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PART 2. THE CONCEPT OF FINANCIAL O‘ MATE‘IAL BENEFIT
WITHIN THE DEFINITION OF MIGRANT SMUGGLING
This Part of the Issue Paper considers the fi a ial o othe ate ial e efit
FoMB concept from the perspective of international law and policy: what does the drafting history of the Smuggling of Migrants Protocol
– and most particularly of the definition of migrant smuggling
– tell us about the intention of States with regard to conduct they wished to include and exclude? To what extent do materials including
the travaux préparatoires
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shed light on the scope and substantive content of the FoMB concept as it is used in the Protocol? What information on the
implementation of the concept is provided by secondary sources of guidance and insights from regional law, policy and practice?
2.1. Drafting history of the Smuggling of Migrants Protocol and its definition
A brief overview of the evolution of the definition of migrant smuggling provides i po ta t i sight i to ho “tates u de sta di g of the phe o e o de eloped a d
coalesced. Much like earlier United Nations reports and resolutions, the first negotiating text submitted by Austria and Italy in early 1999 makes reference to
ultiple o epts, i ludi g illegal t affi ki g a d t a spo t of ig a ts,
especially by sea . It i ludes the follo i g defi itio of illegal t affi ki g a d
smuggling of ig a ts :
Any person who intentionally procures, for his or her profit, repeatedly and in an organized manner, the illegal entry of a person into another State of
which the latter person is not a national or not a permanent resident commits the offence of illegal trafficking and transport of migrants within
the meaning of this Protocol.
20
Concurrent discussions by the drafting committee around the development of a protocol on trafficking in persons helped to affirm a distinction between the
concepts of human trafficking and migrant smuggling.
21
This distinction was already reflected in the second draft of the Smuggling of Migrants Protocol, which omits any
efe e e to illegal t affi ki g i fa o of the e o ept of s uggli g of migrants
. At that poi t it as p oposed that the te e defi ed as: the
19
Travaux préparatoires of the negotiations for the elaboration of the United Nations Convention against Transnational Organized Crime and the Protocols thereto.
20
D aft ele e ts fo a i te atio al legal i st u e t agai st illegal t affi ki g a d t a spo t of migrants Proposal submitted
Aust ia a d Ital , UN Do . AAC. Add. , De . ,
, at A t. A. Emphasis added.
21
See, for example, Ad Hoc Committee on the Elaboration of a Convention against Transnational O ga ized C i e, D aft P oto ol agai st the “ uggli g of Mig a ts Land, Air and Sea,
“upple e ti g the U ited Natio s Co e tio agai st T a s atio al O ga ized C i e, UN Doc. AAC.2544Add.1Rev.1
, Ma , , at ote The te s uggli g is used
throughout the text in the light of action taken by the Commission on Crime Prevention and Criminal Justice at its eighth session regarding the draft Protocol Addressing Trafficking in Women and
Child e . .
