Human Trafficking

Definitions and international law

Smuggling and trafficking now have legal definitions under the UN Convention on Trans-national Organized Crime 2000, which are likely to enter into international law during 2003. Each has a separate Protocol to the Convention; smuggling and trafficking are defined as follows:
• ‘Smuggling of migrants shall mean the procurement, in order to obtain, directly or indirectly, a financial or other material benefit, of the illegal entry of a person into a State Party of which the person is not a national or a permanent resident.’
• ‘Trafficking in persons shall mean the recruitment, transportation, transfer and harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of giving or receiving payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation.’
Through the clear separation of smuggling and trafficking, the victimization of trafficked people is widely accepted. However, smuggled migrants’ human rights, especially smuggled refugees’ right to protection of smuggled refugees, arguably receive too little attention. While states have a great interest in cracking down on human smuggling as an international crime, there is hardly any discussion of alternative options for refugees in need of protection.

Political context and policy

Policy making and research in the area of human trafficking and smuggling can never be entirely divorced from political agendas or the economics of the marketplace. A series of writers, from different perspectives, have all argued the same point: that the growth of trafficking and smuggling has, at least in part, been a response to the growth of political efforts to stop less organized forms of irregular migration. This explains the ‘business model’ for illegal migration – where smugglers provide a service in lieu of legal means, or traffickers exploit the vulnerable. The ‘human rights’ case is also complex, given that much trafficking clearly exploits the human rights of many children and women.

Another conundrum faces any attempt to end human smuggling that provides no legal or safe alternative to refugees who have no option other than to migrate illegally in order to escape a well-founded fear of persecution.
Any research on human smuggling or trafficking that claims to be ‘value neutral’ or ‘politically objective’ must be closely examined. For example, quantitative research can implicitly support notions of ‘migration management’ if it unwittingly assumes notions of the cultural or social status quo in the host community. Some political leaders will explicitly talk about the trafficking of ‘illegal’ migrants (e.g., Afghans to Australia in 2001), when it is clear that the process involved is ‘smuggling’ under the new definitions. The ability of the word ‘trafficking’ to arouse a more emotive response from the media and the public has not escaped the notice of politicians seeking re-election.
It is not helpful if the ‘trafficked’ migrant is always seen as the ‘victim’ and the smuggled migrant as more ‘complicit’. Migrants often face few choices when fleeing persecution or leaving socio-economic insecurity.


Extracted from:
Human Smuggling and Trafficking, J. Morrison; Oxford University, Refugee Studies Center, 2005