ABSTRACT Refugees and other distinct migrant populations often travel together. The policy concept of “mixed migration” arose to describe this migration phenomenon. However, the term has various meanings. These can be divided into two categories: on the one hand are understandings that focus solely on the complex composition of migration flows; on the other are meanings that consider both complexity and individuals’ mixed motivations for moving. Because of this, “mixed migration” has contributed less to thinking around, and humanitarian action in relation to, migration than it might otherwise have. This article describes these diverse understandings and harnesses relevant legal principles − drawn from refugee, human rights, humanitarian, and transnational criminal law, as well as from the law of the sea − in support of one understanding of the term. It argues that international law augers in favour of an understanding focused solely on complexity, because the legal principles applicable in mixed migration situations apply regardless of individual motivations. Including such motivations within the policy concept only serves to divorce “mixed migration” from its legal underpinnings. Moreover, understanding “mixed migration” in terms of varied individual motivations for moving might fuel populist anti-immigration sentiment. A complexity-based understanding of mixed migration would enhance the concept’s utility. 1. INTRODUCTION The 1951 Convention relating to the Status of Refugees (1951 Convention) draws a bright legal line between individuals who qualify for refugee status and those who do not.1 States nevertheless have legal obligations towards individuals who are not refugees; unaccompanied children and people who have been trafficked are salient examples. These and other distinct populations, including individuals with no international protection needs, often travel together, including on irregular journeys that sometimes end in tragedy. The policy concept of “mixed migration” arose recently in humanitarian circles in recognition of this complex migration phenomenon. The notion is, however, heterogeneous, just like the situations it was developed to describe. “Mixed migration” has thus contributed less to thinking around, and humanitarian action in relation to, migration than it might otherwise have. This article describes the diverse understandings of “mixed migration” and harnesses relevant international legal principles in support of one specific understanding of the term, with a view to fostering consensus and mitigating some possible pitfalls of current diverse understandings of the concept. Section 2 begins by articulating and contextualising the various academic and organisational meanings of mixed migration. These can essentially be divided into two categories: on the one hand are understandings of mixed migration that focus on the complex composition of migration flows; on the other are meanings of mixed migration that consider both the complexity as well as individuals’ mixed motivations for moving. Section 3 then outlines the international legal principles relevant in mixed migration situations, implicating refugee law, human rights law, humanitarian law, transnational criminal law, and the law of the sea. While Section 3 lays the foundation for the argument advanced in Section 4, it is also valuable in and of itself, as it represents the first scholarly overview of the international legal principles relevant to mixed migration situations. Section 4 invokes these legal principles to refine the policy concept of mixed migration. It argues that the international legal framework surveyed in Section 3 augers in favour of an understanding of “mixed migration” focused solely on the complexity of population movements. The international legal principles applicable in mixed migration situations apply for the most part regardless of individual motivations for travel. Including such motivations within the policy concept of “mixed migration” therefore divorces the concept from its legal underpinnings. Moreover, understanding “mixed migration” in terms of varied individual motivations for migrating does not advance humanitarian objectives. In today’s populist political climate, drawing unnecessary attention to the varied drivers of migration only serves to direct the public’s attention towards aspects of migration about which some are not sympathetic. Section 5 concludes by suggesting how the solely complexity-focused understanding of mixed migration advanced here would enhance the utility of the policy concept. 2. THE ORIGINS AND MEANINGS OF “MIXED MIGRATION” Mixed migration is a relatively new policy concept. According to Van Hear, the notion emerged from the United Nations High Commissioner for Refugees’ (UNHCR) Global Consultations on International Protection,2 which began in 2000. During the Consultations, UNHCR highlighted the existence of a crisis of international protection, due in part to a perception among Western governments and publics that asylum systems were being abused by individuals seeking economic opportunities.3 In response, UNHCR began to explore the relationship between migration and asylum, first in terms of the “asylum-migration nexus” and subsequently within the rubric of “refugee protection and durable solutions in the context of international migration”.4 Today, UNHCR uses the language of “mixed migration”, as evidenced by its 10-Point Plan of Action on refugee protection and mixed migration and related documentation.5 While the terminology has changed, UNHCR has always conceptualised its engagement with migration as supportive of its refugee protection mandate. In the agency’s words, UNHCR considers that it is essential to be actively engaged in the issue of international migration if the Office is to effectively discharge its mandate for refugee protection and solutions. UNHCR’s primary interests in this area are threefold. First, there is a need to ensure that migration management practices, and in particular border controls, enable a differentiation to be made in the treatment of those people who have protection needs and those who do not. Second, UNHCR wishes to ensure that the ability of refugees to enjoy protection and solutions is not jeopardized by the misuse and abuse of asylum systems by irregular migrants. Finally, while maintaining a fundamental distinction between refugees and migrants, UNHCR considers that its efforts to find protection and solutions for refugees should be built on a thorough understanding of the dynamics of international migration.6 Other international and non-governmental organizations have also adopted the notion of mixed migration within their policies and operations, in support of their core mandates. According to Van Hear, the adoption of the concept of mixed migration in the policy world can be viewed as a liberal response to state concerns […] That liberal response can be seen as an attempt to take the political steam out of the highly charged asylum debate in northern receiving countries in the 1990s and early 2000s: the balancing act was to acknowledge state and public concerns about migration overall while trying to maintain [a] liberal position on the acceptance of refugees.7 The public and political climate towards refugees is currently even more hostile than it was at the start of the new millennium. The concept of mixed migration is thus arguably more important now than ever before. However, while it is possible to trace the origins of mixed migration, neither the academic literature nor organisational practice provides a common understanding of the concept. According to Van Hear, migration can be mixed in a number of senses: motivations may be mixed at the point of making the decision to move; migrants may make use of the same agents and brokers [as refugees]; they may travel with others in mixed migratory flows; motivations may change en route and after arrival; and people may find themselves in mixed communities during their journeys or at their destination.8 These senses in which migration can be mixed essentially boil down to two: firstly, mixed individual motivations for migrating, and secondly, the mixed nature of particular population movements or migrant communities within host States. Other scholarly treatments of mixed migration − of which there are few − do not attempt to define or describe the concept,9 with most work engaging instead in a more practical sense.10 The various humanitarian actors that use “mixed migration” have different understandings of the concept, which are in large part influenced by their organisational mandates. Indeed, MHub, the website of the North Africa Mixed Migration Task Force − a joint initiative of the Danish Refugee Council (DRC), the International Organization for Migration (IOM), the Office of the UN High Commissioner for Human Rights, the Regional Mixed Migration Secretariat for the Horn of Africa and Yemen (RMMS), Save the Children, UNHCR, and the UN Office on Drugs and Crime (UNODC) − explains that