...continued

IV.          ECONOMIC CONSEQUENCES OF MIGRATION

78.          The issue of the economic repercussions of migration prompts intense debate and widespread controversy in various sectors.   Different groups use this topic as the basis for arguments to justify measures designed either to stimulate or to control migration flows.  Sectors in favor of immigration, for instance, hold that states should encourage it because it increases productivity and has a positive impact on the economic growth of countries.  It is the groups that are against immigration, however, who most often cite economic repercussions as an argument to restrict migration.  These sectors maintain that immigration has adverse effects on the economy and that, therefore, it is necessary to restrict it.  The most common argument ventured by these groups is that immigration generates unemployment, lowers wages, overburdens state social services, and in general negatively impacts productivity in the country.  These sectors particularly express their concerns during negative cycles characterized by economic contraction. Likewise, in migrant-supplier countries the question of whether emigration produces positive or negative effects for the economy leads to heated discussion among different groups.  Pro-emigration groups highlight the importance of remittances sent by emigrants, while anti-emigration groups stress that it saps countries of their most qualified people and generates economic dependence. 

79.          Although the economic repercussions of migration is a complex and difficult issue to discuss, the Rapporteurship decided to tackle the subject because it is of considerable importance to discussions on state migration policies.  With this study, the Rapporteurship attempts to present a number of conclusions based on studies conducted by experts on the matter as a basis for discussion on protection of economic and social rights of migrant workers and their families.

80.          The issue of the economic effects of migration is not controversial merely because different groups use it as a banner under which to parade their particular views on the subject; other factors also come into play.  To date far, no studies have produced conclusive evidence of the economic repercussions of migration on either receiving or supplier countries.  Just as there are political groups or parties that are for or against migration, economists, political scientists, and sociologists that study the issue are also divided over this issue.  Furthermore, unraveling the economic consequences of migration is an extremely difficult task given the complexity of the modern-day highly interconnected, interdependent, and technologically sophisticated economy.  As if that were not enough, research of this kind is hampered by the lack of adequate information to carry out studies that might produce unassailable evidence of the effects of migration on the economy.  Another shortcoming of such studies is that the vast majority of them have been conducted in developed countries, with the upshot that there is not much information about the consequences of immigration on underdeveloped receiving countries.  Further not many studies have been carried out on the economic impact of emigration on supplier countries.[30]

81.          Studies to date have only managed to present lopsided evidence about certain industries, sectors, or regions in some countries.  According to a report published by the Organization for Economic Cooperation and Development (OECD), which reviewed all the literature published on the subject between 1970 and 1993, experts who have set themselves to studying the economic repercussions of migration only agree on two things: first, that there is no conclusive evidence on the issue and that all the studies contain weaknesses; and second, that quite apart from whether it is negative or positive, the aggregate effect of migration on the economy is marginal.[31]

82.          In order to place the current debate in context, and given the importance of the issue for the human rights of migrant workers and their families, the following section of the report examines very briefly the discussions contained in specialized writings on the economic consequences of migration.  With respect to receiving countries, the report describes the discussions on the impact of migration on three areas: a) wages and employment; b) the social security system; and, finally, c) economic growth.  As regards supplier countries, the report examines two points: a) the effect of remittances; and b) the exodus of human capital (brain drain).

Economic Effect of Migration on Receiving Countries

Employment and Wages

83.          Unquestionably, one of the most commonly recurring arguments regarding the economic effects of migration is that it has a negative impact on employment and wages in receiving countries.  Accordingly, immigration can negatively affect the employment situation and workers' wages in the receiving country.  The logic of this argument is as follows: when migrant workers immigrate to a country, they enter into direct competition for jobs with local workers.  As migrant workers are very often willing to accept inferior employment conditions (in other words, lower wages, no social security, and no union rights) employers prefer them because in this way they can reduce their operating costs and thereby increase profit margins.  In practice, the effect of this is for migrant workers to displace the workers of the receiving country.  Thus they increase unemployment, negatively affect wage levels in the job market, or simultaneously cause both unemployment and lower wages.  According to this outlook, migration is especially pernicious during recessive cycles or periods of economic slowdown.

84.          Researchers in various countries have studied the problem to test the validity of the above argument.  Most studies conclude that in macroeconomic terms, the impact of migration employment and wages is, in fact, slight.  After reviewing more than a dozen studies on the subject conducted in Europe, the United States, Canada, and Australia, the OECD concludes that, at the macroeconomic level, the influx of migrant workers has minor effects, whether negative or positive, on the employment rate and wages of local workers. [32]  Another study by the OECD that sought to determine if the influence of migration negatively affected the unemployment rate during recessive cycles reached similar conclusions.  To gauge the relationship between the influx of migrant workers and employment during recessive cycles, researchers compared the impact of migration in two economic periods (one of recession and the other of growth) in several countries belonging to the organization.[33]  In this way, they were able to determine if migration increased unemployment.  The study however found no evidence to show that migration increases the rate of unemployment during recessive cycles.[34]

85.          Although there is evidence that in macroeconomic terms immigration has a slight impact on the job market and wage levels in the receiving country, many authors acknowledge that immigration may have negative repercussions on salaries and employment rates in certain specific sectors or industries.  In fact, various authors underline that immigrants themselves are the main victims of new arrivals, since very often they enter into direct competition among themselves, which leads some of them to lose their jobs.[35]

86.          Much more important than to repeat the findings of studies, is to explain briefly why the presence of migrant workers does not substantially impact on wages and joblessness at the macroeconomic level.  To do so it is necessary to examine several points.

87.          First, unemployment and wages have to do with economic cycles and the structure of the economy, and not with population size or density.  In other words, what really determines if the market will be able effectively to absorb the foreign labor force without it increasing unemployment and depressing wages is the economic structure and the skills of migrant workers and local workers, rather than their number. [36] 

88.          Second, arguments that point out that immigration has a negative effect on employment and wages are based on the fallacy that local and foreign workers are substitutable (i.e. that a foreigner does the same work as a national) and not complementary (i.e., that a foreigner occupies positions that are not filled by a local). Researchers stress that this is not always the case and that generally speaking migrant workers complement rather than substitute local workers.  In this respect, it is essential to remember that in the majority of receiving countries nationals are simply not prepared to do certain kinds of jobs because of the danger and the type of work they entail, in other words, strenuous physical labor and the nature of the work.   Therefore, migrant workers fill jobs that are not taken by the local labor force. (e.g., physical work that is excessively demanding, including construction and agricultural work in farming).

