This article explores the challenges involved in differentiating between human trafficking and migrant smuggling, and their implications for human rights protection. Exploitation is dismissed as a hallmark of trafficking, with reference to situations of trafficking that occur without exploitation, and migrant smuggling that involves exploitation. The consent of smuggled migrants is similarly rejected as a signifier of smuggling, given the irrelevance of consent in human trafficking. Discussion of stigmatisation of migrants willing to migrant irregularly, and the simplification of their plight, leads to consideration of rights-based distinctions between the two phenomena. Assumptions made about the types of abuses that occur in trafficking and smuggling scenarios are explained as detracting from human rights protections of rights-holders. Ultimately, it is asserted that the labels of ‘trafficked’ and ‘smuggled’ should not be determined on the basis of human rights abuses, but should be confronted irrespective of which label has been allocated.
For instance on 15 November2014a vessel carrying 38 smuggled migrants including 6 children was intercepted and returned to Sri Lanka by Australian authorities. Rapid assessments were made of asylum claims on the high seas. One person was eligible to apply for refugee status in Australia while the remaining persons were returned to Sri Lanka by Australian authorities and arrested for migration related crimes. For more information see ‘Australia hands over 37 intercepted asylum seekers to Sri Lankan navy’ Guardian online 29 November 2014 available at <http://www.theguardian.com/australia-news/2014/nov/29/australia-hands-over-37-intercepted-asylum-seekers-to-sri-lankan-navy>.
A Wertheimer and M Zwolinski‘Exploitation’The Stanford Encyclopedia of Philosophy(Spring 2013) available at <http://plato.stanford.edu/archives/spr2013/entries/exploitation/>.
Piovesan and Kamimura‘Tráfico de Pessoas sob a Perspectiva de Direitos Humanos: Prevenção, Combate, Proteção às Vítimas e Cooperação Internacional’ in Tráfico de pessoas: uma abordagem para os direitos humanos(Brasília Ministério da Justiça 2013) at 120 (Portuguese only).