mixed migration “is a complex, relatively new term and thus slightly differently defined by various entities”.11 UNHCR’s “10-Point Plan of Action” defines mixed migration as “a movement in which a number of persons are travelling together, generally in an irregular manner, using the same routes and means of transport, but for different reasons. Persons travelling as part of mixed movements have varying needs and profiles and may include asylum-seekers, refugees trafficked persons, unaccompanied/separated children, and migrants in an irregular situation”.12 UNHCR’s understanding of mixed migration thus focuses primarily on the mixed nature of particular population movements, though the mention of “different reasons” at least introduces the notion of individual motivations for moving. IOM adopts a composite understanding of the term. A discussion note prepared for the 2008 International Dialogue on Migration, which occurred in the context of IOM’s 96th session, articulates mixed migration in the following terms: The principal characteristics of mixed migration flows include the irregular nature of and the multiplicity of factors driving such movements, and the differentiated needs and profiles of the persons involved. Mixed flows have been defined as “complex population movements including refugees, asylum seekers, economic migrants and other migrants”.13 Unaccompanied minors, environmental migrants, smuggled persons, victims of trafficking and stranded migrants, among others, may also form part of a mixed flow.14 The same description was adopted in a public IOM brochure on mixed migration.15 It is problematic because it has no clear focus. The first part of the description focuses on mixed motivations, while the second focuses on the composition of particular population flows. The RMMS usage begins by highlighting divergent meanings of the concept, and goes on to articulate its own somewhat incomplete understanding of mixed migration, which merely lists the range of legal categories covered by the term: irregular migrants, refugees, and asylum seekers, victims of trafficking, stateless persons, unaccompanied minors and separated children, and other vulnerable persons on the move.16 The DRC adopts Van Hear’s expansive understanding of the term (cited above) and explains that using the lens of mixed migration allows it to go “beyond rigid technical-legal categories” and “understand vulnerabilities and offer practical assistance to people in need”.17 This is a clear example of how an agency’s mandate and priorities can determine its understanding of mixed migration. Seeking to transcend legal categories and provide assistance according to needs rather than according to status, it is in DRC’s interests to understand mixed migration broadly and engage accordingly. These diverse organisational conceptualisations of mixed migration can, like the academic understanding, essentially be distilled into two distinct categories. On the one hand are definitions of mixed migration that focus on the heterogeneous nature of particular population movements. UNHCR and RMMS understandings essentially fall into this category. On the other hand are definitions that are also concerned with individual motivations for moving. IOM and DRC conceptualisations of mixed migration fall into this second category. It is argued below that the consideration of individual motivations − in terms of both how one individual may have mixed motivations for migrating and in terms of how one group of migrants may reflect multiple motivations for moving − adds no value and may in fact contribute to populist hostility about migration, and that the term should accordingly be understood solely as describing complex population flows involving more than one legal category of migrant. State responses to migration should be determined by their international and other legal obligations. The only form of international protection dependent upon an individual’s motivations for moving is refugee protection under the 1951 Convention, and even under international refugee law, important obligations attach before an individual’s motivations for moving come into play. Thus, individual motivations should be irrelevant to the concept of mixed migration; including such motivations adds nothing and, moreover, may highlight migration drivers about which some members of the public are hostile. The section that follows outlines the various legal frameworks relevant to mixed migration. It constitutes the foundation for the argument above, which is advanced in more detail in Section 4. 3. INTERNATIONAL LAW AND MIXED MIGRATION Several international legal regimes are relevant to situations of mixed migration. Refugee and human rights law clearly apply. The former protects refugees within mixed movements, while the latter applies to all individuals on the move, regardless of nationality or statelessness.18 International humanitarian law applies to people transiting through, or remaining in, States experiencing armed conflict. Transnational criminal law, in particular the Palermo Protocols on trafficking and smuggling, are state-centric and aimed principally at suppressing these crimes; however, both protocols also address the protection of individuals who have been trafficked or smuggled. Finally, the law of the sea articulates the obligations of States and shipmasters towards individuals in distress at sea and prohibits interception except in certain clearly defined circumstances. The elements of each of these regimes that are relevant in situations of mixed migration are surveyed in turn below. In each case, a particular State’s obligations apply when refugees and migrants are within the State’s territory, as well as when refugees and migrants are not within the State’s territory, but the State has de jure or effective de facto control over them.19 Relevant instances in which extraterritorial jurisdiction may arise include during armed conflict, on the high seas, and when a State runs reception arrangements or asylum procedures on the territory of another state. When a State has extraterritorial jurisdiction over a person, he or she is entitled to the respect, protection, and full enjoyment of his or her human rights under international law. 3.1. International refugee law The 1951 Convention, as amended by its Protocol relating to the Status of Refugees (1967 Protocol),20 defines a refugee as any person who “owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it”.21 It goes on to set out the rights owed to individuals who meet this definition. Among these rights, the Article 33 prohibition of refoulement is particularly relevant in mixed migration situations. Article 33(1) of the 1951 Convention prohibits Contracting States from expelling or returning “a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion”; this is followed at Article 33(2) by a national security exception. The refoulement prohibition applies before a person is formally recognized as a refugee and at borders.22 This gives rise to what UNHCR has termed the “duty of independent inquiry”:23 a duty owed by States to individuals on the move to establish whether non-admission would result in a breach of non-refoulement, when the State knows or should know that a person needs international protection. UNHCR began promoting the duty of independent inquiry in 2007, when it argued in an advisory opinion that States’ non-refoulement obligations under refugee and human rights law − the latter is discussed further below − entail a duty to establish, prior to implementing any removal measure, that the person whom it intends to remove from their territory or jurisdiction would not be exposed to a danger of serious human rights violations […] If such a risk exists, the State is precluded from forcibly removing the individual concerned.24 The existence of such a duty received a measure of support from the European Court of Human Rights in its seminal 2012 Hirsi judgement, though in Hirsi the Court was focused on whether return to an intermediary State (Libya) violated Article 3 of the European Convention on Human Rights regarding prohibition of torture and inhuman or degrading treatment or punishment. According to the Court, “indirect refoulement of an alien leaves the responsibility of the Contracting State intact, and that State is required, in accordance with the well-established case-law, to ensure that the person in question would not face a real risk of being subjected to treatment contrary to Article 3 in the event of repatriation”.25 UNHCR developed its articulation of the duty of independent inquiry in its 2013 intervention in a non-refoulement case before Hong Kong’s Court of Final Appeal. Hong Kong is not bound by the 1951 Convention or its 1967 Protocol. UNHCR therefore argued that non-refoulement constitutes a rule of customary international law and that to comply with this rule, States must examine whether any removal would result in a breach of the their non-refoulement obligations. To satisfy this obligation, an