89.          On this point, Castles and Miller say that, in general, immigration has quite disparate effects on different groups or social strata in the labor market.  This has to do, they say, with the segmentation of the labor market and with the dual characteristic of migration flows.  Generally speaking, immigrant workers are either highly educated and, therefore, occupy positions in the highest stratum of the labor market, for instance as doctors, lawyers, senior executives, officials of international agencies, and researchers, or, on the contrary, have a limited education and, therefore, aspire to jobs at the lowest level of the market, in certain services that do not require skilled labor, or else in construction or agriculture.  Castles and Miller say that educated immigrants by and large do not have difficulty finding work because they tend to have skills that complement the local labor force and, accordingly, do not compete for the same jobs.  Poorly educated migrant workers, by contrast, according to these authors, in general tend to compete for jobs with less qualified local workers who work in manufacturing, certain industrial sectors, or services.  In other words, very often, migrant workers can take jobs away from the local population.  Therefore, in terms of wages and employment, poorly qualified workers tend to be the most affected by the arrival of immigrants. [37]

90.          With regards to unemployment, at least in developed countries, people who are out of work very often prefer to collect unemployment benefit or to continue to look for a job until they find one that suits them, rather than take certain jobs considered unattractive or too strenuous.  Therefore, the presence of migrant workers willing to occupy positions that the locals do not want does not have a negative effect on the local employment situation.  Furthermore, as mentioned, foreign workers can bring certain talents (knowledge of languages, experience, training) or have some expertise that is rare or highly valued in the local economy, as is currently the case with programming and information technology knowledge and skills. [38]

91.          Third, immigrants do not only occupy jobs, they also create them.  For one thing, the presence of these people increases the overall level of consumption of both goods and services and, therefore generates sources of employment.  As a result, around immigrant communities a vast network of services is created that provides employment for nationals and aliens alike.  For another thing, workers with an enterprising spirit very often to set up their own businesses and companies that generate employment. [39]

92.          Fourth, by doing certain domestic labors, in particular looking after children, they may indirectly help local workers to get a job.  It is important to mention that the presence of migrant workers performing this work frees up the local, educated labor force, in particular women, who otherwise would be unable to look for a job.  This is particularly true in countries where there are no state or subsidized programs for preschool child-care.[40]

93.           Fifth, the presence of migrant workers prepared to accept low wages helps to keep afloat certain local companies that would otherwise be compelled to invest in technology to keep their production lines competitive.  Thanks to the presence of migrant workers these companies are not forced to invest in technology, something that allows them to continue on the market and not get bankrupt.  In this way, middle and senior management positions in these companies, normally held by local workers, are not lost. [41]

Effect of Immigration on the Social Security System

94.          Another argument commonly used in connection with the economic repercussions of immigration is the negative effect that the presence of immigrants has on the social security and welfare system of receiving countries.  The argument in this respect is very simple: the massive influx of immigrants and their families, many of whom apply for health and education benefits for their children, excessively increases the costs of the social security system and generates imbalances in the public spending accounts.  This situation has negative repercussions on the economy of the receiving country. 

95.          The above-cited OECD study finds that there is no conclusive evidence regarding the impact of the presence of immigrants on the welfare systems of receiving countries. [42]  Other studies, however, mention that immigrants, in particular those with jobs, rather than a burden, represent a benefit because they contribute to the social security system in the receiving country.  In the United States, for instance, a recent study by the National Academy of Sciences concluded that, although in their initial years in the country immigrants help to push up costs for the welfare system, particularly in education, in the long term (20 years) these people become net contributors through the taxes they pay.  In other words, by paying taxes immigrants contribute more than they spend to the social security or welfare system of the receiving country. [43]  A similar study carried out by the United Nations Population Division reached the same conclusion in the case of the United Kingdom. [44] 

96.          As to the reasons why immigrants are a help to the social security system of receiving countries, Simon explains that the immigrants who find jobs are for the most part young and strong people who enjoy good health and are in the most productive years of their life.  Therefore, on average, they do not use social security benefits, in particular health and pensions, which are the costliest services.  Although many immigrants have families and, therefore, use state resources allocated for the education and health of their children, many others arrive alone and, therefore, have not need of such services.  This turns them into net contributors.  Simon also argues that the children of immigrants born in the receiving country should not be regarded only as consumers of social services, since many of them will return the benefits received in education and health through payment of taxes during their productive life. [45] 

97.          Furthermore, it is important to underscore that in many countries immigrants, especially those who are undocumented, either do not have access, or have restricted access, to state benefits (this is the result of social policies that discriminate against migrants).  However, a large number of these people pay taxes.  This turns them into net contributors to the social security system of the host country.  With respect to this point, Stalker, citing studies carried out in the United States, underscores that, on average, immigrants tend to make greater use of welfare benefits than US citizens.  However, he explains, this is because immigrants are, by and large, much poorer than the average local person.  By comparing trends in the use of welfare services, studies have determined that in the United States immigrants tend to use state benefits less than US citizens on similar incomes.  This is partly because access for migrant workers is restricted, and these people are very often reluctant to use those services for fear of the authorities or simply because they lack the relevant information. [46]

98.          Many authors also argue that the presence of migrant workers helps the social security system because they help to improve the demographic structure of receiving countries.  It is important to mention that in recent years the populations of many developed countries have aged noticeably.  In other words, the distribution of the population by ages has concentrated in the older segment.  This stems from a combination of low fertility rates, partly due to the fact that a higher proportion of women are working, and increased life expectancy.  In many countries the pension and health systems are financed through contributions made by the employed (pay-as-you-go system).  This means that people who retire depends on those who continue to work and contribute to the system.  Given that the progressively aging population threatens the capacity of the state to finance pensions and the health system, many authors argue that the presence of migrant workers in receiving countries is very positive because through their active participation in the job market they swell the ranks of those who contribute to social security systems.  This makes it possible to maintain the level of services such as retirement or life pensions for members.  In other words, the influx of migrant workers helps to improve the proportion between active people who work and contribute to the social security system, and beneficiaries of the system, such as retired and disabled persons.  Furthermore, immigrants tend to make the population more youthful because most of them are young and tend to have higher fertility rates.  The presence of these persons, therefore, is a contribution to the welfare system because it helps to improve the demographic structure of host countries.

