Smuggled and Trafficked Unaccompanied Minors: Towards a Coherent, Protection-Based Approach in International Law

Abstract

Irregular migration by unaccompanied minors has become an increasingly prevalent global issue. Unaccompanied minors who have fled their countries of origin, often due to persecution, violence, or poverty, present an opportunity for migrant smugglers and human traffickers who exploit their unique vulnerabilities and dependence. Smuggling and trafficking are often fluid, interrelated phenomena, making practical distinctions difficult. This article explores the protection of smuggled and trafficked unaccompanied minors under the United Nations Protocols against the Smuggling of Migrants and Trafficking in Persons. While each Protocol includes mandatory provisions pertaining to criminalization, it explains that neither Protocol adequately protects unaccompanied minors, addresses their unique vulnerabilities, or accounts for the often-blurred distinction between minors who are smuggled migrants and minors who are victims of trafficking. In light of these issues, this article argues that a coherent, protection-based approach, founded on international human rights and refugee law, is necessary. This article outlines rights and principles integral to such an approach, and analyses their particular application to smuggled and trafficked unaccompanied minors. It posits that the emphasis on criminal, preventative, and border control aspects of smuggling and trafficking comes at the expense of more nuanced understandings of the experiences and vulnerabilities of smuggled and trafficked unaccompanied minors, despite the pressing and evident need for a more substantive framework for their protection.