A/HRC/41/44 and other persons providing legal advice, food, accommodation, medical care, or “any other assistance to preserve the dignity or physical integrity of the person” to such migrants. 36 Suggested by European Union law,37 such “optional humanitarian clauses”, however limited in scope, have also been introduced into the laws of a number of other European countries, including Belgium, Germany and Italy (explicit exemptions for humanitarians who come to the aid of any type of migrant); Finland and Denmark (only in an implicit way); Ireland, the United Kingdom of Great Britain and Northern Ireland and Spain (only for those who help asylum seekers); and Greece (only for those who rescue migrants at sea or who help those in need of international protection). 20. What is more, in a handful of other States, courts have held that the rendering of humanitarian assistance to irregular migrants cannot in and of itself be considered as criminal conduct. For example, in Austria the Constitutional Court decided in 2006 that the provision of humanitarian aid without the intention to prevent official measures over a longer time did not meet the elements of the offence. In France, the recent decision of the Constitutional Court, holding that Cedric Herrou was not guilty of smuggling migrants (including asylum seekers) into France because he acted under the principles of fraternity (i.e. solidarity), is highly instructive and progressive. 38 In Canada in 2015, the Supreme Court held in R v. Appulonappa that the Immigration and Refugee Protection Act was unconstitutional to the extent that it failed to make a distinction between humanitarian smuggling and for-profit smuggling.39 The court found that the material or financial gain threshold contained in the definition of human smuggling in the Protocol against the Smuggling of Migrants by Land, Sea and Air supplementing the United Nations Convention against Transnational Organized Crime was an indication that it was not intended to criminalize humanitarian smuggling. III. Regional laws, policies and practices that criminalize or suppress humanitarian assistance to irregular migrants or refugees 21. There are at least two regional-level pieces of legislation in Europe that have contributed the most directly and significantly to the maintenance of the legal regimes in most European States that suppress and criminalize humanitarian assistance to irregular migrants. Both legal instruments were aimed specifically at curbing irregular migration to Europe by strengthening the criminalization of acts undertaken in aid of such migrants. The main one is European Council Directive 2002/90/EC of 28 November 2002 defining the facilitation of unauthorized entry, transit and residence, which had been adopted by all member States of the European Union by 2007.40 The Directive requires member States acting before 5 December 2004 to implement effective, proportionate and dissuasive sanctions against persons who instigate, participate or attempt to assist a person who is not a national of a member State to enter or transit across the territory of a member State in breach of the laws of the State concerned on the entry or transit of non-citizens. However, the Directive, through its so-called “optional humanitarian clause,” leaves it to the discretion of member States to introduce (or not introduce) a limited exception to those rules to cover cases in which humanitarian assistance is rendered to irregular migrants (except in those cases in which the assistance is aimed at helping the irregular migrant 36 37 38 39 40 See Mark Provera, “The criminalization of irregular migration in the European Union”. See Council Directive 2002/90/EC defining the facilitation of unauthorized entry, transit and residence (28 November 2002). Case of Cedric Herrou and others, Constitutional Court décision No. 2018-717/718 QPC of 6 July 2018, available at www.conseil-constitutionnel.fr/decision/2018/2018717_718QPC.htm. See https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/15648/index.do. See Kay Hailbronner and Georg Jochum, “Synthesis report on the implementation of the directive on facilitation of unauthorised entry and stay of 28 November 2002” (Academic Network for Legal Studies on Immigration and Asylum in Europe, 2007). 7