San Diego International Law Journal

Library of Congress Authority File


Document Type



This Comment calls for the rethinking of the international emphasis on human trafficking by looking at its neglected sister and illuminating the consequences of mis-defining two related yet distinct international criminal offenses. This Comment is an original intervention in the area of international and transnational crime. It is the first of its kind to examine the deficiencies of the Smuggling Protocol through case studies and the first to offer practical reforms and theoretical clarifications of the definition of human smuggling to serve as a useful tool in future attempts to combat human smuggling and human trafficking. Part II examines the push and pull factors that contribute to the ebb and flow of mass migration from Central America to the U.S., including desperate living conditions, menacing gang realities, and attractive U.S. immigration policies. Part III reveals how U.S. and Central American actors are failing to adopt preventative measures. Part IV examines how Central American State Actors have failed to adopt the Smuggling Protocol. Particular attention will be given to Guatemala as a regional example because of its unique position as a historical and geographical country of origin, transit, and destination for human smuggling. Part V dissects the failures of the Smuggling Protocol because it misapplies human trafficking terms to the definition of human smuggling and delegates the responsibility of solving this regional problem to individual State Actors. Part VI looks at human smuggling statutes from one particular State, Guatemala. Case law analysis from Guatemala reveals that Guatemala's legislation is insufficient to combat human smuggling within Guatemala and throughout the region. Although Guatemala signed the Smuggling Protocol, it has not followed it in good faith. Part VII looks at why Guatemala has not implemented the Smuggling Protocol, proving that the only international instrument available to guide states is ineffective. Guatemala is not alone; El Salvador, Honduras, and Mexico have not implemented measures mandated by the Protocol even though all of these states have signed and ratified it. Part VIII examines how the definition of human smuggling varies across these countries and how a divided definition hinders the possibility of a future unified approach. Part IX offers a new definition of human smuggling that will categorize it as a separate offense from human trafficking. In concluding, this Comment will emphasize that the legal solution to the human smuggling problem in Central America is the harmonization of national legislation through the development of a regional convention, which would be enforced by a monitoring working group.