independent inquiry as to whether the person is a refugee entitled to the benefits of non-refoulement protection would ordinarily be required. Accordingly it is only reasonable that a State, in order not to violate the principle of non-refoulement, must be in a position to make such a determination in respect of any person claiming international protection from refoulement before taking any step to remove them from its territory.26 The Hong Kong court effectively endorsed this argument, ruling, given it is the practice of the Director [of Immigration], when deciding whether or not to exercise his power under the Immigration Ordinance to remove a refugee claimant to the country of putative persecution, to have regard to humanitarian considerations, and that whether such claim is well-founded, is a relevant humanitarian consideration, the Director must determine whether the claim is well-founded.27 As a result of this momentous decision, in 2014 Hong Kong implemented a “unified screening mechanism” for the determination of non-refoulement claims.28 UNHCR sought to further advance the duty of independent inquiry in its 2015 intervention in a Supreme Court of Canada case about the proper interpretation of the Canadian Immigration and Refugee Protection Act’s inadmissibility provision.29 There, the UNHCR argued that: [to] give effect to their obligations in good faith under the 1951 Convention including the prohibition against refoulement, States Parties are required to make independent inquiries as to the need for international protection of persons seeking asylum, a duty recognized by a wide range of national and regional Courts, and provide them access to fair and efficient refugee determination procedures.30 The Supreme Court of Canada’s decision in favour of the appellant refugees rested, however, on Article 31(1) of the 1951 Convention (inter alia),31 rather than on its Article 33. The duty of independent inquiry is particularly important in mixed migration situations, in which an unusually high number of arrivals and related perceived security threats have led States to strictly control or even close their borders.32 In such situations, the duty of independent inquiry requires that measures to control entry not be applied indiscriminately. In this connection, point 3 of UNHCR’s 10-Point Plan of Action on refugee protection and mixed migration calls for “protection-sensitive entry systems”. According to the 10-Point Plan, [The] establishment of a functioning entry system is an important element in any strategy relating to mixed movements. Border control is essential for the purposes of combating international crime, including smuggling and trafficking, and averting security threats. Practical protection safeguards are required to ensure that such measures are not applied in an indiscriminate and disproportionate manner and that they do not lead to refoulement.33 Protection-sensitive entry systems should discharge States’ duty of independent inquiry by protecting refugees and other migrants from refoulement. Protection-sensitive entry systems should also be aimed at identifying other individuals with international protection needs, such as unaccompanied children and victims of trafficking. 3.2. International human rights law International human rights law is important for both refugees and other migrants in mixed migration situations. Regarding the standards of treatment owed to refugees, international human rights law provides more robust protection than the 1951 Convention,34 in five distinct respects. Firstly, many 1951 Convention rights accrue only on the basis of a refugee’s degree of attachment to his or her country of asylum. In other words, whether a refugee is entitled to certain rights under the 1951 Convention depends on the nature of his or her stay in the host State.35 Furthermore, many 1951 Convention rights are guaranteed to refugees only to the extent a particular reference group (aliens generally in the same circumstances, most-favoured foreigners, or citizens) also enjoys the right in question.36 International human rights instruments, in contrast, feature no such attachment contingencies or reference groups. Certain political participation rights are reserved for citizens37 and economic rights may in certain very limited circumstances be limited to nationals;38 otherwise, however, international human rights law applies to all people on the basis of their inherent human dignity. Secondly, international human rights law is important for refugees because it protects rights on which the 1951 Convention is silent, such as the freedoms of association and expression. These rights are particularly important for refugees, who often flee their countries as a result of their political opinions. Thirdly, where both international refugee law and international human rights law speak to a particular right, the latter generally protects the right to a higher standard. For example, protection from discrimination is broader under the International Covenant on Civil and Political Rights (ICCPR) than under the 1951 Convention.39 Fourthly, international human rights law informs how the 1951 Convention is interpreted and implemented.40 For example, the refugee definition’s “being persecuted” element is now widely understood in line with Hathaway’s human rights-based conceptualisation as “the sustained or systemic violation of basic human rights demonstrative of a failure of state protection”.41 Finally, because it is for the most part supervised, international human rights law can provide redress where international refugee law cannot.42 International human rights law is very important to migrants for the simple reason that it applies to them, while the 1951 Convention − by definition − does not. Among the protections international human rights law offers migrants, non-refoulement is particularly important. The ICCPR and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment43 (CAT) provide protection from refoulement that is additional or complementary to that afforded by refugee law; for this reason, the human rights non-refoulement regime is known as “complementary protection”.44 Migrants who do not qualify for refugee status but who nevertheless fear torture or cruel, inhuman or degrading treatment or punishment at home can benefit from this complementary protection. Article 3(1) of the CAT provides “[n]o State Party shall expel, return (‘refouler’) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture”. While Article 3(1) relates only to torture, it is in all other respects more broadly applicable than Article 33(1) of the 1951 Convention. The latter prohibits return to the frontiers of territories where a refugee’s “life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion”. Thus the protection only applies to refugees and only covers persecution feared on account of the grounds enumerated. The CAT’s Article 3(1), by contrast, protects all persons from return to torture perpetrated for any reason. Furthermore, the CAT does not contain any exclusion clauses, nor does it contain a national security exception like the 1951 Convention’s Article 33(2); the prohibition of torture, including the prohibition of refoulement to torture, is a jus cogens norm so cannot be derogated from under any circumstances.45 Article 7 of the ICCPR provides that “[n]o one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”. The Human Rights Committee’s General Comment 31 on the “Nature of the General Legal Obligation Imposed on States Parties to the Covenant” elaborates on Article 7. It provides that: the [ICCPR] article 2 obligation requiring that States Parties respect and ensure the Covenant rights for all persons in their territory and all persons under their control entails an obligation not to extradite, deport, expel or otherwise remove a person from their territory, where there are substantial grounds for believing that there is a real risk of irreparable harm, such as that contemplated by articles 6 and 7 of the Covenant, either in the country to which removal is to be effected or in any country to which the person may subsequently be removed.46 Thus when read with General Comment 31, Article 7 of the ICCPR prohibits return to torture and cruel, inhuman or degrading treatment or punishment. International human rights law is particularly important for refugees in the five ways outlined above. This body of law is particularly important for migrants because, as described above, it creates a complementary regime of protection from refoulement, ensuring that certain migrants who do not qualify for refugee protection will nevertheless be protected from return to torture or other ill treatment. In addition to these contributions of international human rights law to mixed migration, the legal duty of non-discrimination and its corollary, the right to equality, are particularly important for both refugees and migrants. Hathaway goes so far as to suggest that to “the extent that the main concern of refugees is to be accepted by a host