Cases of Nepalis, especially young people, being smuggled across international borders, primarily to countries such as the United States and Russia, are making headlines. As media outlets, activists, scholars and human rights organisations raise the alarm, Nepal must protect its youth by introducing anti-smuggling legislation. However, while the dangers of these precarious journeys are undeniable, implementing new anti-smuggling laws could deepen the crisis rather than solve it.

To understand why Nepal’s anti-smuggling legislation could have unintended consequences for its youth, we need to turn to the Palermo Protocols, a set of three international agreements adopted by the United Nations in 2000. These protocols define and distinguish key transnational organised crimes: Trafficking in persons, smuggling of migrants and arms trafficking.

Smuggling versus trafficking

The Smuggling Protocol 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 Party of which the person is not a national or a permanent resident”. In contrast, the Trafficking Protocol defines “trafficking in persons” as the act of “recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation”.

Although Nepal has not yet ratified a smuggling protocol, it passed a protocol on trafficking in June 2020. Since then, the country has been revising its anti-trafficking law, with discussions about introducing an anti-smuggling law underway. While the distinction between trafficking and smuggling is not always clear, differences in the approaches emerge upon the protocols’ closer inspection.

The geopolitics of smuggling

The protocols’ language highlights differences in the approaches states take: Trafficking is described as “in persons”, emphasising victims of ‘coercion and exploitation’ who are (at least theoretically) entitled to temporary residence, potential permanent residency, safe housing, education, legal immunity, etc. In contrast, smuggling is “of migrant”, who often ‘consent’ to border crossings and are afforded few—if any—rights.

While the smuggling protocol encourages the states to exempt migrants from criminal liability, they are often prosecuted under other laws due to their illegal status. It is more advantageous for Western states to classify migrants as smuggled rather than trafficked, as recognising trafficking victims imposes economic burdens and classifying migrants as smuggled renders them disposable while serving a broader political purpose.

Migrant smuggling is often framed in right-wing Western media and political rhetoric as an “invasion” by non-citizens crossing borders. Such fear-mongering fuels exclusionary politics, dehumanising economically disadvantaged and racially characterised individuals as threats to national identity.

Similarly, restrictive policies force migrants onto clandestine routes, often with deadly consequences. Since 2014, over 63,000 migrants have died attempting to migrate—8,000 in 2023 alone. These deaths are not random; they are direct outcomes of policies pushing people into dangerous conditions, with drownings, asphyxiation, freezing and shootings symbolising the human cost of border crossings.

Faced with mounting criticism for their role in these deaths, Western governments have started to shift their strategies. While they still focus heavily on reinforcing physical border security, they are also externalising them, pressuring source countries to manage their populations and deter migration. For example, the EU has spent considerable development aid on addressing the root causes of immigration by encouraging, if not forcing, people to stay in their home countries and asking those countries to bear the burden.

One approach involves placing diplomatic pressure on countries of origin to strengthen legal measures against irregular migration. For example, Nepal’s recent downgrade in the US Trafficking in Persons (TIP) report from Tier 2 to the Tier 2 Watch List appears to weaponise the report as a diplomatic tool of coercion. The downgrade, which carries the threat of financial sanctions, comes despite Nepal’s historically low modern slavery numbers reported by the International Labour Organisation and Walk Free. This has led to speculation that the TIP report may be leveraged to encourage Nepal to address concerns over the illicit migration of its youth.

Problematic representation

There have been increasing coverages of Nepali citizens being represented as “smuggled” into the Russian army. This is an incorrect framing, as the situation is mostly rooted in labour exploitation rather than smuggling. Nepali workers being misled with false promises—such as getting Russian citizenship, points more towards deceptive recruitment than smuggling. When workers are aware of their destination and role, labelling this as smuggling invokes the culpability of Nepali migrants. This could have broader implications for the Nepali diaspora in Europe, potentially being stereotyped as pro-Russian amid ongoing conflict.

Similarly, the representation of Nepali migrants to the US as “smuggled” fails to acknowledge the deeper issues at play. While several Nepali youths take irregular routes to the US, the larger story is one of economic hardship and the severe social barriers they face in Nepal. For many Dalits and lower-class Nepali youth, a lack of dignified and sustainable work opportunities and everyday discrimination within their own country push them toward the uncertain hope of a better life abroad.

In addition, there is growing concern about Nepali youth being smuggled across EU borders, particularly following Romania’s recent entry into the Schengen Area and also in countries like Kenya, South Africa and Haiti.

Framing these migration patterns as “smuggling” not only obscures the deeper systemic issues but also distorts the harsh realities Nepalis endure within their labour market—limited opportunities, fixed-term contracts, low wages and the absence of labour law enforcement to combat everyday abuse and exploitation. Reducing these complex issues to a simple label overlooks the larger structural factors which limit social mobility.

Romanticising precarious migration routes while failing to provide dignified employment opportunities for Nepalis only perpetuates their vulnerability and desperation, thereby potentially encouraging them to embark on these risky trajectories.

Don’t turn the dreams into crimes

As Nepal considers an anti-smuggling law that could criminalise irregular migration, it must carefully weigh the consequences. Although migrant journeys are precarious, relying on criminal justice-based smuggling laws would further alienate Nepali youth, stigmatise them, deepen their marginalisation and push them further away from their country. It will fail to address the main causes of irregular migration and could create new problems.

Banning migration will not stop mobility; it will drive it underground. Migration facilitation networks will adapt, becoming harder to trace and more profitable. A new anti-smuggling industry could emerge, prioritising enforcement over welfare. Hence, rather than pursuing anti-smuggling legislation, Nepal should build trust with its youth instead. The government can prioritise skill development, enhance the appeal of domestic labour market opportunities and provide accessible, affordable migration pathways to address the root causes of irregular migration.