migrants. Yet while it cannot be denied that human smuggling and human trafficking can indeed lead to serious human suffering and even death, could it be that the EU and its Member States are actually violating human rights law with these anti-smuggling and anti-trafficking measures?
In its attempts to answer this question, this study provides a novel and distinctive addition to the research in this field. No previous study has specifically examined the question of whether the measures aimed at preventing human smuggling and human trafficking constitute human rights law violations. The study focuses on two rights from the EU Charter of Fundamental Rights: the right to life and the right to seek asylum. It concludes that the EU and its Member States might have failed to fulfil their positive obligations to ensure the right to life. It also concludes that the EU and its Member States might be in violation of the right to leave to seek asylum.
To reach these conclusions, the study examines the legal challenges related to the applicability of the EU Charter of Fundamental Rights to the anti-smuggling and anti-trafficking measures undertaken by the EU and its Member States. These challenges include the following factors. First, the individuals affected by the measures are located in third countries. Second, the measures are undertaken by various actors, including countries of origin and transit, and it might be difficult to distinguish the role of each of these. Third, the measures are based on informal agreements with third countries.
The study argues that the EU Charter of Fundamental Rights applies to individuals located beyond the borders of the EU. The EU Charter applies to EU institutions and bodies even when they act outside the EU legal framework. This means that any informal agreements with third countries can be scrutinised against the standards of the EU Charter. Whether or not the Charter applies to EU Member States in this context is, however, much more questionable.
The EU and the EU Member States have positive obligations to ensure the right to life in the context of the anti-smuggling and anti-trafficking measures. Given the empirical doubts as to whether the current measures achieve this objective, alternative measures need to be considered. These alternatives, while ensuring the right to life, will have to also accommodate States’ migration control interests. In light of these requirements, a possible alternative is offering safe routes to individuals in need of international protection. In addition, for the EU and its Member States to comply with their positive obligation to ensure the right to life, they need to initiate studies to assess the effectiveness of the current anti-smuggling and anti-trafficking measures. That is, to what extent the measures actually effectively ensure the right to life and to what extent any alternative measures (e.g. legal routes to entry) might be too burdensome or unreasonable.
Since the effects of the anti-smuggling and anti-trafficking measures are containment of people in third countries and preventing people from leaving, these measures interfere with the right to asylum. An integral element of this right is the right to leave to seek asylum. To be permissible, the measures that interfere with the right have to be ‘provided by law’. Considering the informal nature of the arrangements that form the basis for the measures, this requirement does not seem to have been met. The measures could thus be declared contrary to human rights law, based solely on the failure to meet the ‘provided by law’ requirement.
The measures that interfere with this right have to also pursue legitimate objectives in order to be permissible. It can be accepted that preserving the integrity of EU Member State borders by preventing arrivals is a legitimate objective. The objective of saving lives can also be accepted as legitimate.
It can, however, be questioned whether the chosen measures for achieving these objectives are necessary. There seem to be alternative measures that, in practice, might lead to the same number of people entering the EU yet at the same time better guarantee the right to leave to seek asylum. An example of such an alternative is offering legal and safe channels for exiting countries of origin and transit so that individuals can apply for asylum in EU Member States.

Details

Authors
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Research areas and keywords

Subject classification (UKÄ) – MANDATORY

  • Law

Keywords

  • Public international law, Migration law
Original languageEnglish
PublisherDelmi Swedish Delegation for Migration Research
Commissioning bodyDelmi - Delegation för Migrationsstudier
Publication statusAccepted/In press - 2020
Publication categoryResearch