community, a guarantee of non-discrimination might in fact be virtually the only legal guarantee that many refugees require”;47 the same could be said of migrants. Non-discrimination generally requires that irrelevant criteria not be taken into account in protecting rights and in providing assistance. Article 26 of the ICCPR articulates this duty with particular force because it applies to all rights, including rights not provided by the Covenant. It provides that: [All] persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. This guarantee ensures both formal equality (equality before the law) as well as substantive equality (equal protection of the law) and, as mentioned above, its ambit extends beyond the ICCPR itself. Nowak explains this by way of example: the ICCPR contains no “right to sit on a park bench. But when a state party exacts a law forbidding Jews or blacks from sitting on public park benches, then this law violates Art. 26”.48 Article 26 may be invoked by refugees and migrants as a shield to challenge arbitrary allocations, and as a sword to bring about non-arbitrary allocations. Article 26 is particularly important in mixed migration situations, which are often characterized by a very large number of people on the move, placing pressure on state resources and hence refugees’ and migrants’ rights. It should be noted, however, that Article 26 is not unconditional. The Human Rights Committee has observed “that not every differentiation of treatment will constitute discrimination, if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate under the Covenant”.49 Thus to amount to discrimination under Article 26, unequal treatment must be based on criteria that are neither reasonable nor objective, nor in pursuit of a legitimate aim. Another particularly important right in mixed migration situations is the ICCPR’s Article 9(1) liberty provision. This provides that “[e]veryone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.” Its relevance relates to detention, which States often resort to during mixed migration situations, when numbers of arrivals are significantly higher than usual. Article 9(1) does not render immigration detention categorically unlawful. Rather, it limits it to instances where it pursues a legitimate purpose and has been determined to be both necessary and proportionate in an individual case.50 In addition to the general international human rights law discussed above, specific refugee and migrant populations with particular needs can benefit from additional protection under dedicated instruments, including the International Convention on the Elimination of all Forms of Racial Discrimination,51 the Convention on the Elimination of all Forms of Discrimination Against Women,52 the Convention on the Rights of Persons with Disabilities,53 and the Convention on the Rights of the Child.54 The latter is particularly relevant to mixed migration situations, which often include a high number of unaccompanied children. For example, of the 7,567 African children who arrived in Italy between 1 January and early June 2016, a staggering 93 per cent were traveling alone.55 The Committee on the Rights of the Child has issued guidance on the treatment of unaccompanied children outside their country of origin.56 The International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families57 (ICRMW) is particularly important for migrants, including undocumented migrants, who work. Article 5 of the ICRMW draws a distinction between documented migrant workers in a regular situation and non-documented workers in an irregular situation, and allocates rights accordingly. Part III of the Convention (Articles 8–35) covers all migrant workers and their families. These rights include the right to leave (Article 8), protection from collective expulsion (Article 22), and the right to diplomatic protection (Article 23). The children of all migrant workers have the right to have their birth registered and to a nationality (Article 29). Part IV of the ICRMW (Articles 36–56) then provides further rights reserved for migrant workers and members of their families who are documented or in a regular situation. Such rights include freedom of movement and residence (Article 39) and protection from arbitrary expulsion (Article 56). The ICRMW does not apply to refugees and stateless persons, unless such applicability is specifically provided for by national legislation or in international instruments in force for the State concerned.58 The ICRMW would, however, apply to refugees who receive some form of migrant worker status. For example, certain Gulf States have presented themselves as protecting Syrian refugees, though with statuses other than refugee status.59 3.3. International humanitarian law International humanitarian law (IHL) is the branch of public international law applicable in times of international and non-international armed conflict. International humanitarian law is also known as the law of armed conflict or jus in bello (law in war). This is in contrast to jus ad bellum (right to war), which is the law on the use of force. Under jus ad bellum, war is prohibited except as provided by the UN Charter. Under IHL, in contrast, war is understood as a fact of life, and rules seek to mitigate human suffering. The rules of IHL are thus applicable regardless of the legality of the parties’ use of force. They restrict parties to a conflict from using the means and methods of warfare of their choice and protect persons and property affected or liable to be affected by war by balancing military necessity against humanitarian considerations. There are two main strands of IHL: the law of The Hague and the law of Geneva. The former relates to the conduct of war and permissible means and methods of war. The latter relates to the condition of war victims in enemy hands and the protection of persons placed hors de combat and civilians not taking part in hostilities. The principal treaty sources of the law of Geneva are the four Geneva Conventions of 194960 and the two Additional Protocols (to the Geneva Conventions of 1949) of 1977.61 The Geneva Conventions have been ratified by 196 States and are considered universal.62 Furthermore, much of what is in the four Geneva Conventions and the two Additional Protocols is also customary international law. Until the mid-1900s, civil wars were exceedingly rare, so “war” was understood as international armed conflict, that is a conflict between States. As a result, the rules of IHL developed prior to the mid-1900s − most of the law of Geneva − apply only to international armed conflict. However, Article 3 common to all four Geneva Conventions (and therefore known as “Common Article 3”) and Additional Protocol II apply only in non-international armed conflict. Because refugees and migrants may find themselves in the midst of armed conflict during their journeys, IHL can contribute to their protection.63 The conflicts through which refugees and migrants currently transit, such as that in Libya, are of a non-international character, thus in addition to any applicable customary rules, the only IHL that actually applies is Common Article 3. Common Article 3 provides that civilians (and persons placed hors de combat) shall be treated, without distinction of any kind, humanely. To this end, Common Article 3 provides that the wounded and sick shall be cared for and prohibits violence to life and person, in particular murder, mutilation, cruel treatment, and torture; the taking of hostages; humiliating and degrading treatment; and the passing of sentences and the carrying out of executions without due process of law. Common Article 3 would generally apply to all refugees and migrants who during their journeys find themselves in the midst of a non-international armed conflict, provided they are not taking part in hostilities. 