Difference between Trafficking and Smuggling - Essay Example

Difference between Trafficking and Smuggling Key Words: United Nations Protocol against the Smuggling of Migrants by Land, Sea, and Air, United Nations Convention against Transnational Organized Crime, United Nations Protocol against the Smuggling of Migrants by Land, Sea, and Air, Trafficking, Smuggling, and other law acts evident throughout the file Introduction Human smuggling and human trafficking are two different criminal activities, and the terms are not similar. Normally, human smuggling centers much on transportation and is in most instances defined as human importation into a country involving purposeful evasion of the laws of migration. Human smuggling involves bringing illegal aliens into a country, in addition to the illegal transportation and harboring of foreigners already in that country. On the other hand, human trafficking centers much on exploitation and is in most instances defined as sex trafficking whereby a commercial sex action gets stimulated by coercion, fraud or force or in which an individual forced to do such an action is a minor. It can also have the definition as the recruitment, transportation, harboring, obtaining and provision of an individual’s labor via coercion, fraud or force for the intention of subjection to forced servitude, debt bondage, slavery or peonage1. Generally, human trafficking and smuggling has become one of the greatest global problems and is considered to be among the world’s most degrading and shameful crimes, that impacts on the lives of several individuals around the globe and robbing such individuals their dignity. The traffickers and smugglers deceive women, children and even men from all sections of the globe and coerce or force them into daily exploitative situations. Globally, trafficking is considered much worse than smuggling and the most identifiable type of human trafficking is trafficking that intends to put a victim into sexual exploitation. Most people, however, do not know that this crime takes place with the intention of child begging, forced labor, removal of body organs, and domestic servitude2. In 2005, the ILO estimates indicated that, worldwide, there exist about 2.4 million human smuggling and trafficking victims at any given instance. A recent research study on the overall trends of forced labor however would propose that the extent of the crisis is much greater. In Asia, for instance, more than 140,000 victims are forced into violent and humiliating conditions because of sexual exploitation. Additionally, one out of seven of the prostitutes in the region most probably ended up forced into prostitution by the traffickers3. Victims normally end up forced or misled by planned criminal networks into situations that are difficult to evade; they may be raped, beaten or even their families threatened if in case they try escaping. The traffickers or smugglers normally seize their passports so that they have not a single type of identification. In situations where victims have been smuggled or trafficked between different nations, the victims normally have very little or no understanding of the native language. Almost every nation in the globe feels the effect of trafficking and smuggling, as point of destination, transit or origin and reports have indicated that victims from close to 127 nations have faced exploitation in 137 nations4. Greater Mekong, for instance, experiences a problem with commercial sex working just like in other nations. For example, the situation is far more worst in Thailand bearing in mind the fact that it contains Asia’s brothel, Bangkok. Generally, the number of commercial sex workers in Thailand is greater than countries of its size. However, commercial sex industry has been viewed as a booming tourism industry in Asia, especially Southeast Asia. This industry has several root causes. The first cause of the sex tourism in Thailand is traceable via local forms of prostitution. The second cause, which happens to be the most significant cause, is the role played by the American military in Thailand in 1960s and 1970s during the Vietnam War. This commenced in 1967 when the U.S. military and the government of Thailand signed a treaty that gave the U.S. military in Vietnam to have rest and recreational activities in Thailand. This resulted into an economic boom whereby tourism became the main source of foreign capital to Thailand, and at the end of the war, there was the need to continue the business and there was need to entice more people to come back5. This is what finally led to the trafficking and smuggling of people into Thailand for commercial sex purposes. It is clear that those three cities in Thailand, Pattaya, Phuket and especially Bangkok, have bigger and visible commercial sex industries where women from Thailand and other parts of Southeast Asia end up into prostitution. Normally, these women go for sex trade because they lack economic opportunities. For instance, most of the women who do the commercial sex work are collage students during the day, therefore to support themselves they work as bartenders and bar dancers at night. Beyond the actuality, that commercial sex is a regrettable economic decision that is abusive to any girl or woman, serious problems occurs when females are trafficked into or