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.