Immigration and Economic Growth

99.          The debate on the impact of immigration on the growth rate of receiving countries generates a good deal less discussion than the points mentioned above.  Generally speaking, there is a degree of consensus that migration has a positive effect on the growth of receiving countries.  Studies on migration from an historical perspective reinforce this idea.  Demographers, historians, and economists agree that migratory flows had a positive impact on the economic growth of countries like the United States, Canada, Australia, and Argentina in the nineteenth century and the first half of the twentieth century.[47]  By the same token, the almost unlimited access to labor brought about by the immigration of hundreds of thousands of people from the colonies or so-called guest workers to many European countries (France, Germany, Switzerland, and the United Kingdom) was an important factor in the rapid growth of these countries between 1950 and 1973.[48] 

100.          Despite these historical examples, after the oil crisis in 1973, which led to a strong economic contraction, especially in Europe, certain political groups and parties began to have misgivings about the impact of immigration on the economic growth of their countries.  That view persisted in some sectors, which argued that latter-day immigration is very different and much less beneficial than it was in the 1960's.  Recent researches, however, reaffirm that immigration exerts a positive influence on growth.  In its 1993 study, the OECD clearly states that immigration contributes positively, albeit slightly, to the growth of the receiving country.  The study bases its finding on studies carried out in the United States, Canada, Australia, and Europe to justify this affirmation. [49] 

101.          There are several reasons why immigration should contribute positively to economic growth.  First, the arrival of immigrants generates more consumption and also helps to create economies of scale.  Immigrants also contribute to saving, since, generally speaking, they have a strong marginal propensity to save.  More importantly, immigration helps to increase economic efficiency and productivity as it enables transfer of workers from unproductive areas to productive sectors of the economy.  One very graphic example is the arrival of female workers who take jobs as nannies or domestic servants, which enables women, many of them professionals, to go out and work.  In addition, the arrival of immigrants helps to prevent production bottlenecks, as these people take jobs that, for a variety of reasons, the labor market cannot fill.[50]

102.          Immigration can also generate negative effects on growth, however.  Surplus labor in the workplace can diminish productivity. [51]  Furthermore, as mentioned, the presence of immigrants can in given circumstances inhibit technological development (employers can use cheap labor and thereby remain competitive), which in the long run negatively affects growth.[52] 

103.          To summarize, this section showed that the economic impact of immigration on receiving countries tends to be positive.  Immigration helps to increase the solvency of the social security system, has a small but positive impact on economic growth, and does not necessarily depress wages or cause unemployment among local workers.

Economic Impact of Migration on Supplier Countries

104.          The economic impact of migration gives rise to a good deal less controversy so far as the effects on supplier countries are concerned.  This tendency is odd because it is by no means clear that emigration generates purely positive effects for these countries. One of the positive aspect mentioned on the effects of emigration on the economies of supplier countries is that the exit of people very often acts as an escape valve for increasing social problems.  In that connection, many poor countries with a large unskilled population and structural unemployment encourage emigration to alleviate pressures on social services and to divest themselves of surplus labor.  Another of the arguments commonly cited is that countries of origin may also be interested in promoting emigration in order to ensure remittances sent by their citizens, which for many countries constitute an important source of income.  Furthermore some say that states of origin may also foster emigration to stimulate training of skilled workers abroad.  Among the negative impacts mentioned of emigration on the economy of supplier countries is that the exodus of people, particularly those who are highly educated, can lead to a decline in economic productivity.  In addition, it is argued that remittances can generate economic dependency and perverse incentives, for instance, by encouraging the state not to provide certain basic services because people can afford to pay for them thanks to the remittances they receive.[53]

105.          The following section provides a brief analysis of the economic impact of emigration on countries of origin.  The analysis focuses on two of the most relevant issues discussed in literature published on the subject: remittances and the impact of the flight of labor.

Remittances

106.          For many states, remittances (money sent by nationals from a foreign country of residence to their country of origin) are of vital importance.  Money sent by nationals living abroad represents one of the most important sources of foreign exchange.  For states like Jordan or Yemen, remittances account for more than 20 percent of gross domestic product (GDP). [54] Very often, remittances also represent one of the main sources of foreign exchange.  Furthermore, for many countries, these monies become a valuable macroeconomic policy instrument.  Several countries use this money to correct balance of payments deficits.  In the Americas, remittances are very important for several countries.  Of the 20 main remittance-receiving nations in the world, six are in the Western Hemisphere: Mexico, Dominican Republic, El Salvador, Brazil, Ecuador, and Peru.[55]

107.          Perhaps the most important aspect of remittances has to do with the effects they generate on the economy in the country of origin of migrant workers.  Though relatively few, the studies that have been carried out on the subject have provoked considerable controversy.  Some researchers believe that remittances have a negative effect, while others think the effect is positive.  Unfortunately the debate has not necessarily been settled, so that it is difficult to provide a complete and conclusive overview of the issue. 

108          Discussions on the effect of remittances to Mexico provide a good example of the tone of the debate.  Several studies conducted on the effect of remittances on Mexican communities argue that migration to the United States creates economic dependency and hinders autonomous development.  A review of these studies found that most researchers regarded remittances merely as a palliative since, generally speaking, they are used to pay for consumer goods, health care, food, and housing, but are rarely transformed into capital goods (tools, investment) that could generate development and increase production.[56]  A recent study, however, argues the reverse and says that remittances are an important source of economic growth and that they have a positive effect on the economy in macroeconomic terms.  The study holds that the annual arrival of approximately US$2,000 million in Mexico generates economic activity that accounts for nearly 3% of GDP.[57] 

109.          In short, given our current knowledge, it is not possible to offer definitive findings on the impact of remittances on the economies of supplier countries.  Suffice it to say that experts are divided on the matter and that the effects are probably mixed: some aspects being positive and others negative.

Impact of the flight of labor

110.          This is perhaps the only point on which there is consensus as regards the effects of migration on the economies of countries.  Generally speaking, writers agree that labor flight is negative for the supplier country, particularly in the case of skilled labor.  The loss of highly trained workers, such as engineers, lawyers, doctors, scientists, and other professionals, has negative repercussions on the productivity of the supplier country's economy.  It is important to remember that very often the state invested a lot of money in training these people.  Therefore, their migration will entail the irredeemable loss of the money that the state invested in their training.  In the case of the more highly qualified scientists, their emigration means that the country will be deprived of people who are very difficult to replace, hindering even more the development of local research.  The exodus of medical personnel, such as doctors, nurses, psychologists, and paramedics, or even of teachers, also constitutes a serious loss for countries.  In all these cases, the exodus of these people can lead to a shortage of professionals in key sectors such as health and education.  It should be mentioned, however, that in many developing countries the state tends to train more professional than the labor market is able to absorb. [58]

111.          Part of the problem with respect to the migration of qualified people from supplier countries has to do with the policies of receiving countries that encourage the better elements of developing countries to migrate by offering them better salaries and job conditions.  The granting of fellowships for advanced studies also acts as a magnet for emigration.  In this respect, once they have finished their studies many recipients of fellowships fail to return to their countries of origin.  In a recent development, however, traditionally supplier countries have begun to take in professionals from receiving (developed) countries, which are either hired by multinational companies, or migrate because despite their qualifications, they fail to find suitable jobs in their own countries.  Although this is a rising trend, the numbers involved are still quite small.[59]

112.          In the Americas, the negative effects of emigration on the economic development of countries are clear.  The Caribbean countries provide a very graphic example.  In Jamaica and Trinidad and Tobago, for instance, 60% of people with a university education currently live in the United States.  Guyana, for its part, has lost nearly 70% of its university graduates.[60]  Clearly, such a massive exodus of highly trained people impairs the development of these states. 

