National Post September 13, 2010

Hoping to stymie the arrival of boat refugees, the government is expected to announce tough new penalties for human smuggling. Other likely aspects of the Convervative plan — in particular, intercepting boats carrying refugees in international waters, and denying due process rights to those onboard — can be counted on to generate controversy as clear violations of international law. But somehow efforts to go after smugglers raise few hackles. To the contrary, many would agree with the assessment of former Australian prime minister Kevin Rudd, who famously called human smugglers the “absolute scum of the Earth,” saying they should be left to “rot in hell.”

This is a simplistic view, which should be rejected.

Government responses to the recent arrival of 492 Tamil refugees in British Columbia last month routinely confused the issue of human smuggling with that of trafficking. A trafficker engages in coercive, exploitative dealings with people desperate to migrate. Traffickers abuse or deceive the people they transport, for example by subjecting them to debt bondage in the destination country to pay off their transportation debt. There are already — appropriately — strong laws both in Canada and internationally that treat traffickers as slave traders subject to the full force of the criminal law.

A smuggler, in contrast, is simply someone who assists another to cross a border without official permission. The transaction is consensual, reflecting a decision on the part of the refugee that the short-term hell of life onboard a container ship is better than the risk of being persecuted at home. While human smuggling is perhaps normally to be opposed — borders do matter, and laws are laws — it should also be recognized that human smugglers play a critical role in assisting refugees to reach safety.

This is the nub of the issue. Governments around the world have vilified plain old human smuggling — that is, assisted border crossing with no exploitation or coercion involved — in a completely dishonest way. We know that many of those on the boats that periodically arrive at our shores are genuine refugees. We know that no state — including Canada — will grant a visa to a person who wishes to travel here in a law-abiding way in order to claim refugee status. And we know that no more than a tiny minority of the world’s refugees will receive a resettlement offer to immigrate to a safe country. The overwhelming majority of the refugee population — nearly 90% of whom are stuck in states of the less developed world, which often neglect or brutalize them — are thus left with no option but to take matters into their own hands and flee to a country which they hope will treat them fairly.

Indeed, the UN Refugee Convention, which Canada helped to draft and signed, expressly allows refugees to travel to our shores without prior permission, and requires that they be exempted from penalties for breach of immigration laws. Why? Because the treaty’s drafters knew that countries would not — understandably — abolish border controls in order to ensure ready access for refugees. Yet the drafters also knew that if refugees faced the same barriers as all other would-be migrants, access to the protection guaranteed by the Refugee Convention would be summarily defeated. The middle-ground position agreed to was to refrain from challenging the right of states to control most immigration, but to require governments to ensure that refugees are not caught by exclusionary rules. When Canada single-mindedly demonizes all smuggling, it runs roughshod over this carefully crafted compromise.

Does this mean that human smuggling is justified? In a way, yes. Canada and other developed countries created the market on which smugglers depend by erecting (literal and virtual) migration walls around their territories. The more difficult it is to get across a border to safety on one’s own, the more sensible it is to hire a smuggler to navigate the barriers to entry. Smugglers are thus the critical bridge to get at-risk people to safety. Which one of us, if confronted with a desperate need to flee but facing seemingly impossible barriers, would not seek out a smuggler to assist us?

Canada could avoid its current dilemma by taking the lead on getting governments to agree to a system of refugee responsibility-sharing that would ensure that smugglers are not essential to a refugee’s ability to access real and durable protection. We could then pursue border control without fear of indirectly punishing genuine refugees (not just the smugglers).

But if we are not willing to shoulder that political burden, then we should accept that non-exploitative, plain old human smuggling is both inevitable and — sadly — critical to ensuring that immigration rules do not operate so as to keep genuine refugees away. Our migration control system will not be watertight. But with Canada now hosting less than one-half of 1% of the world’s refugees, we are in no position to claim anything remotely approaching hardship, much less the critical threat that the government alleges.

James C. Hathaway is the James E. and Sarah A. Degan professor and director of the Program in Refugee and Asylum Law at the University of Michigan. He is presently a distinguished visiting professor at the University of Toronto Faculty of Law.