Human Rights and the New UN Protocols on Trafficking and Migrant Smuggling: A Preliminary Analysis

I. Introduction

In December 1998, the United Nations General Assembly established an intergovernmental, ad-hoc committee and charged it with developing a new international legal regime to fight transnational organized crime. ¹ In October 2000, after eleven sessions involving participation from more than 120 states, the ad-hoc committee concluded its work. ² The centerpiece of the new regime is the Convention Against Transnational Organized Crime. ³ The convention is supplemented by three additional treaties (protocols), dealing respectively with Smuggling of Migrants, ⁴ Trafficking in Persons--Especially Women and Children, ⁵ and Trafficking in Firearms. ⁶ The first three of these instruments were adopted by the General Assembly in November 2000 ⁷ and opened for signature at a high-level intergovernmental meeting convened in Palermo, Italy, in December 2000. They are expected to enter into force within the next two years. ⁸

The significance of these developments should not be underestimated. The Vienna process, ⁹ as it has come to be known, represents the first serious attempt by the international community to invoke the weapon of international law in its battle against transnational organized crime. Perhaps even more notable is the selection of trafficking and migrant smuggling as the subjects of additional agreements. Both issues are now high on the international political agenda. While human rights concerns may have provided some impetus (or cover) for collective action, it is the sovereignty/security issues surrounding trafficking and migrant smuggling which are the true driving force behind such efforts. Wealthy states are increasingly concerned that the actions of traffickers and migrant smugglers interfere with orderly migration and facilitate the circumvention of national immigration restrictions. Opportunities for lawful migration to the preferred destinations have dramatically diminished at the same time as individuals are moving further, faster, and in far greater numbers than ever before. A growing demand for third-party assistance in the migration process is a direct consequence of this reality. Evidence of organized criminal involvement in trafficking and migrant smuggling operations has provided affected states with additional incentives to lobby for a stronger international response.

Despite greatly increased attention, attempts to deal with trafficking, migrant smuggling, and related exploitation at the national, regional, and international levels have been largely ineffective. At both theoretical and practical levels, many fundamental questions have remained unanswered. What exactly is trafficking and how is it to be distinguished from migrant smuggling? How does the trafficking debate fit in with the current global tendency towards criminalization of all irregular migration? Do trafficked persons deserve greater protection than smuggled migrants? Can asylum seekers be smuggled and/or trafficked? Should trafficking and migrant smuggling be dealt with as human rights issues or, given their organized crime implications, are they best left to international criminal justice fora?

With the development of two new international legal instruments on trafficking and migrant smuggling, these questions are finally being addressed. This article provides an overview of the Vienna process and its major outcomes with particular reference to the issue of trafficking. It is divided into seven parts of which this introduction is the first. The following section summarizes the principal provisions of the Convention against Transnational Organized Crime and explains the connection between this instrument and its protocols. The origins of the two protocols are examined in section three. Section four contains a detailed description and analysis of the Trafficking Protocol. The Migrant Smuggling Protocol is considered in section five, and its relationship with the Trafficking Protocol explored in section six. The final section examines the protocol negotiation process and includes a number of the author's personal observations.

II. Overview of the Convention against Transnational Organized Crime ¹⁰

The Convention Against Transnational Organized Crime is referred to as the "parent" agreement. Its principle provisions apply, mutatis mutandis, to the three additional protocols. ¹¹ States must ratify the convention before ratifying one...