113.          It was mentioned above that certain countries encourage emigration of unskilled people to reduce the volume of surplus labor that the economy is unable to absorb.  This reasoning may be sound; however, the problem is that, generally speaking, it is the more capable and enterprising people who emigrate in search of better employment opportunities or higher wages.  Although it is very difficult to quantify, Simon argues that this trend has a significant impact on a country 's economic development.[61]

114.          To sum up, one can conclude that contrary to what is commonly said, there is no conclusive evidence that the effects of migration on the economy are negative.  This is particularly true in the case of receiving countries, for which the little evidence that exists indicates that the effect is positive albeit slight.  In this respect, most studies agree that the impact of immigration on the labor market and wages in the receiving country is minor in economic terms.  However, many writers recognize that immigration can impact negatively on the salary levels and the employment rate of nationals in certain specific sectors or industries.  With respect to social services, the studies indicate that immigration has a positive impact, especially in light of the contributions made by migrant workers through payment of taxes and their rejuvenating effect on the population, which helps to balance the cost of state-funded social services.  By the same token, the studies agree that migration has positive effects on the economic growth of receiving countries.  This effect is slender, however.  As regards supplier countries, there is no consensus on the economic consequences of remittances, although there is some agreement that the exodus of migrant workers, and not just that of qualified people, has negative repercussions on the supplier country.

115.          The Rapporteurship believes it is very important to carry out studies on the economic repercussions of migration in the Americas, in both supplier and receiving countries.  Therefore, it urges centers of research to promote studies of this nature that might help to further knowledge of this important issue, in particular in countries where there is very little information in that respect.

V.          GUIDING, SMUGGLING AND TRAFFICKING OF MIGRANTS

116.          Over the last decade migrant trafficking, as it is commonly known, has become an extremely important issue.  Many states have expressed concern at the increasing influence and power acquired by groups engaged in the smuggling, trafficking, and sale of people in slave-like conditions.  States have manifested their preoccupation because they perceive that the problem is growing and that it negatively affects their capacity to control migration flows and the entry of aliens to their territories.  In this connection, many receiving states have realized that the entry controls for people to their territories are consistently evaded.  Furthermore, states, as well as sectors interested in the guarantee and protection of human rights, have expressed concern over the issue because on certain occasions the people who resort to the services of smugglers or traffickers become victims of these groups.  Included among the many abuses that these individuals (or groups under their control) sometimes commit against their clients are labor exploitation, physical or sexual violence, robbery, intimidation, profiteering, and extortion. In cases in which the aforementioned abuses are not present, the hiring of illegal services with organizations that evade the law put migrant workers in situation of grave danger for their lives and vulnerability in regards to their rights.  

117.          Given its clandestine nature it is difficult to calculate the real dimension of this problem.  However, it is estimated that trafficking, smuggling, and guiding of migrants has escalated considerably in the last decade.  Some researches have confirmed this trend.  Based on studies carried out in Mexico, Singer and Massey calculated that around three-quarters of Mexican migrants who attempt to enter the United States for the first time, and two-thirds of those who try to enter again subsequently, use the services of smugglers or traffickers (known as coyotes or polleros).[62]  The trend is also visible in the increasing number of arrests made at the borders of receiving and transit countries.  In the United States, for example, the Border Patrol arrested more than 1.3 million people in 1997 and 1.6 million in 1999.[63]  Writers warn, however, that the higher number of people detained while trying to enter the territory of a country irregularly does not necessarily imply an increase in people trafficking, smuggling, and guiding, since it may be due to the implementation of better border controls.[64]  According to a study by the IOM, probably the organization that has studied the problem most closely, nearly four million migrants, including refugees, used the services of traffickers, smugglers, and guiders in 1997.  The same study mentioned that the migrant-smuggling or -trafficking industry generates between US$5,000 million and US$7,000 million a year.[65]  On this point, some writers agree that people trafficking has become such a lucrative business that it currently rivals drug trafficking.[66]

118.          The following part of the annual report briefly explores this important issue.  The aim of this section is to explain the main characteristics of this phenomenon and determine what consequences it holds for states and migrant workers and their families.  The section starts with a short description of the phenomenon worldwide and in the hemisphere.  Among other things, it provides a definition of the phenomenon and describes its characteristics and the reasons for its boom over the last decade.  In order to provide a more comprehensive overview, the chapter continues with a description of how these groups operate.  In particular, it examines the modus operandi of groups that traffic, smuggle, and guide people across the border between Mexico and the United States.  The next part examines the action taken by governments to control this problem.  In particular, it examines multilateral measures adopted by states.  The last section sets out a number of conclusions.

Nature and Characteristics of People Trafficking

119.          Owing to the fact that people trafficking is a complex phenomenon there is no generally accepted definition of the problem.  According to the IOM people trafficking has four components: 1) a trafficker or intermediary to facilitate crossing the border; 2) payment to the trafficker by the migrant or someone else on his behalf; 3) this activity is illegal or requires several illegal actions in order to be carried out; and, 4) the migrant is willing to seek the trafficker.[67] For its part, the Protocol against the Smuggling of Migrants by Land, Sea and Air supplementing the United Nations Convention against Transnational Organized Crime defines smuggling of migrants 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 Part of which the person is not a national or permanent resident.[68]  The Group of Experts of the Budapest Process set up to combat illegal migration goes a step further with its definition by making a distinction between two types of trafficking.  On one hand, illegal trafficking in migrants is defined as a deliberate activity to facilitate, in exchange for financial gain, the entry, residence, or employment of a foreigner in a territory of a state of which the person is not a national, and which violate the rules and conditions of that state. On the other hand, the group of experts refers to trafficking in humans, which it defines as the act of subjugating a person through the use of violence, intimidation, abuse of power, or deceit, with a view to their exploitation through prostitution, forms of sexual exploitation, child abuse, or trade of abandoned minors. [69] Salt and Stein, for their part, define migrant trafficking as an international business that entails the systematic movement and trade of people as goods of exchange by various means, which potentially involve several agents, intermediaries and institutions.[70]

120.          The above-mentioned definitions encapsulate the complexity of a phenomenon that is very often trivialized when it is described simply as an unlawful activity carried out by criminal organizations that victimize innocent people who try to emigrate in search of a better future.  As the above definitions indicate, however, trafficking is a good deal more abstruse and confusing a phenomenon that has diverse manifestations, many of which do not entail elements of abuse.  Kyle and Dale distinguish between two very useful categories that help to gain a somewhat better understanding of the phenomenon: on one hand, they talk about migrant exporting operations and, on the other, about slave importing operations.[71] 

Migrant Exporting Operations (Guiding and Smuggling)

121.          According to these authors, there are individuals and organizations that offer their services to facilitate the entry of a person to a state of which they are not nationals or permanent residents.  The commercial relationship between these parties evolves in free and sovereign conditions.  In other words, the person who wants to enter a particular country hires the services of certain agents in exchange for the payment of a fee.  Once the service is provided according to the agreed terms, the relationship between the guide or smuggler and the migrant ends.  The Rapporteurship defines this type of activity as people smuggling, since these groups try to introduce people by evading state controls, to that extent it is similar to goods smuggling.

