An analysis of international legal instruments: UN Convention Against Transnational Organized Crime and its protocols against trafficking of persons and smuggling of migrants

Irregular migration is a movement that takes place outside the regulatory norms of the sending, transit and receiving countries. The United Nations Convention Against Transnational Organized Crime, along with its Protocols, considers human trafficking and migrant smuggling as issues pertaining to irregular migration risking to marginalize the protection of the rights of trafficking victims and smuggled migrants. Nonetheless, these instruments, from the legal perspective, have been a spur to efforts aimed at better understanding these two phenomena and providing support to those who have been trafficked or smuggled. This Convention is the first universal, legally binding instrument of the United Nations used in the fight against crime. Although it appears that the Protocols' definitions indicate that human trafficking and migrant smuggling are posited at two extreme ends of a long continuum, the reality is not nearly as simple. These two criminal activities overlap in many instances, which further exacerbates the appropriate classification of the crime during victim identification. An additional problem is the fact that neither Protocol contains guidance as to the identification of trafficking victims or smuggled migrants. Another flaw is that both Protocols have optional measures related to the protection of trafficking victims and smuggled migrants, which further indicates that these criminal activities are considered issues pertaining more to crime and border control rather than to human rights, which explains why both groups are frequently prosecuted. Nevertheless, it is useful to have international legal instruments such as this Convention, as well as definitions that countries can employ in the fight against human trafficking and migrant smuggling as results of irregular migration. The subsequent fight needs to put emphasis on addressing the causes of such migration in order to provide a lasting solution to eradicating human trafficking and migrant smuggling.