CEU Electronic Theses and Dissertations, 2017
| Author | Pavelková, Zuzana |
|---|---|
| Title | State Responses to Cross-Border Activism on the Western Balkan Route to Europe 2015-2016: Arguments Towards Decriminalization of Humanitarian Smuggling |
| Summary | The present thesis looks at state responses to cross-border activism at the Western Balkan route to Europe between 2015 and 2016, and beyond. Starting from a normative position, it argues that humanitarian smuggling, understood as non-profit facilitation of irregular entry, should be decriminalized. The requirement of decriminalizing individuals engaging in assistance to irregular border crossing – referred to as “flight helpers” – is justified by adopting a human rights-based approach to smuggling. The thesis argues that in the absence of safe and legal pathways to Europe, human rights of refugees, including the right to ask for international protection, are safeguarded by flight helpers. Considering the lack of political will to alter the legal provisions enabling criminalization of flight helpers across the EU, the thesis looks for arguments in favour of a narrow reading of the existing regulatory frameworks, allowing for a de facto decriminalization of flight helpers in the short-term. In order to advance its normative starting point, the thesis looks for supportive arguments in international, European and EU law and analyses available domestic case-law. The research demonstrates that the international anti-smuggling law, international refugee law, international law of the sea as well as some non-binding instruments of international human rights soft law can provide arguments in favour of decriminalization of humanitarian smuggling. In particular, the international anti-smuggling framework as represented by the UN Smuggling Protocol foresees implicit exceptions for instances of humanitarian smuggling, with the threshold between permissible and punishable action being the element of financial or material benefit. While the primary goal of the Protocol is to tackle organized crime, the safeguards for flight helpers remain limited, as the element of gain is not further defined in the Protocol and neither is the required state conduct in its absence. The strongest safeguard against criminalization presents the duty of search and rescue under the international law of the sea, to which the obligations under the Smuggling Protocol are subjected to. The principled gaps in international law are further expanded within the ambits of EU law, which omits the element of gain from its definition of smuggling, while establishing merely optional explicit humanitarian exceptions. In this regard, the thesis demonstrates that the EU Facilitators Package not only enables for the criminalization of a wide array of genuinely humanitarian acts but also risks to undermine the international duty of search and rescue at sea and risks extorting a long-term chilling effect on the provision of humanitarian aid. Moreover, the thesis argues that with the gain element missing and the humanitarian exceptions being merely optional, the EU anti-smuggling framework comes in tension with the core requirements of criminal justice and the rule of law. Looking into the implementation of the Facilitators Package in domestic jurisdictions of EU member states, the thesis elucidates that the law is neither clear nor foreseeable for its subjects, and at times not even for the public authorities. In the concluding part, the thesis suggests four argumentative strategies for defending flight helpers in courts. First and foremost, the thesis argues that flight helpers and their allies should appeal to a narrow reading of the smuggling offence in respect of the acts as such. Acts of individualized, spontaneous or ad-hoc nature should automatically fall outside of the scope of its application, as the existing international and EU anti-smuggling framework aim primarily at tackling organized crime. Second, flight helpers should appeal to a narrow reading of the smuggling offenses in respect of the overall circumstances of the act. In this regard, the flight helpers can argue that the provision of the Smuggling Protocol have been transposed into EU law in a wrongful manner. Third, in cases where the element of gain is missing from the domestic provisions on smuggling, the lacking clarity and foreseeability of the law may infringe upon the fair trial rights of the facilitator both in an abstract and, depending on the circumstances of the case in a concrete manner. Lastly, in extreme situations involving emergencies or a risk of immediate harm to the persons being facilitated, the flight helpers can appeal to the fundamental rights of the smuggled, including the absolute, non-derogable right to life, which may create a situation of necessity comparable to that of distress at sea. |
| Supervisor | Nagy, Boldizsár |
| Department | Legal Studies MA |
| Full text | https://www.etd.ceu.edu/2017/pavelkova_zuzana.pdf |
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