Table of Cases |
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xvii | |
Table of Treaties and Other International Instruments |
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xxxi | |
Preface |
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li | |
Table of Common Abbreviations |
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lv | |
Introduction |
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1 | (22) |
Part I: General Legal Framework |
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1 The Legal Framework: Transnational Criminal Law, Law of the Sea, and Migration Control |
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23 | (102) |
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1.1 Migrant Smuggling in Transnational Criminal Law |
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25 | (53) |
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1.1.1 Historical Background and Context |
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25 | (9) |
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1.1.2 The Organized Crime Convention |
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34 | (10) |
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1.1.3 The Migrant Smuggling Protocol |
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44 | (22) |
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1.1.4 The Trafficking Protocol: Overview and Comparison with the Smuggling Protocol |
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66 | (12) |
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1.2 Migrant Smuggling and the Law of the Sea |
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78 | (8) |
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1.2.1 The United Nations Convention On the Law of the Sea |
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80 | (3) |
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1.2.2 Protection of Life at Sea Conventions |
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83 | (3) |
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1.3 Migrant Smuggling and Regional/Bilateral Migration Control Treaties |
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86 | (24) |
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1.3.1 Regional Instruments: Europe |
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87 | (8) |
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1.3.2 Bilateral Instruments |
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95 | (15) |
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1.4 Non-treaty Aspects of the International Legal Framework |
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110 | (15) |
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1.4.1 Customary Law, Jus Cogens, and Migrant Smuggling |
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111 | (4) |
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1.4.2 Secondary and Subsidiary Sources of International Law |
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115 | (4) |
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1.4.3 "Soft" Law Relevant to Migrant Smuggling |
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119 | (6) |
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2 The Legal Framework: Human Rights and Refugee Law |
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125 | (77) |
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2.1 Applicability of Human Rights Law |
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128 | (23) |
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2.1.1 Smuggled Migrants as Noncitizens |
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128 | (21) |
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2.1.2 Migrant Smuggling, Statelessness, and Human Rights |
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149 | (2) |
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2.2 Right to Leave and Return |
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151 | (7) |
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151 | (6) |
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2.2.2 The Right to Return |
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157 | (1) |
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2.3 Right to Seek and Enjoy Asylum from Persecution |
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158 | (16) |
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2.3.1 The Obligation of Non-refoulement under Refugee Law |
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160 | (3) |
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2.3.2 Obligation Not to Impose Penalties for Unlawful Entry |
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163 | (6) |
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2.3.3 Exclusion from Protection on the Basis of Involvement in Migrant Smuggling |
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169 | (5) |
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2.4 Additional Restrictions on Expulsion and Return of Smuggled Migrants |
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174 | (18) |
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2.4.1 Non-refoulement in Relation to Torture and Other Serious Violations of Human Rights |
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175 | (4) |
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2.4.2 Restrictions on Expulsion of Stateless Persons |
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179 | (1) |
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2.4.3 Restrictions on Collective Expulsion |
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180 | (2) |
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2.4.4 Protection of Expelled and Returned Persons |
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182 | (10) |
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2.5 Prohibition on Arbitrary Detention and Inhumane Conditions of Detention |
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192 | (10) |
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2.5.1 No Arbitrary Detention |
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193 | (4) |
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2.5.2 Conditions of Detention |
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197 | (2) |
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2.5.3 Detention of Smuggled Children |
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199 | (3) |
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3 Acting against Migrant Smuggling: Capacities and Limitations |
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202 | (74) |
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204 | (45) |
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3.1 Basic Principles of State Sovereignty |
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204 | (6) |
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3.1.1 Sovereign Equality and Noninterference |
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206 | (1) |
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3.1.2 Territorial Sovereignty |
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207 | (1) |
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3.1.3 The Reserved Domain of Domestic Jurisdiction |
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208 | (2) |
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3.2 Principles of Jurisdiction in General International Law |