3.4. Transnational criminal law The Convention against Transnational Organized Crime,64 also known as the Palermo Convention, was supplemented by three protocols, known as the Palermo Protocols. Two of these are relevant to mixed migration situations: the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children65 (the Trafficking Protocol) and the Protocol against the Smuggling of Migrants by Land, Sea and Air66 (the Smuggling Protocol). The Trafficking Protocol defines “trafficking in persons” as the: recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation.67 Article 3(a) of the Smuggling Protocol defines “smuggling” as the “procurement, in order to obtain, directly or indirectly, a financial or other material benefit, of the illegal entry of a person into a State Party of which the person is not a national or a permanent resident”. Trafficking and smuggling are often confused, especially by the media.68 The principal distinction between the two phenomena relates to the notion of exploitation. The Trafficking Protocol defines exploitation as including, at a minimum, “the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal or organs”.69 Exploitation is a key element of trafficking. The notion of exploitation has traditionally been focused on the sexual exploitation of women and children; exploitation for the purposes of forced labour and slavery is, however, becoming increasingly prevalent.70 Smuggling, in contrast, is often exploitative − especially because people who have been smuggled are vulnerable to trafficking during their journey − but exploitation is not a legal element of smuggling. Smuggling is a commercial transaction between someone who wants to go to another country and another person who facilitates this. Smuggling may occur without coercion or even any human rights violation. In some circumstances, smuggling assists people who have no other way of escaping persecution, especially as States strengthen their border controls.71 The Trafficking and Smuggling Protocols focus on the criminalization of trafficking and smuggling under international law and also address strengthening border controls and limiting the irregular movement of people. Several of these measures may actually be detrimental to refugee protection,72 especially if applied indiscriminately. Potentially harmful measures include the authorization to intercept vessels on the high seas,73 the obligation to strengthen border controls74 and adopt sanctions for commercial carriers,75 and the commitment to accept the return of smuggled migrants.76 Furthermore, these measures may be implemented in an indiscriminate manner, thereby frustrating refugees’ attempts to seek asylum. Both Protocols do, however, include saving clauses aimed at ensuring that rights under international law, in particular under the 1951 Convention, are not affected by the measures envisaged under the Protocols.77 Despite their focus on suppression, the Trafficking and Smuggling Protocols nevertheless both contain several largely discretionary provisions regarding the protection of trafficked and smuggled persons, which may provide an additional legal basis of protection for refugees or migrants who have been victims of trafficking or subjects of smuggling.78 Article 6 of the Trafficking Protocol relates to assistance and protection of victims of trafficking and covers issues including privacy; physical, psychological, and social well-being; the special needs of children; and access to compensation under domestic law. Article 7 encourages States to adopt legislative or other measures to permit victims of trafficking to remain on state territory. Article 8 creates a framework for the repatriation of victims of trafficking. Articles 6 through 8 of the Trafficking Protocol are discretionary. Article 9 on the prevention of trafficking is, however, mandatory. It outlines preventative measures, including the adoption of relevant policies; media campaigns; international cooperation to combat the factors that make people vulnerable to trafficking and to curb demand for the services people are trafficked to provide. Article 16 of the Smuggling Protocol relates to mandatory protection and assistance measures for individuals who have been smuggled, including protection of their rights and from violence; the special needs of women and children; and rights under the Vienna Convention on Consular Relations in detention situations. 3.5. The law of the sea Refugees and migrants often travel by sea, making the law of the sea relevant.79 Three conventions are pertinent: the International Convention for the Safety of Life at Sea80 (SOLAS), the International Convention on Maritime Search and Rescue81 (SAR), and the United Nations Convention on the Law of the Sea82 (UNCLOS).83 The latter instrument establishes the various maritime jurisdiction zones. The area of sea extending to a maximum of 12 nautical miles from a State’s coastline (known technically as its “baseline”) is within the State’s exclusive territorial jurisdiction.84 The waters beyond the territorial sea extending to a maximum of 24 nautical miles from the coastal State’s baseline are known as the contiguous zone.85 The coastal State has limited powers within its contiguous zone.86 The area of sea extending 200 nautical miles from the coastal State’s baseline is its exclusive economic zone (EEZ).87 A State has rights to explore, exploit, conserve, and manage the resources within its EEZ.88 Vessels and passengers beyond the contiguous zone but within the EEZ are generally under the exclusive jurisdiction of the flag State,89 which is the State where the vessel is registered. The international waters beyond the EEZ are known as the high seas.90 Vessels on the high seas and their passengers are also generally under the exclusive jurisdiction of the flag State.91 In addition to the “territorial”, “contiguous”, and “exclusive economic” maritime jurisdiction zones and the high seas, waters are also divided into various search-and-rescue areas, each of which is under the designated responsibility of a particular State, which will operate a rescue coordination centre to direct search and rescue within its area of responsibility. Both shipmasters and States have treaty and customary obligations regarding the rescue of individuals in distress at sea. Pursuant to Article 98(1) of UNCLOS, SOLAS regulation V/33.1, and customary international law, masters of merchant vessels must render assistance to people in distress at sea, regardless of their nationality, status, or the circumstances in which they are found. Under Article 98(2) of UNCLOS and SOLAS regulation V/7, a State is responsible for ensuring that there are arrangements for distress communication and rescue coordination within its territorial waters and within its designated search-and-rescue area. SAR’s chapter 2.1.10 further obliges States Parties to “ensure that assistance be provided to any person in distress at sea […] regardless of the nationality or status of such a person or the circumstances in which that person is found”. States have additional obligations when the rescuing vessel is state-controlled, as would be the case with a coast guard vessel or warship. In particular, state-controlled vessels may not engage in or allow direct or indirect refoulement. Under SAR Chapter 3.1.9. and SOLAS V.33.1-1, rescued individuals must, as soon as reasonably practicable, be disembarked at a place of safety. The International Maritime Organization (IMO) has provided guidance regarding what this means. According to the IMO, a “place of safety” is “a location where rescue operations are considered to terminate” and where “the survivors’ safety is no longer threatened and where their basic human needs (such as food, shelter and medical needs) can be met. Further, it is a place from which transportation arrangements can be made for the survivors’ next or final destination”.92 In any given rescue-at-sea situation, there may be several proximate “places of safety”. The law of the sea does not provide clear rules determining which State must allow disembarkation on its territory following a rescue at sea. According to May 2006 amendments to SOLAS (which entered into force on 1 July 2006) and May 2004 amendments to SAR (which also entered into force on 1 July 2006), States must coordinate and cooperate to assist shipmasters in delivering rescued persons to a place of safety.93 Furthermore, the May 2004 SAR amendments provide that the responsible rescue coordination centre should initiate the process of identifying the most appropriate place to disembark persons rescued at sea.94 The interception of vessels at sea is unlawful, except in certain clearly defined circumstances. Under UNCLOS, such circumstances include preventing the disembarkation of passengers in contravention of the coastal State’s immigration laws95; preventing the infringement of the coastal State’s customs, fiscal, immigration, or sanity laws and regulations96; and in order to inspect a vessel that authorities suspect of being unregistered.97 Article 7 of the Smuggling Protocol mandates cooperation among States Parties to “prevent and suppress the smuggling of migrants by sea”. Accordingly, if a State has reasonable grounds to suspect that a vessel is engaged in smuggling, Article 8(2) allows the State to request permission from the flag State to board the vessel, inspect it, and take any necessary enforcement action. If the suspect vessel is stateless, Article 8(7) permits the concerned State to board and search the vessel. Beyond these and certain other circumstances clearly defined under UNCLOS, interception is generally unlawful. Moreover, if the people aboard a vessel are in search of international protection, intercepting it and pushing it back, or returning passengers, to its point of origin constitutes refoulement.98 States wishing to prevent refugees and migrants from reaching their territories sometimes try to circumvent the prohibition of interception by characterizing their actions as search and rescue, in particular by stretching the notion of “distress”.99 SAR defines the “distress phase” as a “situation wherein there is reasonable certainty that a person, a vessel or