by Anne Gallagher
Through the adoption of two new treaties on
trafficking and migrant smuggling, States are attempting to
curb the growing influence of organized criminal groups on
international migration. The risk of human rights being
marginalized in this process is, unfortunately, a very real
one.
Each year, an unknown number of people are
‘smuggled’ or ’trafficked’ across international borders.
Smuggled migrants are moved illegally for profit: they are
partners, however unequal, in a commercial transaction. All
going well, their relationship with the smuggler ends at the
destination country and they may even manage to survive the
ordeal with only financial damage. By contrast, the movement
of trafficked persons is based on deception or coercion and is
for the purpose of exploitation. The profit in trafficking
comes not from the movement but from the sale of a trafficked
person’s sexual services or labour in the country of
destination. Most smuggled migrants are men. Most trafficked
persons are women and children.
In November, 2000, the UN General Assembly
adopted two new international treaties (protocols): one on
smuggling of migrants, the other on trafficking in persons.
The treaties are actually part of a package of legal
instruments which were developed by the UN’s Crime Commission
to deal with the growing problem of transnational organized
crime. The parent instrument of this package is the United
Nations Convention Against Transnational Organised Crime –
also adopted by the General Assembly in November, 2000. Both
protocols have attracted a large number of signatures and are
expected to enter into force in the next few years. They did
not emerge in a vacuum. Trafficking and migrant smuggling are
now high on the international agenda for a range of reasons.
Humanitarian concern – especially for
especially for trafficked women and girls – is one
factor. However, in many cases, and particularly on the part
of the major destination countries, attempts to counter
trafficking and smuggling seem to be motivated by a growing
intolerance of all forms of irregular migration. The
connections between trafficking, smuggling and irregular
migration has have made it difficult
to persuade governments to place individuals and their rights
at the center of this debate.
The Trafficking Protocol
The purpose of this treaty is to prevent and
combat trafficking in persons, especially women and children.
Its main emphasis is on strengthening cooperation between
countries. The Protocol requires States Parties to:
-
criminalize trafficking and related conduct as
well as to impose appropriate
penalties
-
facilitate and accept the return of their
trafficked nationals and permanent residents with due regard
for their safety
-
when returning trafficked persons, to ensure
that this happens with due regard both for the safety of the
trafficked person and the status of any relevant
legal proceedings
-
exchange information aimed at identifying
perpetrators or victims of trafficking, as well as methods
and means employed by traffickers
-
provide or strengthen training for law
enforcement, immigration and other relevant personnel aimed
at preventing trafficking as well as prosecuting traffickers
and protecting the rights of victims.
-
Strengthen border controls as necessary to
detect and prevent trafficking
-
Take legislative or other appropriate measures
to prevent commercial transport being used in the
trafficking process and to penalize such involvement.
-
Take steps to ensure
the integrity of travel documents issued on their behalf and
to prevent their fraudulent use
The protocol contains a number of victim
protection measures but most of these are optional. States
Parties are to undertake the following in appropriate cases
and to the extent possible under domestic law:
-
protect the privacy of trafficking victims and
ensure that they are given information on legal proceedings
and facilities to present their views and concerns during
criminal procedures against offenders
-
consider implementing a range of measures to
provide for the physical and psychological recovery of
victims of trafficking
-
endeavor to provide for the physical
safety of trafficking victims within their territory
-
ensure that domestic law provides victims with
the possibility of obtaining compensation
-
consider adopting legislative or other
measures permitting victims of trafficking to remain in
their territories temporarily or permanently in appropriate
cases with consideration being given to humanitarian and
compassionate factors
-
endeavour to establish policies, programmes
and other measures aimed at preventing trafficking and
protecting trafficked persons from re-victimization
-
endeavour to undertake additional measures
including information campaigns and social and economic
initiatives to prevent trafficking.
The Smuggling Protocol
In contrast with trafficked persons, smuggled
migrants are assumed to be acting voluntarily and, therefore,
in less need of protection. Accordingly, the primary emphasis
of the Migrant Smuggling Protocol is on strengthened border
controls – particularly in relation to smuggling by sea. For
the first time in international law, States Parties are
specifically authorized to intercept certain vessels suspected
of carrying smuggled migrants. They are also required to:
-
criminalize the smuggling of migrants as well
as related offenses including the production, provision, and
possession of fraudulent travel or identity documents
-
take steps to ensure the integrity of travel
documents issued on their behalf and cooperate with each
other in preventing their fraudulent use
-
provide or strengthen specialized training for
immigration and other officials aimed at preventing,
combating, and eradicating migrant smuggling
-
adopt appropriate legal and administrative
measures to ensure the vigilance of commercial carriers such
as airlines in preventing migrant smuggling, to guarantee
their liability and to provide for sanctions in the event of
complicity or negligence
The Protocol includes a number of provisions
aimed at protecting the basic rights of smuggled migrants and
preventing the worst forms of exploitation which often
accompany the smuggling process. While these are nowhere near
as comprehensive as the protections contained in the
Trafficking Protocol, they are nevertheless important. When
criminalizing smuggling and related offences, States Parties
are required to establish, as aggravating circumstances,
situations which endanger the lives or safety of migrants or
entail inhuman or degrading treatment, including for
exploitation. Migrants themselves are not to become liable to
criminal prosecution under the Protocol for the fact of
having been smuggled (although this provision would not
prevent a State from prosecuting a smuggled migrant for
violation of national immigration laws). All appropriate
measures must be taken to preserve the internationally
recognized rights of smuggled migrants, in particular, the
right to life and the right not to be subjected to torture or
other cruel, inhumane or degrading treatment or punishment.
