Context of this study

6 FoMB in that definition. A brief survey of other sources of insight and authority is then made before drawing some initial conclusions on the applicable international legal and policy framework. Part 3 summarizes and analyzes the results of the survey of national law and practice as it relates to FoMB with a view to establishing the foundation for a broader consideration of issues and trends in the following part. The thirteen surveyed States are divided into two broad groups: i States that have included FoMB as an element of the base smuggling offences; 18 and ii States that have excluded FoMB as an element of the base smuggling offences. It is important to note that this latter group includes States that have incorporated some variation of FoMB into their legal framework outside the base offences – for example, as a factor aggravating penalties. Part 4 draws together a series of findings from legislation, case law and the views of practitioners relating to legislative approaches, scope of FoMB and other key issues. Part 5 provides some initial guidance, in the form of a set of conclusions, developed by participants in the Expert Group Meeting. The Issue Paper includes three annexes. The first of these sets out a list of key questions and points of possible agreement that were used as the basis for discussions at the Expert Working Group meeting. Annex 2 contains the survey instrument that guided the country studies. Annex 3 provides a list of individuals consulted for the Issue Paper. 18 As discussed later on, for the purposes of this pape the te ase s uggli g offe es o ase offe es refers to stand-alone offences related to facilitation of irregular entry and in some cases also irregular stay. It covers offences that are different from: i related offences such as production or use of fraudulent documentation; and ii aggravated offences whereby one or more factors such as profit or involvement of multiple migrants or risk of death or serious injury operate to increase the severity of the punishment attached to the base offence. 7 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 19 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 . .