A/HRC/41/44 31. The overall point being made in this section is that if general international law requires every person who is in command of a ship to rescue anyone they encounter at sea (including migrants and refugees) in distress or at risk of drowning and every State to require and facilitate such rescues, then the criminalization or suppression of those who respect this rescue obligation is clearly in violation of general international law. VI. An international human rights analysis 32. The Independent Expert would like to stress that several established international human rights law norms also prohibit or at least severely constrain both the criminalization of humanitarian assistance to irregular migrants and refugees and other similarly repressive ways in which States have attempted to stamp out private humanitarian aid to irregular migrants and refugees. Those norms are contained in key international human rights treaties, such as the Protocol against the Smuggling of Migrants by Land, Sea and Air, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. 33. Although the Protocol against the Smuggling of Migrants by Land, Sea and Air supplements and forms an integral part of the system created by the United Nations Convention against Transnational Organized Crime, it was also intended to be implemented in a manner that respects international human rights law. The Protocol requires States to criminalize human smuggling but sets certain parameters within which they are to do so (art. 6). One such parameter is that the scope of the Protocol is limited “to the prevention, investigation and prosecution of the offences established in accordance with its article 6, where the offences are transnational in nature and involve an organized criminal group” (art. 4).59 This provision makes it very clear that the kind of offence of human smuggling that the Protocol requires its parties to create within their national laws is not one that criminalizes the rendering of humanitarian assistance to irregular migrants. That much is also clear from a reading of the preparatory work on the Protocol.60 34. In the case of R v. Appulonappa, the Supreme Court of Canada held that the Protocol was not intended to criminalize humanitarian smuggling and struck down a provision of the Canadian federal immigration legislation to the extent that this section of the relevant law contravened the limited intent of the Protocol. Whatever the merits of this judicially rejected argument, it must be remembered, however, that the Protocol also explicitly and completely “saves” the other international human rights guaranteed to all human beings, including migrants and their humanitarian allies. It provides that “nothing in this Protocol shall affect the other rights, obligations and responsibilities of States and individuals under international law, including international humanitarian law and international human rights law (art. 19). The implication of this is that even if the criminalization of humanitarian aid to irregular migrants and refugees were to be permissible under the Protocol, it could still be illegal under the norms of other international (human rights) law. This reading of the Protocol is also supported by the decision in in R v. Appulonappa. 35. There is little doubt that the criminalization by States (and even regional organizations61) of the rendering to irregular migrants and refugees the forms of humanitarian assistance already discussed here will normally violate international human rights law. That much has been recognized in the literature.62 One expert has for example, noted correctly that such acts of criminalization have invariably inhibited the ability of 59 60 61 62 See also Liz Fekete, “Europe: crimes of solidarity”. See Rachel Landry, “The ‘humanitarian smuggling’ of refugees: criminal offence or moral obligation?” See Sergio.. Carrera and Joanna Parkin, “Protecting and delivering fundamental rights of irregular migrants at local and regional levels in the European Union” (Centre for European Policy Studies, 2011), p. 3. See Mark Provera, “The criminalization of irregular migration in the European Union”, pp. 27–28; and European Agency for Fundamental Rights, “Criminalization of migrants in an irregular situation and of persons engaging with them”. 11