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210 | (17) |
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3.2.1 Understanding Jurisdiction |
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211 | (1) |
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3.2.2 Prescriptive Jurisdiction over the Crime of Migrant Smuggling |
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212 | (10) |
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3.2.3 Enforcement Jurisdiction |
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222 | (1) |
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3.2.4 Expanding Capacity to Act through Consent |
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223 | (3) |
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3.2.5 Concurrent or Overlapping Jurisdiction |
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226 | (1) |
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3.3 Principles of Jurisdiction at Sea |
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227 | (22) |
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228 | (2) |
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3.3.2 Zones of Maritime Jurisdiction |
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230 | (13) |
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3.3.3 -The Principle of Exclusive Flag State Jurisdiction on the High Seas and Its Exceptions |
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243 | (6) |
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Part 2 Extraterritorial Jurisdiction and Limitations on Capacity to Act |
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249 | (27) |
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3.4 Extraterritorial Application of Human Rights Obligations |
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250 | (22) |
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3.4.1 International Instruments and Jurisprudence |
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250 | (7) |
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3.4.2 Regional Instruments and Jurisprudence |
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257 | (5) |
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3.4.3 Preliminary Conclusions about Extraterritorial Application of Human Rights Law |
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262 | (2) |
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3.4.4 Extraterritorial Application of the Obligation of Non-refoulement |
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264 | (8) |
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3.5 Summary of the Key Principles of Sovereignty and Jurisdiction Relevant to Migrant Smuggling |
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272 | (4) |
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4 State Responsibility and Migrant Smuggling |
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276 | (79) |
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4.1 International Law and Responsibility |
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278 | (3) |
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4.2 Responsibility for Violations of International Law Associated with Migrant Smuggling |
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281 | (16) |
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4.2.1 Requirement of Attribution |
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282 | (10) |
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4.2.2 Requirement of a Breach of Obligation |
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292 | (5) |
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4.3 State Responsibility for Breach of Obligations Originating in the Conduct of Private Persons or Entities |
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297 | (12) |
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4.3.1 Implications of the General Rule of Non-attribution of Private Conduct |
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298 | (1) |
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4.3.2 Moving Beyond the General Rule: State Responsibility to Prevent, Protect, and Respond in Relation to Migrant Smuggling |
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299 | (3) |
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4.3.3 Identifying Violations Giving Rise to Responsibility: The Due Diligence Standard |
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302 | (5) |
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4.3.4 Conclusion: The Primacy of the Primary Rules |
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307 | (2) |
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4.4 State Responsibility in the Context of Joint Operations or Other Forms of Interstate Cooperation |
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309 | (13) |
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4.4.1 The Principle of Independent Responsibility |
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310 | (1) |
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4.4.2 Placing an Organ at the Disposal of Another State |
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311 | (2) |
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4.4.3 Joint Conduct and the Implication of One State in the Act of Another State |
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313 | (5) |
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4.4.4 Operations Associated with International Organizations |
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318 | (4) |
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4.5 Consequences of a Finding of State Responsibility |
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322 | (9) |
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4.5.1 The Obligations of Cessation and Reparation |
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322 | (6) |
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4.5.2 Consequences Attached to Serious Breaches of Peremptory Norms |
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328 | (3) |
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4.6 Invocation of Responsibility |
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331 | (10) |
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4.6.1 General Rules Governing Invocation of Responsibility |
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332 | (4) |
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4.6.2 Rules Governing Invocation of Responsibility for Violations of Human Rights Norms |
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336 | (3) |
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339 | (2) |
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4.7 Responsibilities of Other Entities |
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341 | (8) |
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4.7.1 International Organizations |
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342 | (6) |
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4.7.2 Legal Responsibilities of Private Persons and Private Entities |
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348 | (1) |
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4.8 Summary of Key Principles of State Responsibility Relevant to Migrant Smuggling |
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349 | (6) |
