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Home > Treaties and International Law > Treaty making process > National Interest Analyses > Smuggling of Migrants

Treaties and International Law

Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organised Crime Done at New York, 15 November 2000

National Interest Analysis

Date of Proposed Binding Treaty Action
Reasons for New Zealand to Become Party to the Protocol
The Migrants Protocol
Advantages and Disadvantages to New Zealand of the Protocol Entering into Force
Obligations
Economic, Social, Cultural and Environmental Effects
Costs of Compliance
Possibility of Subsequent Protocols
Legislative Measures
Obligations
Consultation
Withdrawal or Denunciation

Date of Proposed Binding Treaty Action

New Zealand will lodge an Instrument of Ratification with the depositary of the Protocol against the Smuggling of Migrants by Land, Sea and Air, Supplementing the United Nations Convention against Transnational Organised Crime (‘the Migrants Protocol’) after consideration of the Protocol by Parliament in accordance with Standing Orders, and the passage of the necessary implementing legislation. Ratification of the Migrants Protocol can occur only after New Zealand has ratified the Convention. The Migrants Protocol itself will not enter into force until it has been ratified by 40 states (article 22).

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Reasons for New Zealand to become a Party to the Migrants Protocol

Background

2 People-smuggling involves assisting the illegal entry of a person into a country for financial or other material benefit. Smugglers themselves benefit initially as they usually receive some form of payment for their services. The majority of smuggled people claim refugee status on arrival, which enables them to access work permits and social services. Smuggling can be contrasted with people-trafficking which relates to the targeting of people offshore, usually through coercion or fraud, to come to another country for a specific purpose that involves some form of exploitation, such as work in the sex industry or sweatshops.

3 The United Nations reports that the smuggling of people across international borders is the fastest growing criminal business in the world.[1] Profits from people smuggling and trafficking are estimated to be $48 billion dollars per year.[2] In some cases the criminal syndicates engaged in people-smuggling are also involved in other criminal activity, such as narcotics trafficking and the smuggling of conventional goods, such as cigarettes. Many of these groups have international networks and logistical organisations in place and can simply, and very quickly, change commodities. People-smuggling may be regarded as a good ‘business risk’ not only because of the profits from the smuggling itself, but also because of the low penalties. In addition, vulnerable illegal migrants often provide a ‘captive community’ that can then be further exploited and victimised, for example, individuals may be coerced into undertaking criminal acts, such as acting as drug couriers. Such migrant communities can also be a source of potential recruits. Even those crime syndicates that specialise in people-smuggling are often involved in a raft of ‘ancillary’ crimes. Activities such as money laundering, threats of violence, identity frauds, corruption and bribery are often necessary to facilitate smuggling of persons.

4 The movement of people for profit and exploitation leaves few countries untouched. Illegal migration can have security implications for source, transit and destination countries. Movements of people, particularly those not sanctioned by governments, run risks of heightening tensions within and between populations. For example, a sudden influx of people into a resource-poor or poverty-stricken area can create conflict between the usual residents and the new arrivals. In countries of transit, there are flow-on problems due to damaged relations with both source and destination countries. Without a cooperative approach this can create border tensions and impairs the free movement of people for legitimate reasons. In addition, xenophobia can feed or result from migration pressures.

New Zealand’s situation

5 Over the last few months the problems that Australia faces in combating people-smuggling have been graphically illustrated by various incidents, in particular, that involving the Tampa. This has, in turn, drawn attention to New Zealand’s ability to deal effectively with the problem.

6 While New Zealand has been the target of organised crime syndicates that are involved in people-smuggling, its comparative geographical isolation is an advantage. However, as Australia puts pressure on smuggling by sea by targeting “refugee boats”, it is possible that well organised groups based in South East Asia could increasingly look to New Zealand as an alternate destination, provided they can access sufficiently seaworthy vessels.