within Thailand for labor or sexual exploitation. By description, if they have been smuggled or trafficked, they get psychologically and/or physically coerced or forced to work. In fact, Thailand considers prostitution illegal; however, its practice is acceptable besides partially regulated6. Therefore, in Thailand, commercial sex work is usually open and the number of prostitutes is difficult to establish because estimates vary extensively. Human Trafficking International Law/ Treaty The international law is a potent instrument for fighting human trafficking. The most highly regarded and latest instruments of international law that have formulated the course of how to describe, prevent and prosecute human trafficking include the United Nations Convention against Transnational Organized Crime7. Together with its two associated protocols, which include the United Nations Protocol against the Smuggling of Migrants by Land, Sea, and Air8 (this was enforced between the years 2003 and 2004) and the United Nations Protocol to Prevent, Suppress, and Punish Trafficking in Persons ( this majorly focuses on women and children)9,10. The United Nations developed these convections purposely to help support the ability of international law to eradicate persons trafficking and smuggling. In support of ensuring the enforcement of these instruments, the United Nations established United Nations Global Initiative to help in combating Human Trafficking11,12. The instruments that have assisted in dealing with human trafficking and smuggling can be dated back to the years when people focused on abolition of slavery. These instruments included provisions within; Supplementary Convention on the Abolition of Slavery (1926), Universal Declaration of Human Rights (1948), The United Nations Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution (1949)13 Institutions and Practices Similar to Slavery (1956), International Covenants on Civil and Political Rights (1966), and Convention on the Elimination of all Forms of Discrimination against Women (1979)14,15 The instruments played a role in the laying of the foundation for the modern convections and efforts that try to eliminate human trafficking and limit the occurrences of smuggling. Compliance with International Law Among the most difficult issues of eradicating trafficking is conformity with international law. The measures for conformity with international treaties/laws include signature, authorization, and enforcement of the international accords. Once a country signs and approves a treaty it becomes subject to monitoring by the committees of the United Nations, which receive funds from non-governmental organizations (NGOs). In addition, nations are expected to present regular reports concerning their level of conformity with the treaty. Moreover, the United Nations Human Rights Council also provides mandates to thematic working sets, state rapporteurs, and special rapporteurs that assist in monitoring abuses of certain treaties or compliance with treaties16. By 2008, there were 112 members of the United Nations Protocol against the Smuggling of Migrants by Land, Sea and Air, 119 members of the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, and 143 members of the United Nations Convention against Transnational Organized Crime17. The Protocol of Trafficking is exceptional from other forms of treaties as it was formed as an instrument for law enforcement that, in theory, offers it more power than other inspirational agreements. The provisions within the Protocol of Trafficking affirm that parties or members have to take action and punish trafficking, protect trafficking victims, and offer victims permanent or temporary residence in the nations of destination18. Therefore, if a country is party to and adheres to the Convention and its practices, it faces the obligation of ensuring that it creates a legislation, which allows for the support of these provisions at the domestic level. A major feature of the Trafficking Protocol is that it ensures that individuals do not have the right to desire to be trafficked, or for their family to be trafficked. This feature assists in the clarification of the line between trafficking and smuggling. However, if the individual was smuggled, then forced to labor, the crime is automatically trafficking. Another feature of the Trafficking Protocol is that it is not necessary that an individual was directly threatened or forced into being trafficked. So long as the individual can prove that they were forced to comply since they had no alternative, then this falls within the Trafficking Protocol provisions even if it was smuggling19. Generally, these features of the protocol of Trafficking allow for an exemplary description of human trafficking and distinction from human smuggling, thereby making compliance easier. The summary of standards concerning how victims of trafficking ought to be treated includes two inclusive documents derived from various instruments of the international law; the Recommended Principles and Guidelines on Human Rights and Human Trafficking, and the Human Rights Standards for the Treatment of Trafficking Persons20. These documents were made purposely to ensure that the individuals trafficked were not treated as criminals but as victims. The Special Report on trafficked more the