Trafficking is not the same as migrant smuggling. Migrant
smuggling involves the illegal, facilitated movement across an international
border for profit. While it may involve deception and/or abusive treatment,
the purpose of migrant smuggling is to profit from the movement, not the
eventual exploitation as in the case of trafficking.
Trafficking does not always require movement. The definition of
trafficking identifies movement as just one possible way that the “action” element
can be satisfied. Terms such as “receipt” and “harbouring” mean that trafficking
does not just refer to the process whereby someone is moved into situations of
exploitation; it also extends to the maintenance of that person in a situation of
exploitation.
It is not possible to “consent” to trafficking. International human
rights law has always recognized that the intrinsic inalienability of personal freedom renders consent irrelevant to a situation in which that personal freedom
is taken away. This understanding is reflected in the “means” element of
the definition of trafficking. As noted by the drafters of the Trafficking Protocol:
“once it is established that deception, coercion, force or other prohibited
means were used, consent is irrelevant and cannot be used as a defence.”