7 Generally, however, the organisers of illegal migration target New Zealand by air. In 2000 a Police investigation uncovered a syndicate that used a passport scam to bring up to 100 illegal migrants from the Middle East to New Zealand by plane. Of the 1600 refugee status applications made in 2000/01 277 were made on arrival at the border. New Zealand authorities note that almost all claims made at the border result from people paying people smugglers to facilitate their travel to New Zealand.

8 Travel document offending has serious implications for New Zealand. Not only are immigration requirements circumvented when people are smuggled into or enter New Zealand on forged or falsified passports, but also there could be other risks for New Zealanders as a result of their presence, for example, if the persons concerned are criminals or terrorists. The forgery or falsification of New Zealand passports can damage the international reputation of the passport as a document of integrity as well as jeopardising New Zealanders visa-free access to about 50 countries, and the opportunity to reside in Australia. Apart from facilitating illegal travel, forged or altered New Zealand passports can also be used as ‘identity documents’ to obtain welfare benefits, student loans, financial assistance, and retail credit, and can assist applications for the citizenship of other countries.

The Migrants Protocol

9 Over the last decade a number of regional and global bodies have focused on the problem of illegal migration. The Migrants Protocol is the most significant document to come out of these processes. Its purpose is “to prevent and combat the smuggling of migrants, as well as to promote cooperation among States Parties to that end, while protecting the rights of smuggled migrants”. The main obligations are set out in more detail below but, importantly, include the criminalisation of the people-smuggling as defined (encompassing recruitment and harbouring) and of associated activities, such as the fraudulent use of documents for the purpose of smuggling migrants.

Advantages and Disadvantages to New Zealand of the Migrants Protocol entering into force for New Zealand

Advantages

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10. There are a number of advantages associated with becoming party to the Protocol, which overlap with those noted in relation to the Trafficking Protocol:

It will assist in stemming the growth in illegal migration. (There has been a significant increase over recent years in illegal migration to New Zealand assisted by both people-smuggling and trafficking.)
Organised criminal groups often operate as businesses, looking for ‘easy’ market opportunities. At the present time there are big profits to be made from people-smuggling. There is evidence that many refugee status claims made in New Zealand are organised by persons who are profiting from the transactions.
New Zealand’s ability to deal effectively with people-smugglers is currently hampered by the lack of an appropriate range of criminal offences. Establishing people-smuggling as a criminal offence with a high maximum penalty should provide a strong disincentive for people to engage in the activity. It also sends a clear message that New Zealand takes these offences seriously and does not tolerate organised illegal migration.
There is evidence that New Zealand travel documents are being increasingly exploited by organised criminal groups: there has been more than a 100% rise in the number of documented attempts to misuse or forge New Zealand passports in the last decade.[3] Implementation of measures required under the Protocol provide a timely opportunity to address current deficiencies in the Passports Act and so help to preserve the reputation of New Zealand passports as documents of integrity.
In particular, given that New Zealand passports have been purchased on the black market for up to $100,000 each, the current penalties are low, unlikely to deter criminal activity, and at odds with penalty levels in other similar states and the Protocol’s requirement that signatories take the measures necessary to prevent the unlawful creation and use of their travel documents. As a result New Zealand may currently be perceived as a ‘soft target’ by criminal syndicates.
Similarly, increasing the penalties for the fraudulent use of other types of travel documents and visas or permits issued under the Immigration Act 1987 should serve as a further disincentive for engaging in document fraud.
Sanctions for employing illegal foreign labour in other countries is more severe than the comparable sanctions in New Zealand. Increasing the penalties for employing illegal migrants could provide a clear disincentive for the smuggling or trafficking of migrants for the purpose of undertaking illegal work.
Early ratification would signal New Zealand’s support not only for the fight against transnational organised crime generally but also its stand against this particular type of crime. As a small country, dependent on the rule of law, New Zealand’s interests lie in supporting such international initiatives.
As at 10 December 95 States have signed the Migrants Protocol. By ratifying the Protocol New Zealand would therefore be part of the large group of nations that recognise the need for effective international initiatives to combat this sort of crime.