Smuggled migrants must also be protected from violence and
those whose life or safety has been endangered by reason of
having been smuggled must be assisted.
Outstanding Issues
The development and adoption of agreed
definitions of trafficking and migrant smuggling is a major
achievement of the two protocols. While the final definitions
may not be perfect, they are close enough. Incorporation of a
common understanding of trafficking and migrant smuggling into
national laws and policies will enable States to cooperate and
collaborate more effectively than ever before. Common
definitions will also help to overcome the serious problems
which now exist in relation to data collection and analysis.
However, the extent to which the two protocols
actually contribute to eliminating trafficking and migrant
smuggling remains uncertain. The protection provisions of both
instruments are weak and, as noted above, mostly optional.
Certainly, they do not add substantively to what is understood
as the minimum core rights to which all human beings are anyway entitled. On a practical level, this
deficiency is likely to undermine the law enforcement
objectives of the protocols by ensuring that people caught up
in trafficking and smuggling networks have little incentive to
cooperate with national authorities. Without such cooperation,
it is likely that traffickers and smugglers will continue to
operate with impunity.
Even more importantly, the protocols contain no
guidance on how trafficked persons and smuggled migrants are
to be identified as belonging to either of these categories.
The Canadian Refugee Council has picked up on this issue: "If
authorities have no means of determining among the intercepted
or arrested who is being trafficked, how do they propose to
grant them the measures of protection they are committing
themselves to?" The regime created by the two protocols,
(whereby trafficked persons are accorded greater protection
and therefore impose a greater financial and administrative
burden on States Parties than smuggled migrants) creates a
clear incentive for national authorities to identify irregular
migrants as having been smuggled rather than trafficked. There
is already plenty of anecdotal evidence indicating that this
is already occurring. The possibility of individuals being
wrongly identified was not even considered during the drafting
process – despite the best efforts of a coalition of UN
agencies. Nor was there any acknowledgement of the fact that
someone can be a smuggled migrant one day and a trafficked
person the next. These failures are serious and are likely to
compromise the practical value of the protocols’ already weak
protection provisions.
While most governments are unwilling to accept
any limitation on their ability to repatriate or turn back
smuggled migrants, the issue of repatriation of victims of
trafficking is a more sensitive and controversial one. The UN
High Commissioner for Human Rights has expressed the view that
"safe and, as far as possible, voluntary return must be at the
core of any credible protection strategy for trafficked
persons. A failure to [provide] for safe (and to the extent
possible) voluntary return would amount to little more than an
endorsement of the forced deportation and repatriation of
trafficked persons. When trafficking occurs in the context of
organized crime, such an endorsement presents an unacceptable
safety risk to victims". The identification of an individual
as a trafficked person should, at the very least, be
sufficient to ensure that immediate expulsion against the will
of the victim does not occur and that necessary protection and
assistance is provided. The Trafficking Protocol does not meet
even this minimum standard.
The Special Case of Refugees and Asylum
Seekers
An increasing number of refugees are currently
being transported across borders by smugglers and (less
frequently) by traffickers. The consequences are usually
severe. UNHCR is not alone in noting that "..an asylum seeker
who resorts to a human smuggler seriously compromises his or
her claim in the eyes of many States …lead[ing] to an
imputation of double criminality; not only do refugees flout
national boundaries but they also consort with criminal
trafficking gangs to do so".
During the protocol negotiation process, a
number of international agencies (including UNHCR and the UN
High Commissioner for Human Rights) recognized the danger of
further limitations to the rights and opportunities of
individuals to seek and enjoy asylum from persecution in other
countries. They argued that: (i) illegality of entrance into,
or presence on, the territory of a State should not adversely
affect a person's claim for asylum; and (ii) smuggled migrants
and trafficked persons should be given full opportunity
(including through the provision of adequate information) to
make a claim for asylum or to present any other justification
for remaining in the country of destination. While there was
resistance to insertion of such specific protections, the
drafting committee for the two protocols finally agreed to
include a broad savings clause in both instruments to the
effect that nothing in them will affect the rights,
obligations, and responsibilities of States under
international law, including international humanitarian law,
international human rights law, and law and, in particular,
refugee law and the principle of non-refoulement.
