Introduction

The illegal movement of persons by sea may occur in three cases: the slave trade, as discussed in Chapter 4, human trafficking and migrant smuggling. Migrant smuggling involves procuring a person's entry into a state ‘of which the person is not a national or a permanent resident’ by crossing borders without complying with national migration law and doing so for financial benefit. Human trafficking involves the recruitment and transportation of persons, including within one state, by coercive means for purposes of exploitation including sexual exploitation, forced labour and ‘slavery or practices similar to slavery’. While legally distinct, these activities overlap significantly in definition and human experience. A person may be trafficked into slavery. A willingly smuggled migrant may be delivered into debt bondage, rendering them trafficked. It is thus ‘frequently difficult to legally establish whether there were elements of deception and/or coercion, and whether these were sufficient to elevate the situation from one of voluntary migration (including smuggling), to one of trafficking’.

While there must be deception or coercion to establish trafficking, there is no converse requirement that a smuggled migrant be smuggled voluntarily. Thus, where human traffickers or slave traders move persons illegally across a border, they also commit migrant smuggling. The approach taken under various international instruments to maritime jurisdiction over such crimes is inconsistent. Participation in the slave trade, the gravest of these offences, attracts only a right of visit and search, not enforcement jurisdiction.