The Legal Fragmentation of Migrant Smuggling: A study on the compatibility between two legal regimes on migrant smuggling

Abstract

Migrant smuggling has resulted in unprecedented levels of peacetime defensive actions. This is because migrant smuggling is generally considered both the cause and consequence of grave human rights violations. Another reason can be found in the right of States to determine who their residents and future citizens are, and the threat migrant smuggling is to that right. Migrant smuggling has therefore gained attention on international, regional, and national levels in attempts to prevent and combat it. However, such a multi-level approach opens up for different perspectives and understandings on how to deal with and prevent migrant smuggling through legal measures. This means that there is a possibility of the fragmentation of law. Within the social complex of the international community, a plurality of legal regimes that focus on migrant smuggling exist. While these are operating with the same focus, they are not necessarily structurally coupled with each other. Such an observation shows that there is a possible collision between the legal regimes, which in turn might lead to a fragmentation of the system. Thus, the aim of this thesis is to compare two legal regimes, the UN Migrant Smuggling Protocol and the Renewed EU Action Plan, to examine whether their measures are compatible with each other and whether their differences have any consequences in responding to the issue of migrant smuggling. This is done through the employment of functional comparative law, which opens up for the comparison of the two legal regimes that focus on migrant smuggling. Through such an analysis, the findings reveal that there are certain aspects of the two legal regimes that collide with each other and cause fragmentation of the system.