Transnational Criminal Law Research Articles

Analysis of Fundamental Challenges in the Combat of Transnational Crimes

Transnational Crimes have existed in some form and to some degree since the inception of organized societies. They have remained prominent in popular culture and policies, evolving through different eras, under different political and economic conditions. These crimes encompass various offences ranging from organized to corporate and political crimes. Specifically, some of the crimes that are transnational in nature include human trafficking, cybercrimes, drug trafficking, migrant smuggling, sea piracy, terrorism amongst others. Globalization enlarged their markets, technological advancements accelerated their trends and the internet fostered development of looser transnational criminal networks. Despite the challenges posed by state sovereignty, the International Community have been actively involved in the suppression of transnational crimes. This is evidenced in the evolution of various Suppression Conventions, principal of which is the United Nations Convention against Transnational Organized Crime (UNTOC). Several International Institutions such as the United Nations Office on Drugs and Crimes (UNODC) and the International Criminal Police Organization are also in place to combat transnational crimes. The effectiveness of these mechanisms has been clogged by democratic deficits over the development of Transnational Criminal Law, state complicity in transnational crimes, the absence of a transnational criminal justice system amongst other problems. Recommendations were made in the study for the legitimization of Transnational Criminal Law, establishment of an effective central and neutral authority to oversee international cooperation in transnational criminal matters, stronger infusion of human rights safeguards in transnational criminal justice, establishment of a multi-disciplinary team for the investigation and prosecution of transnational crimes amongst other recommendations. The doctrinal research method was adopted for the study as information contained in the research was gathered from consultation of both secondary and primary sources which are related to the subject of discourse.

Conference Report: Current International and Transnational Criminal Law in Africa – Practice, Challenges and Prospects

The African-German Research Network for Transnational Criminal Justice conducted its an-nual conference on 30th and 31st October and on 4th December 2020 online. The theme of the conference was “Current International and Transnational Criminal Law in Africa: Prac-tice, Challenges and Prospects”. The report gives a concise overview of the excellent paper abstracts and presentations of the conference, ranging from concepts of restorative justice and the implementation of international and national criminal offences to legal policy responses and prosecutions in Malawi, Nigeria, South Africa and Uganda and by the ICC. Several con-ference papers have been published in peer-reviewed law journals and a number of the pro-posals discussed have been partially implemented by national legislators

Tinjauan Hukum Pidana Internasional Atas Tindakan Eksploitasi Sumber Daya Perikanan Di Wilayah Laut ZEE Indonesia Oleh Kapal Asing

The Exclusive Economic Zone (EEZ) is a new legal system regulated in the 1982 maritime law agreement between countries. Therefore, the abundant marine fisheries resources in Indonesia's EEZ allow for actions that are detrimental to being an archipelagic country due to violations committed by foreign countries that violate state sovereignty. Therefore, the Indonesian government has established legal rules regarding the use of fisheries resources and maritime boundaries in Law Number 17 of 1985 from the ratification of UNCLOS 82, and in its implementation these legal rules must not deviate from the Indonesian Constitution. Apart from vigilance, of course this is a a warning to the country in maintaining its sovereignty so that it is protected from intervention by foreign countries who secretly steal data on the country's territory and look for gaps in defense weaknesses through maritime boundaries. Therefore, all regulations regarding the territorial boundaries of the Exclusive Economic Zone (EEZ) have been summarized in UNCLOS 82. This article aims to explore aspects related to the protection of water resources in the EEZ and the provisions of international and transnational criminal law that anticipate the protection of water resources in the EEZ. This research utilizes normative methods that are descriptive in nature and tend to utilize data analysis.

Human Trafficking as a Human Rights Violation in a Pluralistic and Interdependent World: Obligations and Accountability of States

Human trafficking is a common occurrence in the modern world. It has been estimated that thousands of people are trafficked every year, the most of whom are women and children. Almost all States are impacted by trafficking, and it is estimated that traffickers earn billions of dollars a year from their illegal activities. Slavery and the slave trade, which date back thousands of years, are the roots of trafficking. However, since the start of the 20th century, the term "human trafficking" has taken on a new meaning. This paper explores some state-imposed requirements related to human rights. While there are many different obligations, this paper focuses on the four most important ones that are imposed on all States, regardless of whether they are States of Origin, Transit, or Destination: the obligation to forbid trafficking, to look into and prosecute traffickers, to protect victims, and to address the causes and effects of the phenomenon. It will be shown that these are firmly established under international human rights law. Additionally, the Trafficking Protocol's potential to advance a human rights framework will be considered, along with the ramifications of the interplay between several international legal disciplines like international human rights law, international criminal law, and transnational criminal law. This paper ends with a comment on the value of global government in combating transnational organized crime, especially human trafficking. The fundamental conclusion is that States can be held directly responsible since some human rights standards and principles drawn from international human rights law are applicable to human trafficking.

