Assessing Article 8: Is the Migrant Smuggling Protocol Fit for the Central Mediterranean Crisis?
Emma Minerva Brambilla
Introduction
In the vast expanse of the Central Mediterranean, a complex tapestry of maritime migration unfolds, weaving stories of perilous journeys and humanitarian challenges that demand urgent exploration and understanding. In 2021, roughly 67,724 migrants opted for the Central Mediterranean pathway -- from Algeria, Egypt, Libya and Tunisia to Italy and Malta -- to irregularly enter the European Union. The term 'irregular' refers to entry without authorisation or valid legal documentation, as opposed to lawful migration through designated border crossings. As EU Member States, particularly Italy and Malta, grapple with successive waves of unauthorised arrivals, the adequacy of the legal measures available to them becomes paramount. The smuggling of migrants along this route presents a significant challenge not only for the states directly concerned but for the European Union as a whole.
In fact, it is important to highlight that until the 1990s, there was a lack of consensus on the definition of migrant smuggling, no mandatory requirement for criminalisation, and no obligation to extradite or prosecute offenders. This created a lacuna in international law, hindering states' ability to effectively address the organised criminal networks profiting from irregular migration. To address this lacuna, the United Nations Crime Commission developed the United Nations Convention against Transnational Organised Crime (UNTOC) and, as a distinct supplementary instrument to it, the Protocol Against the Smuggling of Migrants by Land, Sea and Air (hereinafter: Smuggling Protocol). As a supplementary protocol, the Smuggling Protocol cannot be ratified independently of the UNTOC -- a structural feature that shapes the obligations it imposes on State Parties. The raison d’être of the Smuggling Protocol is to prevent and address the smuggling of migrants, fostering cooperation among States Parties for this purpose, all while safeguarding the rights of those who have been smuggled. Specifically, Part II of the Smuggling Protocol covers, in detail, measures concerning the maritime smuggling of migrants. The act of smuggling migrants entails acquiring, with the aim of gaining a financial or other material benefit, the unauthorised entry of an individual into a country where the individual is not a citizen or permanent resident, either directly or indirectly.
Addressing cases of smuggling by sea presents particular challenges for States: Landings may occur anywhere along a coastline, unlike land arrivals, where established control points exist on both sides of the border. Moreover, States addressing maritime migration must take into account and adhere to multiple overlapping international legal regimes, including the UN Convention on the Law of the Sea (UNCLOS), the 1979 International Convention on Maritime Search and Rescue (SAR Convention), and international human rights law -- notably the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol, which enshrine the principle of non-refoulement (Article 33) and prohibit the return of persons to territories where they face persecution.
In light of this background, the blog assesses whether the measures laid out in Article 8 of the Smuggling Protocol provide an adequate legal basis for States to respond to the type of maritime migration currently observed in the Central Mediterranean. It proceeds in three parts. Section II provides a detailed review of Article 8 and the framework it establishes for maritime interdiction. Section III identifies six key limitations that undermine Article 8's effectiveness in the Central Mediterranean context. Section IV sets out recommendations for reform, arguing that targeted amendments to the Protocol's language and the adoption of a region-specific instrument are necessary to address the deficiencies identified.
Article 8: A Review
The power of States to intervene against vessels suspected to be involved with migrant smuggling — both direct and indirect — is governed by the provisions outlined in Article 8 of the Smuggling Protocol. If a State Party has valid grounds to suspect that a vessel flying its flag or a vessel without nationality is engaged in the smuggling of migrants, the State Party has the right to seek help from other States Parties to suppress such activities. However, importantly, mere suspicion is insufficient; the request must be well-founded.
This well-founded requirement is equally operative under Article 8(2), which governs situations involving foreign-flagged vessels. Under this provision, a State Party with valid reasons to suspect a vessel is allowed to inform the flag State, seek confirmation of registry, and, upon confirmation, request authorisation to take appropriate actions. The continuity of the well-founded standard across Articles 8(1) and 8(2) ensures that the cooperative mechanism cannot be triggered arbitrarily -- a safeguard designed to balance effective enforcement with respect for flag State sovereignty. Both requests, as stipulated by Article 8(4), must expeditiously receive a response. Although there is no explicit obligation for the flag State to grant authorisation, Article 7 emphasises that States Parties must cooperate to the fullest extent possible. Failing to promptly grant authorisation without justifiable reasons may therefore violate this overarching requirement.
Article 8(2) introduces a two-step process for authorisation. First, the flag State confirms registry; second, it authorises specific enforcement measures. Under Article 8(2)(a)-(c), permissible actions may include boarding, inspecting, and- if evidence of smuggling is found -- taking appropriate measures against the vessel. This underscores the principle that permission to board and inspect does not inherently extend to additional enforcement actions. For such subsequent measures, additional authorisation from the flag State is necessary. Article 8(5), itself subject to Article 7, stipulates that flag State authorisation may be contingent on mutually agreed conditions between the flag State and the requesting State.