Disadvantages

11 The Trafficking and Migrants Protocols attempt to distinguish between trafficked and smuggled persons, with the former being regarded as ‘victims’ and therefore entitled to greater protections. However, it is not always easy, in practice, to make the distinction between the two categories.

12 As noted in relation to the Convention, becoming a party to the Convention and the associated Protocols will involve an on-going commitment and obligations, particularly in relation to ensuring continued compliance with the cooperation, technical assistance and prevention provisions. It is also possible that, New Zealand, as a developed country, will be expected to make a greater commitment, over time, to the provision of assistance to developing countries to combat people-smuggling, which could bring with it additional costs. New Zealand’s compliance with the obligations in the Protocol will be reviewed by the Conference of States Parties from time to time.

Obligations that would be imposed on New Zealand by the Migrants Protocol and the position in respect of reservations

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13 The main obligations imposed by the Migrants Protocol are as follows:

States are required to criminalise the “smuggling” of migrants (which is defined as the procurement in order to obtain some benefit of the illegal entry of a person into a State of which that person is not a national or permanent resident) and other associated activities (such as fraudulent use of documents for the purpose of the smuggling of migrants and enabling a person to remain illegally in a State).
States are required to cooperate to the fullest possible extent to prevent the smuggling of migrants by sea. Various measures, including the boarding and searching of vessels are authorised, without prejudice to other international obligations.
States are required to ensure that smuggled migrants received the benefit of protections afforded by international human rights and law and other relevant international instruments such as the Vienna Convention on Consular Relations.
States are required to consider bilateral or regional arrangements to combat people-smuggling.
States must accept the return of smuggled persons who are their nationals or who have permanent residence at the time of return from the receiving state.
States may also consider facilitating or accepting the return of a person who had the right of permanent residence in their territory at the time of entry into the receiving State.
There are similar provisions to those in the Trafficking Protocol in relation to the strengthening of border controls to deter smuggling; and the integrity and verification of travel documents.
States are required to enhance public awareness of the criminal nature of people-smuggling activities and the risks involved.
States are required, in conformity with domestic law, to exchange information on smugglers and their methods of operation, along with experiences in combating this trade.
States must consider providing technical assistance. There is a general obligation for States to make efforts to provide resources such as vehicles and computer systems to source and transit countries to help combat the smuggling of migrants. There is also an obligation to promote or strengthen development programmes that take into account the socio-economic realities of migration and its root causes.
14 It should also be noted that most of the general provisions in the Convention apply, with any necessary modifications, to the conduct to which the Protocol relates.

Reservations

15 It is possible to make reservations to all the instruments in accordance with the Vienna Convention on the Law of Treaties (1969).

Economic, Social, Cultural and Environmental effects of the Migrants Protocol entering, or not entering, into force for New Zealand

16 As noted above, there are a number of general advantages of becoming party to the Protocol. Ratification will contribute to the fight against transnational organised crime generally which benefits all countries, and, in particular, to eliminating people-smuggling which, at the present time, is a fast growing international criminal business.

17 Controlling illegal migration, in all its forms, is in New Zealand’s best interests, as it has flow-on effects economically, socially and culturally. Many smuggled people claim refugee status on arrival in New Zealand, or claim after being granted a permit, and are then entitled to certain assistance while their status is determined. This can have costs for New Zealand. In addition, due to their illegal or uncertain status within countries smuggled migrants can sometimes be coerced into participating in illegal activities on behalf of organised criminal groups.

18 The approach in the Protocol, with the emphasis equally on prevention as well as prosecution, is consistent with the general approach that New Zealand takes to these issues, and with New Zealand’s human rights obligations. Compliance with the measures in the Protocol should serve to heighten further public awareness within New Zealand of the nature of people-smuggling and the risks associated with it. Ratification is not expected to have an adverse effect on Maori interests. Ensuring stricter compliance with New Zealand’s immigration policies is more likely assuage concerns about the effect of immigration on New Zealand’s cultural identity.