The Concept of International Criminal Law and Its Relationship With Transnational Criminal Law and Conflict of Laws

Adapted from a recent lecture, this paper provides an historical and analytical overview of the development of the discipline of International Criminal Law identifying links and points of distinction from the cognate disciplines of Transnational Criminal Law and Conflict of Laws.

Regional Report: Southeast Asia/China/Pacific

This report covers recent and current developments in the field of transnational criminal law in Southeast Asia, China, and the Pacific.

Regional Report: West Asia/Middle East

This report covers recent and current developments in the field of transnational criminal law in the West Asia/Middle East region. It mostly contains developments from the year 2022 and, in exceptional cases, late 2021.

International Legal Principles, Penal Populism and Criminalisation of ‘Unwanted Migration’

Abstract The criminalisation of migration is one of the most explicit ways in which law generates, sustains, and even legitimizes hostility towards “unwanted migrants”. This article will take into examination the criminalisation of “unwanted migration” by the Italian authorities and its relation to internationally established legal principles in the area of human mobility, arguing that the expansion of penal populism constitutes a danger for the balance among them. The article starts with an analysis of human mobility in international law and the “protection through prosecution” paradigm to highlight an inherent harmony of the aims of the legal systems dealing with human mobility from the humanitarian and criminal law perspective. Section two scrutinises the Italian case and the populistic distortion of the provisions and principles entailed in the field of transnational criminal law to counter human mobility. Section three reconnects the national criminalisation of migration with the international legal dimension and argues that the misuse of the transnational organised crime framework ultimately legitimises the violation of human and refugee rights and contravenes key international law principles.

Enforcing the ‘Community Interest’ in Combating Transnational Crimes: The Potential for Public Interest Litigation

Transnational criminal law treaties could give rise to public interest litigation concerning the breach of an obligation erga omnes partes, meaning an obligation owed by one state party to all other states parties. This article aims to contribute to scholarship on the subject of erga omnes or ‘community interest’ norms by exploring the potential for international litigation concerning non-compliance with obligations under two transnational criminal law treaties in particular: the United Nations Convention against Transnational Organized Crime and the United Nations Convention against Corruption. Transnational criminal law treaties have been overlooked in the existing literature on community interest norms, even though states parties have a common interest in ensuring compliance with the obligations assumed under these instruments, and the treaties have the potential, at least in theory, to give rise to public interest litigation. International courts and tribunals, as well as scholars, can and ought to engage in deeper analyses of what constitutes an obligation erga omnes partes under a multilateral treaty.

Human Traffickers’ Fair Trial Rights and Transnational Criminal Law

The right to a fair trial is enshrined in international and domestic law around the world. This article makes the simple argument that the focus on the rights of victims of human trafficking and efforts to increase the rate of prosecutions of human traffickers should not come at the cost of alleged traffickers’ rights to a fair trial, as a failure to uphold fair trial rights places them at risk of unfair prosecution. I consider the extent to which the transnational criminal legal regime regulating human trafficking at the international level provides for these fair trial rights, suggest that the fundamental purposes of transnational criminal law exist in a state of tension against the aims of the international human rights regime, and conclude that further empirical research on the legal experiences of human traffickers is necessary.

