Smuggling or Trafficking? Defining the Terms in the UN Migration Compact

Dr Kasey McCall-Smith, Chair of the Association of Human Rights Institutes and member of the Global Justice Academy, discusses recent steps towards a UN Global Compact for Migration. This is the first of two blogs from Dr McCall-Smith on the Migration Compact negotiations.

The next steps toward a UN Global Compact for Migration to combat the ever-growing legal and policy issues associated with mass and irregular migration were taken at the UN headquarters in Vienna, Austria, 4-5 September 2017. The Compact aims to deliver a comprehensive approach to human mobility as well as further clarification of and support for existing international frameworks addressing migration, refugees and trafficking, including the Refugee Convention and its Protocol, the UN Convention against Transnational Organized Crime (UNTOC), the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (Trafficking in Persons Protocol) and the Protocol against the Smuggling of Migrants by Land, Sea and Air (Smuggling of Migrants Protocol), as well as a number of human rights instruments such as the Convention on the Elimination of all forms of Discrimination against Women (CEDAW) the Convention on the Rights of the Child (CRC), among many others.

The agenda for the Thematic Session on Smuggling and Trafficking of Migrants promised a challenging two days working through how to identify, support and facilitate legal migration for the most vulnerable and outlined many controversial issues. All of these issues are overshadowed by the need to balance global efforts to regulate migration and protect human dignity against state sovereignty arguments focused on controlling borders. As an international instrument, before the document is agreed, states will spend much effort articulating terms in order to clarify what obligations may, or may not, emerge in the final form. The distinction between human smuggling and human trafficking, two terms that are often conflated in the media and general discourse, emerged as the first controversial terminology discussion. Recalling the New York Declaration for Refugees and Migrants, Louise Arbour, the UN Special Rapporteur on International Migration, clarified that while smuggling of migrants to facilitate irregular migration is a crime against a State, trafficking in persons is a crime against a person. This, sadly, is a point that has been often overlooked by States in the pursuit of stringent domestic migration policies that focus on excluding irregular migrants no matter what their migration journey. It is intended that the Migration Compact will recognise the nuances of the realities faced by people forced into irregular migration journeys and address these in the countries of origin, transit and destination.

The first panel on smuggling of migrants, comprised of Gabriella Sanchez (Migration Policy Centre, EUI), Mark Shaw (Global Initiative against Transnational Organized Crime) and Jorgen Carling (Peace Research Institute) delivered concrete, critical insights into the absolute necessity to understand the difference between the terms smuggling and trafficking and reiterated that trafficking victims must be distinguished from economic migrants when transit and destination states are processing irregular migrants. Many interventions prevailed upon States to recognise that heavy-handed counter-irregular migration policies often lead to an increase in trafficking and have extremely negative impacts on women and children that have been trafficked for the various ends of modern slavery. Hassiba Hadj Sabraoui (Médecins Sans Frontières) and Bandana Pattanaik (Global Alliance Against Trafficking in Women) cautioned the assembly that the terms human trafficking and human smuggling were not in need of such distinctions if you approach the issue from the victim’s viewpoint. All migrants are prone to vulnerability. It is documented by NGOs that individuals beginning their migration journeys as smuggled irregular migrants often find themselves trafficked as smugglers respond to increased restrictions and policing on traditional migration routes.

Ensuing interventions by states made clear that the distinction was inconsequential for those governments that have experienced a mass exodus in population or that are widely known for their harsh policies toward all irregular migrants. States with increasingly harsh migration policies continued to harp on the need for stronger implementation of criminal laws at the international, regional and domestic levels, ignoring all evidence and statements offered to the contrary. Addressing irregular migration cannot be solely about criminal justice responses and increasing barriers to legal migration. Comprehensive migration solutions must take a human rights based approach to dealing with the root causes of irregular and mass migration and the treatment of victims. A very clear point raised through the proceedings was the pressing need for much more substantial empirical data on migrants, trafficking victims and those involved in the trafficking chain so that there is better understanding of all irregular migration journeys. In the end, states must adapt to the realities that the victims of the wide range of causes for irregular migration, whether smuggled or trafficked or both, are human beings and only a human rights based approach that preserves their dignity will deliver any true resolution to the problem of irregular and mass migration.

#UNMigration #HumanTrafficking #humansmuggling #humanrights #internationallaw #UNnegotiations

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More about the author: Dr McCall-Smith is a lecturer in Public International Law and programme director for the LLM in Human Rights at the Edinburgh Law School.


Postgraduate Gender Research Network of Scotland Launches

setting-up-tweetThe Global Justice Academy is delighted to support the launch on the Postgraduate Gender Research Network of Scotland (PGRNS). This guest post by co-organiser, Rhian Sutton, reflects on the launch event which took place in October, and plans for the Network over the coming months – including how you can get involved. Rhian is reading for a PhD in History at the University of Edinburgh.