other craft is threatened by grave and imminent danger and requires immediate assistance”.100 On the flipside, smugglers often induce distress situations − by using overcrowded, unseaworthy boats and by not accompanying the vessel, particularly on the central Mediterranean route between Libya and Italy − knowing that this will usually lead to rescue and disembarkation at a location where passengers can then seek asylum.101 This reprehensible calculus is responsible for many tragic deaths at sea. 4. FROM POLICY TO LAW TO POLICY The policy concept of “mixed migration” arose recently to describe complex migration phenomena, including irregular flows composed of people with varied and no international protection needs. The concept is, however, of limited value, since the actors engaged with these complex population movements use the term differently. As described above, definitions of mixed migration either focus on the heterogeneous nature of population movements, or on the varied composition of population flows as well as on peoples’ often complex individual motivations for moving. The former conceptualisation of mixed migration should be preferred over the latter understanding, because the legal obligations States owe to people on the move for the most part apply regardless of individual motivations for migrating, as will be demonstrated below. Introducing individual motivations into situations in which state duties are owed regardless of such motivations undermines protection by diverting attention from States’ legal obligations and focusing attention instead on migration drivers for which some segments of the public lack sympathy. International refugee law is arguably the only international legal framework relevant in mixed migration situations in which an individual’s motivations have an explicit bearing on States’ obligations. As mentioned above, the 1951 Convention, as amended by its 1967 Protocol,102 defines a refugee as any person who: owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.103 Refugee status depends on the “well-founded fear of persecution”; an individual’s motivations for migrating are clearly highly relevant. However, a critical legal obligation is owed before the State can even undertake any inquiry into an individual’s state of mind: non-refoulement. As mentioned above, the state duty not to return an individual to “the frontiers of territories where his life or freedom would be threatened”104 applies at borders and therefore gives rise to a duty of independent inquiry. When the State knows or should know that a person is in need of international protection, it has a duty to establish whether non-admission would result in a breach of the non-refoulement obligation.105 In mixed migration situations involving refugees, people in need of other forms of international protection and individuals without any international protection needs, the duty of independent inquiry applies broadly in order to determine the needs of each individual within the mixed flow. Thus, while individual motivations are generally pertinent under international refugee law, in mixed migration situations such motivations are not relevant at the first point of contact between the State and persons on the move; the duty of independent inquiry is owed to everyone in such circumstances, regardless of motivations for moving. International human rights law is based on “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family”.106 In view of our common humanity, international human rights apply to everyone, regardless of their individual circumstances or motivations. While there are a few exceptions to this universality, which were mentioned above, the human rights that are particularly important in mixed migration situations − the complementary protection regime and the rights to equality and liberty and security of the person − are not among them. Furthermore, specific human rights regimes − which protect “racial” minorities, women, persons with disabilities, children and migrant workers − apply to all migrants who are members of the relevant protected group, regardless of individual motivations for moving. Common Article 3’s only applicability criterion is that the protected person must not be taking an active part in hostilities. Similarly, the Trafficking and Smuggling Protocols’ protective provisions apply to anyone who has been trafficked or smuggled, regardless of any other consideration. Finally, the reason why people are in distress at sea − including the possibility that they may be in search of economic opportunities or have been placed in a dire situation by unscrupulous smugglers − has no bearing on States’ and shipmasters’ duty to rescue. Moreover, maritime interception is prohibited except for the limited enforcement purposes delineated in UNCLOS and the Smuggling Protocol; the fact that a vessel is carrying people in search of safety or better lives does not justify pushing it back. State responses to mixed migration should be determined by their international legal obligations to people on the move. Considering these obligations demonstrates that conceptualising mixed migration as including individuals’ varied motivations for moving does not add value, because such motivations for the most part have no bearing on States’ duties. Understandings of mixed migration that include individual motivations unfortunately suggest otherwise. Such a suggestion is particularly dangerous in the current political climate, in which many States are doing their utmost to limit their obligations towards people in search of safety and opportunity. Unnecessarily introducing migrants’ motivations may also direct public attention towards economic impetuses for movement. In other words, explicitly addressing the issue of motivations for migrating may raise the perception that such migration is not necessary and is therefore not justified. Many scholars and protection professionals accept that economic deprivation may ground a claim for refugee status.107 Among publics, however, focus on the economic drivers of migration may inflame populist anti-immigration sentiments. This argument for construing “mixed migration” solely in terms of the complex composition of population movements should not be taken to suggest that individual motivations are never relevant. Motivations are indeed often highly relevant, especially in light of States’ New York Declaration commitment to “consider facilitating opportunities for safe, orderly and regular migration, including, as appropriate, employment creation […] family reunification and education-related opportunities”.108 A person might choose to migrate to a particular country because of a job offer or family there, and such reasons must inform the destination State’s entry decision. However, the policy construct of “mixed migration” is typically not invoked in such regular migration situations. Rather, it is employed by humanitarian agencies in the context of the irregular movement of individuals, many of whom will have acute protection needs. Migrants have rights to have such needs met, regardless of individual reasons for moving. How protection needs are met should be informed by individual factors including motivations − for example, an unaccompanied child who moves to a particular country because of family connections should be reunited with them there − but whether a State has a legal obligation towards a particular migrant does not depend on individual considerations. The legal frameworks outlined above demonstrate that States always have legal duties towards migrants, irrespective of such migrants’ individual motivations. 5. CONCLUSION The mixed migration policy concept should be disabused of its legally insignificant and possibly politically dangerous “motivations” element. Instead, “mixed migration” should be understood as describing complex population flows including several legal categories of migrants with differing international protection needs, such as refugees, victims of trafficking, unaccompanied and separated children, other vulnerable groups, and economic migrants. Stressing complexity over motivations would serve to focus States’ attention on the international legal obligations described above, which apply regardless of individuals’ motivations for moving. Stressing complexity over motivations would also avoid the possibility of unnecessarily directing public attention towards drivers of migration about which they are not sympathetic. And perhaps most importantly, stressing complexity over motivations would more accurately align the mixed migration policy concept with the legal frameworks governing the situations that “mixed migration” describes. This article was inspired and informed by work on mixed migration I undertook for UNHCR during the (northern hemisphere) summer of 2016 (it was, however, written in a personal capacity and does not reflect UNHCR views or positions). I am grateful to UNHCR colleagues, especially Areti Sianni, for their insights into mixed migration. I am also grateful to Jean-François Durieux and RSQ’s peer reviewers and editorial team for their perceptive feedback. I wrote this article while an Arnold & Blema Steinberg Post-Doctoral Fellow in International Migration Law and Policy at the CHRLP. I am grateful to the Steinberg family for establishing the fellowship and to François Crépeau for his guidance and support. Footnotes 1 189 UNTS 137, 28 Jul. 1951 (entry into force: 22 Apr. 1954), Art. 1A(2). 