“From ‘boat people’ to ‘illegals’: Transnational criminal law as an anti-development policy.”

 Spain, Italy and Malta have become the frontlines for irregular maritime migration from North Africa into Europe. European policy responses have focussed on maritime interdiction, non-entrée measures, repatriation agreements and a modest expansion of guest worker programs – in that order. Smuggling migrants across national boundaries is simply a business: it will continue so long as there is demand. While the roots of migrant smuggling lie in conflict, instability and poverty, the policy space surrounding it has become foremost one of border security rather than development. Even where there is a twin-track political commitment to combating irregular migration and promoting development, the emphasis remains on the former. Criminalising irregular migration is not only a fundamentally mistaken policy tool for addressing this challenge, it is an anti-development policy.

      The labour of irregular migrants is a necessary part of many developed economies. Economic analyses of law suggests that criminalizing migration both creates a class of cheap, rightless labour in destination States and plays a role in keeping that labour pool at a controllable level. The question raised is whether transnational criminal law helps maintain an economic system within which Southern States become “ghettoes” functioning to export low-cost, almost right-less, labour. This can be contrasted with (limited) efforts to produce structured North-South labour migration programs. The superficially incoherent policy of prioritizing criminal law over development solutions actually sustains exploitative North-South labour market relations. A unified policy space would consider this properly a matter not of illegal migration and development but of trade and development. 

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