122.          It is important to explain, however, that a person may contract very different services: they may pay either to be helped just to cross a border, or to be transported to their destination by land, sea, or air; they may also pay to obtain the necessary documents, whether bogus or legal (i.e. bribery of public officials).  Some people ask to be guided across the territory of a state, in order to evade the surveillance of the authorities. That same person may pay for a much more complete service that includes transportation and guidance from the place of origin–very often through several countries, documents and even contacts to find a job at the place of destination.  Of course, different services vary in cost.  Crossing the Mexico-US border with the help of a guide can cost between $250 and $900,[72] depending on the place on the border.[73]  A crossing on a ship or speedboat between Morocco and Spain costs around $500, while a crossing from Kurdistan to the Italian coast costs an Iraqi between $2,000 and $8,000.[74]    The trip for a Chinese citizen from Fujian or another coastal province to New York, where they are normally assured a job, costs between $30,000 and $35,000.[75]   

123.          It is important to underline that the agents who offer the above-mentioned services also vary considerably.  There are individuals involved in the business, such as guides or captains of vessels, for instance, who only help people to cross borders or transport them by boat or by land.  The Rapporteurship defines these persons as guiders.  At the same time, there are smugglers who, in contrast, have built up a complex network capable of providing a complete service, including transportation, documents, guides, and contacts with employers in receiving countries.  In many cases, these persons even provide their clients with protection.  Very often smuggling rings are composed of families of immigrants with a great deal of experience, knowledge, and contacts, both in the countries of origin and in receiving countries.  According to many writers, contrary to popular belief, organizations of this type are not always criminal in nature, and their agents do not have a criminal record or links to organized crime. [76]  Although they engage in activities that are criminalized in some countries, guiders or smugglers satisfy a demand or need in migrant-supplier countries. 

124.          In the case of Mexico, Andreas explains that, although there have been many reported incidents of robbery and excesses committed by smugglers or guiders, on the whole these people provide a service and do not cheat their clients.  This researcher explains that smugglers and guiders live off their reputation: people who use their services and are satisfied recommend them to relatives and friends, or else use them again when they want to reenter the United States.  Furthermore, precisely to avoid being cheated, clients usually insist on paying only once they arrive safe and sound at their destination (although more often than not they have to pay at least a part in advance).  For that reason, smugglers or guiders have a vested interest in preserving the integrity of the client.  Andreas explains that in Mexico although this activity is considered illegal and shady, it is regarded as relatively innocuous. [77]

125.          Other groups that engage in human smuggling, however, are indeed organized mafias.  One of the most notorious cases is that of Chinese traffickers popularly known as “snakeheads” or she tou (smugglers).  Studies on the trafficking of Chinese nationals to the United States say that these organizations are involved in a vast web of illicit activities that include, inter alia, prostitution, extortion, production of false documents, bribery of migration officials both in China and in destination countries.  According to police investigations, the so-called snakeheads are of Taiwanese extraction and have extensive connections with the intelligence services of that country.  These contacts enable them to have a broad network of collaborators in dozens of countries in Asia, Europe, the Middle East and North America.[78]

Trafficking (Importation) of Persons in Slave-like Conditions

126.          Unlike migrant smuggling or guiding operations, which, as explained, entail a mutually agreed commercial transaction, for the Rapporteurship human trafficking implies elements of violence, coercion, and deceit with the intention to exploit people (usually women and children) for monetary gain.  This activity is carried out exclusively by criminal organizations engaged in illicit business ventures, in particular sexual exploitation of women and minors.  Furthermore, these organizations also impose slave-like conditions on people by forcing them to work in domestic service, assembly or manufacturing plants (normally in the garment making and shoemaking industry), or as sex workers without pay or freedom of movement.  In contrast to migrant-smuggling operations, in this case, the business almost always involves corruption of officials in the country of destination, either because they are implicated in the business, or because they do not intervene even though they know of the existence of situations in which persons are subjected to these terrible abuses. [79] 

127.          Members of these criminal organizations frequently deceive people to lure them to use their services.  Representatives of these mafias, often women or people with a respectable appearance who masquerade as businessmen, make contact with the victims and offer them the possibility of work in a country of destination.  Many women, for example, are offered jobs as dancers, waitresses, or nannies.  Often, the activity is disguised as a migrant exporting operation.  In other words, the victim agrees to travel to the country of destination without documents, or with bogus travel documents and a false visa.  Once the person accepts the terms the operation is set in motion: the traffickers smuggle the person into the country of destination and once there deprive them of their liberty, take their travel documents from them if they are legitimate, and force them to work in the above-described activities.  These gangs force victims to pay for the service provided (i.e., the costs of transportation and maneuvering to get them into the country of destination) in exchange for working in slave-like conditions.  Sometimes traffickers take advantage of the ignorance of migrants and very often of the language barrier to charge them exorbitant sums and to make them believe that the remuneration for their work is fair.  Conscious of the fear and of the ignorance of the victims with respect to their rights and status in the country, members of these groups also threaten to turn them into the authorities and say that they will be sentenced to long prison terms.  Intimidation and violence are almost always present.  Trafficking victims who resist are physically abused, beaten, or even murdered.  The victims of this type of trafficking are generally speaking poorly educated people without means, family, or connections, who, in desperation, ignorantly embark on these operations. [80] 

128.          To summarize, two very different types of people trafficking are distinguishable.  On the one hand, the guidance or smuggling of persons, a transaction agreed on by common consent and carried out by organizations of diverse types and varying degrees of sophistication, from porters to quite complex rings.  In the case of these activities the person is a client more than a victim.  On the other hand, there are organizations devoted to the export of persons in slave-like conditions that are clearly engaged in a criminal activity and who abuse their victims by resorting to threats, violence, deceit (or all of the above), in order to profit from their exploitation. 