2 N. Van Hear, Mixed Migration: Policy Challenges, The Migration Observatory Policy Primer, 2011, 3. 3 Ibid. 4 J. Crisp, Beyond the Nexus: UNHCR’s Evolving Perspective on Refugee Protection and International Migration, Geneva, UNHCR, New Issues in Refugee Research, Research Paper No. 155, Apr. 2008, 2. 5 UNHCR, Refugee Protection and Mixed Migration: A 10-Point Plan of Action, Geneva, UNHCR, 2007, available at: http://www.unhcr.org/protection/migration/4742a30b4/refugee-protection-mixed-migration-10-point-plan-action.html (last visited 22 Dec. 2017); the UNHCR details how this plan has been operationalised in Refugee Protection and Mixed Migration: The 10-Point Plan in Action, Geneva, UNHCR, 2010, available at: http://www.unhcr.org/protection/migration/4d52864b9/refugee-protection-mixed-migration-10-point-plan-action.html (last visited 22 Dec. 2017); the 10-Point Plan in Action was updated in 2016: UNHCR, The 10 Point Plan in Action: 2016 Update, webpage, 2016, available at: http://www.unhcr.org/the-10-point-plan-in-action.html (last visited 22 Dec. 2017). 6 UNHCR, UNHCR, Refugee Protection and International Migration, Geneva, UNHCR, 2007, paras. 35–36 available at: http://www.unhcr.org/4a24ef0ca2.pdf (last visited 22 Dec. 2017); UNHCR’s role in international migration is addressed in more detail in: UNHCR, Discussion Paper: Refugee Protection and Durable Solutions in the Context of International Migration, UNHCR/DPC/2007/Doc.02, 2007, available at: http://www.unhcr.org/47fe0e532.pdf (last visited 22 Dec. 2017). 7 Van Hear, “Mixed Migration”, 4. 8 Ibid., 2. 9 See, for example, M. Collyer, “Stranded Migrants and the Fragmented Journey”, Journal of Refugee Studies, 23(3), 2010, 273–293. 10 See, for example, T. Linde, “Mixed Migration: A Humanitarian Counterpoint”, Refugee Survey Quarterly, 30(1), 2011, 89–99; J. van der Klaauw, “Refugee Rights in Times of Mixed Migration: Evolving Status and Protection Issues”, Refugee Survey Quarterly, 28(4), 2010, 59–86; K. Derderian & L. Schockaert, “Responding to ‘Mixed’ Migration Flows: A Humanitarian Perspective”, International Journal on Human Rights, 6(10), 2009, 105–116. 11 MHub, What is Mixed Migration?, webpage, undated, available at: http://www.mixedmigrationhub.org/about/what-mixed-migration-is/ (last visited 22 Dec. 2017). 12 UNHCR, Refugee Protection and Mixed Migration, 291. 13 IOM, Glossary on Migration, 2004, 42. 14 IOM, Challenges of Irregular Migration: Addressing Mixed Migration Flows, MC/INF/294, 7 Nov. 2008, para. 6, available at: https://www.iom.int/jahia/webdav/shared/shared/mainsite/microsites/IDM/workshops/return_migration_challenges_120208/mixed_migration_flows.pdf (last visited 22 Dec. 2017). 15 IOM Nairobi, Mixed Migration, Nairobi, IOM, undated, available at: https://www.iom.int/files/live/sites/iom/files/Country/docs/Mixed-Migration-HOA.pdf (last visited 22 Dec. 2017). 16 RMMS, What is Mixed Migration, webpage, undated, available at: http://www.regionalmms.org/index.php/about-us/mixed-migration (last visited 22 Dec. 2017). 17 DRC, Evaluation Learning Brief #03: Protection People on the Move – Mixed Migration in Volatile Contexts, Copenhagen, DRC, Sep. 2014, 2, available at: https://drc.dk/media/1517705/e_l_brief_03.pdf (last visited 22 Dec. 2017). 18 UN Human Rights Committee, General Comment 15: The Position of Aliens under the Covenant, 30 Sep. 1986, in UN Doc. HRI/GEN/1/Rev.1, 1994, paras. 1–2. 19 European Court of Human Rights (ECtHR), Hirsi Jamaa and Others v. Italy, Appl. No. 27765/09, 23 Feb. 2012. 20 Protocol relating to the Status of Refugees, 606 UNTS 267, 31 Jan. 1967 (entry into force: 4 Oct. 1967), Art. I(2). 21 1951 Convention, Art. 1A(2). 22 See, for example, G.S. Goodwin-Gill and J. McAdam, The Refugee in International Law, 3rd edn., Oxford, Oxford University Press, 2007, 208; UNHCR Executive Committee (ExCom): Conclusion on International Protection No. 6 (XXVIII), 12 Oct. 1977; Conclusion on International Protection No. 14 (XXX), 16 Oct. 1979; Conclusion on International Protection No. 22 (XXXII), 21 Oct. 1981; Conclusion on International Protection No. 81 (XLVIII), 17 Oct. 1997; and Conclusion on International Protection No. 85 (XLIX), 9 Oct. 1998. 23 This duty is also known as the duty of individual inquiry or examination. 24 UNHCR, Advisory Opinion on the Extraterritorial Application of the Non-Refoulement Obligations under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol, Geneva, UNHCR, 2007, para. 22, available at: http://www.refworld.org/docid/45f17a1a4.html (last visited 22 Dec. 2017). 25 ECtHR, Hirsi Jamaa and Others v. Italy, para. 146. 26 UNHCR, Intervention before the Court of Final Appeal of the Hong Kong Special Administrative Region in the Case between C, KMF, BF (Applicants) and Director of Immigration, Secretary for Security (Respondents), UNHCR, 31 Jan. 2013, para. 74, available at: http://www.refworld.org/docid/510a74ce2.html (last visited 22 Dec. 2017). 27 C and Others v. Director of Immigration and Another  HKCFA 19, para. 56. 28 For more information on this Hong Kong case, see S. Donnelly, Refugee Status Determination in Hong Kong: A New Era for Legal Aid Providers?, Rights in Exile Newsletter, 1 Jun. 2013, available at: http://rightsinexile.tumblr.com/post/51870210924/refugee-status-determination-in-hong-kong-a-new (last visited 22 Dec. 2017). 29 S.C. 2001, c. 27, s. 37(1)(b). 30 UNHCR, B010 v. Minister of Public Safety and Emergency Preparedness, Factum of the Intervener, 2 Feb. 2015, para. 13, available at: http://www.refworld.org/docid/54d09bb44.html (last visited 22 Dec. 2017). 31 This provision prohibits the penalization of refugees unlawfully in the country of refuge. 32 European Commission, Migration and Home Affairs, Temporary Reintroduction of Border Control, webpage, last updated 22 Dec. 2017, available at: http://ec.europa.eu/dgs/home-affairs/what-we-do/policies/borders-and-visas/schengen/reintroduction-border-control/index_en.htm (last visited 22 Dec. 2017). 33 UNHCR, Refugee Protection and Mixed Migration, 3. 34 See, generally, V. Chetail, “Are Refugee Rights Human Rights? An Unorthodox Questioning of the Relations between Refugee Law and Human Rights Law”, in R. Rubio-Marin (ed.), Human Rights and Immigration, Oxford, Oxford University Press, 2014, 19–72; C. Harvey, “Time for Reform? Refugees, Asylum-Seekers, and Protection under International Human Rights Law”, Refugee Survey Quarterly, 34(1), 2015, 43–60. 35 See J.C. Hathaway, The Rights of Refugees Under International Law, Cambridge, Cambridge University Press, 2005, 154–277; and M. Sharpe, “The 1951 Refugee Convention’s Contingent Rights Framework and Article 26 of the ICCPR: A Fundamental Incompatibility?”, Refuge, 30(2), 2014, 5–13, 6–8. 36 Sharpe, “Article 26”, 6–8. 37 International Covenant on Civil and Political Rights, 999 UNTS 171, 16 Dec. 1966 (entry into force: 23 Mar. 1976), Art. 25. 38 International Covenant on Economic, Social and Cultural Rights, 993 UNTS 3, 16 Dec. 1966 (entry into force: 3 Jan. 1976), Art. 2(3). 39 Cf. ICCPR, Arts. 2 and 26 and 1951 Convention, Art. 3. 40 T. Clark & F. Crépeau, “Mainstreaming Refugee Rights: The 1951 Convention and International Human Rights Law”, Netherlands Quarterly of Human Rights, 17(4), 1999, 389–410. 41 J. Hathaway, The Law of Refugee Status, Toronto, Butterworths, 1991, 104–105. 42 See O. Andrysek, “Gaps in International Protection and the Potential for Redress through Individual Complaints Procedures”, International Journal of Refugee Law, 9(3), 1997, 392–414. 43 1465 UNTS 85, 10 Dec. 1984 (entry into force: 26 Jun. 1987). 44 For detailed analysis of complementary protection, see J. McAdam, Complementary Protection in International Refugee Law, Oxford, Oxford University Press, 2007. See, also, C. Wouters, International Legal Standards for the Protection from Refoulement, Mortsel, Intersentia, 2009. 45 United Nations General Assembly, Report of the International Law Commission (ILC), 53rd session of the ILC, UN Doc. A/56/10, 2001, 208. 46 UN Human Rights Committee, General Comment No 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, CCPR/C/21/Rev.1/Add.13, 26 May 2004, para. 12. 47 Hathaway, The Rights of Refugees, 123. 48 M. Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary, 2nd edn., Strasbourg, NP Engel, 2005, 605. 49 UN Human Rights Committee, General Comment No 18: Non-Discrimination, 10 Nov. 1989, in UN Doc. HRI/GEN/1/Rev.1, 1994, para. 13. 