
Contents
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A Background and Purpose A Background and Purpose
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B Negotiating History B Negotiating History
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C Interpretation C Interpretation
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1 Scope of Article 5 1 Scope of Article 5
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2 Article 5 and other international legal instruments 2 Article 5 and other international legal instruments
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3 Non-criminalization and non-punishment 3 Non-criminalization and non-punishment
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4 Good faith in treaty implementation 4 Good faith in treaty implementation
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Article 5 Criminal Liability of Migrants
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Published:June 2023
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Abstract
This chapter evaluates Article 5 of the Smuggling of Migrants Protocol. Article 5 recognizes that smuggled migrants should not be criminalized merely for being the object of the offence of migrant smuggling, an obligation that closely resembles similar non-criminalization principles in international refugee law. Indeed, the right of displaced persons to seek protection without fear of retribution is one of the most fundamental precepts on which international refugee law is built. The basic effect of Article 5 is to shield smuggled migrants from criminal prosecution arising from the fact of having been smuggled. This limitation on the scope of criminalization under the Protocol is an expression of the principle identified in the Legislative Guides, that ‘it is the smuggling of migrants and not migration itself which is the focus of criminalization’.
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