Reasons for the increase of Smuggling, Illegal Guiding, and Trafficking of Persons

129.          Almost all researchers agree that the increase in illegal guiding, smuggling, and trafficking of persons is a consequence of new border controls imposed by states.  After 1990, the majority of developed states, among them the countries of Western Europe, Australia, United States, and Canada reinforced their immigration control measures in order to prevent the entry of irregular immigrants.  At the same time, states restricted refugee status applicant quotas.  The aforesaid measures were primarily the result of two phenomena that occurred simultaneously.  On one hand, domestic economic problems, in particular rises in unemployment, led to a rejection of foreigners.  On the other hand, there was an increase in migration pressures as a result of the political and economic instability in developing countries.  The collapse of the Soviet Union, in particular, spawned enormous fears in Europe of a mass exodus of people from the newly independent republics (e.g., Georgia, Armenia, Estonia, Lithuania, Latvia, Ukraine, Byelorussia, Kazakhstan, among others) and the satellite countries of the Soviet Union (e.g. Romania, Bulgaria, Hungary, Czechoslovakia, Albania), which ultimately did not occur. [81] 

130.          In this context, states increased efforts to control migration flows and, thereby, impede the entry of aliens, as mentioned, including refugees.  To that end, they adopted a series of dissuasive measures, inter alia, strengthening of border surveillance, through increased deployment of border guards and installation of new technological equipment; fines for transportation companies carrying people without the proper documents; international cooperation to institute coordinated immigration control mechanisms; measures to prevent falsification of travel documents; adoption in many countries of new criminal laws to punish people involved in people trafficking; reduction of refugee quotas; and greater inflexibility in determination of refugee status. [82]

131.          The United States is one of the cases in which the above-described trend is clearly visible.  In this country border surveillance, in particular on the southern border with Mexico, increased to unprecedented levels.  As part of a dissuasive strategy implemented in 1993 and aimed to prevent irregular immigration, the Immigration and Naturalization Service (INS) reinforced all border controls.[83]  The Democrat administration under President Clinton increased the INS budget from $1,500 million in 1993 to $4,000 million in 1999.  Parts of these funds were allocated to enhancement of border control.  Thus, the budget that the INS allocated to this area rose from $400 million to $877 million between 1993 and 1998.  The new funds were used to recruit more agents to patrol the southern border (in fact their number rose from 3,389 in 1993 to 7,231 in 1998) and to install modern technological equipment, such as lights, cameras, infrared detection equipment, movement sensors, helicopters, and all-terrain vehicles.  With the help of Army Reservists, the immigration authorities built defenses and walls several kilometers long at various points along the border, especially near populated areas like San Diego, El Paso, Laredo and Nogales.  The authorities also launched a variety of contingency plans or special operations (e.g., Operation Gate Keeper in San Diego, California; Safe Guard in Nogales, Arizona; and Operation Hold the Line in El Paso, Texas) to combat border crossing by undocumented persons.  To supplement these measures, the 1986 immigration law was reformed.[84]  In that way, in 1996 the US Congress approved a new law, the Illegal Immigration and Immigrant Responsibility Act.

132.          Toward the end of the 1990’s the dimensions of the people trafficking phenomenon, particularly as regards women and children, led the US government to spearheaded national and international initiatives designed to curb a practice that by and large went unpunished.  Results of these initiatives are one of the Additional Protocols (III) to the Convention against Transnational Organized Crime and the Victims of Trafficking and Violence Protection Act of 2000.  Resorting to these instruments, the US authorities not only increased the number of prosecutors charged with handling cases of people trafficking, but also extended the prerogatives and powers available to these officials in the course of their investigations.[85]  In fact, as part of these measures a special task force against people trafficking was set up.[86]  Nevertheless, it is important to bear in mind that US laws only refer to trafficking victims who are minors or persons who have been trafficked with the aim of being sexually exploited, thereby leaving aside a considerable portion of cases.  Thus, generally speaking, efforts in this area focus on punishment of the phenomenon.  Even in those cases where protection measures are afforded, in order to qualify for them, victims have to collaborate effectively in the criminal prosecution of traffickers. 

133.          Although the case of the United States is very illustrative, it is not unique.  Border surveillance in the member countries of the European Union, Canada, Norway, and Australia have undergone similar changes.  Germany, for instance, has invested huge amounts of resources in controlling its eastern border with Poland and the Czech Republic.  Among other measures, the German Government has provided equipment and training for migration officials in those countries.[87]  Many developing countries that attract migrants, such as Mexico, Costa Rica, Argentina, Malaysia, the Republic of Korea, South Africa, and many others, have also strengthened their immigration controls to prevent the entry of undocumented persons. [88]  

134.          Researchers agree that, ironically enough, it has been precisely the imposition of greater migration controls that has increased the propensity for people to use the services of smugglers and to fall into the hands of trafficking networks in order to enter receiving countries.  Andreas, for example, explains that migration control on the Mexico-US border was virtually symbolic for almost 150 years (from 1848 to 1990).  The absence of controls made it relatively simple to pass and people either crossed alone or used informal methods, such as seeking advice or help from locals or from relatives residing on the US side.  In that context, hiring the services of smugglers (coyotes) was more of a luxury.  Following the imposition of stringent controls, however, it has become necessary to retain "specialized services", since otherwise it is virtually impossible to evade surveillance without exposure to the hazards of crossing in barren and remote areas, such as the Arizona desert where extreme natural conditions make the journey even more difficult.[89] Bimal Ghosh agrees with Andreas and argues that in a context of strong migration pressures on receiving countries and strong incentives to emigrate in supplier countries, migration controls alone are not enough to reduce immigration.  Instead, says this author, they force people intent on trying their luck in another country to resort to the services of people smuggling groups.[90] 

135.                   The increased surveillance has also unwittingly helped to produce other negative external effects, such as leading smuggling, guiding, or trafficking organizations to become more sophisticated.  Stronger surveillance and harsher penalties for people involved in this business has increased the risks and the financial costs that these organizations have to bear in order to provide their services.  In keeping with the laws of the market, these organizations have transferred the new business costs to their clients by substantially raising the price of their services.  If their clients were neither in a position nor willing to pay, the business would probably disappear.  However, given the prices that clients are prepared to play, sometimes as much as $35,000, as in the case of people originating from China, it is clear that the business remains alive.  The rise in prices has enabled these organizations to amass a greater amount of funds.  This money, in turn, has been invested in state-of-the-art equipment, such as detectors; communications apparatus to pick up the transmissions of border guards or the Coast Guard; and means of transport, such as speed boats, trucks, and small planes, which have enabled these groups to elude government surveillance.  Furthermore the increased controls have driven out of business a large number of organizations that simply cannot adapt to the new circumstances and lose clients to more advanced enterprises.  In many parts this has led to a high level of consolidation in the people trafficking and smuggling business, which has been left in the hands of fewer, but stronger and consolidated, groups.  In other words, paradoxically, enhanced surveillance has had the effect of making people trafficking organizations more sophisticated and of consolidating the business in the hands of fewer groups.[91]

Smuggling, Guiding, and Trafficking of Migrants across the Border between the United States and Mexico

136.                    Without question, one of the most interesting and important cases for the Rapporteurship is migrant-smuggling, guiding, and trafficking across the Mexico-US border.  The United States is the principal receiving country in the hemisphere and the world of documented and undocumented immigrants.  As a result of its geographic position  and a long border with the United States (almost 2,000 kilometers), Mexico has become one of the main centers for people-trafficking operations into the United States.  Apart from helping Mexican citizens to cross to the United States, the organizations involved in this business often traffic nationals from other countries who pass through Mexico on their journey, among them, Central Americans, South Americans, Asians, Africans, and people from Central and Eastern Europe and the Balkans. 

