Draft:Gulf of Aden Migrant Smuggling

Overview
Human smuggling (also known as people smuggling or migrant smuggling) is defined by the United Nations Protocol Against Smuggling Migrants by Land, Sea and Air in article 3(a) as "the procurement, to obtain, directly and 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". Article 5 of the UN Protocol Against Smuggling stipulates that migrants should not be criminally charged for being smuggled, and article 6 encourages states to criminalize acts targetting smugglers and those who assist them.

People can be smuggled across different mediums, either by land, sea or by air. Maritime smuggling is unique because it involves bringing people discreetly across a state’s maritime borders to evade border control. While human smuggling occurs globally and through different methods, human smuggling stands out in the Gulf of Aden because of the distinct challenges of travelling across the Gulf and the challenges faced by the surrounding states.

Most smuggled people in the Gulf of Aden are Somali and Ethiopian, and are trying to reach the Arabian Peninsula, though it can be challenging to cross through Yemen due to the civil war.

Stopping human smugglers can be difficult because of the limited enforcement powers states have on foreign vessels. Most enforcement exercises require the consent of the vessel's flag state, posing difficulties if the flag state is unwilling or incapable of enforcing the law.

Human Smuggling versus Human Trafficking
The definition of human smuggling shares commonalities with the definition of human trafficking; however, there are important distinctions between the two.

Both trafficked and smuggled people tend to leave their country of residence voluntarily, victims of trafficking may later find themselves in coercive situations such as being forced to perform labour or sexual acts, meaning that someone seeking the services of a smuggler may find later themselves being trafficked. Smuggled people also typically pay their smugglers at the beginning of their journey or when they reach their destination, while victims of trafficking usually pay a percentage of their fee at the beginning of their trip, and are indebted for the rest of their trip.

The experiences of smuggled people vary considerably across regions, presenting challenges because there is no way of consistently knowing whether the services sought will lead to smuggling or trafficking.

Smuggled Individuals' Profiles in the Gulf of Aden
Most migrants crossing the Gulf of Aden originate from Somalia and Ethiopia, and transit through Djibouti and Yemen to reach Saudi Arabia and the United Arab Emirates. Some people are also smuggled from the Arabian Peninsula to the Horn of Africa if they experience difficulties transiting through Yemen. Most Ethiopians’ motives are economic, though some are fleeing violence between Tigrayan and Ethiopian groups. Some Somalis are also migrating for economic reasons, though other reasons include political instability, violence and food insecurity.

States need to distinguish between people seeking to improve their economic situations and those fleeing due to persecution or violence because it means that not all smuggled people are asylum seekers, which impacts their obligations toward smuggled people.

Smuggling Risks in the Gulf of Aden
Smuggled people face risks of exploitation, trafficking and crippling debt. Smuggling by maritime routes, though, presents unique risks.

Often, the means of transportation across seas are extremely unsafe because smugglers use old boats that could capsize at any moment. At times, migrants are loaded onto a vessel but must change boats in the middle of the Gulf and board rubber crafts. These boats pose significant risks due to overcrowding and prolonged exposure at sea without adequate resources such as water, food, or fuel. Moreover, the environment in the Gulf of Aden is extremely dangerous due to storms and heavy rainfall, increasing the risk of capsizing. Migrant smuggling by sea also presents the risk of drowning and death. In 2021, 16 children and 27 adults drowned off the coast of Djibouti. In 2023, 64 migrants drowned in a shipwreck.

Migrants are still faced with major challenges if they successfully cross the Gulf of Aden. Once they arrive in Yemen, threats exist in Houthi-, government- and Southern Transitional Council-controlled areas. Migrants are at risk for ground attacks, sexual exploitation by human traffickers, abduction, arbitrary detention, torture and death by live ammunition. New threats present themselves at the Saudi Arabian border. UAE and Saudi Arabian coalition forces have shot at and have launched airstrikes and ground attacks at migrants approaching the Saudi border. In 2023, Saudi forces killed hundreds of Ethiopian migrants trying to cross the border.

Despite these risks, migrants and asylum-seekers are desperate to reach the Gulf region to escape their countries of residence. Djibouti is strategically chosen as a transit point due to its multiple borders with large populations of refugees and internally displaced peoples, and its ports in the Gulf of Aden. Saudi Arabia’s demand for migrant labour is also a major driver in the pursuit of economic prosperity. While the risks may still seem too high, smuggling can be considered a safer option for migrants given that smugglers know the routes and can bring individuals across the Gulf in the safest manner.

United Nations Convention on the Law of the Seas and Human Smuggling
The United Nations Convention on the Law of the Seas (UNCLOS) does not explicitly identify human smuggling as a crime, however, powers vested in the convention permit states to intercept vessels that are suspected of illegally carrying migrants. Interception is an activity aimed at sending migrants back to their country of origin and halting smugglers, though it is limited by requiring the consent of the vessel’s flag state.

In territorial waters, coastal states can board any vessel in their waters if there is sufficient suspicion that the right of innocent passage is not met, despite the principle of freedom of navigation. The freedom of navigation under Article 17 of UNCLOS permits vessels to pass through other states’ territorial waters provided the passage is not nefarious. Smuggling migrants through maritime routes does not mean the definition of innocent passage.

In the contiguous zone, coastal states can board and search vessels, and request the vessel to leave the zone. However, states cannot arrest smugglers onboard without the authorization of the flag state.

Coastal states’ jurisdiction is expanded in the high seas, though many operations still require consent from the vessel’s flag state. For example, states can use the right to visit as stipulated in Article 110 of UNCLOS, though are not allowed to conduct enforcement exercises without the authorization of the flag state; their powers are limited to searching the vessel. If they would like to remain on the boat or conduct enforcement exercises, they need the consent of the flag state. Otherwise, they need to disembark. While states' exercise of jurisdiction is extremely limited due to the powers of flag states, coastal states nonetheless must render assistance to vessels and individuals in distress. Through these operations, coastal states can gather evidence and work with the flag state’s authorities to arrest human smugglers.

Djiboutian and Yemeni Governments’ Attempts and Challenges to Halt Human Smuggling
Both Djibouti and Yemen have attempted to hinder human smuggling operations. To counter human smuggling, Djibouti has conducted vessel searches with the help of foreign states, and has worked with the United States Navy to increase their capacity for “Visit, Board, Search and Seizure Procedures”. Presently, Yemen’s coast guard is being supported and rebuilt with the help of the UN to eliminate maritime crime in the region. Despite these efforts, it could still be difficult for Djibouti and Yemen to stop human smuggling in the region.

Interception operations are challenging due to the presence of both asylum-seekers and economic migrants on a vessel given the international responsibility to process asylum claims and respect the principle of non-refoulement.

Coastal states cannot enforce their jurisdiction without the consent of the flag state, raising problems when the vessel’s flag state does not have the capacity nor the willingness to prosecute human smugglers.

Maritime boundaries are not clearly defined within the Gulf of Aden, with Djibouti, Eritrea and Somalia making overlapping territorial claims, creating challenges in terms of what state is responsible for enforcing protocols, conventions and laws.

Moreover, Djibouti and Yemen's maritime enforcement infrastructure is not sufficiently robust. Djibouti’s marine infrastructure protection is geared towards securing its ports due to their economic importance. As a result, attention is drawn away from building a strong navy and coast guard and is rather focused on securing ports. In Yemen, the civil war has taken resources away from its coast guard, resulting in difficulties enforcing maritime law.