vulnerable group including women and children, is an intermediary that puts efforts towards making sure that the victims’ rights receive protection, and takes proper action against abuse of these rights. Several NGOs throughout the globe also have the obligation of monitoring the human rights violation in consideration to human trafficking and probably human smuggling. Through the reports formed by these NGOs, the United Nations has the ability of fully evaluating those who violate or comply with the international laws. Enforcement of International Law The enforcement of the international law in consideration to human trafficking is most efficient and effective when it is included into local and regional legislation. Local and regional instruments have done their best in trying to prevent and eradicate trafficking of humans. Some of these instruments include; European Convention for the Protection of Human Right and Fundamental Freedoms (1950)21, United States Victims of Trafficking and Violence Protection Act (2000)22, Council of Europe Convention on Action against Trafficking in Human Beings (2008)23 Moreover, the regions across the globe also put efforts in ensuring that human trafficking ends. For instance, a sub-regional group, the Great Mekong, comprised of Thailand, China, Vietnam, Cambodia, Laos, and Myanmar established the Coordinated Mekong Ministerial Initiative against Trafficking in 200524. The purpose of this regional organization was to ensure that there was formulation of policies for the measures of anti-trafficking in the region, allowing each nation to make a legislation that is in accord with these requirements. The regional and local instruments aim to fight trafficking of humans through provisions, which are similar to the international accords against trafficking of humans, while formulating their enforcement and examining methods to the requirements of the region or country. Human Smuggling International Law/ Treaty While the Protocol against the Smuggling of Migrants by Land, Sea and Air emphasizes on mutual support between members states in the criminalization of immigrant smuggling, it creates a duty to ensure that the member states afford proper assistance to smuggled individual25.  Several requirements under the Protocol describe the minimum protection and assistance standards that member States must give to smuggled migrants. Assistance To Smuggled Migrant Article 16(2) requires the member states to offer protection to smuggled immigrants from any form of violence. Additionally, Article 16(3) requires the member nations to afford proper support to migrants who do not feel safe since they are smuggled migrants. Moreover, Article 16(4) identifies the particular susceptibility of women and children26. The Convention against Transnational Organized Crime27 also contains a number of provisions that expects member nations to take measures to help and protect victims, and to collaborate with other authorities of enforcement to provide protection to witnesses and victims. The Protocol and the Convention’s provisions do not grant any rights to smuggled migrants, and in addition, they do not create new obligations on member nations beyond those already known in global humanitarian law. While the content of the responsibility is mandatory, the technique of its attainment remains within the domain of legislative and procedural discretion of the State. Protection of the Rights Of Smuggled Migrants The Article 16(1) includes a general declaration to defend the elementary human rights of migrants smuggled. In the implementation of this Protocol, each member nation is expected to be reliable with its responsibilities under the international laws, all suitable measures, with the inclusion of legislation if required, to protect and preserve the rights of individuals who have been smuggled. Generally, Article 16(1) is depicted as an emphasis on humanity’ indubitable privileges protection as agreed in varied international treaties, particularly the, International Covenant on Economic28 Social and Cultural Rights29 International Covenant on Civil and Political Rights30 Article 16(5) also entails a requirement of the member states to aid communication between a relevant consulate, and a smuggled migrant, particularly in situations whereby the receiving nation keeps in custody smuggled migrants since they entered the country illegally or to aid their removal. Considering the requirements under the Vienna Convention on Consular Relations, this includes support measures such as notifying the migrant that they have the right to get in touch with their relevant consulate, and facilitation of this kind of communication31. Refugee and Human Rights Law The Protocol against the Migrants Smuggling has its establishment under international human rights and refugee law separately from the Protocols and the Convention. It is Articles 2 and 19 try to preserve the rights of migrants smuggled32. Article 2 recognizes the defense of the smuggled migrants or victims’ rights as corresponding to the purpose of criminal justice of the Protocol, while Article 19 works as a saving clause. Article 19(1) identifies existing international humanitarian law about illegal residents or migrants. This article puts much focus on the specific obligations that stem from the Protocol and the