It remains to be seen whether the savings clause
is enough to prevent the two protocols from being used to
undermine the already precarious refugee protection regime.
The border control provisions in both instruments are
especially worrying. Border enforcement measures such as
readmission treaties, carrier sanctions or the posting of
Airline Liaison Officers abroad are now routinely used by
governments of the major destination countries. This is
despite the fact that such measures risk denying bona fide
refugees the chance of escaping persecution. Rather than
addressing this conflict, the two protocols contribute to
confusion by endorsing strengthened border controls while at
the same time nominally upholding the right to asylum.
Time for an Honest Look at Trafficking
and Smuggling
The past several few
years have shown how easy it is to discuss trafficking,
smuggling and the broader problem of irregular migration in a
human rights vacuum. The failure of the two Protocols to
include mandatory protections provides a strong indication
that, for many governments, trafficking and smuggling are
issues of crime and border control, not human rights. In
countries of destination, people trying to move across their
borders illegally are widely considered to be law-breakers,
undeserving of compassion or support. Those who are tricked or
coerced into moving and exploited upon arrival may be viewed
more sympathetically but are nevertheless routinely prosecuted
for minor offences and quickly deported.
Many governments ignore the fact that irregular
migration (including trafficking and migrant smuggling)
happens because of the enormous difference between the number
of people who wish (or are forced) to migrate and the legal
opportunities for them to do so. There is a growing body of
evidence that severely restrictive immigration policies are
more likely to fuel organized, irregular migration than to
stop it. Tighter law enforcement controls on smuggling and
trafficking push individuals and smaller, informal operators
out of the market – helping to create a monopoly for the best
and most sophisticated criminal networks.
The factors which encourage or force migration
are also relevant. People have always moved and will continue
to do so. However, it is the "survival migrants" including
asylum seekers, who are the most likely to be trafficked or
smuggled because they are the ones who have fewest choices.
Lack of human security and gross inequalities within and
between countries are still the main reasons why people take
dangerous migration decisions. Until genuine efforts are made
to deal with the root causes of forced migration, the
international community will stand no chance of developing
credible, effective solutions.
International action to end organized, irregular
movement also ignores the fact that traffickers and smugglers
service a market in which there are both buyers and sellers.
The growth in trafficking and smuggling reflects not just an
increase in ‘push’ factors from countries of origin but also
the strong pull of unmet labor demands -labour demands,
particularly in the informal sector. While cracking down on
illegal migration, governments in the main destination
countries have done little to address the insatiable demand
for cheap labour and cheap sex which makes trafficking and
smuggling so profitable in the first place. At best, this is
misguided. At worst, it is actively hypocritical.
Conclusion
The world’s migration management systems are in
crisis. They are failing to meet the needs of governments,
business and, importantly, the migrants themselves. The growth
in smuggling and trafficking is a direct consequence of the
global failure to manage migration and deal with its root
causes. While new international laws will never be enough,
they can be important tools for change. Despite their
imperfections, the new treaties on trafficking and migrant
smuggling are a small step forward. For the very first time,
the parameters of acceptable responses to trafficking and
smuggling have been established. There is now a standard
against which laws, policies and practices relating to
trafficking can be judged.
Attention should now focus on ensuring that
human rights are not marginalized any further. By definition,
trafficked persons are victims of serious human rights
violations. Smuggled migrants are often fleeing human rights
violations or situations of extreme violence or poverty. The
connection between human rights and abusive forms of migration
such as trafficking and migrant smuggling makes it especially
important that those working to promote the rights of migrants
and refugees take up this issue. The human rights community in
particular has a special responsibility to ensure that
trafficking and smuggling are not seen only as problems of
migration, problems of public order or problems of organized
crime. These perspectives, are, of course, valid and
important. However, as the UN Secretary-General has noted, in
developing realistic and durable solutions we must be prepared
to look further -– to the rights and the needs of the
individuals involved.
People have always moved and will continue to do
so. However, it is the ‘survival migrants’, including asylum
seekers, who are the most likely to be trafficked or smuggled
because they are the ones who have fewest choices. Lack of
human security and gross inequalities within and between
countries are still the main reasons why people take dangerous
migration decisions. Until genuine efforts are made to deal
with the root causes of forced migration, the international
community will stand no chance of developing credible,
effective solutions.
Anne Gallagher is Adviser on Trafficking at the Office
of the UN High Commissioner for Human Rights (OHCHR). She is
also Coordinator of the Intergovernmental Organization Contact
Group on Human Trafficking and Migrant Smuggling which aims to
strengthen cooperation and collaboration between international
agencies working on these issues. The views expressed above
are her own and not necessarily those of the
OHCHR.