Is There a Distinction Between Human Trafficking and the Smuggling of Migrants?

M36ISS – Is there a distinction between human trafficking and the smuggling of migrants?

   Since the turn of the 21st century, the prominence of both human trafficking and the smuggling of migrants have been incredibly alarming. Both issues aren’t just concerns for particular continents, but are a concern for the entire world. As a result of this, there is now an importance than ever before, to tackle these issues with great effort. Both issues continue to grow, however one area of particular intrigue, is the actual definitions of the two concepts. It can be argued that due to their being some overlapping issues within both issues, there may not be an actual distinction between the two concepts. However this simply isn’t the case, this essay shall consider these issues and promote the view that there is a clear distinction between trafficking in persons and the smuggling of migrants.

   Before speaking specifically about the distinctions of both concepts, it is worth noting what they actually are. Human trafficking is essentially the targeting of particular persons to be trafficked, as an object of sexual exploitation. The main purpose of trafficking is to create a profit from the exploitation of the individual. In addition to this, it is believed that force and coercion both play a major part in trafficking (US Department of State, 2006, 1).  The smuggling of migrants, involves the facilitation and the transport of person(s) across countries, which is in clear violation of the countries laws and legislation (US Department of State, 2006, 1). The purpose of human smuggling is not as straightforward as trafficking individuals. The two main purposes of the concept are to mainly create profit, or to reunite an individual with his/her family.

   The Palermo protocols were essentially three protocols that were embraced by the United Nations as an extension on the convention of transnational organised crime. This focused on three key areas, the protocol to prevent, suppress and punish trafficking in persons, especially women and children. Secondly, the protocol against the smuggling of migrants by land, sea and air. And lastly, the protocol against the illicit manufacturing and trafficking in firearms, their parts, ammunition and components. (UN convention against transnational organised crime and the protocols thereto, 2000, V). The protocols have direct ramifications on the issue of defining both trafficking in persons and the smuggling of migrants. The United Nations believe that both concepts are fundamentally different and highlight three significant areas that further cements both trafficking in persons and the smuggling of migrants being inherently different concepts. One area concerned Consent. Migrant smuggling is often enacted in unsafe and hazardous conditions. The defining point of this area is that it involves migrants who have consented to smuggling. In direct comparison to this, victims of trafficking are subject of two potential scenarios, they either haven’t consented at all, or they originally did to begin with, but that consent has been made worthless as a result of the brutal and coercive nature of human trafficking. In addition to this, exploitation was another key concern in the differentiation of both concepts. In relation to both issues, with smuggling, the exploitation ends when the individual(s) arrives at the intended destination. In comparison, with human trafficking, the exploitation is very much ongoing, as the continued exploitation of people is a constant source of profit. In the aftermath of this, victims of trafficking tend to be much more affected by this psychologically, and are in a greater need of attention from the government, as opposed to the smuggled migrants. The last area is transnationality. In relation to smuggling, it is always transnational, however with human trafficking, this isn’t always the case. Trafficking continues to happen, whether or not the victim(s) remain or move states. Collectively, this highlights the United Nations firm stance of trafficking in persons and the smuggling of migrants having a clear distinction between each other. In addition to this, it also produces suitable proposals on how each activity is different, which further cements the fact that both concepts are fundamentally different. With the United Nations being a prestigious international organisation, for such a high-ranking establishment to promote the differences between the two, it gives validity to the view that there is a definite distinction between both activities.    

   Sarah Pierce, the program manager for human trafficking search (HTS) also promoted the view that there is clear distinction between trafficking in persons and the smuggling of migrants, and believed that there are many distinctions between the two concepts that are frequently being overlooked. (Pierce, 2014, 1). Pierce highlights and supports the issue surrounding consent, stating that migrants consent to being smuggled whilst the majority of trafficking victims do not consent. One area that Pierce also highlighted was the legal differences between the two concepts. Proceeding in more detail in this area, she highlights the rights and treatments of the victims. Migrant smuggling, in most cases doesn’t produce victims as a result, whereas in human trafficking, victims are always part of the process. Pierce proposed the view that to conflate both migrant smuggling and human trafficking, this would subsume migrant smuggling under a crime that everyone believes should be eradicated, which would pose a major problem, as politicians may fail to protect migrants by using a stance tailored to combat human trafficking (Pierce, 2014, 1).  Pierce’s final point was that these are innately different crimes. Smuggling is a crime because borders are crossed illegally, however it does not involve the violation of an individual’s human rights, which is the case with human trafficking. Through Pierce’s views it can be understood that the core functioning’s of both human trafficking and migrant smuggling are essentially different. In relation to law they contrast, and in their inherent nature as two criminal activities, they both have different moral intentions for their actions. This further cements the view that there is a clear distinction between both crimes.

   Parrenas, Hwang and Lee (2012), also conformed to the view that there is clear distinction between trafficking in persons and the smuggling of migrants and highlighted the United Nations’ protocols to help illustrate their view on the matter. One key aspect that was highlighted was the definition of the three protocols. The ‘protocol to prevent, suppress and punish trafficking in persons,’ defines ‘trafficking in persons,’ as the recruitment, transportation and harbouring or receipt of persons, by means of the threat or use force etc. The authors highlighted the key role of exploitation, within human trafficking, and highlighted how this contrasts with the consented nature of the smuggling of migrants. In addition to this, Parrenas, Hwang and Lee also conformed to Pierce’s view on the legal differences between both issues. Human trafficking involves a number of legal violations, however with the smuggling of migrants, the only legal violation is the crossing of borders. In the wider context, a smuggled person would fall under the broader category of ‘migrant,’ (Parrenas, Hwang and Lee, 2012, 1016), as migration often derives from the voluntary movement of people. This however causes confusion, as the illicit crossing of international borders, is a definite crime. Through the authors’ view, the distinctions between trafficking in persons and the smuggling of migrants can be seen in different ways, from a legal perspective or a perspective focusing specifically on the actual activities within each crime.