Transnational Criminal Law in Transatlantic Perspective (1870–1945): Introductory Notes, Initial Results and Concepts

Transnational Criminal Law in Transatlantic Perspective (1870–1945): Introductory Notes, Initial Results and Concepts

The League of Nations, Traffic in Women and the Transnationalization of Criminal Law

During the 1920s, the Advisory Committee on the Traffic in Women, of the League of Nations operated as a legal regime in the transnationalization of criminal law. This can be seen in its management of the first ›worldwide‹ investigation into the traffic in women which sent undercover investigators to more than a 100 countries across Europe, the Americas, and the Mediterranean. The Advisory Committee initiated ›trafficking‹ as a transnational crime and advanced the understanding of transnational criminal law beyond concepts of professional criminality. Recommended citation: Knepper, Paul, The League of Nations, Traffic in Women and the Transnationalization of Criminal Law, in: Rechtsgeschichte - Legal History Rg 30 (2022) 131-144, online: http://dx.doi.org/10.12946/rg30/131-144

The Presumption Against Extraterritoriality, Mutual Legal Assistance, and the Future of Law Enforcement Cross‐Border Evidence Collection

AbstractR (KBR, Inc) v Director of the Serious Fraud Office is a significant judgment for the field of law enforcement cross‐border evidence collection, both in the United Kingdom and beyond. The UK Supreme Court ruled that the Director of the Serious Fraud Office's powers to compel disclosure of materials under section 2(3) of the Criminal Justice Act 1987 did not extend extraterritorially to foreign companies with no fixed UK place of business and which were not carrying on business in the UK. This judgment affirms the continued significance of the presumption against extraterritorially and identifies a general UK parliamentary preference that law enforcement obtain overseas material through cooperative processes like mutual legal assistance, rather than unilaterally. Much however remains unsettled for the future of this field, given developing issues in transnational criminal law, human rights – particularly rights of privacy and data protection – and public international law.

Informal Amnesties in Asset Recovery Practices in Tanzania: Examining Criminal Justice Challenges

Since the turn of the century, amnesties began to feature in transnational criminal law as a tool to facilitate the recovery of criminal assets. In particular, the provisions of Article 26(3) of the United Nations Convention against Transnational Organized Crime, 2000, and, Article 37(3) of the United Nations Convention against Corruption, 2003 made it possible for States Parties to adopt measures within their legal systems to provide for amnesties to suspects who are ready to cooperate with law enforcement agencies in order to facilitate successfully prosecution of perpetrators of crime and consequently procure the recovery of criminal assets. This paper examines the use of amnesties in Tanzania, particularly, focusing on the 2008 and 2019 amnesties. The paper further investigates the extent to which such amnesties, which are implemented in Tanzania without necessary legislative framework, enhance asset recovery and criminal deterrence. Keywords: amnesty, asset recovery, corruption, criminal deterrence, criminal assets organized crime.

Fishy business: regulatory and enforcement challenges of transnational organised IUU fishing crimes

The article aims to find the answer on the main question of how can the criminalisation of IUU fishing, especially when committed by OCGs, under suppression conventions tackle the deficits of regulations and enforcement at the international and national levels? These deficits have origin in the limited prescription by international fisheries instruments and a large autonomy and discretion of states leading to substantive divergent policies, legal framework and practices at the national level. Further, the actual international fisheries instruments do not provide for regulatory and enforcement solutions in relation to the involvement of OCGs in IUU fishing. We argue that suppression conventions at global and regional levels could serve as solutions to supplement the deficits. In explaining the argument, first we examine the phenomenon of IUU fishing and its TOC dimensions, and the significant harms caused by it. Second, we examine the regulations and enforcement provisions of international and national fisheries instruments to establish the deficits. Third, we elaborate why suppression conventions are suitable solutions. Fourth, we analyse how suppression conventions can be regulated at global and regional levels in a way that they tackle the deficits. The results of this study can be used as a reference on how a transnational crime can be criminalised under suppression conventions both in terms of its reasonings and options and thus can contribute to the study of transnational criminal law. This study is important for transnational criminal law scholars, policy makers and practitioners in the field of enforcement.

Corporate non-prosecution agreements as transnational human problems: transnational law and the study of domestic criminal justice reforms in a globalised world

ABSTRACT Nowadays, cases involving questions of corporate (ir)responsibility are largely resolved through negotiated settlements. A controversial development in this context is the cross-border rise of procedures akin to US non- and deferred prosecution agreements which allow prosecutors to agree with corporations not to prosecute serious economic crimes. The article uses this example to discuss the relevance of transnational law as an analytical framework for studying domestic criminal justice reforms in a globalised world. It revisits one of the central, albeit less noticed, themes of Philip C Jessup’s seminal 1956 Storrs Lectures on Transnational Law – transnational human problems – and identifies its descriptive and evaluative-critical benefits. The article then investigates to what extent these benefits are reflected in today’s two main theories of transnational law in criminal justice, ultimately finding that Transnational Legal Ordering of Criminal Justice provides a more suitable analytical framework than Transnational Criminal Law in this context.