Convention that relates to the refugee status, which affirms that; nothing in the protocol should affect other States’ and individuals’ rights, responsibilities, and obligations under international law. This includes the international human rights law and the international humanitarian law and especially whereby the relevant 1967 Protocol linked to the Refugees’ Status and the non-refoulement principle, and the Convention of 195133. The Refugee Convention requires the member states to offer refuge for individuals who are afraid of persecution in another nation. The Article 33 affirms that the main requirement is that a country should not expel or return a refugee to the smugglers or traffickers who can once again threaten to kill them or take away their freedom. Therefore, a country breaches this non-refoulement requirement if it fails to appropriately identify and protect individuals who are to receive the benefits that refugees should have. The Article 19 of the Protocol against the Smuggling of Migrants34 also aims to ensure avoidance of the infringement of the requirements under the appropriate international laws by any agreements contained in the Protocol. Article 19(2) aims to ensure that the local laws pertaining to smuggled migrants their application or design are not in such a way they segregate the smuggled35. Thailand’s Domestic Standard Law and Case Law In Thailand, several legal equipments are used in combating human smuggling, and especially human trafficking. Some of these legal tools include; Prevention and Suppression of Trafficking in Persons Act; Criminal Procedure Code; Prevention and Suppression of Prostitution Act; Witness Protection Act; Extradition Act and International Cooperation in Criminal Matters Act; Child Protection Act; Anti-Money Laundering Act and; Labor Protection Act However, the main legal tool applied in combating human trafficking and smuggling in Thailand is the Anti-Human Trafficking Act (the 2008, Prevention and Suppression of Trafficking in Persons Act)36. The Thailand’s Anti-Human Trafficking Act was formulated in accordance to some of the UNs instruments. For instance; UNs trafficking Protocol Palermo Convention Optional Protocol on the Sale of Children; ILO Convention on the Worst Forms of Child Labor; Convention on the Rights of the Child (CRC)37 The Thailand’s Anti-Human Trafficking Act interprets the UN description of human trafficking provided in the Protocol of Trafficking into assorted offences of persons trafficking in Article 6. It also firmly follows the purposes of the Protocol of Trafficking in offering efficient protection and support to trafficking victims38. Thailand’s Anti-Human Trafficking Act also has provisions that all the offences included in this act are predicate offences in the Anti-Money Laundering Act39. This is an indication that the authorities can confiscate, freeze, and seize crime proceeds resulting from human trafficking from the custody of a trafficker when they get arrested and charged with the offence of human trafficking. Internationally, the law enforcement agencies consider confiscation of the crime proceeds through using the measures of anti-money laundering to be among the most efficient tools to combat human traffickers since all traffickers work only for money. Therefore, all assets’ confiscation derived from taking part in trafficking offences is as sturdy a restriction as imprisonment. However, the AMLO (Thailand’s Anti-Money Laundering Office) has been focusing much on confiscating the assets of drug traffickers than human smugglers and traffickers40. Officers of AMLO ought to receive training so that they can understand better human trafficking purposely to recognize the extent of this crime, to increase their knowledge and to improve the efficacy of the measures of anti-money laundering against the human traffickers and probably human smugglers. On the features of assistance and protection provisions to trafficked victims, the Ministry of Social Development and Human Security (MSDHS) has the obligation to give appropriate assistance to the victims41. The aid offered is food, shelter, physical and mental rehabilitation, medical treatment, the safe return to the nation of origin or residence, legal aid, education, training, and assistance with the lawful proceeding to claim reimbursement in accordance to the regulations. Through doing this the Thailand officers have to consider human dignity, nationality, age, sex, culture, and race of the victims. The MSDHS officials have to give protection to the persons trafficked under their care and also have to give safety protection to trafficked persons’ family members as well as those witnesses who are willing to testify against the traffickers; here witnesses are protected by the Witness Protection Act of 200342. In providing support to victims of human smuggling and trafficking in accordance to Trafficking Protocol, the MSDHS is the key agency in ensuring implementation of this Protocol. In practice, when trafficked or smuggled persons are rescued or identified as victims they are provided with protection in the MSDHS shelter home. At the MSDHS shelter home, social workers have the responsibility of providing all the required care to the victims. The victims receive access to information regarding the progressing of their cases and