50 See UN Human Rights Committee, A v. Australia, Comm. No. 560/1993, 3 Apr. 1997, para. 9. See also A. Edwards, “Back to Basics: The Right to Liberty and Security of Person and ‘Alternatives to Detention’ of Refugees, Asylum-Seekers, Stateless Persons and Other Migrants”, UNHCR Legal and Protection Policy Research Series, PPLA/2011/01.Rev.1, 2011; B. Saul, “Dark Justice: Australia’s Indefinite Detention of Refugees on Security Grounds under International Human Rights Law”, Melbourne Journal of International Law, 13(2), 2012, 685–731; UNHCR, Detention Guidelines: Guidelines on the Applicable Criteria and Standards relating to the Detention of Asylum-Seekers and Alternatives to Detention, Geneva, UNHCR, 2012, available at: http://www.unhcr.org/publications/legal/505b10ee9/unhcr-detention-guidelines.html (last visited 22 Dec. 2017); D. Wilsher, Immigration Detention: Law, History, Politics, Cambridge, Cambridge University Press, 2012. 51 660 UNTS 195, 7 Mar. 1966 (entry into force: 4 Jan. 1969). 52 1249 UNTS 13, 18 Dec. 1979 (entry into force: 3 Sep. 1981). 53 2515 UNTS 3, 13 Dec. 2006 (entry into force: 3 May 2008). 54 1577 UNTS 3, 20 Nov. 1989 (entry into force: 2 Sep. 1990). 55 A. Gilbertson, “The Child Migrants of Africa”, The New York Times, 10 Jun. 2016, available at: http://www.nytimes.com/2016/06/12/opinion/sunday/the-child-migrants-of-africa.html (last visited 22 Dec. 2017). 56 UN Committee on the Rights of the Child, General Comment No 6: Treatment of Unaccompanied and Separated Children Outside Their Country of Origin, UN Doc. CRC/GC/2005/6, 1 Sep. 2005. 57 2220 UNTS 3, 18 Dec. 1990 (entry into force: 1 Jul. 2003). 58 Ibid., Art. 3(d). 59 “Why Aren’t Rich Gulf States Welcoming Syrian Refugees… Or Are They?”, Euronews, 30 Sep. 2015, available at: http://www.euronews.com/2015/09/30/why-aren-t-rich-gulf-states-welcoming-syrian-refugeesor-are-they (last visited 22 Dec. 2017). 60 Namely, the Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 75 UNTS 31, 12 Aug. 1949 (entry into force: 21 Oct. 1951); the Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 75 UNTS 85, 12 Aug. 1949 (entry into force: 21 Oct. 1950); the Convention relative to the Treatment of Prisoners of War, 75 UNTS 135, 12 Aug. 1949 (entry into force: 21 Oct. 1950) ; and the Convention relative to the Protection of Civilian Persons in Time of War, 75 UNTS 287, 12 Aug. 1949 (entry into force: 21 Oct. 1950). 61 Namely, the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, 1125 UNTS 3, 8 Jun. 1977 (entry into force: 7 Dec. 1978); and the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts, 1125 UNTS 609, 8 Jun. 1977 (entry into force: 7 Dec. 1978). 62 International Committee of the Red Cross (ICRC), “States Party to the Following International Humanitarian Law and Other Related Treaties as of 22 September 2017”, Geneva, ICRC, 2017, available at: https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/vwTreaties1949.xsp (last visited 24 Oct. 2017). 63 See, generally, D.J. Cantor and J. Durieux (eds), Refuge from Inhumanity? War Refugees and International Humanitarian Law, Leiden, Brill, 2014; V. Chetail, “Armed Conflict and Forced Migration: A Systemic Approach to International Humanitarian Law, Refugee Law and Human Rights Law”, in A. Clapham & P. Gaeta (eds), The Oxford Handbook of International Law in Armed Conflict, Oxford, Oxford University Press, 2014, 100–734. 64 2225 UNTS 209, 15 Nov. 2000 (entry into force: 29 Sep. 2003). 65 2237 UNTS 319, 15 Nov. 2000 (entry into force: 25 Dec. 2003). 66 2241 UNTS 507, 15 Nov. 2000 (entry into force: 28 Jan. 2004). 67 Trafficking Protocol, Art. 3(a). 68 See, for example, the PBS report “Traffickers’ Trade Turns to Refugee Tragedy off Greece”, 28 Oct. 2015, available at: http://www.pbs.org/newshour/bb/traffickers-turns-tragedy-greece/ (last visited 22 Dec. 2017). The headline refers to “traffickers” and the report uses “smuggler” and “trafficker” interchangeably. Based on the facts provided, it seems likely a case of smuggling. 69 Trafficking Protocol, Art. 3(a). 70 International labour law is relevant for individuals who have been trafficked into an exploitative labour situation, particularly the Forced Labour Convention No. 29, 28 Jun. 1930 (entry into force: 1 May 1932); the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, 266 UNTS 3, 7 Sep. 1956 (entry into force: 30 Apr. 1957); and the Convention concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour (No. 182), 17 Jun. 1999 (entry into force: 19 Nov. 2000). 71 Where an individual transports a person across an international border illegally for humanitarian reasons, UNODC − the guardian of the Palermo Convention and its protocols − argues for an exception to mitigate criminality under the Smuggling Protocol. Many jurisdictions, including Australia and the United States, have no such exception, which has contributed to reluctance among shipmasters to rescue refugees and migrants in distress at sea. Note that if the individual assisting receives no financial or material benefit in exchange for the assistance provided, then the assistance is not, by definition, smuggling. 72 See UNHCR, Summary Position on the Protocol Against the Smuggling of Migrants by Land, Sea and Air and the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the UN Convention Against Transnational Organized Crime, Geneva, UNCHR, 11 Dec. 2000, available at: http://www.unhcr.org/protection/operations/43662b942/unhcr-summary-position-protocol-against-smuggling-migrants-land-sea-air.html (last visited 22 Dec. 2017). 73 Smuggling Protocol, Art. 8. 74 Trafficking Protocol, Art. 11; Smuggling Protocol, Art. 11. 75 Trafficking Protocol, Art. 11(2); Smuggling Protocol, Art. 11(2). 76 Smuggling Protocol, Art. 18. 77 Trafficking Protocol, Art. 14(1); Smuggling Protocol, Art. 19. 78 See, generally, A. Gallagher, The International Law of Human Trafficking, Cambridge, Cambridge University Press, 2010. 79 See, generally, D. Guilfoyle and E. Papastavridis, “Mapping Disembarkation Options: Towards Strengthening Cooperation in Managing Irregular Movements by Sea”, UNHCR and The Bali Process, 2014, available at: http://www.refworld.org/pdfid/5346438f4.pdf (last visited 22 Dec. 2017). This excellent paper explores the legal framework relating to the rescue and interception of individuals moving irregularly by sea, in more detail than is possible here. See, also, R. Barnes, “Refugee Law at Sea”, International and Comparative Law Quarterly, 53(1), 2004, 47–77. 80 1184 UNTS 276, 1 Nov. 1974 (entry into force: 25 May 1980). 81 1405 UNTS 118, 27 Apr. 1979 (entry into force: 22 Jun. 1985). 82 1833 UNTS 3, 10 Dec. 1982 (entry into force: 16 Nov. 1994). 83 Additional obligations also accrue under regional legal frameworks, in particular under EU law. See, in this regard, A. Fischer-Lescano, T. Lohr & T. Tohidipur, “Border Controls at Sea: Requirements under International Human Rights and Refugee Law”, International Journal of Refugee Law, 21(2), 2009, 256–296; N. Markard, “The Right to Leave by Sea: Legal Limits on EU Migration Control by Third Countries”, European Journal of International Law, 27(3), 2016, 591–616; V. Moreno-Lax, “Seeking Asylum in the Mediterranean: Against a Fragmentary Reading of EU Obligations Accruing at Sea”, International Journal of Refugee Law, 23(2), 2011, 174–220. 84 UNCLOS, Arts 2 and 3. 85 Ibid., Art. 33(2). 86 Ibid., Art. 33(1). 87 Ibid., Art. 57. 88 Ibid., Art. 56. 89 Ibid., Arts 58(2) and 92(1). 90 Ibid., Art. 86. 91 Ibid., Art. 92(1). 92 IMO, Resolution MSC.167(78): Guidelines on the Treatment of Persons Rescued at Sea, MSC 78/26/Add.2, 20 May 2004, para. 6.12. 93 IMO, SOLAS 1974: Brief History – List of Amendments to Date and Where to Find Them, undated, available at: http://www.imo.org/en/KnowledgeCentre/ReferencesAndArchives/HistoryofSOLAS/Documents/SOLAS%201974%20-%20Brief%20History%20-%20List%20of%20amendments%20to%20date%20and%20how%20to%20find%20them.html (last visited 13 Oct. 2016); IMO, 2004 Amendments – Persons in Distress at Sea, webpage, undated, available at: http://www.imo.org/en/About/conventions/listofconventions/pages/international-convention-on-maritime-search-and-rescue-(sar).aspx (last visited 22 Dec. 2017). 94 IMO, 2004 Amendments – Persons in Distress at Sea. 95 UNCLOS, Art. 19(2)(g). 96 Ibid., Art. 33. 97 Ibid., Art. 110. 98 ECtHR, Hirsi Jamaa v. Italy. 99 Moreno-Lax, “Fragmentary Reading”, 177. 100 SAR, Annex, para. 1.3.13. 101 J. Coppens, “The Lampedusa Disaster: How to Prevent Further Loss of Life at Sea?”, TransNav, 7(4), 2013, 589–598, 591. 102 1967 Protocol, Art. I(2). 103 1951 Refugee Convention, Art. 1A(2). 104 Ibid., Art. 33(1). 105 UNHCR, Factum of the Intervener, para. 13. 106 UN General Assembly Res. 217A (III), 10 Dec. 1948, preambular para. 1. 107 See M. Foster, International Refugee Law and Socio-Economic Rights: Refuge from Deprivation, Cambridge, Cambridge University Press, 2007. 108 UN General Assembly, New York Declaration for Refugees and Migrants, UN Doc. A/71/L.1, 13 Sep. 2016, para. 57. © Author(s) . All rights reserved. For Permissions, please email: email@example.com
Refugee Survey Quarterly – Oxford University Press
Published: Mar 1, 2018
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