The Smuggling of Unaccompanied Minors: International Law And

The Smuggling of Unaccompanied Minors: International Law and Domestic Contexts Joseph Alexander Lelliott LLB(Hons) BA A thesis submitted for the degree of Doctor of Philosophy at The University of Queensland in 2018 T C Beirne School of Law Abstract This thesis concerns the smuggling of unaccompanied minors. It is divided into two parts, the first of which examines the phenomenon from an international perspective, beginning with the causes and conditions of smuggling of unaccompanied minors. It explains the reasons for unaccompanied minors to migrate and engage the services of migrant smugglers, together with the dangers they encounter during the smuggling process. The thesis then analyses the international legal framework relevant to their protection and criminalisation of those who smuggle them. It finds that, while the Protocol against the Smuggling of Migrants by Land, Sea, and Air contains little substantive protection for smuggled migrants and none specifically concerning smuggled unaccompanied minors, the broader international legal framework contains a web of rights and obligations relevant to their protection. In its second part, the thesis critically examines the smuggling of unaccompanied minors in five domestic contexts––Australia, Austria, Italy, South Africa, and the United States. Analysis of these jurisdiction’s legal frameworks shows that each has been reluctant to take human rights-based approaches to migrant smuggling and irregular migration more generally. The rights of smuggled unaccompanied minors are often subordinated to border control and criminal justice objectives, or compromised by inadequate or poorly implemented laws and policies, each of which have profound negative effects on minors’ treatment and well-being. On the basis of these findings, the thesis concludes by, first, making general observations and identifying underlying obstacles preventing effective and appropriate responses to the smuggling of unaccompanied minors and, second, charting a way ahead to better address the phenomenon at international and domestic levels. 2 Declaration by author This thesis is composed of my original work, and contains no material previously published or written by another person except where due reference has been made in the text. I have clearly stated the contribution by others to jointly-authored works that I have included in my thesis. I have clearly stated the contribution of others to my thesis as a whole, including statistical assistance, survey design, data analysis, significant technical procedures, professional editorial advice, financial support and any other original research work used or reported in my thesis. The content of my thesis is the result of work I have carried out since the commencement of my higher degree by research candidature and does not include a substantial part of work that has been submitted to qualify for the award of any other degree or diploma in any university or other tertiary institution. I have clearly stated which parts of my thesis, if any, have been submitted to qualify for another award. I acknowledge that an electronic copy of my thesis must be lodged with the University Library and, subject to the policy and procedures of The University of Queensland, the thesis be made available for research and study in accordance with the Copyright Act 1968 unless a period of embargo has been approved by the Dean of the Graduate School. I acknowledge that copyright of all material contained in my thesis resides with the copyright holder(s) of that material. Where appropriate I have obtained copyright permission from the copyright holder to reproduce material in this thesis and have sought permission from co- authors for any jointly authored works included in the thesis. 3 Publications included in this thesis None. Submitted manuscripts included in this thesis None. Other publications during candidature Book Chapters Andreas Schloenhardt and Joseph Lelliott, ‘Migrant Children and the United Nations Protocols against Smuggling of Migrants and Trafficking in Persons’ in Mary Crock and Lenni Benson (eds), Protecting the Migrant Child: Central Issues in the Search for Best Practice (Elgar, 2018) forthcoming Peer-reviewed papers Joseph Lelliott, ‘Protecting the Rights of Children Accused of Migrant Smuggling: Lessons from the Australian Context’ (2018) 24(1) Australian Journal of Human Rights 1 Joseph Lelliott, ‘Italy’s ‘Zampa’ Law: Increasing Protection for Unaccompanied Children’ (2018) 57 Forced Migration Review 79 Joseph Lelliott, ‘Smuggled and Trafficked Unaccompanied Minors: Towards a Coherent, Protection-Based Approach in International Law (2017) 29(2) International Journal of Refugee Law 238 Contributions by others to the thesis No contributions by others Statement of parts of the thesis submitted to qualify for the award of another degree No works submitted towards another degree have been included in this thesis Research Involving Human or Animal Subjects No animal or human subjects were involved in this research 4 Acknowledgements For his guidance, support, encouragement, often blunt critique, and friendship both during and before this thesis, I thank my primary supervisor, Professor Andreas Schloenhardt, University of Queensland and the University of Vienna. Many thanks also to my secondary supervisor, Dr Peter Billings, University of Queensland, for his help and insightful comments. Also at the University of Queensland, thanks to the staff members of the T C Beirne School of Law who provided me with encouragement, helpful discussion, and opportunities along the way. In Vienna, many thanks to the staff of the Austrian Center for Law Enforcement Sciences, University of Vienna, for their hospitality and help. For helpful discussion, thanks to Asylkoordination Österreich, Saskia Koppenberg, and to Sebastian Aust. In Italy, thanks to the members of the Procura della Repubblica de Palermo for discussions. Special thanks to Federica La Chioma while she was Brisbane. In the United States, many thanks to the other organisers and participants of the Smuggling Workshop in El Paso and Juarez. I am very grateful for the generous funding I have received to undertake this thesis, including the Research Training Program Scholarship. Also to the University of Queensland Graduate School for an International Travel Award Scholarship; to the T C Beirne School of Law for a number of travel grants; to the benefactor of the Owen Fletcher Award; and to the European University Institute and the University of Texas El Paso for travel funding. Many thanks to my friends; their humour and friendship is invaluable. Special thanks to Matt, Ellen, and Naomi for putting up with me while we all lived in one house, and to Freya and Sophie for their friendship while I (sometimes successfully) studied law. Special thanks also to Bill and to Lewis. To those named here and those not (this really can only be one page), it is a privilege to have such amazing people in my life. A very special thank you goes to all the members of my family for their constant encouragement and care. Thank you in particular to my parents, nan, and grandad; without the opportunities and support they have given me over the past 26 years this thesis would not exist. Finally, on this journey with me for the best part of it has been my partner, Jane, without whose care and support the last two years would have been immeasurably more difficult. 5 Financial Support This research was supported by an Australian Government Research Training Program Scholarship Keywords unaccompanied minors, smuggling of migrants, international law, human rights Australian and New Zealand Standard Research Classifications (ANZSRC) ANZSRC code: 180103, Administrative Law, 50% ANZSRC code: 180116, International Law, 40% ANZSRC code: 180110, Criminal Law and Procedure, 10% Fields of Research (FoR) Classification FoR code: 1801, Law, 100% 6 CONTENTS Table of Treaties 15 Table of Domestic Statutes 18 Table of Cases 21 List of Figures 24 Abbreviations 25 Chapter One: Introduction .............................................................................. 27 Background and Context .......................................................................................... 27 Smuggling of Migrants ...................................................................................... 27 Smuggling of Unaccompanied Minors ............................................................. 30 Significance .............................................................................................................. 34 Research Questions and Structure ............................................................................ 36 Methodology and Sources ........................................................................................ 39 Smuggling of Migrants ...................................................................................... 40 Migration Studies .............................................................................................. 42 International Refugee and Human Rights Law ................................................. 43 Data Sources ...................................................................................................... 44 PART I - THE INTERNATIONAL CONTEXT Chapter Two: Causes and Conditions ............................................................ 48 Causes of Migration.................................................................................................. 48 Structural Factors .............................................................................................

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