19 For New Zealand citizens it is also necessary to preserve the international reputation of the New Zealand passport as a document of integrity. Failure to do so could jeopardise the visa-free access for New Zealand citizens to about 50 countries (including the United States), and the opportunity to reside in Australia.

20 There are no direct environmental effects of the Migrants Protocol entering or not entering into force for New Zealand.

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Costs to New Zealand of compliance with the Migrants Protocol

21 The Protocol emphasises effective investigation and prosecution of people smuggling. This can be resource intensive especially if some or all of the relevant conduct occurs elsewhere. The offender, who may not be a New Zealand citizen, would have to be in New Zealand for any court proceedings (which may involve extradition), and even bringing in witnesses and evidence from elsewhere may involve costs. However, the seriousness of these offences, and the damage that can be done to the reputation of New Zealand, make prosecution desirable despite the potential for some cases to be costly and to present logistical difficulties.

22 As noted in relation to the Convention, some provisions that could involve additional costs are not mandatory in nature. These include the provision of assistance for developing countries. The obligations under the Convention and Protocols will be taken into account in making decisions on future initiatives that may be funded through New Zealand’s Overseas Aid Development programme.

Possibility of Subsequent Protocols (or other amendments) to the Migrants Protocol, and of their likely effects

23 The Migrants Protocol is itself one of three Protocols to the United Nations Convention against Transnational Organised Crime.

24 Under article 18 amendments to the Protocol can be proposed 5 years after it enters into force. If it is not possible to achieve consensus, the amendment may be adopted by two-thirds of States Parties at a meeting of the Conference of States Parties. An amendment is also subject to ratification, acceptance or approval by States Parties and therefore binds only those Parties that have expressed consent to be bound.

Measures that could or should be adopted to implement the Migrants Protocol, and the intentions of the Government in relation to such measures, including legislation.

Legislative Measures

25 While New Zealand law is consistent with many of the obligations in the Protocol, some legislative change is nevertheless required before New Zealand can ratify. It is intended that the following amendments be included the Transnational Organised Crime Bill to be introduced to Parliament in 2002:

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(a) Amendments to the Crimes Act 1961

A new offence of people-smuggling will be created with a maximum penalty of 20 years imprisonment and/or a maximum fine of $500,000 with extraterritorial jurisdiction, as contemplated by articles 15(2) and 15(4) of the Convention.

(b) Amendments to the Passports Act 1992

Both the Trafficking and Migrants Protocols require States to have effective laws that ensure the security and integrity of their travel documents, to have particular offences relating to travel document fraud, and take the measures necessary to prevent the unlawful creation, issue and use of these documents. It is therefore proposed to create the following new offences:

forgery or falsification of a New Zealand travel document
knowingly distributing or disposing of a falsified or forged New Zealand travel document
knowingly falsifying travel document registers or databases
knowingly issuing a New Zealand travel document in cases where the recipient has no lawful claim to the document
unlawfully taking any travel document or register from its place of deposit
to take extra-territorial jurisdiction for Passports Act offences that relate to people smuggling and associated criminal activities
to make the maximum penalties for Passports Act offences comparable to those in similar countries, and to give a sentencing Judge discretion to make an order preventing a person convicted of Passports Act offences from obtaining a New Zealand passport for up to 10 years from conviction
to give the Minister power to recall a certificate of identity in cases where the holder has been issued with a passport.

(c) Amendments to the Immigration Act 1987

Several legislative changes were made in 1999 to reduce the incentives for offending involving people-smuggling and trafficking, including the creation of some new offences and a provision for the detention of illegal migrants, particularly in the case of mass arrivals. To better implement obligations in both the Trafficking and Migrants Protocols it is now proposed-

to increase the maximum penalty for certain offences in the Immigration Act that relate to activities associated with people-trafficking and smuggling to 7 years and a fine of $100,000, and make minor amendments to several other offences
to create new offences to target particular types of exploitation by employers of people not legally entitled to work in New Zealand
to permit expressly information disclosure to overseas public sector agencies in a manner that is consistent with the Privacy Act 1993.