However, in the practical realm of maritime migrant smuggling, the majority of vessels lack a specific nationality -- a deliberate tactic by smugglers, who routinely remove or destroy registration documents and flags to obstruct enforcement. In such cases, Article 8(7) becomes more pertinent than Article 8(2). Article 8(7) considers the situation in which a State Party has reasonable grounds to suspect that a vessel is involved in smuggling migrants by sea and lacks nationality or is treated as a vessel without nationality. The 'reasonable grounds' standard under Article 8(7) is informed by UNCLOS Article 110(1)(d), which permits the right of visit against stateless vessels, and by Article 91 UNCLOS, which provides that ships may only sail under one flag -- such that a vessel deliberately operating without any flag forfeits the protection of flag State sovereignty. In such instances, the State Party has the right to take appropriate actions in compliance with relevant domestic and international regulations. This sub-Article establishes a treaty-based foundation for any State — as ruled in Naim Molvan v Attorney-General for Palestine — to enforce measures against stateless vessels, filling a crucial gap, as the permissibility of further enforcement actions against stateless vessels is often a matter of dispute.
While Article 110 of the UNCLOS grants authority to visit and board stateless vessels, the Smuggling Protocol goes further by potentially obliging States to take such actions. The language of the provision, referencing ‘taking appropriate measures’ to ‘suppress the use of the vessel,’ indicates justifiable use of force — though contingent on being a last resort, as well as adhering to the principles of necessity and proportionality. The Smuggling Protocol does not explicitly outline which measures are permissible, leaving a broader level of discretion to individual State Parties in determining specific actions.
Limitations of Article 8 in the Central Mediterranean
The Central Mediterranean route is characterised by conditions that stretch the limits of Article 8's framework. Migrants are typically transported on overcrowded and unseaworthy rubber dinghies or wooden fishing vessels departing from the Libyan and Tunisian coasts. The UNHCR has documented that in many cases, vessels are deliberately rendered unseaworthy -- engines removed, distress signals activated -- to force rescue operations and exploit the non-refoulement principle. Political disputes between Italy and Malta over disembarkation responsibilities have led to prolonged standoffs at sea, leaving rescued migrants stranded on vessels for days or weeks. These structural dynamics raise serious questions about whether the Article 8 framework, designed primarily as a counter-smuggling tool, is equipped to address the humanitarian emergency that maritime smuggling in this region has become.
The following six limitations are identified.
Firstly, there is an inconsistency with the Smuggling Protocol. In fact, combatting sea migration smuggling requires collaboration between flag and non-flag States, as stated in Article 7 of the Smuggling Protocol. However, this cooperative effort faces challenges due to the conflicting provisions of Article 8(1)-(2), which upholds the principle of non-intervention (State sovereignty) — demonstrated by the use of the term ‘may’ rather than ‘shall.’ For instance, when a non-flag State encounters a vessel engaged in suspected smuggling activities in the Central Mediterranean, this principle may limit the immediate response from other States, hindering a swift and coordinated intervention. It is evident that this (possible) delay could exacerbate the risks for migrants on board, compromise effective law enforcement, and potentially allow smugglers to exploit the situation and evade accountability.
Secondly, the ambiguity surrounding the ‘reasonable grounds’ criterion in Article 8(1)-(2) further complicates matters. This ambiguity becomes palpable when considering scenarios where one State perceives a situation as having reasonable grounds for intervention, while another might not share the same assessment. Such disparities in interpretation impede cohesive actions against smuggling operations, particularly in an intricate region like the Central Mediterranean, where quick and unified responses are crucial. These factors raise concerns about the Protocol’s efficacy, as the stringent pursuit of suppressing migrant smuggling at sea may be hindered. Additionally, the practical difficulty of detecting vessels engaged in migrant smuggling poses an additional obstacle, with smugglers employing tactics to hide migrants and camouflage their vessels to elude detection and law enforcement interventions.
Thirdly, as it was highlighted by the 11th session of the Ad Hoc Committee, there is a noteworthy concern regarding the protection afforded to smuggled migrants, specifically in the challenging context of the Central Mediterranean. While the protection of migrants’ rights is incorporated into Article 2 as one of the objectives of the Smuggling Protocol, as well as under Article 16, Article 8(2)-(c) mentions ‘with respect to the persons on board.’ This formulation is insufficiently specific: it establishes no defined standards for the provision of medical care, food, water, or psychological support during a boarding operation; nor does it create explicit non-refoulement obligations at the point of interception. Article 9, which requires that flag State authorised measures be taken with due regard for 'the safety and humane treatment of the persons on board,' partially addresses this, but remains similarly vague. To remedy this, the Protocol could adopt language mirroring the standards in the International Convention on Maritime Search and Rescue, 1979 (SAR Convention) and the International Convention for the Safety of Life at Sea, 1974 (SOLAS Convention) -- explicitly requiring that boarding states ensure immediate access to emergency medical assistance, adequate provisions, and referral to asylum procedures where applicable.