Head of a Young Woman: The thrilling recovery of a flying Picasso

AbstractThe case of the illicit export of a Picasso painting by its owner and its confiscation and recovery by French and Spanish authorities provides an interesting example of the complexities of the transnational criminal, civil, and administrative law protection of national cultural heritage and of the ongoing efforts to achieve useful legal instruments at the European level, which foster and harmonize the current and often informal mechanisms of cooperation and judicial assistance among the different domestic enforcing agencies. It also attempts to show how Spanish authorities have made a legitimate, but possibly overreaching, use of existing European Union law in order to recover and appropriate a valuable work of art.

THEORETICAL AND LEGAL CHARACTERISTICS OF ECONOMIC CRIMES OF A TRANSNATIONAL NATURE

The article examines the theoretical and legal foundations of economic crimes of a transnational nature formed under the influence of globalisation processes in the world, the growth of international crime and other factors. The author provides a conceptual description of transnational crime as the main category of transnational criminal law, including economic crimes. Scientific views of domestic and foreign scientists on the nature of crimes of an international nature, including criminal acts in the economic sphere are analysed; the most dangerous and widespread economic crimes are characterised. Attention is paid to the legal regulation of these relations, universal and regional conventions, other sources. The authors justify the need to criminalise transnational economic crimes in national law, regardless of whether a particular state is a party to international conventions adopted by international organisations. The authors pay special attention to the characteristics of the subjects of the crime and reveals the debatable nature of their definition, in particular, analyse the problematic nature of the recognition of a legal entity as a subject of crime. The authors use a conceptual approach to clarifying the subject of study, which determines the reasonability of theoretical research, and modern principles of scientific methodology: the principle of scientific pluralism, impartiality, comprehensiveness of research, historicism, complexity and others. A modern requirement in the methodology of science is the rejection of methodological monism, which has long been dominant in theoretical and historical studies of social (including legal) phenomena and the rejection of the ideology of scientific knowledge, which provides an objective, unbiased attitude to any legal phenomena, legal systems, etc. The purpose of the article is to provide theoretical and legal characteristics of international crime in the economic sphere, identify the transnational nature of these crimes, clarify the state of legal regulation of these relations at the international level, as well as international cooperation to combat these crimes. Based on the study and theoretical generalisation of the research topic, the authors emphasise the following conclusions: modern world problems are global in nature; economic crime transcends borders and becomes international; economic crimes of a transnational nature are recognised as socially dangerous acts that encroach on the system of social relations in the field of financial and credit, investment, information, trade, etc. activities, and have a transnational nature, i.e. go beyond one state; countering economic crimes of a transnational nature is within the internal competence of states, but international cooperation in this area also has an objective basis; the legal basis of international cooperation of states are international legal anti-criminal conventions, which define the criminal acts and obligations of states to criminalise economic crimes and provide legal assistance in criminal proceedings, in particular in extradition and transfer of accused and convicted persons, disposal of confiscated property, joint investigation and other issues.

The Review Mechanism of the United Nations Convention against Transnational Organized Crime and Its Protocols

Abstract This essay analyses the main features of the Review Mechanism of the United Nations Convention Against Transnational Organized Crime (UNTOC) and its Protocols, in the perspective of the peer review methodology. Some interesting indications as to the Review Mechanism’s legitimacy may be drawn from comparing it with other peer review systems in the field of transnational criminal law and human rights law. Although the UNTOC Review Mechanism’s institutional design reveals many structural flaws, a strong commitment by the States parties to promoting the best standards of the peer review methodology could arguably contribute to increasing its overall legitimacy and effectiveness, far beyond its formal constraints.

Time for a Protocol on Transnational Environmental Crime?

Environmental law became global through the adoption of environmental treaties in the last quarter decade of the 20th century. Similarly, globalisation of criminal law accelerated when the Convention on Transnational Organised Crime 2000 (CTOC) deepened international legal cooperation between States to combat transnational crime. A protocol to the CTOC, complemented by voluntary guidelines and model legislation, could promote international harmonisation of laws against environmental crimes. This article argues that the time is right to bring together certain elements of international environmental and transnational criminal law.