International Enforcement Law Trends for 2010 and Beyond: Can the Cops Keep Up with the Criminals?
Zagaris, Bruce, Suffolk Transnational Law Review
I. INTRODUCTION (1)
During the last decade a major public policy issue in the United States--and indeed the world--has concerned the appropriate strategy and means to prevent and punish international crime. In the 1970s and 1980s, the United States led the effort in counter-drug policy. An instrumental part of the strategy is the anti-money laundering and asset forfeiture laws enacted in the mid 1980s. This policy was exported to the international community and became enshrined in the 1988 Vienna Convention against the trafficking of narcotics and psychotropic substances. (2) During the Clinton Administration, the focus of this policy expanded to combating transnational organized crime (TOC), including the use of economics sanctions against TOC, which became embodied in the U.N. Palermo Convention. (3) The policy focus under George W. Bush was counter-terrorism and the use of the "war" paradigm. Similarly in 1977, the United States enacted the Foreign Corrupt Practices Act (FCPA) and has led the crusade against transnational corruption. These policies are embedded in about five international anti-bribery conventions. Currently, under the Obama Administration, the United States has prioritized making strategic revisions in U.S. international criminal policy.
This article discusses developments in the United States and international policy with respect to international white collar crime, as well as the interaction between international criminal law, especially counter-terrorism, and international human rights law. One question is whether the U.S. government and lawyers will play a leadership role in international enforcement policy and law.
II. THE RISE, AND CHALLENGE OF, INTERNATIONAL WHITE COLLAR CRIME
The modern economy, globalization, and new technologies facilitate the spread of transnational crime, especially economic crime. The fact that new types of substantive international crimes emerge every decade, such as cybercrimes and money laundering, is a recent phenomenon. Just as importantly, the procedural aspects of international criminal law continue to grow. (4) For instance, the interplay of free trade and economic integration is a double-edged sword. On the one hand, to the extent free trade agreements (FTAs) and economic integration do not confront criminal cooperation and justice, they facilitate the growth of transnational crime. On the other hand, to the extent FTAs and economic integration do confront these issues within the agreement, as is the case with the pacts governing economic cooperation within the European Union, they become a laboratory for cutting-edge international criminal cooperation and criminal justice developments.
Another essential and dynamic component of international criminal law is the evolving framework of institutions. The dramatic growth of broad criminal justice agendas within traditional international institutions like the Organization of Economic Cooperation and Development (OECD) and multilateral development banks led by the World Bank Group continues to make criminal law a growth sector. Concomitantly, the international community is increasingly establishing informal groups, such as the G8, G20, Financial Action Task Force, and the Egmont Group, to deal with various international criminal groups. (5) Just as important has been the rise of national institutions throughout the world, such as counter-drug enforcement agencies, financial intelligence units, and asset forfeiture agencies. (6)
A. Environment Giving Rise to International Economic Crimes
Contemporary transnational criminals take advantage of globalization, trade liberalization, and emerging new technologies to commit a diverse range of crimes, and to move money, goods, services, and people for purposes of pure economic gain or political violence. (7) A key component facilitating international white collar crime is trade liberalization, especially FTAs. The problem is that the lack of foresight, leadership, and favorable politics prevents trade negotiators from providing for comprehensive enforcement mechanisms. …