Fourthly, the expression used in Article 8(2), ‘engaged in the smuggling of migrants by sea,’ is broadly framed to include both direct and indirect engagement in smuggling. Thus, encompassing situations in which a mother ship has either already transferred migrants to smaller vessels for disembarkation or has taken on migrants at sea with the intent of smuggling them. Nevertheless, it excludes a vessel that has merely conducted a rescue operation for migrants who were being smuggled by another vessel. While the intention behind this omission may be to encourage and protect humanitarian efforts, particularly in a Region where such efforts are often obstructed by right-wing political parties such as Italy's “Fratelli D’Italia,” it also poses a challenge for States. One might assert that it can lead to difficulties in distinguishing between vessels genuinely involved in rescue missions and those exploiting the guise of humanitarian assistance to conceal illicit activities.
Fifthly, as Obokata argues, the inclusion of the term ‘may’ in Article 8(7) is redundant, as it implies that the duty to inspect and search a smuggling vessel is not unconditional, potentially allowing such actions to be disregarded. It is contended that unless there is an unequivocal obligation mandating States to inspect vessels suspected of statelessness, smugglers might evade accountability. It can further be argued that in the central Mediterranean, where a copious number of migrants from different Countries are smuggled on a daily basis, this ambiguity poses a serious issue. In fact, it could be exploited by smugglers seeking to operate with impunity, as well as hindering the effective and timely response of States such as Malta and Italy to combat smuggling.
Lastly, the constraints in technical expertise and institutional capacity among states in and bordering the Central Mediterranean Region represent a significant structural challenge to the Protocol's implementation. Countries such as Libya and Tunisia -- the primary points of departure -- lack dedicated coast guard capabilities equipped for sustained maritime enforcement, vessel surveillance technology, and trained personnel for migrant identification and smuggler prosecution. At the domestic level, these capacity gaps extend to inadequate detention and reception infrastructure, the absence of formal victim identification protocols, and underfunded judicial systems unable to effectively prosecute smuggling networks. Some of these States have formally requested technical assistance under the Protocol's framework; however, the absence of a binding obligation on developed State Parties to provide such assistance limits its practical impact. For Italy and Malta, which bear disproportionate pressure as frontline EU member states, this regional capacity deficit translates directly into an increased enforcement burden that the current Article 8 framework does not adequately address.
Conclusion and Recommendations
Article 8 of the Smuggling Protocol was designed with a clear dual purpose: to empower States to act decisively against maritime smuggling operations while preserving the sovereignty of flag States and protecting the rights of migrants at sea. In the Central Mediterranean, however, this balance has proven difficult to achieve. The Protocol's discretionary language -- most evident in its repeated use of 'may' rather than 'shall' -- means that the cooperative obligations it envisions are rarely operationalised with the urgency the crisis demands. The vague protections afforded to persons on board during interdiction operations leave a normative gap that other international instruments only partially fill. The broad definition of engagement in smuggling, while flexible, creates enforcement ambiguities that undermine accountability. In short, Article 8 provides a solid structural foundation, but its implementation depends on political will and inter-State cooperation that the current framework does not reliably secure.
In contemplating prospective advancements in addressing maritime smuggling, two key recommendations come to the forefront. First, a region-specific legal instrument for the Central Mediterranean is necessary. Such an instrument could take several forms: a supplementary protocol to the UNTOC -- negotiated multilaterally and adopted by the UN General Assembly, as the Smuggling Protocol itself was -- tailored to the specific geographic, political, and humanitarian dynamics of the Central Mediterranean; alternatively, an EU Directive or Regulation adopted under Article 79 TFEUcould establish binding minimum standards for interception, rescue, and disembarkation that go beyond the Protocol's current provisions, building on existing instruments such as the Facilitation Directive (2002/90/EC). A Directive would have the advantage of directly binding EU Member States -- including Italy and Malta -- without requiring the broader UNTOC ratification process. In either case, such an instrument would need to incorporate precise counter-smuggling strategies alongside enforceable migrant protection standards and a mandatory technical assistance mechanism for states with limited capacity.
Second, it is crucial to highlight the need for fostering collaboration among smuggled migrants in the processes of detection, investigation, and prosecution of individuals engaged in smuggling, in conjunction with law enforcement agencies. This could positively contribute to criminal justice objectives related to the identification, investigation, and prosecution, promoting accountability. In fact, all individuals who have been smuggled are likely to possess significant information and evidence regarding the techniques, pathways, and practices of smugglers. Presently, the stringent law enforcement measures supported by the Smuggling Protocol might only push smugglers towards adopting more sophisticated and covert organisational structures.
Author:
Emma Minerva Brambilla holds an LLB (Hons) in International and European (Technology) Law from the University of Groningen and an LLM in Competition and Innovation from the London School of Economics and Political Science (LSE). She currently is a Legal Research Assistant at UNCTAD’s Competition and Consumer Policies Branch. Her work focuses on competition law, with particular interests in agri-food and digital markets, including competition issues in developing and emerging economies, as well as the regulation of technology-driven industries.
