The international law surrounding trafficking in persons and smuggling of migrants comes in for frequent criticism. Scholars and legal experts have pointed out that the definitions used in the Trafficking in Persons and Smuggling of Migrants Protocols supplementing the United Nations Transnational Organized Crime Convention (UNTOC) obfuscate more than they clarify. They have catalogued the unintended consequences of the criminal justice approach taken by these instruments, and highlighted the ineffectiveness of the international cooperation assumed within them.
These failings say less about the framework itself than about our interpretation and application of it.
Even those who work extensively on these issues may have trouble recalling the ‘scope of application’ of these instruments. Article 4 of both protocols clarifies that they apply where the trafficking or smuggling offences at issue “are transnational in nature and involve an organized criminal group.” Yet we have long stopped asking what this means in practice.