The Postgraduate Gender Research Network of Scotland (PGRNS) was formed in August, 2016. PGRNS aims to provide a platform on which postgraduates engaged in researching gender across Scotland can share their work, advertise events, workshops, and conferences, as well as learn about calls for papers and funding opportunities. Our goal is to facilitate discussion among researchers with common interests across both universities and disciplines in order to allow students to engage with people and ideas that they would not usually encounter through the course of their study.  Ultimately, the network hopes to assist postgraduate students in enriching their research through the discovery of, and engagement with, new perspectives of gender research.

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Myths and Realities – What is the Women, Peace and Security Agenda?

Rosie Ireland is a GJA Student Ambassador for 2015-16, and is reading for an LLM in Human Rights. Rosie co-authored our first student report on international law and peace negotiations with her colleague, Siobhan Cuming. In this report, Rosie reflects on the 2015 Crystal Macmillan Lecture, which was delivered by Madeleine Rees. 

Last semester on the 26 November, the distinguished international lawyer and human rights advocate Madeline Rees, Secretary General of the Women’s International League for Peace and Freedom, delivered the second Chrystal Macmillan Lecture of 2015. The report provides a brief summary and covers some of the key points made during the lecture.

Law has developed since 1948 to address conflicts, promote peace and end war. Addressing the root causes of conflict – such as inequalities between people and nations – is essential to the prevention of future conflict.

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Human Rights and Making Change: Looking Backwards and Moving Forwards from the Northern Ireland High Court Decision on Abortion

This post first appeared on the Centre for Criminal Justice and Human Rights blog from the Faculty of Law at University College Cork.

Dr Catherine O’Rourke is Senior Lecturer in Human Rights and International Law at Ulster University Transitional Justice Institute. She is currently also co-coordinator of the Gender Stream of the DFID-funded Political Settlements Research Programme, where she is investigating how international law norms for gender equality influence domestic power-brokering.

In the aftermath of last week’s High Court judgment declaring Northern Ireland’s prohibition of abortion to be incompatible with UK human rights legislation in specific instances, there has been much valuable consideration of the judgment’s legal and political implications, for this jurisdiction and others.  In this contribution, I reflect on what the litigation and judgment say about human rights advocacy in Northern Ireland.

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Northern Irish Abortion Law Incompatible with the European Convention on Human Rights

This post first appeared on the European Futures Blog.

In this extended article, Jane Rooney analyses the recent Northern Ireland High Court decision that current abortion law is not compatible with the European Convention on Human Rights. She suggests that the judgement could have gone further in testing the compatibility of the legislation with the ECHR, and that possible appeals are unlikely to take the politics of Northern Ireland as closely into account.

On 30 November 2015 in the case of The Northern Ireland Human Rights Commission’s Application [2015] NIQB 96, the High Court of Northern Ireland found that Northern Irish law regulating abortion was incompatible with Article 8 (right to private life) of the European Convention on Human Rights (ECHR). This was an historical judgement made possible through the conjoined efforts of many, including women directly affected by the legislation, the Northern Ireland Human Rights Commission and Amnesty International.

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Serving women in Iraq and Syria: has UNSCR 1325 made a difference?

Rosie Ireland is a student on this year’s LLM in Human Rights at The University of Edinburgh. This is Rosie’s second report as a Global Justice Academy Student Ambassador – from the 2015 Montague Burton Lecture, which was delivered by Frances Guy on 2 November. Frances Guy is the Head of the Middle East region at Christian Aid. Rosie’s report outlines the key points made during the lecture, which was entitled ‘Serving women in Iraq and Syria: has UNSCR 1325 made a difference?’.

It is nearly the fifteenth anniversary of the UNSCR 1325; the first ever resolution aimed to enhance the role of women in peace building. Frances Guy analysed the effectiveness of the resolution in the context of Iraq and Syria in relation to four key areas: participation, protection, prevention, and relief and recovery.

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Pregnancy, Choice, and the Lessons of the Past

Mikki headshotDr Michelle Brock is an Assistant Professor of History at Washington and Lee University, specialising in British History. In this second guest post for the Global Justice Academy, Mikki tackles the current controversy in the US around abortion and the politicisation and policing of women’s bodies – drawing striking parallels with early modern Europe. 

In the United States, the last decade has witnessed a growing cacophony of calls from pro-life advocates seeking to overturn Roe v. Wade, the Supreme Court’s 1973 decision to legalise a woman’s right to an abortion. Every single current Republican candidate for president, fourteen men and one woman, has declared his or her opposition to abortion in most or all cases.

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