In contrast with the Trafficking Protocol, the U.N. Protocol Against the
Smuggling of Migrants by Land, Sea and Air (the "Smuggling Protocol"),
which also supplements the U.N. Convention against Transnational Organized
Crime, refers to smuggled people not as "victims" but rather as "objects"
of smuggling, or "migrants."31 While it lacks extensive protective measures,
the Smuggling Protocol's cursory outline of assistance measures calls
for state parties to "preserve and protect the rights" of smuggled people and
to "take into account the special needs of women and children." 32 It differentiates
smuggling from trafficking by defining smuggling as "the procurement,
in order to obtain, directly or indirectly, a financial or other material
benefit, of the illegal entry of a person into a State Party of which the person
is not a national or a permanent resident. '33 The Smuggling Protocol makes
no mention of consent. Although it provides that smuggled people shall not
be targets of prosecution, 34 its failure to confer victim status upon smuggled
persons, and the absence of a prominent female-gendered dimension, suggest
that, despite large numbers of female migrants ostensibly covered by
the Smuggling Protocol, 35 the facilitated migration of females is conceptualized
more as a problem of trafficking. Generally men are often the default subjects of international law. 36 A large perceived role of women in smuggling likely would have altered the overall tone of the instrument to include a
more protective stance.
The divergent roles of consent in the protocols are closely tied to the gendered
stereotypes that undergird them. Consent is an issue in the Trafficking
Protocol because it is largely seen as an instrument to protect the stereotypical
"trafficked woman." 37 Conversely, consent is a non-issue in the Smuggling
Protocol because the stereotypical "smuggled person" is perceived, even if
incorrectly, as a male economic migrant who has weighed his options and
chosen to migrate for better economic opportunities, which he can seek himself
because he is not under the control of traffickers once he reaches his destination.