legal aid for acquiring compensation from the exploiters. The assistance offered has a time limit since the victims enjoy it until Thailand’s government safely deports them back to their countries of origin or to places of residence. Thailand government normally allocates funds to the MSDHS to offer all the assistance43. Just as stated above, the government expects the MSDHS to give help to the victims while considering human dignity, nationality, age, sex, culture, and race of the victims. In a situation such as smuggling where a victim wills to oblige with the authorities in a criminal lawsuit and therefore have no choice but to stay in Thailand, the MSDHS grants them rights to stay and work in Thailand legally through informing the Labor Ministry to offer them work permits and the Immigration Bureau to give them temporary visas. Response to Smuggling and Trafficking In Practice For the purpose of successful convicting human smugglers and traffickers, the cooperation of a victim in providing the court with relevant testimonies, information and statements is very important to the government, legal organizations, the police and even the non-governmental organizations that assist the victims. This cooperation considerably is very significant because a crime was committed against a victim and therefore the victim is considered as the most important witness against the criminals since they are the ones that have been exploited. Normally, when the victim refuses to act as a witness, the police find it very hard to carry out investigations, the court finds it difficult to convict the criminals, and the NGOs find it difficult to assist the victims and carry out relevant research. Therefore, it is very important for a government to encourage victims to act as witnesses in the criminal proceedings. Normally, the criminal proceedings on the traffickers and smugglers take a very long time and the victims may not cooperate when they just idle around. This is the main reason why the government provides such victims temporary citizenship and jobs as an incentive to make them cooperate in the criminal investigation, prosecution, and trial. One common feature about the individuals trafficked for sexual exploitation or individuals smuggled and forced into the sex industry is that they are always afraid of the disclosure of their identity to the public through the media. Such victims simply do not desire victimization by the media since they are victims whom traffickers have seriously exploited. Additionally, these victims normally do not want their community to know of the kind of exploitation they have undergone44. In case the victims get exposed to the public, their dignity and honor can be destroyed since they engaged into commercial sex unwillingly. They are also likely to face stigmatization and reintegrating back into their communities may be a problem. It is because of this that the government, NGOs, and police try as much as they can to hide the identity of such victims thereby ensuring the victims’ right to privacy. Conclusion Generally, there exists a close relation between whatever happens in practice and the requirements of the legal standards. Therefore, what the legal force should do is to ensure that they formulate stricter laws that will help in ensuring that human trafficking and smuggling gets eradicated. In addition, the legal standard in Thailand and Greater Makong is evidently under the international pressure to ensure that smuggling and especially trafficking of humans entirely comes to a stop. Moreover, it is also evident that international committee is putting efforts in ensuring the identification and appropriate eradication of human trafficking and smuggling, and the best action to take for the criminals is to simply prosecute and send them to life imprisonment. References A. Gallagher. The International Law of Human Trafficking (1st, Cambridge University Press, Cambridge 2012) 14-58 B Opeskin, R Perruchoud, and J Redpath-Cross, Foundations of International Migration Law (4th, Cambridge University Press, Cambridge 2012) 430 Boalt. Hall School of Law, Asian Law Journal [2009] ALJ 2, 45-116. Department Of State of the U.S., Trafficking in Persons Report (10th, Diane Publishing, New York 2010) 357-364 Discrimination (Plato.stanford.edu 2011) accessed 23 April 2014. Fact Sheet: Distinctions between Human Smuggling and Human Trafficking (2006) accessed 21 April 14 Human Rights (Plato.stanford.edu 2013) accessed 23 April 2014 M. Ventrella , The Control of People Smuggling and Trafficking in the Eu: Experiences from the Uk and Italy. (1st, Farnham, Surrey: Ashgate Publishers, Farnham, Surrey 2010) 18-21 S. Kneebone and J. Debeljak, Transnational Crime and Human Rights: Responses to Human Trafficking in the Greater Mekong Sub region (1st, Routledge, Routledge 2012) 14-76 S. Scarpa, The International Law of Human Trafficking (Plurilogue 2013) accessed 23 April 2014 T Leonard and G Kirkham, International Sex Trafficking of Women & Children: Understanding the Global Epidemic (5th, Looseleaf Law Publications, New York 2010) 112- 12 UN.GIFT - United Nations Global Initiative to Fight Human Trafficking (UNODC 2014) accessed 23 April 2014 United Nations Convention against Transnational Organized Crime and the Protocols Thereto (UNODC 2014) accessed 23 April 2014 Read More