137.                   The following section briefly describes and explains how people-smuggling, guiding, and trafficking works in Mexico.  This section is based on a study carried out by David Spener, Professor of Sociology at Trinity University, San Antonio, Texas, who has explored the behavior and characteristics of trafficking organizations in South Texas.  The study is based on a comprehensive review of academic literature and journalistic sources, as well as interviews with coyotes, migration officials, in both Mexico and the United States, and people who use the services of traffickers to cross the border. 

138.                   Spener agrees with other studies in saying that the business of people-smuggling, guiding, and trafficking business in Mexico is very complex and involves diverse players, both individuals and organizations.  The aim of the business, he explains, is to help to take people from Mexico to a safe place in the United States in exchange for money.  As mentioned in this report, the people smuggling, guiding, and trafficking industry in Mexico includes an enormous variety of services with different prices, both in Mexico and in the United States.  In Mexico these services include: a) contact with people in communities inside Mexico who want to cross the border; b) arrangement of transportation from places of origin to the border; c) lodging at hotels or houses in border towns before crossing the border; d) sale or rental of bogus documents; e) crossing the Río Bravo del Norte.  In the United States, meanwhile, the services for sale include: a) purchase of airline tickets from points of entry near the border, such as Harlingen and Laredo; b) guides who accompany people across southern Texas to their destinations, such as San Antonio, Houston, Dallas, Austin, evading the surveillance of the Border Patrol and gangs of criminals who operate on the border; c) lodging at safe houses in border communities; d) transport by vehicle or train to San Antonio, Dallas or Houston from border areas on the US side; f) lodging at safe houses in San Antonio, Dallas, or Houston; g)  arrangement of transportation to other points in the United States once inside Texas and safe from the surveillance of the Border Patrol; and, h) delivery to an employer in the United States. 

139.          Diverse individuals groups, or organizations provide the aforementioned plethora of services.  Spener divides them into four categories, which reinforce the thrust of this analysis in the sense of making a distinction between guiders, smugglers, and traffickers:

140.          Pateros (name given to certain traffickers on the border between Tamaulipas and Texas).  These individuals engage exclusively in getting people over the border.  However, should their client need a guide to cross Texas to reach a given destination, they can recommend people who provide that service.  To recruit clients pateros linger at hotels and bars frequented by people who come to border towns with the intention of crossing the border.  They also wait at bus stations where these people arrive.  The possibilities of success of the undertaking are relatively slim when pateros are used.  Barring a few exceptions, people who hire this service are normally caught by the Border Patrol and lose their money, or else are robbed by gangs of criminals that operate on the border.  Spener reports that witnesses very often say that it was the pateros themselves who robbed them.

141.          Coyotes from the interior.  This term refers to experienced guides who have been taking people to the United States from communities inside Mexico for many years.  These people are typically natives of communities in the center of Mexico, in states such as Zacatecas, Guanajuato, Jalisco, Michoacán, San Luis Potosí, and others.  Coyotes from the interior usually recruit groups of people and help them to make the journey from their communities of origin before delivering them into the hands of relatives or employers at their destination.  These individuals almost always accompany the group on the whole journey and use their experience, contacts, and knowledge of the terrain to evade the authorities and gangs of robbers.  The advantage of hiring a smuggler/guide of this type is that the individual is normally a member of the community of origin and, therefore, is known and trusted by the people who choose to hire his services.  Unlike pateros, these individuals do not require payment in advance, but only after the client reaches their destination.  Despite the coyote's intentions, the border crossing may fail, particularly because they do not live in border areas and lack up-to-date information on the movements and new methods of the Border Patrol or criminal organizations that rob migrants who try to cross the frontier.  This can lead them to make mistakes and to the arrest of the group they are guiding.  To avoid this problem, coyotes from the interior typically work with contacts on the border that tell them about the latest developments in the area and advise them on routes and strategies. 

142.          Friends and relatives. Many Mexican migrants use the help of friends or families to make the journey to their final destination in the United States.  Very often, relatives or friends of the people who want to migrate go to Mexico to find them and accompany them on the journey.  These people often hire a patero to help them cross the border.  Then they arrange with relatives to be picked up at strategic places.  Relatives or friends, who are very often US residents or citizens, collect these people and help them to evade the controls of the Border Patrol, which are particularly tight for the first 75 kilometers of the territory of Texas in the United States.  In order to evade the surveillance set up by the Border Patrol, these people normally transport their relatives in vehicles along side roads that lead to the north of the state toward cities like San Antonio, Dallas, and Austin.  Due to the increased surveillance and the stiff penalties imposed on US citizens or permanent residents who aid to smuggle migrants, the percentage of people who cross using only the contacts of family and friends has diminished considerably. 

143.          Commercial Border Operators:[92] Organizations of this type are the most advanced and, according to Spener, probably move the greatest number of migrants across the border.  These organizations vary enormously in size and complexity.  Depending on their capacities, sophistication, and reputation, they provide a large quantity of services at different prices.  Market conditions, that is, changes in the strategies of the immigration authorities, also determine prices.   More than their huge variety and level of sophistication, what distinguishes these organizations from the categories of smugglers mentioned above is their high degree of professionalism.  In the more sophisticated organizations there is usually division of labor: some people find clients, operate as guides, or study the movements of the Border Patrol, while others organize the logistics, such as securing transportation and safe houses, or obtain false documents.  In other words, these organizations are vertically integrated but have a central command that directs the operation.  Spener says that these organizations are normally family-run businesses and are not, generally speaking, connected with organized crime.  However, such organizations may subcontract the services of criminals to carry out certain tasks, such as demand payment from clients who refuse to pay, or obtain false documents.  Informal networks provide information about, and recommend the services of, these organizations.  Migrants who are not Mexican nationals and who arrive via smuggling or trafficking rings also tend to subcontract the services of such organizations. 