(d) Amendments to the Mutual Assistance in Criminal Matters Act 1992

States are required to give one another a wide range of assistance in investigations and prosecutions of offences to which the Protocol relates. The Mutual Assistance in Criminal Matters Act already largely implements these obligations. It is, however, necessary to amend the Act so that it applies automatically to States Parties to the Protocol.

(e) Amendments relating to extradition

Because the Extradition Act 1999 extended the range of extraditable offences to all offences with a maximum penalty of at least 12 months imprisonment, the only substantive provision required in this context is the standard one that deems people-smuggling to be included in existing extradition treaties with other States Parties.

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Obligations involving Policies, Procedures or Programmes

26 The obligations in the Convention relating to prevention, law enforcement, information-sharing and training are relevant to all forms of transnational crime, including people-smuggling. The Migrants Protocol contains additional provisions that focus on measures that are or may be particularly useful in the context of combating people-smuggling.

27 New Zealand already has policies, either in place or under development, relating to people trafficking and smuggling. The New Zealand Immigration Service is also currently in the process of implementing a number of new initiatives to improve the capability and effectiveness of general risk management, and measures specifically aimed at improving border management. In addition, NZIS staff and Customs officers’ training modules are proposed specifically on issues surrounding smuggling and trafficking to help to raise staff awareness about the issues associated with, and differences between, these two forms of illegal migration.

28 A significant amount of inter-agency cooperation already occurs at the national level. Issues around people-smuggling and trafficking are within the scope of the work undertaken by the Combined Law Agency Group, and this remains the appropriate body for providing an inter-agency response on these matters.

29 Under both Protocols, States are required to strengthen, as appropriate, cooperation with other States in the exchange of information regarding identities, fraudulent use of documents, and means and methods employed by smugglers and traffickers. The proposed amendment to the Immigration Act expressly allowing information-sharing with overseas agencies should enhance existing information sharing arrangements.

30 Article 10 requires State Parties, in particular those with common borders or located on routes along which migrants are smuggled, to exchange information relevant to the prevention and enforcement of measures to combat this activity. New Zealand agencies work closely with Australian authorities, in particular, on these issues. New Zealand has joined the regional debate on illegal migration at a late stage but, in recognition of a direct threat from illegal migration, is now looking to strengthen its engagement at that level.

31 In summary, New Zealand is generally well-placed to comply with the prevention, law enforcement and training obligations of the Protocol. In many respects, therefore, the main effect of these obligations is to place New Zealand under an ongoing obligation to ensure continued compliance. This may involve adapting policies, procedures and programmes as the need arises so they reflect “best practice” in combating illegal migration. New Zealand’s compliance with these obligations will be subject to review by the Conference of States Parties at some time in the future.

Consultation that has been undertaken or is proposed with the community and interested parties in respect of the Migrants Protocol

32 The Ministries of Justice and Women’s Affairs, the Departments for Courts, of Internal Affairs, Corrections and Prime Minister and Cabinet, the Crown Law Office, New Zealand Defence Force, New Zealand Police, New Zealand Immigration and Customs Services, New Zealand Security Intelligence Service, and Treasury, have been consulted about ratification.

33 There will be an opportunity for public submissions on the provisions that require legislative change before those amendments become part of New Zealand law and before ratification takes place.

Withdrawal from or Denunciation of the Migrants Protocol

34 Article 24 of the Migrants Protocol allows a State Party to denounce the Protocol by notifying the Secretary-General of the United Nations, in writing. The denunciation then takes effect one year after the date of notification.

[1] United Nations Office for Drug Control and Crime Prevention (September 2000).

[2] United Kingdom Home Office estimate (November 2000).

[3] In 2000, the number of false, counterfeit and forged passports discovered was 152: in 1992 the number was 68

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Page last updated: Monday, 16 July 2007 10:02 NZST

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