Maritime Crimes and the Problem of Cross-Border Enforcement: Making the Most of Existing Multilateral Instruments
Piracy and International Maritime Crimes in ASEAN: Prospects for Cooperation, Robert C. Beckman & J. Ashley Roach, eds., Edward Elgar Publishing Ltd, 2012
42 Pages Posted: 30 Jan 2013
Date Written: 2012
This paper undertakes a comparative and critical analysis of the enforcement regimes put in place by the multilateral treaties considered at this workshop. First, it examines the enforcement arrangements set out in instruments of a general nature, namely, the 2004 Treaty on Mutual Legal Assistance in Criminal Matters (2004 MLAT) and the 1982 United Nations Convention on the Law of the Sea (UNCLOS) . It then evaluates the enforcement frameworks established by crime specific treaties: the 1979 International Convention against the Taking of Hostages (1979 Hostages Convention), the 1999 International Convention for the Suppression of the Financing of Terrorism (1999 Financing of Terrorism Convention), the 2007 ASEAN Convention on Counter Terrorism (2007 ACCT), the 1988 Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (1988 SUA Convention), the 2005 Protocol to the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (2005 SUA Protocol), and the 2000 United Nations Convention on Transnational Organized Crime (2000 UNTOC) . In conducting my comparative analysis of these instruments, I highlight their distinctive features and their respective strengths. I explain, in particular, how these instruments regulate the exercise of jurisdiction by States and the inter-State cooperation process. Finally, this paper draws attention to how the effectiveness of these instruments may be further maximized by appreciating their interactive relationship and their underlying principles of governance.
The international legal landscape remains organized around principles of State sovereignty and equality, a crucial aspect of which is a State’s exclusive claim over its territory. States are prohibited from encroaching on the territorial sovereignty of other States, and are entitled to have their own territorial sovereignty respected by other States. When acting within their sovereign powers, States have absolute discretion over decisions and actions taken. The principles of State sovereignty and equality demand that the exercise of such discretion is respected by other States. However, these classical notions of State sovereignty severely limit the ability of States to combat transnational crimes. This is because, by their very nature and definition, transnational crimes take place across State borders. The offender, criminal proceeds, victims, and witnesses may be located in different States. A State seeking to prosecute the crime is, therefore, unable to proceed without obtaining the evidence necessary for trial, and this it cannot do by encroaching on the territorial sovereignty of other States. Further complications arise when dealing with maritime crimes within the ASEAN region due to contested maritime borders, the narrowness of seas and uneven national enforcement capacity.
To overcome such sovereignty constraints in their suppression of transnational crime, States have concluded various multilateral instruments by which they undertake to exercise their jurisdictional powers and respond to cooperation requests in a certain manner. These treaties were largely initiated on an ad hoc basis, in response to specific problems, and under the auspices of different international organizations; however, there is a significant overlap between these treaties when applied to concrete cases. This is particularly so in the context of maritime crimes. Depending on the facts of the individual case, a maritime crime may also be classified as an act of terrorism, a threat to maritime security or a transnational organized crime. Accordingly, the entire list of treaties mentioned above may apply: the 2004 MLAT; the UNCLOS; the 1979 Hostages Convention; the 1999 Financing of Terrorism Convention; the 2007 ACCT; the 1988 SUA Convention; the 2005 SUA Protocol; and the 2000 UNTOC . Apart from the 2005 SUA Protocol, which is a relatively new treaty, most ASEAN States have become or are in the process of becoming parties to these multilateral treaties (see the Appendix for a complete breakdown).
Each of the above mentioned treaties regulates the jurisdictional powers exercised by States over the offence concerned. This paper focuses on a particular type of jurisdictional power – enforcement powers. By fully appreciating the differences and similarities between these treaties, and subject to the State being a party to the treaty concerned, ASEAN decision makers may maximize their enforcement frameworks by selecting the most appropriate treaty or the most suitable combination of treaties to the unique factual matrix at hand. In addition, this paper identifies general trends and emerging principles of governance as reflected in these treaties. In general, States continue to retain significant discretion in deciding whether jurisdiction should be exercised, or cooperation requests complied with, in cross-border criminal matters. Such discretion is closely associated with State sovereignty. However, multilateral instruments, such as those considered in this workshop, increasingly subject the discretion of State Parties over their jurisdictional powers to a number of positive obligations as well as procedural and substantive requirements. This demonstrates a move away from State discretion, and a move towards the development of common goals and shared standards in certain areas of cross-border cooperation in criminal matters.
Keywords: Maritime Crimes, Piracy, Cross-border Enforcement, Inter-state Cooperation, Extradition, Mutual Legal Assistance
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