144.          Typically, these organizations recruit their client at bars, hotels, or bus stations.  Once contact is made they explain their modus operandi and the services that the organization can provide.  Clients who decide to contract the services of these guiders or smugglers are taken across the border, either through border checkpoints using false documents, or at unauthorized places such by crossing the Rio Grande.  Once inside the United States, the problem is to move north and get past the Border Patrol checkpoints set up on the main roads, and to evade roundups and surveillance by agents of that division.  As mentioned, the Border Patrol has strong controls in place across an area that stretches at least 75 kilometers northward from the border.  In other words, crossing the border does not guarantee that a person will be able to reach their destination.  Traffickers sometimes take their clients on foot to places beyond the area monitored by the Border Patrol, where vehicles collect and take them to a city of destination.  Once there, the migrants may be taken to a safe house or introduced to their employers at the final destination, at which point payment is made, either in part or in full.  Traffickers also have several safe houses in the border area where migrants may hide for hours, days or weeks.  Conditions at these houses vary from acceptable to considerably bad.  Spener explains that many of the places where migrants are hidden are overcrowded and lack sanitary facilities or beds.  Very often the people who hide in these places receive no food, only water.  As regards accusations of mistreatment and abuse of migrants, Spener says that these incidents occur, but that their magnitude and frequency is not known.  In that connection, he explains, since part of the payment is made at the end of the journey, organizations have an incentive to bring their clients safe and sound to their destination.  However, cases are known in which smugglers/guiders abandon their clients if the authorities are closing in, but generally that is more common in the case of pateros.  It would seem that robberies and abuses are more the work of criminals, who pass themselves off as traffickers and rob or kill migrants at isolated spots. [93] 

Multilateral Measures to Combat Smuggling, Guiding and Trafficking

145.                   One of the clearest repercussions of the growth in people trafficking is the increasing concern of states to implement multilateral strategies to combat this phenomenon.  In the framework of these efforts, over the last decade, states, in particular migrant-receiving countries, have directed various initiatives and implemented measures on the domestic front against people-smugglers and trafficking network.  Efforts at the international level have included coordination of multilateral measures and the signing of international agreements on the matter.  Furthermore, states have provided support to inter-governmental organizations, in particular the IOM, to conduct studies, activities, and conferences designed to further knowledge of this complex phenomenon. 

146.          Such measures have been adopted both at the regional and at the global level.  Concerned by the problem, in particular as regards trafficking by Russian mafias of women and children from Eastern Europe for the prostitution market, the countries of the European Economic Community (today the European Union) integrated their control and information exchange policies in 1993.  Later, these countries sponsored the Budapest Process, a multilateral initiative designed to agree on measures to tackle illegal migration, in particular people trafficking.  Through these fora European countries aligned part of their national laws to combat this problem more effectively. [94]  In our hemisphere, meanwhile, processes such as the Regional Conference on Migration (RCM) have devoted particular attention to the problem.[95]  The RCM has encouraged the participating countries to introduce specific legislation against migrant trafficking.  With the help of specialized organizations, such as the IOM, in the framework of this process, certain countries have carried out special studies on this problem.  Furthermore, attempts have been made to establish cooperation mechanisms to exchange information on people trafficking and smuggling via contacts among immigration officials in RCM member countries.  By the same token, the RCM has sought to foster specific programs, such as the above-mentioned Program on Assisted Return of Extra-Regional Migrants, which is aimed to expedite the deportation process of irregular migrants detained by the authorities.  The Organization for Security and Cooperation in Europe (OSCE) adopted, through its Parliamentary Assembly, a Resolution on Trafficking of Women and Children.

147.                   Undoubtedly, one of the most important initiatives thus far taken has been the creation of a specific UN Protocol on Trafficking in Persons supplementing the United Nations Convention Against Transnational Organized Crime adopted at the Conference of Palermo in December 2000. The Protocol against Smuggling of Migrants has two main objectives: on the one hand, to criminalize trafficking of persons, and on the other hand to facilitate cooperation among countries on prevention, investigation, and prosecution of this crime.  Therefore, the Protocol includes, inter alia, clauses on interdiction at sea of vessels suspected of carrying migrants; punishment of transportation companies; information programs to forewarn potential victims; and programs on exchange of information among states in order more effectively to combat trafficking in persons. [96] 

148.                   Through these multilateral measures, states have sought to supplement unilateral measures of the type already described, such as enhanced border controls and new legislation aimed to equip the judicial system with better tools to fight the problem.  However, judging from the results achieved over the last decade, the measures adopted by states to deal with this phenomenon have been rather ineffective. 

149.                   As regards trafficking, smuggling, and guiding of migrants there are two visible tendencies that the Rapporteurship considers appropriate to mention.  The first of these tendencies is that the term trafficking is used loosely with the result that it encompasses a most diverse array of conducts.  In that connection, one cannot compare the guide who guides a group of migrants through an uninhabited area to evade border controls, with the person who organizes an operation in which as many as 30 people get into a container and cross the ocean by ship.   By the same token, one cannot liken people who help relatives and friends to enter a territory irregularly, to a person who under false pretences entices a young woman by offering her the possibility to migrate to another country only to end up forcing her to work against her will.  Guiding, smuggling, and trafficking of migrants are different conducts and it is necessary to distinguish among them.  The capacity of states to punish the real traffickers and to prevent migrant-smuggling schemes that endanger human lives depends on precise definition of concepts.

150.                   In addition we are seeing an effort on the part of states to punish migrant trafficking and smuggling, using both national and international legal instruments to arrest, prosecute, and punish culprits.  At the same time, according to the definition proposed by the Rapporteurship, however, there is a gap in the protection provided for victims of trafficking.  Persons who are forced to migrate, or deceived into doing so, and who end up subjected to slave-like conditions cannot be treated the same as an irregular or undocumented migrant who is working freely and voluntarily in a country.  Given the complexity of the issue we think it necessary for states to develop national and international systems of protection for a special group of migrant workers who are plainly in a position of vulnerability.

151.          In sum, as this brief section explains, people trafficking, as it is popularly termed, is a much more complex activity than it seems.  Contrary to what is generally perceived and said, trafficking is not always an activity carried out by criminal organizations that seek to exploit and abuse their victims.  Although certainly many criminal organizations have become involved in the business and commit serious abuses against innocent victims, particularly in connection with slave importing operations, many traffickers simply provide a service by taking a person from a country of origin to one of destination.  While the conducts described may be punishable and even be regarded as the same offense, they are clearly different in terms of violation of fundamental principles, such as the dignity of the human person.  It may even be argued that these individuals are providing many with the opportunity to escape from desperate situations characterized by violence, poverty, lack of opportunities, and inequality in their countries of origin.  In this respect, there are many people with legitimate reasons to apply for refugee status or seek asylum who turn to organizations that engage in people trafficking, in order to reach destinations where they can request the authorities to consider their case.  Furthermore, this study mentioned that most researchers agree that people trafficking seems to be an upshot of enhanced controls.  In this regard, this section mentioned that authors such as Ghosh stressed that migration control alone will not help to stop flows of migrants that stem from structural factors.  These authors say that states must adopt supplementary measures, such as fostering development programs in supplier countries and curbing incentives offered by employers that hire undocumented migrant workers, for instance through the introduction of punishments and fines.  As Koslowski says, the growth of people trafficking, more than a disease, seems to be the symptom of tremendous disparities between developed countries and developing nations, which leads so many people to take serious risks simply to find better opportunities and living conditions.[97]