Part II: Specific Rules And Obligations |
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5 Criminalization of Migrant Smuggling |
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355 | (48) |
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5.1 Criminalization Obligations under the Migrant Smuggling Protocol |
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356 | (36) |
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5.1.1 Conduct to be Criminalized and Key Aspects of the Criminalization Obligation |
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358 | (5) |
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5.1.2 Elements of the Offense of Migrant Smuggling |
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363 | (4) |
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5.1.3 Criminalization of Offenses Related to Migrant Smuggling |
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367 | (7) |
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5.1.4 Circumstances of Aggravation |
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374 | (10) |
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5.1.5 Criminalization and Related Obligations under the Organized Crime Convention |
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384 | (8) |
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5.2 Criminalization Obligations: The European Union |
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392 | (6) |
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5.2.1 2002 EU Directive on Facilitation of Unauthorized Entry, Transit, and Residence |
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393 | (3) |
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5.2.2 2002 EU Framework Decision on Facilitation of Unauthorized Entry, Transit, and Residence |
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396 | (2) |
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5.3 A Note on the Rights of Suspects and the Right to a Fair Trial |
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398 | (3) |
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5.4 Conclusions on Obligations Related to Criminalization |
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401 | (2) |
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6 Migrant Smuggling by Sea: Interdiction and Rescue |
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403 | (87) |
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407 | (36) |
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6.1.1 Power to Interdict under the Law of the Sea |
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409 | (21) |
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6.1.2 Impact of the Migrant Smuggling Protocol |
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430 | (9) |
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6.1.3 A Note on Regional and Bilateral Arrangements for Interdiction |
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439 | (4) |
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6.2 Search, Rescue, and Disembarkation |
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443 | (21) |
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6.2.1 Obligations regarding Persons or Vessels in Distress |
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445 | (19) |
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6.3 Human Rights and Refugee Law during Interdiction and Rescue |
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464 | (20) |
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6.3.1 Application of Human Rights Law at Sea |
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466 | (5) |
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6.3.2 Application of Refugee Law at Sea |
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471 | (2) |
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6.3.3 Specific Human Rights Issues |
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473 | (5) |
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6.3.4 Obligation of Non-refoulement at Sea |
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478 | (6) |
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6.4 A Note on Attribution of Responsibility for Unlawful Acts in Responding to Smuggling by Sea |
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484 | (3) |
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6.5 Conclusions on Obligations Related to Interdiction and Rescue |
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487 | (3) |
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7 Prevention and International Cooperation to Combat Migrant Smuggling |
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490 | (62) |
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7.1 Prevention in Relation to Migrant Smuggling |
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492 | (36) |
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7.1.1 General Prevention Obligations in Transnational Criminal Law |
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493 | (5) |
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7.1.2 Migrant Smuggling: Specific Obligations of Prevention |
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498 | (21) |
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7.1.3 Corruption and Prevention of Migrant Smuggling |
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519 | (9) |
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7.2 International Cooperation |
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528 | (22) |
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7.2.1 Obligations Related to Extradition |
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530 | (7) |
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7.2.2 Mutual Legal Assistance in Relation to Migrant Smuggling |
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537 | (7) |
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7.2.3 Informal Cooperation and Information Exchange |
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544 | (1) |
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7.2.4 Joint Investigations / Joint Operations |
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545 | (3) |
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7.2.5 Transfer of Proceedings and of Sentenced Persons |
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548 | (2) |
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7.3 Conclusions on Obligations of Prevention and Cooperation |
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550 | (2) |
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8 Obligations of Protection, Assistance, and Response |
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552 | (47) |
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8.1 An Obligation to Protect and Assist Smuggled Migrants? |
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554 | (14) |
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8.1.1 Relevant Provisions of the Specialist Instruments |
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554 | (7) |
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8.1.2 Protection from Smuggling-Related Violence and Exploitation |
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561 | (4) |
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8.1.3 Obligation to Assist Smuggled Migrants in Danger |
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565 | (3) |
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8.2 Status-Related Protection and Assistance |
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568 | (18) |
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569 | (5) |
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8.2.2 Smuggled Victims of Trafficking |
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574 | (12) |
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8.3 Additional Obligations with Respect to Smuggled Migrants Who Are Victims of Crime or Human Rights Abuses |
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586 | (11) |
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8.3.1 Obligations of an Effective Criminal Justice Response |
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587 | (3) |
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8.3.2 Violence and Exploitation: The Right to a Remedy |
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590 | (7) |
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8.4 Conclusions on Obligations of Protection, Assistance, and Response |
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597 | (2) |
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9 Obligations Relating to Detention of Smuggled Migrants |
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599 | (65) |
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9.1 Right to Liberty and Freedom of Movement |
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605 | (2) |
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9.2 Right to Liberty and the Prohibition on Unlawful or Arbitrary Detention |
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607 | (29) |
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9.2.1 Defining "Detention" and "Deprivation of Liberty" |
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607 | (4) |
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9.2.2 Requirement of Lawfulness |
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611 | (4) |
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9.2.3 Prohibition on Arbitrariness |
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615 | (18) |
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9.2.4 Detention Provisions of the EU-Returns Directive |
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633 | (3) |
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9.3 Rights of Detained Smuggled Migrants |
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636 | (12) |
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9.3.1 Right to Humane Conditions of Detention |
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636 | (4) |
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9.3.2 Right of Access to Legal Assistance, Information, and Consular Assistance |
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640 | (6) |
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9.3.3 Scrutiny and Monitoring of Detention |
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646 | (2) |
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9.4 Special Groups of Smuggled Migrants: Additional Rights and Obligations |
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648 | (13) |
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9.4.1 Detention of Women Smuggled Migrants |
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649 | (1) |
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9.4.2 Detention of Smuggled Victims of Trafficking |
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650 | (1) |
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9.4.3 Detention of Smuggled Children |
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651 | (5) |
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9.4.4 Detention of Smuggled Asylum-Seekers |
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656 | (5) |
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9.5 Summary Conclusions on Detention of Smuggled Migrants |
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661 | (3) |
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10 Return of Smuggled Migrants |
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664 | (71) |
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10.1 Right of States to Return Smuggled Migrants |
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668 | (1) |
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10.2 Limitations on the Right to Return Smuggled Migrants |
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669 | (25) |
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10.2.1 Prohibition on Arbitrary Expulsion |
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670 | (7) |
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10.2.2 Prohibition on Collective Expulsion |
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677 | (3) |
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10.2.3 Access to-International Protection and the Obligation of Non-refoulement |
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680 | (14) |
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10.3 Obligation to Accept and Facilitate Return |
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694 | (11) |
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10.3.1 Right of Nationals to Return and Obligation to Accept and Facilitate Return of Expelled Nationals |
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694 | (2) |
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10.3.2 Obligation to Accept and Facilitate Return under the Migrant Smuggling Protocol |
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696 | (2) |
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10.3.3 Obligation to Accept Return under Bilateral Agreements |
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698 | (7) |
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705 | (19) |
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10.4.1 Due Process Obligations under International Human Rights Law |
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707 | (4) |
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10.4.2 Pre-return Detention |
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711 | (6) |
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10.4.3 Safety and Dignity in the Return Process |
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717 | (5) |
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722 | (2) |
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10.5 Return of Special Groups of Smuggled Migrants: Additional Rights and Obligations |
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724 | (8) |
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10.5.1 Return of Trafficked Persons |
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724 | (6) |
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10.5.2 Return of Children |
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730 | (2) |
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10.6 Summary Conclusions on Return of Smuggled Migrants |
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732 | (3) |
Epilogue |
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735 | (6) |
Select Bibliography |
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741 | (34) |
Index |
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775 | |